State v. Edison

CHARLES E. ORTH, Jr., Retired Specially Assigned Judge. The Grand Jury for Baltimore City handed down four indictments alleging that Joseph Winslow Edison was the criminal agent in a variety of crimes. Prior to trial, Edison filed a motion for separate trials. The Circuit Court for Baltimore City denied the motion.

Trial proceeded before a jury on all of the indictments and each of their counts. The charges and verdicts thereon were as follows. Indictment Count Date of Offense Charge Verdict 1 . 1. 16 July 1986 Murder of Ernest L. Ellis Guilty of murder in the first degree 2 16 July 1986 Use of a handgun in a crime of violence Guilty 3 16 July 1986 Possession of a handgun Guilty 2 1 16 July 1986 Conspiracy to murder Ellis Guilty 3 1 6 November 1986 Attempted murder of Officer Darryl A. Kane Not Guilty 2 6 November 1986 Assault and battery of Kane No Verdict 3 6 November 1986 Possession of a handgun Guilty 4 6 November 1986 Use of a handgun in a crime of violence Not Guilty 5 6 November 1986 Possession of a handgun after having been convicted of a crime of violence Motion for judgment of acquittal granted 4 1 9 February 1987 Escape Guilty ⁵⁴⁵ Sentences were imposed and Edison appealed. The Court of Special Appeals reversed the judgments.

Edison v. State, No. 1142, September Term, 1988, filed 7 April 1989, unreported. We granted the State’s petition for a writ of certiorari. The writ calls upon us to determine whether the Court of Special Appeals was correct in its conclusion that the trial court erred in its insistence that all of the indictments be jointly tried. I The four indictments related to three incidents: a) Indictments 1 and 2 — the murder of Ellis on 16 July 1986; b) Indictment 3 — the attempted murder of Officer Kane on 6 November 1986; c) Indictment 4 — the escape from the Baltimore City Jail on 9 February 1987.

Edison believed that each incident should be tried separately — thus, indictments 1 and 2 at one trial, indictment 3 at another trial, and indictment 4 at a third trial. He did not ask for a severance of counts within an indictment. In the proceedings in the trial court — during the hearing on his pretrial motion for severance, throughout the guilt stage of the trial and in argument at his post-trial motion for a new trial — Edison continuously objected to the joinder. He stoutly maintained in his persistent requests for severance that the joinder of the indictments was so prejudicial as to deprive him of a fair and impartial trial.

But his entreaties were unavailing. A Potential prejudice is the overbearing concern of the law of this State with respect to joint or separate trials of a defendant charged with criminal offenses. To this end, we adopted Maryland Rule 4-253(c): 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 ⁵⁴⁶ any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires. And, in ruling on a motion for a joint trial when a defendant is charged in two or more charging documents, “the court may inquire into the ability of either party to proceed at a joint trial.” Md. Rule 4-253(b). 1 We have observed that joinder may be prejudicial to a defendant in three important aspects: First, he may be embarrassed, or confounded in presenting separate defenses____ Secondly, the jury may cumulate the evidence of the various crimes charged and find guilt when, if the offenses were considered separately, it would not do so.

At the very least, the joinder of offenses may produce a latent hostility, which by itself may cause prejudice to the defendant’s case. Thirdly, the jury may use the evidence of one of the crimes charged, or a connected group of them, to infer a criminal disposition on the part of the defendant from which he may also be found guilty of other crimes charged. McKnight v. State, 280 Md. 604, 609 , 375 A.2d 551 (1977). The matter of a severance or a joinder is ordinarily committed to the discretion of the trial judge.

Grandison v. State, 305 Md. 685, 705 , 506 A.2d 580 , cert. denied 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 , reh. denied, 479 U.S. 1001 , 107 S.Ct. 611 , 93 L.Ed.2d 609 (1986); Graves v. State, 298 Md. 542, 544 , 471 A.2d 701 (1984). The exercise of that discretion usually brings into play what is commonly known as the “other crimes” rule. “Generally, ‘evidence of a defendant’s prior criminal acts may not be introduced to prove that he is guilty of the offense for which he is on trial.’ ” State v. Faulkner, 314 Md. 630, 633 , 552 A.2d 896 ⁵⁴⁷ (1989), quoting Straughn v. State, 297 Md. 329, 333 , 465 A.2d 1166 (1983). We observed in Cross v. State, 282 Md. 468, 473 , 386 A.2d 757 (1978): A mere cursory review of the case law ... readily reveals that there are few principles of American jurisprudence more universally accepted than the rule that evidence which tends to show that the accused committed another crime independent of that for which he is on trial, even one of the same type, is inadmissible. The law of this State is fully in accord.

There are numerous exceptions, however, to the general rule that a defendant’s other acts or conduct must be suppressed. “Evidence of this type may be admitted if it tends to establish motive, intent, absence of mistake, a common scheme or plan, identity, opportunity, preparation, knowledge ... or accident,” Faulkner, 314 Md. at 634 , 552 A.2d 896 , citing to Ross v. State, 276 Md. 664, 669-670 , 350 A.2d 680 (1976), see Cross, 282 Md. at 473-474 , 386 A.2d 757 . But exceptions to the general rule are not limited to those noted in Ross ; the Ross exceptions are not exclusive. For example, prior criminal conduct, with strict limitations, may be admitted to show “sexual propensity,” Vogel v. State, 315 Md. 458, 464-466 , 554 A.2d 1231 (1989), and to show consciousness of guilt, Bedford v. State, 317 Md. 659, 664-65 , 566 A.2d 111 (1989). The admission of other crimes evidence “should be subjected to rigid scrutiny by the courts....” Ross, 276 Md. at 671 , 350 A.2d 680 . “The evidence proffered to the trial judge must be clear and convincing in establishing the accused’s involvement in the other crimes.” Faulkner, 314 Md. at 634 , 552 A.2d 896 , citing to Cross, 282 Md. at 478 , 386 A.2d 757 .

Judge Adkins, speaking for the Court in Faulkner , outlined a three-step procedure to be followed 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. “[I]t first determines whether the evidence fits within one or more of the ... exceptions. That is a legal determi ⁵⁴⁸ nation and does not involve the exercise of discretion.” 314 Md. at 634 , 552 A.2d 896 . “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.” Id. at 634-635 , 552 A.2d 896 . “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.” Id. at 635 , 552 A.2d 896 (citations omitted). Even though the evidence may fall within one or more of the exceptions of the “other crimes” rule, the trial judge still possesses discretion as to whether it should be received.

Id. at 640 , 552 A.2d 896 . Thus “other crimes” evidence, even though independently and substantially relevant to some contested issue, may be excluded if its probative value is exceeded by potential jury hostility or unfair prejudice. Id. at 641 , 552 A.2d 896 . “The leeway of this discretion lies in the direction of excluding otherwise admissible evidence.” Id. A clearly incorrect decision to admit other crimes evidence is an abuse of discretion.

Id. In the exercise of its discretion, the court is guided by the mutuality of evidence principle. If, in separate trials, evidence as to each individual offense would be. mutually admissible, the offenses may be joined. McKnight, 280 Md. at 612 , 375 A.2d 551 .

B As we have seen, evidence of other criminal conduct which tends to show consciousness of guilt provides an exception to the “other crimes” rule. It is well settled that “evidence of flight from justice is admissible to show awareness of guilt____” Hunt v. State, 312 Md. 494, 508 , ⁵⁴⁹ 540 A.2d 1125 (1988). Judge Cole, speaking for the Court in Bedford, supra [317 Md.], at 664, 566 A.2d 111 , observed that we had concluded in Sorrell v. State, 315 Md. 224, 227 , 554 A.2d 352 (1989), that, in Maryland, “[e]vidence of flight following a crime has generally been held admissible to show consciousness of guilt____” See also Pettie v. State, 316 Md. 509, 519 , 560 A.2d 577 (1989); Hunt [312 Md.] at 508-509, 540 A.2d 1125 ; Huffington v. State, 295 Md. 1, 15 , 452 A.2d 1211 , cert. denied, 478 U.S. 1023 , 106 S.Ct. 3315 , 92 L.Ed.2d 745 (1986); Tichnell v. State, 287 Md. 695 , 716-717 n. 11, 415 A.2d 830 (1980). In Davis v. State, 237 Md. 97 , 205 A.2d 254 , cert. denied, 382 U.S. 945 , 86 S.Ct. 402 , 15 L.Ed.2d 354 (1965), we observed that the lapse of time between the crime and the ... flight goes only to the weight to be accorded this circumstance, not to the admissibility of the [flight] as some evidence of consciousness of guilt.

Id. at 105, 205 A.2d 254 . Nor does “[a]ny evidence contradicting the inference of guilt derived from flight ... ‘render the evidence of flight inadmissible, but is merely to be considered by the jury in weighing the effect of such flight.’ ” Bedford [317 Md.] at 665, 566 A.2d 111 quoting Sorrell, 315 Md. at 228 , 554 A.2d 352 (quoting 1 Wharton’s Criminal Evidence § 215 at 450). “Flight” includes an escape or attempted escape from confinement. C. McCormick, McCormick on Evidence § 271 (3d ed. 1984); see 2 J. Wigmore, Evidence § 276 (J. Chadbourn rev. 1979). Bedford at 664, 566 A.2d 352 .

II The pretrial motion filed by Edison alleged that he was “charged with the commission of two or more unrelated crimes, the joint trial of which would prejudice [his] right to a fair and impartial trial as to each charge.” He prayed that the court “sever the trial of these indictments.” We first look at what was before the court at the time the motion was denied. Defense counsel argued at the hearing ⁵⁵⁰ that “there is no relationship as to time or witnesses or ... the manner of the crimes being committed. There is just no relationship that would allow someone to hear an escape charge, which, obviously, is a very difficult charge to defend against when hearing a murder trial, where credibility is going to be the issue____” He requested that the indictments be severed “but in any event sever the escape charge____” The prosecutor proposed a joint trial of all four indictments. The factual background leading to the indictments, he asserted, showed the propriety of his proposal.

We give a precis of his factual representations. Edison was a suspect in the murder of Ellis. Warrants for his arrest were issued and the authorities were looking for him. Kane, a uniformed police officer, saw Edison (they were not strangers to each other) and Edison, realizing that the officer had “spotted” him, fled, pursued by the officer.

Kane, “in good professional manner [did not] draw his service revolver at that time, but started to give chase on foot.” During the flight Edison “turned and tried to fire what appeared like a gun. Nothing happened. There was no report, no explosion.” Edison turned and “continued flight looking like he was putting his gun back down in to his dip [the front of his pants].” Edison was finally run to earth. A' gun was recovered from his person.

It had “slipped down into [his] trousers----” There was “a live round under the hammer with the indentation of the hammer and firing pin on the cartridge casing or primer.” The prosecutor asserted that “this was a flight and that is always admissible as potential consciousness of guilt____” He believed that is competent and relevant and germane to the issue of consciousness of guilt and it also is highly relevant that we show the effects and how the arrest took place of an individual who is wanted foremost for any crime, especially, for murder. Edison, unable to make bail, escaped while incarcerated in the Baltimore City Jail awaiting trial on charges of the murder of Ellis and the attempted murder of Kane. The ⁵⁵¹ prosecutor contended that if each indictment were tried separately, evidence of the offenses would be mutually admissible. At the trial of any one of the indictments, the prosecutor declared, the State would be “allowed properly to show the resistance to the officer, the flight from the officer, the attempt upon the officer’s life, they are all germane and relevant to the investigation of the original murder of Ernie Ellis.” And, the prosecutor opined: Whether or not we called the indictment, we would also be allowed ... under competent evidence, because it is relevant and germane to the issue, to show the flight from the city jail____ Defense counsel suggested that “it may well be that Mr. Edison did not know he was charged with the murder of Ernie Ellis.” The judge indicated that would be a matter of defense.

Defense counsel thought it relevant on the motion “because there was another charge pending against [Edison] when he was fleeing that is unrelated to any of this.” It was brought out that on 23 October 1986, about two weeks before the incident involving Kane, Edison had been stopped by the police and found to have a bottle of pills in his possession. He was released pending a chemical analysis of the pills. When they proved to be contraband, a warrant was issued for the arrest of Edison, but he had not been apprehended at the time Kane caught up with him. Defense counsel said even if Edison did not actually know that a warrant had been issued, he “could reasonably anticipate that there would be a warrant forthcoming.” The judge suggested that “a jury could reasonably infer that [Edison] was fleeing because of his murder on July 16, 1986 even though you may present to the jury testimony that there may have been other charges that Mr. Edison could have been concerned about.” Defense counsel “imagine[d] that the jury could [have so inferred].” But he did not think that “they should be allowed to because of the possible prejudice that is going to flow to Mr. Edison from that.” He thought that the issue of prejudice to the defendant outweighs the savings and the court’s time and the expediency and the ⁵⁵² need for truth also that the State refers to by using the flight as evidence of that.

The escape itself, if not the attempt. The murder also should be severed____ The judge bought the argument of the State. Without more ado, he ruled: I am going to deny the motion to sever these cases. All three cases will be tried at this time.

We believe that what the judge had before him was sufficient then and there to alert him that a joinder of the indictments would fatally infect the trial, so that a denial of the motion for severance would be an abuse of discretion. Assuming, arguendo, however, that it was not, as the trial progressed, in the guilt stage, where the skeletal recounting of the facts by the State at the motion hearing were fleshed out by the evidence adduced, it became more and more clear that the joinder tended to deprive Edison of the fair and impartial trial to which he was entitled. Ill We give a resume of the evidence the State put before the jury. It painted a sordid picture of life in the real world on the streets of the Cherry Hill section of Baltimore City.

Underlying the crimes charged to Edison was illicit traffic in narcotics. It appeared that Cherry Hill was infested with several gangs. They were composed of drug dealers who sold to users and touters who solicited users for the dealers. The dealers compensated their touters at the end of the day in an amount which depended on the number of users referred.

Each gang had a supplier from whom they obtained the contraband. The gangs had staked out territories in which they operated. But the competition was not always friendly. There was, at times, bad blood between the various gangs.

A The Murder and Conspiracy Indictments Edison and his gang moved into the area. In addition to Edison, it included Steven Carter and Quintín Wiggins. The ⁵⁵³ Edison gang did not respect the staked out territories. They sold wherever they pleased.

Sylvester Barry and Tyrone Carr composed another dealer group. Ellis was their touter. He was a user. Edison and Wiggins offered Barry and Carr “like a thousand dollars” for some of the same “product” which had been supplied to Barry and Carr.

Barry and Carr went to their “boss” but he refused to sell or permit to be sold his “product” to the Edison gang. Barry testified: “that’s when the run-in came with us and Joe Edison and Quintín Wiggins and his gang.” Barry was afraid of Edison: [T]he history that gang had and he had, Joe Edison, with carrying a gun, yes, I was afraid of him. Ellis made the mistake of telling Sharon Bagley, Carter’s girlfriend, that Carter had killed someone called Reggie. Bagley told Carter what Ellis had said.

Carter “just looked like a ghost or something scared him, you know, he just looked pale ... and he said if he tell you, then he’ll tell the man ... the homicide people ... [the police].” On 16 July 1986, Barry and Carr were approached by Edison, Wiggins and Carter near the Hillside Apartments in Cherry Hill. Ellis was nearby but out of earshot. Edison and Wiggins talked to Barry. Edison’s hands were inside his “dip.” To Barry “that meant business.” That mean if something that was told to you that you didn’t do it, that meant your life was in danger.

Barry thought that his life was in danger and that Edison was armed. Wiggins told Barry that Barry and Carr were to walk Ellis to the back of the “164 School playground” so Edison could murder Ellis. Edison was “like you better do it, man.” Barry said that he would not do it and started to walk away with Carr and Ellis. However, they walked in the direction of the schoolyard.

Wiggins walked close behind so they could not tip off Ellis what was going on. Wiggins was “like walking to a drop-off point where Ellis would be.” Joe Edison began dropping back behind us at that time. He came out of his pants. He fired one shot at Ernie ⁵⁵⁴ Ellis.

It missed. It made [Ellis] turn to his left. The second shot hit [Ellis] below his eye. After Ernie hit the ground, a third shot was fired that hit him on top of his head.

Edison stood overtop of Ellis when “he flipped and his head hit the ground. He stopped overtop of Ernie and hit him again at the top of his head.” Everybody fled. Edison ran through the woods and dropped off the gun somewhere. Later, Edison said that what he did was for all of us because Ellis was a “drug informer.

He would have sent us all to jail ... Ernie was an informer.” Edison’s belief that Ellis was an informer was fed by the fact, as related by Egerton, and referred to by Edison in justifying the murder of Ellis, that on the day of the murder, “Officers Bradley and Shields conducted a street arrest for narcotics in the presence of Ernie Ellis and other people. Ernie was not arrested.” Ellis’s body was found in the schoolyard. There were two gunshot wounds, one below the left eye and one on top of the head.

An assistant medical examiner, accepted as an expert in the field of forensic pathology, described them in detail to the jury. She opined that the shots were fired at close range as indicated by a gunpowder stripling pattern around the entrance holes made by the bullets. The path of the wounds was “from upwards down and it was a straight shot.” The shots occurred in a very short span of time. Two bullets were recovered from the body.

The cause of death was the two gunshot wounds to the head, either of which would have been fatal. The manner of death was homicide. The autopsy report and the autopsy protocol photographs were displayed to the jury. A police officer, Detective Harry Egerton, accepted as an expert