Howell v. State

MOYLAN, Judge. The appellant, Burl Anderson Howell, was convicted by a Cecil County jury, of being an accessory after the fact to murder. Upon this appeal, he raises the following nine contentions: 1. That the trial judge erroneously failed to suppress his oral admissions; 2.

That the trial judge erroneously prevented him from impeaching a State’s witness with prior inconsistent statements; 3. That the trial judge erroneously permitted the State to impeach its own witness; 4. That the trial judge erred by failing to instruct the jury that if it believed the principal in the first degree had acted in self-defense, then there would be no underlying felonious homicide and the appellant could not be guilty as an accessory after the fact; 5. That the trial judge erred in permitting one David Linkey to testify for the State; ⁶⁷⁸ 6.

That the evidence was not legally sufficient to support the convictions; 7. That the appellant’s sentence was illegal; 8. That the appellant was impermissibly punished for asserting his right to appeal; and 9. That the appellant’s retrial in this case constituted double jeopardy.

We decline to consider the double jeopardy claim. The appellant failed utterly to raise this issue at the trial now under review and nothing is, therefore, preserved for appellate review. Md.Rule 1085. The succor he seeks in Carbaugh v. State, 294 Md. 323 , 449 A.2d 1153 (1982), is simply not to be found there.

That case established that the requirement of Md.Rule 736 a 1 that certain motions be raised pretrial lest they be deemed waived would not apply to all double jeopardy-related claims. To be sure, a casual reading of the opinion of this Court in Carbaugh v. State, 49 Md.App. 706 , 435 A.2d 116 (1981), coupled with its reversal by the Court of Appeals in Carbaugh v. State, 294 Md. 323 , 449 A.2d 1153 (1982), could lead the unwary to believe, as the appellant here urges, that a double jeopardy claim can be raised for the first time on appeal. A more careful reading, on the other hand, does not yield such an insidious conclusion. The five-and-one-half page opinion authored by Judge Thompson for this Court in Carbaugh v. State, 49 Md.App. 706 , 435 A.2d 116 (1981), dealt almost exclusively with the failure of the defendant in that case to raise the double jeopardy issue by way of pretrial motion under Md.Rule 736.

We held that such failure amounted to a waiver of the claim for purposes of subsequent appellate review. All of the legal analysis dealt with that issue, and that was the holding for which the case stood. Almost by way of passing afterthought, we concluded the opinion with the single sentence: “Also, the question was not presented in any manner to the trial judge and therefore is not before us under Md.Rule 1085.” 49 Md.App. at 711 , 435 A.2d 116 . ⁶⁷⁹ Other than one other issue not related to waiver or forfeiture and not here pertinent, the Court of Appeals granted certiorari to deal with the limited question: “1. Does failure to file a timely motion to dismiss pursuant to Maryland Rule 736 waive the defense of double jeopardy?” 294 Md. at 327 , 449 A.2d 1153 .

The Court of Appeals did not deal even remotely with the admittedly casual, albeit arguably alternative, holding of this Court that the failure to raise the double jeopardy issue at trial would preclude appellate review, even if the failure to raise it pretrial did not. The Court was not unaware of this “backstop” position that might have been, but was not, taken by the State, for it very carefully pointed out, “The State filed no cross-petition.” 294 Md. at 327 , 449 A.2d 1153 . The Court of Appeals rather treated our decision as having dealt with the following issue exclusively, as essentially it had: “The intermediate appellate court held that Rule 736 a. 1. encompassed a double jeopardy claim, and that Carbaugh’s failure to file a timely pre-trial motion under the rule constituted a complete waiver of his double jeopardy contention.” 294 Md. at 326 , 449 A.2d 1153 . A careful reading of the two opinions in conjunction, therefore, yields the more narrow construction that the only thing considered by the Court of Appeals and the only thing held by the Court of Appeals was that the failure to raise certain double jeopardy issues by way of pretrial motion under Md.Rule 736 would not ipso facto bar appellate review: “Nevertheless, at least absent a knowing and intelligent relinquishment of the claim, the double jeopardy claim may be raised on an appeal from the final judgment regardless of whether a pretrial motion had been made.” 294 Md. at 328 , 449 A.2d 1153 (Emphasis supplied).

Md.Rule 1085 and its counterpart, Md.Rule 885, provide, in pertinent part: “This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court. . . . ” ⁶⁸⁰ The two extraordinary exemptions from that limitation, suggested by the adverb “ordinarily” within the limitation, deal exclusively with 1) points or questions of law presented to the court below even though not ruled upon and 2) the jurisdiction of the circuit court to hear the case. Neither of those exemptions is here involved. The sound philosophy embodied in this fundamental limitation upon the appellate function was thoughtfully discussed by Judge Powers in Braun v. Ford Motor Company, 32 Md.App. 545, 548-549 , 363 A.2d 562 (1976): “We know of no principle or practice under which a judgment of a trial court may be reversed or modified on appeal except for prejudicial error committed by the trial judge. It is a misuse of language to label as error any act or failure to act by a party, an attorney, a witness, a juror, or by anyone else other than the judge.

In other words, error in a trial court may be committed only by a judge, and only when he rules, or, in rare instances, fails to rule, on a question raised before him in the course of a trial, or in pretrial or post-trial proceedings. Appellate courts look only to the rulings made by a trial judge, or to his failure to act when action was required, to find reversible error. This philosophy finds expression throughout the appellate process and specifically in Maryland Rules 885 and 1085, which provide that the appellate courts will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court, and further by the judicially expressed rule that the appellate court will consider only contentions raised and argued in the briefs. See Fidelity & Deposit Co. v. Mattingly Lumber Co., 176 Md. 217 , 4 A.2d 447 (1939); Harmon v. State Roads Comm., 242 Md. 24 , 217 A.2d 513 (1966); Ricker v. Abrams, 263 Md. 509 , 283 A.2d 583 (1971).” (Emphasis supplied).

Indeed, where the two aforementioned exemptions from the limitation are not involved, the appellate court is with ⁶⁸¹ out power to consider the issue. In discussing the legislative source of the basic limitation, the Court of Appeals observed in Hamilton v. State, 127 Md. 312, 313 , 96 A. 523 (1916): “By section 9 of Article 5 of the Code this Court in civil cases has long been prevented from deciding on appeal any point or question which does not certainly appear by the record to have been tried and decided by the Court below; and this Court has held in Mitchell v. State, 82 Md. 527 [ 34 A. 246 ], that this section is applicable to criminal as well as civil cases.” In Medley v. State, 52 Md.App. 225 , 448 A.2d 363 (1982), Judge Wilner thoroughly traced the history of this “limitation on appellate review that is of long standing in Maryland.” 52 Md.App. at 230 , 448 A.2d 363 . He identified the source of the limitation as the Acts of 1825, ch. 117 and surveyed the undeviating adherence to that limitation by the Court of Appeals and by this Court alike. Representative statements of that adherence abound.

Thus, Judge Henderson in Iozzi v. State, 224 Md. 42, 46 , 166 A.2d 257 (1960), “In the absence of anything to show a request to the trial court or a ruling thereon, there is