Two men who were convicted in a West Baltimore shooting in 2005 are entitled to a new trial due to unfair remarks by the prosecution, the state’s highest court held Wednesday.
Telling jurors to “say ‘Enough’” ran afoul of a ban on appealing to their own personal safety, the Court of Appeals held.
It faulted the trial judge for overruling a defense objection when the prosecutor made that remark during the rebuttal portion of closing arguments.
“The Court of Appeals has not addressed the limits — if any — of defense counsel’s closing argument and in the absence of that I think we’re going to see prosecutors struggling with what is an appropriate response to what they view as an improper closing argument by the defense counsel,” said Brian Kleinbord, chief of the Office of the Maryland Attorney General’s Criminal Appeals Division.
“We are advising the prosecutors on the state of the law as best we can,” he said.
Calls to Baltimore City State’s Attorney Gregg Bernstein and the Office of the Public Defender were not returned.
A jury in Baltimore City Circuit Court convicted Joseph Omar Smith of second degree murder and second degree attempted murder, among other lesser convictions. His co-defendant, Cyrus Lee Beads, was convicted of second degree attempted murder and other crimes.
On the night of June 5, 2005, in what the court called “an utterly senseless episode of violence,” Beads and Smith allegedly shot into a crowd of people who were outside on the 3800 block of Roland Park View in Baltimore, killing 44-year-old Lawrence Johnson and wounding two others.
According to prosecutors, Beads and Smith went out “hunting” that night. They ambushed a group of men who were “standing around drinking and singing old Temptations songs…,” the state claimed.
Beads and Smith appealed in 2006. The Court of Special Appeals affirmed Beads’ and Smith’s convictions in 2010.
The Court of Appeals granted certiorari and heard arguments this February. On Wednesday, in an opinion written by Judge Joseph F. Murphy Jr., the court said the prosecutor’s “‘say Enough’ exhortation violated the prohibition against “the ‘golden rule’ argument.”
The defense had objected to the remarks at trial, but Circuit Judge Allen Schwait overruled the objection.
Schwait also had allowed a witness to testify, three times, that one of the defendants had been previously incarcerated. The judge said the defense attorney had “opened the door” by asking the witness if she knew his client.
Schwait should have acted swiftly and decisively to keep those comments out of the record, the top court said.
The court said the state’s evidence was not “overwhelming” in the case — Beads’ fingerprints were not found on a Glock seized from the taxicab he was riding in; firearms experts could not conclude that the Smith & Wesson gun taken from under the bed Smith had slept in was the same one that fired bullets at the crime scene.
The court said it therefore could not be “persuaded beyond a reasonable doubt” that the erroneous rulings did not influence the verdict.
WHAT THE COURT HELD
Cyrus Lee Beads and Joseph Omar Smith v. State of Maryland, No. 83, Sept. Term 2010. Arguments heard Feb. 7, 2011. Reported opinion by Murphy, J., filed Sept. 21, 2011.
(1) Should the convictions be reversed in light of the prosecutor’s prejudicial remarks during closing arguments? (2) Was a mistrial warranted after a witness testified three times that a defendant had been incarcerated?
Yes. (1) The lower court erred in finding that defense counsel invited the comments. (2) The court should have exercised discretion in ruling on the motion to strike, rather than relying on its prior finding that the trial counsel “opened the door” to inadmissible testimony.
Allison Pierce Brasseaux for petitioners; Michelle W. Cole for respondent.
RecordFax #11-0921-22 (18 pages)