Solomon v. State

• Decision Date: 02 September 1994
• Docket Number: S,No. 1538,1538
• Citation: 101 Md.App. 331,646 A.2d 1064
• Parties: Rodney Eugene SOLOMON v. STATE of Maryland. ept. Term 1993.
• Court: Court of Special Appeals of Maryland

Page 331

101 Md.App. 331

646 A.2d 1064

Rodney Eugene SOLOMON v. STATE of Maryland.

No. 1538, Sept. Term 1993.

Court of Special Appeals of Maryland.

Sept. 2, 1994.

Certiorari Denied Jan. 11, 1995.

Michael R. Braudes and Margaret L. Lanier, Asst. Public Defenders (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Kathryn Grill Graeff, Asst. Atty. Gen., Baltimore (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for appellee.

Submitted before MOYLAN, and FISCHER, JJ., and ROSALYN B. BELL, Judge (Ret., Specially Assigned).

MOYLAN, Judge.

This case involves one consummated carjacking and two attempted carjackings, all of which occurred within a tight geographic radius in the southern corner of Howard County and within the narrow time frame of between fifteen and twenty-five minutes on the morning of September 8, 1992. The consummated carjacking resulted in a first-degree murder as tragic and as vicious as any that the pages of these reports have ever been called upon to recount. The trial of the appellant, Rodney Eugene Solomon, was removed from Howard County to Baltimore County. A codefendant, Bernard Miller, was tried in Howard County, was convicted of first-degree felony murder and other offenses, and was sentenced to a term of life imprisonment plus ten years.

A Baltimore County jury, presided over by Judge Dana M. Levitz, subsequently convicted the appellant of the first-degree murder of Pam Basu, the robbery of Pam Basu, the kidnapping of Pam Basu, the kidnapping of one-year-old Sarina Basu, the robbery of Grace Lagana, and the assault with intent to rob Laura Ann Becraft. The jury sentenced the appellant to life imprisonment without the possibility of parole.

Denial of Trial Severance

Although the appellant raises the single contention that Judge Levitz erroneously denied his motion for separate trials of the charges with respect to each of the three adult victims, he fragments the claim into three sub-contentions. He maintains that the State failed to establish:

1) that the evidence with respect to each of the three sets of charges would be mutually admissible if the three sets of charges were tried separately;

2) that each of the three criminal episodes was proved to the satisfaction of the trial judge by the clear and convincing standard of persuasion before evidence as to it was received in evidence at the trial; and

3) that the probative value, including need, for the incremental evidence outweighed the potential prejudice against the appellant.

A Blurred Boundary: Avoiding the Pitfalls

Before we can begin to address any of those sub-contentions (and perhaps to dismiss one or two as totally inapposite to the issue before us), there is some serious sorting out that must be done and a doctrinal boundary line that needs to be clearly defined. The appellant has indiscriminately mixed two distinct, albeit partially overlapping, legal doctrines. His confusion is understandable because some of our case law has, within the last several years, lapsed into the same error of uncritically commingling two separate sets of legal principles. We need carefully to compartmentalize the procedural issue of joinder/severance from the evidentiary issue of the admissibility of "other crimes" evidence. They are not the same. They call for different analyses. The applicability of one to the question at hand does not imply the applicability of the other. Wieland v. State, 101 Md.App. 1, 643 A.2d 446 (1994).

Trial Joinder and Severance: A Problem of Criminal Procedure

The closely related problems of when to join multiple defendants for a consolidated trial and when to join multiple charges against a single defendant for a consolidated trial are time-honored aspects of criminal procedure. Maryland Rule 4-253 covers the subject of "Joint or Separate Trials." Subsection (a) deals with the "Joint Trial of Defendants":

On motion of a party, the court may order a joint trial for two or more defendants charged in separate charging documents if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.

Subsection (b) deals with the parallel problem of the "Joint Trial of Offenses":

If a defendant has been charged in two or more charging documents, either party may move for a joint trial of the charges. In ruling on the motion, the court may inquire into the ability of either party to proceed at a joint trial.

Subsection (c) provides a remedy when it appears that there may be a "Prejudicial Joinder":

If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires.

The joinder/severance problem is a classic aspect of the law of criminal procedure. See, e.g., 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure Ch. 17 "The Scope of the Prosecution: Joinder and Severance," (1984). Unlike the merely evidentiary issue of when, in the course of an ongoing trial, to admit evidence of "other crimes" or "other bad acts," the joinder/severance issue must be resolved, of necessity, pretrial. The evidentiary problem, by contrast, may arise randomly throughout the course of a trial.

McKnight v. State, 280 Md. 604, 375 A.2d 551 (1977), was the first sophisticated and in-depth analysis we have ever had in Maryland of joinder/severance law. Judge Levine there pointed out, 280 Md. at 608-609, 375 A.2d 551, how the Maryland rule (now Maryland Rule 4-253, formerly Maryland Rule 745) is patterned on Rule 14 (and Rule 8) of the Federal Rules of Criminal Procedure and how that mutual standard "is merely a restatement of the test applied at common law." 280 Md. at 608, 375 A.2d 551. See Simmons v. State, 165 Md. 155, 165-166, 167 A. 60 (1933); Wanzer v. State, 202 Md. 601, 608, 97 A.2d 914 (1953); State v. McNally, 55 Md. 559, 563-564 (1881); State v. Bell, 27 Md. 675, 678 (1867); McElroy v. United States, 164 U.S. 76, 80-81, 17 S.Ct. 31, 32-33, 41 L.Ed. 355 (1896); Pointer v. United States, 151 U.S. 396, 403, 14 S.Ct. 410, 412-13, 38 L.Ed. 208 (1894).

The progeny of McKnight now includes Lebedun v. State, 283 Md. 257, 390 A.2d 64 (1978); State v. Jones, 284 Md. 232, 395 A.2d 1182 (1979); Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980); Graves v. State, 298 Md. 542, 471 A.2d 701 (1984); Osburn v. State, 301 Md. 250, 482 A.2d 905 (1984); State v. Edison, 318 Md. 541, 569 A.2d 657 (1990); State v. Kramer 318 Md. 576, 569 A.2d 674 (1990); and Frazier v. State, 318 Md. 597, 569 A.2d 684 (1990).

The decisions of this Court following the McKnight analysis include Shingleton v. State, 39 Md.App. 527, 387 A.2d 1134, cert. denied, 283 Md. 738 (1978); Ellerba v. State, 41 Md.App. 712, 398 A.2d 1250 (1979); Stevenson v. State, 43 Md.App. 120, 403 A.2d 812 (1979); Erman v. State, 49 Md.App. 605, 434 A.2d 1030 (1981); Epps v. State, 52 Md.App. 308, 450 A.2d 913 (1982); Samuels v. State, 54 Md.App. 486, 459 A.2d 213 (1983); Sye v. State, 55 Md.App. 356, 468 A.2d 641 (1983); McKinney v. State, 82 Md.App. 111, 570 A.2d 360 (1990); Moore v. State, 84 Md.App. 165, 578 A.2d 304 (1990); Cook v. State, 84 Md.App. 122, 578 A.2d 283 (1990), cert. denied, 321 Md. 502, 583 A.2d 276 (1991); Marks v. State, 84 Md.App. 269, 578 A.2d 828 (1990); Manuel v. State, 85 Md.App. 1, 581 A.2d 1287 (1990); cert. denied, 322 Md. 131, 586 A.2d 13 (1991); Kearney v. State, 86 Md.App. 247, 586 A.2d 746, cert. denied, 323 Md. 34, 591 A.2d 250 (1991); Ogonowski v. State, 87 Md.App. 173, 589 A.2d 513, cert. denied, 323 Md. 474, 593 A.2d 1127 (1991); Eiland v. State, 92 Md.App. 56, 607 A.2d 42 (1992), rev'd on other grounds sub nom. Tyler v. State, 330 Md. 261, 623 A.2d 648 (1993); Wieland v. State, 101 Md.App. 1, 643 A.2d 446 (1994).

This entire line of cases concerns the joinder/severance procedural question and not the admissibility of evidence of "other crimes" or "other bad acts." Joinder/severance law, to be sure, would never be concerned with "other bad acts" in any event, for one does not go on trial, jointly or severally, for a "bad act."

Evidence of "Other Crimes"

As a distinct body of law, the inadmissibility of "other crimes" evidence to show a criminal propensity contrasted with the admissibility of such evidence to show such matters as motive, intent, absence of mistake, identity, common scheme or plan, criminal signature in terms of modality, etc., is classic grist for the law of evidence. See, e.g., Lynn McLain, Maryland Practice: Maryland Evidence, § 404.5 at 352-357 (1987); Joseph F. Murphy, Jr., Maryland Evidence Handbook, § 518(E) at 181-196 (1989); C. McCormick, Evidence, § 190 at 557-565 (E. Cleary 3d ed.) (1984); 2 Wigmore on Evidence, ch. 13, Other Offenses or Similar Acts, as Evidence of Motive, Design, or Intent, at 235-378 (Chadbourne rev. 1979).

There is a substantial and distinct body of case law dealing with this evidentiary question. The leading opinions are Ross v. State, 276 Md. 664, 350 A.2d 680 (1976); Cross v. State, 282 Md. 468, 386 A.2d 757 (1978); Straughn v. State, 297 Md. 329, 465 A.2d 1166 (1983); State v. Faulkner, 314 Md. 630, 552 A.2d 896 (1989); Harris v. State, 324 Md. 490, 597 A.2d 956 (1991); Terry v. State, 332 Md. 329, 631 A.2d 424 (1993); Anaweck v. State, 63 Md.App. 239, 492 A.2d 658, cert. denied, 304 Md. 296, 498 A.2d 1183 (1985).

The definitive analysis is the outstanding opinion of Judge Adkins in State v. Faulkner. It was Faulkner that prescribed for the first time the procedural steps that must be taken before a trial judge rules evidence of "other crimes" to be admissible. Judge Adkins pointed out that the first determination--whether the evidence fits within a legitimate exception...