McKnight v. State

• Decision Date: 06 July 1977
• Docket Number: No. 149,149
• Citation: 280 Md. 604,375 A.2d 551
• Parties: John Lee McKNIGHT, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 604

280 Md. 604

375 A.2d 551

John Lee McKNIGHT, Jr. v. STATE of Maryland.

No. 149.

Court of Appeals of Maryland.

July 6, 1977.

Mark Colvin, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

LEVINE, Judge.

The question presented here is whether appellant should have been granted separate trials on four independent and distinct offenses, where evidence as to each individual offense would not have been mutually admissible at separate trials. We granted certiorari after the Court of Special Appeals, in affirming appellant's convictions by a jury in the Criminal Court of Baltimore under each of four criminal informations, held in McKnight v. State, 33 Md.App. 280, 286, 364 A.2d 116 (1976), that the trial court had not abused its discretion in denying a severance of the cases. We reverse.

During a one-month period in late 1974, a series of four robberies was committed within the same neighborhood of Baltimore City in which appellant and each of the victims resided. On each occasion, the victim was a solitary male; in three of the four instances, the victim's trouser pockets were ripped. Two of the victims claimed to have been robbed by at least two male assailants and the two remaining victims were each robbed by one male. Each victim identified appellant as an assailant. The first victim was grabbed from behind at night, pulled down, and kicked in the face. His assailant "tore (his) clothes off" and took $1.25. The second episode occurred in the same alley at noontime some 11 days later. On this occasion, a young man grabbed the victim by the lapel of his jacket, pointed a pair of hedge shears at his genitals, and demanded his money. A confederate rifled the victim's pockets and removed $1.28. Both fled on foot. Three weeks later, the third victim was accosted in midafternoon by a man who grabbed him, demanded money, struck him on the leg, and removed $130 from his pocket. Late on the following morning, the fourth victim was grabbed from behind and thrown backward. The sum of $5 was taken from his right trouser pocket, which was ripped in the process.

In addition to denying both his participation in the four crimes and his presence on the immediate scene of each, appellant offered alibi defenses to the first two, which he corroborated with the testimony of several witnesses. He also produced a police officer who impeached the testimony of the first prosecuting witness in certain material respects. With regard to the third and fourth episodes, appellant simply testified as to his whereabouts on those two occasions, but without the benefit of any corroborating witnesses.

Because appellant's pretrial motion for separate trials had been denied, he requested at the outset of the trial that a cautionary instruction be given to the jury. The trial judge complied:

"THE COURT: Ladies and gentlemen of the jury, this trial involves four separate alleged offenses allegedly committed by the Defendant on four separate days, and you are not to consider the evidence relating to one of these occurrence(s) as having any relevance or bearing on any other alleged occurrence. The Defendant is entitled to be judged separately on each of these separate occurrences. . . . "

At the conclusion of the evidence, the court also included a similar statement in its advisory instructions to the jury.

Each of the four criminal informations filed by the State's Attorney contained eight charges ranging from armed robbery to the use of a handgun in the commission of a felony. The jury found appellant guilty of robbery and assault in the first case; robbery with a dangerous or deadly weapon in the second case (involving the shears); and robbery in the third and fourth cases.

In affirming the convictions, the Court of Special Appeals held there was no abuse of discretion in the denial of the severance. It rested this decision on the "similarity of circumstances and of the conduct of the appellant in the perpetration of the crimes . . . ." McKnight v. State, 33 Md.App. at 285-86, 364 A.2d at 119. The court recognized that "the evidence of guilt in each individual crime charged here would not be mutually admissible at separate trials," id. at 285, 364 A.2d at 119, despite its conclusion that the crimes "formed part of a general scheme of unlawful conduct,' id. at 284, 364 A.2d at 118. This it found from the fact that three of the four victims were men in their late 50's or 60's; that the victims and appellant resided in the same neighborhood; that three of the victims recognized appellant; and that the modus operandi of the assailant on the four occasions was similar.

(1)

Joinder and severance of criminal trials are governed in this state by Maryland Rule 745, ¹ subsection c of which provides in relevant part:

"If it appears that any party will be prejudiced by the joinder for trial of counts, . . . the court may, upon its own motion or the motion of any party order separate trials of counts, . . . or grant any other relief as justice requires." (Emphasis added.)

Rule 745 c, in relevant part, is patterned on Rule 14 of the Federal Rules of Criminal Procedure. Under the Maryland rule, as is true under its federal counterpart, severance is committed to the discretion of the trial judge. Baumgartner v. State, 21 Md.App. 251, 253, 319 A.2d 592, cert. denied, 272 Md. 737 (1974); DiNatale v. State, 8 Md.App. 455, 458, 260 A.2d 669 (1970); Jennings v. State, 8 Md.App. 312, 315, 259 A.2d 543 (1969).

The standard established by Rule 745 c is merely a restatement of the test applied at common law:

" . . . The matter of a misjoinder is generally left to the discretion of the trial court, and the courts will guard against injustice and abuse whenever apparent, and not permit such a joinder of counts as will embarrass the traverser in his defense by, in the court's sound discretion, quashing the indictment, permitting a nolle prosequi as to a count or counts, or compelling the prosecution to elect on which count or counts to proceed. . . . " Simmons v. State, 165 Md. 155, 165-66, 167 A. 60, 64 (1933) (citations omitted).

Accord, Wanzer v. State, 202 Md. 601, 608, 97 A.2d 914 (1953); see State v. McNally, 55 Md. 559, 563-64 (1881); State v. Bell, 27 Md. 675, 678 (1867). It is particularly appropriate that Rule 745 c be patterned on Federal Rule 14, since the early federal practice was also rooted in the common law. See, e. g., McElroy v. United States, 164 U.S. 76, 80-81, 17 S.Ct. 31, 41 L.Ed. 355 (1896); Pointer v. United States, 151 U.S. 396, 403, 14 S.Ct. 410, 38 L.Ed. 208 (1894). ²

The rationale traditionally offered to justify joinder of similar offenses is that a single trial effects an economy, by saving time and money, to the prosecution, the defendant, and the criminal justice system. ³ Where evidence is not mutually admissible, however, each crime must be proved by its own evidence and witnesses. Consequently, in such cases the saving of time and money allegedly effected by a joint trial is questionable, since the offenses, in any event, are separate and distinct. " 'Ordinarily, the only time saved by such joinder is the selection of one jury rather than two. Except for character witnesses, the evidence will usually be entirely separate.' " United States v. Foutz, 540 F.2d 733, 738 (4th Cir. 1976).

Similar offense joinder has been criticized as being prejudicial to the defendant in three important respects. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85, 88-89 (1964). First, he may become embarrassed, or confounded in presenting separate defenses. McElroy v. United States, 164 U.S. at 80-81, 17 S.Ct. 31; Pointer v. United States, 151 U.S. at 403, 14 S.Ct. 410; Simmons v. State, 165 Md. at 165, 167 A. 60. Secondly, the jury may cumulate the evidence of the various crimes charged and find guilt when, if the offenses were considered separately, it would not do so. At the very least, the joinder of multiple charges may produce a latent hostility, which by itself may cause prejudice to the defendant's case. Thirdly, the jury may use the evidence of one of the crimes charged, or a connected group of them, to infer a criminal disposition on the part of the defendant from which he may also be found guilty of other crimes charged. It is this form of prejudice which concerns us here, although there is much force in appellant's argument that he was also affected by the two other types of prejudice. In any given case of similar offense joinder, therefore, the trial judge must balance the likely prejudice caused by the joinder against the important considerations of economy and efficiency in judicial administration.

Two lines of authority have emerged from the cases seeking to reconcile the conflicting considerations of prejudice and economy within the framework of discretion accorded the trial judge. The first holds that a severance should be ordered where there has been a joinder of similar but unrelated offenses, if the evidence as to each crime would not be mutually admissible at separate trials. McElroy v. United States, 164 U.S. at 81, 17 S.Ct. 31; United States v. Foutz, 540 F.2d at 738; State v. Jonas, 169 Conn. 566, 363 A.2d 1378, 1381-82 (1975); People v. Barnett, 66 Mich.App. 99, 238 N.W.2d 208, 209 (1975); Lambert v. State, 73 Wis.2d 590, 243 N.W.2d 524, 531 (1976); see Grandison v. State, 32 Md.App. 705, 710-12, 363 A.2d 523 (1976), cert. dismissed, --- Md. --- (1977) (affirmance of trial court decision denying severance on ground that evidence would be mutually admissible); People v. Martinez, 549 P.2d 758, 760-61 (Colo.1976); State v. Brower, 289 N.C. 644, 224 S.E.2d 551, 561-62 (1976); State v. Sanchez, 14...