Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Donaldson v. State

Donaldson v. State, 416 Md. 467 (2010)

This matter involves two distinct issues.  First, whether there was probable cause to arrest the Defendant.  Second, whether two statements made by the prosecutor during closing arguments were improper and require a reversal of Defendant’s conviction.  The COA held that there was probable cause for the arrest but that the statements were improper and viewed together were prejudicial to the Defendant.  Defendant’s conviction reversed and remanded.

Defendant was arrested and charged with distribution of heroin, possession of heroin with intent to distribute, and simple possession of cocaine.  Defendant requested suppression of seized items, arguing there was no probable cause.  Trial Court denied the motion at a suppression hearing because the items were seized properly.  On cross-examination, Witness #1, a police officer, was asked why he did not attempt to arrest the four other companions of the Defendant.  Witness #1 said he called for an arrest team, but no officers responded.  Since this fact was not mentioned in Witness #1’s statement of probable cause, Defense counsel asked if it was true that there was no proof that the four others even exist. Witness #1 responded his testimony was the proof and he continued that it was more essential to get the dealer rather than the buyer because “the person selling drugs is the person that’s the root of all evil” (emphasis added). The Jury convicted Defendant of possession of heroin with intent to distribute and acquitted of heroin distribution.  On appeal, CSA affirmed Trial Court’s decision in an unreported opinion because probable cause was reasonable given the circumstances, the Trial court committed a harmless error in overruling defense counsel’s objection, and the Prosecutor’s statements were improper in isolation but not in the full context of the closing argument.  COA granted certiorari.


1. Probable Cause

The COA affirmed that there was probable cause for the arrest.  A warrantless arrest made in public is not unreasonable and does not violate the Fourth Amendment if there is probable cause to believe that the individual committed a felony or a misdemeanor in an officer’s presence.  Longshore v. State, 399 Md. 486, 501 (2007) (citing U.S. v. Watson, 423 U.S. 411, 418 (1976)).  Once a valid arrest is executed they may conduct a search without a warrant, so long as there is no bodily intrusion.  Paulino v. State, 399 Md. 341, 350 (2007).  To determine the reasonableness of a search during a warrantless arrest is whether the police had probable cause to support the arrest.  To determine probable cause, the events leading up to the arrest are examined and then it is decided ‘whether these historical facts’ from the view of an objectively reasonable police officer amount to probable cause.  Maryland v. Pringle, 540 U.S. 366, 371 (2003). The quantum of facts necessary are “specific and particularly facts which, taken together with rational inferences from those facts, reasonably warranted the intrusion.” State v. Wallace, 372 Md. 137 (2002).  The recent CSA case Williams v. State adduced probable cause exists to arrest an individual who exchanges an unidentified item(s) for money. 188 Md. App. 79 (2009).  For the same reason, this case establishes probable cause.  Witness #1, a police officer, testified he saw Defendant and four other people walk to a corner near an alley, where Defendant reached “into the rear of his pants” to retrieve a clear plastic bag containing several small, white objects.  Defendant removed some objects and exchanged them for money from two people in the group.  When the group departed, Defendant returned the plastic bag to the rear of his pants.  Witness #1 placed Defendant under arrest and found fourteen capsules of powder which he suspected was heroin.  The method of keeping items near the Defendant’s rear was suspicious, and being in an alleyway supports the conclusion the activity wanted to be concealed.  Additionally, the location being a high drug area adds support.  Probable cause to arrest may exist if the totality of the circumstances supports the conclusion that the exchange was unlawful and here the facts, viewed in conjunction with other circumstances of the exchange, are sufficient to establish probable cause to believe a crime had just been committed.


2. Statements Made During Closing Arguments

The COA held the Prosecutor’s statements during his closing argument both improperly vouched for the credibility of the Witnesses, and improperly urged the jury to convict the Defendant to combat the drug problem in Baltimore City and further concluded the statements may prejudiced the jury’s verdict and Defendant deserves a new trial.  Closing arguments are important, serving to sharpen and clarify the issues to be resolved because only after all evidence is in can counsel present their respective versions of the whole case; then they can argue inferences drawn, and weaknesses of their adversary’s position and for the defense this is the “last clear chance to persuade the trier of fact that there may be reasonable doubt of defendants guilt.”  Lee v. State, 405 Md. 148, 161-162 (quoting Herring v. N.Y., 422 U.S. 853, 862 (1975)).  Counsel is afforded “great leeway” when presenting that portion of their case.  Dergen v. State, 352 Md. 400, 429 (1999).  But the court noted from Spain v. State that counsel can comment on the accused action and conduct if the evidence supports his comments.  386 Md. 145, 152 (2005).  The court referred to Mitchell v. State that statements not permissible during closing arguments are ones that “‘comment upon facts not in evidence or…state what [counsel] would have proven.’ It is also improper…to appeal to the prejudices or passions of the jurors, or invite the jurors to abandon the objectivity that their oaths require.”  408 Md. 368, 381 (2009).  It is also improper to make the “Golden Rule” argument (asking juror’s to put themselves in the shoes of the victim Lee, 405 Md. at 171) and for counsel to vouch for or against the witnesses’ credibility, Spain, 386 Md. at 153.


A. Vouching for Witness Credibility

The COA held, in agreeing with the CSA, that the Prosecutor improperly vouched for the credibility of the witnesses.  SCOTUS recognized the dangers of this in U.S. v. Young “such comments…can [] jeopardize the Defendant’s right to be tried solely on the basis of evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.” 470, U.S. 1, 18-19 (1985).  In the present case, as in Spain, counsel cannot attempt to bolster the credibility of a witness by using facts not in evidence or by asserting that the witness should be believed because the witness is a police officer.  There was no evidence to support the argument Witnesses would lose their jobs if they lied during their testimony, as the Prosecutor said in her rebuttal.  The COA disagreed with the State’s argument that the Trial Court’s ruling was proper because of the “opened door” doctrine (allowing a party to introduce evidence that otherwise might not be admissible in order to respond to certain evidence put forth by opposing council).   The COA said that doctrine is a “narrow one,” and does not apply to the improper statements in the present case because of the subsequent argument about the officer’s incentive to be honest because he is a police officer goes beyond the limits of the doctrine.


B. Convicting Defendant to Combat the Drug Problem

The COA held the Prosecutor’s statements that drug dealers are “the root of all evil” and “the problem today is seated right over there” (referring to the Defendant) were improper.  In Hill the court said “appeals to jurors to convict a defendant in order to preserve the safety or quality of the communities are improper and prejudicial.” 355 Md. at 225.  While the Prosecutor’s first statement in isolation may not have been improper, her subsequent arguments crossed the line.  The Defendant was not on trial for general contribution to drug dealing or use, but for allegedly committing the drug possession and drug sale offenses that the State charged.


C. Harmless Error Analysis

The COA held the Prosecutor’s improper statements may have influenced the jury’s verdict because the statements played an important part in the prosecutor’s closing and rebuttal arguments, the trial court gave no contemporaneous, curative instructions, and the evidence against Defendant was not so strong that the improper statements could not have influenced the verdict.  The COA disagreed with the State, that unlike in Spain, there were more than one instances of improper vouching.  The COA also noted from Lawson, that jury instructions given before closing arguments have a limited curative effect because they cannot “address objectionable remarks” that have “not yet been made.” 389 Md. at 601. Reverse and Remanded.



Judge Murphy agreed with the majority that there was probable cause to arrest the Defendant but dissented that the Defendant is entitled to a new trial because of improper comments made by the prosecution.  Referring to Rheubottom v. State, 99 Md. App. 335 (1994) reversals should only be warranted if “it appears that the jury were actually misled or were likely to have been misled or influenced to the prejudice of the accused.” (quoting Wood v. State, 192 Md. 643, 652 (1949)). Additionally, Judge Murphy found it impossible that an isolated juror would (1) convict Defendant on the basis on the vouching comments and (2) acquit Defended if reminded by from the CSA the Prosecutor’s comments on the police’s credibility were not evidence.  Affirm CSA.