Whaley v. State
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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1383 September Term, 2007 LAMONT WHALEY v. STATE OF MARYLAND Davis, Zarnoch, Matric ciani, JJ. Opinion by Zarnoch, J. Filed: July 2, 2009 On July 9, 2007, appellant Lamont Whaley was tried by a jury in the Circuit Court for Wicomico County for his alleged involvem ent in the attem pted arme d robbery of Higimio Mendez-Roque. At the time of the alleged incident, Whaley was 16 years and four months old. Prior to trial, due to Whaley s age, defense counsel sought to have Whaley s case removed from circuit court to juvenile court and to have Mendez-Roque s pretrial identification of Whaley and his co-defendant suppressed. Both motions were denied. At trial, Whaley was con victed of attempted arm ed robbery, attempted robbery, first degree assault, reckless endangerment, and conspiracy. He was found not guilty of carrying a dangerous concealed weapon and wearing and carrying a dan gerous w eapon w ith intent to injure. Appellan t presents the f ollowing issues in his ap peal: 1. Did the judge abuse her discretion during the reverse waiver hearing by considering non-statuto rily enumera ted factors a s a primary bas is for denying Lamont s transfer of jurisdiction, when the defense c ounsel, throu gh Juven ile Services Reverse Waiver Report, met its burden of showing that Lamont would be fit for rehabilitation in the juvenile system? 2. Must L amont s c onviction b e reversed because th e record cle arly reflects that the court allowed impermissible and inflammatory prosecutorial remarks during summation, wh ich amounted to rev ersible error and a denial of the constitutiona l right to a fair trial? 3. Must Lamont s conviction be reversed and a claim for ineffective assistance of counsel stand because of defense counsel s failure to object to the prosecutor s change of theory after the jury began deliberations? For the following reason s, we reverse the judgment of the circuit court and remand for proceedings consistent with this opinion. FACTS AND LEGAL PROCEEDINGS On January 12, 2007, shortly after 7:10 p.m., Salisbury police responded to a call reporting an attempted armed robbery at 609 Railroad Aven ue. According to the victim, Mr. Mendez-Roque, two black males approached him outside his residence at 609 Railroad Avenue. They asked him if he h ad any mon ey and proce eded to search his pockets. After discovering nothing in h is pockets, on e of the pa ir attempted to grab Men dez-Roque s knapsack from his shoulder. At the same time, the other pulled out a BB gun and shot Mendez-Roque twice in the face. Whether the first would-be robber also had a BB gun and fired would be a matter of some dispute. Shortly after the attempted robbery, Alex Venandez, a friend of Mendez-Roque, called the police. Ve nandez d id not witne ss the attemp ted robbery, bu t commu nicated with the police, since Mendez-Roque spo ke little or no E nglish. M endez-R oque w as unable to provide a clear description of the wo uld-be robber s. He did not see their faces because they had it [hoods] closed, the jacket c losed up. M endez-R oque did n ot specify any of their features, such as height, weight, or facial appearance. However, through Venandez, MendezRoque did describe the a ssailants as two black m ales wi th black hoods and gra y shirts. According to Salisbury Police Officer Jason Harrington, Mend ez-Roqu e told him th at only one of the two males had a BB gun. 1 Gustavo Gome z, who live d in a hous e adjacent to 1 Officer Harringto n testified ab out the single BB gu n at both the May 2, 2007 suppressio n hearing a nd the July 9, 20 07 trial. 2 Mendez-Roque and who had scared away the attem pted robb ers when he came outside of h is home , told the o fficer th at both m en had BB g uns. After receiving the description, Harrington left the scene to assist Officer Underwood of the Salisbury Police Department, who had detained a group of five teenagers who matched the limited description given by Mendez-Roque. At 210 Records Street, a second group of three teenagers was detained by Officer Jeff Hughes. Appellant Lamont Whaley was one of the teenagers stopped by Hughes. Ac cording to Hug hes, Whaley and ano ther teenager, Christopher Maine, were wearing gray jackets and dark colored hoods. Whaley was the taller of the two. The third person detained was wearing an orange colored jac ket. At trial, Hughes stated that W haley did not h ave a hoo d on wh en he w as stopped , and that neither Whaley nor Maine had a h ood on w ith fur aroun d it.2 Hughes performed a pat down and found on Maine what appeared to be CO-2 cartridges in his pocket. Whaley, Maine, and the third youth were detained so that Mendez-Roque could identify them.3 Mendez-Roque and Venan dez were transported in Office r Dimare s patrol car to the show-up. Dimare relied on Venandez to communicate between him and Mendez-Roque. At trial, Mendez-Roque testified through an interpreter that when he arrived at 210 Records Street, there were other young men, and there were police officers and they didn t take me in right next to them or in front of them but they pointed them to me. Mendez-Roque stated 2 At trial, Mend ez-Roqu e testified that b oth assailants had fur around the hoods of their sweats hirts or ja ckets. 3 The third teenager was later released. 3 at trial that he iden tified Wh aley and M aine based on the clothing they were wearing. At trial, Dimare said that M endez-Roqu e pointed in the area w here the officers had detained Whaley and Maine, but that he did not know what Venandez said to Mende z-Roque bef ore he poin ted in W haley s di rection. At trial, Mendez-Roque testified that during the attempted robbery, his view of the two men was limited because during the entire incident, he was looking straight ahead and focusing on getting to the f ront door of h is res iden ce. S hortly bef ore the at temp ted robb ery, Mendez-Roque had stopped by a laundromat. There, he saw the two would-be assailants, without their ho ods. For this reason, he was able to identify the two suspects, even though their identities were obscured by their furry hoods at the time of the attack. Mendez-Roque left the laudromat and went to his former residence on Cherry Street. There, he drank a beer and gathered his belongings. He did not see the pair from the laundromat again until he arrived at Railroad Avenue. Mendez-R oque also testified that the two males did not follow him and that, prior to the laundromat, he had never seen either of them. After the show-up, Whaley and Maine were charged.4 Whaley filed a Petition For Waiver of Jurisdiction to the Juvenile C ourt and Request For a Study Concerning Child. The State filed an opposition to the requ est for a reverse waive r, asserting among other things, 4 A Statement of Probable Cause was prepared at the same time as the Statement of Charges and alleged that both suspects were armed and began shooting at the victim. Mendez-Roque was shot numerous times in the head, face, and hand area. [He] was shot one time in forehead between his eyes, four times on the left side of his head, and two times on his rig ht hand by BB p rojectiles ... 4 that the [d]efendant is alleged to have pulled a BB gun on the victim in an attempted armed robbery and then shot the victim in the head several times, and that the court had to presume the guilt of Whaley for purposes of the reverse waiver proceeding.5 On May 1, 2007, a reverse waiver and motions hearing was held for both defendants. Darlene White, a Case Management Specialist with the Department of Juvenile Services (DJS), presented a Wa iver Report to the court on Whaley. In it, she recommended that the Court consider waiver of jurisdiction back to the juvenile system since Lamont [Whaley] has not been afforded various services that are available to youth tha t are processed through the Court system. 6 White was quizzed by the court on the ability of DJS to place Whaley in a secure facility if he were adjudicated by the juvenile court of an attempted robbery or first degree ass ault: 5 The request for a study was granted. 6 At the May 1 hearing, White described the report in the following fashion: Basically I looked in the aspects that we re concerned with when we do a reverse waiver and that s just the five aspects of the age, mental/physical condition, amenability to treatment, nature of the off ense an d publi c safety ... She also testified th at, despite app ellant s prior c ontacts w ith the juven ile system and school altercations, Lamont has never been adjudicated, therefore, he has not had the opportunity fo r any k ind o f pro batio n or a ny kind of placement with our department[,] so we feel that, after meeting with the resourc e departm ent, that he should have a n opportu nity to do the services that are available to youth who have been adjudicated through the juvenile system. 5 THE COURT: ... Assum e, for the sake of a rgumen t, that these facts were establishe d, whethe r it was determined to be a rob bery or an assault, I mean if these are the facts that support the underlying finding, there is no plan in place at this point in tim e for you to say this would be, if these facts were adjudicated our plan would be X and therefore we could address the issue of public safety. That s not something you re prepared to testify to today, is that corre ct? WHITE: Not at this mom ent since I do n t know what the adjudicated offense would be at this point. ***** PROSECUTOR: Assuming that he s adjudicated delinquent of an attempted arm ed robbery, what options are there fo r him in Juv enile Services? WHITE: There are secure confinement facilities that would be available to him. Sometimes they are difficult to get into but they are available. THE COURT: Of course, and if you can t get into them - PROSECUTOR: Then what do you do with them? THE COURT: Good question. All right, anything else? The DJS report also stated: Few offenses pose m ore serious risk to the safety of our public than the use of a weapo n in the commission of crime. While the nature of the offense is serious[,] it is noted that the weapon 6 used was a B B gun. Y oung pe ople who becom e involved in these types of offe nses can b e held acco untable in ju venile jurisdiction. Public safety can be ensured in juvenile jurisdiction via various levels of co mmitme nt, including placement in secure confinement facilities. Upon cross-examination, the following colloquy occurred between the prosecution and White: Q. Did you discuss with [Whaley] the crime itself? A. No, I did not. I discussed the five factors that are included in the reverse w aiver report. Q. And he is obviously, for purposes of this process, as you know h e is presum ed to be gu ilty, correct? A. I m not sure about that, I as sume that s right. Also testifying at the hearing was Matthew Phillips of the Department of Juvenile Services. When asked by de fense cou nsel whe ther there w as an availa ble facility if Whaley were adjudicated delinquen t for armed robbery, he na med three out-of-state facilities. Phillips testified that the juvenile might not be placed in a residential facility, but I can say secure confinement is our most structured and as it relates to public safety that secure confinement would address public safety. The appearance concluded with the following exchange between the court and the witness: THE COURT: Sir, in your experience has the Department of Juvenile Services approved out-of-state p lacements when they are requested by the Departm ent? 7 THE WITNESS: Yes, ma am. THE COURT: Really. That s not what I m told. All right, very good, you may step down. THE WITNESS: It s a lengthy proce ss. But if there are no facilities in the State of Maryland to place them, we have kids who routinely go to the Pines in Virginia, and that s an out-ofstate placem ent. THE COURT: So your departme nt doesn t tell you they won t fund that o ut-of-state placement if that s what s been court ordered or recommended by the Depa rtment? THE WITNESS: No, ma am. After the hearing, the court denied the reverse waiver reques t. Addressing the na ture of the alleged offense, the circuit judge said: So for today s proceeding, I believe that Mr. State s Attorney is right, I am to assume that the charges as brought against the individual are true and that the allegations filed form the basis thereof a re true, that s my role today. The court observed: I m looking at the condu ct in question, as I said before I left, this does not a ppear to me to be an act of immaturity, it s not that one or the other of these individuals got caught up with the group and were just carried along, the facts that I have to accept is they a pparently armed themselves in anticipation with BB guns, by mutual agreement approached a victim and without any kind of a - it was n t like a mu tual affray, this victim was just attending to [his] own business and when they attempted to rob 8 the victim[,] the robbery failed and at that p oint multiple s hots were fired striking the victim in the face and h ead ... It doesn t get much worse tha n that. Pointing to Whale y s disruptive behavior in school and prior contacts with the juvenile justice system that did not lead to adjudications, the circuit judge said: I cannot find that there is evidence to suggest to me that treatment in the juvenile facility for this individual would be particularly more effective than the treatments available through the normal ad ult criminal justice system or that the programs available in DJS would outweigh my concerns regarding p ublic safe ty. Secure confinement placements are very limited resources in the Department of Juvenile Services. The nature of these charges w ould indica te to me that we would certainly be looking, if he were a juvenile, at a secure confinement placement and there are very lengthy delays in that process. Whereas, he is going to be 18 years old in a year and a half. For the offense in question it appears that the criminal justice system would be able to supervise him for up to five years, if that was nece ssary. He would be well within his adulthood during the mid to later portion of that, and I find the C ourt can addre ss his needs through deten tion, sup ervision in the com mun ity, commu nity based interventions or confinement as well as the juvenile justice system could be this point in his life. So I m going to find that the defense h as not met its b urden in his case to demonstrate that transfer of jurisdiction is in the interest of the child or society and I m going to deny the reverse waiver. In addition, defense co unsel mo ved to sup press the sh ow-up id entification by MendezRoque. This motion was also denied.7 7 At the same hearing, M aine s request fo r reverse w aiver was denied, alon g with his (contin ued...) 9 A jury trial was held in the Circuit Court for Wicomico County on July 9, 2007. At trial, when Mendez-Roque was asked to identify Whaley in the courtroom, Mendez-Roque, at fir st, co uld n ot identif y Whaley: Prosecutor: Do you see either of the two boys in the courtroom this morning that grabbed you and went through your pockets? Mend ez-Roqu e: Is he here or around here? When the prosecutor repeated the question, Mendez-Roque identified Whaley as one of the two as sailants. At trial, the State also introduced a BB gun allegedly connected to the attempted robb ery. The BB gun was found the day after the attempted robbe ry, on Saturday, January 13, 2007, at 409 Elizabeth Street in Salisbury on the property of Matthew Workman. Workman s son came upon the BB gun under a bush on the side of the house. Workman took it to the Salisbury Police Department. Mendez-Roque was shown the BB g un and sa id that he had never seen it before. Mendez-Roque said that the gun was the same size as the one used in the attempted robbery, but it looked different. When questioned, by the prosecutor, Mendez-R oque stated that there were two weapons. Upon cross-examination, the following exchange occurred: 7 (...continued) motion to suppress the CO-2 cartridges found on him by Officer Hughes. 10 Defense counsel: And only one of them shot the BB gun at you, correct? Mend ez-Roqu e: Yes, the one that was on the sidewalk. The witness also said that the one on the sidewalk was the shorter of the two and that p erso n wa s not Whaley. 8 8 The confusion over whether there were two BB gunmen was apparent from the follo win g exchan ges that o ccur red d uring M endez-R oque s te stimony: Prosecutor: Mendez-Roque: Prosecutor: Mendez-Roque: Prosecutor: Mendez-Roque: What w as he aimin g at when he shot? It was the younger one, not this one. The second b oy - Yes. Is the one that shot at you? That s when I resisted beca use I didn t want to give him my knap sack. And then the other one came and they shot at me. ******* Prosecutor: Mendez-Roque: Prosecutor: Mendez-Roque: Prosecutor: Mendez-Roque: Prosecutor: Mendez-Roque: Prosecutor: Mendez-Roque: Prosecutor: Mendez-Roque: How many of these guns did you see? It was two. Did each of them have a gun? Yes, yes. Did both of them shoot at you? First one, and then the other. Were both gu ns similar? Yes. They looked alike. Which o ne shot at your first? The youngest one. The one that looked younger. Oka y. And is this the younger one or is the other one the younger one? The other one. (contin ued...) 11 During closing arguments, the prosecutor remarked that we hav e in our com munity those who w ill take advan tage of som e who c annot or are n t familiar w ith the system, who aren t from here, who are easy pickings, because you have a language barrier to start with. And we fin d sever al of the Hispa nic com munity m ove fro m plac e to plac e. Defense counsel objected that he [the prosecuto r] is making reference to others in the commu nity and his own personal opinion about the Hispa nic comm unity and the [sic] whether or not they re a target. T he judg e overr uled the objectio n. Shortly after they retired to deliberate, the jurors sent a note to the judg e, asking, If two peo ple are invo lved, one is holding a gun, can both be charged with armed robbery? 9 8 (...continued) ******* Defens e Coun sel: Prosecutor: Mendez-Roque: Defense Counse l: Mendez-Roque: Defens e Coun sel: The Co urt: 9 Initia lly, you told the police officer that only one person and, in fact, you said that today, only one person had a gun, is that right? That s not what he testified to. No, I said that both. When you talked to the police officer with the interpreter, you told him that only one person ha d a gun, isn t that right? I told them that the shortest one had a gun, but the officer made me a question. He asked me if I thought it was real that if he had the long bullets. Your Honor, I m going to object to the response. It s beyond - All right. During opening statements, the prosecutor had said, Both actually produced what (contin ued...) 12 Defense counsel as ked the co urt, Well, I don t have the aiding and abetting instruction, but is there any way we can look at it and see if we should send that back instead? Both the prosecutor and defense counsel approved the aiding and abetting pattern jury instruction, and the ju dge read it to th e jury. Wh aley w as then co nvic ted o f atte mpted ar med robb ery, attempted robber y, first deg ree assa ult, reckl ess end angerm ent, and conspiracy. He was found not guilty of carrying a dangerous concealed weapon and wearin g and carrying a dangerous weapon with intent to injure. He was sentenced to 10 years imprisonment for attempted armed robbery and a concurrent 10 year sentence for conspiracy. The other counts were merged with the attempted armed robbery charge. Additional facts will be discussed below. DISCUSSION I. The Trial Court s Reverse Waiver Hearing Whaley argues that the trial court abused its discretion when it considered non- statutorily enumerated factors as the basis for denying Whaley s motion f or reverse waiver. Specific ally, appellant claims that the circuit court, in gauging the nature of his alleged offense, improperly assumed h is guilt and, in w eighing his a menability to trea tment, impermiss ibly speculated about the juvenile s likely sentence and the availability of 9 (...continued) Mr. Mendez [sic] believed at the time were real handguns. The State had tried its case on the theory that Whaley was a first degree ass ailant, meaning that Whaley had carried a gun during the attem pted ro bbery. 13 placement options in the juvenile system. After a juvenile delinquency petition has been filed, the prosecution has the right to request waiver of the juvenile court s jurisdiction so that the juven ile may be tried a s an adult in crimina l court. Md. Code (1973, 2007 Repl. Vol.), Courts & Judicial Proceed ings Article ( Cts. & Jud. Proc. ) §3-8A-0610 ; In re Johnson, 17 M d. App . 705, 70 8 (197 3). When a case is brought in criminal court and an accused child is between the ages of fourteen and eighteen, the juvenile defendant may request a transfer back to the juvenile system. Md. Code (2001, 2007 Repl. Vol.), §4-202 (b) of the Criminal Procedure Article ( Crim. Proc. ) During a so-called reverse waiver hearing, the court must consider the following factors: (1) the age of the child; (2) the mental and physical condition of the child; (3) the amenability of the child to treatment in an institution, facility, or program available to delinquent children; 10 Section 3-8A-06 (e) of Cts. & Jud. Pro c. outlines the factors a juvenile co urt is to consider individually and in relation to each other in dete rmining w hether to w aive juven ile jurisdiction. The factors are: (1) Age of the child; (2) Mental and physical condition of the child; (3) The child s amenability to treatment in any institution, facility, or program available to delinquents; (4) The nature of the offense and the child s alleged participation in it; and (5) T he public saf ety. The purpose of the juvenile waiver hearing is not to determine guilt or innocence, but rather to determine whether or not the juv enile is fit for juv enile rehab ilitative services. §3-8A06(d)(1); In re Franklin P., 366 Md. 306, 329-330 (2001). Although the burden of justifying waiver is on the State, §3-8A-06(d)(2) provides that, [f]or purposes of determining whether to waive its jurisdiction under this section, the court shall assume that the child committed the delin quent a ct allege d. 14 (4) the nature of the alleged crime; and (5) th e public s afet y. Crim. Proc. § 4-202 (d). The burden is o n the juven ile to demo nstrate that under these five factors , transfer to the juvenile system is in the best interest of the juvenile or society. Crim. Proc. §4 -202(b)(3); and Kenned y v. State, 21 Md. App. 234, 240 (1974 ). The weighing of the five factors by the circuit court is reviewed by an appellate court for abuse of discretion. King v . State, 36 Md. App. 124, 128 (1977). H oweve r, the question of whe ther an assu mption of guilt of the charged juvenile is permitted under Crim. Proc. §4-202 is purely a legal issue, reviewable de novo. Appellant points to the o bvious fa ct that an exp ress directive to a juvenile co urt to assume guilt in a waiver case is found in Cts. & Jud. Proc., §3-8A-06(d), but no such provision clearly appears in Crim. Proc., §4-202 to govern when a criminal court considers a reverse waiver. He seems to argue that this creates a negative implication that the expression of assum ed guilt in one statute mandates its intentional exclusion from the other. The State conte nds that the c ircuit court, in fact, did not presume guilt, but that in assessing the nature of the alleged c rime und er Crim. Pro c. §4-202( d)(4), it could not look behind the charges to determine if W haley was properly before the circuit court in the first p lace. We believe the relationship of these two statutes does shed meaning on whether an assumption of guilt or, even a lesser prohibition on looking beyond the charges, is permissible under §4-2 02(d). 15 It is often said that the relevant factors for judicial consideration of waiver and reverse waiver are the same, Smith v . State, 399 Md. 565, 582 (2007); and King v . State, su pra, 36 Md. App. a t 127, or are sim ilar , Kenn edy v. S tate, supra, 21 M d. App . at 240. But see Miles v. State, 88 M d. App. 3 60, 391 (1991)(It is incorrect to conclude that if the legal principles governing reverse waivers are the same as those governing waiver, that the unconstitutio nality of one scheme affects the other.). However, upon closer examination, we find that the two statutes differ in significant respects, even as their histories have intersected. The same law that introduced the five-factor waiver analysis created the reverse waiver, with a more generalized standard: [ T]he intere sts of the ch ild and society. Chapter 432, Laws of 1969. However, in 1975, both statutory schem es were a mended in separate pieces of legislation. The five-factor waiver analysis was re-enacted along with new language providing that, [f]or purposes of determining whether to waive its jurisdiction, the court shall assume that the child committed the delinquent act alleged. Chapter 554, Laws of 1975.11 At the same time, the amorphous standard for reverse waiver was particu larized with a five-factor analysis that mirrored in many, but not all, respects the waiver standard. Chapter 830, Laws of 1975. The word alleged was attached to the nature of the crime 11 Chapter 554 did alter the nature of the offense factor to add and the child s alleged participation in it. Two years later, the General Assembly amended the waiver statute to require the five factors to be determined individually and in relation to each other on the record. Chapter 490, Laws of 1977. 16 and, most importantly, there was no mentio n of an as sumption of guilt. 12 Neverth eless, it is possible to argue that the 1975 legislation merely incorporated a guilty assumption in waiver situations from e arlier cas elaw, see Matter of Murp hy, 15 Md. App. 434, 435-36 (1972), and that the Legislature, by adopting the five-factor waiver analysis for reverse waiver cases, intended the sam e assum ption to apply. Howe ver, this is not the most likely explanation for the Legislature s actions. Chapter 554 (HB 384) and Chapter 830 (HB 1654) were enacted during the same session o f the Gen eral A ssem bly, passing in each cham ber within days of each o ther. The bills were considered by the same committees in the House and Senate.13 Each relate d to the same general subject and could easily have been inclu ded in a single bill . Mo st importantly, Chapter 830 was replica ting, in large part, com ponents o f the waiv er formu la addresse d in Chapter 554. Under these circumstances, the failure to include an assumed guilt provision in Chapter 830 could not be seen as anything but an intentional decision of the General Ass emb ly. The Court of Appeals in In re: Sa muel M ., 293 Md. 83, 96 (1982), recognized that the assumption of guilt provision was different from the other statutory criteria, such as the nature o f the offe nse. The o pinion in that case also observed that the Legislature had a range of options it could have selected to deal with the waive r of juvenile court jurisdiction, 12 Chapter 830 also changed the generalized standard governing reverse waiver determinations by eliminating the and betwe en ch ild and society and ad ding an or. 13 For HB 4 83, see 1975 H . Journ. 3 86 and 1975 S . Journ. 3178. For HB 1654, see 1975 H. Journ. 1600 and 1975 S. Journ. 3622. 17 other than the use of a presu mption . Id. at 89-92. This suggests that the selection of a presumption by the Legislature - - or its omission - - was not a casual decision. There are valid reasons for including an assumption of guilt in one statutory scheme, but not the other. A presumption of guilt in a waiver setting is mitigated by the fact that the burden of justifying the transfer of jurisdiction still remains on the State, that th e ultimate issue is the child s fitness for rehabilitation, and that, after waiver, a differe nt court considers actual guilt or in nocen ce. Such a presumption in the criminal court, where the burden is on the juvenile, cou ld create its ow n set of pro blems. It cou ld force a d efendan t to preview his defense in an attempt to obtain the reverse waiver. In addition, the same judge hearing the reverse waiver and assuming guilt (albeit for a limited purpose) may be the one who hears the criminal case.14 Finally, an assumption of guilt for consideration of a reverse waiver could skew the analysis of the five statutory factors, because the nature of the alleged offense factor will almost in variably be fo und by the co urt and be lin ked to the public safe ty factor. It is no surprise that one assum ed guilty of a se rious offe nse will freq uently be deem ed to be a th reat to public safety and no t amenab le to treatmen t. This seems to run contrary to the autho rization to transfer jurisdiction to the juvenile court (Crim. Proc. §4202(b)(3)) when it is in the interest of the child. Cf. Ma tter of W ooten, 13 Md. App. 521, 528 (1971)( Howev er relevant the nature of the delinquent act and the circumstances surrounding its commission may be in making a proper disposition [in a waiver case], those 14 Here, the motions judge was not the trial judge. 18 factors cannot be applied w ithout regard to, or who lly apart from, the child s best in terests and those of the pub lic viewed in light of the purposes underlying the juvenile law. ), and In re. Sam uel M ., supra, 293 Md. at 96 ( Our statute focuses on the actor, the juvenile, not on the purported de linquent act. ). We believe the reco rd refle cts just su ch a dis position . The State contends that the court did not assume Whaley s guilt, but the prosecution argued for the presumption, the motions judge agre ed with the contention and then indicated at several points that she was required to assume that appellant was guilty of a charge that characterized him as armed and shooting at the vic tim. In hind sight, on the basis of a full evidentiary record at trial and a jury s assessme nt, we now know th at this presumption may have been overstated, if not contradicted. On the other hand , we cann ot require a m otions judg e to be clairvo yant. It is not error to decide a reverse waiver question on the basis of a skeletal, rather than a full record. But cf. M atter of W aters, 13 Md. App. 95, 104 (1971)( This is not to say that evidence concerning the alleged act is not to be received at the w aiver hearing. ). 15 Here, however, there were some early indications that Whaley may not have been the principal perpetrator. 16 The CO-2 cartridges were found on Maine, not Whaley, and were the subject 15 Although Waters is a waiver case, we believe its view s on the ab ility of a court to hear evidence about the circumstances of the offense are equally applicable to reverse waiver situations. Thus, the State is incorrect in arguing that the court cannot look beyond the charges. 16 Police reports are sometimes used to gauge the nature of the offense in a waiver setting. See In r e: Sam uel M ., supra, 293 M d. at 85. There is no police repo rt in the record (contin ued...) 19 of a suppression hearing conducted immediately after the reverse waiver hearing. At the suppression hearing on the show -up, Officer H arrington testified that only one of the two males had a BB gun. 17 Only one BB gun was recovered and that was on the day after the attempted robbery. We need not s crutinize eac h fact with respect to the extent of Wh aley s involvement in the charged offenses. The circuit court believed it was required to assume that Whaley was guilty of those offenses. This was not authorized by §4-202 of Crim. Proc. and the assump tion of guilt was a legal error. Appellant also contends that the motions judge impermissibly speculated about Whaley s likely sentence and the availability of placement options in the juvenile system, arguing that these are non-statutory factors. Be cause this case must be remanded for another 16 (...continued) of this case . Thus, w e do not know whether the motions judge considered it or based her assessment of this factor exclusively on the Statement of Charges, which eventually proved to be on ly partially acc urate. See n. 4, supra. 17 At the May 2, 2007 hearing, the following colloquy occurred with respect to Officer Har rington s test imony: The Court: Defense Counse l: The Co urt: Well, my understanding was he sa id it was a BB like handgun or a handgun that - - he said that the victim reported that he was approached by juvenile black males with a handgun, he was sh ot several tim es with it, gray shirt - Your Hono r, I wrote down th at he said one person had a gun. I have one handgun is what he said, one handgun, yes. And that he was wearing gray with black hoods, gray jackets or grayish type shirts with black hoods. 20 reverse waiver determination, this is an issue that we are not required to address. How ever, for the guidan ce of the circ uit court on re mand, w e point out th at although the court is not obliged to follow a DJS recom mend ation, In re. M urphy , 15 Md. App. 434, 442 (1972), we have noted the im portance o f DJS rep orts in determ ining the am enability of the child to treatment. Brow n v. State , 169 Md. App. 442, 451 (2006). Without a favorable report from DJS, a reverse waive r reque st faces almost c ertain de nial. Id. In this case, DJS officials, in their report and through testimony, indicated that Whaley was amenable to treatment and could be placed in a secure facility, possibly out-of-state. This was countered by the motions judge s statement that she was told DJS would not approve or fund such placement, that there would be a very lengthy delay in such a placemen t, and that treatment available through the normal adult criminal system would be as effective as a DJS placement - - facts not immediately verifiable at the hearing.18 The court also clearly viewed Whaley s prior contacts with the juvenile system and disruptive 18 In In re. D emitriu s J., 321 Md. 46 8 (1991), the Cou rt of Appeals said that a juvenile court could not direct that a child be sent to a specific fac ility at State cost. The Court also noted: We take into account that it is DJS, no t the court, which is charged with adm inistration of th e State juvenile, diagnostic, training, detention, an d rehabilitation institutions. DJS could not properly administer th ese institutions if it could not control the monies to be spent on them, nor could it adequately fulfill the other obliga tions assigne d to it. Id. at 475. 21 behavior at school as indicative of treatment failures, even though appellant was never adjudicated or treated by DJS. In contrast, prior appellate cases on the a menability to treatment in waiver and reverse waiver cases have tended to find this factor trumped when the juvenile has failed after more formal adjudication and interventions than occurred here. See e.g ., In re: Samuel M., sup ra, 293 Md. at 86 (Prior incarceration at Maryland Training School); King v. State, su pra, 36 Md. A pp. at 129 (Prior probation); In re. Murphy, supra, 15 M d. App . at 441 ( Prior pr obation ). Because this case is being remanded for a new reverse waiver proceeding, a new DJS study will likely be ordered. The new study could address these issues and may alleviate the concerns noted by the motions judge.19 As this Court noted in Kenn edy v. S tate, sup ra, 21 Md. App. at 241, if on remand the facts called for a waiver to the juvenile court, then the criminal trial would be a nullity. On the othe r hand, Kennedy said that if the court on remand determines that waiver was not appropriate, then the judge ment of c onviction sh all stand. 19 The reverse waiver p roceeding, pa rticularly conside ration of the age factor , could be complicated by the fact that Whaley is now 18. However, this fact would not prevent the court from m aking a decisio n on the reverse waive r. See e.g ., Kenn edy v. S tate, 121 Md. App. 234 (1974). If the reverse waiver is granted, the juvenile court could still exercise jurisdiction over appellant, even though he has now reached the age of 18. A juvenile court may still retain jurisdiction over a person who has committed a criminal offense before the age of 18. See §3-8A-07(a) Cts. & Jud. Proc. Article. Additionally, [i]f a person is alleged to be delinquent, the age of the person at the time the alleged delinquent act was committed controls the determination of jurisdiction under this subtitle. Cts. & Jud. Proc. § 3-8A05(a). Jurisdiction for a person for whom the court obtains jurisdiction continues until that person reaches 21 years of age. Cts & Jud. Proc. § 3-8A-07 (a). Since W haley was 16 years and four months at the time of the alleged delinquent act and Whaley is still under the age of 21, h e wou ld still be w ithin the jurisdicti on of th e juven ile court . 22 Id. In Kenn edy, unlike this case, no reverse waiver hearing w as held. Th us, it is not clear whether this is the procedure to be applied here. Nevertheless, because after remand appellant s conviction may still be in play, we will address the question of whether the trial court committed reve rsible error. II. Prosecutor s remarks made during closing argument Appellant argues that his conviction should be reversed because the trial court allowed impermiss ible and inflammatory prosecutorial remarks to be made du ring closing argumen t. During the trial, in front of the jury, the prosecutor made the following remarks during his closing sta tement: Some of you ma y think, gee whiz, this is a young fellow, this is a pretty serious offense. He is a you ng fellow . And it is a ser ious offense . You know, unfortunate ly, we have in our community those who will take advantage of some who cannot or aren t familiar with the system, who aren t from here, who are easy pickings, because you have a language barrier to start with. And we find several of the Hispanic community move from place to place. (Empha sis added.). Reviewing the record and the remarks made, we agree that the remarks were u nfairly pre judicial a nd requ ire reve rsal. The State contends that Whaley s present attack on the closing argument has not been preserved for appellate review. Appellant s counsel at trial protested the prosecutor s remarks, stating, He is making reference to others in the community and his own personal opinion about th e Hisp anic co mmu nity and th e whe ther [sic ] or not th ey re a targ et. And I don t think that that is a ppropriate...clo sing in the S tate. The S tate contend s that Whale y now seeks to challen ge thes e rema rks, as a p rohibite d gold en rule argum ent, i.e., one in 23 which a litigant asks members of the jury to place themselves in the shoes of the victim, or in which an attorney appeals to the jury s own interests. Lee v. S tate, 405 Md. 148, 171 (2008). In our view, appellant has sufficiently preserved his challenge of prejudice from the remarks, ev en if they do n ot amoun t to a golde n rule argu ment. In general, d uring closin g argum ent, 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, generally, ... the prosecuting attorney is as free to comment legitima tely and to speak f ully, although harshly, on the accu sed s action and conduct if the evidence supports his comments, as is accus ed s counsel to comment on the nature of the evidence and the character of the witnes ses wh ich the [ prosec ution] p roduce s. *** 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 rea sonable deductions therefrom, and to arguments of opposing counse l, 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 eloquenc e of an ad vocate sha ll not soar. He may discuss the facts proved or admitted in the pleadings, assess the conduct of the parties, and attack the credibility of witnesses. He may indulge in oratorical conceit or flourish and in ill ustration s and m etapho rical allus ions. Spain v. Sta te, 386 Md. 145, 152-53 (2005) (quoting Degren v. State, 352 Md. 400, 429430 (1 999)). While there is great leeway given to prosecutors to conduct their closing stateme nts, Lawson v. State, 389 M d. 570, 5 91 (20 05), Whether it be in opening statement or in summation, appeals to class prejudice or passion are im proper and ma y so poison the minds of jurors 24 that an a ccused may be d eprived of a fa ir trial. *** Of course, not every ill-conceived remark made by counsel, even during the progress of the trial, is cause for challenge or mistrial. What exceeds the limits of permissible content dep ends on the facts in eac h case, even wh ere the rem arks m ay fall into the sam e gene ral classif ication. Wilhelm v . State, 272 M d. 404, 4 14-15 (1974 ) (Citatio ns and quotatio ns omitted.). Whether prejudicial remarks constitute reversible error depends on the closeness of the case, the cen trality of the issue af fected by the e rror, and the s teps taken b y the judge to mitigate the eff ects of t he erro r. Id. at 416. Looking at the record, we think the remarks made by the prosecutor had the tendency to appeal to cla ss prejudice and passio n and w ere highly preju dicial to appella nt s case . The jurors were invited by the prosecutor s remarks to punish appellant for the wrongdoings committed against the Hispanic community. No curative instruction was offered by the court and general instructions regarding closing arguments would not have been sufficient. The remarks may have deprived appellant of a fair trial, given the somewhat conflicting identification and confusing testimony given by the victim in this case.20 For these reasons, we are unable to conclude that these remark s were harmle ss. Thus, we reverse appellant s 20 During the trial the victim, Mendez-Roque, initially was unable to clearly identify appellant as one o f his atta ckers. Mendez-Roque s version of the events changed during his testim ony, including the number of guns that he saw and the physical descrip tions of his attackers. Additionally, there was absolutely no physical evidence presented by the State at trial which linked appellant to the crime scene. 25 conviction and remand for the court to conduct a reverse waiver proceeding.21 JUDGMENT OF THE CIRCUIT COURT FOR WICOMICO COUNTY REV ERSED. CASE REMANDED FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY WICOMICO COUNTY. 21 Because we reverse Whaley s conviction on the closing arg ument gro und, there is no need to address his claim that the State impermissibly changed the theory of the case after the beginning of juror deliberations. 26
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