Wieland v. State

MOYLAN, Judge. The appellant, William Edward Wieland, Jr. (Billy Wieland), was convicted by a Talbot County jury of four assaultive offenses, consummated or inchoate, against his brother, Bryan Wieland. The four offenses were part of a single act that took place at approximately 3 A.M. on August 10, 1992, at Billy Wieland’s own home on Glebe Road in Easton. Billy Wieland was convicted of 1) the battery of his brother, 2) the antecedent assault, 3) the reckless endangerment of “another person” who turned out to be his brother, and 4) the carrying of a handgun with the intent to injure his brother.

The appellant was also convicted by thé same jury of three other offenses that occurred at about 2:30 A.M. that same morning at a nearby 7-Eleven Store in Easton. Those offenses consisted of 1) an assault on Mohammed Khawar Ullah, 2) the unlawful carrying of a handgun at the 7-Eleven, and 3) the unlawful transporting of a handgun between the 7-Eleven and the residence at Glebe Road. ⁵ On this appeal, the appellant raises six contentions. They are: 1) that the trial judge erroneously declined to sever the trial of the Glebe Road offenses from the trial of the offenses committed at the 7-Eleven; 2) that the evidence was not legally sufficient to support the appellant’s convictions for the four offenses committed at Glebe Road; 3) that the appellant was entitled to a judgment of acquittal on the charge of carrying a handgun at his Glebe Road residence because the provisions of Md.Ann.Code art. 27, § 36B (c)(4) explicitly exempt a homeowner, carrying a handgun in his own home, from the coverage of the criminal offense; 4) that the judge erroneously concluded that he was required to impose a mandatory five-year sentence for the violation of § 36B(b)(iv) and erroneously believed that he lacked the discretion to suspend the sentence; 5) that the trial judge committed plain error in failing to instruct the jury on the possible effect of voluntary intoxication with respect to two offenses that allegedly required specific intent; and 6) that the trial judge gave an inapplicable and, therefore, confusing instruction to the jury on the subject of transferred intent. The Incident at the 7-Eleven Mohammed Khawar Ullah (Khawar) was the victim of the first assault.

At approximately 2:30 A.M., he drove to the 7-Eleven where he worked with his brother, Mohammed Amjad Ullah. As Khawar approached the store, he saw Billy Wieland’s vehicle moving at a very high rate of speed and feared that it might hit his car. Billy pulled into the parking place next to Khawar and, as he exited his vehicle, his door hit Khawar’s car. As Khawar entered the 7-Eleven, Billy was already inside, staring at him in an angry way.

Khawar asked ⁶ Billy if he was all right. Billy responded, “Yeah, I’m all right—are you all right?” Khawar answered that he was. At that point, Billy walked backward out of the 7-Eleven, continuing to stare at Khawar. He then challenged Khawar to “come on out, you motherfucker; I’ve got something for you.” Khawar opened the door to the 7-Eleven and told Billy to “go home.” Billy then opened his jacket, revealing a gun in the waistband of his pants and saying, “Look,- motherfucker, what I got.” At that point, Billy got in his car, gunned the engine, sped through the parking lot, and drove away.

Khawar stated that Billy appeared to be drunk. Police were summoned to the scene and took statements from both Ullah brothers. While they were there, Bryan Wieland arrived. He talked briefly with the police and then said that he was going to his brother’s house.

The Incident at Glebe Road When Bryan Wieland arrived at his brother’s house on Glebe Road, the front porch light was on but the lights inside the house were out. Bryan parked in the driveway and walked to the front door. Thinking Billy might be asleep, Bryan kicked the bottom of the front door four or five times, making a lot of noise in the process. When Billy did not answer, Bryan decided to go home.

About halfway to his car, Bryan heard a noise inside the house. He walked back to the front door. As Bryan reached the front door, Billy opened it and the gun he was holding fired. Bryan was hit in the left shoulder.

Billy Wieland testified that he is an alcoholic and that on the day he shot his brother, he had been drinking heavily since approximately 2 P.M. He had purchased the handgun for protection of his business and for his own protection when he made night deposits. Billy remembered the trip to the 7-Eleven with the gun in his waistband, but he had no recollection of a confrontation with Khawar. After returning from the 7-Eleven, Billy either fell asleep or passed out on his bed. He was awakened by a loud noise.

He testified that because of ⁷ the hour and the nature of the loud noise, he removed his handgun from its holster and inserted a clip. He went down the hallway and peered around the corner to see who was at the door. He observed “an unknown person” leaving but then turning as if to return. He did not realize it was his brother at the door until he opened it.

Billy testified that as the door swung open, he took a step backward, tripped, and fell. He claimed that the discharge of the gun was completely accidental. When he gave a statement to Trooper John Bollinger, however, he made no mention of tripping and falling before the shot was fired. In any event, he was shocked to discover that the person he had hit was his own brother.

He rushed to his brother’s assistance, grabbed him, and tried to comfort him. He called for emergency medical assistance and told a member of the ambulance crew that he had shot his brother accidentally. Bryan was evacuated by helicopter to the Shock Trauma Unit in Baltimore. The police who arrived at the scene detected a strong odor of alcohol on Billy’s breath and observed that he was noticeably slurring his words.

The Severance Issue As his trial approached, the appellant was facing a single consolidated criminal information containing eleven counts. The last three of those counts involved the earlier incident at the 7-Eleven. The first eight of those counts involved the later incident at Glebe Road. By virtue of the appellant’s motions for judgment of acquittal being granted with respect to two of the Glebe Road counts and nol prosses being entered by the State with respect to two other of the Glebe Road counts, the Glebe Road package of charges for purposes of present analysis is reduced to four offenses.

The three crimes charged as having occurred at the 7-Eleven were 1) the assault (of the attempt to frighten variety, not of the attempted battery variety) against Mohammed Khawar Ullah, 2) the carrying of a handgun at the 7-Eleven in ⁸ contravention of § 36B, and 3) the largely overlapping carrying of a handgun between the 7-Eleven and Glebe Road. The episode at Glebe Road gave rise to four charges that resulted in guilty verdicts. They were 1) the carrying of a handgun on the Glebe Road premises in alleged violation of § 36B, 2) the battery of Bryan Wieland at Glebe Road, 3) the antecedent assault on Bryan Wieland which merged into the consummated battery, and 4) the reckless endangerment of “another person” (who turned out to be Bryan Wieland), which also merged into the consummated battery, the harm that had been recklessly risked. The appellant timely moved to have the two sets of charges severed for trial purposes.

He relied on Md.Rule 4-253, dealing with “Joint or Separate Trials.” Subsection (a) deals with the joinder for trial of two or more defendants and subsection (b) deals with the joinder for trial of two or more charging documents. It is subsection (c) that deals with the severing of charges and/or defendants who had been previously joined for trial where it appears that prejudice might result from the joint trial. Subsection (c) provides: 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 trial judge denied the motion, relying largely on Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980).

We hold that, in the circumstances of this case, the denial of the request for trial severance was in error. 1. Severance and Joinder; Two Views of the Same Phenomenon As we survey briefly the controlling case law, we note that the cases assume two different procedural postures. Some deal with the opposition to an effort to join charges or defendants that have theretofore been separate. Others deal ⁹ with the effort to sever charges or defendants that have theretofore been joined.

It is a distinction without a difference. One is simply the procedural converse of the other. The defendant (or the State) either wants to get loose or to stay loose. Whether a party is 1) resisting a proposed joinder or 2) seeking to extricate himself from an already existing joinder, the same principles of law control.

As we observed in Hutchinson v. State, 41 Md.App. 569, 572 , 398 A.2d 451 (1979), aff'd, 287 Md. 198 , 411 A.2d 1035 (1980). While the question generally arises in the context of a request by a defendant for a severance, the same principles apply whether the request is for joinder or severance. 2. The Progressive Disappearance of Discretion We make one other preliminary observation. Although the cases all do ritualistic lip service to the principle that the decision to grant a motion to sever or to join is one committed to the discretion of the trial judge, Frazier v. State, 318 Md. 597, 607 , 569 A.2d 684 (1990); State v. Edison, 318 Md. 541, 546 , 569 A.2d 657 (1990); Graves v. State, 298 Md. 542, 544 , 471 A.2d 701 (1984); McKnight v. State, 280 Md. 604, 608 , 375 A.2d 551 (1977); Kearney v. State, 86 Md.App. 247, 251 , 586 A.2d 746 , cert. denied, 323 Md. 34 , 591 A.2d 250 (1991); Cook v. State, 84 Md.App. 122, 129 , 578 A.2d 283 (1990), cert. denied, 321 Md. 502 , 583 A.2d 276 (1991); McKinney v. State, 82 Md.App. 111, 118 , 570 A.2d 360 (1990), a survey of the decisions themselves reveals that this is an area where the reviewing courts have been far less deferential than in many other areas involving the review of discretionary decisions and, with some regularity, have not hesitated to reverse the decisions of the trial court, showing little or no deference in the process.

State v. Kramer, 318 Md. 576 , 569 A.2d 674 (1990); State v. Edison, 318 Md. 541 , 569 A.2d 657 (1990); State v. Jones, 284 Md. 232 , 395 A.2d 1182 (1979); Lebedun v. State, 283 Md. 257 , 390 A.2d 64 (1978); McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977); McChan v. State, 238 Md. 149 , 207 A.2d 632 (1965); McKinney v. State, 82 Md.App. 111, 570 A.2d 360 (1990); Shingleton v. State, 39 Md.App. 527 , 387 A.2d ¹⁰ 1134, cert. denied, 283 Md. 738 (1978); Brafman v. State, 38 Md.App. 465 , 381 A.2d 687 (1978); Jones v. State, 38 Md.App. 432 , 381 A.2d 317 (1978), aff'd, 284 Md. 232 , 395 A.2d 1182 (1979). McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977) is the seminal case on severance/joinder. It is also the case that first dramatically narrowed the range of discretion truly available to the trial judge by holding that, in a jury ease at least, whenever evidence on separate charges would not be mutually ■admissible, severance, if timely requested, is absolutely mandated as a matter of law. 280 Md. at 612 , 375 A.2d 551 . Graves v. State, 298 Md. 542 , 471 A.2d 701 (1984) was the definitive exegesis of the meaning of McKnight .

As to the total elimination of discretion on that critical issue, Judge Orth explained, 298 Md. at 545-546 , 471 A.2d 701 : The McKnight 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 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 characterized the rule 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). ¹¹ 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).

The nagging incongruity is that we continue to label the reason for appellate reversal on this issue not “legal error,” which it has now indisputably become, but an “abuse of discretion,” which it cannot be for there is no longer any discretion to be abused. See, e.g., State v. Jones, 284 Md. 232, 244 , 395 A.2d 1182 (1979); Lebedun v. State, 283 Md. 257, 282 , 390 A.2d 64 (1978); but see Kearney v. State, 86 Md.App. 247, 254 , 586 A.2d 746 , cert. denied, 323 Md. 34 , 591 A.2d 250 (1991) . All that remained discretionary in a jury trial was the referee’s call at the second hurdle that the State must clear before a joint trial of separate charges may proceed. Even when evidence bearing on another charge is prima facie admissible, the judge still must weigh the probative value of the evidence against the danger of unfair prejudice.

State v. Edison, 318 Md. 541, 548 , 569 A.2d 657 (1990) explained: 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. [State v. Faulkner, 314 Md. 630 ] at 640, 552 A.2d 896 [ (1989) ]. (emphasis supplied). Even as to that residuary discretion, however, State v. Edison proceeded to narrow its range yet further. “ ‘The leeway of this discretion lies in the direction of excluding otherwise admissible evidence.’ ” 318 Md. at 548, 569 A.2d 657 , quoting State v. Faulkner, 314 Md. at 641 , 552 A.2d 896 . In addressing the severance problem before it, the Court of Appeals acknowledged that it was dealing with evidence that was otherwise admissible so that only the discretionary weighing process remained to be examined: We shall assume, for the purpose of decision, that the requirement of the first step—whether the evidence that relates to an offense separate from the offense the defen ¹² dant is presently on trial—here fits, as a matter of law, within one or more of the exceptions to the general “other crimes” rule....

With the exception of [one] charge, a scanning of the evidence adduced readily shows that it was clear and convincing with respect to Edison’s involvement in the other charges in the indictments. So this appeal settles down to the requirement of the third step. Even if the requirements of steps one and two are satisfied, [t]he 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 requirement “implicates the exercise of the trial court’s discretion.” (citations omitted) (emphasis supplied). 318 Md. at 561-562, 569 A.2d 657 .

What the Edison case then did, under the guise of reviewing four allegedly discretionary weighings of probative value versus unfair prejudice, was a strange hodgepodge of analysis. Three separate crimes on three separate occasions had been joined for trial. Each, to be sure, threw some light on the others. Agreeing that at least skeletal references were mutually admissible, Edison could be interpreted as holding simply that more elaborate and embellishing detail of the respective crimes was, however, surplusage and that the excessive detail was not mutually admissible. 318 Md. at 564, 569 A.2d 657 .

Under such a reading, the decision would be sound, for a determination based on the absence of mutual admissibility, even limited to the non-admissibility of the excessive detail, is a legal decision and not a discretionary call. McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977); Graves v. State, 298 Md. 542 , 471 A.2d 701 (1984). The opinion in Edison , however, as opposed to the decision in Edison , continued to speak the language of reviewing exercises of discretion by the trial judge: We are constrained to conclude that the trial judge did not heed our caution set out in Faulkner that in his judicious determination of the probative effect of the evidence versus its prejudicial impact, he must weigh carefully ¹³ the necessity for and probativeness of the evidence concerning the collateral criminal acts against the untoward prejudice which was likely to be the consequence of its admission____ The necessity for and the probative value of the improper evidence was far exceeded by potential jury hostility or unfair prejudice, (citation omitted) (emphasis supplied). 318 Md. at 564, 569 A.2d 657 . In four out of four instances, the Edison court then almost summarily declared the rulings of the trial judge wrong, without any reference to or language about discretionary range or about the deferential standard of appellate review ordinarily employed when looking at discretionary decisions.

It seemed to apply a rigid right/wrong standard even while continuing to speak the language of discretionary review. It may simply be the case that the decision is sound but that the opinion announcing the decision is treacherous. It is interesting to note that in a court trial, by contrast, the judge has significantly more discretion on the severanee/joinder issue than is permitted in a jury trial. Graves v. State, 298 Md. 542 , 471 A.2d 701 (1984) is the authority for this dichotomy. “What our opinions do ... is to effect a distinction between a trial with a jury and a trial without a jury with respect to the court’s discretion in the context of prejudice by a joinder.” 298 Md. at 544 , 471 A.2d 701 .

Even when evidence is not mutually admissible, a situation where no discretion exists and where trial severance is absolutely mandated in a jury trial as a matter of law, the judge may nonetheless order a trial joinder in the interest of judicial economy for a court trial. The rationale for the significantly greater latitude—to wit, the discretion—is that the legally trained judge can weigh the factors of efficiency and economy against the possible prejudice to his own impartiality and can give reasonable assurance that his fact finding will be (or has been) meticulously segmented into watertight compartments, hermetically sealed off from any spill-over influences. Graves v. State recognized the fundamental difference between the types of fact finder, 298 Md. at 546 , 471 A.2d 701 : ¹⁴ The rationale underlying the McKnight holding does not support the application of that holding to a court trial. We have noticed a fundamental distinction between a judge and a jury as the trier of fact, (emphasis supplied).

The Court, 298 Md. at 547 , 471 A.2d 701 , explained its rationale: [W]e have not deterred the practice of the same judge presiding at separate court trials of the same defendant when severance has been. granted or at retrial after a mistrial or reversal on appeal. We conclude that in a court trial, upon joinder of similar offenses where the evidence would not be mutually admissible at separate trials, prejudice is not assumed as a matter of law. The question then is whether a given defendant is in fact prejudiced by the joinder. In order for a judgment to survive in the face of a similar offense joinder with evidence not mutually admissible, we think that the record must be sufficient to show that the defendant was not in fact prejudiced by the joinder.

This would not be feasible as to a jury trial, (citations omitted) (emphasis supplied). In the Graves case, the trial judge had ordered a joinder notwithstanding the fact that it was “undisputed that the evidence as to each individual indictment would not be mutually admissible at separate trials.” 298 Md. at 548 , 471 A.2d 701 . Both this Court and the Court of Appeals affirmed. The Court of Appeals held, 298 Md. at 549-550 , 471 A.2d 701 : ...

Md.Rule 745 [now Md.Rule 4-253] applies to both trial with a jury and trial by the court. However, in a court trial the joinder for trial of similar but unrelated offenses where the evidence as to each individual offense is not mutually admissible at separate trials does not prejudice the defendant as a matter of law. On the facts and circumstances of this case, the record is sufficient to establish that Graves was not prejudiced by the joinder of the indictments for trial. Thus there was no error and therefore no abuse ¹⁵ of the court’s discretion in granting the motion for joinder.

(emphasis supplied). But see McKinney v. State, 82 Md.App. 111, 126-128 , 570 A.2d 360 (1990), the rationale of which appears to be in flat-out conflict with that of Graves . One epidemic problem broadly bedevils our severance/joinder law. Much of our case law seems to have strayed into analytic quicksand by pursuing too closely a flawed analogy to the “other crimes” admissibility principles of State v. Faulkner, 314 Md. 630 , 552 A.2d 896 (1989) on which it heavily relies.

State v. Faulkner is the definitive treatment of “other crimes” evidence and sets out the three necessary steps that must be taken before, in the trial of a single case, evidence of “other crimes” will be admitted. See also Ross v. State, 276 Md. 664 , 350 A.2d 680 (1976); Cross v. State, 282 Md. 468, 386 A.2d 757 (1978); Harris v. State, 324 Md. 490 , 597 A.2d 956 (1991). The three Faulkner steps, however, are not properly applicable to a severance/joinder determination. “Other crimes” law and severance/joinder law share, to be sure, some overlapping concerns, but they are by no means precise parallels. In severance/joinder cases, the mutual admissibility requirement guards against potentially contaminating evidence other than mere evidence of “other crimes” and is, therefore, far broader in its exclusionary coverage.

The mutual admissibility that is necessary for trial joinder, moreover, is contingent upon relevance generally and does not start, as the first step of conditioning “other crimes” evidence does, with a presumption of inadmissibility subject only to limited exemptions for evidence showing motive, intent, absence of mistake, identity, or common scheme. Harris v. State, 324 Md. 490 , 597 A.2d 956 (1991). Evidence showing consciousness of guilt, for instance, as State v. Edison, 318 Md. 541 , 569 A.2d 657 (1990) acknowledges, is admissible in a severance/joinder situation, although it is not routinely listed as an exception to the “other crimes” rule. As long as the evidence bearing directly on one charge also has some relevance in proving the other charge, the evidence is, by definition, mutually admissible.

Save only ¹⁶ for the final balancing requirement, nothing more is required for purposes of trial joinder. For a joint court trial, moreover, even mutual admissibility is not strictly required. The analogy does not hold. 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. Graves v. State, 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. Once again, the analogy does not hold. The only aspect that “other crimes” law and severance/joinder law have in common is the balancing of probative value against unfair prejudice. Even here, however, the balancing is not the same.

Judicial economy and the avoidance of the inconvenience of largely duplicative trials are very weighty, albeit not dispositive, factors in joint trial determinations. Lewis v. State, 235 Md. 588, 590 , 202 A.2d 370 (1964); Cook v. State, 84 Md.App. 122, 130 , 578 A.2d 283 (1990), cert. denied, 321 Md. 502 , 583 A.2d 276 (1991); Erman v. State, 49 Md.App. 605, 611 , 434 A.2d 1030 (1981); Stevenson v. State, 43 Md.App. 120, 130 , 403 A.2d 812 (1979), aff'd, 287 Md. 504 , 413 A.2d 1340 (1980). See also Zafiro v. United States, 506 U.S.-, 113 S.Ct. 933 , 122 L.Ed.2d 317 (1993). They are factors that have absolutely nothing to do with the admissibility of “other crimes” evidence.

There is no downside to keeping out evidence of “other crimes” for the other crimes are not the subjects of pending trials. Judicial economy is, indeed, the only reason for permitting joint nonjury trials where the evidence is not mutually admissible. ¹⁷ 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. Severance/] oinder law and evidence of “other crimes” law deal with distinct trial problems, and the respective analyses should not, because of a minor overlap, be uncritically blended into a single analysis.

Again, the analogy is badly flawed if not totally inapt. There is, to be sure, a resemblance between the two bodies of legal doctrine, but the resemblance is slight. The danger, of course, is that the flawed analogy may have been uncritically copied and repeated so many times that it has become an institutional hallmark beyond realistic hope of disestablishment. The effort, however, must be made. 3.

The Severance Issue in this Case Whatever the evaporation of discretion that may be taking place on the periphery of the severance/joinder issue, it is clear that at the core, in a jury trial where evidence on the separate charges is not mutually admissible, there is no discretion left. We are, rather, under the rule of law promulgated in McKnight v. State, 280 Md. 604, 612 , 375 A.2d 551 (1977): We think that 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. In all candor, if the trial judge had had it within his discretionary prerogative to join the two sets of charges in this case in a single jury trial, notwithstanding that the evidence was not mutually admissible, the circumstances are sufficiently marginal and debatable that we would frankly find no abuse of discretion on his part. Had we ourselves been making the severance decision in the first instance, our decision might have well been different than the one made by the trial judge.

That, however, would prove nothing. Within the ¹⁸ discretionary range, both the decision to join and the decision to sever could both be legitimate options and neither would constitute an abuse of discretion. For a trial judge to exercise discretion differently than an appellate court might think it would is not, ipso facto, an abuse of discretion. As we have said, however, this was not a situation where discretion was involved.

We do not hold that the trial judge abused his discretion. We hold, rather, that the trial judge was in error as a matter of law in joining the two sets of charges for trial before a jury for the reason that the evidence was not mutually admissible. Between the trial of the earlier episode at the 7-Eleven and the trial of the later episode at Glebe Road, the evidence was probably inadmissible in both directions. It clearly was inadmissible in one direction—the receipt of the later conduct at Glebe Road at the trial of the earlier incident at the 7-Eleven—and that is all that is required to keep the evidence from being mutually admissible.

The firing of the gun at Glebe Road, be it deliberate or reckless or accidental, was not relevant to prove the offenses at the 7-Eleven. .Whatever happened at the 7-Eleven was a fait accompli. Neither the possession nor the use of the gun at Glebe Road helped to prove the earlier carrying of the gun at the convenience store. That the police later recovered the gun from Glebe Road would, to be sure, be admissible on the charge of carrying the handgun from the 7-Eleven to Glebe Road, but the actual firing of the gun at Glebe Road and the potentially deadly consequences of that firing was clearly excessive detail that was not admissible. State v. Edison, 318 Md. 541, 562-565 , 569 A.2d 657 (1990).

Nor did the use of the gun at Glebe Road help to prove that the appellant assaulted Mohammed Khawar Ullah by attempting to place him in fear of imminent bodily harm. What it did do, arguably, was to demonstrate that the appellant was an inherently dangerous and violent person and not one who, on the earlier occasion, was guilty perhaps of nothing more than strutting or bluffing. At the 7-Eleven, the appellant did not ¹⁹ brandish the handgun although he did display it, still in his belt. The words he spoke to Khawar were clearly hostile and gave rise to a permitted inference of a threat to harm.

They were not so unequivocal, however, that there could not have been some residual doubt as to whether the appellant was actually threatening imminent bodily harm. The later evidence of events at Glebe Road, however, supercharged the trial of the earlier incident with an arguable propensity for deadly violence on the part of the appellant. That one-directional inadmissibility is enough to preclude the necessary mutuality of admissibility was made clear by Chief Judge Wilner in Kearney v. State, 86 Md.App. 247 , 586 A.2d 746 , cert. denied, 323 Md. 34 , 591 A.2d 250 (1991). In that jury trial, Kearney was shown to have committed a kidnapping on one occasion and a murder three days later of the same victim.

While the earlier kidnapping shed light on the subsequent murder, evidence of the subsequent murder would not have been admissible, at a separate trial, to help prove the earlier kidnapping. Judge Wilner held, 86 Md.App. at 253-254 , 586 A.2d 746 : The trial court erred, however, in determining that the “other crimes” evidence of the kidnapping on January 18 and the murder on January 21 was mutually admissible. While evidence of the kidnapping would be admissible at the trial for the murder as tending to establish appellant’s intent and knowledge, the reverse is not true. Any evidence of the murder would be wholly irrelevant in a trial for kidnapping to prove any of the exceptions noted in Ross [ 276 Md. 664, 669-670 , 350 A.2d 680 (1976) ].

Therefore, because evidence of the murder would not be admissible in the trial for the kidnapping, the evidence cannot be mutually admissible. Thus, the joinder of the offenses for trial in this case was in error, (emphasis in original). As Kearney v. State, however, pointed out for the very first time, the remedy for a misjoinder need be no broader than the harm. A one-directional inadmissibility only calls for a one-directional reversal and remand.

Avoiding a needlessly wasteful blunderbuss sanction, Chief Judge Wilner fashioned ²⁰ an appropriately tailored remedy, 86 Md.App. at 255 , 586 A.2d 746 : [A] finding of some prejudice as a matter of law in a jury trial does not necessitate a finding that everything was thereby prejudiced. Here, were we to order new trials for both offenses, we would end up with one trial for the kidnapping on January 18, at which evidence of the events occurring on the 21st would not be admissible, and another trial for the kidnapping and murder on January 21, at which evidence of the kidnapping on the 18th would be admissible. While we must order the first, we have already had the second—the trial below. In light of the fact that any retrial on the murder count would be identical in every relevant way to the trial actually conducted below, we find no error—and hence no prejudice—in the admission of the events of January 18 during appellant’s trial for murder.

Accordingly, we shall vacate the judgment entered on Count I of Indictment CT892484X—the kidnapping that occurred on January 18—and remand that case for a new trial. We shall, however, affirm appellant’s conviction for murder, (emphasis in original). Under the circumstances, it is mete that we also examine the admissibility of the evidence in this case in the other direction. The evidence from the 7-Eleven was inadmissible at the trial of the Glebe Road offenses.

The reason advanced by the State for showing the earlier episode is inconsequential. The reason Bryan Wieland had for going to his brother’s residence at an early hour of the morning had little, if any, significance in assessing the appellant’s guilt once Bryan arrived. On the other hand, the prejudice to the appellant was clear. For a homeowner, rudely awakened by loud kicking at his door at an early hour of the morning, to arm himself as he approaches his door would be neither illegal nor bizarre.

For him to see through a glass panel a person he deemed to be a stranger first walking away from the door and then returning to it would make both apprehension and nervousness plausible. The appellant’s position, however, was ²¹ seriously compromised by the evidence of his earlier truculent behavior. The State’s theory of the ease required a leap of logic that was impermissibly speculative. The earlier demonstrated hostility toward Mohammed Khawar Ullah at the 7-Eleven does not support a permitted inference that, later at Glebe Road, the appellant deliberately fired in the act of opening his front door, apparently believing the “midnight caller” to be Mohammed Khawar Ullah himself or perhaps Khawar’s brother, Mohammed Amjad Ullah, or perhaps an investigating or apprehending police officer.

On the other hand, the evidence of the appellant’s earlier churlish behavior may well have tarnished him, in the jury’s eyes, as a hostile and aggressive “time bomb” with a ready propensity to use a gun offensively. We also find the State’s last-gasp reliance on Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980), unpersuasive. At first glance, Tichnell’s words, 287 Md. at 712, 415 A.2d 830 , would seem to offer the State some solace: One such exception permits the admission of evidence of other crimes when the several offenses are so connected or blended in point of time or circumstances that they form one transaction, and cannot be fully shown or explained without proving the others. Particularly consoling would seem to be its later observation, 287 Md. at 713, 415 A.2d 830 : As we have indicated, the offenses consolidated for trial were closely related to each other and occurred within a fifteen-minute period within a tightly confined area near Davidson’s store.

Among other reasons, the proximity of time and space within which the offenses were committed distinguishes this case from Jones. On closer analysis, even the words of Tichnell afford the State little comfort. Its reference to the close proximities of time and place are merely offered “among other reasons” to distinguish its circumstances, where severance was not required, from those in State v. Jones, 284 Md. 232 , 395 A.2d 1182 (1979), where severance was required. It is the factual ²² context of Tichnell , however, that sets it far apart from the State’s situation in the present case.

The flagship charge against Tichnell was that of the murder in the first degree of a deputy sheriff. The other offenses, the trials of which Tichnell wanted severed from the murder trial, were 1) a breaking and entering and theft a few minutes before the murder, which the deputy sheriff was responding to when Tichnell shot him, and 2) the armed robbery of the deputy sheriff and the stealing of his police cruiser at the time of the murder. As Chief Judge Murphy pointed out in the Tichnell opinion, the breaking and entering, the killing of the deputy sheriff who attempted to arrest him for the breaking and entering, and the simultaneous taking of the deputy’s police cruiser by Tichnell “constituted one continuous and uninterrupted criminal transaction.” 287 Md. at 710, 415 A.2d 830 . One of the theories of first-degree murder, moreover, was felony-murder and either the earlier breaking and entering or the subsequent robbery could have served as the predicate felony for felony-murder.

Chief Judge Murphy stated, 287 Md. at 710, 415 A.2d 830 : In ordering the consolidation under Rule 745a, Judge Pollitt agreed-with the State’s position, noting in addition that to prove the commission of a felony murder, the prosecution would have to establish the underlying felony of either storehouse breaking or robbery, both crimes being charged in the other indictments joined for trial, (emphasis supplied). That was the situation facing the Court in Tichnell when it spoke of several offenses being “so connected or blended in point of time or circumstances that they form one transaction, and cannot be fully shown or explained without proving the others.” 287 Md. at 712, 415 A.2d 830 . In looking at the five Maryland cases cited as authority for that statement, moreover, four of the five simply use that language in the course of a general discussion not pivotal to the decisions in those cases. The one precedential authority where the outcome hinged on the close relationship of the offenses was Wood v. State, 191 Md. 658 , 62 A.2d 576 (1948).

Wood was on trial for first- ²³ degree murder of a policeman who was attempting to apprehend him for the armed robbery and kidnapping of a taxicab driver half-an-hour earlier. Wood argued that the taxicab episode was a fait accompli and that evidence of it should not have been admitted in the murder trial. Holding that the robbery may still have been in progress and, therefore, could serve as the predicate felony for felony-murder, Judge Henderson stated for the Court of Appeals, 191 Md. at 668 , 62 A.2d 576 : [W]e cannot rule as a matter of law that the robbery was completed, when in fact the hue and cry was promptly raised and the accused was intercepted, -within half an hour after the robbery, with the loot and the weapon used in the robbery in his possession. See also State v. Jones, 284 Md. 232 , 395 A.2d 1182 (1979).

There was no such connection between the 7-Eleven offenses and the Glebe Road offenses in this case. We hold that the failure to sever the trial of the two sets of offenses was reversible error. Sufficiency of the Evidence Our reversal of the convictions because of the erroneous misjoinder would ordinarily be dispositive of this appeal. The appellant has, however, raised the contention that the evidence was not legally sufficient to support the convictions for the four offenses he was found to have committed at Glebe Road.

The appellant has not raised any challenge to the evidentiary sufficiency of the three convictions at the 7-Eleven. Indeed, in good conscience, he could not do so. 1. Why Should We Also Review Legal Sufficiency? Because we are reversing on other grounds, the appellant’s contention with respect to the legal insufficiency of the evidence is, for dispositive purposes of this appeal, mooted.

It is, nonetheless, highly appropriate that we address the issue because of the possible double jeopardy implications of such a ruling. If we hold that the evidence was legally sufficient to ²⁴ support a conviction, there could be no viable future claim that the double jeopardy protection bars a retrial following appellate reversal. If, on the other hand, we hold that the evidence was not legally sufficient to support a conviction, there is always the possibility that a legitimate double jeopardy problem may arise. We hasten to add that we do not sua sponte raise an anticipatory double jeopardy claim on behalf of an appellant or presume to tell either the State’s Attorney or the trial judge what they may or may not do by way of a retrial. .

Even if we were so disposed, we are not empowered to do so. Double jeopardy is not an issue before us. It is, moreover, an issue that has not yet arisen anywhere and may, indeed, never arise. If the State’s Attorney chooses to retry a defendant, notwithstanding our holding of legal insufficiency, and the defendant, through choice or neglect, should raise no double jeopardy claim, there would be no bar to a retrial going forward.

In the more likely scenario, however, that the defendant should raise a double jeopardy claim, then our holding as to evidentiary insufficiency would serve at that time in that forum as the predicate for a ruling that a retrial would be barred. Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978). It is, thus, appropriate that we address the issue. 2. Collateral Estoppel or Judge-Jury Inconsistency or Neither In this case, it is unnecessary to consider the tantalizing question of whether in a jury trial a judge’s ruling of legal insufficiency as to one count will have any necessary spill-over or collateral estoppel-like effect on other counts or whether a logical inconsistency between a jury’s verdict on one count and a judge’s ruling on another count would be fatal.

Under the circumstances of this case, either of those arguments that might be made collapses with the collapse of its factual predicate. The appellant’s primary argument in terms of legal insufficiency is a common denominator argument that goes to all of ²⁵ the Glebe Road offenses. He concludes, largely with mirrors and sleight of hand, that the trial judge somehow made a legal ruling that the evidence in the case was not legally sufficient to support any finding that the firing of the handgun at Glebe Road was other than accidental. It is a jerry-built conclusion that will not withstand close scrutiny.

In addition to the crimes for which he was convicted, the appellant was also tried for assault with intent to murder his brother at Glebe Road. When, at the end of the State’s case, the appellant moved for a judgment of acquittal, the judge offered the observations that the appellant now relies on: The Court agrees that there is no inference that the defendant would shoot anyone arising from the incident which occurred at the 7-Eleven Store---- Certainly it was an accident for the defendant to have shot his brother. Probably not even the State contests that. That was no more than an interested, and interesting, observation on the part of the trial judge.

It is both legally and logically bereft of any significance. It is not a finding of fact, for the judge was not elected by the appellant to be the fact finder in this case. Neither is it a legal ruling with respect to legal insufficiency. The legal ruling, indeed, went in the opposite direction.

Following the quoted observations, the judge went on to add: But it was not necessarily an accident for the defendant to have shot whatever human