Bussie v. State

• Decision Date: 01 September 1996
• Docket Number: No. 1107,1107
• Citation: 693 A.2d 49,115 Md.App. 324
• Parties: James Tyrece BUSSIE v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 324

115 Md.App. 324

693 A.2d 49

James Tyrece BUSSIE v. STATE of Maryland.

No. 1107, Sept. Term, 1996.

Court of Special Appeals of Maryland.

May 1, 1997.

George Harper, Upper Marlboro, for appellant

David J. Taube, Staff Atty. (J. Joseph Curran, Jr., Atty. Gen., Mary Ellen Barbera, Asst. Atty. Gen., Baltimore and Jack B. Johnson, State's Atty. for Prince George's County of Upper Marlboro, on the brief), for appellee.

Argued before CATHELL, HARRELL and THIEME, JJ.

HARRELL, Judge.

James Tyrece Bussie appeals his conviction by a jury in the Circuit Court for Prince George's County of assault with intent to disable, malicious shooting, use of a handgun in a crime of violence, possession of cocaine, and possession of marijuana. Appellant was acquitted of assault with intent to avoid apprehension, attempted murder, and assault with intent to murder. On 17 June 1996, the court sentenced Mr. Bussie as follows: ten years for the assault with intent to disable charge ¹; five years without parole for the handgun violation, to be served consecutively with the assault sentence; three years, to be served concurrently with the handgun sentence, for the cocaine count; and, one year, to be served concurrently with the handgun sentence, for marijuana possession. Appellant claims that the trial court's denial of his motion ² to sever the drug charges ³ from the assault-related charges ⁴ was reversible error. Alternatively, he assigns error to the failure of the trial judge to give a self-defense instruction. We shall reverse and remand the convictions on the assault charges and affirm the convictions on the drug charges.

ISSUES

Mr. Bussie presents several issues for our review. We have restructured those issues below in order to facilitate our analysis.

I. Whether the trial judge erred by failing to sever the trial of the assault charges from the trial of the drug-related charges.

II. Whether, as a matter of law, this misjoinder requires reversal of appellant's drug convictions.

III. Whether, as a matter of law, this misjoinder requires reversal of appellant's assault convictions.

IV. Whether the trial judge's refusal to give a self-defense instruction amounted to reversible error.

FACTS

On 23 August 1995, at approximately 9 p.m., in a fast food restaurant located in Lanham, Maryland, a melee occurred that culminated in the non-fatal shooting of Joseph Bush and appellant's arrest. Mr. Bush, a sizeable man, was not an ordinary bystander. Testimony received by the trial court indicated that Mr. Bush was an active participant in, and possible instigator of, the altercation. Almost every factual issue was disputed at trial, including who owned and produced the gun employed to shoot Mr. Bush. Both appellant and Mr. Bush concede that after someone produced the handgun, they battled for control of it, and Mr. Bush was shot twice. Appellant, after the shooting, fled the scene. Mr. Bussie was arrested at a gasoline station located approximately fifty yards from the restaurant and approximately fifteen minutes after the shooting. That arrest was effected with the assistance of the restaurant's security guard. Subsequent to police apprehension, appellant was searched incident to his arrest. During that search, the police discovered small quantities of marijuana and cocaine. Apparently the drugs were not a cause of, nor an issue in, the Lanham fast food fracas.

Appellant filed a written pre-trial motion to sever the various counts without elucidating the reasons for that motion the drugs had nothing to do with the original altercation. There was a melee inside the restaurant ... [b]ut drugs were not the cause.... So when the jury sees a misdemeanor count of cocaine possession and a misdemeanor of marijuana possession at the tail end of this case--and felony drug counts are not part of this case, the amounts in question are so small. But when they see those two they are likely to conclude the impermissible inference that because he's guilty of one kind of crime he, therefore, is more likely to be guilty of another kind of crime. And to avoid that impermissible inference we suggest the counts be severed to avoid the prejudice to the Defendant.

At a hearing on the matter, however, appellant's counsel argued that

In retort, the State plainly contended that the drugs were discovered incident to the arrest for assault and, therefore, the two categories of charges were sufficiently linked logically, thereby warranting joinder.

Appellant was tried on 3 April 1996. The vast majority of the evidence produced at the trial concerned the shooting and the handgun. The State also produced sufficient evidence of the drug possession charges to garner a conviction. ⁵ During all phases of the trial, appellant ignored the drug charges. In fact, appellant failed to proffer any theory, or evidence in support thereof, that could serve as a defense to the drug possession charges. Essentially, appellant failed to counter the State's evidence of drug possession in any way. Ultimately, appellant took the stand and admitted to having the drugs at the time of his arrest.

Both the prosecution and defense produced sufficient evidence of appellant's self-defense claim to warrant instructing

                the jury in that regard. 6  The trial judge, without explanation, failed to instruct the jury as to the law [693 A.2d 52] of perfect or imperfect self-defense.  Defense counsel properly excepted to that failure on the record following the jury instructions.  The jury returned its verdict, proclaiming Mr. Bussie not guilty of attempted murder and assault with intent to murder.  The judge had previously granted a motion for judgment of acquittal as to the charge of assault with intent to avoid apprehension.  Guilty verdicts were lodged on the assault with intent to disable, malicious shooting, use of a handgun in a crime of violence, and drug possession counts.  The judge then entered the aforementioned sentences.  Thereafter, Mr. Bussie filed this timely appeal
                

ANALYSIS

Preface

As a prelude to the severance voyage the parties have devised, we first acknowledge Wieland v. State, 101 Md.App. 1, 8-23, 643 A.2d 446 (1994) and Solomon v. State, 101 Md.App. 331, 347-55, 367-79, 646 A.2d 1064 (1994), cert. denied, 337 Md. 90, 651 A.2d 855 (1995). In Wieland, Judge Moylan imparted what was, at that time, the most detailed comparison of joinder/severance ⁷ law to the "other crimes" ⁸ evidentiary rule contained in any Maryland appellate opinion. Despite the applicability of that case to the instant one, and its relative modernity, the parties failed to mention it in their briefs or at oral argument. Perhaps this omission is explainable because "other crimes" evidentiary law and joinder/severance law are not precise parallels. See Wieland, 101 Md.App. at 15, 643 A.2d 446.

In Solomon, Judge Moylan again assaulted what has become an entrenched analogy. Still, the parties attempt to persuade this Court to conduct its appellate review of the trial judge's severance analysis in lockstep with the standard for the "other crimes" evidentiary rule. Seizing the guidon from our colleague, we persevere in our quixotic crusade to disestablish this oft-repeated, yet flawed, analogy equating the "other crimes" analysis and the issue of joinder and severance.

I.

Our consideration of severance law and "other crimes" evidentiary law shall begin and end with the first step required of the trial judge in each. Severance cases first require an assessment of the "mutual admissibility" of the evidence bearing on the elements of each crime. Alternatively, an "other crimes" analysis begins by presuming inadmissibility, subject to a number of exceptions. Both address the same substantive relevancy considerations while adhering to differing procedural progressions.

The second step in "other crimes" evidentiary analysis inquiries compels the State to show by clear and convincing evidence that the other crime, in fact, occurred. In severance/joinder cases, however, no heightened evidentiary threshold exists. The final step in each type of case is a simple, yet variable, weighing of prejudice against probative value. The variability rests in the factors considered in the balancing test employed in each case. In a severance case, the judge should consider judicial economy and the avoidance of the inconvenience of duplicate trials. In "other crimes" determinations, judicial economy is not an issue. See Solomon v. State, 101 Md.App. at 347-50, 646 A.2d 1064; Wieland, 101 Md.App. at 16, 643 A.2d 446. In this case, we need not consider the second and third steps of either analysis. We shall conclude that, based upon this record, the State failed to negotiate the initial severance requirement of "mutual admissibility". That failure necessitates, as a matter of law, our resolution that the drug and assault charges were erroneously joined. We explain.

We are mindful of the discretion afforded the lower court in severance/joinder cases. Nevertheless, we shall assign error in this case, as a matter of law. Admittedly, severance and joinder are matters, at least partially, left to the discretion of the trial judge, e.g., Frazier v. State, 318 Md. 597, 607, 569 A.2d 684 (1990), although the extent of appellate deference to that discretion continues to erode. See Wieland, 101 Md.App. at 9, 10, 643 A.2d 446 (revealing that appellate courts have accorded less deference in joinder/severance issues than in other areas ordinarily left to the trial judge's discretion and have not hesitated to reverse the decisions of a trial court, demonstrating little or no deference in the process). In fact, at least in a jury trial context, the initial phase determination of "mutual admissibility" is void of any deferential treatment on appeal. That first step requires a purely legal conclusion only.

As an aside, we recognize that the standard applicable in the instant case differs from that germane to a bench trial. When...