Wynn v. State

• Citation: 117 Md.App. 133,699 A.2d 512
• Decision Date: 01 September 1996
• Docket Number: No. 1636,1636
• Parties: James Othel WYNN v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 133

117 Md.App. 133

699 A.2d 512

James Othel WYNN v. STATE of Maryland.

No. 1636, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Sept. 4, 1997.

Gina M. Serra, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Emmet Davitt, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, Baltimore, Robert Dean, State's Attorney for Montgomery County, Rockville, on the brief), for Appellee.

Submitted before MOYLAN, SALMON and THIEME, JJ.

THIEME, Judge.

In two separate trials, appellant James Othel Wynn was convicted by a jury in the Circuit Court for Montgomery County of a total of three counts of daytime housebreaking and three counts of theft. He was sentenced to 12 years in prison and 5 years supervised probation upon release.

We summarize the facts necessary to our resolution of the issues raised on appeal.

First Incident of Daytime Housebreaking and Theft

Houston Maples left his home on 3 July 1994 and returned home on 4 July 1994. While Maples was away, someone pried open the rear window of Maples's house with a shovel taken from Maples's storage house. After entering the home, the perpetrator took a $600 camcorder, a $20 carrying case, $200 worth of jewelry, a $100 locket, a $100 pin, and a $500 antique bowl. The police recovered Maples's camcorder after executing a search warrant of appellant's home almost ten months later. The camcorder contained a tape showing appellant's son.

Second Incident of Daytime Housebreaking and Theft

Charles Garrison left home on the Friday after 4 July 1994 and returned the following Monday. While Garrison was away, someone pried open a rear window and took from Garrison's house $40-$50 in change, a bag full of pennies, family medals, a $300 antique watch, a gym bag, and a silver frame. After executing the previously mentioned warrant of appellant's home, police recovered Garrison's gym bag and the antique watch.

Third Incident of Daytime Housebreaking and Theft

Michael Quigley returned home from vacation on 11 July 1994 to find that his home had been burglarized. Two basement windows were open and the door from the basement had been pried open. A pair of bolt cutters that did not belong to Quigley were discovered in the basement. After breaking into Quigley's home, the perpetrator took a gold Cartier watch, an Omega scuba diving watch, a Swatch watch, an imitation Rolex watch, other watches, coins, jewelry, and a canvas Sierra bag. The Cartier watch, Omega scuba diving watch, the imitation Rolex watch, and the canvas bag were recovered from appellant's house during the execution of the warrant. Those items were returned to Quigley.

Appellant was charged in a 23-count indictment. He was tried and acquitted on counts one through four, which are unrelated to the instant appeal. In count five, appellant was charged with the daytime housebreaking of Michael Quigley's home; count six charged appellant with the theft of Quigley's property. In count seven, appellant was charged with the daytime housebreaking of the residence of Houston Maples count eight charged him with the theft of Maples's property. Appellant was charged with the daytime housebreaking of Charles Garrison's home in count nine and the theft of Garrison's property in count ten. Counts 11 through 23 were eventually nol prossed by the State.

Prior to trial, appellant moved to suppress the evidence seized during the execution of the search of his home. He argued that the search violated his Fourth Amendment right against unreasonable search and seizures because police entered his home without first knocking and announcing their presence. The police maintained that they entered appellant's home unannounced because they were concerned about their safety due to appellant's extensive criminal record, which included an incident in which he pulled a gun while police officers were attempting to arrest him. Additionally, the concern of the police about their safety was heightened because appellant's wife, Angela Kenyon, was also believed to be inside the home. Kenyon had had armed robbery charges in 1989 and 1990, and had an active violation of probation warrant in addition to numerous other charges and convictions. The trial court denied appellant's motion to suppress.

The defense also moved to have the Quigley, Maples, and Garrison counts tried separately. After a hearing on the matter, the trial court ruled that the charges for the thefts and daytime housebreakings of Maples's and Garrison's property were to be tried together because the homes were in the same neighborhood and the burglaries occurred over the same weekend. The charges for the daytime housebreaking and theft of Quigley's property were tried separately.

During appellant's trial for the crimes that occurred on Maples's and Garrison's property, the evidence of the housebreaking and theft of Quigley's residence was admitted as "other crimes" evidence. Similarly, during the trial for the break-in of Quigley's home, the break-ins of Maples's and Garrison's homes were admitted as "other crimes" evidence.

Appellant was convicted on all counts in both trials. For each housebreaking, he was sentenced to ten years with all but four suspended; for each theft conviction, he was sentenced to three years, concurrent with the housebreaking sentences. His total time of incarceration was to be 12 years and he was to be placed on five years supervised probation upon release. Appellant noted a timely appeal and raises the following issues, which we have reorganized:

1. Did the trial court err in denying appellant's Motion to Sever?

2. Did the trial court err in admitting other crimes evidence at the trial for the Maples and Garrison break-ins?

3. Did the trial court err in admitting other crimes evidence at the trial for the Quigley break-in?

4. Did the trial court err in denying appellant's Motion to Suppress?

5. Did the trial court err in failing to disclose the contents of a jury note sent to the judge during deliberations?

6. Was the evidence sufficient to sustain appellant's convictions?

I.

Appellant's first contention is that the trial court erred in joining the trials of the break-ins and thefts of the Garrison and Maples homes. In a jury trial, severance is "absolutely mandated, as a matter of law, when the evidence with respect to the separate charges ... would not be mutually admissible." Solomon v. State, 101 Md.App. 331, 340, 646 A.2d 1064 (1994). The trial judge has no discretion to join similar offenses where the evidence as to them was not mutually admissible. Id. (quoting Graves v. State, 298 Md. 542, 545-46, 471 A.2d 701 (1984)). Evidence is mutually admissible when evidence of one offense would be admissible in the trial of the other offense and vice versa. This usually involves admissibility under the "other crimes" exception. The admissibility of "other crimes" evidence is governed by Maryland Rule 5-404(b). That rule reads as follows (b) Other Crimes, Wrongs, or Acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.

We summarized this area of the law in Kearney v. State, 86 Md.App. 247, 253, 586 A.2d 746 (1991). In that case, we stated:

[I]n a jury trial, "a defendant charged with similar, but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials." Indeed, where the evidence at a joint jury trial is not mutually admissible because of "other crimes" evidence, there is prejudice as a matter of law which compels separate trials. (Citation omitted; emphasis in original.)

Kearney, 86 Md.App. at 253, 586 A.2d 746. The rationale for severance of trials unless the evidence is mutually admissible was explained by the Court of Appeals in McKnight v. State, 280 Md. 604, 375 A.2d 551 (1977). In that case, the Court explained that joinder of similar offenses may prejudice the defendant in three respects:

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 criminal disposition on the part of the defendant from which he may also be found guilty of other crimes charged.

Id. at 609, 375 A.2d 551.

As Judge Moylan reminded us in Solomon, however, "the procedural aspects of severance/joinder law do not subsume the procedural aspects of 'other crimes' evidence law, for the two settings are, procedurally, totally dissimilar." Solomon, 101 Md. App. at 342, 646 A.2d 1064. When analyzing whether evidence at a joint jury trial would be mutually admissible, therefore allowing the joinder of the trials, the first step is the "purely substantive determination of whether evidence of another crime is prima facie admissible, singly or mutually, by virtue of its utility to prove motive, intent, absence of mistake, identity, common scheme or plan, etc." Id. at 343, 646 A.2d 1064. There is a presumption that the evidence should be excluded; in effect, it is fair to say that all relevant "other crimes" evidence stays out unless it is substantially relevant to show something other than criminal propensity. See Harris v. State, 324 Md. 490, 500-501, 597 A.2d 956 (1991). The second step is a permissible weighing of the undue prejudice against the defendant...