Robinson v. State

Moylan, J., delivered the opinion of the Court. The appellant, Ronald Fitzgerald Robinson, was convicted in the Circuit Court for Calvert County by a jury, presided over by Judge Perry G. Bowen, Jr., of (1) the first-degree murder of Anthony J. Viola, (2) the first-degree murder of Mark V. Bressman, (3) assault with intent to murder Robert J. Loewy, (4) attempted robbery with a dangerous and ⁴⁵² deadly weapon, and (5) the unlawful use of a handgun. The case had earlier been removed from Prince George’s County. Upon this appeal, the appellant raises two interesting contentions, both dealing with burdens of proof: (1) That the trial court erred in denying his motion for judgment of acquittal at the close of the entire case, when it allegedly bypassed an independent review of the question and predicated the second denial “on the grounds which we considered and discussed at the time the motion was originally submitted; ” and (2) That the trial court erred in instructing the jury that the defense of alibi is an affirmative defense, requiring the appellant to establish his alibi by a fair preponderance of the evidence.

The Basis for the Motion for a Judgment of Acquittal Art. 27, § 593, makes it clear that a motion for judgment of acquittal is predicated upon the legal insufficiency of the evidence to convict. The motion, although appropriate at two different stages of the case, is the same motion and the standard by which it is judged does not waver with the stage at which it is made. § 593 provides: “In the trial of all criminal cases, 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, 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. If the motion is denied, he may offer evidence on his own behalf without having reserved the right to do so, but by so doing, he withdraws his motion. The motion may be made at the close of all the evidence whether or not such motion was made at the conclusion of the evidence for the State.

If the motion is denied the defendant may have a review of such ruling on appeal.” ⁴⁵³ Maryland Rule 755 simply implements § 593. Vuitch v. State, 10 Md. App. 389, 396 , 271 A. 2d 371 , spelled out the purpose of the motion: “Without question, the office of the motion for judgment of acquittal is essentially limited to challenging the legal sufficiency of the evidence to support a guilty verdict; the motion seeks the obtention of a court-entered judgment of acquittal of the offense with which the accused stands charged.” In serving that purpose, Judge Bowen entertained a motion for a judgment of acquittal at the conclusion of the State’s case. With painstaking care, he reviewed the legal sufficiency of the State’s evidence and then denied the motion: “Gentlemen, the motion requires the Court to consider the evidence thus far produced by the State in the light most favorable to the State, to draw any inferences which may be drawn from the evidence, whether we think the jury will in fact draw or not, for the purposes of determining whether or not there is sufficient competent and probable evidence in the record from which the jury can be satisfied as required by law of the guilt of the accused. The Court does not propose to review in minute detail the evidence thus far presented, except to say that it tends to show generally that some individual entered the Lenox Store, accosted the three employees in the store, Mr. Viola, Mr. Bressman and Mr. Loewy; shot both Viola and Bressman with fatal effect, and shot Mr. Loewy twice, once inflicting a slight wound, and the second time inflicting a very grave wound indeed, which, while it didn’t kill him, has substantially injured him, and it was in an area of his body which does contain vital organs and is generally regarded as a very vulnerable part of the human body.

The evidence would tend to show, by testimony of Mr. ⁴⁵⁴ Loewy, that at the time he was shot he saw whoever this person was reach in and open the cash drawer and remove a handful of money, remove money in his hand, and that there was in that drawer approximately a hundred and forty dollars. The weapon used in this episode was described by Mr. Loewy as a pistol, and a pistol is a dangerous and deadly weapon by the Statute of Maryland, and it is unlawful to use such a weapon in the commission of a crime. The evidence tending to show criminal agency on the part of the defendant stems from that line of testimony which tends to show that this defendant was one and the same man who came into the store earlier that day, attempted to purchase a lamp, and then he came back to return it. The evidence tends to show this was the man who did the shooting.

Now, the evidence which tends to connect this defendant with that man, briefly stated, is that his fingerprints appeared on the lamp in question; his handwriting is similar or identical as the person who signed the receipt; and the weapon was found in his car after he was arrested is similar to in' make the one which discharged the fatal bullet. Now, while it is not identified to the exclusion of all other guns, it is a gun capable of firing those bullets. In addition to that, the defendant has been described and identified by two witnesses who saw him in the store and have identified him positively as the man dressed in a black coat of artificial fur, wearing a black or dark shirt and a green tie and was in the store immediately prior to the shooting and carrying the lamp in question. Now if the jury believes that line of testimony, they could be satisfied to the extent required by our law that the defendant was the man who committed those offenses which were without doubt committed.

For these reasons, gentlemen, the Court overrules the motion of the defendant for judgment of acquittal on each of the following counts, 1, 2, 3, 4, 5 and 12 of ⁴⁵⁵ this indictment, and the docket entry will so show, Madam Clerk.” The positions of the contending forces were not significantly altered between the close of the State’s case and the close of the whole case. The appellant essayed the bold gambit of establishing an alibi for himself without taking the stand in support thereof. He offered one key alibi witness and two peripheral ones. The key witness was an elderly female relative — variously described as his cousin, his aunt and his grandmother.

The critical hours for the alibi were 1) the late morning of November 8, 1972, and 2) between 2 and 3 p.m. that same afternoon. The elderly relative had the appellant chopping wood for her from 11 a.m. until 3:45 p.m. on November 8. A lifelong friend and post-mistress had the appellant picking up a letter at about 4 p.m., a fact, even if true, of at best slight relevance. A 17-year-old girlfriend, wdio was “in love with” the married appellant, had him continuously on the telephone with her between 2:30 and 3 p.m. on November 8 from some unknown location.

The testimony of the key alibi witness — the elderly relative — was devastated by rebuttal testimony that she had told the police on November 11, 1972, that she had not seen the appellant “since he got married” — “for about two years.” The defense credibility was compromised further by a statement given by the appellant to the police setting up the contrary alibi that he had been playing basketball all day at the Tacoma-Langley Community Center. At trial, however, that alternative alibi was effectively foreclosed by the testimony in chief of an assistant manager that nobody played basketball at the Tacoma-Langley Community Center at any time on November 8. When, therefore, the motion for a judgment of acquittal was renewed at the close of the entire case, Judge Bowen did not retread the ground already trod: “Very well, gentlemen, the Court considered this motion when it was originally submitted. We once again overrule the motion on the grounds which we ⁴⁵⁶ considered and discussed at the time the motion was originally submitted.” We see no merit in the appellant’s contention that he was denied procedural due process.

All of the State’s evidence, which was legally sufficient to permit the case to go to the jury when the motion was first made and denied, was still in the case at the later juncture. Its sufficiency had not waned. The addition of alibi evidence could not alter that sufficiency, since the jury had the unfettered right to disbelieve totally alibi testimony. Shipley v. State, 220 Md. 463, 468 , 154 A. 2d 708, 711 ; Walters v. State, 242 Md. 235, 238 , 218 A. 2d 678 ; Duffy v. State, 243 Md. 425, 434 , 221 A. 2d 653 ; Logan v. State, 1 Md. App. 213, 216 , 228 A. 2d 837 ; Nichols v. State, 5 Md. App. 340, 351 , 247 A. 2d 722 .

In terms of legal sufficiency, the situation simply had not changed between the end of the State’s case and the end of the whole case. Moreover, the ultimate question is not whether Judge Bowen simply added an “amen” to his earlier ruling or whether he pondered anew, but rather whether the State’s evidence was, in fact, legally sufficient to permit the case to go to the jury. We hold that it was so beyond cavil. The Burden of Proof as to Alibi The appellant’s second contention is that the trial judge erroneously instructed the jury that an alibi is an affirmative defense, requiring the appellant to prove the alibi by a preponderance of the evidence.

The following instruction was given to the jury: “Now, the defendant in this case, asserts the evidence of an alibi. Now you will understand, ladies and gentlemen, that an alibi is what we call an affirmative defense. It is of course a complete defense if you believe it. Obviously a person who is not at the scene could not complete the crime.

We say it is an affirmative defense because this is the one time in this case where the defendant has the burden of proof. It is the only thing in the case as to which he has the burden of proof. On the defense of ⁴⁵⁷ alibi the defense has the responsibility to satisfy you by a fair preponderance of the evidence that he was not in fact in the store and in fact was somewhere else. Now evidence has been introduced tending to show that the defendant was not present at the time and at the place where these offenses were committed.

The defendant may not be convicted of the offenses with which he is charged unless the state proves beyond a reasonable doubt that the defendant was present at the time and place where the offense was committed. If after full and fair consideration of all the facts and circumstances in the evidence you find that the defendant has satisfied the fair preponderance of the evidence concerning this man and that he was in fact somewhere else and not at the scene, then he must be acquitted.” Although the appellant made no objection to this instruction and is, therefore, foreclosed from assigning error as a matter of right, he relies upon Maryland Rule 756 g in urging us, in our discretion, to take cognizance of a plain error. In Brown v. State, 14 Md. App. 415 , 287 A. 2d 62 , Judge Powers analyzed our discretion under Rule 756 g and concluded that we may take cognizance of plain error where that error is one of commission rather than of mere omission. In the exercise of our discretion, we elect to consider the question because of our belief that the issue is one likely to recur.

We hold that the instruction constituted a plain error of commission, although for reasons hereinafter to be discussed, we think the error was in this case harmless. Although Maryland has never, in explicit terms, dealt with the question of whether alibi is an affirmative defense or spoken to the defendant’s burden of proof vis-a-vis an alibi, the clear intimations of Floyd v. State, 205 Md. 573, 581 , 109 A. 2d 729 , are that the alibi simply erodes the State’s proof of criminal agency: “[A]ll the evidence in a criminal case is to be considered together, and the jury are not to weigh ⁴⁵⁸ merely the evidence relating to the alibi and determine from that alone whether they have a reasonable doubt of guilt. To warrant a conviction in a criminal case the charge must be proved beyond a reasonable doubt. Wood v. State, 192 Md. 643, 649 , 65 A. 2d 316 .

If the jury, considering all the evidence, inculpatory and exculpatory, entertain a reasonable doubt of the defendant’s participation in the crime, they should acquit him. Thus a defendant is entitled to acquittal if the alibi testimony, taken into consideration with all the other evidence in the case, raises a reasonable doubt of guilt.” See also Basoff v. State, 208 Md. 643, 655 , 119 A. 2d 917 . Although there is some precedent for speaking of alibi as “an affirmative defense,” it is the broad consensus of authority that such a reference is correct only in the sense that it places a burden on the defendant to go forward with evidence which is peculiarly within his province to produce. That burden of going forward with the evidence should never be confused with a burden of proof, which in a criminal case does not shift away from the State.

Even the burden of going forward with the evidence, moreover, is only to the extent necessary to negative the State’s proof beyond a reasonable doubt of one of its critical elements. In 1 Wharton’s Criminal Evidence, § 23, “Alibi,” the point is made very clear, at pp. 38-39: “There is some conflict as to the burden and degree of proof of the defense of alibi. Some of this conflict may undoubtedly be explained by a failure to recognize the distinction between the burden of proof and the burden of going forward with the evidence. Because the burden of presenting evidence of a fact peculiarly within the defendant’s knowledge may be placed upon him, it is proper to hold that the defendant must in the first instance go forward with evidence in support of