Jackson v. State

BISHOP, Judge. Michael James Jackson, the appellant, brings this consolidated appeal following his convictions in the Circuit Court for Anne Arundel County in two separate cases. In the first case, a jury convicted appellant of a first degree sexual offense, a second degree sexual offense, burglary, and assault with intent to rape. The court merged the conviction for the second degree sexual offense into the conviction for the first degree sexual offense and sentenced appellant to life imprisonment.

It imposed a 15 year sentence, to run consecutively, for burglary and a 15 year sentence, to run concurrently with the burglary sentence, for assault with intent to rape. In the second case, the court convicted appellant, on an agreed statement of facts, of assault and ³⁰⁸ battery and breaking and entering. The court imposed sentences of five years for assault and battery and 18 months for breaking and entering, to run concurrently with each other but consecutively to the sentences in the previous case. Issues Appellant presents five questions in this appeal.

In the first case, he asks: I. “Did the trial court err in reversing its granting of a motion for judgment of acquittal on count ten charging assault with intent to rape?” II. “Did the trial court err in permitting [a police detective] to testify about statements made to him by [a witness for the defense]?” III. “Did the trial court err in allowing [the State’s expert witness in forensic chemistry] to give an opinion on population genetics?” IV. “Did the trial court err in restricting [the testimony of an expert witness for the defense]?”; and V. In both cases, were erroneous rulings issued regarding DNA evidence? We answer all five questions in the negative and affirm the judgments of the trial courts. Facts The evidence disclosed that appellant’s convictions in the first case stem from an attack upon the sister of appellant’s former wife in the victim’s home late one night, in February of 1988. The victim’s husband was at work and she was alone with her two young children when appellant forced open the front door of the home and went straight to the victim’s bedroom.

There, he kicked the victim, beat her with his fists, and forced her to perform fellatio upon him. Appellant was not arrested until nearly a year and a half later. The victim was unable to identify appellant as her attacker, but her young son was able to do so. Moreover, expert testimony established that DNA samples taken from ³⁰⁹ semen found in the victim's hair and on her nightgown matched that of the appellant.

The attack that was the subject of the second trial occurred more than two years later, in May of 1990. According to the agreed statement of facts offered at appellant’s court trial, a different victim, who lived in appellant’s neighborhood, was opening her door early one morning to let her dog inside when a man burst through the door and punched her in the face. The victim was able to grab a pair of scissors, with which she stabbed the attacker in the face. The attacker then ran away.

Three days later, appellant went to the police station to speak with officers regarding an unrelated matter. An officer noticed that appellant had several puncture wounds on his face. DNA samples taken from blood found in the victim’s home matched appellant’s DNA. Discussion I Motion for Judgment of Acquittal At the close of the State’s case in the first trial, defense counsel moved for judgment of acquittal as to each and every count.

The only argument counsel presented, however, pertained to counts four, five, eight, and nine, which involved, respectively, assault and battery, assault, attempted first degree rape, and attempted second degree rape. Counsel contended, in essence, that because all four crimes were misdemeanors “not made punishable by confinement in the penitentiary by statute,” they were each subject to the one year statute of limitations set forth in Md.Cts. & Jud.Proc.Code Ann. § 5-106(a). Counsel observed that charges had not been brought against appellant within one year of the incident and argued that, therefore, appellant was entitled to “judgment of acquittal.” The court took a brief recess to consider the argument. Upon its return, the court announced that it was granting the motion as to counts four, five, eight, nine, and ten. ³¹⁰ When the State's attorney pointed out that defense counsel had not made a limitations argument as to count ten, and that the count involved assault with intent to rape, a statutory felony made punishable by statute with imprisonment, the court recanted its ruling as to that count.

See Md.Ann. Code art. 27, § 12. At the close of all evidence, when defense counsel renewed his motion for judgment of acquittal, the court reiterated that it had earlier denied the motion as to count ten. The court explained that it had mistakenly believed that the count involved a misdemeanor subject to the one year statute of limitations, but that “I immediately recognized that it was not a misdemeanor but a separate statutory felony, and of course the State pointed it out to me and I corrected myself.” The court admitted that it had not researched count ten during the recess and that it had included count ten within the misdemeanor category simply because of its title and position. The court added: “[Tjhere was no question in my mind that as to sufficiency of the evidence with regard to all the counts, including count 10, was adequate.” Appellant now argues that by changing its ruling on the “motion for judgment of acquittal” made at the close of the State’s case, the court violated the prohibition against double jeopardy.

In making this argument, appellant relies on Pugh v. State, 271 Md. 701 , 319 A.2d 542 (1974). In Pugh , the trial judge announced a verdict of not guilty at the close of the case, only to change his mind moments thereafter and announce that the defendant was, in fact, guilty. The Court of Appeals reversed the conviction, explaining that the trial judge’s actions were barred by double jeopardy principles. The Court explained: “From the earliest days, it has been clear that once a verdict of not guilty has been rendered at ... a criminal trial, that verdict is final and cannot be set aside[,]” regardless of “whether the acquittal was based on a mistake of law or a mistake of fact.” Id. at 705 , 319 A.2d 542 ; State v. Shields, 49 Md. 301, 333 (1878); See Fong Foo v. United States, 369 U.S. 141, 143 , 82 S.Ct. 671, 672 , 7 L.Ed.2d 629 (1962) (acquittal, although based ³¹¹ upon “egregiously erroneous foundation”, is final); Daff v. State, 317 Md. 678, 683 , 566 A.2d 120 (1989) (verdict of acquittal may not be reviewed without violating double jeopardy); Brooks v. State, 299 Md. 146, 154 , 472 A.2d 981 (1984) (double jeopardy bars re-examination of granted motion for judgment of acquittal).

The fatal flaw in appellant’s argument is that, despite the label applied by the trial court to its action, the court never actually granted judgment of acquittal as to count ten or any of the other counts. The court’s action can more accurately be described as a dismissal of the counts. See generally Smalis v. Pennsylvania, 476 U.S. 140 , 144 n. 5, 106 S.Ct. 1745 , 1748 n. 5, 90 L.Ed.2d 116 (1986) (citing United States v. Scott, 437 U.S. 82, 96 , 98 S.Ct. 2187, 2196 , 57 L.Ed.2d 65 (1978) (“the trial judge’s characterization of his own action cannot control the classification of the action”) (quoting United States v. Jorn, 400 U.S. 470 , 478 n. 7, 91 S.Ct. 547 , 553 n. 7, 27 L.Ed.2d 543 (1971))). The dismissal was granted on a motion made on the ground that the court lacked jurisdiction because the statute of limitations had expired.

In contrast, “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.” Md.Ann.Code art. 27, § 593. See Robinson v. State, 20 Md.App. 450, 452 , 316 A.2d 268 , cert. denied, 272 Md. 747 (1974) (“Art. 27, § 593 makes clear that a motion for judgment of acquittal is predicated upon the legal sufficiency of the evidence to convict”); Smalis, 476 U.S. at 142 , 106 S.Ct. at 1747 (a judgment based upon the insufficiency of the evidence is an acquittal for purposes of the Double Jeopardy Clause); Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978); Sanabria v. United States, 437 U.S. 54 , 98 S.Ct. 2170 , 57 L.Ed.2d 43 (1978). The court sub judice removed any doubt of the sufficiency of evidence on all counts when it stated that the evidence was adequate with regard to count ten. See Brooks, 299 Md. at 150 , 472 A.2d ³¹² 981 (if any relevant evidence exists which is legally sufficient to sustain conviction, the judge must deny motion for judgment of acquittal).

A motion for judgment of acquittal is an inappropriate vehicle for challenging counts on any ground other than “the legal sufficiency of the evidence to support a guilty verdict[.]” Vuitch v. State, 10 Md.App. 389, 396 , 271 A.2d 371 (1970), cert. denied, 261 Md. 729 , cert. denied, 404 U.S. 868 , 92 S.Ct. 44 , 30 L.Ed.2d 112 (1971) (where a defendant improperly attempted via a motion for judgment of acquittal to challenge the constitutionality of the statute under which the charges against him were brought). An acquittal is deemed final if a court already has jurisdiction to hear the evidence. See Block v. State, 286 Md. 266, 270 , 407 A.2d 320 (1979) (acquittal proceedings are “final ‘except for the purpose of ascertaining whether the ... court had jurisdiction of the person and subject matter’ ”). The defendant’s motion was based upon inadequate jurisdiction.

The erroneous action of the court may more properly be classified a dismissal for lack of jurisdiction as opposed to an acquittal on the grounds of insufficiency of evidence. The motion itself was inherently inconsistent. It requested a “Judgment of acquittal” on the lack of jurisdiction, an improper ground for the granting of an acquittal. Double jeopardy principles simply are not offended when the State is permitted to pursue a charge that has previously been terminated on the defendant’s own motion unless the termination amounted to an actual acquittal.

In United States v. Scott, 437 U.S. 82 , 98 S.Ct. 2187 , 57 L.Ed.2d 65 (1978), a case involving 18 U.S.C. 3731, which allows the Government to appeal except in cases where double jeopardy is implicated, the Court held that double jeopardy principles were not implicated where the prosecution appealed the lower court’s dismissal of counts against the defendant due to pretrial delay, even though the lower court mischaracterized the dismissal as a judgment of acquittal. “[A] defendant is acquitted only when ‘the ruling ³¹³ of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’ ” Id. at 97 , 98 S.Ct. at 2197 (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571 , 97 S.Ct. 1349, 1355 , 51 L.Ed.2d 642 (1977)); Smalis, 476 U.S. at 144 , 106 S.Ct. at 1748 (ruling on insufficiency of evidence is an acquittal under the Double Jeopardy Clause because it resolves some or all of the factual elements of the offense charged). The Scott court reasoned that a dismissal not based upon guilt or innocence results in a defendant being neither acquitted nor convicted. Therefore, similar to a defendant’s valued right to have his or her trial completed by a particular tribunal, the public has a valued right to “one complete opportunity to convict those who have violated its laws.” Scott, 437 U.S. at 98-100 , 98 S.Ct. at 2197 -2198 (citing Arizona v. Washington, 434 U.S. 497, 509 , 98 S.Ct. 824, 832 , 54 L.Ed.2d 717 (1978)); See Montana v. Hall, 481 U.S. 400, 402-403 , 107 S.Ct. 1825, 1826 , 95 L.Ed.2d 354 (1987) (citing United States v. Tateo, 377 U.S. 463, 466 , 84 S.Ct. 1587, 1589 , 12 L.Ed.2d 448 (1964)) (corresponding to an accused person’s right to a fair trial is societal interest in punishing the guilty); Jorn, 400 U.S. at 480 , 91 S.Ct. at 554-555 . The Scott Court adds that allowing appeals from mid-trial dismissals would advance public interest in assuring defendants are subject to just judgment on the merits of a case without the increased possibility of the innocent being found guilty, See Green v. United States, 355 U.S. 184, 188 , 78 S.Ct. 221, 223 , 2 L.Ed.2d 199 (1957) (retrial after an acquittal increases the risk of the Government, and its extensive resources, wearing down the defenses of an innocent person), because the defendant has not yet argued his or her case on the merits.

In Scott , the Court further stated: We think that ... the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cogniza ³¹⁴ ble under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. Scott, 437 U.S. at 98-99 , 98 S.Ct. at 2198 . Also, a defendant who, instead of obtaining a reversal on appeal, has the proceedings against him terminated by the trial court without any finding on his innocence or guilt has not been “deprived” of his valued right to go to the first jury; only the public has been deprived of its valued right to “one complete opportunity to convict those who have violated its laws.” No interest protected by the Double Jeopardy Clause is invaded when the Government is allowed to appeal and seek reversal of such a midtrial termination of the proceedings in a manner favorable to the defendant. Id. at 100 , 98 S.Ct. at 2198 (citations and footnote omitted).

Appellant does not — and, indeed, on this record cannot— contend that the trial court’s ruling in any way represented a resolution of factual issues in his favor. He simply was never acquitted of the crime charged in count ten because the court’s “acquittal” was not an intentionally rendered verdict based upon a conclusion drawn based on the merits of the case. The trial judge explicitly stated that there was no doubt, in his mind, that the evidence was sufficient to convict under count ten. The inclusion of count ten within the misdemeanor category was in the nature of a “slip of the tongue,” as the court itself admitted.

The court’s own admission of this slip removes any need for assumptions as to the intention of the court. See State v. Sayre, 314 Md. 559, 564 , 552 A.2d 553 (1989) (It is not easy to distinguish between an inadvertent slip of the tongue and a true change of mind without reading the mind of the judge.) Pugh distinguishes such a slip of the tongue as beyond the realm of an intentional rendering of a verdict required for Double Jeopardy Clause purposes. Pugh, 271 Md. at 706-707 , 319 A.2d 542 ; See Brooks, 299 Md. at 155 , 472 A.2d 981 (acquittal on insufficiency of the evidence is an intended decision as opposed to an inadvertent slip of the tongue). ³¹⁵ The trial court’s withdrawal of the ruling, therefore, did not subject appellant to double jeopardy. II Impeachment of Witness Appellant next complains that the trial court in the first case erroneously permitted the State to impeach a defense witness by introducing extrinsic evidence of a prior inconsistent statement.

The witness, who socialized with appellant on the evening before the attack upon the sister of appellant’s former wife, testified regarding the events of that evening. He told the court, among other things, that he, appellant, and another man, Yinnie Bales, went to a neighborhood tavern where appellant and Bales got into a fist fight with each other. Later, in the rebuttal portion of the case, the State recalled a police officer to the stand. Over defense counsel’s objection, the officer told the court that he had interviewed the witness more than one year after the attack.

Although the witness had then reported that Bales had gotten into a fight at the tavern, he had not mentioned appellant’s involvement in the fight. As a general rule, ³¹⁶ State v. Kidd, 281 Md. 32 , 46 n. 8, 375 A.2d 1105 , cert. denied, 434 U.S. 1002 , 98 S.Ct. 646 , 54 L.Ed.2d 498 (1977) (citations omitted). Appellant does not contend that the impeachment related to “collateral, irrelevant, or immaterial” facts. Id.

He contends only that the State failed to cross-examine the witness as to when and where the prior inconsistent statement was made, and that, as a result, the witness “had no frame of reference for remembering or denying having made such [a] statement[ ].” ³¹⁵ the credit to be given a witness may be impeached by showing that he has made statements which contradict his testimony in respect to material facts (but not in respect to facts which are collateral, irrelevant, or immaterial), provided a proper foundation has been laid____ The foundation is laid by interrogating the witness as to when, the place at which, and the person to whom such contradictory statements were made. This is but fair and just in order that the witness may be enabled to refresh his recollection in regard to such statements, and be afforded the opportunity of making such explanation as he may deem necessary and proper____ If the witness denies making the designated statement or asserts that he does not remember whether he made it, the foundation contemplated by the general rule for the introduction of the statement has been satisfied____ ³¹⁶ A review of the record reveals that the witness was, in fact, thoroughly cross-examined regarding the prior inconsistent statement before the officer was recalled to the stand. The State’s attorney first asked the witness: “Did there come a time when