No. 1996 Sept. Term, 2009.
Kevin Mark WARREN v. STATE of Maryland.
Gregory W. Gardner (Paul B. DeWolfe, Public Defender, Baltimore, MD, Kenneth E. McPherson, Riverdale, MD, on the brief), for appellant. Daniel J. Jawor (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.
Panel: WRIGHT, MATRICCIANI, and WATTS, JJ.
This was appellant's second trial. Appellant's first trial was held from May 12, 2008, to May 22, 2008, and resulted in convictions on all counts. On September 4, 2008, the circuit court granted appellant's motion for a new trial.
The remaining convictions merged for sentencing.
I. Should the conviction below be reversed because the trial court allowed inadmissible testimonial hearsay evidence to impeach the Appellant?
II. Should the conviction below be reversed because the trial court admitted the Appellant's statements to law enforcement without a valid waiver of the Appellant's Miranda rights?
III. Should the conviction below be reversed because the State used numerous improper statements and arguments?
I. Whether the circuit court erred in finding that appellant voluntarily, knowingly, and intelligently waived his Miranda rights before speaking to law enforcement officers?
II. Whether the circuit court erred in allowing the prosecutor to cross-examine appellant about prior statements to other people, which appellant characterizes as “inadmissible testimonial hearsay”?
III. Whether the circuit court deprived appellant of the right to a fair trial by: (A) permitting incorrect testimony which was later corrected by a stipulation; and (B) allowing the prosecutor to cross-examine appellant regarding the invocation of the right to remain silent?
IV. Whether the circuit court erred in allowing the prosecutor to make alleged improper remarks during closing and rebuttal argument?
We answer all four questions in the negative and, therefore, affirm the judgments of conviction.
On September 17, 2007, appellant was indicted in connection with a robbery and shooting that occurred at Robinson Place in Waldorf, Maryland, that resulted in the death of Briona Porter, a thirteen-year-old girl.
Before I asked [appellant] any questions I read him his Miranda Rights and a right for his Prompt Presentation before a District Court Commissioner.
[PROSECUTOR:] Okay. Now, after you advised him of these rights, what, if anything did you ask him?
[PROSECUTOR:] Okay. Let me ask you this. Are you familiar with individuals under the influence of alcohol?
[PROSECUTOR:] All right. Did you have, did [appellant] appear to be under the influence of any alcohol?
[DETECTIVE ELLIOTT:] No sir, he did not.
[PROSECUTOR:] Did he appear to understand you?
[PROSECUTOR:] Okay. Can you continue with what happened after you advised [appellant] of his Miranda Rights and Right to Prompt Presentment?
[DETECTIVE ELLIOTT:] I asked [appellant] where he had been up to the week leading to where he was arrested. [Appellant] explained to me that he had seen his picture on the news Monday or Tuesday, the previous Monday or Tuesday, and that he was wanted for murder, and that he was visiting family.
[PROSECUTOR:] Okay. And what else?
[DETECTIVE ELLIOTT:] I questioned [appellant] specifically about the murder and the incident which occurred on Robinson Place. [Appellant] said that he was there on the scene when it occurred. First he said he was by himself, but then he said, no, he was with a person who he identified as Man and Deonte [sic]. And he explained to me that he was on Robinson Place in the area of what they call “the cut”. And while in “the cut” he observed an ice cream truck drive into Robinson Place, he heard a gunshot, everybody ran and he went to, who he identified as, Little Ray's house.
[PROSECUTOR:] Okay. What else occurred during this interview?
[DETECTIVE ELLIOTT:] I specifically asked [appellant] if he was responsible for this. He denied doing the shooting. And he was unable to provide or identify anyone that was responsible for the shooting.
[PROSECUTOR:] Okay. Anything else that you can recall?
[DETECTIVE ELLIOTT:] At one point during the interview I asked [appellant] to show me the palms of his hands. I asked him what he saw. [Appellant] told me, “fingerprints.” I explained to him, while showing him a picture of a metal cashbox, which was just inside the ice cream truck, the night the incident occurred. I asked him, “Do you realize the significance of your fingerprints on this cash metal box?” He replied to me that it didn't look like a metal box to him. As soon as the questioning stopped he didn't provide an explanation and I didn't question him any further about that issue.
[PROSECUTOR:] Okay. Did there come a time when he indicated that he didn't want to answer any more questions?
[DETECTIVE ELLIOTT:] I did not make any.
[PROSECUTOR:] What, if any threats did you make to him?
[DETECTIVE ELLIOT:] I did not make any threats.
[PROSECUTOR:] What, if any inducements did you make to him in order to get him to talk to you?
[DETECTIVE ELLIOT:] None at all.
[I] do find Det. Elliott's testimony to be credible. That he did in fact read [appellant] his Miranda Rights. He read from the card. He read both sides of the card; the Miranda Rights and also the Prompt Presentment Rights. That Det. Elliott stated that he asked the defendant if he understood his rights and he responded, “yes.” Det. Elliott also described how [appellant] did not appear to under [sic] the influence of drugs or alcohol, he appeared to understand his questions when being asked and [appellant] proceeded to give some statements. I find that those statementswere voluntary and that the State has met its burden on that.
I do find, however that when [appellant] stated, ‘I don't want to talk any more,’ or something to the effect, ‘I'm done talking,’ at that point that was his invocation of his right to remain silent and any statements made thereafter, I believe would have required probably a re-Mirandaization or some safeguard. But at this point I find that that was a full invocation of his right to remain silent and anything elicited after this is suppressed.
At trial, as a witness for the State, Charlene Woodland testified that she owned and operated an ice cream truck as a business to help raise money to send her daughter to college. Woodland testified that, as of June 29, 2007, she had not yet operated the truck for ice cream sales during 2007. According to Woodland, that night, after getting the truck's generator fixed, she took the ice cream truck for a “test drive” and ended up at Robinson Place. Woodland's thirteen-year-old daughter, Briona, and Woodland's friend, Tanya Butler, accompanied her in the rear of the truck. Woodland testified that she stopped her ice cream truck at the end of Robinson Place to adjust her side mirrors. According to Woodland, she went in the back of the truck and saw a man, whom she identified at trial as appellant, with a gun in the window. Woodland testified that Butler said they were being robbed and told her to get the money box. Woodland retrieved the money box, shoved it at appellant, ran back to the driver's seat, and started driving away. Woodland testified that she heard gunshots, and that Briona screamed “mommy, he hit me.” Woodland continued driving until she saw a law enforcement officer, who came to her assistance. Briona was taken from the scene by medical personnel and Woodland testified that this was the last time she saw Briona alive.
[APPELLANT'S COUNSEL]: Well, Ms. Woodland, isn't it true that you never told anyone that you could recognize the man who shot your daughter?
[WOODLAND]: It's not true. I told the State.
[APPELLANT'S COUNSEL]: You're saying you told one of the State's Attorneys?
[APPELLANT'S COUNSEL]: You actually ... you didn't tell the State's Attorney until after the first trial had already started?
[APPELLANT'S COUNSEL]: Can we approach, Your Honor?
[APPELLANT'S COUNSEL]: Ms. Woodland, you're telling us that you told [the prosecutor] that you could recognize the person who shot your daughter, is that correct?
[WOODLAND]: I told him yes I could tell him who it was. The same person who I saw June 29th.
[APPELLANT'S COUNSEL]: So, the time you first said that you thought you could recognize the person who shot your daughter was some time when you were in this courthouse, but you were not inside this courtroom?
[WOODLAND]: That was not the first time. The first time I could identify him was the night he had the gun in my face. That's when I could identify him. I will never forget that face.
The State and the Defense have agreed that on May 13th, 2008, the day after the jury trial started in the first trial of this matter, Charlene Woodland, while located in the State's Attorney in this courthouse [sic] for the first time said that she would be able to identify the individual responsible for the alleged robbery and shooting involving her ice cream truck on June 29th, 2007. These facts are not in dispute and should be considered proven.
As a witness for the State, Deante Duckett testified that, on June 29, 2007, he was near Robinson Place drinking alcohol with appellant, who was wearing a black and red Chicago Bulls baseball cap. According to Duckett, appellant went to an ice cream truck, bought a bag of potato chips, and went back to the truck. Duckett testified that he saw appellant sticking a gun into the truck and asking for money. Duckett testified he saw the truck accelerate and then heard gunshots.
Kevin Wise, appellant's father, testified as a witness for the State, that on July 1, 2007, he saw his son in Washington D.C. Appellant advised Wise that he was being accused of killing a child and was going to go to Charles County to turn himself in.
In his own defense, appellant testified that on June 29, 2007, he went to Robinson place to sell drugs. Appellant testified that he had been wearing a black and red Chicago Bulls hat. According to appellant, five other people, including Duckett, were present and were drinking with him. Appellant testified that he saw a truck coming up Robinson Place and thought that it was law enforcement. Appellant testified that he went to Oakley Drive and then heard gunshots coming from Robinson Place.
[PROSECUTOR]: You don't remember having a conversation with Man, William Smothers, over in the jail about this incident?
[PROSECUTOR]: Remember telling him how you stuck the gun up in there and started shooting in the ice cream truck?
[APPELLANT]: I never told him nothing like that, sir.
[PROSECUTOR]: Okay. That's what you say today, but that's not what you told Detective Elliott, is it?
[APPELLANT]: That's what I told him back then when he ... when he questioned me.
[PROSECUTOR]: That you were on Oakley when the shots were fired?
[PROSECUTOR]: You didn't tell him you were on Robinson Place?
[PROSECUTOR]: Now, you told Detective Elliott you didn't know you were wanted until Monday or Tuesday, which would have been ... let's see, the 29th was a Friday, right?
[PROSECUTOR]: Okay. And, the 30th was Saturday. And, July 1st, that's when you went down to your father's house, right?
[PROSECUTOR]: Said you didn't know you were wanted until Monday or Tuesday, right?
[APPELLANT]: No, I told him Sunday morning.
[PROSECUTOR]: Told him you knew you were wanted Sunday morning?
[PROSECUTOR]: Okay. But, now that's not what your father said earlier, was it?
[APPELLANT]: I don't know what he said.
[PROSECUTOR]: Well, you were sitting right there when he testified.
[PROSECUTOR]: Alright. Now, you said you were there by yourself to Detective Elliott first, right? And, then you quickly changed up and said, no, I wasn't out there by myself?
[PROSECUTOR]: You didn't say that?
[PROSECUTOR]: And, you said I ... it don't even look like a metal box to me, right? Right?
[APPELLANT]: I said something like that.
[PROSECUTOR]: Okay. And, it's at that point when he presses you on the fingerprints and you say I don't want to answer any more questions, right?
[PROSECUTOR]: So, you didn't say I don't want to answer any more questions or I don't want a lawyer or any of that stuff until he puts this picture in front of your face and tells you the significance of the fingerprints, right?
[PROSECUTOR]: You don't know Jonathan Marshall over in the jail?
[PROSECUTOR]: Okay. Don't even ... never talked to him over there?
[APPELLANT]: No, sir. Never heard of him.
[PROSECUTOR]: Never heard of him? You never told ... you never said anything to him about I had to try my hand; you know me; you know how I get it, right? Talking about this murder, right?
[PROSECUTOR]: Okay. Didn't say I had to put that joint up in there? Didn't say that, right?
[PROSECUTOR]: You weren't doing any bragging over there in the jail about shooting this girl, were you?
[PROSECUTOR]: No. Okay. Not at all, right?
[PROSECUTOR]: And, you didn't try to get Frank Leopard to lie on Deante Duckett for you, did you?
[PROSECUTOR]: I mean, you know who Frank Leopard is now, right?
[PROSECUTOR]: Okay. Do you remember Frank Leopard ... you ... you told him that the person ... you wanted him to come to your trial and testify that the person that tried to rob him was Deante Duckett and he had a silver nickel plated gun, right?
[PROSECUTOR]: Okay. You never told Frank Leopard that?
[PROSECUTOR]: Okay. Now, and I suppose you never told Daryl Duckett when you talked to him that you messed ... messed up by doing this, did you?
[APPELLANT]: I never talked to Daryl Duckett.
[PROSECUTOR]: Never talked to Daryl Duckett either. Alright.
[APPELLANT'S COUNSEL]: Object to commentary.
[PROSECUTOR]: [Appellant], Deante Duckett didn't shoot this girl, did he?
[PROSECUTOR]: Certainly can't say that he did, can you?
[PROSECUTOR]: Okay. Because, I mean, if he had told you in your house the next day, man, I shot this girl. What do I do? You certainly would sit up here and tell us, wouldn't you?
[PROSECUTOR]: Right? Matter of fact, this is the first time you've ever said anything publically to anybody about this meeting you had with Deante Duckett the next day, right?
[PROSECUTOR]: I'll rephrase, Your Honor. Didn't you tell Detective Elliott about this Deante Duckett discussion, did you?
[APPELLANT]: Yes, I told him.
[PROSECUTOR]: You told him ... okay. Okay. So, you told Detective Elliott that Deante Duckett came to your house the next day?
[PROSECUTOR]: And, told you that they're saying that we did something?
[PROSECUTOR]: That we shot this girl in this ice cream truck?
[PROSECUTOR]: So, you told Detective Elliott that and everything else you said here today?
[PROSECUTOR]: Now, did you tell Detective Elliott about Deante as far as how he appeared that night?
The defendant is presumed to be innocent of the charges. This presumption remains with the defendant throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The defendant is not required to prove his innocence.
The following things are not evidence and you should not give them any weight or consideration: ... questions and objections of counsel.... You must disregard questions that I did not permit the witness to answer and you must not speculate as to the possible answers.
Opening statements and closing arguments of the lawyers are not evidence in this case. They are intended only to help you to understand the evidence and to apply the law. Therefore, if your memory of the evidence differs from anything the lawyers or I may say, you must rely on your own memory of the evidence.
You also heard from Charlene Woodland. And, what does she say, ladies and gentlemen, when she comes back she sees [appellant] pointing a gun in her face. And, she told you that she will never forget that face of the man who is pointing a gun at her. And, ladies and gentlemen, that makes sense. She is not going to forget the face of the man who killed her only child. She saw him under the same lights that Tanya Butler saw him. You can judge their credibility, but they were not mistaken, ladies and gentlemen.
Appellant did not object during the State's closing argument.
Ladies and gentlemen, I don't think you should be convinced that a robbery occurred as they said it occurred. Now remember, the Judge instructed you that the defense is presumed innocent and we don't have to prove anything. You don't have to find beyond a reasonable doubt that Deante Duckett did it ... to find [appellant] not guilty. And, you don't have to find beyond a reasonable doubt that these two women's [Woodland's and Butler's] stories are not the truth, the whole truth and nothing but the truth in order to find [appellant] not guilty.
Now, that doesn't mean they weren't robbed. I just said to you that I don't ... I can't believe beyond a reasonable doubt that they [Woodland and Butler] were robbed, but rather none of us should because they're not telling the truth, the whole truth. They ... they go over there and they say that they stopped to fix the mirrors. Why aren't Charlene Woodland's fingerprints on the mirrors?
And, if you had expert testimony that would help you know the likelihood ... the probabilities then you could put some value to that evidence. They don't mind coming in here and telling you it's one in 6.6 million chances that it is [appellant]'s DNA on that bottle. But, they can't tell you the probability of someone shooting a gun at a moving target and hitting the very same hole.
I sit there and listen to [appellant's counsel]'s arguments and the first thing that comes up to me is unbelievable that he can actually stand there and say the things that he did like this is no robbery; can't believe it.
A lot of sound and fury. I'm sure you've heard that phrase before. Well, that's actually a quote. It's from Shakespeare, from Macbeth, and the full quote is: It is a tale ... and I'm quoting now ... it is a tale told by an idiot full of sound and fury signifying nothing. That's what the entire argument told by [appellant's counsel] was. Didn't mean a thing. Means nada. Nothing. Not a dag on thing.
He stood up here in front of you on several occasions and said that if the forensic evidence ... if this fingerprint doesn't show this, this fingerprint doesn't show that you have to find [appellant] not guilty.
It is a red herring, ladies and gentlemen. And, quite frankly, that's what [appellant's counsel's] argument was all full of ... red herrings.
[I]s there anybody in this case who is more desperate to get this right than Tanya Butler and Charlene Woodland? Please tell me you understand the mother of the thirteen year old child ... their only child ... wants to see it done right. Do you think they're going to be led around by the nose and put it on anybody that the police want to select as [appellant's counsel] wants you to believe? Do you think they're going to engage in essentially a conspiracy? Because that's what he is talking about. Okay? That's what he has come up with. Not only conspiracy with the witnesses, but with me the State, all the police. Do you think they're going to willingly, voluntarily walk in here and say that guy did it if he didn't? Motive to tell the truth. Because if that ain't the right guy then they're letting poor Briona lay there without any justice and they're a party to it. That's motive to tell the truth, ladies and gentlemen. That's a lot of motive.
And, speaking of hats, where is [appellant]'s hat? He doesn't have any burden whatsoever putting the evidence on whatsoever. But, he got up there and said, hey, I had a black hat on with red, this that and the other. Same scrutiny as every other witness. He wants to be believed. Where is the hat? We don't have it. Wasn't out there on the scene. He was on the run for five, six, seven days, whatever it is. Shoot, he could have had him [sic] momma buy a hat like he described and bring in here. We wouldn't have known the difference. No hat. Could have had a black hat on just like they said ... like Deante [Duckett] said.
[H]ow in the world does Roy Irby [who, as a witness for the State, testified that appellant told Irby in jail that appellant robbed the ice cream truck] know that the gun shots ... the bullets went into the back of this truck? Remember he testified to that? I hope you caught it. I said, where did [appellant] tell you he was standing in location to the truck when he shot it? He said, he was in the back in the rear. How does he know that? That's not in any police report anywhere. Excuse me. I misspoke. Certainly in a police report. It's not in any press anywhere. How is anybody going to know ... how is anybody going to know that?
And, let me say something else to you because it was kind of interesting. When we were selecting the jury here somebody talked about, you know, when you talk about a child being killed around an ice cream truck I think the immediate vision everybody gets is, you know, five or six kids are hanging around the ... the ice cream truck buying ice cream. Right? And, somebody starts popping off rounds. You know, it could happen any way, right?
My point is is [sic] that Roy Irby has the factual scenario correct. And, that struck me, actually, during the selection of this jury because one of the people who is not in the jury said, well, you know, with a whole bunch of kids around the ... around the ice cream truck, you know, why in the heck would somebody start firing? And, it just struck me that, you know, yeah, this could happen any way.
But, it doesn't just happen any way. It happens the way Roy Irby said it happened. It happened the way that Deante Duckett said it happened. But, how does Roy get it right unless [appellant] told him? Unless he told him, and he did tell him.
[Appellant's counsel is] up here railing against the DNA ... railing against the DNA, and puts his client up on the stand and says, hey, yeah, I was drinking out of a bottle. It's all a red herring. It signifies nothing. It's a whole bunch of sound and fury on the DNA and Deante Duckett.
You've got an eyewitness to the crime [Deante Duckett] who could not have committed the crime. You have two other witnesses [Woodland and Butler] who say, yeah, that's the guy ... under oath; here in court, two people ... two people who you cannot disbelieve because more than anybody ... more than you they want to get it right.
Don't let [appellant's counsel] obfuscate, confuse, and bring up all these red herrings to distract you from the real truth here ... the truth that this evidencehas borne out ... that's [appellant] killed Briona Porter; tried to kill them. Three eyewitnesses right there at that window at that time. All that other noise, all that sound and fury means nothing.
Appellant did not lodge any objections to the above comments made during the State's rebuttal closing argument.
Appellant argues that the circuit court erred in admitting statements he made to law enforcement officers concerning his actions on the night of June 29, 2007. Specifically, appellant contends that the circuit court erred in holding that the State met its burden in proving that he waived his Miranda rights during a custodial interrogation.
[W]e view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion, here, the State. We defer to the motions court's factual findings and uphold them unless they are shown to be clearly erroneous. We, however,make our own independent constitutional appraisal, by reviewing the relevant law and applying it to the facts and circumstances of this case.
The trial court's determination regarding whether a confession was made voluntarily is a mixed question of law and fact. As such, we undertake a de novo review of the trial judge's ultimate determination on the issue of voluntariness. Our review of the Circuit Court's denial of Appellant's motion to suppress is limited to the record of the suppression hearing.
(Most citations and internal quotation marks omitted).
In undertaking to prove a waiver of Miranda rights, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. The heavy burden shouldered by the State is only proof by a preponderance of the evidence. The question whether an accused waived Miranda rights is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.
It is well established that Miranda stands for the requirement that, before police may interrogate a person in custody, the police must advise the person that any statement he or she makes can be used against him in a court of law, so as to protect him from compelled self-incrimination. The person in custody may waive his Miranda rights if the waiver is voluntarily, knowingly, and intelligently made, and the determination of whether the waiver of an accused has been made knowingly and voluntarily is by a review of the totality of the circumstances.
(Citations and internal quotation marks omitted) (most omissions and alterations in original).
Id. at 56, 807 A.2d 732.
In Berghuis v. Thompkins, ––– U.S. ––––, 130 S.Ct. 2250, 2262, 176 L.Ed.2d 1098 (2010), the Supreme Court stated: “Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent.” In Berghuis, the Supreme Court held that the defendant knowingly and voluntarily waived his Miranda rights even though the defendant declined to sign a waiver and there was “conflicting evidence” of whether the defendant “verbally confirmed that he understood the rights listed on the form.” Id. at 2256. The defendant was “[l]argely silent” during the interrogation before he responded “yes” to the question: “Do you pray to God to forgive you for shooting that boy down?” Id. at 2256–57. The Supreme Court noted that: (1) “there [was] no contention that [the defendant] did not understand his rights; and from this it follows that he knew what he gave up when he spoke”; (2) the defendant's “answer to [the detective]'s question ... is a ‘course of conduct indicating waiver’ of the right to remain silent”; and (3) “there [was] no evidence that [the defendant]'s statement was coerced.” Id. at 2262–63 (citations omitted); see also North Carolina v. Butler, 441 U.S. 369, 370–71, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (The Supreme Court held that the defendant waived his Miranda rights when law enforcement officers informed the defendant of his Miranda rights and the defendant replied: “I will talk to you but I am not signing any form.”).
Given the testimony as to Detective Elliott's verbatim Miranda reading and appellant's response of “yes,” at the motion hearing, the State demonstrated that a Miranda warning was given and that it was understood by appellant. As in Berghuis, 130 S.Ct. at 2262, appellant's “uncoerced statement establishe[d] an implied waiver of the right to remain silent.” For the reasons discussed above, we conclude that the circuit court properly found that appellant knowingly, voluntarily, and intelligently waived his Miranda rights.
The circuit court properly granted, in part, appellant's motion to suppress as to any statements made after appellant indicated “that he didn't want to answer any more questions.” As the Court of Appeals recently discussed in Phillips v. State, ––– Md. ––––, ––– A.3d ––––, No. 58, September Term 2011, slip op. at 15–16 (filed March 16, 2012), when a defendant waives his Miranda rights, and then subsequently invokes his right to counsel or to remain silent, no further impermissible continuing interrogation may occur.
Appellant contends that the circuit court erred in allowing the State to cross-examine him about statements he allegedly made before trial, admitting to the crimes that took place on June 29, 2007. Appellant argues that “the State used inadmissible hearsay declarations from unavailable witnesses in an attempt to impeach” him. Appellant maintains that the line of questioning by the State contained two levels of hearsay—the first level being appellant's alleged confession to out-of-court declarants and the second level being the communicationby the out-of-court declarants to State investigators to convey the alleged confession. Appellant argues that this error violated his right to cross-examine the witnesses against him.
In his brief before this Court, appellant failed to identify any alleged “inadmissible hearsay declarations.” In its brief, the State discussed what it believed appellant contended to be the “inadmissible hearsay declarations.” It was not until appellant filed a Reply Brief in this Court, that he confirmed that the State correctly identified the allegedly objectionable line of questioning.
In contrast, the State maintains that the circuit court properly permitted the prosecutor to ask appellant whether he had confessed committing the crime to others. The State argues that “[a]sking a witness, and particularly the accused, to deny his or her own prior statement is a quintessential form of proper impeachment.” The State contends that there was no error as the prosecution impeached appellant with his own prior statements, rather than the statements of another.
The Committee Note to Maryland Rule 5–802.1 provides: “This Rule does not affect the admissibility of prior inconsistent statements for impeachment purposes.” (Emphasis added).
(b) Extrinsic evidence of prior inconsistent statement of witness. Unless the interests of justice require, extrinsic evidence of a prior inconsistent statement by a witness is not admissible under this Rule (1) until the requirements of section (a) have been met and the witness has failed to admit having made the statement and (2) unless the statement concerns a non-collateral matter.
(1) Extrinsic evidence of prior inconsistent statements may be admitted as provided in Rule 5–613(b).
In the present case, the witness was informed of the time and place that the statement was made, the individual to whom it was made, and the substance of the statement. The State laid the proper foundation to impeach the witness with the prior inconsistent statement and we perceive no error. Contrary to appellant's contention, it was not incumbent upon the State to have Bernie Smith testify at trial regarding the alleged statements that Adolph Smallwood [the witness] made. There is no requirement that the State must introduce extrinsic evidence of the prior inconsistent statement after the witness denies having made the statement. Joseph F. Murphy, Jr., Maryland Evidence Handbook, § 1302(F)(2) at 677 (1989).
Snyder, 104 Md.App. at 560, 657 A.2d 342.
For example, in Bell, the following “would it surprise questions” were asked of the defendant: (1) “Would it surprise you that Joey Buckler said that you yelled out ... to that car, ‘F[ ] you p [ ]?’ ”; (2) “Would it surprise you that Joey Buckler said in his written statement ‘They are coming. The car is coming?’ ”; (3) “Would it surprise you that no where [sic] does Joey Buckler say anything about a robbery—... In his written statement. Does it surprise you that Joey Buckler never says anything about a robbery in his written statement?”; and (4) “[W]ould it surprise you in his written statement Joey Buckler says you said, ‘We all are the only ones who know about it. And if this gets out, you guys will get it?’ ” 114 Md.App. at 488–89, 691 A.2d 233.
In rendering our holding, this Court found objectionable the questions: (1) “Would it surprise you that Joey Buckler said you yelled out—” and (2) “Would it surprise you that nowhere does Joey Buckler say anything about a robbery.” Bell, 114 Md.App. at 498–99, 691 A.2d 233.
Additionally, prior inconsistent statements of the witness may be examined with a view towards challenging the witness's veracity. Maryland Rules 5–613; 5–616. Moreover, Maryland Rule 5–616 permits, inter alia, impeachment by questioning of the witness directed toward “proving that the facts are not as testified to by the witness” or by showing bias, prejudice, motive to testify falsely, or lack of knowledge. In appropriate circumstances, extrinsic evidence may also be introduced to impeach the witness's credibility. Maryland Rule 5–616(b). “Evidence proved through another witness ... is extrinsic evidence. The admissibility of extrinsic evidence which is offered for substantive purposes is governed by all the usual rules of evidence: no special rule applies when the evidence has the incidental effect of discrediting a witness' testimony.” McLain, supra, § 607.4, at 50. Yet the State has not referred us to any authority to support its claim that it was entitled to impeach the defendant with the hearsay statement of a material eyewitness who was not present at trial, whose unavailability was not established, and whose oral statement was neither tested in another proceeding, proffered as a sworn statement, nor adopted by the declarant.
Id. at 497, 691 A.2d 233 (omission in original).
Statements that are otherwise inadmissible are not salvaged by invoking the mantra of “impeachment.” If the State could not properly use the statement under the applicable rules of evidence, we fail to see how it could, instead, read the statement to the jury, apparently line by line, through the questions it posed to the defendant.
Unquestionably, a party may attempt to impeach a witness by challenging his or her credibility.... But impeachment must be consistent with the common law and the rules of evidence.
Id. at 496–97, 691 A.2d at 241. (Internal citation omitted).
Under the Federal Rules of Evidence, a party may attempt to impeach a witness through evidence of character or conduct, of conviction of a crime, or of prior inconsistent statements. SeeFed.R.Evid. 608, 609, 613. “[W]itnesses are not impeached by prior inconsistent statements of other witnesses, but by their own prior inconsistent statements.” United States v. Tarantino, 846 F.2d 1384, 1416, 269 U.S.App.D.C. 398 (D.C.Cir.1988).
United States v. Wilson, 720 F.Supp.2d 51, 66 (D.D.C.2010).
Sweetney, 423 Md. at 624–25, 33 A.3d 435 (emphasis added).
Returning to the instant case, we perceive no error in the prosecutor's questions. Other than the prior testimony of Wise —who testified at trial and whom appellant cross-examined—the only statements about which the prosecutor questioned appellant were inculpatory statements appellant allegedly made to Smothers and Marshall while in jail. Appellant contends that the circuit court erred in overruling his objection to the prosecutor's questions: “Remember telling [Smothers] how you stuck the gun up in there and started shooting in the ice cream truck?” and “You don't know Jonathan Marshall over in the jail? ... you never said anything to him about I had to try my hand; you know me; you know how I get it, right? Talking about this murder, right?” By these questions, however, the prosecutor was attempting to elicit a prior inconsistent statement from appellant, using the process set forth in Rule 5–613(a). As it turned out, appellant denied making any such statements to Smothers or Marshall, so the prosecutor did not elicit a prior inconsistent statement from him.
Appellant lodged an objection only to the prosecutor's questions regarding his prior statements to Smothers and Marshall, and has failed to ask this Court for plain error review. Maryland Rule 4–323(a) provides: “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.” Maryland Rule 8–131(a) provides: “Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]” Reviewing an unpreserved issue is even more tenuous when the defendant fails to object at trial, and then, on appeal, fails to acknowledge the lack of objection or ask this Court to review for plain error. See Garner v. State, 183 Md.App. 122, 151–52, 960 A.2d 649 (2008), aff'd, 414 Md. 372, 995 A.2d 694 (2010) ( “In that the appellant, strangely, does not even ask us to overlook non-preservation, this contention may qualify as an instance of non-preservation squared.”).
Maryland Rule 5–616(a)(1) explicitly allows a party to impeach a witness with that witness's prior inconsistent statements. Appellant's contention that “the State used inadmissible hearsay declarations from unavailable witnesses in an attempt to impeach” him is without merit, as the prosecutor only questioned appellant as to any out-of-court statements he might have made to Smothers or Marshall. Appellant urges that the prosecution not be able to question a defendant about out-of-court statements the defendant allegedly made to a third party, unless the prosecution calls that third party at trial-whether the third party be a law enforcement officer, a witness, or any other person. Appellant contends that the State having gained knowledge of appellant's statements derivatively, via a third party, renders the statements hearsay.
At oral argument, the State argued, in essence, that Maryland Rule 5–616 contemplates the use of a defendant's own prior inconsistent statements acquired by the prosecution from third parties to whom a defendant has made statements concerning a crime. We agree. To adopt appellant's contention would limit the prosecution to impeaching defendants, pursuant to Maryland Rule 5–616(a)(1), only with prior inconsistent statements defendants made to third parties when the third parties are called to testify at trial and the prior inconsistent statements are proven extrinsically, as opposed to intrinsically. This would abrogate the very basis and purpose of Maryland Rules 5–613(a) and 5–616, that is-to permit a party to examine a witness about an oral statement if the content and circumstances under which the statement is made, including the person to whom it was made, are disclosed, to attempt to elicit the statement directly from the witness himself.
In this case, the State questioned appellant concerning prior statements appellant allegedly made to Smothers and Marshall. Appellant was given an opportunity to admit, deny, or explain the statements. He denied making them. Thereafter, the State was permitted—although not required—to prove the statements through extrinsic evidence as contemplated by Maryland Rules 5–613 and 5–616. Here, the State chose to accept appellant's response and not call Smothers and Marshall to the stand as witnesses. That was proper and the State's choice to make. The result of that choice was that no prior inconsistent statement by appellant was proven, either intrinsically (through him) or extrinsically (through Smothers or Marshall). The circuit court did not err by permitting cross-examination of appellant as to his alleged out-of-court statements made to third parties.
We find no merit in appellant's contention that Bell is dispositive because the prosecutor in Bell, in the midst of asking a series of “would it surprise you questions,” asked: “How about this one that when you get back to the house, Cory Tart's house, after you have shot Chris and Bryan Maxwell you say ‘Those b[ ] aren't going to be calling us b[ ] anymore?’ ” Id. at 489, 691 A.2d 233. The argument is unpersuasive as the error found by this Court in Bell concerned the use of the “would it surprise you” questions. In Bell, we identified the use of Buckler's out-of-court statements to cross-examine Bell as the impermissible form of questioning, not the question regarding Bell's out-of-court statement to Tart. Id. at 497, 691 A.2d 233. Nowhere in this Court's analysis in Bell, did we determine that the State is precluded from asking a defendant in a criminal case whether he made out-of-court inculpatory statements that a third party claims he made. It is axiomatic that the State will learn of the defendant's alleged out-of-court statements from other people. We shall not hold that where the defendant is confronted with his own alleged out-of-court inculpatory statements, which the State learned of from a third party, the State must call the third party as a witness at trial to establish that the out-of-court statements were made. If the defendant denies making the statements, and the third party is not called as a witness, the State is bound by that testimony, in that no prior inconsistent statement is proven through the defendant. If, however, the State wants to pursue calling the third party to testify that the defendant made the statement to him, the State can do so. It is not required to do so, however.
There has been no contention in this case that the prosecutor lacked a good faith belief in the factual predicate for the questions as to Smothers and Marshall. See Elmer v. State, 353 Md. 1, 14–15, 724 A.2d 625 (1999) (The Court of Appeals held that the trial court improperly permitted a prosecutor's questions because “the prosecutor's questions [to a co-defendant] suggested the existence of facts which he could not prove, and indeed, after [a] bench conference, he knew he could not prove.... [T]he prosecutor lacked a good faith belief in the factual predicate implied in the question.”); Walker v. State, 373 Md. 360, 400–01, 818 A.2d 1078 (2003) (Where the prosecutor made improper assertions of personal knowledge on examination of her own witness and the defendant objected, the Court of Appeals, quoting Elmer, stated that “a prosecutor may not ask a question ‘which implies a factual predicate which the examiner knows he cannot support by evidence....’ ”) (Quoting Elmer, 353 Md. at 13, 724 A.2d 625 (quoting United States v. Elizondo, 920 F.2d 1308, 1313 (7th Cir.1990))). Nothing in this opinion encroaches upon the Court of Appeals's holdings in Elmer and Walker.
In Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the Supreme Court explained that “it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment[.] The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” (Citations omitted).
We find no merit in appellant's allegation that the State relied on perjured testimony to secure the conviction. Rather than ever suggesting that Woodland committed perjury, the circuit court found that Woodland was simply “confused.” As mandated by Napue, 360 U.S. at 269, 79 S.Ct. 1173, the circuit court did not “allow[ false testimony] to go uncorrected”; instead, the circuit court corrected any error by reading a stipulation that appellant's first trial was the first time that Woodland said that she was able to identify appellant. We, therefore, conclude that the State did not use “perjured” testimony and that the circuit court properly corrected the testimony.
In contrast, the State responds that appellant was confronted during custodial interrogation with this direct accusation long before he invoked the right to remain silent, i.e. that the Detective asked appellant what occurred with Duckett well prior to his invocation of the right to remain silent.
In Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court explained that “the Fifth Amendment ... forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.” In Griffin, the Supreme Court reversed where the prosecutor argued in closing that the victim “is dead, she can't tell you her side of the story. The defendant won't.” Id. at 611–12, 85 S.Ct. 1229.
In Marshall v. State, 415 Md. 248, 261, 999 A.2d 1029 (2010), the Court of Appeals stated that “the federal constitutional right against compelled self-incrimination prohibits prosecutorial comment on the accused's silence or failure to testify.” (Quoting Smith v. State, 367 Md. 348, 353, 787 A.2d 152 (2001)). The Court held that the prosecutor improperly argued in closing: “There are several pieces we don't have. We don't have [the defendant]'s thoughts [.]” Marshall, 415 Md. at 256–57, 999 A.2d 1029 (emphasis in original). Similarly, in Smith, 367 Md. at 352, 358, 787 A.2d 152, the Court of Appeals held that the prosecutor improperly argued in closing: “ What explanation has been given to us by the defendant for having the leather goods? Zero, none.” (Emphasis in original).
Returning to the instant case, we conclude that the issue is not preserved for appeal. The prosecutor cross-examined appellant about whether he had previously mentioned his meeting with Duckett. Appellant's counsel objected prior to a response being given to the question and the State rephrased the question to ask whether appellant told Detective Elliott about his meeting with Duckett, and, notably, appellant's counsel did not object. Appellant responded: “Yes, I told him.” As with the hearsay issue discussed above, appellant fails either to acknowledge that appellant's counsel did not object or to ask this Court to review for plain error. Thus, this is a yet another instance of “non-preservation squared.” Garner, 183 Md.App. at 152, 960 A.2d 649.
Alternatively, we are satisfied that the prosecutor's questions did not constitute an impermissible reference to appellant's right to remain silent. Appellant never answered the original question to which appellant's counsel lodged an objection. The circuit court properly instructed the jury that questions are not evidence, and that the jury could not speculate about possible answers. The circuit court allowed the prosecutor to rephrase the question and appellant's counsel offered no further objection. In response to the rephrased question, appellant responded that he had told Detective Elliott about Duckett. Thus, the testimony was not that appellant invoked his right to remain silent. Although the prosecutor asked whether appellant had previously spoken publicly about Duckett's alleged part in the offense or told Detective Elliott of Duckett's role, appellant failed to establish that the questions: (1) occurred after his request for an attorney, or (2) that in response to the questions, appellant invoked the right to remain silent. For the reasons stated above, we assign no error to the questions.
Appellant argues that the circuit court erred in allowing the prosecutor to make improper remarks during closing argument and rebuttal closing argument.
As to summation, it is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range. Counsel is free to use the testimony most favorable to his side of the argument to the jury, and the evidence may be examined, collated, sifted and treated in his own way.... Generally, counsel has the right to make any comment or argument that is warranted by the evidence proved or inferences therefrom; the prosecuting attorney is as free to comment legitimately and to speak fully, although harshly, on the accused's action and conduct if the evidence supports his comments, as is accused's counsel to comment on the nature of the evidence and the character of witnesses which the prosecution produces.
(Citation omitted). “Further, counsel may indulge in oratorical conceit or flourish and in illustrations and metaphorical allusions.” McFadden, 197 Md.App. at 255, 13 A.3d 68 (citations and internal quotation marks omitted) (alteration in original).
The record reveals that appellant failed to lodge any objection whatsoever during the State's closing argument and failed to object to the comments at issue in this appeal during the State's rebuttal closing argument. As such, any issue as to the prosecutor's remarks is not preserved for appellate review. Md. Rule 8–131(a) (“Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court.”); Conner v. State, 34 Md.App. 124, 135, 366 A.2d 385 (1976) (“A failure to object [to a prosecutor's statements during closing arguments] and to request the Court's correction is a waiver of the contention for appellate review.”).
When assessing whether reversible error occurs when improper statements are made during closing argument, a reviewing court may consider several factors, including the severity of the remarks, the measures taken to cure any potential prejudice, and the weight of the evidence against the accused.
(Citing United States v. Melendez, 57 F.3d 238, 241 (2d Cir.1995)). In addition to the factors described above, appellate courts may consider whether a prosecutor's remark during closing arguments “was an isolated event that did not pervade the entire trial.” Spain, 386 Md. at 159, 872 A.2d 25 (citation omitted).
[T]he prosecutor represented to the jury that the two youthful witnesses, upon whom he relied to establish the connection between the defendants and the decedent, had no “criminal” records. That representation was true so far as it went. Malcolm, as we have seen, had a juvenile record, while Tracy, although charged with assault, had not, at the time the statement was made been convicted of any crime. Because the prosecutor's statement about the two youths was verisimilar, it was most certainly, under the circumstances of the instant case, deceiving to the jury. Moreover, characterization of the two witnesses as having lived “exemplary” lives was a gross misstatement of fact designed to evince the trustworthiness of the witnesses and thus bolster the State's circumstantial case.
The second point I wanted to make to you is that the Officer in this case—the Defense's argument is that Mr. Spain was outside his house. He was going to attend a Superbowl party and was buying beer. Part of what you have to determine is the credibility of the witnesses. The defense put on a witness who testified, and the State put on one witness, the Officer in this case. You have to weigh the credibility of each individual. Who has a motive to tell you the truth. The Officer in this case would have to engage in a lot of lying, in a lot of deception and a conspiracy of his own to come in here and tell you that what happened was not true. He would have to risk everything he has worked for. He would have to perjure himself on the stand.
The prosecutor's invitation for the jury to consider whether the officer had a motive to lie did not amount to improper vouching because the comments did not express any personal belief or assurance on the part of the prosecutor as to the credibility of the officer. Nor did such comments, in isolation, explicitly invoke the prestige or office of the State or the particular police department or unit involved.
More importantly, however, before jury deliberations began, the trial judge gave, among others, a jury instruction, based on Maryland Criminal Pattern Jury Instructions § 3:10, that emphasized the argumentative nature of closing arguments, and explicitly instructed the jurors as to relevant factors to consider and their roles as the sole judges of the credibility of the witnesses presented at trial. Maryland courts long have subscribed to the presumption that juries are able to follow the instructions given to them by the trial judge, particularly where the record reveals no overt act on the jury's part to the contrary.
Id. at 155–56, 160, 872 A.2d 25 (citations and internal quotation marks omitted).
In contrast, in Sivells v. State, 196 Md.App. 254, 275–76, 280, 9 A.3d 123 (2010), cert. dismissed, 421 Md. 659, 28 A.3d 704 (2011), this Court held that, over the defendant's objection, a prosecutor made improper remarks about the credibility of law enforcement officers, who were the only witnesses against the defendant. The prosecutor had argued in closing: “Especially two veterans who have a lot to loose [sic] by making things up, pensions, credibility, livelihood. Everything to loose [sic] and nothing to gain. Not one thing to gain by it.” Id. at 275, 9 A.3d 123. The prosecutor's remarks were improper because “there was no evidence to support the prosecutor's statement that the police would lose their pensions or their livelihood if they ‘made things up.’ ” Id. at 280, 9 A.3d 123.
In this case, the prosecutor's remarks—that Woodland “is not going to forget the face of the man who killed her only child,” that “you cannot disbelieve” Woodland and Butler, and that Woodland and Butler “want to get it right”—were not improper. The prosecutor based the remarks on facts in evidence: Woodland lost her daughter, and Butler lost a girl she considered a “niece.” Under the circumstances, the two eyewitnesses were likely to have stark, vivid memories of the event. This is commonsensical, and did not require “expert testimony” as appellant argued. The instant situation is unlike Sivells, 196 Md.App. at 280, 9 A.3d 123 a case in which the prosecutor argued a witness's credibility based on a fact not in evidence—that the law enforcement witness would lose his pension for lying on the stand.
Similarly, we conclude that the prosecutor's remark that the law enforcement witness would have had to “conspir[e] with the witnesses, [and] with me the State, all the police” was not improper. Again, the prosecutor made no mention of facts not in evidence and the remark was neither inflammatory nor depreciative of the defense.
In Lawson v. State, 389 Md. 570, 596, 886 A.2d 876 (2005), the Court of Appeals held that the State improperly shifted the burden to the defendant by arguing that the defendant had offered no evidence that the victim had a motive to lie. The error merited a new trial because “[t]he primary evidence in this case was provided directly or indirectly by the victim's statements [.]” Id.
I'm going to ask you not to speculate, not to speculate because that's what he's going to ask you, because the defense didn't produce a witness.
There's no evidence that the defendant was waiting for a bus. Where did you hear that? You heard that in [the defendant's counsel's] opening statement which the judge just told you is not any more evidence than mine.
Nobody got on the stand and testified to that.
(Emphasis omitted). We held that the comments were proper because “[t]he prosecutor's closing argument was drawing attention to the fact that defense counsel had failed to fulfill his prediction in opening statement as to what he would develop at trial.” Id. at 145, 751 A.2d 24.
In this case, it is apparent that the prosecutor's remark about appellant's hat did not improperly shift the burden of proof to appellant. Prior to closing arguments, the circuit court instructed the jury on the State's burden of proof, and the prosecutor prefaced his remarks with a reminder that appellant need not prove anything. Both appellant and Duckett testified that appellant had been wearing a Chicago Bulls hat on June 29, 2007. Given that appellant testified that he was wearing a Chicago Bulls hat at the scene on the night of the shooting, the prosecutor was entitled to bring up that the hat was neither found at the crime scene, nor in evidence at trial.
“[A]lthough the prosecutor did not say ‘this defendant’ is a monster and a child molester, it is clear that she intended to imply to the jury that he was that monster and child molester.” Id. at 599, 886 A.2d 876.
In this case, the prosecutor's remarks were aimed at validating Irby's testimony about appellant having admitted that he shot a moving ice cream truck. After hearing all of the testimony, the jury was fully aware that the situation that the prosecutor hypothesized-a stopped ice cream truck surrounded by children-was not the circumstance under which the offense took place. Under the circumstances in this case, we discern neither an appeal to the jury's fears nor unfair prejudice.
I sit there and listen to [appellant's counsel's] arguments and the first thing that comes up to me is unbelievable that he can actually stand there and say the things that he did like this is no robbery; can't believe it.
A lot of sound and fury. I'm sure you've heard that phrase before. Well, that's actually from a quote. It's from Shakespeare, from Macbeth, and the full quote is: It is a tale ... and I'm quoting now ... it is a tale told by an idiot full of sound and fury signifying nothing. That's what the entire argument by [appellant's counsel] was. Didn't mean a thing. Means nada. Nothing. Not a dag on thing.
At oral argument, appellant's counsel contended that the use of the term “idiot” denigrated the role of defense counsel and was inappropriate. To begin, we note that appellant's counsel failed to lodge any objection to this remark. Appellant's counsel's failure to object undermines the argument that this remark was utterly improper and offensive, and it also causes the issue to not be preserved for appellate review. As noted by Judge Charles E. Moylan, Jr., speaking for this Court, the purpose of objections “to preserve the issue for appellate review is not an arbitrary one. It is supported by a solid rationale. At the most basic level, it recognizes that appellate courts do not range forth, like knights errant, seeking flaws in trials. Their quest is far more modest. They monitor a trial for the limited purpose of seeing if the trial judge committed error.” Austin v. State, 90 Md.App. 254, 264–65, 600 A.2d 1142 (1992) (citations omitted).
During the State's rebuttal closing argument, the prosecutor stated: “I sit there and listen to [appellant's counsel's] arguments and the first thing that comes up to me is unbelievable that he can actually stand there and say the things that he did like this is no robbery.... A lot of sound and fury. I'm sure you've heard that phrase before. Well, that's actually from a quote .... the full quote is: It is a tale ... and I'm quoting now ... it is a tale told by an idiot full of sound and fury signifying nothing.” Whether a prosecutor has exceeded the limits of permissible comment depends upon the facts of each case. Spain, 386 Md. at 158, 872 A.2d 25. In this case, given the prosecutor's obvious attempt to rebut appellant's counsel's contention that no robbery occurred, we perceive no error warranting reversal.
In this case, having examined the severity of the alleged improper remarks and determined that the remarks in isolation do not warrant reversal, we conclude that the remarks by the prosecutor do not cumulatively rise to the level of prejudice requiring reversal. The prosecutor's remarks, whether taken individually or as a whole, were not so improper that they tainted the results of a trial in which there were three eyewitnesses against appellant-Woodland, Butler, and Deante Duckett—as well as the witness—Irby—who testified that appellant admitted shooting at the ice cream truck. As to the weight of the evidence against the accused, in our view, this was a strong case in which the evidence weighed heavily in the State's favor. This was not a close case, of the “he said, she said” variety that turned primarily on the credibility of one witness.
Any prejudicial effect of the State's remarks was diminished by the instructions given by the circuit court prior to closing argument, the number of witnesses, and the overall weight of the evidence against appellant. As in Spain, 386 Md. at 160, 872 A.2d 25, before closing arguments, the circuit court properly instructed the jury that closing arguments were not evidence. Consequently, upon balancing the factors identified in Spain, we are satisfied that the State's remarks in relation to the totality of the evidence did not rise to the level of having misled or influenced the jury to the prejudice of the defendant, and do not constitute plain error.
JUDGMENTS OF THE CIRCUIT COURT FOR CHARLES COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.


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If no employment contract is concluded between Limora Oldtimer GmbH & Co KG and the applicant, the application documents will be automatically deleted two months after notification of the rejection decision, provided that there are no other justified interests to the contrary. Other legitimate interest in this sense is, for example, a burden of proof in proceedings under the General Equal Treatment Act (AGG).
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Most of the cookies we use are so-called "session cookies". They are automatically deleted at the end of your visit. Other cookies remain stored on your terminal until you delete them. These cookies enable us to recognize your browser the next time you visit our website.
Cookies, which are necessary to carry out the electronic communication process or to provide certain functions desired by you (e.g. shopping basket function), are stored on the basis of Art. 6 para. 1 lit.f GDPR. The website operator has a legitimate interest in the storage of cookies for technically error-free and optimized provision of his services. As far as other cookies (e.g. cookies for the analysis of your surfing behaviour) are stored, these will be treated separately in this data protection declaration.
This table lists all cookies and describes what information they collect.
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An encrypted marker showing, what category of customer you are.
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Information on products you sent to friends.
These data are not combined with other data sources. The basis for data processing is Article 6 (1) lit. f GDPR, which permits the processing of data for the fulfilment of a contract or pre-contractual measures.
Since we do not process payments ourselves, we work together with the following partners.
We use the service provider Wirecard for payment processing.Wirecard CCE is an online payment service provider that enables payment by credit card.
The operating company of Wirecard CCE is Wirecard Central Eastern Europe GmbH, Reininghausstraße 13a,8020 Graz, Austria.
If the customer selects "credit card" as a payment option in our online shop during the order process, the customer is forwarded to a Wirecard CCE web form for payment processing, where he enters his credit card data and transfers them to Wirecard CCE for payment processing.
Credit card number, cardholder name, credit card expiry date, CVV number, IP address.
In addition the online shop automatically transmits these data to Wirecard CCE.
The purpose of data transmission is to process payments and prevent fraud. Limora Oldtimer GmbH & Co KG will transfer personal data to Wirecard CCE in particular if there is a legitimate interest in the transfer. Personal data exchanged between Wirecard CCE and Limora Oldtimer GmbH & Co KG may be transferred by Wirecard CCE to credit agencies. The purpose of this transmission is to verify identity and creditworthiness.
Wirecard CCE may pass on personal data to affiliated companies and service providers or subcontractors if this is necessary to fulfil contractual obligations or if the data is to be processed on behalf of Wirecard CCE.
The customer may revoke his consent to the handling of personal data vis-à-vis Wirecard CCE at any time. A revocation does not affect personal data which must be processed, used or transmitted for (contractual) payment processing.
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If the customer selects "Sofortüberweisung" as a payment option in our online shop during the order process, the data of the person concerned are automatically transferred to Sofortüberweisung. With a selection of this payment option, the person concerned consents to the transfer of personal data required for payment processing.
The data entered during registration will be processed on the basis of your consent Art. 6 (1) lit. a GDPR. You can revoke your consent at any time. All you need to do is send us an informal e-mail. The legality of the data processing already carried out remains unaffected by the revocation.
We collect, process and use personal data only to the extent necessary for the establishment, content design or change of the legal relationship (inventory data). This is done on the basis of Art. 6 (1) lit. b GDPR, which permits the processing of data for the fulfilment of a contract or pre-contractual measures. We collect, process and use personal data about the use of our Internet pages (usage data) only to the extent necessary to enable or invoice the user for the use of the service.
We have integrated the component Google Analytics (with anonymisation function) on this website. Google Analytics is a web analytics service. Web analysis is the collection, collection and evaluation of data on the behaviour of visitors to Internet sites. A web analysis service collects, among other things, data on the website from which a person concerned has accessed a website (so-called referrer), which subpages of the website have been accessed or how often and for how long a subpage has been viewed. A web analysis is mainly used to optimize a website and for cost-benefit analysis of Internet advertising.
We use the addition "_gat._anonymizeIp" for web analysis via Google Analytics. By means of this addition, Google shortens and anonymizes the IP address of the Internet connection of the person concerned when accessing our Internet pages from a member state of the European Union or from another state party to the Agreement on the European Economic Area.
The customer can prevent the setting of cookies by our website at any time, as already described above, by means of a corresponding setting of the Internet browser used and thus permanently object to the setting of cookies. Such a setting of the Internet browser used would also prevent Google from placing a cookie on the information technology system of the person concerned. In addition, a cookie already set by Google Analytics can be deleted at any time via the Internet browser or other software programs.
The summary of the data collected in your Google Account is based solely on your consent, which you can submit or revoke to Google (Art. 6 par. 1 lit. a GDPR). For data collection operations that are not merged into your Google Account (for example, because you do not have a Google Account or have opposed the merge), the collection of data is based on Article 6(1)f of the GDPR. The legitimate interest arises from the fact that the website operator has an interest in anonymous analysis of website visitors for advertising purposes.
Further information and the data protection regulations can be found in Google's data protection declaration at: https://www.google.com/policies/technologies/ads/.
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STATE OF CALIFORNIA, United States of America, et al.
This case arises out of Dugan v. Rank, 371 U.S. 609, 83 S.Ct. 999. As set out in our opinion in that case the original suit was instituted against certain local United States Reclamation Bureau officials and several Irrigation and Utility Districts by a number of claimants to water rights along the San Joaquin River below Friant Dam. Subsequently the United States, over its protest, was made a party and the petitioner here, the City of Fresno, intervened as a party plaintiff. Fresno sought, in addition to the injunctive relief requested by the other parties, a declaration as to (1) its water rights as an overlying owner, i.e., rights to underground water fed by the river; (2) its statutory priority, under California law, to the use of water for municipal or domestic purposes, Calif. Water Code, § 1460; (3) its prior right, under the California County of Origin and Watershed Acts, because of its location, Calif. Water Code, §§ 11460, 11463; and (4) its entitlement to project water from the United States at the same rate charged for water delivered for irrigation purposes. In the District Court Fresno prevailed on all points. In the Court of Appeals this judgment was set aside 'insofar as it relates to the terms upon which the City of Fresno is entitled to receive water from the United States at Friant Dam,' 293 F.2d 340, 360, because in establishing the rate at which water would be delivered the respondent officials were acting 'within the scope of their statutory authority and were carrying out the duties imposed upon them by their official positions. * * * The complaint of Fresno in this regard is a complaint against the United States and this dispute may not be entertained judicially without a waiver of sovereign immunity on the part of the United States.' Id., at 352. With regard to the claim that it enjoyed water rights superior to those of the United States, the Court of Appeals refused to decide, saying on rehearing that '(I)f and when such rights have been established in accordance with state law, Fresno may be able effectively to protest the impounding of waters by these defendants in contravention of such rights.' Id., at 360.
Our opinion in Dugan v. Rank, supra, controls the decision in this case. There we decided that the suit against the United States must fail for lack of consent; that the relief against the Reclamation Bureau officials must also fail as being in truth against the United States; that the United States had seized, in whole or in part, the water rights asserted by the claimants; and that their recourse was through a Tucker Act suit. 28 U.S.C. § 1346. The same is true here.
We agree entirely with the disposition of the Court of Appeals. Petitioner seems to say that § 8 of the Reclamation Act of 1902, 32 Stat. 390, 43 U.S.C. § 383, requires compliance with California statutes relating to preferential rights of counties and watersheds of origin and to the priority of domestic over irrigation uses. However, § 8 does not mean that state law may operate to prevent the United States from exercising the power of eminent domain to acquire the water rights of others. This was settled in Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958). Rather, the effect of § 8 in such a case is to leave to state law the definition of the property interests, if any, for which compensation must be made.
We also note that the County of Origin and Watershed Acts, upon which the city relies, do not grant the preference claimed. Under these statutes the area of preference is '* * * a watershed or area wherein water originates, or an area immediately adjacent thereto which can conveniently be supplied with water therefrom * * *.' Calif.Water Code, § 11460. The area of service from Friant Dam would include Kern and Tulare Counties as well as Fresno and Madera. (See map in Rank v. United States, D.C., 142 F.Supp. 1, at 40.) The preference under the Acts is not limited to that area closest to the stream, but extends beyond the watershed and to areas adjacent thereto which can 'conveniently be supplied with water therefrom,' which from the map would seem to include the Friant-Kern as well as the Madera Canal areas. Likewise, the claim as to the preference of water devoted to domestic uses is unfounded. Section 9(c) of the Reclamation Project Act of 1939, 53 Stat. 1194, as amended, 43 U.S.C. § 485h(c), provides: 'No contract relating to municipal water supply or miscellaneous purposes * * * shall be made unless, in the judgment of the Secretary (of the Interior), it will not impair the efficiency of the project for irrigation purposes.' In United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950), we were concerned with an issue regarding the nature of the Friant Dam unit of the Project and, contrary to petitioner's contention, concluded 'that Congress realistically elected to treat it as a reclamation project.' Id., at 739, 70 S.Ct. at 962. It therefore appears clear that Fresno has no preferential rights to contract for project water, but may receive it only if, in the Secretary's judgment, irrigation will not be adversely affected.
As to the rates charged for municipal water, this same § 9(c), supra, delegates authority and discretion to the Secretary of the Interior to fix rates covering irrigation as well as municipal water service. It provides that the yardstick for determining rates shall be such 'as in the Secretary's judgment will produce revenues at least sufficient to cover an appropriate share of the annual operation and maintenance cost and an appropriate share of such fixed charges as the Secretary deems proper * * *.' The Secretary exercised this discretion and so notified the Congress as to the basis for his determination of the appropriate charge for municipal water. Allocation of Costs and Feasibility Report of February 24, 1947, H.R.Doc. No. 146, 80th Cong., 1st Sess. 19; 1 Engle, Central Valley Project Doc. (1956), H.R.Doc. No. 416, 84th Cong., 2d Sess. 574, 594—596. This report estimated a rate of $10 per acre-foot for municipal water and about $3 per acrefoot foot or less for irrigation water. Id., at 594—596. The latter rate was based on farm benefits as well as the ability of the user to pay over a protracted period. It was estimated that this rate would return during the repayment period only about one-fourth of the project capital cost allocated to irrigation. Id., at 576—577, 597. As to municipal rates, the return during the same period was estimated at over three times the project capital cost allocated to the delivery of municipal water.* This surplus, together with that from project electric energy, would be used to pay project costs allocated to irrigation but which were beyond the ability of the irrigators to pay. Congress has been kept advised as to the manner in which these rate schedules are operating. 2 Engle, Central Valley Projects Doc. (1957), H.R.D.oc. No. 246, 85th Cong., 1st Sess. 79—84, 261 262.
In accordance with the Secretary's estimates, long-term contracts for Friant Dam water provide for a rate of $3.50 per acre-foot for Class 1 water and $1.50 for Class 2, while contracts for municipal water supply call for $10 per acre-foot. It appears amply clear that the Reclamation Bureau officials were acting entirely within the scope of their authority in operating the Project in this manner and fixing the rates for water in accordance with congressional mandate, all of which has specifically received our approval in Ivanhoe Irrigation District v. McCracken, supra, 357 U.S. at 295, 78 S.Ct. at 1185.
The judgment, insofar as it relates to this petition of the City of Fresno, is affirmed and the case remanded to the Court of Appeals with directions to vacate the judgment of the District Court and remand the case with instructions to dismiss the same. It is so ordered.
Judgment affirmed in part and case remanded with directions.
The payments for irrigation water amounted to $58,545,475, while project capital cost allocated to irrigation was $221,551,600. Municipal water rates would return $29,667,932, while project capital cost allocated to municipal water supply was $9,091,800.


FRANK C. SOMMER III, an individual, Plaintiff, v. EATON (US) LLC, an Ohio limited liability company, and EATON CORPORATION, an Ohio Corporation, Defendants.
This mater is before the Court on Defendants' Motion for More Definite Statement (filing 7), Plaintiff's Motion to Remand (filing 13), and Plaintiff's Motion to Strike (filing 17). For the reasons explained below, the undersigned will recommend to Chief United States District Judge Laurie Smith Camp that each of the motions be denied.
Plaintiff's Complaint asks that the Court "declare his eligibility for the Contribution and that he is eligible with a 'hire' date of May 27, 1975." ( Id .) Plaintiff further requests that the Court "declare the amount of the Contribution to which he is eligible, and to require Defendant to make the Contribution on his behalf while he is enrolled in the Eaton Retiree Medical plan." ( Id .) The Complaint does not reference any statute or regulation, nor does it express a specific cause of action.
Plaintiff asserts that this Court lacks jurisdiction because his Complaint does not assert a claim under ERISA. Plaintiff maintains that his Complaint only seeks a determination of rights under a contract of employment.
"A defendant may remove a state law claim to federal court when the federal court would have had original jurisdiction if the suit originally had been filed there." Phipps v. F.D.I.C., 417 F.3d 1006, 1010 (8th Cir. 2005) (citation omitted). "The burden of establishing that a cause of action lies within the limited jurisdiction of the federal courts is on the party asserting jurisdiction." Arkansas Blue Cross & Blue Shield v. Little Rock Cardiology Clinic, P.A., 551 F.3d 812, 816 (8th Cir. 2009). Federal courts are to resolve all doubts as to the propriety of exercising federal jurisdiction in favor of remand. Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007 ).
"Removal based on federal question jurisdiction is usually governed by the 'well-pleaded complaint' rule." Phipps, 417 F.3d at 1010 (citation omitted). The well-pleaded complaint rule "provides that federal jurisdiction may be invoked only where a federal question is presented on the face of the plaintiff's properly pleaded complaint." Id . This rule "makes the plaintiff the master of the claim, allowing the plaintiff to avoid federal jurisdiction by exclusive reliance on state law." Id . (quotation omitted).
The "complete-preemption" doctrine operates as an exception to the well-pleaded complaint rule. "When a federal statute wholly displaces the state-law cause of action through complete pre-emption, the state claim can be removed." Aetna Health Inc. v. Davila, 542 U.S. 200, 207-08 (2004) (internal quotation omitted). "This is so because when the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. ERISA is one of these statutes." Id . Therefore, [a]ny state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is . . . pre-empted." Id . at 209. ERISA preemption is expansive and state law may relate to an employee benefit plan "even if the state law was not designed to affect benefit plans and its effect on such plans is incidental." Johnson v. Paul Revere Life Ins. Co., 241 F.3d 623, 62930 (8th Cir. 2001) (citation omitted).
Plaintiff's Complaint alleges that Plaintiff is entitled to a contribution to assist in paying for the cost of medical coverage under the Eaton Retiree Medical Plan. Plaintiff maintains that he was promised service credit for his years with Pedersen and that under the terms of the Plan, such service credit would entitle him to the contribution to pay for the coverage under the Plan. In his prayer for relief, Plaintiff asks that the Court declare his eligibility for the contribution and declare the amount of the contribution to which he is eligible.
At its heart, Plaintiff's claim is for the improper denial of benefits under an ERISA plan. Plaintiff's claim relates directly to Defendants' alleged misrepresentations or unlawful application of the Plan. ERISA explicitly provides for the same relief Plaintiff seeks - the recovery of benefits due under the terms of the Plan and the enforcement of rights under the Plan. See 29 U.S.C. § 1132(a)(1)(B). Plaintiff cannot use a state breach of contract claim as "a separate vehicle to assert a claim for benefits outside . . . ERISA's remedial scheme." Aetna, 542 U.S. at 217-18. See Johnson v. U.S. Bancorp., 387 F.3d 939, 942 (8th Cir. 2004) (finding that state law claim for breach of contract was preempted by ERISA for plaintiff claiming former employer wrongfully withheld payment of benefits). Because Plaintiff's state law claims are preempted, Plaintiff's motion to remand should be denied.
Plaintiff does not appear to directly dispute Defendants' assertion that the Plan is governed by ERISA. The Court has reviewed the Plan's summary description and finds that this document supports Defendants' assertion that the terms of the Plan are subject to ERISA.
Plaintiff maintains that a declaration and summary plan description offered by Defendants in opposition to the motion to remand should be stricken because the Court should not consider post-removal affidavits in evaluating whether federal question jurisdiction exists. The Court finds this argument unpersuasive. The Eighth Circuit Court of Appeals has recognized that post-removal affidavits addressing facts existing at the time of removal may be considered in connection with a motion to remand. See Raskas v. Johnson & Johnson, 719 F.3d 884, 888 (8th Cir. 2013). Also, more specifically, courts have expressly found that review of post-removal evidence is proper in evaluating whether federal question jurisdiction exists. See Gover v. Speedway Super America, LLC, 254 F. Supp.2d 695, 699 (S.D. Ohio 2002) (stating that when evaluating whether federal question jurisdiction exists, district courts have wide discretion to allow affidavits to resolve disputed jurisdictional facts). Plaintiff's motion to strike should be denied.
Under Federal Rule of Civil Procedure 12(e), "[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." Fed. R. Civ. P. 12. However, these motions are rarely granted "in light of the liberal notice pleading standard of Federal Rule of Civil Procedure 8 and the liberal discovery available to both sides." Lemp v. Ocwen Loan Servicing, LLC, No. 8:08CV35, 2008 WL 2276935, *2 (D. Neb. May 30, 2008) (citation omitted). Federal Rule of Civil Procedure 8 only requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8.
The Court finds that the allegations in the Complaint are sufficient to inform Defendants of the claims asserted against them. Defendants' notice of removal and briefing on Plaintiff's motion to remand makes it apparent that Defendants understand the nature of the claims against them. See Vickery v. United Medical Resources, Inc., 43 F.3d 1208 (8th Cir. 1994) (finding that despite the plaintiff's failure to cite to ERISA, the allegations in the complaint were sufficient to notify the defendant of the claims asserted against it, particularly where the defendant had specifically cited ERISA when it sought to remove the case to federal court). Defendants' motion for a more definite statement should be denied.
IT IS HEREBY recommended to Chief United States District Judge Laurie Smith Camp that Defendants' Motion for More Definite Statement (filing 7), Plaintiff's Motion to Remand (filing 13), and Plaintiff's Motion to Strike (filing 17) be denied.
A party may object to a magistrate judge's order by filing an objection within fourteen (14) days after being served with a copy of the findings and recommendation. Failure to timely object may constitute a waiver of any objection.