State v. Jones

• Decision Date: 04 January 1979
• Docket Number: No. 7,7
• Citation: 395 A.2d 1182,284 Md. 232
• Parties: STATE of Maryland v. Robert Ray JONES.
• Court: Maryland Court of Appeals

Page 232

284 Md. 232

395 A.2d 1182

STATE of Maryland v. Robert Ray JONES.

No. 7.

Court of Appeals of Maryland.

Jan. 4, 1979.

Alexander L. Cummings, Asst. Atty. Gen., Baltimore (Francis Bill Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Michael R. Malloy, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ^* ELDRIDGE, ORTH and COLE, JJ.

COLE, Judge.

Robert Ray Jones was convicted by a jury of murder in the first degree, robbery with a dangerous and deadly weapon, two charges of attempted robbery with a dangerous and deadly weapon and two charges of use of a handgun in a crime of violence. He was sentenced to a term of life imprisonment plus forty years consecutive thereto. He had seasonably made a motion for severance of the charges against him which the trial judge denied. The Court of Special Appeals reversed the trial court, 38 Md.App. 432, 381 A.2d 317 (1978) and upon petition by the State we granted certiorari.

The sole question presented to us for review is whether the trial court abused its discretion in denying Jones' motion for severance.

We summarize pertinent parts of the evidence necessary to our resolution of the issue. Danny Miller ¹ testified that he, Jones, and James Johnson met at Miller's house on December 26, 1975 where they agreed "to do a stick-up" to make some money to buy drugs. Jones had a gun. They drove in a car operated by Johnson to Butler, Maryland but found no stores suitable for a successful robbery. Johnson then mentioned a savings and loan association on Roland Avenue in Baltimore City. The three drove to that location and Jones went into the building while the other two remained in the car. About three minutes later Jones returned to the vehicle. He mentioned something about a glass partition and said that the bank employee had fallen to the floor and activated the alarm.

Johnson then drove to Hampden because Jones wanted to rob a pharmacy on 37th Street and Falls Road. At that location, Johnson parked in a nearby alley and Jones left the vehicle. About three minutes later Jones ran back to the vehicle, jumped in the rear seat and said, "Let's go." Jones had $30.00 which he had taken from a man's wallet.

The three men then drove to Ruby's Liquors where Johnson parked in the rear of the store. Jones again left the vehicle and returned in about five minutes saying he had to shoot the man because the man tried to shoot him. Jones had over three hundred dollars which were divided among them after returning to Miller's home.

Diana Hevesy, branch manager of Heritage Savings and Loan Association, testified that on December 26, 1975 at or about 4:00 P. M., she and Linda Trueblood were sitting at Hevesy's desk in a small office which was enclosed by bullet proof glass. A man entered, pulled a gun and ordered her to open the office door. She was frightened, and dropped to the floor. She told Trueblood to hit the alarm. The man fled. She testified that Jones resembled the man. However, Trueblood positively identified Jones as the man in question and in addition selected his photograph the next day from among six to eight photographs.

Catherine Baker, employed at Hampden Pharmacy testified that on December 26, 1975 at or about 5:00 P.M. she was behind the cash register when a man entered and after purchasing a pack of gum, pulled out a gun and said, "You know what this is." She positively identified Jones as the gunman. The pharmacist, Mr. Glassband, approached, and on command of Jones opened the register. The gunman took money from the register, a wallet from Mr. Glassband and left the store. Glassband also positively identified Jones as the gunman.

Mildred Sentz, employed by Manuel Caulker, owner of Ruby's Liquors located at 30th Street and Greenmount Avenue, Baltimore, Maryland, testified that on December 26, 1975 at or about 6:30 P.M., a man entered the store to purchase some cigarettes. As she was about to hand him the cigarettes from behind a bullet proof glass window, the man pointed a gun and asked for money. She got behind a desk and Caulker, who was nearby, jumped up and moved towards the window. Sentz heard the sound of the owner attempting to fire a gun. She then heard a loud noise and saw Caulker fall, bleeding from the chest and head. She did not see the gunman leave. Within minutes a policeman entered and Sentz informed him of what had happened. She positively identified Jones as the gunman.

Officer Michael Baptist of the Baltimore City Police Department testified that on December 26, 1975 at or about 6:30 P. M. he arrived at Ruby's Liquors to purchase some package goods. When he was approximately fifteen feet from the front door he saw a white male whom he positively identified as Jones emerge from the store and proceed in a northerly direction. The officer did not accost Jones because he had no reason to do so at that time. Upon entering the store, the officer saw a body in a puddle of blood behind the counter. Sentz told him what had happened.

Officer William Nash of the Lynchburg, Virginia Police Department, having been notified that Jones was wanted and was scheduled to arrive on a bus in Lynchburg on December 28, 1975, arrested Jones and from his person recovered Glassband's wallet. Jones did not testify or offer any evidence.

The State presents a two fold argument. First, it contends that Jones did not establish that the evidence as to each individual offense would not be mutually admissible at separate trials. On the contrary, the State asserts that the evidence as to each individual offense would be mutually admissible at separate trials to show a common scheme or plan. According to the State, the evidence establishes a similar if not identical pattern of criminal conduct within the same general geographical area which occurred on the same day within a period of two and one-half hours, which, together with the testimony of the accomplice Danny Miller, reveals a single and inseparable plan, bringing the evidence within our explanation in Cross v. State, 282 Md. 468, 386 A.2d 757 (1978) of the rule stated in McKnight v. State, 280 Md. 604, 375 A.2d 551 (1977) that "evidence of other crimes can be introduced under the common scheme exception only when the relationship between the time, place, circumstances or parties involved in the crimes is such that the uncharged crime or crimes 'support the inference that there exists a single inseparable plan . . . .' "

The State next argues that Jones was not prejudiced by the denial of his motion for a severance. The State cites our description in McKnight of the three types of prejudice to a defendant which may be caused by an improper joinder of charges:

First, he may become embarrassed, or confounded in presenting separate defenses. . . . Secondly, the jury may cumulate the evidence of the various crimes charged and find guilt when, if the offenses were considered separately, it would not do so. At the very least, the joinder of multiple charges may produce a latent hostility, which by itself may cause prejudice to the defendant's case. Thirdly, the jury may use the evidence of one of the crimes charged, or a connected group of them, to infer a criminal disposition on the part of the defendant from which he may also be found guilty of the other crimes charged. (280 Md. at 609, 375 A.2d at 554-55).

The State insists that since Jones presented no defenses to any of the charges against him, he suffered no disadvantage in presenting separate defenses. The State also argues that the jury could easily compartmentalize evidence of the separate charges because the crimes occurred at separate points in time and at separate locations.

Jones' argument on appeal is also two-pronged. First, he asserts that the Court of Special Appeals was correct in ruling that the common scheme or plan exception is inapplicable to the instant case. Jones insists that a "plan" to go out and rob someone to obtain money was an undertaking neither specific nor complex enough to justify application of the exception. Furthermore, Jones argues that even if the testimony of Miller showed a common scheme or plan, the evidence of each of the three robberies was not relevant as evidence of the common scheme or plan because the robberies took place at different locations and had different victims; there was no evidence that they were planned ahead of time; and there was evidence that each succeeding robbery attempt was decided upon and undertaken only after the preceding one had been completed. The fact that the robberies occurred within a fairly short time period is insignificant, according to Jones.

Secondly, Jones contends that the State showed no need for the mutual admission of evidence of the three armed robbery incidents sufficient to outweigh the prejudice to Jones by their admission. Jones argues that the State had no need whatsoever to have evidence of the three robbery incidents mutually admitted because Miller's testimony showed the existence of a "plan" to commit robberies. With regard to possible prejudice, Jones states that the jury may indeed have considered the cumulated evidence of each robbery in deciding whether Jones' participation in the other robberies had been proven. In addition, Jones argues that he may have been prejudiced by the hostility aroused by the other crime evidence which indicated that his character was that of a hardened professional criminal. For these reasons, Jones urges us to affirm the Court of Special Appeals' holding that the trial court improperly denied a severance in this case.

As a general rule, it is error to admit evidence of other offenses independent of the particular crime charged. Ross v. State, 276 Md. 664, 350 A.2d 680 (1976); Harrison v. State, 276 Md. 122, 345 A.2d 830 (1975); MacEwen v. State, 194 Md. 492, 500,...