Leak v. State

BLOOM, Judge. A jury in the Circuit Court for Baltimore City convicted appellant, Charles Leak, of robbery. Pursuant to a recidivist statute, Md.Code (1957, 1987 Repl.Vol., 1989 Supp.), Art. 27, § 643B(c), appellant was sentenced to imprisonment for 25 years without parole. Appealing from that judgment, Leak contends that the trial court erred in denying his motion for a mistrial because the prosecutor, during his opening statement, referred to a certain check-writing machine, in violation of the court’s ruling on a motion in limine.

He also contends that the court erred in permitting the State to introduce other ³⁵⁶ crimes evidence in the form of testimony concerning the theft of the check-writing machine and the presence of appellant’s fingerprints on it. Lastly, appellant asserts that the trial judge questioned a defense witness in an impermissible manner that demonstrated the court’s disbelief in the witness’s testimony. Facts At approximately 4:30 p.m. on 30 November 1987, a white AMC Concord automobile, driven by Charles Leak, stopped in front of the Catón Avenue Shell Station in the 3200 block of Georgia Avenue. Kenneth Burkes, after alighting from the car, entered the gas station and demanded money from the attendants, Cindi Wood and Sherry Houghtling, threatening them with what they believed to be a concealed gun.

After taking the money, Burkes forced the two women into a refrigerator in the back of the store and then escaped. John Wissman, an off-duty police officer dressed in plainclothes, was on the scene putting gasoline in his car at the time of the robbery. He saw Burkes enter and exit the station and leave in the AMC Concord. When the victims left the refrigerator, they related their story of the robbery to Wissman.

He immediately got into his car and began pursuing the car with Burkes in it. Wissman followed the AMC Concord to the intersection of DeSoto Road and Georgetown Avenue where it stopped for a red light. Wissman drove around three other vehicles and attempted to block the Concord. Appellant, however, jumped the curb and sped southbound on DeSoto Road.

When the AMC suddenly stopped and pulled to the curb on the 1900 block of Whistler Avenue, Burkes got out of the car and began to run. Officer Wissman exited his car and chased Burkes on foot, but was unable to catch him. Wissman then supplied other police officers with the make, model, and license number of the escape car. The AMC was owned by appellant’s girl friend, Phyllis Washington, who lived at 535 Half Mile Court in Baltimore ³⁵⁷ City.

When Officer Wissman arrived at this address, the AMC was parked there, so he waited for other officers to arrive. At 5:30 p.m., he observed a black male, who was later determined to be appellant, emerge from 535 Half Mile Court, open the trunk of the AMC, and start to remove a white sack containing a check-writing machine, which turned out to be stolen. The officer left his car and attempted to apprehend appellant, but was unable to catch him. After interrogating Ms. Washington, the police obtained a warrant for appellant’s arrest.

Appellant was arrested at noon on 21 December 1987. Appellant submitted a motion in limine to exclude any attempt by the State to introduce evidence concerning the stolen check-writing machine that was in the trunk of the AMC. The checkwriter, which had been stolen from the Dash-In in Baltimore County on 30 November 1983 at about 1:30 p.m., had appellant’s as well as Burkes’s fingerprints on it. Appellant asserted that any mention of the checkwriter would be unduly prejudicial while having little or no probative value.

The State argued that since both Burkes’s and the appellant’s fingerprints had been lifted from the checkwriter it was an essential piece of evidence that could place appellant with Burkes as early as one o’clock in the afternoon on the day of the robbery. The court granted appellant’s motion, excluding admission or mention of the checkwriter, but limited its holding. If, during the testimony of either appellant or Burkes, statements were made that could be impeached by questioning the witness about the checkwriter theft, then the court would permit that line of questioning. I Appellant contends that he should have been granted a mistrial by the trial court because the prosecuting attorney mentioned the check-writing machine in his opening statement after the court had specifically limited the admissibility of this evidence by granting the appellant’s motion in limine. “It has been repeatedly held that a trial ³⁵⁸ judge shall declare a mistrial only under extraordinary circumstances and where there is a manifest necessity to do so.” Russell v. State, 69 Md.App. 554, 562 , 518 A.2d 1081 (1987).

Even if the prosecutor’s statement during opening argument was, in fact, improper, the record must compellingly demonstrate sufficient prejudice to warrant granting such a drastic measure. This Court rarely finds that a trial court abused its discretion by refusing to grant a request by one of the parties for a mistrial. A request for a mistrial in a criminal case is addressed to the sound discretion of the trial court and the exercise of its discretion, in a case involving a question of prejudice which might infringe upon the right of the defendant to a fair trial, is reviewable on appeal to determine whether or not there has been an abuse of that discretion by the trial court in denying the mistrial. The decision by the trial court in the exercise of its discretion denying a mistrial will not be reversed on appeal unless it is clear that there has been prejudice to the defendant.

Wilhelm v. State, 272 Md. 404, 429 , 326 A.2d 707 (1974) (citations omitted). Before this Court will decide that the trial court abused its discretion by not granting a party’s motion for a mistrial, we would have to find clear and egregious prejudice to the defendant mandating us to reverse the conviction. Merely because the prosecutor made improper remarks does not compel us to reverse the lower court. More prejudice is needed to justify this sanction.

Improper conduct or remarks made by the State during a prosecution would have to be a direct and contributing factor that resulted in substantial prejudice to the defendant. Wilhelm, supra. In the case at bar, the prosecutor in his opening statement described the situation when Officer Wilson watched the defendant attempt to remove the check-writing machine from the trunk of his girl friend’s car. Objecting and calling for a mistrial, the defense counsel argued that ³⁵⁹ the State’s opening argument violated the judge’s grant of the motion in limine.

The State, on the other hand, argued that it did not intend to violate the court’s ruling, but only to set the stage and introduce the device to the jury for the purpose of eventually admitting the fingerprints into evidence. The court instructed the prosecutor: that the facts generate the issue, not your opening statement because, quite frankly, I don’t know what you’re going to say next. So it is a crucial area, and since you have to prove the case not in your opening statement leave it alone in your opening statement. The prosecutor was thus instructed to avoid further reference to the check-writing machine during his opening statement.

Since, as of that time, there had been no mention of a theft of the machine, the brief reference to the object in the prosecutor’s opening statement did not prejudice appellant to the extent that a mistrial was called for. We hold, therefore, that the court did not err or abuse its discretion in denying appellant’s mistrial motion. II Appellant contends that the trial court erred when it allowed the State to impeach defense witness Burkes by questioning him about the check-writing machine and how he obtained it. At trial, defense counsel made a continuing objection to the prosecutor’s questions about the check-writing machine.

Appellant now asserts that cross-examining the witness about the machine was a poorly disguised attempt to elicit inadmissible other crimes evidence. The State, however, contends that this point was not preserved for appellate review. In Brecker v. State, 304 Md. 36, 39-40 , 497 A.2d 479 (1985), the Court stated, “[O]ur cases have consistently stated that when an objector sets forth the specific grounds for his objection, although not requested by the court to do so, the objector will be bound by those grounds and will ordinarily be deemed to have waived other grounds not specified.” See Md. Rule 4-323(c). When defense counsel ³⁶⁰ in this case objected to questions concerning the check-writer during the prosecutor’s cross-examination of Burkes, he explicitly stated two bases for his objections: irrelevancy and beyond the scope of direct examination.

The State argues that appellant may not assert on appeal that the court erred in admitting other crimes evidence because he did not ground his objection on that basis at trial. We reject that argument. When other crimes evidence is inadmissible, it is rejected because of its lack of relevancy; if such evidence is relevant to some material issue, such as motive, intent, identity, lack of mistake, etc., it is admissible. Ross v. State, 276 Md. 664 , 350 A.2d 680 (1976).

In Harris v. State, 81 Md.App. 247 , 567 A.2d 476 (1989), Judge Moylan, writing for this Court, explained that inadmissible other crimes evidence is not totally irrelevant, since it tends to prove the defendant’s propensity for crime. Relevancy for that purpose, however, does not render such evidence admissible. To be admissible, other crimes evidence must be relevant to something other than propensity. No matter how the rule is stated with respect to admissibility or inadmissibility of other crimes evidence, however, an objection to the admission of such evidence on the grounds that it is irrelevant will preserve the issue for appellate review because admissibility of such evidence hinges on its relevancy to a proper subject of inquiry.

We proceed, therefore, to a consideration of appellant’s contention that the court erred in admitting evidence of Burkes’s theft of the checkwriter, which, when recovered, had appellant’s fingerprints on it. Clearly, that evidence was not required to impeach the general credibility of the witness, who freely admitted that he committed the robbery. Equally clearly, it was highly prejudicial to appellant, since it tended to indicate that he had participated in the theft of the check-writer, thereby amounting to evidence that appellant had committed some crime other than the one for which he was being tried. The State asserts that the evidence was admissible as it tended to impeach Burkes’s testimony that he saw appellant ³⁶¹ for the first time that day sometime between 3:00 and 4:30 p.m.

The checkwriter was stolen earlier that afternoon; from the presence of appellant’s fingerprints on it, the State posits, the jury could infer that appellant had participated in its theft and thus had been with Burkes since long before the robbery. That, in turn, casts doubt on Burkes’s version that he had just met with appellant and acted on his own, without appellant’s prior knowledge, when he robbed the Catón Avenue Shell Station. The problem with that argument is that appellant’s fingerprints on the stolen object do not necessarily connect him with the theft, and for other crimes evidence to be admissible even if relevant to an issue other than propensity “the accused’s involvement in the uncharged crime must be established by clear and convincing evidence.” Govostis v. State, 74 Md.App. 457, 464 , 538 A.2d 338 , cert. denied, 313 Md. 7 , 542 A.2d 844 (1988). Burkes had testified that appellant had nothing to do with the theft of the checkwriter; that he brought the machine to appellant’s automobile and appellant put it in the trunk of the car at Burkes’s request; and that when he told appellant he had robbed the Shell station appellant ordered him out of the car and he left the checkwriter in the trunk.

Later that day, the police saw appellant remove the check-writer from the trunk. According to the evidence, therefore, there were two opportunities for appellant to touch the checkwriter hours after Burkes stole it. Fingerprints of the accused at the scene of a crime or on stolen goods have no probative value to connect the accused with the crime unless circumstances indicate that the prints were impressed at the time of the crime. Chandler v. State, 23 Md.App. 645 , 329 A.2d 430 , cert. denied, 274 Md. 726 (1974); DiPietro v. State, 31 Md.App. 392 , 356 A.2d 599 (1976).

Ill Our holding that the court erred in permitting the State to question Burkes about the stolen checkwriter requires ³⁶² that we reverse and remand for a new trial on that issue. It is not necessary, therefore, that we address the remaining complaint, that the trial judge assumed a prosecutorial role by questioning a key defense witness in such a manner as to display disbelief in that witness’s testimony. We choose to address that contention, nevertheless, since it involves an important matter of a recurring nature. Burkes’s appearance as a defense