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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2588 September Term, 1999

LEONARD JOVAN MORGAN

v.

STATE OF MARYLAND

Moylan, Davis, Getty, James S., (retired, specially assigned), JJ.

Opinion by Davis, J.

Filed: July 6, 2000

Appellant Leonard Jovan Morgan was convicted by a jury on August 13, 1997, in the Circuit Court for Prince George's

County, of second degree murder.

He appealed his conviction and

we reversed and remanded the case for retrial in an unreported opinion, Morgan v. State, No. 1693, September Term 1997 (filed July 20, 1998). erroneous denial The reversal was based on the trial court's of appellant's motion to suppress his

statements to the police. Appellant was retried and, on September 1, 1999, he was again convicted of second degree murder and was sentenced to thirty years imprisonment. Appellant timely noted this appeal,

presenting two questions, which we rephrase: I. Did the trial court err in denying appellant's motion for judgment of acquittal based on insufficiency of the evidence and thereby submitting the case to the jury? Did the trial court abuse its discretion by denying appellant's motion for mistrial after the prosecutor made reference to appellant's first trial? of these questions in the negative and,

II.

We

answer

both

accordingly, affirm the judgment of the circuit court.

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FACTUAL BACKGROUND
This appeal stems from the January 4, 1997, murder of

Richard McCoy. murdered evidence the

No direct evidence was presented that appellant victim. at The trial substance was that of the circumstantial telephoned his He

adduced

appellant

aunt, Deborah Phillips, on the evening of January 4, 1997.

was frightened, upset, and crying, he told her, because someone had been shooting at him and his friends, Eddie Mathis and

McCoy, while they were driving in the victim's car.

Several

witnesses testified that they saw McCoy in the company of his two friends, Mathis and appellant, on Friday evening, January 4, 1997. On January 5, 1997, an off-duty police officer found the

victim's body on the side of the road at Suitland Parkway in Prince George's County. Autopsy reports revealed that the

victim was shot twice in the head, once with a .44 millimeter handgun and also with a .9 millimeter handgun. On January 9,

1997, investigators found the victim's car in Washington, D.C. The car exhibited no signs of having been damaged from gunshots. Martha Rorie and Shirley Bell, McCoy's two cousins with whom he lived in Washington, D.C., testified that they saw McCoy on that evening at their residence with Anthony Ross, Patrick Woods, and two other individuals identified as "Steve" and

"Moochie."

Ross testified that, later in the evening, he saw

- 3 the victim sitting in his yellow Nova automobile in front of his house in the District of Columbia. McCoy was sitting in the

passenger's seat of his car, Mathis was sitting in the driver's seat,1 and appellant was standing on the porch in front of the house. According to the testimony of appellant's aunt, it was

after appellant was seen in the company of Mathis and the victim that appellant called his aunt to report that someone had been shooting at them while they were inside the car. Subsequent to that telephone conversation, the police were able to obtain the telephone number of the telephone appellant used to call his aunt, which was later traced to Cecilia

Scarborough's

apartment.

Police

searched

Scarborough's

apartment and found a plastic bag containing a blood-stained vest on her balcony; the blood was subsequently analyzed and found to be consistent with that of the victim's DNA. Scarborough testified that Mathis and appellant were in her apartment when she arrived on the night of the murder, between nine and ten o'clock in the evening. Neither Mathis nor

appellant appeared to her to be upset or injured and both acted normal. The time line of events before and after the murder of

Although appellant's brief states that Ross testified that the victim was sitting in the driver's seat of his car, in fact, the witness testified that the victim was sitting "in the passenger side of his car . . . ."

1

- 4 Richard McCoy is essential to our review of appellant's claim of insufficiency of the evidence:

TIME LINE
January 4, 1997 to January 11, 1997 January 4, 7:15 p.m. -- McCoy's cousins, Martha Rorie and Shirley Bell, last see the victim as he left their residence. January 4, evening hours: McCoy returns to residence to get his keys, telling Bruce Tucker that he would be right back; Tucker also identifies victim's hat at trial. January 4, 7:00-8:00 p.m. -- Anthony Ross sees McCoy sitting in passenger seat of his car and Mathis sitting in the driver's seat, as appellant stood on the front porch of the residence. January 4, 8:00 p.m. -- Appellant telephones his aunt, Deborah Phillips, from a telephone number recorded by her Caller I.D., and said that "someone was shooting at him and he was scared," that he was with Eddie and Richard, and that "Richard and Eddie got hit." Concerned about appellant's telephone call, Phillips telephones the District of Columbia Police. January gunshot 4, 8:45 p.m. -- Claudio Herzfeld hears single loud emanating from Suitland Parkway, adjacent to his residence near where victim's body was discovered.

January 4, 9:00-9:30 p.m. -- Cecilia Scarborough returns to her apartment and finds appellant and Eddie Mathis there, apparently uninjured and exhibiting "normal" demeanor; the pair stay overnight, leaving her apartment the next morning; a blue bag containing a vest stained with blood, the DNA of which was analyzed and found to be inconsistent with that of appellant and Mathis, but consistent with McCoy's DNA was placed by someone other than Scarborough on a chair on her balcony. January 4, 10:00 p.m. -- Officers Michael Baylor and Lazaro Gonzales of the Washington, D.C. Metropolitan Police respond to the "911" call placed by Deborah Phillips and, based

- 5 on the information received from her, Gonzalez sent "units out to Suitland Parkway looking for a body and a yellow car" which he believed, ". . . belonged to a guy named Richard." January Gladney 4, 11:15-11:55 p.m. -- The police interview Shirley to ascertain if she knew anything about appellant; after the police left, she placed a telephone call to the number which had appeared on her Caller I.D. and she talked with appellant who "appeared okay on the phone."

January 5, 8:00 a.m. -- Officer William Smith of the Washington, D.C. Metropolitan Police, who had just left work, discovered the victim's body beside Suitland Road and Forestville. January 9 -- Sergeant Daniel Lawson of the United States Park Police processes the 1977 Chevrolet Nova discovered at Suitland Parkway and Meadowview Drive; he details the soot covering the entire inside of the vehicle "from a fire that had been set in the vehicle" interior, a stained carpet from the floor of the right rear of the vehicle, all windows were intact and the recovery of a Green Bay Packers baseball hat from the driver's side floor of the vehicle. January 11, 12:30 a.m. - Robert Rule, Lieutenant Investigator in the Special Forces Unit of the United States Park Police executed a search warrant for 6553 Hillmar Drive, Apartment 202, the premises leased to Cecilia Scarborough; recovered from a green plastic chair on the balcony was a plastic bag later found to contain a vest stained with blood analyzed as consistent with the DNA of the victim's blood.

- 6 -

ANALYSIS I SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE
A. STANDARD OF REVIEW

The Court of Appeals penned the well-settled standard of appellate review of the trial court in State v. Albrecht, 336 Md. 475, 478-79 (1994): At the outset, we emphasize that when an appellate court is called upon to determine whether sufficient evidence exists to sustain a criminal conviction, it is not the function or the duty of the appellate court to undertake a review of the record that would amount to, in essence, a retrial of the case. Rather, we review the evidence in the light most favorable to the State, . . . giving due regard to the trial court's finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses. Fundamentally, our concern is not with whether the trial court's verdict is in accord with what appears to us to be the weight of the evidence, . . . but rather is only with whether the verdicts were supported with sufficient evidence -- that is, evidence that either showed directly, or circumstantially, or supported a rational inference of facts which could fairly convince a trier of fact of the defendant's guilt of the offenses charged beyond a reasonable doubt. In other words, when a sufficiency challenge is made, the reviewing court is not to "ask itself whether it believes that the evidence at the trial established guilt

- 7 beyond a reasonable doubt"; rather, the duty of the appellate court is only to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citations and footnote omitted.) Moreover, in recapitulating the essence of our review, we said, in Stouffer v. State, 118 Md. App. 590, 606 (1997), aff'd in part, rev'd in part, 352 Md. 97 (1998), citing Barnes v. State, 31 Md. App. 25, 29 (1976): In other words, a guilty verdict may be set aside only if there is no legally sufficient evidence or inferences drawable therefrom on which the jury could find the accused guilty beyond a reasonable doubt.

B.

CIRCUMSTANTIAL EVIDENCE

Judge Salmon, writing for the Court in our recent decision in Jensen v. State, 127 Md. App. 103, 117-18, cert. denied, 356 Md. 178 (1999), discussed the sufficiency of circumstantial

evidence to sustain a criminal conviction: "Maryland has long held that there is no difference between direct and circumstantial evidence." A conviction may be based on circumstantial evidence alone. If guilt is based on a single strand of circumstantial evidence, however, to meet the standard for legal sufficiency, the circumstances must be inconsistent with any reasonable hypothesis of innocence. Nevertheless, the Court of Appeals has made clear that this last-

- 8 mentioned rule does not apply when the conviction is based on multiple strands of circumstantial evidence. In Hebron, the Court explained: (W)here the circumstantial evidence consists of more than a single strand, . . . "an instruction requiring the exclusion of reasonable hypothesis of innocence is not only unwarranted, but improper." This is so because, in such a case, the circumstances, taken together and viewed from the State's perspective, are inconsistent with, although not absolutely dispositive of, the defendant's innocence. (Citations and footnote omitted.) In rejecting appellant's contention in Jensen that a

judgment of conviction must be reversed if the circumstantial evidence is consistent with any reasonable theory of innocence when the State's evidence is purely circumstantial, we explained that the rule Jensen embraced was misleading and incomplete in the factual context of that case. We then set forth the

principle in its entirety as recounted in Hebron v. State, 331 Md. 219 (1993). Judge Robert M. Bell, currently Chief Judge,

explained at 231 Md. 234: The cases referring to circumstantial evidence not excluding every reasonable hypothesis of a defendant's innocence are cases in which there is circumstantial evidence of the defendant's guilt and other

- 9 evidence, either circumstantial or direct, tending to negate that evidence and no basis upon which a rational finder of fact could return a verdict of guilty without speculating as to which of the two versions is the correct version. A jury faced with that state of the evidence could not logically, nor lawfully, return a guilty verdict; hence, as the Court of Special Appeals pointed out, given that scenario, "there is nothing for the jury to decide, and, upon proper motion, the judge is dutybound, as a matter of law, to enter a judgment of acquittal." (Citations omitted.) The Pressley rejected Hebron v. Court 295 noted Md. that 143, the 150 Court (1983), fact of Appeals, in

State,

had

previously the

the

argument

that

each

constituting

circumstantial evidence is disconnected and independent and must be proved beyond a reasonable doubt: In Pressley, a case involving but one strand of circumstantial evidence, the defendant urged that, in the case of circumstantial evidence consisting of a number of disconnected and independent facts, each fact must be proved beyond a reasonable doubt. The Court rejected the argument, noting that, where that situation exists, "(c)ircumstantial evidence is not like a chain which falls when its weakest link is broken, but is like a cable. The strength of the cable `does not depend upon one strand, but is made up of a union and combination of the strength of all its strands. No one wire in the cable that supports the

- 10 suspension bridge across Niagara Falls could stand much weight, but when these different strands are all combined together, they support a structure which is capable of sustaining the weight of the heaviest engines and trains. We therefore think it is erroneous to speak of circumstantial evidence as depending on links, for the truth is that in cases of circumstantial evidence each fact relied upon is simply considered as one of the strands and all of the facts relied upon should be treated as a cable.'" . . . Conversely, albeit only implicitly, the Court recognized that "(o)nly when there is `but one strand' of evidence or successive links of evidence connecting the defendant to the crime must the trier of fact be satisfied beyond a reasonable doubt as to each link in the chain of circumstances necessary to establish the defendant's guilt." Hebron, 331 Md. at 227-28 (citations omitted). Ultimately, regarding when the the Hebron Court of affirmed our determination hypothesis of

"exclusion

reasonable

innocence" doctrine applies: The Court of Special Appeals was correct, therefore, when it concluded that where the circumstantial evidence consists of more than a single strand, the West [v. State, 312 Md. 197 (1988)] proposition does not

- 11 apply. Indeed, in that circumstance, "an instruction requiring the exclusion of reasonable hypothesis of innocence is not only unwarranted, but improper." This is so because, in such a case, the circumstances, taken together and viewed from the State's perspective, are inconsistent with, although not absolutely dispositive of, the defendant's innocence. conviction may be sustained on the basis of a single strand of circumstantial evidence or successive links of circumstantial evidence. It is only when that evidence is also consistent with a reasonable hypothesis of innocence that it is insufficient. The question thus becomes when is a single strand or successive links of circumstantial evidence consistent both with guilt and innocence? Id. at 228-29 (citations omitted). The evidence to support a finding of guilt of the crime of murder may be either direct or circumstantial and, where legally sufficient evidence of corpus delecti and criminal agency are presented, the question of whether a defendant is guilty is a question of fact to be determined by the jury. id. at 237-38. See generally A

Circumstantial evidence may support a conviction

when the circumstances, taken together, do not require the trier of fact to resort to speculation or mere conjecture. State, 346 Md. 452, 458 (1997). It is not necessary, however, that the circumstantial Taylor v.

evidence be such that no possible theory other than guilt can

- 12 stand. 263 Md. See Hebron, 331 Md. at 227 (quoting Gilmore v. State, 268, 292-93 (1971), vacated in part, 408 U.S. 940

(1972)).

It is also neither necessary that the circumstantial

evidence exclude every possibility of the defendant's innocence, nor that it produce an absolute certainty of defendant's guilt in the minds of the jurors. doubt has never been required. Id. Proof of guilt beyond all

Tasco v. State, 223 Md. 503, 510

(1960), cert. denied, 365 U.S. 885 (1961). "[T]o believed) meet must the test of legal sufficiency, or Id. evidence a (if

either

show

directly,

support

rational

inference of, the fact to be proved."

A jury is asked to

weigh the evidence given to them based upon its experience with people and events. Hebron, 331 Md. at 225 (quoting Holland v. "If the jury is

United States, 348 U.S. 121, 139-40 (1954).

convinced beyond a reasonable doubt, we can require no more." Id. A reversal of the lower court, sitting with a jury, would an appellate court to inquire into and weigh the

require

evidence, essentially taking over the prerogative of the trial court, which we have no authority to do. 223 Md. at 510-11. See generally Tasco,

- 13 C. THE ROLE OF THE JUDGE VIS-A-VIS THAT OF THE JURY

The Court of Appeals has pointed out in In re Petition for Writ of Prohibition, 312 Md. 280 (1988), that what a trial court does in regard to passing upon the sufficiency of the evidence is "strictly circumscribed." Id. at 310. The trial judge,

sitting with a jury, may not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt. Id. (citation omitted). Prior

to a constitutional amendment in 1950, trial courts, and also appellate courts, did not have the power to review the

sufficiency of the evidence of a criminal case tried before a jury. Brooks v. State, 299 Md. 146, 149 been (1984) (citation by

omitted).

That

amendment

has

since

supplemented

statute, MD. CODE (1996 Repl. Vol.), ART. 27,

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