Craddock v. State
| Citation | 494 A.2d 971,64 Md.App. 269 |
| Decision Date | 01 September 1984 |
| Docket Number | No. 1578,1578 |
| Parties | Frederick Warren CRADDOCK v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Mark Colvin, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.
Jillyn K. Schulze, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, Andrew L. Sonner, State's Atty. for Montgomery County and Kathleen Toolan, Asst. State's Atty. for Montgomery County, Rockville, on brief), for appellee.
Before GARRITY, ADKINS and GETTY, JJ.
Appellant, Frederick Warren Craddock (hereinafter "appellant"), and codefendant Robert Tyson were convicted of daytime house-breaking and theft, by a jury sitting in the Circuit Court for Montgomery County (Mitchell, J.). Appellant raises three issues in this appeal from those convictions:
1. whether the trial court erred in refusing to strike or to instruct the jury to disregard testimony to the effect that appellant had been arrested several times in the past on "open warrants";
2. whether the trial court committed plain error material to appellant's rights when it instructed the jury that it could find appellant guilty of theft even if its members could not agree on which form of theft;
3. whether, during the sentencing phase, the court erroneously considered prior arrests that did not result in convictions?
The record reveals that the Montgomery County residence of William and Marjorie Campbell was broken into and ransacked on the morning of February 2, 1984, and that clothing, jewelry, and silverware valued in excess of $7,000.00 were reported missing. Kathy Bues, the Campbell's next-door neighbor, testified that on the morning of the theft she observed a white male wearing a black cap and carrying a black garbage bag walk down the Campbell's driveway and get into a small, "drab" colored, 1976 or 1977 automobile occupied by two other individuals.
At about 5:00 p.m. that day, Officer Bruce Lewis of the Prince George's County Police Department responded to a call regarding a fight at 5266 Marlboro Pike. There, Officer Lewis saw appellant walking away from a parked car and toward an apartment building, and also saw Tyson, appellant's codefendant, "walking around in a circle in the parking lot and mumbling to himself."
Lewis, observing that a knife was protruding from Tyson's back pocket, stopped and frisked him. The knife proved to be a stainless steel butter knife. The frisk also produced a camera with a Montgomery College sticker on it. Tyson then removed from his pockets several items of jewelry, including a high school ring with the inscription "WWC." A skullcap was also removed from Tyson's back pocket.
A radio check then revealed that the car in which appellant and Tyson allegedly had been seen was reported to have been stolen. 1 Tyson was arrested there in the parking lot; appellant was arrested inside his adjacent apartment. A search of the car, a 1983 Dodge Colt, uncovered jewelry and coins. A search of appellant incident to his arrest in his apartment also uncovered numerous pieces of jewelry. Some of the jewelry taken from appellant, from Tyson, and from the car, was identified by the Campbells as having been among the items stolen from their home, as was the knife and camera taken from Tyson. The skullcap removed from Tyson's back pocket was identified by Bues, the Campbell's next-door neighbor, as the type of cap worn by the person she had observed walking down the Campbell's driveway on the morning of the housebreaking.
On direct examination, Officer Lewis testified for the State that he had observed appellant, whom he "knew from previous contacts," walking away from the car and toward the apartment building. On cross-examination by Tyson's counsel, the following exchange took place:
Q. You testified that you had had some contact with Mr. Craddock before?
A. Yes, ma'am.
Q. One of the other individuals. Was that contact with him involved in his selling items on the street previously?
A. I remember several times participating in arrests with him with open warrants. I can't remember selling on the streets.
Appellant urges that the lower court erred in refusing to strike the above underscored answer and in refusing to instruct the jury to disregard it. We agree, finding that the admission of Officer Lewis' answer violated the rule that "evidence which in any manner shows or tends to show that the accused committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible." Ross v. State, 276 Md. 664, 669, 350 A.2d 680 (1976) (emphasis added). It is not argued that this testimony was admitted under any of the well-recognized exceptions to the general rule excluding "other crimes" evidence.
Thus, we must reverse "unless the State can show beyond a reasonable doubt that the error did not contribute to the conviction." Id. at 674, 350 A.2d 680. The Court in Ross explained that
"[t]he essence of this test is the determination whether the cumulative effect of the properly admitted evidence so outweighs the prejudicial nature of the evidence erroneously admitted that there is no reasonable possibility that the decision of the finder of fact would have been different had the tainted evidence been excluded." Id.
Applying this standard, the Court reversed a defendant's conviction for possessing heroin with intent to distribute. In that case, the two chief prosecution witnesses were a police detective who confiscated the drugs after observing the defendant deliver them, and the paid police informant who actually made the controlled buy and who testified that he and the defendant used to "work together selling narcotics."
The Court of Appeals determined that the cumulative effect of the police detective's eyewitness testimony, together with the physical evidence and properly admitted portions of the informant's testimony, did not render the informant's improper allegations of prior criminal activity harmless beyond a reasonable doubt. The Court concluded that, despite the strong nature of the properly admitted evidence of guilt, there remained "at least a reasonable possibility that the improper testimony of prior criminal conduct contributed to the conviction." Id. at 674, 350 A.2d 680.
In the instant case, we find that the properly admitted evidence of guilt was at least as strong as that introduced in Ross, because appellant's possession of stolen property within seven hours of the theft was undisputed.
We also find the potential prejudice of the erroneously admitted evidence to be less in the instant case than it was in Ross. In Ross, the defendant complained of an in-court allegation that he had a history of committing specific and serious crimes, i.e., selling narcotics. In the instant case, by contrast, the appellant suffered from a somewhat vague reference to his having been arrested in the past on unspecified charges. We note that the State did not elicit this testimony and that it never referred to it at any point during the trial or closing arguments.
We hold that, although the trial court should have struck the inadmissible testimony and instructed the jury to disregard it, reversal is unwarranted because, on the facts of this case, there is no reasonable possibility that these errors affected the jury's verdict.
Next, appellant urges that the trial judge committed "plain error" when he instructed the jury that it could find appellant guilty of theft even if its members could not agree as to what form of theft had been proven. The court stated "... For purposes of this case, you are instructed that the offense of theft occurs when a person either willfully or knowingly obtains control of or exerts control over the property of the owner without the owner's authorization, or possesses stolen property knowing or believing it probably has been stolen and the person has at least one of the following different types of intent.
First, he has the purpose of depriving the owner of the property. Or, he willfully or knowingly uses, conceals or abandons the...
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