Moosavi v. State

MOYLAN, Judge. A seemingly insignificant little case may sometimes provide revealing insight into the fundamental operation of our criminal justice system. This may be such a case. In any event, we seize this case as a vehicle through which to offer, interspersed with our formal legal holdings, some observations on the basic nature of appellate review of a criminal conviction.

The numbing reality of senseless and tragic civilian bombings over the last half-decade has so sensitized the national temper that even a passing allusion to a “bombing” or to “blowing up” something will, inevitably, trigger an immediate and decisive reaction. The danger, of course, is that once mobilized to react immediately and decisively, we sometimes overreact. The trigger can easily become a hair-trigger. Locating the almost indiscernible line between reaction and overreaction, moreover, is something that is, generally speaking, beyond the competence of legal rulings and must, in our juridical system, be assigned to the “sensing” or the “feeling” — the proverbial common sense — of lay jurors.

The Present Case The appellant, Mohammed Moosavi, was convicted by a Frederick County jury of making a false statement involving a bomb threat in contravention of Md.Code Ann. Art. 27, § 151A. On this appeal, he raises two contentions: ⁶⁸⁶ 1) The evidence was not legally sufficient to support the verdict; and 2) The trial judge erroneously permitted the State to call one Ginger Fogle as a rebuttal witness. Evidentiary Insufficiency: The Appellant’s Claim We would agree, if we could, with the appellant’s first contention that the evidence was not legally sufficient to support his conviction, but we would do so for a reason totally unrelated to the appellate contention raised in that regard. Before turning to the very different reason why we think the evidence did not support the verdict, we deem it appropriate, for illustrative purposes, to explain in some detail why we reject the appellant’s specific argument in that regard.

His position is that the total context of the incident should have made it clear that he never intended to bomb the Chevy Chase Bank or any of its branches and that any words he might have spoken even alluding to such a possibility were indisputably nothing more than the undifferentiated venting of anger and frustration. The appellant seems to accept the fact that he was charged with threatening to bomb the bank and confines his challenge to the legal sufficiency of the State’s case to the absence of adequate proof of any actual intent or criminal mens rea. A Challenge To The Adequacy of Persuasion Is Not A Challenge To The Adequacy of Production Before turning to the potentially dispositive issue which the appellant did not raise on appeal, we will, for the sake of argument and just for the moment, accept the context in which he raises his challenge and explain why his argument cannot prevail. In a lay sense, his argument is actually very persuasive.

What he overlooks is that the questions of what is persuasive and who should win the persuasion war are not appellate concerns. Owens-Corning v. Garrett, 343 Md. 500, 521-22 , 682 A.2d 1143 (1996) (‘We refuse to reevaluate the evidence and invade the territory of the jury.”) ⁶⁸⁷ From the point of view of the appellant’s argument based on persuasiveness, it is unfortunate that he was not able to try the case before the three judges who are the members of this appellate panel. We would probably have been a good jury for him. We were not in the courtroom, of course, and had no opportunity to observe the demeanor and the manner of testifying of the witnesses.

That, along with the austerely limited nature of the appellate function in assessing evidence, is the reason why our opinion as to what probably happened is of no legal significance. This is why we admonish appellate lawyers not to waste time making jury arguments to us, for what we coincidentally believe happened on the street or in the alley does not matter. Nichols v. State, 5 Md.App. 340, 352, 247 A.2d 722 (1968)(“Our function is not to determine whether we would have come to a different conclusion from that of the lower court nor need we be convinced beyond a reasonable doubt of the appellant’s guilt.”) Even from a cold transcript, however, appellate judges do, at least off the record, inevitably arrive at their personal and idiosyncratic beliefs as to what probably happened in any given case. The reason why such beliefs are seldom formally articulated, even by way of gratuitous dicta, is because what a judge might hypothetically have done had he been the fact finder has no connection with what he must do in his very different capacity as legal referee.

This is one of those rare occasions, however, when articulating the normally unartieulated hypothetical of what we might have found had we been the fact finders may help to illustrate the wide range of fact finding that is possible in a controversial case and the significance of discrete bands of fact finding within that wider range. On the bell-shaped curve of possible verdicts based on fact finding, the two extreme ends of the curve are the exclusive province of the judge as legal referee. In approximately two or three per cent of the cases, the evidence for a proposition may be so woefully inadequate that a judge must declare a forfeit: “No, as a matter of law.” In approximately another two or three per cent of the cases, the evidence for a proposition may be so overwhelming and uncontradicted that a judge ⁶⁸⁸ must, at least in civil cases and on certain criminal issues, award an automatic victory: “Yes, as a matter of law.” 1 Trovato v. State, 36 Md.App. 183, 188-90 , 373 A.2d 78 (1977); Fisher v. State, 28 Md.App. 243, 248-51, 345 A.2d 110 (1975). The bulging ninety-four to ninety-six per cent of the curve lying between those poles, however, is the autonomous domain of the fact finder, wherein the verdict may be: “Yes or no, as a matter of fact.” Once the ball is properly on the playing field of fact finding, moreover, it is subject to random and eccentric bounces with no second-guessing by legal referees or umpires.

Given the “unpredictability of the fact-finding sweepstakes,” the verdict that comes through as a decided “long shot” is just as immune from appellate scrutiny or after-the-fact intervention as is the verdict that goes into the jury room as a “heavy favorite.” Fraidin v. State, 85 Md.App. 231, 241-42 , 583 A.2d 1065 (1991). A Very Likely Version of the Evidence Had the three judges on this appellate panel been called upon, hypothetically, to render a verdict based on our view of the evidence, we acknowledge freely, albeit completely immaterially, that we would not have been persuaded beyond a reasonable doubt that the appellant was guilty of anything. We would not have been so persuaded even by the clear and convincing standard of persuasion. We would not have been so persuaded even by a bare preponderance of the evidence.

See Fisher v. State, 28 Md.App. 243, 251 , 345 A.2d 110 (1975)(an upward or downward shift in the burden of persuasion has no effect on the burden of production). With full support in the evidence, our more neutral and intermediate version of what probably happened would have been somewhat along the following lines. ⁶⁸⁹ The appellant, a retired college professor residing in northern Virginia and a customer of the Chevy Chase Bank, incurred an erroneous charge on his account for $30 in membership dues to the Columbia Record Club, a membership which the appellant had apparently never contracted. In an attempt to correct the mistake, he wrote two letters to the bank requesting that the erroneous charge be removed. When the charge was not removed, the appellant began making telephone calls to the bank.

On August 30, 1995, the appellant called the bank three times. During one of the phone conversations, he was connected with Rona Bowers, a bank customer service representative. Ms. Bowers testified that on August 30,1995, she received a call from a customer, verified confidential information on the account, and talked to him for ten or fifteen minutes. It is undisputed that the phone conversation was with the appellant.

She testified that the caller had “an accent from, like a Middle East, or third world country,” and that the caller was “irate,” and “very angry.” According to Ms. Bowers, they discussed the problem of the charge to the appellant’s account. She described his frustration with not being able to solve his problem. She testified: [MS. BOWERS]: He just started stating that he — he kept insisting that he wanted the charges taken off of his account.

I explained to him that in order for that to happen — I repeated myself— [THE STATE]: Uh-huh. A: In order for that to happen, you must submit the documents. He began — he was very angry and somewhere in the conversation, that’s when he began to state that he would blow up Chevy Chase bank if we didn’t do what he wanted him to — what he wanted done. Q: Okay.

Did he tell you where he was going to blow up the bank? A: He asked — he stated, I’m going to blow up the bank. Well, I’m going to blow up the Chevy Chase Bank. Where are you?

In Frederick? Q: And then— ⁶⁹⁰ A: And I asked him, well when would you blow up the bank? And he said, probably on Sunday. As a result of this telephone call, Ms. Bowers called the security office and wrote up a report regarding the conversation.

In his defense, the appellant denied that he ever threatened to bomb the bank. The appellant testified that during the conversation on August 30, Ms. Bowers could not understand his accent and that when he could not get any satisfaction from her regarding the correction of his account, he told her, That the office is very disorganized because my $30 money that they have taken is about four months (sic) and I would like to be refunded to my account. And because of disorganization I’m going to write a letter to the president of the bank. That’s all I told her, and then she suddenly hung up.

Even after being indicted, the appellant continued to behave like an outraged innocent. He came into the State’s Attorney’s Office of his own volition and insisted on talking with someone who was handling the case. Even though admonished by Assistant State’s Attorney Theresa Rivera not to talk about the case and to get a lawyer, the appellant persistently tried to push “a bunch of documents” that he wanted her to see into her hand and kept talking about everything being “the bank’s fault.” He continued to talk about the “discrepancy in their account” and explained that “the reason why he called in the bomb threat was because he was very angry with the bank.” Ginger Fogle, a secretary in the State’s Attorney’s Office, was present during the conversation. She explicitly remembered the appellant’s having said, “I didn’t mean what I said, I didn’t mean I would blow the place up, I was just mad.” A Hypothetical Verdict Based on That Hypothetical Fact Finding Had we hypothetically been the fact finders, we almost certainly would have found the appellant not guilty of anything.

We would not have been persuaded that he intended to bomb the bank or that he intentionally threatened to bomb the ⁶⁹¹ bank. Our “gut” reaction would probably have been that the appellant was an unsophisticated layman who experienced the frustrated helplessness that one sometimes suffers in attempting to communicate with an impersonal institution or an impersonal bureaucracy. He knew that the charge on his account was erroneous but his importunate letters went unanswered and his beseeching telephone calls were to no avail. His particular frustration was exacerbated by a language barrier and a painful difficulty in communication.

In exasperated frustration, he may, to be sure, have blurted out the word “bomb” but it would seem to us not to have been a genuine threat. His name, his telephone number, his address, and his bank account number were fully known to the ostensibly threatened executive on the other end of the telephone line. Even an amateur criminal should have more stealth than that. The appellant’s target identification was at best badly blurred.

He seemed to believe that the Chevy Chase Bank was located in Frederick but was clearly unsure. His response of “probably on Sunday” when asked when he would blow up the bank comes across as nothing more than the sputtering of a meaningless response, as verbal static produced by a state of exasperated excitement. In short, we would not have been persuaded that the appellant was guilty of threatening to bomb the Chevy Chase Bank. Our benign view of what probably happened, however, is of no assistance to the appellant, for we were not his fact finders and what to believe is the exclusive prerogative of the fact finders.

Owens-Corning v. Garrett, 343 Md. 500, 521-22 , 682 A.2d 1143 (1996); Fowler v. Benton, 245 Md. 540, 545 , 226 A.2d 556 (1967) (“[T]he verdict of a jury on a question of fact is conclusive on appeal. The jury alone have the right and power to judge of the weight of the evidence.”) The trial judge apparently viewed the evidence much as we do. Although essentially powerless to do anything about the verdict itself, 2 he reflected in his sentencing what seemed to ⁶⁹² be his view of the seriousness of the appellant’s offense. The thirty-day sentence was suspended; the appellant was placed on two years of unsupervised probation; he was ordered to pay $125 in court costs.

That was not a paradigmatic sentence for a threatened act of terrorism. Legally Signifícant Versions of the Evidence This hypothetical version of how we would probably have viewed the evidence and of how the trial judge apparently viewed the evidence, of course, has no appellate significance. It is, after all, a neutral or intermediate version of the evidence. ■ As such, it might have interest for an historian but not for an appellate court. It is only the two most slanted versions of the evidence that have operative legal significance for purpose of appellate review.

The Defendant’s Most Favorable Version of the Evidence Had the questions in issue been such things as whether the defendant had generated a genuine jury issue, to wit, a prima facie case, with respect to, e.g., entrapment, self-defense, or mitigation or whether there had been enough evidence to support a defense-requested jury instruction, the appellate court and the trial judge alike would then have looked to that extreme version of the facts most slanted in favor of the defendant. Gilbert v. State, 36 Md.App. 196, 201 , 373 A.2d 311 (1977); Garland v. State, 29 Md.App. 27, 28 , 349 A.2d 374 (1975). In this case, the version of the evidence most favorable to the appellant, of course, would be that he never even uttered the words “bomb” or “blow up” at all and that any consideration of his state of mind or of what he intended to ⁶⁹³ communicate by such words would be, therefore, completely obviated. That extreme defense-favoring tilt to the evidence, however, does not figure in the present appeal.

The State’s Most Favorable Version of the Evidence The extreme contrary version of the evidence, the one that does figure in this appeal, is that which is tilted as far as possible in favor of the State. That tilt is why the appellant’s evidentiary insufficiency argument cannot prevail. With respect not only to the propriety but also to the necessity for utilizing such a “slant, with its unabashed and deliberately built-in partiality,” we explained in Fraidin v. State, 85 Md.App. 231, 241 , 583 A.2d 1065 (1991): The appellant’s brief and especially his reply brief are almost strident in their outrage at the State’s brief for putting a decidedly pro-prosecutorlal “spin” or “twist” on evidence which was hotly disputed and subject to arguably diametric interpretations. On the issue of legal sufficiency, however, both the state and the appellant are enjoined to apply just such a “spin.” The slant is required as a matter of law.

Of all possible versions of events that would be permitted a fact finder, it is, of course, the most partial one permitted by logic and law which we adopt when assessing the legal sufficiency of the State’s case. Fact finding impartiality has nothing to do with measuring a prima facie case. (Emphasis in original). The time-honored test for whether the State has met its bu.rden of production, requiring the trial judge to submit to the jury the issue of the appellant’s guilt, is whether the State’s most favorable scenario — assuming full credibility of the State’s witnesses, assuming maximum weight given to the State’s evidence, utterly discounting the defense evidence, and drawing every permitted inference in favor of the State— would establish each component element of the crime.

Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979); Wilson v. State, 319 Md. 530, 535-36 , 573 A.2d 831 (1990); West v. State, 312 Md. 197, 207 , 539 A.2d 231 ⁶⁹⁴ (1988) (“The constitutional standard of review is whether after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”) The appellant’s contention is that the State’s evidence was not legally sufficient to show that he had any criminal intent. We hold quite to the contrary. Although the State’s evidence may not have been very persuasive, it was abundantly ample to satisfy the State’s burden of production. 3 Williams and McClelland v. State, 5 Md.App. 450, 459-60 , 247 A.2d 731 (1968); Metz v. State, 9 Md.App. 15, 23-24 , 262 A.2d 331 (1970). Rona Bowers testified that in the course of a telephone conversation on August 30, the very angry appellant, in an accent that seemed to identify him as being from a Middle Eastern or third world country, 4 stated “that he would blow up Chevy Chase Bank if we didn’t do ... what he wanted done.” He persisted, “I’m going to blow up the bank.

I’m going to blow up Chevy Chase Bank. Where are you? In Frederick?” He further pinpointed the probable target time as “on a Sunday.” In a very damaging admission to Assistant State’s Attorney Theresa Rivera, the appellant acknowledged that “the reason why he called in the bomb threat was because he was very angry with the bank.” Far from being remorseful or apologetic, he continued to insist that “it’s the bank’s fault.” Focusing, as it had the prerogative to do, on those facts and ⁶⁹⁵ on nothing else, the jury could permissibly have inferred that the appellant meant to do exactly what he said he was going to do. That, of course, is obviously a version of events vastly different from the one we earlier recited.

Coincidentally, we do not believe it to be an accurate version, but our belief in that regard is immaterial. It is, however, a conceivable version. 5 It is, more to the point, the pro-State version that the appellant is stuck with when he argues that the evidence was not legally sufficient to permit a conviction. On the issue of the appellant’s criminal intent, therefore, the trial judge was not in error in submitting the case to the jury. What the jury then did by way of a verdict is unreviewable.

Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173 , 122 A.2d 457 (1956) (“There is no merit in the appellant’s contention that ‘the evidence overwhelmingly preponderated against the verdict.’ The weight and preponderance of the evidence is for the triers of fact and cannot be reviewed on appeal.”) Evidentiary Insufficiency: A Different Claim That Might Have Prevailed Ironically, the appellant had a far more lethal weapon readily at hand bearing on the legal insufficiency of the State’s evidence, had he chosen to unlimber it on appeal. Even more ironically, it was an issue expressly raised and fully developed at the end of the entire case before the trial court and, therefore, thoroughly preserved for appellate review. After moving for a judgment of acquittal on the grounds of evidentiary insufficiency, the appellant offered as the exclusive thrust of his argument 6 that even if the State’s version of the ⁶⁹⁶ evidence were to be believed, the appellant was charged with the wrong crime. He pointed out that the State’s evidence, if believed and given its most sinister connotation, might have supported a conviction for a violation of what is now Md.Code Ann. Art. 27, § 9 (1996 Repl.

Vol.), which provides: A person may not threaten either verbally or in writing to: (a) Set fire to or burn a structure; or (b) Explode a destructive explosive device as defined under § 139B of this article in, on, or under a structure. That law has been on the books since 1989 and proscribes the making of a threat to burn down a building or to explode a bomb in or under a building. The State’s evidence in this case might have, as we have discussed at length, supported the conviction of the appellant for having verbally threatened to bomb the Chevy Chase Bank. The appellant, by contrast, was convicted of having committed a very different crime, to wit, with having violated § 151A, which provides, in pertinent part: A person is guilty of a misdemeanor if, knowing the statement or rumor to be false, he circulates or transmits to another or others, with intent that it be acted upon, a statement or rumor, written, printed, or by word of mouth, concerning the location or possible detonation of a bomb or other explosive.

Section 151A has been on the criminal statute books since 1963. It is placed in Article 27 under the general rubric of “False Statements,” along with a number of other sections dealing with the making of false reports: Section 150, concerning false statements to police officers; Section 151, concerning false statements to State officials or agencies; Section 151B, concerning false statements when applying for funds from the Maryland Higher Education Commission; and Section 151C, concerning the possession or manufacture of devices designed ⁶⁹⁷ to look like destructive explosive devices so as to terrorize or frighten others. Following almost immediately thereafter is Section 156, concerning turning in false fire alarms and making false ambulance or rescue squad calls; and Sections 156A through 156E, dealing with the false activation of burglary and robbery alarms. The difference between the maximum penalties for a § 9 violation and a § 151A violation is revealing.

Actually to threaten to explode a bomb, pursuant to § 9, could subject the perpetrator to ten years imprisonment. To make a false report with respect to a bomb threat, pursuant to § 151A involves a maximum penalty of no more than one year. Indeed, to transmit a false rumor with respect to a bomb, pursuant to § 151A, involves a maximum penalty far less severe than the turning in of a false alarm of fire, under § 156, which can involve a sentence of up to five years. Circulating False Rumors Versus Actually Making Threats The key verb of § 9, the crime tried but not charged, is “threaten.” The act proscribed is to “threaten ... to ... explode a destruction explosive device.” When one threatens to explode a bomb, § 9 is the criminal statute that has been violated.

It makes no difference whether the maker of the threat actually intended to carry out the threat or made a false threat without the remotest intention of carrying it out. It is the making of the threat itself, whether it be true or false, that is the gravamen of the offense. Although the appellant may conceivably have done that, he was not charged with that. By significant contrast, the key verbs of § 151A, the crime that was charged, are “circulate or transmit.” The