MATRICCIANI, J.
On May 4, 2010, the Grand Jury for Baltimore City indicted appellants, Baltimore City Police Officers Tyrone Francis and Milton Smith, on charges of kidnapping, false imprisonment, assault in the second degree, conspiracy, and misconduct in office. On April 19, 2011, the Circuit Court for Baltimore City commenced trial, and on May 2, 2011, the jury returned its verdict acquitting appellants of all crimes but misconduct. On June 1, 2011, the court sentenced each appellant to eighteen months of confinement, all suspended, and to eighteen months of probation. On June 7, 2011, appellants noted their appeals, which were consolidated on March 26, 2012.
Appellants present the following questions, which we have rephrased for clarity:
For the reasons that follow, we answer no to each of these questions and affirm the judgments of the Circuit Court for Baltimore City.
Appellants were detectives in the Baltimore City Police Department, assigned to the "Violent Crimes Impact Division."
The details of these encounters are hotly contested, but it is undisputed that after driving around for some time with each of the young men, the detectives deposited Woodland in east Baltimore, approximately three miles from the Gilmore Homes, and deposited Johnson in Howard County, approximately ten miles west of the Gilmore Homes. Woodland walked the three miles back to his residence. In Howard County, Johnson called 911 from a gas station nearby, and at approximately 8:00 p.m., Officer Terrence Benn of the Howard County Police Department found Johnson where he had been left, wearing damp clothes without shoes or socks and appearing frightened.
Appellants were indicted on May 4, 2010, and charged with kidnapping, false imprisonment, assault in the second degree, conspiracy, and misconduct in office. They and Hellen moved to sever all charges and all co-defendants, but the circuit court denied their motion and ruled that the evidence in all cases and all counts was mutually admissible. Appellants elected to be tried by jury while Hellen chose a bench trial, and the joint proceedings commenced on April 19, 2011.
The State called Woodland to testify, and he provided the following version of the events of May 4, 2009. At approximately 5:00 p.m., Woodland was standing with his friend when the three detectives drove up and asked Woodland a question. When he did not respond and started laughing at his friend's joke, the detectives exited the vehicle, handcuffed him, and placed him in the van. Smith said that Woodland needed to "learn a lesson," and the detectives made threatening statements as they drove. Woodland answered no questions, but when the detectives dropped him off in east Baltimore, Smith said, "Thanks for the information."
Johnson also testified at trial and recounted the following facts. Francis was in the van when he called Johnson over and told him that Smith, seated in the back of the van, had something to say. When
Myron Evans, who had been with Woodland and Johnson earlier, and Cory Taylor, another young area resident, testified that the detectives returned to the Gilmore Homes development and threw Johnson's shoes and socks from the van. Taylor gave the shoes to Evans's sister, Shekia McCaskill, who testified that when she took them to Johnson's residence, he was on the steps of his house, visibly upset and without shoes.
On cross-examination, Woodland stated that he did not see the detectives throw Johnson's shoes and socks from the van when they returned to the Gilmore Homes. The defense confronted Woodland with a 2009 police report indicating that he had seen Johnson's socks and shoes thrown out, and asked whether he had told the State's attorneys the same thing. Woodland denied what was in the report, and he stated that he told both the police and the State's attorneys that he had not seen Johnson's shoes thrown from the van. The defense moved for a mistrial on the grounds that the State had "an absolute obligation" to disclose Woodland's statements to the State's attorneys because they contradicted the police report of his statement in 2009. The court denied this motion, ruling that because the State had disclosed Woodland's police statement along with contradictory statements from other witnesses, it had satisfied its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Maryland Rule 4-263.
When the defense cross-examined Johnson, he stated that he had called 911 twice from Howard County. He explained that in his first call, he told the operator that he had been "beaten up" by the police, but the dispatcher laughed and hung up, and Johnson had to call back and repeat himself. The second time, the dispatcher asked if Johnson had called a moment ago and eventually directed Officer Benn to Johnson's location.
Johnson said he had informed the police of these facts in 2009 and, more recently, had informed two State's attorneys. The defense moved for a mistrial, arguing that
After the State rested, appellants' co-defendant, Officer Hellen, moved for a continuance to accommodate his trial counsel's schedule. The court granted the continuance and suspended only Hellen's bench trial, while the court proceeded with appellants' jury trial and verdict.
Of the three detectives, only Officer Francis testified for the defense. He explained that he believed Woodland was either under arrest or providing information on criminal activity, and that Johnson was put in the van because he was providing similar information. Francis also testified that none of the detectives made the remarks that Woodland and Johnson alleged. Finally, Francis stated that he drove into Howard County because he missed an exit on the beltway, and that Smith told him to leave Johnson in the county because Johnson requested to be left there.
Appellants concluded their defense and the court charged the jury. Appellants objected to the court's proposed misconduct instruction on the grounds that the crime of malfeasance includes only "unlawful" acts.
In closing, the State argued that the detectives' failure to follow proper police procedures was evidence that they were not conducting a legitimate investigation on the night in question. The State recounted testimony from various police officials saying that officers cannot use a juvenile as an informant without parental permission. The State then called into question the defense's theory that if a juvenile is a "confidential source," an officer could take the juvenile to a remote location for questioning without parental permission. The State argued that a confidential source is someone who comes forward with information, and not "a person that you pick up off of the street and take wherever you want without their parent's permission." The State attempted to round out its argument with a rhetorical question: "Yet in their arrogance these Defendants suggest that because these kids live in — can you imagine this argument being made in Howard County or Baltimore County?" The court sustained the defense's objection to this comment, without explanation.
The State immediately launched into another rhetorical question and asked, "Do you think if there was any legitimacy to [the defendants'] taking these 15-year-olds and dropping them off miles from their homes that [the defendants] would
When the State concluded its argument, the defense moved for a mistrial and argued that the State's first rhetorical question was an appeal to racism and bias. The defense also argued that the State's second rhetorical question improperly suggested that the detectives' suspension from work was a determination of wrongdoing. The court denied the motion for mistrial, holding that the State's attorney was interrupted during its first question and thus "didn't even make" the argument that the defense attributed to her. The court also held that having struck the State's second question was a sufficient remedy and that it required no further action.
In closing argument, counsel for Smith argued to the jury members that the State was asking them "to act like [the defendants] just appeared one day on May 4th, 2009 as police officers and somehow became rogue cops, became rogue detectives and stepped out of who[] they have been for so long to commit these crimes." Counsel for Francis similarly argued that the detectives were "good officers:"
The State took up this issue in its rebuttal and argued: "We are not saying ... that all of [a] sudden their behavior just changes. We're saying this time they got caught." The defense objected,
The jury deliberated and returned its verdict acquitting appellants of all counts except misconduct. As previously indicated, the court sentenced each appellant on June 1, 2011 to eighteen months of confinement, all suspended, and to eighteen months of probation. Appellants then noted their appeals, which were consolidated for briefing and argument in this Court.
Appellants argue that the circuit court erred when it denied their motions for mistrial on the grounds of improper and prejudicial remarks in the State's closing argument. As a general matter, counsel are afforded "great leeway" when presenting that portion of their case. Donaldson v. State, 416 Md. 467, 488, 7 A.3d 84 (2010).
Wilhelm v. State, 272 Md. 404, 412-13, 326 A.2d 707 (1974) (brackets in original), quoted in Mitchell v. State, 408 Md. 368, 380, 969 A.2d 989 (2009).
Despite this latitude, counsel may not comment upon facts not in evidence or appeal to the prejudices or passions of the jurors. Id. at 489, 7 A.3d 84. We will not reverse a conviction due to a ruling on a prosecutor's improper remarks unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party; this is so if it appears that the remarks actually misled the jury or were likely to have misled or influenced the jury to the defendant's prejudice. Id. at 496-97, 7 A.3d 84. We therefore consider whether each remark was independently proper, then take them together in light of the circumstances at trial to determine whether they justified a mistrial. Id. at 496-97, 7 A.3d 84. For the reasons that follow, we hold that while certain State comments were — or may have been — improper, they were not likely to have misled or influenced the jury to the defendant's prejudice.
Appellants first claim that the State improperly commented on facts not in evidence when the State's rebuttal argument insinuated that appellants had not been caught despite committing similar acts in the past. In response, the State argues that its rebuttal comments were an "invited response" to the defense's closing argument that appellants had no history of improper police conduct. See Mitchell, 408 Md. at 381-82, 969 A.2d 989 (explaining the rule of "invited response").
In our opinion, the State's argument was a fair comment on the evidence. The defense, in closing, urged the jury to recall that appellants have no adverse disciplinary history and, from that fact, infer that they had not actually committed any bad acts in the past. The State, in turn, asked the jury to consider that the dearth of evidence could also be explained by imperfections in the disciplinary process, and the State urged the jury to infer the opposite of appellant's suggested fact. Of course, neither side had any evidence of how "accurate" the disputed disciplinary process is, but to hold that these remarks were unfair would prevent an attorney from either critiquing or defending any disciplinary system without evidence of that system's accuracy. There are, of course, practical limits to such inquiries, and we cannot expect parties in every case to investigate these matters.
Appellants next argue that the State's reference to Baltimore and Howard Counties was "calculated to unfairly prejudice the jury against the defendant" by appealing to the jurors' personal interests as residents of Baltimore City. Appellants rely on Hill v. State, 355 Md. 206, 225, 734 A.2d 199 (1999), which held that "appeals to jurors to convict a defendant in order to preserve the safety or quality of their communities are improper and prejudicial."
As we see it, there are two possible interpretations of the State's rhetorical question asking the jury to consider how appellants' actions would be perceived in Howard or Baltimore Counties as opposed to the City. First, the State may have meant that appellants were simply mistaken in believing that city residents are more likely to know information useful to police. But the more likely meaning — intended or not — is that regardless of whether interrogating the average city resident is more fruitful than interrogating the average county resident, the two groups should be treated equally. Regardless of whether this was an appeal to class, race, or any other demographic division, it had no basis in the evidence and possibly appealed to the jury's interests as city residents; as such, it appears to have been an improper comment.
Appellants next contend that the State commented on facts not in evidence when it referred to appellants' suspensions from work following the incidents in question. In our view, this was an improper remark on facts not in evidence, but we note that it did not introduce appellants' suspensions into the trial; that fact had arisen earlier from various witness' testimony.
Having considered the propriety of each statement, we now must determine whether, taken together, they actually misled the jury or were likely to have misled or influenced the jury to the defendants' prejudice. Donaldson, 416 Md. at 496-97, 7 A.3d 84. As explained, above, the State's comments about appellants' prior conduct were not improper, or else they constituted a non-prejudicial "invited response." Thus, our only concern is with the State's rhetorical questions about geographical disparities and disciplinary proceedings.
Id. (internal citations, quotation marks, and footnote omitted).
In Hill, 355 Md. at 226, 734 A.2d 199, the Court of Appeals added that the reviewing court must "take account of the persistency of the prosecutor's conduct — continuing to make these remarks time and again despite the court's rulings that the remarks were improper."
Id.
We first note that the State's comments were not persistent. The court immediately sustained the defense's objections to both improper comments, and it ordered that the second be struck from the record.
Second, the State did not call on the jurors to act on their prejudices or personal interests as in Hill. Judge Wilner vividly described the State's actions in Hill that led the Court to reverse the defendant's conviction:
355 Md. at 211-13, 734 A.2d 199. Here, the State referred to the jurors' community obliquely and abandoned the argument upon the court's instruction.
Third, we agree with the trial court's assessment that the State did not make its argument clear to the jury. The State's brief "performance" in this case lies closer to Couser v. State, 36 Md.App. 485, 501, 374 A.2d 399 (1977), aff'd on other grounds, 282 Md. 125, 383 A.2d 389 (1978), in which the prosecutor made a single improper statement: "Let me just say this to you, by your vote you can say no to drug dealers, to people who rain destruction." We held in Couser that while the State's comment was improper, it was not likely to have misled the jury to the prejudice of the accused. Id. at 501-02, 374 A.2d 399.
Fourth, although in the present case the State made two questionable comments, their combination does not remove this case from the realm of Couser and move it into prejudice. In its remark on appellants' suspensions, the State posed a question that might occur to anyone who knew that appellants had been suspended. The jurors already knew just that, and thanks to the trial court's swift intervention, the State was unable to drive its point home.
Finally, although the "weight of the evidence" against appellants did not greatly outweigh their defense, we cannot ignore the fact that the sum of all the evidence far outweighed the two stunted inferences the State made in its closing remarks. See Reeves v. State, 807 So.2d 18, 44-45 (Ala. Crim.App.2000) ("A prosecutor's statement must be viewed in the context of all of the evidence presented and in the context of the complete closing arguments to the jury." (quoting Roberts v. State, 735 So.2d 1244, 1253 (Ala.Crim.App.1997), aff'd, 735 So.2d 1270 (Ala.1999))). The State's remarks did not result in the amount of prejudice held sufficient for reversal in past cases, and in light of the several days' worth of evidence presented to the jury and the court's swift action stopping the arguments before their completion, we conclude beyond a reasonable doubt that the State's closing arguments were not likely to have misled the jury or influenced its verdict against appellants.
Appellants next argue that the circuit court erred when it instructed the jury that a misconduct conviction in this case could rest on "wrongful" acts, rather than "unlawful" acts. Appellants were charged generally with "misconduct," which the Court of Appeals has explained comes in
Admittedly, it is difficult to discern any difference between misfeasance and malfeasance if both are satisfied by "wrongful" conduct; and according to our research, the majority of states restrict malfeasance to "unlawful" conduct, whereas misfeasance is "lawful" conduct done "wrongfully."
Even if the Court of Appeals were to adopt the distinction that appellants urge, it appears that this would make no difference to appellants' case. As the Court of Appeals held in State v. Carter (coincidentally, a misconduct case cited in Duncan), "the name of a crime given in an indictment does not determine the offense alleged to have been committed by the accused, but the offense is determined by the facts stated in the indictment." 200 Md. at 262, 89 A.2d 586 (citing Cargile v. State, 67 Ga.App. 610, 21 S.E.2d 326 (1942)), cited with approval in Evans v. State, 389 Md. 456, 479, 886 A.2d 562 (2005). Appellants do not appear to have preserved any challenges to their charging documents, which alleged that their actions were "unlawful and improper." It therefore appears that the State could have failed to prove that the impugned acts were unlawful, but nonetheless proved that the acts were improper. As such, the proof would have been consistent with the charging documents and consistent with both the trial court and the pattern jury instructions on misconduct in office.
Next, appellants contend that the circuit court erred when it denied their motion for mistrial grounded on the State's failure to disclose various prior inconsistent statements under the law of Brady v. Maryland and Rule 4-263. Both Brady and the Maryland rules require the State to disclose its witnesses' inconsistent statements. Conyers v. State, 367 Md. 571, 600-01, 790 A.2d 15 (2002) (citing Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 557 (4th Cir.1999)); Rule 4-263(d)(6). Chief Judge Krauser, writing for our Court, recently set forth the standard of review for discovery sanctions in Raynor v. State, 201 Md.App. 209, 227-28, 29 A.3d 617 (2011):
(Internal citations and quotation marks omitted.)
We begin our analysis by noting that while appellants' counsel represented to us that the disputed prior statements are in the record, counsel has failed to cite any part of it that actually sets forth those statements. Instead, appellants have left us to read the transcription of arguments on this issue and compile some sketch of what was said from the attorneys' and court's second-hand accounts. This, alone, would provide us with sufficient reason to deny appellants' claims of error. See Maryland Rule 8-501(c) ("The record extract shall contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal and any cross-appeal."); see also Md. Reclamation Assocs., Inc. v. Harford County, 414 Md. 1, 61 n. 13, 994 A.2d 842 (2010) ("[The Petitioner] has the responsibility to support its factual assertions by citing pages of the record extract."); ACandS, Inc. v. Asner, 344 Md. 155, 192, 686 A.2d 250 (1996) ("[T]he appellate court has no duty independently to search through the record for error[.]"); Pulte Home Corp. v. Parex, Inc., 174 Md.App. 681, 760-61, 923 A.2d 971 (2007) ("We decline to comb through the eight-volume, 3,876-page record extract to ascertain information that Parex should have provided[.]"). Notwithstanding appellants' failure to assist in this matter, we reviewed the record as best we could and still have found no reason to reverse the trial court's rulings.
Appellants argue, first, that Woodland's statement to the State's attorneys that he had not seen Johnson's shoes thrown from the van should have been disclosed under Maryland Rule 4-263(d)(6) as an inconsistent statement. We agree with appellants that the trial court erred in holding that because the defense knew of other witness testimony that contradicted Woodland's statement, Rule 4-263 did not require the State to disclose Woodland's statement. The Rule's text requires disclosure of all inconsistent statements; thus, any particular statement that is inconsistent with any other particular statement must be disclosed. "Notice" of inconsistency derived from other witness statements does not remove the State's duty to disclose an inconsistent statement under the Rule as written. That said, the Rule's purpose is to assist the defendant in preparing a defense, and to protect the defendant from surprise. Hutchins v. State, 339 Md. 466, 473, 663 A.2d 1281 (1995). Thus, when we address the question of prejudice and remedy, we must consider that appellants were on notice, prior to trial, that Woodland's statements directly contradicted other witnesses. In that light, the trial court's ruling simply reflects its finding that appellants could have and should have developed the issue prior to trial, removing any offending prejudice. But those grounds are ultimately unnecessary for our disposition; once the defense was fully aware of the statements,
Appellants also contend that the State should have disclosed Johnson's pretrial statements that he called 911 twice, and that the operator initially laughed and hung up before dispatching police on the second call. Here, appellants confuse two separate inconsistencies.
First, there is the question of whether Johnson made two calls to 911. It is undisputed that Johnson's phone records reflect two 911 calls, and it is not at all clear from the record whether he actually stated at any time prior to trial that he only made one call. The only portion of the record to which appellants cite is their attorneys' argument that the State's discovery production did not make them "aware" of two 911 calls. Without the substance of that discovery before us, there is no way to know whether they simply failed to appreciate that the State's disclosures were silent on the issue — and therefore consistent with Johnson's trial testimony — or whether there was some positive indication that only one call was made. There is thus every indication that Johnson did, in fact, call 911 twice, and appellants cite no record evidence that he ever contradicted himself in that regard.
Second, the trial transcript does reveal an inconsistency between the contents of Johnson's 911 calls, his recollection at trial, and — as far as we can tell from the State's concessions at trial — his statement to the State's attorney prior to trial.
Lastly, appellants argue that the circuit court erred when it suspended the
There are, however, a number of states wherein "wrongful" conduct suffices for "malfeasance." See Ariz. Indep. Redistricting Comm'n v. Brewer, 229 Ariz. 347, 275 P.3d 1267, 1276 (2012); Alabama Elec. Coop. v. Alabama Power Co., 283 Ala. 157, 161, 214 So.2d 851 (Ala.1968); White v. Lowry, 162 Miss. 751, 758, 139 So. 874 (Miss.1932); Lee v. Providence Wash. Ins. Co., 82 Mont. 264, 274-75, 266 P. 640 (Mont.1928); State v. Hinds, 143 N.J. 540, 545, 674 A.2d 161 (N.J. 1996); Lawhorn v. Robertson, 1954 OK CR 19, 266 P.2d 1008 (Okla.Crim.App.1954); State ex rel. Steffen v. Peterson, 2000 SD 39, P20, 607 N.W.2d 262 (S.D.2000); and Madsen v. Brown, 701 P.2d 1086, 1094 (Utah 1985).
The remaining states make no distinction between malfeasance and misfeasance. See People v. Schneider, 133 Colo. 173, 178, 292 P.2d 982 (Colo.1956); Commonwealth v. Wood, 116 Ky. 748, 750, 76 S.W. 842 (Ky. 1903); State v. Petitto, 59 So.3d 1245, 1248-49 (La.2011); State v. Hinds, 143 N.J. 540, 545-46, 674 A.2d 161 (N.J.1996); and Commonwealth v. Dolny, 235 Pa.Super. 241, 247, 342 A.2d 399 (Pa.Super.Ct.1975).