Jensen v. State

SALMON, Judge. On February 18, 1997, Theodore Daniels was murdered in his office in Woodlawn, Maryland. Dagmar E. Jensen, with whom Daniels had a business and romantic relationship, was arrested for the killing on March 27, 1997. She was tried from February 9 to February 11, 1998, before a jury in the Circuit Court for Baltimore County (Brennan, J., presiding).

After the State presented its case, Ms. Jensen made a motion for judgment of acquittal that was denied. At the conclusion of the trial, the defense renewed its motion for acquittal, but the motion was again denied. On February 17, 1998, the jury found Ms. Jensen guilty of the first degree murder of Daniels and the use of a handgun in the commission of a crime of violence. After appellant unsuccessfully made a motion for a new trial, the court sentenced ¹⁰⁶ appellant to life in prison for the murder conviction and five years concurrent for the handgun offense.

Appellant filed a timely appeal and raises two issues for our review: 1. Whether limited, wholly circumstantial evidence of criminal agency is sufficient to sustain a conviction when that evidence is entirely consistent with a reasonable theory of innocence. 2. Whether the erroneous admission of prejudicial bad acts evidence constitutes plain error when such evidence not only precludes a fair trial but, in light of the insufficiency of the evidence, is likely the “but for” reason that the jury rendered a guilty verdict. I. TRIAL TESTIMONY Because the main issue in this case is whether the State presented sufficient evidence of Ms. Jensen’s criminal agency, a detailed recitation of the circumstantial evidence against appellant is necessary.

A. The Relationship Between Dagmar Jensen and the Victim Theodore Daniels was 57 years old, six feet tall, and weighed approximately 179 pounds at the time of his death; appellant was 48 years old, five feet four inches tall, and weighed 140 pounds. Daniels was self-employed at the time of his death and operated an insurance business called Prepaid Legal Services, as well as other businesses. Appellant was associated with Daniels in his Prepaid Legal Services business. The Maryland Motor Vehicle Administration listed Daniels’s residence as a home he owned with his wife in Woodlawn.

At the time of his death, however, Daniels was living with a girlfriend in Sparks, Maryland. He also maintained a residence at 5312 Wayne Avenue near his Woodlawn, Baltimore County, office. Appellant lived in a row home in Baltimore City; she shared the home with a man who rented the top floor from her. ¹⁰⁷ Appellant first met Daniels in November 1996 while she was exploring the possibility of joining his Prepaid Legal Services operation. By the first or second week of January 1997, their relationship became sexual.

Daniels told appellant that he was still married but had been separated from his wife for approximately twenty years. Appellant asked Daniels repeatedly about where he lived, but he evaded these questions by telling her that if she were patient she would eventually see where he lived. Daniels once took her to his house on Wayne Avenue, but this visit did not allay her suspicions that he actually lived elsewhere. Daniels never told appellant about his residence in Sparks, Maryland.

Russell Johnson, a business associate of Daniels, testified that he had known Daniels for over thirty years and that he and Daniels had started the Prepaid Legal Services business together. Through the business, Johnson met appellant. Appellant told Johnson that she was having a personal as well as business relationship with Daniels and that she was dissatisfied with information that Daniels was giving her regarding his personal life. Especially annoying to Ms. Jensen was the fact that Daniels would not tell her where he lived.

Appellant telephoned Johnson on multiple occasions to ask him if he had seen Daniels, had any contact with him, or knew why Daniels had not called or seen her. Johnson learned of a disagreement between appellant and Daniels that occurred on Sunday, February 16, 1997, which was two days prior to Daniels’s death. On that date, Daniels asked Johnson to fill in for him on a radio program that the two hosted to promote their Prepaid Legal Services business. Daniels told Johnson that he was with appellant at the time and that the two were “trying to work out some things.” B. The Scene of the Murder Daniels’s corpse was found in his business office located on the second floor of a two-story office building at 2133 Gwynn Oak Avenue in Woodlawn, Maryland.

The building contained five separate businesses. The first floor housed a motorcycle shop and the Woodlawn Beauty Salon. These businesses had ¹⁰⁸ no direct access to the second floor of the building. Daniels’s Prepaid Legal Services office, a civil process serving business, and the Something Sassy Hair Salon occupied the second floor.

Access to the second story was limited to two entrances, one at street level at the front of the building and another at the top of a set of outdoor metal stairs located at the rear of the building. Both the front and rear entrances to the second floor had doors with deadbolt locks that required a key to unlock. One key operated both locks. Appellant did not have a key to the locks.

The front entrance to the building opened into a hallway that contained stairs leading to the second floor. The rear entrance was located next to a landing atop a metal staircase that led down to a parking lot behind the office building. The rear entrance had two doors — an unlocked aluminum storm door and a wooden interior door with a deadbolt lock. The interior door had three horizontal panes of glass in the upper half of the door.

The lower border of the bottom pane was 38 inches above the landing. Each of the glass panes measured 11% inches high by 22$ inches wide. The rear entrance opened directly into the common hallway shared by the businesses on the second floor of the building. C. Daniels’s Last Hour and Events Leading to the Discovery of His Body On Tuesday, February 18, 1997, at approximately 7:30 p.m., the owner of the Something Sassy Hair Salon and one of her employees were leaving after closing the salon.

The salon was next to Daniels’s office space, which had two rooms — Daniel’s office and a conference room. Both the owner and the employee of the hair salon checked the rear entrance of the building to make sure that it was locked. They found that the rear door was locked and that the window panes were intact. The salon owner, hearing Daniels’s television playing in his office, knocked on Daniels’s door.

Daniels answered, and the owner told him that she was closing up and asked whether he wanted the front door locked. Daniels said that he was expecting a visitor and that she should leave the front door ¹⁰⁹ unlocked. When the salon owner and her employee left the building, they did not lock the front door. On the evening of the murder, Theodore Daniels, Jr. (Daniels, Jr.), was driving home from evening classes at Morgan State University when he passed his father’s office and noticed that the lights were on and his father’s car was still parked in the rear parking lot.

Thinking that his father was working, he decided to stop by for a visit. Daniels, Jr., could not be precise as to the time he arrived at the office except to say, “It had to be after 8:00.” The front entrance was locked when he arrived so Daniels, Jr., used his own set of keys to enter the building. He then re-locked the front door. As he walked upstairs, Daniels, Jr., could hear that the television in his father’s office was on at a very high volume.

He arrived at the door to his father’s office and found that it, too, was locked. He used one of his keys to unlock the office door and then found his father’s body lying face down on the floor near the entrance. He turned his father’s body over, called for emergency assistance, and attempted CPR, but the body was cold. He next heard the ambulance arrive so he went downstairs, unlocked the front door, and directed emergency personnel to his father’s body.

At approximately 9:00 p.m., shortly after emergency personnel had arrived, police officers came to the scene and attempted to gain entrance to the building via the second floor back door. After ascending the rear stairs, these officers noticed that the pane of glass in the bottom window opening of the interior door had been broken, 1 that there were shards of glass lying on the floor both inside and outside the door (there was more glass on the exterior side of the door), and that there was blood smeared on the interior and exterior of the door and on the broken glass. The blood smears suggested ¹¹⁰ that someone had been cut by the broken glass. The blood smears were heavier on the exterior portion of the door.

It also appeared to the officers, based on where the glass landed, that the glass was broken from the inside of the building while the storm door was closed. Because the interior rear door was locked, the officers attempted to kick open the door. This action jarred additional glass out of the broken window pane that landed on the hallway floor. Daniels, Jr., hearing the commotion, went out into the hallway and unlocked the rear door.

Once the officers confirmed that Daniels was dead, they cleared the premises and secured the crime scene. D. Evidence at the Crime Scene When the officers arrived at Daniels’s office, they found his body lying near his desk. His clothing was bloodstained. A pair of bent eyeglasses, containing a shattered lens, lay immediately to Daniels’s right.

A tennis ball, with signs , of considerable damage, was further to the right of the eyeglasses. The tennis ball apparently had been used as a “silencer” to muffle the sound of a gun as it was fired. Bullet fragments were found embedded in the floor. The office telephone was lying near the body with the handset off the hook.

Daniels’s jacket was on a chair in the office. The jacket contained a set of keys to the building. Daniels was wearing a pager and had a twenty dollar bill in his pocket. Two televisions and a video cassette recorder were in the office but were left undisturbed.

Daniels had been shot four times with .38 caliber copper-jacketed, hollow-point bullets. All the bullets had been fired from the same weapon. Daniels had gunshot wounds to the neck, back, hip, and chest, with each bullet entering his body at a downward angle. Because no gunshot residue was found near any of the entry wounds, the medical examiner concluded that each shot was likely fired from a distance of more than three feet from the body.

With respect to the gunshot wound to the chest, the bullet entered the body in a manner that suggested that it had passed through the tennis ball first. ¹¹¹ Daniels had various lacerations on his face, as well as scrapes and abrasions on his nose and knees. The medical examiner testified that the most serious of these non-gunshot wounds was a laceration above Daniels’s left eye that was consistent either with Daniels having been struck in the head with a blunt object or with the left side of his face having struck the floor causing his eyeglasses to break and cut his eyebrow. The medical examiner was unable to determine whether Daniels was seated, standing, or kneeling at the time he was shot. E. Detective Duckworth’s Investigation Baltimore County Police Detective Milton Duckworth arrived at the crime scene at 9:48 p.m. to commence his investigation.

Duckworth found no signs of forced entry or exit from the building (other than the broken glass from the back door), nor did he find any signs of ransacking or robbery. Samples of the blood from the door were collected for testing, and the door was processed for fingerprints. Fingerprints and palm prints were also collected from Daniels’s office, including prints from the telephone next to the corpse and from papers located in the office. No murder weapon was recovered.

Several days after the murder, Detective Duckworth returned to the crime scene in an effort to develop leads from the victim’s papers. Duckworth found a pink envelope in Daniels’s mailbox that had not been in the mailbox on the night of the murder. The envelope contained a Valentine’s day card that Daniels had sent to appellant. The card had been returned because it was addressed incorrectly.

The card was signed, “Sincerely your latest.” After finding the Valentine’s Day card, Detective Duckworth contacted appellant to ask her what, if anything, she knew about Daniels’s death. F. What Appellant Told Detective Duckworth Appellant first met with Duckworth on February 25, 1997, and informed him that she was a business associate of Daniels and also had been romantically involved with him. Appellant admitted that she had been sexually intimate with Daniels on ¹¹² at least four occasions; some of their assignations had occurred at Daniels’s office. Appellant said that after their romantic relationship started he began to pay less attention to her.

In December 1996, he failed to call her for approximately two weeks. This caused appellant to conclude that Daniels was still married and was lying to her about being separated from his wife. Appellant told Duckworth that she contacted Russell Johnson to express her displeasure with Daniels. Thereafter, sometime in early January, Daniels finally contacted her and the relationship resumed. 2 Appellant also told Duckworth that Daniels “had a secretive side to his life” and that this was starting to “piss her off.” In this regard, appellant told Detective Duckworth that she had insisted at one point that Daniels take her to his residence, but he refused.

Sometimes Daniels would telephone her and she would see the names of other women appear on her Caller Identification System monitor. This, too, upset appellant. Appellant also told Detective Duckworth that she last saw Daniels two days prior to his death when the two had a Sunday morning breakfast together and later visited the Korean War Memorial in Baltimore. On that day, appellant repeatedly asked Daniels to show her his driver’s license so that she could learn his true home address.

Appellant informed Detective Duckworth that she had plans to meet with Daniels at 7:00 p.m. on the date of his murder but did not keep the appointment because Daniels never called her to confirm the meeting. When asked about her whereabouts on the night Daniels was killed, appellant stated that she had visited a convenience store across the street from her home around 7:30 p.m. 3 and had spent the remainder of the ¹¹³ evening at home. 4 At approximately 11:00 p.m. on the night of the killing, she left a voice mail message on Daniels’s phone. When appellant was arrested on March 27, 1997, her hands were placed behind her back and her wrists were handcuffed. According to Detective Duckworth, appellant “wanted to demonstrate her agility” and “to show me that she could slip out of” the handcuffs by putting her handcuffed hands in front of her.

Detective Duckworth did not allow appellant to demonstrate her ability in this regard. G. Fingerprints Five of the seventeen fingerprints recovered from the crime scene belonged to appellant. All of appellant’s fingerprints were located on the interior side of glass panes on the deadbolted rear entrance door. One fingerprint in the office belonged to Daniels and one belonged to his son.

Of the ten remaining fingerprints, four were sufficiently intact for comparison, but the police were unable to find matches for these. Of the unmatched prints, two were recovered from interior glass panes of the rear door, one was recovered from the office telephone, and one was found on papers located in Daniels’s office. H. DNA Evidence Appellant provided a blood sample to the police for DNA testing. The sample was analyzed, and appellant’s blood was found to be “consistent with” the blood that was found smeared on both sides of the rear door to Daniels’s building.

The probability that someone other than appellant was the ¹¹⁴ source of the blood was 1 in 8,200 among Caucasians and 1 in 170,000 among African-Americans. Appellant is Caucasian. I. Appellant’s Gun During their first meeting, appellant informed Detective Duckworth that she had once owned a .38 caliber handgun but that burglars had stolen it from her house. The gun was purchased in late 1993; the burglary occurred on February 4, 1994.

Duckworth investigated the matter and learned that appellant reported a 1994 burglary to the police in which a .38 caliber model 85 Taurus revolver was stolen along with some computer-related items. A firearms expert testified that the bullets found at the crime scene could have been fired from the type of gun that appellant reported stolen in 1994. He conceded, however, that a large number of firearms existed that could also have fired the fatal shots. When the police searched appellant’s house, they found the box for the Taurus handgun, bullets for the gun (these bullets were not the same type as used in Daniels’s murder), and two computer monitors that appellant had reported stolen from her home when she reported the February 1994 burglary to the police.

J. Suicide Attempt Seventeen days after Daniels’s murder, on March 5, 1997, appellant attempted suicide. She left a suicide note on her computer that said: I do not want to live anymore. I have not killed Ted and I have lied. I will go to jail and my prints are there and my blood is there.

I did not kill him. There is something very strange going on. I do not want to live. I cannot take the pain of horrible things people do.

K. Appellant’s Trial Testimony Appellant admitted that, subsequent to reporting her .38 caliber gun and computer equipment missing, she found (in 1996) two of the computer monitors for which she had been paid by her insurer, but she did not report the recovery to the ¹¹⁵ insurance company or repay the money she had received for the monitors. Appellant told the jury a different story regarding her alibi than what she had told Detective Duckworth one week after the crime. Although appellant still maintained that the last time she saw Daniels was two days prior to his murder, appellant admitted that her original statement to Detective Duckworth concerning her whereabouts on the evening of the murder was false. Appellant testified that she was scheduled to meet with Daniels at eight o’clock on the night of his murder.

She expected, however, that he would call to confirm the meeting. Because she had not heard from Daniels, appellant left her home at approximately 8:00 p.m. and drove to Daniels’s office. She arrived at approximately 8:20 p.m. and parked behind Daniels’s building where she saw Daniels’s car. She walked up the outdoor metal stairs to the rear entrance of the building.

At the back door, she saw that one of the window panes in the door had been broken out; she heard a television playing loudly in Daniels’s office and, after calling out for Daniels, she tried to open the interior door by reaching through the broken pane and attempting to turn the knob from the inside. As she stuck her hand through the broken window pane, she cut herself, leaving blood on the door and glass. Because the door had a deadbolt lock, appellant was unable to open it. She then left the premises and drove a short distance to Daniels’s house on Wayne Avenue, but Daniels was not there.

Ms. Jensen next went to her home at 843 South Kenwood Street, in Baltimore, Maryland. She later telephoned Daniels at approximately 11:00 p.m., leaving him a voice mail message. 5 In the message, she neglected to mention the fact that the rear door to his office had been broken. Appellant was not alarmed by the broken door at Daniels’s office, nor was she afraid that there might be a burglar inside. ¹¹⁶ It did not occur to her to report a possible burglary attempt to the police even though she happened to see, while she was attempting to gain entry into the building, a police officer parked near Daniels’s office. Appellant did not attempt to page Daniels while she was near his office because she believed (for reasons that she did not explain) that he would not have returned the call.

The day after the murder, Daniels’s business associate, Russell Johnson, called appellant at work and informed her of Daniels’s murder. Johnson said to her: “He’s dead, did you do it Dagmar? I know you were arguing, did you do it?” Appellant’s response to that question was not elicited at trial. Appellant conceded that she did not tell Johnson that she had been to Daniels’s office on the night of the murder, nor did she ever voluntarily contact the police to reveal this information.

Appellant testified that on other occasions when she visited Daniels’s office, she usually entered through the back door— the door that was broken on the night of the murder. She last had sex with Daniels six days before he was killed. On that occasion she met him at his office and entered through the rear door, which Daniels opened with a key. According to appellant, while she enjoyed Daniels’s company, she nevertheless had not been interested in a long-term commitment from him.

L. Other Defense Witnesses At trial, Baltimore County Police Officer Jane Irwin testified that on the night of the murder, at approximately 8:15 p.m., she issued a ticket to a male motorist less than a quarter of a mile from Daniels’s building. Officer Irwin originally pulled the motorist over because his taillight was not working, but later discovered that the vehicle was uninsured. After issuing the driver two tickets, she had the car towed. The driver was not arrested.

Officer Irwin completed the towing and ticketing by 9:00 p.m. She heard the police call concerning Daniels’s murder at about that time. ¹¹⁷ The defense also called a number of character witnesses who testified to appellant’s good reputation for peacefulness. ANALYSIS ISSUE 1: Sufficiency of the Circumstantial Evidence A. Standard of Review The test for evidentiary sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime, beyond a reasonable doubt. State v. Albrecht, 336 Md. 475, 479 , 649 A.2d 336 (1994).

We examine whether the admissible evidence adduced at trial showed directly or supported a rational inference of the facts to be proved, from which the jury could be convinced, beyond a reasonable doubt, of the accused’s guilt. Thomas v. State, 32 Md.App. 465, 476 , 361 A.2d 138 (1976). As long as there was legally sufficient evidence by which the jury could be convinced of the accused’s guilt beyond a reasonable doubt, we will not disturb its verdict on appeal. Wilson v. State, 261 Md. 551, 556 , 276 A.2d 214 (1971).

In other words, a guilty verdict may be set aside only if there is no legally sufficient evidence or inferences drawable therefrom on which the jury could find the accused guilty beyond a reasonable doubt. Barnes v. State, 31 Md.App. 25, 29 , 354 A.2d 499 (1976). Stouffer v. State, 118 Md.App. 590, 605-06 , 703 A.2d 861 (1997), rev’d in part, 352 Md. 97 , 721 A.2d 207 (1998). B. Circumstantial Evidence “Maryland has long held that there is no difference between direct and circumstantial evidence.” Hebron v. State, 331 Md. 219, 226 , 627 A.2d 1029 (1993); see Wilson v. State, 319 Md. 530, 536 , 573 A.2d 831 (1990).

A conviction may be based on circumstantial evidence