Bussie v. State

HARRELL, Judge. James Tyrece Bussie appeals his conviction by a jury in the Circuit Court for Prince George’s County of assault with intent to disable, malicious shooting, use of a handgun in a crime of violence, possession of cocaine, and possession of marijuana. Appellant was acquitted of assault with intent to avoid apprehension, attempted murder, and assault with intent to murder. On 17 June 1996, the court sentenced Mr. Bussie as follows: ten years for the assault with intent to disable charge 1 five years without parole for the handgun violation, to be served consecutively with the assault sentence; three years, to be served concurrently with the handgun sentence, for the cocaine count; and, one year, to be served concurrently with the handgun sentence, for marijuana possession.

Appellant claims that the trial court’s denial of his motion 2 to sever the drug charges 3 from the assault-related charges 4 was reversible error. Alternatively, he assigns error to the failure of the trial judge to give a self-defense instruction. We shall reverse and remand the convictions on the assault charges and affirm the convictions on the drug charges. ³²⁸ ISSUES Mr. Bussie presents several issues for our review. We have restructured those issues below in order to facilitate our analysis.

I. Whether the trial judge erred by failing to sever the trial of the assault charges from the trial of the drug-related charges.

II

Whether, as a matter of law, this misjoinder requires reversal of appellant’s drug convictions.

III

Whether, as a matter of law, this misjoinder requires reversal of appellant’s assault convictions.

IV

Whether the trial judge’s refusal to give a self-defense instruction amounted to reversible error. FACTS On 23 August 1995, at approximately 9 p.m., in a fast food restaurant located in Lanham, Maryland, a melee occurred that culminated in the non-fatal shooting of Joseph Bush and appellant’s arrest. Mr. Bush, a sizeable man, was not an ordinary bystander. Testimony received by the trial court indicated that Mr. Bush was an active participant in, and possible instigator of, the altercation.

Almost every factual issue was disputed at trial, including who owned and produced the gun employed to shoot Mr. Bush. Both appellant and Mr. Bush concede that after someone produced the handgun, they battled for control of it, and Mr. Bush was shot twice. Appellant, after the shooting, fled the scene. Mr. Bussie was arrested at a gasoline station located approximately fifty yards from the restaurant and approximately fifteen minutes after the shooting.

That arrest was effected with the assistance of the restaurant’s security guard. Subsequent to police apprehension, appellant was searched incident to his arrest. During that search, the police discovered small quantities of marijuana and cocaine. Apparently the drugs were not a cause of, nor an issue in, the Lanham fast food fracas.

Appellant filed a written pre-trial motion to sever the various counts without elucidating the reasons for that motion. ³²⁹ At a hearing on the matter, however, appellant’s counsel argued that the drugs had nothing to do with the original altercation. There was a melee inside the restaurant ... [b]ut drugs were not the cause____ So when the jury sees a misdemeanor count of cocaine possession and a misdemeanor of marijuana possession at the tail end of this case — and felony drug counts are not part of this case, the amounts in question are so small. But when they see those two they are likely to conclude the impermissible inference that because he’s guilty of one kind of crime he, therefore, is more likely to be guilty of another kind of crime. And to avoid that impermissible inference we suggest the counts be severed to avoid the prejudice to the Defendant.

In retort, the State plainly contended that the drugs were discovered incident to the arrest for assault and, therefore, the two categories of charges were sufficiently linked logically, thereby warranting joinder. Appellant was tried on 3 April 1996. The vast majority of the evidence produced at the trial concerned the shooting and the handgun. The State also produced sufficient evidence of the drug possession charges to garner a conviction. 5 During all phases of the trial, appellant ignored the drug charges.

In fact, appellant failed to proffer any theory, or evidence in support thereof, that could serve as a defense to the drug possession charges. Essentially, appellant failed to counter the State’s evidence of drug possession in any way. Ultimately, appellant took the stand and admitted to having the drugs at the time of his arrest. Both the prosecution and defense produced sufficient evidence of appellant’s self-defense claim to warrant instructing ³³⁰ the jury in that regard. 6 The trial judge, without explanation, failed to instruct the jury as to the law of perfect or imperfect self-defense.

Defense counsel properly excepted to that failure on the record following the jury instructions. The jury returned its verdict, proclaiming Mr. Bussie not guilty of attempted murder and assault with intent to murder. The judge had previously granted a motion for judgment of acquittal as to the charge of assault with intent to avoid apprehension. Guilty verdicts were lodged on the assault with intent to disable, malicious shooting, use of a handgun in a crime of violence, and drug possession counts.

The judge then entered the aforementioned sentences. Thereafter, Mr. Bussie filed this timely appeal. ANALYSIS Preface As a prelude to the severance voyage the parties have devised, we first acknowledge Wieland v. State, 101 Md.App. 1, 8-23 , 643 A.2d 446 (1994) and Solomon v. State, 101 Md.App. 331, 347-55, 367-79 , 646 A.2d 1064 (1994), cert. denied, 337 Md. 90 , 651 A.2d 855 (1995). In Wieland , Judge Moylan imparted what was, at that time, the most detailed comparison of joinder/severance 7 law to the “other crimes” 8 ³³¹ evidentiary rule contained in any Maryland appellate opinion.

Despite the applicability of that case to the instant one, and its relative modernity, the parties failed to mention it in their briefs or at oral argument. Perhaps this omission is explainable because “other crimes” evidentiary law and joinder/severance law are not precise parallels. See Wieland, 101 Md.App. at 15 , 643 A.2d 446 . In Solomon , Judge Moylan again assaulted what has become an entrenched analogy.

Still, the parties attempt to persuade this Court to conduct its appellate review of the trial judge’s severance analysis in lockstep with the standard for the “other crimes” evidentiary rule. Seizing the guidon from our colleague, we persevere in our quixotic crusade to disestablish this oft-repeated, yet flawed, analogy equating the “other crimes” analysis and the issue of joinder and severance. /. Our consideration of severance law and “other crimes” evidentiary law shall begin and end with the first step required of the trial judge in each. Severance cases first require an assessment of the “mutual admissibility” of the evidence bearing on the elements of each crime.

Alternatively, an “other crimes” analysis begins by presuming inadmissibility, subject to a number of exceptions. Both address the same substantive relevancy considerations while adhering to differing procedural progressions. The second step in “other crimes” evidentiary analysis inquiries compels the State to show by clear and convincing evidence that the other crime, in fact, occurred. In severance/] oinder cases, however, no heightened evidentiary threshold exists.

The final step in each type of case is a simple, yet variable, weighing of prejudice against probative value. The ³³² variability rests in the factors considered in the balancing test employed in each case. In a severance case, the judge should consider judicial economy and the avoidance of the inconvenience of duplicate trials. In “other crimes” determinations, judicial economy is not an issue.

See Solomon v. State, 101 Md.App. at 347-50, 646 A.2d 1064 ; Wieland, 101 Md.App. at 16 , 643 A.2d 446 . In this case, we need not consider the second and third steps of either analysis. We shall conclude that, based upon this record, the State failed to negotiate the initial severance requirement of “mutual admissibility”. That failure necessitates, as a matter of law, our resolution that the drug and assault charges were erroneously joined.

We explain. We are mindful of the discretion afforded the lower court in severance/joinder cases. Nevertheless, we shall assign error in this case, as a matter of law. Admittedly, severance and joinder are matters, at least partially, left to the discretion of the trial judge, e.g., Frazier v. State, 318 Md. 597, 607 , 569 A.2d 684 (1990), although the extent of appellate deference to that discretion continues to erode.

See Wieland, 101 Md.App. at 9, 10 , 643 A.2d 446 (revealing that appellate courts have accorded less deference in joinder/severance issues than in other areas ordinarily left to the trial judge’s discretion and have not hesitated to reverse the decisions of a trial court, demonstrating little or no deference in the process). In fact, at least in a jury trial context, the initial phase determination of “mutual admissibility” is void of any deferential treatment on appeal. That first step requires a purely legal conclusion only. As an aside, we recognize that the standard applicable in the instant case differs from that germane to a bench trial.

When the judge is the arbiter of fact, he or she has at least some discretion to decide the “mutual admissibility” issue. That discretion, to join multiple offenses when the evidence of each crime is not mutually admissible, however, is foreclosed when presiding at a jury trial. This judge/jury dichotomy ³³³ evolved from Graves v. State, 298 Md. 542 , 471 A.2d 701 (1984) and McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977). “Mutual admissibility” consists of multiple unidirectional determinations of admissibility. See Solomon, 101 Md.App. at 341 , 646 A.2d 1064 .

To ascertain if evidence of each crime would be admissible in a trial for the other, the court must turn to the substantive law of evidence. 9 In joinder/severance cases, the subject matter of the separate charges against the same defendant amount, by definition, to “other crimes”. Id. at 342 , 646 A.2d 1064 . Therefore, to determine admissibility, the judge has to consider under what circumstances the “other crimes” evidence for the other charges would be admitted at a trial of a single charge. Id. at 342 , 646 A.2d 1064 .

It is only in this initial step, during which the trial judge divines the admissibility of the separate evidence of each crime, that the two processes overlap. Substantively, joinder/severance law only looks to evidentiary standards for the foundations of admissibility of “other crimes” evidence. This Court has enumerated eight varieties of “other crimes” relevance that augment the well-known codified quintet of relevance foundations, i.e., motive, intent, absence of mistake, identity and common scheme. These thirteen so-called “exceptions” to the “other crimes” rule are listed in Solomon, 101 Md.App. at 353-55 , 646 A.2d 1064 , and elsewhere.

Solomon also acknowledges that no list of relevancy foundations for “other crimes” evidence may be labeled exhaustive. Id. at 355, 646 A.2d 1064 ; see State v. Edison, 318 Md. 541, 547 , 569 A.2d 657 (1990). One of the entries on that open-ended list, of particular interest to the instant case, yields relevance “when several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other.” ³³⁴ Solomon, 101 Md.App. at 354 , 646 A.2d 1064 ; see Tichnell v. State, 287 Md. 695, 712 , 415 A.2d 830 (1980); Ross v. State, 276 Md. 664, 670 , 350 A.2d 680 (1976). We shall refer to this as “same transaction” relevance.

The State, at the severance hearing and in its brief, maintained that the assault and drug charges gain “mutual admissibility” from this “same transaction” relevance. We disagree. We begin by contemplating Tichnell, supra. In Tichnell , all of the charges against the defendant arose out of a single criminal episode.

The defendant stole guns after breaking into a gun store. He then killed a police officer and commandeered the officer’s cruiser. In that case, the Court of Appeals decided that the “offenses consolidated for trial were closely related to each other and occurred within a fifteen minute period within a tightly confined area near [the] store.” Tichnell, 287 Md. at 712 , 415 A.2d 830 . Relevancy and, therefore, “mutual admissibility” flowed from both the logical and positional links between the crimes.

The Court determined that the crimes amounted to a singular criminal transaction and acknowledged that the crimes could not be fully demonstrated at independent trials. The convergence of circumstances necessary to foment “same transaction” relevancy is more expansive than mere simultaneous arrest. Concurrence of time and place is just one factor considered in determining “same transaction” relevance. Nevertheless, the State, in its brief, contends that [t]he charges in this case arose from an assault committed by Bussie inside a restaurant and the discovery of drugs in his possession when he was arrested for the assault moments later.

This sequence constituted a single continuous and uninterrupted criminal transaction. (internal citations omitted) (emphasis added). Essentially, the State perches the “mutual admissibility” of the assault and drug crimes upon “same transaction” relevance. The State’s claim, that this continuity satisfies the “mutual admissibility” requirement, is misguided for two reasons. ³³⁵ First, as it did in Wieland , the State fails to acknowledge the effect of the factual context in which Tichnell was framed.

Wieland, 101 Md.App. at 21 , 643 A.2d 446 . The State, yet again, has turned down a discredited avenue. The Tichnell Court regarded the close proximity of time and place as just one of several reasons that severance was not required. Tichnell, 287 Md. at 713 , 415 A.2d 830 ; see Wieland, 101 Md.App. at 21 , 643 A.2d 446 .

We continue to maintain that mere physical closeness and chronological syncopation of criminal activity are not alone sufficient to render evidence of other crimes mutually admissible based upon “same transaction” relevance. The ultimate determination is not the coincidence of time and place. Such positional considerations are only factors in the trial judge’s “same transaction” decision. Second, the State bases its positional argument upon irrelevant occurrences.

We appreciate that, although the events leading to Bussie’s arrest for the assault and drug charges form a continuous sequence, the State has confused which occurrences must constitute the “continuous and uninterrupted criminal transaction”. In the instant case, the assault and the discovery of the drugs occurred in close physical and chronological proximity. Under the “same transaction” basis for “mutual admissibility”, however, it is not the timing and location of the discovery of the crimes that is a factor. Instead, the timing and location of those acts amounting to the commission of the crimes, i.e., the actus reus, are important, but certainly not dispositive, factors.

In Tichnell , the crimes were committed in close proximity of time and space such that they became blended into one transaction. In the instant case, the assault and handgun crimes occurred only minutes before the drugs were discovered. The drug possession crimes, however, were continuously committed from the moment Mr. Bussie knowingly took possession of the contraband through the time of discovery. We cannot discern from this record when Mr. Bussie took possession of the drugs.

Clearly, the State failed to proffer evidence that the commission of the drug crimes coincided with the commission of the assault crimes such that they were part of ³³⁶ the “same criminal transaction”. Had the altercation at the restaurant constituted the aftermath of a drug deal gone bad, or other drug-related interaction involving appellant, the pos-sessory crimes and the assault crimes might have amounted to components of one criminal transaction. The State asserts that “one story” exists in this case. As the State succinctly posits in its brief, “Bussie assaulted his victim in a restaurant, fled the scene, and was arrested moments later, at which time the arresting officer discovered drugs in his possession.” Under the State’s interpretation, any crime discovered during Bussie’s arrest may be tried along with the assault charges.

Essentially, the State would have this Court decide that any crime discovered incident to an arrest becomes part of the “story”, and, therefore, “mutually admissible”. This is simply not an accurate representation of the “same transaction” basis for “mutual admissibility”. The State attempts, with little success, to distinguish the facts in the instant case from three cases that support Mr. Bussie’s position, i.e. State v. Edison, 318 Md. 541 , 569 A.2d 657 (1990), Solomon v. State, 101 Md.App. 331 , 646 A.2d 1064 (1994), and Samuels v. State, 54 Md.App. 486 , 459 A.2d 213 (1983).

We shall explain these precedential joinder/severance opinions to solidify the perception of our stance. In Solomon, the defendant accosted two women, attempted to steal their automobiles, ultimately consummated a carjacking, and killed the owner of the car. This Court decided that the second and third of these events would have made little sense if described separately from what preceded them. We concluded, in Solomon, that based upon the logical relationship between the events, their geographic proximity, and the tightness of the time period of the events, a joint trial was appropriate.

In that case, however, the close relationship stemmed from the criminal activity. Each crime had relevance to the others. Each could not be proven without introducing evidence of the others. In the instant case, the correlation between the assault and drug charges is merely between the occurrence of one crime and the discovery of ³³⁷ another.

The “story” of each category of crime, in the instant case, can be told without mention of the other. In Samuels , the police arrested the defendant and discovered evidence of two discrete housebreakings and several handgun offenses. Conducting a joint trial for those offenses was determined to be erroneous. In that case, the evidence of each crime could be proven independently and each crime was not part of the same criminal transaction.

The State now claims that, although the crimes in Samuels were discovered simultaneously, the crimes were not connected in either scheme or sequence. In that regard, the State is correct. The State fails, however, to indicate how the two categories of crimes in the instant case were related such that they could not be independently proven. We presume the State’s failure to make this argument rests squarely upon its untenable nature.

In fact, as in Samuels , the various charges in this case were not connected in any other regard than their discovery and the conjunction of arrest. In Edison , the defendant committed a murder, then later tried to shoot a police officer attempting to apprehend him for the murder and, later still, escaped from detention. The Court of Appeals decided that it was improper to try all three charges in one proceeding. The State, in its brief, posits that [ojnce again, ... all of the crimes were distinct.

Although Edison’s crimes, unlike those in Samuels , were all connected to each other logically, they took place over an extended period of time and in multiple venues; the charges did not form a single narrative unit. Again, the State places excessive emphasis on the time and place of the criminal activity. The State ignores the fact that the crimes in Edison , like those in the instant case, could be completely proven without offering proof of any of the other crimes. Furthermore, we conclude that Bussie’s alleged drug-related criminal activity, like the crimes in Edison , may have taken place over an extended period of time.

His knowing possession of the drugs occurred some time before he entered the restaurant. There is no logical connection between the ³³⁸ crimes and we cannot conceive how the crimes form, what the State fashions, a “single narrative unit”. Simply put, concurrence of arrests does not so tightly link the crimes so as to warrant a finding of “mutual admissibility” pursuant to “same transaction” relevance. The assault charges and the drug charges each required different evidence relating to independent “stories”.

Under such circumstances, the “same transaction” relevancy foundation does not apply. We cannot discern, nor does the State point us to, an alternative basis for “mutual admissibility”. Therefore, we conclude that the evidence of each category of crime was probative only to demonstrate Mr. Bussie’s propensity to commit the other. Because the evidence of the assault and drug charges were not “mutually admissible”, as a matter of law, the trial judge committed error by failing to sever the trials.

We need not proceed, therefore, with a review of the additional steps in the severance analysis.

II

Demonstrating error is not the only hurdle Mr. Bussie must clear. Without identifiable