Francois v. State ( 2023 )

Ronald Junior Francois v. State of Maryland, No. 1254, Sept. Term, 2022. Opinion by
Taylor, J.
EVIDENCE – LAY OPINION TESTIMONY – PRESERVATION –
HARMLESSNESS
The defendant’s challenge to the testimony of an eyewitness regarding his familiarity with
firearms was not preserved when no objection was raised until after the defense had elicited
similar opinions on cross-examination, and made no objection to any prior or subsequent
opinion offered by the witness. Any error was harmless given that none of the opinions
offered by the witness addressed any relevant issue at trial, and that the witness himself
agreed that he could draw no firm conclusions from his observations.
EVIDENCE – PRIOR BAD ACTS – SPECIAL RELEVANCE
The court did not err in determining that text messages regarding the defendant’s recent
gun possession were admissible in a trial for the unlawful possession of a firearm which
was never recovered. The text messages suggesting that the defendant possessed firearms
days before the incident had a special relevance to the question of whether the defendant
possessed a firearm and ammunition on the date in question. Evidence that the accused had
recently possessed a firearm properly corroborated the eyewitness testimony that the
accused possessed a firearm in the incident, and the court did not abuse its discretion in
determining that the probative value of this evidence outweighed the risk of unfair
prejudice.
CLOSING ARGUMENT – FACTS NOT IN EVIDENCE
The prosecutor’s remarks in rebuttal, interpreting a slang term in a text message – “I
suggest to you that means ‘LOL. Yes, I’m up for it’” – did not constitute the presentation
of facts not in evidence, but was proper argument suggesting that the jurors read the text
messages in context to interpret the language used in the message. Even if improper, the
remark did not constitute reversible error.
Circuit Court for Montgomery County
Case No. 138873C
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 1254
September Term, 2022
______________________________________
RONALD JUNIOR FRANCOIS
v.
STATE OF MARYLAND
______________________________________
Graeff,
Reed,
Taylor, Robert K., Jr.
(Specially Assigned),
JJ.
______________________________________
Opinion by Taylor, J.
______________________________________
Filed: November 30, 2023
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic.
2023-12-15
12:47-05:00
Gregory Hilton, Clerk
The Appellant, Ronald Junior Francois, was charged in the Circuit Court for
Montgomery County with first-degree assault (Md. Code, Crim. Law Art. § 3-202);
possession of a regulated firearm after a prior disqualifying conviction (Md. Code, Pub.
Safety Art. § 5-133); and possession of ammunition when disqualified from possessing a
firearm (Md. Code, Pub. Safety Art. § 5-133.1). He was tried before a jury on June 6-9,
2022. The trial court granted the defendant’s Motion for Judgment of Acquittal on the
assault charge. Mr. Francois was convicted of unlawfully possessing a regulated firearm
and ammunition. He was sentenced to ten years of incarceration, suspending all but the
five-year mandatory minimum, with three years’ probation on the firearms count; he was
sentenced to one year of incarceration, concurrent, on the ammunition count. From those
convictions, he noted this timely appeal.
He presents three questions on appeal, which we have rephrased for clarity:
1. Did the trial judge err in allowing expert testimony from a lay witness regarding the
differences between different types of firearms?
2. Did the motions judge improperly allow “prior bad acts” evidence when she
admitted text messages regarding the use and possession of firearms by the
defendant?
3. Did the trial judge err in allowing the prosecutor, in closing argument, to argue that
the term “kill” in a text message was meant to indicate agreement?
For the reasons set forth below, we shall affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The testimony given at trial was that on July 1, 2021, Gilbert Gray was called by his
daughter, Jamia Gray, to intervene in a domestic dispute between Jamia and her husband,
the defendant, Ronald Francois. Ms. Gray accused Mr. Francois of removing boxes of her
belongings from a box truck (packed in anticipation of their family move to Florida) and
leaving the boxes outside of Mr. Gray’s house. Mr. Gray secured the boxes and then drove
to a nearby bank parking lot where he encountered his daughter and Mr. Francois. Upon
his arrival, Ms. Gray told Mr. Gray that Francois had taken her phone. Mr. Gray approached
Mr. Francois and the box truck whereupon, Mr. Gray testified, Mr. Francois opened the
driver’s door of the truck, reached in, and displayed a handgun. Mr. Gray retreated and
called 911, reporting that Mr. Francois had displayed a bronze-colored handgun “like a 9
mm.” Mr. Francois left in the box truck before police arrived.
About 30 minutes later, police spoke to Mr. Francois by telephone. He agreed to
meet them at his parents’ home. He arrived at that home and was arrested. A search of Mr.
Francois’s person incident to that arrest revealed two cell phones. The box truck was found
parked a few blocks away. A subsequent search of the box truck revealed ammunition of
three different calibers (.45, .40, 9mm), and a magazine, but no firearm. A later search of
the cell phones revealed text messages, purportedly to and from Mr. Francois,
communicating with an unknown individual about guns and trips to the gun range.
During his testimony, Mr. Gray stated that he had some familiarity with firearms
and described the gun he saw in Mr. Francois’s hand as a “bronze . . . Like 380.” He was
cross-examined regarding the limited nature of his experience with firearms. On redirect,
he testified as to differences between different types of similar handguns.
Additional facts will be presented as necessary.
2
DISCUSSION
I.
The claim of error regarding “expert testimony” is unpreserved, and any
error was harmless.
The State’s primary witness was Mr. Gilbert Gray, the only person who could testify
that he observed a handgun in Mr. Francois’s hand on July 1, 2021. During his direct
examination, the State played a recording of Mr. Gray’s 911 call, wherein he told the 911
operator that the gun “was like a 9mm.” The prosecutor asked Mr. Gray about his
experience with handguns. When Mr. Gray began to relate a story about something that
happened when he was 12 years old, defense counsel raised a relevance objection. The
prosecutor proffered that the testimony would relate to “when [Mr. Gray] had an
opportunity to see guns before” and that this information would “help[ ] explain for the
jury . . . what kind of weight to give his testimony when he says that the object pointed at
him looks like a handgun.” The court overruled the objection, telling the parties that it
would “wait and see” and strike the testimony if it seemed improper. Without any further
objection, Mr. Gray testified that he was shot when he was 12, and that he had been asked
by police to identify both the shooter and the weapon when a suspect was arrested. The
weapon that he saw in Mr. Francois’s hand, Mr. Gray testified, looked “almost like the
same type of gun” that was used against him when he was 12. Moreover, Mr. Gray testified,
his parents were “into law enforcement” and that the weapon he was shot with was “a .38”
like the one his mother used to carry, and that his father, a police officer, “carried a 9
3
millimeter.” He told the jury that the weapon Mr. Francois displayed was smaller than the
ones he saw his parents carry.
During cross-examination, defense counsel asked Mr. Gray about having previously
described the weapon as being perhaps “a 30” or some other caliber. He elicited testimony
from Mr. Gray regarding the extent of his familiarity with firearms in general and 9mm
firearms in particular, including the fact that Mr. Gray’s daughter carried a weapon as part
of her job as a police officer, and that he himself had not owned a firearm prior to this
incident. The defense also challenged Mr. Gray regarding the length of time that he could
have seen any weapon being displayed. There were no objections from the State to these
aspects of the cross-examination.
On redirect, the State returned to the topic of Mr. Gray’s familiarity with handguns.
The following exchange is significant:
[STATE]: Okay, and there was some cross-examination about a 9 millimeter
versus a 30. Can you explain to the jury the difference between those
two types of guns?
[GRAY]: The difference between them is just one is just bigger than the other
one, but they take the same bullets.
[STATE]: Okay, bigger in what way?
[GRAY]: Bigger in size, as far as size.
[STATE]: Okay, and how much difference is there between the size of the 9
millimeter and –
[DEF]: Objection. Mr. Gray is not qualified to talk about that.
[COURT]: Overruled.
[DEF]: He’s thinking he was shot once when he was 12.
4
[COURT]: Overruled. Overruled.
[STATE]: When you say one is bigger than the other, how much bigger are we
talking about?
[GRAY]: I mean, that’s more like a pocketsize gun versus one, putting one on
the side of your hip.
[STATE]: Okay
[GRAY]: It’s a small gun.
[STATE]: And when you were saying it could have been a 9 millimeter or a 30
millimeter [sic], you had some question about the exact type of
handgun, is that correct?
[GRAY]: Correct. I didn’t mean to say 30. It was more like a 380 or something
like that. Not saying like a 30.
[STATE]: A 380.
[GRAY]: Yeah.
[STATE]: And the difference between a 9 millimeter and a 380?
[GRAY]: One is bigger than the other. It’s more, a Glock would be, that’s like
in the family, it’s like a family of the size guns, different sizes. And
that’s the biggest of all the guns, all the 9 millimeters.
[STATE]: And then you had some question about the exact type of handgun you
saw. Did you have any question that what was pointed at you looked
like a handgun?
[GRAY]: No, I didn’t have no question. I know what I saw.
On appeal, Mr. Francois complains that this was improper expert testimony and that
its admission constitutes the basis for reversing his conviction. The State counters that his
claim was not properly preserved below, that the testimony was permissible “lay opinion,”
and that any error was harmless.
5
A.
Any error is unpreserved.
The defendant’s current appellate complaint is unpreserved. At oral argument,
counsel for Mr. Francois made it clear that he was challenging only the statement made on
redirect, over objection, regarding distinguishing gun caliber based on the size of the
weapon. However, this objection was not made until after (a) the prosecution had elicited
some testimony about the witness’s prior experience with handguns; (b) the defense had
elicited more testimony regarding the witness’s ability to distinguish between handguns of
different caliber; and (c) the prosecution had elicited yet more testimony about the size
differences between 9mm and .30 caliber handguns. After that objection was overruled, the
prosecution brought out even more testimony about the differences between different types
of firearms, without any further objection from the defense.
“An objection to the admission of evidence shall be made at the time the evidence
is offered or as soon thereafter as the grounds for objection become apparent. Otherwise,
the objection is waived.” Md. Rule 4-323. Moreover, if the same or similar evidence is
admitted without objection at another point in the trial, the objection is waived. DeLeon v.
State, 407 Md. 16, 32-33 (2008).
In this case, a single objection to Mr. Gray’s qualifications was insufficient to
preserve an objection to expert testimony, when the same or similar testimony was elicited
6
without objection both before and after the one objected-to question. 1 Here,
notwithstanding an earlier objection to the relevance of an anecdote from Mr. Gray’s
childhood, the defense not only failed to object to Mr. Gray’s “expert” opinions on direct,
but in fact went somewhat further than the prosecution had gone in delving into Mr. Gray’s
expertise, vel non, during cross-examination. Then, when the prosecutor explored that area
of testimony during redirect, the defense did not object to the first two questions about
relative firearm sizes. The defense objected to the third such question, but did not object to
the next two.
Having failed to object to the initial opinion testimony, and then having elicited
additional opinion testimony on cross-examination, and then having failed to object to all
but one of the subsequent opinion testimony questions on redirect, the defense has forfeited
its right to complain of the evidence on appeal. No further appellate review is warranted.
Even if preserved, however, we would conclude that any error was harmless.
B.
Any error was harmless.
The State also argues that any error was harmless. An error is harmless if the Court
is satisfied beyond a reasonable doubt that the error had no effect on the outcome. The
burden of establishing this is on the State. State v. Jordan, 480 Md. 490, 506 (2022).
1
The Court will assume, without deciding, that “Mr. Gray is not qualified to talk
about that” is sufficient to alert the trial court that the defense was objecting to the
introduction of lay opinion testimony.
7
Mr. Gray was the State’s primary witness. Unless the jury found him to be a credible
witness, the prosecution could not prove his case. Mr. Francois argues on appeal that the
largely irrelevant discussion of firearms expertise may have served to improperly bolster
Mr. Gray’s credibility.
Mr. Gray’s ability to distinguish a .38 from a 9mm is of no relevance in this case.
The State made it clear that it was presenting this testimony only to show that Mr. Gray
was capable of recognizing a handgun when he saw one. One need not be an expert to
know what a handgun looks like. Moreover, Mr. Gray seemed to be opining that the
handgun he allegedly saw in Mr. Francois’s possession was smaller than a 9mm and may
have been a .38 or a .380. The ammunition recovered in the car was for a 9mm and for a
.45. Therefore, no juror would have relied on Mr. Gray’s handgun testimony to find that
Mr. Francois possessed the ammunition found in the vehicle. The conclusion of that portion
of the redirect examination was clear: regardless of his uncertainty about the specific
caliber of the weapon, he had no question that what he saw was a handgun.
Even limiting consideration to the one question that was subject to an objection on
the basis of expert qualifications, the Court is satisfied beyond a reasonable doubt that the
response to that question had no effect whatsoever on the outcome of this trial. Gross v.
State, 481 Md. 233, 271 (2022). The gradual and subtle progression of Mr. Gray’s
testimony regarding the gun – as noted above, partially elicited by the defense during cross-
examination, and not objected to before or after the single instance highlighted – had
nothing to do with whether Mr. Francois displayed a firearm on the day in question. It was
in no way incumbent upon the prosecution to prove the caliber of the weapon. The State
8
had to show only that the weapon was a regulated firearm – here, a handgun. Whether or
not Mr. Gray could tell, at a glance, what caliber the firearm was, is irrelevant. And in fact
Mr. Gray testified that he could NOT be sure what caliber the firearm was, underscoring
both the harmlessness and ultimate pointlessness of his testimony in that regard. Thus, to
the extent preserved, any error does not warrant reversal in this case.
II.
The court properly admitted the text messages.
Mr. Francois moved in limine to exclude the contents of text messages found on his
cell phone after the arrest. Those messages appear to be an exchange between Mr. Francois
and another individual regarding different types of firearms and their shared fondness for
visiting the shooting range to try out these weapons. Under ordinary circumstances, such
information would not be considered a “bad” act; shooting is a perfectly ordinary and
lawful hobby. However, the parties stipulated that Mr. Francois was previously convicted
of a crime which precluded him from possessing a firearm, making the text messages
evidence of a crime distinct from the crimes he was charged with.
Mr. Francois argued in the lower court, and argues on appeal, that the admission of
the evidence violated Md. Rule 5-404(b). That rule states, in pertinent part, that “[e]vidence
of other crimes, wrongs, or other acts including delinquent acts . . . is not admissible to
prove the character of a person in order to show action in the conformity therewith. Such
evidence, however, may be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of
9
mistake or accident[.]” This is a rule of exclusion – that is, evidence of prior bad acts is
presumptively inadmissible unless an exception applies. Emory v. State, 101 Md. App. 585,
601 (1994). Before the evidence may be admitted, therefore, the trial court must determine
(a) that there is clear and convincing evidence that the “bad acts” actually occurred; (b)
that the evidence has a special relevance other than showing a propensity to commit crimes;
and (c) that the probative value of the evidence outweighs the risk of unfair prejudice.
Skrivanek v. State, 356 Md. 270, 291 (1999).
Mr. Francois does not argue that there was not clear and convincing evidence that
he had, in fact, exchanged text messages about his (unlawful) possession and use of various
firearms. He argues that the motions court erred in concluding that the evidence had a
special relevance beyond propensity, and abused its discretion in determining that the risk
of unfair prejudice was outweighed by the probative value of the evidence.
A.
Special relevance beyond propensity.
The motions court made explicit reference to the MIMIC exceptions, a hoary legal
chestnut that is useful, but not determinative, shorthand for some examples of “special
relevance.” “MIMIC” stands for “Motive, Intent, (absence of) Mistake (or accident),
Identity, Common (scheme or plan).” MIMIC does not describe the entire universe of
special relevance under Rule 5-404(b); there is no “closed and finite list” of exceptions.
Solomon v. State, 101 Md. App. 331, 353 (1994). “Evidence of other acts that has sufficient
10
relevance, other than merely by showing criminal character, may be admissible.” Harris v.
State, 324 Md. 490, 496-97 (1991).
The motions court held that the text messages were admissible because they
“demonstrate the defendant’s knowledge and access to firearms, and his proclivity or
interest in them, in firing them and going to the range, which would lead to an argument
that if he has that type of access, then what he displayed . . . was actually a firearm under
the definition of our statute.” The court referred specifically to Brooks v. State, 24 Md.
App. 334 (1975), which upheld the admission of evidence that a person accused of wielding
a knife during a rape was found to have a similar-looking knife in his home later. Showing
possession of a similar weapon on another occasion was “‘relevant to show that the
defendant owned or had access to any article with which the crime was or could have been
committed.’” Id. at 344 (quoting Doye v. State, 16 Md. App. 511, 518 (1973)).
The motions court also referred several times to Reed v. State, 68 Md. App. 320(1986). Reed was charged with shooting a man to death in Queen Anne’s County in 1985.
Reed claimed on appeal that the trial court had erred in admitting propensity evidence when
it allowed testimony that Reed had been seen with a handgun two-and-a-half years prior to
the shooting. This Court held that the admission was proper: “The evidence was probative
to show that the appellant possessed the type of weapon employed in killing Middleton.
The remoteness of that possession from the date of the homicide went to the weight of that
evidence. The court did not abuse its discretion in determining that this evidence was
relevant.” Id. at 330.
11
After discussing Reed and Brooks, the motions court held that the text messages
constituted “evidence that a trier of fact could consider, that would be probative, as
evidence of perhaps prior bad act, or a pattern of behavior by Mr. Francois that would
demonstrate his access to guns, that firearms that are capable of firing a projectile.”
On appeal, Mr. Francois relies heavily on Dobson v. State, 24 Md. App. 644 (1975),
for the proposition that “where the State fails to connect the prior bad acts evidence
regarding a weapon to the weapon allegedly used in the crime at issue, it is improper to
admit such evidence.” Since, Mr. Francois argues, the State could not prove that the
weapon Mr. Gray allegedly saw was a weapon discussed in the text messages, its admission
violated Rule 5-404 under Dobson.
Dobson, however, was not a Rule 5-404(b) case. Dobson was a Rule 5-404(a) case
(or would have been, had the Maryland Rules of Evidence been codified as such in 1975).
Dobson was charged with murder and kidnapping for events which occurred in June
of 1972. In July of 1973, police executed a search warrant on the home Dobson shared with
his parents and sister. In the course of that raid, the police allegedly recovered a .38 caliber
revolver which had been reported stolen by its owner in late June of 1973, and which was
ultimately excluded as the weapon used in the murder. The defense argued that the weapon
was planted by the police or people acting on behalf of the police.
After the State rested its case, Dobson called his father as a witness, who testified
during cross-examination that he, personally, had never seen Dobson with a gun. In
rebuttal, the State called a man who testified that he had seen Dobson with a firearm in
February of 1973, eight months after the kidnapping and murder, and four months before
12
the .38 was reported stolen. The prosecutor was adamant at trial that he was presenting this
evidence to rebut the father’s testimony; the defense attorney was equally adamant that it
in no way rebutted the father’s testimony, since Dobson’s father was not alleged to have
been present at the place and time where the rebuttal witness saw Dobson with a gun.
On appeal, this Court held that this was improper rebuttal, because it did not in fact
rebut the testimony of the defense witness. The Court also stated that “[p]ossession by the
appellant of a weapon four months prior to the happening of a particular event does not
give rise to a rational inference that appellant, because of such possession, also possessed
other weapons at a later time.” Dobson, 24 Md. App. at 660. This was, to be clear, not the
reason the State offered the rebuttal testimony. It was undisputed that the .38 found in
Dobson’s house was not the weapon used in the crime. Nor does it appear that the State in
any way suggested that the unknown weapon allegedly in Dobson’s possession in February
of 1973 was the weapon used in the crime (or in the murder, for which he was acquitted).
Dobson, therefore, does not stand for the proposition that proof of prior gun
possession is never relevant in a gun case. It stands for the proposition that rebuttal
evidence is not relevant if it does not rebut anything.
Mr. Francois also cites Sweeney v. State, 242 Md. App. 160 (2019), for the
proposition that Rule 5-404(b) was violated by introducing a photograph of what the State
termed “burglary tools” into evidence. But in Sweeney, it was undisputed that no burglary
tools were used to obtain the stolen items. The door to the ransacked tool shed was
unlocked. The only reason to introduce photographs of “burglary tools” (which included a
sprinkler and a bicycle pump) was to show that Sweeney was a habitual burglar. He may
13
well have been, but that was not admissible to show that he committed that particular
burglary.
Similarly, Smith v. State, 218 Md. App. 689 (2014), is inapposite. Smith was
charged with the murder of his roommate; there was no dispute that the victim had been
shot and that the firearm used had belonged to Smith. Smith’s contention was that the
victim shot himself using one of Smith’s guns, which Smith then threw into a pond. Smith
was legally entitled to possess firearms and ammunition, and police eventually found 8
lawfully owned firearms in Smith’s home. In an advisory holding (the conviction having
already been reversed due to voir dire error), this Court ruled that the admission of the
firearms was error, because it had no relevance to any disputed issue at trial.
But that was not “prior bad acts” evidence. Smith’s ownership of the weapons was
not a crime. Therefore, the analysis was under Rule 5-403 – balancing the probative value
against the risk of unfair prejudice – and not Rule 5-404(b).
Here, by contrast, Mr. Francois was not allowed to possess firearms, and the
question of whether he did in fact have access to firearms was very much an issue at trial.
While ownership of firearms was not relevant in the Smith case, it is relevant here. The fact
that Mr. Francois admitted (in the text messages) to possessing handguns just days before
the incident is specially relevant to determining whether Mr. Francois possessed a handgun.
Moreover, as the State notes in its brief, the ammunition the police recovered was found in
a box truck that Ms. Gray (a lawful gun owner) had rented and to which she had access.
Demonstrating that Mr. Francois discussed trips to the shooting range in the days and
weeks prior to the incident was relevant to show that the ammunition in the truck was his,
14
not hers. Moreover, in the text messages, Mr. Francois seems to state that he owns a .45,
and .45 caliber rounds were found in the truck. This evidence was relevant. It was not
admitted to show that Mr. Francois was a general scofflaw and therefore more likely to
engage in the misconduct of which he was accused. It was admitted to corroborate and
bolster the testimony that on a specific date and place, he possessed a handgun and
ammunition.
B.
Weighing unfair prejudice against probative value.
Mr. Francois complains that the motions court abused its discretion in determining
that the probative value of the evidence outweighed the risk of unfair prejudice. This Court
recently addressed the formidable burden faced by an appellant alleging an abuse of
discretion under such circumstances.
Summarily, the nature of the evidence must be such that it generates
such a strong emotional response from the jury such that the inflammatory
nature of the evidence makes it unlikely for the jury to make a rational
evaluation of the evidentiary weight. The inflammatory nature of the
evidence must be such that the “shock value” on a layperson serving as a
juror would prevent the proper evaluation or weight in context of the other
evidence.
Urbanski v. State, 256 Md. App. 414, 434 (2022), cert. denied, 483 Md. 448 (2023).
Mr. Francois’s text message exchanges about his use and possession of firearms
were relevant in a case about his use and possession of firearms. The State was not required
to prove that the firearm he allegedly displayed in July of 2021 was the same firearm he
discussed in text messages in February, March and June of 2021 for these messages to be
relevant. One could infer from the text messages that Mr. Francois possessed a .45 on June
15
25. This could help a reasonable fact-finder decide if what Mr. Gray had seen on July 1
and described as a handgun was, in fact, a firearm. It could help the fact-finder decide if
the .45 ammunition found in the truck belonged to Mr. Francois. That evidence was not
determinative, but evidence need not be determinative by itself in order for it to be relevant.
Relevant evidence makes the existence of a fact more likely than if that evidence was not
present. Md. Rule 5-401. The jury was not being asked to convict Mr. Francois of a crime
because the text messages showed he was the sort of person who committed crimes. The
jury was being asked to convict Mr. Francois of possessing firearms and ammunition
because an eyewitness testified that he possessed firearms and ammunition. That testimony
was corroborated by text messages showing that in the days and weeks preceding the
incident, he possessed firearms and ammunition.
The amount of time between the messages and the allegation of possession goes to
its weight. That period could be so long that the relevance was too attenuated to overcome
even a tiny risk of unfair prejudice. Here, however, the messages were between six months
and six days old at the time of the incident. The relevance of the messages was not so
attenuated.
The evidence was prejudicial in the sense that it helped the State prove its case. That
is why the State presented it. “Unfair” prejudice, in this case, means that the evidence
would have tended to cause the jury to convict Mr. Francois not based on the strength of
the State’s case, but because of an inflamed and irrational response to learning that Mr.
Francois enjoyed visiting the firing range with a friend. Given the fairly mild nature of the
evidence, the risk of unfair prejudice is slight. The court, therefore, did not abuse its
16
discretion when determining that the probative value of the evidence outweighed the risk
of unfair prejudice. Mr. Francois’s second appellate contention is denied.
III.
The prosecutor’s rebuttal argument was proper, and any error was
harmless.
Mr. Francois’s final contention is that the trial court erred when it failed to sustain
his objection to the prosecutor’s closing remarks. During her argument, the prosecutor read
a portion of Mr. Francois’s text message exchanged with another individual:
“Defendant says ‘LOL. Kill.’ I suggest to you that means, ‘LOL. Yes, I’m up for
it.’”
The Appellant argues that this constitutes an improper argument, as it argues facts
not in evidence; the use of the word “kill” in Mr. Francois’s text messages is “outside the
common vernacular” and therefore only a witness with the appropriate knowledge was in
a position to define the term as used in Mr. Francois’s texts.
The State counters that by couching her interpretation of the word “kill” with the
phrase “I suggest to you . . . ,” the prosecutor was not presenting outside evidence, but was
simply arguing a reasonable inference from the evidence based on the context of the text
messages.
In the admitted messages, Mr. Francois on one other occasion also uses the word
“kill” in a context that could, perhaps, be interpreted to mean agreement. However – unlike
“LOL,” for example – this understanding of the word can only be gleaned from context; it
17
is not a standard usage of the word “kill” and there was no trial testimony as to its meaning
in this context.
While the distinction is subtle, in this case, the prosecutor was not presenting facts
not in evidence. She was, rather, arguing to the jury how it should interpret the evidence
before it. The phrase “I suggest to you” made it clear that the prosecutor was not revealing
new evidence, but rather arguing for a particular context-based interpretation of an
otherwise ambiguous phrase.
Parties are entitled to argue ‘“all reasonable and legitimate inferences which may be
drawn from the facts in evidence[.]’” Smith v. State, 388 Md. 468, 488 (2005) (quoting
Henry v. State, 324 Md. 204, 230 (1991)). Prosecutors are allowed to make any argument
“that is warranted by the evidence or inferences reasonably drawn therefrom.” Degren v.
State, 352 Md. 400, 430 (1999). They may not, however, introduce facts not already in
evidence. Lee v. State, 405 Md. 148, 166 (2008). Toward that end, jurors are instructed –
and were instructed in this case – that the arguments of counsel are not themselves
evidence, and that they should rely on their own interpretation of the evidence when
determining facts. Maryland State Bar Association, Md. Pattern Jury Instructions -
Criminal 3:00.
Nothing about the prosecutor’s remark was meant to serve as the introduction of
new, incompetent evidence during closing argument. Nor would any reasonable juror have
interpreted it as such. It was a proper argument from inferences that could – but need not
be – drawn from the evidence admitted at trial. Accordingly, the judge did not err in
overruling the defense objection to the remark.
18
Moreover, even if improper, the remark does not warrant reversal. This was a single
remark about a single word in two text messages – a word whose general intent was clear
from the contexts in which it was used. The interpretation of this word, in and of itself,
would not change how a rational jury would understand the texts as a whole, nor would the
suggestion that it indicated agreement in any way adversely affect the jury’s ability to
properly interpret and weigh the evidence. “‘[R]eversal is only required where it appears
that the remarks of the prosecutor actually misled the jury or were likely to have misled or
influenced the jury to the prejudice of the accused.’” Shelton v. State, 207 Md. App. 363,
387 (2012) (quoting Spain v. State, 386 Md. 145, 158 (2005)).
Therefore, the trial court did not abuse its discretion in overruling the defense
objection, and any error was harmless. The convictions are affirmed.
JUDGMENTS OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
19
The correction notice(s) for this opinion(s) can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/1254s22cn.pdf