Brewer v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1325

September Term, 2013

JOSHUA P. BREWER, JR.

v.

STATE OF MARYLAND

Krauser, C.J.,
Zarnoch,
Raker, Irma S.
(Retired, Specially Assigned),

JJ.

Opinion by Zarnoch, J.

Filed: October 29, 2014
The facts of this case invite us to revisit the doctrines of “plain view” and “open view”

in the context of a warrantless seizure of drugs in the vestibule of a Baltimore City rowhouse.

Appellant Joshua P. Brewer, Jr. was charged in the Circuit Court for Baltimore City

with possession of cocaine with intent to distribute and possession of heroin with intent to

distribute. On May 14, 2013, the trial court denied appellant’s pre-trial motion to suppress,

and two days later the jury convicted him of both distribution offenses. After denying

appellant’s motion for new trial, the court, on July 31, 2013, imposed two concurrent 20-year

sentences. In this Court, appellant presents the following questions:

1. Did the trial court err in denying the motion to suppress?

2. Did the trial court err in denying Appellant’s motion in limine to
exclude his prior convictions and/or in denying Appellant’s motion for
new trial because of the admission of his prior convictions?

3. Did the trial court err in denying the motion for a new trial due to the
prosecutor’s improper closing argument?

For reasons discussed below, we answer each of these questions in the negative and affirm.

BACKGROUND

Detective Vincent Lash, narcotics investigator for the Baltimore City Police

Department, testified that during the early evening of November 5, 2011, he was on plain

clothes duty with two other officers in the vicinity of 14 North Gilmor Street in Baltimore

City. Upon receipt of a confidential report regarding suspected drug activity by a certain

individual, he covertly observed appellant engaged in suspected drug sales. With binoculars,

Detective Lash observed appellant running back and forth from and in and out of the

residence at 14 North Gilmor and out across the street where individuals were waiting.
Appellant handed small items in exchange for cash to a total of at least 14 people. Based on

Detective Lash’s expertise as a drug investigator, after observing these acts he believed that

narcotic sales were taking place.

Detective Lash and two colleagues entered the block to arrest appellant, who looked

up as he saw them approaching. Appellant then dropped some small objects to the ground

and proceeded to stomp upon them. However, his feet missed a red-topped vial of cocaine.

The officers arrested appellant and recovered the red-topped vial, but could not recover the

gel caps that appellant had stepped upon.

Detective Lash testified that he then walked over to 14 North Gilmor Street, where

the clear storm door was unlocked, open and ajar. He approached the door of the property

by walking up a stoop of four steps. Looking through the glass storm door from outside,

Detective Lash could see a large amount of drugs on top of a ledge above the interior door.

By going through the unlocked, open storm door, he entered this part of the building and

recovered the drugs.

At the time he entered this area, Detective Lash was unaware of whether it was part

of an apartment building or a single family residence. However, he believed it to be open to

the public because the exterior door was “just an open storm door,” and there was no working

doorbell, so anyone who wished to knock on the main front door would have to pass through

the storm door and enter the area where the front door was located. Detective Lash testified:

I went to the location I saw him come out of. At that point, I didn’t
know if it was a - an apartment building, because it’s a three story. I didn’t

2
know if the drugs - if we were going to have to seize the location and get a
warrant.

But from walking up to the location, I could see that it was an exterior
door in a vestibule area.[1] And that’s why – and when I saw . . . the drugs,
that[‘s] when I received the drugs – obtained the drugs.

Detective Lash then knocked on the main front door, spoke with appellant’s father, Joshua

Brewer, Sr., who confirmed that appellant lived there. Detective Lash informed the father

that his son was being arrested.2

During his testimony, appellant’s father confirmed that anyone wishing to knock on

“the main door, the only door” would have to pass through the open storm door into the

vestibule area to do so. There was no working doorbell, and mail deliveries were simply

tossed into the vestibule area. The solid main door was the one that he “locked at night . .

. that was the real door.” Anyone could enter or toss deliveries into the vestibule area without

knocking on the screen door. Photographs of the vestibule introduced as exhibits at the

1
Whether the area in front of the main front door would technically qualify as a
“vestibule,” or the “first threshold of the building,” William E. Ringel, Searches and
Seizures, Arrests and Confessions (2d Ed. 2014) at § 8:16, we will generally employ the
Detective’s and the circuit court’s terminology.
2
Responding to a question about why he declined to arrest the drug purchasers on the
street, Detective Lash testified:

If I get these individuals, Mr. Brewer would take his drugs and
go inside or run away. If I lock up one person a block away, he
- - it - - word will travel in the city: Lookout, information, “Hey,
they just - - Jimmy you just sold to just got locked up from
police.” So for me to get Mr. Brewer, I have to let small fish go
to get big fish.

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suppression hearing displayed a short, narrow, uncarpeted corridor with no objects on the

floor or walls. The corridor led to a door with double locks topped by a paladian window.

The interior door sat on a raised step.

Appellant also testified that the storm door was not locked. When asked whether

unexpected visitors would simply open the storm door and enter the vestibule, appellant

answered: “If they wanted to, of course they could. It’s not locked.”

At the suppression hearing, the appellant contended that the vestibule was part of the

curtilage, a protected area. The prosecution argued that it was not curtilage. The trial judge

denied appellant’s motion to suppress the recovered drugs ruling as follows:

I have listened to the testimony of all the parties involved. And I find
the testimony of Detective Lash to be credible about what happened,
specifically that he had gotten information from a CI that a person matching
the defendant’s description was selling drugs like crazy in the area of 14 North
Gilmor Street, right where we’re talking about.

The officers were able, with their binoculars, to observe similar activity
to that, someone, what Detective Lash referred to as “serving customers”
approaching people and taking money and giving small objects sufficient that
they felt they had corroborated the CI sufficient that they rolled quickly up to
the scene with the intention of arresting the defendant.

Even before they got out of the car, the defendant dropped whatever
was in his hand and danced upon those items, missing only one of them, a red-
top vial. The Detective Lash saw that and then went to the place where he had
seen the defendant come.

Now, there are three different areas here. We have the stoop, as this is
Baltimore City. We have what is referred to as the “vestibule.” And I think
it is truly a vestibule. And we have the interior of the house.

No one contends that the police did not have the legal right to go up on

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the stoop. Everybody who comes, even the defendant said that Jehovah’s
Witnesses go up on the stoop and bang on the door. Everybody has that right.

What is the legal significance of the vestibule. And I think that it is
acceptable to include that in the – in the concept of curtilage. And then the
interior door, which is the defendant’s father said was open a little bit, the
detective said was closed, is the demarcation of the private area of the home.

Those are our three spots; stoop, public area, vestibule, curtilage. The
area beyond the interior door is private area.

The Fourth Amendment looks at all of those areas quite differently. As
to the stoop, if anyone can go there, so can a police officer. As to the
curtilage, that is an area protected by the Fourth Amendment unless what is in
the curtilage is observable from the public area.

Just as if I happen to have a marijuana plant growing on my patio, my
patio is protected area, but looking at my marijuana plant growing on my patio
might be something that could be seen from the front street or the alley behind
my home, an area where the police have a right to be.

So this entire analysis comes down to whether Detective Lash, upon
going up to the steps, could in fact see a bag atop the door in what used to be
a transom area above the front door.

It is his testimony he saw it from that distance which he would be
looking through a glass panel or crack in the door – I think there is no
significance between either looking through the glass panel or any crack in the
door – seems to be maybe five or six feet away by the pictures.

He looked in. He saw it, he recognized it as the same thing that the CI
had been talking about that he had seen on the street dropped by the defendant
and missed in his stomping; that when he sees it, he recognizes it as evidence.

I think here we are clearly in the Plain View Doctrine. The police
officer has a right to be where he is, sees something he recognizes as evidence,
and we should also point out that this is a – an exigent circumstance to this
extent. If a warrant is needed for the vestibule, then the items in the vestibule
could be moved or disposed of by anyone inside the house.

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If the vestibule is not covered by the Fourth Amendment protections in
need of a search warrant, the officer can go in and take it.

When he sees it, given the exigency, I believe he is allowed to go in and
pick it up and seize it only. They did not proceed further with a warrant to
search the rest of the house. Rather they arrested the defendant and recovered
the drug on the street, the bag from the transom. And I find that to be in plain
view and within the rights of the police to seize upon seeing it. . . . The motion
to suppress the drugs is denied.

DISCUSSION

I. Trial court’s denial of motion to suppress

A. Introduction - Standard of Review

Appellant’s first argument is based upon the Fourth Amendment’s protection against

unreasonable searches and seizures. He contends that the circuit court erred by failing to

grant his motion to suppress the seized drugs because Detective Lash lacked permission,

failed to obtain a warrant, and no exigency existed for him to search the curtilage area of his

home. Appellant contends that, under established constitutional law, it cannot reasonably be

disputed that by opening the storm door, entering the vestibule and seizing a bag from its

interior, Detective Lash conducted “an unreasonable search.” Maintaining that the circuit

court properly denied the motion to suppress, the State argues that even if the search area is

considered curtilage, it is afforded limited Fourth Amendment protection, and the officer had

an implied invitation to enter the vestibule.

In reviewing a trial court’s denial of a motion to suppress evidence, we base our

decision solely upon the “facts and information contained in the record of the suppression

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hearing.” Longshore v. State, 399 Md. 486, 498 (2007). We then extend great deference to

the suppression judge with respect to the determination and weighing of first-level findings

of facts, which we will not disturb unless clearly erroneous, and we view all facts in the light

most favorable to the State as the prevailing party. Williamson v. State, 413 Md. 521, 531-32

(2010). We also apply a de novo standard of review, making our “own independent

constitutional apprisal by reviewing the law and applying it to the facts of the case.” Bailey

v. State, 412 Md. 349, 362 (2010) (Citations omitted), Grymes v. State, 202 Md. App. 70, 80

(2010).

A defendant “invoking Fourth Amendment protection bears the burden of

demonstrating his or her legitimate expectation of privacy in the place search or items

seized.” Williamson, 413 Md. at 534. Also relevant under more recent Supreme Court

rulings is whether the government has physically intruded on a constitutionally protected

area. Florida v. Jardines, ____ U.S. ____, 133 S. Ct. 1409, 1414 (2013).

B. Plain view v. Open view

At the outset, we note that the circuit court’s suppression decision appears to have

blurred two very different 4th Amendment doctrines: plain view and open view. In Brown

v. State, 15 Md. App. 584 (1972), Judge Moylan wisely drew critical distinctions between

these concepts. Police may seize evidence in plain view without a warrant if “there has been

a prior valid intrusion.” Id. at 604. However, the open view doctrine often contemplates a

“pre-intrusion visual observation” of evidence located inside a constitutionally protected area

7
from a “vantage point outside” the constitutionally protected area. Id. at 605. “[T]he valid

visual observation simply furnishes probable cause for 1) the issuance of a warrant; or 2) the

warrantless entry of the [premises], provided exigent circumstances are also present; or 3)

the warrantless entry to effect an arrest for a crime being committed in the officer’s

presence.” Id. (Citations omitted). “As a non-search, the visual observation itself is

legitimate; but it may never, standing alone, justify an intrusion.” Id.

If the vestibule was curtilage and a constitutionally protected area, as the circuit judge

indicated, and the detective observed the drugs in a pre-intrusion setting from outside that

protected area, he would have seen the drugs in open view, not in plain view after a prior

valid intrusion. Under these circumstances, a warrantless entry into the vestibule would have

to be justified by exigent circumstances.

C. Open View / Exigent Circumstances

Under the open view doctrine, there was nothing impermissible about Detective

Lash’s observation of the drugs through the glass door while standing on the stoop of

appellant’s residence; and the suppression court specifically found that Detective Lash’s

seizure of the drugs was justified by exigent circumstances. The circuit judge noted that “[i]f

a warrant is needed for the vestibule, then the items in the vestibule could be moved or

disposed of by anyone inside the house” and “[w]hen he sees it, given the exigency, I believe

he is allowed to go in and pick it up and seize it. . . .” We agree with the circuit court.

This Court has said that “drugs are peculiarly susceptible to quick destruction.”

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Archie v. State, 161 Md. App. 226, 243 (2005). No greater illustration of that fact occurred

when appellant, right in front of the officers, stomped drugs he was selling on the street.

Although appellant was arrested and cuffed and could not destroy drugs inside the house,

Detective Lash had no assurance that any person inside the house might not move or, like

appellant, destroy the drugs if he stopped to obtain a warrant. Moreover, an open glass door

was the only protection that evidence would receive from the drug purchasers and others

outside, who undoubtedly knew that appellant was obtaining the drugs from inside the home.3

This is not a case like Dunnuck v. State, 367 Md. 198 (2001), where the police through

their own delay created the exigency needed to justify a warrantless entry of a residence.

Here, the police had witnessed a drug offense, the destruction of some of the evidence in

their very presence and the obvious use of the residence to store the drugs being sold. Under

these circumstances, it would have been astonishing if the detective did not knock on the

door of the premises and seize the drugs that were before him. In our view, the State met

its burden of showing exigent circumstances for seizing the drugs in the vestibule even if it

is considered part of the curtilage.

In his reply brief, appellant for the first time relies on Jardines to argue that Detective

Lash intruded upon a “constitutionally protected area” by “opening the door and entering the

vestibule and seizing a bag from the interior.” Jardines involved police use of a drug-

3
Detective Lash testified how quickly word traveled on the street when a drug arrest
had occurred.

9
sniffing dog on the front porch of a residence to investigate an unverified tip that marijuana

was being grown on the premises. It did not involve an ordinary visual observation of drugs,

in open view, made from a place where anyone had a right to be, and a seizure based on

exigent circumstances.

On the basis of Jardines, appellant contends that Detective Lash did not have an

implied license to enter the vestibule to knock on the internal door of the residence. See

Brown v. State, 75 Md. App. 22, 23 (1988). Jardines could be seen as modifying an “implied

license” for a police officer to invade the curtilage to conduct a dog-sniffing search. There,

the majority observed generally that “the background social norms that invite a visitor to the

front door do not invite him there to conduct a search,” 133 S.Ct. at 1416, and more

specifically, that “[a]n invitation to engage in canine forensic investigation assuredly does

not inhere in the very fact of hanging a knocker.” Id. Nevertheless, the majority still noted

that “a police officer not armed with a warrant may approach a home and knock, precisely

because that is no more than any private citizen may do.” Id. In short, we believe Jardines

does not require the forfeiture of Detective Lash’s license to enter the vestibule to knock on

the internal door. See State of Idaho v. Howard, 315 P.3d 854, 859 (2013).

D. Curtilage

Because of our conclusion that the observation of the drugs was not a search and any

seizure was justified by exigent circumstances, we need not definitively determine the

correctness of the circuit court’s suggestion that the vestibule was curtilage. We do note

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however, that terming a particular area curtilage “expresses a conclusion; it does not advance

Fourth Amendment analysis.” U.S. v. Arboleda, 633 F.2d 985, 992 (2d Cir. 1980). The

circuit court here did not employ the four analytical tools approved by the U.S. Supreme

Court in U.S. v. Dunn, 480 U.S. 294 (1987) to determine whether the vestibule harbors the

intimate activity associated with the sanctity of a person’s home and the privacies of life. Id.

at 300. Those factors are: 1) the proximity of the area claimed to be curtilage to the house;

2) whether the area is included within an enclosure surrounding the house; 3) the nature of

the uses to which the area is put; and 4) the steps taken by the resident to protect the area

from observation by people passing by. Id. at 301.

In U.S. v. Cooke, 674 F.3d 491 (5th Cir. 2012), cert. denied, _____ U.S. _____, 133

S.Ct. 756 (2012), the U.S. Court of Appeals for the Fifth Circuit applied these factors to the

area between the exterior and interior doors of the defendant’s barn-like residence and

concluded that the area was not within the curtilage of the home, noting that “any member

of the public would reasonably think that they would have to enter and knock on the interior

doors when visiting.” Id. at 495.

As in Cooke, the first two Dunn factors favor appellant. The vestibule was physically

attached to and shared the same roof as the residence. However, focusing on the latter

factors, we note that the area between the glass storm door and the interior door was a

narrow, non-descript, unadorned corridor devoid of the intimate activity associated with the

sanctity of a person’s home and the privacies of life. The external door with no doorbell was

11
ajar, a see-through, deliberately open to the world at large, and leading to what the public

would readily believe is the real door - - double-locked, on a step with a palladian window.

Arguably, there would be no reasonable expectation of privacy in such an area. And the

testimony in the case confirmed this description. If the area beyond the storm door was not

curtilage, but an extension of the stoop, it would not be a constitutionally protected area. As

a result, police entry would be a non-search and taking the drugs into custody would not raise

a Fourth Amendment issue. See Fitzgerald v. State, 384 Md. 484, 503-04 (2004); Brown,

15 Md. App. at 605. Nevertheless, this is an issue we need not decide today.

II. Trial court’s denial of motions regarding evidence of prior convictions.

During trial, prior to advising appellant of his right to testify, defense counsel moved

to exclude evidence of appellant’s 2004 and 2006 drug distribution convictions that the State

indicated it intended to introduce for impeachment purposes.4 While the trial court was

balancing probative value versus potential prejudice of these two convictions, defense

counsel expressed concern that, given their similarity to the current charges, the jury “would

not be able to separate and might assume that because he was convicted in the past he must

be guilty this time.” The trial court denied the motion, explaining as follows:

THE COURT: Well, I understand that. But obviously if the State does not
go into this and defendant testifies, when he presents, without other comment,
as a person with no criminal record.

4
Appellant had also been convicted of possession with intent to distribute (the same
crime for which he was on trial) in 1999, and for a handgun offense, but the State did not
plan to introduce these convictions.

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When we have a specialist here who has three actual convictions for
drug felonies, the fact that he got arrested for another drug felony shouldn’t
allow him to keep his speciality out of consideration. And – and let him come
in cloaked in the – the garb of someone who’s never been convicted.

You know, if he had a robbery, and he had a theft, and he had a
burglary, and he had drugs, then I could exclude the drugs because it wouldn’t
be giving a false impression about the man.

But in this case, this is his speciality. And these three felony
convictions are very substantial. They are the type of crime that the Court of
Appeals and the Court of Special Appeals have specifically recognized as
impeachable offenses.

The only reason to exclude them is because it’s the same offense. But
then as to each criminal, we would be saying specialize, and no one would ever
know about your history. So I’m going to deny the motion to suppress those
items.

When defense counsel argued that “that’s precisely why they shouldn’t come in because the

jury might conclude that he was a specialist,” the court responded that if the evidence comes

in, he would “give them the instruction that this is not for the purpose of – of deciding

whether he would have committed the offense as he had in the past, but rather it is part of

assessing his credibility, something they’ll have to do.”

Understanding that these prior convictions would be coming in as evidence if he took

the stand, appellant still chose to testify. During his direct testimony, appellant confirmed that

in 2000 and 2006 he was convicted of possession with manufacturing and distribution of

heroin, and that in 2004 he was also convicted of heroin distribution. During cross-

examination, the prosecutor asked the following question:

Now, your attorney asked you about your prior convictions. In 2006 – let’s

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just clarify. In 2006 you were convicted of distribution of heroin, and
conspiracy to distribute heroin; isn’t that correct?

Appellant answered in the affirmative.

Subsequent to trial, appellant unsuccessfully moved for new trial on the basis that it

was reversible error to have denied his motion to exclude evidence of the prior convictions.

In its ruling, after pointing out that appellant’s other prior acts were being excluded, the court

concluded that it had properly conducted the balancing, and that under the circumstances

appellant was appropriately confronted with his history “in the course of a story that the jury

did not believe.” Although appellant’s charges were similar to his past convictions, the judge

explained that there was no reason a defendant experienced with a particular crime “should

be allowed to present himself to the jury on the credibility question as a law abiding citizen.”

Appellant now argues that reversal is required, contending that the probative value of

his prior convictions was outweighed by their unfair prejudice, so the trial court abused its

discretion by denying his motion in limine and/or in denying his motion for new trial. He

argues that the prior convictions, which were unrelated to the accusations at hand, “added

very little to the State’s case while engendering grave prejudice to Appellant” by tarnishing

him as a “specialist” and showing criminal propensity. He contends that impeachment with

prior convictions very similar to the charges on trial created a grave danger that the jury

convicted on the basis of an inferred propensity to commit the crime, and not on the basis of

the evidence. The State maintains that the trial court acted well within its discretion in

denying each of appellant’s motions. Credibility was a central issue in the case, and its

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resolution “boiled down to whether the jury believed the testimony of the police officers or

the contradictory testimony” of appellant.

Maryland Rule 5-609 governs admissibility of prior convictions for the purpose of

impeaching a witness’s credibility. This rule provides, in relevant part:

[E]vidence that the witness has been convicted of a crime shall be admitted if
elicited from the witness or established by public record during examination
of the witness, but only if (1) the crime was an infamous crime or other crime
relevant to the witness’s credibility and (2) the court determines that the
probative value of admitting this evidence outweighs the danger of unfair
prejudice to the witness or the objecting party.

Md. Rule 5-609(a). In addition, the conviction must be no more than 15 years old, and

cannot have been reversed, vacated, pardoned, or be currently on appeal. Rule 5-609(b)-(c).

Maryland law is clear that a trial court may properly admit evidence of a defendant’s prior

conviction for distribution of controlled dangerous substances for the limited purpose of

impeaching his credibility. State v. Giddens, 335 Md. 205, 217 (1994) (Conviction for

cocaine distribution is relevant to credibility, as such an offense reveals that an individual

“would be willing to lie under oath”). In State v. Woodland, 337 Md. 519 (1995), the Court

ruled that the defense witness’ prior conviction for possession with intent to distribute was

similarly admissible for impeachment purposes, as long as the trial judge conducts the proper

balancing test.

Where the trial court’s decision reflects an exercise of the discretion vested under

Rule 5-609, it is well established that the balancing of the probative value of a prior

conviction against its prejudicial effect is a matter left to the court’s sound discretion.

15
Jackson v. State, 340 Md. 705, 719 (1995); Giddens, 335 Md. at 213. When the trial court

exercises its discretion in these matters, we “will give great deference to the court’s opinion”

and appellate courts “will not disturb that discretion unless it is clearly abused.” Jackson,

340 Md. at 719. Similarly, the court’s decision as to whether to grant a new trial lies within

the sound discretion of the trial court and its decision will not be disturbed on appeal absent

an abuse of discretion. Argyrou v. State, 349 Md. 587, 600 (1998).

The Court of Appeals has identified five factors that judges may consider when

weighing the probative value of a prior conviction against its prejudicial effect, which

“should not be considered mechanically or exclusively,” but should be treated as a “useful

aid to trial courts in performing the balancing exercise” established by Rule 5-609. Jackson,

340 Md. at 717.

These factors are (1) the impeachment value of the prior crime; (2) the point
in time of the conviction and the defendant’s subsequent history; (3) the
similarity between the past crime and the charged crime; (4) the importance of
the defendant’s testimony; and (5) the centrality of the defendant’s credibility.

Id. “Where credibility is the central issue, the probative value of the impeachment is great,

and thus weighs heavily against the danger of unfair prejudice.” Id. at 721 (emphasis in

original). Similarity between the past and current offenses weighs against admission, but

does not serve to automatically exclude such evidence. For example, we concluded that the

trial court did not abuse its discretion in admitting evidence of two prior armed robbery

convictions to impeach a defendant who was being tried for the same offense. Facon v.

State, 144 Md. App. 1, 47 (2002), rev’d on other grounds, 375 Md. 435 (2003).

16
In a case with a fact pattern similar to the one before us, the defendant was charged,

inter alia, with possession with intent to distribute heroin and cocaine. Summers v. State,

152 Md. App. 362, 366-67 (2003). Prior to trial, the defense unsuccessfully moved in limine

to exclude Summers’ one year-old conviction for possession of a controlled dangerous

substance with intent to distribute. Id. at 368-69. While balancing the factors enumerated

in Jackson, the trial court reasoned that weighing against admissibility was the recent nature

of prior convictions and their similarity to the charged offenses. Id. at 369. On the other

hand, witness credibility was central to the case and “the jury’s verdict would depend on

whether it believed appellant or the police officers.” Id. at 371. The court concluded that

permitting the defendant to portray the “stellar picture of himself” to the jury as someone

without a criminal background, the probative value of admitting the evidence outweighed

the danger of unfair prejudice. Id. at 369, 372, Jackson, 340 Md. at 721. We affirmed the

court’s decision, concluding that the trial court properly exercised its discretion.

Similarly here, the trial court, to the extent the convictions were admitted for

impeachment purposes, would not have abused its discretion by denying appellant’s motion

to exclude. First, his prior convictions were for drug distribution, which are impeachable

offenses pursuant to Rule 5-609. Unlike Summers, in which the prior conviction was very

recent, appellant’s 2004 and 2006 convictions are somewhat older. Moreover, appellant’s

prior convictions were for heroin distribution, whereas he was being tried for possession with

intent to distribute, so the prior convictions were similar but not identical. Because

17
appellant’s testimony directly contradicted the State witnesses’ version of events, credibility

was an issue in the case. A plausible reading of the circuit court’s oral opinion on the motion

to exclude indicates that it was allowing the convictions to be admitted principally for

impeachment purposes and not to show criminal propensity. The court’s erroneous and

unnecessary references that appellant was a “specialist” and that drug dealing was his

“specialty,” do not undermine the court’s express determination that the prior convictions

were “impeachable offenses” to be used by the jury in “assessing [appellant’s] credibility.”

The jury was also specifically instructed to that effect. In any event, it is our view that any

erroneous admission of this evidence was harmless beyond a reasonable doubt. Appellant

was caught red-handed dealing drugs. His offenses were witnessed by the police. He

destroyed evidence in their presence. And drugs were recovered from the vestibule of his

home. Thus, admission of evidence of his prior convictions could not have made a

difference in the correct determination of his guilt. As a result, appellant’s motion for a new

trial was properly denied.

III. Motion for new trial regarding prosecutor’s comment during closing.

Appellant’s final contention is that the trial court abused its discretion by failing to

grant his motion for a new trial due to comment by the prosecutor during closing, which

inappropriately argued that appellant was “experienced” in selling drugs, given that he had

been twice before convicted for the “exact same thing.” Appellant contends that the

prosecutor’s remark “clearly sought to unfairly prejudice the jury” against him, violating his

18
right to a fair trial, and despite the trial court’s attempt to instruct the jury otherwise, “the

proverbial bell had rung, and it could not be ‘un-rung.’” Maintaining that the trial court

properly exercised its discretion by denying appellant’s motion for new trial, the State points

out that not only did the prosecutor quickly correct her improper remark, but the trial court

issued a curative instruction, which together ensured that the jury would consider appellant’s

prior convictions for impeachment purposes only. Furthermore, evidence against appellant

was overwhelming, so any possible error by the trial court based on the “slight misstatement

by the prosecutor” was harmless beyond a reasonable doubt.

During the State’s closing argument in the case before us, the following colloquy took

place:

[PROSECUTOR]: Defendant knew what he was doing. He knew what he
was had in his possession. He knew he had cocaine. He knew he had heroin.

He’s well experienced in selling drugs. Why? Because he’s been not
once, but twice convicted of the exact same thing –

[DEF COUNSEL]: Your Honor, may we approach?

THE COURT: No, I’ll sustain the objection.

And I’ll admonish you, ladies and gentlemen, you cannot use that, the
prior convictions for any purpose other than deciding whether or not the
defendant was telling you the truth when he testified. It has nothing to do with
– with any of the elements of the crime.

Please proceed.

[PROSECUTOR]: Thank you.

By his own testimony he was twice convicted of distribution, 2004

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distribution, 2006 distribution and conspiracy to distribute.

In light of those convictions, you need to take his credibility into
account, especially when he’s giving inconsistent testimony, directly
inconsistent with his father’s testimony of him – of the dad calling out to him
and the dad saying he never called out to him, never looked out the window
that evening.

The defendant knew what he was doing that day. . . .

In denying appellant’s motion for new trial on the grounds that the prosecutor’s

remark was improper, the trial court ruled as follows:

THE COURT: As to the blurt-out by [the prosecutor] that the defendant was
a convicted drug dealer, I think I took the exact corrective action which was
called for under the circumstances, told the jury to completely disregard that.
And, if anything, the whole circumstance was a distraction or embarrassment
for [the prosecutor’s] presentation but not one that would lend the jury to come
to the conclusion it did.

I think what . . . led the jury to the conclusion it came to was the
strength of the State’s case and the $403 in the defendant’s pockets and the
drugs that were recovered, 40 vials of cocaine and 27 gel caps of heroin.

It is a movant who holds the burden of persuading the court that a new trial should be

granted. Whether to grant a new trial lies within the sound discretion of the trial court,

whose decision will not be disturbed on appeal absent an abuse of discretion. Argyrou, 349

Md. at 600. The abuse of discretion standard requires trial judges to use their discretion

soundly, and we do not consider that discretion to be abused unless “the judge ‘exercises it

in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the

law.’” Washington v. State, 424 Md. 632, 667-68 (2012) (quoting Campbell v. State, 373

Md. 637, 665-66 (2003)). A trial court’s discretion to grant or deny a new trial expands and

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contracts, depending upon the nature of the factors being considered, and its exercise

“depends upon the opportunity the trial judge had to feel the pulse of the trial, and to rely on

his or her own impressions in determining questions of fairness and justice.” Argyou, 349

Md. at 600, Washington, 424 Md. at 668.

In conducting closing argument, “the prosecutor is allowed liberal freedom of speech

and may make any comment that is warranted by the evidence or inferences reasonably

drawn therefrom.” Lee v. State, 405 Md. 148, 163 (2008). “Despite the wide latitude

afforded attorneys in closing arguments, there are limits in place to protect a defendant’s

right to a fair trial.” Degren v. State, 352 Md. 400, 430 (1999), Lee at 163. When reviewing

a decision based on an improper remark in the prosecutor’s closing argument, unless it

appears that the jury was actually misled or were likely to have been misled or influenced to

the prejudice of the accused by the remarks of the State’s Attorney, reversal of a judgment

will not be justified. Holbrook v. State, 6 Md. App. 265, 270 (1969). Reversal is only

required if prosecutor’s improper comment actually misled the jury or was likely to have

influenced the jury to the prejudice of defendant. Degren, 352 Md. at 431. The

“determination of whether the prosecutor’s comments were prejudicial or simply rhetorical

flourish lies within the sound discretion of the trial court.” Id.

A significant factor in determining whether a defendant was likely to be prejudiced

by an improper remark is whether the trial court took appropriate action to overcome the

likelihood of prejudice, such as informing the jury that the remark was improper, striking it

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and admonishing them to disregard it. Holbrook, 6 Md. App. at 270. In concluding whether

a particular remark is harmless, appellate courts may review various factors, including the

severity of the remark, the measures taken to cure any potential prejudice, and the overall

weight of the evidence against the accused. Lee, 405 Md. 174-75. In this case, the

prosecutor’s remark merely referred in passing to a fact to which appellant himself had

testified. Indeed, whereas the prosecutor referred to two prior convictions, appellant himself

testified to having three prior prosecutions for dealing drugs. When defense counsel asked

to approach the bench, the trial court took affirmative action by issuing a curative instruction

to the jury. The prosecutor then corrected her closing argument by attempting to make it

clear that her reference to prior convictions was for the purpose of questioning appellant’s

credibility as a witness. Overall, her comment itself was slight, the weight of the State’s

evidence was strong, and corrective actions were taken by both the trial court and the State.

As a result, the court properly denied appellant’s motion for new trial.

JUDGMENTS OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.

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