Moosavi v. State, 54

Decision Date01 September 1997
Docket NumberNo. 54,54
Citation703 A.2d 1302,118 Md.App. 683
PartiesMohammed MOOSAVI v. STATE of Maryland. ,
CourtCourt of Special Appeals of Maryland

Joy L. Phillips, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Emmet Davitt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Scott L. Rolle, State's Atty. for Frederick County, Frederick, on the brief), for appellee.

Submitted before MOYLAN, DAVIS and SONNER, JJ.

MOYLAN, Judge.

A seemingly insignificant little case may sometimes provide revealing insight into the fundamental operation of our criminal justice system. This may be such a case. In any event, we seize this case as a vehicle through which to offer, interspersed with our formal legal holdings, some observations on the basic nature of appellate review of a criminal conviction.

The numbing reality of senseless and tragic civilian bombings over the last half-decade has so sensitized the national temper that even a passing allusion to a "bombing" or to "blowing up" something will, inevitably, trigger an immediate and decisive reaction. The danger, of course, is that once mobilized to react immediately and decisively, we sometimes overreact. The trigger can easily become a hair-trigger. Locating the almost indiscernible line between reaction and overreaction, moreover, is something that is, generally speaking, beyond the competence of legal rulings and must, in our juridical system, be assigned to the "sensing" or the "feeling"--the proverbial common sense--of lay jurors.

The Present Case

The appellant, Mohammed Moosavi, was convicted by a Frederick County jury of making a false statement involving a bomb threat in contravention of Md.Code Ann. Art. 27, § 151A. On this appeal, he raises two contentions:

1) The evidence was not legally sufficient to support the verdict; and

2) The trial judge erroneously permitted the State to call one Ginger Fogle as a rebuttal witness.

Evidentiary Insufficiency: The Appellant's Claim

We would agree, if we could, with the appellant's first contention that the evidence was not legally sufficient to support his conviction, but we would do so for a reason totally unrelated to the appellate contention raised in that regard. Before turning to the very different reason why we think the evidence did not support the verdict, we deem it appropriate, for illustrative purposes, to explain in some detail why we reject the appellant's specific argument in that regard.

His position is that the total context of the incident should have made it clear that he never intended to bomb the Chevy Chase Bank or any of its branches and that any words he might have spoken even alluding to such a possibility were indisputably nothing more than the undifferentiated venting of anger and frustration. The appellant seems to accept the fact that he was charged with threatening to bomb the bank and confines his challenge to the legal sufficiency of the State's case to the absence of adequate proof of any actual intent or criminal mens rea.

A Challenge To The Adequacy of Persuasion Is Not A Challenge
To The Adequacy of Production

Before turning to the potentially dispositive issue which the appellant did not raise on appeal, we will, for the sake of argument and just for the moment, accept the context in which he raises his challenge and explain why his argument cannot prevail. In a lay sense, his argument is actually very persuasive. What he overlooks is that the questions of what is persuasive and who should win the persuasion war are not appellate concerns. Owens-Corning v. Garrett, 343 Md. 500, 521-22, 682 A.2d 1143 (1996) ("We refuse to reevaluate the evidence and invade the territory of the jury.")

From the point of view of the appellant's argument based on persuasiveness, it is unfortunate that he was not able to try the case before the three judges who are the members of this appellate panel. We would probably have been a good jury for him. We were not in the courtroom, of course, and had no opportunity to observe the demeanor and the manner of testifying of the witnesses. That, along with the austerely limited nature of the appellate function in assessing evidence, is the reason why our opinion as to what probably happened is of no legal significance. This is why we admonish appellate lawyers not to waste time making jury arguments to us, for what we coincidentally believe happened on the street or in the alley does not matter. Nichols v. State, 5 Md.App. 340, 352, 247 A.2d 722 (1968)("Our function is not to determine whether we would have come to a different conclusion from that of the lower court nor need we be convinced beyond a reasonable doubt of the appellant's guilt.")

Even from a cold transcript, however, appellate judges do, at least off the record, inevitably arrive at their personal and idiosyncratic beliefs as to what probably happened in any given case. The reason why such beliefs are seldom formally articulated, even by way of gratuitous dicta, is because what a judge might hypothetically have done had he been the fact finder has no connection with what he must do in his very different capacity as legal referee. This is one of those rare occasions, however, when articulating the normally unarticulated hypothetical of what we might have found had we been the fact finders may help to illustrate the wide range of fact finding that is possible in a controversial case and the significance of discrete bands of fact finding within that wider range.

On the bell-shaped curve of possible verdicts based on fact finding, the two extreme ends of the curve are the exclusive province of the judge as legal referee. In approximately two or three per cent of the cases, the evidence for a proposition may be so woefully inadequate that a judge must declare a forfeit: "No, as a matter of law." In approximately another two or three per cent of the cases, the evidence for a proposition may be so overwhelming and uncontradicted that a judge must, at least in civil cases and on certain criminal issues, award an automatic victory: "Yes, as a matter of law." 1 Trovato v. State, 36 Md.App. 183, 188-90, 373 A.2d 78 (1977); Fisher v. State, 28 Md.App. 243, 248-51, 345 A.2d 110 (1975).

The bulging ninety-four to ninety-six per cent of the curve lying between those poles, however, is the autonomous domain of the fact finder, wherein the verdict may be: "Yes or no, as a matter of fact." Once the ball is properly on the playing field of fact finding, moreover, it is subject to random and eccentric bounces with no second-guessing by legal referees or umpires. Given the "unpredictability of the fact-finding sweepstakes," the verdict that comes through as a decided "long shot" is just as immune from appellate scrutiny or after-the-fact intervention as is the verdict that goes into the jury room as a "heavy favorite." Fraidin v. State, 85 Md.App. 231, 241-42, 583 A.2d 1065 (1991).

A Very Likely Version of the Evidence

Had the three judges on this appellate panel been called upon, hypothetically, to render a verdict based on our view of the evidence, we acknowledge freely, albeit completely immaterially, that we would not have been persuaded beyond a reasonable doubt that the appellant was guilty of anything. We would not have been so persuaded even by the clear and convincing standard of persuasion. We would not have been so persuaded even by a bare preponderance of the evidence. See Fisher v. State, 28 Md.App. 243, 251, 345 A.2d 110 (1975)(an upward or downward shift in the burden of persuasion has no effect on the burden of production). With full support in the evidence, our more neutral and intermediate version of what probably happened would have been somewhat along the following lines.

The appellant, a retired college professor residing in northern Virginia and a customer of the Chevy Chase Bank, incurred an erroneous charge on his account for $30 in membership dues to the Columbia Record Club, a membership which the appellant had apparently never contracted. In an attempt to correct the mistake, he wrote two letters to the bank requesting that the erroneous charge be removed. When the charge was not removed, the appellant began making telephone calls to the bank. On August 30, 1995, the appellant called the bank three times. During one of the phone conversations, he was connected with Rona Bowers, a bank customer service representative.

Ms. Bowers testified that on August 30, 1995, she received a call from a customer, verified confidential information on the account, and talked to him for ten or fifteen minutes. It is undisputed that the phone conversation was with the appellant. She testified that the caller had "an accent from, like a Middle East, or third world country," and that the caller was "irate," and "very angry." According to Ms. Bowers, they discussed the problem of the charge to the appellant's account. She described his frustration with not being able to solve his problem. She testified:

[MS. BOWERS]: He just started stating that he--he kept insisting that he wanted the charges taken off of his account. I explained to him that in order for that to happen--I repeated myself--

[THE STATE]: Uh-huh.

A: In order for that to happen, you must submit the documents. He began--he was very angry and somewhere in the conversation, that's when he began to state that he would blow up Chevy Chase bank if we didn't do what he wanted him to--what he wanted done.

Q: Okay. Did he tell you where he was going to blow up the bank?

A: He asked--he stated, I'm going to blow up the bank. Well, I'm going to blow up the Chevy Chase Bank. Where are you? In Frederick?

Q: And then-- A: And I asked him, well when would you blow up the bank? And he said, probably on Sunday.

As a result of this telephone call, Ms. Bowers called the security office and wrote up a report regarding...

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9 cases
  • Graham v. State
    • United States
    • Court of Special Appeals of Maryland
    • 6 Septiembre 2002
    ...It was of this more reasonable and more tempered, but sometimes immaterial, version of the facts that we spoke in Moosavi v. State, 118 Md.App. 683, 692, 703 A.2d 1302 (1998), reversed on other grounds, Moosavi v. State, 355 Md. 651, 736 A.2d 285 This hypothetical version of how we would pr......
  • Clark v. State
    • United States
    • Court of Special Appeals of Maryland
    • 2 Octubre 2009
    ...§ 9, proscribing the threat to explode a destructive explosive device. He did not renew this argument in this Court. Moosavi v. State, 118 Md.App. 683, 703 A.2d 1302 (1998). This Court reasoned that Moosavi had been inappropriately charged, but affirmed because the issue had not been raised......
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    • United States
    • Court of Special Appeals of Maryland
    • 3 Noviembre 2000
    ...prevailing party, of course, is the appellee and it is in his direction that our interpretative favor will tilt. Moosavi v. State, 118 Md.App. 683, 692-95, 703 A.2d 1302 (1998), rev'd on other grounds, 355 Md. 651, 736 A.2d 285 The appellant is the 95-year-old mother of the appellee. She is......
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    • 1 Septiembre 1997
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