Smith v. State

HARRELL, Judge. Appellant, Latina Rose Smith, seeks reversal of her first-degree murder and robbery convictions rendered by a Baltimore County jury. The same jury acquitted her of robbery with a deadly or dangerous weapon. Her appeal is dependent ⁴⁸ on our review of the propriety of the trial court’s denial of her Motion to Transfer Venue 1 .

We shall affirm. ISSUES In reflecting on appellant’s single appellate contention 2 , we discern that she actually presented this panel with a more complex set of sequential questions that we have restructured below for purposes of analysis: I. What was the proper allocation of the burden of production of evidence at the venue hearing?

II

What was the proper allocation of the burden of proof at the venue hearing?

III

What standard of proof was applicable at the venue hearing?

IV

What discrete facts were required to be demonstrated in order to establish the proper venue for appellant’s murder trial pursuant to Md. Ann.Code art. 27, § 586A? V. What discrete facts were required to be demonstrated in order to establish proper venue for appellant’s murder trial pursuant to Md. Ann.Code art. 27, § 590?

VI

Did appellant produce evidence sufficient to generate the issue of venue for the murder charges?

VII

Did the State sufficiently prove proper venue at the venue hearing for the murder charges?

VIII

Was venue proper in Baltimore County for appellant’s robbery trial? FACTS We repeat here only those facts deemed either relevant to the trial judge’s venue determination or contextually support ⁴⁹ ive. Appellants’ Motion to Transfer Venue requested, in pertinent part, that this Honorable Court pursuant to [Md. Ann.Code art. 27, § 586A] transfer this case to its proper jurisdiction and in support thereof states the following: 1. That the Defendant has been charged with first degree murder and other related offenses resulting from an event that occurred on [10 February] 1995. 2.

The Defendant was a back seat passenger in a [car]. 8. The State alleges that the Defendant feloniously murdered the victim, Myra Harrison. 4. This was brought to the attention of the authorities by an eyewitness who allegedly observed the Defendant placing the [victim’s] body at or near Carroll Road, one-fourth mile south of Sparks Road [in] Baltimore County. 5. That the State further alleges that the Defendant and Co-Defendant, Rronwynn Byers, picked up the alleged victim, Myra Harrison, from her employment at Johns Hopkins Hospital [in] Baltimore City. 6.

The parties then proceeded to drive on the [Jones Falls Expressway or] JFX. The alleged felonious blows occurred on the JFX at or near Cold Spring Lane. 7. That this location is clearly within the Baltimore City limits---- At the venue hearing, appellant offered the testimony of William Matthews, a Survey Computations Supervisor with the Department of Transportation. He testified that the Cold Spring Lane interchange on the JFX is approximately two to two and one-half miles south of the Baltimore County-Baltimore City boundary and within the city limits.

He further testified that the Northern Parkway exit is closer to the boundary than the Cold Spring Lane exit, yet within the confines of the city. Appellant then testified regarding the location of the occurrences of 10 February 1994. She stated that, at approximately 7:15 a.m., she and Ms. Byers drove to the Johns Hopkins ⁵⁰ Hospital to meet the victim, Myra Harrison. Appellant sat in the back seat, while the victim was a passenger in the front seat.

Ms. Byers drove the vehicle. Soon thereafter, the vehicle entered the northbound lanes of the JFX. A fight quickly ensued between Harrison and appellant. Appellant admitted that, during the altercation, she struck the victim but never admitted to using a knife.

Apparently, Ms. Byers pulled the car to the side of the JFX, “a little past” the Northern Parkway exit after Harrison complained that she could not breathe. During the interlude, appellant noticed that the victim was “slumped” over and had blood on her chest. Appellant, despite her lack of medical training or experience, checked Harrison’s wrist and found no pulse. After waiting a few minutes, the women continued north on the JFX into Baltimore County.

The State, in its rebuttal, offered only the testimony of Baltimore County Police Lieutenant Bruce McGuire. Lt. McGuire, during a 10 February 1994 routine patrol, was driving along Carroll Road in Baltimore County. After observing several citizens along the side of that road, Lt.

McGuire stopped and alighted from his vehicle at approximately 8:43 a.m. The officer then observed and inspected the body of Myra Harrison where it lay on the side of Carroll Road. He discerned the following regarding the condition of the body. Well, it was inside a green plastic bag and the feet were sticking out.

And when you couldn’t—you could actually look inside. And when you look [sic] inside you could see an area of the chest; you could see some type of wound, although I couldn’t tell what it was. I couldn’t see her face, but there was no blood coming out of the wound and there was absolutely no movement on the body. Subsequent to argument by counsel, the judge stated: What I have before me today is the testimony of Mr. William Matthews, who was the expert called by the Defendant on the motion to establish where the City line-County line location is; I further have testimony from the Defen ⁵¹ dant, herself, Latina Rose Smith, indicating that she and the victim were in a physical altercation at times when a vehicle you (sic) which she says was operated by Miss Byers was on the [JFX] in a northbound direction toward Baltimore County; I also have testimony from Ms. Smith that she was involved in a fistfight with the victim, and that is the only evidence of force that I have before me.

I do not have before me any evidence of a stabbing; I don’t have any evidence of an exact cause of death or instrumentality utilized. I’m assuming that Miss Harrison died based upon the testimony of the Police Officer who was called by the State and his description of a body that was found in Baltimore County, but I do not know what, the cause of death, what caused the death of Miss Harrison. And as, as I have indicated, the only testimony that I have regarding any blows struck by Miss Smith on the victim, Miss Harrison, is her description of a fistfight. There’s never a description of any kind of weapon, such as a knife used. [Appellant’s counsel], in her argument, has referred to a stabbing, but I don’t know that any stabbing, in fact, ever took place from the testimony ... that I have before me.

The trial judge, faced with a dearth of evidence relevant to the determination confronting her, was constrained to make only limited factual conclusions. The trial judge apparently determined that a mobile fracas between appellant and the victim occurred on the JFX and the victim’s lifeless body was found in Baltimore County. Based upon the evidence adduced at the hearing, we conclude that the court’s determination of these facts was not clearly erroneous. The court did not consider any expert evidence regarding the cause of death. 3 The trial judge received some evidence ⁵² concerning the victim’s death from two lay sources.

First, appellant testified that the victim, while still in Baltimore City, had no apparent pulse, had blood on her chest, and assumed a “slumped” posture after the fistfight. Lt. McGuire, on the other hand, testified that he found the victim’s body in Baltimore County with chest wounds. STANDARDS OF REVIEW As implied, supra, we review the judge’s decision to determine if her factual conclusions were clearly erroneous.

See Martin v. State, 113 Md.App. 190, 251 , 686 A.2d 1130 (1996) (concluding that trial judge’s factual determinations regarding venue were not clearly erroneous). In the instant case, we divine that the trial judge’s limited factual conclusions were not clearly erroneous and were supported by the evidence adduced at the hearing. 4 ' ANALYSIS Maryland courts have consistently drawn a distinction between venue and jurisdiction. Much of the reasoning employed in this opinion turns on that distinction. Venue is the place where the trial may properly occur.

See McBurney v. State, 280 Md. 21, 31 , 371 A.2d 129 (1977). Jurisdiction, on the other hand, refers to the power of the court to adjudicate the matter before it. Id. Some sovereigns’ courts use the term “jurisdiction” or “territorial jurisdiction” to connote the aggregate of jurisdiction and venue.

We do not. Appellant only questioned the proper venue for her trial. Appellant does not object to the jurisdiction of the Circuit Court for Baltimore County. A circuit court of this State has full common law jurisdiction in all criminal trials for ⁵³ crimes committed in Maryland except when limited by statute.

Md.Code Ann., Cts. & Jud. Proc. § 1-501. “It is assumed, necessarily, in any question as to venue, that the court of such a place has jurisdiction over the subject matter”. McBurney, 280 Md. at 31 n. 8, 371 A.2d 129 (quoting 1 Wharton’s Criminal Procedure (12th ed.1974) § 36). Appellant argued that venue was proper in Baltimore City, thereby conceding proper jurisdiction in Maryland.

Therefore, we shall not consider any subject matter jurisdictional question. Of course, if presented with facts raising such jurisdictional issues, we would be compelled to consider such without regard to appellant’s failure to object. Jurisdiction over the subject matter of the trial is not susceptible to waiver and may be raised by this Court, or any other, sua sponte. See McDonald v. State, 61 Md.App. 461, 468 , 487 A.2d 306 (1985).

I. The parties, in their briefs, have ignored the burdens of proof and production applicable at the venue hearing in this case. Perhaps one reason for this omission is that no Maryland case has specifically identified the allocation of such. As these matters are fundamental to any analysis of the trial judge’s venue decision, we first turn to the task of divining the burdens of production shouldered by appellant at the venue hearing. Improper venue is a “defense or objection” which, under Md. Rule 4-252, must be raised by motion before trial.

If the issue is not raised in a timely motion it is waived. See, e.g., Spencer v. State, 76 Md.App. 71 , 543 A.2d 851 (1988); Lett v. State, 51 Md.App. 668 , 445 A.2d 1050 (1982); see also McBumey, 280 Md. at 32-33 , 371 A.2d 129 . Therefore, the burden is initially placed upon the criminal defendant to raise the issue. That initial obligation, however, is not the extent of a defendant’s burden.

A criminal defendant must do more than make a bare allegation of improper venue. The burden of production of evidence is also initially upon the defendant. ⁵⁴ That conclusion is founded upon existing case law and the correlation between jurisdiction and venue. In McDonald v. State, 61 Md.App. 461, 469 , 487 A.2d 306 (1985), we determined that an appellant claiming a lack of jurisdiction was charged with the burden of producing sufficient evidence to generate the issue. As discussed previously, jurisdiction is the power of the court to hear the case.

Venue, alternatively, pertains to the place of trial. See, id. at 467-68 n. 1, 487 A.2d 306 ; Guarnera v. State, 23 Md.App. 525, 528 , 328 A.2d 327 (1974). Jurisdiction and venue, although both founded in locality, differ. Despite this discord, we believe ultimately, but not reflexively, that the same burden of production applicable to jurisdictional queries should be assigned to defendants claiming improper venue.

We first note, despite appellant’s averments to the contrary, that proper venue is not a fundamental right. 5 Indeed, venue may be waived by a criminal defendant. See Spencer, supra. Jurisdiction, on the other hand, cannot be waived by a criminal defendant or conferred upon the court by consent. “It is fundamental that jurisdiction resides solely in the courts of the state where the crime is committed.” McDonald, 61 Md.App. at 468 , 487 A.2d 306 (citing as authority, inter alia, Huntington v. Attrill, 146 U.S. 657 , 13 S.Ct. 224 , 36 L.Ed. 1123 (1892); Urciolo v. State, 272 Md. 607 , 325 A.2d 878 (1974)). Essentially, protection of a defendant’s right to proper jurisdiction is deemed more precious than securing her right to proper venue.

Nevertheless, in McDonald , we effectively decided that, despite its fundamental nature, the burden ⁵⁵ of production of evidence regarding jurisdiction rested squarely upon the defendant. We conclude that a defendant objecting to the non-fundamental aspect of venue should face a like burden of production. Therefore, we conclude that it is not erroneous for a trial judge to require a defendant to meet an initial burden of production at a venue hearing. Appellant, in the instant case, was required to adduce some evidence of the facts essential to the venue determination.

Of course, the evidence produced may be direct or circumstantial. The situs of a crime, for jurisdictional purposes, may be established by circumstantial evidence. Breeding v. State, 220 Md. 193 , 151 A.2d 743 (1959); McDonald, 61 Md.App. at 468 , 487 A.2d 306 . Again, despite the distinction between the terms jurisdiction and venue, McDonald, 61 Md.App. at 467 -68 n. 1, 487 A.2d 306 .; State v. Jones, 51 Md.App. 321, 323-24 , 443 A.2d 967 (1982), both concepts rely upon a proffer of evidence regarding the locus criminis, or location of the crime.

McDonald, supra. A fortiori, circumstantial evidence may also be used as evidence to establish the locus criminis for venue purposes. Therefore, Ms. Smith was required to produce some relevant evidence, direct or circumstantial, of improper venue.

II

Because the State is responsible for selecting the place of trial, it is logical that it should be required to justify its selection after the issue is placed in dispute properly by a criminal defendant. Our review of Maryland cases, and those of other states, did not reveal a single circumstance requiring or suggesting that it was the burden of a defendant to prove proper venue. Alternatively, we unearthed scores of cases assessing that burden to the State. See 1 Wharton’s Criminal Procedure § 34, (13th ed. 1989 & Supp.1996); 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 16.1(c), (1984); Annotation, Comment Note—Necessity of Proving Venue or Territorial Jurisdiction of Criminal Offense Beyond Reasonable Doubt, 67 A.L.R.3d 988 (1975 & Supp.1996). ⁵⁶ Therefore, we conclude that the State shoulders the burden of proof of venue.

In the instant case, if the defendant cleared the initial production hurdle, the State was then required to prove venue.

III

Although the State must prove proper venue, it need do so only by a preponderance of the evidence. Our assessment of that particular standard is founded upon an analysis of persuasive cases from other states addressing the same issue. Several states have decided the issue and apparently are split as to the appropriate standard. Some assign a “beyond a reasonable doubt” standard although others merely require venue to be proven “by a preponderance of the evidence”.

We discern one thread consistently found throughout these venue cases. The correlation between venue and the essential components of the crime charged is the determinative factor. Specifically, the standard of proof applicable to a venue determination turns upon the status of criminal venue, under the laws of the sovereign, as an element of the crime charged. States that require that venue be proved beyond a reasonable doubt maintain “that venue is a material fact or issue in a criminal prosecution.” Necessity of Proving Venue or Temtorial Jurisdiction of Criminal Offense Beyond a Reasonable Doubt, swpra at 998.

Alternatively, “those jurisdictions which adhere to the rule that venue of a crime need not be proved beyond a reasonable doubt often propound as a rationale for this rule the view that venue is not an element or part of the offense charged.” Id. at 1003-04 . We find persuasive the rationale employed by numerous states that have applied a preponderance of the evidence standard. For example, in State v. True, 330 A.2d 787 (Me.1975), the court decided that venue was not an essential element of a crime. Id. at 791 .

A determinative factor in that case was the distinction between jurisdiction and venue. The court determined that jurisdiction, which must be proven beyond a reasonable doubt, was of a greater gravity than venue. Id. The Court further determined that the “essential ⁵⁷ rights of a defendant are satisfactorily protected if [venue] is decided by a fair preponderance of the evidence.” Id. at 792 .

Likewise, in State v. Brown, 97 R.I. 95 , 196 A.2d 138, 141 (1963), the court decided that It is incumbent upon the State to prove beyond a reasonable doubt the existence of every essential element of the offense charged, and at no time is the defendant under obligation to offer evidence to disprove the existence of such elements .... It is true, of course, that the State in a criminal prosecution must establish the place at which the offense charged was committed in order to establish venue. However, this ... not being an element of the offense ... need not be proven beyond a reasonable doubt. In State v. Roblow, 623 So.2d 51 (La.App.1993), a court also determined that venue was not an element of the crime.

In Roblow , however, the basis for that decision rested upon Louisiana’s mandatory preliminary motion regarding venue. Simply put, Louisiana defendants, like those in Maryland, waive the issue of venue if they fail to file a timely motion objecting to venue. Venue, because of its susceptibility to waiver, was deemed not to be an essential element of the crime charged. Id. at 55 .

As we have established, Maryland does not consider venue to be a fundamental right or requirement. McBurney, 280 Md. at 33 , 371 A.2d 129 ; Kisner v. State, 209 Md. 524, 531 , 122 A.2d 102 (1956); Spencer v. State, 76 Md.App, 71, 543 A.2d 851 (1988). In Maryland, venue requirements may be altered by the legislature and may be waived, either expressly or by failure to make a timely objection. Id. at 527, 122 A.2d 102 .

Jurisdiction, however, may not be waived nor may it be conferred by consent. “It is fundamental that jurisdiction resides solely in the courts of the state where the crime is committed.” McDonald, 61 Md.App. at 468 , 487 A.2d 306 . Clearly, Maryland courts, like the True, Brown, and Roblow courts, treat jurisdiction with a greater amount of gravity than venue. Similarly, we shall conclude that a defendant’s non-fundamental right to proper venue is not tarnished by holding ⁵⁸ the State to a lesser degree of proof than is required for jurisdictional inquiries. Yet another case, State v. Dent, 67 Wash.App. 656 , 840 P.2d 202 (1992), decided that the importance given to venue by a state constitution did not render venue so vital that it requires the greatest standard of proof.

Washington, like Maryland, has a constitutional provision enunciating the importance of venue. 6 Nevertheless, both States have determined that the state constitutional provision does not render venue a fundamental right of an accused. The Washington court decided that venue is neither a fundamental right nor an element of the crime. Thus, Washington allows the lesser standard of proof for its criminal venue determinations. We concur.

Finally, and perhaps most illustrative of the phenomenon, are two Iowa cases that provide a glimpse of the rationale employed by a. court that first assessed a beyond a reasonable doubt standard and subsequently lessened that requirement. The change of heart stemmed from modified statutory treatment of venue manifested in the interim between the trials of the two cases. In both cases, the Iowa Supreme Court consistently acknowledged the split in the precedent of the various states. It also asserted its perceived basis for that split. [The difference of position in the various jurisdictions passing on the question seems to be based on whether venue is regarded in that jurisdiction as being a material part of the offense or material allegation of the indictment on the one ⁵⁹ hand or as not being an integral part or a material element of the offense on the other.

State v. Wardenburg, 261 Iowa 1395 , 158 N.W.2d 147, 151 (1968); see State v. Allen, 293 N.W.2d 16, 20 (Iowa 1980) (noting the distinction drawn in Wardenburg, and intimating still valid). The dichotomy demonstrated by the Wardenburg and Allen decisions exhibits how one state’s supreme court addressed, and then altered, the standard of proof for venue determinations. In Wardenburg , the court decided that, in a prior case, State v. Brooks, 222 Iowa 651 , 269 N.W. 875 (1936) 7 , it had, at least inferentially, required venue to be proved beyond a reasonable doubt. As quoted above, the court also acknowledged that a split of authority had occurred in other states.

Under the statute then in force, the Wardenburg court determined that venue was a “jurisdictional fact which the State must prove as a vital ingredient of any prosecution.” Warden-burg, 158 N.W.2d at 151-52 . Therefore, under the statute as it then existed, venue was such an integral part of the prosecution of a crime so as to require that it be proved by the strictest of evidentiary standards, i.e., beyond a reasonable doubt. Twelve years later, and after enactment of a new venue statute, the court considered State v. Allen, supra. Under the new statute, venue was no longer considered jurisdictional.

More important to our analysis, the new statute rendered ⁶⁰ venue so incidental that it could be waived by the defendant’s failure to object. Specifically, the court posited: [I]n Wardenburg , this court determined ... that venue must be proved beyond a reasonable doubt. Noting a split of authority elsewhere as to whether venue should be proved by a reasonable doubt or by a preponderance of the evidence, the stricter standard was chosen because of the view, justified by the statute then applicable, that venue was a jurisdictional fact and a vital ingredient of any prosecution .... [Ujnder our current venue