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«Tony Lamont Haile v. State of Maryland, No. 112, September Term, 2006. Opinion by Bell, C.J. CRIMINAL LAW – PROCEDURE – MOTION FOR JUDGMENT OF ...»

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The petitioner’s next assertion, in support of his insufficiency of the evidence argument, is that the language of § 10-606 (a) (3), barring the infliction of “bodily harm” to a police canine, “must mean serious bodily harm, not all harm no matter how minor it may be.” The petitioner finds support for this argument in the purpose paragraph of H.B. 711.

See 1999 Md. Laws Ch. 448 (H.B. 711). There, the Legislature stated that its purpose in enacting the bill was to prohibit persons “from inflicting certain injuries, disability, or death on animals used by law enforcement units under certain circumstances....” Emphasizing the words, “certain injuries”, the petitioner reasons that this language clearly demonstrates the Legislature’s intent to prohibit “something less than any and all injuries.” In addition, the petitioner’s conclusion, that this “something less” must only constitute “serious injuries”, is premised on the enumeration of injuries in § 10-606 (a) (3), and on the statutory construction doctrine, ejusdem generis.

We explained that doctrine in In re Wallace W., 333 Md. 186, 190, 634 A.2d 53, 55[W]hen general words in a statute follow the designation of particular things or classes of subjects or persons, the general words will usually be construed to include only those things or persons of the same class or general nature as those specifically mentioned.” (quoting Giant of Md. v. State’s Attorney, 274 Md. 158, 167, 334 A.2d 107, 113 (1975)) (internal quotation marks omitted). The petitioner notes that § 10-606 (a) (3) generally prohibits the intentional infliction of “bodily harm” and, more specifically, the intentional infliction of “permanent disability or death on an animal owned or used by a law enforcement unit.” Applying the doctrine to § 10-606 (a) (3), he asservates that “bodily harm”, as defined by the statute, cannot refer to all categories of bodily harm, including negligible and de minimis harm, but, instead, is limited to serious bodily harm, because that is the only category of harm that falls within the same class of severity as the other types of harm prohibited by § 10-606 (a), namely, “intentionally mutilat[ing], tortur[ing], cruelly beat[ing], or cruelly kill[ing] an animal.” Taken together, the petitioner asserts that the types of harm in § 10-606 (a) demonstrate, in keeping with the doctrine of ejusdem generis, that § 10-606 (a) (3)’s general prohibition against intentional infliction of “bodily harm” must contemplate only the kind of harm that is as serious as mutilation, torture, or any other cruel actions that could, or do, inflict permanent disability or death on law enforcement animals. He thus submits, even assuming that the petitioner did possess the specific intent required by § 10a) (3), that the evidence presented at trial was insufficient because the dog’s injury was insignificant and, therefore, did not fall within the ambit of § 10-606 (a) (3).

Because this Court could, and should, find, on the basis of his prior arguments, that the evidence proffered at trial was insufficient, the petitioner explains that it is unnecessary for us to reach the issue of self-defense in this case. He submits, however, that the insufficiency of the evidence presented at trial is further demonstrated by the fact that he acted in self-defense. This is so, he explains, because the dog provoked his response by biting him, to which he simply responded by striking the canine with only the amount of force that was reasonably necessary to cause it to release him.

The petitioner’s second main argument addresses the effectiveness of his trial counsel’s representation. Applying the test articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), the petitioner asserts that his counsel’s failure, after presenting the defense case, to move for judgment of acquittal pursuant to Maryland Rule 4-324,5 deprived him of his right to

Maryland Rule 4-324 provides:

“(a) Generally. A defendant may move for judgment of acquittal on one or more counts, or on one or more degrees of an offense which by law is divided into degrees, at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence. The defendant shall state with particularity all reasons why the motion should be granted. No objection to the motion for judgment of acquittal shall be necessary. A defendant does not waive the right to make the motion by introducing evidence during the presentation of the State’s case.

“(b) Action by the Court. If the court grants a motion for judgment of acquittal or determines on its own motion that a judgment of acquittal should be granted, it shall enter the judgment or direct the clerk to enter the judgment and to note that it has been entered by direction of the court. The court shall specify each count or degree of an offense to which the judgment of acquittal applies.

“(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 (continued...) effective assistance of counsel. This is so, he submits, because although, as he has demonstrated, the evidence presented by the State was insufficient to sustain his conviction under § 10-606 (a) (3), his counsel, by failing to renew the motion for judgment of acquittal made at the conclusion of the State’s case, but withdrawn when he presented his case, waived the issue of legal insufficiency on appeal. He thus urges us to hold that he was prejudiced by this ineffective representation, and, therefore, to reverse his conviction.

–  –  –

The State argues, as a threshold matter, that this Court should decline to address the petitioner’s sufficiency of the evidence challenge. It explains that the claim, as the petitioner concedes, was not preserved for review, because of defense counsel’s failure to renew her motion for judgment of acquittal. Unlike the petitioner, however, the State urges this Court to decline to hold that a failure to move for judgment of acquittal, even where the evidence is insufficient, necessarily constitutes ineffective assistance of counsel. It relies on Maryland Rule 4-324 and Maryland Code (2001) § 6-104 of the Criminal Procedure Article 6 (“CP”)

–  –  –

defendant fails to move for judgment of acquittal at the close of all evidence. Ennis v. State, 306 Md. 579, 585, 510 A.2d 573, 576 (1986). To hold as the petitioner urges would, in effect, the State argues, allow the petitioner’s sufficiency claim to proceed on appeal, and, thus, would effectively render Rule 4-324 and CP § 6-104 surplusage, since there would be no need for the requirement, articulated in those provisions, that defense counsel move for judgment of acquittal before the trial court.

The State next argues that, even if this Court were to consider the sufficiency claim, it is clear that the evidence was fully sufficient to sustain the petitioner’s conviction under CL § 10-606 (a) (3). Like the petitioner, the State also looks to the legislative history of the statute, which it concludes does not support the petitioner’s argument that the “bodily harm,” contemplated by § 10-606 (a) (3), necessarily refers to “serious bodily harm.” Indeed, it

–  –  –

clearly disregards the plain language of the statute. The State explains that the petitioner’s reliance on the Legislature’s stated purpose is an improper application of the canons of statutory construction, because that language conflicts with the plain text of the relevant statute.

The State also submits that the petitioner’s reliance on the doctrine of ejusdem generis is misplaced and misapplied. Noting the perimeters of the rule as

enunciated in In re Wallace W., 333 Md. at 190, 634 A.2d at 55-56, to wit:

“The doctrine of ejusdem generis applies when the following conditions exist:

(1) the statute contains an enumeration by specific words; (2) the members of the enumeration suggest a class; (3) the class is not exhausted by the enumeration; (4) a general reference supplementing the enumeration, usually following it; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires. It is generally held that the rule of ejusdem generis is merely a rule of construction and is only applicable where legislative intent or language expressing that intent is unclear,” it maintains that CL § 10-606 (a) (3) falls short of this standard because “the ‘class’ at issue – ‘bodily harm, permanent disability, or death’ – is exhausted by the enumeration,” and, further, that “there is no ‘general inference’ supplementing the enumeration.” In other words, the doctrine must be applied only to subsection (a) (3), the enumeration in subsection (a) (1) having no role to play in that regard. The State further explains that the statutory language of § 10-606 (a) (3) was employed by the Legislature, contrary to the petitioner’s assertions, because it enumerates escalating types of physical harm. The inclusion of “bodily harm”, without specifying what degree of harm is required, the State submits, is simply an indication that the Legislature intended to include all types of physical harm inflicted on law enforcement animals, rather than limit the harm to any extent.

The State also disagrees with the petitioner’s argument that § 10-606 (a) (3) requires proof of a specific intent to inflict bodily harm. The State asserts that, unlike those crimes described by this Court in Chen, 370 Md. at 110 n.5, 803 A.2d at 524 n.5, § 10-606 (a) (3) does not require “some specific mental element or intended purpose above and beyond the mental state required for the mere actus reus of the crime itself.” It concludes, therefore, that the petitioner’s “ultimate goal or motive in attacking the dog is irrelevant,” because “the jury could reasonably infer that he intended to do just what he did–inflict bodily harm on [the] police dog... to force the dog to release its hold” which, in any event, still violates the statute.

Finally, the State argues that the petitioner’s actions do not fall within the “selfdefense” exception of § 10-606 (a) (3). It submits, “[i]njuring a police dog, which is acting under the command of a police officer in the course of a lawful apprehension and in compliance with proper police dog procedures, cannot be what the General Assembly intended by the statutory exception for a ‘case of self defense’.” It further reminds this Court that, although the petitioner was given several commands to show his hands in order to avoid being attacked by the dog, he did not do so, and thus provoked the conflict by failing to comply with lawful police directions. The State concludes, on these grounds, that the evidence presented at trial was more than sufficient to sustain the petitioner’s conviction, though it reiterates its threshold argument, that this Court should decline to review the sufficiency issue altogether.

–  –  –

We note, at the outset, that the petitioner properly concedes that his trial counsel’s failure to move for judgment of acquittal at the conclusion of all the evidence, and thus, failure to renew his motion, left unpreserved his evidentiary insufficiency claim. This conclusion is not surprising in light of CP § 6-104 and Rule 4-324, both of which make clear that a motion for judgment of acquittal, made at the close of all the evidence, is a prerequisite to “the defendant... hav[ing] review of the ruling on appeal.” CP § 6-104 (a) provides that where a criminal defendant moves for judgment of acquittal at the close of the State’s evidence, the motion is denied, and the defendant proceeds to offer his own evidence, the defendant, in effect, has withdrawn his motion. Rule 4-324 (c) is to like effect. This motion has no viability unless it is renewed, if counsel moves, again, for judgment of acquittal after the close of all evidence. CP § 6-104 (b) (1); Rule 4-324 (a). Counsel for the petitioner moved for judgment at the end of the State’s case, but did not move for judgment of acquittal at the end of the entire case. “Together, the statute and the rule have 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.” Ennis, 306 Md. at 585, 510 A.2d at

576. See Tull v. State, 230 Md. 152, 155, 186 A.2d 205, 207 (1962), Humphreys v. State, 227 Md. 115, 123, 175 A.2d 777, 781 (1961).

We are presented with a procedural scenario which is identical to that which we addressed in Ennis, supra, where a petitioner who failed to move for judgment of acquittal at the close of all the evidence sought review of the sufficiency of the evidence to support

his conviction. 306 Md. at 583, 510 A.2d at 575. There, we stated:

“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.”

Id., 306 Md. at 587, 510 A.2d at 577 (citations omitted). We went on to note that

“whether an appellate court of this State can entertain review of evidentiary sufficiency in criminal trials depends on whether certain specific and unambiguous procedural prerequisites have been met.... As we have already made clear, failure to renew the requisite motion effectively withdraws our authority to consider an insufficiency contention. Additionally, we recognize that an accused’s “right” to invoke appellate review of the sufficiency of the evidence sustaining his criminal conviction is circumscribed by state constitutional, legislative and procedural guidelines.

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