Howard v. State

McAULIFFE, Judge. This case involves the admissibility of two items of “other crimes” evidence. The defendant, Betty Lou Howard, was involved in a public altercation with Shirley Carter on 28 April 1988, in Edgewater, Maryland. Anne Arundel County police officers were summoned to the scene, where they ⁵⁰⁸ arrested the defendant and impounded her automobile.

A search of the defendant’s automobile 1 produced, among many other items, an unloaded pistol from beneath the driver’s seat, as well as phencyclidine (PCP), parsley flakes, a small reddish-brown bottle, and cigarette rolling papers from the rear passenger area. The defendant was charged with possession of PCP, possession of PCP with the intent to distribute, carrying or transporting a handgun, assault, and battery. A jury of the Circuit Court for Anne Arundel County found the defendant guilty on all counts, and she was sentenced to 10 years without parole on the charge of possession of PCP with intent to distribute, a two-year concurrent term for battery, and a consecutive two-year term for the handgun conviction. 2 The Court of Special Appeals affirmed in an unreported opinion, and we granted certiorari to consider the following question: Did the court below err in holding that evidence of prior bad acts on the part of a defendant, which tends to show that [s]he is in the “habit of selling” drugs, is relevant as proof of the defendant’s intent in a case charging the possession of drugs with the intent to distribute them; and did the court further err in holding that admission of the contested evidence in the instant case was in any event harmless? The two items of “other crimes” evidence introduced by the State, purportedly as evidence of the defendant’s intent, involve 1) the defendant’s conviction of possession of PCP with the intent to distribute on 9 July 1986, and 2) the alleged sale of PCP by the defendant to Shirley Carter two days before the incident in question, as well as related matters testified to by Shirley Carter.

The defendant ar ⁵⁰⁹ gues that evidence of her conviction more than 21 months before the incident involved in this case was clearly inadmissible because it showed nothing more than propensity for criminal activity, and its potential for unfair prejudice substantially outweighed any probative value it may have had. She concedes that evidence of her sale of PCP two days before the incident presents a “much, much closer” case for admissibility, but argues it is inadmissible as well. To fully consider the issues, a more detailed explanation of the facts is in order. I. In April of 1988, the defendant and Shirley Carter lived within a block of each other in the Woodland Beach community of Edgewater.

Their versions of what occurred on 28 April 1988, and indeed on earlier occasions, are widely disparate. Neither version inspires great confidence in its accuracy. Shirley Carter testified to the following events. At about 6:00 p.m. on 18 April she was preparing to leave her home to purchase beer, when she found her driveway blocked by the defendant’s automobile.

She asked the defendant “what in the hell” she was doing there. The defendant, seated behind the wheel of her car, held up some money and said she had come to return the money she had taken from Ms. Carter’s daughter. Ms. Carter went to the car to retrieve the money, but as she grabbed for it, the defendant locked her teeth onto Ms. Carter’s arm and began to move the vehicle forward, carrying Ms. Carter with it. Ms. Carter’s aunt saw this activity and attempted to assist by entering the defendant’s car from the passenger side, but the defendant was able to use her foot to pin the aunt’s neck against the windshield, apparently all the while maintaining her grip on Ms. Carter’s arm.

Ms. Carter was finally able to remove the keys from the ignition, after which the defendant alighted from the vehicle, crying and saying: “Why are you doing this to me?” ⁵¹⁰ As the defendant walked away from her car, she was carrying a 7-Up bottle inside a “Crown Royal” bag, and she began dumping the contents of the bottle onto the ground as she walked, saying: “Don’t take it away from me.” Ms. Carter, who admitted she was a user of PCP at the time of the incident, recognized the odor of the liquid as PCP. The defendant then returned to her car, with the soda bottle and Crown Royal bag still in her possession, but Ms. Carter was unable to see what the defendant did with those objects after she entered the vehicle. At some point the defendant said she had her handgun with her, and she briefly “pulled it out,” without pointing it at anyone, then appeared to attempt to hide it. Ms. Carter further testified that she had known the defendant for about a year.

She was permitted to testify, over the defendant’s objection, that she had purchased PCP from the defendant in the past; that she saw the defendant sell PCP, in liquid form 3 and on parsley flakes, at the defendant’s home two days before the incident and that the defendant “usually carried” her liquid PCP in a soda bottle within a Crown Royal sack with a drawstring. The defendant gave a different version. She said she traveled to Kentucky about 16 April 1988, and returned on 26 April to find that her television, VCR, and purse had been stolen. She had seen Shirley Carter on the morning of 28 April at the defendant’s home.

They argued, because Ms. Carter was angry that the defendant had testified against Ms. Carter’s friend two days before. The defendant spent most of the day of 28 April packing and moving from her home. Although many of her possessions had been transported by truck, she had loaded the remainder in her automobile. ⁵¹¹ The defendant was taking a young girl home when she stopped near Ms. Carter’s home to talk to two male friends. Ms. Carter came to her car and began to argue with her.

At some point, the defendant grabbed her purse from Ms. Carter—the purse the defendant said had been stolen from her. Ms. Carter, Ms. Carter’s husband, and another man then dragged her from the car and beat her. While someone was holding her on the ground, she saw people going in and out of her car, and saw Ms. Carter’s husband take a shotgun from the car. After they let her up, she went to a nearby home and asked someone to summon the police.

The defendant denied having ever seen, or been in possession of, the Crown Royal bag and the 7-Up bottle with PCP in it, or the foil packet of PCP-laced parsley that was later taken from her car by the police. She admitted the pistol was hers, but said she had packed it in the rear portion of the car, in the manufacturer’s box. 4 The defendant testified that she had only known Shirley Carter since 14 April 1988. She denied selling PCP to Ms. Carter. Police officers who arrived on the scene described the defendant as “dazed,” “almost incoherent,” having bloodshot and dilated eyes, apparently unable to comprehend what was occurring, and “either intoxicated or high on something.” The defendant first testified that she might have been “high” on PCP because she had taken a few “drags” from a cigarette offered to her earlier that morning by Shirley Carter, without knowing the cigarette contained PCP.

She later said she was not “high,” but was dazed from the beating she had been given. The police testified they observed a visible bite mark on Ms. Carter’s upper arm. Police officers who conducted the search of the defendant’s vehicle testified that they had removed a large assortment of personal items, suitcases, clothing, household goods, and the like. From the area behind the driver’s seat, on top of a pile of other items, but visible as soon as the car ⁵¹² door was opened, they removed a Crown Royal cloth bag containing a 7-Up bottle with liquid contents.

Subsequent analysis disclosed the contents to be approximately one and one-half ounces of liquid PCP. From the hatchback area of the Mustang automobile the police removed, along with many other items, four jars of parsley flakes, a jewelry-type box containing a foil packet of parsley flakes, and a pack of Zigzag rolling papers. From an unidentified location within the vehicle, the police removed a small reddish-brown bottle similar to those commonly used to package food coloring. Officer Dennis Howell testified as an expert on controlled dangerous substances.

He said that an ounce and one-half of liquid PCP would be sufficient to coat four and one-half to six ounces of parsley flakes; that liquid PCP had a street value of between two hundred and five hundred dollars per ounce; that if the 16-ounce soda bottle were full of PCP it would have a street value of between eight and ten thousand dollars; that PCP is often packaged in green bottles to disguise it as a soft drink; and that bottles similar to the small reddish-brown bottle found in the defendant’s vehicle are often used to sell one or two ounce quantities of liquid PCP. He described the contents of the small foil package as parsley laced with PCP, having a street value of ten to twenty dollars. During cross-examination of the defendant, the State introduced, over objection, evidence that the defendant had been convicted of possession of PCP with intent to distribute on 9 July 1986. In colloquy with the court following the defendant’s objection, the prosecutor made it clear he was not offering this evidence for impeachment of the witness’s credibility, but as evidence bearing on the defendant’s intent in possessing the PCP.

The trial judge later instructed the jury they could consider this evidence only on the question of the defendant’s intent.

II

We discussed certain of the principles governing admissibility of evidence of “other bad acts” in Harris v. ⁵¹³ State, 324 Md. 490 , 597 A.2d 956 (1991), filed today. We there held that evidence of the defendant’s conviction of possession of