Williams v. State

Orth, J., delivered the opinion of the Court. Each of the appellants was found guilty by a jury in the Circuit Court for Howard County of aiding and abetting in the escape of Harry LaRue McClelland, who was undergoing lawful imprisonment in Patuxent Institution, and with conspiring to aid and abet his escape.' Each appellant was sentenced to the custody of the Commissioner of Correction for an indeterminate period not to exceed 3 years on each conviction, the sentences to run concurrently. On appeal from the judgments the sole contention is that the evidence was not legally sufficient to sustain the convictions. APPELLATE REVIEW OF THE SUFFICIENCY OF THE EVIDENCE We think it advisable to discuss the authority and function of this Court in its review of the sufficiency of the evidence in a criminal case.

The right of a person charged by this State with a criminal offense to be tried by a jury is guaranteed by Art. 5, Declaration of Rights, Constitution of Maryland and Amendment VI, Constitution of the United States. 1 He may, ⁴⁵³ however, waive the right and elect to be tried by the court. 2 Md. Rules, 741. Art. NV, § 5, Constitution of Maryland, prior to the amendment effective 1 December 1950, provided: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of Fact.” 3 As a corollary to this provision, in the absence of other provisions by statute, it became the settled law of Maryland that the Court of Appeals would not pass on the legal sufficiency of evidence to convict in a criminal case where the case was tried by a jury and, by analogy to the constitutional provision, it was repeatedly held by the Court of Appeals that it would not pass on the legal sufficiency of the evidence to convict where the case was tried by the court sitting as a jury. Abbott v. State, 188 Md. 310, 313 . See Jones v. State, 188 Md. 263, 273 ; League v. State, 36 Md. 257 .

Compare Winkler v. State, 194 Md. 1 . The first change with respect to appellate review of the sufficiency of the evidence in criminal cases came with the adoption of the General Rules of Practice and Procedure by the Court of Appeals, effective 1 January 1950. Rule 7(c) of Part Four, relating to Criminal Rules, 4 con ⁴⁵⁴ tained, in substance, the provisions of Rule 1086, Maryland Rules of Procedure, now in effect, and applicable to this Court. 5 Rule 1086 provides: “When a case has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” So it was not until 1 January 1950 that there could be an appellate review to determine the sufficiency of the evidence to sustain a conviction in a criminal case and then such review was limited to those cases tried by the court without a jury. 6 However, Art. XV, § 5 of the Constitution of Maryland was amended, effective 1 December 1950 by adding to the existing provisions the clause “except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” 7 The amendment was implemented by statute, now Md. Code, (1967 Repl. Vol.), Art. 27, § 593, and rule of Court, now Md. Rules, 755. 8 Art. 27, § 593 provides: ⁴⁵⁵ “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.” Rule 755b provides to like effect as to the making of a motion for judgment of acquittal and Rule 755c provides that if the lower 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 it. If the case is tried before a jury it shall not be necessary for the jury to render a verdict.

It is clear therefore that under the present status of the law there may be an appellate review of the sufficiency of the evidence to sustain the conviction in a criminal case. But the issue comes before us in a case tried by the lower court sitting as a jury in a different posture than when the case is tried by a jury. In a non-jury case Rule 1086 specifically provides that we shall review the case upon the evidence (as well as the law) and we must determine whether the lower court was clearly wrong on the evidence in finding a verdict of guilty. In a jury case if the lower court finds upon motion for judgment of acquittal that the evidence is sufficient in law to justify a conviction, it denies the motion, and permits the evidence to go to the jury.

On appeal we determine whether the denial of the motion was proper. It is because of this difference in the posture ⁴⁵⁶ of the issue of the sufficiency of the evidence that we may entertain the issue on appeal in a jury case only upon the denial by the lower court of a motion for judgment of acquittal 9 but we must entertain the issue in a non-jury case when presented on appeal even in the absence of a motion for judgment of acquittal below. 10 See Lotharp v. State, 231 Md. 239 ; Nicholson v. State, 229 Md. 123 ; Elliott v. State, 215 Md. 152 ; Jason v. State, 1 Md. App. 136 . The question arises as to what test is to be applied on appeal in determining- the sufficiency of the evidence (1) to sustain a conviction in a non-jury case, and (2) to justify its submission to the jury in a jury case. The first occasion the Court of Appeals had to apply the rule [then Criminal Rule 7(c)] pertaining to a non-jury case was in Lambert v. State, 196 Md. 57 .

The Court said, page 68: “That rule was adopted for the purpose of preventing a possible miscarriage of justice by permitting the determination of one judge to take away the life or liberty of an accused without a review by any other tribunal. It was not intended, and will not be construed, to permit us to reverse judgments merely be ⁴⁵⁷ cause our conclusion on the record is different from that of the trial judge. It is only intended to prevent manifest error.” The rationale of the rule was again so stated in Edwards v. State, 198 Md. 132, 151 . In the Memorandum on Motion for Reargument in that case the Court discussed the matter at length, noting that it was the first time it was suggested that the provision that “the verdict of the trial court shall not be set aside on the evidence, unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses” means any less than it says.

It answered counsel’s question how the Court of Appeals could ever say that the trial court is clearly wrong by stating, at page 159: “This question can only be answered as and when it is presented, case by case. If we recognize the difference between the roles of triers of facts and appellate courts, and the terms of Rule 7, it is expected that such cases will be rare * * *.” By a long line of cases since Lambert v. State, supra, it has been firmly established that the test to be applied by the Court of Appeals and this Court in reaching a determination of the sufficiency of the evidence in a non-jury case is whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which the lower court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. 11 Shelton v. State, 198 Md. 405 appears to be the first case decided by the Court of Appeals in which Art. XV, § 5 of the Maryland Constitution as amended was applicable. The Court said, at p. 412 that it would not reverse the judgment of the lower court “if there is any proper evidence before the jury oil which to sustain a conviction,” and held that the evidence in that case “was sufficient to warrant its submission to the jury.” The test to be applied by the Court of Appeals and this ⁴⁵⁸ Court in determining whether the case or a particular issue was properly submitted to the jury has been stated a number of times as whether there was any relevant evidence adduced at the trial which would properly sustain a conviction. 12 Although the manner in which the question of the sufficiency of the evidence comes before us when a case is tried by the lower court without a jury is different than when a case is tried below by a jury, we see no material difference in the tests applied in determining the question. It is clear that in each instance the weight of the evidence and the credibility of the witnesses are matters for the trier of facts.

Shelton v. State, supra, at p. 412 and Graef v. State, 1 Md. App. 161 (jury cases); Weaver v. State, 226 Md. 431 and Dunlap v. State, 1 Md. App. 444 (non-jury cases). In order to meet the test of legal sufficiency in any criminal case the evidence must show directly the fact to be proved or support a. rational inference of the fact. The fact must be shown or the inference supported beyond a reasonable doubt or to a moral certainty. Shelton v. State, supra, at pp. 411-412.

And while the clearly erroneous rule is not specifically applicable to jury cases, the Court of Appeals said in Royal v. State, 236 Md. 443 , 448: “[W]e have consistently held that in order to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence it is necessary to show that there was no legally sufficient evidence or inferences drawable therefrom on which the jury could find a defendant guilty beyond a reasonable doubt.” See Coates v. State, 232 Md. 72 ; Wright v. State, 222 Md. 242. Once the question of the sufficiency of the evidence is properly before us, we believe that the criteria used to determine the question is the same, be the verdict rendered by the court or a jury. Whether the test applicable to jury cases is stated in the affirmative — the judgment will be affirmed if there is any relevant evidence before the jury to sustain a conviction — or ⁴⁵⁹ in the negative — to overturn a judgment there must be no legally sufficient evidence on which the defendant could be found guilty beyond a reasonable doubt — it is inherent that to be sufficient in law to justify the conviction within the intent of Art. 27, § 593 the admissible evidence adduced must show directly or support 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 it does, there is “relevant evidence” and if it does not there is “no legally sufficient evidence.” In other words we do not believe that evidence can be sufficient to permit its submission to the jury unless it is sufficient for the jury to find the defendant guilty beyond a reasonable doubt.

And if the appellate review be considered more limited or the test with respect to the sufficiency of the evidence be construed as less demanding to sustain the conviction with regard to a jury trial than with regard to a court trial, serious question might arise as to a violation of the defendant’s right to a trial by jury. We feel that the apparent difference in the stating of the two tests is one of semantics and not substance. When an accused elects to be tried before the court without a jury, the court is substituted for the jury and has the same function in passing upon the guilt of the accused. Smith v. State, 182 Md. 176, 189 ; Berger v. State, 179 Md. 410, 417 ; League v. State, supra, 265.

We think that whether the question comes before us as a contention that the trial court was clearly wrong in reaching a verdict of guilty on the evidence or as a contention that the evidence was insufficient in law so as to preclude it from being submitted to the jury, the test is whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. 13 ⁴⁶⁰ If there was such evidence, the lower court would neither be clearly erroneous, in a trial without a jury, in finding a verdict of guilty, nor in error, in a jury trial, in denying a motion for judgment of acquittal. And if there was no such evidence, the lower court would be clearly erroneous, in a trial without a jury, in finding a verdict of guilty, and in error, in a jury trial, in denying a motion for judgment of acquittal. Whether the lower court was clearly erroneous in its judgment on the evidence in a non-jury case or erred in allowing the evidence to go to the jury in a jury case, we would be obliged to set aside the judgment when the question was properly before us. 14 THE SUFFICIENCY OP THE EVIDENCE IN THE INSTANT CASE A summary of the evidence in the instant case is as follows. It is not disputed that Harry McClelland, 15 the son of appellant Rebecca Evelyn McClelland, the brother of appellant Marva Williams and the husband of appellant Mary Louise McClelland, was lawfully confined in Patuxent Institution.

On 17 May 1967 he was brought to the courthouse in Annapolis by two correctional officers for trial on a charge that he had escaped from the Maryland House of Correction in 1964. When they ⁴⁶¹ arrived at the courthouse it was discovered that Malcom Christensen, also confined at Patuxent, whom McClelland desired as a witness, was not present. McClelland was taken to the county detention center and the officers returned to the Institution for Christensen, arriving back with him about 1:00 P.M. and on the way picking up McClelland at the detention center. McClelland and Christensen were placed in the “bull pen,” a small room “rather antiquated looking” with a little vestibule on the inside. “And it had a small window in the door with a wire screen over it, and it isn’t possible to pass anything from the vestibule into the bull pen itself.” That morning when McClelland was brought to the courthouse the appellants were there and he wanted to speak to them.

He was not permitted to do so at that time because the Sheriff, in whose custody he had been placed, was busy. McClelland “raised quite a disturbance because he was very anxious to talk to them.” When he and Christensen were placed in the bull pen, however, the Deputy Sheriff allowed the appellants to talk to him through the screened window in the bull pen door. They conversed about 10-15 minutes. McClelland and Christensen were then taken to the courtroom by the correctional officers.

No one else had contact with either McClelland or Christensen from the time they left the bull pen until they arrived in the courtroom. The trial started at 1:45 P.M. and concluded at 3:45 P.M. One of the correctional officers was seated on a bench in the courtroom with the appellants. Rebecca McClelland remained in the courtroom during the entire trial but Marva Williams and Alary Louise McClelland left about 5 minutes after the trial began. After the trial was over, the officers handcuffed both McClelland and Christensen immediately outside 1hc courtroom, took them back to the bull pen, put a waist chain and a “connector chain” on them, hooking the two men together, and took them out to the automobile to convey them back to Patuxent.

A classifications officer from the Maryland House of Correction, subpoenaed as a witness at the trial, was also present, as the correctional officers were to drive him to the House of Correction. There was no personal contact with the prisoners by anyone other than the officers from the time they left the courtroom until they reached the automobile, a 1965 Plymouth Fury ⁴⁶² parked at the side entrance to the Court House “as you enter the parking lot.” The three officers sat in the front and the prisoners in the back. As they drove on State route 175 in the vicinity of Crownsville State Hospital, the prisoners yelled “out real loud,” and one said, “Put your hands behind your head and keep driving straight ahead as if nothing happened.” Frank J. Zemanick, one of the correctional officers, turned around and “Christensen had in his hands a .32 automatic pointing directly at me.” The officers did as directed; each passenger put his hands behind his head, the driver drove as if nothing happened. Zemanick was ordered to give the prisoners the keys to the shackles.

He said, “Supposing I don’t?” and received the reply, “We’ll blow your damned head off.” Thereafter the prisoners took possession of the car and escaped. There was testimony that before prisoners leave the Institution “They’re required to strip completely to the skin. They’re given a change of clothing. Prior to being shackled on a return trip from the Court House they’re given a routine shakedown, pat, so to speak.” The prisoners were given this routine shakedown as they left the Court House.

They were “patted down” around the waist and legs. On cross-examination of Zemanick it was developed that the two appellants who had left the courtroom were observed in the corridor near the courtroom during a recess of the trial. The prisoners went to the men’s room during a recess accompanied by the correctional officers and used the urinal. They did not enter one of the enclosed cubicles.

McClelland left first with Zemanick because the bailiff said the trial was about to resume; Christensen remained in the men’s room with the other officer. There was also conversation between McClelland and the appellants in the hall after the trial but “just the normal things” like goodbye. The automobile in which the prisoners were placed after the trial was not thoroughly searched immediately before the prisoners entered it. The seats were not removed, nor did the officers look under or alongside of the seats.

The car was unlocked while it was parked, the usual procedure at Annapolis because “the parking facilities are terrible” and at times there is a trustee “to jockey the cars around in order to get all the cars in there.” Willie Foote, retired, testified that about 9:45 A.M. on 17 ⁴⁶³ May he was standing at the corner of Cathedral and West Streets when two women, whom he identified at the trial as Mary Louise McClelland and a Bernadette McClelland, came up and asked him where they could buy bullets. He told them “There’s a place right there, Henry B. Miles.” Mary Louise McClelland said, “I been there but they didn’t have any.” He told her, “Well go