Ross v. State

• Decision Date: 12 January 1976
• Docket Number: No. 27,27
• Citation: 276 Md. 664,350 A.2d 680
• Parties: David ROSS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 664

276 Md. 664

350 A.2d 680

David ROSS v. STATE of Maryland.

No. 27.

Court of Appeals of Maryland.

Jan. 12, 1976.

John F. Fader, II, Towson, John M. Morse, Ellicott City, for appellant.

Bernard A. Raum, 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 O'DONNELL, JJ.

LEVINE, Judge.

This appeal stems from a conviction in the Criminal Court of Baltimore where a jury found appellant guilty of the crime of unlawfully possessing heroin with intent to distribute the same. Following affirmance of the conviction by the Court of Special Appeals in Ross v. State, 24 Md.App. 246, 330 A.2d 507 (1975), we granted a writ of certiorari. Our review is limited 'solely to the question whether the admission into evidence of testimony by an informer relating to past sales of narcotics in which he and appellant had participated constituted reversible error.' We conclude that it did.

Two indictments were returned in this case. In the first, appellant and a co-defendant, one Clarence Johnson Marable (Marable), were jointly indicted on charges of possession of heroin and possession with intent to distribute on February 6, 1973. The second indictment accused them of conspiring with each other on the same day to violate the Controlled Dangerous Substances Laws of Maryland. The state presented its case through three witnesses: a paid informer named Stephen Brown (Brown), a detective from the narcotics unit of the Baltimore City Police Department, and a forensic chemist.

In essence, the evidence indicated that Brown had been in the employment of both the police and federal narcotics agents as a paid informer for some time prior to the date of the crimes charged in this case. On the day in question, they delivered the sum of $150 to Brown with instructions to make a purchase of narcotics in the vicinity of the 1500 block of Pennsylvania Avenue in the City of Baltimore. There, Brown approached appellant and told him that he wanted to get a 'bundle' of narcotics. While appellant was inside a nearby bar seeking 'cross town' transportation, Brown called Detective Robert Murray of the police department. Appellant then emerged from the bar with a cab driver who transported them to another location. Brown testified that he paid the $150 to appellant during this trip.

Upon arriving at their destination, appellant entered Marable's residence while Brown waited nearby. At the same time, Detective Murray also waited in an unmarked car parked some 150 feet from where Brown stood. Appellant returned with a package, later found to contain 25 glassine bags of heroin, which he handed to Brown. The detective then arrested appellant who later denied, as did Marable, selling the heroin to Brown. All three had criminal records, but, unlike the other two, appellant had not been convicted on drugrelated charges.

While Brown was being interrogated on direct examination by the prosecuting attorney, this exchange occurred:

'Q. And how long had you known (appellant) prior to this night in question?

'A. Since 1958, around 1958.

'Q. How would you characterize your acquaintanceship with (appellant)?

'(DEFENSE COUNSEL): Objection.

'THE COURT: Sustained

'Q. (THE PROSECUTING ATTORNEY): How would you say you knew him then?

'(DEFENSE COUNSEL): Objection

'THE COURT: Sustained.

'Q. (THE PROSECUTING ATTORNEY): Would you tell us what, if any, contact you had had with (appellant) from 1958 up to the date in question, February 6, 1973?

'(DEFENSE COUNSEL): Objection.

'THE COURT: On what grounds?

'(DEFENSE COUNSEL): I think it is leading, number one, Your Honor; and, I don't see that it has any bearing at all on the events of February 6, 1973.

'THE COURT: They are superior (conspiracy) charges in the Indictment, and events prior to that may be relevant, and the form of the question, I believe, is not leading. You can answer the question.

'A. We use (sic) to work together selling narcotics.' (emphasis added).

The two courts below and the parties have treated the second part of the objection to the critical question as one based on relevancy. We shall do so as well.

A divided Court of Special Appeals held that the question was not objectionable on the basis of relevancy because it included 'within its ambit' the date of the alleged offense as well as 'relatively recent contacts.' Therefore, since the question concerned the nature of the relationship between appellant and the informer, it sought relevant testimony. Moreover, the court stated, the response, which appellant did not move to strike, 'tended to establish 'a common scheme, plan and design on the part of the accused' and was 'related to the crime charged."

The state seeks to sustain the decisions of the two courts below by maintaining that the critical question sought to elicit relevant testimony pertaining to appellant's criminal intent and state of mind. Moreover, it argues, appellant did not preserve his objection for appellate review since he moved neither to strike the testimony nor for a mistrial. Finally, the state contends that the error, if any, was harmless. In seeking reversal, appellant urges that the question did not relate to his intent or to any of the other exceptions to the general rule that evidence of other crimes is inadmissible; that since the question, in any event, contemplated no relevant testimony, his objection was preserved; and that the ruling was prejudicial.

Three issues therefore emerge:

1) Was the question proper under one of the recognized exceptions to the general rule that evidence of another and independent crime is inadmissible?

2) Did appellant waive his objection by not moving to strike the witness's response or in failing to move for a mistrial?

3) Was the error harmless?

(1)

As just noted, the state posits its argument that the question was relevant solely on the ground that it sought to elicit testimony of an intent to commit the crimes charged here. ¹ We find no merit in this contention.

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).

Moreover, apart from the fundamental proposition that an accused may be convicted only by evidence which shows that he is guilty of the offense charged, and not by evidence which indicates his guilt of entirely unrelated crimes, there are additional reasons underlying the general rule. Evidence of other crimes may tend to confuse the jurors or prejudice their minds against the accused and to predispose them to a belief in his guilt. Finally, unless he knows in advance that evidence of other crimes is to be used against him, the accused will be unprepared to defend against such evidence. MacEwen v. State, supra, 194 Md. at 501, 71 A.2d 464; Wharton's Criminal Evidence § 240 (Torcia ed. 1972).

There are exceptions to this general exclusionary rule which, 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 (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, 414, 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.

The state maintains that the disputed testimony was admissible as an exception to the general exclusionary rule to show intent. It rests this contention primarily on a quartet of federal cases, United States v. Valencia, 492 F.2d 1071 (9th Cir. 1974); United States v. Richardson, 477 F.2d 1280 (8th Cir.), cert. denied, 414 U.S. 843, 94 S.Ct. 104, 38 L.Ed.2d 82 (1973); United States v. Williams, 470 F.2d 915 (2d Cir. 1972), and Robinson v. United States, 366 F.2d 575 (10th Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 717, 17 L.Ed.2d 547 (1967). None of these cases supports the state's position. Valencia and Richardson, both of which involved narcotics charges, are singularly unilluminating, since the court in each merely approved the admission into evidence of prior narcotics transactions...