State v. Werner
Decision Date | 01 September 1983 |
Docket Number | No. 136,136 |
Citation | 302 Md. 550,489 A.2d 1119 |
Parties | STATE of Maryland v. Jerome Buckler WERNER. , |
Court | Maryland Court of Appeals |
Stephanie J. Lane, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellant.
Harold I. Glaser, Baltimore (Henry J. Myerberg and Saundra C. Rothstein, Baltimore, on brief), for appellee. Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, * RODOWSKY and COUCH, JJ.
In this criminal case, involving charges that the defendant had committed sex offenses against one of his stepdaughters, the State was allowed to elicit testimony that the defendant had committed similar offenses against another stepdaughter. The issue concerns the admissibility of such evidence under the circumstances.
In 1981, Jerome Werner 1 was indicted in Baltimore City on charges of incest, 2 rape, 3 carnal knowledge of a child under fourteen, 4 and related offenses. The alleged victims were his three stepdaughters. Two indictments charged criminal conduct against the eldest stepdaughter, Amy, from 1973 through 1975; two indictments charged criminal conduct against another stepdaughter, Kimberly, in 1977; and three indictments charged criminal conduct against the youngest stepdaughter, Cathy, in 1980.
The State moved for a joint trial on all of the charging documents pursuant to former Maryland Rule 745 b, which is now Maryland Rule 4-253(b). 5 The defendant opposed the motion on the ground that, in a trial involving alleged offenses against one victim during one period of time, evidence of offenses against a different victim during a different period of time would not be admissible. 6 The defendant relied upon Wentz v. State, 159 Md. 161, 164-166, 150 A. 278 (1930), and Berger v. State, 179 Md. 410, 414, 20 A.2d 146 (1941), in which this Court took the position that, in a prosecution of a man for incest with one of his daughters, the State is prohibited from introducing evidence to show that the defendant committed incest with another daughter. 7
The State in response, after citing some recent studies concerning sexual offenses within a family, "submit[ted] to the Court that Wentz and Berger and even for that matter the Worthen case 8 are set against a back-drop of being uninformed with regard to the reality of life that exists." The State urged the trial court to adopt the view of the dissenting opinion in Wentz, 159 Md. at 167.
The court, after reviewing the cases, refused to adopt the State's position and denied the motion for a joint trial.
Thereafter the State called for trial the two indictments charging sex offenses against the eldest stepdaughter, Amy. Prior to jury selection, the State made a proffer of certain testimony which it wished to elicit, and it sought a ruling by the court concerning the admissibility of such evidence. The State indicated that there was a five year delay from the time the last alleged criminal act occurred, in 1975, until the time Amy reported the crime, in 1980, and that the reason Amy finally went to the authorities was the revelation of her youngest sister, Cathy, that Cathy had also been a victim of incest by the defendant. The prosecuting attorney proffered that The State argued that it was necessary to elicit such testimony, not as substantive evidence, but to explain Amy's years of silence. Defense counsel objected to the proffered testimony, and argued that a cautionary instruction would not cure the prejudice. The trial court ruled that the testimony would be admitted, with a limiting jury instruction immediately after Amy's direct examination, cautioning the jury that the evidence was admitted only to explain why Amy finally came forward after a five year silence.
After jury selection, Amy testified first out of the jury's presence, in order that the court could determine the scope of her testimony. Amy indicated that she had remained silent for five years after the attacks had ceased. She testified that she did not go to the authorities because she was afraid of the defendant, because she was of the view that no one would believe her, and because she did not want to hurt her mother. She then described her meeting with Cathy, when Cathy revealed that she, too, had been assaulted by the defendant, as follows:
Amy continued, testifying that she informed Cathy that the defendant had also assaulted her, and explaining that Cathy's revelation prompted her to go to the authorities. Amy then repeated this testimony, in the presence of the jury, on direct examination. Immediately thereafter, the court gave the jury a limiting instruction.
The case went to the jury on two counts, incest and carnal knowledge, and the defendant was found guilty of both. The Court of Special Appeals reversed the convictions, Weiner v. State, 55 Md.App. 548, 464 A.2d 1096 (1983). The appellate court acknowledged that the State did not introduce the testimony as substantive evidence, but as rehabilitative evidence in light of the anticipated impeachment (55 Md.App. at 558, 464 A.2d 1096):
The Court of Special Appeals indicated that if the State had waited until Amy was specifically impeached during cross examination, the evidence might have then been admissible. Ibid. Nevertheless, the court reversed the convictions holding that the prejudice outweighed any fairness to the State, and that a limiting instruction was not adequate to cure the prejudice under the circumstances. In light of its reversal on this issue, the Court of Special Appeals did not reach another matter raised by the defendant.
The State filed a petition for a writ of certiorari, contending only that the evidence was admissible to explain Amy's lengthy period of silence. We granted the petition and shall affirm.
In Maryland, as elsewhere, evidence of other crimes committed by the defendant is generally inadmissible in a criminal case. The reasons for the rule were recently set forth by Chief Judge Murphy, writing for the Court in Straughn v. State, 297 Md. 329, 333, 465 A.2d 1166 (1983), as follows:
See McCormick on Evidence, § 190 (3d ed. 1984). In Ross v. State, 276 Md. 664, 669-670, 350 A.2d 680 (1976), we summarized various exceptions, recognized by Maryland cases, to this general exclusionary rule:
See Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980); State v. Jones,...
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