Wynn v. State

RAKER, Judge, dissenting. I would affirm the judgment below and accordingly, I dissent. The Court of Special Appeals, in my view, applied the proper analysis. Judge Thieme wrote for the court: ³³⁴ The evidence in the instant case was substantially relevant to a genuinely contested matter in the case.

The issue at trial was whether [Wynn] stole the merchandise from the victim’s house. He claimed to have come to possess the merchandise by purchasing it at a flea market. Thus, not only was the issue substantially relevant and contested, it was a central issue of the case. From the determination of the theft issue, the housebreaking issue was decided.

If [Wynn] had the stolen items, it can be inferred that he was the person that broke into the house. Thus, the issue was critical to the determination of both counts. Wynn v. State, 117 Md.App. 133, 148-49 , 699 A.2d 512, 519 (1997) (citation omitted). The majority holds that the evidence of housebreaking and theft by Wynn at the Garrison residence was not admissible under the absence of mistake exception found in Maryland Rule 5-404(b) and reverses the convictions in this case. 1 I agree with both the trial court and the Court of Special Appeals that the admission of the evidence in question is fitted properly under the “absence of mistake or accident” exception to the general rule of exclusion of other crimes evidence set out in Maryland Rule 5-404(b).

Wynn’s possession of the goods stolen from the Quigley home, explained throughout his trial defense as the result of an innocent and unknowing purchase, might otherwise be characterized as “unintentional,” “mistaken” or even “accidental.” It was for the purpose of dispelling Wynn’s express claim, and its various possible characterizations, that the trial court rightfully permitted the ³³⁵ prosecution to present evidence of Wynn’s possession of goods stolen from the other residences. His possession was no mistake or accident. Even if I agreed with the majority that evidence of Wynn’s guilt with respect to the break-in at the Garrison home was not admissible under the “absence of mistake” exception to Rule 5-404(b), I would nonetheless conclude that the evidence was admissible because of its strong probative value in rebutting Wynn’s claim that he innocently acquired the goods stolen from the Quigley home. I write to express my disagreement with the analysis applied by the majority regarding the admissibility of the other crimes evidence in this case.

I also disagree with the majority’s conclusion that the theory of relevancy which would justify the admission of the other crimes evidence in this case is not properly before the Court. I. In May of 1995, Montgomery County police detective Eugene A. Curtis, along with other officers, executed a search and seizure warrant at Wynn’s apartment in Prince George’s County, Maryland. The police seized several items, including three watches and a canvas Sierra bag, identified as having been stolen from the Quigley home. In addition, the police recovered a Lucas gym bag and an antique watch, both identified as having been stolen from the Garrison house.

At the Quigley trial, the State introduced the other crimes evidence at issue here: the antique watch and the Lucas bag stolen from the Garrison home. The majority misunderstands the reason the State offered the other crimes evidence, and applies unsound logic and rationale in concluding that the evidence was inadmissible. The majority states that “examination of the commentators and the case law both in Maryland and in other jurisdictions that we have discussed reveals a general prerequisite to the application of the absence of mistake exception.” Maj. op. at 330. The prerequisite, as perceived by the majority, is that “[i]n order for the exception to apply, the defendant generally ³³⁶ must make some assertion or put on a defense that he or she committed the act for which he or she is on trial, but did so by mistake.” Id.

The majority concludes that the basic prerequisite to the application of the absence of mistake exception has not been satisfied in this case for two reasons: (1) that petitioner never asserted that he committed the housebreaking or that the housebreaking was a mistake and (2) that the crime or bad act allegedly committed by mistake must be the same crime or bad act as that for which the defendant is on trial. Because the State’s evidence did not satisfy these “prerequisites”—that Wynn never asserted that he broke into the Quigley house by mistake and that he was not charged with receiving stolen property—the majority holds that the evidence did not qualify as “absence of mistake,” and hence was inadmissible. The majority concludes that the evidence of theft and housebreaking at the Garrison home was not admissible under Maryland Rule 5-404(b). The majority reasons that “[t]he other crimes evidence in this case was introduced by the State in its case in chief, prior to the presentation of any defense, to show that petitioner must have been the person who committed the housebreaking and theft in question because he was the person who committed another housebreaking and theft.

In other words, Petitioner committed the housebreaking and theft because he had a propensity to commit housebreakings and thefts.” Maj. op. at 333. The majority misses the State’s theory of the case. Throughout the Quigley trial, the State articulated a tenable, non-character, theory of special relevance for the introduction of other crimes evidence. The State introduced property stolen from the Garrison home to rebut the suggestion by the defense, by showing its improbability, that Wynn innocently bought the Quigley goods at a flea market.

The majority is simply -wrong in asserting that the evidence was introduced to show the criminal propensity of Petitioner. Contrary to the suggestion of the majority opinion, the State did not offer the other crimes evidence in this case in ³³⁷ order to place before the jury the impermissible inference arising from Wynn’s criminal predisposition. The majority attributes sinister motives to the State, suggesting that “the State may have been creating a straw person by inferring that petitioner claimed he purchased the property at a flea market and that claim was a ‘mistake.’ ” Maj. op. at 331. I disagree with that characterization.

Moreover, the record does not support this accusation. In his first trial, Wynn was acquitted of the Picard and Smith charges; in his second trial, he was convicted of the Maples and Garrison charges. At the second trial, the trial court admitted evidence related to the Quigley housebreaking. The State contended that this evidence was necessary because at Wynn’s first trial on the Picard and Smith charges, Wynn argued that “it was the bad luck of the defendant that he had such items in his possession” and that the property was innocently acquired.

The State also asserted that the other crimes evidence established identity. Although the trial court found that the evidence did not fit within the identity exception, the court ruled the evidence admissible under the “absence of mistake” exception. There was no surprise in this case, the third of Petitioner’s three trials. Wynn had been indicted in a single indictment, charging multiple housebreakings.

The Picard and Smith charges were severed and tried first. The Maples and Garrison charges were tried next. The Quigley case now before us followed. The same judge presided at all these trials.

The State’s theory of admissibility, and the trial judge’s rationale for the admission of the evidence, were well known to the parties at the trial level. It is clear from the record in this case that the trial judge was well aware of the facts related to all the housebreakings and the defenses that were to be presented. 2 ³³⁸ The court held a pre-trial hearing on Wynn’s motion to suppress evidence seized pursuant to the search warrant executed at Wynn’s apartment; the court also heard a motion in limine regarding the other crimes evidence. The trial record is replete with references to the earlier trials and the judge was well aware of Wynn’s defense in the earlier trials, as well as his intention to present the same defense at the Quigley trial. At no time did Wynn indicate that his line of defense had changed for this, the third consecutive trial despite the.

State’s clearly expressed intention to use the other crimes evidence under the absence of mistake exception. At a bench conference during Mr. Garrison’s testimony, the trial judge, in evaluating whether he should give the jury a limiting instruction regarding the other crimes evidence, explained: And I want to make clear that this came up in the second trial. It never came up in the first trial in which the defendant was found not guilty. There was never an issue of other crimes evidence. ³³⁹ It only came up in the second, at a time that I already knew, because I heard the defense in the first trial, what the defendant’s central position was.

So that is why I ruled the way I ruled, or that was a factor. I am going to give them the instruction. Finally, at the conclusion of the State’s case, Wynn’s counsel told the trial court that if Wynn were to testify, Wynn would state that “he did not steal these items but in fact bought them from the Benning Road market.” Wynn elected not to testify, presumably because the court ruled that if he did testify, Wynn’s prior convictions for theft and housebreaking would be admissible as impeachment evidence. Contrary to the suggestion of the majority opinion, it is clear that the introduction of the other crimes evidence by the State in this case was not an effort to cloak an illicit character theory of admissibility.

Maryland Rule 5-404(b) governs the admissibility of other crimes evidence. The rule is declarative of the common law principle that evidence of other crimes or bad acts may be admitted if that evidence is substantially relevant to some contested issue in the case, and if that evidence is not offered to prove the criminal character of the defendant. State v. Taylor, 347 Md. 363, 368 , 701 A.2d 389, 392 (1997). Maryland Rule 5-404(b) provides: Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. As the use of the phrase “such as” makes clear, the five “exceptions” identified by the plain language of the rule are not exhaustive: [Admissibility of evidence of other bad acts is not confined to a finite list of exceptions, even under the exclusionary rule. ³⁴⁰ 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.

Harris v. State, 324 Md. 490, 497-98 , 597 A.2d 956, 960 (1991). See also White v. State, 290 Ark. 130 , 717 S.W.2d 784, 789 (1986) (holding that the listed exceptions are exemplary only and not exhaustive); State v. Johns, 301 Or. 535 , 725 P.2d 312, 321 (1986) (“[T]he proper inquiry is the probative relationship between the evidence and a fact at issue ..., not the relationship of the evidence to a categorical list of exceptions.”) (internal quotation marks and citation omitted). We look to the three-prong test articulated in State v. Faulkner, 314 Md. 630 , 552 A.2d 896 (1989), to determine the admissibility of other crimes evidence. First, evidence of other crimes may be admitted if the evidence is substantially relevant to some contested issue in the case and if the evidence is not offered to prove guilt based on the propensity to commit crimes or to show the bad character of the defendant.

Id. at 634 , 552 A.2d at 897-98 . This Court has equated the substantially relevant prong of the tripartite test with a required showing of “special relevance.” Taylor, 347 Md. at 368 , 701 A.2d at 392 . Next, the court must find that the defendant’s involvement in the other crime(s) has been established by clear and convincing evidence. Faulkner, 314 Md. at 634 , 552 A.2d at 898 .

Finally, the trial court must then carefully weigh the necessity for and the probative value of the other crimes evidence against any undue prejudice likely to result from its admission. Id. at 635 , 552 A.2d at 898 . Special Relevance Turning to this case, the evidence established that Wynn was in possession of goods stolen from the Quigley home. Absent a reasonable explanation, the exclusive possession of recently stolen property authorizes the trier of fact to infer ³⁴¹ that the possessor is the thief.

Cross v. State, 282 Md. 468, 480 , 386 A.2d 757, 765 (1978). See Grant v. State, 318 Md. 672, 680 , 569 A.2d 1237, 1241 (1990). Although, theoretically, Wynn could have argued he was not in “possession” of the stolen goods seized from his home, that was not his defense. Instead, he sought to offer an explanation for his possession of the property and to dispel any inference that, as the possessor of the recently stolen goods, he was the thief.

Specifically, Wynn’s defense was based on the factual premise that he legitimately purchased the property stolen from the Quigley home at a flea market. Wynn did not contest the act of possession. Nor did he contest the allegation that all the property in question was stolen. Two suppositions follow implicitly from the theory of defense asserted by Wynn.

The first is that he did not steal the property from the Quigley home. The second is that Wynn did not have the culpable state of mind alleged by the State when he came into possession of the Quigley goods. In order to constitute a crime, there must be a concurrence of an individual’s act and his or her guilty state of mind, Garnett v. State, 332 Md. 571, 577 , 632 A.2d 797, 800 (1993), a “coming together of ... an actus reas [sic] and a mens rea.” Oates v. State, 97 Md.App. 180, 185 , 627 A.2d 555, 558 (1993). In order to convict Wynn of daytime housebreaking, the State was required to prove that there was a breaking, that there was an entry, that the breaking and entry were into someone else’s dwelling, that it was done with the intent to commit a crime inside, and that Wynn was the person who committed the act.

See MPJI-Cr 4:06.2. In order to convict Wynn of theft, the State was required to prove, in addition to value of the property, that Wynn took and carried away the property of another and that he did so without authorization and with the intent of depriving the owner of the property. See MPJI-Cr.4:32. In seeking to rebut the State’s theory of the case and the inference that he was the thief, Wynn defended against the charges in this case by contesting the actus reus and the mens ³⁴² rea elements.

He presented a defense premised upon (1) his non-commission of the act of theft or housebreaking, and (2) his innocent state of mind at the time he came into possession of the property stolen from the .Quigley home. As a practical matter, the evidence presented in this case offered the jury two choices: the jury had to choose between the State’s theory of the case and Wynn’s contradictory theory of defense. 3 The State sought to discredit Wynn’s status as an innocent purchaser by introducing the other crimes evidence. Although Wynn’s possession of the property stolen from the Garrison home would have tended to highlight his predisposition for committing criminal acts, that evidence was relevant for a second, legitimate purpose: it logically rebutted Wynn’s claim that he innocently possessed the property stolen from the Quigley home. The State was entitled to introduce evidence of the Garrison stolen property to rebut Wynn’s innocent explanation for his actions.

See United States v. York, 933 F.2d 1343, 1350 (7th Cir.1991) (“When the defendant affirmatively denies having the requisite intent by proffering an innocent explanation for his actions, the government is entitled to rebut that argument. Evidence of another crime which tends to undermine defendant’s innocent explanations for his act will be admitted.”) (internal quotation marks and citation omitted), cert. denied, 502 U.S. 916 , 112 S.Ct. 321 , 116 L.Ed.2d 262 (1991). The State properly ascertained that the critical issue in this case was the credibility of Wynn’s “explanation” as to how he came into possession of the stolen property. If the jury believed that Wynn came into possession of the property innocently, accidently, or mistakenly, because he bought it at a flea market, the permissible inference that arises from the possession of recently stolen property evaporates, as does the State’s case.

If the jury disbelieved that Wynn innocently ³⁴³ bought the property, his possession of the stolen property would have remained unexplained; the jury could then rely on the inference arising from the possession of stolen property to convict. 4 The theory of relevance underlying the admission of the other crimes evidence in this case is perhaps better, and more intuitively, explained by the doctrine of chances, also known as the “doctrine of objective improbability,” a doctrine first articulated by Professor Wigmore, and now recognized generally by courts and commentators. See, e.g., United States v. Danzey, 594 F.2d 905, 912 (2nd Cir.1979), cert. denied sub nom. Gore v. United States, 441 U.S. 951 , 99 S.Ct. 2179 , 60 L.Ed.2d 1056 (1979); State v. Crawford, 458 Mich. 376 , 582 N.W.2d 785, 793-95 (1998); State v. Lough, 70 Wash.App. 302 , 853 P.2d 920, 930-31 (Div. 1 1993), aff'd, 125 Wash.2d 847 , 889 P.2d 487 (1995). In actuality, the doctrine was recognized by the trial judge, although not articulated as such.

See Crawford, 582 N.W.2d at 794 n. 11. (“We infer the prosecution’s reliance on the doctrine of chances from his opening and closing statements,” explaining the relevance of the uncharged ³⁴⁴ misconduct evidence.) The doctrine of chances is based on probabilities, and is premised on the proposition that mere coincidence is less probable as the recurrence of similar events increases. See Westfield Ins. Co. v. Harris, 134 F.3d 608, 615 (4th Cir.1998) (“[T]he more often an accidental or infrequent incident occurs, the more likely it is that its subsequent reoccurrence is not accidental or fortuitous.”).

Professor Wig-more articulated the doctrine as follows: The argument here is purely from the point of view of the doctrine of chances—the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but that the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them. 2 J. Wigmore, Evidence in Trials at Common Law § 302, at 241 (Chadbourn rev. ed.1979). As Professor Imwinkelried explained, “The fortuitous coincidence becomes too abnormal, bizarre, implausible, unusual, or objectively improbable to be believed. The coincidence becomes telling evidence of mens rea.” Edward J. Imwinkelried, Uncharged Misconduct Evidence § 5:05, at 11 (1995) (footnotes omitted).

Professor Imwinkelried also has commented that the doctrine of chances may be used to prove the actus reus of a crime. Edward J. Imwinkelried, The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575 , 586-93 (1990). As Dean Wigmore succinctly observed, “In short, similar results do not usually occur through abnormal causes . . . . ” Wigmore, supra, § 302, at 241. See also Eric D. Lansverk, Comment, Admission of Evidence of Other Miscon ³⁴⁵ duct in Washington to Prove Intent or Absence of Mistake or Accident: The Logical Inconsistencies of Evidence Rule m(b), 61 Wash.

L.Rev. 1213, 1225-26 (1986) (“When the evidence reaches such a point, the recurrence of a similar unlawful act tends to negate accident, inadvertence, good faith, or other innocent mental states, and tends to establish by negative inference the presence of criminal intent.” (footnote omitted)). The United States Court of Appeals for the Seventh Circuit applied the doctrine of chances in a more colloquial example: “The man who wins the lottery once is envied; the one who wins it twice is investigated.” York, 933 F.2d at 1350 . In this example, the probative value of the legally permissible inference can be drawn independently of the prohibited inference: the subjective character of the two-time lottery winner. It is the objective implausibility of the occurrence, sans nefarious activity, which rebuts the claim of an innocent occurrence.

Other courts have similarly applied Wigmore’s doctrine of chances in the context of the admissibility of other crimes evidence. See, e.g., United States v. Queen, 132 F.3d 991, 996 (4th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1572 , 140 L.Ed.2d 805 (1998); United States v. Robbins, 340 F.2d 684, 688 (2nd Cir.1965); Lee v. Hodge, 180 Ariz. 97 , 882 P.2d 408, 412 (1994); People v. Erving, 63 Cal.App.4th 652, 661-63 , 73 Cal.Rptr.2d 815, 821-22 (1998); State v. Kahey, 436 So.2d 475, 488 (La.1983); People v. VanderVliet, 444 Mich. 52 , 508 N.W.2d 114 , 128 n. 35 (1993); State v. Sadowski, 247 Mont. 63 , 805 P.2d 537, 542-43 (1991); In re Estate of Brandon, 55 N.Y.2d 206 , 448 N.Y.S.2d 436 , 433 N.E.2d 501, 504 (1982); Johns, 725 P.2d at 322-23 ; Morgan v. State, 692 S.W.2d 877, 881 (Tex.Crim.App.1985). In this case, the State was required to prove that Wynn was the housebreaker and the thief, and that Wynn wrongfully came into possession of the property. Conversely, Wynn set forth a theory of defense that he did not commit the criminal act, as well as a theory predicated upon an innocent state of mind (that he purchased the property “in good faith” at a flea market).

Wynn’s possession of the antique watch and the ³⁴⁶ Lucas bag stolen from the Garrison home was offered by the State to prove that Wynn’s claim of innocent possession of the goods stolen from the Quigley home was not worthy of belief. It was in support of this inference of improbability that the State sought to introduce the other crimes evidence in this case. If believed by the jury, this intermediate inference permissibly tended to establish an ultimate fact at issue in this case; i.e., the circumstances by which Wynn came into possession of the goods stolen from the Quigley home. In this regard, Professor Imwinkelried recognized that, in a similar scenario, other crimes evidence is admissible to rebut a defendant’s innocent state of mind defense: The accused may admit that he performed the actus reus but claim that he did so with an innocent state of mind.

For example, the accused may concede that he had possession of a contraband drug but deny that he knew that the substance was an illegal drug; he might testify that he thought that the substance was lawful medicine. Or an accused might admit that he received stolen property but defend on the theory that he was unaware that the property was stolen. In this context, when the accused characterizes the conduct as “accidental,” the accused means that he performed the act without the required mens rea. Just as the government may offer evidence of the accused’s other crimes to disprove “accident” in the first sense, the prosecutor may attempt to introduce uncharged misconduct evidence to negate “accident” in the second sense.

Imwinkelried, supra, 51 Ohio St. L.J. 575 , 593-94 (1990) (footnotes omitted). Because the State introduced the Garrison break-in evidence for a purpose other than to establish bad character or propensity to commit crimes, the other crimes evidence satisfies the first prong of the three-part test for admissibility under Maryland Rule 5-404(b). Although the majority opinion states that Wynn had to admit breaking into the Quigley house for the other crimes evidence to be admissible, an exception to Rule 5-404(b) was ³⁴⁷ properly triggered when the defendant went beyond merely denying culpability and actually presented a claim of contrary intent. The defendant need not testify to trigger the exception.

The Supreme Court of Indiana, discussing the narrow construction of the intent exception in Indiana Rule of Evidence 404(b), stated: When a defendant alleges in trial a particular contrary intent, whether in opening statement, by cross-examination of the State’s witnesses, or by presentation of his own casein-chief, the State may respond by offering evidence of prior crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant’s intent at the time of the charged offense. Wickizer v. State, 626 N.E.2d 795, 799 (Ind.1993). In the present case, all parties knew that Wynn’s defense was that he was an innocent purchaser of the goods at a flea market. Thus, Wynn’s state of mind was a contested issue in the case, and the proper foundation existed for the admission of the other crimes evidence.

Clear and Convincing Evidence Before the Court of Special Appeals, Wynn did not argue that the trial judge erred in finding by clear and convincing evidence that Wynn had stolen the goods from the Garrison home. Before this Court, however, Wynn argues that the intermediate appellate court’s reversal of Wynn’s convictions for the break-in at the Garrison home renders erroneous the trial court’s initial finding of Wynn’s complicity in the Garrison break-in. Specifically, Wynn argues that the trial court’s initial finding as to the Garrison crimes “was based, in part, on the jury verdict finding Petitioner guilty of breaking into the Garrison home and taking property from Garrison.” Wynn misinterprets the trial court’s ruling. Because the plain language of trial court’s ruling on the motion establishes that the judge concluded independently that Wynn’s complicity in the Garrison break-in was established by clear and convincing evidence, I set forth that ruling in some detail: ³⁴⁸ THE COURT: I have to be satisfied by clear and convincing evidence that this evidence—that [Wynn] really did— that this property ... he had belonged to somebody else.

I am going to tell you that I come down different places on the watch and the bag as opposed to the camera,[ 5 ] I think. Because the watch and the bag, the watch is an unusual watch, a very unusual watch. [DEFENSE COUNSEL]: You should understand in your analysis that it would appear that the jury rejected [Garrison] as being the owner of that watch because they found theft under