State v. Devers and Webster

Singley, J., delivered the opinion of the Court. Raymond G. Devers and Bryan D. Webster were jointly tried before a jury in the Circuit Court for Prince George’s County. Devers was found guilty of subornation of perjury and Webster of perjury. In Devers and Webster v. State, 9 Md. App. 366 , 264 A. 2d 291 (1970), the Court of Special Appeals reversed the convictions because it found error in the trial court’s denial of motions for judgments of acquittal and for a new trial and remanded the cases for a retrial.

We granted certiorari. Devers’ and Webster’s convictions were the end product of a domestic dispute between Devers and his wife. In ³⁶² August, 1968, Mrs. Devers had left her husband and had gone to live with Mrs. Bernice Anderson. During the period from September to December 1968, Mrs. Devers or Mrs. Anderson had sworn out four criminal warrants, charging Devers with stealing his own lawnmower, disorderly conduct, disturbing the peace and making harassing telephone calls on 29 November and 23 December 1968, the latter charge being in violation of Code (1957, 1967 Repl.

Vol.) Art. 27, § 555A. These four charges came on for trial in February 1969 in the Circuit Court for Prince George’s County before Bowie, J., and a jury. At the conclusion of the Staté’s case, motions for judgments of acquittal were granted as to all the charges except that involving the telephone calls allegedly made at 7:35 and at 9:10 on the evening of 29 November, which Devers then defended. Webster, called as a witness in Devers’ behalf, testified that on the day when the telephone calls were alleged to have been made, he had flown Devers to Hancock, West Virginia, leaving Hyde Field in Prince George’s County at approximately 12:30 p.m. and returning to the field at approximately 8:30 p.m.

On cross-examination, Webster testified that he had not worked at the Chesapeake and Potomac Telephone Company in Silver Spring, Maryland, where he was employed, on 29 November. He said that he had worked on the 28th, which was Thanksgiving Day, but did not work on the 29th. Devers then took the stand and confirmed the story of the trip. The jury returned a verdict of not guilty.

Subsequently, Webster was indicted for perjury and Devers for subornation of perjury. The cases came on for trial in August, 1969, again before Bowie, J., and a jury. There was testimony which both discredited and supported Devers’ alibi. Both Mrs. Devers and Mrs. Anderson testified that they had recognized Devers’ voice when the telephone calls were made.

Mrs. Devers testified that she had seen her husband about 6 p.m. on 29 November in Lyle’s Restaurant and again later that evening when he attempted to run his car into hers. Mrs. Anderson ³⁶³ said she had not seen Devers but had seen his car chasing Mrs. Devers’, when she opened the garage doors to admit Mrs. Devers’ car. Herbert Palm, a telephone company foreman, testified that the company’s work schedule showed that Webster had not worked on Thanksgiving Day, but had worked on the 4:00 p.m. to midnight shift on Friday, 29 November, and that a timecard, signed by Webster, bore this out. Edna May Rittershofer, a payroll processing supervisor for the telephone company, testified that the company’s records showed that Webster had a holiday on Thanksgiving and worked on 29 November.

Had he worked on Thanksgiving, he would have received $40 additional pay, which he had never claimed. Crestón Garner, Jr., Webster’s immediate supervisor, called as a rebuttal witness by the State, testified that Webster was a switchman, scheduled to work on the 4:00 p.m. to midnight shift on 29 November; that two switch-men are the minimum who must be on duty; that between 4:00 p.m. and 5:00 p.m. each day, it is his practice to verify that they are on duty, and that if Webster had not reported by 5:00 p.m. on 29 November he would have “panicked immediately” and made a record of the fact, which he had not. There was considerable testimony adduced in support of the alibi. No witness testified that he had seen Webster at work, although Webster conceded that it was improbable that he would not have been seen by the other switchman.

Terry Harden, whose mother had previously stayed at Devers’ house, testified that he had met Devers and Webster at Lyle’s Steak House on the morning of 29 November and had left Hyde Field with them at 11:30 a.m. in Webster’s plane to fly to West Virginia to look at some family properties. He took them to the West Virginia airport about 7:00 p.m., but did not return with them. Stephen E. Ellis testified that he saw the plane leave Hyde Field at 12:30. There was introduced in evidence Webster’s pilot log, which contained an entry respecting ³⁶⁴ the trip.

Webster admitted that the entry had been made sometime later. Vivian Springman, a practical nurse, worked for a registry run by Mrs. Lois Zagri. She testified that she and Mrs. Zagri had made an appointment to see Devers at Devers’ house at 7:30 p.m. on 29 November. They went to Devers’ house, and finding him not there, drove to Hyde Field where Webster’s plane arrived at about 8:30 p.m.

Devers took Webster somewhere, and then returned to his house where he again met Vivian Springman and Mrs. Zagri. Mrs. Zagri substantiated this testimony. Webster repeated the testimony which he had given at the earlier trial concerning the trip to West Virginia, but explained that he had reported for work about 11:00 p.m. on 29 November, and had worked the eight hours shown on his timecard by staying on the job until 6:30 a.m. He admitted that he had been mistaken when he testified at the earlier trial that he had worked on Thanksgiving.

Devers reiterated the testimony he had given at the earlier trial about the trip to West Virginia, and denied that he had seen his wife at Lyle’s Steak House, or had attempted to run her off the road. Just before the State put on Crestón Garner, Jr., as a rebuttal witness, counsel had a conference with Judge Bowie in chambers at the request of the State. There were present James E. Fannon, Jr., Assistant State’s Attorney; Vincent J. Femia, Assistant State’s Attorney; James E. Kenkel, Deputy State’s Attorney, and Arthur Dale Leach, counsel for the defendants. The purpose of the conference was the State’s desire to obtain a continuance so that an out of state witness could be produced.

In. the course of a long colloquy, which ultimately resulted in a denial of a continuance, Judge Bowie made two comments: THE COURT: “* * * Now, Mr. Fannon [Assistant State’s Attorney], let me say this, if this were the world’s worst murder case, if this was ³⁶⁵ a seriously involved case, if it were not for the fact that I sat on these other cases and had thrown the other three out — there are certain indications that have come into this trial which indicate they weren’t fully and completely resolved, which they were. Now, I am just trying to say that that is the fact. Here you have got a family squabble in here and this case should never have gone to trial. If it weren’t for the fact I sat on those other cases, and if it weren’t for my confidence the jury is going to acquit this man, I would give him a judgment of acquittal like that, and there isn’t a court attendant that doesn’t feel the same way about it.

I don’t know what has got in your craw, but I think this is one good reason why everybody is going to go out of office, really I do. I think this case is a disgrace. And I will say this to every one of you, it is an absolute disgrace. * * *” * * * “Somebody says out of the courtroom — the rumors that go all over the courthouse about what is going on here, and about some other criminal case that was involved, but I must say we are here to try this one case. And I will tell you if I hadn’t sat in those others — and the people involved on the other side, there are such hard feelings by the phone company and by the people with Mrs. Devers, that the jury is going to get this case come no matter what.

I am just going to let the jury determine it. I am not going to do it. But if I had to determine it I would throw it out in a minute.” The conference ended, and Mr. Garner testified. At the conclusion of all the evidence, the defendants renewed the motions made at the close of the State’s case for judgments of acquittal.

The motions were denied, and the case went to the jury, which returned guilty verdicts as ³⁶⁶ to both men. Devers’ and Webster’s motion for a new trial was denied and each of them was sentenced to two years’ imprisonment, but the sentences were suspended. On appeal, the Court of Special Appeals reversed on the ground that the trial court erred in denying the motions for judgments of acquittal and because the court failed to apply the proper test in considering the motion for a new trial. On the first point, the court said: “When a motion for judgment of acquittal is made in a jury case it is the function of the lower court to determine whether or not the evidence before it is sufficient in law to sustain a conviction.

If it determines that it is, it should deny the motion and submit the case to the jury; if it determines that it is not, it should grant the motion and the case does not reach the jury. It is the function of this Court when the question is properly before it, to determine whether the lower court erred in denying a motion for judgment of acquittal. The test to be applied is whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. If there was such evidence there would be no error in denial of the motion; if there was no such evidence, denial of the motion would be reversible error.

See Williams v. State, 5 Md. App. 450, 452-460 . “However, the instant case does not reach us with regard to the denial of the motions for judgment of acquittal in the usual posture. We think it fundamental to the rights of a defendant that the lower court deny a motion for judgment of acquittal only on the basis that it has considered the evidence adduced, and recognizing that its weight and the credibility of the ³⁶⁷ witnesses are matters for the jury, finds that the evidence in law was sufficient to sustain the conviction. We can only conclude that in the instant case the lower court’s denial of the motion for judgment of acquittal made by each appellant at the close of all the evidence was influenced by other factors to the extent that the appellants were denied due process of law. Thus we must reverse the judgments and do so without reaching the question of the sufficiency of the evidence per se.

We reach our conclusion from remarks made by the lower court. * * *” 9 Md. App. at 368-69 . * # * “We are constrained to conclude that the court denied the motions for judgment of acquittal because it was leaving the question of guilt to the jury ‘no matter what.’ That the court was confident the jury would acquit was not a proper basis for a denial of the motions. Nor could the court properly slough its responsibility to decide whether or not the case should go to the jury because it had sat in other cases, apparently involving appellants, or because of ‘hard feelings’ on the part of the parties involved. We think appellants were entitled to have their motions determined by the court applying the proper test and that the record affirmatively shows that the motions were not so determined. * * *” 9 Md. App. at 370 . On the second point, the Court said: »* * * We noted in Pinkney [Pinkney v. State, 9 Md. App. 283 , 263 A. 2d 871 (1970)] that the test as to the sufficiency of the evidence with respect to the grant of a new trial is broader in scope than the test as to the sufficiency of the evidence with respect to the grant of a motion for judgment of acquittal.

For in determining a ³⁶⁸ motion for judgment of acquittal the lower court does not weigh the evidence or judge the credibility of the witnesses; those matters are for the trier of fact. But in determining a motion for a new trial, the lower court must weigh the evidence and judge the credibility of the witnesses; only in so doing is it able to ascertain whether there is such a preponderance of proof in favor of the accused ‘as to show that manifest injustice has been done by the verdict.’ See Johnson v. State, 219 Md. 481, 483 ; Brown v. State, 237 Md. 492, 499 . In denying the motion for a new trial the lower court \i.e., Bowie, J.] disposed of the ground that the weight and sufficiency of the evidence did not support the conviction by asserting that the weight and sufficiency of the evidence were not for it. It said: ‘We conclude that the weight and sufficiency of the evidence is for the jury to decide and not for the Court.

Once the case goes to the jury, assuming that it properly is presented to the jury on a question of fact, then the weight and sufficiency of the evidence is totally for the jury and not for the Court to determine, on a motion for judgment of acquittal at the end of the State’s case and at the end of the entire case, as to whether there is sufficient evidence to present a question of fact of guilt or innocence to the jury. We concluded, on the basis of the State’s theory of the case, that they had presented sufficient to go to the jury and for the jury to consider it. Once this was done, of course, the weight and sufficiency was up to the jury.’ This was manifestly incorrect with respect to the grant of a new trial. It discards completely the safety valve as to improper verdicts which is established by the rule as to new trials and which is a raison d’etre in giving trial courts ³⁶⁹ discretionary power as to the grant of a new trial.

The court here clearly did not consider the weight of the evidence in determining the motion before it. This was as much an abuse of its discretion as the refusal to consider newly discovered evidence. See Burley v. State, 239 Md. 342, 344 ; Givner v. State, 208 Md. 1 .” 9 Md. App. at 371-73. We take a somewhat different view of the matter.

We find error neither in the denial of the motions for judgments of acquittal nor in the denial of the motion for a new trial. The Motions for Judgments of Acquittal One of the oddities of our practice is that by virtue of the Constitution of Maryland (1867) Art. XV, § 5, “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact.” The history of this provision is treated in Wyley v. Warden, Md. Penitentiary, 372 F. 2d 742 (4th Cir. 1967), cert. denied, 389 U. S. 863 , 88 S. Ct. 121 , 19 L.Ed.2d 131 (1967). An amendment to our Constitution, which became effective 1 December 1950, left the basic concept undisturbed but added the proviso, “except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” Prior to the adoption of this amendment, this Court had no power to review the sufficiency of evidence on appeal of a criminal case tried to a jury. Compare Brown v. State, 237 Md. 492, 499 , 207 A. 2d 103 (1965) and Giles v. State, 229 Md. 370, 384 , 183 A. 2d 359 (1962) with Slansky v. State, 192 Md. 94 , 63 A. 2d 599 (1949).

The amendment had been implemented by Chapter 596 of the Laws of 1949, now Code (1957, 1967 Repl. Vol., 1970 Cum. Supp.) Art. 27, § 593: “§ 593. Jury to be judges of law and fact; motion for judgment of acquittal on ground of insufficiency of evidence. “In the trial of all criminal cases, the jury ³⁷⁰ 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.” and by Rule 755: “Rule 755. Motion for Judgment of Acquittal. “a.

Supersedes Motion for Directed Verdict. The motion for a directed verdict of not guilty and the motion for an instruction that the evidence is insufficient in law to sustain a conviction are abolished and the motion for judgment of acquittal shall be used in their place. “b. When Made. 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 at the close of the evidence offered by the State, or may be made at the close of all the evidence, whether or not such motion was made at the close of the evidence offered by the State.

If the motion is not granted at the close of the evidence offered by the State, the accused may offer evidence without having reserved the right to do so, but by so doing, he withdraws his motion. ³⁷¹ “c. Action by Court. If the court on such motion or on its own motion determines that a judgment of acquittal should be granted, it shall direct the clerk to enter a judgment of acquittal on one or more counts, or one or more degrees of an offense which by law is divided into degrees, and to note that it has been entered by the direction of the court. If the case is tried before a jury it shall not be necessary for the jury by its foreman, or otherwise, to render a verdict.” which taken together, permit a defendant in a criminal case being tried before a jury to move for a judgment of acquittal at the close of the evidence offered by the State and again at the close of all the evidence, and in the event the motion is denied, the ruling may be reviewed on appeal, Gray v. State, 254 Md. 385 , 255 A. 2d 5 (1969).

As a practical matter this permits the court to which an appeal is taken to pass on the sufficiency of the evidence, Giles v. State, supra. The function of the appellate court is limited, however. It does not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, Brown v. State, supra, 237 Md. at 497 but merely ascertains whether there is any relevant evidence, properly before the jury, legally sufficient to sustain a conviction, Pressley v. State, 244 Md. 664, 667 , 224 A. 2d 866 (1966); Royal v. State, 236 Md. 443, 448 , 204 A. 2d 500 (1964) ; Tull v. State, 230 Md. 596, 604 , 188 A. 2d 150 (1963) ; Lee v. State, 224 Md. 260 , 167 A. 2d 595 (1961) ; Drouin v. State, 222 Md. 271, 288 , 160 A. 2d 85 (1960); Wright v. State, 219 Md. 643, 652 , 150 A. 2d 733 (1959) ; Briley v. State, 212 Md. 445, 447 , 129 A. 2d 689 (1957). The application of this approach to the case before us is a simple one.

If the jury chose to believe the State’s witnesses and disbelieve the testimony of the defendants and their witnesses, as it obviously did, there was evidence legally sufficient