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Southern v. State9/12/2001
rt interrupted counsel with its ruling. As we have determined that appellant is entitled to a new suppression hearing, we need not address this issue.
III. Prosecutor's Remarks During Closing Argument
Appellant next contends that his conviction must be reversed because the prosecutor made an improper remark during closing arguments. During the trial, one of the victims of the alleged assault, Rita Staton, did not testify. Because Staton did not testify, the trial court gave the jury a missing witness instruction. During closing, the prosecutor offered an explanation why Staton did not testify, suggesting that "testifying in this case would have traumatized her." The following occurred:
[PROSECUTOR]: Well, ladies and gentlemen, understand that this was a young lady who was very upset about what happened. And she was very shaken up that day. And perhaps, ladies and gentlemen, coming to court and testifying in this case would have traumatized her.
[DEFENSE COUNSEL]: Objection.
THE COURT: Yes. Just comment on the evidence, not on things that are not evidence.
[PROSECUTOR]: The point is . . . the fact that Miss Staton is not here today does not mean that you should find the defendant not guilty of robbing the 7-Eleven . . . . Because there was evidence in this case, and the facts, ladies and gentlemen, that you have to consider show there is evidence that you can find him guilty, otherwise you would not have those two counts --
[DEFENSE COUNSEL]: Objection
[PROSECUTOR]: -- involving Miss Staton
THE COURT: Overruled.
Appellant contends that the prosecutor's statement that "otherwise you would not have those two counts . . . involving Miss Staton" "exceeded the bounds of proper closing argument." He argues that "the prosecutor improperly suggested to the jury that the survival of the counts relating to Ms. Staton in the charging document at the conclusion of the trial indicated that they were strongly supported by the evidence."
Attorneys are afforded great leeway in presenting closing arguments. See Degren v. State, 352 Md. 400, 429 (1999). During closing arguments, counsel may "state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence[.]" Wilhelm v. State, 272 Md. 404, 412 (1974). Nevertheless, prosecutors are not without limits in presenting closing arguments. See Degren, 352 Md. at 430. "Whether any impropriety occurred in the closing argument rests largely within the control and discretion of the presiding judge[,]" Grandison v. State, 341 Md. 175, 225 (1995), cert. denied, 519 U.S. 1027, 117 S. Ct. 581 (1996), and "not every improper comment requires reversal." Williams v. State, 137 Md. App. 444, 456 (2001). Reversal is only warranted if "it appears that the remarks of the prosecutor actually misled the jury or are likely to have misled or influenced the jury to the prejudice of the accused." Jones v. State, 310 Md. 569, 580 (1987), vacated and remanded on other grounds, 486 U.S. 1050, 108 S. Ct. 2815 (1988). Moreover, the alleged prejudicial remarks must be examined in the context of the facts of the particular case. See Wilson v. State, 136 Md. App. 27, 76, cert. granted, 363 Md. 662 (2000). "An appellate court should not disturb the trial court's judgment absent a clear abuse of discretion by the trial court of a character likely to have injured the complaining party." Grandison, 341 Md. at 225.
Appellant complains that the prosecutor's comment that charges had been brought suggested that the charges were supported by the evidence and "the mere existence of formal charges alleging those
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