Love v. State

• Decision Date: 01 September 1992
• Docket Number: No. 919,919
• Citation: 95 Md.App. 420,621 A.2d 910
• Parties: Daniel Harlin LOVE v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 420

95 Md.App. 420

621 A.2d 910

Daniel Harlin LOVE v. STATE of Maryland.

No. 919, Sept. Term, 1992.

Court of Special Appeals of Maryland.

Feb. 26, 1993.

Reconsideration Denied April 27, 1993.

Jason A. Shapiro (Howard E. Goldman, P.A., on the brief), Laurel, for appellant.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before WILNER, C.J., MOYLAN, J., and JAMES S. GETTY, Judge (retired), Specially Assigned.

MOYLAN, Judge.

Every conceivable wrong occurring in the course of a criminal trial does not necessarily give rise to a corresponding remedy. A fortiori, it does not always trigger the particular remedy invoked by the defendant who has arguably suffered the wrong. 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.

The appellant, Daniel Harlin Love, was originally convicted by a Prince George's County jury, presided over by Judge James P. Salmon, of 1) armed robbery, 2) robbery, 3) assault with intent to avoid lawful apprehension, and 4) carrying openly a dangerous weapon. The appellant was sentenced by Judge Salmon on October 4, 1989. After a variety of efforts at post-trial relief, ¹ not here pertinent, the appellant filed a Motion for New Trial. Following a hearing on May 14, 1992, Judge Salmon denied the Motion, not because he wished to but because, under the circumstances, he concluded he had no choice. The appellant appeals that denial of his Motion for New Trial, contending that Judge Salmon erroneously misconstrued the corrective latitude available to him.

It is undisputed that on February 5, 1989, the appellant stole several items of clothing from a Sears store located in the Landover Mall. It is beyond serious challenge that the appellant assaulted (at least by swinging at them) one or two of the store's security agents on an adjacent parking lot in his attempt to avoid lawful apprehension. The thrust of the Motion for New Trial was that newly discovered evidence cast grave doubt on the jury's verdict that the appellant possessed a deadly weapon and that the convictions for 1) armed robbery and 2) the open carrying of a dangerous weapon represented a serious miscarriage of justice.

Two store security agents--Charles Edgar and Clarissa Hubbert--were involved in the attempted apprehension of the appellant. As reflected in his trial testimony, Charles Edgar's version of events placed a knife in the hands of the appellant. As reflected by her testimony at the hearing on the Motion for New Trial, Clarissa Hubbert's version of events was that no knife was involved. She, however, was not called, either by the State or by the defense, to testify at the appellant's trial. Notwithstanding the choice of a jury to hear the case, the trial itself was summary in the extreme. Charles Edgar was the only witness. His direct examination took up only nine pages in the trial transcript; his cross-examination, but two.

According to Charles Edgar's testimony, the appellant took an assortment of clothes to a dressing room, put all of them on his body at one time, and then attempted, thus sartorially bloated and ballooned, to walk out of the store without paying for any of the merchandise. Both Edgar and Clarissa Hubbert observed what was happening and followed the appellant onto the parking lot. Edgar showed the appellant a badge and attempted to arrest him. The appellant stated he was not going to be arrested and swung his arm at the two guards. According to Edgar, the appellant's elbow hit Clarissa Hubbert in the face. (In her later testimony at the post-trial hearing, Ms. Hubbert stated that she ducked and was not hit.) A tussle ensued between Charles Edgar and the appellant. According to Edgar, he at one point tackled the appellant to the ground. (In her later testimony at the post-trial hearing, Ms. Hubbert stated that the appellant lost his balance but broke his fall with his hand and then regained balance without literally hitting the ground.)

As the appellant ran toward his car, he at one point reached into his pants. Edgar testified that he feared the appellant was going to produce a weapon but also testified that no weapon was in fact ultimately forthcoming at that time. The appellant then jumped into an automobile occupied by another individual. It was at that time, according to Edgar's testimony, that the appellant reached down and produced a "locked blade Buck-type knife." He described it as being nine or ten inches long. He stated that the appellant "waved the knife back and forth" in the direction of both himself and Ms. Hubbert.

This was the sum total of the testimony about the knife. It is contained on just two pages of the transcript. Indeed, the scant two pages of cross-examination of Charles Edgar by the defense did not probe or even allude to Edgar's testimony about the knife. The defense put on no case at all.

In her testimony at the hearing on the Motion for New Trial, Clarissa Hubbert stated that when the appellant jumped into the waiting automobile, both she and Charles Edgar were standing approximately twenty feet away with the same ability to observe the appellant's actions. She testified emphatically that she never saw a knife at any time. These contradictory versions of events, primarily with respect to the presence of the knife, between the witness who testified at trial and the potential witness who did not was the exclusive predicate for the appellant's Motion for New Trial.

For the review at the appellate level of a decision of a trial judge either to grant or to deny a new trial motion, the observations of Judge Digges in Carlile v. Two Guys, 264 Md. 475, 477-478, 287 A.2d 31 (1972), provide the proper perspective:

"[A]ny hope for success on these claimed instances of error is misguided. There is probably no principle of law that rests on more decisions of this Court than the concept that a trial judge's granting or refusing a new trial--fully, partially, conditionally, or otherwise--is not reviewable on appeal except under the most extraordinary or compelling circumstances. This is true even though the trial judge's decision is based on mistake or erroneous conclusions of law or fact. Our adherence to this rule is unwavering and we do not find any extraordinary or compelling circumstances in the present case which would permit a review. In fact, this Court, in its long history, has never found such circumstances to exist." (emphasis supplied).

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):

"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."

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. In State v. Devers and Webster, 260 Md. 360, 374, 272 A.2d 794 (1971), the Court of Appeals quoted from Hochheimer, The Law of Crimes and Criminal Procedure § 184 at 209-210 (2d ed. 1904), in setting out an illustrative list of possible grounds:

"The principal grounds for granting a new trial are, that the verdict was contrary to the evidence; newly discovered evidence; accident and surprise; misconduct of jurors or the officer having them in charge; bias and disqualification of jurors (disqualification not entitling to a new trial, however, if there was opportunity to challenge); misconduct or error of the judge; fraud or misconduct of the prosecution, e.g., abuse of argument."

Since that decision in 1971, the grounds for a new trial under this subsection have, indeed, been further expanded. It was the holding of State v. Devers and Webster that a new trial could be granted on grounds of evidentiary insufficiency only in the case where the evidence was so legally insufficient, as a matter of law, that it could not, even if believed totally and given maximum weight, support the verdict. Since that time, the decision in the case of In re Petition for Writ of Prohibition, 312 Md. 280, 539 A.2d 664 (1988), has overruled that limiting provision of State v. Devers and Webster and empowered the trial judge to grant a new trial not simply when the evidence is legally insufficient as a matter of law but also when the verdict, in the judgment of the trial judge, is so against the weight of the evidence as to constitute a miscarriage of justice. In re Petition for Writ of Prohibition, 312 Md. at 326, 539 A.2d 664. 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." Indeed, until predecessor Maryland Rule 770 was amended in 1984, the Motion was required to be filed within three days after the verdict. Trial judges, moreover, are not empowered to overlook the filing deadline. State v. Tull, 240 Md. 49, 52, 212 A.2d 729 (1965); Giles v. State, 231 Md. 387, 388, 190 A.2d 627 (1963); Ware v. State, 3 Md.App. 62, 65-66, 237 A.2d 526 (1968).

In the case now before us, it is not subsection (a) on which the appellant relies. It would, of course, be unavailable to him because the verdict in this...