Brafman v. State

Melvin, J., delivered the opinion of the Court. On January 19, 1977, Mark Jay Brafman (appellant) was found guilty by a jury in the Circuit Court for Baltimore ⁴⁶⁷ County of rape; use of a handgun in the commission of a felony (rape); perverted sexual practices; kidnapping; use of a handgun in the commission of a felony (kidnapping); and robbery with a dangerous and deadly weapon. Sentences totaling twenty-three years were imposed on January 19, 1977. These crimes were allegedly committed on September 22, 1972, at which time the appellant was sixteen years old.

He presents four questions for our review: “1. Did the lower Court err in violating the Appellant’s juvenile rights by assuming automatic jurisdiction over the indictment hearing without juvenile waiver hearing prior to criminal jurisdiction attaching? 2. Did the trial court err in its failure to include specific language in its instruction with regard to the alibi requirements for burden of proof as they pertain to the defense? 3. Did the Court err in allowing evidence concerning Nancy Stang because the jury might have been misled into a conviction based on an offense upon which the Appellant was not tried, or that he would be prejudiced by confrontation with an offense for which he was not prepared to defend? 4.

Did the trial court err in its advisory instructions to the jury concerning the testimony surrounding the Nancy Stang incident of September 19, 1972?” Because we are of the opinion that the trial court committed reversible error in instructing the jury relative to the testimony of Nancy Stang, we will reverse appellant’s convictions and remand the case for a new trial. This action renders consideration of appellant’s second question unnecessary. We will consider appellant’s first and third questions for the guidance of the trial court on remand. I Appellant first contends that because he was sixteen years old at the time the crimes were allegedly committed, the lower court committed reversible error in assuming jurisdiction ⁴⁶⁸ over all of the offenses charged in the indictment.

In appellant’s previous appeal to this Court (Brafman v. State, Sept. Term, 1974, No. 269 per curiam, filed December 31, 1974, rev'd. other grounds, 276 Md. 676 (1976)), we rejected this contention with respect to the charges of rape; use of a handgun in the commission of a felony (rape); perverted sexual practices; and robbery with a dangerous and deadly weapon. We again reject this contention. This leaves for our consideration, however, the charges of kidnapping and use of a handgun in the commission of a felony, to wit: kidnapping. 1 We conclude that no waiver of jurisdiction was necessary with respect to these charges as well. Former Art. 26, § 70-2 id) (1) (1972 Supp.), the relevant statutory provision in effect at the time of the alleged offenses, provided that the juvenile court does not have jurisdiction over: “A proceeding involving a child who has reached his 14th birthday, alleged to have done an act which, if committed by an adult, would be a crime punishable by death or life imprisonment (including a lesser offense or an offense arising out of the act alleged to have been committed), unless an order removing the proceeding to the juvenile court has been filed pursuant to § 594A of Article 27.” (Emphasis supplied).

The evidence shows that at 9:30 A.M. on September 22, 1972, an individual identified as the appellant approached the victim on the parking lot of a shopping center on Reisterstown Road, asked her for directions to “Garrett Road”, then forced her at gun point into his red car, “with a black top”, and then drove to a secluded place where he raped her. It is clear that although the kidnapping and use of a handgun in the commission thereof preceded the rape, they were both part of a single criminal incident or transaction that culminated in ⁴⁶⁹ that alleged act and therefore were, within the meaning of the statute, “offenses arising out of the act alleged to have been committed.” As rape is an act which, if committed by an adult, would be a crime punishable by life imprisonment, the juvenile court was without jurisdiction as to these offenses, absent a “reverse waiver” order by the Circuit Court pursuant to Section 594A of Article 27. There being no such order, 2 the Circuit Court had jurisdiction over the kidnapping and related handgun charge — along with the other offenses with which appellant was charged as part of the same criminal incident or transaction. Any doubt that we have correctly interpreted the legislative intent of former Art. 26, § 70-2 (d) (1) is resolved by subsequent legislative actions concerning the matter.

In 1973, the legislature by ch. 2, § 1, Acts of 1973 (1st Sp. Sess.), substituted the phrase “or an associated offense” for the phrase appearing in parentheses in former Art. 26, § 70-2 (d) (1) quoted above. The revisor’s note, C. & J. Proc. Art., § 3-308 (1974), states that “the phrase ‘associated offense’ is substituted for ‘an offense arising out of the act alleged to have been committed’ for the purpose of clarity.” In 1975, by ch. 554, Acts of 1975, this latter phrase was changed to “... all other charges against the child arising out of the same incident" and now appears in § 3-804 (d) (1) of the Courts and Judicial Proceedings Article of the Annotated Code (1976 Cum.

Supp.). We think it clear that these two enactments were merely legislative interpretations of the prior statute, intended to declare the original intent that under circumstances such as exist in the present case the kidnapping and related handgun charges were without the original jurisdiction of the juvenile court. As we said in The Swarthmore Company v. Comptroller of the Treasury, 38 Md. App. 366 (1977): “While subsequent legislative interpretation of a prior statute is not binding or controlling on the Court, Crunkleton v. Barkdoll, 227 Md. 364, 369 , 177 A. 2d 252, 255 (1962), a subsequent ‘statute ⁴⁷⁰ purporting to declare the intent of an earlier one might be of great weight in assisting a court when in doubt.’ United States v. Stafoff, 260 U. S. 477, 480 , 43 S. Ct. 197, 199 , 67 L. Ed. 358, 361 (1923).” II With regard to appellant’s third question, appellant contends that the trial judge committed reversible error in admitting over objection the testimony of Mrs. Nancy Stang that three days before the victim in the instant case was criminally attacked she too was accosted by a male person she later identified as the appellant. Mrs. Stang testified that she was twenty-three years old (the victim in the instant case was twenty-five years old) and that on September 19, 1972, at approximately 9 o’clock in the evening, the male person approached her car as she was about to drive away from a shopping center on Reisterstown Road (approximately two miles from the shopping center involved in the instant case).

The person asked her for directions to “Granite Road”. (She said she had noticed him before she went into one of the shopping center stores because “he had tapped someone else’s car” with his car — a red Ford convertible. She was not sure of the color of the top of the car.) As she began to give him directions to Granite Road, he went back to his car supposedly for a pencil and paper. When he returned to her car “he had a gun at the window telling me to pull back into the lot and get into ... [his] car.” She “pulled back into the lot” and got out of her car.

She described what happened next: “Q What happened then? A Well, I had locked the car and I got out and he told me to get in his car and he said if I didn’t he was going to shoot me, and I said: Go ahead. I would not get in the car. Q Did you say anything particular to him?

A I said: Go ahead and shoot me. Q Why did you say that? A Because he told me to get in his car where he would shoot me. ⁴⁷¹ Q What happened when you told him you weren’t going to get into his car? A He more or less just panicked and jumped into his car and took off.” Appellant contends that the evidence concerning the alleged criminal actions toward Mrs. Stang does not come within any of the exceptions to the general exclusionary rule that “in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible.” Ross v. State, 276 Md. 664, 669 , 350 A. 2d 680 (1976).

The Court in Ross went on to say: “This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character. Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is ‘substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.’ C. McCormick, Evidence § 190 (2d ed. 1972). “Moreover, apart from the fundamental proposition that an accused may be convicted only by evidence which shows that he is guilty of the offense charged, and not by evidence which indicates his guilt of entirely unrelated crimes, there are additional reasons underlying the general rule. Evidence of other crimes may tend to confuse the jurors or prejudice their minds against the accused and to predispose them to a belief in his guilt. Finally, unless he knows in advance that evidence of other crimes is to be used against him, the accused will be unprepared to defend against such evidence.

MacEwen v. State, supra, 194 Md. at 501; Wharton’s Criminal Evidence § 240 (Torcía ed. 1972). “There are exceptions to this general exclusionary ⁴⁷² rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. Wentz v. State, 159 Md. 161, 164 , 150 A. 278 (1930); Cothron v. State, 138 Md. 101, 110 , 113 A. 620 (1921); Chandler v. State, 23 Md. App. 645, 650 , 329 A. 2d 430 , cert. denied, 274 Md. 726 (1974); Wethington v. State, Gorski v. State, both supra. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial, Berger v. State, 179 Md. 410, 414 , 20 A. 2d 146 (1941); and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused.

C. McCormick, Evidence § 190, supra.” (Emphasis added.) The State in its brief argues that the challenged evidence is admissible because it establishes “(1) intent, (2) absence of mistake or accident or (3) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.” At the outset of the trial below, it was made clear to the court and jury, by both the prosecutor and defense counsel, that the only contested issue in the case was the identity of the appellant as the person who committed the crimes for which he was then on trial. The identification testimony of the rape victim was subjected to vigorous cross-examination, and the appellant, testifying in his own behalf denied any participation in the criminal incidents of September 22 or those involving Nancy Stang on September 19 and offered alibi witnesses as to both days’ incidents. ⁴⁷³ In ruling that the “other crimes” evidence was admissible the trial judge did not indicate which of the recognized exceptions he felt formed the basis for its admissibility, and the State did not specify the particular basis on which it sought its admission. In our view, in the circumstances of the instant case as reflected by the present record, the evidence of the prior criminal incident is admissible only if it comes within the exception known as the “handiwork” or “signature” exception mentioned in Boss. This exception is described in C. McCormick, Evidence § 190 at p. 449 (2d ed. 1972) as follows: “To prove other like crimes by the