Browne v. State, 1892-2019

CourtCourt of Special Appeals of Maryland
Writing for the CourtMoylan, J.
Docket Number1892-2019,0495-2021
Decision Date07 December 2022



Nos. 1892-2019, 0495-2021

Court of Special Appeals of Maryland

December 7, 2022

Circuit Court for Baltimore City Case No. 118232001

Arthur, Tang, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.


Moylan, J.

"The man who wins the lottery once is envied; the one who wins it twice is investigated."[1]

That simple but profound truism epitomizes what both in the law of logic and in the law of criminal evidence is the principle of inherent improbability. It is now more frequently referred to as the Doctrine of Chances. That principle is not an "exception" to the presumptive exclusion of evidence of "other crimes." It is, rather, an instance of the "other crimes" rule's threshold inapplicability. That distinction lies at the very heart of this appeal.

Questions Simple And Abstract

What is this case all about? Such a question would seem to be simple enough. The actual question before us, however, is infinitely more complex. Searching for the first-level answer serves only to implicate other questions of vastly more far-reaching significance. First and foremost, of course, the case is about whether this appellant's criminal convictions will be affirmed or reversed. That is important, as it should be. What is before us, however, is obviously much more than a question of the continued incarceration of Francois Browne.

The problem solving process for that question necessarily implicates the larger and more abstract question of Maryland's fundamental perception of its "other crimes" rule -the rule's basic configuration - the rule's conceptualization. The improbable fact pattern in the case now before us brings to the front of the mind, yet again, that Maryland has tended to ignore the fact that the vitally important component of our criminal and evidentiary


common law known as the "other crimes" rule has undergone a relatively recent period of significant doctrinal flux but is now enjoying the benefit of a fresh perspective. Over the last forty to fifty years, the intellectual understanding of this venerable rule has benefited from, both in introspective caselaw and in academic commentary, a significant revision.

That more abstract problem, in turn, generates the even more abstract question of how does Maryland arrive at its perception of the rule. Does it operate in a judicial vacuum? Or will it be influenced by the changing perception taking place in sister jurisdictions? The "other crimes" rule in Maryland is but a single strand in a much older and much larger cable of no less than sixty strands. Throughout that cable, generally, a widespread change in perception is now afoot. The question is whether our strand is alert to the general trend. It is imperative to remember, moreover, that we are dealing not with a common law principle that traces back to Ross v. State, 276 Md. 664, in 1976, but with one that traces back, at the least, to Rex v. Cole in the Michaelmas Term of 1810. The fresh perspective being enjoyed throughout the common law world is both worthy of and in need of fresh examination locally. But first:

The First-Level Question Before Us

The appellant, Francois Browne, was found guilty in the Circuit Court for Baltimore City by a jury, presided over by Judge Charles J. Peters, of second-degree murder and first-degree child abuse resulting in death. On November 7, 2019, Judge Peters sentenced the appellant to life imprisonment for the first-degree child abuse and to a consecutive term of


forty-five years for the second-degree murder. The appellant noted an appeal, which was docketed as Case No. 1892 of the Term of September 2019. Before briefing, however, that appeal was stayed.

On January 19, 2021, the appellant filed a Motion for a New Trial, which motion was denied by Judge Peters on May 27, 2021. The appellant noted an appeal from that denial, which was docketed as Case No. 495 of the September 2021 term. On August 23, 2021, this Court granted the appellant's motion to lift the stay in his first appeal and then to consolidate the two appeals for purposes of briefing and submission to this Court.

The Crime On Trial: The Infanticide of 2018

The appellant was convicted of the second-degree murder and first-degree child abuse resulting in death of seventeen-month-old Zaray Gray who died on Wednesday, July 18, 2018. Throughout that day, the appellant had been the primary adult caretaker of Zaray and the only adult other than Zaray's mother even to have any contact with him. Since the preceding May, the appellant had been involved in a romantic relationship with Zaray's mother, Whitney West. The appellant spent three or four days and nights per week at the West household with the mother and her three children: Zaray; Zoe, a sister who was seven years of age at the time of the trial; and Zakhi, a brother who was eight years of age at the time of the trial.

On that crucial Wednesday, the appellant came over to the West household at breakfast time and Ms. West cooked breakfast for the entire extended family. After


breakfast, Ms. West's mission for the day was to gather together some clothes which she was planning to donate to Goodwill. While she was busy doing so, the appellant agreed to take the three children to a nearby playground. While at the playground, Zaray remained in the care of the appellant while the two older children played on their own. At one point, Zaray tried to go down a sliding board but fell off when he got to the bottom. In a later statement to the police, the appellant said that when Zaray fell off at the bottom, he landed on his back and bumped his head.

Zakhi related an incident that before they all went home, they engaged in a race from the playground to behind a building. Zakhi testified that at one point behind the building, he saw the appellant "yanking" Zaray's arm while Zaray was crying. He also testified that he and Zoe took a different route back home and left Zaray alone with the appellant.

When the group got home, Ms. West was still gathering clothes for the Goodwill donation. The appellant brought Zaray upstairs to his mother. Zaray vomited while sitting on Zoe's bed. According to Ms. West, Zaray seemed tired and thirsty from the heat and the walk but otherwise seemed normal. While Ms. West cleaned up the bed and the floor, the appellant cleaned up Zaray and changed his clothes. Ms. West put Zaray on the bed in her room. The appellant went downstairs. Ms. West finally left the house at about 4:00 PM and took Zoe with her. At one point, the appellant took Zaray and Zakhi outside. When the appellant and Zaray came back inside, Zakhi continued to play outside with his friends. In his statement to the police, the appellant said that he and Zaray were together on the sofa


watching television for about an hour before he took Zaray upstairs to watch cartoons. During that period, Zaray vomited two more times. The appellant bathed him and changed him and then laid him down on Ms. West's bed.

In the meantime, Ms. West and Zoe had been to several stores and then went to get their nails done. Ms. West was gone for about two hours and got home at between 6:00 and 7:00 PM. After 15 to 20 minutes, Ms. West went upstairs to check on Zaray. He was lying on his stomach and "kind of moaning in his sleep." This did not alarm her and she went downstairs to cook dinner. Zaray stayed in the bedroom and did not have dinner with the others. Somewhat later, Ms. West decided to change Zaray's diaper before she and the appellant went to bed. It was then that Ms. West discovered that Zaray was not breathing and she could not find a pulse or a heartbeat. Zaray was taken to the hospital by ambulance. Zaray arrived at the hospital in cardiac arrest and was pronounced dead at 10:35 PM.

A head CT scan was negative for fractures and bleeding but an x-ray revealed a fractured left clavicle.[2] Among the more prominent findings, there were contusions on the right side torso that formed a pattern injury with five impact points, all consistent with a hand or a fist. The Assistant Medical Examiner, Diana Nointin, found evidence of "two blunt force impacts to the head and face and eight blunt force impacts to the torso." She also found significant internal injuries in the abdominal cavity, a hole and evidence of fresh hemorrhage in the "omentum," which is a sheet of fatty tissue between the intestines and


the abdominal wall, which covers the front of the abdomen and protects the internal organs from external damage. Dr. Nointin testified that the tear in the omentum could cause nausea and vomiting. She further testified that such an injury would be caused by a lot of force and would not be consistent with falling off the bottom of a slide. The abdominal injury could have triggered an extreme inflammatory response, putting a strain on the heart and ultimately causing cardiac arrest. Dr. Nointin testified that the injuries were consistent with an adult having punched Zaray. In order for a child to have caused such damage, it would take acceleration such as jumping off a bed and landing on Zaray or jumping on him repeatedly.

Dr. Nointin also opined that the clavicle fracture was a displaced fracture and it was indicative of blunt force trauma, either by a direct impact or from pulling or twisting the arm. One would need momentum and enough force to break a bone. Dr. Nointin concluded that the cause of Zaray's death was "multiple injuries" and the manner of death was homicide. She testified that the injuries that caused death had occurred within hours before the death and were consistent with an adult's punching of the child.

In terms of timing, the clavicle fracture was fresh, meaning that it had occurred "within hours" of Zaray's death. So too were contusions to the lower abdomen. The internal injuries to the abdomen were a mix of fresh injuries and...

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