Smith v. State , 367 Md. 348 ( 2001 )

RAKER, Judge.

Robert Allen Smith, petitioner, asserts that his federal and state constitutional right against self-incrimination was violated by the prosecutor’s comments during closing argument. We agree and shall hold that the prosecutor’s remarks were a direct comment on petitioner’s exercise of his privilege against self-incrimination. The error was not harmless, and a new trial is therefore in order.

In March, 1998, the home of Mr. and Mrs. Davis was burglarized and several items of property taken. The missing items included: a twenty-two caliber revolver, a shotgun, jewelry, coins, four women’s leather jackets, two men’s leather jackets, and a pair of leather chaps. On the basement stairs, the police found a shoe print of a person’s boot; they found a similar print on a shirt left in the bathroom.

On March 4, 1998, Ridgely police officer Phil Dixon spoke with a person who told him that Smith offered to sell a twenty-two caliber revolver that matched the description of the gun stolen from the Davis’ home. Based on this information, the police secured a search and seizure warrant for Smith’s home. They found no evidence linking him to the burglary. On March 9, 1998, Officer Dixon interviewed Denise Brown, who told him that she purchased a leather jacket from Smith for twenty dollars. Ms. Brown also said that Smith showed some leather clothing to Richard Greenwood. The police contacted Greenwood, and he told them that he bought a men’s leather jacket and leather chaps from Smith. The police then showed the leather clothing to Mr. and Mrs. Davis, who identified it as their property. The police also compared Smith’s shoes to the print found at the Davis’ home and concluded that it was “an exact match or a near exact match.” Smith was arrested. While he was in jail, he telephoned Arkendra Candi. Candi testified at trial that Smith asked her to telephone Denise Brown and offer her a bribe to change her story and deny receiving the clothing from Smith. Greenwood and Brown also testified at trial.

Petitioner was tried in the Circuit Court for Caroline County before a jury on charges of first degree burglary, conspiracy to obstruct justice, malicious destruction of property, and four counts of theft. Petitioner did not testify and presented no evidence on his behalf. The prosecutor argued in closing argument that:

“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 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 leather goods? Zero, none.”

The defense objected to the last comment, but the trial court, before the jury, overruled defense counsel’s objection, stating: “I think that’s a comment on the evidence. Overruled. I think he was as much referring to any excplanation to the police.”

Smith was convicted by the jury on all counts and sentenced to a term of incarceration. In an unreported opinion, the Court of Special Appeals affirmed. The intermediate appellate court found that “the prosecutor’s remarks in closing concerned the lack of evidence to excplain, on some legitimate basis, appellant’s possession of the Davises’ leather clothing and did not concern appellant’s failure to testify.” Rejecting Smith’s argument that the prosecutor commented on his failure to testify, the court reasoned that the prosecutor’s comments merely “served to highlight that none of the witnesses who testified at trial could refute or excplain the fact that, soon after the burglary, appellant was seen in possession of the Davises’ missing leather goods.” We granted Smith’s petition for a writ of certiorari.¹ See Smith v. State, 360 Md. 485, 759 A.2d 230 (2000).

Before this Court, Smith argues that the prosecutor directly referred to his failure to testify and that this error was not harmless. The State counters that the prosecutor’s remark was merely a comment on the lack of evidence to explain Smith’s possession of recently stolen property. In the State’s view, the prosecutor’s comments were made to remind the jury that it could infer that Smith was the thief from his unexplained possession of recently stolen goods.

We begin with a brief discussion of the privilege against self-incrimination. It has long been the law in Maryland that a defendant in a criminal trial need not testify. Comment upon a defendant’s failure to testify in a criminal trial was prohibited in Maryland before the United States Supreme Court, in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed2d. 106 (1965), held that the federal constitutional right against compelled self-incrimination prohibits prosecutorial comment on the accused’s silence or failure to testify. See e.g., Woodson v. State, 325 Md. 251, 265, 600 A.2d 420, 426 (1992) (citing Barber v. State, 191 Md. 555, 62 A.2d 616 (1948); King v. State, 190 Md. 361, 58 A.2d 663 (1948); Smith v. State, 169 Md. 474, 182 A. 287 (1936)). Today, the privilege against self-incrimination is protected by the Fifth Amendment of the United States Constitution,² Article 22 of the Maryland Declaration of Rights,³ and Maryland Code (1957, 1998 Repl.Vol., 2000 Cum.Supp.) § 9-107 of the Courts and Judicial Proceedings Article.⁴ See Woodson, 325 Md. at 264-65, 600 A.2d at 426 (1992).

Despite our long history of protecting defendants’ right not to testify, a prosecutor may summarize the evidence and comment on its qualitative and quantitative significance. See Wilhelm v. State, 272 Md. 404, 412-13, 326 A.2d 707, 714 (1974). In closing argument, lawyers have wide latitude to draw reasonable inferences from the evidence, and discuss the nature, extent, and character of the evidence. See Ware v. State, 360 Md. 650, 681-82, 759 A.2d 764, 780 (2000); Degren v. State, 352 Md. 400, 429-30, 722 A.2d 887, 901 (1999).

In evaluating whether a prosecutor’s comments are improper, this Court long ago set forth the following test: is the remark “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.” Smith v. State, 169 Md. 474, 476, 182 A. 287, 288 (1936) (emphasis added).⁵ In Smith, a trial for bastardy, the prosecutor argued before the jury that “this defendant has sat here all during the trial and has not denied his fatherhood.” Id. We stated:

“There can be no question of the impropriety of this remark, as 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. The constitutional provision [Declaration of Rights, art. 22] is ‘that no man ought to be compelled to give evidence against himself in a criminal case,’ but the statutory law enlarges this privilege by declaring: ‘In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes and offense * * * the person so charged shall at his own request, but not otherwise, be deemed a competent witness; but the neglect or refusal of any such person to testify shall not create any presumption against him.’ ”

Id.

Maryland is not alone in adopting a test that is highly protective of a defendant’s ability to exercise his Fifth Amendment right to remain silent.⁶ The Indiana Supreme Court, for example, rejected the “naturally and necessarily” test, finding that it is the test “which goes the farthest in allowing the prosecution to remark on the accused’s silence.... ” Rowley v. Indiana, 259 Ind. 209, 285 N.E.2d 646 (1972). The court adopted a test much like the Maryland Smith test:

“We prefer the test which does not in such an obvious fashion place the burden on the accused to show that the jury necessarily took the comment to be related to his failure to take the stand. A more reasonable test, in our opinion, was stated in Williams v. Wainwright, 416 F.2d 1042 (5th Cir.1969), where the court stated that it is settled in both Federal and Florida law that:

A comment made by the prosecuting attorney, directly or indirectly which is subject to interpretation by a jury as a comment upon failure of a defendant to testify has been strictly regarded as an impingement on the substantial right of the defendant.”

Id. at 648. See also Moore v. Indiana, 669 N.E.2d 733 (1996) (recounting the history of the no-comment rule, adhering to the Rowley decision, and rejecting Morrison-Knowles).

Likewise, the Commonwealth of Massachusetts applies a test similar to the Maryland test as set out in Smith: irrespective of the prosecutor’s intent, the test is whether the remarks were reasonably susceptible of being interpreted as a comment on the defendant’s failure to take the witness stand. See Commonwealth v. Smith, 387 Mass. 900, 444 N.E.2d 374, 381 (1983).

Florida also has adopted the “fairly susceptible” test and specifically rejected the “naturally and necessarily” test. When asked by the State to abandon the “fairly susceptible” test, the Supreme Court of Florida held that “the fairly susceptible test offers more protection to defendants than does the federal test, and we decline the state’s invitation to adopt the latter [for purposes of the state constitution].” State v. Kinchen, 490 So.2d 21, 22 (Fla.1985); Rodriguez v. State, 753 So.2d 29, 37 (Fla.2000) (“The ‘fairly susceptible’ test is a very ‘liberal rule.’ ”). In Trafficante v. State, 92 So.2d 811 (Fla.1957), the Supreme Court of Florida stated:

“[0]ur law prohibits any comment to be made, directly or indirectly, upon the failure of the defendant to testify. This is true without regard to the character of the comment, or the motive or intent with which it is made, if such comment is subject to an interpretation which would bring it within the statutory prohibition and regardless of its susceptibility to a different construction. ”

Id. at 814 (emphasis added).

In keeping with the test established in Smith, this Court has viewed references to a defendant’s failure to testify as violative of a defendant’s Article 22 and Fifth Amendment rights. In Griffin v. State, which addressed both the trial court’s jury instruction and the prosecutor’s comment on the defendant’s failure to testify, the United States Supreme Court explained the significance of the prohibition against the prosecution’s commenting on a defendant’s failure to testify:

“For comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice’ which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused’s knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. What the jury may infer, given no help from the court is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.”

380 U.S. at 614, 85 S.Ct. at 1232-1233, 14 L.Ed.2d 106 (citations omitted).

In the instant case, the prosecutor’s remarks to the jury, “what explanation has been given to us by the Defendant,” and his answer, “zero, none,” referred to the defendant’s decision to exercise his constitutionally afforded right to remain silent. The prosecutor did not suggest that his comments were directed towards the defense’s failure to present witnesses or evidence; rather, the prosecutor referred to the failure of the defendant alone to provide an explanation. The prosecutor’s comments were therefore susceptible of the inference by the jury that it was to consider the silence of the defendant as an indication of his guilt, and, as such, the comments clearly constituted error.

As is suggested above, we cannot conclude that the prosecutor’s comments merely addressed the lack of evidence to explain Smith’s possession of the leather goods. To so conclude would ignore the prosecutor’s explicit reference to the defendant and the insinuated duty of the defendant personally to offer an explanation for his possession of the property. The prosecutor’s comment went beyond any qualitative assessment of the evidence in that, when he asked the jury “what explanation has been given to us by the defendant,” he effectively suggested that the defendant had an obligation to testify at trial. This burden-shifting is contrary to the basic tenets of our criminal justice system, an accusatorial system, where the question is whether the government has met its burden of proof. See Mitchell v. United States, 526 U.S. 314, 330, 119 S.Ct. 1307, 1316, 143 L.Ed.2d 424 (1999); Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182 (1993)(explaining that the burden of proving all elements of the offense charged falls on the prosecutor, who must persuade the fact finder beyond a reasonable doubt of the facts necessary to establish each of those elements).

We recognize that prosecutors and judges are permitted to argue or comment that the unexplained possession of recently stolen goods permits the inference that the possessor was the thief. See, e.g., Grant v. State, 318 Md. 672, 680, 569 A.2d 1237, 1241 (1990); Brewer v. Mele, 267 Md. 437, 449, 298 A.2d 156, 164 (1972); Cason v. State, 230 Md. 356, 358, 187 A.2d 103, 104 (1963); Stapf v. State, 230 Md. 106, 108, 185 A.2d 496, 497 (1962); Lewis v. State, 225 Md. 474, 475-76, 171 A.2d 244, 245 (1961); Glaros v. State, 223 Md. 272, 280, 164 A.2d 461, 466 (1960);’ Felkner v. State, 218 Md. 300, 305, 146 A.2d 424, 428 (1958); Debinski v. State, 194 Md. 355, 360, 71 A.2d 460, 462 (1950). A majority of courts have held that prosecutors may comment on the uncontradicted nature of the prosecution’s evidence unless the only person who could have contradicted, denied,⁷ rebutted or disputed the evidence was the defendant himself. See, e.g., United States v. Cotnam, 88 F.3d 487, 497 (7th Cir.1996); Annotation, Comment or Argument by Court or Counsel That Prosecution Evidence Is Uncontradicted as Amounting to Improper Reference to Accused’s Failure to Testify, 14 A.L.R.3d 723, 746 (1967); cf, Annotation, Modem Status: Instruction Allowing Presumption of Inference of Quilt from Possession of Recently Stolen Property as Violation of Defendant’s Privilege Against Self-Incrimination, 88 A.L.R.3d 1178 (1978). In this case, however, the prosecutor went beyond the permissible comment on the absence of the evidence, and impermissibly commented directly on the defendant’s failure to testify.

On the basis of the foregoing, we find that the prosecutor’s comments were impermissible. Our inquiry, however, is not at an end. We must address whether the error was harmless. While 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. See Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976).

Petitioner maintains that he was prejudiced by the prosecutor’s comments. He also argues that, by overruling defense counsel’s objection before the jury and advising the jury that the comment was permissible, the court gave its imprimatur to the prosecutor’s insinuation that the jury should penalize Smith for not testifying. See Good v. State, 723 S.W.2d 734, 738 (Tex.Cr.App.1986) (stating that that a trial court, by overruling an objection to an improper argument, puts “the stamp of judicial approval” on the improper comments, thus magnifying the possibility for harm).

In addition to effectively giving his imprimatur to the State’s comment on the defendant’s silence, the judge suggested that Smith had some obligation to explain his actions to the police. This Court explicitly has rejected the notion that one’s failure to explain events to the police may be construed as evidence of guilt. See Grier v. State, 351 Md. 241, 253, 718 A.2d 211, 217 (1998). Furthermore, this comment by the trial judge refers to evidence not in the record.

The State’s argument impermissibly commented on appellant’s failure to testify. We cannot conclude beyond a reasonable doubt the improper comment did not contribute to the guilty verdict.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR CAROLINE COUNTY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS TO BE PAID IN THIS COURT AND THE COURT OF SPECIAL APPEALS BY CAROLINE COUNTY.

1 . The petition for writ of certiorari presented two questions:

"1) Did Fifth Amendment error occur when the prosecution was permitted to argue to the jury that evidence must be explained' by the Defendant; and 2) Docs Maryland Rule 4-215(e) reasonably require the Court to advise a defendant of his 'right' to proceed pro se before forcing the defendant to proceed with unwanted counsel.”

Because we answer the first question in the affirmative, we do not reach the second question.

2 . The Fifth Amendment to the United States Constitution states, in pertinent part, that "[n]o person shall ... be compelled in any criminal case to be a witness against himself....”

3 . Article 22 of the Maryland Declaration of Rights provides as follows: "That no man ought to be compelled to give evidence against himself in a criminal case.”

4 . Maryland Code (1957, 1998 Repl.Vol., 2000 Cum.Supp.) § 9-107 of the Courts and Judicial Proceedings Article provides as follows:

"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.”

5 . Notwithstanding that Smith v. State, 169 Md. 474, 182 A. 287 (1936), has never been overruled or disapproved by this Court, the concurring opinion suggests that we are "resurrrect[ing] a 1936 case.” Cone. op. at 367. Merely because a case has not been cited recently does not mean that the case has been overruled. The doctrine of stare decisis governs this dispute — Smith is controlling law.

The concurring opinion's reliance on Oken v. State, 343 Md. 256, 681 A.2d 30 (1996), as support for the proposition that this Court has applied the "necessarily and naturally” test is misleading and includes only a partial quote from that case. In Oken, a death penalty post-conviction case, the issue of the appropriate test was never raised. The complete analysis by the Court was as follows:

"We also agree with Judge Levitz that Oken's counsel was not ineffective in failing to object to the comments Oken claims infringed on his right to remain silent. We find that neither of the statements were a comment upon the failure of Petitioner to testify, nor did these statements violate Petitioner’s right to a fair trial. To be sure, comments on a defendant's failure to testify violate the defendant’s constitutional rights. See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106, 110 (1965); Woodson v. State, 325 Md. 251, 265, 600 A.2d 420, 426 (1992). Reading the prosecutor’s closing argument in context, however, we do not believe the statements were comments on Petitioner’s right to remain silent. See King v. State, 190 Md. 361, 373-74, 58 A.2d 663, 668 (1948) (holding that statement that there was no evidence to refute the State’s case was not improper comment on defendant’s failure to testify) [citing Smith v. State, 169 Md. 474, 182 A. 287 (1936)]; State v. Ward, 338 N.C. 64, 449 S.E.2d 709, 729 (1994) (holding prosecutor’s remarks were not a comment on defendant’s failure to testify, but fair and proper comments on defendant’s failure to present any evidence), cert. denied, 514 U.S. 1134, 115 S.Ct. 2014, 131 L.Ed.2d 1013 (1995); see also Eastman v. State, 47 Md.App. 162, 167, 422 A.2d 41, 43-44 (1980). Nor do we find that the jury would naturally interpret the State’s argument as a comment on Petitioner’s failure to testify. Accordingly, we find that neither of the prosecutor’s statements were improper, nor did they violate Petitioner's right to a fair trial.”

Id. at 295, 681 A.2d at 49 (emphasis added). Read in context, Oken stands for the proposition that, under any test, Oken’s right to remain silent was not violated.

6 . The concurring opinion urges this Court to abandon the Smith test and to adopt the test adopted in the federal courts and many state jurisdictions, sometimes referred to as the Morrison-Knowles test. The test proposed by the concurring opinion is as follows:

"the standard, unanimously adopted in all federal circuits, for ascertaining when a prosecutor’s argument constitutes improper comment on a defendant’s exercise of his Fifth Amendment right to remain silent is whether the language used manifestly intended to be a comment on the failure of the accused to testify, or whether the language was of such character that the jury would naturally and necessarily take it to be such a comment.”

Cone, op at 363.

The concurring opinion's proposed test has several problems. First, whether the prosecutor intended the argument to be a comment on the defendant's exercise of his or her constitutional right has no bearing on the ultimate question: whether the jury would take the remark to be comment on the defendant’s Fifth Amendment privilege. The purpose of the no-comment rule is to protect against prosecutorial comment on the privilege, not to punish the prosecutor. Therefore, the crucial question is not the prosecutor’s intent, but whether the jury would view the remark as a comment on the privilege. In rejecting the test that addresses the subjective intent of the prosecutor, the Illinois Supreme Court said:

“It seems quite irrelevant for the purpose of the no-comment rule— protecting unfettered exercise of the right to remain silent — whether or not a prosecutor actually intended to produce an inference of guilt. It is the effect of a remark, not the intent of its speaker, that frustrates a defendant’s exercise of the right to remain silent at trial.”

Moore v. Indiana, 669 N.E.2d 733, 738 (Ind.1996).

Second, this test, which excludes those comments that the jury naturally and necessarily takes to be comments on the accused’s failure to testify, is, beyond cavil, less protective of the accused’s constitutional rights than the Smith test, which requires that the comment be susceptible of such interpretation. The concurring opinion complains that the Court has not specified whether the majority test is "a ‘fairly susceptible' or ‘reasonably susceptible' test.” Cone. op. at 370. It is folly to suggest that the Court would adopt a test embracing an "unreasonable” inference by the jury. Obviously, only those statements that are reasonably or fairly susceptible of the inference by the jury are contemplated by the Smith test.

7 . Courts have warned about the prosecutor’s use of the word “unde-nied,” suggesting that such reference, when the defendant has not testified, exposes the case to the possibility of reversible error. See United States v. Sanders, 547 F.2d 1037, 1043 (8th Cir.1976). In Sanders, the court noted that the word "undenied” strongly connotes "that somehow the defendant himself has failed to rebut a particular point of evidence and thus brings a prosecutor perilously close to invading the defendant's right of silence by disparaging his exercise of that right." Id. at 1042.