Smith v. State

• Decision Date: 27 October 2021
• Docket Number: No. 1273, Sept. Term, 2020,1273, Sept. Term, 2020
• Citation: 262 A.3d 1156,253 Md.App. 25
• Parties: Everett SMITH v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

253 Md.App. 25

262 A.3d 1156

Everett SMITH

v.STATE of Maryland

No. 1273, Sept. Term, 2020

Court of Special Appeals of Maryland.

October 27, 2021

Argued by: Rachel Marblestone Kamins (Michele Hall, Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Argued by: Derek Simmonsen (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Berger, Wells, Ripken, JJ.

Berger, J.

Following a jury trial in the Circuit Court for Kent County, Everett Smith, appellant, was convicted of second-degree child abuse and second-degree assault. On appeal, Smith presents two issues for our review, which we have rephrased as follows:

1. Whether Smith's right to a fair trial by a fair tribunal was violated when the circuit court denied Smith's request that courtroom bailiffs not wear "thin blue line" face masks during Smith's trial.

2. Whether the circuit court abused its discretion in its regulation of the prosecutor's closing argument.

For the reasons explained herein, we shall answer both questions in the negative and affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On October 3, 2019, an altercation occurred between Smith and his fourteen-year-old daughter, L.H. At the time, L.H. and Smith were both residing at L.H.’s grandmother's home. L.H.’s telephone privileges had been revoked due to her behavior, but L.H. picked up a cordless telephone in the dining room to make a telephone call. L.H.’s grandfather had recently passed away, and L.H. wanted to call her other grandmother, whom L.H. described as her "safe person" in times when she was "in a state of mind where it's not really safe for [her]." L.H. was feeling "very anxious" and was experiencing a "panic attack." L.H. had previously experienced panic attacks, which presented with symptoms including "blanking out," where she did not "have full recollection of things" and was "not fully aware."

Smith saw L.H. pick up the cordless phone and began yelling at her, asking, "What are you doing and who are you calling?" Smith "grabbed the phone from [L.H.]" and hung it up. When L.H. "went to grab it again," Smith "got close to [L.H.] and smashed the phone on [her] head and threw it on the floor." Smith "continued to be in [L.H.’s] face so [she] couldn't really get away."

L.H. "pushed him away gently" in order to "get away from the situation." She walked toward the door, but Smith "got in [her] face right after that and began to hit [her]." Smith "punch[ed]" her multiple times on her head. L.H. "put [her] hands up on [her] head to try to protect [her]self as much as [she] could," but Smith continued to strike her. L.H. "tried to go out the back door," but Smith "continued to follow [her], cuss at [her], scream at [her] and everything." L.H. eventually was able to get out of the house. She ran out into the street screaming for help. L.H. ran down the street to her cousin's house. L.H. told her cousin that Smith was "trying to kill [her]" and asked her cousin to call the police, but she did not.

L.H. went to her aunt's porch "which was across the street" and saw Smith standing "outside trying to block the door" of L.H.’s grandmother's house. Ultimately, L.H. spent the night at her cousin's house. L.H. was "not feeling well" and was "dizzy." She was able to sleep that night, but the next morning, she vomited after eating breakfast. L.H.’s aunt called 911 and L.H. was subsequently transported to the hospital by an ambulance.

On cross-examination, defense counsel inquired, inter alia , as to whether L.H. remembered the incident accurately in light of the panic attack she was experiencing at the time. L.H. testified regarding her mental health history, explaining that she had received a "pre-diagnosis" of bipolar disorder

, which she explained as "steps to bipolar."¹ L.H. testified that she had been previously diagnosed with bipolar disorder , but medical professionals informed her "that it was a misdiagnosis." L.H. acknowledged that she had been diagnosed with depression, anxiety, and post-traumatic stress disorder and that she was taking Prozac. When asked whether her panic attacks were "related to the diagnoses of depression, anxiety and PTSD," L.H. responded: "Suicidal comes with my head thoughts. Those will come with the depression, anxiety and PTSD."

State Trooper Tanner Nickerson, the officer who responded to L.H.’s aunt's 911 call, testified at trial. Smith told Trooper Nickerson that he struck L.H. "one time with an open hand." When Trooper Nickerson asked Smith how many times he hit L.H., Smith "stated ‘I'm not really sure.’ " Smith told Trooper Nickerson that "he wished to press charges on [L.H.]" because "he did nothing wrong and he was in self-defense."

Trooper Nickerson went to the hospital where L.H. had been transported. Trooper Nickerson testified that "[t]he doctor told me directly that, yes, they did a brain scan on [L.H.] that came back clear" but "[t]hey believe that she had received a concussion." Trooper Nickerson did not observe any other physical injuries on L.H. Trooper Nickerson testified that L.H. told him that she had been struck with hands and elbows on her head.

Smith called L.H. as a witness during his case-in-chief. When defense counsel inquired as to whether L.H. had "any long-term problem as a result of [her] concussion," L.H. answered that she experienced headaches as a result of her injuries.

Smith was convicted of second-degree child abuse and second-degree assault stemming from this incident. He received a sentence of fifteen years’ imprisonment with all but five years suspended for the child abuse offense and a concurrent sentence of five years’ imprisonment for the assault offense, to be followed by a five-year term of probation. Smith noted a timely appeal. Additional facts shall be discussed as necessitated by our consideration of the issues raised on appeal.

I.

The first issue raised by Smith on appeal focuses upon the trial court's denial of Smith's request that the trial court prohibit bailiffs from wearing "thin blue line" flag face masks in the courtroom.² Prior to the start of the trial, defense counsel objected to the "thin blue line" flag face mask that courtroom bailiffs were wearing, raising the issue in the following exchange:

[DEFENSE COUNSEL]: So the defense has raised a couple of questions and I wanted to formally address those at this time.

I think, first and foremost, we did not file a line or some sort of motion to preclude this from happening but have been communicating with the State and the [c]ourt over a period of a week or more regarding the facial coverings that the bailiffs have been ordered to wear.

These facial coverings, as I understand it, are not a choice that the bailiffs have in terms of wearing or not wearing but, rather, have been ordered by the elected sheriff of this county to be as part of their uniform.

These facial coverings, for the record, depict[ ] what is commonly [known] as the thin blue line, American Flag. It's a black and white copy of an American Flag with one of the bars across instead of being in black, it is in blue. It makes a visual representation of this concept of a thin blue line as something that the police are standing between order and chaos. That they -- it is inherently a political statement. It is often used as a counterpoint in terms of arguments about whether black lives matter and if that's a political statement or not, this is often a counterpoint and an argument I think is inherently a political statement, especially if it's ordered by someone elected in political office.

I think that the [c]ourt can exercise its judicial power in establishing decorum and procedures in this courtroom and I think it, in fact, is inherent in judicial ethics to make sure that the Defendant receives every appearance of a fair trial and, in fact, does receive a fair trial.

The Defendant, Mr. Smith, and I have discussed this matter. He feels that the presence of this emblem on the facial coverings of the bailiffs indicates a bias in favor o[f] either police o[r] the State and therefore is preventing him from receiving --

THE COURT: Doesn't their ... uniform do that?

[DEFENSE COUNSEL]: I don't believe that the uniform of a police office[r] is an inherently political statement.

I think that the facial covering, and this particular emblem, is used both by members of the police but also by member[s] of the public to indicate a political statement in support of police and in contradiction to some of the movements, social movements, that we're seeing today.

And, for that reason, Mr. Smith believes that having that representation on the facial coverings is making a political statement in a place that is supposed to be unbiased and providing a neutral and fair place for his trial today.

THE COURT: Okay. [Prosecutor].

[THE PROSECUTOR]: Thank you, Your Honor.

I don't think we can just assume that it is a political statement. I don't think we can take [defense counsel]’s argument for what that stands for [at] face value.

There's no evidence before the [c]ourt or the testimony from the sheriff or from the deputy what exactly this means. It simply is an American Flag with a blue stripe. There are no words present on it that convey anything.

The fact that it may even be political speech would inure more protections for it.

I think that argument, you know, has a little more merit, probably not any merit, but a little more merit with a uniform versus what is protected, constitutionally protected speech.

So the question is whether this mask, which it is the deputy's constitutional right to wear, whether that infringes on the Defendant's constitutional right to a fair and impartial trial. And I would submit that any potential bias is -- from -- from a face covering that probably nobody even noticed would be completely diminished by an officer wearing a uniform with a badge and a firearm.

And I think that this argument that this face mask needs to be swapped for something

...