State v. Faulkner, 11

Citation314 Md. 630,552 A.2d 896
Decision Date07 February 1989
Docket NumberNo. 11,S,11
PartiesSTATE of Maryland v. Alvin FAULKNER. ept. Term 1988.
CourtCourt of Appeals of Maryland

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for petitioner.

Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

ADKINS, Judge.

A jury sitting in the Circuit Court for Montgomery County (Raker, J.) convicted respondent Alvin Faulkner (Faulkner) of robbery with a dangerous or deadly weapon, use of a handgun in the commission of a felony, and conspiracy to commit robbery with a dangerous or deadly weapon. In an unreported decision the Court of Special Appeals reversed and remanded for a new trial, Faulkner v. State, No. 259, Sept. Term, 1987 (filed Dec. 18, 1987), holding that "other crimes" evidence was erroneously admitted into evidence at the trial preceding those convictions. We granted certiorari to decide the important issue involved.

The robbery for which Faulkner was convicted occurred on Friday, 15 November 1985, between 9:40 and 10:00 p.m. at a Safeway store located in the Little Falls Mall in Montgomery County. Robberies at that same store also occurred on Friday, 19 April 1985; Friday, 18 October 1985; and Friday, 10 January 1986. The trial court conducted a lengthy pretrial hearing on Faulkner's motion in limine to exclude evidence of the 19 April, 18 October, and 10 January robberies. The State proffered testimony of witnesses who would provide evidence that each of the other crimes had a similar modus operandi to that of the 15 November 1986 crime and would establish Faulkner's agency with respect to it.

Faulkner challenged the admissibility of the "other crimes" evidence on three grounds: (1) the State had no need for the evidence; (2) the State could not establish by clear and convincing evidence Faulkner's involvement in the other crimes; and (3) the probative value of the evidence was outweighed by the inherent prejudice of the admission of "other crimes" evidence. The trial court ruled, however, that the State would be permitted to introduce evidence of the robberies which occurred on 19 April 1985 and 10 January 1986 for the purpose of proving the identity of the 15 November culprit. 1 The Court of Special Appeals reversed. . It seems to have concluded that there was no need to use the "other crimes" evidence to establish Faulkner's identity; that the evidence of Faulkner's involvement in the 19 April affair was not clear and convincing; and that the prejudicial impact of testimony regarding the 10 January 1986 incident heavily outweighed its probative value on the issue of identity.

I. The "Other Crimes" Rule

We have often addressed the admissibility of "other crimes" evidence. Generally, "evidence of a defendant's prior criminal acts may not be introduced to prove that he is guilty of the offense for which he is on trial." Straughn v. State, 297 Md. 329, 333, 465 A.2d 1166, 1168 (1983). See Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980); State v. Jones, 284 Md. 232, 395 A.2d 1182 (1979); Cross v. State, 282 Md. 468, 386 A.2d 757 (1978); McKnight v. State, 280 Md. 604, 375 A.2d 551 (1977); Ross v. State, 276 Md. 664, 350 A.2d 680 (1976); see generally 5 L. McLain Maryland Practice: Maryland Evidence § 404.5, at 352 (1987). Evidence of other crimes may tend to confuse the jurors, predispose them to a belief in the defendant's guilt, or prejudice their minds against the defendant. Ross, 276 Md. at 669, 350 A.2d at 684; see also Hoes v. State, 35 Md.App. 61, 71, 368 A.2d 1080, 1086, cert. denied, 280 Md. 731 (1977) (jury may be "predisposed to convict [the defendant's] 'reputation' ").

Evidence of other crimes may be admitted, however, if it is substantially relevant to some contested issue in the case and if it is not offered to prove the defendant's guilt based on propensity to commit crime or his character as a criminal. Ross, 276 Md. at 669, 350 A.2d at 684; see generally C. McCormick, Evidence § 190 (E. Cleary 3d ed. 1984); L. McLain, supra, § 404.5, at 353.

Thus, there are numerous exceptions to the general rule that other crimes evidence must be suppressed. Evidence of this type may be admitted if it tends to establish motive, intent, absence of mistake, a common scheme or plan, identity, opportunity, preparation, knowledge, absence of mistake or accident. See Ross at 669-670, 350 A.2d at 684; C. McCormick, supra, § 190, at 558-564; L. McLain, supra, § 404.5, at 353. But, because of the potential danger involved, the admission of other crimes evidence "should be subjected to rigid scrutiny by the courts...." Ross at 671, 350 A.2d at 685. Additionally, the evidence proffered to the trial judge must be clear and convincing in establishing the accused's involvement in the other crimes. Cross, 282 Md. at 478, 386 A.2d at 764.

When a trial court is faced with the need to decide whether to admit evidence of another crime--that is, evidence that relates to an offense separate from that for which the defendant is presently on trial--it first determines whether the evidence fits within one or more of the Ross exceptions. That is a legal determination and does not involve any exercise of discretion. See Cross, 282 Md. at 474, 386 A.2d at 761; Moore v. State, 73 Md.App. 36, 44, 533 A.2d 1, 5 (1987), cert. denied, 311 Md. 719, 537 A.2d 273 (1988).

If one or more of the exceptions applies, the next step is to decide whether the accused's involvement in the other crimes is established by clear and convincing evidence. Lodowski v. State, 302 Md. 691, 728, 490 A.2d 1228, 1247 (1985), defendant's petition for cert. denied, 475 U.S. 1086, 106 S.Ct. 1469, 89 L.Ed.2d 725, vacated, 475 U.S. 1078, 106 S.Ct. 1452, 89 L.Ed.2d 711, rev'd on other grounds, 307 Md. 233 513 A.2d 299 (1986); Cross, 282 Md. at 478, 386 A.2d at 764. We will review this decision to determine whether the evidence was sufficient to support the trial judge's finding.

If this requirement is met, the trial court proceeds to the final step. The necessity for and probative value of the "other crimes" evidence is to be carefully weighed against any undue prejudice likely to result from its admission. Cross, 282 Md. at 474, 386 A.2d at 761 [citations omitted]. This segment of the analysis implicates the exercise of the trial court's discretion. Id.; Moore, 73 Md.App. at 44-45, 533 A.2d at 5.

II. This Case

We now proceed to apply these established principles to the facts of the case before us. The contested issue on which Judge Raker admitted the "other crimes" evidence was Faulkner's identity, for as defense counsel argued to the jury at trial, "the only issue is whether my client, Alvin Faulkner, was the person who was with Tom Peavy on November 15, 1985." 2 The State adduced considerable evidence in its effort to come within the identity exception to the "other crimes" rule.

The Friday, 19 April 1985, robbery occurred at approximately 9:40 p.m. An employee of Safeway, Stephen Johnson, testified that a black male, between the ages of twenty-five and thirty, who was five feet ten inches tall and 170 pounds, entered the store, stood on a check-out stand next to the store's office, and demanded bills of large denominations. The robber wore gloves, had a ski mask over his head, carried a green trash bag, and held a .22 caliber rifle in his right hand. Despite his instructions, the robber was given bills in one and five-dollar denominations.

Another witness, Ann Chenoweth, testified that approximately two weeks after her 8 April 1985 birthday, she saw Faulkner carrying a large wad of one and five dollar bills. Brian Corkery testified that, in the spring of 1985, Faulkner told him that he robbed a Safeway store. Detective Aquaviva, who investigated the Safeway robberies, testified that only one robbery occurred in the spring of 1985 at the store in Little Falls Mall.

Regarding the robbery for which Faulkner was convicted in this proceeding, the one occurring on Friday, 15 November 1985, Johnson testified that the robber had the same physical and behavioral characteristics as the robber on 19 April 1985. The robber again entered the store, climbed onto the same check-out stand, and demanded bills of large denominations. The perpetrator wore a blue denim mask, apparently cut from the leg portion of a pair of jeans. The mask was about a foot long and, with the exception of openings at his eyes, completely covered his face. He also wore gloves, carried a burlap sack, and was armed with a .22 caliber revolver. He carried the gun in his right hand. Again, despite his instructions to the contrary, the robber received mostly one and five-dollar bills. Three other Safeway employees testified that the robber was black and had the same build as Faulkner.

An accomplice to the 15 November robbery, Tom Peavy, testified that he acted as a look-out while Faulkner committed the robbery. Peavy's description of Faulkner's clothing matched the description given by Johnson. Peavy testified that Faulkner lived within five minutes walking distance from the Safeway, via a path through the woods.

Earl Carter, another Safeway employee, testified that on Friday, 10 January 1986, shortly after 9:00 p.m., a black male wearing a blue denim mask climbed onto a check-out stand and demanded large bills. Carter testified that the robber was in his twenties and stood between five feet ten inches and six feet. Further, the robber carried a plastic bag and held a .22 caliber handgun in his right hand. Carter, who was shot in the neck by the perpetrator, testified that he had seen Faulkner in the store over one hundred times. He said that the robber's voice and physical build were similar to that of Faulkner. Carter identified a gun and a jacket, both found in the woods near Faulkner's home, as...

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