White v. State

• Citation: 274 A.2d 671,11 Md.App. 423
• Decision Date: 15 March 1971
• Docket Number: No. 372,372
• Parties: Larry WHITE, Homer Benson Dancy and Gilbert Lawrence Clark v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 423

11 Md.App. 423

274 A.2d 671

Larry WHITE, Homer Benson Dancy and Gilbert Lawrence Clark v. STATE of Maryland.

No. 372.

Court of Special Appeals of Maryland.

March 15, 1971.

Gerald A. Kroop and Michael E. Kaminkow, Baltimore, for appellants.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty. and Charles E. Foos, III, Asst. State's Atty. for Baltimore County, on brief for appellee.

Argued before ORTH, THOMPSON and MOYLAN, JJ.

MOYLAN, Judge.

The appellants, Larry White, Homer Benson Dancy and Gilbert Lawrence Clark, were all convicted in the Circuit Court for Baltimore County by a jury, presided over by Judge Walter R. Haile, for the crime of breaking into a storehouse and stealing therefrom goods of the value of $5.00 and upwards.

On appeal, they make four contentions:

(1) That the trial court erroneously denied their Motion for a Judgment of Acquittal at the end of the prosecution's opening statement.

(2) That evidence of the appellant Dancy's prior convictions was erroneously introduced to the prejudice of all three appellants (3) That the trial court erroneously failed to grant the appellants' Motion for a Judgment of Acquittal at the close of the entire case, and

(4) That the trial judge improperly charged the jury on the effect of the appellant Dancy's prior convictions in assessing his credibility.

The initial issue raised by the appellants-whether a motion for a judgment of acquittal may ever lie at the end of the state's attorney's opening statement because of some inadequacy in that statement-is one of first impression in Maryland. After the jury was selected and sworn and before the first witness was called, the Assistant State's Attorney made an opening statement to the jury. At the conclusion of that statement the appellants moved for a judgment of acquittal on the ground that the statement did not make out a prima facie case of guilt-establishing the corpus delicti of the crime but not the criminal agency of the appellants. The trial court denied the motion on the ground that there is no obligation upon the prosecutor to set out a full case in the course of his opening statement, if he chooses to make one. The imaginative attempt of the appellants to take an infrequently invoked and not universally recognized procedure from the trial of a civil suit and to engraft it-by analogy-onto the criminal trial cannot, however, prevail.

Although the issue does not appear ever to have been squarely raised in this state, in civil litigation the power of the trial court in its discretion, on proper motion, to direct a verdict on the opening statement of counsel seems generally, although not universally, conceded. Such motions for a directed verdict based upon the opening statement of counsel alone are not, however, very frequently resorted to and are only granted where exceptional circumstances imperatively require it. As has been pointed out in a number of cases, the practice of directing a verdict in advance of the introduction of evidence, upon on the opening statement of one or the other party, is a dangerous one and the power of the court to do so should be exercised with great caution. Generally, it may be said that the action of the trial court in directing a verdict on the opening statement of counsel can be upheld only where it is clear that all facts expected to be proved, and that have been stated, will not constitute a cause of action or a defense. When the opening statement is merely intended to indicate the issues of fact to the jury and the party is at liberty to present evidence not mentioned in his opening statement, it has been ruled that a verdict may not be directed upon such opening statement by reason of admissions therein. 53 Am.Jur. Trial § 371. See also Annot., 83 A.L.R. 221; Annot., 129 A.L.R. 557; Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882; Oscanyan v. Winchester Repeating Arms Company, 103 U.S. 261, 26 L.Ed. 539.

The employment of so stringent a remedy is premised 'on the theory that the time of the court and the jury would be wasted, since the result, if the evidence were introduced, would necessarily be the same; that it would be an idle waste of time to hear evidence which could not benefit the party offering it.' 53 Am.Jur., loc. cit. So drastic a remedy is carefully circumscribed, however, and the courts which have employed it have universally held that it may not appropriately be invoked simply where counsel through inadvertence has failed to state sufficient facts, where the opening statement is ambiguous or subject to more than one interpretation or where that statement is simply lacking in definiteness. Best v. District of Columbia, supra. It can only be invoked where the full, exact and explicit statement of one party makes it clear that the party cannot, in law, prevail. Even after the motion for a directed verdict is made, the party whose opening statement is thereby attacked will be afforded full opportunity to qualify or amplify the statement in order to repair any inadequacy. Annot., 83 A.L.R. 221; Annot., 129 A.L.R. 557. See also 14 Ann.Cas. 700.

The first clear utilization of this essentially civil device to benefit a criminal defendant appears to have been little more than an inadvertent application of civil procedure to a criminal trial. In United States v. Dietrich, 8 Cir., 126 F. 676 (1904), the case primarily relied upon by the appellants here, an outgoing governor of Nebraska and United States senatorelect was charged with receiving a bribe while being 'duly elected, qualified and sworn according to law to perform the duties of' a United States senator. The full and complete opening statement of the United States Attorney made it plain that although the defendant was elected to the United States Senate on March 28, 1901, he was not sworn in as a senator until December 2, 1901, and that the alleged bribery in question clearly took place long before that latter date. Under the circumstances, the defendant moved for a directed verdict of acquittal at the close of the prosecutor's opening statement. The court granted the motion in an opinion which devoted a single paragraph to the proposition and which relied exclusively upon civil precedent. The court held at 677-678:

'Where, by the opening statement for the prosecution in a criminal trial, and after full opportunity for the correction of any ambiguity, error, or omission in the statement, a fact is clearly and deliberately admitted which must necessarily prevent a conviction and require an acquittal, the court may, upon its motion or that of counsel, close the case by directing a verdict for the accused. The court has the same power to act upon such an admission that it would have to act upon the evidence if produced. It would be a waste of time to listen to evidence of other matters when at the outset a fact is clearly and deliberately admitted which must defeat the prosecution in the end. (citations omitted)'

In the several cases in the lower federal courts to consider this question since 1904, the holding in Dietrich is not repudiated but is severely limited to the extreme circumstances applying in that case. In Rose v. United States, 149 F.2d 755 (1945), the Circuit Court of Appeals for the Ninth Circuit affirmed the conviction in the district court for conspiracy. At the close of the Government's opening statement, the defendants had moved to dismiss the indictment on the ground that the facts stated by the United States Attorney did not constitute conspiracy. The district court denied the motion and ruled that the Government could make a further opening statement to supply any elements missing from the statement under attack. In affirming the conviction, the court said at 758:

'The purpose of an opening statement is merely to advise the jury of the questions and facts involved in the matter before them. The court is justified in terminating a case after the opening statement of plaintiff's counsel only when the statement affirmatively shows that plaintiff has no right to recover, and only when the opportunity to correct or embellish it has been given plaintiff subsequent to defendant's motion to dismiss or to direct a verdict. (citations omitted)'

In Webb v. United States, 191 F.2d 512 (1951), the United States Court of Appeals for the Tenth Circuit made clear that a directed verdict at the end of the prosecution's opening statement would be appropriate only in the most extreme circumstances. The court said at 515:

'We find no merit in the contention of the defendant that the court should have directed a verdict for the defendant upon the opening statement of the prosecution. Opening statements are merely to advise the jury as to what it may expect by way of evidence and questions which will be presented to it. It is not evidence and is merely for the assistance of the jury. In rare instances the opening statement of a party may show affirmatively that it has no right to recover, or in a criminal case that the prosecution cannot make a case. Rose .v United States, 9 Cir., 149 F.2d 755, 758. The opening statement here explained the indictment and the evidence which the prosecution expected to introduce to sustain it. It did not show affirmatively that the prosecution should not prevail.' (emphasis supplied)

Aside from some dicta in the State of Ohio (a state, unlike Maryland, wherein an opening statement by the prosecutor is mandatory), these federal cases supply the only predicate to support the statement in 23A C.J.S. Criminal Law § 1145(3)(f) that 'The trial court has the power to direct a verdict on the opening statement of prosecuting counsel, but should exercise it only when it appears that the charge against accused cannot be sustained under any view of the evidence consistent with it, and only when the prosecutor has been given opportunity to correct the statement.' See ...