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Chisum v. State

Court of Special Appeals of Maryland

February 25, 2016

JACOB LEE CHISUM
v.
STATE OF MARYLAND

Page 883

         Appeal from the Circuit Court for Wicomico County. W. Newton Jackson, JUDGE

         ARGUED BY: Allison M. Sayers (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD. for APPELLANT

         ARGUED BY: Edward J. Kelley (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD. for APPELLEE

         ARGUED BEFORE Graeff, Friedman, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.

          OPINION

Page 884

         [227 Md.App. 122] Moylan, J.

         The appellant, Jacob Lee Chisum, was convicted in the Circuit Court for Wicomico County by Judge W. Newton Jackson, III., sitting without a jury, of attempted second-degree murder, first-degree and second-degree assault, reckless endangerment, carrying a weapon openly, and carrying a concealed weapon. For the attempted second-degree murder, Judge Jackson imposed a sentence of thirty years, with all but fifteen years suspended.

         On this appeal, the appellant raises three contentions, each expressly challenging the legal sufficiency of the evidence to support one of the three guilty verdicts. The appellant does not challenge the sufficiency of the evidence to support the convictions for reckless endangerment, first-degree assault, and second-degree assault. The appellant does challenge the legal sufficiency of the evidence to support the convictions for both carrying a weapon openly and carrying a concealed weapon and, most significantly, to support the conviction for attempted second-degree murder. That is the flagship contention of this appeal.

         The Precise Issue of Legal Sufficiency

         As we prepare to address that flagship contention, let it be clear that we are not going to indulge the appellant in manufacturing a law school examination hypothetical of error [227 Md.App. 123] where in the real-life trial before us, no such error occurred. We will require of the appellant, moreover, the same meticulous precision in the framing of his primary contention that he would demand of the trial judge in explaining his verdict. Appellants themselves should not be lax in challenging laxity. The appellant's primary contention is unambiguous:

Page 885

" The evidence was insufficient to convict Mr. Chisum of attempted second degree murder."

         The issue there framed is unequivocally the legal sufficiency of the evidence to permit a conviction for attempted second-degree murder. What must be found to be sufficient, moreover, is not the ostensible fact-finding of the trial judge, as argued for by the appellant, but the sufficiency of the evidence itself.

         The Factual Background, Briefly

         The evening of September 27, 2014, was a festive one in Salisbury as William " Dirty" Ayers invited seven or eight of his friends to join him in the shed behind his Mother's home for what he described as some " typical friendly banter among friends that evening with a lot of drinking." As the festivities progressed, he characterized his own condition as " wasted." Among the celebrants were the appellant and the ultimate stabbing victim, Wayne Handy. The " typical friendly banter" turned to the fine points of high couture, as the appellant and Handy clashed over which of the two of them had the " fliest" (loosely translated by Handy as " the best" ) clothes and shoes.

         The host, Ayers, had his back to the disputants when he heard " a whole bunch of ruckus" behind him with Handy suddenly announcing, " Oh, man, he got me." As Ayers turned to look, he saw " blood everywhere" and Handy, bent over, holding his abdomen and bleeding. The appellant was standing in the doorway of the shed, with a knife in his hand.

         At that point, the party broke up. Handy, still bleeding, ran across the street. The appellant ran and jumped into his car. Ayers followed the appellant to his car and manifested his displeasure by throwing first a bicycle and then a chair at [227 Md.App. 124] his troublesome guest. In the meantime, someone had called the police. Ayers then ran to assist Handy, who was at that point lying in the yard and bleeding.

         It was Handy who, as a witness, described how, as the conversation between him and the appellant about clothes and shoes grew more heated, the appellant left the conversation " for a split second" and then came back. Handy heard the " open click of a knife" and instantly felt the pain of being stabbed. There was a single stab wound to the stomach area. Handy was transported to the hospital where he underwent surgery. He had suffered a laceration of the liver. Shortly after fleeing the scene, the appellant was apprehended at the scene of a traffic stop. A search of the car revealed a fixed blade knife in a sheath in the driver's seat pocket.

         The Burden of Production: The 66-Year History of the Legal Sufficiency Test

         It behooves us initially to focus on precisely what the appellant's contention about the legal sufficiency of the evidence entails or, more dispositively, on what it does not entail. Our ultimate holding will be framed exclusively in response to the appellant's challenge to the legal sufficiency of the evidence to support the attempted murder verdict. It behooves us to demarcate clearly what an examination of the legal sufficiency of the evidence entails, and what it does not entail. It is a precise contention and not a broad umbrella.

          In a jury trial, the scope of the legal sufficiency issue is clear. Maryland Rule of Procedure 4-324 requires an appellate court to review the legal sufficiency of the evidence if, at the close of all of the evidence, a timely motion for a judgment of acquittal has been made by the defendant. Brooks v. State, 299 Md. 146, 150, 472 A.2d 981 (1984) (" In determining the disposition of a motion for judgment of

Page 886

acquittal ..., the trial court is passing upon the sufficiency of the evidence to sustain a conviction." ). Absent such a motion, no review of the legal sufficiency of the evidence is even permitted. As Judge Kenney explained for this Court in Whiting v. State, 160 Md.App. 285, 308, 863 A.2d 1017 (2004):

[227 Md.App. 125] " Rule 4-324(a) requires that, as a prerequisite for appellate review of the sufficiency of the evidence, appellant move for a judgment of acquittal, specifying the grounds for the motion."

See also Graham v. State, 325 Md. 398, 416-17, 601 A.2d 131 (1992); Bates v. State, 127 Md.App. 678, 691, 736 A.2d 407 (1999).

          When dealing with the issue of legal sufficiency in a jury trial, we are dealing only with the satisfaction of the burden of production. Was the evidence sufficient, as a matter of law, to permit the judge to submit the case to the jury for its decision? We are not at all concerned with how the factfinder arrived at the verdict, the logic or illogic of the factfinder's reasoning, but only with the naked verdict itself. How the factfinding jury rendered its verdict may, to be sure, be a critical issue. We are not for a moment suggesting otherwise. It would be nonetheless an issue separate and distinct from the issue of whether the State has satisfied its burden of production by producing legally sufficient evidence to permit a verdict of guilty.

         In the case now before us, we are dealing with a court trial and not with a jury trial. The factfinder was a judge and not a jury of 12 persons whose decisional processes are forever both beyond our ken and beyond our authority to review. The question becomes one of whether appellate review of the evidence is broader in a bench trial than it is in a jury trial. The reviewing authority is spelled out in Maryland Rule 8-131(c), which provides:

" When an action has been tried without a jury, the appellate court will review the case on both the law and evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses."

(Emphasis supplied).

          There is one big and obvious difference between the review of a verdict on the evidence in a jury trial and in a [227 Md.App. 126] court trial. Such review of a jury's verdict is absolutely contingent on an underlying motion for a judgment of acquittal. Such a review on the evidence of a judge's verdict, on the other hand, is automatic. What remains to be seen is whether there is any further difference between the substance of the respective reviews. The literal wording of Rule 8-131( c) is that " the judgment of the trial court" (the verdict) will not be set aside " on the evidence unless clearly erroneous." (Emphasis supplied). Is the verdict in a bench trial that is not clearly erroneous the same, neither more nor less, than a jury verdict that is supported by legally sufficient evidence? No question could be more basic for an appellate court charged with reviewing criminal convictions.

         The absolutely seminal analysis in this regard was made by the five charter members of this Court in the second year of its existence. The monumental opinion of Judge Orth in Williams v. State, 5 Md.App. 450, 452, 247 A.2d 731, cert. denied, 252 Md. 734 (1969), set out to examine " the authority and function of this Court in its review of the sufficiency of the evidence in a criminal case." The issue was one of first impression, as the opinion pointed out that there was no authority for an appellate court to review the sufficiency of the

Page 887

evidence in a non-jury case until January 1, 1950 and no authority to review such sufficiency even in a jury case until a constitutional amendment effective as of December 1, 1950. Brooks v. State, 299 Md. 146, 149, 472 A.2d 981 (1984) ( Until 1950, the Court of Appeals " had no power to review the legal sufficiency of evidence on appeal of a criminal case tried to a jury." ). Then as now, the language authorizing review in a non-jury case referred to a verdict's not being " set aside on the evidence unless clearly erroneous" and the authorizing language in a jury trial referred to " the sufficiency of the evidence to sustain a conviction." 5 Md.App. at 454.

         As this Court, then reviewing essentially nothing but criminal cases (hence the word " Special" in its very name), undertook its review of the legal sufficiency of evidence in criminal cases, the inquiry was fundamental.

[227 Md.App. 127] " The question arises as to what test is to be applied on appeal in determining the sufficiency of the evidence (1) to sustain a conviction in a non-jury case, and (2) to justify its submission to the jury in a jury case."

5 Md.App. at 456. (Emphasis supplied).

         Judge Orth's opinion made it clear that in a jury trial and a court trial alike, we are measuring a verdict against the supporting evidence itself and not looking at what a judge might say in rendering the verdict.

" Once the question of the sufficiency of the evidence is properly before us, we believe that the criteria used to determine the question is the same, be the verdict rendered by the court or a jury."

5 Md.App. at 458-59 (emphasis supplied).

         The issue of legal sufficiency is precisely the same under either trial modality. In a court trial just as in a jury trial, the issue is the satisfaction of the burden of production.

" We think that whether the question comes before us as a contention that the trial court was clearly wrong in reaching a verdict of guilty on the evidence or as a contention that the evidence was insufficient in law so as to preclude it from being submitted to the jury, the test is whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged. If there was such evidence, the lower court would neither be clearly ...

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