Moore v. State

³⁹ WILNER, Judge. Someone entered Marie Workman’s Silver Spring apartment in the early afternoon of October 12, 1984 and raped her, killed her, and stole her jewelry and other valuables. A jury in the Circuit Court for Montgomery County concluded that appellant was the culprit; it convicted him of first degree murder, first degree rape, robbery with a deadly weapon, and statutory housebreaking. From the judgment entered on those convictions, appellant has brought this appeal, complaining that the court erred (1) in admitting evidence of other crimes; (2) in admitting into evidence a bus transfer found at the Workman apartment without requiring proof of a chain of custody of the transfer; (3) in denying appellant’s motion to suppress certain evidence arising from an illegal arrest; and (4) in denying certain jury instructions requested by him.

We find no reversible error and shall therefore affirm. (1) Other Crimes Evidence Proof of appellant’s criminal agency was entirely circumstantial. No one saw him enter or leave Ms. Workman’s apartment; nor, except for a bus transfer, was any physical evidence found at the site to connect him to the crimes. In an effort to show that he was the assailant, the State offered evidence that he had gained entry to the apartments of two other women in the same distinctive manner that the State theorized the assailant gained entry to the Workman apartment and that he attacked those two other women in much the same manner that Ms. Workman was attacked.

Appellant’s first complaint is to the admission of that evidence. The State acknowledges the general rule 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.” Ross v. State, 276 ⁴⁰ Md. 664, 669, 350 A.2d 680 (1976). It supports the admission of the “other crimes” evidence here on the basis that it establishes a particular modus operandi—a “distinctive handiwork” or “signature”—which, either on its own or as an indication of the identity of the perpetrator of the instant offenses, constitutes one of the recognized exceptions to the general rule. See Cross v. State, 282 Md. 468, 477-78 (n. 6), 386 A.2d 757 (1978).

The State sought to prove that (1) on September 28, 1984, appellant gained entry to the Silver Spring apartment of Lisa White, where he assaulted, raped, and robbed Ms. White and (2) on October 15, 1984, he gained entry to the District of Columbia home of Sharon Breed, where he assaulted and robbed Ms. Breed. Evidence as to those crimes came from testimony of the two victims, testimony of one Larry Boddie, and from certain physical evidence recovered from appellant upon his arrest. Appellant does not dispute that the evidence adduced by the State sufficed to show that he committed those two other crimes; nor does he contest the State’s need for that “other crimes” evidence to establish criminal agency in the instant case. The area of dispute is whether the “other crimes” evidence adduced by the State established a sufficiently “distinctive handiwork” or “signature” to warrant admission under this exception.

The “handiwork” or “signature” exception to the general rule excluding “other crimes” evidence was mentioned by the Court of Appeals in Ross v. State, supra, 276 Md. 664 , 350 A.2d 680 , McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977), and Cross v. State, supra, 282 Md. 468 , 386 A.2d 757 . In each of those cases, the Court cited, with apparent approval, McCormick on Evidence § 190, wherein the exclusionary rule and its multiple exceptions are discussed in some detail. See also Straughn v. State, 297 Md. 329, 333-34 , 465 A.2d 1166 (1983); State v. Werner, 302 Md. 550 , 489 A.2d 1119 (1985). The particular exception at issue here is described in § 190(3); McCormick there states that evidence of “other crimes” may be admitted: ⁴¹ “To prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused.

Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature.” (Emphasis added.) See also Brafman v. State, 38 Md.App. 465 , 381 A.2d 687 (1978). In support of that statement, McCormick cites People v. Haston, 69 Cal.2d 233 , 70 Cal.Rptr. 419 , 444 P.2d 91 (1968), where the California Supreme Court discussed the exception at even greater length. Of particular interest is the language, 70 Cal.Rptr. at 427-228 , 444 P.2d at 99 -100: “ ‘Several decisions have held that the test of admissibility of evidence of another offense offered to prove common design, plan, or modus operandi is whether there is some clear connection between that offense and the one charged so that it may be logically inferred that if defendant is guilty of one he must be guilty of the other.’ [citation omitted.] It is apparent that the indicated inference does not arise, however, from the mere fact that the charged and uncharged offenses share certain marks of similarity, for it may be that the marks in question are of such common occurrence that they are shared not only by the charged crime and defendant’s prior offenses, but also by numerous other crimes committed by persons other than defendant.

On the other hand, the inference need not depend upon one or more unique or nearly unique features common to the charged and uncharged offenses, for features of substantial but lesser distinctiveness, although insufficient to raise the inference if considered separately, may yield a distinctive combination if considered together. Thus it may be said that the inference of identity arises when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the ⁴² same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.” (Footnotes omitted; emphasis added.) In articulating this view, the California Court was careful to point out that each of the “marks” must have some element of distinctiveness—that “The sum of zeroes is always zero. Thus, it would seem that the distinctiveness of the common marks offered must always be a factor for consideration whether such marks are taken singly or in combination.” Id., 70 Cal.Rptr. at 428 n. 15, 444 P.2d at 100 n. 15. The State proffers 10 common “marks” or similarities between the White and Breed episodes, on the one hand, and the instant case, on the other: (1) The distinctive method by which the assailant gained entry into the victim’s apartment (of which we shall say more); (2) The time span: the White incident occurred two weeks before the Workman crime; the Breed incident occurred three days afterward; (3) All three crimes occurred between 11:45 a.m. and 1:30 p.m.; (4) All three victims were women who suffered extensive injury to the face and neck; (5) In all three cases, the assailant demanded or took jewelry and the contents of the victim’s purse; (6) In the White and Workman episodes, the weapon used was a kitchen knife; (7) In the Breed and Workman episodes, a ligature was employed; (8) Ms. White was raped in her bedroom; there was evidence that Ms. Workman also was raped in her bedroom; and the evidence in the Breed case lent an inference that Ms. Breed would have been raped had the assailant not ⁴³ noticed the telephone off the hook during the course of his assault; (9) Both Ms. Breed and Ms. White were choked until unconscious and subsequently beaten in the face; and (10) All three incidents occurred near a station on the Washington metro system.

The State’s principal reliance is on the first “mark.” The evidence as to that was essentially as follows. Sharon Breed testified that appellant knocked on her door and asked if one Larry Hardin lived there. She told him that he did not but, at appellant’s request, obtained Hardin’s address from the telephone book. She informed appellant that Hardin’s address was in a different neighborhood, whereupon appellant showed her, from his wallet, what appeared to be a family photograph of a man, woman, and child, represented that the man was Mr. Hardin, and asked if she knew him.

She replied in the negative and closed the door. Appellant then asked if she could draw a map to Hardin’s address; when she opened the door to do so, he grabbed her around the neck and burst into her home. Ms. Breed identified a photograph of a man, woman, and small child found in appellant’s wallet at the time of his arrest as the photograph appellant showed her prior to the attack. Ms. White said that appellant came to her door looking for a friend named Rick.

He showed her a photograph from his wallet, also of a man, woman, and child. When she told him to try the gas station, he burst into her apartment and grabbed her by the throat. There was no direct evidence as to how the assailant got into Ms. Workman’s apartment. Mary Chapdelaine, a neighbor living in the next apartment building, testified that, at about 11:30 on the morning of October 12—i.e., within two hours of the time Ms. Workman was killed—a man whom she ultimately identified at a lineup as appellant came to her door, showed her a family photograph from his wallet, and asked if she knew the people depicted in the photograph.

Just at that point, her immediate neighbor ⁴⁴ opened the door and the man left. Ms. Chapdelaine said that the photograph found in appellant’s wallet was “similar” to the one shown her at the time. The State’s position is based on the inference from Ms. Chapdelaine’s testimony that appellant was on the scene at or near the time of the murder and that he used the same artifice—displaying a family photograph and engaging the victim in nonthreatening conversation—as a prelude to breaking into the home. This, it maintains, is the distinctive “signature” which, together with the other points of similarity, permits the use of the “other crimes” evidence.

The inference is supported, says the State, by the absence of any evidence of a forced break-in of the Workman apartment. Appellant dismisses the inference as unavailing; he stresses the fact that there is no direct evidence of how the intruder got into the Workman apartment and thus contends that the State failed to show the requisite link between the Breed and White episodes and the one at bar. Before discussing the merits of this issue, we think it may be helpful to set out the framework for our review. Some courts have regarded the admission of “other crimes” evidence as involving an element of discretion which an appellate court would review on an abuse of discretion standard.

As McCormick points out, however, that is an oversimplified view. There is no discretion “to depart from the principle that evidence of other crimes, having no substantial relevancy except to ground the inference that [the] accused is a bad man and hence probably committed this crime, must be excluded.” Id., § 190, p. 453. For the evidence even to qualify for admission, it must fall within one of the exceptions that the court has recognized or would be willing to recognize as having an independent relevance and, although, because this is largely a factual question, it will ultimately depend on how the last appellate court to review the case happens to view the matter, it is not a discretionary ruling. The element of discretion arises only when the evidence does fall within a ⁴⁵ permissible exception and is thus prima facie admissible.

It is then that the court must balance the independent relevance against the danger of undue prejudice and decide whether to exclude the evidence notwithstanding its facial admissibility. That is the discretionary decision—to ex elude otherwise admissible evidence, not to in elude otherwise inadmissible evidence. The issue before us is whether the evidence even qualifies for admission, whether it suffices to show the required “signature.” We believe that it does. In reaching that conclusion, we first consider, and reject, the notion, proffered without benefit of either supporting precedent or logical compulsion, that the manner of entry into the Workman apartment could not be established by inference.

There are few facts, including even ultimate facts, that cannot be established by inference. As Judge Moylan pointed out for the Court in Evans v. State, 28 Md.App. 640, 702-03 , 349 A.2d 300 (1975), aff'd 278 Md. 197 , 362 A.2d 629 (1976): “In a real sense, the whole decision-making process is the process of drawing inferences. From fact A, we infer fact B. From a confession, we infer guilt. From the pulling of a trigger, we infer an intent to harm.

From the possession of recently stolen goods, we infer the theft. From the motive, we infer the criminal agency. From the presence of the sperm, we infer the penetration. From the muddy footprints on the living room rug, we infer the unlawful entry.

The whole phenomenon of circumstantial evidence is the phenomenon of inferring facts in issue from facts established.” There is nothing so special or peculiar about the manner of entry as to preclude proof by inference. The apartment was on the top (third) floor; according to Mr. Workman, there was but one entranceway. It was established that there were no signs of forcible entry—no broken windows or doors, no pry marks. From that, a fair inference may be drawn that Ms. Workman, who was in the ⁴⁶ apartment babysitting with her daughter and three other young children, opened the door voluntarily, in response to a knock. 1 Ms. Chapdelaine’s testimony not only put appellant on the scene near the time of the entry but allows the inference proffered by the State—that the intruder used the same method of encounter as had been used by appellant in the Breed and White incidents.

We turn, then, to whether, with that inference, the similarities suffice to establish the requisite “signature.” Because of the very uniqueness required by this exception, identical cases are virtually impossible to find; each case will generally have to be determined on its own facts, the polestar being essentially that articulated in People v. Hasten, supra: do the “marks,” considered singly or in combination “logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses?” There are many, many reported appellate decisions discussing and applying this principle in sexual assault cases, perhaps because that kind of crime seems more likely than most others to lend itself to peculiar, distinctive traits. Whether as a matter of