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Owens-Corning Fiberglas Corp. v. Garrett8/28/1996
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Godwin, 340 Md. at 407, 667 A.2d at 152. (citing Evans, 330 Md. at 19, 622 A.2d at 112).
In the instant case, we regard certain of the remarks of plaintiffs' counsel as oratorical flourishes, melodramatic but not prejudicial to the defendants. Using alarming terms such as "robbed," "stole," "hostage" and "stalked," although not approved, are not likely to influence a reasonable jury unfairly.
We admonish plaintiffs' counsel for their repeated references to murder and analogies to "Nazis" and the "Holocaust." Such terms are unduly inflammatory; moreover, they raise certain images and specters which could be extremely upsetting and unfairly influential to jurors who may have personal experience with the persons and events behind the terms so carelessly tossed about in the courtroom. As the Court of Special Appeals stated in Alexander & Alexander, Inc. v. B. Dixon Evander & Assoc., Inc., 88 Md. App. 672, 596 A.2d 687 (1991), cert. denied, 326 Md. 435, 605 A.2d 137 (1992),
"There is no need for snide remarks, pejorative, and unfounded hyperbole or exaggeration . . . The search for truth, which is supposedly the principal function of a trial, is assisted much more by light than by heat."
Id. at 702-03. See also Keene Corp. v. Hall, 96 Md. App. 644, 666-67, 626 A.2d 997, 1009 (1993).
Despite the improper nature of certain remarks in plaintiffs' closing arguments, we do not find overall that defendants were unfairly prejudiced such that the trial judge abused his discretion in failing to grant a mistrial. First, the trial judge actively sought to remedy the problem with two separate curative instructions; moreover, he is correct in noting that defendants' counsel did not request a curative instruction as they should have, nor did defense counsel request a mistrial at the proper time during the trial.
Second, the jury sat through four months of trial testimony and exhibits, sifted through reams of documents, and heard hours of closing arguments. We do not believe the utterance of a few improper words and phrases, while unquestionably a conscious attempt to inflame the passions of the jury, was enough to cancel out the jury's search for truth among the voluminous evidence. To hold otherwise would be to manifest an unfair mistrust of the jury and its ability to separate rhetoric from fact.
Finally, although we wish heartily to discourage exactly the type of argument plaintiffs' counsel made in this case, we cannot justify remanding for a new trial a four-month case with eighteen boxes of record and thousands of pages of transcript when overall the case was extremely well-tried. We do not mean to imply in any way that counsel in future cases should assess the performance of the trial judge and then determine whether it is safe to indulge in improper remarks; to the contrary, although we are unwilling to find undue prejudice here, another case in which unfairly prejudicial argument rears its ugly head might result in the opposite outcome. We simply mean that the trial judge did not abuse his discretion when he evaluated the conduct of the entire four-month trial, weighed the improper remarks against that backdrop, and determined that granting a mistrial would not be just.
OCF's complaint about other prejudicial events during trial is barely worth comment. Mr. Scruggs was obviously dying of cancer, a fact of which the jury was fully aware; his death during the trial was hardly prejudicial and most certainly had to be communicated to the jury. Mrs. Hohman's death, while unexpected, was not prejudicial in any way we can discern, and OCF gives us no assistance. OCF merely states in conclusory fashion that the trial
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