Harris v. State

Melvin Mayfield, Chief Judge, dissenting. The appellants in this case argued five points in their brief on appeal. Their first point was that the trial court erred in overruling their motion for directed verdict. A division of this court reversed and remanded for new trial on one of the other four points urged and said it did not address the first point which “challenged” the sufficiency of the evidence “inasmuch as we reverse and remand for procedural errors committed by the trial court.”

In their petition for rehearing, the appellants contend they are “entitled” to a ruling on their motion for directed verdict for the reason that the granting of that motion would result in dismissal rather than new trial. They cite Burks v. United States, 437 U.S. 1 (1978), and Greene v. Massey, 437 U.S. 19 (1978), as authority for their contention.

I agree with the supplemental opinion on rehearing that Burks and Greene do not require that the sufficiency of the evidence be passed upon before the other points urged for reversal, but where one of those points is that a directed verdict should have been granted, I think we should pass upon it first. I see no reason why we should first review the trial court’s action in ruling upon the sufficiency of evidence where that action is urged on appeal as a reason for reversal. As I see it, all that is necessary in that situation is to pass upon the sufficiency of the evidence as it stood at the time the trial court ruled — not after we have reviewed motions and objections to evidence and have eliminated any improper evidence from the record.

Therefore, I would grant the petition for rehearing in this case for the purpose of passing upon the appellants’ point that the trial court should have granted directed verdicts in their favor.