Spain v. State

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Spain, Jr. v. State, No. 81, Sept. Term 2004. Opinion by Harrell, J. CRIMINAL LAW - PROSECUTOR IAL MISCONDUCT - CLOSING ARGUM ENTS CREDIBILITY - MOT IVE TO LIE - A PROSECUTOR MAY COMMENT ON A POLICE OFFICER WITNE SS S AB SENC E OF A MOT IVE TO LIE SO LONG AS THE COMMENTS DO NOT CONSTITUTE AN ASSURANCE BY THE PROSECUTOR THAT THE WITNESS IS CREDIBLE CRIMINAL LAW - PROSECUTORIAL MISCON DUCT - CLOSING ARG UMENTS CREDIBILITY - MOTIVE TO TESTIFY TRUTHFULLY - EVIDENCE NOT ADMITTED AT TRIAL - A PROSECUTOR MAY NOT MAKE COMMENTS DURING CLOSING ARGUMENTS THAT SUGGEST A POLICE OFFICER WILL FACE ADVE RSE CONSEQUENCES TO HIS OR HER CAR EER IF HE OR SHE WER E TO TESTIFY FALSELY Jesse Spain, Jr. was convicted of several charges relating to his involvement in a drug transaction. During closing argument in the jury trial, the prosecuto r made sev eral comm ents concerning the sole pro secution w itness, Off icer Cornelius Williams, suggesting that the officer had no motive to lie in the present case, and that he in fact had a motive to testify truthfully because to testify falsely wou ld expose him to the penalties of perjury and other adverse consequences to his career as a police officer. A prosecutor may comment on the motives, or absence thereof, that a w itness may have for testifying in a particular way, so long as those conclusion s may be infe rred from the eviden ce introduc ed and ad mitted at trial. When the prosecutor argued in this case that a particular police officer lacked a motive to testify falsely, such co mments were merely an allusion to a lack of evidence presented by the defendant that the officer possessed any motive to lie or devise a story implicating the defendant in criminal conduct. A prosecutor, however, may not make comments during closing argumen t that implicate evidence not admitted at trial or that sug gest a police officer should be deemed more credible simply as a result of his or her status as a police officer. Comm ents that sugges t that a police off icer wou ld not testify falsely be cause to do so w ould jeopardize his or her career are improper because they implicate information not admitted at trial and impro perly suggest th at a police off icer has a gre ater duty to testify truthf ully than other witnesses. When improper statements do not pervade the overall fairn ess of the trial, however, and appropriate instructions are given, the presence of improper statements may not be so prejudicial as to con stitute reversible error. Circuit Co urt for Baltim ore City Case # 202080007 IN THE COURT OF APPEALS OF MARYLAND No. 81 September Term, 2004 JESSE SPAIN, JR. v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Bell, C.J., dissents. Filed: April 7, 2005 I. On Sunday, 3 February 2002, Officer Cornelius Williams, assigned at the time to the Western District FLE X unit 1 of the Ba ltimore City Po lice Department, was walking eastbound in the 1900 block of Wes t Baltimore S treet, near its interse ction with N orth Monroe Street, when he saw a group of seven men at the corner. As Officer Williams, who was dressed in plain c lothes, walked towa rd the gro up, one group memb er, a man wearing a gray swe at suit w ith a red s tripe and later iden tified as Jesse S pain, Jr. ( referred to as Spain or Petitioner subsequently), approached the officer and asked, What do you want? Interpreting this remark as an inquiry about the possible sale of illegal narcotics, Officer Williams, trained and experienced in matters involving street level narcotics distribution, responded, What do you have? Spain responded, I ve got some pills. Officer Williams interpreted this statement to indicate that Spain was offering for sale heroin in gel cap form. Spain then tapped the shoulder of another man in the group (later identified as Petitioner s father, Jesse Spain, Sr.), who advised Spain, I m going to take [Officer Williams] up the street. As Officer Williams and Spain, Sr. walked northbound on Monroe Street towards th e 1900 b lock of W est Fairmou nt Avenue, Spain, Sr. stated that he had a kid on a bik e, who s got so me pills on him . After walking approximately 90 feet furthe r, Spain, Sr. whistled out. A young man on a bicycle approached them. Officer Williams recognized the young man on the bicycle as Juan Wilson, w hom O fficer W illiams previo usly 1 The FLEX unit is a plain clothes squ ad within th e Baltimor e City Police Department that responds to varying locations during different time periods depending on crime trends. had arrested for street level narcotics distribution. Wilson stopped his bicycle in front of Officer Williams and removed from his pocke t a clear plastic bag that contained several gel caps filled w ith wha t was la ter stipula ted to be heroin powd er. Wils on, at this point, reco gniz ed O ffic er W illiam s and began to ride slow ly away. Officer Williams id entified him self as a po lice officer and arrested Wilson. Meanwhile, Spain, Sr. fled through an alley on W est Fairm ount A venue . When a patrol car and wagon responde d to the scene of the narcotics transaction, the original group of men on the corner of W est Baltimore Street and North Monroe Street dispersed. As Officer Williams was arresting Wilson, he observed Spain walk westbound on West Baltimore Street out of his sig ht. A few minutes later, as he was riding in a police wagon, Officer Williams arrested Spain, whom he found standing on the front steps of a residence o n West Baltimore Street. By criminal information filed in the Circuit Court for Baltimore City, Spain was charged with various violations relating to his role in the drug transaction on 3 February involving Officer Williams.2 At Spain s jury trial, the State s sole witness was Officer 2 Spain was charged with one count of distribution of a controlled dangerous substance ( CDS ) in violation of Md. Code (1957, 1996 Repl. Vol.), Art. 27 § 286 (now codified, without substantive change, at Md. Code (2002), § 5-602 of the Criminal Law Article), one count of using a minor fo r distribution o f a CD S in violation of Md. C ode (195 7, 1996 R epl. Vol.), Art. 27 § 286C (now codified, without substantive change, at Md. Code (2002), § 5628 of the Criminal Law Article), one count of possession of a CDS with intent to distribu te in violation of Md. Code (1957, 1996 Repl. Vol.), Art. 27 § 286 (now codified, without substantive change, at Md. Code (2002), § 5-602 of the Criminal Law Article), one count of possession of a CDS in violation of Md. Code (1957, 19 96 Rep l. Vol.), Art. 27 § 287 (now (contin ued...) 2 Williams,3 who testified as both a fact witness and an expert on the packaging, identification, and distribu tion of s treet leve l narcoti cs in Ba ltimore C ity. The defense consisted of only one witness, Spain s sister, Dawn Spain, who testified that she spoke with Spain earlier on 3 February and he told her that he planne d to attend a Super B owl party later that evening at his grandfath er s house, w hich happ ened to be near the sce ne of the n arcotics transaction. Spain s defense a t trial appeared to hinge on the conten tions that O fficer Williams was mistaken as to the enc ounter betw een himse lf and Of ficer Williams and that he was in no way involved in the narcotics transaction that followed.4 2 (...continued) codified, withou t substan tive cha nge, at M d. Code (2002 ), § 5-601 of the Criminal Law Article), and three counts of conspiracy relating to the distribution of a CDS in violation of Md. Code (1957, 1996 Repl. Vo l.), Art. 27 § 290. Spain was charged with using a minor for distribution of a CDS because Wilson s birthday was 1 June 1985, making him under the age of 18 at the time of the narcotics transaction. At the close of the State s case, Spain moved for judgment of acquittal on Count I relating to the charge of distribution of a CDS, which the trial co urt gran ted. 3 The defenda nt stipulated th at the substan ce in the gel caps was heroin, excusing the need for the State to call a witness to testify as to the identity of suspected CDS. Spain also did not object to the admission of the State s documentary exhibits offered through Officer Williams. 4 The Dissent would h ave us believe that the thrust of S pain s defense at trial focused on urging the jury to disbelieve Officer Williams because he lied about Spain s involvement ( Thus, notwithstanding the majority s mistake characterization, the credibility of Officer Williams was placed at issue by the petitioner. Indeed, the petitioner s objection to the State s closing arg ument ref erenced O fficer W illiams perjurin g himself a nd his credibility . Dissent at 1). To believe so would be wrong. Although the defense at trial surely wanted the jury to believe its sole defense witness (Spain s sister) and its the ory that Spain, w hile in transit to a Sup er Bow l party at his grandfather s home, was caught up in a drug transaction conducte d by others, it s ration ale offered in closing argument for reaching that view was that Officer Williams memory was unreliable d ue to passa ge of time and men tal comm ingling of s imilar events , to wit: (contin ued...) 3 Against this backdrop, the State s Attorney advocated during closing argument as follows: [STAT E S ATTO RNE Y]: The s econd po int I wanted to make to you is that the Officer in this case -- the Defense s argument is that Mr. Spain was outside his house. He was going to attend a Superbowl party and was buying beer. Part of what you have to determine is the credibility of the witnesses. The defense put on a witness who testified, and the State put on one witness, the Offic er in this case. Y ou have to weigh the credibility of each individual. Who has a motive to tell you the truth. The Officer in this 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. [DEFENSE CO UNSEL]: Objection. THE CO URT: Basis? [DEFENSE COUNSEL ]: Reference to the Officer perjuring him self your H onor. It s as fa r as c redibility. THE CO UR T: O kay, well the jury understand[s] that this 4 (...continued) And let s remember again, this case happened over a year ago. The officer that is testifying - officers, like any other people who testify can make mistake s. Does he remember exactly what was said to him a year ag o? I wo uld subm it to you ladies and gentlemen, that probably since that incident, Officer Williams has probably had hundreds of arrests. He s an expert in drugs activ ity. He s working on the street. Does he rem ember, verbatim exactly what my client said to him that day? It is enough that he [Spain] may have directed the officer to where drugs were being sold, to find if he was working with these people in a n agreem ent. It is not. Trial transcript, 6 March 2003, Page 35, lines 9-20. Con siste ntly, Spain s appellate counsel argued before us that Officer Williams ver acity was n ot challe nged, ra ther the accura cy of his memo ry was at is sue. We were informed that the defense from the minute of opening all the way through the end was he may have made a mistake. 4 of course is closing argument, and that they will [consider the statements to be] lawyers arguments. Overruled. [STAT E S ATTORNEY]: So basically you hav e to determine who has the credibility. Who s telling you the truth. Is the Officer coming here an d making up a story? What s his incentive to lie and frame Mr. Spain? The reality is that this Officer -- they attempted to sell this Officer drugs on the street. They didn t know he was a police officer. He wa s out there trying to enforce the law. But, you have to understand that Officer Williams has no motive to lie, because he has everything to risk in this case. Because he doesn t have to go out and make up drug arrests. Because he has plenty of legitimate drug arrests. There s absolutely no incentive for him to come in he re and tell a story about Mr. Spain. So is M r. Spain the victim of circumstance? He was just taken up in front of h is house, trying to attend a Superbowl party? That s the defense s theory in the case. You w ill ultimately have to dec ide who you want to believe. On 6 M arch 2003, the jury re turned a g uilty verdict on all counts.5 Spain time ly appealed to the Court of Special Appeals, which affirmed his conviction in an unreported opinion. He then p etitioned this C ourt for a w rit of certiorari, which we granted, 383 Md. 256, 858 A.2d 1017 (2004), in order to consider the following question: Did the trial court properly exercise discretion in regulating the scope of closing argumen t when it allowed the State s Attorney to argue that the police officer in this case had no motive to lie and wou ld ris k his care er by testif ying f alsely? II. In Degren v. State, 352 Md. 400, 722 A.2d 887 (1999), we outlined the great leew ay 5 The trial judge sentenced Spain to 10 years imprisonment for the conviction of using a minor to distribute, and 10 years imprisonment, to run concurrently, for the conviction of possession with intent to distribute. The trial judge merged all of the other convictions for senten cing pu rposes . 5 attor neys a re af ford ed in pres entin g clo sing argu men ts to the ju ry: The prosecutor is allowed liberal freedom of speech and may make any 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 speak fully, although harshly, on the accused s action and conduct if the eviden ce suppo rts his comments, as is accused s counsel to comment on the nature of the evidence and the character of witnesses which the [prosecution] produces. * * * While arguments of counsel are required to be confined to the issues in the cases on trial, the evidence and fair an d reasona ble deductions therefrom, and to arguments of oppo sing coun sel, generally speaking, liberal freedom of speech should be allowed. There are no hard-a nd-fast limita tions within which the argumen t of earnest c ounsel m ust be con fined no welldefined bounds b eyond wh ich the eloq uence of an advoc ate shall not soar. He may discuss the facts proved or admitted in the pleadings, a ssess the co nduct of th e parties, and attack the credibility of witnesses. He may indulge in oratorical conceit or flourish and in illustrations and metaphorical allusions. Id. at 429-30, 722 A .2d at 901-902 (citations om itted). Despite this lack of hard-and-fast limitations on closing arguments, one technique in closing argument that consistently has garnered our disapproval, as infringing on a defendant s right to a fair trial, is when a prosecutor vouches for (or against) the c redibility of a witness. See, e.g., Wa lker v. State, 373 Md. 360, 403-04, 818 A.2d 1078, 1103-04 (2003) (finding improper vouching to have occurred where a prosecutor made assertions, based on personal know ledge, that a witness wa s lying). Vouching typically occurs when a prosecutor place[s] the prestige of the government behind a witness through personal 6 assurances of the witness s veracity . . . or suggest[s] that information not presented to the jury supports the witness s testimony. U.S. v. Daas, 198 F.3d 1167, 11 78 (9th Cir. 1999) (citations omitted). The Suprem e Court recognize s that prosec utorial vouc hing prese nts two primary dang ers: [S]uch comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor s opinion ca rries 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. U.S. v. Young, 470 U.S. 1, 18-19, 10 5 S.Ct. 1038, 1048 , 84 L. Ed. 2d 1 (19 85). In the present case, Spain argues that the prosecutor, during his closing argument, improper ly vouched for the credibility of the State s sole witness, Officer Williams, by implying that the offic er 1) did no t have a m otive to testify falsely, and 2) in fact had a motive to testify truthfully bec ause to testify fals ely would ex pose him to the pena lties of perjury and lead to adverse co nsequen ces to his career as a police officer. Although we agree that the latter of the prosecuto r s comm ents transcended the boundaries of proper arg ument, we conclude ultimately that thos e statemen ts did not mislead or influence the jury unduly to the prejudice of Spain, a nd ther efore c onstitute d harm less erro r. Degren, 352 Md. at 430-31, 722 A.2d at 90 2 (citations omitted). A. No one likely would q uarrel with th e notion tha t assessing the credibility of witnesses 7 during a criminal trial is o ften a transc endent fa ctor in the factfind er s decision whether to convict or acquit a defend ant. During opening a nd closing argumen ts, therefore, it is commo n and per missible generally for the prosecutor and defense counsel to comment on, or attack , the cred ibility of the witnes ses pres ented. Part of the ana lysis of credibility involves determining whether a witness has a motive or incentive not to tell the truth. Cf. Panta zes v. State, 376 Md. 661, 680, 831 A.2d 432, 443 (2003) (describing as importan t the right to cross-examination because it allows a defendant to demonstrate to the factfinder a witness s bias, interest, or motive to te stify falsely); see also Maryland Crimina l Pattern Jury Instructions § 3:10 (M ICPEL 20 03). 6 Atto rneys 6 Before sending th e jury to deliberate , the trial judge in Spain s trial gave, among others, the following jury instruction, which, for the most part, mirrors Maryland Criminal Pattern Jury Instructions § 3:10: You are the sole judges of whether a witness should be believed. In making this decision, you may apply your own common sense and everyday experiences. In determining whether a witness should be believed, you should carefully judge all the testimony and evidence and the circumstances under which the witness testified. You should consider such things as: the witness behavior on the stand and manner o f testifying; did the witness appear to be telling the tru th; the witne ss opportu nity to see or hear the things about which testimony was given; the accuracy of the witness memory; does the witness have a m otive not to tell the truth; does the witness have an interest in the outcome of the case; was the witness testimony consistent; was the witness testimony supported or contradic ted by evidence that you believe and whether and the extent to which the witness testimony in the Court was different from any statement the witness made on any previous occasion. You need not believe any witness, even if the testimony (contin ued...) 8 therefore feel compelled frequently to comment on the motives, or absence th ereof, that a witness may have for testifying in a particular way, so long as those conclusions may be inferred from the e vidence in troduced a nd admitte d at trial. See, e.g., U.S. v. Walker, 155 F.3d 180, 187 (3rd Cir. 1998) (finding that where a prosecutor argues that a witness is being truthful based on the testimony given at trial, and does not assure the ju ry that the credibility of the witness based on his own personal knowledge, the prosecutor is engaging in proper argument and is no t vouching ). The prosecuto r s comm ents about O fficer W illiams s absen ce of a m otive to lie did not implicate any information that was outside the evidence presented at trial. When a prosecutor argues that a particular police officer lacks a motive to testify falsely, such comme nts do not bear directly on a defendan t s guilt or innocence, but are merely an allusion to a lack of evidence presented by the defendant that the officer in this case possessed any motive to lie or devise a s tory implic ating the defen dant in c riminal c onduc t. See Walker, 155 F.3d at 187 (finding that prosecutorial comment that points to a lack of evidence in the record which supports a defendant s argument that the witness is not credible is proper so long as the comment does no t constitute an assurance by the prosecu tor that the w itness is credible ). The prosecutor s invitation for the jury to consider whether the officer had a motive to lie did not amount to improper vouching because the comments did not express any 6 (...continued) is uncontradicted. You may believe all, part or none of the testimony of any witness. 9 personal belief or assurance on the part of the prosecutor as to the c redibility of the officer. See, e.g ., Reyes v. State, 700 So. 2d 458, 460-61 (Fla. Dist. Ct. App. 1997) (finding that statements such as, Did it appear as though [the police officer] was trying to lie? did not constitute an expres sion of the p rosecutor s p ersonal op inion as to the credibility of the witness ). Nor did such comm ents, in isolation, explicitly invoke the prestige or office of the State or the p articular police d epartm ent or u nit invo lved. Id. B. The prosecutor continued during closing argument that Officer Williams did not testify falsely because, if he were to do so, he would suffer adverse consequ ences to his career as a police officer. Th ese commen ts were improper. Courts consistently have deemed improper comments made during closing argument that invite the ju ry to draw inferences from information that was not admitted at trial. See Hill v. State, 355 M d. 206, 222 , 734 A.2d 199, 208 (1999); Degren, 352 Md. at 433, 722 A.2d at 903. Although the notion of adverse personnel implications flowing from perjured testimony by a police officer resonates at a common sense level, at no time during the trial scrutinized in the present case did the State introduce evidence from which it could be inferred ineluctably that Officer Williams risked his career or a ny of its benef its if he were to testif y false ly. See, e.g., U.S. v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999) (finding that a prosecutor s argument that agents of the federal government would not risk their careers by testifying falsely was improper because it referred to evidence not in the 10 record); U.S. v. Martinez, 981 F.2d 867, 87 1 (6th Cir. 1992) (sam e); U.S. v. Pungitore, 910 F.2d 1084, 1125 (3rd Cir. 1990) (finding imp roper vouching a nd bolstering whe re there was no evidence backing the prosecutor s comments that the U.S. Attorneys and law enforcement officers could not have behaved as unscrupulously as defense counsel alleged without violating their oaths of o ffice and jeopardizing their careers ). Even if evidence had been admitted from which it could be inferred that a police officer would face serious employment consequences as a result of testifying falsely, we nonetheless would conclude that the prosecutor s comments during closing argument constituted improper vouching because they also implied improperly that the witness s status as a police officer en titled him to greater credibility in the jury s eyes than any other category of witness about which the same might have been argued.7 Althoug h the State is f ree to highlight the incentive, or lack of incentiv e, of a witn ess to testify truthfu lly, courts consistently have held that it is improper to argue tha t a police officer may be dee med more credible simply be cause h e or she is a polic e offic er. See, e.g., Fultz v. Whittaker, 187 F. 7 We reserve for another day whether comments such as those made in this case w ould be allowed under the invited response doctrine as a response to a direct and specific attack on a police officer witness s v eracity. The invited response doc trine suggests that whe re a prosecutorial argument has been made in reasonable response to improper attacks by defense counsel, the unfair prejudice flowing from the two arguments may balance each other out, thus obviating the need for a new trial. Walker, 155 F.3d at 186 n.5 (citations omitted); see also Degren, 352 Md. at 431-32, 722 A.2d at 902 (finding comments by the prosecution during closing argument, though unprofessional and injudicious, to be nonetheless acceptable when made in response to the defense counsel s comments during closing argumen t that the jury should not believe the State s witnesses because they had various motives to lie ). In this case, the defendant made no such specific and direct attack on O ffic er W illiam s s verac ity. 11 Supp. 2d. 6 95, 7 06 n.5 (W .D.K y. 2001); Reyes, 700 So. 2 d at 461; see also People v. Clark, 542 N.E.2d 138, 142-43 (Ill. App. Ct. 1989) (stating that [i]t is established that a prosecutor may not argue that a witness is more credible because of his status as a police officer ). By invoking unspecified, but assumed, punitive consequences or sanction s that might re sult if a police officer testifies falsely, a prosecutor s arguments imply that a police officer has a greater reason to testify truthfully than any other witness with a different type of job. Although the factfind er generally is m ade awa re that a witn ess who is a police of ficer is testifying as to events witnessed w hile on duty as a police officer, a prosecutor must be careful not to insinuate that the credibility of statements made in this capacity may be assessed at a level of scrutiny other than th at given to all wit nesses . U.S. v. Boyd, 54 F.3d 868, 872 (D.C . Cir. 1995); see also People v. Allan, 596 N.Y.S.2d 793, 795 (N.Y. App. Div. 1993) (holding that a trial court s instruction that the jurors could take into accoun t a witness s job, e ducation , and statu s in th e com mun ity in assessing credib ility diluted its charge that the testimony of a police officer should be evaluated in the same way as that of any other witness ). C. Although we find that the pros ecutor s latter c ommen ts in this case im properly implied that a police officer be viewed by the factfinder as b eing more credible as a result of his or her status as a police officer, our inquiry does not end there. When statements made during closing argument stray beyond the outer realm of the latitude afforded prosecutors, 12 we must inquire into the extent of any prejudice suffered by the defen dant. As th is Court in Degren stated, Not every improper remark [made by a prosecutor during closing argument], how ever, necessarily mandates reversal, and [w]hat exceeds the limits of permissible comment depends on the facts in each case. We have said that [r]ev ersal 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 pre judice of th e accused . This determination of whether the p rosecutor s comm ents were prejudicial or simply rheto rical flourish lies within the sound discretion of the trial court. On review, an ap pellate court should not reverse the trial court unless that court clearly abused the exercise of its discretion and prejudiced the accused. 352 Md. at 43 0-31, 722 A.2d at 902 (citations omitted). When assessing whether reversible error occurs w hen impro per stateme nts are made during closing argument, a reviewing court may consider several factors, including the severity of the remarks, the measures taken to cure any potential prejudice, and the weight of the evid ence a gainst th e accu sed. U.S. v. Melendez, 57 F.3d 238, 241 (2nd Cir. 1995) ; see also Henry v. State , 324 Md. 204, 232, 596 A.2d 1024, 1038 (1991) (finding that [i]n determining whether reversible error occurred, an appellate co urt 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 (citations omitted)). In this case, the prosecutor s reference to potential consequences to Officer Williams s career was an isolated event th at did no t pervad e the en tire trial. See Wilhe lm v. State, 272 Md. 404, 425-26, 326 A.2d 707, 721 (1974) (rejecting the notion that one improper comment 13 by the prosecutor during closing argument so infected the trial with unfairness as to make the resulting conviction a denial of due pr ocess (citatio ns omitted)) ; Mazile v. S tate, 798 So. 2d 833, 834 -35 (Fla. D ist. Ct. App. 2001). We note also the likely diminution of prejudice from the prosecutor s comments as a result of the trial judge s contemporaneous reminder that they were only an attorney s argument, not evidence, as well as the pertinent instructions that the trial judge gave to the jury before sending it to deliberate. In response to the objection by defense counsel, the trial j udge stated, Oka y, well the jury understand[s] that this of course is closing argument, and that they will [consider the statements to be] lawyers arguments. Overruled. Although the trial judge did not acknowledge the comments as improper, nor did he explicitly instruct the jury to disregard the comments, he reminded the jury that the prose cutor s statem ents only shou ld be cons idered as arg ument, not evidence. By emphasizing the argumentative nature of c losing argu ments con temporan eously 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 prejudice to the accused. More importantly, however, before jury deliberations began, the trial judge gave, among others, a jury instruction, based on Maryland Criminal Pattern Jury Instructions § 3:10, that emph asized the a rgumen tative nature o f closing arg uments, an d explicitly instructed the jurors as to relevant factors to consider and their roles as the sole judges of the credibility of the witnesses p resented at trial. Maryland courts long have subscribed to the presumption that juries are able to follow the instructions given to them by the trial judge, particularly where the record re veals no overt act on the ju ry s part to t he con trary. Wilson 14 v. State, 261 Md. 55 1, 570, 276 A.2d 214, 223-24 (19 71); Brooks v . State, 85 Md. App. 355, 360-61, 5 84 A.2d 82, 85 (19 91). The ju ry in this case was instructed that it could reject or accept any testimony, and was to sub ject the credib ility of all witnesses to an equivalent level of scrutiny. With th ese instruction s in mind, we are confid ent that a reas onable jury w ould be able to fulfill p roperly its role and discern argument from evidence without undue prejudice to the defe ndant. Wilhelm , 272 Md. at 42 5-26, 445 , 326 A.2d at 721-22 , 732; see also Young v. State, 68 Md. App. 121, 136-37, 510 A.2d 599, 607 (1986) (finding that jury instructions such as those in this case were sufficient to apprise the jury of its duty to weigh testimony of police officers under the same scrutiny as other witnesses). We cou ld find in the record no indicia, nor d id Petitioner id entify any, of the ju ry s inabili ty or refusal to follow these explicit instructions given by the trial cou rt. See Brooks, 85 Md. App. at 36061, 584 A.2d at 85 (finding that when a defenda nt fails to dem onstrate any evidence of the jury s inability or refusal to heed court s instruction, m ere specula tion that the ju ry could not possibly have discharged [its] task appropriately . . . is totally insufficient ). Many courts finding improper similar comments during closing arguments also have found jury instructions, such as the one in this case, to be ameliorative of any prejudice that resulted from th e impro per com ments. Degren, 352 Md. at 434-35, 722 A.2d at 903-04; Henry, 324 Md. at 232, 596 A.2d at 10 38; Boyd, 54 F.3d at 8 72; Martinez, 981 F.2d at 871. Courts considering the prejudicial impact of improper prosecutorial comments also have examined the weight of evidence of the accused s guilt. See Wilhe lm, 272 Md. at 427, 326 A.2d at 722 (finding that [a]nother important and significant factor where prejudicial 15 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 defendant s guilt was overwhelming ). We find this fac tor, howev er, to be of so mewh at less weig ht in this case. Although the record contains adequate evidence of Spain s guilt to support the convictions under a sufficiency analysis, we cannot say that the evidence of Spain s guilt is truly overwhelming. Nonetheless, we find that the relative lack of severity of the improper remarks, the lack of potential impact of the erroneous argument (greater veracity of police officer due to adv erse emplo yment conse quences if he lied) on the defense s theory that Officer Williams had a faulty memory (not that he lied), and the instruction given by the judge lead us to the conclusion that Spain did not suffer undue prejudice, as a result of the prosecutor s improper comme nts during closing argument, sufficient to warrant reversal of his convictions. We are convinced beyond a reasonable doubt that the error in no way influenced the verd ict. Ragland v. State, Md. (2005) (No. 52, September Term, 2004) (opinion filed 18 M arch 200 5); Dorsey v . State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE P AID BY PETITIONER. 16 IN THE COURT OF APPEALS OF MARYLAND No. 81 September Term, 2004 JESSE SPAIN, JR. v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Bell, C. J. Filed: April 7, 2005 Jesse Spain, Jr., the petitioner, was convicted, af ter a jury trial in the Circu it Court for Baltimore City, of various offenses involving a controlled dangerous substance, including the offense o f using a m inor for the p urpose of distributing it. Th e sole witness fo r the State at the trial, and through whom all of the State s exhibits were introduced, was Officer Cornelius Williams, who, at the time of the commission of the alleged offenses was working a plain-clothes assignme nt. Althoug h the petitione r did not testify, his defense, confirmed by his only witnes s, his sister, was tha t he did not c ommit the offen ses alleged a nd, in fact, was not present when they were committed. The majority acknowledges that this was the focus of the petitioner s defense: Spain s defense at trial appeared to hinge on the contentions that Officer Williams was mistaken as to the encounter between himself and Officer Williams and that he was in no way inv olved in the narcotics transaction that follow ed. ___ Md. ___, ___, ___ A. 2d ___, ___ (2005)[slip op. at 3 ]. Thus, notwithstanding the majority s mistake characterization, the credibility of Officer Williams was placed at issue by the petitioner. 8 Indeed, the petitioner s objection to the State s closing argument referen ced O fficer W illiams perjurin g hims elf an d his c redibility. The State certainly understood that to be the case, ev en before the objec tion. There is no other lo gical reason or basis for th e Assistant S tate s Attorne y s closing argu ment to have included the following: 8 Credibility is implicated however and in whatever man ner it is argued that a witness s testimony ought not be credited; it may be a matter of academic interest or affect only the reprehens ibility of the action, but to the factfinder, it matters not whether the basis of the unreliability of the witness s testimony is mistake or intentional fabrication. Either way, as indicated, the testimony is unreliable, lacks credibility. Moreover, in this case, it does not matter how the petitioner characterized Officer Williams testimony, or why, whether diplomatic, perhaps tactical, given the position of the State s only witness. The State was clear in its closing arg ument tha t it perceived th e issue to be a credibility issue - it told the jury, You h ave to we igh the cred ibility of each ind ividual, it had to determine who has the cred ibility. Who s telling you the truth . It was the State s intention, and it had the desired effect, I submit, to enhance the Officer s credibility and to do so by emphasizing his position and, thus, vouching f or the Officer. How e ffective it w as, the impa ct it had on th e jury, is a matter to be determine d by the jury, not by this C ourt. 2 The second point I wanted to make to you is that the Officer in this case -- the Defense s argument is that M r. Spain w as outside h is house. H e was go ing to attend a Superbo wl p arty and wa s buying bee r. Part of w hat you have to determine is the cre dibility of th e witne sses. The defense put on a witness who testified, and the Sta te put on on e witness, the Officer in this case. You have to weig h the cre dibility of e ach ind ividual. Who has a motive to tell you the truth. The Officer in this 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 true. He w ould have to risk everything he has wo rked for. He would have to perjure himself on the stand. * * * * So basically you have to d eterm ine w ho has the cre dibility. Who s telling you the truth. Is the O fficer com ing here an d making up a story? W hat s his incentive to lie and frame Mr. Spain? The reality is that this Officer -- they attempted to sell this Officer drugs on the street. They didn t know he was a police officer. He was out there trying to enforce the law . But, you hav e to understand that Officer Williams has no motive to lie, because he has everything to risk in this case. Because he doesn t have to go out and make up drug arrests. Because he has p lenty of legitimate drug arrests. There s absolutely no incentiv e for him to come in h ere and tell a s tory about M r. Spain. So is Mr. Spain the victim of circumstance? He was just taken up in front of his house, trying to attend a Superbow l party? That s the defense s theory in the case. You will ultimately have to decide who you want t o believe . Id. at ___, ___ A. 2d at ___ [slip op. at 4-5]. As indicated, the petitioner objected. The trial court overruled the objection, observing parenthetica lly, Okay, well the jury understand[s] that this of course is closing argument, and that they will [consider the statements to be] lawyers argum ents. The majority agrees with the petitioner that the State s argument that Officer Williams had a motive to testify truthfully because to testify falsely would expose him to the penalties 3 of perjury and lead to adverse conse quenc es to his c areer as a police office r, 9 ___ Md. at ___, ___ A. 2d at __ _ [slip op. at 6], was improp er, because it vouche s, i.e., place[s] the prestige of the government behind a witness through personal assurances o f the witness s veracity . . . or suggest[s] that information n ot presented to the jury supports the w itness s testimony. Id. at ___, ___ A. 2d at ___ [slip op. at 6-7], quoting U.S. v. Daas, 198 F.3d 1167, 1178 (9th Cir. 1999) . Therefo re, it holds that the trial court erred in overruling the petitioner s objection and, thus, allowing the prosecutor improperly to vouch for Officer Williams credibil ity. Id. at ___, ___ A. 2d at ___ [slip op. at 10-11]. Nevertheless, concluding that the prosecutor s statements concerning the officer s motive to testify truthfully did not mislead or influence the jury unduly to the pr ejudice of [the petition er], 9 The petitioner argued that the State vouched for the credibility of its only witness, Officer Williams, in two ways: one, by arguing that Officer Williams had no motive to testify falsely, and two, that he, on the contrary, had a motive to testify truthfully by virtue of what he stood to lose, i.e., he would hav e to risk everything he has wo rked for. He would have to perjure himself on the stand. The majority rejects the former, observing that [t]he prosecutor s comments about Officer Williams s absence o f a motive to lie did not im plicate any information that was outside the evidence presented at trial, ___ Md. at ___, ___ A. 2d at ___ [s lip op. at 9 ], and, therefore, were not error. As we have seen, it concluded otherwise with respect to the comments referencing the officer s motive to testify truth fully. I am not at a ll convince d that the m ajority is correct as to th e absence of a motiv e to lie comments. The sup port that Reyes v. State, 700 So. 2d 458, 460-61 (Fla. Dist. Ct. App. 1997) and US. v. Walker, 155 F.3rd 180,187 (3rd Cir. 1998) provide in th at regard is ten uous, at bes t. Reyes, in fact, condemned the very conduct engaged in in this case and Walker s analysis was largely semantic, essentially turning on the meaning of the phrase, I submit to you. The real question is, whether the two kinds of comments may be parsed, as the majority has done, so that those that do not offend, when considered in context and with the instructions, so overshadow the off ending on es that it can be said, beyond a reasonab le doubt, that th e offending comments had no effect on the verdict. It is simply inconceivable that a ny objective reviewer c ould. Tha t is especially the case where the reviewer s function is not to weigh the evidence. 4 the majority also holds th at the err or was harmle ss. Id. at ___, ___ A. 2d at ___ [slip op. at 7], citing Degren v. State, 352 Md. 400 , 430-31, 722 A .2d 887, 902 (199 9). I agree that the State improperly vouched for Officer Williams credibility and that the trial court erred in permitting the State to d o so. I do not agree that the co urt s error was harmless. A ccordingly, I diss ent. To be sure, as this Court observed in Degren, supra, 352 Md. at 432, 722 A.2d at 903 (quoting Dorsey v. Sta te, 276 Md. 638, 653, 350 A.2d 665, 674 (1976)), the determinative factor [when the issue is whether an error is prejudicial or harmless] ... has been whether or not the erroneous ruling, in relation to the totality of the e vidence, p layed a significa nt role in influencin g the renditio n of the ve rdict, to the prejudice of the [de fendant]. With regard to prosecutorial closing arguments, in particular, we have said: [T]he mere fact that a remark made by the prosecutor to the jury was improper does not necessarily require a conviction to be set aside. Reversa l is only required where it appears tha t the remark s of the pro secutor actu ally misled the jury or were likely to have misled or influenced the jury to the prejud ice of th e accu sed. Evans v. State, 333 Md. 660, 679, 637 A.2d 117, 126 (1994), quoting Jones v. Sta te, 310 Md. 569, 58 0, 530 A .2d 743 , 748 (1 987), vacated and remanded on other grounds, 486 U.S. 1050, 108 S .Ct. 281 5, 100 L .Ed.2d 916, sentence vacated on remand on other grounds, 314 Md. 111, 549 A.2d 17 (1988). The test fo r assessing that determinative fa ctor, where closing argument is at issue, for determining whether a remark requires reversal, is also w ell settled. As enunciated in Dorsey, supra, 276 Md. at 659, 350 A.2d at 678, it is: 5 when an appellant, in a criminal case, establishes e rror, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed harmless and a reversa l is mand ated. Lest there be any doubt about it, we made clear in Johnson v. State, 325 Md. 511, 521, 601 A.2d 1093, 10 97-98 (19 92) that harm less error ana lysis, as applied in Dorsey, applied equally to arguments of counsel to the jury as part of the usual and ordinary procedures of a crimina l trial, and, indee d, that Wilhelm v. State, 272 Md. 404, 326 A.2d 707 (1974), the leading case addressing the limits of argument by counsel to the jury, and Dorsey are consistent in the philosophy prompting them, comparable in the rationale underlying them, and similar in the test set out in them. Both are concerned primarily with error and the prejudice arising therefrom. See Brown v. State, 339 Md. 385, 397, 663 A.2d 583, 589 (1995). In fact, concluding that Dorsey aimed at providing one standard to measure an error, 10 we have specifically rejected the State s argument urging a contrary position, that the Dorsey test is meant to apply to those errors affe cting an acc used s con stitutional rights and thos e oth er ev iden tiary, or procedural, errors which may have been committed during a trial and not arguments of counsel, which are not evidence and have no binding force or effect . Johnson, supra, 325 M d. at 521 , 601 A. 2d at 1097-98. There simply is no inco mpa tibili ty, then, between reviewing a trial court s ruling as to the propriety of remarks 10 In Dorsey v. Sta te, 276 Md. 638, 658, 350 A.2d 665, 677 (1976), we said: Regardless of the g eneric n ature of the erro r, we be lieve tha t upon a ppellate review , a uniform test should b e applied in all criminal cases to determine the effect the error may have had on the verd ict. 6 made during closing arguments for abuse of discretion and applying the Dorsey test when an abuse has been found. As Wilhelm makes clear, there is no error unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party. 272 Md. at 413, 326 A.2d at 714-15. Moreover, the credibility of witnesses is a matter to be resolved by the trier of fac t, in a jury trial, th e jury. Robinso n v. State, 354 Md. 287, 313-314, 730 A.2d 181, 195 (1999). Thus, in a ju ry trial, only the jury determines whether to believe any witnesses, and which witnesses to believ e. See Bohne rt v. State, 312 Md. 26 6, 278-79, 539 A .2d 657, 663 (198 8); Gore v. State, 309 Md. 203, 210, 214, 522 A.2d 1338, 13 41, 1343 (1987); Battle v. State , 287 Md. 675, 685, 414 A.2d 1266, 1271 (1980); Wilson v . State, 261 Md. 551, 566, 276 A.2d 214, 221 (197 1); Jacobs v. State, 238 Md. 6 48, 650 , 210 A .2d 722 , 723-2 4 (196 5). See also Dykes v. State, 319 M d. 206, 224 , 571 A.2d 1251, 12 60 (1990 ) (requiring th e court to instruct the jury that it is the sole judge of th e facts, the weight of the evidence, and the credibility of the witnesses ); Maryland R ule 4-325(d). 11 The majority does not appear to have applied the Dorsey test; although it cites Dorsey and its requirement that the appellate court be satisfied beyond a reasonable doubt that the error played no role in the verdic t, it does so only at the end of the opinion. ___ Md. at ___, 11 Maryland Rule 4-32 5 (d) perm its the trial court, in instructing the jury, to refer to or summarize the evidence in order to present clearly the issues to be decided, but [i]n that event, the court shall instruct the jury that it is the sole judge of the facts, the weight of the eviden ce, and the cred ibility of the witnes ses. 7 ___ App. 2d at ___ [slip op. at 16]. Rather it appears to have reverted to the Wilhelm standard, guided, ho wever, by the analysis in Degren. The latter case cited Dorsey, but not for the harmless error test. The Court referenced the Dorsey language identifying the determinative factor to be considered in deciding whether any error is harmless or prejudicial, 352 Md at 432, 722 A. 2d at 902, and not the Dorsey Court s pronouncement of the level of certainty required to declare an error, on ce found, to be harm less. The Court s focus, in short, as is the majority s in this case, was on the Wilhelm formulation of what is required to be shown to render arguments of counsel improper and, therefore, a basis for reversal. See Degren, 352 Md. at 432-33, 722 A. 2d at 902-03. In that regard, it emphasized the instructions given the jury that were ameliorative of any error or mistatement, whether recogn ized by th e trial cou rt as such , or not. Id. at 433- 34, 722 A. 2d a t 903-0 4. The test for prejudice that the Wilhelm Court identified as applicable was whether we can say, with fair assurance, after pondering all that happened without stripping the erroneous action from the who le, that the judg ment wa s not substan tially swayed by the error. 272 Md. at 416, 326 A.2d at 716, quoting Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir.1969) (Citing Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L. Ed. 1557, 1566-67 (1946 ). It identified, as well, factors it determined to be decisive on the issue: the closeness of the case , id., citing Cross v. United States, 353 F.2d 454, 456 (D.C . Cir. 1965); Jones v. United States, 338 F.2d 553, 55 4 n. 3 (D.C. Cir. 1964 ); the centrality o f the issu e affec ted by the error, id. citing King v. United States, 372 F.2d 383, 8 395 (D. C. Cir.1967); and the steps taken by the co urt to mitigate the eff ects of t he erro r. Id., citing Cross v. United States, supra., 413 F .2d at 10 79. In support of its conclusion that the error was harmless, the majority, pointing out that the prosecutor s reference to potential consequences to Officer Williams s career was an isolated event that did not pervade the entire trial, ___ Md. at ___, ___ A. 2d at ___ [slip op. at 13], a facto r that Wilhelm also recognized as important, 272 Md. at 425-26, 326 A. 2d at 721, focuses on, and finds solace from, the trial court s com ment, mad e contem poraneo usly with the petitio ner s ob jection, that the jury understood that it was closing argument and would consider the prosecutor s statements as such, and the pre-argument instructions given the jury. See ___ M d. at ___ , ___ A . 2d at ___ [slip op . at 13-14]. These, it claims, ameliorated the error. To be sure, it cursorily addresses the closeness and centrality factors, conceding, as to the former, that the evidence was not truly overwhelming, ___ Md. at ___, ___ A. 2d at __ _ [slip op. at 15],but relying on the relative lack of severity of the improper remarks, the lack of potentia l impact of th e erroneou s argume nt (greater ve racity of police officer due to adverse employment consequences if he lied) on the defense s theory that Officer Will iams had a fau lty me mory (not that he lied)and the instruction given by the judge , id. at ___, ___ A. 2d at ___ [slip op. at 15-16], concludes that the petitioner was not prejudiced. First, as indicated, it appears that the majority has ap plied the w rong stand ard: in addition to citing Dorsey seemingly on ly in passing, the c ases on w hich it seem s principally 9 to have re lied, eithe r are no t appos ite, see Degren, supra, 352 Md. 400, 722 A. 2d 887; Henry v. State, 324 Md 204, 232, 596 A. 2d 1024, 1038 (1991), or applied the wrong standard of revie w, United S tates v. Bo yd, 54 F. 3d 868, 872 (D. C. Cir. 1995) and United States v. Martinez, 981 F. 2d 867, 87 1 (6 th Cir. 1992). For the error to be deemed harmless, the Court, upon its own independent review of the record, must be able to declare a belief, beyond a reasonable doubt, that the error in no w ay influen ced the verdict. Dorsey, 276 Md. at 659, 350 A. 2d at 678. It simply is not suf ficient to be confiden t that a reasonable jury would be able to properly fulfill its role and discern argument from evidence without undue prejudice to the defe ndant; 12 ___ Md. at ___, ___ A. 2d at ___ [slip op. at 14], the Court has 12 The majority cites for this proposition Young v. State, 68 Md.App. 121, 510 A.2d 599 (1986) and Wilhelm v. State, 272 Md. 404, 425-26, 445, 326 A.2d 707, 721-22, 732 (1974). Young does not stand for that proposition. At the outset, it is important to note that the Young court did not find harmless error. For the benefit of the trial court on remand, however, the intermediate appellate cou rt considered the correctness o f jury instructions concerning the evaluation of the credibility of police officers. The defendant wanted the court to endorse the following instruction and, in fact, argued that the instruction was required to be given: A police officer's testimony should be considered by you just as any other evidence in this case, and in evaluating his credibility, you should use the same guidelines which you apply to the testimony of any other witness. In no event should you give any gre ater or lesser cr edence to the testimony of any witness merely be cause h e is a po lice off icer. Id. at 136, 510 A. 2d at 60 7. The C ourt of Special A ppeals did n ot agree. Inste ad, it endorsed a portion of the instruction the trial court ha d given: You are the sole judges of whether a witness should be believed , and in making this decision, you should apply your own common sense and everyday experiences in life. In determining whether a witness should be believed and what weight to g ive the testimo ny of that witn ess, you shou ld carefully judge all the testimony and evidence and circumstances under which each witness has testif ied. (contin ued...) 10 to be satisfied beyond a reasonable doubt that the jury did fulfill its role and discern argument from evidence without prejudicing the defendant. Nor is it sufficient merely to state that [w]e could find in the record no indicia, nor did Petitioner identify any, of the jury s inability or refusal to follow these explicit instructions given by the trial court. ___ Md. ___, ___ A.2d ___ [slip.op. at 15] Once error is established, the burden is on the State to show that it was ha rmless beyon d a reason able doubt. Denicolis v . State, 378 Md. 646, 658-59, 837 A.2d 944, 952 (2003). Harmless error cannot be established on an ambiguous record. Taylor v. State , 352 Md. 338 , 351, 722 A.2d 6 5, 71 (1998). In any even t, Brooks v . State, 85 Md. App. 355, 360-361, 584 A.2d 82, 85 (1991) is inapposite. That case involved the propriety of the denial of a motion for mistrial when curative instructions are given, [which] it is presume d ... the jury can an d will follow .... Id. 360, 584 A. 2d at 85, quoting Brooks v . State, 68 Md. App. 604, 613, 515 A.2d 225 (1986), cert. denied, 308 Md. 382, 519 A.2d 1283 (1987). Affirming the denial, the Court of Special Appeals explained: There is no doubt but that the co urt fully apprised the jury of its obligation not to use the co-c onspirators testimony to support a guilty verdict. It did so on more than one o ccasion an d, on each occasion, in a detailed fashion. There is, moreover, noth ing in the verd ict its elf w hich sugg ests t hat th e cou rt's instructions were not heeded. Indeed, appellant does not p oint to any con crete 12 (...continued) Id. at 136-37, 510 A.2d at 607. 11 evidence to that effect; he merely speculates, given the complexity of the task with which it was charged, that the jury could not possibly have discharged that task appropriately. That, of course, is totally insufficient. On the contrary, when one co nsiders that the ju ry is presu med to be able to, and in fact will, follow curative instructio ns, it bec omes m anifest that ther e was n o error. There is absolutely no resemblance between that case and this one. In support of its holding tha t the error in this c ase is harm less, the majo rity cites, in addition to Degren, supra, 352 Md. at 434-3 5, 722 A . 2d at 90 3-04, Henry v. State , 324 Md 204, 232, 596 A. 2d 1024, 1038 (1991); United S tates v. Bo yd, 54 F. 3d 868, 872 (D. C. Cir. 1995) and United States v. Martinez, 981 F. 2d 867, 871 (6 th Cir. 1992). None of those cases provides th e needed support. In Degren, the defendant argued that the prosecutor's comments that [t]he number one reason why you should not believe what Sharon Degren says is nobody, nobody in this country has more reason to lie than a defend ant in a criminal trial and this defendant has every reason to lie. She is a defendant were erroneously allowed b ecause, by ref erring to defendants in general a nd their mo tives to lie, rather th an his mo tives, they effec tively undermined the presump tion of inn ocence, w ith which e very defend ant is clothed until proven guilty. 352 M d. at 431, 72 2 A.2d a t 902. We rejected that a rgument, concluding, on the contrary, that the trial court had not abused its discretion in denying the defendant s motion for mistrial and for a curative instruction. We explained: The prosecutor's comment that criminal defenda nts have a m otive to lie did not bear dire ctly on petitioner's guilt or innocence. Rather, the comment was made in response to the defen se counsel s comments during closing argument that the jury should not believe the State's witnesses because they had various 12 motives to lie. The prosecutor went on, after she made her remark s at issue, to argue other motives petition er might ha ve to lie. This C ourt has he ld that, under certain circum stances, a pro secutor's argu ment durin g rebuttal and in response to comments made by the defense during its closin g are pr oper. See Blackw ell v. State, 278 Md. 466, 481 , 365 A .2d 545 , 553-5 4 (197 6), cert. denied, 431 U.S. 918, 97 S.Ct. 2183, 53 L.E d.2d 22 9 (197 7). But see Johnson v. State, 325 Md. 51 1, 517, 601 A.2d 1093, 1096 (19 92). The trial court evidently determined that the prosecutor's comments were not improper, at least to the extent that they did not subvert the presumption of innocence, the only ground for mistrial argued by petitioner's counsel. Given the broad discretion afforded trial courts in making such determinations, we do not believe it abu sed this d iscre tion in de nying petit ione r's motions for mistrial and for a cu rative in struction . Id. at 431-32, 722 A. 2d at 902. Later, to be sure, but only in dicta did the Court comment on the effect of the jury instructions given in the case on the presumption of innocence, concluding that the instructions so clearly defined the jury's role, the presumptions afforded the defendant, how to consider comments by the attorneys, and how to judge witness testimo ny, Id. at 435, 722 A. 2d at 90 4, as to result in th e prosecu tor s comm ents, even if inapprop riate, having n o effect. 13 Henry is to like effect. The challenged argument was: 13 The Court had earlier commented in a footnote that it harbored concern about the appropriateness of the prosecutor s remarks: In so holding, we, like the Court of Special Appeals, believe this comment may have been inapprop riate. Unde r the facts of this particu lar case, the issu e of motiv e to lie had been brought up first by the defense. We do not believe the State's Attorney's intent in stating criminal defendants have a motive to lie was nefarious. Nonetheless, it was an u nprofessio nal and inju dicious rem ark. We d o not cond one such comme nts and do not hold that in future cases and under different fact s, suc h rem arks always will be a ccepta ble. Degren v. State, 352 Md. 400 , 432 n.14, 722 A .2d 887, 902 n. 14 (1 999). 13 Ladies and ge ntleme n, I didn't make up a theory ou t of thin air and prese nt it about ballistics. [Defense Counsel], if you don't like my theory and you come up with a theory, then let's see how it flies. Let's put our theories before these good p eople a nd let the m dec ide. I did n't hear h is theory. I put a theory before you, ladies and gentlemen, based up on the evid ence in this case, and I am willing to let you examin e it and stand here and s tand by it. If you reje ct my theo ry, fine, so b e it, but I p ut it up h ere. I submit to you that it is based u pon the ev idence in this case. It is not something that was dreamed up. If they have a theory I'm more than willing to hear it. 324 Md. at 229, 596 A.2d at 1036-37. The challenge was that the argument created the impression that the defense had some obligation to prove a theory of th e case and , thus, its effect was to indicate that the defense carries a burden which the law does not impose. Id. at 232, 596 A. 2d at 1038. Upholding the trial court s overruling of the defe ndant s objection, the Court opined: We do not find that the pro secutor sugg ested that H enry had the b urden to prove any element of the charges against him. The court thoroughly instructed the jury on the State's burden of proof and told them that their verdicts sh ould be based on the evidence. When viewed in its entire contex t, the prosecution's rebuttal in the instant case does not warrant a finding of reversible error. The State's Attorney was responding directly to remarks made by defense counsel in closing argument and was askin g the jury to accept his theory of the case . See Denny v. S tate, 404 So.2d 824, 826 (Fla.App.1981). The judge properly instructed the jury on the applicable law, including the State's burden of proof. The pros ecut or's rebuttal remark s could not hav e misled or preju dicially inf luence d the jur y. Id. 14 Boyd is particularly inapposite. There, although the defendant objected to the Governme nt s closing argum ent, he d id not sta te the sp ecific g round . Therefore, concluding that nothing in the context of defense counsel s unexplained objection made obvious the ground therefo r, the court applied the plain error standard of review. Id. at 54 F.3d at 872. Certainl y, that standard does not apply here. Similarly, a different standard than the Dorsey standard, required in Maryland , whether the prosecutorial impropriety was so gross as probably to prejudice the defendant, was applied in Martinez. 981 F.2d at 871, quoting United States v. A shworth , 836 F.2d 260, 267 (6th Cir.1988). Applying that standard, noting that the prosecutor's comment was simply an isolated misstatement, the court stated its belief that: It is unlikely that it prejudiced [the defendant]. ... Any possible prejudice that [the defendant] might have suffered was ameliorated by the trial court s instruction to the jury that the lawyers statements ... and their arguments are not eviden ce. ... This instruction was suf ficient to neutralize the prosecutor s slight impropriety. ... Therefore, we conclude that the district court's ruling was not rev ersible e rror. Id. The factors identified by Wilhelm , the closeness of the case, the centrality of the issue affected by the error and the steps taken to mitigate its effect, all militate against a finding of harmless error. There w as only one witness wh o testified for the State and against the petitioner and it was through that witness that all of the evidentiary exhibits were introduced against the petitioner. The State s only witness did not go unchallenged; indeed, the thrust of the petitioner s defense was that the witness was not credible with respect to the petitioner s involvement in the crimes with which he was charged. The only issue in the 15 case, in short, was whethe r the jury should believe Officer Williams s testimony. That issue is also the issue affected by the State s improper argument; it was the purpose of the argument to buttress the credibility of the O fficer. An d, as the ma jority concedes, the court never acknowledg ed that the arg ument w as error; con sequently, the co urt did abso lutely nothin g to mitig ate the e ffect o f the err or. We have stated frequen tly that where credibi lity is an issue and , thus , the j ury's assessment of who is telling the truth is critical, an error affecting the jury s ability to assess a witness s c redibility is n ot harm less erro r. Martin v. S tate, 364 Md. 692, 703, 775 A.2d 385, 391 (2001) (denial of opportunity to establish the bias or pecuniary interest of the witness); Howa rd v. State, 324 Md. 505, 517, 597 A.2d 964, 970 (1991) ( In a case that largely turned on whom the jury was going to believe, the improperly admitted evidence of the defendant's prior conviction may have been the weight which caused the jurors to accept one version rather than the other ); State v. Cox, 298 Md. 173, 185, 468 A.2d 319, 324-25 (1983) (error not harmless where, although some corroborating physical evidence, the prosecution s case was based on the testimony of the victim, on the basis of which, if shown not to be credible, the jury might not have been able to fin d guilt beyond a reasonab le doubt). See Newm an v. State, 65 Md. App . 85, 98, 499 A. 2d 4 92 (1985) ( wh en the State s case depends virtually exclusively on the credibility of a witness, the bolstering of the witnes s s cred ibility by prior consiste nt statem ents can not be h armless error). This is so because the court reviewing the trial court error for prejudice plays a significantly different role and has a function distinct from that of the trier of fac t. 16 I addressed that distin ction, albeit in dissent, in Ware v. S tate, 360 Md. 650, 716-17, 759 A.2d 764,799 (2000 ) (Bell, C.J., dissenting): Once it has been determined that error was committed, reversal is required unless the error did n ot influenc e the verdic t; the error is harmless only if it did not play any role in the jury's verdict. The reviewing court must exclude that possib ility beyond a reaso nable d oubt. Moreove r, an appellate court reviewing a trial court verdict must apply the harmless error rule con sistently with its role; it should not take on the role of the trier of fact and substitute its judgmen t for that of the jury or the trial court whose verdict is under review. That would be to usurp the function of the trier of fact and that is no t allowe d. ... See, e.g., Daniels v . State, 24 Md.App. 1, 7, 329 A.2d 712, 716 (1974) ( We may not usurp the function of the jury by holding that the eyewitn esses sh ould be believe d over t he alibi e videnc e. ). See also Shelton v . State, 198 Md. 405, 412, 84 A.2d 76, 80 (1951) ( This Co urt will not inquire in to or meas ure the w eight of the evidence, and will not reverse the judgment if there is any proper evidence before the jury on which to sustain a co nviction. ); Alexander v. Tingle , 181 Md. 464, 467, 30 A.2d 737, 738 (1943) ( The Court had not the authority to direct the jury that the evidence established a certain fact even though the evidence was uncontradicted and high ly persuasive. The Court could not thus usurp the function of the jury to weigh the credibility of the evidence . ); Collins v. S tate, 14 Md.App . 674, 679, 288 A .2d 221, 224 (197 2) ( The weight of the evidence and the credibility of witnesses are matters within the realm of the jury. ); Wilkins v. State, 11 Md.App. 113, 127, 273 A.2d 236, 243 (1971) ( The weigh t of evid ence a nd the c redibility of the witn esses [a re] for th e jury. ). (Footn ote om itted). In a ddition , "No matter how strong a case for conviction the State may present, even when the defense presents no evidence, the court may not direct a verdict for the State. See M aryland Rule 4-324, w hich, while providing that a defendant may move for judgment of acquittal, Rule 4-324 (a), ... and the court may direct the entry of jud gment in h is or her favor if there is insufficient evidence, as a matter of law, R ule 4-324 (b), makes no provisio n for the m aking of a motion for judgment by the State. Compare Maryland Rule 2-519, ... the civil counterpa rt. [State v. Lyles], 308 Md. 129 , 135, 517 A.2d 7 61, 764 (1986). This is so because it is th e trie r of f act, w heth er the cou rt or a jury, that must 17 determine if the State has met its burden of proof. To make that determination, the trier of fact is required to find the facts and when, as is usually the case, there are credibility issues, to resolve them. That, in turn, involves weighing the eviden ce. Appellate courts do not find facts or weigh evidence, what evidence to believe, what weight to be given it, and what facts flow from that evidence are for the jury ... to determine. Dykes v. Sta te, 319 Md. 206, 224, 571 A.2d 12 51, 1260-[6]1 (19 90). See Gore v. S tate, 309 Md. 203, 214, 522 A.2d 1338, 13 41 (1987 ); Wilson v . State, 261 M d. 551, 566, 276 A.2d 214, 221 (1971); Jacobs v. S tate, 238 Md. 64 8, 650, 210 A.2d 722, 723-[2]4 (19 65). Even when an appellate court assesses the sufficiency of the evidence, it does not weigh it, see Clemso n v. Butler A viation-Frien dship, 266 Md. 666, 671, 296 A.2d 41 9, 422 (19 72); Gray v. Director, Patuxent Institution, 245 Md. 80, 84, 224 A.2d 879, 881 (1966), it only determines if any evidence exists, on the basis of which a rational trier of fa ct could find the eleme nts of the crime beyond a reaso nable d oubt. See Jackson v . Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 27 88, 61 L.E d.2d 560 , 573 (197 9); Bloodsw orth v. State, 307 Md. 164, 167, 512 A.2d 1056, 1057 (19 86). There is no reason that a harmless error analysis sh ould pe rmit it to d o more . Rubin v. State, 325 Md. 552, 596-97, 602 A.2d 677, 698-99 (199 2) (Bell, J., dissenting) (footn otes om itted). All of what the majority points to, and on which it relies, occurred prior to the error occurring. I confess to having difficulty understanding how instructions given with the expectation that there will be compliance and no error can mod erate an erro r subsequ ently made. More d ifficult to acce pt, or even u nderstand , is the majority s reliance on the court s comme nt, made when the petitioner objected, stating the obvious, that the State s argument vouching for the State witness s credibility was argument of counsel and that the jury wou ld take it as such. Argument of counsel may be prop er or it may be, as in this case, improper. There is, or sho uld be, a consequence when a party engage s in improp er argume nt; when it is a jury trial and the jury may well have been misled, that consequence is to order a new 18 trial. That the jury is told that argu ment is not evidence does not address the effect that the improper argument may have had on the jury. This is of particular significance where, as in the case of a jury, it is impossible to determine whether and, if so, how, particular argum ents aff ect, or m ay have a ffecte d, the jur y s verdic t. I have often questioned this Cou rt s application of the harmless e rror rule, believing both that it is over-used and mis-used. O n the prior occasions, there has been evidence of the defendant s guilt in addition to the testimony, admitted or excluded, being challenged. E.g., Rubin, 325 Md. at 578-580, 689-90 (evidence so overwhelming that excluding the offending evidence would have made no differe nce in verdict); Jensen v. State, 355 Md. 692, 716, 736 A.2d 307, 320 (1999)(indicating, among other references to the evidence, that four individuals testified that Jensen told them, or that they overheard him, either revealing the details or bragging about the k illing ); Ware, 360 Md. at 679, 759 A.2d at 779 (in addition to the holding that the form of the evidence reduced [the] prejudicial impact of an erroneou sly admitted statement of a State s witness, there was considerable other evidence supporting the defen dant s guilt). I had thought, until now, that, where the only issue was credibility and it had to be resolved by the jury believing one witness over another, harmless error w ould no t, and ind eed, co uld not apply. Applying the Dorsey test to the facts in this case, there simply is no logical basis on which any rational reviewing court could be persuaded beyond a reasonable doubt that the State s improper closing arg ument, vo uching, as it d oes, for the c redibility of Officer 19 Williams, the State s only witness, whose credibility was cha llenged, did n ot contribute to the guilt y verdict re turned agains t the petiti oner. It w as not h armles s error. I dissent. 20