Streater v. State
Streater v. State
Opinion of the Court
This case presents the issue of whether factual findings contained in a protective order were properly received into evidence as part of the State’s attempt to prove that Roderick V. Streater (Petitioner) committed the offenses of stalking, harassment, and telephone misuse. The Court of Special Appeals affirmed the ruling of the trial court, holding that the protective order was admissible under the intent exception to Maryland Rule 5-404(b), which governs the admission into evidence of other crimes and bad acts.
I.
A jury in the Circuit Court for Baltimore County convicted Mr. Streater of harassment, stalking, and telephone misuse. See Maryland Code (1957, 1996 Repl.Vol.) Article 27, § 121A (Harassment), § 121B (Stalking), § 555A (Unlawful use of telephone).
At trial, Ms. Streater testified that, in April 1996, she had moved from her home to her mother’s house because Mr. Streater had been knocking on the door and calling her on the telephone after she had asked that he cease such behavior. She stated that Mr. Streater repeatedly called her at work from April 4, 1996 to May 9, 1996, that she spoke with him a
Mr. Streater did not testify on his own behalf and did not call any witnesses of his own. Mr. Streater’s counsel contended in opening argument that “[t]he evidence will show that my client acted not out of malice, not out of any intent to intimidate or threaten anyone, but simply to address some legitimate issues.” During cross-examination, defense counsel attempted to show that Mr. Streater’s contacts related to legitimate efforts to repossess the car. In his closing argument, Mr. Streater’s counsel argued that Mr. Streater “wanted to ... try to resolve their property dispute and that is all this is” and that “there was no intent to place Ms. [Streater] at fear ... [or] to annoy ... [or] harass ... his estranged wife.”
The protective order, which is the subject of this appeal, was first brought up during the direct examination of Ms. Streater:
“[State’s Attorney]: And could you tell us whether there came a time when you asked [Mr. Streater] to discontinue calling you or knocking at your door?
[Ms. Streater]: Yes, I asked him. I also had a court order for him to stay away from me.”
The order was subsequently admitted over defense counsel’s objection as substantive evidence for the prosecution’s case-in-chief against Mr. Streater. The contents of the protective order are nowhere mentioned in the trial transcript. The order, however, was received into evidence and given to the jury, along with the prosecution’s advice “to take this back with you ... and read that.” Thus, the prosecutor may have
The order refers to three factual conclusions made by the District Court judge which apparently constitute the basis upon which Mr. Streater was ordered not to contact Ms. Streater. Specifically, the form order includes a box, which the District Court judge had checked, stating, “Act(s) which placed Person Eligible for Relief in fear of serious bodily harm.” A handwritten note scrawled on blank lines underneath the above statement stated, “Respond, threatened to harm Pet., he broke into the house and took her money.”
The admissibility of other crimes or bad acts evidence, other than for impeachment purposes, is governed by longstanding evidentiary principles that are currently embodied in Md. Rule 5-404(b):
“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.”
See also Merzbacher v. State, 346 Md. 391, 406, 697 A.2d 432, 440 (1997)(“Maryland Rule 5-404(b) embodies the common law rule of ‘other crimes evidence.’ ”).
We have often cited with approval Professor McCormick’s general observation that “the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.” John W. Strong, McCormick on Evidence § 190, at 798 (4th ed. 1992)(footnotes omitted). See, e.g., State v. Taylor, 347 Md. 363, 368, 701 A.2d 389, 392 (1997); Ross v. State, 276 Md. 664, 669, 350 A.2d 680, 684 (1976). As we noted in Taylor, “ ‘there are few principles of American criminal jurisprudence more universally accepted than the rule that evidence which tends to show that the accused committed another crime independent of that for which he is on trial, even one of the same type, is inadmissible.’ ” Taylor, 347 Md.
As Md. Rule 5-404(b) recognizes, however, situations arise in which prior criminal or wrongful acts can be admitted. Our cases set forth a three-prong test for admissibility:
“When a trial court is faced with the need to decide whether to admit evidence of another crime—that is, evidence that relates to an offense separate from that for which the defendant is presently on trial—it first determines whether the evidence fits within one or more of the [special relevancy] exceptions. That is a legal determination and does not involve any exercise of discretion.
If one or more of the exceptions applies, the next step is to decide whether the accused’s involvement in the other crimes is established by clear and convincing evidence.
If this requirement is met, the trial court proceeds to the final step. The 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 segment of the analysis implicates the exercise of the trial court’s discretion.” (Citations omitted).
State v. Faulkner, 314 Md. 630, 634-35, 552 A.2d 896, 898 (1989). See also Ayers v. State, 335 Md. 602, 632, 645 A.2d 22, 37 (1994), cert. denied, 513 U.S. 1130, 115 S.Ct. 942, 130 L.Ed.2d 886 (1995); Terry v. State, 332 Md. 329, 335, 631 A.2d 424, 427 (1993).
These substantive and procedural protections are necessary to guard against the potential misuse of other crimes or bad acts evidence and avoid the risk that the evidence will be used improperly by the jury against a defendant. As Professor McLain has observed: “[T]he evidence may not be used merely as a ruse to accomplish the prohibited objective” of proving a person acted in conformity with his or her character. Lynn McLain, Maryland Evidence § 404.5, at 354 (1987). Thus, we have often observed that the trial court must carefully examine the nature and purpose of the evidence sought to
Under the first prong of the admissibility test, the other crimes evidence must carry special relevance unrelated to a defendant’s predisposition to commit a crime. The rule thus allows for the possibility of admission of the evidence, for example, as “proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.” Md. Rule 5-4004(b). See Taylor, 347 Md. at 372-73, 701 A.2d at 394 (holding joinder of offenses of child abuse proper because acts would be admissible if tried separately to rebut defense of lack of intent or malice); Acuna v. State, 332 Md. 65, 74-75, 629 A.2d 1233, 1237-38 (1993)(holding prior acts of sexual child abuse by defendant against same victim admissible); Faulkner, 314 Md. at 638-40, 552 A.2d at 900 (holding admissible under identity exception evidence of other robberies at same store that defendant was
The second prong of the admissibility test requires the trial court to determine whether the State has shown with sufficient evidence that the defendant actually committed the prior acts. See, e.g., Ayers, 335 Md. at 632-34, 645 A.2d at 37; Terry, 332 Md. at 335, 631 A.2d at 427; Faulkner, 314 Md. at 634-35, 552 A.2d at 898. We have said that the sufficiency threshold is met when the evidence is “clear and convincing to the trial judge.” Cross, 282 Md. at 478, 386 A.2d at 764 (footnote omitted). This determination protects the defendant against the risk that unsubstantiated charges of past misconduct will unduly influence the jury. See Lodowski v. State, 302 Md. 691, 728, 490 A.2d 1228, 1247 (1985)(finding prior crimes evidence improperly admitted when record was “devoid of evidence that the crime was in fact committed”), defendant’s petition for cert. denied, 475 U.S. 1086, 106 S.Ct. 1469, 89 L.Ed.2d 725, vacated, 475 U.S. 1078, 106 S.Ct. 1452, 89 L.Ed.2d 711, rev’d on other grounds, 307 Md. 233, 513 A.2d 299 (1986).
As a final consideration, we emphasize that, should the trial court allow the admission of other crimes evidence, it should state its reasons for doing so in the record so as to enable a reviewing court to assess whether Md. Rule 5-404(b), as interpreted through the case law, has been applied correctly. As we observed in Lodowski, 302 Md. at 728, 490 A.2d at 1247:
*811 “[T]he trial judge should make, on [other crimes] evidence relevant to the issue, factual findings---- These findings should be made in light of the applicable law governing the admissibility of such evidence. And it would be better if [the trial court] spread on the record the reasons for [the] ruling on the challenge [to the admissibility of the other crimes evidence].” (Citation omitted).
Cf. United States v. Zabaneh, 837 F.2d 1249, 1261-66 (5th Cir.l988)(remanding conviction for proper application of Fed. R.Evid. 404(b) when trial court failed to make an on-the-record determination of the admissibility of the other crimes evidence); United States v. Lebovitz, 669 F.2d 894, 901 (3rd Cir.l982)(stating that balancing inquiry under Fed.R.Evid. 404(b) “should be performed ... on the record by the trial court who is in the best position to determine the weight to be given the various relevant factors”)(footnote omitted).
III.
A.
Applying these principles in the instant case, we conclude that the trial court failed to properly apply Md. Rule 5-404(b), as it has been interpreted in our cases, to the admission of the factual findings contained within the protective order. Nothing in the record shows that the trial court carefully assessed the admissibility of the factual findings of other crimes contained within the protective order. Indeed, there is no indication whatsoever that the trial court considered the potential problem related to the admissibility of the other crimes detailed within the order.
In this appeal, Mr. Streater is not challenging the admission of the protective order itself; rather Mr. Streater’s challenge is to the factual statements that are contained in the protective order. The State’s brief focuses primarily on the admission of the protective order itself. Mr. Streater concedes that the actual protective order had special relevance to at least the harassment charges. Harassment prohibits a person from “maliciously engaging] in a course of conduct that alarms or seriously annoys another person ... [a]fter reasonable warning or request to desist by or on behalf of the other person----” § 121A(c). The protective order was substantially relevant to, and highly probative of, the warning element of harassment in that it directed that Mr. Streater “SHALL NOT contact (in person, by telephone, in writing, or
On the other hand, the trial court in the instant case ruled the entire protective order form admissible without addressing in the record the admissibility of factual references to other crimes that the order contained. These factual findings related to a time period not mentioned by any witnesses in the proceedings and also to acts committed by Mr. Streater that were unsubstantiated by any other testimony in the case and may have been more prejudicial than probative. In her testimony, Ms. Streater never discussed the specific events that apparently supported the factual findings contained in the protective order. The only events she testified to occurred four months after the protective order had been issued. Further, the record does not reveal the time frame in which the factual findings contained in the November 1995 order occurred. The only reference at trial to any violent act committed by Mr. Streater was the reference in the protective order to the “[b]attery or assault and battery.” The State never sought to explain the battery mentioned in the order nor did it present similar evidence through Ms. Streater’s or any other witness’s testimony.
A fundamental principle of the law of evidence is that inadmissible evidence does not become admissible simply by
In contrast to Case, in the instant case the entire protective order was admitted into evidence. As a result, the factual determinations regarding the other crimes contained within the protective order each must be analyzed separately from the question of the admissibility of the protective order itself. The trial court must therefore apply the three-prong test outlined above to determine (1) whether the evidence of other crimes carries any substantial relevance to contested issues in the case, (2) whether the other crimes have been established by sufficient evidence, and (3) whether admission of the con
B.
The protective order admitted into evidence contained three factual determinations that constitute evidence of other crimes. They include (1) Mr. Streater placed Ms. Streater “in fear of imminent serious bodily harm” and that he “threaten[ed] to harm” her; (2) Mr. Streater “broke into the house and took her money”; and (3) Mr. Streater committed a “[bjattery or assault and battery.” We now make some observations regarding the application of the admissibility test for other crimes evidence to these factual determinations.
1. Special Relevance
The trial court could have found that the first and third factual findings regarding Mr. Streater’s threats against Ms. Streater—placing her in fear of serious bodily harm and the commission of an assault and battery—had special relevance in proving the harassment charge and the stalking charges. The offense of harassment, § 121A, provides in pertinent part:
“(a) Course of conduct defined.—In this section ‘course of conduct’ means a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose.
* * *
(c) Prohibited conduct.—A person may not follow another person in or about a public place or maliciously engage in a course of conduct that alarms or seriously annoys another person:
(1) With intent to harass, alarm, or annoy the other person;
(2) After reasonable warning or request to desist by or on behalf of the other person; and
*816 (3) Without a legal purpose.”
The offense of stalking, § 121B, provides in pertinent part:
“(a) Definitions.—(1) In this section the following words have the meanings indicated.
■ (2) ‘Course of conduct’ means a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose.
(3) ‘Stalking’ means a malicious course of conduct that includes approaching or pursuing another person with intent to place that person in reasonable fear:
(i) Gf serious bodily injury or death; or
(ii) That a third person likely will suffer serious bodily injury or death.
(b) Prohibited conduct.—A person may not engage in stalking.”
The threats and statement concerning Ms. Streater being placed “in fear of imminent serious bodily harm” further the State’s case in proving that Mr. Streater “maliciously engage[d] in a course of conduct that alarm[ed] or seriously annoy[ed]” Ms. Streater. § 121A. That Ms. Streater was “alarmed” and/or “seriously annoyed” is supported by the factual finding that Mr. Streater had previously threatened harm and had committed some sort of battery or assault and battery. The threat noted in the order provides some evidence of Mr. Streater’s intent, which must be proven as part of the harassment, stalking, and telephone misuse offenses. The battery or assault and battery referred to in the protective order also may have special relevance to the intent elements of both the harassment and stalking charges and to the reasonableness of Ms. Streater’s fear of serious bodily injury or death for the purposes of establishing the elements of the stalking charge. See, e.g., Fetty v. State, 268 Ga. 365, 489 S.E.2d 813, 817 (1997)(applying a similar test and allowing in murder prosecution evidence of several prior difficulties between the victim and defendant, including evidence that they had fought, that the defendant pointed a gun at a friend of the victim who warned the defendant to stay away from the
Furthermore, coupled with the testimony concerning the events that led to Mr. Streater being prosecuted, which occurred after the protective order became effective, the threat and battery and/or assault could help to establish the “course of conduct” and “continuity of purpose” necessary to establish the offenses of harassment and stalking. See Culbreath v. State, 667 So.2d 156, 164 (Ala.Crim.App.l995)(admitting prior bad acts to establish course of conduct necessary for stalking charge); Com. v. Urrutia, 439 Pa.Super. 227, 653 A.2d 706, 709-10 (1995)(same).
Any special relevancy of the second factual finding—the handwritten note in the protective order declaring that Mr. Streater “broke into the house and took her money”—however, is doubtful without further evidence as to the nature of the conduct or its impact on Ms. Streater. There is no indication that the bad acts referenced by this statement occurred in the victim’s presence. A house may be broken into and money taken outside of the owner’s presence. Breaking in and taking money may have no special relevance relating to any contested issue concerning Mr. Streater’s intent to violate the telephone misuse, harassment, or stalking statutes. At best, it could be argued that the breaking and taking help to prove a “course of conduct that alarms or seriously annoys another person.” § 121A(c). Even that argument may fail, however, because there was no indication that prior to the time the protective order was issued Mr. Streater had been given notice to stay away from Ms. Streater.
2. Clear and Convincing Evidence
Assuming, arguendo, that each of the three factual findings have some special relevance, the trial court should have considered whether the prior acts were shown by sufficient evidence. Since the protective order was signed and issued by a District Court judge, the jury was likely to give the factual
The trial court should have determined outside the presence of a jury whether there is clear and convincing evidence that the defendant actually committed the other crimes sought to be introduced. This determination may require a hearing, and in the instant case, it would appear to involve a determination regarding the circumstances under which the protective order was granted. The trial court may inquire, for example, into whether the factual findings contained in the protective order were based on clear and convincing evidence and the failure to mark the appropriate “clear and convincing evidence” box on the protective order was attributable to scrivener’s error, or whether the order was consented to by Mr. Streater. We
3. Probative Value and Prejudice
Assuming that the special relevance and clear and convincing evidence hurdles have been surmounted, the trial court must make a discretionary determination as to whether the probative value of the findings outweigh their prejudicial effect.
Because of the sparse record, we find it difficult to opine on the probative value and potential prejudice of the “battery or assault and battery” finding. As noted above in our discussion of special relevance, see Part III.B.l., supra, it is likely that the conduct referred to by the checking of the “battery or assault and battery” box on the protective order has significant probative value with respect to the intent and course of conduct elements of the stalking and harassment charges. We also note, however, that in exercising its discre
Although the trial court should make an independent determination on remand, subject to an abuse of discretion standard upon further review, the factual finding regarding Mr. Streater’s “[breaking] into the house and [taking Ms. Streater’s] money” appears to have little probative value with respect to the offenses charged. Moreover, Mr. Streater and Ms. Streater were still married throughout the time period of the events leading to Mr. Streater’s prosecution; at the time the finding was made, Mr. Streater was not under a court order to stay away from the residence. Thus, the trial court should consider that, without more facts, the jury may be
The State cites a number of cases in which other states have admitted into evidence other crimes by the accused in prosecutions under similar harassment or stalking statutes. Our ruling in this case is not inconsistent with these cases in that we do not hold that the evidence of the other crimes contained in the protective order is per se inadmissible; to the contrary, we hold only that reversible error occurs where significant evidence of other crimes was admitted without any apparent on-the-record consideration by the trial court. The distinguishing feature between the instant case and the opinions cited by the State is that the trial courts in the cases cited actually assessed the relevancy and potential prejudice of admitting the evidence. Moreover, the trial courts often gave
IV.
Even if some of the factual references contained in the protective order were admissible, it is clear that, at least ■without further careful inquiry on the part of the trial court,
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AND REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.
Dissenting opinion by RAKER, J., in which RODOWSKY and CATHELL, JJ., join.
. The Court of Special Appeals specifically held that Mr. Streater had not properly preserved his objection to the admission of the factual
. Effective October 1, 1998, Maryland Code (1957, 1996 Repl.Vol.) Article 27, §§ 121A and 121B were transferred to Md.Code (1957, 1996 Repl.Vol., 1998 Supp.), Art. 27, §§ 123 and 124, respectively.
Unless otherwise indicated, hereinafter all statutory references are to Md.Code (1957, 1996 Repl.Vol.) Art. 27.
. The protective order refers to Mr. Streater as ‘‘Respond.” and Ms. Streater as "Pet.”
. Judge Raker's dissent repeatedly emphasizes that "Petitioner did not object to the evidence of prior acts contained with the protective order.” Dissenting Op. at p. 824, 724 A.2d at 123. In this aspect, the dissent completely overlooks the fact of our denial of the State's cross petition for certiorari on this very question. The cross petition raised the issue of whether Petitioner properly preserved his objection to the factual finding contained in the protective order. See footnote 1, supra) see also Question 2 of the State’s Answer to Petition for Writ of Certiorari and Conditional Cross Petition. Given our denial of that petition for certiorari, we must assume that Petitioner’s objection was properly preserved. Nevertheless, the dissent attempts to place this case into a category of cases in which no objection to the claimed error had been made. For example, in its footnote 2, the dissent excerpts from our case law on the plain error doctrine. The dissent's protesta
. The dissent contends that the "judge considered the [other crimes] evidence.” Dissenting Op. at p. 827, 724 A.2d at 124. There is not even the slightest suggestion in the record to support this proposition, however. Neither the judge, the defense attorney, nor the prosecutor ever specifically mentioned any of the three bad acts contained in the protective order. The dissent also contends that the prosecutor wanted to use the evidence to show a "repetitive pattern of behavior toward the victim.” Dissenting Op. at p. 830, 724 A.2d at 125. Again, this contention constitutes mere speculation since the only reference in the
On the other hand, the dissent would affirm the trial court's ruling despite the lack of anything in the record to suggest that the trial court applied Md. Rule 5-404(b) to the other crimes evidence. Affirmation under such circumstances would substantially risk undermining the policy purposes behind excluding other crimes evidence—to avoid a conviction based on a jury's assessment of the defendant's criminal character rather than on actual guilt. Maryland Rule 5-404(b) would, in effect, be rendered impotent, since the record could be entirely empty of any suggestion that the trial court applied the rule or considered the other crimes evidence, but the ruling would still be upheld on appeal. Furthermore, this standard would effectively overturn a long line of Maryland cases requiring trial courts to carefully examine and closely scrutinize other crimes evidence when it is sought to be admitted. See, for example, the cases cited and quoted in Part II, supra.
. As noted supra, the protective order itself was relevant and highly probative of Mr. Sweater’s intent and of the fact that he .was put on notice not to contact Ms. Streater, even though Mr. Streater was not being charged with violating the protective order. See Case v. State, 118 Md.App. 279, 285, 702 A.2d 777, 779-80 (1997)(upholding the admission of portions of a protective order to prove the absence of mistake or accident).
. The dissent argues that there was clear and convincing evidence of the other crimes referenced in the protective order. First and foremost, Ms. Streater herself never testified to the acts that were referenced in the protective order. Second, as noted in the main text, the judge never checked either of the two boxes indicating consent to the order or that there was "clear and convincing evidence that the Respondent committed the following abuse(s).” And finally, we have no idea when the acts alleged in the protective order even occurred. In engaging in the weighing of probative value and prejudice for the admissibility of other crimes evidence, a major consideration is how recently the acts occurred, and without any evidence—much less clear and convincing evidence—of when the alleged other crimes occurred, it is hard to conceive how the trial court can weigh their probative value and prejudicial effect. See Harris v. State, 324 Md. 490, 502, 597 A.2d 956, 962-63 (1991).
. The record indicates that Petitioner had advance notice that the prosecution would attempt to use the protective order. As a result, this case does not require us to determine whether Md. Rule 5-404(b) requires, as its federal counterpart does explicitly, see Fed.R.Evid. 404(b), that a party against whom other crimes evidence is introduced receive adequate advance notice of its introduction.
. The Maryland criminal code recognizes two types of assault; second degree assault, § 12A, and first degree assault, § 12A-1. Maryland also recognizes the common law tort of assault and/or battery, which includes an offensive touching. See, e.g., McQuiggan v. Boy Scouts of America, 73 Md.App. 705, 714, 536 A.2d 137, 141 (1988)("The gist of the action [of battery] is not hostile intent but the absence of consent to the contact on plaintiffs part.”); Continental Cas. Co. v. Mirabile, 52 Md.App. 387, 398, 449 A.2d 1176, 1183 (1982)("An assault is any unlawful attempt to cause a harmful or offensive contact with the person of another or to cause an apprehension of such a contact.”). The simple reference in the protective order to the fact that Mr. Streater committed a ”[b]attery or assault and battery,” without more, therefore may be highly prejudicial to a criminal defendant. The jury may be likely to infer the worst kind of battery/assault when the actual act could have been much less serious.
. Although the dissenting opinion never addresses the probative value and prejudice prong of the test under Md. Rule 5-404(b), in its assessment of special relevance of the prior act of breaking in and taking money, the dissent argues that the evidence may be relevant to showing criminal intent and to Ms. Streater being “alarmed” or “seriously annoyed.” This is belied by the fact that Ms. Streater never even testified to the occurrence of these acts, let alone being "alarmed” or "seriously annoyed” by them. Even assuming the dissent is correct regarding relevance, the rule still requires the trial court to assess its prejudicial impact on the jury, which could be significant given the many circumstances under which one may break into a house and take money and the different effects of such conduct. We agree with the dissent that, in weighing the probative value and prejudicial effect of other crimes evidence, trial judges “ ' ‘are not obliged to spell out in words every thought and step of logic’ in weighing the competing considerations.' ” Dissenting Op. at p. 824, 724 A.2d at 123 (quoting Ayers v. State, 335 Md. 602, 636, 645 A.2d 22, 38 (1994), in turn quoting Beales v. State, 329 Md. 263, 273, 619 A.2d 105, 110 (1993))(emphasis added). In the instant case, the trial judge did not spell out any reasoning, and neither is there any indication than he in fact conducted a weighing of the probative value and prejudice of the other crimes evidence.
Dissenting Opinion
dissenting.
I would affirm the judgment of conviction because I believe that the protective order issued by the District Court of Maryland was properly admitted into evidence. Accordingly, I respectfully dissent.
The Majority holds that the trial court failed to properly apply Md. Rule 5-404(b) to the admission of the factual findings contained within the protective order because “[n]othing in the record shows that the trial court carefully assessed the admissibility of the factual findings of other crimes contained within the protective order.” Maj. op. at 812, 724
The Majority reverses the judgment in this case seemingly because the trial judge failed to assess the relevancy and potential prejudice of the bad acts evidence. Maj. op. at 821, 724 A.2d at 122. (“The distinguishing feature between the instant case and the opinions cited by the State is that the trial courts in the cases cited actually assessed the relevancy and potential prejudice of admitting the evidence.”) In this case, the trial judge was never asked to do so. Petitioner objected only to the admission of the protective order itself. Petitioner did not object to the evidence of prior acts contained within the protective order, nor did Petitioner request that the court weigh the probative value against the undue
Cloaked in terms of “observations,” the Majority engages in a de novo analysis of the admissibility vel non of the prior acts evidence.
In April, the victim moved from her home to her mother’s home because she had been receiving harassing phone calls, threats, and knocks at her door from the defendant. On April 4, 1996, the defendant called the victim four or five times at work. When the victim left work and walked to her parking garage that evening, the defendant was parked on the street outside of the door where she exited.
The victim further testified that between April 5th and May 9th, Mr. Streater would call her place of employment anywhere from two to ten times a day. He also called her home one or two times in the evening until she had her number changed for the third time. The victim would hang up when she heard the defendant’s voice on the other end of the line, but would continuously get call after call until she took the phone off the hook. The victim’s mother testified that the defendant was calling her home constantly, and when he was not calling, he was having someone call for him.
During the month of May, the victim and her mother saw the defendant standing across the street from her house staring into the house. On May 9th and on May 10th, the defendant was waiting outside when the victim left her employment. On May 10th, when the victim arrived at her home, the defendant pulled up behind her in his car.
The victim also testified that on one occasion, the defendant told her that “if I don’t give him the car, he gonna whip my
The Majority’s Faulkner Analysis
The Three Prongs
Under the Majority’s interpretation, a trial judge is required, sua sponte, to satisfy the three-step requirements of State v. Faulkner, 314 Md. 630, 552 A.2d 896 (1989), before admitting evidence of other crimes. Defense counsel objected only to the admission of the protective order itself, which Petitioner concedes was admissible. The effect of the majority opinion is that absent any objection to the factual findings contained within the protective order, or articulated basis for exclusion, the trial court must nonetheless apply the three pronged test of Faulkner, an approach simply inconsistent with established Maryland law. The Majority reverses the judgment of the circuit court because the trial court failed to engage in the Faulkner analysis on the record. This result is unfair to trial judges and the public as well.
A trial court is entitled to deference with respect to two of the three prongs of Faulkner. See id. at 635, 552 A.2d at 898 (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). There is absolutely no evidence in this record that the trial judge was not aware of the governing rule. The judge considered the evidence, and ruled correctly on defense counsel’s objection. He was entitled to both a presumption that he knew the law and great deference on his ruling, neither of which was afforded him by the Majority.
Requirement that Reasons be Stated on the Record
The Majority, as a final consideration, emphasizes that “should the trial court allow the admission of other crimes evidence, it should state its reasons for doing so in the record
The Majority’s Application of Faulkner to the Facts
Finally, I take issue with several of the Majority’s “observations” regarding the application of the Faulkner test to the facts of this case. The Majority observes that the trial court could have found that the first and third factual findings had special relevance, but that any special relevancy of the second factual finding—that Streater “broke into the house and took her money”—is doubtful. Maj. op. at 817, 724 A.2d at 119. The Majority next states that it is unclear whether the protective order was issued with Streater’s consent, or whether the court found independently that the conduct occurred by clear and convincing evidence. Id. at 818, 724 A.2d at 120. Thus, the Majority appears to conclude that the trial court admitted the evidence without first finding that the conduct occurred by clear and convincing evidence. Id. Finally, the Majority concludes that the trial court erred in failing to determine, on the record, whether the probative value outweighs the prejudicial effect, and insinuates that several of the prior acts at issue may not satisfy this test on remand. Id. at 819-21, 724 A.2d at 120-21.
As to the Majority’s first observation, I do not share the Majority’s doubts as to whether the factual findings contained in the protective order had special relevance in proving the harassment charge and the stalking charge. Stalking and harassment each require the State to prove a continuing course of conduct—a series of events—and not simply one discrete act. Given the nature of these crimes, all three prior
While conceding the special relevance of the first and third factual findings, the Majority suggests that “any special relevancy of the second factual finding—the handwritten note in the protective order declaring that Mr. Streater ‘broke into the house and took her money’ ... is doubtful without further evidence as to the nature of the conduct or its impact on Ms. Streater.” Maj. op. at 817, 724 A.2d at 119. The Majority reasons:
[Tjhere is no indication that the bad acts referenced by this statement occurred in the victim’s presence. A house may be broken into and money taken outside of the owner’s presence. Breaking in and taking money may have no special relevance relating to any contested issue concerning Mr. Streater’s intent to violate the telephone use, harassment, or stalking statutes. At best, it could be argued that the breaking and taking help to prove a ‘course of conduct that alarms or seriously annoys another person.’ Even that argument may fail, however, because there was no indication that prior to the time the protective order was issued Mr. Streater had been given notice to stay away from Ms. Streater.
Id.
I do not believe that it is a stretch to include breaking into a home and stealing money as part of a “course of conduct that
The Majority also suggests that because there is no evidence that the defendant was told to “stay away from Ms. Streater” before the defendant committed these acts, the argument to admit this evidence “may fail.”
Even assuming the evidence is not admissible as part of a continuing course of conduct, the evidence should be admissible on other grounds, e.g., to prove Mr. Streater’s intent, and as to the harassment charge, to show that Ms. Streater was alarmed and/or seriously annoyed by Mr. Streater’s subsequent conduct.
First, the evidence that Mr. Streater previously broke into the victim’s home and took her money is relevant to his intent to stalk and harass the victim, particularly in light of the defendant’s theory of the case, i.e. that any interaction he had with his wife was intended only to address legitimate property concerns and her “horrendous behavior.” As the Majority points out, defense counsel argues that “my client acted ... simply to address some legitimate issues” and states that “there was no intent to place Ms. [Streater] at fear ... [or] to annoy ... [or] harass ... his estranged wife.” Maj. op. at 3. Surely, when defense counsel argues in opening statement that Mr. Streater’s intent in showing up at her work and home and calling her repeatedly was completely innocent, his prior actions in breaking into the home and taking her money should be admissible as tending to show that his subsequent actions were not perpetrated with innocent intent, but with criminal intent.
In addition, Streater’s prior breaking into the house and theft also tends to show the impact of Streater’s subsequent conduct on Ms. Streater—specifically, that Ms. Streater was
The offenses with which appellant was charged also required the prosecution to prove that [the victim] was reasonably caused to be in fear for her safety by appellant’s threats or that the threats would cause a reasonable person to suffer substantial emotional distress. The evidence of past domestic abuse was highly relevant and probative on these issues; indeed, it is difficult to imagine how the jury could have properly assessed [the victim’s] response to appellant’s conduct without knowledge of these past incidents. ‘Appellant was not entitled to have the jury determine his guilt or innocence on a false presentation that his and the victim’s relationship ... [was] peaceful and friendly-’
(Citations omitted).
In sum, the defendant’s prior acts of breaking into the defendant’s home and taking her money were specially relevant as tending to show a course of conduct, the defendant’s intent, and the fact that the victim was alarmed and/or seriously annoyed by his subsequent conduct.
Clear and Convincing Prong of Faulkner
I also disagree with the Majority’s observation that the trial court should have made an independent and on the record finding that the prior acts contained in the protective order were shown by clear and convincing evidence. I believe that the judge who issued the protective order had made such a findiñg, making it unnecessary for the trial court judge to do so.
Although the judge did not check either the main box indicating that Respondent had consented to the entry of the order or the main box indicating that the court had found by clear and convincing evidence that the abuse had occurred, the judge checked two boxes clearly indicating that the protective order was based on clear and convincing evidence. These boxes are part of a subcategory of abuses, which directly follow, and are indented from, the phrase, “That there is clear and convincing evidence that the Respondent committed the following abuse(s):” These boxes referencing various acts clearly represent the “abuses” to which the clear and convincing language is referring. It is clear that even under a cursory reading of the protective order, the order was based on clear and convincing evidence of abuse. I would thus credit the trial judge with knowledge of another judge’s finding that the prior acts had occurred. Contrary to the Majority’s contention, the grounds upon which the order was based were not ambiguous, and the trial court should not have been required to hold a hearing regarding the circumstances under which the protective order was granted.
In sum, I believe that the trial judge did not abuse his discretion in admitting into evidence the entire protective order. Accordingly, I would affirm.
[[Image here]]
. The relevant portion of the transcript reads:
THE STATE: And could you tell us whether there came a time when you asked him to discontinue calling you or knocking at your door? MS. STREATER: Yes, 1 asked him. I also had a court order for him to stay away from me.
THE COURT: Overruled.
COUNSEL FOR DEFENDANT: Objection.
COUNSEL FOR DEFENDANT: Your Honor, may we approach?
sj« sS s§s sj*
COUNSEL FOR DEFENDANT: Your Honor, first of all, we're not here on a violation of an ex parte order. The ex parte order was issued by the court November of 1995. We’re talking about events here from May and April of 1996.
THE STATE: And the ex parte-
COUNSEL FOR DEFENDANT: I don't know what the relevance of this ex parte order is.
THE STATE: And the ex parte order was still in effect during the time that she had to leave her home because her husband continued to call her.
COUNSEL FOR DEFENDANT: Your Honor, we're not here on an ex parte order.
THE COURT: I understand that. But I think it’s relevant to charges in this case.
COUNSEL FOR DEFENDANT: Very well, your Honor.
. As this Court said in Ayers v. State, 335 Md. 602, 628, 645 A.2d 22, 34 (1994), “if given the opportunity to correct or clarify its [ruling], the court might have done so.”
. After holding that the trial court's failure to adequately assess the reliability or prejudice of the prior acts evidence constituted reversible error, the Majority actually assesses the reliability and prejudice of the evidence by applying the three prong Faulkner test. The Majority
. Maryland Code (1957, 1996 Repl.Vol.) Article 27, § 121A provides in relevant part:
(c) A person may not follow another person in or about a public place or maliciously engage in a course of conduct that alarms or seriously annoys another person:
(1) With intent to harass, alarm, or annoy the other person;
(2) After reasonable warning or request to desist by or on behalf of the other person; and
(3) Without a legal purpose.
Course of conduct is defined in § 121(a) as "a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose.”
. This is true notwithstanding the fact that the defendant did not testify and thus did not expressly state that he had no intent to stalk or harass the victim. See State v. Taylor, 347 Md. 363, 374, 701 A.2d 389, 395 (1997). ”[T]he prosecution’s burden to prove every element of the crime is not relieved by a defendant’s tactical decision not to contest an essential element of the offense.” Id. (quoting Estelle v. McGuire, 502 U.S. 62, 69, 112 S.Ct. 475, 481, 116 L.Ed.2d 385 (1991)).
Reference
- Full Case Name
- Roderick v. STREATER v. STATE of Maryland
- Cited By
- 52 cases
- Status
- Published