Hebron v. State

ROBERT M. BELL, Judge. At issue in this case is whether the proposition that a conviction based solely on circumstantial evidence cannot stand unless the circumstances are inconsistent with any reasonable hypothesis of innocence is a proper subject of jury instruction or simply a matter of evidentiary sufficiency. The Court of Special Appeals held that it is the latter. Hebron v. State, 92 Md.App. 508 , 608 A.2d 1291 , cert. granted, 328 Md. 462 , 615 A.2d 262 (1992).

We agree. I. The petitioner, Wayne Hebron, appeals his convictions, entered in the Circuit Court for Montgomery County, for breaking and entering a dwelling house, attempted breaking and entering, and destruction of property. At trial, two individuals who resided in the victim’s development testified. Although neither witnessed the breaking of the victim’s door frame, both identified the petitioner, in a line-up, as the driver of the car that was parked in the area just prior to the incident.

One witness testified that she saw the petitioner ²²² park the car near the victim’s home and, walking between two buildings, proceed in the direction of that home. She then heard a loud “bash bang” noise. About twenty seconds later, she saw the petitioner emerge from between the two buildings, get into his car, and drive away. The second witness could only testify to seeing the driver; she did not see him approach the building.

After the trial judge instructed the jury that, There are two types of evidence; direct and circumstantial. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. No greater degree of certainty is required of circumstantial evidence than of direct evidence. In reaching your verdict, you should weigh all the evidence presented, whether it be direct or circumstantial, the petitioner requested that it also be instructed that “If you can draw more than one reasonable inference from the circumstantial evidence, then [the petitioner] must be found not guilty.” The trial judge refused.

The jury having returned guilty verdicts, the petitioner was sentenced to three years imprisonment for breaking and entering and a concurrent sixty day term of imprisonment for destruction of property. 1 The Court of Special Appeals affirmed. This case is now before this Court pursuant to the writ of certiorari which we issued at the petitioner’s request.

II

Relying on the principle enunciated in West v. State, 312 Md. 197 , 539 A.2d 231 (1988), the petitioner argues that, in a case in which the evidence consists only of circumstantial evidence, a jury instruction on reasonable hypothesis of innocence should be propounded. Specifically, he maintains that, because a different standard is employed when determining ²²³ the appropriateness of a jury instruction than when weighing evidentiary sufficiency, the Court of Special Appeals erred in holding that the reasonable hypothesis of innocence principle is a matter of evidentiary sufficiency and not properly the subject of a jury instruction; determining whether a rational trier of fact could find proof beyond a reasonable doubt should not relieve the trial judge of the responsibility of properly instructing the jury. As the petitioner sees it, therefore, the question is whether Maryland Rule 4-325(c) 2 requires that a reasonable hypothesis of innocence instruction be propounded, not whether the evidence to support the conviction is sufficient. Rejecting the petitioner’s arguments, the State contends that such an instruction is confusing and wholly unnecessary, when, as here, the jury is properly instructed on the reasonable doubt standard.

Additionally, the State agrees with the intermediate appellate court that the circumstantial evidence principle is a rule of evidentiary sufficiency, a matter for determination by the judge, not the jury.

III

A. When it reviewed the case, on appeal, the Court of Special Appeals rejected the petitioner’s jury instruction argument. After examining the way direct and circumstantial evidence are treated in this State and analyzing the Supreme Court’s decision in Holland v. United States, 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954), the intermediate appellate court stated, ²²⁴ Equally cogent in our view is the fact that, under the language used in Wilson [v. State, 319 Md. 530 , 573 A.2d 831 (1990) ] and earlier cases, the issue raised by a case resting entirely on a single strand of circumstantial evidence is not one of reasonable doubt, which is for the jury to determine, but of evidentiary sufficiency, which is for the judge to determine. Wilson ... confirmed that a conviction based solely on a single strand of circumstantial evidence “is not to be sustained” unless the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence. This is, and always has been, a rule relating to evidentiary sufficiency. 92 Md.App. at 516-17 , 608 A.2d at 1296 .

The court went on to hold: [WJhere the defendant posits that the State’s evidence consists of a single strand of circumstantial evidence that is not inconsistent with a reasonable hypothesis of innocence, he is effectively charging that the evidence is legally insufficient. If that claim is made timely and properly, it is incumbent upon the judge to rule upon it as a matter of law, in the context of a motion for judgment of acquittal. If the motion is granted, of course, the count(s) to which it applies may not be submitted to the jury. If the motion is denied, the court must instruct on reasonable doubt, but should not supplement that instruction with any special focus on hypotheses arising from circumstantial evidence.

Id. at 519-20 , 608 A.2d at 1297 . B. It is well settled, in this State, that a conviction upon circumstantial evidence alone will not be sustained unless the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence. Wilson v. State, 319 Md. 530, 537 , 573 A.2d 831, 834 (1990); West v. State, 312 Md. 197, 211-12 , 539 A.2d 231, 238 (1988); Brown v. State, 222 Md. 290, 296 , 159 A.2d 844, 847 (1960); Vincent v. State, 220 Md. 232 , ²²⁵ 237, 151 A.2d 898, 901 (1959); Shelton v. State, 198 Md. 405, 411-412 , 84 A.2d 76, 80 (1951). This principle has often been the subject of jury instructions.

The rationale underlying the giving of the circumstantial evidence jury instruction requested here is the notion that circumstantial evidence is inherently suspicious and less trustworthy than direct evidence. Holland, 348 U.S. at 139-40 , 75 S.Ct. at 137 , 99 L.Ed. at 166. That proposition is not universally accepted. The Supreme Court of Washington, in State v. Gosby, 85 Wash.2d 758, 765-67 , 539 P.2d 680, 685 (1975), stated: ... whether direct evidence or circumstantial evidence is more trustworthy and probative depends upon the particular facts of the case and no generalizations realistically can be made that one class of evidence is per se more reliable than is the other class of evidence.

Obviously, since circumstantial evidence is not per se less reliable than is direct evidence, there is no need to give the multiple-hypothesis instruction when circumstantial evidence is involved. The Holland Court has also rejected it: There is some support for this type of instruction in the lower court decisions, but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect. Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result.

Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more. 348 U.S. at 139-40 , 75 S.Ct. at 137-38 , 99 L.Ed. at 166-67 (citations omitted).

The Holland rationale is now followed in ²²⁶ the federal courts, see United States v. Fiore, 821 F.2d 127, 128 (2d Cir.1987); United States v. Rodriguez, 808 F.2d 886, 890 (1st Cir.1986); United States v. Stone, 748 F.2d 361, 362 (6th Cir.1984), cert. denied, 498 U.S. 822 , 111 S.Ct. 71 , 112 L.Ed.2d 45 (1990); United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982), and has been embraced by a number of states. See Henry v. State, 298 A.2d 327 (Del.1972); State v. O’Connell, 275 N.W.2d 197 (Iowa 1979); Commonwealth v. Kinney, 12 Mass.App. 915 , 423 N.E.2d 1017 (1981); State v. Turnipseed, 297 N.W.2d 308 (Minn.1980); State v. Jenks, 61 Ohio St.3d 259 , 574 N.E.2d 492 (1991); Johnson v. State, 632 P.2d 1231 (Okl.Crim.1981); State v. Roddy, 401 A.2d 23 (R.I.1979); State v. Stokes, 299 S.C. 483 , 386 S.E.2d 241 (1989); State v. Eagle, 611 P.2d 1211 (Utah 1980); State v. Derouchie, 140 Vt. 437 , 440 A.2d 146 (1981). But see Roy v. State, 375 So.2d 1289 (Ala.Cr.App.1979); Mercer v. State, 169 Ga.App. 723 , 314 S.E.2d 729 (1984); State v. Holman, 109 Idaho 382 , 707 P.2d 493 (App.1985); Adams v. State, 542 N.E.2d 1362 (Ind.App.1989); Stringfellow v. State, 595 So.2d 1320 (Miss.1992); People v. Ford, 66 N.Y.2d 428 , 497 N.Y.S.2d 637 , 488 N.E.2d 458 (1985); State v. Alston, 35 N.C.App. 691 , 242 S.E.2d 523 (1978); State v. Smith, 178 W.Va. 104 , 358 S.E.2d 188 (1987); State v. Poellinger, 153 Wis.2d 493 , 451 N.W.2d 752 (1990). C. Maryland has long held that there is no difference between direct and circumstantial evidence.

Wiggins v. State, 324 Md. 551, 567 , 597 A.2d 1359, 1367 (1991); Wilson, 319 Md. at 536 , 573 A.2d at 834 ; West, 312 Md. at 211-12 , 539 A.2d at 238 ; Pressley v. State, 295 Md. 143, 148-49 , 454 A.2d 347, 383-84 (1983); Gilmore v. State, 263 Md. 268, 292-93, 283 A.2d 371, 383-84 (1971), vacated in part, Gilmore v. Maryland, 408 U.S. 940 , 92 S.Ct. 2876 , 33 L.Ed.2d 763 (1972). In the latter case, we stated the proposition thusly: “The law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial ²²⁷ than when it is direct, for in either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused.” Gilmore, 263 Md. at 292 , 283 A.2d at 383 , quoting Nichols v. State, 5 Md.App. 340, 350 , 247 A.2d 722, 728 (1968), cert. denied, 252 Md. 735 (1969). In that case, the Court concluded that the evidence, which was solely circumstantial, was such as to exclude any reasonable hypothesis or theory of innocence.

The Court then opined: “ ‘[Cjircumstantial evidence need not be such that no possible theory other than guilt can stand.... It is not necessary that the circumstantial evidence exclude every possibility of the defendant’s innocence, or produce an absolute certainty in the minds of the jurors. The rule does not require that the jury be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant’s guilt.’ 3 Wharton’s Criminal Evidence (12th Ed.1955) § 980, p. 477. While it must afford the basis for an inference of guilt beyond a reasonable doubt, it is not necessary that each circumstance, standing alone, be sufficient to establish guilt, but the circumstances are to be considered collectively. 1 Underhill’s Criminal Evidence (5th Ed.1956) § 17, p. 23 and p. 25.” 263 Md. at 293 , 283 A.2d at 384 , quoting Nichols, 5 Md.App. at 351 , 247 A.2d at 729 .

See also In re Bennett, 301 Md. 517, 530-31 , 483 A.2d 1242, 1248-49 (1984); Bowers v. State, 298 Md. 115, 154-55 , 468 A.2d 101, 121-22 (1983). In Pressley , a case involving but one strand of circumstantial evidence, 295 Md. at 150 , 454 A.2d at 350 , the defendant urged that, in the case of circumstantial evidence consisting of a number of disconnected and independent facts, each fact must be proved beyond a reasonable doubt. The Court rejected the argument, noting that, where that situation exists, “[cjircumstantial evidence is not like a chain which falls when its weakest link is broken, but is like a cable. The strength of the cable, as stated in Ex parte Hayes, 6 Okla.Crim. [321,] 333[-34], 118 Pac. [609,] 614 [(1911)]: ²²⁸ ‘does not depend upon one strand, but is made up of a union and combination of the strength of all its strands.

No one wire in the cable that supports the suspension bridge across Niagara Falls could stand much weight, but when these different strands are all combined together, they support a structure which is capable of sustaining the weight of the heaviest engines and trains. We therefore think it is erroneous to speak of circumstantial evidence as depending on links, for the truth is that in cases of circumstantial evidence each fact relied upon is simply considered as one of the strands and all of the facts relied upon should be treated as a cable.’ ” 295 Md. at 150 , 454 A.2d at 350 , quoting Lampitt v. State, 34 Wyo. 247, 267-68 , 242 P. 812, 818 (1926). Conversely, albeit only implicitly, the Court recognized that “[o]nly when there is ‘but one strand’ of evidence or successive links of evidence connecting the defendant to the crime must the trier of fact be satisfied beyond a reasonable doubt as to each link in the chain of circumstances necessary to establish the defendant’s guilt.” Wilson, 319 Md. at 536 , 573 A.2d at 834 . This is no more than a restatement - of the settled proposition that a finding of guilt cannot be based on evidence that equally supports an inference of innocence as well as of guilt.

The Court of Special Appeals was correct, therefore, see Hebron, 92 Md.App. at 515 , 608 A.2d at 1295 , when it concluded that where the circumstantial evidence consists of more than a single strand, the West proposition does not apply. Indeed, in that circumstance, “an instruction requiring the exclusion of reasonable hypothesis of innocence is not only unwarranted, but improper.” Id. This is so because, in such a case, the circumstances, taken together and viewed from the State’s perspective, are inconsistent with, although not absolutely dispositive of, the defendant’s innocence. A conviction may be sustained on the basis of a single strand of circumstantial evidence or successive links of circumstantial evidence.

Wilson, 319 Md. at 536 , 573 A.2d at 834 . It is only when that evidence is also consistent with a reasonable ²²⁹ hypothesis of innocence that it is insufficient. The question thus becomes when is a single strand or successive links of circumstantial evidence consistent both with guilt and innocence? Wilson is illustrative.

In that case, the defendant was convicted of stealing three rings from a room in a house that he had been hired to clean. On the day when the rings were discovered missing, the State’s evidence showed—the defendant having elected to remain silent and to present no evidence—that the defendant was one of at least seven people who had access to the rings, the other six of whom were either relatives of the owner of the rings or visitors. One of the visitors, the evidence revealed, used the bathroom which was located next door to the bedroom in which the rings were located. In considering the case, the trial judge acknowledged that he could find the defendant guilty if the facts did not permit a reasonable hypothesis consistent with the defendant’s innocence.

Concluding that it would be unreasonable to assume that one of the others having access to the rings, including the visitor, was a thief, the judge found the defendant guilty. He said: “Sure, there is another possible explanation. I don’t think there is another reasonable explanation.” 319 Md. at 535 , 573 A.2d at 833 . We reversed.

We noted first that the evidence of the defendant’s guilt was solely circumstantial—he was not seen stealing the rings; the rings were not found in his possession; he was not seen in the closet where the rings were kept or even in the bedroom, and no fingerprints belonging to the defendant were found in the closet or the bedroom. We also pointed out that authorized, but non-exclusive, presence at the scene of the crime, while a factor, and an important one, is not sufficient in itself to establish criminal agency. We concluded that the circumstantial evidence adduced did not exclude all reasonable hypotheses of the defendant’s innocence. The Court said: Considering the circumstantial evidence adduced in this case, we conclude that it would not permit a rational factfinder to find, beyond a reasonable doubt, that it was inconsis ²³⁰ tent with any reasonable hypothesis of Wilson’s innocence.

On the record before us, it was at least a reasonable hypothesis that someone in the house on March 10 other than Wilson took the rings. In this regard, the State did not present any evidence to negate such a hypothesis. It did not call Roller, Welch or Rate as witnesses to permit the trial judge to evaluate their activities on March 10, to assess their credibility, and to exclude them as suspects. The State might have presented evidence bearing on whether the cleaning service sent other workers to the residence on March 10.

It might have elicited testimony elaborating on the circumstances behind the missing fourth ring. In any case, the solely circumstantial evidence produced by the State was legally insufficient to sustain Wilson’s conviction. 319 Md. at 538 , 573 A.2d at 835 . West is also instructive. There, the defendant was convicted of robbery, assault with intent to rob, simple assault, and theft, principally on evidence that he attempted to cash a stolen money order.

In addition to that evidence, however, the evidence showed that the defendant entered the drugstore accompanied by another young man and there was testimony from the victim’s son that the defendant was not the person who snatched the victim’s purse. Relying on the additional evidence, the defendant challenged the propriety of inferring