State v. Devers

• Decision Date: 08 January 1971
• Docket Number: No. 200,200
• Citation: 272 A.2d 794,260 Md. 360
• Parties: STATE of Maryland v. Raymond G. DEVERS and Bryan D. Webster.
• Court: Maryland Court of Appeals

Page 360

260 Md. 360

272 A.2d 794

STATE of Maryland v. Raymond G. DEVERS and Bryan D. Webster.

No. 200.

Court of Appeals of Maryland.

Jan. 8, 1971.

Francis X. Pugh, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellant.

Francis X. Gaegler, Jr., Lanham (Arthur Dale Leach, Hyattsville, on the brief), for appellees.

Argued before HAMMOND, C. J. and McWILLIAMS, FINAN, SINGLEY and DIGGES, JJ.

SINGLEY, Judge.

Raymond G. Devers and Bryan D. Webster were jointly tried before a jury in the Circuit Court for Prince George's County. Devers was found guilty of subornation of perjury and Webster of perjury. In Devers and Webster v. State, 9 Md.App. 366, 264 A.2d 291 (1970), the Court of Special Appeals reversed the convictions because it found error in the trial court's denial of motions for judgments of acquittal and for a new trial and remanded the cases for a retrial. We granted certiorari.

Devers' and Webster's convictions were the end product of a domestic dispute between Devers and his wife. In August, 1968, Mrs. Devers had left her husband and had gone to live with Mrs. Bernice Anderson. During the period from September to December 1968, Mrs. Devers or Mrs. Anderson had sworn out four criminal warrants, charging Devers with stealing his own lawnmower, disorderly conduct, disturbing the peace and making harassing telephone calls on 29 November and 23 December 1968, the latter charge being in violation of Code (1957, 1967 Repl. Vol.) Art. 27, § 555A.

These four charges came on for trial in February 1969 in the Circuit Court for Prince George's County before Bowie, J., and a jury. At the conclusion of the State's case, motions for judgments of acquittal were granted as to all the charges except that involving the telephone calls allegedly made at 7:35 and at 9:10 on the evening of 29 November, which Devers then defended. Webster, called as a witness in Devers' behalf, testified that on the day when the telephone calls were alleged to have been made, he had flown Devers to Hancock, West Virginia, leaving Hyde Field in Prince George's County at approximately 12:30 p.m. and returning to the field at approximately 8:30 p.m. On cross examination, Webster testified that he had not worked at the Chesapeake and Potomac Telephone Company in Silver Spring, Maryland, where he was employed, on 29 November. He said that he had worked on the 28th, which was Thanksgiving Day, but did not work on the 29th. Devers then took the stand and confirmed the story of the trip. The jury returned a verdict of not guilty.

Subsequently, Webster was indicted for perjury and Devers for subornation of perjury. The cases came on for trial in August, 1969, again before Bowie, J., and a jury.

There was testimony which both discredited and supported Devers' alibi. Both Mrs. Devers and Mrs. Anderson testified that they had recognized Devers' voice when the telephone calls were made. Mrs. Devers testified that she had seen her husband about 6 p.m. on 29 November in Lyle's Restaurant and again later that evening when he attempted to run his car into hers. Mrs. Anderson said she had not seen Devers but had seen his car chasing Mrs. Devers', when she opened the garage doors to admit Mrs. Devers' car.

Herbert Palm, a telephone company foreman, testified that the company's work schedule showed that Webster had not worked on Thanksgiving Day, but had worked on the 4:00 p.m. to midnight shift on Friday, 29 November, and that a timecard, signed by Webster, bore this out. Edna May Rittershofer, a payroll processing supervisor for the telephone company, testified that the company's records showed that Webster had a holiday on Thanksgiving and worked on 29 November. Had he worked on Thanksgiving, he would have received $40 additional pay, which he had never claimed.

Creston Garner, Jr., Webster's immediate supervisor, called as a rebuttal witness by the State, testified that Webster was a switchman, scheduled to work on the 4:00 p.m. to midnight shift on 29 November; that two switchmen are the minimum who must be on duty; that between 4:00 p.m. and 5:00 p.m. each day, it is his practice to verify that they are on duty, and that if Webster had not reported by 5:00 p.m. on 29 November he would have 'panicked immediately' and made a record of the fact, which he had not.

There was considerable testimony adduced in support of the alibi. No witness testified that he had seen Webster at work, although Webster conceded that it was improbable that he would not have been seen by the other switchman. Terry Harden, whose mother had previously stayed at Devers' house, testified that he had met Devers and Webster at Lyle's Steak House on the morning of 29 November and had left Hyde Field with them at 11:30 a.m. in Webster's plane to fly to West Virginia to look at some family properties. He took them to the West Virginia airport about 7:00 p.m., but did not return with them.

Stephen E. Ellis testified that he saw the plane leave Hyde Field at 12:30. There was introduced in evidence Webster's pilot log, which contained an entry respecting the trip. Webster admitted that the entry had been made sometime later.

Vivian Springman, a practical nurse, worked for a registry run by Mrs. Lois Zagri. She testified that she and Mrs. Zagri had made an appointment to see Devers at Devers' house at 7:30 p.m. on 29 November. They went to Devers' house, and finding him not there, drove to Hyde Field where Webster's plane arrived at about 8:30 p.m. Devers took Webster somewhere, and then returned to his house where he again met Vivian Springman and Mrs. Zagri. Mrs. Zagri substantiated this testimony.

Webster repeated the testimony which he had given at the earlier trial concerning the trip to West Virginia, but explained that he had reported for work about 11:00 p.m. on 29 November, and had worked the eight hours shown on his timecard by staying on the job until 6:30 a.m. He admitted that he had been mistaken when he testified at the earlier trial that he had worked on Thanksgiving.

Devers reiterated the testimony he had given at the earlier trial about the trip to West Virginia, and denied that he had seen his wife at Lyle's Steak House, or had attempted to run her off the road.

Just before the State put on Creston Garner, Jr., as a rebuttal witness, counsel had a conference with Judge Bowie in chambers at the request of the State. There were present James E. Fannon, Jr., Assistant State's Attorney; Vincent J. Femia, Assistant State's Attorney; James E. Kenkel, Deputy State's Attorney, and Arthur Dale Leach, counsel for the defendants. The purpose of the conference was the State's desire to obtain a continuance so that an out of state witness could be produced. In the course of a long colloquy, which ultimately resulted in a denial of a continuance, Judge Bowie made two comments:

THE COURT: '* * * Now, Mr. Fannon (Assistant State's Attorney), let me say this, if this were the world's worst murder case, if this was a seriously involved case, if it were not for the fact that I sat on these other cases and had thrown the other three out-there are certain indications that have come into this trial which indicate they weren't fully and completely resolved, which they were. Now, I am just trying to say that that is the fact. Here you have got a family squabble in here and this case should never have gone to trial. If it weren't for the fact I sat on those other cases, and if it weren't for my confidence the jury is going to acquit this man, I would give him a judgment of acquittal like that, and there isn't a court attendant that doesn't feel the same way about it. I don't know what has got in your craw, but I think this is one good reason why everybody is going to go out of office, really I do. I think this case is a disgrace. And I will say this to every one of you, it is an absolute disgrace. * * *'

'Somebody says out of the courtroom-the rumors that go all over the courthouse about what is going on here, and about some other criminal case that was involved, but I must say we are here to try this case. And I will tell you if I hadn't sat in those others-and the people involved on the other side, there are such hard feelings by the phone company and by the people with Mrs. Devers, that the jury is going to get this case come no matter what. I am just going to let the jury determine it. I am not going to do it. But if I had to determine it I would throw it out in a minute.'

The conference ended, and Mr. Garner testified. At the conclusion of all the evidence, the defendants renewed the motions made at the close of the State's case for judgments of acquittal. The motions were denied, and the case went to the jury, which returned guilty verdicts as to both men. Devers' and Webster's motion for a new trial was denied and each of them was sentenced to two years' imprisonment, but the sentences were suspended.

On appeal, the Court of Special Appeals reversed on the ground that the trial court erred in denying the motions for judgments of acquittal and because the court failed to apply the proper test in considering the motion for a new trial.

On the first point, the court said:

'When a motion for judgment of acquittal is made in a jury case it is the function of the lower court to determine whether or not the evidence before it is sufficient in law to sustain a conviction. If it determines that it is, it should deny the motion and submit the case to the jury; if it determines that it is not, it should grant the motion and the case does not reach the jury. It is the function of this Court when the question is properly before it, to determine whether the lower court erred in denying a motion for judgment of acquittal. The test to be applied is whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of...