Holbrook v. State

Decision Date11 March 1969
Docket NumberNo. 231,231
Citation250 A.2d 904,6 Md.App. 265
PartiesMack Arthur HOLBROOK v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Donaldson C. Cole, Jr., and Julius J. Jodlbauer, State's Atty. and Asst. State's Atty. for Cecil County, respectively, on brief, for appellee.


ORTH, Judge.

The appellant was found guilty by a jury in the Circuit Court for Cecil County of assault upon and battery of Ralph Newton and sentenced to 10 years. 1

At the close of all the evidence, a motion for judgment of acquittal was made and denied and the court instructed the jury. Thereafter the State opened the argument to the jury, defense counsel argued in behalf of the appellant and the State made closing argument. The appellant claims that the closing argument of the State denied him a fair and impartial trial. 2

Of course, the prosecutor may not make statements to the jury which exceed the limits of permissible comment. What exceeds the limits of permissible comment depends a good deal on the facts of each case, even where remarks may fall into the same general classification. Shoemaker v. State, 228 Md. 462, 468, 180 A.2d 682. Generally the prosecutor has an obligation to refrain from making any remark within the hearing of the jury which is likely or apt to instigate prejudice against the accused. Thus an appeal to racial or religious prejudice is improper. Contee v. State, 223 Md. 575, 584, 165 A.2d 889. The better reasoning and weight of authority are against the propriety of remarks as to the right of appeal and the possibility of executive clemency and parole of the defendant. Shoemaker v. State, supra, 228 Md. at 468, 180 A.2d 682. It is improper for the prosecutor to assert his personal belief or personal conviction as to the guilt of the accused, if that belief or conviction is predicated upon anything other than the evidence in the case, but he has the undisputed right to urge that the evidence convinces his mind of the accused's guilt. Cicero v. State, 200 Md. 614, 620-621, 92 A.2d 567; Apple v. State, 190 Md. 661, 666, 59 A.2d 509; Riggins v. State, 125 Md. 165, 174, 93 A. 437. Appeals to passion may so poison the minds of jurors that an accused may be deprived of a fair trial. Wood v. State, 192 Md. 643, 652, 65 A.2d 316. It is the duty of the prosecutor to confine himself in argument to facts in evidence, and he should not state and comment upon facts not in evidence, or to state what he could have proven. Esterline v. State, 105 Md. 629, 637, 66 A. 269. 'It is unquestionably wrong for the state's attorney in his argument to the jury to refer to any matter not testified to by the witnesses or disclosed by the evidence in the case * * *.' Toomer v. State, 112 Md. 285, 292-293, 76 A. 118, 122. As Wharton puts it in his 5 Criminal Law and Procedure (Anderson) § 2081, p. 241, 'Moreover, since it is the duty of the prosecuting attorney to act impartially to achieve justice, he should avoid urging upon the jury any inferences which are not logical deductions from the evidence in the case.' In short, the prosecutor should make no remark 'calculated to unfairly prejudice the jury against the defendant.' Newton v. State, 147 Md. 71, 92, 127 A. 123, 132; Meno v. State, 117 Md. 435, 441, 83 A. 759.

The fact that in Maryland the jury is the judge of the law as well as of the facts does not mitigate the consequence or an improper statement by the prosecutor. Shoemaker v. State, supra, 228 Md. 472, 180 A.2d 682. But that a remark made by the prosecutor in argument to the jury was improper does not necessarily compel that the conviction be set aside. For example as the Court of Appeals said in Toomer v. State, supra, 112 Md. 293, 76 A. 122, quoting Dunlop v. United States, 165 U.S. 486, 17 S.Ct. 375, 41 L.Ed. 799:

'If every remark made by counsel outside of the testimony were ground for a reversal, comparatively few verdicts would stand, since in the ardor of advocacy, and in the excitement of trial, even the most expreienced counsel are occasionally carried away by this temptation.'

The rule is that 'unless it appears that the jury were actually misled or were likely to have been misled or influenced to the prejudice of the accused by the remarks of the State's Attorney' reversal of a judgment of conviction will not be justified. Wood v. State, supra, 192 Md. 652, 65 A.2d 320. Kellum v. State, 223 Md. 80, 88, 162 A.2d 473. See Shoemaker v. State, supra, 228 Md. 473-474, 180 A.2d 682. In applying this rule it appears that a significant factor in determining whether the jury were likely to have been misled or influenced to the prejudice of the accused by an improper remark is whether the trial court took appropriate action to overcome a likelihood of prejudice, e. g. informing the jury that the remark was improper, striking it and admonishing them to disregard it. When such action, found to be sufficient by the reviewing court, was taken, the judgments were affirmed. Cohen v. State, 173 Md. 216, 230-232, 195 A. 532; 196 A. 819; Callan v. State, 156 Md. 459, 469, 144 A. 350; Newton v. State, supra, 147 Md. 92, 127 A. 123; Esterline v. State, supra, 105 Md. 637, 66 A. 269; Cox v. State, 3 Md.App. 136, 141, 238 A.2d 157. And in .shoemaker v. State, supra, and Meno v. State, supra, where such action was not taken by the trial court, the judgments were reversed.

The question arises as to the preservation on appeal of the question of improper statements of the prosecutor in argument. This Court will not ordinarily decide any point or question which does not plainly appear to have been tried and decided by the lower court. Md.Rule 1085. In Cicero v. State, supra, the Court noted that no objection was made to the challenged argument and thus there was a waiver of the error and an estoppel in the Court of Appeals. But we not think that error is waived by failure to object at the moment the improper statement is made in the argument. 3 See Md.Rule 522 b and 725 f. In Day v. State, 2 Md.App. 334, 234 A.2d 894 we noted that there was no exception or objection taken at the time of the State's Attorney's final argument. We said, at 340, 234 A.2d at 898, 'If the accused desired to complain of an alleged impropriety in the State's Attorney's closing argument he should have either moved to strike it out or moved to withdraw a juror and declare a mistrial.' We do not take this to mean that the point is not preserved unless the State's argument is interrupted by objection or motion. Although it may be better for defense counsel to object when the statement is made during argument, we think that objection is timely when brought to the attention of the trial court when it has a reasonable opportunity to correct the situation at the conclusion of the argument. 4 We note also that there is an obligation on the trial court in certain circumstances even in the absence of objection. In Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 the accused did not object at the time 'highly prejudicial' remarks were made by the prosecutor, but objected during the court's charge to the jury, which objection was overruled as too late. The Supreme Court said that the trial judge should have stopped counsel's discourse without waiting for an objection. 5 In Meno v. State, supra, the Court said, regarding the 'highly improper' action of the State's Attorney in injecting an improper statement into the case (not in argument), that 'he should have been checked immediately by the court, and the jury instructed to totally disregard his remark.' And the trial court's responsibility may not end with overruling an objection made.' (I)n addition to sustaining an objection to an improper remark or misconduct, (the trial court) is also entrusted with further responsibility to caution or reprimand the State's Attorney as the exigencies of the situation may require and to forthwith instruct the jury to disregard the unwarranted remarks and conduct of the prosecuting attorney.' Contee v. State, supra, 223 Md. 584, 165 A.2d 895. And even absent an objection or action by the trial court, '(i)t is, of course, true that in a criminal case where grave error has been committed, and the accused is thereby denied due process, an appellate court may and should on its own motion, reverse the conviction.' Apple v. State, supra, 190 Md. 667-668, 59 A.2d 512.

With this background we turn to the instant case. At the conclusion of the State's closing argument defense counsel told the court that he would like 'to take some exceptions to the State's Attorney's argument.' The court suggested it could be done during the lunch hour in chambers and the court recessed. In chambers, in the presence of the appellant, defense counsel moved for a mistrial 'because of the closing argument made by the Assistant State's Attorney.' He said:

'We particularly feel that the entire tenor of the closing argument was improper, and especially refer to statements made that the defendant had been on the witness stand many times when there was no evidence the defendant had ever testified in court; statements that Mr. Newton had told the State's Attorney the same version on numerous occasions when there was no testimony on that point; particularly to his argument to the jury that the defendant was mentally defective, and that the fact of his being mentally defective could be proven by the fact that he had been convicted of assault and battery on several prior occasions. We particularly feel that the Court had instructed the jury and had limited the use of the prior convictions solely to a matter of credibility and that any attempt to show or any argument to show that he was mentally defective because of prior convictions is wholly prejudicial.

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