The opinion of the court was delivered by: Krauser, C. J.
Krauser, C.J., Meredith, Berger, JJ.
Opinion by Krauser, C. J.
Convicted, after a jury trial in the Circuit Court for Montgomery County, of possession of cocaine with intent to distribute, as well as related weapons and traffic offenses, Juan Carlos Carrero-Vasquez, appellant, presents three issues for review. Reworded, reordered, and redacted of argument, they are:
I. Whether the trial court erred in overruling the defense's objection to the prosecutor's statement, during closing argument, that jurors should convict if their "gut says I think he's guilty";
II. Whether the trial court's order instructing the defense not to cross-examine the State's key witness, about a potential motive she had to testify falsely, violated appellant's Confrontation Clause rights under the Sixth Amendment; and
III. Whether the trial court erred in overruling the defense's objection to the jury instruction regarding the "anti-CSI effect."
Because we conclude that the trial court erred in overruling the defense's objection to the prosecutor's statement during closing argument, in prohibiting the defense from cross-examining the State's principal witness about the effect a criminal conviction might have on her immigration status, and in overruling the defense's objection to the "anti-CSI effect" jury instruction, we reverse and remand for a new trial.
Early in the morning of October 17, 2008, appellant, after a late night out with some friends, borrowed a car from one of them, a "Veronica de Luna," and drove to his mother's apartment, where he was then living. Later that evening, after leaving that apartment, appellant was pulled over, while driving Ms. Luna's car, by an Officer Michael Power of the Montgomery County Police Department, for speeding and intentionally skidding. Unable to produce a valid driver's license, appellant handed the officer instead "an I.D. card from
Mexico" in the name of "Juan Carlos Artiga-Leiva." Upon running a license check, the officer found that appellant had never been issued a valid operator's license. After another police officer arrived as "backup," appellant was asked by the two officers to step out of the vehicle, whereupon they arrested him for driving without a license.
After placing appellant in handcuffs, the officers searched him. In his right rear pocket, they found a wallet containing an I.D. card, issued by the government of El Salvador, in the name of "Juan Carlos Carrero-Vasquez," a Social Security card in the name of "Juan Carlos Artiga-Leiva," and $2,474 in cash. In his left pants pocket, they recovered "a small black grocery bag" containing "approximately 100 small plastic baggies," nine of which were filled with either cocaine or inositol, a cutting agent. Then, when police searched the vehicle appellant was driving, they found, in the center console, a loaded revolver, which was later determined to have been stolen.
Appellant was thereafter indicted for possession of cocaine with intent to distribute; possession of a regulated firearm after having previously been convicted of a disqualifying crime; sale, transfer, or disposal of a stolen, regulated firearm; wearing, carrying, or transporting a handgun in a vehicle; driving without a license; speeding; and intentionally skidding. Tried by a jury in March 2009, he was convicted of all charges. But those convictions were subsequently vacated by this Court for reasons that are unrelated to this appeal.*fn1 Carrero-Vasquez v. State, Sept. Term, 2009, No. 907 (Md. Ct. Spec. App. Oct. 6, 2009).
On remand, appellant was tried again and convicted of all charges except sale, transfer, or disposal of a stolen, regulated firearm*fn2 and was sentenced to a total of fifteen years' imprisonment.*fn3 This appeal followed.
We begin with appellant's claim that the trial court erred in overruling the defense's objection to the prosecutor's statement, during rebuttal, that jurors should convict if their "gut says I think he's guilty."
The State concluded its rebuttal by stating to the jury:
The State does have a very high burden and my burden is to convince each and every one of you beyond a reasonable doubt. I am not required to prove guilty beyond all possible doubt or to a mathematical certainty. I am not required to negate every conceivable circumstance of innocence. My burden is high. I understand that. Reasonable doubt. Trust your gut. If your gut says I think he's guilty, that's reasonable.
"The first step in our analysis is to determine whether the prosecutor's statements, standing alone, were improper." Sivells v. State, 196 Md. App. 254, 277 (2010), cert. dismissed, 421 Md. 659 (2011). Contrary to the State's contention that the prosecutor was only explaining to the jury how it should "assess the credibility of the witnesses," she was clearly urging the jurors to find appellant guilty beyond a reasonable doubt if their "gut" told them that he was. Not only was there utterly nothing in this comment that related this "gut" check to the jurors' assessment of witness credibility, but the comment plainly reduces proof "beyond a reasonable doubt" to a "gut" feeling.
The prosecutor's remark was clearly improper for the simple reason that it misstates the law as to reasonable doubt, an evidentiary standard that is the cornerstone of a fair criminal trial. Ruffin v. State, 394 Md. 355, 363 (2006) (observing that the "reasonable doubt standard of proof is an essential component in every criminal proceeding").
We turn next to the question whether the comment was harmless error, that is to say, whether we can say that the error "did not contribute to the verdict," beyond a reasonable doubt. Lee v. State, 405 Md. 148, 174 (2008). The Court of Appeals has prescribed three factors to be considered in performing a harmless error evaluation: first, the "severity of the remarks"; second, the measures taken by the trial court to cure any potential prejudice; and third, the weight of the evidence against the accused. Id. at 165.
As to the first factor --"the severity of the remark"--although the prosecutor made the improper comment only once, the timing of the comment magnified its impact on the jury, as it was made at the conclusion of the State's rebuttal and was, quite literally, the last explanation the jury heard as to the weight and nature of the State's evidentiary burden.
As to the second factor--the measures taken by the trial court to cure any potential prejudice--the trial court, despite an objection to that comment by the defense, not only took no corrective measures to cure this gravely misleading remark by the State in describing its burden of proof, but overruled that objection, stating, "Closing argument is not evidence." The prosecutor then exhorted the jury, "Ladies and gentlemen, [appellant] is guilty as charged. Verdict sheet, not guilty/guilty. Check the guilty boxes." And with that, the trial court spoke briefly to the jury as to logistical matters, and then it sent the jury out of the courtroom to deliberate.
We disagree with the State's characterization of the trial court's response to appellant's objection as "caution[ary]." Nor are we swayed by the State's invocation of two instances during the trial when, in its words, "the court instructed the jury that attorneys' arguments were not evidence and that the jury's verdict must be based upon the evidence," as those remarks had nothing to do with the State's burden of proof and, in any event, were given two days before the error at issue occurred. As the Court of Appeals observed in Lee, for an instruction "to be sufficiently curative, the judge must instruct contemporaneously and specifically to address the issue such that the jury understands that the remarks are improper and are not evidence to be considered in reaching a verdict." 405 Md. at 177-78. In sum, the unmistakable effect of the trial court's actions (and inaction) was to suggest to the jury that nothing improper had occurred. See Wilhelm v. State, 272 Md. 404, 424 (1974) (observing that, "where no such [curative] action was taken by the trial court the prejudice found to have existed were grounds for reversal").
As to the third and final factor to be considered in our determination of harmless error--the weight of the evidence against the accused--the State's case rested largely on the credibility of its witnesses, in particular, Veronica de Luna, the only witness the State had to rebut appellant's defense that the gun found in the console of the car he was driving belonged to the owner of that vehicle. And as there was no forensic evidence linking appellant to the handgun, we cannot say that the error had no influence on the jury's verdict. See Lawson v. State, 389 Md. 570, 600-01 (2005) (observing that, in a case "based primarily" on witness testimony, "there is a higher probability . . . that the prosecutor's statements had an improper impact" than in a case where "there was physical evidence of the crime along with the testimony of the police officer who witnessed the event").
Furthermore, the State's contention that there was nothing improper about the prosecutor's comments, because a juror's intuition or "gut" may reasonably be relied upon in assessing the credibility of witnesses and in resolving conflicting testimony, while perhaps true as to witness credibility, has nothing to do with the case before us, where the prosecutor suggested to the jury that it could rely on its "gut" feeling, not to resolve issues of credibility, but to decide whether there was proof beyond a reasonable doubt that appellant was guilty of the crimes charged.
And, finally, the State's reliance on People v. Barnett, 954 P.2d 384 (Cal. 1998), is misplaced. Barnett was charged with murder, robbery, assault with a firearm, and kidnapping. During the guilt phase of his capital trial on those charges, the jury was given a pattern reasonable doubt instruction "which contained references to the terms 'moral evidence' and 'moral certainty.'" Barnett, 954 P.2d at 456. During closing argument, the prosecutor told the jury:
"If you have that feeling, that conviction, that gut feeling that says yes, this man is guilty, he's guilty of these crimes and guilty of the robbery and guilty of the special circumstances, that's beyond a reasonable doubt."
Id. at 457. After Barnett was convicted of those charges and sentenced to death, he appealed, contending, among other things, that the "moral certainty" language in the pattern jury instruction, when considered in combination with the prosecutor's argument that guilt could be based on a "gut feeling," made it "reasonably likely that the jury would have misunderstood the instruction as allowing for a finding of guilt on a standard lower than proof beyond a reasonable doubt." Id.
The Supreme Court of California acknowledged that both it and the United States Supreme Court have expressed "reservations" about the "moral certainty" instruction but that instruction had nonetheless been upheld by both courts. Id. at 457.*fn5 It then noted that Barnett had not preserved the issue for appellate review, as he had neither raised a contemporaneous objection nor requested that the trial court give the jury "an admonition on the point." Id. Yet, it briefly addressed the merits of Barnett's claim, stating:
When considered as a whole, the prosecutor's argument could not have misled the jury regarding the appropriate standard of proof. The prosecutor was not purporting to define "moral certainty" as having a "gut feeling"; rather, he was directing the jurors to trust their gut feelings in assessing the credibility of witnesses and resolving the conflicts in the testimony. Shortly after making the "gut feeling" reference, the prosecutor clarified that jurors should "look beyond the mere words that have been testified to," "examine closely the various witnesses, their demeanor, their attitude," and "apply sometimes a certain intuitive reasoning to who has reasons to lie, who has not. And who to believe."
The California Supreme Court was further convinced that the jury had not been misled as to the prosecution's burden of proof "by the fact that the trial court had repeatedly admonished the jurors, both at the outset of trial and after closing arguments, that they were required to follow the law and base their decision solely on the law and instructions as given to them by the court." Id. The court concluded that Barnett had presented "no basis for reversal" and affirmed his convictions and death sentence. Id. at 457, 475.
Barnett is distinguishable from the instant case in three significant ways, rendering it of little value as analogy. First, unlike in Barnett, the defense, in the instant case, made a contemporaneous objection and thus there is no preservation issue. Second, unlike in Barnett, the State, in the instant case, made no clarifying remarks after it conflated the burden of proof with the jurors' "gut" feelings; indeed, as previously noted, the prosecutor concluded her argument after making the improper comments and the jury was sent out to deliberate. And third, unlike in Barnett, the trial court, in the instant case, did not instruct the jurors, after closing argument,*fn6 that they were required to follow the law, as instructed by the court, and that they were further required to base their verdict solely upon the law and the evidence. The circumstances of the instant case thus required the trial court to ...