Wilhelm v. State

In Wilhelm v. State, 272 Md. 404, 326 A.2d 707 (1974), the defendant was convicted of assault with intent to murder a police officer, resisting arrest, and unlawful use of a handgun in the commission of a felony. In opening statement, the prosecutor said, "'The State feels this is the Jury's chance as individuals and collectively as citizens of Baltimore County -- we hear the hue and cry of police protection -- we feel this is your occasion to do something about it.'" Wilhelm, 272 Md. at 407. The defendant objected and requested a mistrial, but that request was denied. The Court affirmed in an unreported opinion, suggesting that the remark may have been improper but had been unlikely to mislead the jury. The Court of Appeals affirmed, giving due weight to the trial judge's finding of no prejudice. The Court observed that the remark was "but one sentence in the extensive proceedings, singularly made and unrepeated." 272 Md. at 436. The Court then stated: The trial judge was in the most advantageous position to evaluate any potential prejudice from the remark; by his ruling he found none. If in the trial environment he had sensed the likelihood of any prejudice he would have carried out the duty with which he was entrusted . . . and of which he was certainly aware -- to instruct the jury to disregard such remark; the exigencies of the situation did not appear to him to require such a cautionary instruction. We agree. Id. at 436-37. The Court of Appeals addressed the scope of closing arguments as follows: As to summation, it is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range. Counsel is free to use the testimony most favorable to his side of the argument to the jury, and the evidence may be examined, collated, sifted and treated in his own way. . . . Generally, counsel has the right to make any comment or argument that is warranted by the evidence proved or inference therefrom. . . .(Id. at 412.) Although the courts give counsel broad discretion in the scope of their closing arguments, such discretion is not limitless. See Wilhelm, id. at 413 (stating that it is improper for counsel "to state and comment upon facts not in evidence or to state what he could have proven."). In Wilhelm, 272 Md. at 415-16, the Court of Appeals discussed what is required for a reversal based on improper statements by a prosecutor: "The fact that a remark made by the prosecutor in argument to the jury was improper does not necessarily compel that the conviction be set aside. Conway v. State, 7 Md. App. 400, 256 A.2d 178 (1969). The Maryland Rule is that unless it appears that the jury were actually mislead or were likely to have been mislead or influenced to the prejudice of the accused by the remarks of the State's Attorney, reversal of the conviction on this ground would not be justified. Wood v. State, 192 Md. 643, 65 A.2d 316 (1949); Holbrook v. State, 6 Md. App. 265, 250 A.2d 904 (1969)" The Court of Appeals concluded that "the trial court's instructions to the jury concerning statements and arguments of counsel not to be considered evidence, and his direction that they find their facts only from 'what you have heard from the witness stand and the exhibits which have been received,' sufficiently eliminated any possibility of prejudice." The Court of Appeals set forth the following general rule with respect to opening statements by prosecutors injury trials of criminal cases: "The primary purpose or office of an opening statement in a criminal prosecution is to apprise with reasonable succinctness the trier of facts of the questions involved and what the State or defense expects to prove so as to prepare the trier of facts for the evidence to be adduced. While the prosecutor should be allowed a reasonable latitude in his opening statement he should be confined to statements based on facts that can be proved and his opening statement should not include reference to facts which are plainly inadmissible and which he cannot or will not be permitted to prove, or which he in good faith does not expect to prove. An opening statement by counsel is not evidence and generally has no binding force or effect. To secure a reversal based on an opening statement the accused is usually required to establish bad faith on the part of the prosecutor in the statement of what the prosecutor expects to prove or establish substantial prejudice resulting therefrom." (272 Md. at 411-12.) Further: "Although the purpose of an opening statement is to apprise, with reasonable succinctness, the trier of facts of the questions involved and what is expected to be proven, such opening statement does not need to be limited to a factual recitation of what is expected to be elicited from the prospective witnesses. Counsel are entitled to make what rhetoricians call an exordium--that part of the opening intended to make the listeners heed you and to prepare them for that which is to follow. We do not mean to suggest that the performing artists be given a "broad range" in their efforts at advocacy. Each case must depend upon its own peculiar facts and both counsel -- for the prosecution as well as for the defense -- are enjoined in their eloquence to circumspection, lest in their enthusiasm for their cause they create a condition which is likely or apt to instigate prejudice against the accused -- or the prosecution." (Wilhelm, 272 Md. at 437-38.) The trial judge is in the "most advantageous position to evaluate any potential prejudice" from a remark made in opening statement, and a reviewing court "must give due weight to the conclusion of the trial judge who witnessed the presentation and heard the actual remarks - in the context in which they were made, in the trial arena - and who found no prejudice." Wilhelm at 436-37.