Wilhelm v. State, s. 277

• Citation: 326 A.2d 707,272 Md. 404
• Decision Date: 26 September 1974
• Docket Number: 283,Nos. 277,s. 277
• Parties: Charles Edward WILHELM v. STATE of Maryland. Kevin Exavier COOK v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 404

272 Md. 404

326 A.2d 707

Charles Edward WILHELM v. STATE of Maryland.

Kevin Exavier COOK v. STATE of Maryland.

Nos. 277, 283.

Court of Appeals of Maryland.

Sept. 26, 1974.

George E. Burns, Jr. and Arnold M. Zerwitz, Asst. Public Defenders, Baltimore, for appellants.

James I. Keane, and James L. Bundy, Asst. Attys. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

The appellant Charles Edward Wilhelm following a jury trial (MacDaniel, J., presiding) in the Circuit Court for Baltimore County, was convicted of assault with intent to murder (a police officer), with resisting arrest and with the unlawful use of a handgun in the commission of a felony. The Court of Special Appeals in an unreported opinion in Charles Edward Wilhelm v. State (No. 224, Sept. Term, 1973), affirmed the judgments. ¹

At the commencement of his trial the Assistant State's Attorney prosecuting the case, after introducing himself to the jury, stated as follows:

'The State has charged Mr. Wilhelm on a ten-count indictment with assault with intent to murder on Phillip G. Huber, a Baltimore County Police Officer, on September 18, 1972, in Baltimore County. Listed, also, are several other charges. The State intends to prove robbery, assault with intent to rob, resisting arrest, and, under the new handgun bill passed last March, violation of the use of a handgun in the commission of a crime. The State feels this is the Jury's chance as individuals and collectively as citizens of Baltimore County-we hear the hue and cry of police protection-we feel this is your occasion to do something about it.' (Emphasis supplied.)

Counsel for the appellant objected and requested leave 'to approach the bench,' where the following colloquy took place:

'MR. MILES: My objection is made on the basis that the prosecutor is making a plea to the Jury in opening statement dealing with passion, alluding to a duty to convict my client to protect the police of our society. I feel it is only going to prejudice us and this is the basis of my objection. There is no more duty for conviction for assaulting a police officer than another person, and I would like to make the objection and I make a motion for a mistrial. I feel it has inflamed the Jury and calls for prejudice.

MR. LaVERGHETTA: I disagree. I think I have a prerogative in opening statement to tell the Jury what their duty is and present the case.

THE COURT: All right, the motion for a mistrial is denied. You can tell them what their duty is in reference to listening to the entire case but don't go into the situation about police officer protection or anything else. Closing argument may be different but this is basically what their duty is and what you intend to prove. The motion for a mistrial is denied.'

Counsel for the appellant requested no cautionary instruction to the jury and the trial court gave none. The opening statement was then concluded without further reference to the subject-matter or any additional objections.

We granted certiorari in Wilhelm limited to the question: whether the trial judge erred when he failed to declare a mistrial and failed to instruct the jury to disregard comments made by the prosecutor in the opening statement.

Kevin Exavier Cook, following a jury trial in the Criminal Court of Baltimore City (Sklar, J., presiding), was convicted of murder in the first degree (of one Charles Dean), of the attempted robbery with a dangerous and deadly weapon (of Dean) and of the robbery (of one James Conyer, a companion of Dean) under a third indictment. The judgments entered on his convictions were affirmed by the Court of Special Appeals in an unreported per curiam in Kevin Exavier Cook v. State (No. 210, Sept. Term, 1973). ²

During his opening statement in Cook the Assistant State's Attorney advised the jury that what he was then telling them was 'not evidence' but was 'what I say the witnesses will tell you.' During the course of the opening statement counsel for the State undertook to relate to the jury Mr. Dean's 'last words.' Counsel for the appellant objected, and at a 'bench conference' advised the court that what the State's Attorney was about to relate was inadmissible-a hearsay statement. Following a denial of a motion for mistrial predicated upon a ruling by the court that he would permit the prosecutor to continue his opening statement, and that if what had been proffered in opening statement-by either counsel-was not proved, the jury would be instructed not to consider such evidence, Judge Sklar then instructed the jury as follows:

'Ladies and gentlemen of the jury, as you known there has been an interruption of Mr. Libowitz' opening statement to you. What I want to tell you is anything that is said to you in opening statements by counsel, by lawyers, is not evidence in the case. And, likewise, anything that is said to you by counsel, whether or not for the State or for the defense in closing argument, is not evidence in the case. Closing argument is exactly what the word implies; merely argument to persuade you to think in the posture of whoever is talking to you based on the testimony in the case. . . . The only evidence that you hear comes from the witnesses in the case who testify or through exhibits that are filed in the case as exhibits.' (Emphasis supplied.)

The opening statements of both counsel were then concluded without any additional objection.

At the outset of his closing argument before the jury the assistant prosecutor stated:

'As veteran jurors, you will have to decide the issues in the case.

I noticed you have paid very close attention to all the witnesses in the case and I appreciate your paying this much attention. Because, what is said from the witness stand and the various exhibits introduced in the case is all that you will use to determine your verdict. You as jurors are triers of the law and the facts.' (Emphasis supplied.)

After summarizing the testimony of the various witnesses, midway in his closing argument the prosecutor told the jury:

'What I am telling you now is not evidence. What the defense attorney tells you is not evidence. The only evidence for you to consider is what the witnesses stated on the witness stand plus the exhibits. . . .' (Emphasis supplied.)

And at the end of his closing argument the prosecutor stated the following:

'Common sense, that is your greatest asset. Use it. Weigh all of the evidence and determine what happened.

Last year some three hundred thirty people were murdered in Baltimore City. This is one of those murders from last year; Charles Dean. Maybe you didn't read about it in the newspapers last year. I don't know how many people were robbed in the City with weapons. I don't how (sic) how many, but, a lot. Some of the victims in those robberies were murdered. There are many people like Mr. Charles Dean who are defenseless in the face of four healthy young men. Defenseless, like Papa. You saw him on the stand. He couldn't defend himself. These are the victims-the most common victims of the young toughs because they can't fight back. They are the people that are robbed.

Some of the people who commit these crimes get away with them because of the type of people they attack. I am sure there is nothing in the world right now that Mr. Kevin Cook would like more than to go scott free and get away with what he did on August 27, 1972. That is what he planned all along when he told his friend, don't use his name.

Ladies and gentlemen, you as jurors cannot let Kevin Cook get away scott free. That is why the State is going to ask you to bring back a verdict of guilty.' (Emphasis supplied.)

Following that statement counsel for the appellant, again at a bench conference, moved for a mistrial on the basis that the State's Attorney had 'made prejudicial statements' particularly in reference to the number of murders committed in Baltimore and concerning the number of people who had been robbed. The trial court denied the motion. ³ Defense counsel then made reference to the fact that one Leonard Anderson (a co-defendant) had not testified-'Chose not to testify for whatever reason he chose not to' and requested the jury to draw an inference from that fact, and upon objection, the trial court stated that he did not think it was proper to comment about (the) refusal (of a co-defendant) to testify. Similarly, the trial court sustained the objection to the attempt by defense counsel-in closing argument-to read to the jury the names of the witnesses listed by the State in the answer to the motion for discovery, ⁴ and again to an effort on the part of defense counsel to relate to the jury what his client 'tells me.'

We granted certiorari in Cook limited to the question: whether the closing argument of the Assistant State's Attorney was beyond the scope of permissible comment.

In the trial of criminal prosecutions, although opening statements in a jury trial cannot be equated with closing arguments made to the jury, there is sufficient similarity of the issues involved in both to permit generally the application of common principles. ⁵ Since the common thread both in Wilhelm and in Cook is the alleged prejudicial statements by the prosecutor, we have consolidated both cases for discussion and ruling.

The primary purpose or office of an opening statement in a criminal prosecution is to apprise with reasonable succinctness the trier of facts of the questions involved and what the State or the defense expects to prove so as to prepare the trier of facts for the evidence to be adduced. While the prosecutor should be allowed a reasonable latitude in his opening statement he should be confined to statements based on facts that can be proved and his opening statement should not include reference to facts which are plainly inadmissible and...