The prosecution’s challenge to an accused murderer’s testimony came too late, a Maryland appeals court has held, overturning the man’s conviction and life sentence.
In closing arguments at trial, the prosecutor attempted to catch Antomar Jones in a lie about what he was doing in the car where Corey Alexander was shot and killed on Feb. 1, 2012. Jones said he bought marijuana, charged his cell phone — which was “definitely not” an iPhone — and then headed home.
But Assistant Baltimore City State’s Attorney Angela C. Worthy, during closing arguments, showed the jury a photo of a charger that was found in the car that night. She told jurors, for the first time, that the white device could only be used to charge iPhones.
That argument was based on evidence not presented at trial, and thus improperly brought into question the credibility of Jones’ testimony, the Court of Special Appeals said in its 3-0 decision.
Had the evidence been presented at trial, Jones’ counsel could have introduced testimony to contradict the prosecution’s closing argument regarding compatibility, the court said in ordering a new trial.
“We hold that under these circumstances, where there was no testimony one way or the other about the charger and the case turned so heavily on credibility, the prosecutor’s argument from facts not in evidence was improper and the error was not harmless,” Judge Douglas R.M. Nazarian wrote in the reported opinion.
Inference, no evidence
Margaret Ann Mead, Jones’ attorney at trial, said she was “outraged” when Worthy argued during closing that the white phone charger was compatible only with iPhones.
“There was no evidence to that whatsoever” at trial, said Mead, of Mead, Flynn & Gray P.A. in Baltimore. “Argue what the evidence is, but don’t add an interpretation that’s never been introduced.”
Mead said Worthy’s comment essentially branded Jones a liar, which was harmful to a defense that relied heavily on the credibility of Jones’ testimony that he never fired a shot.
Jurors believe that “if you lie about one thing, you’re probably lying about everything,” Mead added.
But Brian S. Kleinbord, of the Office of the Maryland Attorney General, said Worthy engaged in “proper argument,” citing Maryland high court precedent permitting “liberal freedom of speech” in closing statements.
“That freedom extends to the prosecutor and defense counsel alike,” added Kleinbord, who heads the office’s criminal-appeals division. “Here the prosecutor was asking the jury to make an inference based on the photograph that was in evidence and their own common knowledge.”
Kleinbord said the office will “study the decision and decide whether to seek further review.”
Neither Worthy nor Assistant Public Defender David P. Kennedy, who argued Jones’ appeal, responded to telephone messages Wednesday seeking comment on the court’s decision.
The closing argument followed a three-day trial in May 2013 that boiled down to whom the jury would believe: Jones, who testified he had left the car before any shooting, or Anthony Taylor, the state’s star witness, who was shot in the face that night and whose testimony implicated Jones as the shooter.
In contrast to Jones, Taylor denied there was any drug transaction. He testified that Jones had forced Alexander at gunpoint to drive them to an alley. Taylor said Jones shot him as he sprinted from the car and that he heard a gunshot in the car while he was running away.
Taylor was being treated at University of Maryland’s R Adams Cowley Shock Trauma Center when he told police Jones had shot him and Alexander.
The Baltimore City Circuit Court jury convicted Jones of felony murder, attempted first-degree murder, robbery with a dangerous weapon, use of a handgun in a violent crime, possession of a firearm by someone under age 21 (Jones was 19 at the time of the shooting), and wearing, carrying and transporting a handgun in a vehicle.
In overturning the conviction on Friday, the Court of Special Appeals called the conflicting testimony of Jones and Taylor “the centerpiece of this case,” which the prosecution improperly tipped against the defendant.
The court rejected the state’s argument that the prosecution’s statement was permissible because a juror “applying common knowledge” would know, without being told, that the charger with the white cord could only be used with an iPhone.
“We are not persuaded that ‘every informed individual’ would know that the charger pictured in State’s Exhibit 19 was an iPhone charger or that it is common knowledge that phone chargers with a white cord can only charge iPhones,” Nazarian wrote.
The court declined to address the factual accuracy of the prosecutor’s statement. However, at oral argument, the assistant public defender addressed the point in an unorthodox way — with the help of a white cell phone charger still in its original packaging, which, of course, was also not part of the evidence in the trial court.
Andrew H. Baida, who happened to be in court that day on another matter, described what happened next in his “Art of Appellate Advocacy” column for The Daily Record:
“As one of the judges exclaimed “no, no, no” and waved his hands in response to what was taking place at the lectern, the defendant’s lawyer said something to the effect that the charger was not for an iPhone and that he hoped he could return it to Radio Shack because he wasn’t sure what he did with the receipt. Then he sat down.”
Nazarian gave the incident a cursory mention in a footnote to the opinion.
“And because two wrongs don’t make a right, we have not considered the outside-the-record prop Mr. Jones’s counsel brought to oral argument in this Court,” he wrote.
Judges Patrick L. Woodward and Michael W. Reed joined Nazarian’s opinion.
WHAT THE COURT HELD
Antomar Jones v. State of Maryland, CSA, No. 1106, Sept. Term 2013. Reported. Opinion by Nazarian, J. Argued May 1, 2014. Filed June 27, 2014.
Did the trial court err in permitting the state to argue in closing that a white cord is compatible only with an iPhone, a fact not in evidence during the trial?
Yes; the charger’s asserted link to an iPhone related to the credibility of the defendant’s testimony and should have been subjected to cross-examination by the defense during trial.
David P. Kennedy for appellant; Todd W. Hesel for appellee.
RecordFax #14-0627-00 (33 pages).