Jackson v. State

WILNER, Judge. The issue before us is whether the Circuit Court for Baltimore County erred in denying petitioner’s motion for new trial, based on newly discovered evidence. Petitioner’s complaint is not that the motion should have been granted, but that it should not have been denied without a hearing. At our request, she and the State have also addressed the question of whether the court was authorized to act on the motion while her appeal from the judgment of conviction was pending in the Court of Special Appeals.

We find merit in the issue she raised, but none in the issue we raised. Petitioner was entitled to a hearing, and we shall direct that the case be remanded so that she can have one. ⁶¹⁵ BACKGROUND After a non-jury trial, petitioner was convicted of first degree felony murder, robbery with a deadly weapon, and several lesser included offenses, for which she was sentenced to life imprisonment. The victim was 73-year old Claude Bowlin, whom the 24-year old petitioner claimed as a friend. Bowlin, a widower who lived alone, frequently gave petitioner money to support her cocaine addiction.

Petitioner visited Mr. Bowlin on a weekly basis, to get money for drugs and to perform sexual favors for him. Petitioner was also involved in a romantic relationship with Corey Williams, a co-defendant tried separately. At trial, the State offered substantial evidence to show that, on the evening of August 17, 1997, pursuant to a common scheme between petitioner and Williams to steal from Bowlin, petitioner went to Bowlin’s home, that she and Bowlin retired to Bowlin’s bedroom where they undressed and engaged in sexual acts, that while Bowlin was so distracted, Williams entered the house, came up to the bedroom, and repeatedly bashed Bowlin in the head with a ceramic beer stein, that either Williams or petitioner gagged Bowlin with a shirt sleeve, that Williams then stole a VCR and a CD player, that petitioner and Williams left together, that petitioner sold the items taken by Williams, and that petitioner and Williams used the proceeds to buy more drugs. Bowlin died from a combination of the blunt blows and cuts to the head and asphyxia, the latter caused by the gag stuffed into his mouth and across his face.

At trial, petitioner essentially conceded that she agreed to distract Bowlin so that Williams could enter the house undetected and steal items therefrom, but she maintained that she had no intent to harm Bowlin. She claimed that she was surprised when Williams appeared in the bedroom and began beating Bowlin. She denied being the one who gagged Bowlin, though she admitted that she got a towel and put it over Bowlin’s face in order to stop the bleeding or clean up the blood. 1 In arguing for ⁶¹⁶ acquittal, she asserted that (1) there was no evidence that she killed Bowlin, (2) she acted under duress from Williams, (3) the murder was essentially a frolic of Williams and not in furtherance of anything she planned, (4) there was no evidence of a robbery, and (5) to the extent the State relied upon a burglary as the underlying felony, there was insufficient evidence of a breaking. 2 The court rejected all of those arguments and found that Williams, in consort with petitioner, did commit a burglary by opening a closed door to enter the house for the purpose of stealing, that there was also a robbery with a deadly weapon, and that there was no duress. Petitioner promptly filed a motion for new trial, raising all of the arguments made at trial and, relying on the recently filed opinion of the Court of Special Appeals in Stouffer v. State, 118 Md.App. 590 , 703 A.2d 861 (1997), aff'd in part, rev’d in part, 352 Md. 97 , 721 A.2d 207 (1998), claimed that the murder was not really in furtherance of the alleged burglary but was a crime of passion committed entirely by Williams.

The court delayed consideration of that motion, and, concomitantly, of sentencing petitioner until the completion of Williams’s trial, which occurred in May, 1998. 3 At a hearing conducted on July 16, 1998, at which the State reminded the court of evidence showing that Mr. Bowlin’s drawers had been ⁶¹⁷ ransacked and items in the room moved around, indicating a search for money and thus an intended theft, the court rejected all of petitioner’s arguments. In the course of doing so, it noted that Mr. Bowlin died not just from the blows administered by Williams but also from asphyxiation, and, although it had made no finding on the matter when announcing its verdict, declared that “[s]he’s the one that stuck the gag in his mouth because she didn’t want the noise.” The court concluded that “this is as clearly a murder committed in the furtherance of a felony as I think you can possibly have.” Immediately following the denial of the motion, the court imposed sentence, and, the next day, petitioner noted an appeal to the Court of Special Appeals. In that appeal she complained that (1) the trial court refused to admit certain letters sent to petitioner by Williams in which Williams allegedly characterized himself as a “jealous boyfriend that acted in a fit of rage,” letters which would presumably support her notion that Williams committed the killing out of jealousy, rather than in furtherance of a burglary or robbery, and (2) under Stouffer , the evidence was insufficient to “show a direct, causal connection between the murder and the taking of Bowlin’s property.” On November 10, 1998, while both her appeal and that of Williams were pending in the Court of Special Appeals, petitioner filed another motion for new trial, based on newly discovered evidence. The newly discovered evidence was a handwritten note from Williams, dated September 23, 1998, admitting that he gagged Bowlin, that petitioner “had nothing to do with the gagging of Mr. Claude Bowlin,” and that he was “willing to take the stand and [admit] my guilt.” That statement, she averred, constituted newly discovered evidence because it was not in existence prior to September, 1998.

She asked, as relief, that the court order a new trial, that it re-sentence petitioner, and that it schedule the matter “for an immediate hearing.” The State, in response, characterized the “admission” made by Williams after his own conviction and sentencing as merely “an attempt at gallantry” not sufficient ⁶¹⁸ to constitute newly discovered evidence that would have a substantial likelihood of changing the outcome of the trial. Despite petitioner’s request for a hearing, the court, on December 14,1998, denied the motion without a hearing. In a brief order, it said that it had considered the motion and the State’s answer and reviewed its notes of the trial and disposition, and, declaring “no hearing being required,” denied the motion. Petitioner filed an appeal from that ruling, raising in the Court of Special Appeals the single complaint that the trial court erred in denying the motion without a hearing.

On April 14, 1999, the Court of Special Appeals acted in the first appeal. In an unreported opinion, it affirmed the judgments of conviction, finding no merit in either of the two issues raised by petitioner in that appeal. As to the claimed evidentiary insufficiency, the court held that the evidence “was more than sufficient to sustain the trial court’s decision” and that “[a]ny rational trier of fact could have found appellant guilty of felony murder beyond a reasonable doubt.” Jackson v. State, No. 1056, September Term, 1998, filed April 14, 1999, at 6. On July 23, 1999, the intermediate appellate court decided the second appeal and affirmed the order denying petitioner’s motion for new trial.

Jackson v. State, No. 1919, September, Term 1998, filed July 23, 1999. In its unreported opinion, the court agreed that the issue of whether petitioner was entitled to a hearing was governed by Maryland Rule 4-331(e). Rule 4-331(a) permits a motion for new trial to be made within 10 days after entry of a verdict. As noted, petitioner made such a motion, which was denied.

Rule 4—331(c), in relevant part, permits a circuit court to grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered in time to move for new trial under Rule 4—331(a), if the motion is filed within one year after the later of imposition of sentence or receipt of the mandate from the Court of Special Appeals or this Court, if an appeal has been taken from the judgment. Rule 4-331(e) states, in relevant part, that, unless the motion is filed more ⁶¹⁹ than one year after the circuit court receives the mandate from this Court, which was not the case here, “[t]he court shall afford the defendant or counsel and the State’s Attorney an opportunity for a hearing on a motion filed under this Rule.” The Court of Special Appeals, somewhat contradictorily, we think, held, on the one hand, that “[ijndisputably, pursuant to the plain language of Rule 4-331(e), the trial court must afford the parties an opportunity for a hearing on the motion prior to ruling on the merits of the motion,” but, on the other, that “[ajffording the parties an opportunity for a hearing on a motion for new trial would be warranted upon a showing that the purported newly discovered evidence was not already known to appellant and that it could not have been discovered upon the exercise of due diligence.” Jackson v. State, No. 1919, September Term, 1998, filed July 23, 1999, at 5, 6. Though seemingly rejecting the State’s argument that Rule 4-331(e) should not be strictly construed, the court concluded, on it own, that there was nothing new in the second motion that could not have been raised in the first motion and, for that reason, found no error in the trial court’s denial of the motion without a hearing. DISCUSSION Timing of the Ruling on the Motion Petitioner’s first complaint is that the trial court was not authorized to act on her motion for new trial while her appeal from the judgments of conviction was pending in the Court of Special Appeals.

This is an issue that was not raised in the circuit court, in the Court of Special Appeals, or in petitioner’s petition for certiorañ. As we indicated, we added it on our own initiative in the order granting certiorari, and it is therefore addressed by the parties at our invitation. Petitioner acknowledges that the issue added by us is not a jurisdictional one—that the circuit court did have jurisdiction to act on the motion. That is a proper concession.

In and since Pulley v. State, 287 Md. 406 , 412 A.2d 1244 ⁶²⁰ (1980), we have made clear that a circuit court is not divested of fundamental jurisdiction to take post-judgment action in a case merely because an appeal is pending from the judgment. What the court may not do is to exercise that jurisdiction in a manner that affects either the subject matter of the appeal or the appellate proceeding itself—that, in effect, precludes or hampers the appellate court from acting on the matter before it. See In re Emileigh F., 355 Md. 198 , 733 A.2d 1103 (1999); State v. Peterson, 315 Md. 73 , 553 A.2d 672 (1989). Any post-judgment ruling by a circuit court that has that effect may be subject to reversal on appeal, but it is not void ab initio for lack of jurisdiction to enter it.

Responding to the issue we raised, petitioner argues that (1) in her appeal, she claimed that the evidence was legally insufficient to show that the murder was committed in furtherance of a felony; (2) if she prevailed on that claim, the murder conviction would have to be reversed and, under Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), she could not have been retried on that charge; (3) if the trial court, in the meanwhile, had granted her motion for new trial, she would have been retried; (4) a granting of her motion would have rendered moot her appeal by eliminating the final judgment necessary for appellate jurisdiction, thereby depriving her of her right to an absolute reversal of the judgment without retrial; and (5) although denial of the motion would clearly not have that effect, if the trial court could not properly grant the motion, it should not be able to deny it either. In the Federal system, this issue is dealt with directly by rule. Rule 33 of the Federal Rules of Criminal Procedure specifies that, when a motion for new trial based on newly discovered evidence is filed while an appeal is pending from the judgment of conviction, the court may grant the motion only on remand of the case from the appellate court. The Federal courts have interpreted the rule as permitting the court to deny the motion, notwithstanding the pendency of the appeal, but not to grant the motion absent a remand.

See United States v. Blanton, 697 F.2d 146 (6th Cir.1983); United ⁶²¹ States v. Coleman, 688 F.2d 663 (9th Cir.1982); United States v. Burns, 668 F.2d 855 (5th Cir.1982); United States v. Pullings, 321 F.2d 287 (7th Cir.1963), overruled on other grounds by United States v. White, 405 F.2d 838 (7th Cir.1969). The comparable Maryland Rule is not so specific. We need not consider in this appeal whether an order granting the motion for new trial would have been subject to reversal on the ground noted. That would, indeed, have presented some interesting issues, not the least of which would be whether petitioner could complain that, at her express urging, the trial court may have frustrated her appeal.

See State v. Peterson, supra, 315 Md. 73 , 553 A.2d 672 . Here, of course, because the motion was denied, there was no adverse impact at any time on the jurisdiction of the Court of Special Appeals or on its ability to resolve the issue then before it; denial of the motion eliminated any possible conflict with the appeal. We reject as unsound the assertion that, if the court was not authorized to grant the motion, it was equally unauthorized to deny it. That is tantamount to the extraordinary contention that, whenever a court is presented with a motion or other issue requiring a decision, it is unauthorized to make any ruling on the matter unless all possible rulings would be authorized.

No authority is cited for such a proposition, and we know of none that would support it. Accordingly, we find no