Love v. State

MOYLAN, Judge. Every conceivable wrong occurring in the course of a criminal trial does not necessarily give rise to a corresponding remedy. A fortiori, it does not always trigger the particular remedy invoked by the defendant who has arguably suffered the wrong. The Motion for New Trial is one of the post-trial remedies.

It is by no means, however, a never-failing panacea, available whenever and however outraged justice may beckon. It is designed to correct some, but not all, flaws that may have marred a trial. It is limited, moreover, by rigid filing deadlines and other formal constraints. The appellant, Daniel Harlin Love, was originally convicted by a Prince George’s County jury, presided over by Judge James P. Salmon, of 1) armed robbery, 2) robbery, 3) assault with intent to avoid lawful apprehension, and 4) carrying openly a dangerous weapon.

The appellant was sentenced by Judge Salmon on October 4, 1989. After a variety of efforts at post-trial relief, 1 not here pertinent, the ⁴²⁴ appellant filed a Motion for New Trial. Following a hearing on May 14, 1992, Judge Salmon denied the Motion, not because he wished to but because, under the circumstances, he concluded he had no choice. The appellant appeals that denial of his Motion for New Trial, contending that Judge Salmon erroneously misconstrued the corrective latitude available to him.

It is undisputed that on February 5, 1989, the appellant stole several items of clothing from a Sears store located in the Landover Mall. It is beyond serious challenge that the appellant assaulted (at least by swinging at them) one or two of the store’s security agents on an adjacent parking lot in his attempt to avoid lawful apprehension. The thrust of the Motion for New Trial was that newly discovered evidence cast grave doubt on the jury’s verdict that the appellant possessed a deadly weapon and that the convictions for 1) armed robbery and 2) the open carrying of a dangerous weapon represented a serious miscarriage of justice. Two store security agents — Charles Edgar and Clarissa Hubbert — were involved in the attempted apprehension of the appellant.

As reflected in his trial testimony, Charles Edgar’s version of events placed a knife in the hands of the appellant. As reflected by her testimony at the hearing on the Motion for New Trial, Clarissa Hubbert’s version of events was that no knife was involved. She, however, was not called, either by the State or by the defense, to testify at the appellant’s trial. Notwithstanding the choice of a jury to hear the case, the trial itself was summary in the extreme.

Charles Edgar was the only witness. His direct examination took up only nine pages in the trial transcript; his cross-examination, but two. According to Charles Edgar’s testimony, the appellant took an assortment of clothes to a dressing room, put all of ⁴²⁵ them on his body at one time, and then attempted, thus sartorially bloated and ballooned, to walk out of the store without paying for any of the merchandise. Both Edgar and Clarissa Hubbert observed what was happening and followed the appellant onto the parking lot.

Edgar showed the appellant a badge and attempted to arrest him. The appellant stated he was not going to be arrested and swung his arm at the two guards. According to Edgar, the appellant’s elbow hit Clarissa Hubbert in the face. (In her later testimony at the post-trial hearing, Ms. Hubbert stated that she ducked and was not hit.) A tussle ensued between Charles Edgar and the appellant.

According to Edgar, he at one point tackled the appellant to the ground. (In her later testimony at the post-trial hearing, Ms. Hubbert stated that the appellant lost his balance but broke his fall with his hand and then regained balance without literally hitting the ground.) As the appellant ran toward his car, he at one point reached into his pants. Edgar testified that he feared the appellant was going to produce a weapon but also testified that no weapon was in fact ultimately forthcoming at that time. The appellant then jumped into an automobile occupied by another individual.

It was at that time, according to Edgar’s testimony, that the appellant reached down and produced a “locked blade Buck-type knife.” He described it as being nine or ten inches long. He stated that the appellant “waved the knife back and forth” in the direction of both himself and Ms. Hubbert. This was the sum total of the testimony about the knife. It is contained on just two pages of the transcript.

Indeed, the scant two pages of cross-examination of Charles Edgar by the defense did not probe or even allude to Edgar’s testimony about the knife. The defense put on no case at all. In her testimony at the hearing on the Motion for New Trial, Clarissa Hubbert stated that when the appellant jumped into the waiting automobile, both she and Charles Edgar were standing approximately twenty feet away with ⁴²⁶ the same ability to observe the appellant’s actions. She testified emphatically that she never saw a knife at any time.

These contradictory versions of events, primarily with respect to the presence of the knife, between the witness who testified at trial and the potential witness who did not was the exclusive predicate for the appellant’s Motion for New Trial. For the review at the appellate level of a decision of a trial judge either to grant or to deny a new trial motion, the observations of Judge Digges in Carlile v. Two Guys, 264 Md. 475, 477-478 , 287 A.2d 31 (1972), provide the proper perspective: “[A]ny hope for success on these claimed instances of error is misguided. There is probably no principle of law that rests on more decisions of this Court than the concept that a trial judgé’s granting or refusing a new trial — fully, partially, conditionally, or otherwise — is not reviewable on appeal except under the most extraordinary or compelling circumstances. This is true even though the trial judge’s decision is based on mistake or erroneous conclusions of law or fact.

Our adherence to this rule is unwavering and we do not find any extraordinary or compelling circumstances in the present case which would permit a review. In fact, this Court, in its long history, has never found such circumstances to exist.” (emphasis supplied). The Motion for New Trial in a criminal case, recognized by Md.Ann.Code art. 27, § 594 (1992), is controlled by the provisions of Maryland Rule 4-331. The Motion is available on three progressively narrower sets of grounds but over the course of three progressively longer time periods.

The shortest of time periods but the broadest of predicates is that provided by subsection (a): “Within Ten Days of Verdict. — On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial.” ⁴²⁷ The list of possible grounds for the granting of a new trial by the trial judge within ten days of the verdict is virtually open-ended. In State v. Devers and Webster, 260 Md. 360, 374 , 272 A.2d 794 (1971), the Court of Appeals quoted from Hochheimer, The Law of Crimes and Criminal Procedure § 184 at 209-210 (2d ed. 1904), in setting out an illustrative list of possible grounds: “The principal grounds for granting a new trial are, that the verdict was contrary to the evidence; newly discovered evidence; accident and surprise; misconduct of jurors or the officer having them in charge; bias and disqualification of jurors (disqualification not entitling to a new trial, however, if there was opportunity to challenge); misconduct or error of the judge; fraud or misconduct of the prosecution, e.g., abuse of argument.” Since that decision in 1971, the grounds for a new trial under this subsection have, indeed, been further expanded. It was the holding of State v. Devers and Webster that a new trial could be granted on grounds of evidentiary insufficiency only in the case where the evidence was so legally insufficient, as a matter of law, that it could not, even if believed totally and given maximum weight, support the verdict. Since that time, the decision in the case of In re Petition for Writ of Prohibition, 312 Md. 280 , 539 A.2d 664 (1988), has overruled that limiting provision of State v. Devers and Webster and empowered the trial judge to grant a new trial not simply when the evidence is legally insufficient as a matter of law but also when the verdict, in the judgment of the trial judge, is so against the weight of the evidence as to constitute a miscarriage of justice.

In re Petition for Writ of Prohibition, 312 Md. at 326 , 539 A.2d 664 . This broader latitude is in keeping with the provision of subsection (a) that a judge may order a new trial “in the interest of justice.” This broad base for awarding a new trial is tightly circumscribed by the timeliness requirement that the Motion be filed “within ten days after a verdict.” Indeed, until predecessor Maryland Rule 770 was amended in 1984, the ⁴²⁸ Motion was required to be filed within three days after the verdict. Trial judges, moreover, are not empowered to overlook the filing deadline. State v. Tull, 240 Md. 49, 52 , 212 A.2d 729 (1965); Giles v. State, 231 Md. 387, 388 , 190 A.2d 627 (1963); Ware v. State, 3 Md.App. 62, 65-66 , 237 A.2d 526 (1968).

In the case now before us, it is not subsection (a) on which the appellant relies. It would, of course, be unavailable to him because the verdict in this case was rendered on September 5, 1989 and the Motion for New Trial was filed on April 22, 1992. A narrower base for either revising a judgment or granting a new trial but one that is available over a longer period of time is that provided by subsection (b), which states, in pertinent part: “Revisory Power. — The court has revisory power and control over the judgment to set aside an unjust or improper verdict and grant a new trial: (2) in the circuit courts, on motion filed within 90 days after its imposition of sentence. Thereafter, the court has revisory power and control over the judgment in case of fraud, mistake, or irregularity.” In contrast with subsection (a), this power in a trial judge to set aside a verdict is generally available for ninety days rather than for ten days.

The triggering event, moreover, is a later one — the imposition of a sentence rather than the rendering of a verdict. In the case now before us, it is not subsection (b) on which the appellant relies. The sentence in this case was imposed on October 4, 1989 and the Motion for New Trial was filed on April 22, 1992. This was, furthermore, not a case where the judgment was contaminated by “fraud, mistake, or irregularity.” It is the third of the new trial provisions that is before us in this case.

This is a form of relief available over a far ⁴²⁹ more extended period of time, one year 2 rather than the ninety days available under subsection (b) or the ten days available under subsection (a). There is, moreover, the possibility of two triggering events — the imposition of sentence or the receipt of an appellate mandate — for the running of the one-year clock, and a defendant is permitted to take advantage of the more favorable. This form of relief, on the other hand, rests upon a far more narrow substantive base. Subsection (c) provides, in pertinent part: “Newly Discovered Evidence. — The court may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule: (2) in the circuit courts, on motion filed within one year after its imposition of sentence or its receipt of a mandate issued by the Court of Appeals or the [Court] of Special Appeals, whichever is later.” (emphasis supplied).

Let it be carefully noted that the exclusive predicate for new trial relief under subsection (c) is not merely “newly discovered evidence.” It is, rather, “newly discovered evidence which could not have been discovered by due diligence.” Even if, for stylistic reasons, we occasionally resort to the convenient shorthand form of “newly discovered evidence,” it is nonetheless implicit that an indispensable part of the definitional predicate for this form of relief is the further and invariable proviso: “which could not have been discovered by due diligence.” There has been almost no analysis of this sub-variety of new trial relief in the Maryland case law. Jones v. State, 16 Md.App. 472, 477 , 298 A.2d 483 , cert, denied 268 Md. 750 ⁴³⁰ (1973), has been virtually the Alpha and the Omega of local authority: “There must ordinarily be present and concur five verities, to wit: (a) The evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.” That discussion, moreover, is simply a quotation taken from Johnson v. United States, 32 F.2d 127, 130 (8th Cir.1929). We caution against further reliance upon Jones v. State’s quotation from a 1929 8th Circuit decision as the litmus test for a claim of newly discovered evidence. It does convey the general flavor of the subject, but it is flawed in several regards.

For starters, its statements of law are not completely áceurate. To qualify as “newly discovered evidence” under the provisions of Rule 4-331(c), it is not enough, as the quotation states, that the evidence have been “discovered since the trial,” Jones, 16 Md.App. at 477 , 298 A.2d 483 ; it is required, by the very terms of the Maryland Rule, that the evidence have been discovered more than ten days after a verdict so that it was no longer timely “to move for a new trial pursuant to section (a) of this Rule.” Indeed, Maryland’s pertinent time period of ten days following a verdict might well expire before the actual termination (including sentencing) of a trial, so that newly discovered evidence within the contemplation of Rule 4-331(c) would not satisfy the definition according to Jones v. State. Neither is it precise phraseology for the quotation from Jones v. State to assert that facts must be “alleged” from which the court may infer diligence on the part of the movant. Jones, 16 Md.App. at 477 , 298 A.2d 483 .

Allega ⁴³¹ tion is not the critical criterion. The moving party must establish to the satisfaction of the court that he acted with due diligence, quite aside from alleging it. The act of alleging is really beside the point. No exception can be taken to the next two statements from the quotation that the evidence “must be material” and that it “must not be merely cumulative or impeaching.” Id.

The final sub-criterion in the quotation is the requirement that “the newly discovered evidence would probably produce an acquittal.” Id. That is not now (if it ever was) good Maryland law. It is an accurate statement, however, of the majority view in the United States, generally known as “the Berry test,” taken from Berry v. Georgia, 10 Ga. 511, 526-527 (1851). The more lenient test from a defendant’s point of view, simply requiring that the newly discovered evidence “might” produce a different result, was known as “the Larrison test,” taken from the case of Larrison v. United States, 24 F.2d 82 (7th Cir.1928).

In Stevenson v. State, 299 Md. 297, 301-302 , 473 A.2d 450 (1984), the Court of Appeals concluded that it “need not decide which standard should apply.” See also Nicole Porter, Note, 14 U.Balt.L.Rev. 595 (1985). In Yorke v. State, 315 Md. 578 , 556 A.2d 230 (1989), however, the Court of Appeals opted to adopt an intermediate standard that fell somewhere between the Berry test and the Larrison test. It stated: “We appreciate that it is impossible to formulate a litmus type test that would come up with a ‘yea’ or ‘nay’ as to whether the new evidence would change the verdict. We favor, however, a standard that falls between ‘probable,’ which is less demanding than ‘beyond a reasonable doubt,’ and ‘might’ which is less stringent than probable.

We think that a workable standard is: The newly discovered evidence may well have produced a different result, that is, there was a substantial or significant possibility that the verdict of the trier of fact would have been affected.” ⁴³² Yorke, 315 Md. at 588 , 556 A.2d 230 . In three of five regards, then, Jones v. State is an inaccurate statement of Maryland law. Bench and bar are exceedingly ill-advised to continue to refer to it. An even more telling indictment of the Jones v. State quotation