Jackson v. State, 1215

CourtCourt of Special Appeals of Maryland
Citation884 A.2d 694,164 Md. App. 679
Docket NumberNo. 1215,1215
PartiesKevin Eugene JACKSON v. STATE of Maryland.
Decision Date06 October 2005

884 A.2d 694
164 Md.
App. 679

Kevin Eugene JACKSON
STATE of Maryland

No. 1215, September Term, 2004.

Court of Special Appeals of Maryland.

October 6, 2005.

884 A.2d 696
Julia Doyle Bernhardt (Nancy S. Forster, Public Defender, on brief), for appellant

884 A.2d 697
Steven L. Holcomb (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee

Panel SALMON, MEREDITH and CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.


The critical question on this appeal is that of who—the trial judge or the appellate court—gets to determine whether newly discovered evidence, offered in support of a motion for a new trial, is weighty enough and credible enough to justify (from the trial judge's vantage point) or to compel (from the appellate vantage point) the awarding of a new trial. After the trial judge has said, "No," is there some mechanical appellate test for materiality that may override the trial judge's discretion, a discretion rooted in his sense or "feel" of the case over which he has presided? What does appellate deference really amount to? Does the "abuse of discretion" standard mean something more predictable than whatever the appellate court wants it to mean on a particular occasion? What are the limits that an appellate court may not transgress in finding an abuse of discretion?

The Contentions

The appellant, Kevin Eugene Jackson, was convicted by a Somerset County jury, presided over by Judge Daniel M. Long, of two counts of sexual child abuse. In this appeal he contends

1. that Judge Long erroneously failed to grant his motion for a new trial;
2. that Judge Long erred in responding to two questions submitted by the jury in the course of its deliberations; and
3. that Judge Long, at the sentencing stage, erroneously considered 1) a hearsay statement by David Dunn contained in the Presentence Investigation Report and 2) a letter submitted to the court by David Dunn which had not been provided to the defense in advance of sentencing.

Factual Background

The appellant and Kimberly Milbourne were married in 1992 and divorced in 1996. Their daughter, the victim of the sexual child abuse in this case, was born on April 4, 1992. Both the 1996 divorce and the ensuing custody fight over the daughter were, by mutual acknowledgment, "contentious" and "ugly." The court awarded the custody of the daughter to the mother and allowed the appellant visitation privileges on alternate weekends. Both the mother and the appellant remarried.

In 1999, the mother and her new husband moved to Virginia with the daughter in what they freely admitted was an attempt to thwart visitation by the appellant. For some extended period of time, the appellant had no meaningful visitation with his daughter. As a direct result of that situation, he retained counsel and filed 1) a petition to enforce visitation, 2) a petition to find the mother in contempt, and 3) a complaint asking for custody of his daughter. In the wake of those filings, the mother reported that her daughter had in March of 2002, just before her 10th birthday, revealed to her that the appellant had sexually abused her back when she was four or five years of age. Charges were filed, and the appellant was ultimately convicted of two counts of sexual child abuse.

The Denial of the Motion for a New Trial

The most significant of the contentions before us is that Judge Long abused his discretion in denying the appellant's Motion for a New Trial. At the outset of any review of whether a trial judge abused his discretion in denying a new trial motion, it

884 A.2d 698
is important to establish which party bears the burden of proof on the issue of whether a new trial should be awarded

The Burden of Proof On a Motion for New Trial

It always behooves us, on any issue, to identify which party bears the burden of proof. When the evidence and the argument at a hearing on a Motion for New Trial, for instance, are so frustratingly scant that the trial judge cannot arrive at a definitive conclusion one way or the other, how does he resolve his doubt? To wit, who wins and who loses the nothing-to-nothing tie? In law, of course, there are no ties, for we have deliberately created a device called the allocation of the burden of proof for the precise purpose of avoiding ties. That party to whom the burden of proof is allocated is, by definition, the loser of what would otherwise be a tie. At a hearing on a Motion for New Trial, the burden of persuading the trial judge that such a remedy is called for is on the defendant, as the moving party.

Writing for the Court of Appeals in Argyrou v. State, 349 Md. 587, 609, 709 A.2d 1194 (1998), Chief Judge Bell emphatically made this allocation of the burden clear:

As the proponent of the new trial motion, the petitioner had the burden of establishing, among other things, that the confession was newly discovered evidence. The petitioner simply failed to carry it. Accordingly, the trial court did not abuse its discretion when it denied the petitioner's motion for new trial.

(Emphasis supplied). See also Isley v. State, 129 Md.App. 611, 673-74, 743 A.2d 772 (2000).

Three Subcontentions That Defaulted

The guilty verdicts in this case were rendered on March 11, 2004. The Motion for a New Trial was filed on May 5. The first three grounds alleged in that motion were 1) that the evidence was legally insufficient to support the verdicts, 2) that there was no evidence to corroborate the testimony of the victim, and 3) that the verdict was contrary to the weight of the evidence. Judge Long declined to entertain those three contentions, because the motion for a new trial had been filed well beyond the 10-day period set out in Maryland Rule 4-331(a), which provides:

(a) Within Ten Days of Verdict. On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial.

In Love v. State, 95 Md.App. 420, 426-28, 621 A.2d 910, cert. denied, 331 Md. 480, 628 A.2d 1067 (1993), this Court discussed the significance and the binding nature of that 10-day time limitation.

The Motion for New Trial in a criminal case, recognized by Md. Ann.Code art. 27, § 594 (1992), is controlled by the provisions of Maryland Rule 4-331. The Motion is available on three progressively narrower sets of grounds but over the course of three progressively longer time periods. The shortest of time periods but the broadest of predicates is that provided by subsection (a):
. . . .
The list of possible grounds for the granting of a new trial by the trial judge within ten days of the verdict is virtually open-ended. . . .
. . . This broader latitude is in keeping with the provision of subsection (a) that a judge may order a new trial "in the interest of justice."
This broad base for awarding a new trial is tightly circumscribed by the timeliness requirement that the motion be filed "within ten days after a verdict.". . . Trial judges, moreover, are
884 A.2d 699
not empowered to overlook the filing deadline.

(Emphasis supplied).

Judge Long, therefore, properly declined to hear the three contentions that could only have been legitimately considered if they had been timely raised within ten days of the verdicts. They clearly had not been so timely raised. As we observed in Love v. State, 95 Md.App. at 423, 621 A.2d 910:

The Motion for New Trial is one of the post-trial remedies. It is by no means, however, a never-failing panacea, available whenever and however outraged justice may beckon. It is designed to correct some, but not all, flaws that may have marred a trial. It is limited, moreover, by rigid filing deadlines and other formal constraints.

(Emphasis supplied).

When Is Due Diligence Due?

The appellant, however, also raised a fourth ground for his motion. It was that of newly discovered evidence. The motion alleged:

6. Additionally, there is now new evidence, which could not have been discovered by due diligence prior to trial. Specifically, the victim has now recanted her testimony that she was abused by the Defendant. She recanted her testimony the day after the trial to another family member.
7. The day after the trial, the victim stated that her mother and stepfather forced her to testify against her father. She also stated that she did not know that her father would go to jail if convicted.
8. It is now clear that the witness/victim has either been threatened or coached by her mother and stepfather.

(Emphasis supplied).

Of the three time periods for filing a Motion for New Trial under Rule 4-331, the narrowest in terms of its justiciable subject matter but the most generous in terms of its filing deadline is subsection (c), which provides, in pertinent part:

(c) Newly discovered evidence. The court may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule:
(1) on motion filed within one year after the date the court imposed sentence or the date it received a mandate issued by the Court of Appeals or the Court of Special Appeals, whichever is later[.]

(Emphasis supplied).

Love v. State, 95 Md.App. at 428-29, 621 A.2d 910, commented both on subsection (c)'s longer period of grace for filing and on its narrower substantive base.

It is the third of the new trial provisions that is before us in this case. This is a form of relief available over a far more extended period of time, one year rather than the ninety days available under subsection (b) or the ten days available under subsection (a). There is, moreover, the possibility of two triggering events—the imposition of sentence or the receipt of an appellate mandate—for the running of the one-year clock, and a defendant is permitted to take advantage of the more favorable. This form of relief, on the other hand, rests upon a far more narrow substantive base.

(Emphasis supplied).


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