Simms v. State

Mason, J., delivered the opinion of the Court. Appellant, John William Simms, was convicted at a bench trial in the Circuit Court for Howard County of felony murder and unlawful use of a handgun in the commission of a crime of violence. He was sentenced to a term of life imprisonment for the murder conviction and a concurrent term of fifteen years for the handgun conviction. Appellant, in his enumeration of errors, contends that the trial judge committed reversible error in allowing the State to introduce evidence of other crimes.

The evidence adduced at trial disclosed that on 29 June 1975, at 5:05 A.M., the body of Sharon Anne Tynes, a twenty-four year old woman, was found lying face down at the intersection of Ridgewood and Garrison Boulevard in the northwest section of Baltimore City. The victim’s handbag, which had not been tampered with, together with her shoes were found on the opposite corner of the intersection. The autopsy report revealed that the victim had been shot twice in the back. Kenneth Carter, who lived near the intersection, reported that after hearing two or three gunshots, he looked out his window and saw a male figure backing away from a body lying in the intersection.

Although Carter’s description of the male figure generally fit that of appellant, he was unable to ⁶⁶⁰ identify appellant at trial. With the exception of Carter’s description, the police were without any other information or leads regarding the identity of the person who killed Sharon Ann Tynes. Over a year later, 8 August 1976, Christine Speight notified the police that she had just seen the man who had raped her on 14 May 1975. She gave the police the license number of the automobile he was driving.

Tracing this number disclosed that the vehicle was registered in the name of appellant. After Ms. Speight made a photographic identification of appellant as the man who raped her, a warrant was obtained, appellant was arrested, and a .38 caliber revolver was recovered during a search of his house. Ballistic tests revealed that this revolver fired the bullet removed from Ms. Tynes’ body, and also fired the bullet that wounded one Joan McNeill Savage 1 in December of 1975. According to the testimony of Joan McNeill Savage on 11 December 1975, at 6:15 A.M., while she was waiting for a bus on the corner of Dolfield and White Oak Avenues in the northwest section of Baltimore City, appellant walked by and said “good morning.” He then turned around, pointed a gun, and put his left arm around her waist.

With the gun in his right hand, pressed against her side, he ordered her to start walking. While walking, he complimented her on her appearance and remarked “if she did what he said everything would be okay.” After walking about a block, she broke away, threw her handbag to the ground and ran. Disregarding her handbag, appellant chased and caught her, whereupon he struck her in the mouth and shot her in the leg. Christine Speight 2 testified that on 14 May 1975, at. approximately 5:30 A.M., while waiting for a bus at the corner of Woodhaven Avenue and Garrison Boulevard in the ⁶⁶¹ northwest section of Baltimore City, she was approached by appellant.

He walked past me and patted me on my behind just a few feet — and then I told him not to do that no more and he turned when I went back to look at my paper and he came up on me with a gun. He then put his left arm around her waist and placed a gun, which was held in his right hand, into her side. While leading her away from the bus stop, he told her that “he wanted some pussy.” Appellant led her into an alley and raped her at gunpoint under the back porch of a house. Appellant testified on his own behalf and denied any involvement in the Tynes murder, the Savage assault or the Speight rape, but admitted the gun belonged to him.

He presented alibi witnesses to account for his whereabouts on the days the crimes were committed and presented evidence that other persons had access to his gun on occasion. The theory of the State’s case is that Ms. Tynes was murdered by appellant during an assault with intent to rape. For the limited purpose of showing identity and intent, the trial court allowed the State to introduce evidence which showed that appellant had also raped Ms. Speight and assaulted Ms. Savage with the intent to rape. 3 Appellant argues that the admission of this evidence was highly prejudicial and constituted reversible error. The rule in this State regarding the admission of other crimes evidence was lucidly explicated in Ross v. State, 276 Md. 664, 669 , 850 A. 2d 680 (1976): The frequently enunciated 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.

This ⁶⁶² principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character. Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is “substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.” 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, ... and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused.

(Citations omitted). Accord Cross v. State, 282 Md. 468 (1978); McKnight v. State, 280 Md. 604, 612 , 375 A. 2d 551 (1977). As we perceive it, the evidence of the assault on Ms. Savage was admissible because it was substantially relevant to prove the issues of identity and intent, which were essential elements of the crime for which appellant was charged. Likewise, the evidence of the Speight rape was admissible because it was substantially relevant to prove the issue of intent. ⁶⁶³ IDENTITY Although evidence of other criminal acts may be offered to prove identity, “a need for proving identity is not ordinarily of itself a ticket of admission, but... the evidence will usually follow, as an intermediate channel, some one or more of the other [exceptions]” Cross v. State, supra, (quoting C. McCormick, Evidence, § 190 at 451.) But see Mollar v. State, 25 Md. App. 291 , 333 A. 2d 625 (1975), in which this Court applied the identity exception as the sole grounds for admitting evidence of other crimes.

In Cross v. State, supra, however, the Court of Appeals, after observing that there was a dearth of analysis on the identity exception, concluded that: [P]erhaps the most useful analysis of the identity exception and its scope is contained in Underhill’s treatise on criminal evidence, in which it is stated that evidence of other offenses may be received under the identity exception if it shows any of the following: (a) the defendant’s presence at the scene or in the locality of the crime on trial; (b) that the defendant was a member of an organization whose purpose was to commit crimes similar to the one on trial; (c) the defendant’s identity from a handwriting exemplar, “mug shot”, or fingerprint record from a prior arrest, or his identity through a ballistics test; (d) the defendant’s identity from a remark made by him; (e) the defendant’s prior theft of a gun, car or other object used in the offense on trial; (f) that the defendant was found in possession of articles taken from the victim of the crime on trial; (g) that the defendant had on another occasion used the same alias or the same ⁶⁶⁴ confederate as was used by the perpetrator of the present crime; (h) that a peculiar modus operandi used by the defendant on another occasion was used by the perpetrator of the crime on trial; (i) that on another occasion the defendant was wearing the clothing worn by or was using certain objects used by the perpetrator of the crime at the time it was committed; (j) that the witness’ view of the defendant at the other crime enabled him to identify the defendant as the person who committed the crime on trial. [P. Herrick, 1 Underhill’s Criminal Evidence § 210, at 637 (6th ed. 1973 & 1977 Cum. Supp.) (Footnotes omitted).] Applying the Underhill test to the facts in this case, it is manifest that other crimes evidence is admissible under (c), supra, to prove identity. The use of a ballistic expert to identify the gun from which a bullet had been fired and, by inference, the gunman, is recognized in this State and in Other jurisdictions. See Edwards v. State, 198 Md. 132, 141-44 , 81 A. 2d 631 (1951), 3 Wharton’s Criminal Evidence § 613 (13th ed. 1973).

We can think of few characteristics of a crime as unique or identical as bullets fired from the same gun. In State v. Frazier, 550 S.W.2d 590 (Mo. Ct. App. 1977), a state’s witness testified that the defendant had come to her residence, knocked on her door and upon receiving no answer fired four shots through the door. The bullets were removed and a ballistics expert testified that they were fired from the same gun that fired the bullets found in a homicide victim’s body.

The defendant, not unlike appellant here, objected to the witness’s testimony on the grounds that it was evidence of a separate and distinct crime, and, therefore, inadmissible. ⁶⁶⁵ The court noted the exceptions to the other crimes rule and stated: [T]he acid test for determining whether proof of a separate and distinct crime falls within one or more of the enumerated exceptions is its logical relevancy to a particular exception and its tendency to prove a material fact in issue; existence of the requisite degree of relevancy is a judicial question; and, finally, if the requisite degree of relevancy between proof of a separate and distinct offense and the crime charged and being tried cannot be clearly perceived, the accused should be given the benefit of the doubt, and such proof or evidence should be rejected. This court concludes that the requisite degree of relevancy can clearly be perceived between the testimony of defendant’s ex-wife as to the separate and distinct offense complained of and the homicide for which defendant was being tried because the former tended to prove defendant’s access to one of the handguns employed to slay the victim and his identity as one of the perpetrators of the homicide. 550 S.W.2d at 596-97 (Citations omitted). E.g. People v. Bolton, 35 Ill.

App. 3d 965 , 343 N.E.2d 190, 196 (1976); People v. Smith, 73 Mich. App. 463 , 252 N.W.2d 488, 492 (1977). Here the ballistics testimony established that the same gun which fired the bullets killing Ms. Tynes also fired the bullet wounding Ms. Savage. Further, the gun in question was owned by appellant and in his possession on the dates the crimes were committed.

This evidence, together with the positive identification of appellant as the person who shot Ms. Savage, clearly supports an inference that appellant also shot and killed Ms. Tynes. “[I]t would appear that if there is purpose to [the identity] exception, the circumstances here were molded to fulfill that purpose.” Mollar v. State, supra, 25 Md. App. at 302 . Accordingly, we conclude that the evidence of the Savage ⁶⁶⁶ assault was highly probative as to the identity of appellant and, therefore, admissible. INTENT Having determined that the evidence of the assault on Ms. Savage was properly admissible to prove the identity of appellant as the killer of Ms. Tynes, we now consider whether evidence of that assault coupled with evidence of the Speight rape is admissible to prove that appellant intended to rape Ms. Tynes, thus rendering the homicide a felony murder. The general rule in this State and in other jurisdictions is that evidence of other similar offenses is admissible if relevant to prove the issue of intent.

In Bryant v. State, 207 Md. 565, 586 , 115 A. 2d 502 (1955), the Court of Appeals noted: Where intent is material, the conduct of the accused is relevant to show that intent. Hence, evidence of collateral offenses is admissible, on the trial of the main charge, to prove the intent. To be admissible as relevant, such offenses need not be exactly concurrent. If they are committed within such time, or show such relation to the main charge, as to make connection obvious, such offenses are admissible to show intent.

Likewise, in Wilson v. State, 181 Md. 1, 3 , 81 A. 2d 631 (1942), the Court of Appeals in an abortion case, observed: [W]here guilty intent is an essential element of the crime charged, the State can prove a relevant fact which tends to show the defendant guilty of the crime charged, notwithstanding that it may also show him guilty of a similar distinct offense. Such evidence is admitted not because it is proof of another crime, but because of its relevancy to the charge in issue. For a person cannot, by multiplying his crimes, diminish the volume of competent testimony against him. ⁶⁶⁷ (Citations omitted). See Jones v. State, 182 Md. 653 , 35 A. 2d 916 (1944); Hoes v. State, 35 Md App. 61, 368 A. 2d 1080 (1977).

The following example quoted in Wigmore graphically demonstrates the logical theory of evidencing intent from similar assault offenses; Suppose the one hundred and one persons whom he assaulted were women; suppose he touched no man; suppose he had unsuccessfully attempted to ravish one hundred of them, and were arrested at the instant of his knocking down the one hundred and first, and the question were whether his last assault were a mere assault, or an assault with intent to commit a robbery, or an assault with intent to commit a rape; suppose the last woman assaulted should die of her injuries, and the defendant were indicted for her murder;... how would you expect, if you were the prosecuting officers, to find any better evidence of the defendant’s intent than his attempts upon the other one hundred women? ... 2 J. Wigmore,