Harris v. State

• Decision Date: 28 December 1989
• Citation: 81 Md.App. 247,567 A.2d 476
• Parties: Dwayne HARRIS aka Eric Harris v. STATE of Maryland. 641 Sept. Term 1989.
• Court: Court of Special Appeals of Maryland

Page 247

81 Md.App. 247

567 A.2d 476

Dwayne HARRIS aka Eric Harris v. STATE of Maryland.

641 Sept. Term 1989.

Court of Special Appeals of Maryland.

Dec. 28, 1989.

Certiorari Granted March 13, 1990.

Bradford C. Peabody, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MOYLAN, BISHOP and GARRITY, JJ.

MOYLAN, Judge.

The Maryland decisional law on the subject that some call "other crimes evidence" reflects the general state of the law elsewhere and gives no occasion for complaint. The language and the framework of analysis used by both appellate courts of this state to describe and to explain that law, however, leave much to be desired in terms of current usage. Our decisions are better than our opinions. Ironically, the leading opinion on the subject, Ross v. State, 276 Md. 664, 350 A.2d 680 (1976), is also the leading culprit. In addressing the primary issue raised on this appeal, we will attempt to bring our vocabulary and our organizational context more into line with prevailing linguistic and analytic conventions.

The Present Case

The appellant, Dwayne Harris, a/k/a Eric Harris, was convicted by a Baltimore City jury, presided over by Judge Roger W. Brown, of possession of cocaine with intent to distribute and of carrying a handgun. Upon this appeal, he raises the following two contentions:

1. That his prior convictions for possession of heroin with intent to distribute should not have been admitted to prove his intent to distribute cocaine in the instant case; and

2. That the motion to suppress physical evidence seized in the course of a warrantless search was erroneously denied.

The appellant was one of three persons in an automobile stopped by the police on the night of November 21, 1987. A police search of the appellant revealed both a handgun and a plastic bag containing a significant quantity of cocaine. Although the appellant did not take the stand, his counsel virtually conceded, in opening statement and closing argument, the simple possession of cocaine and directed the attention of the jury to the sufficiency of the State's evidence to support the mens rea of intent to distribute.

Over objection, the State introduced two prior convictions of the appellant, one on April 1, 1985 and the other on July 22, 1985, for possession of heroin with intent to distribute. The trial judge instructed the jury with respect to the evidentiary significance of those prior convictions:

"You have heard evidence in this case that the Defendant was on a prior occasion convicted of a crime of possession of heroin with intent to distribute which is not a charge in this case. You may consider that evidence in connection with all of the other evidence in this case, but only as it relates to the question of intent." (Emphasis supplied).

The appellant argues that evidence of "other crimes" to prove intent is forbidden by Ross v. State, supra. The State counters that proof of intent is a well recognized exception to the rule forbidding evidence of other crimes. In a sense, they are both right. In a sense, they are both using antiquated and awkward tools of analysis.

Federal Rule of Evidence 404

Although Maryland, of course, has not adopted the Federal Rules of Evidence, the Federal Rule on the subject now before us accurately summarizes our law. Its statement of that law, however, is both in more general and in more neutral terms than is our own. Federal Rule 404(a) states a rule of exclusion when character evidence is offered to prove action in conformity with that character. It also recognizes three exceptions to that exclusionary rule. These are genuine exceptions whereunder the use of a character trait is permitted to prove conduct in conformity with that trait, rather than what Maryland uncritically calls "exceptions" which are rather instances not even covered by the terms of the exclusionary rule. FRE 404(a) states:

"(a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of the accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609."

FRE 404(b) goes on to state specifically one particular instance of the larger exclusionary phenomenon, that of where evidence of "other crimes, wrongs, or acts" is offered to prove that a person (generally the defendant) acted in conformity with such demonstrated bad character. In a separate sentence, the Rule then makes explicit what is otherwise implicit in any event: that the exclusionary provision does not even purport to cover situations where such evidence is offered for a purpose other than proving conduct in conformity with such character:

"(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (Emphasis supplied).

With respect to evidence of other crimes, wrongs, or acts, there are two separate and complementary situations. When such evidence is offered to prove a criminal propensity, it is, subject to the exceptions spelled out in FRE 404(a), inadmissible. When such evidence, on the other hand, is offered for any other relevant purpose, it is, subject to the usual weighing between relevance and its counterweights, admissible. Neither rule is an exception to the other and there is no hierarchial "pecking order" between them.

Ironically, the Maryland case law prior to 1976 was very much more in tune with this evidentiary philosophy than it has been since then. In Lowery v. State, 202 Md. 314, 96 A.2d 20 (1953), Chief Judge Sobeloff explained, in scrupulously neutral terms, that evidence of "other unrelated crimes or misconduct" is inadmissible for the purpose of attacking the character of the accused but is admissible to show motive or intent. It was inadmissible for one purpose and admissible for others. Neither statement was an exception to the other. The criterion for determining admissibility or inadmissibility was simply the purpose for which the evidence was offered:

"As a general rule, it is reversible error for the prosecution to attack the character of the accused before it has been put in issue by him, or to show other unrelated crimes or misconduct likely to cause prejudice against him. Dobbs v. State, 148 Md. 34, 129 A. 275.

But the rule is equally established that where the testimony shows motive or intent it is entitled to be admitted." (Emphasis supplied).

202 Md. at 318, 96 A.2d 20.

Indeed, as early as 1925, ¹ the Court of Appeals recognized that there was no general exclusionary rule for evidence of other crimes but only a limited one where such evidence was offered to show conduct in conformity with bad character. In Dobbs v. State, 148 Md. 34, 46, 129 A. 275, 280 (1925), Judge Offutt stated the law in a way that almost anticipated FRE 404:

"These general rules appear to be almost universally recognized, first, that the character of a defendant in a criminal case is not an issue until he puts it in issue; second, that evidence of unconnected and unrelated crimes which do not show knowledge, motive, intent, a common scheme, or identification, is inadmissible against a defendant in a criminal case as tending to show that he committed the crime whereof he stands indicted in such case." (Emphasis supplied).

Ross v. State (1976)

Although some earlier linguistic slippage can be spotted, ² it was the 1976 decision of Ross v. State, supra, that grammatically so restructured the statement of this law as to change its emphasis if not its substance. The exaggerated credibility given Ross by the subsequent case law, moreover, treating it virtually as a new dispensation, has compounded the damage. Although a close and careful reading of Ross reveals that it did not change preexisting law, it nevertheless managed to put a semantic "spin" on the law that has handicapped subsequent attempts to get a firm grip on it.

Instead of a neutral statement that the evidence in issue is inadmissible to show propensity but is, with equally enthusiastic endorsement, admissible for any other relevant purpose, the restatement by Ross has had the practical effect of treating such evidence as presumptively inadmissible. The State, instead of facing the routine task of showing relevance and overcoming its counterweights, faces the more daunting challenge of demonstrating a special exemption from an exclusionary norm. What has been subliminally influenced is the mind-set or "tilt" with which we approach the question. From the very way in which the proposition is stated, we find ourselves subconsciously predisposed toward exclusion "going in."

Even Inadmissible Evidence Is Not Irrelevant

Our first criticism of Ross is a minor one. If the opinion is to be taken as an oracle, however, critical examination is appropriate. Ross stated what purported to be the general rule, 276 Md. at 669, 350 A.2d 680:

"The frequently enunciated general rule in this state, followed uniformly elsewhere, is that in a prosecution for a particular crime, evidence which...