holding admissible under identity exception evidence of other robberies at same store that defendant was charged with robbing in same manner
How later courts described this case
- holding admissible under identity exception evidence of other robberies at same store that defendant was charged with robbing in same manner
- noting that the determination of clear and convincing evidence is reviewed for whether the evidence was sufficient to support the trial judge's finding, and that the weighing of prejudice versus probative value implicates the trial court's discretion
- holding that to be admissible the other bad act must be (a) probative of another issue, (b) proven by clear and convincing evidence, and (c) more probative than prejudicial
- holding admissible under identity exception evidence of other robberies at same store that defendant was *809 charged with robbing in same manner
Written by the judges who cited it.
The opinion
COLE, Judge,
dissenting.
The majority today holds that in this case evidence of other crimes is admissible to prove the defendant’s guilt of the crime charged. I disagree and therefore dissent.
The general rule in Maryland is that prior criminal acts of a defendant are inadmissible when offered to prove culpability for the charged offense. Our cases unmistakably establish this premise. However, we have developed several limited exceptions to the rule, allowing the evidence to be admitted for a purpose other than to show the criminal character of the accused. We admit such evidence when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the com *644 mission 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 the crime on trial. Straughn v. State, 297 Md. 329 , 333 & n. 3, 465 A.2d 1166 , 1169 & n. 3 (1983); State v. Jones, 284 Md. 232, 238 , 395 A.2d 1182, 1185-86 (1979); Cross v. State, 282 Md. 468, 473 , 386 A.2d 757, 761 (1978); McKnight v. State, 280 Md. 604, 612-13 , 375 A.2d 551, 556 (1977); Ross v. State, 276 Md. 664, 669-70 , 350 A.2d 680, 684 (1976).
The majority seems to hold that in this case the other crimes evidence is admissible under the identity or “earmark” exceptions as showing the defendant’s modus operands However, I remain unpersuaded that the probative value, the necessity for, and the clarity of the evidence outweigh the great prejudice inflicted upon the defendant.
As I see it, this attempt to fit the “other crimes” evidence into the identity or modus operandi exception is misplaced. If the evidence is entitled to be admitted, it should be supported by clear and convincing proof that the other Safeway robberies are “so nearly identical in method as to earmark them as the handiwork of the accused.” Ross, supra, 276 Md. at 670 , 350 A.2d 680 . A very substantial degree of similarity between the charged crime and the uncharged crime is required to prove identity. There should be some uniqueness in the modus and a concurrence of distinctive facts before such collateral evidence is admitted. Mere similarity should never be sufficient.
We said in Cross, supra, 282 Md. at 478 , 386 A.2d 757 , that such evidence, to be admissible, must clearly and convincingly prove a defendant’s involvement in the other crimes. Here, I am convinced that evidence of the other Safeway robberies is anything but clear and convincing, certainly not so unique or strikingly similar as to suggest a signature quality to the crimes and to unmistakably identify. Faulkner as the culprit.
The State’s primary evidence tended to establish that the perpetrator of the other robberies had similar “build, man *645 nerisms, and language” to that of the defendant; that Faulkner had spent large sums of money similar in denomination to that stolen; that Faulkner had indicated his involvement in a robbery of an unidentified Safeway on an unspecified date in the spring of 1985; and that Faulkner had boasted that he had “hit” a place on at least two occasions.
The true test, as unequivocally articulated in Ross and its progeny, requires the separate crimes to display a unique signature quality. Clearly, the evidence here does not meet that test. Significantly, the November 15, 1985, robbery was committed by an assailant brandishing a .22 caliber revolver, carrying a burlap sack, and wearing a blue denim mask. The perpetrator of the April 19, 1985, crime wore a ski mask, carried a green trash bag, and used a .22 caliber rifle. The January 10, 1986, robbery was committed by an assailant who wore a blue denim mask, carried a plastic bag, and used a .22 caliber handgun. Any mere similarity existing between the crimes is of insufficient strength to trigger the identity exception.
Even were I to ignore the impropriety of admitting the evidence to prove identity, 1 nonetheless must acknowledge the untoward prejudice occasioned by apprising the jury of the January 10th crime. That incident involved the shooting of a Safeway employee. The mere suggestion that Faulkner committed that heinous act clearly was enough to outweigh the evidence’s probative value and was fraught with such prejudice as to not even necessitate a separate objection on this ground by the defendant. In my view, the other crimes evidence should have been excluded as to both the April robbery for its clear dissimilarity and the January crime for its inherent prejudice.
For these reasons, I agree with the Court of Special Appeals and would reverse the judgment of the Circuit Court for Montgomery County.
Judges ELBRIB6E and BLACKWELL have authorized me to state that they join in the views expressed in this dissenting opinion.