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State’s questioning of defendant’s silence spurs Court of Appeals review

Court of Appeals will hear convicted murderer's appeal

ANNAPOLIS – Maryland’s top court will consider whether prosecutors violated the constitutional rights of a subsequently convicted first-degree murderer by questioning him at trial about what he did not tell police after invoking his right to remain silent.

The Court of Appeals last week agreed to hear Clement Reynolds’ argument that the prosecution’s questioning of his silence, in the jury’s presence, undermined his privilege against self-incrimination and his right to due process.

Prosecutors may not question “omissions from a defendant’s post-arrest statement (to police) where the omissions exist only because the defendant invoked his Miranda rights after making the limited statement.,” Reynolds’ attorney, Robert C. Bonsib, stated in papers filed with the high court. “The state did not seek to impeach Reynolds by what he said, but by what he did not say.”

The Maryland attorney general’s office, in its failed request that the court not hear the appeal, said the prosecution’s question did not impugn Reynolds’ silence but was intended to be “classic impeachment” by highlighting his failure to mention to police the alibi witnesses he testified about at trial.

The Court of Appeals will hear arguments in May and is expected to render its decision by Aug. 31 in the case, Clement Reynolds v. State of Maryland, No. 84, September Term 2017.

Reynolds was arrested in April 2014 at John F. Kennedy International Airport in New York in connection with the shooting death of a man 12 years earlier outside his Silver Spring apartment. Reynolds was using a passport with the name “Dennis Graham,” an alias he had adopted when he emerged as a suspect shortly after Wesley King’s death, police said.

During a post-arrest interrogation by Montgomery County detectives, Reynolds mentioned Rose Lopez and Byron Matamora as witnesses to his presence in New York at the time of the Silver Spring slaying, according to court papers. Reynolds subsequently invoked his constitutional right to remain silent.

At his January 2015 trial in Montgomery County Circuit Court, Reynolds presented three other witnesses, Simone Smith, Karlene Gill and Carolene George.

In cross-examining Reynolds at the trial, the prosecution noted the absence of these names from his conversation with police and questioned him about what he did not tell the officers, specifically asking, “You never said anything about Carolene George?” and “You’ve never mentioned the alibi to the police?”

Defense counsel objected to the questioning of what Reynolds did not tell police. The judge neither ruled on the objection nor instructed the jury to disregard the questions but simply told the prosecution to move on, according to court papers.

The jury found Reynolds guilty of first-degree murder, as well as conspiracy to commit first-degree murder and possession of a handgun in a crime of violence. He was sentenced to life in prison.

The Court of Special Appeals upheld the conviction and sentence in an unreported opinion in November.

In successful requesting that the high court hear Reynolds’ appeal, Bonsib wrote that the prosecution does “substantial” harm to defendants by referring at trial to their constitutionally protected silence, because a jury could conclude they have something to hide.

At trial, “the prosecutor did not just impeach Reynolds on actual inconsistencies between his post-arrest statement and his trial testimony, but the prosecutor continued to impeach Reynolds by what he failed to tell the police,” added Bonsib, of MarcusBonsib LLC in Greenbelt.

In response, Assistant Maryland Attorney General Sarah Page Pritzlaff wrote the prosecution’s questions were directed not at Reynolds’ silence but at discrepancies between what he told the police and his testimony in court.

“Further review of this unremarkable issue is not warranted,” she added.

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