Harris v. State

McAULIFFE, Judge. Dwayne Harris was arrested on 21 November 1987, in Baltimore City, after the vehicle in which he was riding was stopped for speeding. The police found a plastic bag containing 13.3 grams (approximately one-half ounce) of cocaine in the defendant’s shirt pocket and a loaded .25 caliber semi-automatic pistol in the right front pocket of one of the two pairs of pants the defendant was wearing. The defen ⁴⁹² dant was charged with various narcotics and handgun violations and was ultimately convicted by a jury of possession of cocaine with intent to distribute, Maryland Code, Art. 27, § 286(a)(1) (1957, 1987 Repl.Vol.), and unlawfully carrying a handgun, Art. 27, § 36B.

He was sentenced to a total of 18 years confinement, during the first ten of which he is not eligible for parole. The defendant appealed to the Court of Special Appeals, contending that the tangible evidence seized from him should have been suppressed and that the trial judge had erred in admitting, as substantive evidence in the State’s case in chief, evidence of two prior convictions for possession of heroin with intent to distribute entered more than two years earlier. The Court of Special Appeals affirmed, Harris v. State, 81 Md.App. 247 , 567 A.2d 476 (1989), and we granted the defendant’s petition for certiorari to consider the admissibility of evidence of the two prior convictions. I. Having been unsuccessful in his attempt to suppress the tangible evidence, defendant’s attorney conceded in his opening statement to the jury that the State’s evidence would show that the defendant possessed one-half ounce of cocaine and that the defendant was therefore guilty of the charge of simple possession.

He informed the jury that the substantial question in the case would be whether the defendant intended to distribute the cocaine or merely possessed it for his own use. The State presented evidence which would have supported, but which did not compel, a finding that the defendant possessed the cocaine with the intent to distribute it. The State showed that the cocaine was 70 percent pure; that traffickers usually dealt in cocaine having a high purity; that the cocaine had a street value in its present form of $900 to $1,000; and that the cocaine could be “cut” to a “street strength” of 20 percent and then sold in small quantities for a total of $4,500. The State also showed that ⁴⁹³ $800 in cash was seized from the driver, and an additional $190 was found in the vehicle.

Detective Robert Patton was qualified as an expert in the trafficking and use of narcotics. He testified that most drug traffickers carry weapons and that they often use rental vehicles, as happened here. He opined, without objection, that based upon all the facts, the defendant was about to engage in the distribution of the cocaine he possessed. The defendant, through cross-examination of Detective Patton, showed that a user who wished to “free-base” cocaine would require a high level of purity; that a user who intended to convert this amount of cocaine to “crack” in order to smoke it would consume it in a “couple of days of smoking”; that an affluent user might be expected to buy one-half ounce of cocaine of this purity for his own use; and that no money was found on the person of the defendant.

To bolster the evidence of the defendant’s intent to distribute, the State, relying heavily upon the case of Anaweck v. State, 63 Md.App. 239 , 492 A.2d 658 (1985), offered proof of prior convictions of the defendant for possession of heroin with the intent to distribute. The State argued that evidence of prior convictions relevant to the question of intent is admissible as an “exception” to the general rule that evidence of other bad acts by a defendant should not be admitted. Counsel for the defendant objected. He said: “If a guy said ‘I purchased the cocaine from Eric Harris two days before, one day before,’ as in the Anaweck case, that clearly is an indication of an exception that is allowed under the Anaweck case.” He went on to argue, however, that convictions which had occurred more than two years earlier (and which necessarily related to transactions that had ⁴⁹⁴ occurred at an even earlier time 1 ) were too remote to furnish relevant evidence of the defendant’s present intent that was sufficiently strong to overcome the unfairly prejudicial effects of the evidence.

The trial judge, finding that the defendant’s intent was at issue and that the prior convictions furnished relevant evidence bearing on that intent, overruled the defendant’s objection and admitted the evidence. At the time the evidence was placed before the jury, and at the conclusion of all the evidence, the trial judge instructed the jury that the evidence of the defendant’s prior convictions could be considered only as it related to the question of intent. Considering the defendant’s appeal, the Court of Special Appeals reviewed the history and development of the law dealing with the admissibility of evidence of crimes, wrongs, or acts other than those with which the defendant is charged. The intermediate appellate court offered considered criticism of the development of this aspect of the law in Maryland, concluding that uncritical analysis had caused a shift from the rule of inclusion originally formulated to a “spurious” rule of exclusion having limited exceptions.

Har ris v. State, supra, 81 Md.App. at 258-85 , 567 A.2d 476 . The Court held, however, that the evidence was admissible under either version of the rule. We have re-examined the principles governing admissibility of evidence of other bad acts and have considered the current legal literature discussing the “inclusionary” and “exclusionary” approaches to the problem. We recognize that in some respects the question involves semantics— more particularly, how one defines the “rule” that shall ordinarily govern.

In other and important respects, the question involves the desired implication of the rule and the necessity for effective application by those who will use it in a trial setting. For reasons to be discussed, we conclude ⁴⁹⁵ that continued adherence to the “exclusionary” approach is appropriate. When evidence of other bad acts is excluded, it is not because that evidence is irrelevant. The relevance of such evidence has been discussed, and its admissibility approved for other purposes, in a variety of cases.

For example, evidence of prior bad acts has been held relevant to a determination of probable cause. See United States v. Harris, 403 U.S. 573, 580-81 , 91 S.Ct. 2075 , 29 L.Ed.2d 723 (1971) (reputation of defendant over preceding four years as “being a trafficker of nontaxpaid distilled spirits” properly considered in determining probable cause for search warrant); Jones v. United States, 362 U.S. 257, 271 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960) (“that petitioner was a known user of narcotics made the charge against him much less subject to scepticism than would be such a charge against one without such a history”); Malcolm v. State, 314 Md. 221, 232-33 , 550 A.2d 670 (1988) (prior criminal history properly considered in determining probable cause); Gatewood v. State, 244 Md. 609, 616 , 224 A.2d 677 (1966) (“Knowledge of prior convictions of person observed is one of the elements to be considered in determining whether there is probable cause.”). Additionally, evidence of prior bad acts suggesting a vicious or criminal propensity has been held relevant in certain types of civil cases. For example, failure to make reasonable inquiry concerning the history of a prospective employee with respect to prior bad acts may, under some circumstances, constitute negligence on the part of an employer.

Henley v. Prince George’s County, 305 Md. 320 , 503 A.2d 1333 (1986); Cramer v. Housing Opportunities Comm’n, 304 Md. 705 , 501 A.2d 35 (1985). First in England, and later in this country, it was recognized that evidence of other bad acts, although relevant and having some probative force, presented certain problems. Professor Stone, in his article The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv.L.Rev. 954, 957-58 (1933) lists three concerns: ⁴⁹⁶ In the first place, even though such similar facts might be of probative weight in relation to the fact alleged, they influence the minds of the jurymen unduly: “when the crime alleged is one of a revolting character ... and the hearer is a person who has not been trained to think judicially, the prejudice must sometimes be almost insurmountable.” Second, such evidence is said to be excluded because its introduction surprises the defendant unfairly, compelling him, at a moment’s notice, to answer charges concerning the whole of his past life. Third, the introduction of such evidence is said to bring in collateral issues of which there would be no end.

(Footnotes and citations omitted.) The problem of surprise of which Professor Stone spoke in 1933 may have been somewhat alleviated by current disclosure and discovery procedures in criminal cases, or may be avoided by giving a defendant actual notice of the evidence that the State intends to introduce. The problem of injecting endless collateral issues into a case is largely avoided by granting the trial judge considerable discretion to determine, upon a proffer of evidence, whether clear and convincing evidence of the commission of the other bad acts can be produced without undue delay or confusion. See Cross v. State, 282 Md. 468, 478 , 386 A.2d 757 (1978). One may not so readily, however, prevent a jury from improperly using evidence of other bad acts or giving it more weight than it deserves.

It is largely the fear that jurors will conclude from evidence of other bad acts that the defendant is a “bad person” and should therefore be convicted, or deserves punishment for other bad conduct and so may be convicted even though the evidence is lacking, that led to the policy that other bad acts should be excluded if they showed no more than that the defendant was a bad person. Evidence of other bad acts may, however, be admissible if it is relevant to the offense charged on some basis other than mere propensity to commit crime, and if it passes muster under the ever-present test of balancing relevance ⁴⁹⁷ against unfair prejudice. The Supreme Court said in Huddleston v. United States, 485 U.S. 681, 686 , 108 S.Ct. 1496, 1499-1500 , 99 L.Ed.2d 771 (1988): The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character. This Court said in State v. Faulkner, 314 Md. 630, 634 , 552 A.2d 896 (1989): Evidence of other crimes may be admitted, however, if it is substantially relevant to some contested issue in the case and if it is not offered to prove the defendant’s guilt based on propensity to commit crime or his character as a criminal.

Similarly, the Court of Special Appeals said in Waddell v. State, 65 Md.App. 606, 610 , 501 A.2d 865 (1985): [Ejvidence of other crimes is admissible when the evidence is substantially relevant for some other purpose than to show that the accused committed the crime on trial because of his criminal character. In the instant case, the Court of Special Appeals observed that the Maryland courts have tended, at least in recent times, to express the rule in exclusionary terms—that evidence of other bad acts is generally inadmissible unless it falls within certain exceptions. Harris v. State, supra, 81 Md.App. at 258-59 , 567 A.2d 476 . The intermediate appellate court pointed out that a potential vice of the exclusionary approach is that it suggests the existence of a finite number of “exceptions” to inadmissibility and that unless a proposed item of evidence can be matched with one of the exceptions it cannot be admitted.

As we shall endeavor to make clear, admissibility of evidence of other bad acts is not confined to a finite list of exceptions, even under the exclusionary rule. Evidence of other acts that has sufficient relevance, other than merely by showing criminal character, may be admissible. The so-called exceptions are helpful as classifications ⁴⁹⁸ of those areas where evidence has most often been found admissible even though it discloses other bad conduct, enabling the bar and bench to quickly focus upon the areas most likely to be involved. Yet, anointing “exceptions” as the keys to admissibility may direct attention away from the basic rule and its purpose and result in improper admission of evidence.

For example, “intent” is listed as an exception to the rule of excluding other bad acts evidence. That does not mean, however, that whenever intent is an issue in a case, evidence of a prior bad act that is relevant to intent is automatically admissible. If the relevance of the prior bad act is limited to a showing of general criminal propensity, the evidence should be excluded. When evidence of other bad acts is relevant for reasons other than general criminal propensity, the trial judge must determine “whether the accused’s involvement in the other crimes is established by clear and convincing evidence.” State v. Faulkner, supra, 314 Md. at 634, 552 A.2d 896 ; see also State v. Cross, supra, 282 Md. at 478 , 386 A.2d 757 .

If this requirement is met, the trial judge must then carefully weigh the necessity for and probative value of the evidence of other bad acts against any unfair prejudice likely to result from its admission. Id. 314 Md. at 635, 552 A.2d 896 . How best, then, to state a rule that will most efficiently convey appropriate concern for the potential of unfair prejudice that necessarily accompanies evidence of other bad acts,