Williams v. State

• Decision Date: 09 March 2000
• Docket Number: No. 380,380
• Parties: Donald WILLIAMS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

748 A.2d 1

131 Md. App. 1

Donald WILLIAMS v. STATE of Maryland.

No. 380, Sept. Term, 1999.

Court of Special Appeals of Maryland.

March 9, 2000.

Stanley Neustadter, New York City (Geoffrey H. Genth, Kramon & Graham, P.A., on the brief), for appellant.

Shannon E. Avery, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for appellee.

Argued before MOYLAN, ADKINS and THEODORE G. BLOOM (Ret., Specially Assigned), JJ.

MOYLAN, Judge.

As the mirage of apparent substance melts into illusion again and again, there unfolds before us on this appeal a desert of non-preserved might-have-beens. The appellant, Donald Williams, was convicted by a Baltimore County jury, presided over by Judge J. William Hinkel, of 1) the first-degree murder of his step-daughter, 2) the attempted first-degree murder of his wife, 3) conspiracy to commit first-degree murder, and 4) the use of a handgun in the commission of a violent crime. With respect to all of the crimes other than conspiracy, the appellant's role was that of an accessory-before-the-fact.

The appellant was tried jointly with his son, Maurice Williams, who was the principal in the first degree. The evidence supported the jury's conclusion that the appellant hired his son to kill Pamela Williams, who was the appellant's wife and the stepmother of his son and codefendant. The son was to share in the premiums collected by the appellant from two life insurance policies on the wife's life. In the ultimately botched murder attempt, Pamela Williams was seriously injured (blinded in one eye) but she survived. Pamela Williams's seventeen-year-old daughter, Tiffany Chisholm, was shot and killed, however, in a deliberate effort to eliminate her as an unexpected witness to the attack on her mother.

"How Have I Failed to Preserve Thee? Let Us Count the Ways"

This appeal is unusual in that not one of the appellant's four primary contentions, some of which at least tentatively appear as if they might have had significant merit, has been preserved for appellate review. Involved, moreover, is not a single variety of non-preservation but a bounteous smorgasbord of non-preservations and waivers. On appeal, the appellant now argues

1) that the evidence was not legally sufficient to corroborate the testimony of the accomplice, Mark Bowie, and was, therefore, not legally sufficient to permit the case to have been submitted to the jury;

2) that Judge Hinkel erroneously declined to instruct the jury on the necessity for corroborating an accomplice's testimony with respect to the conspiracy charge;

3) that the evidence was not legally sufficient to support the conviction for the murder of Tiffany Chisholm;

4) that Judge Hinkel erroneously permitted an out-of-court statement by Reginald Johnson to be introduced into evidence; and

5) that the appellant was prejudiced in four other regards, those contentions having been raised by his son and codefendant, Maurice Williams, and adopted by the appellant but not further elaborated on in the appellant's brief.

Although the effect of non-preservation is a constant, its instances in this case take various forms.

Non-Preservation: Two Claims of Evidentiary Insufficiency

Two of the appellant's four primary contentions—1) that challenging the adequacy of the corroboration of the testimony of the accomplice and 2) that challenging the proof of the appellant's murderous mens rea in the case of Tiffany Chisholm—question the legal sufficiency of the State's evidence to have permitted the judge, as a matter of law, to submit the case generally and the murder charge specifically to the jury. It is clear beyond dispute that the appellant has not preserved for appellate review either challenge to the legal sufficiency of the State's evidence.

At the end of the State's case, the appellant did, indeed, move for a judgment of acquittal. Even that motion was in the broadest and most conclusory of terms: "I make a motion for judgment of acquittal, Your Honor." The question, however, of whether that motion satisfied Md. Rule 4-324(a) by "stat[ing] with particularity all reasons why the motion should be granted," Bates v. State, 127 Md.App. 678, 736 A.2d 407 (1999); Brooks v. State, 68 Md. App. 604, 515 A.2d 225 (1986), is not before us because that motion was effectively withdrawn by the appellant when he then introduced Defense Exhibit No. 4 relating to insurance policies taken out by the appellant on Pamela Williams's life. By introducing that exhibit, the appellant brought himself under the provisions of Maryland Rule 4-324(c), which provides:

(c) Effect of denial. A defendant who moves for judgment of acquittal at the close of evidence offered by the State may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. In so doing, the defendant withdraws the motion.

(Emphasis supplied). At the end of the entire case, the appellant made no further motion for a judgment of acquittal.

In dealing with an appeal in precisely the same procedural posture, the Court of Appeals in Ennis v. State, 306 Md. 579, 510 A.2d 573(1986), first noted, 306 Md. at 585, 510 A.2d 573, that the Maryland Rule has "been construed to preclude appellate courts of this state from entertaining a review of the sufficiency of the evidence, in a criminal case tried before a jury, where the defendant failed to move for judgment of acquittal at the close of all the evidence." (Emphasis supplied). Its holding, 306 Md. at 587, 510 A.2d 573, is unequivocal:

In the instant case, appellant moved for judgment of acquittal at the close of the State's case. That motion was denied. Following that denial, the appellant put on her case. However, she failed to renew her motion for judgment of acquittal at the close of all the evidence. Her failure to do so effectively precluded the trial court from considering her insufficiency contention. Consequently, there was nothing for the Court of Special Appeals to consider; similarly, there is nothing for us to consider here. Art. 27, § 593; Md. Rule 4-324.

(Emphasis supplied).

Equally emphatic is Lotharp v. State, 231 Md. 239, 240, 189 A.2d 652 (1963):

Since no motion for judgment of acquittal was made at any stage of the trial there can be no review of the sufficiency of the evidence on appeal. Under the provisions of § 5 of Art. XV of the Constitution of this State, Code (1957), Art. 27, § 593, and Maryland Rule 755, an appellate review of the sufficiency of the evidence in a criminal case tried by a jury is predicated on the refusal of the trial court to grant a motion for judgment of acquittal.

(Emphasis supplied).

There is no Maryland case in which an appellate court of this State has ever even examined the merits of a challenge to the legal sufficiency of the State's evidence following a criminal conviction by a jury when the defendant had failed to make a timely motion for a judgment of acquittal. Although we would not be inclined to overlook the non-preservation of the current challenge even if we had the discretion to do so, this principle of non-preservation is not even discretionary. The Court of Appeals could not have been more clear in Wersten v. State, 228 Md. 226, 229, 179 A.2d 364 (1962):

However, this was a jury trial and no motion for a judgment of acquittal was made; hence we are not at liberty to pass upon the sufficiency of the evidence.

(Emphasis supplied).

Although there is no instance of a Maryland appellate court's ever applying the "plain error" exception so as to entertain a non-preserved challenge to the legal sufficiency of the State's evidence, it is significant that in this case the appellant does not even invoke "plain error." In the discussion of these two contentions in the appellant's brief, there is no mention or even allusion to either preservation generally or to the "plain error" exemption from the foreclosing effect of non-preservation. Even in the face of the State's argument, in its brief, that neither sufficiency challenge has been preserved for appellate review, the appellant's reply brief again fails even to mention the subject with respect to these two contentions.

Despite our holding that neither of these first two contentions has been preserved for our review, we are nonetheless constrained to note that one of them— that involving his homicidal mens rea in the case of Tiffany Chisholm—appears, at least on cursory observation, as if it might have had some substantial merit.¹ Although it seems unlikely that the appellant could totally escape complicity for the killing of Tiffany Chisholm even if he had not anticipated it, Sheppard v. State, 312 Md. 118, 121-22, 538 A.2d 773 (1988); Grandison v. State, 305 Md. 685, 703-04, 506 A.2d 580 (1986); Veney v. State, 251 Md. 159, 174, 246 A.2d 608 (1968); Fabian v. State, 235 Md. 306, 317, 201 A.2d 511 (1964), it might turn out, on a closer examination of the merits, that there would still remain a question as to what precise homicidal mens rea he possessed and at what particular level his homicidal guilt (first-degree murder, second-degree murder, manslaughter) would be established.

This conceivably could have been the occasion to explore the still uncharted waters of second-degree murder pursuant to the common law felony-murder doctrine. The planned murder of Pamela Williams would certainly have been a violent and life-endangering felony. If Tiffany Chisholm was killed in the course of its attempted perpetration and for the purpose of eliminating her as a witness, the mens rea-generating capacity of the common-law felony-murder doctrine might well have pertinence. There would still be involved, of course, at least a question as to the level of guilt of an accessory before the fact who had not anticipated that particular homicide. Because of non-preservation,...