Harris v. State

²⁵⁴ MOYLAN, Judge. The Maryland decisional law on the subject that some call “other crimes evidence” reflects the general state of the law elsewhere and gives no occasion for complaint. The language and the framework of analysis used by both appellate courts of this state to describe and to explain that law, however, leave much to be desired in terms of current usage. Our decisions are better than our opinions.

Ironically, the leading opinion on the subject, Ross v. State, 276 Md. 664 , 350 A.2d 680 (1976), is also the leading culprit. In addressing the primary issue raised on this appeal, we will attempt to bring our vocabulary and our organizational context more into line with prevailing linguistic and analytic conventions. The Present Case The appellant, Dwayne Harris, a/k/a Eric Harris, was convicted by a Baltimore City jury, presided over by Judge Roger W. Brown, of possession of cocaine with intent to distribute and of carrying a handgun. Upon this appeal, he raises the following two contentions: 1.

That his prior convictions for possession of heroin with intent to distribute should not have been admitted to prove his intent to distribute cocaine in the instant case; and 2. That the motion to suppress physical evidence seized in the course of a warrantless search was erroneously denied.. The appellant was one of three persons in an automobile stopped by the police on the night of November 21, 1987. A police search of the appellant revealed both a handgun and a plastic bag containing a significant quantity of cocaine.

Although the appellant did not take the stand, his counsel virtually conceded, in opening statement and closing argument, the simple possession of cocaine and directed the attention of the jury to the sufficiency of the State’s evidence to support the mens rea of intent to distribute. ²⁵⁵ Over objection, the State introduced two prior convictions of the appellant, one on April 1, 1985 and the other on July 22, 1985, for possession of heroin with intent to distribute. The trial judge instructed the jury with respect to the evidentiary significance of those prior convictions: “You have heard evidence in this case that the Defendant was on a prior occasion convicted of a crime of possession of heroin with intent to distribute which is not a charge in this case. You may consider that evidence in connection with all of the other evidence in this case, but only as it relates to the question of intent.” (Emphasis supplied). The appellant argues that evidence of “other crimes” to prove intent is forbidden by Ross v. State, supra.

The State counters that proof of intent is a well recognized exception to the rule forbidding evidence of other crimes. In a sense, they are both right. In a sense, they are both using antiquated and awkward tools of analysis. Federal Rule of Evidence 404 Although Maryland, of course, has not adopted the Federal Rules of Evidence, the Federal Rule on the subject now before us accurately summarizes our law.

Its statement of that law, however, is both in more general and in more neutral terms than is our own. Federal Rule 404(a) states a rule of exclusion when character evidence is offered to prove action in conformity with that character. It also recognizes three exceptions to that exclusionary rule. These are genuine exceptions whereunder the use of a character trait is permitted to prove conduct in conformity with that trait, rather than what Maryland uncritically calls “exceptions” which are rather instances not even covered by the terms of the exclusionary rule.

FRE 404(a) states: “(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: ²⁵⁶ (1) Character of the accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same; (2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; (3) Character of witness.

Evidence of the character of a witness, as provided in rules 607, 608, and 609.” FRE 404(b) goes on to state specifically one particular instance of the larger exclusionary phenomenon, that of where evidence of “other crimes, wrongs, or acts” is offered to prove that a person (generally the defendant) acted in conformity with such demonstrated bad character. In a separate sentence, the Rule then makes explicit what is otherwise implicit in any event: that the exclusionary provision does not even purport to cover situations where such evidence is offered for a purpose other than proving conduct in conformity with such character: “(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 that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” (Emphasis supplied).

With respect to evidence of other crimes, wrongs, or acts, there are two separate and complementary situations. When such evidence is offered to prove a criminal propensity, it is, subject to the exceptions spelled out in FRE 404(a), inadmissible. When such evidence, on the other hand, is offered for any other relevant purpose, it is, subject to the usual weighing between relevance and its counterweights, admissible. Neither rule is an exception to the other and there is no hierarchial “pecking order” between them. ²⁵⁷ Ironically, the Maryland case law prior to 1976 was very much more in tune with this evidentiary philosophy than it has been since then.

In Lowery v. State, 202 Md. 314 , 96 A.2d 20 (1953), Chief Judge Sobeloff explained, in scrupulously neutral terms, that evidence of “other unrelated crimes or misconduct” is inadmissible for the purpose of attacking the character of the accused but is admissible to show motive or intent. It was inadmissible for one purpose and admissible for others. Neither statement was an exception to the other. The criterion for determining admissibility or inadmissibility was simply the purpose for which the evidence was offered: “As a general rule, it is reversible error for the prosecution to attack the character of the accused before it has been put in issue by him, or to show other unrelated crimes or misconduct likely to cause prejudice against him.

Dobbs v. State, 148 Md. 34 , 129 A. 275 . But the rule is equally established that where the testimony shows motive or intent it is entitled to be admitted.” (Emphasis supplied). 202 Md. at 318 , 96 A.2d 20 . Indeed, as early as 1925, 1 the Court of Appeals recognized that there was no general exclusionary rule for evi ²⁵⁸ dence of other crimes but only a limited one where such evidence was offered to show conduct in conformity with bad character. In Dobbs v. State, 148 Md. 34, 46 , 129 A. 275, 280 (1925), Judge Offutt stated the law in a way that almost anticipated FRE 404: “These general rules appear to be almost universally recognized, first, that the character of a defendant in a criminal case is not an issue until he puts it in issue; second, that evidence of unconnected and unrelated crimes which do not show knowledge, motive, intent, a common scheme, or identification, is inadmissible against a defendant in a criminal case as tending to show that he committed the crime whereof he stands indicted in such case.” (Emphasis supplied).

Ross v. State (1976) Although some earlier linguistic slippage can be spotted, 2 it was the 1976 decision of Ross v. State, supra, that grammatically so restructured the statement of this law as to change its emphasis if not its substance. The exaggerated credibility given Ross by the subsequent case law, moreover, treating it virtually as a new dispensation, has com-, pounded the damage. Although a close and careful reading of Ross reveals that it did not change preexisting law, it nevertheless managed to put a semantic “spin” on the law that has handicapped subsequent attempts to get a firm grip on it. Instead of a neutral statement that the evidence in issue is inadmissible to show propensity but is, with equally enthusiastic endorsement, admissible for any other relevant ²⁵⁹ purpose, the restatement by Ross has had the practical effect of treating such evidence as presumptively inadmissible.

The State, instead of facing the routine task of showing relevance and overcoming its counterweights, faces the more daunting challenge of demonstrating a special exemption from an exclusionary norm. What has been subliminally influenced is the mind-set or “tilt” with which we approach the question. From the very way in which the proposition is stated, we find ourselves subconsciously predisposed toward exclusion “going in.” Even Inadmissible Evidence Is Not Irrelevant Our first criticism of Ross is a minor one. If the opinion is to be taken as an oracle, however, critical examination is appropriate.

Ross stated what purported to be the general rule, 276 Md. at 669 , 350 A.2d 680 : “The frequently enunciated general rule in this state, followed uniformly elsewhere, is 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.” (Emphasis supplied). Evidence of other crimes, at least when offered to show propensity, is, of course, generally inadmissible, as Ross correctly states. It is inadmissible, however, not because it is irrelevant, but for the very opposite reason that it is too relevant. Such evidence tends to make it more likely that a person with a criminal history committed the present crime than would be the case if no such history existed. 3 This is all that the relevancy requirement demands.

That relevance (in other contexts, not to be condemned) is massively outweighed, however, by the undue ²⁶⁰ significance that the fact finder might be tempted to give it. Dean Wigmore explained the policy behind the exclusion of such evidence: “It may almost be said that it is because of the indubitable relevancy of specific bad acts showing the character of the accused that such evidence is excluded. It is objectionable not because it has no appreciable probative value but because it has too much. The natural and inevitable tendency of the tribunal—whether judge or jury—is to give excessive weight to the vicious record of crime thus exhibited and either to allow it to bear too strongly on the present charge or to take the proof of it as justifying a condemnation, irrespective of the accused’s guilt of the present charge.” (Emphasis supplied).

IA Wigmore on Evidence § 58.2, at 1212 (Tillers rev.1983). See also Neam v. State, 14 Md.App. 180, 186-190 , 286 A.2d 540, 544-546 (1972). With respect to the relevance of such evidence, C. McCormick, Evidence § 190 (E. Cleary 3d ed. 1984), observed, at 557: “The evidence of bad character would not be irrelevant, but in the setting of the jury trial particularly the- dangers of prejudice, confusion and time-consumption outweigh the probative value.” (Footnotes omitted) (Emphasis supplied). This was, indeed, the very section of McCormick cited as authority for Ross’s statement of the general rule.

Ross’s observation about irrelevance was not only unsupported by its cited authority but was also unnecessary to its holding. Even conceding that evidence of other crimes has some relevance by no means concedes its admissibility. What is required, at one level or another, is the weighing process described by McCormick § 185, at 544: “[Rjelevant evidence is evidence that in some degree advances the inquiry. It is material and probative.

As such, it is admissible, at least prima facie. But this relevance does not ensure admissibility. There remains the question of whether its value is worth what it costs. ²⁶¹ A great deal of evidence is excluded on the ground that the costs outweigh the benefits.” Professor McLain refers to the same weighing process: “The trial court, in its discretion, may exclude relevant evidence if it believes that the probative value of the evidence is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading or distraction of the trier of fact, or waste of time, such as by needless presentation of cumulative evidence. Many specific rules of exclusion result from a weighing of probative value against these competing considerations.” (Footnotes omitted).

L. McLain, Maryland Evidence § 403.1, at 297-298 (1987) [hereinafter cited as McLain ]. And see Uviller, Evidence of Character To Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U.Pa.L.Rev. 845, 868 (1982): “However much common sense and ordinary intelligence may insist that evidence of criminal propensity is relevant, powerful considerations of policy preclude the use of prior convictions on the issue of guilt.” Indeed, the Ross opinion itself paradoxically seems to acknowledge that evidence of other crimes has at least prima facie relevance, as it finds it necessary to discuss the counterweights, 276 Md. at 669 , 350 A.2d 680 : “[Tjhere 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.” The very utilization of a weighing process necessarily implies the relevance of the evidence being weighed. Since irrelevant evidence is inadmissible per se, 4 there would be no occasion even to look at countervailing considerations with respect to it. ²⁶² The undeniable “clincher” with respect to the relevance of good or bad character to prove conduct in conformity therewith is the universally recognized rule that a defendant may introduce evidence of his good character, at least with respect to a pertinent trait, 5 to show the unlikelihood that he would have committed the crime charged. 6 A person of peaceful character, for instance, would be less likely to have committed the violent assault; 7 a person of chaste character, less likely to have engaged in the alleged immorality; a person of honest character, less likely to have perpetrated the mendacious fraud. 8 Once the defendant has put his character in issue, moreover, the State is free to counter-attack by showing bad character with respect to the trait that has been thrown into the hazard. 9 Thus, a violent defendant would be more likely to have flailed out in murderous rage; an unchaste defendant, more likely to have trafficked in wanton carnality; a deceitful defendant, more likely to have engineered the meretricious scam. “It takes a certain type :.When the only purpose of all of this is to show conduct in conformity with character, the defendant would hardly be permitted to consume valuable court time and to call witness after witness to show good character nor would the State be permitted to counter with proof of bad character, if such character evidence were, as ²⁶³ Ross states, irrelevant.

Simply because the initial election is with the defendant does not make relevant the irrelevant. On the isolated issue of relevancy, the Continental experience is illuminating. Although the Continental law and the common law, because of a different degree of solicitude for the criminal defendant, treat the admissibility of evidence of a defendant’s character differently, the question of logical relevancy—the naked validity of the syllogism—hardly changes as we cross the English Channel: “In the Continental traditions of criminal trials, evidence of the character of the accused (including specific prior acts) is given great consideration and is freely used. The exclusion of evidence of the character of the accused is one of the peculiar features of the Anglo-American system that distinguishes it from Continental systems.” (Footnotes omitted).

IA Wigmore on Evidence § 58.1, at 1212 (Tillers rev. 1988). On deductive validity, our ultimate authority is neither Ross nor even the Supreme Court but Aristotle. It is clear then that such evidence offered for such a purpose is, albeit inadmissible for other reasons, indisputably relevant. Notwithstanding that, the unthinking and at-times ritualistic incantation of Ross for thirteen years has caused the erroneous statement about irrelevancy to reappear so often and in so many places 10 that it is problematic ²⁶⁴ whether the error can still be excised before it hopelessly metastasizes.

The effort, nonetheless, should be made. The effort may not, indeed, be futile. A harbinger of better tidings has recently appeared in the excellent majority opinion of Judge Adkins in State v. Faulkner, 314 Md. 630 , 552 A.2d 896 (1989). Instead of falling into the easy habit of quoting or rehashing the standard “boilerplate” of Ross and its progeny, it is a fresh and meticulously careful statement.

Notwithstanding one minuscule verbal lapse 11 (even Homer nods), it is an unbiased presentation of what may be called the “ ‘Other Crimes’ Rule,” 314 Md. at 633-635 , 552 A.2d 896 , essentially unencumbered by the semantic baggage of Ross . Faulkner does not remotely suggest that “other crimes” evidence is irrelevant even when offered to prove only a propensity to commit “the offense for which he is on trial.” It is only because of its implicit relevancy that Faulkner turns to the counterweights as the rationale for its inadmissibility. “Evidence of other crimes may tend to confuse the jurors, predispose them to a belief in the defendant’s guilt, or prejudice their minds against the defendant.” 3) 4 Md. at 633, 552 A.2d 896 . Other salutary features of Faulkner’s refreshing restatement will be discussed hereinafter. It is to be hoped that Judge Adkins’ opinion is a watershed and will become the new doctrinal point of departure, even as Ross had been for the thirteen years that went before. ²⁶⁵ The Propensity Rule: A Limited Rule of Exclusion The primary criticism of Ross is that it stated its exclusionary principle far too broadly.

Instead of a carefully crafted rule prohibiting the proof of bad character to make the commission of the current crime more likely, it pronounced a sweeping ban (deferring for the moment the consideration of exceptions) on such evidence generally, regardless of purpose: “The frequently enunciated general rule in, this state, followed uniformly elsewhere, is 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.” (Emphasis supplied). 276 Md. at 669 , 350 A.2d 680 . In the immediate wake of Ross, Cross v. State, 282 Md. 468, 473 , 386 A.2d 757, 761 (1978), spoke, if anything, in more absolute and certainly in more hyperbolic terms: “[TJhere 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.” (Emphasis supplied). The exclusionary principle involved is far more narrow than Ross and Cross would indicate. Evidence of other crimes or wrongful acts—of bad character—-is inadmissible when offered initially by the State only when it is offered for the purpose of showing the defendant’s criminal propensity and, therefore, the greater likelihood that he committed the crime charged.

This is the accepted and conventional statement of the exclusionary principle today not only according to FRE 404 but throughout the academic community. McLain § 404.1, at 342, describes the rule: “When character is not directly in issue, but character evidence is offered to show that a party is a ‘good’ or ²⁶⁶ ‘bad’ person, either in general or with regard to a particular trait, and thus did the ‘right’ or ‘wrong’ thing in the incident which led to the trial, it is inadmissible. This rule of general exclusion of character evidence when offered to prove that a person acted in accordance with his or her character on a particular occasion is known as the propensity rule.” (Footnote omitted) (Emphasis supplied). The same Propensity Rule, by name, is recognized and discussed in Harvard Comment, at 435-436: “In the common law system the prosecutor has traditionally been prohibited from introducing evidence of a defendant’s character solely to prove his propensity to commit the crime charged.

In a prosecution for theft, for example, the prosecutor may not introduce evidence of prior stealing or dishonest reputation, despite the conceded relevance of such evidence to the question of whether the defendant committed the crime of which he is accused. Today this rule, hereinafter referred to as the ‘propensity rule,’ is ... considered basic to the common law system____ [T]he propensity rule is accepted by all jurisdictions as a common law or statutory rule of evidence.” (Footnotes omitted) (Emphasis supplied). And see Comment, Other Crimes Evidence at Trial: Of Balancing and Other Matters, 70 Yale L.J. 763 , 766 (1961) [hereinafter cited as Yale Comment ]: “All jurisdictions observe the requirement that no evidence may be admitted which tends solely to prove that the accused has a ‘criminal disposition.’ The rationale for this absolute prohibition is that such evidence is always more prejudicial than probative.” (Footnotes omitted). An immediate benefit of the Propensity Rule is that its very name serves to keep both its purpose and its limits at the front of the mind.

With respect to the Propensity Rule, all of the authorities agree that the relevance or probative value of the evidence is outweighed by the dangers of undue preju ²⁶⁷ dice and of confusing or distracting the jury with a side issue. 2 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 404[04], “Overview of the Propensity Rule” (1982), explains the rationale, at 404-26: “The rationale underlying this exclusionary rule, sometimes termed ‘the propensity rule’ has been expressed as follows: The rule is justified primarily on the ground that the probative value of propensity evidence is outweighed by its prejudicial effect on a jury. The introduction of such evidence is said to create a danger that the jury will punish the defendant for offenses other than those charged, or at least that it will convict when unsure of guilt, because it is convinced that the defendant is a bad man deserving of punishment. In addition, it is argued that the jury might be unable to identify with a defendant of offensive character, and hence tend to disbelieve the evidence in his favor. At the least, it is said that such evidence would be given greater probative weight than it deserves, and so lead to convictions on insufficient evidence.” (Emphasis supplied).

McCormick § 186, at 549, observes, “Evidence of the general character of a party or witness almost always has some probative value, but in many situations, the probative value is slight and the potential for prejudice large.” (Footnotes omitted). (Emphasis supplied). McLain § 404.1 explains the reason behind the exclusion, at 343-344: “The general rule of exclusion of character evidence as proof of a person’s conduct, therefore, stems at least in part from a fear that the fact-finder will give undue weight to character evidence. We do not wish to offer the jury an opportunity to punish a party because of his past, rather than because of the merits of the facts directly relating to the ease.” (Footnote omitted).

Although the Propensity Rule grew out of the balancing process that McCormick, Title 7, at 540, calls “Relevancy and Its Counterweights,” that weighing process is no longer committed to the trial judge on a case-by-case basis. The ²⁶⁸ weighing has already been done at a higher level and has produced a general rule of exclusion as a matter of law. As McCormick § 190 points out, at 565: “When the sole purpose of the other crimes evidence is to show some propensity to commit the crime at trial, there is no room for ad hoc balancing. The evidence is then unequivocally inadmissible—this is [the] meaning of the rule against other crimes evidence.” (Footnote omitted).

The only true exceptions to the Propensity Rule are those cases where character evidence is admissible to show propensity for the further purpose of showing conduct in conformity with that propensity, 12 such as: ²⁶⁹ 1) Where the defendant has placed a pertinent trait of his character in issue and where the State rebuts the same; 13 2) Where the defendant has placed the character of the victim for violence in issue and the State rebuts the same; 14 and 3) Where a witness places his character for credibility in issue by taking the stand. 15 In the case at bar, evidence of the appellant’s two prior convictions for possessing heroin with intent to distribute was not offered to prove the appellant’s general propensity toward crime. Indeed, the appellant—in opening state ²⁷⁰ ment, in his motion for judgment of acquittal, and in closing argument—conceded the simple possession of cocaine. The only issue was whether the appellant had the mens rea of an intent to distribute. That was an element of the crime charged.

Whatever the fate of such evidence may be as we turn in a moment to the question of relevancy and its counterweights, it clearly did not fall under the exclusionary sword of the Propensity Rule. The So-Called “Exceptions” Are Not Exceptions As an inevitable consequence of stating the exclusionary principle overbroadly, an open-ended number of legitimate uses of evidence 16 are reduced to the presumptively suspect status of “exceptions” from an exclusionary norm. We have already discussed the unfortunate “tilt” or subconscious bias that this places upon uses of evidence that have no business being cast in such a shadow. In Tichnell v. State, 287 Md. 695, 711 , 415 A.2d 830, 839 (1980), Chief Judge Murphy began to move away from this treatment of these legitimate purposes as “second class” evidentiary phenomena when he referred to some of them as “[sjome of the well-established categories of evidence outside the ambit of the narrow rule of exclusion.” Whenever evidence of prior misconduct is offered for any purpose other than to show propensity, it is, subject only to the. universal balancing of relevance and its counterweights, presumptively admissible.

It should be so stated ²⁷¹ in affirmatively inclusionary terms. McLain § 404.5 does so, at 353: ' “Evidence of prior conduct or misconduct may be received, however, in both civil and criminal cases if substantially relevant to some contested issue in the case other than to show conformity with that prior conduct. Such evidence may be admissible for the limited purpose of proving, for example, motive, opportunity, intent, preparation, plan, common scheme, knowledge, identity, or absence of mistake or accident. The case law does not purport to have anticipated all purposes for which evidence may be offered other than propensity to act as one has in the past.

As long as the evidence is not offered for propensity, but for another issue material to the case, the court may admit it.” (Footnotes omitted) (Emphasis supplied). It is similarly expressed in Harvard Comment, at 439: “Evidence of the defendant’s prior misconduct is admissible in the prosecutor’s case-in-chief if it is relevant for some other purpose than merely to show that the defendant is the sort of person who would be likely to commit the crime with which he is charged.” (Footnote omitted). Indeed, State v. Faulkner asserts an inclusionary principle in affirmative terms so long as the evidence is offered for some purpose other than to show guilt based upon propensity: “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.” 314 Md. at 634 , 552 A.2d 896 . In the earlier case of Waddell v. State, 65 Md.App. 606, 610 , 501 A.2d 865, 867 (1985), Judge Karwacki for this Court largely avoided the linguistic snares of Ross and stated an affirmative rule of admissibility when the purpose is other than to show propensity: ²⁷² “[I]t is also true that evidence 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 choosing the most felicitous way in which to express the rule or rules, there is more involved than a Thomistic exercise in counting the angels on the head of a pin. 17 The answer we get to a given problem is frequently a function of the way in which we ask the question.

Whether we ultimately merge them together or not, we are really talking about two separate rules: 1. The Propensity Rule: When evidence of other crimes is offered to prove criminal propensity, it is, subject to several limited exceptions, inadmissible. 2. When evidence of other crimes is offered to prove a material fact other than propensity, the evidence is, subject to the balancing of relevance and its counterweights, admissible. There is a simple symmetry to this that eliminates the skewed perspective that attends the Ross formulation.

It is grammatically possible, of course, as much of the case law has tried to do, to construct an omnibus rule with respect to “other crimes and bad acts” evidence generally. Even in such a case, however, the rule can take either of two diametrically opposed forms. It may be, as in Ross and its progeny, an exclusionary rule with a long and theoretically open-ended list of exceptions. The exceptions are so numerous that they “at times appear to swallow the rule,” Cross v. State, supra, 282 Md. at 473 , 386 A.2d 757 , and what is in actuality a rule of general admissibility masquerades as a rule of exclusion.

See Yale Comment, at 767: ²⁷³ “Some courts using the language of ‘exclusion’ admit of so many acceptable uses of other crimes evidence that, in practical fact, the standard applied is as liberal as that articulated by ‘inclusionary’ courts.” (Footnote omitted). Another flaw, looking at the extant efforts to state an exclusionary rule with a long list of exceptions, is the failure of such a formulation to express the only policy reason that rationally explains the difference between what is excluded and what is admitted—the distinction between the purpose of showing propensity and the purpose of showing every material fact other than propensity. There is, moreover, no necessity for a constantly growing list of so-called “exceptions” when there is a readily available common denominator formulation that embraces them all. The opposite way to construct an omnibus rule is as an inclusionary rule with a single exception when the evidence is offered to show propensity.

An inclusionary rule with a single exception is far more efficient than an exclusionary rule with an infinite number of exceptions. English courts have taken just such an inclusionary stance that unless the evidence demonstrates only propensity and nothing more, it is admissible. See Regina v. Lawson, 4 W.W.R. 350 (1971); McLain § 404.5, at 354 n. 5. And see United States v. Diggs, 649 F.2d 731, 737 (9th Cir.1981).

The American trend is in this direction. As noted in Yale Comment, at 767: “The federal courts and a small but growing number of states do not impose this exclusionary requirement; these jurisdictions have adopted an ‘inclusionary’ rule under which they admit all other crimes evidence relevant to an issue in the trial, except that which tends to prove only criminal disposition.” (Footnote omitted). See also Harvard Comment, at 439 n. 82: “There are two somewhat different rules. The ‘inclusionary’ rule includes all relevant evidence save that tending only to prove propensity.

The ‘exclusionary’ rule is more artificial and rigid in application, excluding all evidence except that which fits within certain traditional catego ²⁷⁴ ries, such as motive or intent. The latter is now followed in the majority of jurisdictions, although the trend is toward the ‘inclusionary’ rule.” And see Model Code of Evidence Rule 306 (1942). In two landmark articles in the Harvard Law Review in 1933 and 1938, Professor Julius Stone definitively analyzed the development of the law dealing with evidence of other crimes and bad acts, both in England and America, and traced the development of the linguistic confusion that has bedeviled that law. Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv.L.Rev. 954 (1933) [hereinafter cited as Stone /]; Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988 (1938) [hereinafter cited as Stone //].

The 1810 decision of Rex v. Cole, 18 recognized as the starting point for the common law upon this subject, established a narrow exclusionary principle for the single case where evidence is offered to show only propensity: “Rex v. Cole in 1810 established the principle that evidence which merely showed that the defendant had a propensity to do the sort of acts with which he was charged, was not admissible. This is a very narrow principle of exclusion, and not many cases during this period fall within it. On the other hand, the cases where evidence of similar facts was not excluded are numerous.” (Footnote omitted). Stone I, at 960-961.

In the English case law through the mid-19th century, there was no confusion as to the narrow limits of that exclusionary rule: “[T]here never did exist any rule of evidence in England excluding proof of other offences of the accused where such proof was relevant to a fact in issue. All that there was to be found was a very narrow rule excluding proof where the relevance was merely to the evil disposition of ²⁷⁵ the accused. Consequently the admission of similar facts where relevant to guilty knowledge in forgery and receiving cases was not, nor was it regarded at the time, as in any sense a derogation from the rule of exclusion. Such evidence was admitted not under exceptions to the rule, but as wholly outside its scope.” Stone II, at 990-991.

This was precisely the law that the early American cases followed: “There can be little doubt, therefore, that the early American courts thought that they were applying the English rule. What that English rule in reality was has been established in an earlier study. It did not exclude all similar bad acts, but only acts relevant merely through disposition.” Stone II, at 993. In the latter half of the 19th century, neither English nor American courts ever set out to change that law by way of overt policy choice.

They both, however, fell into careless drafting habits. Precedents were invoked mechanically without conscious thought as to the deeper principles under-girding them: “Here the court is in a very interesting way doing what later became a staple habit of both English and American judges, namely, losing sight of the ultimate principle behind the original rule.” (Footnote omitted). Stone II, at 1002. Through the slack handling of precedent, courts began to treat what had earlier been no more than illustrations of relevant purposes as a fixed list of authoritative precedents.

Under what Professor Stone called “a process of fossilization,” Stone II, at 1021, a new use of evidence would be tested not against the proper criterion of relevance but by a matching test against each of the authorized purposes already locked into the law. If it did not match one of them, it did not pass muster under the specious notion that there was thus no precedent for admissibility. An open-ended test of relevance inadvertently hardened into a set list of past uses. That rigidified list, in its turn, came to be viewed as the settled sum total of ²⁷⁶ “exceptions” to an exclusionary principle that itself had never consciously been promulgated and had simply and uncritically been assumed to exist.

Out of this basic failure of understanding, came the split between what Professor Stone called “the original rule” and “the spurious rule”: “The conflict was between the original rule which only excluded similar fact evidence when relevant merely to disposition, and a much broader spurious rule excluding all similar facts except those falling within a few closed categories settled by earlier decisions. Two rules so different were bound to cause and did cause inconsistencies.” Stone II, at 989. The original rule was clear: “[OJnly evidence relevant merely to propensity was excluded. Hence admissibility depended upon the answer to one simple question.

Is this evidence in any way relevant to a fact in issue otherwise than by merely showing propensity?” Stone II, at 1004. The spurious rule turned the original rule inside out: “The writer will call this form ‘the spurious rule’____ In the place of the inquiry—is this evidence relevant otherwise than merely through propensity? there is immediately substituted the inquiry—does this evidence fall within any exception to the rule of exclusion?” Stone II, at 1005. An unfortunate but natural by-product of the spurious rule was this fossilization or ossification of what the rule insisted upon calling “exceptions”: “In many exclusionary jurisdictions, the list of permissible uses for other crimes evidence has become crystallized through codification or stare decisis, and some courts have rigidly adhered to a particular list of categories.” (Footnotes omitted). Yale Comment, at 767.

The unintended casualty was evidentiary relevance itself. ²⁷⁷ “To the extent that permissible uses are not expanded when new evidentiary relationships are encountered, the list of permissible uses becomes an inaccurate index of relevancy. It is more likely to be a somewhat arbitrary collection of historically accepted rules." (Footnotes omitted). (Emphasis supplied). Yale Comment, at 768.

The handling of the so-called “exceptions” by Ross and its progeny is a textbook example of what Professor Stone referred to as this “somewhat arbitrary collection of historically accepted rules.” Ross states, 276 Md. at 669-670 , 350 A.2d 680 : “There are exceptions to this general exclusionary 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____ 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." (Citations omitted). Professor Stone condemned this fossilization as one of the inevitable and unfortunate consequences of the spurious rule: “First in importance should be placed the inevitable tendency of the common law to categorize the application of a broad principle into minor rules, which, invented as illustrations and as an aid to memory, end unless checked by displacing the principle altogether.

So the exceptions first appear as illustrations of relevance, to aid future ²⁷⁸ application. Then they are regarded as exhaustive, and when they are so regarded it follows that all evidence of other offences not within them is inadmissible, and the spurious rule is then complete.” Stone II, at 1035. The process by which this deterioration took place was not deliberate. It was simply an unintended result of flaccid and imprecise thinking.

Courts frequently wandered back and forth between contradictory positions without even realizing that they were doing so: “The spurious rule grew up imperceptibly after 1840. It did not displace the original rule; they were applied side by side by the courts of the various states, often at different times in different cases in the courts of the same state, sometimes indeed at the same time in the same case by different judges of the same court, and finally, even on occasion by the same judge in the same opinion.” (Footnote omitted). Stone II, at 1034. Regretably, this seems to have been Maryland’s fate.

To their credit, the English spotted the linguistic and doctrinal drift in Makin v. Attorney-General or New South Wales [1894] A.C. 57 and brought the slide to an abrupt halt. From that day to this, the English rule is free from doubt: “The rule of exclusion as it exists in the English decisions today may be stated as follows: Evidence which is relevant merely as showing that a person has a propensity to do acts of a certain kind is not admissible to prove that he did any such acts.” Stone I, at 976. All other proffered uses of such evidence are subjected only to the general test of relevancy and its counterweights. The American case law, fragmented into half a hundred jurisdictions, has unfortunately not responded with the same intellectual rigor: “[W]hereas in England the original rule emerged from the crisis completely rehabilitated, and has since that time enjoyed almost undisturbed freedom from the disorder of ²⁷⁹ its spurious parasite, in America the result was less decisive.” (Footnote omitted).

Stone II, at 1023. Professor Stone concluded by sounding a challenge: “[A]s to those courts, and there are many, whose decisions have wavered with the incertitude of incomprehension between the original and spurious rules, applying at one time one, at another another, or to one crime one, and to one crime another, we would say—choose your feathers! Let the choice be made in full knowledge of the difference between the two rules, of the uncertain parentage of the spurious one, and the increased difficulties of application which it causes.” Stone II, at 1037. Let our response to that challenge be clear.

Without changing Maryland’s actual decisional law in any way (it is neither our prerogative nor our desire to do so), our opinions explaining our decisions will be framed in inclusionary rather than exclusionary terms. This is the unmistakable dictate of the more advanced and better thought on the subject. Congress, in amending the Advisory Committee’s draft of FRE 404(b), deliberately changed, the language in order to stress the inclusionary character of the rule. The report of the House Committee on the Judiciary explained: “The second sentence of Rule 404(b) as submitted to Congress began with the words ‘This subdivision does not; exclude the evidence when offered’.

The Committee amended this language to read ‘It may, however, be admissible’, the words used in the 1971 Advisory Committee draft, on the ground that this formulation properly placed greater emphasis on admissibility than did the final Court version.” H.R.Rep. No. 650, 93d Cong., 1st Sess. 7 (1973). United States v. Long, 574 F.2d 761, 766 (3d Cir.1978), commented upon the significance of the change: “The draftsmen of Rule 404(b) intended it to be construed as one of ‘inclusion/ and not ‘exclusion.’ They intended to emphasize admissibility of ‘other crime’ evidence. This emerges from the legis ²⁸⁰ lative history which saw the 'exclusionary’ approach of the Supreme Court version of Rule 404(b) modified.” See McLain § 404.15, at 381.

Inherent in this approach is the rejection of any notion that there is a finite list of neatly compartmentalized “exceptions.” What have been called “exceptions” are but illustrations of some of the more familiar relevant purposes other than the showing of propensity. Indeed, the conceptualization of legitimate evidentiary uses as fitting into a small group of mutually exclusive compartments serves only to confuse rather than to facilitate understanding. Proof of motive, for instance, is almost invariably proof of intent as well. Proof of motive, moreover, is one way of proving identity.

Proof of intent, in turn, is ipso facto proof of knowledge and is also disproof of accident or mistake. See, e.g., Nelson v. State, 5 Md.App. 109, 121-122 , 245 A.2d 606, 613 (1968); Anaweck v. State, 63 Md.App. 239, 257-259 , 492 A.2d 658, 667-669 (1985). Proof of intent may also prove a plan or design and vice versa. 19 The very idea of a lengthy, albeit neat and tidy, laundry list of purposes is an absurdity when the only pertinent question needs to be whether the evidence is relevant to pi ove guilt in some way other than by showing propensity. 20 The Comment, Evidence of Other Crimes as Substantive Proof of Guilt in Maryland, 9 U.Balt.L.Rev. 245, 267-268 (1980), enthusiastically endorses such an approach: ²⁸¹ “Current British Commonwealth cases, using essentially the same inclusionary rule as formulated by Stone, have set forth the criterion that unless the evidence of other crimes demonstrates propensity and nothing else, it is admissible. Such a rule represents a better alternative to the confusion the exclusionary rule has spawned because it directly focuses on the policy the courts seek to implement.

It seeks the avoidance of convictions bottomed solely on propensity. Furthermore, those few American jurisdictions using an inclusionary rule at one time or another experienced no apparent difficulty applying that rule. At the very least this approach would eradicate the cumbersome exclusionary rule and its eight ill-defined exceptions.” (Footnotes omitted). This was also the approach taken by the Fourth Circuit in United States v. Woods, 484 F.2d 127 (4th Cir.1973).

The defendant, charged with the death by suffocation of her infant foster son, objected to evidence demonstrating that beginning in 1945, the defendant had had custody of or access to nine children who suffered at least twenty cyanotic (deprived of oxygen) episodes resulting in seven deaths. 21 The evidence did not fit squarely into any of the so-called “exceptions” to the exclusionary rule. Judge Winter abandoned the effort to pigeonhole the relevant purpose and stated that the better cases hold that relevant evidence, subject to the usual balancing, is admissible as long as it is not offered for the sole purpose of showing criminal propensity. He reasoned, at 134: “[Ejvidence of other offenses may be received, if relevant, for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime, provided that the trial judge may exclude the ²⁸² evidence if its probative value is outweighed by the risk that its admission will create a substantial danger of undue prejudice to the accused.” (Footnote omitted). Relevance: Materiality Plus Probity If, as here, the purpose for which the “other crimes” evidence is offered does not fall under the exclusionary prohibition of the Propensity Rule, as typified by FRE 404, what other evidentiary rules then govern its admissibility?

Once again, both the Maryland law and the general law are accurately reflected in FRE 402 and FRE 403. FRE 402 (as well as Unif.R.Evid. 402 (1974)) provides, in pertinent part: “All relevant evidence is admissible, except as otherwise provided____ Evidence which is not relevant is not admissible.” 22 State v. Faulkner wisely directs that the very first question “a trial court is faced with” is to determine whether “evidence that relates to an offense separate from that for which the defendant is presently on trial” is relevant within the contemplation of our “other crimes” law. 314 Md. at 634 , 552 A.2d 896 . On the isolated issue of relevance (deferring for the moment the follow-up issue of