Chisum v. State

CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J. The appellant, Jacob Lee Chisum, was convicted in the Circuit Court for Wicomico County by Judge W. Newton Jackson, III, sitting without a jury, of attempted second-degree murder, first-degree and second-degree assault, reckless endangerment, carrying a weapon openly, and carrying a concealed weapon. For the attempted second-degree murder, Judge Jackson imposed a sentence of thirty years, with all but fifteen years suspended. On this appeal, the appellant raises three contentions, each expressly challenging the legal sufficiency of the evidence to support one of the three guilty verdicts.

The appellant does not challenge the sufficiency of the evidence to support the convictions for reckless endangerment, first-degree assault, and second-degree assault. The appellant does challenge the legal sufficiency of the evidence to support the convictions for both carrying a weapon openly and carrying a concealed weapon and, most significantly, to support the conviction for attempted second-degree murder. That is the flagship contention of this appeal. The Precise Issue of Legal Sufficiency As we prepare to address that flagship contention, let it be clear that we are not going to indulge the appellant in manufacturing a law school examination hypothetical of error ¹²³ where in the real-life trial before us, no such error occurred.

We will require of the appellant, moreover, the same meticulous precision in the framing of his primary contention that he would demand of the trial judge in explaining his verdict. Appellants themselves should not be lax in challenging laxity. The appellant’s primary contention is unambiguous: “The evidence was insufficient to convict Mr. Chisum of attempted second degree murder.” The issue there framed is unequivocally the legal sufficiency of the evidence to permit a conviction for attempted second-degree murder. What must be found to be sufficient, moreover, is not the ostensible fact-finding of the trial judge, as argued for by the appellant, but the sufficiency of the evidence itself.

The Factual Background, Briefly The evening of September 27, 2014, was a festive one in Salisbury as William “Dirty” Ayers invited seven or eight of his friends to join him in the shed behind his Mother’s home for what he described as some “typical friendly banter among friends that evening with a lot of drinking.” As the festivities progressed, he characterized his own condition as “wasted.” Among the celebrants were the appellant and the ultimate stabbing victim, Wayne Handy. The “typical friendly banter” turned to the fine points of high couture, as the appellant and Handy clashed over which of the two of them had the “fliest” (loosely translated by Handy as “the best”) clothes and shoes. The host, Ayers, had his back to the disputants when he heard “a whole bunch of ruckus” behind him with Handy suddenly announcing, “Oh, man, he got me.” As Ayers turned to look, he saw “blood everywhere” and Handy, bent over, holding his abdomen and bleeding. The appellant was standing in the doorway of the shed, with a knife in his hand.

At that point, the party broke up. Handy, still bleeding, ran across the street. The appellant ran and jumped into his car. Ayers followed the appellant to his car and manifested his displeasure by throwing first a bicycle and then a chair at ¹²⁴ his troublesome guest.

In the meantime, someone had called the police. Ayers then ran to assist Handy, who was at that point lying in the yard and bleeding. It was Handy who, as a witness, described how, as the conversation between him and the appellant about clothes and shoes grew more heated, the appellant left the conversation “for a split second” and then came back. Handy heard the “open click of a knife” and instantly felt the pain of being stabbed.

There was a single stab wound to the stomach area. Handy was transported to the hospital where he underwent surgery. He had suffered a laceration of the liver. Shortly after fleeing the scene, the appellant was apprehended at the scene of a traffic stop.

A search of the car revealed a fixed blade knife in a sheath in the driver’s seat pocket. The Burden of Production: The 66-Year History of the Legal Sufficiency Test It behooves us initially to focus on precisely what the appellant’s contention about the legal sufficiency of the evidence entails or, more dispositively, on what it does not entail. Our ultimate holding will be framed exclusively in response to the appellant’s challenge to the legal sufficiency of the evidence to support the attempted murder verdict. It behooves us to demarcate clearly what an examination of the legal sufficiency of the evidence entails, and what it does not entail.

It is a precise contention and not a broad umbrella. In a jury trial, the scope of the legal sufficiency issue is clear. Maryland Rule of Procedure 4-324 requires an appellate court to review the legal sufficiency of the evidence if, at the close of all of the evidence, a timely motion for a judgment of acquittal has been made by the defendant. Brooks v. State, 299 Md. 146, 150 , 472 A.2d 981 (1984) (“In determining the disposition of a motion for judgment of acquittal ..., the trial court is passing upon the sufficiency of the evidence to sustain a conviction.”).

Absent such a motion, no review of the legal sufficiency of the evidence is even permitted. As Judge Kenney explained for this Court in Whiting v. State, 160 Md.App. 285, 308 , 863 A.2d 1017 (2004): ¹²⁵ “Rule 4-324(a) requires that, as a prerequisite for appellate review of the sufficiency of the evidence, appellant move for a judgment of acquittal, specifying the grounds for the motion.” See also Graham v. State, 325 Md. 398, 416-17 , 601 A.2d 131 (1992); Bates v. State, 127 Md.App. 678, 691 , 736 A.2d 407 (1999). When dealing with the issue of legal sufficiency in a jury trial, we are dealing only with the satisfaction of the burden of production. Was the evidence sufficient, as a matter of law, to permit the judge to submit the case to the jury for its decision?

We are not at all concerned with how the factfinder arrived at the verdict, the logic or illogic of the factfinder’s reasoning, but only with the naked verdict itself. How the factfinding jury rendered its verdict may, to be sure, be a critical issue. We are not for a moment suggesting otherwise. It would be nonetheless an issue separate and distinct from the issue of whether the State has satisfied its burden of production by producing legally sufficient evidence to permit a verdict of guilty.

In the case now before us, we are dealing with a court trial and not with a jury trial. The factfinder was a judge and not a jury of 12 persons whose decisional processes are forever both beyond our ken and beyond our authority to review. The question becomes one of whether appellate review of the evidence is broader in a bench trial than it is in a jury trial. The reviewing authority is spelled out in Maryland Rule 8-131(c), which provides: “When an action has been tried without a jury, the appellate court will review the case on both the law and evidence.

It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” (Emphasis supplied). There is one big and obvious difference between the review of a verdict on the evidence in a jury trial and in a ¹²⁶ court trial. Such review of a jury’s verdict is absolutely contingent on an underlying motion for a judgment of acquittal. Such a review on the evidence of a judge’s verdict, on the other hand, is automatic.

What remains to be seen is whether there is any further difference between the substance of the respective reviews. The literal wording of Rule 8-131(c) is that “the judgment of the trial court” (the verdict) will not be set aside “on the evidence unless clearly erroneous.” (Emphasis supplied). Is the verdict in a bench trial that is not clearly erroneous the same, neither more nor less, than a jury verdict that is supported by legally sufficient evidence? No question could be more basic for an appellate court charged with reviewing criminal convictions.

The absolutely seminal analysis in this regard was made by the five charter members of this Court in the second year of its existence. The monumental opinion of Judge Orth in Williams v. State, 5 Md.App. 450, 452 , 247 A.2d 731 , cert. denied, 252 Md. 734 (1969), set out to examine “the authority and function of this Court in its review of the sufficiency of the evidence in a criminal case.” The issue was one of first impression, as the opinion pointed out that there was no authority for an appellate court to review the sufficiency of the evidence in a non-jury case until January 1, 1950 and no authority to review such sufficiency even in a jury case until a constitutional amendment effective as of December 1, 1950. Brooks v. State, 299 Md. 146, 149 , 472 A.2d 981 (1984) (Until 1950, the Court of Appeals “had no power to review the legal sufficiency of evidence on appeal of a criminal case tried to a jury.”). Then as now, the language authorizing review in a non-jury case referred to a verdict’s not being “set aside on the evidence unless clearly erroneous” and the authorizing language in a jury trial referred to “the sufficiency of the evidence to sustain a conviction.” 5 Md.App. at 454 , 247 A.2d 731 .

As this Court, then reviewing essentially nothing but criminal cases (hence the word “Special” in its very name), undertook its review of the legal sufficiency of evidence in criminal cases, the inquiry was fundamental. ¹²⁷ “The question arises as to what test is to be applied on appeal in determining the sufficiency of the evidence (1) to sustain a conviction in a non-jury case, and (2) to justify its submission to the jury in a jury case.” 5 Md.App. at 456 , 247 A.2d 731 . (Emphasis supplied). Judge Orth’s opinion made it clear that in a jury trial and a court trial alike,- we are measuring a verdict against the supporting evidence itself and not looking at what a judge might say in rendering the verdict. “Once the question of the sufficiency of the evidence is properly before us, we believe that the criteria used to determine the question is the same, be the verdict rendered by the court or a jury.” 5 Md.App. at 458 , 247 A.2d 731 (emphasis supplied). The issue of legal sufficiency is precisely the same under either trial modality.

In a court trial just as in a jury trial, the issue is the satisfaction of the burden of production. “We think that whether the question comes before us as a contention that the trial court was clearly wrong in reaching a verdict of guilty on the evidence or as a contention that the evidence was insufficient in law so as to preclude it from being submitted to the jury, the test is whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. If there was such evidence, the lower court would neither be clearly erroneous, in a trial without a jury, in finding a verdict of guilty, nor in error, in a jury trial, in denying a motion for judgment of acquittal.” 5 Md.App. at 459-60 , 247 A.2d 731 (emphasis supplied). In Wilson v. State, 261 Md. 551 , 276 A.2d 214 (1971), the opinion of this Court in Williams v. State was squarely before the Court of Appeals, as the appellant there, 261 Md. at 563-64 , 276 A.2d 214 , raised the following challenge: ¹²⁸ “The appellant advances the proposition that the test to be applied in appellate review of the sufficiency of the evidence in a criminal case has been changed by the decision of the Court of Special Appeals in Williams v. State, 5 Md.App. 450, 247 A.2d 731 (1968)[.]” Judge Finan’s opinion for the Court of Appeals, 261 Md. at 565 , 276 A.2d 214 , found nothing improper in Williams and used it as the standard by which to hold the evidence legally sufficient in that case. “Applying the test set forth in Williams to the evidence outlined in this opinion, the jury could honestly and justifiably have been convinced beyond a reasonable doubt that the appellant, in firing the final shot (if not the first three), was guilty of the wilful, deliberate, and premeditated murder of Walter ‘Kidd’ Henderson.” In Barnes v. State, 31 Md.App. 25, 29 , 354 A.2d 499 (1976), this Court, relying on Williams , pointed out that in a bench trial, what is automatically before the appellate court for review is the legal sufficiency of the evidence, just as it would upon proper motion be before the Court in a jury trial. “In a criminal action tried before a jury, appellate review of the sufficiency of the evidence may be had only upon the denial of a motion for judgment of acquittal at the close of all the evidence.... In a criminal action in which the court is the trier of fact, the appellate court must entertain the issue of the sufficiency of the evidence when presented on appeal even in the absence of a motion for judgment of acquittal below.

Williams, 5 Md.App. at 46 [456], n. 10[ 247 A.2d 731 .]” (Some internal citations omitted). This Court has been unwavering in its commitment to that essential identity of the tests for legal sufficiency. In Starke v. Starke, 134 Md.App. 663, 668-69 , 761 A.2d 355 (2000), we made it clear that the phrase “clearly erroneous” in Rule 8-131(c) refers only to whether the verdict is supported by legally sufficient evidence and not to peripheral incidents in its rendition. ¹²⁹ “Rule 8-131 (c) does not apply to evidentiary rulings, even rulings that have a critical influence on the outcome of the case. Neither does Rule 8-131(c) apply to ancillary or intermediate findings of fact (or non-findings of fact), even those that might control, as in this case, whether a presumption of undue influence arising out of a confidential relationship should arise. “Rule 8-131(c) applies only to verdicts, conferring on an appellate court the authority to review a verdict on the evidence.

Historically, no such authority existed in either court trials or jury trials. In a jury trial, however, it effectively existed because a trial judge’s legal decision as to whether the evidence was sufficient to permit the case to be submitted to the jury was reviewable as a matter of law. No such review of the sufficiency of the evidence was traditionally available in a court trial, however, because a judge, in his capacity as a legal referee, was not required to make a legal ruling before submitting the case to himself, in his capacity as a fact finder.” (Emphasis supplied). We reiterate that the ultimate appellate review of the sufficiency of the evidence, if triggered, is precisely the same in a jury trial and in a bench trial alike.

In a jury trial, the required trigger is a motion for a judgment of acquittal pursuant to Rule 4-324(a). Absent such a timely motion, the appellant forfeits his right to have the legal sufficiency of the evidence reviewed by the appellate court. In a bench trial, by contrast, the trigger is Rule 8-131(c). After a bench trial, appellate review of the legal sufficiency of the evidence is automatic and does not require a motion by the appellant.

In the most basic of terms, the critical issue, regardless of the trial modality, is whether the State has satisfied its burden of production. The issue of legal sufficiency of the evidence is not concerned with the findings of fact based on the evidence or the adequacy of the factfindings to support a verdict. It is concerned only, at an earlier pre-deliberative stage, with the objective sufficiency of the evidence itself to ¹³⁰ permit the factfinding even to take place. The burden of production is not concerned with what a factfinder, judge or jury, does with the evidence.

It is concerned, in the abstract, with what any judge, or any jury, anywhere, could have done with the evidence. It is an objective measurement, quantitatively and qualitatively, of the evidence itself. It is a question of supply and not of execution. 1 In a criminal case, no issue is more important than whether the State has satisfied its burden of production. The concern is with production, as a matter of law, and not with persuasion, as a matter of fact.

The appellate assessment of the burden of production is made by measuring the evidence that has been admitted into the trial objectively and then determining whether that body of evidence is legally sufficient to permit a verdict of guilty. In a jury trial, a motion for a judgment of acquittal at the end of the entire case initiates the examination of the satisfaction of the burden of production. If that burden of production is not satisfied, the trial judge is wrong, as a matter of law, for denying the motion and for allowing the case even to go to the jury. In a bench trial, the purpose of Rule 8-131(c) is to provide, automatically, the same appellate review of whether the evidence satisfied the burden of production.

If the evidence is not legally sufficient to support a verdict of guilty, the judge’s verdict of guilty is ipso facto clearly erroneous. In jury trial and bench trial alike, the burden of production, as a matter of law, must be satisfied. ¹³¹ This is the analysis that must be engaged in when an appellate contention challenges the legal sufficiency of the evidence to support a verdict of guilty. It is not an omnibus challenge or an amorphous challenge covering everything in the near neighborhood. It is a precise challenge to the satisfaction of the burden of production, neither more nor less.

Legally sufficient evidence satisfies the burden of production. Legally insufficient evidence does not. In a nutshell: In the appellate review of a criminal conviction, the State’s burden of production is the same in a jury trial and in a bench trial. In examining the satisfaction of that burden of production, the test of the legal sufficiency of the evidence to support the conviction is the same in a jury trial and in a bench trial.

It was in 1950 that the burden of production became reviewable in both jury trials and bench trials. We are directed to apply that test by a motion for a judgment of acquittal in a jury trial and by Rule 8 — 131(c) in a bench trial. The test itself, however, is precisely the same. 2 ¹³² An Argument Outside the Contention What the appellant is attempting to do in this case is to squeeze under the rubric of a contention challenging the legal sufficiency of the evidence, an argument that goes to something other than the legal sufficiency of the evidence. The appellant appears to have been aware of this gatehouse function of the legal sufficiency issue before factfinding is even permitted to take place.

Although not required to do so in a court trial, the appellant, at the close of all of the evidence, nonetheless moved for a judgment of acquittal, which Judge Jackson denied. “[DEFENSE COUNSEL]: Yes, Your Honor. I would like to make a motion for judgment of acquittal as to all counts, most specifically I guess I will address count two, I guess the attempted second degree murder. I don’t believe we’ve heard any evidence regarding a specific intent to kill which is the intent required for attempted first .or second degree murder. “THE COURT: Well, let me cut you off, I’m going to give you all your time obviously to make your motion, but wouldn’t thrusting a knife into someone’s abdominal region give an inference of some sort of intent to kill ?” (Emphasis supplied). At that point, the issue of the legal sufficiency of the evidence was already ripe for appellate review.

All of the evidence was in and available for measuring. No subsequent trial event could affect that sufficiency, one way or the other. Any subsequent trial event, therefore, would have been irrelevant to the pure issue of legal sufficiency. We now turn that legal sufficiency test to the proof of the mens rea of attempted murder. ¹³³ The Permitted Inference of the Intent to Kill With respect to