EASTMAN v. STATE

LOWE, J., delivered the opinion of the Court.

None of the three issues raised by this appeal from convictions by a jury in the Circuit Court for Prince George's County warrants reversal.

I.

The first concern is that after appellant had failed to file a timely motion to suppress pretrial identification evidence, the trial judge declined a hearing upon an oral motion on the morning of trial. Appellant contends that his counsel's "reasonable expectation" that the case would not be tried constituted good cause for the failure to file timely. To buttress his contention he stresses the fact that the prosecutor agreed not to object and equates that concession to our expressed belief in Baldwin v. State, 45 Md.App. 378 (1980), that counsel's reliance upon a prosecutor's agreement that a similar motion could be filed late constituted "good cause" under Md. Rule 736 a.

Our dicta in Baldwin was not influenced by the agreement with the State's Attorney that he would not object; rather the "good cause" was the underlying circumstance which led the prosecutor not to object rather than the agreement itself. In Baldwin defense counsel was prepared to file his motion propitiously but was deterred at the request of the State's Attorney who was engrossed in a prolonged murder trial and was not prepared to address the difficult issue raised by the motion. The defense in Baldwin delayed the filing solely as an accommodation to the State.

In this case the delay was not an accommodation to the State. The prosecutor's agreement not to object was not even sought during the filing time set forth in the rule but occurred well beyond the 30 days within which the motion should have been filed. The failure to file was not remotely for prosecutorial purposes. To the contrary, the agreement not to object appears to have been an agreement not to rub salt in the already exposed wound of appellant; a gentlemanly accommodation to avoid embarrassing appellant by declining to emphasize the rule violation. Indeed, it was but a week before trial that appellant suggested his intention to move orally to suppress. The prosecutor graciously agreed not to object — and did not.

The only issue then is the "underlying circumstance" whether counsel's

constituted "good cause" to avoid the rule's time requirements. Clearly, if such would suffice, the rule would have little or no meaning. The judge's discretion was not abused by holding such a reflection did not constitute "good cause."

II.

Appellant then complains that:

We agree with appellant that there can be no comment on a defendant's failure to testify, Griffin v. California, 380 U.S. 609 (1965), rehearing denied, 381 U.S. 957 (1965); however, when placed in context, the prosecutor did nothing more than point out that appellant had failed to produce evidence of his lack of knowledge, as had been pronounced by counsel's opening statement:

Opening statements are to preview what is to come in the way of evidence, not to argue what may be inferred from facts not in evidence. Appellant's counsel implicitly promised to prove that

allowing the jury to infer that lapse excused the presentation of evidence

Counsel went further and asserted the fact that his

That too was a fact to be proven, despite his declaration and explanation for not presenting "an alibi defense."

The State's response, emphasizing that counsel's opening statement's promise of evidence was not evidence, was carefully couched:

Unless we are willing to permit unfulfilled promises of evidence in opening statements to stand unanswered, the State cannot be totally precluded from comment. See Pierce v. State, 34 Md.App. 654, 661 (1977), cert. denied, 280 Md. 732, 734 (1977), cert. denied, 434 U.S. 907 (1977). Furthermore, with regard to a defense attorney's comment on the absence of fingerprint evidence in a criminal case, the Court of Appeals recently held:

If it is not unreasonable to permit the defense to comment upon the State's shortcomings in producing prosecutorial evidence, we can hardly preclude a reciprocal right for the State "to call attention" to the failure of a defendant to come forward with that which he promised to produce.

Although appellant's failure to take the stand may have been inferable, in light of the context, such inference would have been strained indeed. A more likely inference was available in appellant's opening statement that he would testify to why he had no alibi. There is not the slightest indication that the State was merely grasping for an opportunity to emphasize the failure to testify. To the contrary, the State carefully avoided any emphasis even by implication.

III.

Finally, appellant contends that the State should not have been permitted to impeach a defense witness by use of a prior contradictory statement because both statement and responding answers to the examination alluded to appellant's use of drugs, which appellant feels is improper in light of Ross v. State, 276 Md. 664 (1976). The trial judge, however, perceived the problem implicit in the examination and carefully instructed the jury that the testimony was admitted only

Rather than reciting the testimony here to point out the relevance of the credibility cross-examination, it must suffice that we have reviewed it carefully and find no misuse of the procedure in admitting the prior statement. The trial judge perceptively and carefully provided both appellant and the State an eminently fair forum for exposition of their cases on this issue, as well as throughout the trial.

Judgments affirmed.

Costs to be paid by appellant.