Smith v. State, No. 64

• Court: Court of Appeals of Maryland
• Writing for the Court: RAKER.
• Citation: 787 A.2d 152,367 Md. 348
• Docket Number: No. 64
• Decision Date: 20 December 2001
• Parties: Robert Allen SMITH v. STATE of Maryland.

787 A.2d 152
367 Md. 348

Robert Allen SMITH
v.
STATE of Maryland

No. 64, Sept. Term, 2000.

Court of Appeals of Maryland.

December 20, 2001.

787 A.2d 153

Nancy S. Forster, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner

M. Jennifer Landis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

RAKER, Judge.

Robert Allen Smith, petitioner, asserts that his federal and state constitutional right against self-incrimination was violated by the prosecutor's comments during closing argument. We agree and shall hold that the prosecutor's remarks were a direct comment on petitioner's exercise of his privilege against self-incrimination. The error was not harmless, and a new trial is therefore in order.

In March, 1998, the home of Mr. and Mrs. Davis was burglarized and several items of property taken. The missing items included: a twenty-two caliber revolver, a shotgun, jewelry, coins, four women's leather jackets, two men's leather jackets, and a pair of leather chaps. On the basement stairs, the police found a shoe print of a person's boot; they found a similar print on a shirt left in the bathroom.

787 A.2d 154

On March 4, 1998, Ridgely police officer Phil Dixon spoke with a person who told him that Smith offered to sell a twenty-two caliber revolver that matched the description of the gun stolen from the Davis' home. Based on this information, the police secured a search and seizure warrant for Smith's home. They found no evidence linking him to the burglary. On March 9, 1998, Officer Dixon interviewed Denise Brown, who told him that she purchased a leather jacket from Smith for twenty dollars. Ms. Brown also said that Smith showed some leather clothing to Richard Greenwood. The police contacted Greenwood, and he told them that he bought a men's leather jacket and leather chaps from Smith. The police then showed the leather clothing to Mr. and Mrs. Davis, who identified it as their property. The police also compared Smith's shoes to the print found at the Davis' home and concluded that it was "an exact match or a near exact match." Smith was arrested. While he was in jail, he telephoned Arkendra Candi. Candi testified at trial that Smith asked her to telephone Denise Brown and offer her a bribe to change her story and deny receiving the clothing from Smith. Greenwood and Brown also testified at trial

Petitioner was tried in the Circuit Court for Caroline County before a jury on charges of first degree burglary, conspiracy to obstruct justice, malicious destruction of property, and four counts of theft. Petitioner did not testify and presented no evidence on his behalf. The prosecutor argued in closing argument that:

"The Judge has said that you can look backwards in this case. Look to see who ends up with the property and then you can work backwards and here if the recent unexplained possession of stolen property allows you to work backwards to conclude, hey, this guy was the thief, this guy was the burglar. In making that conclusion, ask yourself this. What explanation has been given to us by the defendant for having the leather goods? Zero, none."

The defense objected to the last comment, but the trial court, before the jury, overruled defense counsel's objection, stating: "I think that's a comment on the evidence. Overruled. I think he was as much referring to any explanation to the police."

Smith was convicted by the jury on all counts and sentenced to a term of incarceration. In an unreported opinion, the Court of Special Appeals affirmed. The intermediate appellate court found that "the prosecutor's remarks in closing concerned the lack of evidence to explain, on some legitimate basis, appellant's possession of the Davises' leather clothing and did not concern appellant's failure to testify." Rejecting Smith's argument that the prosecutor commented on his failure to testify, the court reasoned that the prosecutor's comments merely "served to highlight that none of the witnesses who testified at trial could refute or explain the fact that, soon after the burglary, appellant was seen in possession of the Davises' missing leather goods." We granted Smith's petition for a writ of certiorari.¹ See Smith v. State, 360 Md. 485, 759 A.2d 230 (2000).

787 A.2d 155

Before this Court, Smith argues that the prosecutor directly referred to his failure to testify and that this error was not harmless. The State counters that the prosecutor's remark was merely a comment on the lack of evidence to explain Smith's possession of recently stolen property. In the State's view, the prosecutor's comments were made to remind the jury that it could infer that Smith was the thief from his unexplained possession of recently stolen goods

We begin with a brief discussion of the privilege against self-incrimination. It has long been the law in Maryland that a defendant in a criminal trial need not testify. Comment upon a defendant's failure to testify in a criminal trial was prohibited in Maryland before the United States Supreme Court, in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed2d. 106 (1965), held that the federal constitutional right against compelled self-incrimination prohibits prosecutorial comment on the accused's silence or failure to testify. See e.g., Woodson v. State, 325 Md. 251, 265, 600 A.2d 420, 426 (1992) (citing Barber v. State, 191 Md. 555, 62 A.2d 616 (1948); King v. State, 190 Md. 361, 58 A.2d 663 (1948); Smith v. State, 169 Md. 474, 182 A. 287 (1936)). Today, the privilege against self-incrimination is protected by the Fifth Amendment of the United States Constitution,² Article 22 of the Maryland Declaration of Rights,³ and Maryland Code (1957, 1998 Repl.Vol., 2000 Cum.Supp.) § 9-107 of the Courts and Judicial Proceedings Article.⁴ See Woodson, 325 Md. at 264-65, 600 A.2d at 426 (1992).

Despite our long history of protecting defendants' right not to testify, a prosecutor may summarize the evidence and comment on its qualitative and quantitative significance. See Wilhelm v. State, 272 Md. 404, 412-13, 326 A.2d 707, 714 (1974). In closing argument, lawyers have wide latitude to draw reasonable inferences from the evidence, and discuss the nature, extent, and character of the evidence. See Ware v. State, 360 Md. 650, 681-82, 759 A.2d 764, 780 (2000); Degren v. State, 352 Md. 400, 429-30, 722 A.2d 887, 901 (1999).

In evaluating whether a prosecutor's comments are improper, this Court long ago set forth the following test: is the remark "susceptible of the inference by the jury that they were to consider the silence of the traverser in the face of the accusation of the prosecuting witness as an indication of his guilt." Smith v. State, 169 Md. 474, 476, 182 A. 287, 288 (1936) (emphasis added).⁵ In Smith, a trial for bastardy,

787 A.2d 156

the prosecutor argued before the jury that "this defendant has sat here all during the trial and has not denied his fatherhood." Id. We stated:

"There can be no question of the impropriety of this remark, as it was susceptible of the inference by the jury that they were to consider the silence of the traverser in the face of the accusation of the prosecuting witness as an indication of his guilt. The constitutional provision [Declaration of Rights, art. 22] is `that no man ought to be compelled to give evidence against himself in a criminal case,' but the statutory law enlarges this privilege by declaring: `In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes and offense * * * the person so charged shall at his own request, but not otherwise, be deemed a competent witness; but the neglect or refusal of any such person to testify shall not create any presumption against him.'"

Id.

Maryland is not alone in adopting a test that is highly protective of a defendant's ability to exercise his Fifth Amendment right to remain silent.⁶ The Indiana Supreme

787 A.2d 157

Court, for example, rejected the "naturally and necessarily" test, finding that it is the test "which goes the farthest in allowing the prosecution to remark on the accused's silence...." Rowley v. Indiana, 259 Ind. 209, 285 N.E.2d 646 (1972). The court adopted a test much like the Maryland Smith test:

"We prefer the test which does not in such an obvious fashion place the burden on the accused to show that the jury necessarily took the comment to be related to his failure to take the stand. A more reasonable test, in our opinion, was stated in Williams v. Wainwright, 416 F.2d 1042 (5th Cir.1969), where the court stated that it is settled in both Federal and Florida law that:

A comment made by the prosecuting attorney, directly or indirectly which is subject to interpretation by a jury as a comment upon failure of a defendant to testify has been strictly regarded as an impingement on the substantial right of the defendant."

Id. at 648. See also Moore v. Indiana, 669 N.E.2d 733 (1996) (recounting the history of the no-comment rule, adhering to the Rowley decision, and rejecting Morrison-Knowles.)

Likewise, the Commonwealth of Massachusetts applies a test similar to the Maryland test as set out in Smith: irrespective of the prosecutor's intent, the test is whether the remarks were reasonably susceptible of being interpreted as a comment on the defendant's failure to take the witness stand. See Commonwealth v. Smith, 387 Mass. 900, 444 N.E.2d 374, 381 (1983).

Florida also has adopted the "fairly susceptible" test and specifically rejected the "naturally and necessarily" test. When asked by the State to abandon the "fairly susceptible" test, the Supreme Court of Florida held that "the fairly susceptible test offers more protection to defendants than does the federal test, and we decline the state's invitation to adopt the latter [for purposes of the...