Morgan v. State

DAVIS, Judge. Appellant Leonard Jovan Morgan was convicted by a jury on August 13, 1997, in the Circuit Court for Prince George’s County, of second degree murder. He appealed his conviction and we reversed and remanded the case for retrial in an unreported opinion, Morgan v. State, No. 1693, September Term 1997 (filed July 20, 1998). The reversal was based on the trial court’s erroneous denial of appellant’s motion to suppress his statements to the police. ¹¹⁷ Appellant was retried and, on September 1, 1999, he was again convicted of second degree murder and was sentenced to thirty years imprisonment.

Appellant timely noted this appeal, presenting two questions, which we rephrase: I. Did the trial court err in denying appellant’s motion for judgment of acquittal based on insufficiency of the evidence and thereby submitting the case to the jury?

II

Did the trial court abuse its discretion by denying appellant’s motion for mistrial after the prosecutor made reference to appellant’s first trial? We answer both of these questions in the negative and, accordingly, affirm the judgment of the circuit court. FACTUAL BACKGROUND This appeal stems from the January 4, 1997, murder of Richard McCoy. No direct evidence was presented that appellant murdered the victim.

The substance of the circumstantial evidence adduced at trial was that appellant telephoned his aunt, Deborah Phillips, on the evening of January 4, 1997. He was frightened, upset, and crying, he told her, because someone had been shooting at him and his friends, Eddie Mathis and McCoy, while they were driving in the victim’s car. Several witnesses testified that they saw McCoy in the company of his two friends, Mathis and appellant, on Friday evening, January 4, 1997. On January 5, 1997, an off-duty police officer found the victim’s body on the side of the road at Suitland Parkway in Prince George’s County.

Autopsy reports revealed that the victim was shot twice in the head, once with a .44 millimeter handgun and also with a .9 millimeter handgun. On January 9, 1997, investigators found the victim’s car in Washington, D.C. The car exhibited no signs of having been damaged from gunshots. Martha Rorie and Shirley Bell, McCoy’s two cousins with whom he lived in Washington, D.C., testified that they saw McCoy on that evening at their residence with Anthony Ross, Patrick Woods, and two other individuals identified as “Steve” and “Moochie.” Ross testified that, later in the evening, he ¹¹⁸ saw the victim sitting in his yellow Nova automobile in front of his house in the District of Columbia. McCoy was sitting in the passenger’s seat of his car, Mathis was sitting in the driver’s seat, 1 and appellant was standing on the porch in front of the house.

According to the testimony of appellant’s aunt, it was after appellant was seen in the company of Mathis and the victim that appellant called his aunt to report that someone had been shooting at them while they were inside the car. Subsequent to that telephone conversation, the police were able to obtain the telephone number of the telephone appellant used to call his aunt, which was later traced to Cecilia Scarborough’s apartment. Police searched Scarborough’s apartment and found a plastic bag containing a blood-stained vest on her balcony; the blood was subsequently analyzed and found to be consistent with that of the victim’s DNA. Scarborough testified that Mathis and appellant were in her apartment when she arrived on the night of the murder, between nine and ten o’clock in the evening.

Neither Mathis nor appellant appeared to her to be upset or injured and both acted normal. The time line of events before and after the murder of Richard McCoy is essential to our review of appellant’s claim of insufficiency of the evidence: TIME LINE January 4, 1997 to January 11, 1997 January 4, 7:15 p.m. — McCoy’s cousins, Martha Rorie and Shirley Bell, last see the victim as he left their residence. January 4, evening hours: McCoy returns to residence to get his keys, telling Bruce Tucker that he would be right back; Tucker also identifies victim’s hat at trial. January 4, 7:00-8:00 p.m. — Anthony Ross sees McCoy sitting in passenger seat of his car and Mathis sitting in the ¹¹⁹ driver’s seat, as appellant stood on the front porch of the residence.

January 4, 8:00 p.m. — Appellant telephones his aunt, Deborah Phillips, from a telephone number recorded by her Caller I.D., and said that “someone was shooting at him and he was scared,” that he was with Eddie and Richard, and that “Richard and Eddie got hit.” Concerned about appellant’s telephone call, Phillips telephones the District of Columbia Police. January 4, 8:45 p.m. — Claudio Herzfeld hears single loud gunshot emanating from Suitland Parkway, adjacent to his residence near where victim’s body was discovered. January 4, 9:00-9:30 p.m. — Cecilia Scarborough returns to her apartment and finds appellant and Eddie Mathis there, apparently uninjured and exhibiting “normal” demeanor; the pair stay overnight, leaving her apartment the next morning; a blue bag containing a vest stained with blood, the DNA of which was analyzed and found to be inconsistent with that of appellant and Mathis, but consistent with McCoy’s DNA was placed by someone other than Scarborough on a chair on her balcony. January 4, 10:00 p.m. — Officers Michael Baylor and Lazaro Gonzales of the Washington, D.C. Metropolitan Police respond to the “911” call placed by Deborah Phillips and, based on the information received from her, Gonzalez sent “units out to Suitland Parkway looking for a body and a yellow car” which he believed, “... belonged to a guy named Richard.” January 4, 11:15-11:55 p.m. — The police interview Shirley Gladney to ascertain if she knew anything about appellant; after the police left, she placed a telephone call to the number which had appeared on her Caller I.D. and she talked with appellant who “appeared okay on the phone.” January 5, 8:00 a.m. — Officer William Smith of the Washington, D.C. Metropolitan Police, who had just left work, ¹²⁰ discovered the victim’s body beside Suitland Parkway in Forestville.

January 9 — Sergeant Daniel Lawson of the United States Park Police processes the 1977 Chevrolet Nova discovered at Suitland Parkway and Meadowview Drive; he details the soot covering the entire inside of the vehicle “from a fire that had been set in the vehicle” interior, a stained carpet from the floor of the right rear of the vehicle; all windows were intact and the recovery of a Green Bay Packers baseball hat from the driver’s side floor of the vehicle. January 11, 12:30 a.m. — Robert Rule, Lieutenant Investigator in the Special Forces Unit of the United States Park Police executed a search warrant for 6553 Hillmar Drive, Apartment 202, the premises leased to Cecilia Scarborough; recovered from a green plastic chair on the balcony was a plastic bag later found to contain a vest stained with blood analyzed as consistent with the DNA of the victim’s blood. ANALYSIS I SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE A. STANDARD OF REVIEW The Court of Appeals penned the well-settled standard of appellate review of the trial court in State v. Albrecht, 336 Md. 475, 478-79 , 649 A.2d 336 (1994): At the outset, we emphasize that when an appellate court is called upon to determine whether sufficient evidence exists to sustain a criminal conviction, it is not the function or the duty of the appellate court to undertake a review of the record that would amount to, in essence, a retrial of the case. Rather, we review the evidence in the light most favorable to the State, ... giving due regard to the trial court’s finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the ¹²¹ credibility of witnesses.

Fundamentally, our concern is not with whether the trial court’s verdict is in accord with what appears to us to be the weight of the evidence, ... but rather is only with whether the verdicts were supported with sufficient evidence — that is, evidence that either showed directly, or circumstantially, or supported a rational inference of facts which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt. In other words, when a sufficiency challenge is made, the reviewing court is not to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt”; rather, the duty of the appellate court is only to determine “whether, after viewing 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.” (Citations and footnote omitted.) Moreover, in recapitulating the essence of our review, we said, in Stouffer v. State, 118 Md.App. 590, 606 , 703 A.2d 861 (1997) , aff'd in part, rev’d in part, 352 Md. 97 , 721 A.2d 207 (1998), citing Barnes v. State, 31 Md.App. 25, 29 , 354 A.2d 499 (1976): In other words, a guilty verdict may be set aside only if there is no legally sufficient evidence or inferences drawable therefrom on which the jury could find the accused guilty beyond a reasonable doubt. B. CIRCUMSTANTIAL EVIDENCE Judge Salmon, writing for the Court in our recent decision in Jensen v. State, 127 Md.App. 103, 117-18 , 732 A.2d 319 , cert. denied, 356 Md. 178 , 738 A.2d 855 (1999), discussed the sufficiency of circumstantial evidence to sustain a criminal conviction: “Maryland has long held that there is no difference between direct and circumstantial evidence.” A conviction may be based on circumstantial evidence alone. If guilt is based on ¹²² a single strand of circumstantial evidence, however, to meet the standard for legal sufficiency, the circumstances must be inconsistent with any reasonable hypothesis of innocence.

Nevertheless, the Court of Appeals has made clear that this last-mentioned rule does not apply when the conviction is based on multiple strands of circumstantial evidence. In Hebron, the Court explained: (W)here the circumstantial evidence consists of more than a single strand, ... “an instruction requiring the exclusion of reasonable hypothesis of innocence is not only unwarranted, but improper.” This is so because, in such a ease, the circumstances, taken together and viewed from the State’s perspective, are inconsistent with, although not absolutely dispositive of, the defendant’s innocence. (Citations and footnote omitted.) In rejecting appellant’s contention in Jensen that a judgment of conviction must be reversed if the circumstantial evidence is consistent with any reasonable theory of innocence when the State’s evidence is purely circumstantial, we explained that the rule Jensen embraced was misleading and incomplete in the factual context of that case. We then set forth the principle in its entirety as recounted in Hebron v. State, 331 Md. 219 , 627 A.2d 1029 (1993).

Judge Robert M. Bell, currently Chief Judge, explained at 331 Md. 234 , 627 A.2d 1029 : The cases referring to circumstantial evidence not excluding every reasonable hypothesis of a defendant’s innocence are cases in which there is circumstantial evidence of the defendant’s guilt and other evidence, either circumstantial or direct, tending to negate that evidence and no basis upon which a rational finder of fact could return a verdict of guilty without speculating as to which of the two versions is the correct version. A jury faced with that state of the evidence could not logically, nor lawfully, return a guilty verdict; hence, as the Court of Special Appeals pointed out, given that scenario, “there is nothing for the jury to decide, ¹²³ and, upon proper motion, the judge is duty-bound, as a matter of law, to enter a judgment of acquittal.” (Citations omitted.) The Hebron Court noted that the Court of Appeals, in Pressley v. State, 295 Md. 143, 150 , 454 A.2d 347 (1983), had previously rejected the argument that each fact constituting the circumstantial evidence is disconnected and independent and must be proved beyond a reasonable doubt: In Pressley , a case involving but one strand of circumstantial evidence, the defendant urged that, in the case of circumstantial evidence consisting of a number of disconnected and independent facts, each fact must be proved beyond a reasonable doubt. The Court rejected the argument, noting that, where that situation exists, “(c)ircumstantial evidence is not like a chain which falls when its weakest link is broken, but is like a cable. The strength of the cable ‘does not depend upon one strand, but is made up of a union and combination of the strength of all its strands.

No one wire in the cable that supports the suspension bridge across Niagara Falls could stand much weight, but when these different strands are all combined together, they support a structure which is capable of sustaining the weight of the heaviest engines and trains. We therefore think it is erroneous to speak of circumstantial evidence as depending on links, for the truth is that in cases of circumstantial evidence each fact relied upon is simply considered as one of the strands and all of the facts relied upon should be treated as a cable.’ ” Conversely, albeit only implicitly, the Court recognized that “(o)nly when there is ‘but one strand’ of evidence or successive links of evidence connecting the defendant to the crime must the trier of fact be satisfied beyond a ¹²⁴ reasonable doubt as to each link in the chain of circumstances necessary to establish the defendant’s guilt.” Hebron, 381 Md. at 227-28, 627 A.2d 1029 (citations omitted). Ultimately, the Hebron Court affirmed our determination regarding when the “exclusion of reasonable hypothesis of innocence” doctrine applies: The Court of Special Appeals was correct, therefore, when it concluded that where the circumstantial evidence consists of more than a single strand, the West [v. State, 312 Md. 197 , 539 A.2d 231 (1988) ] proposition does not apply. Indeed, in that circumstance, “an instruction requiring the exclusion of reasonable hypothesis of innocence is not only unwarranted, but improper.” This is so because, in such a case, the circumstances, taken together and viewed from the State’s perspective, are inconsistent with, although not absolutely dispositive of, the defendant’s innocence.

A conviction may be sustained on the basis of a single strand of circumstantial evidence or successive links of circumstantial evidence. It is only when that evidence is also consistent with a reasonable hypothesis of innocence that it is insufficient. The question thus becomes when is a single strand or successive links of circumstantial evidence consistent both with guilt and innocence? Id. at 228-29 , 627 A.2d 1029 (citations omitted).

The evidence to support a finding of guilt of the crime of murder may be either direct or circumstantial and, where legally sufficient evidence of corpus delecti and criminal agency are presented, the question of whether a defendant is guilty is a question of fact to be determined by the jury. See generally id. at 237-38, 627 A.2d 1029 . Circumstantial evidence may support a conviction when the circumstances, taken together, do not require the trier of fact to resort to speculation or mere conjecture. Taylor v. State, 346 Md. 452, 458 , 697 A.2d 462 (1997).

It is not necessary, however, that the circumstantial evidence be such that no possible theory other than guilt can ¹²⁵ stand. See Hebron, 331 Md. at 227 , 627 A.2d 1029 (quoting Gilmore v. State, 263 Md. 268, 292-93 , 283 A.2d 371 (1971), vacated in part, 408 U.S. 940 , 92 S.Ct. 2876 , 33 L.Ed.2d 763 (1972)). It is also neither necessary that the circumstantial evidence exclude every possibility of the defendant’s innocence, nor that it produce an absolute certainty of defendant’s guilt in the minds of the jurors. Id.

Proof of guilt beyond all doubt has never been required. Tasco v. State, 223 Md. 503, 510 , 165 A.2d 456 (1960), cert. denied, 365 U.S. 885 , 81 S.Ct. 1036 , 6 L.Ed.2d 195 (1961). “[T]o meet the test of legal sufficiency, evidence (if believed) must either show directly, or support a rational inference of, the fact to be proved.” Id. A jury is asked to weigh the evidence given to them based upon its experience with people and events. Hebron, 331 Md. at 225 , 627 A.2d 1029 (quoting Holland v. United States, 348 U.S. 121, 139-40 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954)). “If the jury is convinced beyond a reasonable doubt, we can require no more.” Id.

A reversal of the lower court, sitting with a jury, would require an appellate court to inquire into and weigh the evidence, essentially taking over the prerogative of the trial court, which we have no authority to do. See generally Tasco, 223 Md. at 510-11 , 165 A.2d 456 . C. THE ROLE OF THE JUDGE VIS-A-VIS THAT OF THE JURY The Court of Appeals has pointed out in In re Petition for Writ of Prohibition, 312 Md. 280 , 539 A.2d 664 (1988), that what a trial court does in regard to passing upon the sufficiency of the evidence is “strictly circumscribed.” Id. at 310 , 539 A.2d 664 . The trial judge, sitting with a jury, may not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt.

Id. (citation omitted). Prior to a constitutional amendment in 1950, trial courts, and also appellate courts, did not have the power to review the sufficiency of the evidence of a criminal case tried before a jury. Brooks v. State, 299 Md. 146, 149 , 472 A.2d 981 (1984) (citation omitted). ¹²⁶ That amendment has since been supplemented by statute, Md.Code (1996 Repl.Vol.), art. 27, § 598, which states, in pertinent part, that “the jury shall be the judges of law, as well as of fact, except that at the conclusion of the evidence for the State a motion for judgment of acquittal on one or more counts ... may be made by an accused on the ground that the evidence is insufficient in law to justify his [or her] conviction----” If the trial court denies a defendant’s motion for acquittal, the defendant then is entitled to have the denial reviewed on appeal.

See Brooks, 299 Md. at 150 , 472 A.2d 981 (footnote omitted). An appellate court, therefore, is authorized to review the sufficiency of the evidence, but that review is limited. State v. Devers, 260 Md. 360, 371 , 272 A.2d 794 , cert. denied, 404 U.S. 824 , 92 S.Ct. 50 , 30 L.Ed.2d 52 (1971). The appellate court does not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, but merely ascertains whether there is any relevant evidence, properly before the jury, legally sufficient to sustain a conviction.

Id. (citations omitted). In determining the sufficiency of the evidence underlying a criminal conviction, the appropriate standard for the trial court is whether, after viewing 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. Dawson v. State, 329 Md. 275, 281 , 619 A.2d 111 (1993) (citations omitted).

It is the judge’s role to determine whether the evidence that the State has presented is legally sufficient to warrant sending the case to the jury. Hebron, 331 Md. at 234 , 627 A.2d 1029 . If the judge determines that the evidence is sufficient, he or she will submit the issues to the jury for its determination. Id. at 235 , 627 A.2d 1029 .

Alternatively, if the judge determines that the evidence is legally insufficient to send the case to the jury, then the judge must direct a verdict of acquittal. Id. (citation omitted). ¹²⁷ From the jury’s perspective, in a case that is purely circumstantial, the body of evidence submitted to it by the trial judge must be such that, in conjunction with weighing the evidence and assessing the credibility of the witnesses, there are sufficient strands interconnected to establish criminal agency and corpus delecti beyond a reasonable doubt. That process is aptly described in our decision in Dinkins v. State, 29 Md.App. 577, 579-80 , 349 A.2d 676 (1976), opinion adopted 278 Md. 238 , 362 A.2d 91 (1976): We observed in Evans v. State, 28 Md.App. 640 , 349 A.2d 300 (1975): “In a real sense, the whole decision-making process is the process of drawing inferences.

From fact A we infer fact B.... The whole phenomenon of circumstantial evidence is the phenomenon of inferring facts in issue from facts established.” We pointed out that certain inferences, out of the infinite swarm of their fellows, have been singled out for legal analysis. We continued, regarding the judge’s role: We indicated in Evans that an inference comes to judicial attention in two situations. “When we are called upon to measure the legal sufficiency of evidence, we have to determine whether established facts A and B are legally sufficient to give rise to a fair inference of fact C, the ultimate fact in issue. We are similarly called upon to measure the efficacy of certain inferences when we are asked to instruct a jury that it may (although it need not) infer fact C from established facts A and B.” [Evans v. State,] 28 Md.App. at 703 , 349 A.2d 300 .

Thus, upon legally sufficient proof that certain goods were recently stolen, that they were in the exclusive possession of the accused, that the possession was not satisfactorily explained, and in the absence of other facts indicating that the accused was more likely to be the receiver than the thief, Jordan v. State, 219 Md. 36, 47 , 148 A.2d 292 (1959), cert. den., 361 U.S. 849 , 80 S.Ct. 105 , 4 L.Ed.2d 87 (1959), the judge at a bench trial may infer, in his role as the trier of fact, that the accused was the thief. At a jury trial, the judge may, and at the request of a party, ¹²⁸ shall, Maryland Rule 756, § b, instruct the jury that it may infer that the accused was the thief. Id. at 581-82, 349 A.2d 676 . Finally, we explained: The mere fact that there is some evidence tending to explain the possession consistent with innocence does not bar the judge in a bench trial from drawing the inference or in a jury trial from instructing the jury on the inference.

The trier of fact must weigh the explanation to determine whether it is reasonable or “plausible,” or “satisfactory.” It is not bound to accept or believe any particular explanation any more than it is bound to accept the correctness of the inference. But the burden of proving beyond a reasonable doubt that the accused stole the property remains in the prosecution. Id. at 582-83 , 349 A.2d 676 (citation omitted). THE INSTANT CASE Appellant initially contends that the trial court erred in denying his motion for judgment of acquittal, based on insufficiency of the evidence.

Appellant posits that the State’s evidence was entirely circumstantial and at best could only raise the possibility of defendant’s guilt, which would be insufficient to support an inference of guilt beyond a reasonable doubt. Appellant argues that the circumstantial evidence presented in this case could support four different theories: (1) that appellant was the perpetrator of the crime, (2) that Mathis was the perpetrator, and appellant merely an aider and abettor, (3) that appellant only helped to set fire to the victim’s car and dispose of the evidence of the crime and is therefore an accessory after the fact, or (4) that appellant did not participate in the killing in any way. He cites Taylor v. State, 346 Md. 452, 458 , 697 A.2d 462 (1997), for the proposition that, “when the evidence equally supports two versions of events, and a finding of guilt requires speculation as to which of the two versions is correct, a conviction cannot be sustained.” (Citations omitted.) Citing ¹²⁹ State v. Simpson, 318 Md. 194 , 567 A.2d 132 (1989), which held that the fact finder must not be required to speculate as to whether the defendant possessed cocaine or heroin, appellant essentially complains that the jury was required to speculate as to his participation in the murder of Richard McCoy. Appellant argues that the evidence presented at trial was only sufficient to arouse suspicion and could not support an inference beyond a reasonable doubt.

Citing Taylor , he argues that the evidence in the case at hand equally supports more than one version of the events, requiring speculation as to which of the versions is correct. See Taylor, 346 Md. at 458 , 697 A.2d 462 . His challenge to the sufficiency of the evidence is most succinctly articulated by trial counsel’s argument on the motion for judgment of acquittal: The problem is he’s not being charged with an accessory after the fact. He can only be found guilty of a principal in the first degree or a principal in the second degree.

Now if he had been charged with an accessory after the fact, then I wouldn’t be standing here. Literally, the above trial concession may be interpreted as an acknowledgment that appellant does not argue that, on the state of the evidence, it would not have been within the purview of the jury to find appellant guilty of being a principal in either the first or second degree or an accessory after the fact had he been charged separately with the latter offense. Our task, as we see it, sub judice, is, applying settled legal principles regarding the sufficiency of the evidence to sustain a conviction when such evidence is entirely circumstantial, to determine whether the circumstances, taken together, required the jury to resort to speculation or mere conjecture. We begin by narrowing the focus of our review.

Appellant’s only assail on his conviction for second degree murder is upon the sufficiency of the proof of his participation, i.e., whether he was a principal, accessory after the fact, or an uninvolved observer. We must decide whether the facts established are legally sufficient to give rise to the ultimate fact in issue, namely, that appellant either committed the second degree murder of Richard McCoy or aided and abetted Mathis in ¹³⁰ committing the murder. In other words, we must determine whether there was legally sufficient evidence from which the jury could be convinced beyond a reasonable doubt as to what appellant did relative to the crime, when he did it and under what circumstances. He offers two theories of what may have occurred, which he insists are incompatible with guilt of murder in the second degree, i.e., that he only helped dispose of the victim’s body and is guilty only of being an accessory after the fact or that he “did not participate in the killing in any way.” Appellant conceded at trial that the gravamen of his argument is that accessory after the fact was not available to the jury as an alternative theory of culpability.

As a consequence the circumstantial evidence was sufficient to support appellant’s conviction for second degree murder should we conclude, from our review of the record, that the State produced evidence legally sufficient to convince the jury beyond a reasonable doubt of appellant’s actions which were indicative of a mens rea, that demonstrated his complicity or prior knowledge that McCoy would be murdered. A. PRESENCE AT THE SCENE OF THE CRIME At the outset, “[w]hile a defendant’s presence at the scene of a crime is ‘a very important factor to be considered in determining guilt,’ Tasco v. State, 223 Md. 503 , 165 A.2d 456 (1960), ... it is elementary that mere presence is not, of itself, sufficient to establish that