Smith v. State

Decision Date28 November 1986
Docket NumberNo. 140,140
Citation308 Md. 162,517 A.2d 1081
Parties, 55 USLW 2355 Jerry Oscar SMITH v. STATE of Maryland. Sept. Term 1985.
CourtMaryland Court of Appeals

Jose F. Anderson, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Valerie V. Cloutier, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.


MURPHY, Chief Judge.

This case involves a challenge to the admissibility of testimony at a criminal sentencing hearing pertaining to the defendant's alleged participation in an uncharged offense unrelated to the crime for which he was then being sentenced.


The record reveals that Minnie Burt spent the evening of June 10, 1984, in her former place of employment, a lounge located in Fairmount Heights, Maryland. She left the lounge intending to get a cab to her home in the District of Columbia. A man, whom Burt later identified as Jerry Oscar Smith, offered to drive her to the cab stand and she accepted. However, instead of driving her to the promised destination, Smith drove Burt to a secluded country road where, at knifepoint, he forced her to engage in sexual relations with him. Smith abandoned Burt in a wooded area after which she made her way to a nearby house and summoned the police. Burt gave the police a description of her attacker's jeep and thereafter identified Smith as her assailant from a photo array. The police apprehended Smith in his jeep on the following day; he had a knife on his person at the time of arrest.

Smith was tried by a jury in the Circuit Court for Prince George's County and found guilty of first degree rape and first degree sexual offense. The trial judge (Chasanow, J.) set a date for sentencing; at this point in the proceedings, the prosecution notified the court and defense counsel of its intention to present the testimony of another woman at the sentencing hearing whom Smith allegedly attempted to rape on the day preceding the attack upon Burt. A letter which included the witness's full name, address and a copy of the police report relating to the uncharged incident was promptly sent to defense counsel.

At the sentencing hearing, Mrs. Willie May Williams testified over Smith's objection that on the evening of June 9, 1984, the car in which she and her husband were riding broke down. She walked to a nearby gas station to secure the services of a tow truck; however, there was no truck on duty. Williams said that Smith was at the station in his jeep and she asked him whether he had jumper cables. Smith responded affirmatively and offered to drive the witness back to her stalled vehicle. Williams told Smith where the disabled car was parked. He then drove to the location of the Williams' vehicle; the witness returned to the vehicle on foot. Attempts to jump-start the car were unsuccessful. Williams testified that Smith said that there was a service station with a tow truck approximately ten blocks away. She then accepted Smith's offer of a ride to the service station. Her husband stayed behind with the disabled car. Williams said that she became suspicious when Smith drove past several service stations and headed toward a wooded area. The witness thereafter jumped out of the jeep and took refuge behind a tree. Williams said that Smith stopped for a short time, but then drove on.

Smith testified on his own behalf. He admitted driving Williams to a gas station in search of a tow truck. He said that he left the witness at the gas station and did not drive Williams to a wooded area. The court sentenced Smith to two concurrent terms of twenty-five years for the offenses perpetrated against Burt. The judgments were affirmed by the Court of Special Appeals in an unreported opinion. We granted certiorari to consider whether Williams' testimony was properly admitted at the sentencing hearing.


At the outset we note that "a sentencing judge is vested with virtually boundless discretion." Logan v. State, 289 Md. 460, 480, 425 A.2d 632 (1981); see also Reid v. State, 302 Md. 811, 819, 490 A.2d 1289 (1985) and cases cited therein. The sentencing judge is accorded this broad latitude to best accomplish the objectives of sentencing--punishment, deterrence and rehabilitation. Johnson v. State, 274 Md. 536, 540, 336 A.2d 113 (1975). A sentence should be premised upon both the facts and circumstances of the crime itself and the background of the individual convicted of committing the crime. Reid, supra, 302 Md. at 820, 490 A.2d 1289 (citing Henry v. State, 273 Md. 131, 150, 328 A.2d 293 (1974)). The strict rules of evidence do not apply at a sentencing proceeding for reasons explicated by the Supreme Court in Williams v. New York, 337 U.S. 241, 246-47, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949).

"In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time-consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant--if not essential--to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial."

See also Bartholomey v. State, 267 Md. 175, 193, 297 A.2d 696 (1972).

The consideration of a wide variety of information about a specific defendant permits the sentencing judge to individualize the sentence to fit "the offender and not merely the crime." Williams, 337 U.S. at 247, 69 S.Ct. at 1083. In that case the Supreme Court approved the trial judge's consideration of a presentence investigation which contained information about burglaries of which Williams had not been convicted, but had either admitted or been identified as the perpetrator. This policy of broad dissemination of information to the sentencing judge was reiterated in Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.Ct. 421, 426, 3 L.Ed.2d 516 (1959). There, the Court stated that "the sentencing judge is authorized, if not required, to consider all of the mitigating and aggravating circumstances involved in the crime." In United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978), the Court approved the sentencing judge's consideration of what he believed to be perjured testimony by the defendant at trial. Hence, the Supreme Court has permitted sentencing judges to consider past conduct which is criminal in nature but which did not result in a conviction.

Consistent with the philosophy espoused by the Supreme Court, Maryland has approved the admission of various types of evidence in sentencing proceedings. In Purnell v. State, 241 Md. 582, 217 A.2d 298 (1966), the defendants pleaded guilty to, and were convicted of, breaking and entering a diner. They also admitted to an attempted breaking at another location and to the theft of a truck. The defendants there objected to the sentencing judge's consideration of any offenses for which they had not been tried or convicted. In approving consideration of the confessions to other crimes, the Court noted:

"It is almost, if not universally, held that opprobrious or kindly and commendable action on the part of a convict may be considered in sentencing as a matter either of aggravation or mitigation of possible punishment. It would be a strange holding, indeed, to rule that opprobrious conduct not amounting to a crime may be considered in sentencing, but more offensive action cannot, merely because it amounted to a crime of which the convict may, or may not, thereafter be convicted." 241 Md. at 585, 217 A.2d 298.

In Henry v. State, 273 Md. 131, 328 A.2d 293 (1974), the defendant was convicted of automobile theft and of receiving stolen money; he was found not guilty of murder, assault with intent to murder and armed robbery. In sentencing Henry, the trial judge referred to the circumstances surrounding all of the charges, including those crimes for which Henry was acquitted. In affirming the judgments, we indicated that "[i]n passing sentence the trial judge was not required to remain oblivious to evidence of Henry's involvement in the homicide and robbery at a level less than would warrant his conviction of those crimes." 273 Md. at 150, 328 A.2d 293.

At issue in Logan v. State, 289 Md. 460, 425 A.2d 632 (1981) was whether, at a sentencing hearing, the sentencing judge could consider confessions obtained in violation of the Fourth Amendment. We refused to extend the exclusionary rule to sentencing proceedings and held that consideration of such confessions was within the judge's discretion. 289 Md. at 486-87, 425 A.2d 632. 1

Our cases thus make clear that sentencing judges in Maryland may consider the criminal conduct of a defendant even if there has been no conviction. As originally stated in Bartholomey v. State, supra, 267 Md. at 193, 297 A.2d 696:

"[T]o aid the sentencing judge in fairly and intelligently exercising the discretion vested in him,...

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