Mills v. State

Daniel Mills v. State of Maryland, No. 950, September Term, 2017, filed November 5,
2018. Opinion by Battaglia, J.

CRIMINAL PROCEDURE — Batson v. Kentucky — NATURE OF CLAIM: The
exercise of peremptory challenges by any party to a case, criminal or civil, on the basis of
race, gender, or ethnicity violates the Equal Protection Clause of the Fourteenth
Amendment.

CRIMINAL PROCEDURE — Batson v. Kentucky — THREE-STEP PROCEDURE
FOR RESOLVING A CHALLENGE: The Supreme Court has set forth a three-step
procedure that a trial court must follow in resolving a claim of discriminatory exercise of
peremptory strikes. At step one, the party raising the Batson challenge must make out a
prima facie case by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose. Then, once the challenger makes a prima facie
showing, the burden shifts to the opposing party to come forward with a neutral
explanation for the exercise of its peremptory strikes. Finally, in light of the parties’
submissions, the trial court must determine whether the challenger has shown purposeful
discrimination.

CRIMINAL PROCEDURE — Batson v. Kentucky — BURDEN OF PRODUCTION
AT STEP ONE: The party raising a Batson challenge bears the burden to produce
“some evidence” that the opposing party’s peremptory challenges were exercised on one
or more of the constitutionally prohibited bases. A challenger satisfies the requirements
of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an
inference that discrimination has occurred.

CRIMINAL PROCEDURE — Batson v. Kentucky — BURDEN OF PRODUCTION
AT STEP ONE — NOT A STATISTICAL TEST: The Supreme Court has expressly
rejected a statistical test at the first step of the Batson analysis, observing that the
Constitution forbids striking even a single prospective juror for a discriminatory purpose.

CRIMINAL PROCEDURE — Batson v. Kentucky — TRIAL COURT ERRED IN
APPLYING A STATISTICAL TEST AT STEP ONE: The circuit court erred in
applying a statistical test to conclude that the defendant had failed to establish a prima
facie case of discriminatory intent. Had the court applied the correct test, on the facts of
this case, it would have been compelled to conclude that the defendant had satisfied his
initial burden.

CRIMINAL PROCEDURE — Batson v. Kentucky — REMEDY FOR ERROR:
Unless it is impossible to reconstruct the circumstances surrounding the peremptory
challenges, due perhaps to the passage of time or the unavailability of the trial judge, the
proper remedy where the trial court does not satisfy Batson’s requirements is a new
Batson hearing in which the trial court must satisfy the three-step process mandated by
that case and its progeny.

CRIMINAL PROCEDURE — Batson v. Kentucky — REMEDY FOR ERROR: In
the instant case, it would not be impossible to reconstruct the circumstances surrounding
the aborted Batson hearing, given the existence of the juror lists and the relatively brief
time that has elapsed since trial. Moreover, the circuit court’s error denied the State an
opportunity at trial to explain its reasons for exercising the contested peremptory
challenges. Accordingly, the remedy here is a limited remand so that the circuit court
may conduct a new Batson hearing.
Circuit Court for Baltimore City
Case No. 116110012

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 950

September Term, 2017

______________________________________

DANIEL MILLS

v.

STATE OF MARYLAND
______________________________________

*Eyler, Deborah S.,
Meredith,
Battaglia, Lynne A.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Battaglia, J.
______________________________________

Filed: November 5, 2018

*Eyler, Deborah S., J., participated in the
Pursuant to Maryland Uniform Electronic Legal
hearing and conference of this case while an
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.
active member of this Court; she participated in
2018-11-05
15:25-05:00 the adoption of this opinion as a retired,
specially assigned member of this Court.

Suzanne C. Johnson, Acting Clerk
A jury sitting in the Circuit Court for Baltimore City convicted Daniel T. Mills,

appellant, of possession of cocaine with intent to distribute as well as simple possession

of that drug. The circuit court thereafter sentenced Mills to twelve years’ imprisonment,

with all but four years suspended, to be followed by three years’ probation. Mills then

noted this appeal, raising the following issues:

I. Whether the trial court erred in holding that the defendant
failed to make a prima facie showing of discrimination under
Batson v. Kentucky, 476 U.S. 79 (1986), based solely on the
court’s finding that the racial makeup of the seated jury
resembled the racial makeup of the jury pool;

II. Whether the State failed to present sufficient evidence that
the defendant possessed cocaine when there was no evidence
that the defendant could see the cocaine in the vehicle in
which he was a passenger; and

III. Whether the prosecutor’s improper and repeated
suggestions in closing argument that the defendant was
right-handed, a fact not in evidence, require a new trial.

We hold that the trial court erred in aborting Mills’s Batson challenge at step one

of the inquiry. We further hold that the evidence was sufficient to sustain the convictions

and that the claim concerning the prosecutor’s comments was not preserved but that, in

any event, those comments were not improper. Finally, for reasons we shall explain

henceforth, we hold that the appropriate remedy for the court’s Batson error is a limited

remand for a hearing on Mills’s Batson challenge, to determine whether he is entitled to a

new trial.
BACKGROUND

In the early morning hours of March 21, 2016, Detective Melvin Jones of the

Baltimore City Police Department was on “routine patrol” in a marked police cruiser

when he observed a blue Chevrolet Cruze traveling westbound on Pulaski Highway near

Highland Street in Baltimore City. As the Chevrolet approached a red light and came to

a stop, Detective Jones pulled up behind it and, using an onboard electronic database, ran

a “random tag check.” In doing so, he noticed that its owner, David Fitzgerald, had a

suspended driver’s license. After pulling alongside the Chevrolet and confirming that

Fitzgerald was, in fact, driving, Detective Jones initiated a traffic stop, notifying his

dispatcher as he did so. There was one other occupant of that vehicle—Mills, who was

sitting in the front passenger seat.

Detective Jones approached the Chevrolet and “made contact with” Fitzgerald.

While he was speaking with Fitzgerald, Officers Derek Bowman and Jacob Reed, having

heard about the traffic stop from the dispatcher, arrived at the scene, having driven

separately in marked police vehicles.

As a precaution, Officer Reed parked directly in front of Fitzgerald’s Chevrolet to

prevent it from moving, while Officer Bowman pulled in behind Detective Jones’s

vehicle. Officer Reed then approached the passenger side of Fitzgerald’s car and began

speaking with Mills, asking him “where they were both coming from and where they

were going,” but Mills sat silently, ignoring the officer’s questions and avoiding eye

contact.

2
Meanwhile, an “intoxicated male” bystander “started walking up to” Fitzgerald’s

vehicle and “yelling something like he knew the individual in the car.” Officer Bowman

“told him several times” that he needed to “stand to the side.” Eventually he heeded that

advice and left the scene.

Officer Reed, who had been questioning Mills, then asked him to step out of the

vehicle and “stand towards the back,” where Officer Bowman was then located. After

Mills complied with that request, Officer Reed “knelt over and looked under the [front

passenger] seat.” When he did so, he saw a Glock 9 mm semiautomatic handgun “under

the seat.” The officer “backed away from” the car and several times said “1030,” a code

indicating that he intended to arrest Mills. Neither Officer Bowman nor Detective Jones

heard that warning, however. Then, looking at Detective Jones, Officer Reed said,

“Gun.” Upon hearing the latter exclamation, Mills “took off running northbound on

Highland Avenue.”

Detective Jones and Officer Bowman gave chase, while Officer Reed remained

with Fitzgerald’s car. The pursuing police officers were joined in the chase by Sergeant

Frederick Steigerwald, who was stationed nearby and who had heard about the foot chase

over the police radio. Sergeant Steigerwald ultimately found Mills hiding underneath a

parked truck, four blocks from the scene of the traffic stop.

A search incident to Mills’s arrest yielded a “bundle” of cash in his right front

pocket, totaling $1,676, as well as two cell phones. When Fitzgerald’s car was searched,

Officer Reed recovered, in an open storage compartment in the passenger side door, “a

3
clear plastic bag” containing what was later confirmed to be crack cocaine, lying next to a

pair of socks, as well as the aforementioned handgun.

A thirteen-count indictment was returned, charging Mills with possession of, and

conspiracy to possess, a firearm under sufficient circumstances to constitute a nexus to

drug trafficking; three counts of possession of a regulated firearm after conviction of a

disqualifying crime; wearing, carrying, and transporting a handgun in a vehicle, and

conspiracy to do the same; wearing, carrying, and transporting a handgun on and about

the person; possession of ammunition after conviction of a disqualifying crime;

possession of, and conspiracy to possess, cocaine with intent to distribute; and possession

of, and conspiracy to possess, cocaine.

The case proceeded to a jury trial, which began with a Batson challenge that will

be discussed more fully. Following various dismissals and grants of motions for

judgment of acquittal, five charges were presented to the jury: possession of cocaine

with intent to distribute; possession of cocaine; possession of a firearm under sufficient

circumstances to constitute a nexus to drug trafficking; possession of a regulated firearm

after conviction of a disqualifying crime; and possession of ammunition after conviction

of a disqualifying crime. The jury convicted Mills of both drug offenses and acquitted

him of all firearms-related offenses. The court sentenced Mills to a term of twelve years’

imprisonment, with all but four years suspended, to be followed by three years’

probation, for possession of cocaine with intent to distribute and merged the simple

possession count. Mills thereafter noted this timely appeal.

4
ANALYSIS

Mills’s Batson Challenge

Mills contends that the trial court erred in concluding that he did not establish a

prima facie case, under Batson,1 that the State had exercised its peremptory challenges in

a racially discriminatory manner. He further contends that the remedy for that error is a

new trial.

The State counters that the trial court “properly, if perhaps inartfully, determined

that Mills did not establish a prima facie case of ‘purposeful’ discrimination.” In the

alternative, the State asks that, if we were to agree with Mills that the trial court erred in

determining that Mills did not establish a prima facie case, we order a limited remand so

that the court may consider Mills’s Batson challenge.

In Batson, the Supreme Court held that the prosecution’s exercise of peremptory

challenges in a racially discriminatory manner violates the Equal Protection Clause of the

Fourteenth Amendment. Batson, 476 U.S. 79, 89 (1986). Batson and its progeny2

established a three-step process for resolving a claim of purposeful discrimination in the

1
Batson v. Kentucky, 476 U.S. 79 (1986).
2
Although not relevant to the instant case, we observe that the holding in Batson
has subsequently been extended in several noteworthy respects. See, e.g., Powers v.
Ohio, 499 U.S. 400 (1991) (holding that a criminal defendant may object to the
prosecution’s racially-based exercise of peremptory strikes, regardless of whether he
belongs to the same racial category as the excluded venirepersons); Edmonson v.
Leesville Concrete Co., 500 U.S. 614 (1991) (holding that Batson applies to civil
actions); Georgia v. McCollum, 505 U.S. 42 (1992) (holding that a criminal defendant
may not exercise his peremptory strikes in a racially-discriminatory manner); J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127 (1994) (holding that Batson applies to the
gender-based exercise of peremptory strikes).

5
exercise of peremptory strikes. Initially, the defendant must “make out a prima facie case

‘by showing that the totality of the relevant facts gives rise to an inference of

discriminatory purpose.’” Johnson v. California, 545 U.S. 162, 168 (quoting Batson, 476

U.S. at 93-94). Then, “[o]nce the defendant makes a prima facie showing, the burden

shifts to the State to come forward with a neutral explanation for challenging black

jurors.” Batson, 476 U.S. at 97. Finally, “in light of the parties’ submissions, the trial

court must determine whether the defendant has shown purposeful discrimination.”

Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (citations and quotations omitted).

At step one, Mills’s burden was to “produce some evidence” that the State’s

peremptory challenges were exercised “on one or more of the constitutionally prohibited

bases,” in this instance, race. Ray-Simmons v. State, 446 Md. 429, 436 (2016) (citing

Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam)). A “defendant satisfies the

requirements of Batson’s first step by producing evidence sufficient to permit the trial

judge to draw an inference that discrimination has occurred.” Johnson, 545 U.S. at 170.

In the instant case, as jury selection proceeded, the State, in a harbinger of what

would later become an issue in this appeal, raised a Batson challenge against the defense,

apparently alleging that all of Mills’s peremptory strikes had, thus far, been exercised

against Caucasians (or, in any event, against all but African-Americans).3 The following

colloquy took place:

3
By the time that the State raised its Batson challenge, the defense had exercised
peremptory strikes against Jurors 2118, 2167, 2170, and 2181. Although the juror list, in
the record, indicates the venirepersons’ age, sex, marital status, highest attained education
(continued)
6
[THE STATE]: Your Honor, at this time --

(The defendant approached the bench.)

[THE STATE]: -- the State is respectfully challenging based
on Batson?

THE COURT: Well, I’ve got to tell you I’m not exactly sure
what the race of the -- the gentleman [Juror 2181] who sat
down was.

[DEFENSE COUNSEL]: And I struck him because he was
late.

THE COURT: Huh?

[DEFENSE COUNSEL]: I couldn’t read his number. I don’t
--

THE COURT: Okay. But I don’t know what his -- his race
is?

[DEFENSE COUNSEL]: I understand. I’m just telling
you why.

THE COURT: But I have to make the analysis. You’re --
I’m not calling upon you to make the analysis.

[DEFENSE COUNSEL]: I understand.

_____________________
(continued)
level, occupation, and spousal occupation, it does not indicate race. Handwritten notes
on the State’s copy of that list, which is also in the record, indicate, however, the race of
each venireperson. Juror 2118 was a Caucasian, married, 56-year-old female, who had
attended graduate school, was employed as an author, and whose spouse was an attorney;
juror 2167 was an Asian, single, 32-year-old female, who had attended graduate school
and was employed as a policy analyst; juror 2170 was a Caucasian, married, 53-year-old
female, with a high school education, whose employment was listed as “database” and
whose spouse had no listed occupation; and juror 2181 was a Caucasian, single,
39-year-old male, with a high school education, who was employed as an “installer.”

7
THE COURT: All right. So the record is complete, I was
the initial scan indicated that the males constituted 37
percent, which means we ought to have about 4.5 men in
the jury, and that the whites accounted for 27 percent,
which means that we should have about 3.3 whites on the
jury if they just -- the normal shuffle just filled up the
jury box.

So under those circumstances, considering the fact that
at this moment, we have one, two, three, -- three white
women and one, two men in the jury box, I don’t believe
that the statistical scan establishes a prima facie case, so
the motion is denied.

(Emphasis added.)

Notably, the court did not appear to consider the question of discriminatory intent

at the level of the individual venirepersons stricken, but instead, as shown by a statistical

model that compared the racial and gender composition of the empaneled jury with that

of the venire. In any event, after the court denied the State’s Batson challenge on that

basis, jury selection resumed.

Shortly thereafter, the parties commenced making additional strikes from the box.

The State struck Juror 2132, a married, 61-year-old African-American female whose

highest attained education level was indicated, “HS OR GED – NA” and whose

occupation (as well as that of her spouse) was likewise indicated, “NA.” In total

(including Juror 2132), the State had made four peremptory strikes against

African-American venirepersons. The others stricken by the State included Juror 2119, a

single, 64-year-old male with a high school education; Juror 2155, a single, 60-year-old

female with a high school education; and Juror 2164, a single, 39-year-old female with a

high school education.

8
At that point, the defense raised its own Batson challenge. In response, the State

acknowledged, “I’ll concede based on the pattern.” The following colloquy then took

place:

THE COURT: Okay. But the pattern is still consistent. And
--

[DEFENSE COUNSEL]: The pattern of strikes is all
African/Americans.

THE COURT: But the strikes left us with one, two, three,
four whites, though I was expecting 3.3. And as far as
males, one, two, three, four, five, when I was expecting
4.5.

Nothing the State has done has changed the -- the
basic appearance of the way the jury would have looked
had we just thrushed the crowd and said “Everyone run
up and take a seat.” So I’m going to deny the motion, as a
prima facie case has not been established yet.

[DEFENSE COUNSEL]: Judge, can I just briefly be heard,
that I -- I don’t think that necessarily the panel jury is the
standard. It’s whether the State is striking individual
jurors because of their race.

THE COURT: No. You see, if -- if 75 percent of the people
who came in were black females, I would expect that 75
percent of the people who were stricken would be black
females. That’s why I do a statistical analysis on how I’m
expecting the jury to look and see whether or not actions
taken by the parties is taking that out of balance.

That I believe is part of what I’m required to do for
the initial prima facie showing. It’s not just a question of
how many strikes you used against a particular group.

No matter how that would seem, it depends on how
things are. Because, let’s face it, most of the people who
came into the room when we called for and ended up getting
57 people, most of the people were black females.

9
(Emphasis added.) With that, the court denied Mills’s Batson challenge.4

The circuit court clearly erred in applying its statistical test for determining

whether Mills had set out a prima facie case of racial discrimination by the State in its

exercise of peremptory strikes. The Supreme Court has expressly rejected a statistical

test at the first step of the Batson analysis, observing that the “Constitution forbids

striking even a single prospective juror for a discriminatory purpose”[.]” Snyder v.

Louisiana, supra, 552 U.S. at 478 (quoting United States v. Vasquez-Lopez, 22 F.3d 900,

902 (9th Cir. 1994)).5

Moreover, had the circuit court applied the proper test—whether the opponent of

the strikes had shown “that the totality of the relevant facts gives rise to an inference of

discriminatory purpose,” Batson, 476 U.S. at 94—it would have been compelled to

conclude that Mills had satisfied his initial burden. For example, in Johnson v.

California, supra, 545 U.S. 162, the Supreme Court held that, where all three

African-American venirepersons had been peremptorily stricken by the prosecution, the

inference of discriminatory intent was “sufficient to establish a prima facie case under

4
Upon the conclusion of jury selection, Mills’s counsel, when asked whether the
empaneled jury was acceptable, replied, “Your Honor, yes, acceptable pursuant to my
motions,” thereby preserving this issue for appeal. See, e.g., Gilchrist v. State, 340 Md.
606, 618 (1995) (observing that when “a party complains about the exclusion of someone
from or the inclusion of someone in a particular jury, and thereafter states without
qualification that the same jury as ultimately chosen is satisfactory or acceptable, the
party is clearly waiving or abandoning the earlier complaint about that jury”).
5
The Snyder Court cited the following additional cases in support of the same
proposition: United States v. Lane, 866 F.2d 103, 105 (4th Cir. 1989); United States v.
Clemons, 843 F.2d 741, 747 (3d Cir. 1988); United States v. Battle, 836 F.2d 1084, 1086
(8th Cir. 1987); and United States v. David, 803 F.2d 1567, 1571 (11th Cir. 1986).

10
Batson.” Id. at 173. In Ray-Simmons v. State, supra, 446 Md. 429, the Court of Appeals

concluded that where, at the time the defendants had raised their Batson challenge, “the

State had exercised five peremptory challenges, all of which were to remove African

American men,” the “evidence sufficed to establish a prima facie case of race and gender

discrimination.” Id. at 443 (citations omitted). In Tolbert v. State, 315 Md. 13 (1989),

the Court of Appeals held that, where the State had exercised its “first four peremptory

challenges to strike black individuals,” the trial court was entitled to conclude that the

defendant had established a prima facie case. Id. at 18. And in Stanley v. State, 313 Md.

50 (1988), where the State had exercised eight of its ten peremptory strikes against

African-Americans, the Court of Appeals concluded that “there was enough evidence

presented to establish a prima facie case of discrimination against black jurors.” Id. at

72-73. Given this line of authority, we hold that, where the State had exercised four

peremptory strikes, all against African-Americans, and where it had apparently conceded

as much below (“I’ll concede based on the pattern.”), the circuit court clearly erred in

ruling that Mills had not established a prima facie case of discriminatory intent.

We next consider the appropriate remedy for the circuit court’s error. In

Ray-Simmons v. State, 446 Md. 429, the Court of Appeals set forth the usual rule:

[U]nless it is impossible to reconstruct the circumstances
surrounding the peremptory challenges, due perhaps to the
passage of time or the unavailability of the trial judge, the
proper remedy where the trial court does not satisfy Batson’s
requirements is a new Batson hearing in which the trial court
must satisfy the three-step process mandated by that case and
its progeny.

11
Id. at 447 (quoting Edmonds v. State, 372 Md. 314, 339-40 (2002)). The Court went on

to explain that a “limited remand may be appropriate, for example, where the State was

not given an opportunity at trial to explain its reasons for exercising the contested

peremptory challenges.” Id. (citing Mejia v. State, 328 Md. 522, 540 (1992), and Stanley

v. State, 313 Md. 50, 75-76 (1988)). That is precisely what occurred here.

We acknowledge that, under some circumstances, a limited remand is not the

appropriate remedy for a Batson error. For instance, the Ray-Simmons Court ordered a

new trial because it was “persuaded that it would be impossible to reconstruct a jury that

tried and convicted Petitioners almost four years ago.” Id. See Chew v. State, 317 Md.

233, 239 (1989) (observing that a new trial is the appropriate remedy for a Batson

violation when “the passage of time precludes fair consideration of the relevant issues”);

see also Tyler v. State, 330 Md. 261, 271 (1993) (remanding for new trial where the State

had admitted that its peremptory strikes had been exercised for a discriminatory purpose).

In the instant case, however, we are not persuaded that it would be “impossible to

reconstruct the circumstances surrounding” the aborted Batson hearing, Ray-Simmons,

446 Md. at 447, given the existence of the juror lists and the relatively brief time that has

elapsed since trial in this case. Chew, 317 Md. at 239 (holding that, despite “certain

difficulties” that “are inherent in attempting to reconstruct events that occurred a year or

more earlier, but where a reasonable possibility exists that reconstruction can be fairly

accomplished, the attempt is worth the effort,” and a limited remand is “appropriate”).

Moreover, the trial court’s error denied the State “an opportunity at trial to explain its

reasons for exercising the contested peremptory challenges.” Ray-Simmons, 446 Md. at

12
447; see Mejia, 328 Md. at 540 (holding that, where “[l]ess than two years” had elapsed

since jury selection had begun, there had not been “a sufficient lapse of time to justify a

grant of a new trial without affording the prosecution the opportunity to provide racially

neutral reasons for its exercise of the subject peremptory challenge”); accord Stanley,

313 Md. at 75-76.

For these reasons, we shall order a limited remand for “a new Batson hearing in

which the trial court must satisfy the three-step process mandated by that case and its

progeny.” Ray-Simmons, 446 Md. at 447. See Md. Rule 8-604(d)(1) (permitting a

limited remand if an appellate court “concludes that the substantial merits of a case will

not be determined by affirming, reversing or modifying the judgment, or that justice will

be served by permitting further proceedings”). The procedure to be followed is that

outlined in Edmonds, supra, 372 Md. 314—the circuit court must allow the prosecution

an opportunity to set forth “race-neutral reasons” for its peremptory strikes, and it must

then decide whether those reasons are bona fide or “pretextual.” Id. at 341. If the court

finds that Mills “has met his burden of proving purposeful discrimination,” it “shall order

a new trial,” but if it finds otherwise, then the judgments shall be affirmed. Id. at 341-42.

See also Stanley, 313 Md. at 77-80.

Sufficiency of the Evidence

Mills challenges the sufficiency of the evidence to sustain his convictions of

possession of cocaine with intent to distribute and simple possession. In reviewing the

sufficiency of the evidence to sustain a conviction, we consider “whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

13
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979). In conducting that review, we give “due regard to

the [fact finder’s] finding of facts, its resolution of conflicting evidence, and,

significantly, its opportunity to observe and assess the credibility of witnesses.” Moye v.

State, 369 Md. 2, 12 (2002) (citation and quotation omitted).

“Circumstantial evidence may support a conviction if the circumstances, taken

together, do not require the trier of fact to resort to speculation or conjecture, but

circumstantial evidence which merely arouses suspicion or leaves room for conjecture is

obviously insufficient.” Smith v. State, 415 Md. 174, 185 (2010) (citations and

quotations omitted). Rather, the circumstances must “afford the basis for an inference of

guilt beyond a reasonable doubt.” Id. (citations and quotations omitted).

“‘Possess’ means to exercise actual or constructive dominion or control over a

thing by one or more persons.” Md. Code (2002, 2012 Repl. Vol., 2015 Supp.), Criminal

Law Article (“CL”), § 5-101(v). Because a person “ordinarily would not be deemed to

exercise ‘dominion or control’ over an object about which he is unaware,” knowledge of

its presence “is normally a prerequisite to exercising dominion and control” and, hence,

possession. Dawkins v. State, 313 Md. 638, 649 (1988). Possession may be “actual or

constructive,” and it may be “either exclusive or joint in nature.” Moye, 369 Md. at 14.

Mills maintains that the circumstantial evidence adduced at his trial was

insufficient to support an inference, beyond a reasonable doubt, that he was aware of the

presence and nature of the cocaine recovered from the passenger-side door pocket of the

vehicle in which he had been riding. We disagree.

14
In assessing whether a person jointly exercises dominion and control over

contraband, Maryland appellate courts have typically applied the four-factor test set forth

in Folk v. State, 11 Md. App. 508 (1971). See Smith, 415 Md. at 198-99 (citing cases

applying those factors). Those factors are:

1) proximity between the defendant and the contraband, 2)
the fact that the contraband was within the view or otherwise
within the knowledge of the defendant, 3) ownership or some
possessory right in the premises or the automobile in which
the contraband is found, [and] 4) the presence of
circumstances from which a reasonable inference could be
drawn that the defendant was participating with others in the
mutual use and enjoyment of the contraband.

Folk, 11 Md. App. at 518.

The cocaine was recovered from an open compartment in the passenger-side door

of the vehicle. Mills had been seated in the front passenger seat—the seat that was

closest to the passenger-side door. Moreover, although the jury acquitted him of the

handgun charges, we note that the handgun was recovered from beneath the

passenger-side front seat, in which Mills had been sitting. Thus, there certainly was

proximity between Mills and the contraband.

We next consider whether the cocaine was in Mills’s view or otherwise within his

knowledge. Mills asserts that the contraband was not only out of his view, but it was also

unclear whether it had been stored with items (the socks) that did not belong to him,

which, in his view, further dilutes the inference that the contraband belonged to him. He

ignores, however, that a photograph depicting the bag of cocaine in the door

compartment was admitted into evidence and indicates that the bag was visible and,

15
specifically, not concealed by the pair of socks. Construing this exhibit in a light most

favorable to the State, as we must, we hold that, contrary to Mills’s assertion, a

reasonable jury could have concluded that the cocaine was visible to the passenger of the

car.

Moreover, under Mills’s hypothesis, it would necessarily be true that Fitzgerald,

the driver of the vehicle, possessed the contraband. We think it unlikely that Fitzgerald

would have stored contraband in the passenger-side door when other alternatives, such as

the compartment in the driver-side door or even the trunk, were available to him, unless,

at minimum, he and Mills jointly possessed the contraband. Whether to draw this or the

opposite inference, as Mills would have us do, was properly within the province of the

jury. See, e.g., State v. Smith, 374 Md. 527, 557 (2003) (observing that, in reviewing the

sufficiency of the evidence, the issue is “not whether the [fact finder] could have made

other inferences from the evidence or even refused to draw any inference, but whether the

inference [it] did make was supported by the evidence”).

The third factor, whether Mills had an ownership or possessory interest in the

vehicle, does not weigh in favor of Mills’s possession of contraband found within it. We

accord that factor, however, only slight significance, as otherwise we would be forced to

conclude that a passenger in a vehicle does not typically possess items found in close

proximity to him.

As for the fourth factor, the presence of circumstances from which a reasonable

inference could be drawn that Mills was participating in the mutual use of the contraband,

we note that, upon hearing a police officer call out, “Gun,” Mills fled the scene and was

16
discovered, shortly thereafter and four blocks away, hiding beneath a truck. That flight

and ensuing concealment could properly be considered by the jury as evidence of

consciousness of guilt. See, e.g., Thompson v. State, 393 Md. 291, 305 (2006). Mills’s

assertion that he fled out of fear of being accosted by the “intoxicated male” bystander

merely goes to the weight, not the sufficiency, of the evidence, because the jury was free

to infer that Mills’s flight was motivated, instead, by his consciousness of guilt. Smith,

374 Md. at 557. Under all the circumstances, there was sufficient circumstantial

evidence of Mills’s knowledge of the presence and nature of the contraband, including

the cocaine.

Prosecutor’s Comments

Mills complains that the prosecutor improperly commented upon a matter not in

evidence during closing argument, specifically, whether he is right-handed. Because, he

asserts, the evidence against him was “quite weak,” that improper comment cannot be

deemed to have had no effect on the verdict, and he therefore claims that reversal is

required.

The State counters that this claim is unpreserved because Mills objected only to

entirely different prosecutorial comments regarding the handgun and the purported

location a “hack” would store narcotics. But, maintains the State, even on the merits of

this claim, the prosecutor’s comment was within the scope of permissible argument, as it

was based upon the jury’s observation of the defendant and the reasonable inferences it

could draw from that observation.

17
We begin by setting forth some factual background. During the State’s closing

argument, the following took place:

THE STATE: We know that the defendant was prohibited
from possessing this [the handgun] due to a prior conviction.
That’s what we know. So we know (Inaudible at 12:07:14
p.m.) So the question is whether the defendant possessed
this.

Now, we know the defendant was sitting in the
passenger seat. We know a guy named David Fitzgerald,
who is not here today, sitting in the driver’s seat. We know --
we heard earlier that the seats were lower, lower to the floor
than these chairs are that I’m using here as a demonstration.
But we would imagine the seats would be about even.

Now, if I’m the driver, it’s awfully hard for me to
get this gun over and under that seat. And if I was able
to, I imagine the gun would look something like that.

[DEFENSE COUNSEL]: Objections, Your Honor, to the
“imagine the gun.”

THE COURT: Overruled. This is argument.

THE STATE: I’m the passenger, I have a gun in my pocket
or in my dip, and the police pull me over, and I’m right
handed, that’s how the gun’s going to look when I place it
under the seat. And I have drugs on me, I’m looking for
somewhere else to stash them, pocket next to me.

Now, if I’m the driver, and those are my drugs, and the
police pull up behind me, and they are in my pocket or
something like that, what am I going to do with my drugs?
There’s no way I’m getting them over there.

And if I’m a hack, if I’m an unlicensed taxi and I drive
people around as was suggested by the defense, am I going to
keep my drugs in the pocket that my passenger sits in? No.
That’s not a good way to store your drugs.

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And if I am storing my drugs in my vehicle for any
long-term trip, why am I going to put it there? Why don’t I
put it in the trunk of my car, the police are probably not going
to be able to search if I get pulled over.

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: Overruled. This is argument.

THE STATE: So we have drugs right here. We have a gun
just like that. If you pretend that this thing isn’t here, it would
be laying flat.

Now, I’m right handed. For me to face this in any
other way, I would have to contort my body and do
something like that unnaturally.

If I was trying to hide it quickly, that’s exactly how it’s
going. Of course that’s if I’m right handed. And I would
encourage you to try your best to recall which hand the
defendant has been writing with this entire time throughout
this trial. I think you can take a hint.

(Emphasis added.)

Preservation

Mills contends that a general objection preserves all available grounds and that

because he made a general objection below, his appellate claim that the prosecutor

improperly argued a matter not in evidence was preserved. The State counters that

Mills’s objections were made to entirely different comments—the prosecutor’s

suggestion to the jury to “imagine the gun” and the prosecutor’s comments regarding the

optimal method a vehicle occupant would use to store contraband.

In our view, the State has the stronger argument. Although it is true, as Mills

points out, that “when the trial court does not request a statement of the grounds for an

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objection, a general objection is sufficient to preserve all grounds which may exist,” Ali

v. State, 314 Md. 295 (1988) (citations omitted), abrogated on other grounds by Nance v.

State, 331 Md. 549 (1993), we think that Mills attributes talismanic powers to the general

objection he lodged below and ignores the fact that an objection, whatever its character,

must still be timely. See Yates v. State, 429 Md. 112, 130 (2012) (observing that the “rule

of contemporaneous objection applies even to errors of constitutional dimension”) (citing

Savoy v. State, 420 Md. 232, 241-42 (2011)).

The general objection was made well after the State had made the remark of which

Mills now complains, “and I’m right handed”; in fact, more than three paragraphs of

transcript separate that remark from Mills’s general objection. See Md. Rule 4-323(a)

(providing that 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”

and that “[o]therwise, the objection is waived”). Furthermore, the State elaborated on

that remark after Mills had made his general objection, and he did not repeat his earlier

objection, nor did he at any time ask for a continuing objection. Id. § (b). We hold that

Mills’s appellate complaint, that the prosecutor made improper comments as to whether

Mills is right-handed, was not preserved.

Merits of the Claim

Even if Mills had preserved this claim for our review, we would hold that he has

not shown reversible error. This requires us to consider a question that Maryland

appellate courts have not directly addressed and on which courts from other states are in

disagreement—whether a prosecutor may comment upon a physical characteristic of the

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defendant that has not been the subject of any testimony but may nonetheless be

observable by the jury, in this case whether the defendant is right-handed.

We shall briefly examine two appellate decisions from our sister jurisdictions, as

they exemplify both sides of this issue: People v. Ferguson, 626 N.E.2d 930 (N.Y. 1993)

(mem), and Commonwealth v. Cohen, 589 N.E.2d 289 (Mass. 1992).6

In People v. Ferguson, the Court of Appeals of New York held that

[w]here no formal demonstration of the defendant’s
“handedness” had been presented during trial, the
prosecutor’s remark to the jury during summation—“[y]ou
have been here through the course of the trial and [have] seen
[defendant] sitting there. Defendant takes notes with his left
hand”—constituted an improper reference to facts not in
evidence[.]

Id. at 930 (citation omitted). The Court nonetheless affirmed Ferguson’s robbery

convictions because the trial court, unlike in the instant case, had given a curative

instruction, “which directed the jurors to disregard the note-taking comment and clearly

indicated that no evidence had been presented concerning whether defendant was left or

right handed[.]” Id. at 930-31.

6
Mills relies primarily upon Good v. State, 723 S.W.2d 734 (Tex. Crim. App.
1986) (en banc), but that case does not directly address prosecutorial comment regarding
a defendant’s right- or left-handedness. In Good, the prosecutor commented upon the
defendant’s “cold, unnerved, uncaring” demeanor during trial and opined that his
demeanor could be construed as evidence of guilt, concluding that “you can be orderly
and yet show something on your face.” Id. at 735. The Court of Criminal Appeals of
Texas held that those remarks were improper because they “focused on neutral or passive
conduct that was not in evidence and compounded that error by using the neutral or
passive conduct to make an unreasonable inference of guilt.” Id. at 738. To the extent
that Good is relevant to the instant case, its holding is entirely consistent with that of the
Court of Appeals of New York in Ferguson.

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In Commonwealth v. Cohen, during closing argument in a first-degree murder

trial, the prosecutor stated to the jury: “But I would suggest to you the gunshot is

consistent with a right-handed man. I think you’ve probably seen [the defendant] writing

during this case on the paper. Reach around and fire a shot in the center of the back,

downward.” Id. at 296. The defense did not object to that comment. Id.

The Supreme Judicial Court of Massachusetts, applying a plain error standard of

review, rejected Cohen’s argument that the prosecutor had improperly commented on a

fact not in evidence. The Court held that it was “not improper for the prosecutor to point

out that the defendant was right-handed,” citing a prior case that had held that it was not

improper for the prosecutor to comment about the defendant’s demeanor, “where such

comment did not suggest personal knowledge of the prosecutor[.]” Id. at 296-97 (citing

Com. v. Smith, 444 N.E.2d 374, 380 (Mass. 1983)).

The view taken by the Massachusetts court is, we believe, the sounder one.

Whether the defendant writes with his right or left hand during trial is a matter plainly

within the jury’s observation and, in our view, is no different than the defendant’s height,

weight, hair color, or skin tone. All are matters that the jury may take into account where

relevant, and it is not improper for the prosecutor to call the jury’s attention to such

22
personally identifying characteristics of the defendant, so long as the jurors had an

opportunity to observe them, and they are relevant to the case.

CASE REMANDED WITHOUT
AFFIRMANCE OR REVERSAL TO
THE CIRCUIT COURT FOR
BALTIMORE CITY FOR FURTHER
PROCEEDINGS CONSISTENT
WITH THIS OPINION. COSTS TO
ABIDE THE RESULT.

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