Brewer v. State

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1325
September Term, 2013
JOSHUA P. BREWER, JR.
v.
STATE OF MARYLAND
Krauser, C.J.,
Zarnoch,
Raker, Irma S.
(Retired, Specially Assigned),
JJ.
Opinion by Zarnoch, J.
Filed: October 29, 2014
The facts of this case invite us to revisit the doctrines of “plain view” and “open view”
in the context of a warrantless seizure of drugs in the vestibule of a Baltimore City rowhouse.
Appellant Joshua P. Brewer, Jr. was charged in the Circuit Court for Baltimore City
with possession of cocaine with intent to distribute and possession of heroin with intent to
distribute. On May 14, 2013, the trial court denied appellant’s pre-trial motion to suppress,
and two days later the jury convicted him of both distribution offenses. After denying
appellant’s motion for new trial, the court, on July 31, 2013, imposed two concurrent 20-year
sentences. In this Court, appellant presents the following questions:
1. Did the trial court err in denying the motion to suppress?
2. Did the trial court err in denying Appellant’s motion in limine to
exclude his prior convictions and/or in denying Appellant’s motion for
new trial because of the admission of his prior convictions?
3. Did the trial court err in denying the motion for a new trial due to the
prosecutor’s improper closing argument?
For reasons discussed below, we answer each of these questions in the negative and affirm.
BACKGROUND
Detective Vincent Lash, narcotics investigator for the Baltimore City Police
Department, testified that during the early evening of November 5, 2011, he was on plain
clothes duty with two other officers in the vicinity of 14 North Gilmor Street in Baltimore
City. Upon receipt of a confidential report regarding suspected drug activity by a certain
individual, he covertly observed appellant engaged in suspected drug sales. With binoculars,
Detective Lash observed appellant running back and forth from and in and out of the
residence at 14 North Gilmor and out across the street where individuals were waiting.
Appellant handed small items in exchange for cash to a total of at least 14 people. Based on
Detective Lash’s expertise as a drug investigator, after observing these acts he believed that
narcotic sales were taking place.
Detective Lash and two colleagues entered the block to arrest appellant, who looked
up as he saw them approaching. Appellant then dropped some small objects to the ground
and proceeded to stomp upon them. However, his feet missed a red-topped vial of cocaine.
The officers arrested appellant and recovered the red-topped vial, but could not recover the
gel caps that appellant had stepped upon.
Detective Lash testified that he then walked over to 14 North Gilmor Street, where
the clear storm door was unlocked, open and ajar. He approached the door of the property
by walking up a stoop of four steps. Looking through the glass storm door from outside,
Detective Lash could see a large amount of drugs on top of a ledge above the interior door.
By going through the unlocked, open storm door, he entered this part of the building and
recovered the drugs.
At the time he entered this area, Detective Lash was unaware of whether it was part
of an apartment building or a single family residence. However, he believed it to be open to
the public because the exterior door was “just an open storm door,” and there was no working
doorbell, so anyone who wished to knock on the main front door would have to pass through
the storm door and enter the area where the front door was located. Detective Lash testified:
I went to the location I saw him come out of. At that point, I didn’t
know if it was a - an apartment building, because it’s a three story. I didn’t
2
know if the drugs - if we were going to have to seize the location and get a
warrant.
But from walking up to the location, I could see that it was an exterior
door in a vestibule area.[1] And that’s why – and when I saw . . . the drugs,
that[‘s] when I received the drugs – obtained the drugs.
Detective Lash then knocked on the main front door, spoke with appellant’s father, Joshua
Brewer, Sr., who confirmed that appellant lived there. Detective Lash informed the father
that his son was being arrested.2
During his testimony, appellant’s father confirmed that anyone wishing to knock on
“the main door, the only door” would have to pass through the open storm door into the
vestibule area to do so. There was no working doorbell, and mail deliveries were simply
tossed into the vestibule area. The solid main door was the one that he “locked at night . .
. that was the real door.” Anyone could enter or toss deliveries into the vestibule area without
knocking on the screen door. Photographs of the vestibule introduced as exhibits at the
1
Whether the area in front of the main front door would technically qualify as a
“vestibule,” or the “first threshold of the building,” William E. Ringel, Searches and
Seizures, Arrests and Confessions (2d Ed. 2014) at § 8:16, we will generally employ the
Detective’s and the circuit court’s terminology.
2
Responding to a question about why he declined to arrest the drug purchasers on the
street, Detective Lash testified:
If I get these individuals, Mr. Brewer would take his drugs and
go inside or run away. If I lock up one person a block away, he
- - it - - word will travel in the city: Lookout, information, “Hey,
they just - - Jimmy you just sold to just got locked up from
police.” So for me to get Mr. Brewer, I have to let small fish go
to get big fish.
3
suppression hearing displayed a short, narrow, uncarpeted corridor with no objects on the
floor or walls. The corridor led to a door with double locks topped by a paladian window.
The interior door sat on a raised step.
Appellant also testified that the storm door was not locked. When asked whether
unexpected visitors would simply open the storm door and enter the vestibule, appellant
answered: “If they wanted to, of course they could. It’s not locked.”
At the suppression hearing, the appellant contended that the vestibule was part of the
curtilage, a protected area. The prosecution argued that it was not curtilage. The trial judge
denied appellant’s motion to suppress the recovered drugs ruling as follows:
I have listened to the testimony of all the parties involved. And I find
the testimony of Detective Lash to be credible about what happened,
specifically that he had gotten information from a CI that a person matching
the defendant’s description was selling drugs like crazy in the area of 14 North
Gilmor Street, right where we’re talking about.
The officers were able, with their binoculars, to observe similar activity
to that, someone, what Detective Lash referred to as “serving customers”
approaching people and taking money and giving small objects sufficient that
they felt they had corroborated the CI sufficient that they rolled quickly up to
the scene with the intention of arresting the defendant.
Even before they got out of the car, the defendant dropped whatever
was in his hand and danced upon those items, missing only one of them, a red-
top vial. The Detective Lash saw that and then went to the place where he had
seen the defendant come.
Now, there are three different areas here. We have the stoop, as this is
Baltimore City. We have what is referred to as the “vestibule.” And I think
it is truly a vestibule. And we have the interior of the house.
No one contends that the police did not have the legal right to go up on
4
the stoop. Everybody who comes, even the defendant said that Jehovah’s
Witnesses go up on the stoop and bang on the door. Everybody has that right.
What is the legal significance of the vestibule. And I think that it is
acceptable to include that in the – in the concept of curtilage. And then the
interior door, which is the defendant’s father said was open a little bit, the
detective said was closed, is the demarcation of the private area of the home.
Those are our three spots; stoop, public area, vestibule, curtilage. The
area beyond the interior door is private area.
The Fourth Amendment looks at all of those areas quite differently. As
to the stoop, if anyone can go there, so can a police officer. As to the
curtilage, that is an area protected by the Fourth Amendment unless what is in
the curtilage is observable from the public area.
Just as if I happen to have a marijuana plant growing on my patio, my
patio is protected area, but looking at my marijuana plant growing on my patio
might be something that could be seen from the front street or the alley behind
my home, an area where the police have a right to be.
So this entire analysis comes down to whether Detective Lash, upon
going up to the steps, could in fact see a bag atop the door in what used to be
a transom area above the front door.
It is his testimony he saw it from that distance which he would be
looking through a glass panel or crack in the door – I think there is no
significance between either looking through the glass panel or any crack in the
door – seems to be maybe five or six feet away by the pictures.
He looked in. He saw it, he recognized it as the same thing that the CI
had been talking about that he had seen on the street dropped by the defendant
and missed in his stomping; that when he sees it, he recognizes it as evidence.
I think here we are clearly in the Plain View Doctrine. The police
officer has a right to be where he is, sees something he recognizes as evidence,
and we should also point out that this is a – an exigent circumstance to this
extent. If a warrant is needed for the vestibule, then the items in the vestibule
could be moved or disposed of by anyone inside the house.
5
If the vestibule is not covered by the Fourth Amendment protections in
need of a search warrant, the officer can go in and take it.
When he sees it, given the exigency, I believe he is allowed to go in and
pick it up and seize it only. They did not proceed further with a warrant to
search the rest of the house. Rather they arrested the defendant and recovered
the drug on the street, the bag from the transom. And I find that to be in plain
view and within the rights of the police to seize upon seeing it. . . . The motion
to suppress the drugs is denied.
DISCUSSION
I. Trial court’s denial of motion to suppress
A. Introduction - Standard of Review
Appellant’s first argument is based upon the Fourth Amendment’s protection against
unreasonable searches and seizures. He contends that the circuit court erred by failing to
grant his motion to suppress the seized drugs because Detective Lash lacked permission,
failed to obtain a warrant, and no exigency existed for him to search the curtilage area of his
home. Appellant contends that, under established constitutional law, it cannot reasonably be
disputed that by opening the storm door, entering the vestibule and seizing a bag from its
interior, Detective Lash conducted “an unreasonable search.” Maintaining that the circuit
court properly denied the motion to suppress, the State argues that even if the search area is
considered curtilage, it is afforded limited Fourth Amendment protection, and the officer had
an implied invitation to enter the vestibule.
In reviewing a trial court’s denial of a motion to suppress evidence, we base our
decision solely upon the “facts and information contained in the record of the suppression
6
hearing.” Longshore v. State, 399 Md. 486, 498 (2007). We then extend great deference to
the suppression judge with respect to the determination and weighing of first-level findings
of facts, which we will not disturb unless clearly erroneous, and we view all facts in the light
most favorable to the State as the prevailing party. Williamson v. State, 413 Md. 521, 531-32
(2010). We also apply a de novo standard of review, making our “own independent
constitutional apprisal by reviewing the law and applying it to the facts of the case.” Bailey
v. State, 412 Md. 349, 362 (2010) (Citations omitted), Grymes v. State, 202 Md. App. 70, 80
(2010).
A defendant “invoking Fourth Amendment protection bears the burden of
demonstrating his or her legitimate expectation of privacy in the place search or items
seized.” Williamson, 413 Md. at 534. Also relevant under more recent Supreme Court
rulings is whether the government has physically intruded on a constitutionally protected
area. Florida v. Jardines, ____ U.S. ____, 133 S. Ct. 1409, 1414 (2013).
B. Plain view v. Open view
At the outset, we note that the circuit court’s suppression decision appears to have
blurred two very different 4th Amendment doctrines: plain view and open view. In Brown
v. State, 15 Md. App. 584 (1972), Judge Moylan wisely drew critical distinctions between
these concepts. Police may seize evidence in plain view without a warrant if “there has been
a prior valid intrusion.” Id. at 604. However, the open view doctrine often contemplates a
“pre-intrusion visual observation” of evidence located inside a constitutionally protected area
7
from a “vantage point outside” the constitutionally protected area. Id. at 605. “[T]he valid
visual observation simply furnishes probable cause for 1) the issuance of a warrant; or 2) the
warrantless entry of the [premises], provided exigent circumstances are also present; or 3)
the warrantless entry to effect an arrest for a crime being committed in the officer’s
presence.” Id. (Citations omitted). “As a non-search, the visual observation itself is
legitimate; but it may never, standing alone, justify an intrusion.” Id.
If the vestibule was curtilage and a constitutionally protected area, as the circuit judge
indicated, and the detective observed the drugs in a pre-intrusion setting from outside that
protected area, he would have seen the drugs in open view, not in plain view after a prior
valid intrusion. Under these circumstances, a warrantless entry into the vestibule would have
to be justified by exigent circumstances.
C. Open View / Exigent Circumstances
Under the open view doctrine, there was nothing impermissible about Detective
Lash’s observation of the drugs through the glass door while standing on the stoop of
appellant’s residence; and the suppression court specifically found that Detective Lash’s
seizure of the drugs was justified by exigent circumstances. The circuit judge noted that “[i]f
a warrant is needed for the vestibule, then the items in the vestibule could be moved or
disposed of by anyone inside the house” and “[w]hen he sees it, given the exigency, I believe
he is allowed to go in and pick it up and seize it. . . .” We agree with the circuit court.
This Court has said that “drugs are peculiarly susceptible to quick destruction.”
8
Archie v. State, 161 Md. App. 226, 243 (2005). No greater illustration of that fact occurred
when appellant, right in front of the officers, stomped drugs he was selling on the street.
Although appellant was arrested and cuffed and could not destroy drugs inside the house,
Detective Lash had no assurance that any person inside the house might not move or, like
appellant, destroy the drugs if he stopped to obtain a warrant. Moreover, an open glass door
was the only protection that evidence would receive from the drug purchasers and others
outside, who undoubtedly knew that appellant was obtaining the drugs from inside the home.3
This is not a case like Dunnuck v. State, 367 Md. 198 (2001), where the police through
their own delay created the exigency needed to justify a warrantless entry of a residence.
Here, the police had witnessed a drug offense, the destruction of some of the evidence in
their very presence and the obvious use of the residence to store the drugs being sold. Under
these circumstances, it would have been astonishing if the detective did not knock on the
door of the premises and seize the drugs that were before him. In our view, the State met
its burden of showing exigent circumstances for seizing the drugs in the vestibule even if it
is considered part of the curtilage.
In his reply brief, appellant for the first time relies on Jardines to argue that Detective
Lash intruded upon a “constitutionally protected area” by “opening the door and entering the
vestibule and seizing a bag from the interior.” Jardines involved police use of a drug-
3
Detective Lash testified how quickly word traveled on the street when a drug arrest
had occurred.
9
sniffing dog on the front porch of a residence to investigate an unverified tip that marijuana
was being grown on the premises. It did not involve an ordinary visual observation of drugs,
in open view, made from a place where anyone had a right to be, and a seizure based on
exigent circumstances.
On the basis of Jardines, appellant contends that Detective Lash did not have an
implied license to enter the vestibule to knock on the internal door of the residence. See
Brown v. State, 75 Md. App. 22, 23 (1988). Jardines could be seen as modifying an “implied
license” for a police officer to invade the curtilage to conduct a dog-sniffing search. There,
the majority observed generally that “the background social norms that invite a visitor to the
front door do not invite him there to conduct a search,” 133 S. Ct. at 1416, and more
specifically, that “[a]n invitation to engage in canine forensic investigation assuredly does
not inhere in the very fact of hanging a knocker.” Id. Nevertheless, the majority still noted
that “a police officer not armed with a warrant may approach a home and knock, precisely
because that is no more than any private citizen may do.” Id. In short, we believe Jardines
does not require the forfeiture of Detective Lash’s license to enter the vestibule to knock on
the internal door. See State of Idaho v. Howard, 315 P.3d 854, 859 (2013).
D. Curtilage
Because of our conclusion that the observation of the drugs was not a search and any
seizure was justified by exigent circumstances, we need not definitively determine the
correctness of the circuit court’s suggestion that the vestibule was curtilage. We do note
10
however, that terming a particular area curtilage “expresses a conclusion; it does not advance
Fourth Amendment analysis.” U.S. v. Arboleda, 633 F.2d 985, 992 (2d Cir. 1980). The
circuit court here did not employ the four analytical tools approved by the U.S. Supreme
Court in U.S. v. Dunn, 480 U.S. 294 (1987) to determine whether the vestibule harbors the
intimate activity associated with the sanctity of a person’s home and the privacies of life. Id.
at 300. Those factors are: 1) the proximity of the area claimed to be curtilage to the house;
2) whether the area is included within an enclosure surrounding the house; 3) the nature of
the uses to which the area is put; and 4) the steps taken by the resident to protect the area
from observation by people passing by. Id. at 301.
In U.S. v. Cooke, 674 F.3d 491 (5th Cir. 2012), cert. denied, _____ U.S. _____, 133
S. Ct. 756 (2012), the U.S. Court of Appeals for the Fifth Circuit applied these factors to the
area between the exterior and interior doors of the defendant’s barn-like residence and
concluded that the area was not within the curtilage of the home, noting that “any member
of the public would reasonably think that they would have to enter and knock on the interior
doors when visiting.” Id. at 495.
As in Cooke, the first two Dunn factors favor appellant. The vestibule was physically
attached to and shared the same roof as the residence. However, focusing on the latter
factors, we note that the area between the glass storm door and the interior door was a
narrow, non-descript, unadorned corridor devoid of the intimate activity associated with the
sanctity of a person’s home and the privacies of life. The external door with no doorbell was
11
ajar, a see-through, deliberately open to the world at large, and leading to what the public
would readily believe is the real door - - double-locked, on a step with a palladian window.
Arguably, there would be no reasonable expectation of privacy in such an area. And the
testimony in the case confirmed this description. If the area beyond the storm door was not
curtilage, but an extension of the stoop, it would not be a constitutionally protected area. As
a result, police entry would be a non-search and taking the drugs into custody would not raise
a Fourth Amendment issue. See Fitzgerald v. State, 384 Md. 484, 503-04 (2004); Brown,
15 Md. App. at 605. Nevertheless, this is an issue we need not decide today.
II. Trial court’s denial of motions regarding evidence of prior convictions.
During trial, prior to advising appellant of his right to testify, defense counsel moved
to exclude evidence of appellant’s 2004 and 2006 drug distribution convictions that the State
indicated it intended to introduce for impeachment purposes.4 While the trial court was
balancing probative value versus potential prejudice of these two convictions, defense
counsel expressed concern that, given their similarity to the current charges, the jury “would
not be able to separate and might assume that because he was convicted in the past he must
be guilty this time.” The trial court denied the motion, explaining as follows:
THE COURT: Well, I understand that. But obviously if the State does not
go into this and defendant testifies, when he presents, without other comment,
as a person with no criminal record.
4
Appellant had also been convicted of possession with intent to distribute (the same
crime for which he was on trial) in 1999, and for a handgun offense, but the State did not
plan to introduce these convictions.
12
When we have a specialist here who has three actual convictions for
drug felonies, the fact that he got arrested for another drug felony shouldn’t
allow him to keep his speciality out of consideration. And – and let him come
in cloaked in the – the garb of someone who’s never been convicted.
You know, if he had a robbery, and he had a theft, and he had a
burglary, and he had drugs, then I could exclude the drugs because it wouldn’t
be giving a false impression about the man.
But in this case, this is his speciality. And these three felony
convictions are very substantial. They are the type of crime that the Court of
Appeals and the Court of Special Appeals have specifically recognized as
impeachable offenses.
The only reason to exclude them is because it’s the same offense. But
then as to each criminal, we would be saying specialize, and no one would ever
know about your history. So I’m going to deny the motion to suppress those
items.
When defense counsel argued that “that’s precisely why they shouldn’t come in because the
jury might conclude that he was a specialist,” the court responded that if the evidence comes
in, he would “give them the instruction that this is not for the purpose of – of deciding
whether he would have committed the offense as he had in the past, but rather it is part of
assessing his credibility, something they’ll have to do.”
Understanding that these prior convictions would be coming in as evidence if he took
the stand, appellant still chose to testify. During his direct testimony, appellant confirmed that
in 2000 and 2006 he was convicted of possession with manufacturing and distribution of
heroin, and that in 2004 he was also convicted of heroin distribution. During cross-
examination, the prosecutor asked the following question:
Now, your attorney asked you about your prior convictions. In 2006 – let’s
13
just clarify. In 2006 you were convicted of distribution of heroin, and
conspiracy to distribute heroin; isn’t that correct?
Appellant answered in the affirmative.
Subsequent to trial, appellant unsuccessfully moved for new trial on the basis that it
was reversible error to have denied his motion to exclude evidence of the prior convictions.
In its ruling, after pointing out that appellant’s other prior acts were being excluded, the court
concluded that it had properly conducted the balancing, and that under the circumstances
appellant was appropriately confronted with his history “in the course of a story that the jury
did not believe.” Although appellant’s charges were similar to his past convictions, the judge
explained that there was no reason a defendant experienced with a particular crime “should
be allowed to present himself to the jury on the credibility question as a law abiding citizen.”
Appellant now argues that reversal is required, contending that the probative value of
his prior convictions was outweighed by their unfair prejudice, so the trial court abused its
discretion by denying his motion in limine and/or in denying his motion for new trial. He
argues that the prior convictions, which were unrelated to the accusations at hand, “added
very little to the State’s case while engendering grave prejudice to Appellant” by tarnishing
him as a “specialist” and showing criminal propensity. He contends that impeachment with
prior convictions very similar to the charges on trial created a grave danger that the jury
convicted on the basis of an inferred propensity to commit the crime, and not on the basis of
the evidence. The State maintains that the trial court acted well within its discretion in
denying each of appellant’s motions. Credibility was a central issue in the case, and its
14
resolution “boiled down to whether the jury believed the testimony of the police officers or
the contradictory testimony” of appellant.
Maryland Rule 5-609 governs admissibility of prior convictions for the purpose of
impeaching a witness’s credibility. This rule provides, in relevant part:
[E]vidence that the witness has been convicted of a crime shall be admitted if
elicited from the witness or established by public record during examination
of the witness, but only if (1) the crime was an infamous crime or other crime
relevant to the witness’s credibility and (2) the court determines that the
probative value of admitting this evidence outweighs the danger of unfair
prejudice to the witness or the objecting party.
Md. Rule 5-609(a). In addition, the conviction must be no more than 15 years old, and
cannot have been reversed, vacated, pardoned, or be currently on appeal. Rule 5-609(b)-(c).
Maryland law is clear that a trial court may properly admit evidence of a defendant’s prior
conviction for distribution of controlled dangerous substances for the limited purpose of
impeaching his credibility. State v. Giddens, 335 Md. 205, 217 (1994) (Conviction for
cocaine distribution is relevant to credibility, as such an offense reveals that an individual
“would be willing to lie under oath”). In State v. Woodland, 337 Md. 519 (1995), the Court
ruled that the defense witness’ prior conviction for possession with intent to distribute was
similarly admissible for impeachment purposes, as long as the trial judge conducts the proper
balancing test.
Where the trial court’s decision reflects an exercise of the discretion vested under
Rule 5-609, it is well established that the balancing of the probative value of a prior
conviction against its prejudicial effect is a matter left to the court’s sound discretion.
15
Jackson v. State, 340 Md. 705, 719 (1995); Giddens, 335 Md. at 213. When the trial court
exercises its discretion in these matters, we “will give great deference to the court’s opinion”
and appellate courts “will not disturb that discretion unless it is clearly abused.” Jackson,
340 Md. at 719. Similarly, the court’s decision as to whether to grant a new trial lies within
the sound discretion of the trial court and its decision will not be disturbed on appeal absent
an abuse of discretion. Argyrou v. State, 349 Md. 587, 600 (1998).
The Court of Appeals has identified five factors that judges may consider when
weighing the probative value of a prior conviction against its prejudicial effect, which
“should not be considered mechanically or exclusively,” but should be treated as a “useful
aid to trial courts in performing the balancing exercise” established by Rule 5-609. Jackson,
340 Md. at 717.
These factors are (1) the impeachment value of the prior crime; (2) the point
in time of the conviction and the defendant’s subsequent history; (3) the
similarity between the past crime and the charged crime; (4) the importance of
the defendant’s testimony; and (5) the centrality of the defendant’s credibility.
Id. “Where credibility is the central issue, the probative value of the impeachment is great,
and thus weighs heavily against the danger of unfair prejudice.” Id. at 721 (emphasis in
original). Similarity between the past and current offenses weighs against admission, but
does not serve to automatically exclude such evidence. For example, we concluded that the
trial court did not abuse its discretion in admitting evidence of two prior armed robbery
convictions to impeach a defendant who was being tried for the same offense. Facon v.
State, 144 Md. App. 1, 47 (2002), rev’d on other grounds, 375 Md. 435 (2003).
16
In a case with a fact pattern similar to the one before us, the defendant was charged,
inter alia, with possession with intent to distribute heroin and cocaine. Summers v. State,
152 Md. App. 362, 366-67 (2003). Prior to trial, the defense unsuccessfully moved in limine
to exclude Summers’ one year-old conviction for possession of a controlled dangerous
substance with intent to distribute. Id. at 368-69. While balancing the factors enumerated
in Jackson, the trial court reasoned that weighing against admissibility was the recent nature
of prior convictions and their similarity to the charged offenses. Id. at 369. On the other
hand, witness credibility was central to the case and “the jury’s verdict would depend on
whether it believed appellant or the police officers.” Id. at 371. The court concluded that
permitting the defendant to portray the “stellar picture of himself” to the jury as someone
without a criminal background, the probative value of admitting the evidence outweighed
the danger of unfair prejudice. Id. at 369, 372, Jackson, 340 Md. at 721. We affirmed the
court’s decision, concluding that the trial court properly exercised its discretion.
Similarly here, the trial court, to the extent the convictions were admitted for
impeachment purposes, would not have abused its discretion by denying appellant’s motion
to exclude. First, his prior convictions were for drug distribution, which are impeachable
offenses pursuant to Rule 5-609. Unlike Summers, in which the prior conviction was very
recent, appellant’s 2004 and 2006 convictions are somewhat older. Moreover, appellant’s
prior convictions were for heroin distribution, whereas he was being tried for possession with
intent to distribute, so the prior convictions were similar but not identical. Because
17
appellant’s testimony directly contradicted the State witnesses’ version of events, credibility
was an issue in the case. A plausible reading of the circuit court’s oral opinion on the motion
to exclude indicates that it was allowing the convictions to be admitted principally for
impeachment purposes and not to show criminal propensity. The court’s erroneous and
unnecessary references that appellant was a “specialist” and that drug dealing was his
“specialty,” do not undermine the court’s express determination that the prior convictions
were “impeachable offenses” to be used by the jury in “assessing [appellant’s] credibility.”
The jury was also specifically instructed to that effect. In any event, it is our view that any
erroneous admission of this evidence was harmless beyond a reasonable doubt. Appellant
was caught red-handed dealing drugs. His offenses were witnessed by the police. He
destroyed evidence in their presence. And drugs were recovered from the vestibule of his
home. Thus, admission of evidence of his prior convictions could not have made a
difference in the correct determination of his guilt. As a result, appellant’s motion for a new
trial was properly denied.
III. Motion for new trial regarding prosecutor’s comment during closing.
Appellant’s final contention is that the trial court abused its discretion by failing to
grant his motion for a new trial due to comment by the prosecutor during closing, which
inappropriately argued that appellant was “experienced” in selling drugs, given that he had
been twice before convicted for the “exact same thing.” Appellant contends that the
prosecutor’s remark “clearly sought to unfairly prejudice the jury” against him, violating his
18
right to a fair trial, and despite the trial court’s attempt to instruct the jury otherwise, “the
proverbial bell had rung, and it could not be ‘un-rung.’” Maintaining that the trial court
properly exercised its discretion by denying appellant’s motion for new trial, the State points
out that not only did the prosecutor quickly correct her improper remark, but the trial court
issued a curative instruction, which together ensured that the jury would consider appellant’s
prior convictions for impeachment purposes only. Furthermore, evidence against appellant
was overwhelming, so any possible error by the trial court based on the “slight misstatement
by the prosecutor” was harmless beyond a reasonable doubt.
During the State’s closing argument in the case before us, the following colloquy took
place:
[PROSECUTOR]: Defendant knew what he was doing. He knew what he
was had in his possession. He knew he had cocaine. He knew he had heroin.
He’s well experienced in selling drugs. Why? Because he’s been not
once, but twice convicted of the exact same thing –
[DEF COUNSEL]: Your Honor, may we approach?
THE COURT: No, I’ll sustain the objection.
And I’ll admonish you, ladies and gentlemen, you cannot use that, the
prior convictions for any purpose other than deciding whether or not the
defendant was telling you the truth when he testified. It has nothing to do with
– with any of the elements of the crime.
Please proceed.
[PROSECUTOR]: Thank you.
By his own testimony he was twice convicted of distribution, 2004
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distribution, 2006 distribution and conspiracy to distribute.
In light of those convictions, you need to take his credibility into
account, especially when he’s giving inconsistent testimony, directly
inconsistent with his father’s testimony of him – of the dad calling out to him
and the dad saying he never called out to him, never looked out the window
that evening.
The defendant knew what he was doing that day. . . .
In denying appellant’s motion for new trial on the grounds that the prosecutor’s
remark was improper, the trial court ruled as follows:
THE COURT: As to the blurt-out by [the prosecutor] that the defendant was
a convicted drug dealer, I think I took the exact corrective action which was
called for under the circumstances, told the jury to completely disregard that.
And, if anything, the whole circumstance was a distraction or embarrassment
for [the prosecutor’s] presentation but not one that would lend the jury to come
to the conclusion it did.
I think what . . . led the jury to the conclusion it came to was the
strength of the State’s case and the $403 in the defendant’s pockets and the
drugs that were recovered, 40 vials of cocaine and 27 gel caps of heroin.
It is a movant who holds the burden of persuading the court that a new trial should be
granted. Whether to grant a new trial lies within the sound discretion of the trial court,
whose decision will not be disturbed on appeal absent an abuse of discretion. Argyrou, 349
Md. at 600. The abuse of discretion standard requires trial judges to use their discretion
soundly, and we do not consider that discretion to be abused unless “the judge ‘exercises it
in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the
law.’” Washington v. State, 424 Md. 632, 667-68 (2012) (quoting Campbell v. State, 373
Md. 637, 665-66 (2003)). A trial court’s discretion to grant or deny a new trial expands and
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contracts, depending upon the nature of the factors being considered, and its exercise
“depends upon the opportunity the trial judge had to feel the pulse of the trial, and to rely on
his or her own impressions in determining questions of fairness and justice.” Argyou, 349
Md. at 600, Washington, 424 Md. at 668.
In conducting closing argument, “the prosecutor is allowed liberal freedom of speech
and may make any comment that is warranted by the evidence or inferences reasonably
drawn therefrom.” Lee v. State, 405 Md. 148, 163 (2008). “Despite the wide latitude
afforded attorneys in closing arguments, there are limits in place to protect a defendant’s
right to a fair trial.” Degren v. State, 352 Md. 400, 430 (1999), Lee at 163. When reviewing
a decision based on an improper remark in the prosecutor’s closing argument, unless it
appears that the jury was actually misled or were likely to have been misled or influenced to
the prejudice of the accused by the remarks of the State’s Attorney, reversal of a judgment
will not be justified. Holbrook v. State, 6 Md. App. 265, 270 (1969). Reversal is only
required if prosecutor’s improper comment actually misled the jury or was likely to have
influenced the jury to the prejudice of defendant. Degren, 352 Md. at 431. The
“determination of whether the prosecutor’s comments were prejudicial or simply rhetorical
flourish lies within the sound discretion of the trial court.” Id.
A significant factor in determining whether a defendant was likely to be prejudiced
by an improper remark is whether the trial court took appropriate action to overcome the
likelihood of prejudice, such as informing the jury that the remark was improper, striking it
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and admonishing them to disregard it. Holbrook, 6 Md. App. at 270. In concluding whether
a particular remark is harmless, appellate courts may review various factors, including the
severity of the remark, the measures taken to cure any potential prejudice, and the overall
weight of the evidence against the accused. Lee, 405 Md. 174-75. In this case, the
prosecutor’s remark merely referred in passing to a fact to which appellant himself had
testified. Indeed, whereas the prosecutor referred to two prior convictions, appellant himself
testified to having three prior prosecutions for dealing drugs. When defense counsel asked
to approach the bench, the trial court took affirmative action by issuing a curative instruction
to the jury. The prosecutor then corrected her closing argument by attempting to make it
clear that her reference to prior convictions was for the purpose of questioning appellant’s
credibility as a witness. Overall, her comment itself was slight, the weight of the State’s
evidence was strong, and corrective actions were taken by both the trial court and the State.
As a result, the court properly denied appellant’s motion for new trial.
JUDGMENTS OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
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