Ennis v. State

COUCH, Judge. In this case the petitioner, Carol Ann Ennis, asks us to resolve the question presented in her petition for writ of certiorari: “Whether the court below erred in refusing to review petitioner’s contention that the evidence was insufficient to convict her because petitioner’s counsel did not move for a judgment of acquittal at the close of all the evidence, in that: The record clearly shows that the evidence was legally insufficient to convict petitioner of the offense with which she was charged; petitioner did not waive her right not to be convicted except upon proof beyond a reasonable doubt; and the refusal of the court below to grant relief to petitioner under the circumstances denies her due process of law and the equal protection of the laws.” I (A) On July 11, 1983, Ennis (“appellant” or “petitioner”) was convicted by a jury in the Circuit Court for Wicomico County (Pollitt, J.) of arson. On November 26, 1984, 1 she was sentenced to a term of fifteen years imprisonment. She appealed from that judgment to the Court of Special Appeals which subsequently affirmed her conviction in an unreported, per curiam opinion.

Ennis v. State, No. 1622, September Term, 1984 (filed July 15, 1985). On October 24, 1985, this Court granted appellant’s petition for writ of certiorari to consider the question presented. ⁵⁸² (B) The facts giving rise to the appeal now before us are not in dispute. We herein recite those facts we deem necessary for proper resolution of the issues before us, as gleaned from the parties’ agreed summary of facts: At about 2:00 A.M. on Sunday, July 18, 1982, the residence rented by the appellant and her husband, located on Snow Hill Road in Salisbury, Maryland, caught fire and suffered extensive damage. Although appellant and her family were residents of the house at the time, no one was .at home when the fire was discovered.

Expert witnesses for the State (appellee) determined and testified that the fire had been deliberately set, and noted what in their opinion appeared to be an unusual dearth of clothing, food, furniture and other household items in the house. They also noted that an apparently inoperable Pinto station wagon, which had been extensively damaged during the fire, had been parked in an unusual position immediately next to the part of the house where the fire had broken out. Appellant and her husband returned to the residence sometime during the day of July 18 and claimed to have been out of town over the weekend. Appellant subsequently filed a claim on the insurance policy held by her for damage caused to the Pinto, and received payment.

She also filed a claim on the insurance policy held by her for various articles of personal property alleged to have been destroyed in the fire as well as for living expenses incurred as a result of the fire, but never filed a formal proof of loss. Consequently, she received no payment on this claim. At the conclusion of the State’s evidence at trial, appellant’s trial counsel moved for judgment of acquittal on the basis that “there has not been any evidence offered, circumstantial or otherwise, to connect this girl to any of the arson.” The court, denying the motion, responded: “There is no direct evidence, that is true, but there is circumstantial evidence from which the jury can find, if ⁵⁸³ they accept the state’s evidence, that she had a motive for doing it. There is an inference that can be drawn from all of the testimony, and I am assuming—I haven't seen the exhibits but I’m assuming from the exhibit through the adjuster of what is alleged to have been lost in the fire, that it is far in excess of what these witnesses have agreed as being in the house. * * * * * * So I would say that there is an inference from which the jury could draw whatever conclusion they wanted to.

Of course, there is no direct evidence, but I am going to deny the motion.” Appellant then introduced evidence on her own behalf but did not renew her motion for judgment of acquittal at the conclusion of all the evidence. II Appellant first asserts that the Court of Special Appeals erred in refusing to review her contention that the evidence sustaining her conviction was insufficient on the basis that counsel did not move for judgment of acquittal at the close of all the evidence. Specifically, she argues that the “right not to be convicted except upon proof beyond a reasonable doubt cannot be waived” by inaction of counsel in failing to renew a motion for judgment of acquittal. The State responds in part by contending that neither this Court nor the intermediate appellate court has authority to review appellant’s insufficiency claim by virtue of Art. 27, § 593 and Md.Rule 4-324. 2 We agree. ⁵⁸⁴ Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 593 provides: “In the trial of all criminal cases, the jury shall be the judges of law, as well as of fact, except that at the conclusion of the evidence for the State a motion for judgment of acquittal on one or more counts, or on one or more degrees of an offense, may be made by an accused on the ground that the evidence is insufficient in law to justify his conviction as to any such count or degree.

If the motion is denied, he may offer evidence on his own behalf without having reserved the right to do so, but by so doing, he withdraws his motion. The motion may be made at the close of all the evidence whether or not such motion was made at the conclusion of the evidence for the State. If the motion is denied the defendant may have a review of such ruling on appeal.” (emphasis supplied). Similarly, present Rule 4-324 provides: “(a) Generally.—A defendant may move for judgment of acquittal on one or more counts, or on one or more degrees of an offense which by law is divided into degrees, at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence.

The defendant shall state with particularity all reasons why the motion should be granted. No objection to the motion for judgment of acquittal shall be necessary. A defendant does not waive the right to make the motion by introducing evidence during the presentation of the State’s case. (b) Action by the Court.—If the court grants a motion for judgment of acquittal or determines on its own motion that a judgment of acquittal should be granted, it shall enter the judgment or direct the clerk to enter the judgment and to note that it has been entered by direction of the court.

The court shall specify each count or degree of an offense to which the judgment of acquittal applies. (c) Effect of Denial.—A defendant who moves for judgment of acquittal at the close of evidence offered by ⁵⁸⁵ the State may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. In so doing, the defendant withdraws the motion. ” (emphasis supplied). The statute and rule are unambiguous.

Together, the statute and the rule have been construed to preclude appellate courts of this state from entertaining a review of the sufficiency of the evidence, in a criminal case tried before a jury, where the defendant failed to move for judgment of acquittal at the close of all the evidence. In Tull v. State, 230 Md. 152 , 186 A.2d 205 (1962), an appeal from a conviction of first degree murder, there was no motion for judgment of acquittal at the conclusion of the case and there were no requests for instructions and no objections to the instructions given. The defendant’s counsel contended on appeal that unless this Court reviewed the case to determine the sufficiency of the evidence, the defendant would be denied due process. In rejecting this contention, Judge Henderson stated for the Court: “It is quite clear this Court will not review in the absence of a motion below.

Humphreys v. State, 227 Md. 115, 123 [ 175 A.2d 777 ]; Woodell v. State, 223 Md. 89, 91 [ 162 A.2d 468 ]. We are aware of no case supporting the appellant’s contention as to due process. In a number of recent decisions of this Court applying the principle, the Supreme Court has denied certiorari. See Kain v. State, 222 Md. 511 [ 161 A.2d 454 ], cert. den. 364 U.S. 874 [ 81 S.Ct. 118 , 5 L.Ed.2d 96 ]; Martel v. State, 221 Md. 294 [ 157 A.2d 437 ], cert. den. 363 U.S. 849 [ 80 S.Ct. 1628 , 4 L.Ed.2d 1732 ]; Reddick v. State, 219 Md. 95 [ 148 A.2d 384 ], cert. den. 360 U.S. 930 [ 79 S.Ct. 1448 , 3 L.Ed.2d 1544 ]; Jackson v. State, 214 Md. 454 [ 135 A.2d 638 ], cert. den. 356 U.S. 940 [ 78 S.Ct. 784 , 2 L.Ed.2d 816 ].

Moreover, Rule 755 of the Maryland Rules is similar to Rule 29 of the Federal Rules of Criminal Procedure. It has been held in at least two Federal cases that failure to interpose the motion is fatal to review. Corbin v. United States, ⁵⁸⁶ 253 F.2d 646 (C.A. 10th); Picciurro v. United States, 250 F.2d 585 (C.A.8th). We discussed the point of due process in Woodell v. State, supra, although there the attack was directed at the alleged incompetence of court appointed counsel in failing to make the motion.

See also Giles v. State, 229 Md. 370, 382 [ 183 A.2d 359 ] et seq.” Id. at 155, 186 A.2d at 207 . Wersten v. State, 228 Md. 226 , 179 A.2d 364 (1962), aff'd on other grounds, 232 Md. 164 , 192 A.2d 286 (1963) involved an appeal from a judgment convicting the defendant of breaking and entering with intent to commit grand larceny and committing grand larceny. In dismissing defendant’s claim that the State failed to prove ownership of the property broken into, and that stolen, as laid in the indictment, the Court noted, “[h]owever, this was a jury trial and no motion for judgment of acquittal was made; hence we are not at liberty to pass upon the sufficiency of the evidence. Maryland Rule 755b; Briley v. State, 212 Md. 445 , 129 A.2d 689 .” Id. at 229, 179 A.2d at 366 .

In Lotharp v. State, 231 Md. 239 , 189 A.2d 652 (1963), the appellant was convicted of a homicide by a jury. On appeal, he only contended that the failure of counsel to move for a judgment of acquittal should not preclude him from having this Court review the sufficiency of the evidence to convict him of murder in the second degree. Our predecessors, in affirming appellant’s conviction, said “Since no motion for judgment of acquittal was made at any stage of the trial there can be no review of the sufficiency of the evidence on appeal. Under the provisions of § 5 of Art. XV of the Constitution of this State, Code (1957), Art. 27, § 593, and Maryland Rule 755, an appellate review of the sufficiency of the evidence in a criminal case tried by a jury is predicated on the refusal of the trial court to grant a motion for judgment of acquittal.

Humphreys v. State, 227 Md. 115 , 175 A.2d 777 ; Ledbetter v. State, 224 Md. 271 , 167 A.2d 596 . See also Stevens v. State, 230 Md. 47 , 185 A.2d 194 . The judgment must therefore be affirmed.” ⁵⁸⁷ Id. at 240, 189 A.2d at 653 . See additionally Kenney v. State, 62 Md.App. 555, 568 , 490 A.2d 738 (1985); Cooper v. State, 44 Md.App. 59, 68 , 407 A.2d 756 (1979); McClelland v. State, 5 Md.App. 450, 455-56 , 247 A.2d 731 (1968) (Court may entertain issue in jury case only upon denial of motion by lower court); Magness v. State, 2 Md.App. 320, 324 , 234 A.2d 481 (1967); see generally Brooks v. State, 299 Md. 146, 150 , 472 A.2d 981 (1984).

In the instant case, appellant moved for judgment of acquittal at the close of the State’s case. That motion was denied. Following that denial, the appellant put on her case. However, she failed to renew her motion for judgment of acquittal at the close of all the evidence.

Her failure to do so effectively precluded the trial court from considering her insufficiency contention. Consequently, there was nothing for the Court of Special Appeals to consider; similarly, there is nothing for us to consider here. Art. 27, § 593; Md. Rule 4-324. See Tull and Lotharp, supra.

Undaunted, appellant argues, relying in part on Jackson v. Virginia, 443 U.S 307, 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), that her “right” of appellate review cannot be waived on the basis that her counsel committed a procedural default in failing to renew the motion at the close of all the evidence. She concludes that Jackson, as well as In Re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), “point ineluctably to the conclusion that the right not to be convicted except upon proof beyond a reasonable doubt is a fundamental constitutional right of a type such that its waiver can only be found in a showing that the accused himself, with full knowledge of the right, intentionally relinquished it.” We think appellant’s conclusion concludes too much. Not only are we unable to view the instant appeal as one concerning appellant’s right not to be convicted except upon proof beyond a reasonable doubt, but we are equally convinced that there has been no waiver of that ⁵⁸⁸ right. 3 Rather, the appeal before us contemplates this Court’s authority [as well as the authority of the intermediate appellate court] to review a contention by an accused that the evidence sustaining his conviction is insufficient at law. That is, we conclude a clear distinction exists between the question of whether we have the authority to review insufficiency contentions and the question of whether an accused has been convicted by proof beyond a reasonable doubt.

It is this distinction which renders appellant’s argument unpersuasive and her reliance on Jackson meritless. In Jackson, the Supreme Court considered a claim that, under Winship, 397 U.S. 358 , 90 S.Ct. 1068 , a federal habeas corpus court must consider not whether there was any evidence to support a state court conviction, but whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt. The petitioner brought a federal habeas corpus proceeding challenging his state conviction of first degree murder. He claimed that the United States District Court for the Eastern District of Virginia and the Court of Appeals for the Fourth Circuit were in error in not recognizing that the question to be decided was whether any rational fact finder could have concluded beyond a reasonable doubt that the killing for which petitioner was convicted was premeditated.

That claim went to the basic nature of the constitutional right recognized in Winship. 443 U.S. at 313 , 99 S.Ct. at 2786 . 4 ⁵⁸⁹ We think a closer reading of Jackson makes it evident that the Supreme Court was not faced with the issue of nor intimated an opinion as to whether a state legislature or a state’s highest court could promulgate and recognize statutes or procedural rules necessary to ensure appellate review of an accused’s insufficiency contention. Instead, the Court inquired into the narrow question of what standard was to be applied in a federal habeas corpus proceeding in which a claim is made that the accused has been convicted in a state court upon insufficient proof. That question is far different from the question now before us. As we have noted, we are not here faced with allegations that an improper standard of proof was applied or instructed at trial below, nor need we analyze whether the State sustained its burden of proof in convicting the appellant of the charges rendered against her.

This is so because appellant’s right not to be convicted except upon proof beyond a reasonable doubt remained intact and undisturbed throughout her trial. What became victim of counsel’s failure to move for judgment of acquittal at the end of the case was only appellant’s ability to invoke the authority of the appellate courts of this State to entertain review of her insufficiency contention. Of course, whether an appellate court of this State can entertain review of evidentiary sufficiency in criminal trials depends on whether certain specific and unambiguous procedural prerequisites have been met. See our discussion, supra.

As we have already made clear, failure to renew the requisite motion effectively withdraws our authority to consider an insufficiency contention. Additionally, we recognize that an accused’s “right” to invoke appellate review of the sufficiency of the evidence sustaining his criminal conviction is circumscribed by state constitutional, legislative and procedural guidelines. ⁵⁹⁰ In sum, appellant’s failure to move for judgment of acquittal at the close of all the evidence at trial bars appellate review of her insufficiency contention. Tull and Lotharp, supra. Had