determining that a child abuse victim’s out-of court statements to a social worker did not violate the Confrontation Clause because the defendant had the opportunity to cross-examine the child at trial
How later courts described this case
- determining that a child abuse victim’s out-of court statements to a social worker did not violate the Confrontation Clause because the defendant had the opportunity to cross-examine the child at trial
- observing that, in a case “based primarily” on witness testimony, “there is a higher probability ... that the prosecutor’s statements had an improper impact” than in a case where “there was physical evidence of the crime along with the testimony of the police officer who witnessed the event”
- noting that reversal “ ‘is only required where it appears that the remarks of the prosecutor actually misled the jury or were likely to have misled or influenced the jury to the prejudice of the accused’ ”
- addressing the impropriety of the prosecutor’s question to the jurors that asked them to place themselves in the shoes of the mother whose child had been sexually molested
Written by the judges who cited it.
The opinion
*609 Concurring Opinion by
HARRELL, J.,
which RAKER, J., Joins.
I write separately because I am leery of the Majority opinion’s approach to factoring into its closing argument “cumulative effect” analysis (Maj. op. at 589-606, 886 A.2d at 887-97) the unpreserved (and therefore waived) arguments as to the improprieties in the prosecutor’s rebuttal arguments.
I have no doubt that Lawson properly preserved, by timely general objection in the trial court, his appellate ability to argue that, during the State’s initial closing argument, the prosecutor improperly made “golden rule” and burden-shifting arguments. With regard to the trial court not sustaining the objection, I agree with the Majority’s conclusion that that constituted error.
With equal lack of doubt, the record reveals (and the Majority opinion does not dispute) that Lawson wholly failed to object during the prosecutor’s rebuttal closing arguments when she utilized the “monster” characterization and alluded to the potential for Lawson’s future dangerousness with regard to his 11 year old female cousin. Moreover, when he moved for a mistrial following the State’s rebuttal argument, Lawson failed to suggest that anything said in the rebuttal argument was of concern to him. 1 While these omissions may have implications in a post-conviction proceeding, the lack of objection on these points limit their consideration on direct appellate review.
There are sound, non-technical reasons for requiring, as a precursor to appellate preservation, defendants to object. See Md. Rule 4-323 generally. Objections alert the trial judge and permit him or her to consider the legal propriety of the particular question, piece of documentary evidence, or argument and, if appropriate, whether a curative measure may be *610 fashioned to overcome or substantially ameliorate the possible prejudice of a legal misstep. See, e.g., Hall v. State, 119 Md.App. 377, 389-90 , 705 A.2d 50, 56 (1998). If that gauntlet is run successfully, there is no need for appellate relief, just as there should be no need in the vast majority of cases for appellate review of unpreserved issues.
The plain error invocation by Lawson is twofold — (1) he wants the unobjected rebuttal arguments as to the “monster” reference and his future dangerousness considered and weighed-in on their merits, and (2) he desires that his “cumulative effects” contention, which finds no roots in a trial objection or his motion for mistrial, also be reviewed on the merits. The Majority opinion, after acknowledging the same appellate criteria used by the Court of Special Appeals in evaluating whether plain error review should be undertaken and whether relief is merited (“only in instances which are compelling, extraordinary, exceptions, or fundamental to a fair trial,” Maj. op. at 604-05, 886 A.2d at 895-96 (citations omitted)), dispenses with any meaningful analysis under those criteria and instead sweepingly proclaims:
That court [Court of Special Appeals] erred in limiting a plain error issue to each inappropriate statement separately. Once error is determined during a “plain error” review, prejudice can only be determined by a consideration of the error in the context of the entire case including the cumulative effect of all errors on the ability of a jury to render a fair and impartial verdict in the context of the case.
Maj. op. at 604-05, 886 A.2d at 896.
I have two problems with this reply. First, it is uncritically dismissive of the compound non-preservation in this record. No meaningful effort is made to justify why the errors so found fit the applicable criteria. Second, although I agree with both the Majority and the Court of Special Appeals that the pertinent rebuttal arguments were improper, the failure to complain about their utterance should not be excused on direct appeal. Although the impropriety of the pertinent rebuttal arguments seems obvious, these errors, that “flew below the *611 radar” of trial counsel, do not strike me as worthy of characterization, in and of themselves, as compelling, extraordinary, exceptional, or fundamental to a fair trial. Accordingly, I would not factor the rebuttal arguments into an analysis of whether reversal in this case should result.
Yet, I would reverse based on the preserved errors from the State’s initial closing arguments, for much of the same reasons marshalled by the Majority opinion in its cumulative effects analysis. This should have been a close case at trial. Basically, it came down to Nigha’s credibility versus that of Lawson. The mother and the social worker merely repeated what Nigha told them. Even then, Nigha’s trial version of the second encounter was inconsistent with what the mother and social worker informed the jury that Nigha told them. There was also the matter of the additional accostings the social worker said Nigha told her about, but which did not figure in Nigha’s trial testimony or what her mother testified Nigha told her. On such a record, I am unable to state, beyond a reasonable doubt, that the improprieties in the State’s initial closing influenced the verdict in no way.
I have no quarrel with the balance of the Majority opinion or the judgment.
Judge RAKER authorized me to state that she joins this concurrence.
. The impropriety vel non of the pertinent rebuttal arguments, as determined by the Majority opinion in the abstract (bereft as they are of timely objection), is not here disputed; it is their employment in the cumulative effects analysis by the Majority (Maj. op. at 599-601; 604-06, 886 A.2d at 893-94, 895-97) that draws my fire.