Mollar v. State
| Decision Date | 17 March 1975 |
| Docket Number | No. 618,618 |
| Citation | 333 A.2d 625,25 Md.App. 291 |
| Parties | Anthony Lamont MOLLAR v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Paul Mark Sandler, Assigned Public Defender, with whom was Anton J. S. Keating, Asst. Public Defender, on the brief, for appellant.
Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. for Baltimore City and Ronald T. Osborne, Asst. State's Atty. for Baltimore City, on the brief, for appellee.
Argued before POWERS and LOWE, JJ., and JOHN C. ELDRIDGE, Special Judge.
The question we are asked to decide is an evidentiary one relating to the identity exception to the rule excluding evidence of prior offenses. The rule was iterated by the Court of Appeals in Wentz v. State, 159 Md. 161, 164, 150 A. 278 and reiterated most forcefully in this Court by Chief Judge Murphy, now Chief Judge of the Court of Appeals. After reciting the general rule of exclusion, the Chief Judge turned to the exceptions which he elected to denominate rules of admissibility rather than exceptions to the rule of exclusion:
(Emphasis added). Gordon v. State, 5 Md.App. 291, 306, 246 A.2d 623, 631, cert. denied, 252 Md. 730.
Although identity is regularly recited, we have not had cause in Maryland to apply the identity exception where it was the sole ground for admissibility of prior convictions. Appellant notes that C. McCormick, Evidence (2d ed.) § 190 at 451 cautions that identity evidence is usually linked with another exception such as motive or 'larger plan' (common scheme). 1 We note that the United States Court of Appeals for the 4th Circuit interprets McCormick as saying that 'the identity exception is not really an exception in its own right, but rather is spoken of as a supplementary purpose of another exception.' United States v. Woods, 4 Cir., 484 F.2d 127 at 134. As persuasive as such authority may be, we are of course not bound by federal decisions other than those of the Supreme Court interpreting provisions applicable to the states. Wiggins v. State, 22 Md.App. 291, 324 A.2d 172.
Although we may agree with McCormick's further observation 'that the evidence will usually follow . . . some one or more of the other theories . . .,' we do not conclude, as did the Woods court, that that which usually occurs, must occur. On the contrary, we view Maryland law as in accord with 1 Wharton's Criminal Evidence, § 243:
'Evidence of an independent crime is admissible when such evidence tends to aid in identifying the accused as the person who committed the crime charged.'
To hold otherwise would render the identity exception a purposeless existence. If the evidence of prior crimes is to be admitted to prove identity only when there is another applicable exception, identity is but another windmill for Quixotic Academe, since the evidence of prior crimes would be admitted under the other exception with or without identity.
We have no quarrel, however, with appellant's argument that the probative value of the evidence should be weighed against the prejudicial 2 effect upon the jury. Woods, 4 Cir., 484 F.2d at 134 again relies upon McCormick:
'(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.' § 190 at 448.
If conceived by a bar examiner the case at bar could not better determine the ability of the identity exception to stand alone. The victim was a young lady accosted by appellant at gun point as she was going home at an early morning hour after having worked the night shift. She was taken to a parking lot by appellant, raped and forced to commit fellatio. He then took her to an empty garage under threat of bodily harm.
Using commendable ingenuity augmented by her instinct to survive, the victim:
'. . . started talking to him, like I was trying to talk some sense into him . . . I always believed you could talk your way out of anything.'
They discussed a number of subjects related to why he had done what he did, his social life and his life generally.
'. . . half the time he talked like he had some sense and sometimes then he just talked real crazy like.
I was asking him about his life. He was telling me that he spent most of his life in jail, he was on parole, he had been arrested before for assault, attempted murder and rape. And that I was telling him, you know, your parents told you all your life you weren't any good, but I believe there is good in anybody. Like no matter what you do you can do what that other person tells you to do if you believe you aren't any good in your mind. I was telling him everybody is good, he should just do what he fell (sic) was right, no matter what his parents told him. Being in jail all his life he could overcome if he really wanted to. He was telling me I was the only person that talked any sense into him. All his life he heard how wrong he was, what he done. I told him I hadn't eaten anything since that afternoon. I said, how about taking me down, I knew where there was a Little Tavern on Baltimore Street. I figured if I could get there I could run, because I know there are people around there. So I said, I want my Avon. So we got out, we started walking down. He walked me way out to around-'
As they walked near the Post Office Building, the victim threw a bottle of perfume at appellant and escaped by running into the building.
Subsequently the police asked her to review photographs for the purpose of identification. She identified one as resembling her assailant. A month later she spotted appellant in a phone booth and called the police who apprehended him. She again identified appellant in court as her assailant.
A bank security guard to whom she had waved as she was being forced to the parking lot by appellant was called to testify. Although he corroborated the time, place and male companion portions of her testimony, he was unable to identify appellant. He had not seen the male companion's face.
Appellant put on no testimony. From the thrust of his cross-examination, however, it is apparent that his defense was directed to lack of proof of criminal agency (mis-identification) rather than corpus delicti or consent. When cross-examining the victim, appellant attempted to shake the positiveness of her in-court identification by referring back to her initial attempt to identify her assailant from photographs:
'Q Let me direct your attention, if I might, to another time when you were just as positive when Det. Holtzman asked you to come down to the Central District just an hour or so after this incident, and he showed you a number of photographs, did he not?
A Yes, sir.
Q Did Det. Holtzman ask you to be very deliberate when going through the photographs?
A He asked me was I sure. I said no, I'm not sure, but he resembles the guy that attacked me, but I can make a positive identification if I saw him again.
Q Did Det. Holtzman tell you to be very deliberate and to look very carefully at those photographs, not to make an identification unless you were sure?
A He told me to look at them very closely, yes, he did.
Q Did he tell you not to make an identification unless you were sure?
A He told me not to make an identification but I also told him I wasn't sure, but he favored the guy. I always emphasized that.
Q Det. Holtzman relayed to that official that you had picked out an individual from photographs?
A Yes, he did.
Q Det. Holtzman told that official that he wanted an arrest warrant, did he not?
A Yes, he did.
Q Did that court official ask you if you were positive?
A Yes. I also tole him I wasn't positive, but he favored the guy.
Q And then?
A Because I know what you're trying to do too, but he's not the one I picked out.
Q I'm trying to bring out all the facts for the jury so they can make a decision. After you said whatever you said to that court official an arrest warrant was issued for Marvin Boyd Bailey, is that right?
A Yes, it is.
Q And then was there a photograph, were there any other photographs among the two hundred, two hundred and fifty photographs that looked as though they resembled your assailant?
A I guess there might have been quite a few but that's not the one I picked out.' 3
Appellant then caused her to acknowledge the rather peculiar circumstance of her subsequent recognition of appellant a month later. The victim was participating in the birthday celebration of a friend at the Globe Club.
'Q And then would I be not correct if I stated all four of you went out north of Baltimore looking for ghosts, is that right?
A Yes, we went, we were at the club talking about ghosts and spooks and Laverne and her boyfriend Jimmy were saying there was...
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...discussed by an accused at the scene, in order to prove his identity or to prove absence of a mistake in identity. Mollar v. State, 25 Md.App. 291, 333 A.2d 625 (1975). But even more relevant or more "logically connected" is the instance where the proof of the crime charged requires a speci......
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...disclosure to her of his prior prison incarceration is itself admissible as further proof of identity. See Mollar v. State, 25 Md.App. 291, 333 A.2d 625 (1975). With such overwhelming reliable corroboration of the positive in-court identification by the victim, it is inconceivable that beca......
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