Bennett v. State, 3

• Decision Date: 13 October 1978
• Docket Number: No. 3,3
• Parties: Foster Elwood BENNETT v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 619

283 Md. 619

392 A.2d 76

Foster Elwood BENNETT v. STATE of Maryland.

No. 3.

Court of Appeals of Maryland.

Oct. 13, 1978.

Michael R. Malloy, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Ray E. Stokes, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ^* LEVINE, ELDRIDGE, ORTH and COLE, JJ.

ORTH, Judge.

We hold that in a criminal prosecution by the State of Maryland the constitutional rights to due process of law ¹ are not violated by placing upon the defendant the burden of proving by a preponderance of the evidence his assertion that a witness offered against him is an accomplice. ²

I

Foster Elwood Bennett was convicted in the Circuit Court for Montgomery County of robbery with a deadly weapon and the use of a handgun in the commission of a felony. He was sentenced to concurrent terms of imprisonment of eight years and five years, respectively, to begin at the expiration of a sentence he was then serving. The Court of Special Appeals affirmed the judgments on direct appeal. Bennett v. State, No. 587, September Term, 1977, decided 27 December 1977, unreported. At trial, the judge in considering whether a State's witness was an accomplice should be submitted to the jury for determination, ³ said: "I think the law is that the burden is on the defendant to prove that a witness was an accomplice by a fair preponderance of affirmative evidence." He did not believe that Bennett had so met the burden with regard to a witness, Leonard Fritz, as to exclude the submission of the matter to the jury. In affirming the judgments, the Court of Special Appeals stated flatly: "The burden of showing that Fritz was an accomplice was on (Bennett)." We granted Bennett's petition for the issuance of a writ of certiorari. The sole question presented was: "Did the Court of Special Appeals err in holding that (Bennett) had the burden of proving that Leonard Fritz was an accomplice?"

II

Whether the State's witness was an accomplice is significant because of the role an accomplice plays in a criminal prosecution in Maryland. A conviction may not rest on the uncorroborated testimony of an accomplice. ⁴ Brown v. State, 281 Md. 241, 243-245, 378 A.2d 1104 (1977), and cases therein cited. We have heretofore expressed in certain terms our view regarding the burden of proving whether a witness was an accomplice. We said in Lusby v. State, 217 Md. 191, 201, 141 A.2d 893 (1958), quoting 7 Wigmore, Evidence (3d ed. 1940), § 2060(e): "And, of course, 'the burden of Proving the witness to be an accomplice is . . . upon the party alleging it (the defendant) for the purpose of invoking the rule, . . . .' " ⁵ In Campbell v. State, 221 Md. 80, 84-85, 156 A.2d 217, 219 (1959), we declared, citing Lusby and Wigmore : "It is clear that the burden of proving a witness is an accomplice is on the defendant who asserts it." In Strong v. State, 261 Md. 371, 376, 275 A.2d 491 (1971), Vacated as to death sentence only, 408 U.S. 939, 92 S.Ct. 2872, 33 L.Ed.2d 760 (1972), we baldly stated, on the authority of Campbell : "The burden of showing that a witness is an accomplice is on the accused." The Court of Special Appeals said in Burley v. State, 5 Md.App. 469, 473, 248 A.2d 404 (1968), Cert. denied, 253 Md. 733 (1969), on the authority of Campbell and Lusby, that "the burden of proving that a witness is an accomplice is on the defendant who asserts it." It added: "In the absence of statutory provisions (there are none in Maryland) it is generally accepted that only a preponderance of the evidence is necessary to prove that a witness for the prosecution is an accomplice; it is not necessary to prove that fact beyond a reasonable doubt to invoke the rule requiring corroboration." Id. at 473, 248 A.2d at 407. This is in accord with 7 Wigmore, Evidence (Chadbourn rev. 1978). Wigmore states that when the question whether the witness is in truth an accomplice is left to the jury to determine, they are to apply the rule requiring corroboration only if they conclude that the witness is an accomplice. "If they are in doubt and unable to decide, the rule is not to be applied, but they need only believe by the preponderance of the evidence." Id. § 2060(e) (footnotes omitted). ⁶ See People v. Tewksbury, 15 Cal.3d 953, 127 Cal.Rptr. 135, 544 P.2d 1335, Appeal dismissed, cert. denied, 429 U.S. 805, 97 S.Ct. 38, 50 L.Ed.2d 65 (1976). The trial courts and the Court of Special Appeals have consistently recognized as the rule that the burden of proving by a preponderance of the evidence that a witness is an accomplice is on the defendant asserting it. They have applied it, and we have not repudiated it. See, in addition to Burley, Early v. State, 13 Md.App. 182, 187, 282 A.2d 154 (1971), Cert. denied, 264 Md. 747 (1972); Sutton v. State, 10 Md.App. 353, 357, 270 A.2d 497 (1970), Cert. denied, 260 Md. 722 (1971); Gaskins v. State, 7 Md.App. 99, 103, 253 A.2d 759 (1969); ⁷ Gardner and Maple v. State, 6 Md.App. 483, 495, 251 A.2d 901, Cert. denied, 255 Md. 741 and 743 (1969). We deem it to be the rule in this State. ⁸

III

Bennett contends that "placing on a defendant the burden of proving that a witness is an accomplice is a violation of due process." He looks to In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) as applied in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). He seeks support in State v. Evans, 278 Md. 197, 362 A.2d 629 (1976) and State v. Grady, 276 Md. 178, 345 A.2d 436 (1975). We find that in the light of Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the cases he relies on do not lead to the conclusion he advocates.

In Winship, the Court declared that the "Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." 397 U.S. at 364, 90 S.Ct. at 1073. In Mullaney, the Court announced that "under the Maine law of homicide, the burden could not constitutionally be placed on the defendant of proving by a preponderance of the evidence that the killing had occurred in the heat of passion on sudden provocation." Patterson, 432 U.S. at 205, 97 S.Ct. at 2324. The Court of Special Appeals in Evans v. State, 28 Md.App. 640, 654, 349 A.2d 300, 312 (1975) concluded that Mullaney "dooms as unconstitutional any procedural device which 1) imposes upon a defendant a burden of proving, by any standard, his innocence as to any element of a crime or 2) relieves the State of its burden of ultimate persuasion beyond a reasonable doubt as to any issue fairly in the case." We granted certiorari to review the impact of Mullaney and Winship on the law of homicide in Maryland. We were in accord with the first conclusion of the Court of Special Appeals but rejected the broad sweep of the second. We went no further than to hold "that the principles of Mullaney cover the allocation of the burden of persuasion in homicide cases tried before a jury where . . . the defenses of mitigation and self-defense were generated by the evidence." State v. Evans, 278 Md. at 209, 362 A.2d at 636. ⁹ In Grady we determined that Winship and Mullaney "apply to the issue of who has the burden of proof and what that burden is when an accused relies on an alibi as a defense." 276 Md. at 182, 345 A.2d at 438. We held:

"In sum, under the Federal Constitution, as well as the law of Maryland, the burden is on the State to prove all elements of the alleged crime and to do so beyond a reasonable doubt; hence the defendant does not have to establish his alibi, not even by a minimal standard of proof." Id.

The rationale of our holding in Grady is found in our acceptance "as a succinct and accurate expression of the law of this State," 276 Md. at 184, 345 A.2d at 439, of the words of Moylan, J., written for the Court of Special Appeals in Robinson v. State, 20 Md.App. 450, 316 A.2d 268, Cert. denied, 272 Md. 747 (1974):

"We think the sound view to be that an alibi is not an affirmative defense, placing any burden upon a defendant beyond the self-evident one of attempting to erode the State's proof to a point where it no longer convinces the fact finder beyond a reasonable doubt. Proof of an alibi, like any other defense testimony, is simply a means of controverting the State's effort to establish criminal agency." Id. at 459, 316 A.2d at 272.

Patterson made clear that Mullaney went no further than to hold that "a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. . . . Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause." 432 U.S. at 215, 97 S.Ct. at 2330. ¹⁰ In short, the Winship-Mullaney mandate is simply that the State must prove beyond a reasonable doubt every fact necessary to constitute the crime with which an accused is charged.

Both Grady and State v. Evans are in complete accord with this. In Grady, as we have indicated, we concluded that under the teachings of the Supreme Court "the burden is on the State to prove all elements of the alleged crime and to do so beyond a reasonable doubt." 276 Md. at 182, 345 A.2d at 438. In State v. Evans we observed:

"Of course, nothing in Mullaney per se precludes the use of traditional presumptions, or logical inferences arising from established facts; what Mullaney precludes is the use of such presumptions or inferences only when they operate, ultimately, to relieve the State of its burden of persuasion in a criminal case, I. e., its burden of proving beyond a...