Gray v. State

• Decision Date: 30 June 1969
• Docket Number: No. 309,309
• Citation: 255 A.2d 5,254 Md. 385
• Parties: Linwood GRAY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 385

254 Md. 385

255 A.2d 5

Linwood GRAY v. STATE of Maryland.

No. 309.

Court of Appeals of Maryland.

June 30, 1969.

Karl G. Feissner, Hyattsville (William L. Kaplan and Thomas P. Smith, Hyattsville, on the brief), for appellants.

Thomas N. Biddison, Jr., Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore and Arthur A. Marshall, Jr., and Vincent J. Femia, State's Atty. and Asst. State's Atty., respectively for Prince George's County, Upper Marlboro, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, McWILLIAMS, FINAN and SINGLEY, JJ.

HAMMOND, Chief Judge.

The Circuit Court for Prince George's County (Bowen, J.) denied the motions of an accused for judgment of acquittal made at the end of the State's case and when all the evidence was in, and the jury found him guilty of armed robbery. The Court of Special Appeals reversed the judgment on the sole ground of the insufficiency of evidence as a matter of law and ordered a new trial in the face of the accused's specific request and strong argument that the remand properly should be for the entry of a judgment of acquittal, the judgment he says would have been entered at the trial had the judge realized that the evidence was insufficient to permit the jury to convict.

We granted certiorari because of the importance of the question presented by appellant's petition.

Until 1950 this Court lacked power to pass upon the sufficiency of the evidence in a criminal case. Because of the provisions of § 5 of Art. XV of the Constitution of Maryland that '(i)n the trial of all criminal cases, the Jury shall be the Judges of Law as well as of fact,' this Court did not intrude on the jury's constitutional right and duty and analogously would not pass on the sufficiency of the evidence when the case was tried by the court without the aid of a jury. Abbott v. State, 188 Md. 310, 313, 52 A.2d 489 (1947). However, the citizens amended § 5 of Art. XV of the Constitution effective December 1, 1950, to provide that, although the jury remained the judge of the law as well as the fact, 'the Court may pass upon the sufficiency of the evidence to sustain a conviction.' The constitutional addition was implemented by Ch. 596 of the Laws of 1949, now Code (1968 Cum.Supp.), Art. 27, § 593, and the present Maryland Rule 755 providing for a motion of judgment of acquittal for insufficiency of the evidence at the end of the State's case and at the close of all the evidence, with the sanction of § 593 of Art. 27 that '(i)f the motion is denied the defendant may have a review of such ruling on appeal.'

After the January 1, 1950 effective date of this Court's General Rules of Practice and Procedure there was provided, by Rule 7(c) of Part Four (Code 1951, Vol. 3, p. 4889) (substantially what is now Maryland Rule 1086), appellate review of the sufficiency of the evidence in criminal cases tried without a jury.

Since this Court has had the power to review the sufficiency of the evidence it has done so in a number of cases, and when it has reversed for insufficiency its course has not been uniform. In some cases we have remanded for a new trial, ¹ in others directed an acquittal. ² The Court of Special Appeals has followed the same course. There is ample sustaining precedent for these actions in the courts of the various states and in the federal courts. See the case note on Lambert v. State, 196 Md. 57, 75 A.2d 327 (1950) (the first case to pass on the sufficiency of the evidence, which reversed without a new trial), entitled Should Reversal of Criminal Conviction Because of Insufficient Evidence, under the New Criminal Rules, Be With or Without a New Trial? in 13 Md.L.Rev. 52, 55-57, wherein the author says:

'While in England, the Court of Criminal Appeal has no power to order a new trial on reversal of a criminal conviction, in this country according to the almost universally prevailing practice, appellate courts do possess such power. Most applicable statutes and Rules of Court either expressly leave the matter up to the discretion of the appellate tribunal or are so interpreted as to confer such discretion upon the court. A search of the leading works on criminal law and procedure reveals that there has been surprisingly small amount of discussion devoted by most writers to this subject. Perhaps this is in some measure attributable to the fact that in a large number of the cases, like in the Lambert case, no reasons are assigned for the decision of the appellate court to grant or not to grant a new trial when reversing for insufficiency, or if such reasons are assigned, they are not always clearly articulated.

'Typical among the reasons assigned for a determination not to grant a new trial, when, upon occasion the courts do assign their reasons, are that it did not appear that any more witnesses would be available for the state in a new trial, because the state had apparently fully developed its case in the trial court, because it appeared from the record that the state could not make a better case on retrial, because the state had conceded on appeal that the preponderance of evidence was in the defendant's favor or because it would be 'unjust' to subject the defendant to another trial after the evidence had been found insufficient to sustain a conviction in either of two previous trials.

'On the other hand, new trials have been granted because the appellate tribunal thought that there was a possibility that upon a new trial further corroboration might be introduced when such corroboration was held to have been lacking at the first trial, because 'the justice of the case demands' that a new trial be granted, because it was felt that the facts were capable of being more fully developed at a subsequent trial both by the state and by the defense, or because of the inconclusive character of the evidence in the trial court.

'With standards as general as these, it is not surprising that differences in practice are to be found throughout the country. For example, it has been held in one jurisdiction that if there is not a scintilla of evidence in the record to incriminate the appellant, the court must reverse without a new trial, while in another jurisdiction although the evidence 'wholly failed' to connect the defendant with the crime, the court nevertheless upon reversal remanded for new trial 'so that if the prosecutor has other evidence he may feel justified in proceeding with another trial.' Some courts appear to favor the granting of a new trial after reversal except in the most extreme cases, while others tend contrawise to grant new trials only when it is obvious from the record that a better case can be made by the state on retrial. In at least one jurisdiction, the decision whether to grant a new trial is left to the discretion of the trial court instead of the appellate court.'

It has been held at the highest level that there is no constitutional obstacle to remanding a case for a new trial after reversal for insufficiency of the evidence. In Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950), the Supreme Court upheld the action of a federal Court of Appeals in ordering a new trial (because it felt the evidentiary defect could be remedied in another trial) under such circumstances. Rule 29 of the Federal Rules of Criminal Procedure, like Maryland Rule 755 (to which it was equated in Tull v. State, 230 Md. 152, 155, 186 A.2d 205 (1962)), provides for motions for judgment of acquittal at the end of the government's case and at the close of all the evidence. The accused in Bryan contended that the appellate court was bound by Rule 29 and must direct entry of a judgment of acquittal, for which he had duly moved at trial, after reversing his conviction. The Supreme Court did not agree, holding that Rule 29 controlled only the trial court and that the power of the reviewing court stemmed from § 2106 of the Judicial Code (28 U.S.C. § 2106) which authorizes that court to:

'affirm, modify, vacate, set aside or reverse any judgment, decree, or order * * * and (to) remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.'

Justices Black and Reed, concurring, thought the case should be remanded for the judge in the District Court to decide between a judgment of acquittal and a new trial. The Supreme Court also explicitly rejected Bryan's plea that to require him to stand trial again would be placing him twice in jeopardy, saying:

'He sought and obtained the reversal of his conviction, assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal. '* * * where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial.' Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct. 374, 375, 91 L.Ed. 422, 425 * * *.' (338 U.S. at 560, 70 S.Ct. at 321)

The powers given the federal appellate courts by 28 U.S.C. § 2106 are given the Court of Special Appeals by the Maryland Rules as follows:

'Rule 1070.

'Except as otherwise provided by Rules 1035 (Dismissal of Appeal) and 1071 (Remand), this Court will either affirm or reverse the judgment from which the appeal was taken, or direct the manner in which it shall be modified, changed, or amended.'

'Rule 1071.

'a. If it shall appear to this Court that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment from which the appeal was taken, or that the purposes of justice will be advanced by permitting further proceedings in the cause, either through amendment of the pleadings, introduction of additional evidence, or otherwise, then this Court, instead of entering a final order affirming, reversing or modifying the judgment from which the appeal was taken, may order the case to be remanded to the lower court. Upon remand to the lower court,...