Yorke v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. I Robin Conner, 15 years of age, asserted that she had been violated. Her allegations resulted in a criminal trial before a jury in the Circuit Court for Baltimore County. The State adduced evidence legally sufficient for the jury to find the corpus delicti of each of first degree rape, first degree sexual offense, kidnapping, and carrying a weapon openly, and the criminal agency of Gary George Yorke.

The jury so found and Yorke was duly sentenced. Seeking to overturn the judgments, Yorke pursued to no avail all of the measures then available to him. On direct appeal the ⁵⁸⁰ Court of Special Appeals affirmed the judgments. Yorke v. State, No. 34, September Term, 1987, unreported, filed 2 October 1987.

We denied Yorke’s petition and a cross petition by the State seeking our review of the judgment of the intermediate appellate court by way of certiorari. Yorke v. State, 311 Md. 386 , 535 A.2d 465 (1988). It seemed that the case of State v. Yorke had reached the end of the judicial process. It had not.

Four years after the crimes were committed, Yorke filed a motion for a new trial. He claimed that he had discovered new evidence. 1 The evidence, he asserted, showed that he was not the criminal agent. The evidence was discovered through an identification technique known as “DNA Fingerprinting,” 2 which was not available in the United States at ⁵⁸¹ the time of his trial. The motion was denied upon a plenary hearing in the Circuit Court for Baltimore County.

Yorke appealed. We ordered the issuance of a writ of certiorari on our own motion before decision by the Court of Special Appeals. II (A) That a new trial may be granted in a criminal case tried to a jury is undoubted. The existence of the power is recognized in Md.Code (1987 Repl.Vol.) Art. 27, § 594, and in Md.Rule 4-331 and its predecessor rules.

It was a power that existed at common law, at least as to misdemeanor cases, although not as to felonies. As long ago as 1859 it seemed well-settled that Maryland courts could ⁵⁸² grant new trials after convictions. See Ford v. State, 12 Md. 514 (1859). In re Petition for a Writ of Prohibition, 312 Md. 280, 308 , 539 A.2d 664 (1988) (footnote omitted).

In that case, Judge Adkins, speaking for a unanimous Court, discussed the power to grant a new trial in a criminal cause. Id., 312 Md. at 307-327 , 539 A.2d 664 . The comprehensive opinion, distinguished by exhaustive research and careful analysis of the law, set out the conclusion that there is a difference, based on the weight of the evidence, between a motion for judgment of acquittal and a motion for a new trial. Id. at 325 , 539 A.2d 664 .

The former, if granted, results in acquittal and the proper test is sufficiency of the evidence to convict. Weight and credibility are not at issue. The evidence must be read from the viewpoint most favorable to the prosecution and if so read any rational fact-finder would find it sufficient, the motion must be denied. The latter, if granted, results only in a new trial.

As a consequence, a court has more latitude in considering it, and may take into account factors such as credibility. Id. The decision “gives limited authority to a trial judge to set aside a verdict that is against the weight of the evidence.” Id. at 326 , 539 A.2d 664 . We declared that a judge has the “authority to weigh the evidence and to consider the credibility of witnesses in deciding a motion for a new trial.” Id.

In so stating, we overruled State v. Devers and Webster, 260 Md. 360 , 272 A.2d 794 , cert. denied, 404 U.S. 824 , 92 S.Ct. 50 , 30 L.Ed.2d 52 (1971), to the extent it holds that sufficiency of the evidence is the standard to be applied on a motion for new trial based on the allegation that a verdict is against the evidence or against the weight of the evidence. In re Petition for a Writ of Prohibition, 312 Md. at 326 , 539 A.2d 664 . We also overruled Devers to the extent it holds that what is now Article 23 of the Declaration of Rights precludes the broader standard of review we here permit. ⁵⁸³ Id. And we overruled “[a]ny other ease, to the extent it so holds....” Id. “To grant or deny a motion for a new trial on the basis that a verdict is against the weight of the evidence is, of course, a discretionary matter.” Id. at 327 , 539 A.2d 664 .

We cautioned, however, that our holding was simply that reviewing weight of the evidence of necessity involves a weighing process, and part of that weighing may implicate consideration of credibility. But a trial judge is not at liberty to set aside a verdict of guilt and to grant a new trial merely because the judge would have reached a result different from that of the jury’s. Motions for new trial on the ground of weight of the evidence are not favored and should be granted only in exceptional cases, when the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to let the verdict stand. And in the area of credibility, a reviewing judge ordinarily should not make a credibility determination if there is nothing more than conflicting testimony; there should usually be at minimum substantial impeachment of a witness before the judge finds that witness’s testimony deficient on the basis of credibility.

Id. at 326-327 , 539 A.2d 664 . (B) In the instant ease, the teachings of In re Petition for a Writ of Prohibition are in the context of a motion for a new trial grounded upon newly discovered evidence. In Stevenson v. State, 299 Md. 297 , 473 A.2d 450 (1984), we noted that “[w]hether or not the [newly] discovered evidence is material to the [outcome of the case] is ... a threshold question.” Id. at 302 , 478 A.2d 450 . We declared: “It should be decided in the affirmative before the court inquires into the possible impact the newly discovered evidence would have on the outcome of the trial.” Id. ⁵⁸⁴ (1) Yorke discovered the new evidence in this manner.

Shortly after the rape, the victim, Conner, was examined by a physician. Vaginal washings were taken and preserved by refrigeration. When Yorke became aware of the DNA Fingerprinting procedure, he had his DNA pattern compared to the DNA pattern that appeared in the still available vaginal washings of Conner. Evidence adduced at the hearing on the motion for a new trial through the testimony of an expert witness and his written report showed that Yorke’s DNA pattern and the DNA pattern in the vaginal washings obtained from Conner did not match.

This evidence was admitted without objection; it was not disputed or refuted. At the close of all the evidence at the hearing, the judge placed his findings on the record. He found that (1) the defense had “met its burden with respect to persuading [him] that the [DNA] procedure is generally acceptable in the relevant scientific community and is reliable.” (2) the evidence presented by the defense was “newly discovered evidence;” and the defense had “diligently pursued this course of action.” (3) the newly discovered evidence was “not cumulative or impeaching, although it touches upon evidence that was presented.” The State did not challenge the judge’s finding that evidence obtained by the DNA Fingerprinting technique was admissible. 3 And the State did not dispute that the evi ⁵⁸⁵ dence offered at the hearing was indeed newly discovered. So the question is whether the new evidence was material, and, if so, what impact it would have on the outcome of the trial.

The determination of its impact on the outcome of the trial would depend upon the standard applied in reaching the determination. (2) The trial judge admitted the newly discovered evidence. As we have seen, he found that “it touches upon evidence that was presented [at the trial].” Inasmuch as he found that it touched upon the evidence presented at the trial, it was “material” to some extent to the outcome of the case. A trial judge has a wide discretion in the conduct of a trial.

The exercise of that discretion will not be disturbed unless it has been clearly abused. Ricks v. State, 312 Md. 11, 31 , 537 A.2d 612 , cert. denied, — U.S.-, 109 S.Ct. 90 , 102 L.Ed.2d 66 (1988); Smith v. State, 299 Md. 158, 179 , 472 A.2d 988 (1984); Poole v. State, 295 Md. 167, 180 , 453 A.2d 1218 (1983). “The principle that the overall direction of the trial is within the sound discretion of the trial judge encompasses the admission of evidence.” Crawford v. State, 285 Md. 431, 451 , 404 A.2d 244 (1979), and cases therein cited. We asserted in State v. Babb, 258 Md. 547, 550 , 267 A.2d 190 (1970), that in a nonjury case: [t]he assumed proposition that judges are men of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence, lies at the very core of our judicial system. ⁵⁸⁶ We find no clear abuse of discretion here in the admission of the DNA evidence. (3) The threshold question of materiality having been satisfied, the next inquiry is the degree of persuasiveness of the new evidence.

In other words, could the new evidence affect the outcome of the trial? And that inquiry can only be determined upon a standard by which the effect shall be tested. (i) Cases in other jurisdictions apply essentially the “might” standard or the “probable” standard. Both are rather nebulous.

It seems that the most precise definition of the “might” standard appears in United States v. Wallace, 528 F.2d 863 , 866 n. 3 (4th Cir.1976): “There is more than a faint possibility of a different jury verdict but something less than a probability.” The “probable” standard, however, remains even more esoteric. It is generally referred to with no greater definement than was set out years ago in Berry v. State, 10 Ga. 511, 527 (1851), which spoke in terms of the evidence being “so material that it would probably produce a different verdict if a new trial were granted.” Other State and federal courts have spoken in equally general terms. See, for example, Holmes v. United States, 284 F.2d 716, 719 (4th Cir.1960) (newly discovered evidence must be of such character as is “likely” to lead to an acquittal on a new trial); State v. Doherty, 72 Vt. 381, 403 , 48 A. 658 (1900) (the evidence must raise a reasonable doubt as to the guilt of the defendant); United States v. Hedgeman, 564 F.2d 763, 766 (7th Cir.1977), cert. denied, 434 U.S. 1070 , 98 S.Ct. 1253 , 55 L.Ed.2d 773 (1978) (no reasonable likelihood that the new evidence could have affected the judgment of the jury). All in all, we are constrained to conclude that the courts generally play by ear with an ad hoc approach whether the ⁵⁸⁷ newly discovered evidence calls for a new trial, no matter what words they use to describe the standard alleged to support the decision.

It seems that they actually lean on the assertion, which has become a cliché, regarding hardcore pornography made by Justice Stewart, concurring in Jacobellis v. Ohio, 378 U.S. 184, 197 , 84 S.Ct. 1676, 1683 , 12 L.Ed.2d 793 (1964): “I know it when I see it.” See Stevenson v. State, 299 Md. at 302-303, 478 A.2d 450 . In Stevenson we left open the standard to be followed. We said: Under the circumstances present in this case we need not decide which standard should apply____ Id. at 301, 473 A.2d 450 . Our decision not to announce a standard in Stevenson was based on our finding that the trial judge did not err in determining that the “materiality” of the newly discovered evidence was not demonstrated. 4 Therefore, there was no necessity to consider the impact of the evidence on the verdict.

Id. at 304, 473 A.2d 450 . Here, the necessity arises to adopt a standard because we believe that the trial judge did not err in determining that the “materiality” of the newly discovered evidence was demonstrated. Thus, we are led to the next step of reviewing the propriety of the trial judge’s holding that the new evidence did not sufficiently touch on the evidence adduced at the trial to affect the outcome. In turn, we are obliged to adopt a standard by which the impact of the evidence on ⁵⁸⁸ the verdict shall be determined sufficient to warrant a new trial.

Many of the federal courts incline toward the “probable” standard. As we have seen, the state courts tend to flounder, and no uniform pattern emerges from their decisions. Yorke would have us adopt the “might”