Spain v. State

872 A.2d 25

386 Md. 145

Jesse SPAIN, Jr. v. STATE of Maryland.

No. 81, September Term, 2004.

Court of Appeals of Maryland.

April 7, 2005.

Peter F. Rose, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for petitioner.

Steven L. Holcomb, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.

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

HARRELL, J.

I.

On Sunday, 3 February 2002, Officer Cornelius Williams, assigned at the time to the Western District FLEX unit¹ of the Baltimore City Police Department, was walking eastbound in the 1900 block of West Baltimore Street, near its intersection with North Monroe Street, when he saw a group of seven men at the corner. As Officer Williams, who was dressed in plain clothes, walked toward the group, one group member, a man wearing a gray sweat suit with a red stripe and later identified as Jesse Spain, Jr. (referred to as "Spain" or Petitioner subsequently), approached the officer and asked, "What do you want?" Interpreting this remark as an inquiry about the possible sale of illegal narcotics, Officer Williams, trained and experienced in matters involving street level narcotics distribution, responded, "What do you have?" Spain responded, "I've got some pills." Officer Williams interpreted this statement to indicate that Spain was offering for sale heroin in gel cap form.

Spain then tapped the shoulder of another man in the group (later identified as Petitioner's father, Jesse Spain, Sr.), who advised Spain, "I'm going to take [Officer Williams] up the street." As Officer Williams and Spain, Sr. walked northbound on Monroe Street towards the 1900 block of West Fairmount Avenue, Spain, Sr. stated that he had "a kid on a bike, who's got some pills on him." After walking approximately 90 feet further, Spain, Sr. "whistled out." A young man on a bicycle approached them. Officer Williams recognized the young man on the bicycle as Juan Wilson, whom Officer Williams previously had arrested for street level narcotics distribution. Wilson stopped his bicycle in front of Officer Williams and removed from his pocket a clear plastic bag that contained several gel caps filled with what was later stipulated to be heroin powder. Wilson, at this point, recognized Officer Williams and began to ride slowly away.

Officer Williams identified himself as a police officer and arrested Wilson. Meanwhile, Spain, Sr. fled through an alley on West Fairmount Avenue. When a patrol car and wagon responded to the scene of the narcotics transaction, the original group of men on the corner of West Baltimore Street and North Monroe Street dispersed. As Officer Williams was arresting Wilson, he observed Spain walk westbound on West Baltimore Street out of his sight. A few minutes later, as he was riding in a police wagon, Officer Williams arrested Spain, whom he found standing on the front steps of a residence on West Baltimore Street.

By criminal information filed in the Circuit Court for Baltimore City, Spain was charged with various violations relating to his role in the drug transaction on 3 February involving Officer Williams.² At Spain's jury trial, the State's sole witness was Officer Williams,³ who testified as both a fact witness and an expert on the packaging, identification, and distribution of street level narcotics in Baltimore City. The defense consisted of only one witness, Spain's sister, Dawn Spain, who testified that she spoke with Spain earlier on 3 February and he told her that he planned to attend a Super Bowl party later that evening at his grandfather's house, which happened to be near the scene of the narcotics transaction. Spain's defense at trial appeared to hinge on the contentions that Officer Williams was mistaken as to the encounter between himself and Officer Williams and that he was in no way involved in the narcotics transaction that followed.⁴

Against this backdrop, the State's Attorney advocated during closing argument as follows:

[STATE'S ATTORNEY]: The second point I wanted to make to you is that the Officer in this case—the Defense's argument is that Mr. Spain was outside his house. He was going to attend a Superbowl party and was buying beer. Part of what you have to determine is the credibility of the witnesses. The defense put on a witness who testified, and the State put on one witness, the Officer in this case. You have to weigh the credibility of each individual. Who has a motive to tell you the truth. The Officer in this case would have to engage in a lot of lying, in a lot of deception and a conspiracy of his own to come in here and tell you that what happened was not true. He would have to risk everything he has worked for. He would have to perjure himself on the stand.

[DEFENSE COUNSEL]: Objection.

THE COURT: Basis?

[DEFENSE COUNSEL]: Reference to the Officer perjuring himself your Honor. It's as far as credibility.

THE COURT: Okay, well the jury understand[s] that this of course is closing argument, and that they will [consider the statements to be] lawyers' arguments. Overruled.

[STATE'S ATTORNEY]: So basically you have to determine who has the credibility. Who's telling you the truth. Is the Officer coming here and making up a story? What's his incentive to lie and frame Mr. Spain? The reality is that this Officer—they attempted to sell this Officer drugs on the street. They didn't know he was a police officer. He was out there trying to enforce the law. But, you have to understand that Officer Williams has no motive to lie, because he has everything to risk in this case. Because he doesn't have to go out and make up drug arrests. Because he has plenty of legitimate drug arrests. There's absolutely no incentive for him to come in here and tell a story about Mr. Spain. So is Mr. Spain the victim of circumstance? He was just taken up in front of his house, trying to attend a Superbowl party? That's the defense's theory in the case. You will ultimately have to decide who you want to believe.

On 6 March 2003, the jury returned a guilty verdict on all counts.⁵ Spain timely appealed to the Court of Special Appeals, which affirmed his conviction in an unreported opinion. He then petitioned this Court for a writ of certiorari, which we granted, 383 Md. 256, 858 A.2d 1017 (2004), in order to consider the following question:

Did the trial court properly exercise discretion in regulating the scope of closing argument when it allowed the State's Attorney to argue that the police officer in this case had no motive to lie and would risk his career by testifying falsely?

II.

In Degren v. State, 352 Md. 400, 722 A.2d 887 (1999), we outlined the "great leeway" attorneys are afforded in presenting closing arguments to the jury:

The prosecutor is allowed liberal freedom of speech and may make any comment that is warranted by the evidence or inferences reasonably drawn therefrom. In this regard, [g]enerally, ... the prosecuting attorney is as free to comment legitimately and to speak fully, although harshly, on the accused's action and conduct if the evidence supports his comments, as is accused's counsel to comment on the nature of the evidence and the character of witnesses which the [prosecution] produces.

* * *

While arguments of counsel are required to be confined to the issues in the cases on trial, the evidence and fair and reasonable deductions therefrom, and to arguments of opposing counsel, generally speaking, liberal freedom of speech should be allowed. There are no hard-and-fast limitations within which the argument of earnest counsel must be confined—no well-defined bounds beyond which the eloquence of an advocate shall not soar. He may discuss the facts proved or admitted in the pleadings, assess the conduct of the parties, and attack the credibility of witnesses. He may indulge in oratorical conceit or flourish and in illustrations and metaphorical allusions.

Id. at 429-30, 722 A.2d at 901-902 (citations omitted).

Despite this lack of "hard-and-fast limitations" on closing arguments, one technique in closing argument that consistently has garnered our disapproval, as infringing on a defendant's right to a fair trial, is when a prosecutor "vouches" for (or against) the credibility of a witness. See, e.g., Walker v. State, 373 Md. 360, 403-04, 818 A.2d 1078, 1103-04 (2003) (finding improper vouching to have occurred where a prosecutor made assertions, based on personal knowledge, that a witness was lying). Vouching typically occurs when a prosecutor "place[s] the prestige of the government behind a witness through personal assurances of the witness's veracity ... or suggest[s] that information not presented to the jury supports the witness's testimony." U.S. v. Daas, 198 F.3d 1167, 1178 (9th Cir.1999) (citations omitted). The Supreme Court recognizes that prosecutorial vouching presents two primary dangers:

[S]uch comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.

U.S. v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 1048, 84 L.Ed.2d 1 (1985).

In the present case, Spain argues that the prosecutor, during his closing argument, improperly vouched for the credibility of the State's sole witness, Officer Williams, by implying that the officer 1) did not have a motive to testify falsely, and 2) in fact had a motive to testify truthfully because to testify falsely would expose him to the penalties of perjury and lead to adverse consequences to his career as a police officer. Although we agree that the latter of the prosecutor's comments transcended the boundaries of proper...