Simms v. State

ROSALYN B. BELL, Judge. Howard Earl Simms appeals his convictions and sentences from the Circuit Court for Howard County. On December 17, 1987, Simms was charged with daytime housebreaking (Count I), felony (Count II) and misdemeanor theft (Count ²⁰⁶ Ill), receiving stolen goods (Count IV) and malicious destruction of property (Count V). At a jury trial in February, 1989, the trial judge granted his motions for judgment of acquittal on Counts II, IV and V. The jury returned guilty verdicts on the daytime housebreaking and misdemeanor theft charges.

After the jury returned its verdicts, the State’s Attorney informed Simms that the State sought a mandatory sentence of life without possibility of parole under Md.Code Ann. Art. 27, § 643B(b) (1957, 1987 Repl. Vol.). Pursuant to that statute, Simms was sentenced to life without parole on the daytime housebreaking charge and 18 months concurrent on the misdemeanor theft conviction. Simms appeals, contending the trial court erred: —by refusing to dismiss the charges against him since they were not set for trial within 180 days, and there was no postponement for good cause; —by permitting the State to introduce evidence of other crimes and evidence relating to his flight and arrest on this other crime; and —by sentencing him to life imprisonment without possibility of parole.

We disagree with all of these contentions and affirm the judgments of the trial court. FACTS Simms was charged with crimes arising from a housebreaking which occurred between 12:40 p.m. and 3:30 p.m. on November 17, 1987 at the home of Betsy and Silas Ayer in Howard County. Mrs. Ayer returned from work that day between 3:30 and 4:00 p.m. and found that someone had broken into and ransacked her house. She realized that a Montgomery Ward credit card, along with other possessions, was missing.

Mrs. Ayer reported the crime to the police. Officer Gerald Fishkorn 1 responded, took a report ²⁰⁷ and contacted Detective Martin of the Howard County Police Department. At approximately 10:00 p.m. on November 17, Fishkorn was contacted by Officer Louis Harvey of the Baltimore County Police Department. Harvey testified that at about 8:30 p.m. on November 17, 1987 he received a call to report to the Montgomery Ward store located at the corner of Rolling Road and Route 40 in Baltimore County.

Upon arrival, he went to the store’s loss prevention security office, where the store operated a closed circuit television security system. A man, later identified as Simms, was at the jewelry counter. Based on information Harvey received from the security officers, he stationed two police officers in the area near the jewelry counter and gave them a description of Simms. Simms fled the area and was apprehended by police and security guards.

A video tape of the incident showed a person at the counter for some time who then ran away. The tape also recorded the arrest, about half of which was played to the jury. Simms was arrested for theft and misuse of a credit card. Mr. Ayer’s Montgomery Ward card was recovered from the store, but not from Simms’ possession.

At oral argument, however, Simms’ counsel stated that there was an offer to stipulate to his possession. After Simms was given his Miranda 2 warnings, Harvey asked him how he obtained the credit card. Simms responded that a man named James (or Jim) had given him the card to use. Simms later said that he had paid James $25 for the card.

A search and seizure at Simms’ residence yielded none of the items stolen from the Ayer home. On November 20, 1987, Martin went to the Baltimore County Detention Center to question Simms. He asked Simms where he had been on the afternoon of November 17, 1987. Simms said he had been in the Pimlico area and ²⁰⁸ had not been in Howard County that day.

Simms repeated his story that he purchased the credit card from a man named James. TRIAL WITHIN 180 DAYS Appellant contends that the trial court erred in refusing to dismiss the charges against appellant when they were not set in for trial within 180 days. Further, appellant posits that improper procedure was followed since no postponement for good cause was obtained from the administrative judge or his designee. This claim is without merit.

The Office of the Public Defender first entered an appearance on behalf of appellant on February 26, 1988. 3 Thus, according to the provisions of Md.Code Ann. Art. 27, § 591 (1957, 1987 RepLVol.), and Rule 4-271(a), trial had to be set by August 24, 1988. Karl Goodman entered his appearance for appellant on March 18, 1988 and the Public Defender’s appearance was struck. Trial was postponed from April 20 to July 27, 1988. On June 7, the State requested a second postponement.

The case was reset for trial on August 15, 1988. On July 22, 1988, the trial court issued an order granting a motion to strike Karl Goodman’s appearance. The case was called for trial on August 15, 1988. The State was ready for trial.

Appellant, however, failed to appear. The Assistant State’s Attorney told the trial judge that she had been in contact with a Baltimore County Assistant State’s Attorney the week before and was advised that appellant was suspected of having fled to North Carolina. The State’s Attorney also told the judge that it was day 171 of the 180-day period and that the State was ready for trial. The trial judge issued a bench warrant and revoked appellant’s bond. ²⁰⁹ The case was continued without a new trial date.

On September 15, 1988, the bench warrant was lodged as a detainer at the Baltimore City Jail, and trial was reset for October 14, 1988. On that day, appellant appeared for trial. The Public Defender reentered an appearance and requested a postponement, which was granted. Appellant filed a motion to dismiss the charges for a violation of Rule 4-271.

A hearing was held on this motion and appellant testified that he was in the Baltimore City Jail on his Howard County trial date of August 15, 1988. He claimed that a friend had told him of his court date and he advised his friend to tell the court his whereabouts. The trial judge made certain findings of fact, and ruled that it would not be appropriate to dismiss the case because the State failed to bring appellant to trial within 180 days, particularly since appellant asked for a postponement on October 24, 1988. We agree.

The State was prepared to go forward with the case on August 15, 1988 and “was prevented from doing so only by the constitutional prohibition against trying appellant in absentia.” Simms v. State, No. 422, September Term, 1989, filed November 20, 1989, per curiam, slip op. at 1 (appeal from Baltimore County proceedings where appellant was not a fugitive). The State believed appellant had fled the jurisdiction, and the trial court issued a bench warrant for his arrest. This procedure was proper. Appellant points out that in Brady v. State, 291 Md. 261, 267 , 434 A.2d 574 (1981), the Court of Appeals said: “[T]he State, in the performance of its public trust, has a duty to coordinate the efforts of its various criminal divisions in attempting to locate a defendant.” While that is the statement made, we find Brady inapposite.

Brady involved a speedy trial issue in which six months of the delay occurred because the State made no effort to locate the defendant, although he was incarcerated in the Baltimore City jail on an unrelated charge. In the instant case, the defendant failed to appear for a trial date. ²¹⁰ At that point, the responsibility fell to the bondsman to locate the defendant. Appellant’s contention that a continuance from an administrative judge should have been sought is equally without merit. We see no “expertise” that an administrative judge would have to offer in this situation.

As the State points out, the process of asking the administrative judge for a postponement is intended as a safeguard because “it is the administrative judge who has an overall view of the court’s business, who is responsible ‘for the administration of the court,’ who assigns trial judges, who ‘supervise^] the assignment of actions for trial,’ who supervises the court personnel involved in the assignment of cases, and who receives reports from such personnel. “Consequently, the administrative judge is ordinarily in a much better position than another judge of the trial court, or an appellate court, to make the judgment as to whether good cause for the postponement of a criminal case exists.” (Footnotes omitted.) (Brackets in original.) State v. Frazier, 298 Md. 422, 453-54 , 470 A.2d 1269 (1984). Such a procedure, generally required for postponements, would have no real value here, since a new date could not be set until appellant’s whereabouts were known. Finally, appellant suggests the case should have been sent to the administrative judge as he or she could have located appellant within the system and brought him to trial within the 180 days. We are not prepared to add that burden to that office where no information is currently made available to the court on appellant’s whereabouts.

OTHER CRIMES EVIDENCE Appellant contends that the trial court erred by permitting the State to introduce evidence of other crimes. Defense counsel filed a motion in limine seeking to exclude from the State’s evidence all references to the circumstances at Montgomery Ward’s on November 17, 1987. Appellant’s attorney indicated that this motion would encompass the videotape obtained from the closed circuit television ²¹¹ monitoring in the store. After hearing argument on the motion in limine, the court ruled that, despite the fact that the videotape was evidence of appellant’s bad act, with a proper limiting jury instruction, the evidence could be admitted because it was relevant and fell under a number of exceptions to the other crimes evidence rule.

The court reserved its ruling on the videotape and granted defense counsel’s request for a continuing objection. Later, the court held that the videotape could be played, observing that, although the video showed appellant’s flight from the store, that flight was a relevant issue in this case. The law in the area of evidence of other crimes has most recently been revisited and reassessed in Harris v. State, 81 Md.App. 247 , 567 A.2d 476 (1989), cert. granted, 319 Md. 111 , 570 A.2d 1244 (1990): “Whenever evidence of prior misconduct is offered for any purpose other than to show propensity, it is, subject only to the universal balancing of relevance and its counterweights, presumptively admissible.” Harris, 81 Md.App. at 270 , 567 A.2d 476 . Harris , however, did not change the law in this area; it simply changed the overall construct from one of exclusionary rule with exceptions to a general rule of inclusion with the exception of showing propensity to commit bad acts.

The Court of Appeals has recently stated that evidence of other crimes is admissible if substantially relevant to prove some essential fact in dispute in the crime on trial. For example, the so-called “mimic” exceptions, which include the identity of the perpetrator, the subject at issue in the case at bar, 4 have long been recognized as supporting the admission of evidence which is also evidence of a defendant’s involvement with another crime. ²¹² But we agree that proof of identity need not be viewed as an exception. As Judge Moylan stated: “The very idea of a lengthy, albeit neat and tidy, laundry list of purposes is an absurdity when the only pertinent question needs to be whether the evidence is relevant to prove guilt in some way other than by showing propensity.” (Footnote omitted.) Harris, 81 Md.App. at 280 , 567 A.2d 476 . Thus, the issue is whether the videotape was relevant to prove appellant’s guilt “in some way other than by showing propensity.” We hold that the trial judge correctly admitted the videotape into evidence.

At oral argument, appellant claimed that his offer to stipulate that he had the credit card vitiated the State’s need for this evidence. At trial, however, defense counsel merely proffered what the State’s evidence would show, and stated that the State could use civilian witnesses rather than police officers to establish appellant’s possession of the credit card in the store. This, as the State observed, is not the equivalent of a stipulation. The identity of the user of the credit card was the focal point of this case since appellant did not admit possession of the credit card.

We find this refusal to admit possession odd since appellant claimed he obtained the credit card from a man named James, and denied having been in Howard County on the day of the incident. We agree with the State that the fact that appellant used the credit card a mere five hours after the breaking and entering was discovered and his flight upon being discovered is relevant to proving appellant’s guilt without simply showing