Snyder v. State

BELL, Chief Judge. The petitioner, William L. Snyder, was tried and convicted of the first degree premeditated murder of his wife and sentenced to life imprisonment. He appealed his conviction and sentence to the Court of Special Appeals, which reversed. See Snyder v. State, 104 Md.App. 533 , 657 A.2d 342 (1995). 1 Following a second trial, the petitioner was again convicted of first degree murder and again sentenced to life imprisonment.

In an unreported opinion, the Court of Special Appeals affirmed the judgment. On certiorari to this Court, the petitioner raises two issues: first, whether the trial court erred when it held that facts establishing that the petitioner did not inquire about the progress of the police investigation into his wife’s murder were admissible as evidence of his consciousness of guilt and, second, whether the trial court erred by permitting the State to introduce testimony, that seven months prior to the murder, the petitioner and the victim had a physical dispute, and that, at some unspecified date during the marriage, the petitioner hit the victim. Answering the first question in the affirmative and the second question in the negative, we shall reverse. I. Mrs. Kay Snyder, the wife of the petitioner, was murdered and, on February 14, 1986, her body was found lying on the ⁵⁸⁷ side of the road across the street from their home.

Seven years later, the petitioner was charged with, and tried for, her murder. At the petitioner’s first trial in the Circuit Court for Baltimore County, the State maintained that the petitioner killed his wife because their marriage was breaking apart and the petitioner wished to retain full ownership of their house and collect as the beneficiary on his wife’s life insurance policy. Without forensic evidence or eyewitness testimony linking the petitioner to the murder, the State based its case solely on circumstantial evidence. During both opening and closing statements, the State stressed this circumstantial evidence, contending that it established that the petitioner was the killer.

That evidence included the petitioner’s behavior the day of the killing, evidence that the killer took pains to delay discovery of the crime, evidence that the murder did not occur during a robbery or sexual assault, evidence of the petitioner’s “stormy” relationship with his wife leading up to the murder, evidence that the petitioner and his wife had a “big fight” the evening before the murder, as well as evidence establishing that the petitioner had a financial motive for the murder. The petitioner denied the charges. He argued instead that he was married to the victim for almost 25 years, that his relationship -with his wife was “great and getting better,” and that “everything ha[d] been great for [the] last three or four months” before the murder. A jury found the petitioner guilty of first degree murder and the court sentenced him to life imprisonment.

On appeal, the Court of Special Appeals reversed the conviction and remanded for a new trial, having concluded that the trial court erred by admitting an investigating officer’s unfairly prejudicial and speculative statements. Snyder, supra, 104 Md.App. at 553-54 , 657 A.2d at 352-53 . The petitioner was retried. Similar to the first trial, and over the petitioner’s objection, the State presented testimony regarding the petitioner’s and the victim’s relationship leading up to the murder.

A friend of the victim testified that she had ⁵⁸⁸ a telephone conversation with the victim the night before the murder and that the victim stated in that conversation that she “just had a fight” with the petitioner, during which the petitioner “told her that she was a dead woman.” The friend also stated that, at the time of this conversation, the victim “was crying and real excited.” “She was upset.” “She was scared.” The State elicited additional testimony, also over the petitioner’s objection, from the daughters of the petitioner regarding a physical dispute between the victim and the petitioner that occurred on July 30, 1985. The trial court stated its reasons for admitting the evidence of the July 30, 1985 dispute: “I think this is a circumstantial case, and the latest analogy used to always say the links of a chain. Now, the writer is saying strands in a cable makes it even thinner than links of a chain. I think he is entitled to show a continuing atmosphere as being the motive.

I agree he has to start somewhere. “So your objection is noted for the record. I’m going to overrule it and allow it. I think it is circumstantial part of motive.” Once again, over the petitioner’s objection, the State was permitted to offer testimony from the investigating authorities regarding the petitioner’s conduct during the months and years following the murder. An investigating officer for the State testified that, since February 20, 1986, the day the petitioner voluntarily went to the police station to give “elimination prints,” 2 the petitioner made no inquiry regarding the status of the police investigation.

In closing argument, the prosecutor was thus able to urge the jury to find this lack of inquiry evidence of a guilty conscience. More particularly, he argued: “If he didn’t do it and he was, as he said, a loving spouse that cared about his wife, the relationship, that things were ⁵⁸⁹ getting better, if that were true, wouldn’t he have called the police to inquire at the very least.” The petitioner was again convicted and sentenced to life imprisonment. He appealed the conviction to the Court of Special Appeals, where he argued, inter alia, that the trial court erred by admitting the evidence concerning the July 30, 1985 physical dispute and evidence regarding his failure to inquire about the status of the police investigation. The Court of Special Appeals affirmed the conviction, reasoning that “[i]n combination with evidence of [the petitioner’s] efforts to hinder the investigation, 3 [the petitioner’s] failure or refusal to maintain contact with the investigating officers was admissible circumstantial evidence of guilt.” With regard to the petitioner’s relationship with his wife, that court reasoned that evidence of the petitioner’s “stormy” relationship with her was properly admitted because, the evidence was: “not offered to establish a propensity for violent conduct.

The State was entitled to establish that appellant had both a personal motive and an economic motive to murder the victim.” The petitioner filed a timely petition for certiorari, which we granted in order to consider the important evidentiary issues raised.

II

A. First, the petitioner argues that the evidence offered to establish that he did not inquire about the progress of the police investigation into his wife’s murder was inadmissible to ⁵⁹⁰ prove a consciousness of guilt. He contends that culpability for murdering his wife cannot logically be inferred from the failure to inquire. Citing Bedford v. State, 317 Md. 659, 667-68 , 566 A.2d 111, 115 (1989), and Pettie v. State, 316 Md. 509, 519-20 , 560 A.2d 577, 581-82 (1989), the petitioner argues that, because, as it is in this case, the failure to inquire is so ambiguous and is subject to so many interpretations, evidence of the lack of inquiry cannot be probative of consciousness of guilt and, therefore, simply is irrelevant. The State disagrees.

It argues that the petitioner misreads the threshold requirement for evidence to be considered relevant, and contends that the trial court properly admitted the evidence. Citing McCormick on Evidence § 185, at 887 (4th ed.1992), the State maintains that most evidence offered at trial has some probative value and that, indeed, virtually all human conduct is subject to more than one interpretation or explanation. 4 In this case, it argues, the petitioner’s failure to inquire into the police investigation was probative on a “hotly contested issue — the nature of [the petitioner’s] relationship with his wife.” Therefore, the state contends, the ambiguity and competing inferences about which the petitioner complains do not affect admissibility, but rather go to the weight that the trier of fact determines to give the evidence. In sum, the State argues that, “[t]he jury in this case, looking to the circumstances as whole, could reasonably infer that, if [the petitioner] was a loving spouse, as his counsel insisted he was, he would have called police sometime in [the] months and years following his wife’s murder to ask about the progress of their investigation.” B. The rules governing the admissibility of evidence are contained in Chapter 400 of the Maryland Rules of Evidence. ⁵⁹¹ The first rule in that chapter, Md. Rule 5-401, defines “relevant evidence.” It provides: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (Emphasis added). This Court has applied and discussed this definition.

See, e.g., Conyers v. State, 354 Md. 132, 176 , 729 A.2d 910, 933 (1999), cert. denied, 528 U.S. 910 , 120 S.Ct. 258 , 145 L.Ed.2d 216 (1999); Hopkins v. State, 352 Md. 146 , 721 A.2d 231 (1998); Smallwood v. Bradford, 352 Md. 8, 26-27 , 720 A.2d 586, 595-96 (1998); Merzbacher v. State, 346 Md. 391 , 697 A.2d 432 (1997). While often noting the important distinction between weight and admissibility and favoring a policy of broad admissibility, we have consistently held that a party seeking to establish the relevancy of proffered evidence does not have to demonstrate that the evidence is weighty enough to carry that party’s burden of persuasion. See Md. Rule 5-401. See also Conyers v. State, 354 Md. at 176 , 729 A.2d at 933 ; Hopkins, 352 Md. at 159 , 721 A.2d at 237 ; Smallwood, 352 Md. at 26-27 , 720 A.2d at 595-96 ; Merzbacher v. State, 346 Md. at 404-405 , 697 A.2d at 439 .

In fact, Rule 5-401 articulates the threshold that must be reached; that threshold expressly requiring only that the evidence have “any tendency” to prove a fact of consequence to the cause of action. Relevance is a relational concept. Accordingly, an item of evidence can be relevant only when, through proper analysis and reasoning, it is related logically to a matter at issue in the case, i.e., one that is properly provable in the case. See Md. Rule 5-401.

See also Williams v. State, 342 Md. 724, 736 , 679 A.2d 1106, 1112 (1996). In order to find that such a relationship exists, the trial court must be satisfied that the proffered item of evidence is, on its face or otherwise, what the proponent claims that item to be, and, if so, that its admission increases or decreases the probability of the existence of a material fact. See, e.g., Pettie, 316 Md. at 519-20 , 560 A.2d at 582 (declining to reach issue of whether proffered ⁵⁹² evidence was admissible because facts did not support conclusion that evidence was what proponent claimed it to be). See also Pappaconstantinou v. State, 352 Md. 167, 181 , 721 A.2d 241, 248 (1998) (observing that “[o]bviously, evidence that the trial judge deems unreliable or untrustworthy is not probative to any fact that is of consequence to the determination of the case, and hence, is not relevant evidence”).

Moreover, the relevancy determination is not made in isolation. Instead, the test of relevance is whether, in conjunction with all other relevant evidence, the evidence tends to make the proposition asserted more or less probable. Spector v. State, 289 Md. 407, 434 , 425 A.2d 197, 211 (1981). Md. Rules 5-402 and 5-403 provide additional guidance with respect to the admissibility of relevant evidence.

Rule 5-402 provides: “Except as otherwise provided by constitutions, statutes, or these rules, or by decisional law not inconsistent with these rules, all relevant evidence is admissible. Evidence that is not relevant is not admissible.” (Emphasis added). Rule 5-403 makes clear, by prescribing a balancing test, that relevancy is not the only test for admissibility of evidence. That rule provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” (Emphasis added). 5 Therefore, evidence which meets the definition of “relevant evidence” under Rule 5-401, and which, ⁵⁹³ therefore, would be admissible under Rule 5-402 as having logical relevance, may nonetheless be excluded under Rule 5-403.

See, e.g., Merzbacher, 346 Md. at 404 , 697 A.2d at 439 ; Williams, 342 Md. at 737 , 679 A.2d at 1113 ; Md. Rule 5-403. If relevant, circumstantial evidence regarding a defendant’s conduct may be admissible under Md. Rule 5-403, not as conclusive evidence of guilt, but as a circumstance tending to show a consciousness of guilt. Hunt v. State, 312 Md. 494, 503-04 , 540 A.2d 1125, 1129-30 (1988); Wright v. State, 312 Md. 648, 654-655 , 541 A.2d 988, 991 (1988); Davis v. State, 237 Md. 97, 105-106 , 205 A.2d 254, 259 (1964), cert. denied, 382 U.S. 945 , 86 S.Ct. 402 , 15 L.Ed.2d 354 (1965); Westcoat v. State, 231 Md. 364, 368 , 190 A.2d 544, 546 (1963). Thus, this Court has held that, through a series of inferences, evidence of a defendant’s behavior after the commission of a crime may be admissible.

See, e.g., Whittlesey v. State, 340 Md. 30, 59-62 , 665 A.2d 223, 238 (1995) (holding that other crimes evidence, consisting of testimony about the defendant’s admission of other crimes, properly admitted under special circumstances indicating defendant’s consciousness of guilt); Hunt v. State, supra, 312 Md. at 503-504, 540 A.2d at 1129-30 (determining evidence that defendant escaped or attempted to escape from custody admissible as inference to prove a consciousness of guilt); Wright v. State, supra, 312 Md. at 654-655, 541 A.2d at 991-92 (admitting evidence that defendant concealed his identity as supporting inference of the defendant’s consciousness of guilt). But cf., Bedford v. State, supra, 317 Md. at 667-68 , 566 A.2d at 115 (determining evidence of defendant’s possession of wire after arrest inadmissible as evidence of plan to escape and therefore inadmissible as evidence of a consciousness of guilt because, under the facts of the case, “[t]he possession of the wire [was] so equivocal” that its admission into evidence was more prejudicial than probative and did not make the proposition asserted more probable). ⁵⁹⁴ Consciousness of guilt can be inferred either from some “pre-arrest silence,” Grier v. State, 351 Md. 241, 252 , 718 A.2d 211, 217 (1998) (holding pre-arrest silence may be admissible as substantive evidence of guilt, on a case-by-case basis, when it amounts to a tacit admission); cf. Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976) (determining, in a post-arrest context, that Miranda 6 warnings contain an implicit assurance that silence will carry no penalty), or from the “failure to inquire.” See State v. Marshall, 123 N.J. 1 , 586 A.2d 85, 143-46 (1991) (inquiring too little led to an inference of a consciousness of guilt). The standard of proof for prearrest silence is more stringent than the standard of proof for failure to inquire. See id. at 146 (noting that pre-arrest silence, that of refusing to answer questions, enjoys constitutional protection).

As such, if consciousness of guilt cannot be inferred from pre-arrest silence, then it would appear that, clearly, it may not be inferred from a failure to inquire. When viewed in the context of the petitioners right to remain silent, the admission of the petitioner’s silence as evidence of his consciousness of guilt in the case sub judice has an element of unfairness, and is not very probative of that fact. See, e.g., Grier v. State, 351 Md. 241, 252 , 718 A.2d 211, 217 (opining that “[ejvidence of a person’s silence is generally inadmissible because ‘[i]n most circumstances silence is so ambiguous that it is of little probative force’ ”) (internal ⁵⁹⁵ citation omitted). Indeed, when the suspect has a right to remain silent, evidence that a suspect refused to speak with the police is not ordinarily admissible to prove his or her consciousness of guilt.

Id. at 252-53 , 718 A.2d 211 . In the case sub judice, the petitioner was considered a suspect in his wife’s murder. Although the petitioner declined to speak about his wife’s murder, he voluntarily cooperated with authorities, giving exemplars of his fingerprints, hair and blood as requested. Under these circumstances, the petitioner’s silence is too equivocal to be probative.

Simply because the authorities were not required to advise the petitioner of his right to remain silent until they subjected him to a custodial interrogation does not mean that the petitioner’s silence prior to that occurrence should receive less protection or that the petitioner may be penalized on that account. Many of our sister states that have considered this issue have expressed their distrust of evidence of pre-arrest silence as probative of a consciousness of guilt, noting its inherently low probative value and its high potential for unfair prejudice. See Commonwealth v. Thompson, 431 Mass. 108, 116 , 725 N.E.2d 556, 565 (2000) (determining defendant’s prearrest silence, blank stares and failure to inquire about his wife’s murder properly excluded as evidence of consciousness of guilt); Silvernail v. State, 777 P.2d 1169, 1175 (Alaska App.1989) (noting a “distrust of silence as probative evidence of guilt”); Commonwealth v. Nickerson, 386 Mass. 54, 62 , 434 N.E.2d 992, 995 (1982) (noting “impeachment of a defendant with the fact of his pre-arrest silence should be approached with caution”); Commonwealth v. Harris, 371 Mass. 462, 477 , 358 N.E.2d 982, 991 (1976) (holding defendant’s hanging his head and biting his lips not admissible as nontestimonial admission demonstrating consciousness of guilt). See also People v. Quintana, 665 P.2d 605, 610 (Colo.1983); People v. Conyers, 52 N.Y.2d 454, 458-59 , 438 N.Y.S.2d 741, 743 , 420 N.E.2d 933, 936 (1981).

In the case sub judice, the State does not attempt to infer consciousness of guilt from the petitioners pre-arrest ⁵⁹⁶ silence, its focus being on the petitioner’s subsequent failure to inquire about the progress of the police investigation into his wife’s murder. The relevance of the petitioner’s failure to inquire depends upon whether that evidence supports four inferences: from the failure to inquire, satisfaction of the case not being solved or actively pursued; from the satisfaction of the case not being solved or actively pursued, a consciousness of guilt; from a consciousness of guilt, a consciousness of guilt of murder; and from a consciousness of guilt of murder, actual guilt of murder. We believe that, under the circumstances of this case, evidence that the defendant failed to call the police to inquire about the status of the investigation, even for seven years, is too ambiguous and equivocal to support such inferences. At best, the admission of the evidence invites the jury to speculate.

The jury is asked to presume that the petitioner’s failure to inquire is probative of the absence of a loving relationship between the petitioner and his wife and then to speculate as to the connection between the petitioner’s relationship with his wife and his wife’s murder, assuming in the process, that the petitioner’s failure to inquire is indicative of a guilty conscience. These assumptions and speculations lack probative value where, as in this case, the State has presented no testimony or evidence, from the investigating authorities or any other source, either as to the general response of family members during a murder investigation or of any specific responses or types of inquires made by members of the Snyder family in this particular case. Moreover, the State presented no evidence that the petitioner was requested by the authorities to inquire regularly and certainly, it produced no evidence that the petitioner voluntarily stated that he would regularly inquire. Thus, there is no evidentiary basis for the conclusion that the jury drew.

This Court’s holding in Pettie v. State, 316 Md. 509 , 560 A.2d 577 (1989), is instructive. There, the petitioner, while an inmate at the Maryland Correctional Training Center, was charged with committing various sexual acts, including sodomy, upon another inmate. Id. at 512 , 560 A.2d at 578 . The ⁵⁹⁷ State was permitted to introduce, at trial, evidence that, after being charged and placed on administrative segregation, a guard had been called to defendant’s cell by another inmate who had found an apparent suicide note, where the defendant was discovered, “non responsive but conscious,” with a single cut to his wrist, id. at 512 , 560 A.2d at 578 , that, in other words, the defendant had attempted suicide.

The State’s theory was that evidence of the defendant’s attempted suicide tended to prove the defendant’s consciousness of guilt. Pettie, supra, at 509 , 560 A.2d at 577 . The Court of Special Appeals having affirmed the trial court’s judgment, Pettie v. State, 70 Md.App. 602 , 522 A.2d 394 (1987), we then granted certiorari to consider, inter alia, the defendant’s challenge to the admission of that evidence. We held that the evidence offered by the State of the attempted suicide was not probative and, therefore, irrelevant.

Judge Cole, writing for the Court, explained: “As a general matter, evidence of conduct of the accused subsequent to the charged criminal offense is admissible if probative of culpability. See 29 Am.Jur.2d, Evidence § 278. Evidence has been admitted which tends to show the accused resisted arrest, Bird v. United States, 187 U.S. 118 , 23 S.Ct. 42 , 47 L.Ed. 100 (1902); took to flight or concealment prior to arrest, Allen v. United States, 164 U.S. 492 , 17 S.Ct. 154 , 41 L.Ed. 528 (1896); suppressed or destroyed evidence, Hickory v. United States, 160 U.S. 408 , 16 S.Ct. 327 , 40 L.Ed. 474 (1896); escaped or attempted to escape from custody, Hunt v. State, 312 Md. 494 , 540 A.2d 1125 (1988); concealed his identity, Wright v. State, 312 Md. 648 , 541 A.2d 988 (1988); attempted suicide, State v. Campbell, 146 Mont. 251 , 405 P.2d 978 (1965); possessed weapons, People v. Northcott, 209 Cal. 639 , 289 P. 634 (1930); possessed stolen property, State v. Barnes, 47 Or. 592 , 85 P. 998 (1906); or engaged in similar conduct. See Wigmore, Evidence, § 276 (3d ed.1940). “Under Maryland law, evidence of a defendant’s flight is admissible, not as conclusive of guilt, but as a circumstance tending to show a consciousness of guilt.

Wright v. State, ⁵⁹⁸ supra, 312 Md. 648 , 541 A.2d 988 ; Hunt v. State, supra, 312 Md. 494 , 540 A.2d 1125 ; Davis v. State, 237 Md. 97 , 205 A.2d 254 (1964), cert. denied, Davis v. Maryland, 382 U.S. 945 , 86 S.Ct. 402 , 15 L.Ed.2d 354 (1965); Westcoat v. State, 231 Md. 364 , 190 A.2d 544 (1963). “As we see it, however, attempted suicide cannot easily be circumscribed, as that act is subject to innumerable interpretations. Even if we were to agree that evidence of attempted suicide is admissible as analogous to flight and implies a consciousness of guilt (and we do not decide that issue), the facts here simply do not support the conclusion that Pettie tried to Mil himself at all, much less that he did so as a reaction to any attack on or sodomy of [the victim].” Id. at 519-20, 560 A.2d at 581-82 . To be sure, the Pettie Court recognized that, in other jurisdictions, attempted suicide has been considered probative of a consciousness of guilt. This Court did not reach the issue, however, because the ambiguity and equivocal nature of the facts surrounding the alleged act did not satisfy the Court that the act was what the State purported it to be.

As relevance only has meaning in the context of the relationship between the proffered item and the matter properly provable in the case, we concluded that the proffered evidence had no logical relevance and, therefore, the proffered evidence could not reasonably affect an assessment of the fact to be inferred, i.e., that the defendant attempted suicide, leading to a conclusion that he did so as result of a consciousness of guilt. Id. at 520, 560 A.2d at 582 . If, as a general proposition, evidence of a defendant’s failure to inquire about the progress of a police investigation were probative of a consciousness of guilt, any reaction or failure to react to the death of a loved one by a family member or friend could be construed to be probative of guilt. Therefore, the fact that a defendant failed to inquire about the police investigation, as in this case, see State v. Marshall, 123 N.J. 1 , 586 A.2d 85, 143-46 (1991) (inquiring too little led to conviction), or inquired too often, see Smithart v. State, 946 P.2d 1264 , 1275 ⁵⁹⁹ (Alaska App.1997) (inquiring too much equaled suspicion, which led to conviction), would suffice to support a jury verdict.

So too, would evidence that the defendant inquired or grieved in a way that the State deemed out of the norm, irrespective of the significant ambiguity of the conduct. This would place a potential defendant in the perennial unenviable position of being caught between a rock and a hard place. The State’s reliance upon State v. Marshall is misplaced. In Marshall , the defendant offered a $10,000 dollar reward to anyone with information helpful in locating his wife’s killer and a letter was sent to the prosecutor’s office stating that he was willing to cooperate and divulge any required information, 586 A.2d at 144 , but during the resulting investigation, he failed to inquire about the progress of finding his wife’s murderer.

Rejecting the defendant’s contention that the prosecutor’s cross examination regarding his failure to inquire infringed on his privilege against self-incrimination, id. at 144 , the court, noting the defendant’s actions in offering the reward and communicating with the police, opined, "[t]he prosecutor’s inquiry did not address defendant’s refusal to admit or reveal his own guilt, but rather questioned an aspect of his conduct that appeared to conflict with his avowed interest in tracing down his wife’s murderer.” Id. at 146 . Thus, in the case sub judice, because the petitioner never indicated an avowed interest in tracking down his wife’s murderer, Marshall is not at all analogous and its holding is inapplicable. Even if, as the State urges, the failure to inquire about the police investigation has some probative value, we are nevertheless convinced that the trial court abused its discretion in admitting the evidence in this case. As we have seen, there is a strong policy in favor of the admission of logically relevant evidence so long as the proffered evidence satisfies the requirements of Md. Rule 5-103, ie., its probative value is not substantially outweighed by the danger of unfair prejudice.

Once evidence is determined to be relevant, the question is what inferences, together with all of the other relevant evidence, can the jury draw from the evidence. Any probative value evidence of failure to inquire has is slight compared to ⁶⁰⁰ the substantial danger that it will result in unfair prejudice. See Bedford v. State, supra, 317 Md. 659 , 566