Lee v. State

• Court: Maryland Court of Appeals
• Writing for the Court: Battaglia
• Citation: Lee v. State, 950 A.2d 125, 405 Md. 148 (Md. App. 2008)
• Decision Date: 13 June 2008
• Docket Number: No. 132, Sept. Term, 2007.,132, Sept. Term, 2007.
• Parties: Kevin Ricardo LEE v. STATE of Maryland.

950 A.2d 125

405 Md. 148

Kevin Ricardo LEE v. STATE of Maryland.

No. 132, Sept. Term, 2007.

Court of Appeals of Maryland.

June 13, 2008.

David P. Kennedy, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore), on brief, for petitioner.

Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore), on brief, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, IRMA S. RAKER (Retired, specially assigned), and DALE R. CATHELL (Retired, specially assigned), JJ.

BATTAGLIA, J.

In this case we shall address whether the trial judge erred in permitting the State, over objection, to argue to the jury during rebuttal argument that a victim's testimony was not credible because he was following "the law of the streets," that the jury should protect their community and clean up the streets, and that the jury should teach the defendant not to abide by the "laws of the streets" in settling disputes. We shall hold that the combination of all of these comments exceeded the permissible scope of closing argument and that the trial judge did err in permitting the prosecutor to make those comments.

Background

Petitioner, the defendant below, Kevin Ricardo Lee, was indicted for various offenses that allegedly occurred on September 13th, 2003, arising from a shooting involving Richard Cotton in Baltimore City. The offenses included attempted first-degree murder in violation of Section 2-205 of the Criminal Law Article, Maryland Code (2002),¹ attempted second-degree murder in violation of Section 2-206, first-degree assault in violation of Section 3-202, second-degree assault in violation of Section 3-203, use of a handgun in the commission of a felony or crime of violence in violation of Section 4-204, wearing, carrying and transporting a handgun upon or about his person in violation of Section 4-203, reckless endangerment in violation of Section 3-204(a)(1), discharging a firearm within Baltimore City limits in violation of Article 19, Section 59-2 of the Baltimore City Code, and common law conspiracy to commit murder.

At trial, the State presented one eyewitness, who testified that on September 12th, 2003, Lee and Cotton were involved in a fight on her porch and that Lee had a gun at that time. The eyewitness further testified that the following day she heard gunshots and from an upstairs window in her home, she witnessed Lee running up the street after Cotton with an "object that looked like a gun" from which smoke appeared to be emanating. Subsequently, after being shown photographs by the police, she identified Lee as the individual involved in the altercation with Cotton on her porch, as well as the one chasing Cotton down the street on the day of the shooting. On cross-examination, she admitted that, about a year after the shooting, she told her brother that she had not seen anything, but stated on redirect that she did so because she "didn't want [her brother] in the middle of it." Two detectives and a police officer also testified regarding their investigation of the case, including the eyewitness's identification of Lee. Forensic evidence was not offered.

Lee called Cotton, the victim, to the stand; Cotton testified that Lee did not shoot him. Cotton also stated that he did not recall any altercation with Lee on the day before the shooting, as well as any guns or any discussion of guns. He also responded that although he was "pretty intoxicated" when he was shot, he was "sober enough" to know that Lee was not the culprit. Lee also presented the testimony of the brother of the eyewitness, who remarked that the view of the eyewitness from the upstairs window to the street would have been obstructed and that she had told him that she had not seen anything.

After the conclusion of evidence, the trial judge gave instructions to the jury,² iterating that they were the sole judges of the evidence, that they were the judges of whether or not a witness should be believed, that they should not be swayed by sympathy, prejudice or public opinion, and that both opening statements and closing arguments were not evidence, but "intended only to help you understand the evidence and apply the law to that evidence."³

After the State presented closing argument, Lee's counsel, in his closing, posited that the State's evidence was based entirely on the testimony of the eyewitness, whose account of the events had changed over time. Lee's counsel suggested, therefore, that the jury should believe Cotton, the victim, who testified that Lee did not shoot him; he remarked that the reason that the State did not call Cotton to testify, requiring Lee to call him, was that, "He didn't prove their case. They don't like what he had to say. They made no effort to bring him in." He further suggested to the jury that it would "go[] against nature" for the victim to lie on the stand and not identify his assailant:

[COUNSEL FOR LEE]: Mr. Cotton is entitled to the presumption that he's telling the truth. He's the victim. There wasn't one iota of evidence presented by the State to suggest to you that he's lying or trying to deceive you other than that he's a friend. So I guess what that means is, if your friend is charged with a crime, the State doesn't want you to come in and say, no, he didn't do it. You're lying. You're just trying to protect him. You took three shots and you're just trying to protect him. That's what the State is asking you to assume. I suggest to you that it goes against nature. Maybe it's true. It is possible it is true. I can't tell you that it's impossible that Cotton got on that witness stand after having three gunshot wounds and lied to you just to protect his friend. That is not impossible. Is it likely? Is it likely? Do you disbelieve Cotton beyond a reasonable doubt? I suggest to you that you can't.

On rebuttal, the State argued that the jurors should not believe Cotton, because he was untruthful, because Cotton was following "the law of the streets"; Lee's counsel interposed several objections, which were overruled:

[STATE]: . . . I'm talking about Baltimore, the city that reads. Let's establish that I'm talking about the city that bleeds. Now, Richard Cotton came to court and testified that this defendant did not shoot him, and this defense counsel doesn't know why, but in order to sit on this jury —

[COUNSEL FOR LEE]: Objection.

THE COURT: Overruled.

[STATE]: — you have to be residents of Baltimore City and I'm hoping you do.

Richard Cotton would have you believe first of all, that there was not a fight the day before on the 12th. He would have you believe that [the eyewitness] called the police for nothing at all and we know [the eyewitness] called the police because Officer Henry testified on the stand that he responded.

Now, if you believe Richard Cotton, then you would have to believe that when Officer Henry said that he saw the defendant and the defendant just broke out running, you would have to believe that he was running for the sport of it. When Officer Henry testified that he observed the defendant hiding in the bushes, you would have to believe that he was laying on the ground for convenience. Do not let your intelligence be insulted.

Richard Cotton came here to help his boy, his friend, his buddy because this Court read you the law of the State of Maryland, but that has nothing to do with the law of the streets of Baltimore. Let's make the distinction. Defense can't understand somebody taking three shots.

[COUNSEL FOR LEE]: Objection.

THE COURT: Overruled.

[STATE]: He can't understand somebody taking three shots, but perhaps you can understand somebody who doesn't even remember how many times he got shot. Defense would have you to believe that Richard Cotton came here to tell you the honest-to-God truth, but I beg to differ. I beg to differ. Under no circumstances, if you live by the law of the streets of Baltimore, do you help police —

[COUNSEL FOR LEE]: Objection.

THE COURT: It's argument. Overruled.

* * *

[STATE]: — you need to be residents of Baltimore City to live on this jury. We're not in Missouri.

* * *

Richard Cotton, from the beginning, was not interested in assisting the police in solving this crime. He knew who shot him then, he knows who shot him now, but this building we are in, this is not his law, not the law that he follows, not the justice that he seeks.

The prosecutor continued, asserting that she represented the citizens of Baltimore City, who had a right to be safe in their neighborhoods; she asked, "and those residents ask that you teach this defendant . . . that disputes aren't settled by the blast of a gun." Lee's counsel objected, to no avail. When the judge overruled his objections, he also requested a curative instruction, after which the judge informed the jury that the prosecution was making "an argument," and, repeating the instructions given earlier, that appeals to passion and prejudice were not evidence:

[STATE]: Now, after firing a gun in a residential neighborhood where [the eyewitness] told you herself that at the time this incident happened she had a nephew outside playing, that is a reckless act. I represent the State of Maryland, the city residents. All of the residents of the 4700 block of Belvedere who has homes close to where this happened, who may have been on the street going from the car to the house, on the way home, whatever, all of the residents want justice, even if Richard Cotton doesn't.

Now, the defendant has a lot of rights, as well he should, as well he should, and pay attention to them all, but who else has rights? Do the residents in that area have a right to be able —

[COUNSEL FOR LEE]: Objection, Your Honor.

THE COURT: Overruled. It's argument.

[COUNSEL FOR LEE]: It's improper argument.

THE COURT: No, it isn't. Overruled.

[STATE]: Do the residents of that area have the right to be able to be safe in their environment? I ask and those residents ask...