Scott v. State

• Decision Date: 19 September 1983
• Docket Number: 75,Nos. 116,s. 116
• Citation: 297 Md. 235,465 A.2d 1126
• Parties: Martin Francis SCOTT v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 235

297 Md. 235

465 A.2d 1126

Martin Francis SCOTT v. STATE of Maryland.

Nos. 116, 75.

Court of Appeals of Maryland.

Sept. 19, 1983.

George E. Burns, Jr. and John L. Kopolow, Asst. Public Defenders, Baltimore (Alan H. Murrell, Public

Defender and Julia D. Haskins, Asst. Public Defender, Baltimore, on the brief), for appellant.

Jillyn K. Schulze, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

DAVIDSON, Judge.

On 1 October 1981, in the Criminal Court of Baltimore (now the Circuit Court for Baltimore City), a jury convicted the appellant, Martin Francis Scott (accused), insofar as here relevant, of premeditated murder. After the jury determined that the appropriate sentence was death, the trial court imposed the death penalty. This appeal followed.

On appeal, the accused does not contend that the trial court committed error during the guilt phase of the trial. The accused asserts, however, that the trial court committed numerous prejudicial errors in the course of the sentencing proceeding. More particularly, he asserts that the trial court improperly admitted certain evidence intended to show that the accused had committed two unrelated murders with which he had been charged but for which there had been no conviction. ¹ Because we find that the trial court committed prejudicial error by admitting that evidence, we shall vacate the death sentence and remand the case for a new sentencing proceeding. Under these circumstances, no other questions need be considered.

Here the record shows that at the conclusion of the guilt phase of the trial, the accused was convicted of the premeditated murder of Glenn Harrod, a cashier at a McDonald's Restaurant, a crime committed on 25 November 1980 during the course of an armed robbery. At the sentencing proceeding, in his opening statement, the State's Attorney said:

"[T]he State openly admit[s] that there is a mitigating circumstance in this case.... [W]e are admitting ... that Martin Scott has not previously been convicted of a crime of violence."

Thus, the State conceded that the accused had not previously been convicted of a crime of violence.

The State then proffered evidence to show that on 12 November 1980, during the course of an armed robbery, the accused killed John Hiotis, the owner of the Gyros Restaurant, and that on 26 November 1980, during the course of an armed robbery, the accused killed Jung Ju So, an employee of the Shurefine Market. The accused objected to the admission of the proffered evidence. After hearing testimony out of the presence of the jury relating to the two unrelated murders, the trial court determined that the evidence was "relevant and probative" and that the "evidence of the [accused's] conduct in those [two unrelated murders] establishes his participation beyond any reasonable doubt." The trial court concluded that even though there was no conviction, the evidence was admissible under Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 413(c)(1)(v).

Thereafter, both direct and circumstantial evidence was presented to the jury to show that the accused had committed the two unrelated murders. With respect to the 12 November murder of Hiotis, the evidence consisted of the testimony of an eyewitness who made a positive in-court identification of the accused and the testimony of a psychiatrist, a psychologist, and a friend, to each of whom the accused had confessed. With respect to the 26 November murder of Jung Ju So, the evidence consisted of the testimony of two eyewitnesses, each of whom made positive in-court identifications of the accused, the testimony of a psychologist to whom the accused had confessed, and the testimony of a fingerprint expert that the accused's fingerprint was found at the scene of the crime. In addition evidence relating to the accused's background, character, and mental state at the time of the Harrod murder was adduced.

After the accused completed closing argument, the State, in closing argument, emphasized the significance of the two unrelated murders. More particularly, the State said in pertinent part:

"What is more important than the mitigating circumstance, if any, which you find ... why it's the two other murders.... Because what you do is this: Here's how you do it.

* * *

"You first decide if there's an aggravating circumstance beyond a reasonable doubt to a moral certainty. Then you find if there's any mitigating circumstances to the standard of preponderance of the evidence. The tipping of the scale, and then against any and all mitigating circumstances you find, you balance the other two murders.

* * *

"Now, what could be more of a proper thing to take into consideration in balancing against any and all mitigating circumstances than the fact Mr. Scott killed two fellow human beings in cold blood?

* * *

"If they had all eight mitigating circumstances and you balance that against the facts that the [accused] committed two other murders, if you find that it is relevant and probative to consider that fact, then you lump that all together, and you analyze that in your mind. You say, okay. He's got number 8, number 1, number 4, and let's see, he killed two other people. All right. In my mind the mitigating circumstances aren't worth anything because how important can it be that he was perhaps substantially impaired, which is only one factor. It's not that he's guilty or innocent. It's not life or death if a mitigating circumstance exists. You could have every single mitigating circumstance. You could balance that with two other murders.

"Then you'd say, okay. I weigh that all together. Just to give you some kind of an idea, let's say my one aggravating circumstance is worth a hundred points or any figure you want to use. Now, we have given them three mitigating circumstances. They add up to a hundred points, but when I think about he killed two other people, good God! What's more important?

"That wipes out all of the mitigating circumstances. They are not worth a hill of beans. They are worth nothing even though I find they exist. They are of no consequence compared to the two other murders, and when you balance that result against the one aggravating circumstance, I wouldn't care if he had all eight.

* * *

You have heard the testimony of the other two murders. We say other two murders. You all have heard the testimony. You know there's two people who are dead besides Glen Harrod. They are just not two other murders. They are two other people.

* * *

They are dead. They are dead. You don't know what their trials were, what their upbringings were like, what they had to go through, what they left behind, who mourns for them, who grieves for them, who misses them. People that have nightmares over their deaths.

* * *

You just don't know about those people because the person on trial is the person who gets the focus of all your attention. Meanwhile, these people are snuffed out like you would step on a match that was burning your finger. They are just going. You just don't know about them, and we sit there and talk about murders.

"These are people. These are real, live people who were absolute innocents. They were innocents. They were innocent persons who died.

* * *

"They are dead.

* * *

"That's what I mean when I say to you two murders. What does it mean to you? What are we here for? This is a murder case. These people are gone. You didn't kill them. He did (indicating.)

"What does that mean to you? When is outrage appropriate if not in a situation like this?

* * *

"You must stand up. You must be heard from. You must tell people. You must tell everyone that no, you can't bring back John Hiotis, you can't bring back Glenn Harrod. You can't bring back Jung Ju So.

* * *

We ask you to do your duty in this case. To speak for your fellow citizens and say when somebody goes out and slaughters three other living human beings, we want something done about it. We are outraged. We want to scream and shout. We want to tell people we won't stand it any more." (Emphasis added).

At the conclusion of closing argument, after instructing the jury with respect to aggravating and mitigating circumstances, the trial court further instructed the jury in pertinent part as follows:

"Now, let me point out or say that the State has introduced evidence of two other murders and armed robberies, one at Gyros Carry-Out and the other at the Shurefine Market for which the [accused] had been charged but with respect to which he has not yet been tried.

* * *

If you find that the evidence of the other untried crimes is relevant and probative, you should not use it in determining the existence of an aggravating circumstance beyond a reasonable doubt or the existence of mitigating circumstances by preponderance of the evidence. Rather, it may be considered by you as bearing on the character of the [accused] in your assessment of the weight to be given to mitigating circumstances in the final balancing process.

* * *

"Let me further point out with respect to section three, in balancing the various factors, you are not involved in a mere counting process. The number of aggravating and mitigating circumstances you find to have been proved is not necessarily determinative in this balancing process. Rather, you should decide what weight and quality each factor deserves and apply your reasoned judgment as to whether this situation calls for life imprisonment or whether it requires an imposition of death in light of the balancing of the aggravating circumstances and mitigating circumstances which you find to have been proved."

On 5 November 1981, the jury found only one aggravating circumstance--that the accused had "committed the [Harrod] murder while committing or attempting to commit robbery." The jury found two mitigating circumstances--first, that the accused ...