Simpson v. State , 442 Md. 446 ( 2015 )

William Siam Simpson, III v. State of Maryland, No. 22, September Term, 2014
FIFTH AMENDMENT — ARTICLE 22 OF THE MARYLAND DECLARATION
OF RIGHTS — OPENING STATEMENTS — Petitioner’s right against compelled self-
incrimination, safeguarded by the Fifth Amendment, Article 22 of the Maryland
Declaration of Rights, and Section 9-107 of the Courts and Judicial Proceedings Article,
was violated when the prosecutor, during the State’s opening statement, said “the defendant
will tell you” when referring to the defendant’s written confession to the police. The
remarks were susceptible of the inference by the jury that they were to consider the silence
of the defendant as an indication of guilt, and the error created by those remarks was not
harmless.
Circuit Court for Prince George’s County
Case No. CT10-0832X
Argued: November 7, 2014
IN THE COURT OF APPEALS
OF MARYLAND
No. 22
September Term, 2014
WILLIAM SIAM SIMPSON, III
v.
STATE OF MARYLAND
Barbera, C.J.,
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
Opinion by Barbera, C.J.
Filed: April 7, 2015
It is well understood that the federal and Maryland constitutions prohibit the
prosecutor in a criminal case from making an adverse comment upon the defendant’s
failure to testify. Griffin v. California, 380 U.S. 609 (1965) (holding that the prosecutor’s
comment during closing argument concerning the defendant’s failure to testify violated the
Self-Incrimination Clause of the Fifth Amendment); Smith v. State, 367 Md. 348, 358
(2001) (holding that the prosecutor’s comment during closing argument violated Article
22 of the Maryland Declaration of Rights); see also Md. Code (2013 Repl. Vol.) § 9-107
of the Courts and Judicial Proceedings Article.1 The question we answer in the present
case is whether the remarks the prosecutor made—not during closing argument, but rather
in opening statement—ran afoul of that prohibition. We hold that, under the facts of this
case, the answer is yes, thereby entitling Petitioner, William Siam Simpson, III, to a new
trial.
I.
Petitioner was charged in a multi-count indictment with crimes in connection with
three incidents that occurred at the house where Petitioner’s former girlfriend, Jasmine
Byers, and her family resided. All three incidents occurred at night. The first incident
involved the intentional burning of the detached garage on the property; the second
involved the intentional burning of the roof of the house; and the third involved an attempt
to set fire to an automobile parked on the driveway. Mrs. Byers witnessed part of the third
1
That section reads: “A person may not be compelled to testify in violation of his
privilege against self-incrimination. The failure of a defendant to testify in a criminal
proceeding on this basis does not create any presumption against him.”
episode and began screaming at the culprit, who then fled the scene. The family contacted
the police. Upon arrival, the police reviewed with members of the family a video-recording
of the incident, which had been captured by a surveillance camera the Byers had installed
after the previous fires. The family informed the police that they recognized the masked
individual, by reference to his walk, body frame, and posture, to be Jasmine’s former
boyfriend, Petitioner.
The police went to Petitioner’s home, where Joy, an accelerant-detecting dog,
scanned the outside of a car parked there. Joy alerted to the presence of an accelerant on
the driver’s side door handle and the trunk. The police then went to the house and, upon
knocking, were allowed by Petitioner to enter. The police smelled gasoline as they entered
the house, and one of the officers placed Petitioner under arrest. Petitioner consented to a
search of the interior of the car and the house. Joy detected additional accelerant inside the
trunk and passenger area of the car. During the search of the house, the police seized from
Petitioner’s bedroom a pair of tennis shoes. Subsequent testing of the shoes disclosed the
presence of gasoline.
Petitioner was transported to the police station, where he was advised of and waived
his Miranda rights.2 Left alone with pen and paper, Petitioner wrote, without assistance or
involvement of the police, the following statement:
I William Siam Simpson III burned the garage down of the byers house. I set
the fire inside the garage. I ran away and let the fire burned. I just poured
gasoline all over the garage and let it burn. The second attempt was the roof
that I set on fire. I just climbed up the tree pour gasoline and just left. Let
2
See Miranda v. Arizona, 384 U.S. 436 (1966).
2
the house burned. My third attempt was tonight. I wore a mask, gloves,
leather jacket, poured gasoline all over the nissan altima and tried to burn it.
I’m crazy and I need help. I have anger management issues I cannot control
myself. Put me in the chair for lethal injection. I’m ashamed of what I
become I failed my family, friends, and myself. God help me!
Petitioner signed the statement confirming that it was “true and correct to the best of my
knowledge.”
Thereafter, a detective conducted an interview, took notes of his questions and
Petitioner’s responses, and then had Petitioner review and sign each response at the end of
the interview to verify that the written version was fair and accurate. As we shall see, the
State introduced into evidence both Petitioner’s handwritten confession and the confession
produced during the detective’s interview of Petitioner.
Petitioner was charged in a ten-count indictment and tried in the Circuit Court for
Prince George’s County. The first trial resulted in an acquittal of one of those counts and
a mistrial on the remaining nine counts.
On retrial of the remaining counts, the prosecutor included the following in her
opening statement to the jury:
On November the 15th, 2009, the Defendant came onto the Byers’
property, came to their home, and set their detached garage on fire. It burned
down to the ground, along with all of their personal and sentimental property
inside.
And on April the 4th, 2010, the Defendant came back to the Byers’
home and set the roof of their home on fire. There were four family members
home at the time. They woke up in the middle of the night, or in the early
morning hours, to a smoke-filled house and flames.
On May the 16th, 2010, yet again, the Defendant returned back to the
Byers’ home, and while on video surveillance poured gasoline on Mrs.
Byers’ car and attempted to set it on fire.
Ladies and gentlemen, I’m going to tell you up front that this is not a
who-done-it case, . . . and this is not [a] trial where the facts of how the crime
3
was committed [are] missing, and this is not a case where motive is a
mystery.
Ladies and gentlemen . . . , the Defendant himself will tell you,
number one, that he burned down that garage –
(emphasis added).
Defense counsel objected, and the court overruled the objection, without comment.
The State continued:
—he committed those crimes of arson. And further, he’ll tell you why
he did it.
But even with the Defendant’s own words, the State—I will bring
members of the Prince George’s County’s Fire Marshal’s office, and
members of the Prince George’s County Police Department, here to testify
before you.
And they’re going to sit right there in that jury box and they’re going
to corroborate everything that the Defendant has said . . . .
***
[A]t the end of this trial I’m going to ask you to listen to what the
Defendant has said, to listen to how his words are corroborated . . . .
(Emphasis added). Before making his opening statement, defense counsel informed the
court that he intended to make an “additional motion” either before or after opening
statement. The court asked counsel to proceed directly to opening statement. As he did,
defense counsel stated, in relevant part:
Based on the State’s opening statement some of you may be
wondering why are we even here.
Based on her suggestion that my client is going to state—to stand up
in front of you and admit to all of the offenses, you’re saying, wait a minute,
that doesn’t make sense, something doesn’t make sense here; if he’s guilty,
why don’t, you know, you say he’s guilty and let us all go about our business.
Well, there’s something that was not entirely clear from the State’s
opening statement, because what she’s referring to is a so-called confession
that my client gave.
But if you’ve listened to that presentation where she said it’s not a
who-done-it case, we know he did it, he admitted everything; then forget it,
forget about asking any questions, forget about your oath to listen to the
4
evidence before you render a decision—because then something’s gone
terribly wrong, because my client, William Siam Simpson, III, sits here
before you with the presumption of innocence, and it is the State’s job to
prove beyond a reasonable doubt that he’s guilty.
***
Let’s talk about this so-called confession which the State—and I
believe they even used the word. They acted like he’s going to come up here
and testify in front of you, as if he did all of these things.
My client, on May 16th of 2010, signed a statement, and that’s what
[the prosecutor] was referring to. The statement referred to the three
incidents.
Following the parties’ opening statements, the court dismissed the jury for lunch.
At that time, defense counsel moved for a mistrial, arguing that, although he understood
that the prosecutor was referring to his client’s written statement, the prosecutor only spoke
of what the Petitioner had said or would say, and the prosecutor “can’t refer to a client’s
testimony or non-testimony. That’s a Fifth Amendment right. He has a right not to testify.”
The judge denied the motion for a mistrial, noting only that Petitioner’s confession is
admissible as “evidence as to what his words are.”3
3
At a post-trial hearing on his motion for new trial, Petitioner renewed his challenge
to the prosecutor’s opening statement. The prosecutor maintained that she had been
holding Petitioner’s written confession in her hand during her opening statement, thereby
suggesting to the jury, not that Petitioner would be testifying and admitting his guilt, but
rather, that he had made a written confession to the police. The prosecutor, however, did
not attempt to assert, and the record does not reflect, that she had made clear to the jury
that she was holding the written confession. Defense counsel responded that he did not
recall the prosecutor holding anything in her hand during opening statement, and,
significantly, the court denied the motion without commenting, one way or the other, about
the prosecutor’s reference to having held the written confession during her opening
statement.
As we shall see, the State assumes in its argument before us that the prosecutor, in
fact, had the written confession in hand while delivering her opening statement. Given that
the record on this point is far from clear, we cannot accept, as fact, the assumption the State
asks us to make.
5
During its case-in-chief, the State offered into evidence the written confession
Petitioner had made to the police as well as the detective’s written interview with
Petitioner. Petitioner elected not to testify in the defense case. At the close of all the
evidence, the court, at defense counsel’s request, included among numerous other jury
instructions the following: “The Defendant has an absolute Constitutional right not to
testify. The fact that the Defendant did not testify must not be held against the Defendant.
It must not be considered by you in any way or even discussed by you.”
During his closing argument, defense counsel again discussed the prosecutor’s
opening statement. He said in part: “She said my client would testify. She said it at least
three times. And I objected. But she was permitted to make that statement. But the fact
is, he didn’t testify . . . . He made a statement to the police. But that’s not testifying.” The
jurors found Petitioner guilty of only one of the nine counts before them—attempted
second degree arson of the automobile.
On appeal to the Court of Special Appeals, Petitioner raised, among others, the
claim that the prosecutor’s opening statement violated his privilege against self-
incrimination guaranteed by the Fifth Amendment, Article 22 of the Maryland Declaration
of Rights, and § 9-107 of the Courts and Judicial Proceedings Article (hereafter “CJP”).
The Court of Special Appeals concluded that there was no such violation and affirmed the
judgment of conviction. 214 Md. App. 336, 381 (2013). Petitioner sought, and we issued,
a writ of certiorari to review that decision, 436 Md. 501 (2014), and we now reverse. 4
4
Petitioner had also raised in his petition for writ of certiorari a challenge to the
court’s allowing a police officer to testify as a witness for the State about his training,
6
II.
Petitioner asserts that his right to protection from adverse comment on his decision
not to testify at trial, guaranteed by the privilege against self-incrimination set forth in the
Fifth Amendment, Article 22, and CJP § 9-107, was violated when the prosecutor in
opening statement referred several times to what Petitioner “will tell” the jury. Petitioner
maintains that the words suggested that the members of the jury could expect him to take
the stand and admit his guilt. These words, without more, Petitioner asserts, created the
constitutional error. The State counters that the prosecutor’s words did not violate
Petitioner’s right to protection from adverse comment on the right not to testify, and even
if the prosecutor’s words did so, the error was harmless beyond a reasonable doubt.
handling and observations of the accelerant-detecting dog, Joy. Defense counsel objected,
stating that the officer’s testimony was expert testimony and the defense had not been
properly notified pursuant to Md. Rule 4-263(d)(8). The trial court overruled the objection
and allowed the officer to testify about Joy’s alerts.
The Court of Special Appeals held that, although the trial court allowed the officer
to testify as a non-expert, the error was harmless beyond a reasonable doubt. Simpson v.
State, 214 Md. App. 336, 385 (2013). Petitioner therefore also included in his petition a
question challenging that holding of the Court of Special Appeals. The State filed a
conditional cross-petition on that point, arguing that the Court of Special Appeals erred in
concluding, as a preliminary matter, that the officer was required to be qualified as an
expert.
We granted certiorari on both Petitioner’s petition and the State’s conditional cross-
petition. Since then, the State has withdrawn its cross-petition. We therefore no longer
have before us the question of whether the officer was required to be qualified as an expert
and, if so, whether the court’s error in allowing the officer to testify without pre-
qualification as an expert was harmless beyond a reasonable doubt. In light of our holding
on the constitutional issue, which requires a new trial, it is unnecessary for us to decide
whether the court’s error in allowing the officer to testify without pre-qualification as an
expert was harmless beyond a reasonable doubt.
7
The parties disagree about the proper legal standard by which to assess the
challenged remarks of the prosecutor. As we shall see, the disagreement is resolved by
application of the rationale underpinning the holdings of the Supreme Court in Griffin v.
California, 380 U.S. 609 (1965), and this Court in Smith v. State, 367 Md. 348 (2001).
We start with the pertinent language of the Fifth Amendment to the Constitution of
the United States: “No person shall…be compelled in any criminal case to be a witness
against himself[.]” What the Griffin Court referred to as the “Self-Incrimination Clause,”
380 U.S. at 611, was made applicable to the states in 1964. Malloy v. Hogan, 378 U.S. 1
(1964). The language of the Self-Incrimination Clause of the Fifth Amendment is nearly
identical to that of Article 22 of our Declaration of Rights: “That no man ought to be
compelled to give evidence against himself in a criminal case.”
The Court decided Griffin less than one year after Malloy. The issue before the
Court in Griffin was whether the prosecutor’s comments in closing argument and the trial
court’s jury instructions on the defendant’s failure to testify violated the Self-Incrimination
Clause of the Fifth Amendment. 380 U.S. at 613. Griffin had been charged with first
degree murder of a woman named Essie Mae and did not testify at the trial for murder. Id.
at 609. The prosecutor commented several times on Griffin’s failure to testify, including
stating during his closing, “Essie Mae is dead, she can’t tell you her side of the story. The
defendant won’t.” Id. at 610–611. The trial court, following California statutory law,
instructed the jury that the defendant had a constitutional right not to testify, yet,
[a]s to any evidence or facts against him which the defendant can reasonably
be expected to deny or explain because of facts within his knowledge, if he
does not testify or if, though he does testify, he fails to deny or explain such
8
evidence, the jury may take that failure into consideration as tending to
indicate the truth of such evidence and as indicating that among the
inferences that may be reasonably drawn therefrom those unfavorable to the
defendant are the more probable.
Id. at 610. The Supreme Court held that the Self-Incrimination Clause forbids both the
comment by the prosecution on the accused’s silence and the instructions by the court that
such silence is evidence of guilt. Id. at 615.
This Court has had several opportunities to address the application of the Fifth
Amendment, Article 22 of the Maryland Declaration of Rights, and CJP § 9-107 in the
context of closing arguments. Insofar as our research discloses, the first opportunity was
presented in Smith v. State, 169 Md. 474 (1936) (hereinafter Smith I). That case involved
a trial on a charge of bastardy. Id. at 475. During closing arguments, the prosecutor pointed
to the accused and said: “This prosecuting witness has testified that this defendant is the
father of her child, and this defendant has sat here all during the trial and has not denied
his fatherhood.” Id. at 476. Understandably, given that Smith I predated by nearly three
decades the Supreme Court’s decision in Malloy v. Hogan, we relied solely on Article 22
in holding that the prosecutor’s remark violated that provision of our state constitution
because “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.” Id.
We further concluded, however, that the trial court’s error in permitting the
prosecutor’s statement was harmless. Id. at 477. We pointed out that the defense had
promptly objected to the prosecutor’s statement; immediately thereafter, the judge
9
instructed the jury that a defendant has the right not to testify; and the jury was prohibited
from indulging an adverse presumption from either the defendant’s election not to testify
or the prosecutor’s comments. Id. The judge also instructed the prosecutor that he should
not comment further on that matter. Id. We held that the prosecutor’s “error was followed
so closely by its adequate correction at the hands of the court that the minds of the jurors
could not have been prejudiced against the accused by the remark.” Id.
We do not undertake here to revisit the harmless error analysis employed in Smith
I. It nevertheless bears noting that Smith I was decided when errors occurring at criminal
trials were subject to the same “no prejudice” standard as was applied in civil cases. Dorsey
v. State, 276 Md. 638, 643 (1976). Since then, we have rejected the no prejudice test used
in Smith I and formally adopted the standard announced by the Supreme Court in Chapman
v. California, 386 U.S. 18 (1967). See Dorsey, 276 Md. at 658-59. Under the Dorsey
standard, an error will be deemed harmless only if “a reviewing court, upon its own
independent review of the record, is able to declare a belief, beyond a reasonable doubt,
that the error in no way influenced the verdict . . . .” Id. at 659.
Far more recently, we decided Smith v. State, 367 Md. 348 (2001) (hereinafter Smith
II). As in Smith I, the case involved the prosecutor’s comment, in closing argument, about
the defendant’s failure to testify. Id. at 354. The defendant in Smith II was on trial for
burglary, conspiracy to obstruct justice, malicious destruction of property, and four counts
of theft. Id. at 352. In his closing, the prosecutor argued:
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
10
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 [stolen] goods? Zero, none.
Id. (emphasis in original). Over defense counsel’s objection, the judge found that the
prosecutor’s statements were admissible as comments on the evidence. Id. On appeal to
this Court, the defendant argued that the statements directly referred to his right not to
testify and were not harmless error. Id. at 353.
We quoted with approval the test employed in Smith I: whether the prosecutor’s
remarks were “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.” Id. at 354 (quoting Smith I, 169 Md. at 476). We adopted the “susceptible of
the adverse inference” test of Smith I, making clear, though, that “only those statements
[by the prosecutor] that are reasonably or fairly susceptible of the inference by the jury are
contemplated by the Smith [I] test.” Id. at 356 n.6. Applying that test to the facts before
us, we concluded that the prosecutor’s remarks were directed at the defendant’s
constitutional right to remain silent, not the defense’s failure to put on evidence. Id. at 359.
We then looked to determine whether admission of the impermissible remarks was
harmless error. Id. at 360. We recognized that, “[w]hile not every impermissible comment
by the prosecutor constitutes reversible error, the State bears the burden of proving that an
error is harmless. The State must prove beyond a reasonable doubt that the contested error
did not contribute to the verdict.” Id. (citing Dorsey, 276 Md. at 659).5 Concluding that
5
The State in its brief, under the heading “Standard of Review” directs us to the
following language from Wilhelm v. State, 272 Md. 404, 412 (1974): “[T]he prosecutor
11
the prosecutor impermissibly commented on the appellant’s failure to testify, we held that
the State was unable to carry its burden to establish beyond a reasonable doubt that the
comment did not contribute to the guilty verdict. Id. at 361. We therefore reversed the
conviction and remanded the case for a new trial. Id.
We see no reason to depart from the test employed in Smith II in determining
whether the prosecutor’s comments during opening statement concerning what Petitioner
“will tell” the jury impinged upon his right to protection from adverse comment on his
constitutional right not to testify. With the necessary adjustments of the Smith test to the
context of opening statement, the test becomes whether the prosecutor’s remarks in
opening statement were reasonably susceptible of an adverse inference by members of the
jury that the defendant’s failure to testify would be indicative of the defendant’s guilt.
III.
In this case, the prosecutor used the phrase “the defendant will tell you” several
times during her opening statement. The State proposes that the intention of the
should be allowed reasonable latitude in his opening statement” and “[t]o secure a reversal
based on an opening statement the accused is usually required to establish . . . [a] substantial
prejudice resulting therefrom.” To the extent the State is suggesting that this quoted
language bears on the standard by which we assess whether the prosecutor’s opening
statement runs afoul of the protection against adverse comment on the defendant’s failure
to testify, we reject the suggestion. The language in Wilhelm indicating that reversal is
warranted only if the accused “[has] establish[ed] . . . [a] substantial prejudice resulting
therefrom[,]” id., harkens to the test of harmless error that, since Dorsey, no longer applies
in criminal cases.
We have no quarrel, moreover, with the proposition that the prosecutor has
“reasonable latitude in its opening statement, but he should be confined to statements based
on facts that can be proved.” Wilhelm, 272 Md. at 412. Yet, as this case demonstrates, the
prosecutor does not have latitude to suggest, intentionally or unintentionally, that the jury
consider the defendant’s decision not to testify.
12
prosecutor’s words was not that they allude to what Petitioner would be testifying, but
rather, to what he wrote in his confession. For purposes of this discussion, we shall accept
this proposal. The State also wants us to accept that the prosecutor had in her hand, at the
time she was making her opening statement, a copy of Petitioner’s written confession. We
shall accept that much, for purposes of our discussion, notwithstanding that the record is
not at all clear on this point. See supra note 3. The State does not ask us to accept, and we
will not assume, that the jury reasonably could have discerned that the document the
prosecutor had in her hand was Petitioner’s confession.6
Even granting to the State what it does ask us to accept, neither point bears on what
is the only relevant question to be answered: whether the prosecutor’s remarks were
reasonably susceptible of the inference that Petitioner’s failure to testify would be
indicative of his guilt. Put simply, it was not what the prosecutor intended her words to
mean,7 or what she may have held in her hand at the time she uttered those words, that
determines what the jury reasonably could have inferred from those words. We answer the
6
We therefore are not addressing here a situation in which it is clear from the record
that the jury would have understood that references in a prosecutor’s opening statement to
“the defendant’s own words” and what they “will tell” the jury were unmistakably
references to a prior written confession that would be introduced into evidence.
7
This assertion reminds us of the following colloquy among Alice, the (“Mad”)
Hatter, and the March Hare:
“Then you should say what you mean,” the March Hare went on. “I
do,” Alice hastily replied; “at least--at least I mean what I say—that’s the
same thing, you know.” “Not the same thing a bit!” said the Hatter. “You
might just as well say that ‘I see what I eat’ is the same thing as ‘I eat what
I see’!”
Lewis Carroll, Alice in Wonderland Ch. 7 (The Millennium Fulcrum Ed., 2.7a. 2001).
13
relevant question by applying the Smith II “reasonably susceptible to adverse inference”
test to the words the prosecutor employed in describing to the members of the jury what
“Petitioner himself will tell [them],” in order to ascertain whether those words ran afoul of
the Fifth Amendment, Article 22, and CJP § 9-107.
The Court of Special Appeals hinged its conclusion that there was no such violation
in part on the prosecutor’s single use of the present perfect tense—what “[Petitioner] has
said” during her opening statement. The intermediate appellate court reasoned that this
choice of words demonstrates that the prosecutor was referring to Petitioner’s written
confession, which was admitted into evidence during the prosecutor’s case-in-chief. The
Court of Special Appeals also relied on the prosecutor’s reference to corroborating
evidence that would be presented by other witnesses.
The analysis we employ in Maryland, which we aptly described in Smith II as
“highly protective of a defendant’s ability to exercise his Fifth Amendment right to remain
silent[,]” 367 Md. at 355-56, does not require the dissection that our colleagues on the
Court of Special Appeals undertook in examining the prosecutor’s remarks in her opening
statement. We cannot reasonably expect or assume that the jury, presumably unfamiliar
with the nuances of the law, evidentiary rules, and trial procedures, naturally would have
inferred from the prosecutor’s words that she must be referring to what the evidence will
show that Petitioner had said, before trial, in one context or another. If anything, it is as
or more likely that the prosecutor’s remarks in opening statement—that “the defendant
himself will tell you” and “he’ll tell you why he did it”—regardless of what the prosecutor
intended them to mean—were reasonably susceptible of the inference by the jury that
14
Petitioner had an obligation to testify and, if he did not, the jury should view that as
evidence of his guilt. Injection of that inference into the case impinged upon Petitioner’s
right not to testify, thereby violating the Self-Incrimination Clause of the Fifth
Amendment, Article 22, and CJP § 9-107.
In a case remarkably similar to this one, the Supreme Judicial Court of Maine came
to the same conclusion. See State v. Turner, 433 A.2d 397, 400 (Me. 1981). In that case,
the defendant had given a detailed statement to the police, which the prosecutor referred to
in opening statement as what the defendant “will say” and “will testify.” Id. The defendant
elected not to testify. Id. On appeal, the Maine supreme court rejected the State’s
contention that the prosecutor merely had used the wrong verb tense and held that “any
adverse comment, whether clear or ambiguous, on the defendant’s failure to testify violates
the defendant’s right to remain silent and requires” a new trial. Id. See also Clark v. State,
509 S.W.2d 812, 813, 815 (Ark. 1974) (holding that the prosecutor’s remark in opening
statement in the murder trial that the story “will come from [the defendant]” violated the
defendant’s right not to testify, as “we certainly cannot say with confidence that the remark
of the prosecutor did not to some extent compel the defendant to testify in her own behalf”).
In sum, the prosecutor’s error in the opening statement entitles Petitioner to vacation
of the judgment of conviction and a new trial, absent our finding the error to be harmless
beyond a reasonable doubt. We turn to that inquiry next.
IV.
The State maintains that, if the prosecutor’s opening statement were an
impermissible comment on the defendant’s right not to testify, which we conclude it was,
15
then the error was harmless. The State shoulders the heavy burden of establishing, beyond
a reasonable doubt, that the contested error did not contribute to the verdict. Dorsey, 276
Md. at 659.
The State makes three points to support why, in its view, the prosecutor’s
impermissible comment was, in the end, harmless: the error was cured by the defense’s
opening statement and closing argument as well as the judge’s instructions that the jury
was not to draw an adverse inference from the fact that Petitioner did not testify; the error
would have had an adverse impact on the State’s—not Petitioner’s—case; and the evidence
to convict Petitioner was overwhelming. We are not persuaded.
Whether viewed separately or together, defense counsel’s opening statement and
closing argument did not render harmless the prosecutor’s impermissible comment in the
opening, but rather, rightly should be viewed as the defense counsel’s reasonable effort to
blunt the force of the unconstitutional blow inflicted during the prosecutor’s opening
statement. Neither did the court’s instruction to the jury, given three days later and in the
midst of what amounted to seventeen transcript pages of jury instructions, “cure” the error
created by the State’s opening. We likewise do not find persuasive—or relevant to the
analysis required by the Dorsey standard—the State’s argument that any harm generated
by the prosecutor’s remarks was prejudicial to the State, rather than the defense, because
the State’s de facto “promise” in opening statement that Petitioner would testify went
unfulfilled when Petitioner did not to testify.
We also reject the State’s argument that the evidence of Petitioner’s guilt of the one
count of attempted second degree arson was so overwhelming as to render harmless the
16
error in the State’s opening statement. The jury’s failure to find Petitioner guilty on eight
of the remaining nine counts sheds light on the amount of weight, if any at all, the jury
gave to Petitioner’s written confession. In addition, the testimony of the State’s witnesses,
including in particular that of the Byers family, was subjected to extensive and vigorous
cross-examination and, by our read of it, was likely to have suffered more than a few hits.
In the end, our review of the State’s evidence fails to persuade us, beyond a reasonable
doubt, that the jury’s verdict was “in no way influenced,” Dorsey, 276 Md. at 658-59, by
the prosecutor’s adverse comment on Petitioner’s failure to testify.
V.
The prosecutor “may strike hard blows, [but] he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one.” Berger v. United
States, 295 U.S. 78, 88 (1935). In this case, the prosecutor—whether intentionally or not
—struck a foul blow by her remarks suggesting the Petitioner would “himself tell the jury”
about his involvement in the charged crimes. Those remarks forced upon Petitioner a
Hobson’s choice8—either testify and subject himself to all the adverse consequences that
might hold, or invoke his constitutional right to remain silent and risk that the jury would
punish him for the prosecutor’s error by inferring guilt from his failure to testify. The error
8
“Hobson’s choice” refers to the paradox of an apparently free choice when in
reality there is no alternative. The phrase originated from the practice of Thomas Hobson,
circa 1630s, an English liveryman, to require every customer who wanted to buy a horse
to take the horse nearest the door. The New Lexicon Webster’s Encyclopedic Dictionary
of the English Language 460 (Bernard S. Cayne ed., Lexicon Publications, Inc., 1990)
(1972).
17
that occurred in this case strikes at the core of the right that the Self -Incrimination Clause
of the Fifth Amendment, Article 22 of our Declaration of Rights, and CJP § 9-107 were
designed to protect. The error, which was not harmless, entitles Petitioner to a new trial.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED. CASE
REMANDED TO THAT COURT WITH
DIRECTIONS TO VACATE THE
JUDGMENT OF THE CIRCUIT COURT
FOR PRINCE GEORGE’S COUNTY AND
TO REMAND THE CASE TO THAT
COURT FOR A NEW TRIAL. COSTS IN
THIS COURT AND THE COURT OF
SPECIAL APPEALS TO BE PAID BY
RESPONDENT.
18