Dixon v. State, 1211

CourtCourt of Special Appeals of Maryland
Writing for the CourtMOYLAN.
Citation755 A.2d 560,133 Md. App. 325
PartiesThomas Dalton DIXON v. STATE of Maryland.
Docket NumberNo. 1211,1211
Decision Date13 July 2000

755 A.2d 560
133 Md.
App. 325

Thomas Dalton DIXON
STATE of Maryland

No. 1211, Sept. Term, 1999.

Court of Special Appeals of Maryland.

July 13, 2000.

755 A.2d 562
Richard K. Jacobsen, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant

Shannon E. Avery, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Jack Johnson, State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Submitted before MOYLAN, KRAUSER and JAMES S. GETTY (Ret., Specially Assigned), JJ.

755 A.2d 561

The appellant, Thomas Dalton Dixon, was convicted by a Prince George's County jury, presided over by Judge G.R. Hovey Johnson, of first-degree assault and the use of a handgun in the commission of a crime of violence. He was sentenced to twenty years imprisonment for the first-degree assault and a consecutive sentence of twenty years for the handgun violation. On this appeal, he claims

1) that Judge Johnson erroneously permitted the victim to testify that he had on a prior occasion purchased drugs from the appellant;

2) that Judge Johnson erroneously admitted evidence showing that the appellant shot and hit a second person;

3) that the twenty-year sentence for first-degree assault was illegal; and

4) that Judge Johnson erroneously allowed the prosecutor to nol pros the charge of attempted voluntary manslaughter and erroneously failed to instruct the jury with respect to that count.

What Do We Look At: The Forest or the Trees?

Our discussion of the first two contentions will interweave with our description of the factual background of the case. Both of those contentions assert that there was a violation of the law prohibiting the admission against a defendant of evidence showing the commission by him of "other crimes." In holding that no such error was committed, our fundamental rejection of the appellant's argument stems from the fact that he is looking at a legal principle in microcosm and fails to appreciate the larger view of what that principle is designed to accomplish.

The ultimate end to be served by the ban on "other crimes" evidence is that the State should not be permitted to bring in "out of left field" the fact that on some other occasion the defendant committed a crime. The danger being guarded against is that such past behavior will be offered to show and will be used by a jury to conclude that the defendant has a propensity to commit crime. The fear is that the jury may convict him in the case on trial because of something other than what he did in that case, to wit, because of his criminal propensity. There are also some well recognized exceptions to the evidentiary ban, permitting the evidence of "other crimes" to come in, if it is important to show something other than criminal propensity, such as identity, intent, motive, common scheme, etc. Md. Rule 5-404(b). An extensive body of law has evolved analyzing both the "other crimes" evidentiary prohibition and the various exceptions thereto. Harris v. State, 324 Md. 490, 597 A.2d 956 (1991); State v. Faulkner, 314 Md. 630, 552 A.2d 896 (1989); Bussie v. State, 115 Md.App. 324, 330-38, 693 A.2d 49 (1997); Wieland v. State, 101 Md.App. 1, 8-23, 643 A.2d 446 (1994); Solomon v. State, 101 Md.App. 331, 337-47, 646 A.2d 1064 (1994).

At the most fundamental level, however, we conclude that that entire body of law has no bearing on this case. There will be found in the extensive case law, to be sure, isolated phrases and sentences that, when lifted out of context, might seem to support the appellant in his present contentions. We decline to haggle, however, over such minutiae because of our view, in longer perspective, that that body of law is inapplicable. Why anguish over whether

755 A.2d 563
the appellant is in the right pew when we conclude that he is not even in the right church

Although the direct evidence of what happens at a crime scene may sometimes show some possible crime in addition to the one literally charged, that coincidental possibility does not necessarily engage the gears of "other crimes" evidence law. What we have in this case is evidence essentially integral to, even if not literally inextricable from, the criminal incident on trial. In earlier decades, it would have been felicitously referred to as part of the res gestae of the crime.

The Criminal Incident

The crime in this case took place during the early morning hours of May 23, 1997. The assault victim was Edward Johnson. Earlier that morning, he and a friend, Paquita Waiters, had together smoked between $40 and $50 of crack cocaine. Exhausting their supply by approximately 2 A.M., the two of them drove to the intersection of Virginia Avenue and Forest Terrace in Prince George's County to buy some more. During the State's case in chief, three witnesses testified as to what happened when Johnson and Waiters arrived at Virginia Avenue and Forest Terrace.

Johnson himself testified that he got out of his car, walked up to a group of men including the appellant, and told the appellant that he wanted to buy some crack cocaine. At that point, the appellant "like turned around, and then I thought he was pulling out some drugs, you know, and then he turned around and had a gun." Johnson went on to state that "at first I was shocked and then after I went and hit him, I ran ... straight down Virginia, right past my car and kept going." Johnson testified that he heard gunshots and then was struck in his back and buttocks and "it broke my leg in some kind of way." Johnson denied having had a gun or having pulled a gun on the appellant at any time during the incident.

The appellant's first contention concerns Johnson's explanation of why he stopped the car and approached the appellant in the first instance and of how he was able to identify the appellant first at the scene and subsequently in court. Over a defense objection, the direct examination went as follows:

Q: Did you know the individual whom you approached:

A: I have seen him before.

Q: Had you dealt with him before?

A: Yes.

Q: Had you purchased drugs from that individual before?

A: Yes.

Although we could validate that testimony on the theory that it undergirds Edward Johnson's ability to make a reliable identification of the appellant as the criminal agent,1 Harris v. State, 324 Md. at 501, 597 A.2d 956, State v. Faulkner, 314 Md. at 634, 552 A.2d 896, that would be to dignify the contention more than it deserves to be dignified. Fundamentally, this was simply not extrinsic evidence showing the appellant's criminal propensity. It was direct evidence as to why Johnson stopped the car and approached the appellant in the first instance. In view of the fact, moreover, that the entire confrontation was one between a would-be purchaser of drugs and an ostensible seller of drugs, the coincidental fact that the two had been involved on an earlier occasion or occasions was inconsequential in terms of prejudicial impact. But for Johnson's knowledge that the appellant was someone from whom he could purchase "more

755 A.2d 564
crack," his entire narration of the incident that morning would have been unintelligibly bizarre. We see no error.2

It was Paquita Waiters who had earlier that evening smoked crack cocaine with Edward Johnson and who accompanied him to the crime scene to buy more crack cocaine. Her version of the corpus delicti essentially paralleled the version given by Edward Johnson. She testified that when Johnson stopped the car at Virginia Avenue and Forest Terrace, he asked a group of men standing there if any of them had any drugs for sale. He then got out of his car. Although she could not identify the assailant, she described how one of the men approached Johnson and "was trying to get the money from [him] without giving him the purchase." One of the men then struck Johnson on the head with an object that looked like a gun. Both she and Johnson then ran down Virginia Avenue. Paquita Waiters heard gunshots and saw Johnson fall to the ground. She hid in the bushes for a few minutes and then ran to a 7-11 store and asked someone there to call the police.

The third witness to testify for the State in chief was one of the appellant's companions that morning. Carnell Chase testified that he and the appellant were at the corner of Virginia Avenue and Forest Terrace at about 2:30 A.M. when a car containing a man and a woman pulled up. The driver, the man, asked "if they had any cocaine." It was the appellant who responded. He told the driver of the car to wait and the driver got out of the car. The appellant walked over to some bushes, retrieved a .22 caliber revolver, and returned to the car. The appellant then told the driver to "give his money up." The driver turned his money over to the appellant but then "tried to fight [the appellant] off."

As Chase moved closer "to see what was going on," the driver took a swing at him. Chase swung back at the driver and hit him. The driver told his female passenger to run, removed his keys from the car's ignition, and then himself ran up the street. Chase described how the appellant then fired "about 5 or 6" shots at the driver. Chase did not see the driver with a gun at any time.

The appellant's second contention concerns Chase's testimony as to what happened as the appellant fired five or six shots at the fleeing driver. His description included the following observation:

I seen Mike fall on the ground, and then I seen the male that was driving the car still running, and then after that, he had got hit ... I saw the blood and stuff.

(Emphasis supplied).

"Mike" was the third individual who was with the appellant and Carnell Chase at the time of the incident. After Carnell Chase described seeing "Mike fall on the ground," the State inquired as to the identity of Mike. Over objection, the following testimony came out:

Q: You mentioned Mike. Who was Mike?

A: He's a crack head.


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12 cases
  • Sutton v. State, 1630
    • United States
    • Court of Special Appeals of Maryland
    • 6 Julio 2001
    ...when that charge is a lesser included offense within a greater inclusive offense that is being submitted to the jury." Dixon v. State, 133 Md.App. 325, 354, 755 A.2d 560, cert. granted, 361 Md. 433, 761 A.2d 932 (2000). It is clear that neither second degree murder nor manslaughter is a les......
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    • Court of Special Appeals of Maryland
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    ...other than a firearm, so there is no requirement that a firearm be used.'" Id. at 241, 772 A.2d 283 (quoting Dixon v. State, 133 Md.App. 325, 345, 755 A.2d 560 The Dixon Court then determined that, in ascertaining whether attempted voluntary manslaughter merged with first degree assault, it......
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    • United States
    • Court of Appeals of Maryland
    • 14 Mayo 2001
    ...consecutive to the sentence on the assault conviction. The Court of Special Appeals, on direct appeal, affirmed. Dixon v. State, 133 Md.App. 325, 755 A.2d 560 (2000) (Dixon II). We granted Petitioner's petition for writ of certiorari, Dixon v. State, 361 Md. 433, 761 A.2d 932 (2000), to con......
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    • Court of Special Appeals of Maryland
    • 4 Septiembre 2002
    ...or with instrumentalities other than a firearm....'" Dixon v. State, supra, 364 Md. at 241, 772 A.2d 283 (quoting Dixon v. State, 133 Md.App. 325, 345, 755 A.2d 560 (2000)). Accordingly, first degree assault of the (a)(1) modality is a lesser included offense of attempted voluntary manslaug......
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