Solomon v. State

MOYLAN, Judge. This case involves one consummated carjacking and two attempted carjackings, all of which occurred within a tight ³³⁴ geographic radius in the. southern corner of Howard County and within the narrow time frame of between fifteen and twenty-five minutes on the morning of September 8, 1992. The consummated carjacking resulted in a first-degree murder as tragic and as vicious as any that the pages of these reports have ever been called upon to recount. The trial of the appellant, Rodney Eugene Solomon, was removed from Howard County to Baltimore County.

A codefendant, Bernard Miller, was tried in Howard County, was convicted of first-degree felony murder and other offenses, and was sentenced to a term of life imprisonment plus ten years. A Baltimore County jury, presided over by Judge Dana M. Levitz, subsequently convicted the appellant of the first-degree murder of Pam Basu, the robbery of Pam Basu, the kidnapping of Pam Basu, the kidnapping of one-year-old Sarina Basu, the robbery of Grace Lagaña, and the assault with intent to rob Laura Ann Becraft. The jury sentenced the appellant to life imprisonment without the possibility of parole. Denial of Trial Severance Although the appellant raises the single contention that Judge Levitz erroneously denied his motion for separate trials of the charges with respect to each of the three adult victims, he fragments the claim into three sub-contentions.

He maintains that the State failed to establish: 1) that the evidence with respect to each of the three sets of charges would be mutually admissible if the three sets of charges were tried separately; 2) that each of the three criminal episodes was proved to the satisfaction of the trial judge by the clear and convincing standard of persuasion before evidence as to it was received in evidence at the trial; and 3) that the probative value, including need, for the incremental evidence outweighed the potential prejudice against the appellant. ³³⁵ A Blurred Boundary: Avoiding the Pitfalls Before we can begin to address any of those sub-contentions (and perhaps to dismiss one or two as totally inapposite to the issue before us), there is some serious sorting out that must be done and a doctrinal boundary line that needs to be clearly defined. The appellant has indiscriminately mixed two distinct, albeit partially overlapping, legal doctrines. His confusion is understandable because some of our case law has, within the last several years, lapsed into the same error of uncritically commingling two separate sets of legal principles. We need carefully to compartmentalize the procedural issue of joinder/severance from the evidentiary issue of the admissibility of “other crimes” evidence.

They are not the same. They call for different analyses. The applicability of one to the question at hand does not imply the applicability of the other. Wieland v. State, 101 Md.App. 1 , 643 A.2d 446 (1994).

Trial Joinder and Severance: A Problem of Criminal Procedure The closely related problems of when to join multiple defendants for a consolidated trial and when to join multiple charges against a single defendant for a consolidated trial are time-honored aspects of criminal procedure. Maryland Rule 4-253 covers the subject of “Joint or Separate Trials.” Subsection (a) deals with the “Joint Trial of Defendants”: On motion of a party, the court may order a joint trial for two or more defendants charged in separate charging documents if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Subsection (b) deals with the parallel problem of the “Joint Trial of Offenses”: If a defendant has been charged in two or more charging documents, either party may move for a joint trial of the charges. In ruling on the motion, the court may inquire into the ability of either party to proceed at a joint trial. ³³⁶ Subsection (c) provides a remedy when it appears that there may be a “Prejudicial Joinder”: If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires.

The joinder/severance problem is a classic aspect of the law of criminal procedure. See, e.g., 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure Ch. 17 “The Scope of the Prosecution: Joinder and Severance,” (1984). Unlike the merely evidentiary issue of when, in the course of an ongoing trial, to admit evidence of “other crimes” or “other bad acts,” the joinder/severance issue must be resolved, of necessity, pretrial. The evidentiary problem, by contrast, may arise randomly throughout the course of a trial.

McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977), was the first sophisticated and in-depth analysis we have ever had in Maryland of joinder/severance law. Judge Levine there pointed out, 280 Md. at 608-609 , 375 A.2d 551 , how the Maryland rule (now Maryland Rule 4-253, formerly Maryland Rule 745) is patterned on Rule 14 (and Rule 8) of the Federal Rules of Criminal Procedure and how that mutual standard “is merely a restatement of the test applied at common law.” 280 Md. at 608 , 375 A.2d 551 . See Simmons v. State, 165 Md. 155, 165-166 , 167 A. 60 (1933); Wanzer v. State, 202 Md. 601, 608 , 97 A.2d 914 (1953); State v. McNally, 55 Md. 559, 563-564 (1881); State v. Bell, 27 Md. 675, 678 (1867); McElroy v. United States, 164 U.S. 76, 80-81 , 17 S.Ct. 31, 32-33 , 41 L.Ed. 355 (1896); Pointer v. United States, 151 U.S. 396, 403 , 14 S.Ct. 410, 412-13 , 38 L.Ed. 208 (1894). The progeny of McKnight now includes Lebedun v. State, 283 Md. 257 , 390 A.2d 64 (1978); State v. Jones, 284 Md. 232 , 395 A.2d 1182 (1979); Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980); Graves v. State, 298 Md. 542 , 471 A.2d 701 (1984); Osburn v. State, 301 Md. 250 , 482 A.2d 905 (1984); State v. Edison, 318 Md. 541 , 569 A.2d 657 (1990); State v. Kramer, ³³⁷ 318 Md. 576 , 569 A.2d 674 (1990); and Frazier v. State, 318 Md. 597 , 569 A.2d 684 (1990).

The decisions of this Court following the McKnight analysis include Shingleton v. State, 39 Md.App. 527 , 387 A.2d 1134 , cert. denied, 283 Md. 738 (1978); Ellerba v. State, 41 Md.App. 712 , 398 A.2d 1250 (1979); Stevenson v. State, 43 Md.App. 120 , 403 A.2d 812 (1979); Erman v. State, 49 Md.App. 605 , 434 A.2d 1030 (1981); Epps v. State, 52 Md.App. 308, 450 A.2d 913 (1982); Samuels v. State, 54 Md.App. 486 , 459 A.2d 213 (1983); Sye v. State, 55 Md.App. 356, 468 A.2d 641 (1983); McKinney v. State, 82 Md.App. 111 , 570 A.2d 360 (1990); Moore v. State, 84 Md.App. 165 , 578 A.2d 304 (1990); Cook v. State, 84 Md.App. 122 , 578 A.2d 283 (1990), cert. denied, 321 Md. 502 , 583 A.2d 276 (1991); Marks v. State, 84 Md.App. 269 , 578 A.2d 828 (1990); Manuel v. State, 85 Md.App. 1, 581 A.2d 1287 (1990); cert. denied, 322 Md. 131 , 586 A.2d 13 (1991); Kearney v. State, 86 Md.App. 247 , 586 A.2d 746 , cert. denied, 323 Md. 34 , 591 A.2d 250 (1991); Ogonowski v. State, 87 Md.App. 173 , 589 A.2d 513 , cert. denied, 323 Md. 474 , 593 A.2d 1127 (1991); Eiland v. State, 92 Md.App. 56 , 607 A.2d 42 (1992), rev’d on other grounds sub nom. Tyler v. State, 330 Md. 261, 623 A.2d 648 (1993); Wieland v. State, 101 Md.App. 1 , 643 A.2d 446 (1994). This entire line of cases concerns the joinder/severance procedural question and not the admissibility of evidence of “other crimes” or “other bad acts.” Joinder/severance law, to be sure, would never be concerned with “other bad acts” in any event, for one does not go on trial, jointly or severally, for a “bad act.” Evidence of “Other Crimes” As a distinct body of law, the inadmissibility of “other crimes” evidence to show a criminal propensity contrasted with the admissibility of such evidence to show such matters as motive, intent, absence of mistake, identity, common scheme or plan, criminal signature in terms of modality, etc., is classic grist for the law of evidence. See, e.g., Lynn ³³⁸ McLain, Maryland Practice: Maryland Evidence, § 404.5 at 352-357 (1987); Joseph F. Murphy, Jr., Maryland Evidence Handbook, § 518(E) at 181-196 (1989); C. McCormick, Evidence, § 190 at 557-565 (E. Cleary 3d ed.) (1984); 2 Wigmore on Evidence, ch. 13, Other Offenses or Similar Acts, as Evidence of Motive, Design, or Intent, at 235-378 (Chadbourne rev. 1979).

There is a substantial and distinct body of case law dealing with this evidentiary question. The leading opinions are Ross v. State, 276 Md. 664 , 350 A.2d 680 (1976); Cross v. State, 282 Md. 468 , 386 A.2d 757 (1978); Straughn v. State, 297 Md. 329 , 465 A.2d 1166 (1983); State v. Faulkner, 314 Md. 630 , 552 A.2d 896 (1989); Harris v. State, 324 Md. 490 , 597 A.2d 956 (1991); Terry v. State, 332 Md. 329 , 631 A.2d 424 (1993); Anaweck v. State, 63 Md.App. 239 , 492 A.2d 658 , cert. denied, 304 Md. 296 , 498 A.2d 1183 (1985). The definitive analysis is the outstanding opinion of Judge Adkins in State v. Faulkner. It was Faulkner that prescribed for the first time the procedural steps that must be taken before a trial judge rules evidence of “other crimes” to be admissible.

Judge Adkins pointed out that the first determination—whether the evidence fits within a legitimate exception to the rule of presumptive exclusion—is a legal determination not calling for any exercise of discretion: When a trial court is faced with the need to decide whether to admit evidence of another crime—that is, evidence that relates to an offense separate from that for which the defendant is presently on trial—it first determines whether the evidence fits within one or more of the Ross exceptions. That is a legal determination and does not involve any exercise of discretion, (citations omitted). 314 Md. at 634-635 , 552 A.2d 896 . The second procedural step calls for preliminary fact finding by the trial judge. The allusion to some other crime allegedly committed by the defendant may be no more than a bald and unsubstantiated assertion by the witness.

The alleged crime may never have led to an arrest, let alone a conviction. ³³⁹ Indeed, it may never have been investigated or even discovered. It is for that reason that the trial judge needs to be persuaded, by the clear and convincing standard, that the alleged crime did, indeed, take place before he allows evidence of it to come into evidence. Judge Adkins explained: If one or more of the exceptions applies, the next step is to decide whether the accused’s involvement in the other crimes is established by clear and convincing evidence. We will review this decision to determine whether the evidence was sufficient to support the trial judge’s finding, (citations omitted). 314 Md. at 635 , 552 A.2d 896 .

Because the weight to be given the preliminary evidence as to the existence of the other crime is of necessity for the trial judge in his ancillary fact-finding capacity, the reviewing court, under the clearly erroneous standard, is limited to determining the existence of a prima facie case in that regard. The third step for the trial judge is discretionary. Even when the first two hurdles have been cleared, the judge must still weigh the necessity for and probative value of “other crimes” evidence against any undue prejudice that it may cause the defendant: If this requirement is met, the trial court proceeds to the final step. The necessity for and probative value of the “other crimes” evidence is to be carefully weighed against any undue prejudice likely to result from its admission.

This segment of the analysis implicates the exercise of the trial court’s discretion, (citations omitted). 314 Md. at 635 , 552 A.2d 896 . This, then, is the procedure to be followed when a trial judge makes an evidentiary ruling on whether to admit evidence of “other crimes.” It is a procedure, however, that has no applicability to the joinder/severance issue and no proper place, therefore, in any joinder/severance analysis. There is a substantive overlap between the two bodies of law, but no procedural overlap. ³⁴⁰ The Limited Substantive Overlap In MeKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977), Judge Levine broke new ground in two respects. All of the preceding case law had spoken of the joinder/severance question as one entrusted to the broad discretion of the trial judge.

It was unclear, however, what limits, if any, there might be on the exercise of that discretion. Judge Levine pointed out that “[t]wo lines of authority have emerged from the cases seeking to reconcile the conflicting considerations of prejudice and economy within the framework of discretion accorded the trial judge.” 280 Md. at 610 , 375 A.2d 551 . One line of cases held that “a severance should be ordered where there has been a joinder of similar but unrelated offenses, if the evidence as to each crime would not be mutually admissible at separate trials.” Id. He then pointed out that “[ajnother line of cases has taken a different position.” Id.

That second position vested continuing discretion in the trial judge to join separate charges for trial even where the evidence would not be mutually admissible, if it appeared that the jury would “ ‘be able to treat the evidence relevant to each charge separately and distinctly.’ ” 280 Md. at 611 , 375 A.2d 551 , quoting Drew v. United States, 331 F.2d 85, 91-92 (D.C.Cir.1964). The first ground-breaking step taken by the MeKnight decision was to hold that, in a jury trial at least, severance was absolutely mandated, as a matter of law, when the evidence with respect to the separate charges (or, presumably, with respect to separate defendants) would not be mutually admissible. In a jury trial, on this issue no discretion remains. In Graves v. State, 298 Md. 542 , 471 A.2d 701 (1984), Judge Orth characterized the significance of the McKnight decision in this regard, 298 Md. at 545-546 , 471 A.2d 701 : The MeKnight holding took away the discretion of the trial judge presiding at a jury trial to join similar offenses where the evidence as to them was not mutually admissible.

As we have indicated, in such circumstances, there was prejudice as a matter of law which compelled separate ³⁴¹ trials. The rationale underlying the McKnight holding was our concern that a jury would be unable to set aside the likely prejudice engendered by the joinder, (emphasis supplied). In Kearney v. State, 86 Md.App. 247 , 586 A.2d 746 , cert. denied, 323 Md. 34 , 591 A.2d 250 (1991), Chief Judge Wilner similarly described the impact of McKnight, 86 Md.App. at 253 , 586 A.2d 746 : [I]n a jury trial, “a defendant charged with similar, but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials.” Indeed, where the evidence at a joint jury trial is not mutually admissible because of “other crimes” evidence, there is prejudice as a matter of law which compels separate trials, (citation omitted) (emphasis in original). See also Frazier v. State, 318 Md. 597, 608-609 , 569 A.2d 684 (1990); State v. Jones, 284 Md. 232, 239 , 395 A.2d 1182 (1979); McKinney v. State, 82 Md.App. 111, 119 , 570 A.2d 360 (1990); Samuels v. State, 54 Md.App. 486, 491 , 459 A.2d 213 (1983).

In a court trial, by way of significant contrast, discretion still remains in the trial judge to deny a severance even though evidence as to separate charges or separate defendants is not mutually admissible. Graves v. State, 298 Md. 542, 544-550 , 471 A.2d 701 (1984). The second big step taken by the McKnight decision was the one that created the partial substantive overlap between joinder/severance law and “other crimes” evidence law. In a jury trial at least, the mutual admissibility of evidence had become the necessary precondition for ordering the joinder for trial of separate defendants or separate charges.

To determine the admissibility of evidence, mutual or otherwise, the trial judge must look to the appropriate part of the law of evidence. A determination of mutual admissibility, after all, consists of two determinations of one-directional admissibility. In the context of joinder/severance, moreover, the subject matter of the charges against a separate defendant or of ³⁴² separate charges against the same defendant is, by definition, “other crimes.” To determine mutual admissibility, therefore, the judge has to look to the circumstances under which evidence of “other crimes” would be admitted in the trial of a single defendant on a single charge. McKnight v. State itself looked to Ross v. State, 276 Md. 664 , 350 A.2d 680 (1976) for evidentiary guidance.

Today, we look to the whole line of cases, represented most prominently by Ross v. State, Cross v. State, 282 Md. 468 , 386 A.2d 757 (1978); State v. Faulkner, 314 Md. 630 , 552 A.2d 896 (1989); and Harris v. State, 324 Md. 490 , 597 A.2d 956 (1991). Unremarkably, when joinder/severance law faces an evidentiary problem, it naturally looks to the law of evidence for the solution. The two different bodies of law, however, only overlap to this limited extent. Even substantively, joinder/severance law only looks to the law of evidence, of necessity, where the consolidated case is to be a jury trial and where mutual admissibility is thus required.

If the consolidated case is to be a court trial, mutual admissibility is not an absolute requirement for joinder and this particular branch of the law of evidence is not automatically engrafted onto the joinder/severance decision. A fortiori, the procedural aspects of severance/joinder law do not subsume the procedural aspects of “other crimes” evidence law, for the two settings are, procedurally, totally dissimilar. The Procedural Non-Overlap It is here, however, that an uncritically drawn and false analogy has worked some recurring mischief. Joinder/severance determinations frequently look to the Ross-Cross-Faulkner-Harris line of cases for evidentiary guidance.

That, however, by no means suggests that they should, as a Pavlovian response, look to that line of cases, particularly State v. Faulkner, for procedural guidance. Faulkner purported to do no more than set out a series of procedural steps that should be taken to determine the admissibility of “other crimes” and “other bad acts” evidence in the context of a single charge against a single defendant. It was not considering in any way, ³⁴³ let alone prescribing for, the very different problem of joinder/severance. The first necessary step discussed by Faulkner is the purely substantive determination of whether evidence of another crime is prima facie admissible, singly or mutually, by virtue of its utility to prove motive, intent, absence of mistake, identity, common scheme or plan, etc. It is here that the evidence law is indistinguishable from joinder/severance law, at least in the context of a jury trial, and the identity between the respective legal analyses is a true one.

The McKnight line of cases and the Ross-Faulkner line of cases are dealing with precisely the same evidentiary phenomenon. It is at that point, however, that Faulkner’s three-step analysis turns from substantive to procedural matters and at that point that the overlap ends. The second step prescribed by Faulkner is for the trial judge “to decide whether the accused’s involvement in the other crimes is established by clear and convincing evidence.” 314 Md. at 634 , 552 A.2d 896 . In the context of the trial of a single charge, such a requirement is appropriate and necessary.

Some underworld acquaintance of a defendant, now turned State’s witness, may be seeking to toss into the trial gratuitous insinuations of crime from “out of the blue.” It may be some oblique reference or •wild charge as to his and the defendant’s having been “involved in the rackets together” or having “pushed dope together” an indeterminate number of years before. Such unsubstantiated references, moreover, may have resulted in neither convictions nor trials nor indictments nor arrests nor even reports of crime. Obviously, the judge should make some screening decision as to the reliability or trustworthiness of such allusions to other crimes before permitting them to influence, and perhaps to contaminate, the jury. In the joinder/severance situation, by contrast, there is no such problem.

All crimes charged, and, therefore, amenable to the possible joinder, are the considered products of grand jury indictments or criminal informations. Between the arrest and the trial table, two or three screening procedures have ³⁴⁴ already been satisfied. The joinder/severance problem is not that of the careless, malicious, or loose-lipped witness. In the purely evidentiary setting, moreover, there is a clearly identifiable criminal charge that is the centerpiece of the trial and the so-called “other crime” is merely a peripheral incident, perhaps never to be received in evidence in that or any other trial.

In the joinder/severance situation, by contrast, all the criminal charges involved are of equal stature. In the joinder context, who is to say which is the base crime and which is merely the “other crime?” It was of this false analogy between the two bodies of law that we spoke in Wieland v. State, 101 Md.App. 1 , 643 A.2d 446 (1994): The second step in testing “other crimes” evidence, according to Faulkner , is for the State to convince the trial judge by the clear and convincing standard of persuasion that the other crimes, indeed, occurred. The mutual admissibility test for joint jury trials does not include any such threshold requirement. Indeed, it would virtually require the State to prove each of its two sets of charges to the judge outside the presence of the jury before proceeding to the joint trial before the jury.

A fortiori, there is no such step required for a joint nonjury trial, where mutual admissibility is not even an absolute requirement. State v. Graves, 298 Md. 542, 546-550 , 471 A.2d 701 (1984). Nor does severance/joinder law have any enhanced standard of persuasion as a precondition to evidentiary admissibility. If the appellant’s contention were correct that such a preliminary assessment of evidentiary substance were required on the part of Judge Levitz, how could it possibly work?

Would Judge Levitz be required, before denying the severance, to find as a fact that the charges 1) with respect to Pam Basu, 2) with respect to Grace Lagaña, and 3) with respect to Laura Ann Becraft were all proved, to his satisfaction, by the clear and convincing standard of persuasion? Would not that require a mini-trial to be conducted before going forward with the ultimate trial on the merits? It would not be simply ³⁴⁵ another, possibly redundant, preliminary hearing, for a preliminary hearing only requires satisfying a probable cause standard and not clear and convincing persuasion. In the evidentiary context, moreover, a witness is there before the court under oath and on the stand.

That witness may readily be examined and evaluated outside the presence of the jury and the judge, thereby, will have something before him that may persuade him of the thing to be proved. In the pretrial setting of a joinder/severance hearing, by contrast, there are no witnesses to give the evidence necessary to persuade the judge of anything by any standard of persuasion. Suppose, moreover, Judge Levitz ultimately were not, by any modality, clearly and convincingly persuaded that any of the crimes had occurred? Should he then dismiss charges, notwithstanding the determination on the part of other institutions to bring charges?

Hardly. It is obvious that Faulkner’s procedural screening, salutary in the context of an evidentiary ruling, has no applicability to a pretrial hearing on joinder or severance. The third step prescribed by Faulkner is that the trial judge assess the “necessity for and probative value of the ‘other crimes’ evidence” and then “carefully weigh [it] against any undue prejudice likely to result from its admission.” 314 Md. at 635 , 552 A.2d 896 . That particular weighing exercise would also be inapplicable to a joinder/severance determination.

In severance determinations, to be sure, the judge retains discretion to order severance even after a finding of mutual admissibility. The possible prejudice to a defendant from a joint trial is one of the factors there to be weighed. There is, nonetheless, a vast qualitative difference between the two weighing operations. One such weighing operation compares a product with apples whereas the second such weighing operation compares that product with oranges.

Self-evidently, the two comparisons are not the same. In the evidentiary context, undue prejudice is weighed against the necessity for and probative value of the evidence. Those two values compete only with each other and on an ³⁴⁶ essentially level playing field, with the slight tilt, if any, going in favor of protecting a defendant from prejudice. The interest of judicial economy, it must be carefully noted, is not any part of that weighing process.

Indeed, there would be no way for it to be a factor. Receiving “other crimes” evidence does not conserve precious judicial resources; neither does rejecting such evidence squander those resources. The rejection of the evidence at the trial in question will not entail an additional trial. As we explained in Wieland v. State, 101 Md.App. at 16 , 643 A.2d at 453 : There is no downside to keeping out evidence of “other crimes” for the other crimes are not the subjects of pending trials.

When a severance is granted, an additional trial becomes necessary and witnesses may well be called back to the courthouse for a repeat performance. When in the context of a single trial, on the other hand, “other crimes” evidence is excluded, no such costs are incurred. Unlike the merely evidentiary call, where the concern for judicial economy has no weight in whether to admit or reject evidence, judicial economy is a heavy counterweight on the joinder/severance scales. As Judge Levine pointed out in McKnight, 280 Md. 604, 608-609 , 375 A.2d 551 (1977): The rationale traditionally offered to justify joinder of similar offenses is that a single trial effects an economy, by saving time and money, to the prosecution, the defendant, and the criminal justice system, (footnote omitted).

In Jennings v. State, 8 Md.App. 312, 317 , 259 A.2d 543 (1969), Chief Judge Murphy (now Chief Judge of the Court of Appeals) spoke in similar terms: [ 0]ne of the considerations in denying separate trials is to save [the] time and expense they would entail. In Cook v. State, 84 Md.App. 122, 130 , 578 A.2d 283 (1990), Judge Bloom stated for this Court that “joinder of defendants [and charges] for trial is favored for reasons of judicial economy.” He continued: ³⁴⁷ Thus, the question for the trial court is whether the need for judicial economy in conserving time and resources of the court and witnesses outweighs the prejudicial effect of the evidence. McKnight v. State, [ 280 Md. 604, 608 , 375 A.2d 551 (1977).] The law of evidence, per Faulkner , prescribes a mandatory weighing operation. The joinder/severance law, per McKnight, suggests a permissible weighing operation.

The two weighing operations are designed, however, to make very different comparisons. The evidentiary weighing operation measures prejudice in comparison with apples and with apples only. The joinder!severance weighing operation, by contrast, measures prejudice against oranges or, perhaps, even against apples and oranges combined. In any event, the weighing of competing factors spelled out by Faulkner for an evidentiary ruling is hot appropriate for a joinder/severance determination.

The Subcontentions in this Case Against this legal backdrop, it becomes obvious that several of the appellant’s subcontentions must be rejected for their failure to state a cognizable joinder/severance claim. A. No Clear and Convincing Proof of “Other Crimes” The “clear and convincing” proof test, taken from Faulkner , is, as we have discussed, no part of joinder/severance law. We do not even say that the subcontention lacks merit. It is rather that there is no way to measure its merit or demerit.

We are not reviewing an evidentiary ruling. The claim is simply beside the point in the context of reviewing a joinder/severance decision. B. Probative Value Versus Potential Prejudice Once again, a weighing of probative value versus potential prejudice, taken from Faulkner , is no significant part of joinder/severance law. For joinder/severance purposes, we measure the potential for prejudice not merely against probative value but primarily against the interests of judicial economy, a subject the appellant has chosen not to consider.

It is, ³⁴⁸ to be sure, probative, value that dictates admissibility in the evidentiary context, a context not involved in this case. It is not, however, probative value that dictates joinder. It is judicial economy. Even if we were to concede, simply for the sake of argument, that the potential prejudice to the appellant from joining for trial the three criminal incidents in this case outweighed the necessity for or probative value of the evidence of each incident to the proof of the others, that would have but minimal impact on our review of the trial joinder in this case.

Judicial economy may readily “trump” the other concerns. Indeed, we have found no Maryland decision where, once the initial hurdle of mutual admissibility has been cleared, a decision by a trial judge to order a trial joinder has ever been held to be an abuse of discretion. 1 Many of the opinions, moreover, decline to include "within the definition of “prejudice” the legitimate damage to a defendant’s cause that is incurred when admissible evidence is received against him. In Osburn v. State, 301 Md. 250, 254-255 , 482 A.2d 905 (1984), Judge Couch observed for the Court of Appeals: Initially we note that the evidence offered by the state was mutually admissible against both Winters and Osburn. Thus the fact that this evidence may have been prejudicial to Osburn does not dictate that he was entitled to be tried separately from Winters.

As Judge Liss said for the court ³⁴⁹ in Sye v. State, 55 McLApp. 356, 362, 468 A.2d 641, 644 (1983), “[pjrejudice as a term of art means damage from inadmissible evidence, not damage from admissible evidence. (emphasis supplied). In Ogonowski v. State, 87 Md.App. 173, 186-187 , 589 A.2d 513 , cert. denied, 323 Md. 474 , 593 A.2d 1127 (1991), Judge Rosalyn Bell, in affirming a trial judge’s decision to deny severance, discussed the subject of prejudice: “The exercise of that discretion requires balancing the “prejudice” caused by the joinder against “the considerations of economy and efficiency in judicial administration.” “Prejudice” within the meaning of Rule b-253 is a “term of art, ” and refers only to prejudice resulting to the defendant from the reception of evidence that would have been inadmissible against that defendant had there been no joinder. (citation omitted) (emphasis supplied).

In Cook v. State, 84 Md.App. 122, 130 , 578 A.2d 283 (1990), cert. denied, 321 Md. 502 , 583 A.2d 276 (1991), Judge Bloom confirmed that prejudice at a joint trial does not consist of damage from evidence that would have been admissible in any event even had the trials of the defendants or charges been severed: Here, there was no prejudice to either appellant in the refusal to sever their trials on the charges lodged against them jointly. Any evidence that was admissible against either appellant on those charges would be admissible against both, (emphasis in original). In Moore v. State, 84 Md.App. 165, 169 , 578 A.2d 304 , cert. denied, 321 Md. 385 , 582 A.2d 1256 (1990), Chief Judge Gilbert analyzed the subject of prejudice in precisely the same way: A defendant is deemed to have been prejudiced by a joint trial when the joining of a co-defendant or co-defendants (1) permits the State to introduce, against a particular defendant, otherwise inadmissible evidence, and (2) that otherwise admissible evidence tends to contradict the defendant’s theory of the case, (emphasis supplied). ³⁵⁰ In this case, however, it is not necessary to hold that Judge Levitz did not abuse his discretion in deeming the interests of judicial economy to outweigh those of potential prejudice because the appellant has not even asked us to review that particular weighing operation or exercise of discretion. C. Mutual Admissibility What remains as the very pertinent issue for appellate review is the single subcontention that the evidence with respect to the three criminal incidents was not mutually admissible.

This involves the substantive law of evidence. This is the one area where the procedural law of joinder/severance and the evidentiary law of “other crimes” do, indeed, overlap. The three leading cases on what evidence of “other crimes” would be admissible in the trial of a single charge against a single defendant, and by analogy would be mutually admissible where multiple charges or multiple defendants are being joined for trial, are Ross v. State, 276 Md. 664 , 350 A.2d 680 (1976); State v. Faulkner, 314 Md. 630 , 552 A.2d 896 (1989); and Harris v. State, 324 Md. 490 , 597 A.2d 956 (1991). It is the Harris case that puts the whole subject of “other crimes” admissibility into proper perspective, disabusing us of the false but prevalent idea that there is a finite number of rigidly policed categories of admissible “other crimes” evidence.

In Harris v. State, 81 Md.App. 247 , 567 A.2d 476 (1989), this Court had argued for an “inclusionary” statement of the “other crimes” evidence law. The Court of Appeals, speaking through Judge McAuliffe, rejected that approach in favor of the “exclusionary” statement of the law. The difference between the two approaches was not one of substance. It was a difference, rather, of emphasis, of attitude, and of allocating the burden on the issue to the proponent rather than to the opponent of the “other crimes” evidence.

Almost all evidence that would be clearly accepted under one approach would also be accepted under the other. Almost all evidence that would clearly be rejected under one approach would also be rejected under the other. The difference in “tilt,” however, might well ³⁵¹ be a critical difference with respect to borderline cases. Judge McAuliffe pointed out that the difference was essentially semantic, 324 Md. at 494 , 597 A.2d 956 : We have re-examined the principles governing admissibility of evidence of other bad acts and have considered the current legal literature discussing the “inclusionary” and “exclusionary” approaches to the problem.

We recognize that in some respects the question involves semantics— more particularly, how one defines the “rule” that shall ordinarily govern. The inclusionary statement of the rule would say, in effect, “ALL RELEVANT ‘OTHER CRIMES’ EVIDENCE COMES IN, UNLESS IT IS RELEVANT ONLY TO SHOW CRIMINAL PROPENSITY.” The exclusionary statement of the rule would say, in effect, “ALL RELEVANT ‘OTHER CRIMES’ EVIDENCE STAYS OUT, UNLESS IT IS SUBSTANTIALLY RELEVANT TO SHOW SOMETHING OTHER THAN CRIMINAL PROPENSITY.” The difference is, indeed, simply one of tilt or attitude. In a very balanced and fair presentation of the competing arguments, Judge McAuliffe recognized, 324 Md. at 498 , 597 A.2d 956 , certain virtues in the inclusionary approach: The inclusionary approach has a certain appeal and a logical basis. It recognizes that evidence of other bad acts usually has some relevance and that relevant evidence is usually admitted unless some good reason is shown to exclude it.

On balance, however, the Court of Appeals concluded that the exclusionary approach was more efficacious in emphasizing that the burden should properly be cast on the proponent to demonstrate that “substantial relevance for some other purpose” outweighs the potential prejudice inherent in the inevitably attendant revealing of criminal propensity. Judge McAuliffe reasoned, 324 Md. at 500-501 , 597 A.2d 956 : [Pjerhaps more compelling in our choice of the approach most likely to produce a just result, is the need to ensure that adequate consideration be given to the conceded, but ³⁵² sometimes overlooked, potential for unfair prejudice that invariably accompanies the introduction of evidence of other bad acts. The exclusionary form of the rule clearly serves to remind the bench and bar that, unlike most other evidence, this evidence carries with it heavy baggage that must be closely scrutinized before admissibility is warranted. Finally, by employing the exclusionary approach, it is immediately clear that the party offering the evidence has a hurdle to overcome and must shoulder the burden of demonstrating relevance other than criminal character, as well as the burden of demonstrating that the probative value substantially outweighs the potential for unfair prejudice.

Judge McAuliffe then effectively pointed out a flaw in the approach taken by this Court, as he pointed out that one of our biggest fears of the exclusionary approach was illusory. Our argument against the exclusionary approach was premised, in significant part, on the perceived absurdity of a neat “laundry list” of exceptions. We had argued, 81 Md.App. at 280 , 567 A.2d 476 : Inherent in this [inclusionary] approach is the rejection of any notion that there is a finite list of neatly compartmentalized “exceptions.” What have been called “exceptions” are but illustrations of some of the more familiar relevant ' purposes other than the showing of propensity. Indeed, the conceptualization of legitimate evidentiary uses as fitting into a small group of mutually exclusive compartments serves only to confuse rather than to facilitate understanding.

Proof of motive, for instance, is almost invariably proof of intent as well. Proof of intent, in turn, is ipso facto proof of knowledge and is also disproof of accident or mistake. Proof of intent may also prove a plan or design and vice versa. 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, (emphasis supplied) (citations and footnotes omitted). ³⁵³ Judge McAuliffe reassuringly pointed out that that fear and criticism was ill-founded and that the exclusionary statement of the rule, reconfirmed in Maryland, was not inhospitable to otherwise relevant evidence simply because it did not fit into a preexisting pigeonhole: The intermediate appellate court pointed out that a potential vice of the exclusionary approach is that it suggests the existence of a finite number of “exceptions” to inadmissibility and that unless a proposed item of evidence can be matched with one of the exceptions it cannot be admitted.

As we shall endeavor to make clear, admissibility of evidence of other bad acts is not confined to a finite list of exceptions, even under the exclusionary rule, (emphasis supplied). 324 Md. at 497 , 597 A.2d 956 . If not to serve as a closed and finite list, what then is the function of the familiar “exceptions” to the exclusionary rule against “other crimes” evidence? Judge McAuliffe pointed out, 324 Md. at 497-198 , 597 A.2d 956 , that they are helpful as quick reference points and familiar guidelines: Evidence of other acts that has sufficient relevance, other than merely by showing criminal character, may be admissible. The so-called exceptions are helpful as classifications of those areas where evidence has most often been found admissible even though it discloses other bad conduct, enabling the bar and bench to quickly focus upon the areas most likely to be involved, (emphasis supplied).

On any list of the representative or illustrative types of issues that have regularly been found to possess substantial relevance, the first rank invariably consists of the quintet brought to the front of the mind by the mnemonic aid MIMIC: 1. MOTIVE 2. INTENT 3. Absence of MISTAKE or accident 4.

IDENTITY 5. COMMON scheme or plan ³⁵⁴ Harris v. State, 324 Md. at 501 , 597 A.2d 956 ; State v. Faulkner, 314 Md. at 634 , 552 A.2d 896 ; Ross v. State, 276 Md. at 669-670 , 350 A.2d 680 . Those five, however, are by no means the only entries one finds even on the most ordinary of listings. Without benefit of mnemonic device, some of the other “regulars” are: 6.

When several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other. Ross v. State, 276 Md. at 670 , 350 A.2d 680 ; Tichnell v. State, 287 Md. 695, 712 , 415 A.2d 830 (1980). 7. Where the “other crime” tends to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial. Berger v. State, 179 Md. 410, 414 , 20 A.2d 146 (1941); Ross v. State, 276 Md. at 670 , 350 A.2d 680 ; Vogel v. State, 315 Md. 458, 465 , 554 A.2d 1231 (1989); Acuna v. State, 332 Md. 65, 72-76 , 629 A.2d 1233 (1993). 8. “[PJrior criminal conduct ... may be admitted ... to show consciousness of guilt.” State v. Edison, 318 Md. 541, 547 , 569 A.2d 657 (1990). 9. “[OJther like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused.” Ross, 276 Md. at 670 , 350 A.2d 680 .

Whereas Ross treats this use of a peculiar modus operandi or “signature” as an exception in its own right, State v. Faulkner, 314 Md. at 638-640 , 552 A.2d 896 , treats it merely as a variety or aspect of the “identity” exception. This minor difference of opinion in conceptualization makes the larger point—that it is relevant evidence on a material issue in any event, regardless of how one categorizes or conceptualizes it. With the passing years, the list of representative examples continues to grow. Taking their cue from Federal Rule of Evidence 404(b), the recent cases now routinely list as recognized exceptions: 10.

Opportunity 11. Preparation ³⁵⁵ 12. Plan 13. Knowledge State v. Faulkner, 314 Md. at 634 , 552 A.2d 896 ; State v. Edison, 318 Md. at 547, 569 A.2d 657 ; Harris v. State, 324 Md. at 501 n. 3, 597 A.2d 956 .

The ever-growing list of illustrative examples or “exceptions” fulfills the prediction we made in Anaweck v. State, 63 Md.App. 239, 257 , 492 A.2d 658 , cert. denied, 304 Md. 296 , 498 A.2d 1183 (1985): These five examples of relevance given by Ross and repeated by all of its progeny do not exhaust the category; it is an open-ended list always capable of expansion wherever a clear instance of relevance might arise that somehow fails to fit neatly into one of the pigeonholes, (emphasis supplied). State v. Edison, 318 Md. at 547, 569 A.2d 657 , recognized the same open-ended nature of the evidentiary category: [E]xceptions to the general rule are not limited to those noted in Ross; the Ross exceptions are not exclusive, (emphasis supplied). In Harris v. State, 324 Md. at 501 , 597 A.2d 956 , Judge McAuliffe emphatically underscored this same essential characteristic: We reinforce a point we have previously made—that the recognized “exceptions” to the exclusionary rule are not exclusive. ... This is a representative list of examples in which evidence has been found to meet the exception to the general rule of exclusion; it is not a laundry list of finite exceptions, (footnote omitted) (emphasis supplied).

With the acknowledged tilt in favor of exclusion over inclusion, the bottom line remains as expressed by Judge Adkins in State v. Faulkner, 314 Md. at 634 , 552 A.2d 896 : Evidence of other crimes may be admitted, however, if it is substantially relevant to some contested issue in the case and if it is not offered to prove the defendant’s guilt based ³⁵⁶ on propensity to commit crime or his character as a criminal. Thus measured, is the evidence with respect to the three crimes perpetrated against the three victims in this case mutually admissible? Is it, when transferred from the proof of one crime or set of crimes to proof of the others, “substantially relevant for reasons other than proof of criminal character?” Harris v. State, 324 Md. at 500 , 597 A.2d 956 . Does it “transcend ... mere evidence of bad character?” Id. at 498 , 597 A.2d 956 .

We hold that it does. The Grace Lagaña Incident Grace Lagaña was the first of the victims at a few minutes after 8 A.M. on September 8, 1992. She had just arrived for work as the administrative supervisor of the tourist information center at a rest area on northbound Interstate 95. The rest stop is at Mile Marker 37, which is between Route 216 and Route 32.

She had parked her 1989 Chrysler LeBaron at her usual spot on the parking lot and then walked around to her passenger door to retrieve some paperwork, several file folders, and her purse. The appellant and Bernard Miller, meanwhile, had had the Cadillac, in which they were returning to Washington with two other individuals, run out of gas along southbound 1-95 across the road from the rest stop. The appellant and Bernard Miller went foraging for gasoline or for alternative transportation. Grace Lagaña, as she stood by her open passenger door, sensed the two men approach from her rear.

It was the appellant who spoke, “Give me your ear keys or I will blow your fucking head off.” Ms. Lagaña replied, “You can’t have them,” and held on to her key ring firmly. The appellant grabbed her right hand and the keys and engaged her in a tug of war. Ms. Lagaña maintained her grip on the key ring itself, but the appellant pulled the keys loose from the ring. The appellant moved around to the driver’s side, opened the door, and got in the car.

Bernard Miller grabbed her wrist ³⁵⁷ and forced her to the ground in an effort to get around her and into the passenger’s seat. As Ms. Lagaña was yelling for help to some people at nearby pay phones, the appellant was trying, with no success, to get the ignition started. It was the trunk key that the appellant had jammed into the ignition. As a young man came running toward the scene yelling, “Leave