Lawson v. State
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Joseph Lawson v. State of Maryland No. 12, September Term, 2005 Headnote: Md. Code (2001, 2005 Supp.), § 11-304 of the Criminal Procedure Article creates an excep tion to th e hears ay rule. It allows soc ial workers acting in the c ourse of th eir profession to testify as to a child s out-of-court statements regarding sexual abuse so long as the child is under 12 years old. The social worker will be allowed to testify even if the statements were obtained during the investigation of a child abuse allegation reported to the police. Those statements, however, will only be admissible if the child testifies at trial, the child is unavailab le to testify, or if the accuse d had an o pportunity to cross-exa mine the c hild regarding the statements. Atto rneys have great leeway during their opening and closing argumen ts for presen ting their cases to the jury. These statements, however, must be supported by the evidence admitted during trial and must not i mproperly appeal to the jury s prejudices and fears. When an appellate court review s a defend ant s assertion that his conviction should be overturned based upon the admission of improper closing remarks, a three step balancing inquiry is necessary. First, the reviewing court evaluates the impropriety of the statements. Second, the reviewing court evaluates the weight of the evidence against the accused. Third, the reviewing court evalu ates the trial cou rt s actions in addressing the inappropriate statements. Maryland law does not require corroboration of a child victim s testimony regarding sexual abuse. Section 11-304(d )(2) of the Criminal Procedure Article specifically provides that corrobora tion eviden ce is only nece ssary when the child do es not testify at trial. Circuit Co urt for Prince George s County Case # CT021375X IN THE COURT OF APPEALS OF MARYLAND No. 12 September Term, 2005 JOSEPH LAWSON v. STATE OF MARYLAND Bell, C. J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Cathell, J. Raker and Harrell, JJ., Concur Filed: November 28, 2005 On July 8, 2003, Joseph Lawson, petitioner, was convicted by a jury in the Circuit Court for Prince George s County on two counts of second-degree rape, two counts of attempted second-degree rape, and tw o coun ts of sec ond-d egree a ssault. He was thereafter sentenced by the trial court to fourteen years in prison. Petitioner appealed the convictions to the Court of Special Appeals challenging, among other things, the admissibility of a social worker s testimony at trial and the propriety of the prosecutor s closing arguments. On January 10, 2005, the intermediate appellate court reversed one count of second-degree rape and attemp ted seco nd-deg ree rape , and af firmed the rem aining c onvictio ns. Lawson v. State, 160 M d. App . 602, 63 2, 865 A .2d 617 , 635 (2 005). Petitioner filed a petition for writ of certiorari on February 22, 2005 and we granted certiorari on May 12, 2005. Lawson v. State, 387 Md. 122, 874 A.2d 917 (2005). Petitioner presents the following questions f or our revie w: 1. Did the Court of Special Appeals err w hen it hel d tha t a co untyemployed social worker who was a stranger to the child complainant and who interviewed the child as part of a police investigation was acting in the course of [her] profession under Maryland Criminal Procedure § 11-304 rather than as a law en forceme nt agent? 2. Did the Court o f Special A ppeals err when it deemed harmless the State s impermissible and inflammatory closing arguments to the jury, even though that court rec ognized th at the State s a rgumen ts unconstitu tionally shifted the burden of proof to Petitioner, violated the prohibition on Golden Rule arguments, and impermiss ibly suggested that Petitioner w ould com mit similar crimes on another specific victim if he was acquitted? 3. In a case in which Petitioner was convicted of two sexual assaults, did the Court of Special Appeals impermissibly dilute the legal definition of harmless error when it held that the erroneous admission of testimony from the complainant s mother about the second alleged incident only infected Petitioner s convictions for that incident, even though the mother s testimony also had the carryover effect of bolstering the credibility of the complainant s social wo rker, who testified abo ut the first allege d incident? [1] 4. Did the Court of Special Appeals err when it held that an out-ofcourt accusation of rape by a child complainant who later testifies at trial and repudiates that out-of-court accusation is sufficient, without any independent corrob oration , to conv ict the de fenda nt? [F ootnot e adde d.] We hold that the testimony of the social worker was admissible under Md. Code (2001, 2005 Supp.) § 11-304 of the Criminal Proc edure A rticle ( C.P. ). W e further ho ld that the cumulative effect of the prosecutor s improper remarks during closing argument and rebuttal was prejudicial, that the evidence presented did not overcome the prejudice created, and absent any attempts by the trial court to cure such prejudice the admission of the remarks constituted plain error. Finally, we hold that there was no error by the Court of Special Appeals in its corroboration ruling. I. Facts Sometime in July 2002, Nigha P., a seven-year-old girl, told her mother that petitioner, a twenty-seven-year-old man, had sexually molested her. On July 15, 2002, the mother reported to the police what Nigha had told her. T wo d ays later , Nig ha w as ex amin ed by a physician at the Prince George s Hospital Center. On July 18, 2002, Jennifer Cann interviewed Nigha. Ms. Cann was a social worker employed by the Prince G eorge s C ounty Department of Social S ervices. Nig ha, her mo ther, and M s. Cann tes tified for the State at 1 Due to the resolution of the other questions presented for our review, we need not address this issue at this time. -2- trial. Nigha s testimony at trial described two separate instances in which the petitioner molested h er. The first in cident occu rred some time in October or November 2001. Nigha testified that petitioner, her mother, he r grandpa rents and her brother lived with her during that period. Nigha and her brother shared a room and slept in bunk beds. Her brother slept on the top bunk and she slept on the bottom. According to Nigha, petitioner came into her room one night while she was watching television and her brother was sleeping. He then showed her his private part, which she described as a big long stick. He asked her if she knew what it was and she said I don t know. He then climbed onto the bed with her, pulled down her pa nts and tried to stick his private part into hers, pen etrating her a little bit. Lawson, 160 Md. App. at 610, 865 A .2d at 62 2. Nigha stated that petitioner did not put her on top of him and that he did not get on top of her. Nigha saw some white stuff come out of petitioner s private part. Petitioner went to the bathroom got a rag, had Nigha clean up the white stuff from the floor and told her not to say anything. Nigha went to sleep after petition er left the room. S he did n ot tell anyo ne until J uly 2002 . The second incident took place one afternoon in June 2002. Nigha came home from school while petitioner and her brother were eating. At that time, petitioner no longer lived with them. Nigha testified that petitioner took her to her mother s room and asked her brother to look out for their grandm other. Nigha stated that petitioner told her that she could have some of his soft d rink if she let him touch her in her private part. She refused and he -3- tried to pull down her pan ts. She th en told h im to sto p and w alked o ut of the room. Nigha testif ied th at she did not s ee hi s pr ivate part tha t day. Nigha s mothe r, Ms. Thom as, testified nex t. Her testimo ny was con sistent with Nigha s account of the first incident of sexual abuse. Ms. Thomas s testimony regarding the second incident, however, was inconsistent with Nigha s account. According to Ms. Thomas, Nigha had told her that she did see petitioner s private part during the second inciden t and tha t he had a plasti c thing on it. The final witness for the State was Ms. C ann. On a pretrial mo tion, petitioner s counsel had argued that Ms. Cann should not be allowed to testify as to Nigh a s statemen ts to her during the in terview. T he pre-trial jud ge denied petitioner s m otion. At trial, petitioner was gran ted a contin uing objec tion with reg ards to M s. Cann s te stimony about Nigha s out-of-court statements, preserving the issue for appeal. Ms. Cann s testimony was consistent with Nigha s account of the November 2001 incident. She also testified that Nigha had told her that there were two other occa sions in which petitioner had abused Nigha. According to Ms. C ann, Nigh a said that the d ay after the first inc ident, petitioner again placed his private part inside of hers. As to the June 2002 incident, Ms. Cann testified that Nigha had told her petition er had pu lled her pan ts down a nd, again, p laced his private pa rt inside h ers. After Ms. Cann s testimony the State rested. The petitioner took the stand on his own behalf and denie d all the accu sations aga inst him. Th e defense then rested its c ase and b oth -4- sides prepared for closing arguments. During the State s closing, the prosecutor made the follo win g stateme nts to the ju ry: [State:] When I was thin king over what I w as going to say to you to try to convince you that justice should be served here, I started thinking about my eight-year-old niece, and if my eight-year-old niece came to me and told me [Defense :] Objection. The Court: Sustained. [State]: I want you to put yourself in the shoes if you have a n eight-year-old niece, seven-year-old niece, or you have an eight-year-old daughter, sevenyear-old daughter, a cousin, a close family friend, and this child comes to you and says that someone that you know sexually mole sted them. W hat wou ld go through your minds? Well, I wou ld urge you to thin k abou t certain th ings. O ne, motive. What is the motive here? Have you heard any motive? Did the defense give you a mo tive as to why N igha w ould be lying? [ Emph asis add ed.] The defense made a general objection which was summarily overruled. The State then implored the jurors again to place themselves in the shoes of Nigha s mother: I urge you, while you are putting yourself in the shoes of someone who has had a child come to them and tell them this, w hat else do you look at? W ell, again, you w ould look at details. [E mphasis added .] The defense p resented its clo sing argum ent. It was followed by the State s rebu ttal, which inc luded the f ollowing statement: What does a monster look like? Looks like different things to different people . What does a sexual molester look like? He looks like someone you know. He looks like your uncle, your brother, your sister, your cousin. It s possible. But there is no certain way that someone who m olests children looks. But they do ingratiate themselves. They make themselves -5- indispensable. They are friendly, always there to watch. Not everyone is like that, but please don t misunderstand me because the important point here is that a child molester looks like anybody else. That s why they are able to do what they do, because they look like all of us, and we trust. When I said that they ingratiate themselves, they make themselves indispensable. They make themselves helpful. The defendant told you, himself, he is paying for an apartmen t and he is no t living there. H e is letting an adult fem ale cousin , who just happens to have a little 11-year-o ld child, live there. [Emphasis ad ded.] After closing arguments, the petitioner moved fo r a mistrial based only upon the admission of Nigha s moth er s testim ony at trial. The court did not re-instruct the jury but merely sent a written version of its instructions back to the deliberation room. II. Standard of Review We have often stated that this Court will not reverse for an error b y the lower court unless that error is both manifestly wrong and su bstantia lly injuriou s. I.W. Berman Props. v. Porter Bros., 276 Md. 1, 11-12, 344 A.2d 65, 72 (1975) (quoting Rotwein v. Bogart, 227 Md. 434, 437, 177 A.2d 258, 260 (1962)); see also Fish Mkt. Nominee Corp. v. G.A.A., Inc., 337 Md. 1, 15, 650 A .2d 705, 711 (199 4); Dorsey v . State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). The reviewing court will not reverse upon rulings on evidence that do not resu lt in prejud ice to the comp laining p arty. Fish Mkt. Nominee, 337 Md. at 15, 650 A.2d at 711; Collins v. Sta te, 318 M d. 269, 2 82, 568 A.2d 1 , 7 (199 0), cert. denied, 497 U.S. 1032, 110 S.Ct. 3296, 111 L. Ed. 2d 805 (199 0); Johnson v. State, 303 Md. 487, 528, 495 A.2d 1, 22 (1985), cert. denied, 474 U .S. 1093, 106 S. Ct. 868, 8 8 L. Ed. 2d 907 (198 6); Tully v. -6- Dasher, 250 Md. 424, 436, 244 A.2d 207, 21 4 (196 8). See also B eahm v . Shortall, 279 Md. 321, 332, 368 A.2d 10 05, 1011 (1977) ( [ W]hat co nstitutes prejud ice warran ting reversal in the erroneou s admission or rejection of evidence is to be determined on the circumstances of each case . ); Rotwein , 227 Md. at 437, 177 A.2d at 260. Finally, we said in Dorsey, 276 Md. at 659, 350 A.2d at 678, that with respect to criminal matters, an error is not harmless unless, upon an appellate court s independent review of the record, it can say beyond a reasonab le doubt tha t the error did n ot in any way inf luence the v erdict. III. Discussion We must determine whether the out-of-court statements of a child to a social worker are admissible under C .P. § 11-304(c), whether the court s error in a llowing the prosecution s improper closing remarks should result in reversible error, and whether a child victim s testimony of sexual abuse must be corroborated. We hold that the Co urt of Spe cial Appe als was correct in affirming the trial court s admission into evidence of the so cial worker s testimony and finding that corroboration was not necessary but erred in determining that the closing remark s constit uted ha rmless e rror. A. Social Worker s Testimony The State argues, and the C ourt of Special Ap peals agreed, that the social wo rker s testimony is adm issible unde r C.P. § 11 -304. Tha t statute provid es in pertinen t part: § 11-304. Out of court statements of certain child victims. ... (b) Admissibility. Subject to subsection s (c), (d), and (e ) of this -7- section, the court may admit into evidence in a juvenile court proceeding or in a criminal proceeding an out of court statem ent to prove the truth of the matter asserted in the statement made by a child victim who: (1) is under the age of 12 years; and (2) is the alleged victim or the child alleged to need assistance in the case before the court concerning: (i) child a buse . . . ; (ii) rape or sexual offense . . . ;[or] (iii) attempted rape or attempted sexual offense in the first degree or in the second degree . . . . (c) Recipients and offero rs of stateme nt. An out of court statement may be admissible under this section on ly if the statemen t was ma de to and is offered by a person acting lawfully in the course of the person s profession when the statement was made who is: (1) a physician; (2) a psycholo gist; (3) a nurse; (4) a social worker; or (5) a principal, vice principal, teacher, or school counselor at a public o r private presch ool, elem entary sch ool, or se conda ry schoo l. 2 There is no dispute as to the fact that Nigha was under the ag e of 12, that her out-of-co urt statements were being offered for their truth and that they related to an alleged rape or sexual offense. The point at issue is whether the social worker interviewing Nigha as a result of a police notification qualifies as an offeror of the statements in court u nder C.P. § 11304(c) (4). We have said that [t]he cardinal rule of statutory interpretation is to ascertain and 2 This statute, known as Maryland s tender years statute, was enacted in 1988 and codified at Md. Code (1973, 1989 Repl. Vol.), § 9-103.1 of the Courts and Judicial Proceedings Article. In 1996, it was moved to Md. Code (1957, 1996 Repl. Vol.), Art. 27 § 775. It is now codified as Md. Code (2001, 2005 Supp.), § 11-304 of the Criminal Procedure Article. -8- effectuate the intention of the legislature. Rockwood Cas. Ins. Co. v. Uninsured Employers Fund, 385 Md. 99, 108, 867 A.2d 1026, 1031 (2005) (quoting Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995)). Legislative intent must be sought in the first instance in the actual language of the statute. Empire Props., LLC v. Hardy, 386 Md. 628, 636, 873 A.2d 11 87, 1192 (2005 ); State v. Bell, 351 Md. 709, 717, 720 A.2d 311, 315 (1998); Marriott E mployee s Fed. Cr edit Union v. Motor V ehicle Admin., 346 Md. 437, 44445, 697 A.2d 455, 458 (1997); Stanford v. Md. P olice Training & Corr. C omm n , 346 Md. 374, 380, 697 A.2d 424, 427 (1997) (quoting Tidewater v. Mayor of Havre de Grace, 337 Md. 338, 344, 653 A.2d 468, 472 (1995)); Coburn v. Coburn, 342 Md. 244, 256, 674 A.2d 951, 957 (199 6); Romm v. Flax, 340 Md. 690, 693, 668 A.2d 1, 2 (1995); Oaks, 339 Md. at 35, 660 A.2d at 429; Mauzy v. Hornbeck, 285 Md. 84, 92, 400 A.2d 1091, 1096 (1979); Bd. of Supervisors v. Weiss, 217 Md. 133, 136, 141 A.2d 734, 736 (1958). Furthermore , where the statutory language is plain and free from am biguity, and exp resses a def inite and sim ple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent. Empire Props., 386 Md. at 636, 873 A.2d at 1192; Williams v . State, 385 Md. 50, 58, 867 A.2d 30 5, 310 (20 05); Gallegos v. Allstate Ins. Co., 372 Md. 748, 756, 816 A. 2d 102, 107 (20 03); Resper v . State, 354 Md. 611, 618-19, 732 A.2d 863, 867 (199 9), cert. denied, 528 U.S. 1027, 12 0 S.Ct. 544, 145 L .Ed.2d 423 (199 9); Marriott Employees, 346 Md. at 44 5, 697 A .2d at 458; State v. Thompson, 332 Md. 1, 6-7, 629 A.2d 731, 734 (1993); Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 633 (1987). -9- We also construe a statute as a whole so that no wo rd, clause, sen tence, or ph rase is rendered surplusage, superfluous, meaningless, or nugatory. Moore v. State, 388 Md. 446, 453, 879 A.2d 1111, 1115 (2005). In the present case, the statute is clear and unambiguous. Under the statute at issue here, testimony offered by a social w orker regarding a victim s statements obtained w hile the social w orker wa s acting law fully in the course of [her] profession is admissible. C.P. § 11-304 (c). W e must determine, how ever, whether social workers acting upon police reports are acting in the course of their profession. 1. Social Work as a Profession The State legislature, finding that the profession of social wo rk profou ndly affects the lives, health, safety, and welfare of the people of Maryland, enacted Md. Code (1981, 2005 R epl. Vol.), §§ 19-101 to 19-502 of the H ealth Occupations A rticle ( H.O. ). 3 H.O. § 19-102. As a result, social workers must be licensed in order to act lawfully in the course of their profession in this State. H.O. § 19-301. It is undisputed that Ms. Cann is a licensed social worker e mployed by P rince Geo rge s Cou nty Departm ent of So cial Services . That a social worker is a cting within the course of his or her profession when investigating alleged child abuse incidents is evident fro m the statutory scheme enacted for the protection of children as described below. Title 5 of the Md. Code (1984, 2004 R epl. Vol.), §§ 5-701 to 1104 of the Family Law 3 This section was originally enacted as Md. Code (1957, 1980 Repl. Vol.), Article 43, §§ 859-870A, pursuant to Chapter 852 of the Acts of 1975. -10- Article ( F.L. ) was enacted to protect children who have been the subject of abuse or neglect . . . . F.L. § 5-702. The legislature intended to achieve this goal in a number of ways, two of which are relevant in this case: child abuse must be (1) reported and (2) promptly investigated by the department or law enforcement agency. Any person who has reason to believe that a child has been subjected to abuse must notify the local department or law enforcement agency. F.L. § 5-705.4 Furthermore, health practitioners, police officers, educators, and human service workers 5 acting in a p rofessional c apacity are specific ally require d to not ify the loc al depa rtment o r law en forcem ent age ncy. F.L. § 5-704 (a). The Legislature also intended that there be a prompt investigation after the local department or law enforcem ent agency is notified of suspec ted abuse. F.L. § 5-7 06(a). Subsection (b) sets specific time requirements and actions to be taken: (b) Time for initiation; actions to be taken. Within 24 hours after receiving a report of suspected physical or sexual abuse of a child who lives in this State that is a llege d to h ave o ccur red in this Sta te, an d within 5 days after receiving a report of suspected neglect or suspected mental injury of a child who lives in this State that is alleged to have occurred in this State, the local depar tment or the appropriate law enfo rcement a gency shall: (1) see the child; (2) attempt to have an o n-site interview with the child s care taker; (3) decide on the safety of the child, wherever the child is, and of other children in the household; and (4) decide on the safety of othe r children in the care or custody of the alleged abuser. 4 The statute does exclude c ertain individ uals who have a recognized legal privilege against disclosing informa tion. § 5-705(2), (3). 5 The definition of Human service worker under Title 5 includes any social work er. Md. Code (1984, 2004 Repl. Vol.), § 5-701(g)(2)(iii) of the Family Law Article. -11- The Legislature again ma kes it clear that such steps are necessary to protect the health, safe ty, and we lfare of ch ildren in this State. F.L. §§ 5-706(a)(1), (2). The recurring theme throughout Title 5 is the protection of the child. Social workers are acting in their professional capacity throughout the process even when they are informed of the abuse by police officers or themselves report the abuse to the police. 2. Admissibility of social workers testimony in child abuse cases We addressed the constitutionality of § 11-304 in State v. Snowden, 385 Md. 64, 867 A.2d 314 (2005). W e found that the legislation w as enacted in response to concerns that child abuse and sexual offenses were not being prosecuted adequately due to many child victims inability to testify as a result of their young age or fragile emotional state. Id. at 76, 867 A.2d a t 321. We then sum marized the statutory requireme nts for the adm issibility of such statements: the Maryland L egislature im posed saf eguards in the tender years statute intended to insure that a ny admitted sta tement possessed particularized guarantees of trustworthiness. Md. Code (2001), § 11-304(d)-(f) of the Criminal Procedure A rticle. First, the statute re quires th at, if the child does not testify at trial, the State must produce corroborative evidence demonstrating that the defendant had the opportunity to commit the alleged abuse. Id. § 11-304 (d)(2). The s tatute also requires that the trial court conduct a hearing to determine w hether the proposed statements possess particularized guarantees of trustworthiness. Id. § 11-304(e)-(g). The statute contains a list of non-exclusive factors that the judge must consider in mak ing this determination.[6] Id. § 11-304(e)(2). The judge must examine the child victim 6 Footnote 14 in Snowden states These factors are: (contin ued...) -12- in chambers, closed to all except the judg e, the victi m, th e vic tim s attor ney, and one attorney each for the defendant and the prosecution. Id. § 11-304(g). The judge must then make a finding, on the record, as to th e specific guarantees of trustwo rthiness that a re in the statement. Id. § 11-304(f)(1). The defendant a lso has an o pportunity to de pose the h ealth or socia l work professional whos e testimo ny the Sta te intend s to off er. Id. § 11-3 04(d)(4 ). Snowden, 385 Md. at 76-77, 867 A.2d at 321 (emphasis added) (footnotes omitted). In order to satisfy the Confrontation Clause of the United States Constitution,7 we interpreted these 6 (...continued) (i) the child victim s personal k nowled ge of the e vent; (ii) the certainty that the statement was made; (iii) any apparent motive to fabricate or exhibit partiality by the c hild victim, including interest, bias, corruption, or coercion; (iv) whether the statement was spontaneous or directly responsive to questions; (v) the timing of the statem ent; (vi) whe ther the c hild victi m s yo ung age m akes it unlikel y that the child victim fabricated the statement that represents a graphic, detailed account beyond the child victim s expected knowledge and experience; (vii) the approp riateness of th e terminolo gy of the statem ent to the ch ild victim s age; (viii) the nature and dura tion of the a buse and neglect; (ix) the inner c onsistency an d coheren ce of the sta tement; (x) whether the child victim was suffering pain or distress when making the statement; (xi) whether extrinsic eviden ce exists to sh ow the d efendan t or child respondent had an opportunity to comm it the act com plained of in the child victim s statem ent; (xii) whether the statement was suggested by the use of leading questions; and (xiii) the c redibility of the pers on testif ying abo ut the sta temen t. Md. Code (2001 , 2005 S upp.), § 11-304(e)(2) of the Criminal Procedure Article. In the present case, the trial court applied these factors and found the testimony to be reliable. 7 The Confrontation Clause states: In all criminal prosecutions, the accused shall enjoy the righ t . . . to be confronted w ith the witnesses against him. U .S. Const. amend. V I. It has been made applicable to the States through the Fo urteenth Ame ndme nt. Pointer v. (contin ued...) -13- requireme nts in light of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 736, 158 L. Ed. 2d 177 (2004). We determined that if the out-of-court statements were testimonial in na ture they would be inadmissible unless the d eclarants were unavailable or subject to prior crossexamination. Snowden, 385 Md. at 92, 867 A.2d at 330. Petition er argues th at Nigha s outof-court statements to the social w orker we re testimonia l.8 When the declarant testifies at trial, how ever, a different analysis is required.9 In Snowden, we held that the testimony of 7 (...continued) Texas, 380 U.S . 400, 85 S . Ct. 1065, 1 3 L. Ed. 2d 923 (196 5); Snowden, 385 Md. at 75 n.9, 867 A.2d at 320 n.9. Maryland s Constitution contains a similar clause in Article 21 of the Maryland Declaration of Rights, which has been construed as being in pari ma teria with the federal Cons titution s Conf rontatio n Clau se. Snowden, 385 Md. at 75 n.9, 867 A.2d at 320 n.9. 8 Althoug h petitioner d oes not use the term testimonial in his argument, he emphasizes the fact that th e statements were made to an agent of the police (based on petitioner s assertion that the social worker was an agent of the police) and in preparation for litigation. In suppor t of this argum ent, petitioner po ints to Low v. Sta te, 119 Md. App. 413, 705 A.2d 67 (1998), w here the C ourt of Sp ecial appea ls held that statem ents by a 12-year-o ld child sexual a buse victim, to a physician examining her at the request of a social worker during the investiga tion, were in admissible because they did not meet the requirements of Maryland Rule 5-80 3(b)(4). Sec tion 11-30 4 did not apply because the child was 12 years of age. Low, 119 M d. at 427 n.7 , 705 A.2d at 74 (Alp ert, J. dissen ting). We need not determine the nature of the out-of-co urt statement because the declarant in the present case testified at trial, was subject to cross-examina tion and was cross-ex amined by the petitioner. 9 The mere fact that the interview was conducted after the police investigation and that the social worker was gathering information that, while primarily related to the social worker s responsibil ities, could also be used as evidence in court is not determinative regarding the testimon ial nature of the encounter. In Snowden, we determined that the statements made to the so cial wo rker w ere testim onial. We did so, however, after reviewing all the circumstances of that case, including the stated purpose of the interviews, the fact that the police had initiated the investigation, and more importantly the presence of the police officer during the social worker s interview. The children s awareness of such presence, we (contin ued...) -14- the social worker violated the Confrontation Clause because [i]n a criminal trial, the State is required to place the def endant s accusers on the stand so that the defendant both may hear the accusations against him or her stated in ope n court and have the opportunity to cross-examine those witnesses. In Snow den s case , the State circu mvented this right, through use of the tender years statutory framework, by having the social wo rker testify in place of the children. The burden, however, is on the State , not Snow den, to prove its case through production of witnesses and evidence that confo rm to the U. S. Constitution and Maryland Declaration of Rights. Snowden, 385 Md. at 95-96, 867 A.2d at 332 (emphasis ad ded) (internal citations omitted). Howeve r, as Justice Sc alia pointed out in Crawford: when the declarant appears for crossexamination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a testimonial statement so long as the declarant is present at trial to defend or explain it. Crawford, 541 U.S. at 59 n.9, 124 S. Ct at 1369 n.9, 158 L. Ed. 2d 177. In petitioner s case, the socia l worker did not testify in place of the children. The declarant, Nigha, testified.10 Lawson had the opportunity to, and did, cross-examine Nigha specifically with regards to her out-ofcourt statements to the soc ial wor ker. We find that the social w orker wa s acting law fully in 9 (...continued) said, overwhelms any argument that the statements were not testimonial because they were not in response to police questioning. Snowden, 385 M d. at 87, 8 67 A.2 d at 327 . 10 In Low, the Court of Special Appeals found that the child s testimony at trial was not sufficient because she was a reluctant witness and her testimony was vague, disjointed, and unreliab le. Low, 119 Md. A pp. at 426, 705 A .2d at 73-74. In contrast, Nigh a s testimony at trial was clear and coherent. Furthermore, based in part, on that testimony, the Court of Special Appeals reversed Lawson s conviction for the s econd inciden t. Lawson, 160 Md. App. at 620, 865 A.2d at 628. -15- the course of her profession when she interviewed Nigha. Furthermore, even if the out-ofcourt statements were testimonial in nature (and we do not so hold), they we re admissib le because the declarant testified at trial. As a resu lt, the Court o f Special A ppeals corr ectly affi rmed the trial c ourt s ad miss ion o f the social worke r s te stimony. B. Prosecutor s Closing Arg uments The Supreme Court of the United States has said, and this Court has acknowledged: There is no doubt that, in the heat of argument, counsel do occasionally make remarks that are not justified by the testimony, and which are, or may be, prejudicial to the accused. In such c ases, however, if the court interfere[s], and counsel promptly withdraw[s] the remark, the error will generally be deemed to be cured. If every remark made by counsel outside of the testimony were ground for a reversal, comparatively few verdicts would stand, since, in the ardor of advoc acy, and in the excitement of trial, even the most experienced couns el are oc casion ally carried away by th is tempt ation. Dunlop v. United States, 165 U.S. 486, 498 , 17 S.Ct. 375, 379, 41 L .Ed. 799 (1897); Esterline v. S tate, 105 M d. 629, 66 A .2d 269 (1 907); see also Spain v. Sta te, 386 Md. 145, 159, 872 A.2d 25 , 33 (2005); Degren v. State, 352 Md. 400, 722 A.2d 88 7 (1999); Leach v. Metzger, 241 Md. 533, 537, 217 A.2d 30 2, 304 (19 66); Glickma n v. State, 190 Md. 516, 521, 60 A.2d 216, 218 (1948). Petitioner argues, however, that although great latitude is given during opening and closing arguments, counsel is not allowed to appeal to passion or prejudice [] which may so poison the minds of jurors that an accused may be deprived of a fair trial. Eley v. State , 288 Md. 548, 552, 419 A.2d 384, 386 (1980) (quoting Wood v. State, 192 Md . 643, 652, 6 5 A.2d 3 16 (1949 )); see Wilhelm , 272 Md. 404, 414, 326 A.2d 707, 715 (1974); Contee v . State, 223 Md. 575 , 583, 165 A.2d 8 94 (1960). -16- We recently addres sed the imp ropriety of a prosecutor s closing statements in Spain v. State, 386 M d. 145, 872 A.2d 25 (2005), w here the de fendant w as charged with and convicted of distribution of a controlled dangerous substance (CDS), using a minor for the distribution of a CDS, possession of a CDS with intent to distribute, possession of a CDS, and conspiracy. The prosecution s case was supported by the testimony of the officer who arrested Spain, the drugs confiscated at the time of the arrest from another person involved, and the state s documentary exhibits. During closing, the prosecutor stated that the police officer did not have a motive to lie because The Officer in [Spain s] case would have to engage in a lot of lying, in a lot of deception and a conspiracy of his own to come in here and tell you that what happened was not tru e. He wo uld have to risk everything he has wo rked for. He would have to perjure himself on the stand. Id. at 151, 872 A.2d at 28. Defense counsel objected and the court overruled stating that the jury understand[s] that this of course is closing argument, and that they will [consider the statements to be] lawyer s arguments. Id. In Spain, we were asked whether the trial court properly exercised discretion in regulating the scope of closing argument when it allowed the State s Attorney to argue that the police officer in [that] case had no motive to lie and would risk his career by testifying falsely. Id. at 152, 872 A.2d at 29. We held that the co urt proper ly exercise d its disc retion in allowin g the pr osecut or to ma ke thos e statem ents. Id. In answerin g the question we a cknowledged th e gr eat le ewa y giv en to attor neys during closing arguments by quoting Degren v. State, 352 Md. 400 , 722 A.2d 887 (1999): The prosecutor is allowed liberal freedom of speech and may make any -17- comment that is warranted by the evidence or inferences reasonably drawn therefrom. In this regard, [g]enerally, . . . the prosecuting attorney is as free to comment legitimately and to sp eak fully, although harshly, on the accused s action and conduct if the evidence supp orts his comments, as is accu sed s counsel to comm ent on the n ature of the evidence and the character of witnesses which the [prosecution] produces. * * * While argumen ts of coun sel are requir ed to be confined to the issues in the cases on trial, the evid ence and fair and reasonable deductions therefrom, and to arguments of opposing counsel, generally speaking, liberal freedom of speech should be allowed. There are no hard-and-fast limitations within which the argument of earnest counsel must be confined no well-defined bounds beyond which the eloquence of an advocate shall not soar. He may discuss the facts proved or admitted in the pleadings, assess the conduct of the parties, and attack the credibility of w itnesses. He may indulg e in oratorical conceit or flourish and in illustrations and me taphorical allusions. Id. at 152-53, 872 A.2d at 29; see also Glickman, 190 Md. at 521, 60 A.2d at 218. We then recognized that although there are no hard-and -fast limitations during closing arguments, we disapproved of certain techniques such as vouching for a witness s credibility because they infringe on a defend ant s right to a fair trial. But we held that [a]lthough we agree that [some] of the pros ecutor s co mments tra nscende d the boundaries of proper argument, we conclude ultimately that those statements did not mislead or influ ence the ju ry unduly to the prejudice of Spain, and therefore constituted harmless error. Spain, 386 Md. at 154, 872 A.2d at 30 (emp hasis adde d); see also Degren, 352 Md. at 437, 722 A.2d 905 (holding that the improper remarks did not prejudice th e defend ant); Leach, 241 Md at 537, 217 A.2d at 304 (holding tha t the trial judge did not abuse his discretion in denying a m otion for a mistrial a fter the p laintiff u sed an i mprop er argu ment a t closing ). We discussed the appropriateness of assessing a witness s credibility during opening -18- and closing arguments, why the statements vouching for the credibility of the police officer were improper , and mos t importantly why, under the circumstances of that case, they were not prejudicial to the defendant. We again relied on Degren for the stand ard to be us ed in reviewing remarks m ade during closing arg ument: Not every improper remark [ made by a prosecutor d uring closing argum ent], however, necessarily ma ndates reve rsal, and [w ]hat exceeds the limits of permissible comme nt depends on the facts in each case. We have said that [r]eversal is only required where it appears that the remarks of the prosecutor actually misled the jury or were likely to have m isled or influe nced the ju ry to the prejudice of the accuse d. This determination of w hether the prosecutor s comme nts were pre judicial or sim ply rhetorical flourish lies within the sound discretion of the trial court. On review, an appellate court should not reverse the trial court unless that court clearly abused the exercise of its discretion and prejud iced the accuse d. Id. at 158-59 , 872 A.2d at 33 (emp hasis added); Henry v . State, 324 Md. 204, 596 A.2d 1024 (1991), cert. denied, 503 U.S. 972, 112 S.Ct. 1590, 118 L.Ed.2d 307 (1992). We then considered the factors to be used during appellate review of the trial judge s decision: the severity of the remarks, the measu res taken to cure any potential prejudice, and the weight of the evidence against the accused. Spain, 386 Md. at 158-59, 872 A.2d at 33; see Henry, 324 Md. at 232, 596 A.2d at11038 (stating that [i]n determining whether reversible error occurred, an appellate court must take into account 1) the closeness of the case, 2) the centrality of the issue affected by the error, and 3) the steps taken to mitigate the effects of the error. Collins, 318 Md. at 280, 568 A.2d at 6 ). We applied these factors and under the circumstances there presen t, found tha t, with respec t to the severity of th e remarks, the prosecutor s statement was an isolated event that did not permeate the trial. In determining -19- whether the harm was cured, we paid particular attention to the actions of the trial court. We recognized that the trial judge did not acknowledge that the comments were improper but he emphasized, to the jur y, that they w ere only a rgume nts and not evid ence. W e determined that his comme nts to the jury am eliorated the p rejudicial effect of the remarks. Finally, we addressed the weight of the evidence supporting the conviction. We recognized that [a]nother important a nd signific ant factor where prejudicial remarks might have been made is whether or not the judgment of conviction was substantially swayed by the error, or where the evidence of the d efendant s guilt was o verwhelming. Spain, 386 Md. at 161, 872 A.2d at 34 (quoting Wilhelm , 272 M d. at 427, 32 6 A.2d a t 722). We found th at this factor, in Spain, did n ot play a significant ro le because the evidence against him was not so overwhelming as to cure the effect of the statements. Additionally, we found that the statements were not so severe that their admission would deny him a fair trial. We then concluded that the lack of severity of the comments, the lack of potential impact and the court s curative step s were su fficient to uphold the conviction. We now turn to the present case. 1. Impropriety of the prosecuto r s statements First, we must determine what statements, if any, were improper. The petitioner argues that the prosecutor improp erly addressed the jury on four differe nt occasions. The -20- prosecutor used a g olden rule argumen t,11 she then insinuated that the burden was upon the petitioner to prove that the child was lying, she also appealed to the jury s prejudices and fears, and finally, she a lluded to the fact that petition er s convic tion might p revent harm to another specific child in the future. a. Golden Rule argument Petitioner points out that [b]y asking the jurors to put themselves in the shoes of Nigha s mother . . . the State improperly appealed to the passions of th e jury in order to persuade them to be lieve Nig ha s version of events. When a jury is asked to place themselves in the shoes of the victim, the attorney improperly appeals to their prejudices and asks them to ab andon the ir neutral fact finding role . The Co urt of Spe cial Appe als recognized petitioner s arg ument th at such arguments are impermissible because they encourage the jurors to abdicate their position of neutrality and decide cas es on the b asis of personal interest rather than the evidence. Lawson, 160 Md. App. at 627, 865 A.2d at 632. The intermediate court found that the remark was improper, but that the general instructions to the jury before oral argument were sufficient to cure any prejudice engen dered b y it. Id. Albeit in a civil case, the Court has addressed this specific issue in Leach v. Metzger, 241 Md. 533, 217 A.2d 302 (1966), a personal injury case where a husband and wife sued the driver who had collided with them. The wife was injured as a result of the crash. During 11 A golden rule argument is one in which an arguing attorney asks the jury to place themselves in the sh oes of the victim . Leach v. Metzger, 241 Md. 533, 535 n.1, 217 A.2d 302, 303 n.1 (1966 ); Lawson, 160 Md. App. at 627, 865 A.2d at 632. -21- closing argumen ts the plaintiff s attorney asked the jury to put themselves in the place of the husband. The defense attorney promptly obje cted to the state ment and moved f or a mistrial. The judge denied the motion, but instructed the jury about the impropriety of the remarks and of their duty to be fair and reasonable. Id. at 536, 217 A.2d at 303. The Co urt recognized the problem arising from such statements and said: The vice inherent in such argume nt is that it invites the jurors to disregard their oaths and to become non-objective viewers of the evidence which has been presented to them, or to go outside that evidence to bring to bear on the issue of damages purely subjective considerations, and resultingly courts in many other jurisdictions have deem ed such golden ru le arguments to be improp er. Id. at 536- 37, 217 A.2d a t 304. See also Hill v. State, 355 Md. 206, 214, 734 A.2d 199, 204 (1999) (recognizing that golden rule argum ents appealing to the jury s own interests are inappropriate). The Co urt neverth eless upheld the judgment stating that the judge had promptly and prop erly co rrected th e error by instru cting the ju ry. Leach, 241 Md. at 536-37, 217 A.2d at 304. That case, however, involved only one improper statement by the plaintiff. In the case sub judice, the improper comments continued unabated. Moreover, there was no contemporaneous or specific curative instruction given in the present case; the trial court relied on a general instruction. b. Burden sh ifting statements Petitioner argues that th e State improperly attempted to place a burden upon him to present evidence that Nigha had a motive to lie. The Court of Special Appeals determined that the prosecuto r s statemen ts clearly asserted that petitioner had failed to present evidence -22- rebutting the State s case. Lawson, 160 Md. App. at 628, 865 A.2d at 633. That court, however, found that the statements did not deny petitioner a fair trial, even if improp er, becau se the ju ry instructio ns clear ly stated tha t the bur den w as upo n the St ate. We stated in Eley, 288 Md. at 555 n.2, 419 A.2d at 388 n.2, that the prosecution was not free to comment u pon the defend ant s failure to produce evide nce to refute the State s evidence because it could amount to an impermissible shift of the burden of pro of. Later, in Degren, 352 Md. at 429, 722 A.2d at 901, a prosecutor during rebuttal stated: nobody in this country has more reason to lie than a defendant in a criminal trial. We determined that such a rema rk was improp er, unpr ofessio nal and injudici ous. We found, however, that the trial court did not abuse its discretion in allowing the comments and denying the defendant s motions for curative instructions. We reasoned that, although improper, the comment did not bear directly on the defendant s guilt or innocence. Furthermore, the comme nts were made in response to the defenda nts closing a rgumen ts stating that the State s witnes ses had variou s reason s to lie. In Shoem aker v. State , 228 Md. 462 , 468, 180 A.2d 6 82, 685 (1962), the prosecutor alluded to the fa ct that the defen dant w ould be eligible f or paro le if con victed. The Court concluded that such state ments tend to shift the responsibility for finding guilt or innocence onto another body after conviction. It found that it was clear that the argument . . . was improper, and that the jurors were likely to have b een [improperly] influenced to the prejudice of the accused . . . . Id. at 473, 180 A.2d at 68 8 (citations om itted); see also -23- Brown v. State, 339 Md. 385, 663 A.2d 583 (1995) (holding that a prosecutor s statement insinuating that the jury could take mercy into account during deliberations was improper, that the effect of injecting such a proposition into the deliberations created the possibility that it woul d influe nce the verdict a nd wa s not ha rmless e rror). The primary evide nce in this ca se was pr ovided dire ctly or indirectly by the victim s statements. Thus, her credibility was a major issue. The prosecutor s statements tended to shift the State s burden to prove all the elements of the crime beyond a reasonable doubt by requiring the defendant to prove that Nigha was lying. The State s statements were, therefore, inappropriate and under all of the circumstances of this case, as hereafter explained, the jurors were likely to have been [improperly] influenced to the prejudice of the accused . . . . Shoemaker, 228 Md. at 473, 180 A.2d at 688. c. Appealing to the Jury s fears and prejudices. Petitioner points to the prosecutor s appeal to the juror s prejudices and fears when she made the following remarks: What does a monster look like? Looks li ke differe nt things to different people. What does a sexual molester look like? He looks like someone you know. He looks like your uncle, your brother, your sister, your cousin. It s possible. But there is no certain way that someo ne who molests children looks. But they do ingratiate themselves. They make themselves indispensable. They are friendly, always there to watch. Not everyone is like that, but please don t misunderstand me because the important point here is that a child molester looks like anybody else. That s why they are able to do what they do, because they look like all of us, and w e trust. -24- Petitioner declares that such statements are designed to inflame the jurors prejudices against a hated class of individuals and are therefo re improp er. The C ourt of Sp ecial App eals disagreed stating that [t]he State never directly characterized appellant as a monster or sexual molester. Lawson, 160 Md. App. at 630, 865 A.2d at 634. The intermed iate court found that the comments were isolated and tha t they did not aff ect the petition er s right to a fair and impartial trial. In the context of this case, we disagree. Prosecutors should not appeal to the pr ejudice s of the jury. Contee, 223 Md. at 584, 165 A.2d at 89 4; Hill, 355 Md. at 211, 734 A.2d at 202. In Hill, the prosecution s improper remarks extended throughout the duration of the trial. The prosecutor, during opening arguments, told the jury that they were chosen to send a m essage to p rotect [th e] comm unity and to keep[ the] community safe. Hill, 355 M d. at 211 , 734 A .2d at 20 2. The defen se s pro mpt ob jection to that rem ark wa s sustain ed. Id. Later, during closing argumen ts the prosecution again asked the jury to send a message to the com munity and to the defendant s cronies. T he objection to that statement w as overruled. After the jury commenced deliberation s, a motion for a new trial based on the improper remarks was denied. The Court of Special Appea ls upheld the trial court s decision based primarily upon the fact that the defense attorney failed to raise the objection before the jury was sent out for delibera tions. Id. at 215, 7 34 A.2 d at 204 . This Court reversed stating that the objection was not overruled due to its untimeliness but on the merits. As a result, the motion did preserve th e issue for re view eve n though it -25- was raised after the jury retired for deliberation. The Court also found that the prosecutors statements were wholly improper and presumptively prejudicial . . . . Id. at 216, 734 A.2d at 205. We recognized that the defense s motion for a new trial asked for more than just another curative instruction . . . . The point made was that the jury had been contaminated [] by the prosecutor s improper [remarks, including] . . . references to the need for the jurors to convict petitioner in order to preserve the qua lity of their o wn co mmu nities. Id. at 21920, 734 A.2d a t 206. A s a result , the pro secuto r s statem ents pre judiced the def endan t. The Court of Special Appeals in Walker v. S tate, 121 Md. App. 364, 709 A.2d 177 (1998), addressed the impropriety of a prosecutor s closing argument calling the defendant an animal and a pervert. The court, in addressing these statements stated: Indeed, the nature of th e evidenc e presented certainly gives rise to the conclusion that the actions of appellant assuming them to be true as we must w ere pervers e, to say the least. When viewed, however, in the context of the totality of the prosecutor s closing argument, given such odious offenses, it is ironic that resort to excessive a ppeals to pa ssion are ne eded to secure a conviction when the nature of the charges and the evidence adduced, without embellishment, is inherently inflammatory, albeit properly so. The right to a fair trial and the search for the truth, however, should not be hampered or obfuscated by extreme appeals to passion calculated to inflame the ju ry. When the reference to the silent screams and pervert are considered in conjunctio n with the characterization of appellant as an animal, we believe the prosecuto r, in her zeal, exceeded the bounds of proper comment. Not only is it inappropriate to refer to a defendant in a criminal case as an animal, it may be argued that such strategy, in some instances, could be counterproductive should the jury view the State as engaging in a personal contest with the defendant. It is incumbent upon the People s representative to main tain an a ir of dig nity and sta y above t he frey. Id. at 380-81, 709 A.2d at 185 (emphasis added ). In the present case, although the prosecutor -26- did not say this def endant is a monster a nd a child m olester, it is clear tha t she intende d to imply to the jury that he was that monster and child molester. Under circumstances such as those present here, it is not necessary for the prosecutor to specifically name the defen dant, in order for the jury to understand that a defendant is the person the prosecutor is describing. Such s tateme nts are th erefore inappr opriate. d. Future crim inality Petitioner contends that the State improperly argued that petitioner would, if allowed to roam free, sexually abuse his cousin s eleven-year-old child implying that he was already setting the child up by allowing the mother and child to live in his apartment. The Court of Special Appeals recognized that we have not addressed the issue of th e allegation of future criminality in a pro secutor s clo sing argum ent. Lawson, 160 Md. at 631, 865 A.2d at 634. That court then looked at o ther state cou rt opinions to guide them in their ana lysis. State v. Brown, 951 P.2d 1288, 1297 (Idaho 1998); State v. Williams, 145 S.W.3d 874 (Mo. Ct. App. 2004); Williams v . State, 583 S.E.2d 172, 177 (Ga. Ct. A pp. 2003 ); People v. McNeal, 677 N.E.2d 841, 855 (Ill. 1997). The court found that such arguments are improper because they are based upon facts not in evide nce at tria l. Lawson, 160 Md. at 631, 865 A.2d at 634. We agree with the Court of Special Appeals that such statements are improper, furthermore we find that such statements, u nder the circ umstance s here prese nt, were hig hly prejudicial to the defen dant. -27- e. Summa ry of the effect of the im proper statem ents The Court of Special Appeals evaluated each of the statements standing alone and determined that each statement, independent of the others, did not merit reversal of all of the convictions, stating that [t]he remarks at issue were unquestionably improper but, in each instance, they were sh ort, isolated, and vague co mments a nd thus did not vitally affect appellant s right to a fair and impartial trial. Lawson, 160 Md. at 632, 865 A.2d at 635. Because the Court o f Special A ppeals did not consider the separate statements in the context of the prejudice that each of th e statements, and all of them together, created in the minds of the jurors, w e disag ree. As petitioner argues, taken alone the statements may not affect the appellant s rig ht to a fair and impa rtial trial, but their cumulative effect leads to a different conclusion. This becomes clearer as one applies the two remaining factors under Spain: the strength of the case and the trial court s actions. 2. Weight of the evidence The evidence suppo rting the jury s verd ict plays an important role in determining the influence of a prosecutor s improper remarks during trial. In Spain, there was physical evidence of the crime along with the testimony of the police officer who witnessed the event. We decided that in light of the fact that there remained sufficient evidence to convict, in s pite of the effect of the improper statement that Spain nonetheless received a fair trial. We also found that the prosecutor s remarks were not severe and that the court cured any potential prejudice. The convictions were affirmed. Spain, 386 Md. at 161, 872 A.2d at 34. In the -28- present case there w as less evide nce than in Spain and the prosecutor s rem arks were severe and considered cumulativ ely were mu ch more p rejudicial. Th e State s case was based primarily on Nigha s testimon y and the statements she gav e to her mother and the social worker. Although Nigha s m other and th e social wo rker testified, the y did so mainly as to the information that Nigha had provided to them. Their testimo ny contradicted Nigha s testimony as to the second incident. As a result, this was a close case where the evidence against the petitioner was less than overwhelming. There was some corroborative evidence. But, in respect to the central issue of the case, it was basically a she said, he said case. In our balancing analysis, this fact weighs more h eavily on the side of prejudice be cause there is a higher probability, in the case sub judice than in Spain, that the prose cutor s statem ents had an improper impact in respect to the jury s decision. When the trial court errs in admitting such statements we have said that the determinative factor . . . has been whether or not the erroneous ruling, in relation to the totality of the evidence, played a significant role in influencing the rendition of the verdict, to the prejudice of the [defendant]. Degren, 352 Md. at 432, 722 A.2d at 887 (quoting Dorsey, 276 M d. at 653 , 350 A .2d at 67 4). 3. Trial court s remedial measures The final factor under Spain requires us to evaluate the trial court s actions addressing the prosecutor s remarks. T he first time the court had an o pportunity to address these remarks was upon the objection by petitioner to the prosecutor s reference to her own niece -29- and the insinuation to the jury that they should put themselves in the shoes of the victim. The court properly sustained that objection. The court, however, overruled the next objection to the prosecutor s comment implying that petitioner had to prove that Nigha had a motive to lie. The only oth er action take n by the trial cour t with regard to the prosecutor s remarks was one paragraph in the jury instructions based upon the M aryland Criminal Pattern Jury Instructions (MPJI-CR § 3:00) stating: Opening statements and closing arguments of lawyers are not evidence in this case. They are intended only to help you to understa nd the evid ence and to apply the law. Therefore, if your memory of the evidence differs from anything the lawyers or I may say, you must rely on your own memory of the eviden ce. This instruction was give n only generally and then before oral argument when it could not address specifically the objectional remarks because they had not yet been made. After closing arguments the same general written instruction was sent b ack with the jury without elaboration or withou t being iden tified as having any specific relationship with the prosecutor s improper remarks. The trial judge in Spain did use the same instruction and we recognized the presumption that jurors are able to follow the instructions given to them by the trial cou rt. Spain, 386 Md. at 160, 872 A.2d at 34. However, at the specific time the objectiona ble remarks were made in Spain, the trial court immediately responded in the presence of the jury: Oka y, well the jury understand[s] that this of course is closing argumen t, and that the y will [conside r the stateme nts to be] lawyers arguments. Id. at 151, 872 A.2d at 29. Judge Harrell responded for us in Spain: -30- We note also the likely diminution of pre judice from the prosecu tor s comme nts as a result of the trial judge s contemporaneous reminder that they were only an a ttorney s a rgume nt, not ev idence , . . . . By emphasizing the argumentative nature of closing arguments contemp oraneou sly with the improper comments, the judge took some effort to eliminate the jury s potential confusion about what it just heard and therefore ameliorated any prejud ice to the accuse d. Spain, 386 Md. at 15 9-60, 872 A.2d at 33-34 (empha sis added). In the case sub judice there were no contemporaneous efforts by the trial judge to ameliorate the prejudice or any specific effort to cure the effect s. Instead, he relied only on the general instructions he had previously given and the fact that written general instructions would go in the ju ry deliberation room. We look at the trial judge s actions as a whole in reference to the statemen ts. In Spain, for example, upon objection by the defense attorney to the prosecutor s comments, the trial court con temporan eously and sp ecifically addressed the issue that the jury understood the remarks to be only lawyers argu ments and no t eviden ce. See Miller v. State, 380 Md. 1, 35-37, 843 A.2d 803, 823-24 (2004) (holding that the trial court properly denied a motion for a mistrial based upon a prosecutor s comments because it properly sustained the defense s objections, granted the defense motions to strike and imm ediately instructed the jury to disregard the specific com ments); Dunn v. State, 140 Md. 163, 117A. 329 (1922) (holding that since the trial co urt promp tly admonishe d the prose cutor and to ld him to refrain from making improper statements, the trial court did not err when it overruled an objection and denied a motion for a mistrial). In petitioner s case the only time the judge addressed the -31- weight or appropriateness of the prosecutor s remarks was in the general jury instructions, which at no point directly addressed the improper remarks. Thus there was no immediacy or spec ificity as to a ny effor ts to cure . Recognizing the role of the trial court in ruling upon remarks made during closing arguments this Court has stated: When in the first instance the remarks of the State s Attorney do appear to have been prejudicial, a significant factor in determining whether the jury were actually misled or were likely to have be en misled o r influence d to the prejudice of the accused is whether or not the trial court took any appropriate action, as the exigencies of the situation m ay have app eared to require, to overcome the likelihood of prejudice, suc h as informing the jury that the remark was improper, striking the remark and admonishing the jury to disrega rd it. Wilhelm , 272 Md. at 423-24, 326 A.2d at 720. And then in Hill: The Court of Special Appeals will also need to take account of the persistency of the prosecutor s conduct continuing to make these remarks time and again despite the court s rulings that the re marks were im proper. A court obviously commits no error when it sustains objections to impermissible comme nts or gives a proper curative instruction, if that is all that is requested. There is a risk, however, when the prosecutor persistently ignores those rulings and continues in an improper co urse of co nduct, that the jury may come to regard the court s rulings as rote window dressing and thus pay less attention to them. The number of such rulings may actually assume an inverse significance the more of them, the less weight each or all of them w ill have in which event o nly a mistri al may ser ve to rem edy the er ror. Hill, 355 Md. at 226, 734 A.2d at 210. In this case, the prosecutor s inappropriate remarks continued and w hen taken as a w hole were highly prejudicial to the pe titioner. We hold that the cumulative effect of the prosecutor s remarks was likely to have improper ly influenced the jury under the circumstances in the case at bar. The weight of the -32- evidence was not overwhelming. The State s case relied heavily upon the credibility of the victim. The trial judg e did not take sufficient steps and took no specific steps to ensure that the jury give the appropriate consideration to the statements as only being the prosecutor s argumen ts and not evidence. As a result, we cannot find beyond a reasonable doubt that the prosecutor s remarks were harmless. See Dorsey, 276 Md. at 659, 350 A.2d at 678. The Court of Special Appeals determined that petitioner failed to preserve some of the issues for review because he only objected to two of the statements and did not move for a mistrial as to those issues at the end of closing argum ents. Lawson, 160 Md. App. at 62930, 865 A .2d at 63 3. The intermediate court then found that when an issue is not preserved, it must find that ther e was pla in error in ord er to reverse the conviction. The court noted that plain error is inv oked on ly in instances which are compellin g, extraordin ary, exceptiona l, or fundamental to a fair trial. Id. (citations omitted) (internal quotations omitted); see Miller, 380 Md. at 29, 843 A.2d at 820; Conyer s v. State, 354 Md. 132, 171, 729 A.2d 910, 930-31 (1999 ), cert. denied, U.S. 910, 120 S.Ct. 258, 1 45 L.Ed .2d 216 (1 999); Clermont v. State, 348 M d. 419, 455 , 704 A.2d 880, 898 (1998); Rubin v. S tate, 325 Md. 552, 588, 602 A.2d 677, 694 (1992); State v. Hutchinson, 287 Md. 198, 202, 411 A.2d 1035, 1037 (1980). In the intermediate court s opinion, each statement when considered in isolation, was not so harmf ul to the p etitioner as to am ount to plain err or. That court erred in limiting a plain error issue to each inappropriate statement sepa ratel y. Once error is determined during a plain error review, prejudice can only be -33- 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 im partial verdict in the con text of th e case. The Court of Special Appeals points to Clermo nt and Rubin for the proposition that this Court i s relucta nt to find plain err or in clo sing arg umen ts. Lawson, 160 Md. App. at 631, 865 A.2d at 635. These cases, however, are very different when compared to the case sub judice. They were both cases where there was ample evidence against the defendants and the argum ents did not vital ly affect th eir right to a fair tria l. Clermont, 348 Md. at 456, 704 A.2d at 898 ( T here is no b asis for reversal because none of the alleged errors vitally affected Clermont s right to a fair and impartial trial. ); Rubin, 325 Md. at 589, 602 A.2d at 695 (noting that the improper argument is not a basis for reversal in view of the overwhelming proof of guilt ). In th e present ca se, the prima ry evidence a gainst the petitioner that the offenses occurred w as the testimony of N igha. Altho ugh her tes timony alone was lega lly sufficient for a con victi on, it might no t hav e con vinc ed th e jury. The pros ecutor s co mments when taken as a whole, could have prejudiced the jury in such a w ay as to deny the defendant a fair and im partial trial. See Me no v. State, 117 Md. 435 , 441, 83 A. 759, 76 1 (1912). C. Corroborating Evidence The last question in petitioner s brief states: Did the Court of Spe cial Appeals err when it held that an out-of-court accusation of rape by a child complainant who later testifies at trial and repu diates that ou t-of-court ac cusation is su fficient, without any independent -34- corrobora tion, to convict the defendant? This question is moot, however, because the repudiating statement only related to the second alleged incident, and the Court of Special Appea ls reversed the petitioner s conviction arising from that incident specifically because there was [n]o medical evidence or other corroborative evidence [] presented that [petitioner] raped Nigha in J une 200 2, except, that is, for the testimony of the social work er, whose sole source of information was the same as Nigha s mother: Nigha s post-incident statement which was repudiated by Nigha at trial. Lawson, 160 Md. App. at 620, 685 A.2d at 628. The intermediate court affirmed only the conv ictions relating to the first inciden t in October or Nove mber 20 01 whic h was no t repudiated by Nigha at tria l. Petitioner further argues that the child s in-court testimony without independent corroboration was not sufficient to support either rape conviction.12 In support of his position, petitioner contends that although the Maryland cases recognize that corroboration is not necessary in rape cases, this Co urt has n ot expla ined the rational e behin d that ru le. Be that as it m ay, our cases clearly establish that corroboration evidence is not necessary when the victim te stifies. See Gre en v. State, 243 Md. 75 , 80, 220 A.2d 13 1, 135 (1966); Johnson v. State, 238 Md. 528, 536, 209 A.2d 765, 768 (1965); Leek v. State, 229 Md. 526, 528, 184 A.2d 808, 809 (1962 ) (per cu riam), cert. denied, 372 U.S. 946, 83 S. Ct. 940, 9 L. Ed 2d 971 (1963); Domneys v. State, 229 Md. 388 , 391, 182 A.2d 8 80,881 (1962); Doyal v. S tate, 226 12 Petitioner entered a motion for a judgment of acquittal based upon lack of corroboration at the end of the prosecutor s case in chief and at the end of all the evidence, preserving the issue fo r appeal. -35- Md. 31, 34, 171 A.2d 470, 471 (1961 ); Smith v. State, 224 Md. 509, 511, 168 A.2d 356, 358 (1961); Robert v. S tate, 220 Md. 159, 164, 151 A.2d 737, 739 (1959 ); Saldiveri v. S tate, 217 Md. 412, 420, 143 A.2d 70, 74 (1958) (stating that the state did not need to corroborate the testimony of an eight-year-old girl rape victim); Lusby v. S tate, 217 Md. 191, 199, 141 A.2d 893, 897 (1958) (holding that the testimony of an incestuous relationship by a seventeenyear-old victim did not need corroboration). The C ourt of Special Appeals has recognized this rule in m ultiple o ccasion s. Moore v. State, 23 Md. App. 540, 551, 329 A.2d 48, 55-56 (1974), cert. denied, 274 Md. 730 (1975) ( the victim s te stimony, standin g alone, if believed, is sufficient to sustain the co nviction. ); Estep v. Sta te, 14 Md. App. 53, 70, 286 A.2d 187, 19 6 (197 2), cert. denied, 265 M d. 737 (19 72); Crensha w v. State, 13 Md. App. 361, 371, 283 A.2d 423, 429 (1972 ), cert. denied, 264 M d. 746 (19 72); Williams v . State, 11 Md. App. 350, 354, 274 A.2d 403, 405 (197 1); Charles v . State, 4 Md.App. 110, 112, 241 A.2d 435, 436 (1968); Johnson v. State, 3 Md.App. 219, 222, 238 A .2d 295, 296 (196 8); Reed v. State, 1 Md.App. 662, 664, 232 A .2d 550 , 550 (1 967) (p er curia m), cert. denied, 248 Md. 735 (19 67). In this case, even if we were to hold that corroboration was required (and we do not so hold), there is enough corroborating evidence to support a conviction. Section 11-304(d) of the Crim inal Procee dings Artic le provides : (2) If the child victim does not testify, the child victim s out of court statement w ill be admissib le only if there is co rroborative e vidence th at: (i) the defendant had the opportunity to commit the alleged crime . . . . (Emp hasis ad ded.) -36- If required, testimony showing that the defendant had the opportunity to commit the crime would b e sufficien t to show c orroboratio n. In this case, th e Court of Special A ppeals found that Nigha s testimony was fully corroborated: We do note, ho wever, th at, despite the absence of a corroboration requirement in Maryland law, Nigh a s testimon y was, in fact, fu lly corroborated by the social worker s testimony as to the November 2001 incident. And N igha s testimony, in turn, partially corroborated her social worker s testimony as to what occurred in June 2002. Lawson, 160 Md. App. at 623, 865 A.2d at 630. Furthermore, petitioner admits that he knew Nigha and her f amily and , althoug h he de nies livin g with t hem a fter Au gust of 2001, he admits that he stopped by their house and that sometimes only the children would be there. As a result, the jury could reasonably conclude that the petitioner had an opportunity to comm it the alleg ed crim e. IV. Conclusion Section 11-304 of the Criminal Procedure Article allows social workers acting in their professional capacity to testify as to out-of-co urt statemen ts given to them by children under twelve regarding child abuse. The Court of Special A ppeals corr ectly upheld the Circuit Court s decision to allow the social worker to testify as to the out-of-court statements in the presen t case. Prosecutors are given great leeway during opening and closing arguments. They must, however, remain within the bounds of the evidence presented at trial and refrain from appealing to the jury s passions or prejudices. When improper comments are made during -37- opening and closing arguments, we give much deferenc e to the trial cou rt in exercising its discretion. When, however, there are m ultiple inappropriate statements and the trial court fails to cure the prejudice create d by the cumulative effect of those statements, the admissibility of such statements m ay amount to more than harmless error. In this case, the trial court failed to correct the multiple inappropriate statements made by the prosecution and as a resu lt the petit ioner w as deni ed his rig ht to a fa ir and im partial tria l. In Maryland, th ere is no req uirement to provide corroborating evidence of the abuse in respect to a child victim of sexual abuse that testifies. Should we impose such requireme nt, it is clear from § 11-304(d)(2) that the only corroboration necessary is that the defendant had the op portunity to commit the crime. In this case there was sufficient evidence for the jury to make such a finding. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMING CONVICTIONS OF RAPE, ATTEMPTED RAPE AND ASSAULT IS REVERSED AND T HE CA SE IS REMANDED TO THAT COURT WITH DIRECTIONS TO R EVERSE THE JU DGM ENT O F THE C IRCUIT COURT FOR P RINC E GEO RGE S COUNTY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PRINCE GEORGE S COUNTY. -38- IN THE COURT OF APPEALS OF MARYLAND No. 12 September Term, 2005 JOSEPH LAWSON v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Conc urring O pinion by Harre ll, J., which Raker, J., Joins. Filed: November 28, 2005 I write separ ately because I am leery of the Majority opinion s approach to factoring into its closing arg ument c umulative effect an alysis (Maj. slip op. at 16-35) 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 app ellate ability to argue that, during the State s initial closing argument, the prosecutor improperly made golden rule and burden-shifting argumen ts. With rega rd 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 Law son wh olly failed to object during the prosecutor s rebuttal closing argumen ts when she utilized the monster characterization and alluded to the potential for Lawson s future dan gerousne ss with rega rd to his 11 yea r old fema le 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. 1 The impropr iety 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 emplo yment in the cu mulative ef fects analysis by the Majority (Maj. slip op. at 2829; 33-35) that draws my fire. There are sound, non-techn ical reasons f or requiring , as a precurs or to appella te preservation, defen dants 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 docume ntary evidenc e, or argum ent and, if appropriate, whether a curative measure may be 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 inv ocation by L awson 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. slip op. at 33-34 (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 separa tely. Once error is determined during a plain error review, -2- 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. slip op. at 34. 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 fo und fit the a pplicable criteria. Second, although I agree w ith both the M ajority and the Court of Spe cial 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 radar of trial counsel, do not strike me as worthy of characterization, in and of themselves, as comp elling, extraord inary, exception al, or funda mental to a fair trial. Acc ordingly, I would not factor the rebuttal arguments into an analysis of whether reversal in this ca se shou ld result. Yet, I would reverse based on the preserved errors from the State s initial closing arguments, for much of the sam e reasons m arshalled by the Majority opin ion in its cumulative effects analysis. This should have been a clo se case at trial. B asically, it came down to Nigha s credibility versus that of Lawso n. The m other and th e social wo rker merely -3- repeated what N igha 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 impropr ieties in th e Sta te s initia l clos ing influ ence d the verd ict in no w ay. I have no quarrel w ith the balanc e of the M ajority opinion o r the judgm ent. Judge Raker authorized me to state that she joins this concurrence. -4-
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