Weiner v. State

Getty, J., delivered the opinion of the Court. Appellant, Jerome Weiner, a.k.a. Jerome Buckler Werner, was indicted on January 7, 1981, in the Criminal Court of Baltimore on seven multi-count charges. The first two indictments, which are relevant in the instant case, charged the Appellant with incest, rape and carnal knowledge of Amelia Liepold, a stepdaughter of Appellant.

The other indictments contained similar charges involving two younger stepchildren. Trial commenced on July 28, 1981, before Judge Marshall A. Levin and a jury. A motion to sever the cases was granted and the State elected to proceed with the case involving Amelia Liepold, the eldest child. On August 8, the jury returned guilty verdicts on the charges of carnal knowledge ⁵⁵⁰ and statutory rape.

The Court imposed a sentence of ten years on the carnal knowledge charge with nine years suspended and two years for statutory rape with all but one year suspended. The sentence on the statutory rape charge was to be served concurrently with the sentence for carnal knowledge. The issues preserved for appeal are: 1. Whether the trial court abused its discretion in admitting evidence of another allegation of incest that occurred subsequent to the incident for which the Appellant was on trial? 2.

Whether the trial court abused its discretion in allowing evidence in rebuttal that the State could have presented in its case in chief? Following the granting of the motion to sever the three cases, the trial judge granted a Motion in Limine precluding the admission of any testimony relating to the Appellant’s alleged illicit conduct with either of the younger children. The State then informed the court that a five year delay existed from the time that the last alleged act occurred involving Amelia, now age twenty, until she reported the act to the police. Amelia disclosed the incidents of intercourse with her stepfather following a conversation with her fifteen year old sister, Cathy, in which Amelia learned for the first time that Cathy had been subjected to similar sexual assaults by their stepfather.

The State argued that it was necessary to disclose this conversation in order to explain the delay of five years before Amelia registered any complaint, and the reasons why she eventually came forward. 1 Over strenuous objection, the trial judge permitted the victim to state the reason that she went to the police five years after the last incident involving her stepfather, and the court then gave a limiting instruction to the jury. The testimony and instruction include the following: ⁵⁵¹ Q Okay. Now, at any time up until the fall of last year did you tell anyone about what stepfather had done to you? A No, I did not.

Q Did there come a time in the fall or more specifically October of 1980 when you did reveal? A Yes, there was. Q All right, now getting back to what we had just started before the bench conference, Amy, directing your attention to October of 1980, this past fall, did there come a time when you had a visit from Cathy? A Yes, I did.

Q Go ahead A Okay, she had walked in the door, and she looked at me, and she said, Amy, I left home. That’s all she had to say to me. Q How did she look? A Like I did five years ago exactly.

THE COURT: ... OK, go ahead. A ... I asked her, I said did anything ever happen between you and Jerry?

Q Jerry, you mean your stepfather? A My stepfather. Yes, that’s what we call him. She said yeah.

I said, what happened? Did he have intercourse with you? She said, he tried. I said, tried or did?

It’s two different things. She said, he did... . I did tell her you are not the only one. It happened to me too.

Q Is that the first time you made the revelation that anything happened to you? A Yes. Q Why did you then say anything? ⁵⁵² A Because I felt that since I never had said nothing, I felt bad about it that it happened to her and I wanted to let her know she wasn’t the only one and not to be scared like I was. THE COURT: Yes, members of the jury, I have admitted the evidence of what Cathy told this witness not for the purpose of proving, the truth of the matter asserted, but rather to account for her state of mind, this witness’ state of mind.

The trial judge carefully considered the necessity for and probativeness of the evidence concerning the collateral criminal act alleged to have taken place against the untoward prejudice which is likely to be the consequence of its admission. In fact, the court preliminarily suggested that the State consider calling Cathy’s case first to avoid the issue that is before us. The State, however, declined. We agree that this is a close case, and we may have decided the threshold question differently.

The issue, however, is whether Judge Levin’s decision to permit the testimony, followed immediately by a limiting instruction, was an abuse of discretion. The first case in Maryland to consider the issue of the admissibility of evidence of sexual acts between the accused and persons other than the victim is Wentz v. State, 159 Md. 161 (1930). In Wentz the father was charged with carnal knowledge of his daughter. Another daughter was permitted to testify that the father had also had intercourse with her.

In reversing the conviction, Judge Sloan, speaking for the Court, stated: "The testimony of the other daughter, not as proof of an independent offense but as evidence of the kind of man the father was, and that he was capable of committing such a crime, might have had sufficient weight to tip the scales against him. That it could have had this effect, in view of the opinion of this court that it was not admissible, makes it reversible error.” ⁵⁵³ The present case is distinguishable from Wentz for the reason that the evidence in the instant case was not introduced as substantive evidence of the Appellant’s character or his tendency to abuse sexually his other children, but for the limited purpose of showing why the victim had not previously reported the assaults upon her. The limiting instruction, given immediately after the testimony supports the distinction between the two cases. In addition to his reliance on Wentz , Appellant cites Ross v. State, 276 Md. 664 (1976), and Worthen v. State, 42 Md. App. 20 (1979), relating to the generally accepted rule that evidence of other criminal acts is generally held to be inadmissible.

Ross states five exceptions to the rule 2 none of which, according to Appellant, apply herein. The exceptions in Ross were first enunciated by the Court in the case of Cothron v. State, 138 Md. 101 (1921). Worthen , arguably, could have been reversed for a host of reasons. The Court (Lowe, J.) reversed upon the admission of evidence of prior incidents of child abuse committed by the accused.

The principle in Worthen , and in Wentz , is an application of the policy rule prohibiting the initial introduction by the State of evidence of bad character of the accused. The cases relied upon by the Appellant correctly state the general rule and the exceptions thereto as they relate to evidence tending to show bad character prior to the time the Appellant has placed his character in evidence by testifying or otherwise presenting evidence of his good character. In the present case, however, the evidence was unquestionably admitted for another purpose, i.e., to explain the failure on the part of the victim to complain at an earlier time. In Ross , the distinction is clearly noted: Thus, the State may not present evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than ⁵⁵⁴ to show a probability that he committed the crime on trial because he is a man of criminal character.

Ross, supra, p. 669 , cited in Brafman v. State, 38 Md. App. 465 (1978). In accord, McCormick, Evidence, Ch. 17, Sec. 190. The trial judge is required to offset or avoid as well as he can, the inherent human tendency to substitute a predisposition of guilt for the constitutional presumption of innocence when an accused’s reputation as a "bad man” becomes known. Hoes v. State, 35 Md. App. 61 (1977).

Additionally, where evidence of another crime is admitted, the trial judge must instruct the jury as to the limited purpose for which it is introduced. The failure so to instruct the jury will constitute reversible error if prejudicial. Wharton’s Criminal Evidence, 13th Ed., Sec. 264. Judge Levin followed the principle of Hoes and the substance of Wharton.

An additional objection to such evidence under consideration is that it is hearsay. The rule is well established, however, that when the intention, or other mental state of a person at a particular time is material to the issues under trial, evidence of such declarations at the time indicative of his then mental state, even though hearsay, is competent as within an exception to the hearsay rule. See Adkins v. Brett, 193 Pac. 251 (Sup. Ct. Calif. 1920).

In the context of the present case, admissibility of conversations establishing the state of mind of the victim is to be considered in the framework of materiality rather than relevancy. Although the two terms are often used interchangeably, materiality in its more precise meaning looks to the relation between the proposition for which the evidence is offered and the issues in the case. See McCormick, Evidence, Ch. 16 Sec. 185 and cases cited therein. If the evidence is offered to prove a proposition which is not a matter in issue, or probative of a matter in issue, the evidence is properly rejected as being immaterial.

In the instant case, evidence of the reasons why the victim did not complain about sexual abuse by Appellant until five years after the last incident is immaterial to the issue of whether the acts complained of occurred at all. ⁵⁵⁵ We recognize, however, that considerable leeway is allowed for proof of facts which are not offered as bearing on the dispute, but as details which fill in the background and give it continuity, interest and color. The question then becomes, is its value worth what it costs? The evidence offered should be excluded if the factual scenario may unduly arouse the jury’s emotions of prejudice, hostility or sympathy. Lyda v. United States, 321 F. 2d 788 (9th Cir. 1963); Daniels v. Dillinger, 445 S.W. 2d 410 (Mo.

App. 1969); C.J.S., Evidence, Sec. 159 n. 21. We emphasize that prejudice in this context means more than damage to Appellant’s cause, for damage alone is not a sufficient basis for exclusion. What is meant here is an undue tendency to persuade the jury to decide the case on an improper basis, usually an emotional one. In the pungent phrase of the trial judge in State v. Rollo, 221 Ore. 428 ,