Opinion by FRIEDMAN, J.
Jaquanta Walton was shot and killed outside of the VFW Post in Salisbury, Maryland. According to the State's theory, Lee Braboy killed Walton at the behest of his friend, appellant Dionte Dutton. A jury convicted Dutton of second-degree murder, conspiracy to commit first-degree assault, and possession of a regulated firearm by a prohibited person. On appeal, Dutton raises three issues (which we have reordered): (1) a sufficiency of the evidence claim; (2) a claim that the prosecutor made improper statements; and (3) an evidentiary question concerning the admissibility of a picture of a handgun. We hold that the evidence of Dutton's complicity in the killing was legally sufficient. We also hold, however, that the prosecutor's comments were improper in several regards. Given the severity and importance of the improper comments, juxtaposed against the thinness of the State's case, we exercise our discretion to engage in plain error review, and reverse Dutton's conviction. As a result of these holdings, we need not reach the question regarding the admissibility of the picture of the handgun.
In June of 2017, Dionte Dutton and Jaquanta Walton both attended a party at the Veterans of Foreign Wars (VFW) Post in Salisbury, Maryland.
In the ensuing investigation, the police obtained the footage from surveillance cameras inside and around the outside of the VFW, from which they could see the party, the dice game, the Lincoln driving around the VFW, and the killing. The police identified Dutton as a person of interest and questioned him in the days after the shooting. Dutton told the police that he drove Braboy's Lincoln, "from time to time," but denied any knowledge about or connection to Walton's death. As part of their investigation, the police extracted data from Braboy's cellphone. The police found the text that Dutton sent to Braboy ("Bro, come out here wit yea doe"), and a picture of a handgun that Braboy had sent to Dutton nearly two months before the shooting. The police also found the record (but not the contents) of two text messages, six phone calls, and one attempted phone call between Dutton and Braboy, all between 12:30 a.m. and 2:06 a.m. on the morning of the shooting.
The police also obtained a wiretap order for Dutton's cellphone. Between April 6th and April 19th of 2018, the police intercepted and were able to review the contents of approximately 4,000 phone calls, eleven of which the State later argued to the jury, showed that Dutton was "worried" and "spooked" by the investigation.
On April 19th, Dutton was arrested. He again denied any connection to or knowledge about Walton's death, but acknowledged that he and Braboy were in the Lincoln together before Braboy shot Walton. The State charged Dutton with murder in the first degree, murder in the second degree, conspiracy to commit assault in the first degree, assault in the first degree, assault in the second degree, reckless endangerment, use of a firearm in the commission of a felony or crime of violence, possession of a regulated firearm by a prohibited person, and wearing, carrying or transporting a handgun in a vehicle.
At Dutton's trial, the jury was shown the relevant surveillance footage, the text message that Dutton sent to Braboy from the VFW hall during the party ("Bro, come out here wit yea doe"), the picture of the handgun that Braboy sent to Dutton two months before the shooting, which was admitted into evidence over Dutton's objection, and eleven phone calls the police intercepted after securing the wiretap order for Dutton's cellphone. The jury also heard from the State's gang expert, George Norris. As part of the defense, Dutton's counsel argued to the jury that an individual named Tyquan King, rather than Dutton, was involved in Walton's death. Dutton's counsel also offered into evidence additional surveillance footage that showed the headlights of King's car flash on and off two seconds before Braboy shot and killed Walton. Dutton's counsel argued that this was the signal for Braboy to shoot Walton.
The jury convicted Dutton of second-degree murder, conspiracy to commit first degree assault, and possession of a regulated firearm by a prohibited person. The trial court sentenced Dutton to 83 years' incarceration. Dutton noted a timely appeal.
As noted above, Dutton argues (1) that the evidence was insufficient as a matter of law to sustain his convictions; (2) that the prosecutor made improper statements in closing argument that prejudiced his right to a fair trial; and (3) that the picture of the handgun that Braboy texted to him months before the shooting should not have been admitted into evidence. Because of our resolutions of issues 1 and 2, we need not, and do not, reach issue 3.
I. SUFFICIENCY OF THE EVIDENCE
Dutton contends that the evidence was insufficient to convict him of second-degree murder, conspiracy to commit first-degree assault, and possession of a regulated firearm by a prohibited person. Specifically, Dutton argues that the State failed to put on evidence that he acted as Braboy's accomplice, that is, that he "advocated or encouraged" Braboy to commit the crime. See Silva v. State, 422 Md. 17, 28 (2011); see also Martin v. State, 218 Md.App. 1, 33 (2014) (explaining that an accessory before the fact is one who, "aided, counseled, commanded[,] or encouraged the commission [of a felony] without having been present ... at the moment of perpetration"). Dutton also argues that the State failed to put on evidence that he formed the specific intent to kill or inflict grievous bodily harm (such that death would likely be the result) that the State needed to support the second-degree murder charge, see Kouadio v. State, 235 Md.App. 621, 627-28 (2018); failed to put on evidence of an agreement necessary to prove conspiracy, see Townes v. State, 314 Md. 71, 75 (1988); and failed to put on evidence that Dutton had constructive possession of the handgun that Braboy held and used, see Price v. State, 111 Md.App. 487, 498-99 (1996).
When reviewing the sufficiency of the evidence, we view the evidence and any reasonable inferences to be drawn from that evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Fuentes v. State, 454 Md. 296, 307-08 (2017). Where there are "competing rational inferences available" from the evidence adduced at trial, the appellate court will not second guess the jury's determination. Roes v. State, 236 Md.App. 569, 583 (2018) (quoting State v. Manion, 442 Md. 419, 431 (2015)). In evaluating the sufficiency of the evidence, we do not consider whether the State has proved its case beyond a reasonable doubt. Lindsey v. State, 235 Md.App. 299, 311 (2018). We only consider whether the State satisfied its burden of production and was entitled to have the charges submitted to the jury. Chisum v. State, 227 Md.App. 118, 125 (2016).
We begin by reviewing, in some detail, the evidence that the State produced. There were five pieces of evidence that could have satisfied the State's burden: (1) the surveillance footage from in and around the VFW; (2) the text message from Dutton to Braboy that said, "Bro, come out here wit yea doe,"; (3) the expert testimony of George Norris; (4) the phone record showing that Braboy sent Dutton a picture of a handgun two months before Walton was killed; and (5) the eleven phone calls, which the State argued showed that Dutton was "worried" and "spooked" by its investigation.
A. The Surveillance Footage
The surveillance footage shows that Dutton entered the VFW at approximately 11:32 p.m., was scanned with a handheld metal detector by a security guard, and proceeded to the area around the dance floor. Walton and his friend, subsequently identified as Devon Cormack, entered the VFW at approximately 11:49 p.m.
At 11:53 p.m., the camera captured Walton on the dance floor, and Dutton near some tables and chairs set up to the left of the dance floor. Dutton then exited the main event hall through a side door, to perhaps a courtyard or another room, while Walton remained on the dance floor. At 11:55 p.m., Walton exited through the same door. Roughly ten seconds later, Dutton walked back through the door into the main event hall.
The next piece of surveillance footage begins at 12:22 a.m. In it, Walton danced while Dutton stood on the edge of the dance floor looking on. Walton appeared to make hand signs and gestures while he was dancing, although the gestures did not appear to be directed at one specific person, or in a single direction.
At 12:35 a.m., Dutton stepped onto the dance floor, and he and Walton appeared to yell at one another. The two men were either kept apart, or never really attempted to physically engage. Dutton left the dance floor two minutes later. At 12:40 a.m., Dutton again exited the main dance hall through the side door, briefly reentered at 12:42 a.m., and exited again. At 12:43 a.m., Dutton reentered and stood on the side of the dance floor, while Walton left the dance floor to pose for photographs. The dance floor cleared, the lights came on, and around 12:48 a.m., Dutton left the VFW, and Walton left approximately one minute later.
After leaving the VFW, Dutton walked across Main Street to a parking lot across from the VFW, where he left the view of the surveillance camera. A minute later, he reappeared and stood alone by a light post near the parking lot. Dutton then got into the passenger seat of Braboy's Lincoln, which drove east on Main Street. At 1:01 a.m., Walton crossed Main Street and walked to the same parking lot. He spent the next several minutes shooting dice with a group of men while the Lincoln continued to drive around the area, coming in and out of the view of the surveillance cameras. At 1:07 a.m., the surveillance footage showed Walton playing dice, while the Lincoln turned into a driveway behind the dice game. The Lincoln remained motionless, partly obscured behind a building, with the brake lights on until 1:09 a.m., when the Lincoln started to move again, until it was fully behind the building. The Lincoln reemerged a minute later and spent the next five minutes slowly driving east on Main Street towards Walton and the dice game. The Lincoln stopped near the dice game around 1:16 a.m., and slowly crawled past the dice game. At 1:19 a.m., the Lincoln again left the view of the surveillance cameras.
Two and a half minutes later, Dutton drove the Lincoln west on Main Street, and stopped across from Walton and the dice game for two minutes, before driving around the block again. The Lincoln pulled out of the driveway behind the parking lot, proceeded to Main Street, and left the view of the surveillance camera at 1:27 a.m. At 1:30 a.m., Braboy ran through the crowd playing dice, shot Walton in the chest at point-blank range, ran across Main Street, and disappeared into a thicket behind the VFW.
B. The Text Message
In addition to the surveillance footage, there was the text message that Dutton sent to Braboy while inside the VFW that read, "Bro, come out here wit yea doe."
C. The Picture Message
Fifty-one days before Braboy shot and killed Walton, Braboy sent a picture of a handgun, by text message, to Dutton.
D. George Norris's Expert Testimony
A great deal of the State's case against Dutton came down to the expert testimony offered by George Norris, a former law enforcement officer who was identified as an expert in "gang recognition, identification, and culture, specifically dealing with hand signs, gestures, and body movement[,]" based on his training in "gang recognition, awareness, intervention and prevention, gang enforcement, surveillance, and ... electronic surveillance class, culture classes for different cultures, [and] other things to help deal with the gangs."
Norris also testified that when Dutton texted Braboy, "Bro, come out here wit yea doe," the word "doe" was coded gang language for the word "gun." Thus, according to Norris, Dutton asked Braboy to "come [to the VFW] with yea [gun]." Norris later qualified this testimony and said that the word "doe" could also refer to money and did not necessarily mean gun. This was the extent of Norris's testimony that connected Dutton to the shooting of Walton.
E. The Intercepted Phone Calls
Of the 4,000 phone calls the police intercepted pursuant to the wiretap order they obtained for Dutton's cellphone, the State introduced the transcripts and records of eleven of those calls into evidence, for the purpose of demonstrating that Dutton was, in the prosecutor's words, "spooked" and "worried" by the investigation. The calls, at best, show that Dutton was aware of the investigation, and aware that he, and those he spoke to on the phone, were persons of interest. This is unsurprising. Dutton admitted that he was, in fact, in the Lincoln with Braboy before Braboy got out and shot Walton.
Even though the evidence was not particularly strong, we conclude that the State produced evidence sufficient to submit each of the criminal charges to the jury. For each charge, the text message from Dutton to Braboy, as interpreted by Norris, combined with evidence of what Braboy and Dutton did once Braboy arrived at the VFW, was sufficient to demonstrate the necessary elements to send the charge to the jury. Thus, the text message (as interpreted by Norris) summoning Braboy to the VFW—combined with the evidence that Braboy came to the VFW, rode in the same car with Dutton, emerged from the car and then shot Walton—was legally sufficient to satisfy the State's burden of producing evidence that Dutton commanded or commissioned Braboy's killing of Walton such that accomplice liability claims could go to the jury. Similarly the text message (as interpreted by Norris), combined with the fact that Dutton drove Braboy around the area where Walton was playing dice and, shortly after Braboy emerged from the vehicle, he shot Dutton, was legally sufficient to establish that Dutton had the intent that Braboy kill or cause grievous bodily harm to Walton such that death was a likely result. Likewise, the evidence of conspiracy was legally sufficient because the text message, (as interpreted by Norris), could be interpreted as showing the agreement between Dutton and Braboy. Finally, the text message, (again, as interpreted by Norris), and Dutton's proximity to Braboy and the handgun in the Lincoln, was legally sufficient to give Dutton constructive possession of Braboy's handgun, when Dutton's possession of any type of gun was illegal.
Evidence is not insufficient simply because the jury could have drawn other inferences. The text message summoning Braboy to the VFW and (as interpreted by Norris) instructing Braboy to bring a gun, Norris's expert testimony, the time spent in the Lincoln driving around the VFW, the surveillance footage, the eventual assault, and the intercepted phone calls were legally sufficient for the jury to conclude that Dutton committed the crimes with which he was charged. The evidence presented, viewed in the light most favorable to the State, was sufficient to sustain each of Dutton's convictions.
II. THE PROSECUTOR'S COMMENTS
Dutton next challenges that, during closing arguments, the prosecutor made several statements that were improper and prejudiced the jury against him. At trial, however, Dutton's counsel did not object to these statements. Ordinarily, we will not decide an issue unless it was raised or decided in the trial court. MD. R. 8-131(a). Under very rare circumstances, we will exercise plain error review when we find that "the unobjected to error is compelling, extraordinary, exceptional, or fundamental to assure the defendant a fair trial." State v. Brady, 393 Md. 502, 507 (2006) (cleaned up).
Dutton has identified six separate statements made by the prosecutor in closing arguments that he argues were improper and prejudiced the jury against him. A prosecutor generally has "wide latitude in presenting a closing argument [and] is free to speak harshly and engage in oratorical conceit or flourish and in illustrations and metaphorical allusions." Hunt v. State, 321 Md. 387, 434 (1990). That latitude is not unlimited. Id. at 435. The prosecutor should not "make remarks calculated to inflame the jury and prejudice the defendant ... comment on matters not in evidence ... or infer that the defense counsel suborned perjury or fabricated a defense." Id. (cleaned up); see also Clarke v. State, 97 Md.App. 425, 431-32 (1993). "When ... there are multiple inappropriate statements and the trial court fails to cure the prejudice created by the cumulative effect of those statements, the admissibility of such statements may amount to more than harmless error." Lawson v. State, 389 Md. 570, 608 (2005). Given both the severity of the improper statements identified by Dutton, and the relative thinness of the State's case against him, we exercise our discretion to review these under our plain error doctrine. Because we find the cumulative effect of the prosecutor's improper statements to be prejudicial, we reverse Dutton's convictions. We will address each of the prosecutor's improper statements in turn.
A. Attack on Dutton's Trial Counsel
During closing arguments, the prosecutor told the jury that Dutton's counsel was lying:
This comment from the prosecutor violates at least two well-understood rules. First, a prosecutor may not say, or even imply, that defense counsel has fabricated a defense. Hunt, 321 Md. at 435 (citing Reidy v. State, 8 Md.App. 169, 172-79 (1969)). Here, by accusing defense counsel of "selling [the jury] crap," the prosecutor argued that defense counsel manufactured a false defense.
In defense of these comments on appeal, the State proffers that "selling you crap" doesn't mean lying, and suggests that even if the prosecutor's statements were improper, they were acceptable under the "invited response" or "opened door" doctrines. See Mitchell v. State, 408 Md. 368, 379-88 (2009). The short answer is that defense counsel did, in fact, begin the buying-and-selling metaphor, but the prosecutor's remarks constituted an unwarranted and improper escalation of the metaphor.
B. Improper `Golden Rule' Arguments
It is a fundamental rule that prosecutors may not appeal to the prejudices and fears of the jury. Lawson, 389 Md. at 597. One form of these improper appeals to fear and prejudice are the so called "golden rule arguments ... in which a litigant asks 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. State, 405 Md. 148, 171 (2008) (cleaned up). When prosecutors make a golden rule argument, they are "calling for the jury to indulge itself in a form of vigilante justice rather than engaging in a deliberative process of evaluating the evidence." Id. at 173, 174-79; see also Hill v. State, 355 Md. 206, 225 (1999) (noting that it is improper and prejudicial for a prosecutor to suggest that jurors convict to preserve the safety or quality of their communities.) Dutton has identified three separate statements that he argues are improper golden rule arguments.
1. The Prosecutor Compared Salisbury to Compton
The prosecutor told the jury, "I don't know when Salisbury became Compton, but it is." The prosecutor was not comparing Salisbury, Maryland to Compton, Maryland, a crossroads community near Leonardtown in St. Mary's County, or to the idyllic seaside town of Little Compton, Rhode Island. Rather, the prosecutor was referring to the City of Compton, California, a majority Hispanic and Black city in the southeast region of Los Angeles county, notorious in popular culture for gang violence and crime during the 1980s and 1990s. By referencing the City of Compton, the prosecutor was invoking the same Compton that N.W.A. rapped about in their breakout album, Straight Outta Compton (Ruthless/Priority Records 1987), featuring songs such as Straight Outta Compton, Fuck the Police, and Gangsta, Gangsta and the 2015 film biography of N.W.A. by the same name. See STRAIGHT OUTTA COMPTON (Legendary Entertainment 2015). In those and many other popular depictions, the City of Compton is shown as controlled by street gangs and plagued by violence. See also, Angel Jennings & Paloma Esquivel, `Straight Outta' A Different Compton: City Says Much Has Changed in 25 Years, L.A. TIMES (August 14, 2015) https://perma.cc/V4QA-X24W (accessed July 21, 2021). Rather than convincing the jury that the evidence presented proved Dutton's guilt beyond a reasonable doubt, the prosecutor, with this remark, asked the jury to find that gang violence is, in fact, a problem in Salisbury, and suggest that the members of the jury could be part of the solution by convicting Dutton. That's precisely the sort of improper prosecutorial argument that the Court of Appeals rejected in Hill. We hold that this comment was improper.
2. The Prosecutor Implied that Only Jurors Who Didn't Care Would Acquit Dutton
The prosecutor also said:
This statement by the prosecutor is almost a classic example of the improper golden rule argument. It is a clear appeal to the moral interests of the jurors, rather than an appeal to the State's evidence or the logic of its argument. As such, it is improper.
The State defends this statement on appeal by arguing that, rather than an exhortation to the jury to care, it was, in fact, a comment on the fact that no one at the scene of the shooting outside the VFW called the police, because no one cared, and no one stayed with Walton after he was dropped off at the hospital doorstep, also because no one cared. Grammatically, we find this theory unconvincing. Alternatively, the State contends that, insofar as it was an exhortation to the jury, it was "an exhortation that the jury properly perform its function by carefully looking at the evidence and charges." (emphasis added). Again, we are not convinced. There is a clear difference between asking the jury to "care enough to find him guilty," and asking the jury to look "carefully" at the evidence. This comment implies that only those jurors who "care" will vote to convict Dutton, and that if a juror chooses to acquit Dutton instead, then they must be like those non-caring persons who didn't call the police after the shooting and those who dropped Walton off at the hospital doorstep and left. Not even the gloss that the State asks us to put on this statement can make it acceptable.
3. The Prosecutor Asked the Jury to Step into the Shoes of Walton's Family and Imputed Blame on the Jurors
The prosecutor also said, "[A]t the end of the day, it's somebody's somebody, a 20-year-old kid that we let die on the street." (emphasis in original). This argument turns the jury's attention away from the facts and evidence, and towards their own interests and feeling about Walton's murder. The use of the word "we"—emphasized in the excerpt— places blame on the jury, and thus asks the jurors to consider their owns interests, instead of the evidence in the case. See, e.g., Holmes v. State, 119 Md.App. 518, 527 (1998) (prosecutor's comment "we say no" to the jury implored jurors to consider their own interests, thus violated the prohibition against golden rule arguments). Furthermore, the "it's somebody's somebody" comment seems to ask the jurors to place themselves in the shoes of Walton's family and friends who lost their "somebody." See Lawson, 389 Md. at 594-95 (addressing impropriety of prosecutor asking jury to place themselves in the shoes of a mother whose child had been molested). Again, this was an improper golden rule style argument.
C. Improper Comments on Matters Not in Evidence
During the April 2018 wiretap of Dutton's cellphone, the police collected the contents of over 4,000 calls, but only a handful of those calls were admitted into evidence at trial. During closing arguments, the prosecutor argued that he was not permitted to show the jury all of those calls and thus was precluded from showing the jury all of the evidence of Dutton's guilt:
A prosecutor may not comment on facts not in evidence. Donaldson v. State, 416 Md. 467, 489 (2010) (quoting Mitchell, 408 Md. at 381); see also Hunt, 321 Md. at 435. Here, the prosecutor's comment quite clearly suggested to the jury that there was inadmissible evidence in those phone calls that would have proven Dutton's guilt. This is just the sort of comment on facts not in evidence that the law prohibits. Moreover, such a comment is unfair to the trial judge and the judicial system, because it suggests that evidentiary determinations are intended to hide the truth from the jury. It is inherently prejudicial for the prosecutor to suggest to the jury that there was additional "pertinent" evidence that it was not allowed to see. This is a particularly egregious and improper argument.
Maybe each of these comments alone wouldn't be enough to warrant a finding of plain error, but cumulatively, the comments were prejudicial and deprived Dutton of a fair and impartial trial. See Lawson, 389 Md. at 599-600, 604-05. As noted above, Dutton's counsel failed to object to any of these improper statements. Ordinarily, then, the statements would not be cognizable on direct appellate review.
We hold that the evidence, although thin, was legally sufficient to support Dutton's convictions. We further hold, however, that the prosecutor's comments during closing arguments were improper and require reversal. Given the juxtaposition between the State's thin case against Dutton and the severity of the prosecutor's inappropriate remarks, we exercise our discretion on plain error review to vacate Dutton's convictions and remand this case for a new trial.
(Emphasis added). Prosecutors may not refer to a criminal defendant as an animal. Walker v. State, 121 Md.App. 364, 381 (1998); see also Lawson, 389 Md. at 597-99 (reversing for, among other things, calling the defendant a "monster"). On this record, we read the prosecutor as calling Dutton a hunter, not necessarily an animal and therefore the comments were not clearly improper. Nevertheless, we caution on retrial that the State "maintain an air of dignity and stay above the [fray]." Lawson, 389 Md. at 598 (quoting Walker, 121 Md. App. at 381).