Hoes v. State

• Decision Date: 09 February 1977
• Docket Number: No. 609,609
• Citation: 35 Md.App. 61,368 A.2d 1080
• Parties: Moses David HOES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 61

35 Md.App. 61

368 A.2d 1080

Moses David HOES v. STATE of Maryland.

No. 609.

Court of Special Appeals of Maryland.

Feb. 9, 1977.

John G. Gill, Jr., Assigned Public Defender, with whom was Chris Marder, Rockville, on the brief, for appellant.

Deborah K. Handel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty., for Montgomery County and De Lawrence Beard, Asst. State's Atty. for Montgomery County, on the brief, for appellee.

Argued before GILBERT, C. J., and MENCHINE and LOWE, JJ.

LOWE, Judge.

The primary question to be answered here is whether the shooting of a 'common law' wife by a one-armed man twice within five years ¹ could constitute a 'plan or scheme' to maim her.

Appellant, who is handicapped by the loss of one arm, pled guilty to one count of assault and battery and was convicted by a jury of the Circuit Court for Montgomery County of assault with intent to maim, carrying a weapon openly with the intent to injure and resisting arrest. The evidence showed that, after having overimbibed alcoholic beverages, appellant went home and engaged in a dispute with Julia Braxton, with whom he had lived for 23 years, and with whom he was living at the time of trial. Although appellant admitted having a discussion with her immediately before the shooting incident (because she would not permit him to accompany her shopping as a result of his inebriated condition) he denied that the discussion amounted to an argument. He also admitted that he had 'throwed up the (shot) gun', and that 'the gun went off', but denied that he had intended to shoot her. His recollection was hazy:

'I remember something about I throwed up the gun, you know, you know what I mean, the gun went off, but I wasn't going to shoot her, though.'

But he did.

The police came and apprehended him, but only after a fracas during which he was choked and struck on the head with a flashlight and a pistol was his arrest satisfactorily consummated. The difficulty with containing appellant's resistance was attributed partly to his size, but mostly to the officer's inability to determine how to handcuff a one-armed man. The resistance subsided under the duress described and the dilemma of how to restrain him dissipated.

Appellant denied neither the shooting nor the resistance. His defense was that he did not 'intend' to commit the crimes charged.

In order to overcome this defense anticipatorily and to help meet its burden as to the specific intent crimes with which appellant was charged, the State sought to elicit from Julia Braxton that appellant had shot her twice in the side four or five years before. This evidence was admitted by the court over the vigorous objection of appellant, as evidence of a 'plan and scheme, prior conduct of the same character.' Appellant perspicuously argued below and on appeal that the evidence should have been excluded because the jury might be misled into a conviction because of the offense upon which appellant was not indicted or then on trial, or that he would be prejudiced by confrontation with an offense for which he was not prepared to defend. These were among the reasons for the general rule of exclusion, expressed by the Court of Appeals in Curry v. State, 117 Md. 587, 593, 83 A. 1030, 1032:

"Such evidence compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the one immediately before it, and by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done."

The State, on the other hand, counters that the evidence was admissible, if not upon the ground given by the court then upon either of two exceptions to the exclusionary rule, intent or absence of mistake or accident:

'The evidence of the other crime, involving as it did identical parties and circumstances (i. e. shooting), was relevant here to show intent and absence of mistake or accident. It clearly bolstered the State's contention that because he had done it before, when the Appellant picked up the shotgun, loaded it and fired it at Ms. Braxton, he intended to hit her and did not do so mistakenly or accidentally.'

Ross v. State, 276 Md. 664, 350 A.2d 680, is the most recent case to set forth the rule for excluding prior criminal acts:

'The frequently enunciated general rule in this state, followed uniformly elsewhere, is that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible. Harrison v. State, 276 Md. 122, 345 A.2d 830 (1975); MacEwen v. State, 194 Md. 492, 500, 71 A.2d 464 (1950); Young v. State, 152 Md. 89, 91, 136 A. 46 (1927); Weinstein v. State, 146 Md. 80, 88, 125 A. 889 (1924); Wethington v. State, 3 Md.App. 237, 240, 238 A.2d 581 (1968); Gorski v. State, 1 Md.App. 200, 202, 228 A.2d 835 (1967). This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character. Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is 'substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.' C. McCormick, Evidence § 190 (2d ed. 1972).' Id. at 669, 350 A.2d at 684 and its exceptions;

'There are exceptions to this general exclusionary rule wich, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. Wentz v. State, 159 Md. 161, 164, 150 A. 278 (1930); Cothron v. State, 138 Md. 101, 110, 113 A. 620 (1921); Chandler v. State, 23 Md.App. 645, 650, 329 A.2d 430, cert. denied, 274 Md. 726 (1974); Wethington v. State, Gorski v. State, both supra. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial, Berger v. State, 179 Md. 410, 20 A.2d 146 (1941); and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. C. McCormick, Evidence § 190, supra.' Id. at 669-670, 350 A.2d at 684.

But the admissibility of such evidence, even when offered as being within an exception, is looked upon askance, as highly suspect because of its potential for prejudicial influence upon the jury:

'. . . the introduction of evidence which shows other offenses by the accused should be subjected to rigid scrutiny by the courts because of the great potential for danger which characterizes it. Berger v. State, Young v. State, Weinstein v. State, Gorski v. State, all supra; see Wethington v. State, supra. As we said in Berger:

'. . . To come within the exception to the rule that evidence of previous offenses is irrelevant, there must appear between the previous offense and that with which the defendant is charged some real connection other than the allegation that the offenses have sprung from the same disposition. The exception does not go to the extent of sanctioning the admission of evidence of the 'propensity' of the accused to commit crimes similar to that for which he has been indicted. . . .' 179 Md. at 414, 20 A.2d at 148 (emphasis added).'

Id. at 671, 350 A.2d at 685.

The purpose of this 'rigid scrutiny' of evidence offered under an exception, even when there is some 'real connection', is to determine whether the proffer of a past crime or crimes is sufficiently necessary to the State's case that the need would outweigh the prejudicial potential to the accused. We recognized this balancing process in Mollar v. State, 25 Md.App. 291, 294, 333 A.2d 625, 627, quoting McCormick, Evidence § 190 at 453 (2nd ed.):

"(S)ome of the wiser opinions (especially recent ones) recognize that the problem is not merely one of pigeonholing, but one of balancing, on the one side, the actual need for the other crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility."

Although phrased negatively, the same sort of test was applied by the Court of Appeals in Young v. State, 152 Md. 89, 91-92, 136 A. 46, 47:

'But whatever may be the object: 'Proof of a distinct substantive crime is never admissible unless there is some logical connection between the two, from wchih it can be said one tends to establish the other. Without this obvious connection, it is not only unjust to the prisoner to compel him to acquit himself of two offenses instead of one, but it is detrimental to justice to burden a trial with multiplied issues, that tend to confuse and mislead the jury. * * * From the nature and prejudicial character of such evidence, it is obvious it should not be received unless the mind plainly perceives that the commission of the one tends, by a visible connection, to prove the commission of the other by the prisoner. It will be found that the courts have always professed to put the admission of the testimony on the ground that there was some...