State v. Werner

ELDRIDGE, Judge. In this criminal case, involving charges that the defendant had committed sex offenses against one of his stepdaughters, the State was allowed to elicit testimony that the defendant had committed similar offenses against another stepdaughter. The issue concerns the admissibility of such evidence under the circumstances. I. In 1981, Jerome Werner 1 was indicted in Baltimore City on charges of incest, 2 rape, 3 carnal knowledge of a child under fourteen, 4 and related offenses.

The alleged victims were his three stepdaughters. Two indictments charged criminal conduct against the eldest stepdaughter, Amy, from 1973 through 1975; two indictments, charged criminal conduct against another stepdaughter, Kimberly, in 1977; and three indictments charged criminal conduct against the youngest stepdaughter, Cathy, in 1980. The State moved for a joint trial on all of the charging documents pursuant to former Maryland Rule 745 b, which is now Maryland Rule 4-253(b). 5 The defendant opposed ⁵⁵³ the motion on the ground that, in a trial involving alleged offenses against one victim during one period of time, evidence of offenses against a different victim during a different period of time would not be admissible. 6 The defendant relied upon Wentz v. State, 159 Md. 161, 164-166 , 150 A. 278 (1930), and Berger v. State, 179 Md. 410, 414 , 20 A.2d 146 (1941), in which this Court took the position that, in a prosecution of a man for incest with one of his daughters, the State is prohibited from introducing evidence to show that the defendant committed incest with another daughter. 7 The State in response, after citing some recent studies concerning sexual offenses within a family, “submitted] to the Court that Wentz and Berger and even for that matter the Worthen case 8 are set against a back-drop of being uninformed with regard to the reality of life that exists.” The State urged the trial court to adopt the view of the dissenting opinion in Wentz, 159 Md. at 167 . The court, after reviewing the cases, refused to adopt the State’s position and denied the motion for a joint trial. ⁵⁵⁴ Thereafter the State called for trial the two indictments charging sex offenses against the eldest stepdaughter, Amy.

Prior to jury selection, the State made a proffer of certain testimony which it wished to elicit, and it sought a ruling by the court concerning the admissibility of such evidence. The State indicated that there was a five year delay from the time the last alleged criminal act occurred, in 1975, until the time Amy reported the crime, in 1980, and that the reason Amy finally went to the authorities was the revelation of her youngest sister, Cathy, that Cathy had also been a victim of incest by the defendant. The prosecuting attorney proffered that “I’m going to ask [Amy] the question when was the first time you told anybody about this? What was the occasion of you telling that?

What prompted you finally after all of this time to say something? She’s going to say quite honestly ... [that] Cathy said that the defendant had sex with her.” The State argued that it was necessary to elicit such testimony, not as substantive evidence, but to explain Amy’s years of silence. Defense counsel objected to the proffered testimony, and argued that a cautionary instruction would not cure the prejudice. The trial court ruled that the testimony would be admitted, with a limiting jury instruction immediately after Amy’s direct examination, cautioning the jury that the evidence was admitted only to explain why Amy finally came forward after a five year silence.

After jury selection, Amy testified first out of the jury’s presence, in order that the court could determine the scope of her testimony. Amy indicated that she had remained silent for five years after the attacks had ceased. She testified that she did not go to the authorities because she was afraid of the defendant, because she was of the view that no one would believe her, and because she did not want to hurt her mother. She then described her meeting with Cathy, when Cathy revealed that she, too, had been assaulted by the defendant, as follows: “THE COURT: What did Cathy say to you?

Did she say anything to you? ⁵⁵⁵ “A. ... I asked her if anything had happened between her and Jerry. I didn’t say what. I just asked her if anything happened between her and Jerry, and she said, yes. “I said, what happened?

She said he tried to have intercourse with me. I said, are you saying he tried or he did? I said there’s a big difference there. She said he did.” Amy continued, testifying that she informed Cathy that the defendant had also assaulted her, and explaining that Cathy’s revelation prompted her to go to the authorities.

Amy then repeated this testimony, in the presence of the jury, on direct examination. Immediately thereafter, the court gave the jury a limiting instruction. The case went to the jury on two counts, incest and carnal knowledge, and the defendant was found guilty of both. The Court of Special Appeals reversed the convictions, Weiner v. State, 55 Md.App. 548 , 464 A.2d 1096 (1983).

The appellate court acknowledged that the State did not introduce the testimony as substantive evidence, but as rehabilitative evidence in light of the anticipated impeachment ( 55 Md.App. at 558 , 464 A.2d 1096 ): “In the balancing process, we point out that the disputed testimony was initially introduced by the State, apparently in anticipation of the defense seizing upon any unexplained delay as an attack upon the credibility of the prosecuting witness, Amy. Had the State remained silent regarding the lapse of time from the last act of intercourse until Amy’s complaint, Appellant’s dilemma would have been whether to avoid the issue and lose the advantage of bringing the delay to the attention of the jury, or to cross-examine Amy concerning her five year silence, with the attendant risk that her answers would reveal the very evidence the Appellant sought to suppress.” The Court of Special Appeals indicated that if the State had waited until Amy was specifically impeached during cross examination, the evidence might have then been admissible. Ibid. Nevertheless, the court reversed the convictions, ⁵⁵⁶ holding that the prejudice outweighed any fairness to the State, and that a limiting instruction was not adequate to cure the prejudice under the circumstances.

In light of its reversal on this issue, the Court of Special Appeals did not reach another matter raised by the defendant. The State filed a petition for a writ of certiorari, contending only that the evidence was admissible to explain Amy’s lengthy period of silence. We granted the petition and shall affirm.

II

In Maryland, as elsewhere, evidence of other crimes committed by the defendant is generally inadmissible in a criminal case. The reasons for the rule were recently set forth by Chief Judge Murphy, writing for the Court in Straughn v. State, 297 Md. 329, 333 , 465 A.2d 1166 (1983), as follows: “Of course, 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. Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980); State v. Jones, 284 Md. 232 , 395 A.2d 1182 (1979); Cross v. State, 282 Md. 468 , 386 A.2d 757 (1978); McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977); Ross v. State, 276 Md. 664 , 350 A.2d 680 (1976). There are two reasons for the rule.

First, if a jury considers a defendant’s prior criminal activity, it may decide to convict and punish him for having a criminal disposition. Second, a jury might infer that because the defendant has committed crimes in the past, he is more likely to have committed the crime for which he is being tried. Tichnell, supra, 287 Md. at 711 [ 415 A.2d 830 ]. Consequently, any probative value that the evidence might have is outweighed by the potential prejudice to the defendant and is properly excluded.” See McCormick on Evidence, § 190 (3d ed. 1984).

In Ross v. State, 276 Md. 664, 669-670 , 350 A.2d 680 (1976), we summarized various exceptions, recognized by Maryland cases, to this general exclusionary rule: ⁵⁵⁷ “There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. Wentz v. State, 159 Md. 161, 164 , 150 A. 278 (1930); Cothron v. State, 138 Md. 101, 110 , 113 A. 620 (1921); Chandler v. State, 23 Md.App. 645, 650 , 329 A.2d 430 , cert. denied, 274 Md. 726 (1974); Wethington v. State [ 3 Md.App. 237 , 238 A.2d 581 (1968)], Gorski v. State [ 1 Md.App. 200 , 228 A.2d 835 (1967)], both supra. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial, Berger v. State, 179 Md. 410, 414 , 20 A.2d 146 (1941); and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused.

C. McCormick, Evidence § 190, supra.” See Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980); State v. Jones, 284 Md. 232, 238-239 , 395 A.2d 1182 (1979); Cross v. State, 282 Md. 468 , 386 A.2d 757 (1978). In addition to these categories, evidence of certain other crimes, of which the defendant has been convicted, is admissible for impeachment purposes if the defendant takes the stand. Ricketts v. State, 291 Md. 701 , 436 A.2d 906 (1981). At no time in the present case has it been argued that the disputed testimony was admissible under one of the above-mentioned categories.

Since this case was severed from the other two prosecutions against the defendant, the issue essentially has been whether the testimony was admissible, not as substantive evidence, but to explain an asserted impeaching circumstance in the witness’s account. ⁵⁵⁸ III. This Court has never previously considered whether evidence of other crimes by a defendant is admissible in criminal cases to rehabilitate an impeached witness. Other courts, however, have uniformly held in criminal cases that a prosecution witness who has been impeached on cross-examination can be rehabilitated with otherwise inadmissible evidence of other crimes committed by the defendant, if a sufficient need for such rehabilitation is shown. Bracey v. United, States, 142 F.2d 85, 89-90 (D.C.Cir.), cert. denied, 322 U.S. 762 , 64 S.Ct. 1274 , 88 L.Ed. 1589 (1944); State v. Farmer, 97 Ariz. 348, 353-354 , 400 P.2d 580 (1965); Stitely v. United States, 61 A.2d 491 (D.C.1948); People v. Burke, 52 Ill.App.2d 159, 161 , 201 N.E.2d 636 (1964); Meeker v. State, 182 Ind.App. 292 , 395 N.E.2d 301, 305 (1979); State v. Austin, 27 N.C.App. 395 , 219 S.E.2d 279, 281 (1975), cert. denied, 289 N.C. 452 , 223 S.E.2d 160 (1976); State v. Harman, 270 S.E.2d 146, 155 (W.Va.1980).

In State v. Harman, supra, the defendant was tried for breaking and entering. The State’s principal witness was the defendant’s ex-girlfriend. On cross-examination, the defendant impeached that witness by attempting to show that her motive for reporting his crimes, and then testifying against him, was anger at the defendant for his having left her. In order to rehabilitate the witness, the State asked her to explain why she became hostile to the defendant.

She stated that the defendant had told her that he was having incestuous relations with his young stepdaughter, and the information had offended her to the extent that she contacted the police. The defendant objected on the ground that her statement constituted inadmissible evidence of other crimes. The Supreme Court of West Virginia discussed the propriety of admitting this evidence, stating ( 270 S.E.2d at 155 ): “[T]he party offering the witness is entitled to rehabilitate him. In this connection, the underlying reasons for the bias or hostility may be shown if they legitimately serve to rehabilitate the witness and are not simply used ⁵⁵⁹ as a means of introducing inflammatory matter into the case____ The issue often turns on the severity of the impeachment versus the inflammatory nature of the rehabilitation evidence.

If the impeachment is only slight and the rehabilitative evidence is highly inflammatory, the inflammatory evidence should not be permitted.” The Harman court found that the impeachment was “rather damaging in its thrust that she was jealous and angry” {ibid.), and further found that, although the testimony was inflammatory, it was not elaborated upon. As the impeachment was severe, the court upheld the admission of the evidence. The balancing test applied in Harman has been used in other cases. For example, in People v. Burke, supra, the defendant was accused of committing incest with his daughter.

The victim was the State’s principal witness. On cross-examination the defendant impeached the witness by eliciting her statement that she had hated her father before he committed the act for which he was being tried. On redirect, the trial court allowed her to explain why she hated her father. She stated that her ill feelings stemmed from various other unnatural sex acts which he had previously performed upon her.

The Illinois court upheld the trial judge’s admission of the evidence, stating ( 52 Ill.App.2d at 161-162 , 201 N.E.2d 636 ): “We agree with the defendant that the testimony was prejudicial____ However, the fact that the evidence was prejudicial does not mean that it was erroneously admitted ____ “The cross-examination of Diane had established