Cross v. State

Digges, J., delivered the opinion of the Court. The petitioner, Melvin A. Cross, is before this Court by way of certiorari to contest the decision of the Court of Special Appeals in Cross v. State, 36 Md. App. 502 , 374 A. 2d 620 (1977), which affirmed the judgment of the Circuit Court for Howard County entered on a jury verdict finding him guilty of grand larceny. Since we agree with the petitioner that (i) the evidence introduced at the trial tending to associate him with another crime committed the same day was improperly placed before the jury, and (ii) other evidence purporting to show that Cross was in possession of goods stolen in the ⁴⁷⁰ burglary was inadequate to raise an inference that he was the thief, we will reverse the judgment and remand the case for a new trial. The events which are the basis of this criminal prosecution occurred between the fifteenth and eighteenth of February, 1976. 1 On Sunday the fifteenth, between 4:00 and 5:00 p.m., the Howard County home of Margaret and Robert Fridell was burglarized.

At the time of this trespass two neighbors noticed a light blue car parked near the residence, but gave no additional information concerning the vehicle and described the occupants only as “two persons” who were taking things from the house and putting them in the automobile. 2 Among the items reported missing was Mrs. Fridell’s diamond engagement ring. Three days later, while investigating a break-in which had occurred at the home of Mr. Hugh Buffington in Catonsville, about an hour after and several miles from the Fridell burglary, the Baltimore County police discovered Mrs. Fridell’s ring on the front seat of petitioner’s blue 1967 Chevrolet. The car was at the time located in a storage yard in Prince George’s County, having been placed there as a result of its impoundment by local police after being involved in an accident in that county on the evening of Monday, February 16. To bolster its case against Cross charging grand larceny and related offenses pertaining to the Fridell burglary, the State sought at the trial to introduce evidence concerning his whereabouts immediately before and after the break-in at the ⁴⁷¹ Fridell home.

Cindy Brosenne, an employee of a liquor store located two and one-half to three miles from the Fridell residence, identified Cross as one of two black men who purchased a six-pack of Michelob beer at the store between 3:30 and 4:30 p.m. on the fifteenth. The State was also allowed to present the testimony of Mr. Buffington concerning the burglary of his Catonsville home at approximately 6:30 p.m. that same day. This witness, over petitioner’s objection, was permitted to testify that upon his return home from a two-hour absence he found a blue 1967 Chevrolet parked in his driveway “facing out”; that after making a mental note of the license plate number he alighted from his car, only to discover that his north screen doors had been torn down; that he immediately went to a neighbor’s house and called the Baltimore County police; and that when he returned to his home, the witness found that the blue car, whose means of exit via the driveway had been blocked by his own car, had, as evidenced by tire tracks, been driven away across his front lawn. At no time did Mr. Buffington observe the occupant or occupants of the blue car.

Although this witness testified he had shown the tire tracks left by the burglars’ car to the police when they first arrived at around 6:45 p.m., some four hours later while examining the ground around the house the officers discovered a Michelob beer bottle, which had not previously been observed by anyone that evening. The bottle was found lying in the tire tracks about thirty or forty feet from the street, and had not been run over by the fleeing vehicle. Although the license tag number Mr. Buffington gave the police when they first arrived was not the tag number of Cross’ vehicle, 3 that information, together with the ⁴⁷² description of the car as being a blue Chevrolet, eventually led the police to petitioner’s automobile, which they found at the storage yard in Prince George’s County. In his defense, the petitioner produced as a witness the filling station operator, J. Robert Peacock, who had towed Cross’ vehicle from the place where the accident occurred.

Mr. Peacock testified that he was summoned to the scene by the police and thereafter at their request towed a faded blue 1967 Chevrolet back to the Bowie gas station where he worked. He stated that although he had not observed Cross at the accident scene, approximately one to two hours later the petitioner arrived at the station accompanied by friends; he displayed a personal property release document from the police, took some items from the interior and trunk of the car, and then departed in another automobile. Mr. Peacock also testified that before he began the towing operation he entered the car to straighten the wheels and put the transmission in neutral, but, it being dark, noticed nothing on the front seat. Further, this witness was not sure if the station had the keys to the wrecked car but testified that he did not lock it upon arriving at the station because the business was open twenty-four hours daily.

The vehicle was later towed five miles to a storage lot where, on February 18, the previously mentioned discovery of the ring by the Baltimore County police occurred. Cross did not testify and offered no explanation of how Mrs. Fridell’s engagement ring happened to be in his car; however, he did call his wife to the stand and she testified that on the day and at about the time of the Fridell burglary, her husband was with her in Hagerstown, Maryland. On this evidence, the jüry found the petitioner guilty of both grand larceny and receiving stolen goods, but the State nolle prossed the latter conviction after the verdict was rendered in an attempt to avoid leaving in existence incon ⁴⁷³ sistent verdicts. 4 See Bell v. State, 220 Md. 75, 80-81 , 150 A. 2d 908, 911 (1959); Heinze v. State, 184 Md. 613, 617 , 42 A. 2d 128, 130 (1945). A mere cursory review of the case law relating to the issue which is the subject of the petitioner’s first contention of error —- the trial court’s admission of evidence of another crime —• readily reveals that there are few principles of American criminal jurisprudence more universally accepted than the rule that evidence which tends to show that the accused committed another crime independent of that for which he is on trial, even one of the same type, is inadmissible.

The law of this State is fully in accord. E.g., McKnight v. State, 280 Md. 604, 612 , 375 A. 2d 551, 556 (1977); Ross v. State, 276 Md. 664, 669 , 350 A. 2d 680, 684 (1976); Harrison v. State, 276 Md. 122, 155-56 , 345 A. 2d 830, 848-49 (1975). Yet, as with many firmly established legal principles, there are exceptions which at times appear to swallow the rule. In the instance of the exclusory rule pertaining to other crimes, exceptions have been recognized because of the desire of the courts to admit evidence which is “substantially relevant for some other purpose than to show a probability that [the defendant] committed the crime on trial because he is a man of criminal character.” McCormick’s Handbook of the Law of Evidence § 190, at 447 (2d ed. 1972).

The well-established exceptions to the rule in Maryland were recently chronicled by Judge Levine for this Court in Ross v. State, supra: [E]vidence 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 ⁴⁷⁴ other, and (5) the identity of the person charged with the commission of a crime on trial.. 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; and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. [276 Md. at 669-70, 350 A. 2d at 684 (citations omitted).] In many instances, the breadth of these exceptions will present the prosecution with little difficulty in “pigeonholing” the evidence within one of them. But it should be remembered that, though the evidence may fall within one or more of the exceptions, the trial judge still possesses discretion as to whether it should be received. In the judicious determination of this issue he should carefully weigh the necessity for and probativeness of the evidence concerning the collateral criminal act against the untoward prejudice which is likely to be the consequence of its admission.

Harris v. United States, 366 A. 2d 461, 463-64 (D.C. 1976); see McKnight v. State, supra at 612-13 [556]. See generally McCormick on Evidence, supra, § 190, at 453-54. In some cases, this may require that evidence of the criminal actions of the defendant be totally excluded; in others, admission of portions or all of the evidence of the defendant’s specific criminal actions may be permissible. In its opinion, the Court of Special Appeals discussed two of the exceptions enumerated in Ross , though without citing that case: (1) that the evidence of the Buffington burglary was admissible on the basis that it established a “common scheme or plan” — the ground upon which the State relied in urging its admission at trial and upon which the trial court received it, and (2) that it was admissible as establishing the “identity” of the petitioner. 5 The Court of Special Appeals ⁴⁷⁵ determined that the evidence was not admissible as establishing a common scheme or plan, a conclusion with which we agree, though not for the reasons, as we read that court’s opinion, assigned by it.

The court said: Nor can we agree with the State that the Buffington crime tends to establish “a common scheme or plan.” The mere practice of backing a getaway car up to a premises to be burglarized does not, in our judgment, constitute so unusual a modus operandi that it could be labeled the “signature” of a particular criminal so as to establish his identity. [ 36 Md. App. at 521 , 374 A. 2d at 631 .] In so stating the court appears to have confused the exceptions involved. As a general rule, in order to gain the admission of evidence of other criminal acts under the common scheme or plan exception it is necessary that the crimes, including the crime charged, so relate to each other that proof of one tends to establish the other. Westcoat v. State, 231 Md. 364, 368 , 190 A. 2d 544, 546 (1963); Wilson v. State, 181 Md. 1, 3 , 26 A. 2d 770, 772 (1942); see Young v. State, 152 Md. 89, 91-92 , 136 A. 46, 47 (1927). Moreover, there must be “not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” 2 J. Wigmore, Evidence § 304, at 202 (3d ed. 1940) (emphasis in original).

The concurrence of common features under this exception, however, must be more than simply a manner of operation, which is possessed to some extent by most criminal recidivists. A method of operation is not, by itself, a common scheme, but merely a repetitive pattern. People v. Fiore, 34 N.Y.2d 81 , 312 N.E.2d 174, 178 , 356 N.Y.S.2d 38, 44 (1974). Thus, 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 ⁴⁷⁶ crime or crimes “support the inference that there exists a single inseparable plan encompassing both the charged and uncharged crimes, typically, but not exclusively, embracing uncharged crimes committed in order to effect the primary crime for which the accused has been indicted.” 312 N.E.2d at 177 , 356 N.Y.S.2d at 42-43 .

The evidence in this case, which indicates only that a blue car was seen in front of two residences where break-ins occurred, is clearly inadequate to show any kind of systematic scheme or plan sufficient to allow admission of the evidence of the other crime. See United States v. Carter, 475 F. 2d 349, 351 (D.C. Cir. 1973) (per curiam) (evidence that individual wore fur hat and coat when perpetrating armed robberies on two separate occasions insufficient to show common scheme or plan). The language used by the Court of Special Appeals, as we read that court’s opinion, to describe the common scheme or plan exception in fact describes the “handiwork” or “signature” exception discussed in McKnight v. State, 280 Md. 604, 613 , 375 A. 2d 551, 556 (1977), and at times referred to as the “modus operandi” form of the identity exception. See note 6 infra.

The evidence sought to be admitted here obviously does not meet the requirements of that exception. Having thus concluded that the evidence relating to the Buffington burglary was not admissible as establishing a common scheme or plan, we now consider and reject the determination by the Court of Special Appeals that it was nevertheless admissible as tending to establish the petitioner’s identity, the fifth exception we noted in Ross. 276 Md. at 669-70 , 350 A. 2d at 684 . In stating our reasons for this conclusion we call attention to the fact that, as pointed out in Professor McCormick’s treatise on evidence, “a need for proving identity is not ordinarily of itself a ticket of admission, but ... the evidence will usually follow, as an intermediate channel, some one or more of the other [exceptions].” McCormick’s Handbook of the Law of Evidence § 190, at 451 (2d ed. 1972). A reading of the many cases on the identity exception reveals a dearth of analysis which, in turn, only serves to highlight this exception’s amorphous nature.

One explanation of this ambiguity is given ⁴⁷⁷ by Wigmore when he says: “That the accused planned the act, had a motive for the act, bore traces of the act, and so forth, are all merely ‘identifying’ facts, because the real guilty person also must have planned, had a motive, borne traces, and the like.” 2 J. Wigmore, Evidence § 410, at 384 (3d ed. 1940). Whatever the reason, many courts appear to have used the identity exception as a sort of catch-all clause which is mixed into other exceptions or delineated separately depending on the needs of that court in a given case. Having studied the authorities, we conclude that perhaps the most useful analysis of the identity exception and its scope is contained in Underhill’s treatise on criminal evidence, in which it is stated that evidence of other offenses may be received under the identity exception if it shows any of the following: (a) the defendant’s presence at the scene or in the locality of the crime on trial; (b) that the defendant was a member of an organization whose purpose was to commit crimes similar to the one on trial; (c) the defendant’s identity from a handwriting exemplar, “mug shot,” or