During closing argument prosecutor said,
There is so much evidence that corroborates what [the prosecution's witness] told you. When I spoke about her demeanor when she testified, and how she answered [defense counsel's] questions, did you notice the defendant's demeanor when she testified, the way he kept looking down and couldn't look at her? She looked in his eyes several times.The Maryland Court of Special Appeals said:...
... You observed that, members of the jury, you were sitting here. We all saw it. He couldn't sit up and look her in the eye because he knew she was telling the truth. He knew she was telling the truth.
Argument that asks the jury to consider the demeanor of a witness when testifying is proper and is consistent with the jury instruction given in this case to consider "the witness's behavior on the stand and way of testifying; did the witness appear to be telling the truth." Argument that comments on the courtroom demeanor of a defendant who elects not to testify is a different matter. Courts that have considered this question have reached different conclusions about when, if ever, comment on a defendant's courtroom demeanor is proper. In State v. Rivera, 602 A.2d 775, 253 N.J. Super. 598, (1992), the court held that when a defendant engages in "testimonial behavior before a jury" by injecting unsworn comments into a trial by word, gestures, display of emotion, or other demeanor intended to influence the jury, the prosecutor may, with advance approval of the court and the making of a record of the defendant's conduct, make a limited argument noting the fact of the behavior and that the comment or demeanor should not be considered by the jury. The court further stated, however, a prosecutor may not comment upon the failure of a defendant to act in a particular way during a trial. Id. at 777. See also State v. Johnson, 576 A.2d 834, 851-52, 120 N.J. 263 (1990) (improper for prosecution to argue that defendant failed to make eye contact with jurors during trial.)...
The Supreme Court of Delaware, in Hughes v. State, 437 A.2d 559 (Del. Supr. 1981), held improper the prosecutor's comments that characterized a non-testifying defendant's courtroom demeanor as unemotional, unfeeling, and without remorse.
In our view, the courtroom demeanor of a defendant who has not testified is irrelevant. His demeanor has not been entered into evidence and, therefore, comment is beyond the scope of legitimate summary. ... Moreover the practice is pregnant with potential prejudice. A guilty verdict must be based upon the evidence and the reasonable inferences therefrom, not on an irrational response which may be triggered if the prosecution unfairly strikes an emotion in the jury.437 A.2d at 572. See also Pope v. Wainwright, 496 So. 2d 798, 802 (Fla. 1986) (comments on a defendant's demeanor off the witness stand clearly improper); Blue v. State, 674 So. 2d 1184, 1213-15 (Miss. 1996) (error for prosecutor to comment on non-testifying defendant's demeanor and appearance during trial); People v. Garcia, 160 Cal. App. 3d 82, 206 Cal. Rptr. 468, 472-75 (Cal. App. 1984) (prosecutor's references to defendant's courtroom behavior was improper).On the other hand, the Supreme Judicial Court of Massachusetts has held that a prosecutor's comment on the defendant's squirming, smirking, and laughing during trial was fair comment and in context did not suggest that the prosecutor had knowledge the jury did not share. Commonwealth v. Smith, 387 Mass. 900, 444 N.E.2d 374, 380 (Mass. 1983). That court has said, however, that a suggestion by the prosecutor that normal courtroom behavior betrays consciousness of guilt is improper. Commonwealth v. Valliere, 366 Mass. 479, 321 N.E.2d 625, 635 (Mass. 1974). And, see Commonwealth v. Pullum, 22 Mass. App. Ct. 485, 494 N.E.2d 1355, 1358 (Mass. App. 1986).
The Supreme Court of North Carolina found no error in a prosecutor's comments on the courtroom demeanor of the defendant, holding that such remarks were rooted in the evidence and that the demeanor of the defendant was before the jury at all times. State v. Brown, 320 N.C. 179, 358 S.E.2d 1, 15 (N.C. 1987), cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406, 108 S. Ct. 467 (1987). See also State v. Myers, 299 N.C. 671, 263 S.E.2d 768, 773-74 (N.C. 1980); Wherry v. State, 402 So. 2d 1130, 1133 (Ala. Cr. App. 1981) (conduct of the accused or the accused's demeanor during the trial is a proper subject of comment, at least when insanity is raised as a defense).
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Turning to the case before us, we conclude that the argument of the prosecutor concerning the alleged failure of this defendant to look at a witness and the inference of guilt that should be drawn from that conduct was improper. The trial judge therefore erred in failing to sustain the defendant's timely objection.
The defendant in this case did not testify, and the State's argument related only to this courtroom conduct. Nowhere in the record is there to be found any reference to the alleged conduct of the accused. The prosecutor was arguing a fact not in evidence, and compounding that by adding her personal assurance that the alleged conduct occurred by saying, "We all saw it." n2 [footnote omitted] The argument related to conduct of the accused that was entirely passive -- his alleged failure to "look [the witness] in the eye." The argument was not, therefore, a comment on intentional conduct of an accused calculated to influence the jury. Moreover, the prosecutor argued her conclusion that the defendant's failure to "look her in the eye" was evidence of guilt -- "He knew she was telling the truth." -- a questionable inference at best. There may be any number of reasons why a defendant will not fix his or her gaze upon a witness, including a possible earlier instruction by defense counsel to avoid any possible implication that the defendant is attempting to intimidate or "stare down" a witness. The prosecutor should have focused on evidence that was before the jury, which may include fair comment on the demeanor of witnesses while they are on the stand, but which will ordinarily not include comments on the courtroom demeanor of the defendant.
In Wilhelm v. State, 272 Md. 404, 326 A.2d 707 (1974), the Court of Appeals noted that counsel may "make any comment or argument that is warranted by the evidence proved or inferences therefrom" and that the prosecutor is free "to comment legitimately and to speak fully, although harshly, on the accused's action and conduct if the evidence supports his comments . . . ." Id. at 412. We do not understand this statement ordinarily to condone comments of the prosecutor on the passive courtroom demeanor of a non-testifying defendant. ...
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