text:
    JEFFERY McCORMICK v. STATE OF MARYLAND
    [No. 107,
    September Term, 1977.]

      Decided January 11, 1978.

      The cause was submitted on briefs to Davidson, Melvin and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Michael R. Malloy, Assistant Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Stephen

      Rosenbaum, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Ronald Owens, Assistant State’s Attorney for Baltimore City, for appellee.

      . Carnal knowledge of child under fourteen or of insane, etc., woman, 1892 Md. Laws ch. 204 (repealed 1 July 1975, but applicable here because the alleged offense was committed on 25 March 1975).

   Davidson, J.,

delivered the opinion of the Court.

In the Criminal Court of Baltimore, Jeffery McCormick, the appellant, tendered a plea of guilty to a charge of statutory rape. Judge Robert I. H. Hammerman accepted the plea. On 20 January 1976, he sentenced the appellant to a term of five years and, on his own initiative, ordered him to be examined at Patuxent Institution to ascertain if he was a defective delinquent. In this belated appeal, the appellant’s sole contention is that the trial court erred in not giving him “an opportunity to withdraw his guilty plea.”

The record shows that the appellant was indicted for rape (count one), assault with intent to rape (count two), statutory rape (count three), assault with intent to commit statutory rape (count four), and assault (count five). When the case was called for trial on 2 October 1975, the appellant took the stand and indicated that he wished to plead guilty to statutory rape. The State explained its position by stating:

“MR. OWENS: The State’s concern in this case is that the victim is a six year old girl, that the parents now feel that she has made at least recovery to some extent from the emotional trauma, that she is now doing well and unless compelled by some overwhelming event they would really not like to subject her to any emotional trauma. The State based on the information that we have.received is that there is a very strong indication for psychiatric treatment to bear. This is a situation where we do not have strangers, in that the Defendant is the step-brother of the mother of this child and there is very strong feeling on the part of the State that the Defendant should be subjected to psychiatric treatment and

“THE COURT: Treatment or evaluation?

“MR. OWENS: First evaluation and then treatment based on the evaluation____” (Emphasis added.)

The trial court ascertained from the appellant that he was 19 years old, that he could not read or write very well, that after the age of 13 he occasionally saw some psychologists, and that he had finished the eighth grade in special education classes. In response to questions from the court, the appellant stated that he understood the nature of the charge against him, that the maximum penalty which could be imposed was either a life sentence or, under certain circumstances, a sentence of 21 years, that the minimum sentence would be 18 months, and that he could be referred to Patuxent Institution for evaluation as a possible defective delinquent. He further indicated that he understood his constitutional rights and that by pleading guilty he was giving them up. He stated that notwithstanding the fact that he was innocent, he was entering a guilty plea in order to avoid the possible consequences of going to trial. He affirmed that nobody had made him any promises or threats in order to obtain his plea.

Thereafter, the following colloquy took place:

“THE COURT: If there had been any plea negotiations and discussion in this matter, I would like the State to state them on the record at this time.

“MR. OWENS: Your Honor and if it pleases the Court, as part of the plea negotiations entered into by the State and both Defense counsel, the State has agreed to in fact proceed only on the third count of this indictment, that after due consideration to the young child, the victim in this case, the State does not wish to subject the child to any greater emotional trauma than she has already suffered, and in a search to do what is just in this case the State has, along with counsel, made it very clear to the Defendant the possible jeopardy that he faces, by pleading guilty in this instance. However, the State has also agreed that it would recommend probation in this case, but only based upon the condition that it be compulsory that first of all there be a psychiatric evaluation by Dr. Rappeport or in fact other psychiatrists of the Supreme Bench, would be in fact recommended.

“THE COURT: Would in fact be recommended or may be recommended?

“MR. OWENS: May be recommended.” (Emphasis added.)

Defense counsel concurred “in this negotiation.” Mrs. McCormick, the appellant’s mother, testified that she agreed to the State’s recommendation and approved of “what has been done.” The victim’s parents stated that the recommendation of the State was satisfactory to them. The appellant indicated that he understood everything that the trial court had explained and that he still wanted to plead guilty.

The court accepted the guilty plea and entered a verdict of guilty. The court ordered a pre-sentence investigation and medical examination.

On 18 November 1975, the trial court held a disposition hearing. The medical office’s report, based solely upon appellant’s records and not upon a personal interview, recommended that the appellant be referred to Patuxent Institution for evaluation as a possible defective delinquent. Both defense counsel and the State’s attorney urged the trial court not to follow the recommendation. Immediately the ambiguity inherent in the plea agreement as described became apparent.

In an effort at clarification, defense counsel said that “as far as the negotiations were concerned, it was agreed, at least between the Defendant and counsel for the State, it was obviously a request for medical help and psychiatric help and psychotherapy.” The State indicated that it had agreed to recommend “probation with a condition of compulsory psychiatric treatment,” and that it was bound by that recommendation. Thereafter, the trial court indicated that, in its view, the State had not agreed to oppose the appellant’s incarceration. In a subsequent effort at clarification, the State said that it

“had no intent of seeking or recommending incarceration in this case____[W]e did not by any stretch of the imagination dream that we were looking at a recommendation to Patuxent.... [T]he State has not been at any time trying to seek incarceration____I think the whole entire spirit of the ... negotiations were aimed in the direction of not seeking incarceration, but really seeking some compulsory psychiatric treatment.... I might also add that because of the age of the victim and because of the family relationship, I can’t say it would have been unlikely, but it would have been a very difficult problem for the State to try this case.” (Emphasis added.)

The trial court found that the State was “not seeking incarceration.” It found that the State’s position was that “if there was a recommendation of outpatient medical treatment they would support it, there was no such recommendation,” and that “[t]he State still has not recommended incarceration____” Imposition of sentence was postponed in order to permit the medical office to interview the appellant.

On 9 December 1975, another disposition hearing was held. The medical office, now having interviewed the appellant, again recommended that he be referred to Patuxent Institution for evaluation as a possible defective delinquent. Defense counsel explained that at the time the plea of guilty was tendered, he understood the plea negotiations to be an offer by the State for “probation with psychiatric treatment in exchange for a plea of guilty” to statutory rape. The court did not agree, explaining its understanding of the plea bargain as follows:

“The State’s recommendation was that they wanted an evaluation by the Court Medical Office and that if the recommendation of the Court Medical Office would be outpatient treatment, then the State would want probation on the condition that the Defendant submit himself to compulsory treatment. In other words, the State was not pressing at that time for any prison sentence.... So, their recommendation was a qualified recommendation contingent on a certain recommendation of the Medical Office which was not forthcoming....”

In a further effort at clarification, the State’s attorney then present said:

“I think the spirit of the negotiations were with some kind of psychiatric treatment... [W]e were thinking in terms more along the lines of psychiatric setting that was not Patuxent oriented. We did not believe or did not understand, and I am not sure that I do believe at this point the Defendant to be what the State of Maryland calls a defective delinquent....
. . . [T]he best we could do was psychiatric care for this particular Defendant in an attempt to get him straightened out so that he would not continue. Now, that was the spirit of the negotiations.” (Emphasis added.)

Finally, defense counsel stated that “had I known that there was any possible way he was going to be sent to Patuxent, which represents a possible life imprisonment, I would not have gone ahead____”

Defense counsel moved for a “mistrial.” The motion was denied. Because the trial court was persuaded that the medical office might have based its conclusions and recommendations on faulty data, disposition was again postponed to permit the medical office to reconsider its recommendation.

On 20 January 1976, a final disposition hearing was held. Defense counsel stated that he had informed the medical office of the inaccuracies in its report but “they did not find it amiable to change anything.” In a final effort at clarification of its position, the State’s attorney said:

‘[T]he State has not changed its position as originally stated to the Court, that is the Defendant in our opinion should be placed on probation and that also the Defendant should have the benefit of a community-based psychiatric program, and we have not changed our position in respect to disposition in this case.

“THE COURT: I think you are changing your position, Mr. Owens, because I do not believe that was part of the plea negotiations.

“MR. OWENS: “... What I was trying to convey to the Court is that after having consulted extensively with all of the members of the family there is still a strong belief on the part of the State ... that the Defendant should in fact get a suspended sentence. In fact, there should be a community-based type psychiatric program----I do not believe incarceration would solve the problem. I do not believe placing him in prison is the answer to the problem____” (Emphasis added.)

Thereafter, the trial court sentenced the appellant to a term of five years and referred him to Patuxent Institution for evaluation as a possible defective delinquent.

Maryland Rule 722, in effect at the time of appellant’s sentencing, provided:

“The court may strike out a plea of guilty at any time and enter a plea of not guilty, if it deems such action necessary in the interest of justice.”

Whether to strike a plea was a matter within the trial court’s discretion. Thus the question here is whether the trial court abused its discretion by failing to strike appellant’s guilty plea.

Some courts have long recognized that when a trial court imposes a sentence other than that recommended by a prosecutor pursuant to a plea agreement, it is an abuse of discretion to fail to permit the accused to withdraw his guilty plea. For example, in Griffin v. State, the trial court was informed that a plea agreement provided that the defendants would plead guilty with the understanding that a misdemeanor punishment would be imposed. The prosecutors thereafter assured defense counsel that a fine and not imprisonment would be imposed. The trial court imposed a sentence of five years. The defendants moved to withdraw their guilty pleas, claiming that they had been induced by the assurance of the prosecutors that the trial court would impose a fine. The motion was denied. The Court of Appeals of Georgia reversed, holding that the trial court had abused its discretion in denying the motion. That Court said:

“Of course, neither the solicitor general nor any other counsel has authority to bind the court in the matter of the punishment to be imposed. Indeed, an extrajudicial agreement by the judge himself would not bind him. Notwithstanding such a promise, he might impose a different penalty, and his action in this respect could not be controlled. But if such a promise should be made by the judge to induce a plea of guilty, and after the plea was entered the promise should be violated, no one would contend that the prisoner ought not to be allowed to withdraw his plea and have a trial. This would be so, not so much because the judge has broken a promise which he had no right to make, but because the prisoner has been misled to his injury, and has been induced to make a confession by a hope of reward. Now, what difference can it make if the hope of reward is engendered by a promise of the state’s attorney rather than of the judge? The solicitor is the state’s representative; his advice and recommendation are generally followed by the court. Ordinarily a motion to nolle pros, made by him is granted, and so is his advice generally accepted that a plea of guilty be received with a recommendation for a misdemeanor punishment. Prosecuting attorneys are usually able and conscientious public officers, having to a marked degree the confidence of the public and of their professional associates. Well-nigh any attorney representing one accused of crime would unhesitatingly accept an assurance from the solicitor general that if a plea of guilty with a recommendation would be entered the recommendation would be respected by the court. It is very reprehensible for counsel for a person accused of crime to seek to have the judge commit himself in advance in reference to the punishment to be imposed, and it is even more reprehensible for the judge to so commit himself. And while the practice of endeavoring, in advance of a plea of guilty, to obtain through the state’s attorney a promise from the court in reference to the penalty to be imposed is not to be commended, yet if it be done, and the prisoner and his counsel be thus misled, who shall say that the confession may not be withdrawn? The situation is exactly the same, so far as the prisoner is concerned, if he be misled, not by a promise made by the court, but by an assurance from the prosecuting attorney....”

In 1971 a related question was considered by the United States Supreme Court in Santobello v. New York. There the prosecution, having agreed to make no sentence recommendation, recommended the maximum penalty. The court, in vacating the judgment, said:

“This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled....
.. [W]e conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration [of appropriate relief].” (Emphasis added.)

The same principles have been enunciated in Maryland.

Subsequently, other federal and state courts, relying on Santobello, have determined that where a judge imposes a sentence other than that recommended by a prosecutor pursuant to a plea agreement, the accused should be permitted to withdraw his guilty plea. In United States ex rel. Culbreath v. Rundle, a prosecutor told a judge that he had advised the accused that a maximum sentence of two years would be imposed. The accused stated that no one had promised him that a particular sentence would be imposed. After the plea was accepted but before sentencing, the accused moved to withdraw his plea, alleging that it had been entered because he believed that the trial court would impose the recommended sentence. The request was denied and the accused was sentenced to six to 12 years. Relying squarely upon Santobello, the Court of Appeals reversed. Referring to the prosecutor’s promises which were made known to the trial judge, the court said:*

“This understanding cannot commit or bind the sentencing judge to any particular sentence---However, if the judge ultimately determines that the interest of justice would not be served by accepting the Government’s recommendation made pursuant to such agreement the defendant should be permitted to withdraw his guilty plea, particularly where, as here, there is no Government claim of prejudice or harm.” (Footnote omitted.)

In Commonwealth v. Barrett, the Superior Court of Pennsylvania held that the accused should have been permitted to withdraw his guilty plea after the trial judge imposed a more severe sentence than that recommended by the prosecutor under the plea agreement even though the trial judge previously had advised the accused that he could receive a more severe sentence. There the court, relying upon Santobello, emphasized that where a promise or agreement of the prosecutor is part of the inducement or consideration for the guilty plea, the accused must be allowed to withdraw the plea if he does not receive the contemplated benefit. Because the accused had not received the benefit of his bargain, the court ordered that the appellant’s conviction be reversed and that he be allowed to withdraw his guilty plea and go to trial.

Similarly in Kurlin v. State, the Florida District Court of Appeal held that the accused should be allowed to withdraw his plea if the trial court does not impose the sentence contained in the plea bargain. There the trial court initially informed the accused that it would, in accordance with a plea agreement, impose a two year sentence. Subsequently he was sentenced to a three year term. The court held that the sentence should be reduced to a two year term, stating that it reached this conclusion in order to

“assure that defendants are not induced to enter a plea of guilty based upon a representation that a particular sentence will be imposed, later being subjected to a harsher or more lengthy sentence. It is important that citizens, including those accused of crimes, have confidence in their government, particularly the judicial branch.”

These cases establish that if an accused does not receive the contemplated benefit which was part of the inducement for a guilty plea, he should be permitted to withdraw the guilty plea. This principle rests upon considerations of fairness. The acceptance of a guilty plea “must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.”

The adoption by the American Bar Association of Standards Relating to the Function of the Trial Judge further demonstrates the widespread acceptance of the concept that fairness requires that an accused be permitted to withdraw his plea if he does not receive the contemplated benefit of his plea bargain. Standard 4.1 “Role of the judge in plea discussions and plea agreements” provides in pertinent part:

“(c) If the plea agreement contemplates the granting of charge or sentence concessions by the trial judge, he should:
“(i) unless he then and there grants such concessions, inform the defendant as to the role of the judge with respect to such agreements, as provided in the following subparagraphs;
“(ii) give the agreement due consideration, but notwithstanding its existence reach an independent decision on whether to grant charge or sentence concessions; and
“(in) permit withdrawal of the plea (or, if it has not yet been accepted, withdrawal of the tender of the plea) in any case in which the judge determines not to grant the charge or sentence concessions contemplated by the agreement (Emphasis added.)

The Commentary provides in pertinent part:

“Subsection (c) deals with the obligation of the trial judge with respect to plea agreements which require his concurrence if a disposition contemplated by the agreement is to be effected. Such agreements include those in which the prosecutor agrees not to oppose, as well as to make, favorable recommendations as to the sentence, and agrees not to oppose, as well as to seek, reduction or dismissal of charges----
“Subparagraph (iii). The second significant principle is expressed in subparagraph (iii). In effect it is that in any case in which a plea agreement contemplates concurrence by the trial judge and he decides not to concur, the defendant should be so informed and given the option of going to trial....
“. . . [T]he requirement that the judge permit withdrawal of the plea if he decides not to concur in the contemplated disposition was incorporated in... 8.3(b) of [ABA Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty (Approved Draft, 1968)]. That standard permits the judge to give an indication in advance of tender of the plea that he will go along with the agreement if the relevant representations to him are confirmed by the presentence report.... It was ultimately concluded that fair treatment of the defendant, as well as the correctional problems resulting from the defendant’s belief otherwise that he had been treated unfairly, mandated giving him the opportunity to withdraw his plea if the judge later changes his mind....
“For similar reasons, the standard recommended here by the Advisory Committee on the Judge’s Function (with the encouragement and concurrence of the Special Committee) mandates giving the defendant the opportunity to withdraw his plea whether or not the judge chooses to give advance notice as to his concurrence in the agreement. Experience in those courts which recognize plea discussions and plea agreements as an appropriate part of the administration of criminal justice — experience in large measure generated by the Pleas of Guilty report — indicates that there is little difference, from the viewpoint of fair treatment, between cases where the judge gives advance notice of concurrence and those where he only follows the standards of requiring disclosure of the agreements and giving them due consideration. Even though the judge has said nothing to the defendant in the latter situation except that he need not follow the prosecutor’s recommendations, there nevertheless remains at least the taint of false inducement.” (Emphasis added.)

Courts in some jurisdictions, relying on these standards, have held that an accused should be permitted to withdraw his guilty plea when a trial court fails to honor the plea agreement.22 Courts in other jurisdictions have reached the same result by applying court rules or statutes consonant with the ABA Standards.

Maryland has recognized that considerations of fairness require that an accused be permitted to withdraw his guilty plea if the trial judge fails to accord him the contemplated benefit of a plea bargain. Maryland Rule 733, effective 1 July 1977, subsequent to the sentencing of appellant, provides in pertinent part:

“§ b.4. Rejection of Plea Agreement.
“If the judge rejects the plea agreement, he shall inform the parties of this fact and shall advise the defendant: that the court is not bound by the plea agreement; that the defendant may withdraw his plea; and that if the defendant persists in his plea of guilty or nolo contendere the sentence or other disposition of the case may be less favorable to him than the plea agreement. If the defendant persists in his plea, the court may accept the plea of guilty only pursuant to section c of Rule 781 (Pleas) and a plea of nolo contendere only pursuant to section d of Rule 731 (Pleas).”

The adoption of Maryland Rule 733 necessarily indicates that the “interest of justice,” referred to in former Maryland Rule 722, required that the accused be afforded safeguards against the possibility that the contemplated benefit which induced the guilty plea would not be accorded. Maryland Rule 733, the ABA Standards, and the preceding cases all support the conclusion that a trial court abuses its discretion if it fails to permit withdrawal of a guilty plea when the contemplated benefit which induced the plea is not accorded.

Here the parties submitted a plea agreement proposing a particular sentence. Because the terms of that agreement, as originally stated, were ambiguous, the intent of the parties at the time it was made controls its interpretation. The intent of the parties at that time is clear.

Defense counsel maintained throughout that appellant pled guilty to statutory rape in order to prevent his incarceration and to insure a sentence of probation with psychiatric care. In fact, defense counsel said that had he known there was any possibility that appellant would be imprisoned and referred to Patuxent, he would not have advised the appellant to plead guilty. The State’s attorney initially explained that the medical office’s function was to make an evaluation of the appellant including a recommendation which would serve as a basis for an appropriate course of therapy. He repeatedly stated that the “spirit of the negotiation” was to assure all of those concerned that the appellant would not be incarcerated, but would be placed on probation and provided with psychiatric care. He consistently opposed incarceration. He concluded by saying that there was “still a strong belief on the part of the State” that the appellant should receive a suspended sentence, that he should not be imprisoned, and that he should be placed in a community-based psychiatric program. These statements establish that the parties intended and did in fact agree that the appellant would plead guilty to statutory rape in exchange for a sentence of probation with compulsory psychiatric treatment.

Here, because the guilty plea rested in significant degree on an agreement which contemplated that a particular sentence would be imposed, the accused was entitled to withdraw that plea if he did not receive the contemplated benefit. When the tial court imposed a sentence of imprisonment with referral to Patuxent, the accused did not receive the contemplated benefit of a sentence of probation with compulsory psychiatric treatment. That the trial court had informed the appellant that it could impose a maximum sentence of life imprisonment, or a sentence for a term of years not to exceed 21 years, that the minimum sentence was 18 months, that it could refer him to Patuxent Institution for examination, and that the State’s attorney had fulfilled his obligations under the plea agreement, did not alter the fact that the accused did not receive the contemplated benefit which induced his plea. When defense counsel moved for a mistrial, he in effect requested withdrawal of the plea. Considerations of fairness required the trial court to permit the requested withdrawal. Under the present circumstances, the trial court’s failure to permit withdrawal was an abuse of discretion. Accordingly, the judgment shall be vacated and the case remanded for the purpose of allowing the appellant to elect whether to withdraw the guilty plea or to be resentenced by a different judge.

Judgment vacated.

Case remanded for proceedings consistent with this opinion.

Costs to be paid by Mayor and City Council of Baltimore.

      . Repealed 1 July 1977. See Maryland Rule 733.

      . Palacorolle v. State, 239 Md. 416, 420, 211 A. 2d 828, 830 (1965); Watson v. State, 17 Md. App. 263, 267-68, 301 A. 2d 26, 28, cert. denied, 268 Md. 754 (1973).

      . 77 S. E. 1080 (Ga. App. 1913).

      . 77 S. E. at 1085.

      . See also, People v. Walker, 95 N. E. 475, 477 (Ill. 1915); East v. State, 168 N. E. 28, 29-30 (Ct. App. Ind. 1929); State v. Cochran, 60 S.W.2d 1, 2-3 (Mo. 1933); State v. McAllister, 30 P. 2d 821, 823-24 (Mont. 1934); Longenbaugh v. State, 288 P. 611, 612 (Okla. Crim. App. 1930); State v. Walters, 204 N. W. 171, 172 (S.D. 1925).

      . 404 U. S. 257, 92 S. Ct. 495 (1971).

      . 404 Ü. S. at 262-63, 92 S/Ct. at 499.

      . State v. Brockman. 277 Md. 687, 694, 357 A. 2d 376, 381 (1976); Miller v. State, 272 Md. 249, 252-55, 322 A. 2d 527, 529-30 (1974); Snowden v. State, 33 Md. App. 659, 663-64, 666, 365 A. 2d 321, 323-25 (1976); Wynn v. State, 22 Md. App. 165, 170-71, 322 A. 2d 564, 567 (1974).

      . 466 F. 2d 730 (3rd Cir. 1972).

      . 466 F. 2d at 735.

      . 299 A. 2d 30 (Pa. Super. Ct. 1972).

      . 302 So. 2d 147 (Fla. Dt. Ct. App. 1974).

      . 302 So. 2d at 150.

      . See also, Miller v. State, 272 Md. 249, 255, 322 A. 2d 527, 530 (1974); Snowden v. State, 33 Md. App. 659, 663-66, 365 A. 2d 321, 323-25 (1976).

      . State v. Brockman, 277 Md. 687, 698-99, 357 A. 2d 376, 382-84 (1976); Wynn v. State, 22 Md. App. 165, 171, 322 A. 2d 564, 567 (1974).

      . Santobello v. New York, 404 U. S. 257, 262, 92 S. Ct. 495, 499 (1971).

      . ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge (Approved Draft, 1972).

      . Id. at 51-52.

      . Id. at 54-57.

      . There is no merit in the State’s contention that the ABA Standards require a trial judge to offer an opportunity to withdraw a guilty plea only if the judge has previously advised the accused that he concurred in the recommendation or has failed to advise the accused of anything other than that the recommendation is not binding. The 1972 Standards Relating to the Function of the Trial Judge are an amplification of the 1968 Standards Relating to Pleas of Guilty, and are substantially different. The 1972 Standards provide that the trial judge should permit withdrawal of the plea in any case in which he determines not to grant the sentence concessions contemplated by the agreement. Standard 4.1(c)(iii). Thus even a trial judge who advises the accused regarding the possible consequences of his guilty plea should allow the accused to withdraw that plea when he does not grant the contemplated sentence concessions.

      . See, e.g., People v. Ramos, 102 Cal. Rptr. 502, 504 (Ct. App. 1972); Commonwealth v. Sutherland, 340 A. 2d 582, 583-84 (Pa. Super. Ct. 1975). See also, Fed. Rules Cr. Proc. rule 11, 18 U.S.C.A. (1975); Ill. Sup. Ct. Rule 402 (1970); Pa. R. Crim. P. 319 (1972). But see, United States v. Futeral, 539 F. 2d 329, 331 (4th Cir. 1975).

      . Canaras v. Lift Truck Services, Inc., 272 Md. 337, 352, 322 A. 2d 866; 874 (1974); Hardy v. Brookhart, 259 Md. 317, 326-27, 270 A. 2d 119, 125 (1970); Foodmaker, Inc. v. Denny, 32 Md. App. 350, 356, 360 A. 2d 446, 450, cert. denied, 278 Md. 720 (1976).

      . Santobello v. New York, 404 U. S. 257, 262, 92 S. Ct. 495, 499 (1971); United States ex rel. Culbreath v. Rundle, 466 F. 2d 730, 735 (3rd Cir. 1972); People v. Ramos, 102 Cal. Rptr. 502, 504 (Ct. App. 1972); Quintana v. Robinson, 319 A. 2d 515, 517 (Conn. Sup. 1973); Kurlin v. State, 302 So. 2d 147, 150 (Fla. Dt. Ct. App. 1974); State v. Fisher, 223 N.W.2d 243, 246 (Iowa 1974); Commonwealth v. Sutherland, 340 A. 2d 582, 584 (Pa. Super. Ct. 1975); Commonwealth v. Barrett, 299 A. 2d 30, 32 (Pa. Super. Ct. 1972).

      . See n. 1, above.

      . See United States v. Hammerman, 528 F. 2d 326, 330 (4th Cir. 1975); Commonwealth v. Sutherland, 340 A. 2d 582, 583 (Fa. Super. Ct. 1975); Commonwealth v. Barrett, 299 A. 2d 30, 30-32 (Pa. Super. Ct. 1972); ABA Standards Relating to the Function of the Trial Judge, Standard 4.2(a)(iv) (Approved Draft, 1972); Fed. Rules Cr. Proc. rule 11(c) & (e). But see United States v. Futeral, 539 F. 2d 329, 330-31 (4th Cir. 1975); People v. Fratianno, 85 Cal. Rptr. 755, 760 (Ct. App. 1970).

      . State v. Brockman, 277 Md. 687, 700, 357 A. 2d 376, 384 (1976); Miller v. State, 272 Md. 249, 255-56, 322 A. 2d 527,530-31 (1974). See Sturgis v. State, 25 Md. App. 628, 637, 336 A. 2d 803, 807-08 (1975); Maryland Rule 733 a. 6. & b. 1-5.

      . See, e.g., Quintana v. Robinson, 319 A. 2d 515, 518-19 (Conn. Sup. 1973); State v. Fisher, 223 N.W.2d 243, 246 (Iowa 1974). But see contra, People v. Fratianno, 85 Cal. Rptr. 755, 756-62 (Ct. App. 1972); State v. Parrish, 232 N.W.2d 511, 515 (Iowa 1975); State v. Ramos, 512 P. 2d 1274, 1276 (N.M. Ct. App. 1973).


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    AMANDA LINDA REED v. STATE OF MARYLAND
    [No. 187,
    September Term, 1977.]

      Decided January 11, 1978.

    The cause was argued before Gilbert, C. J., and Mason and Liss, JJ.

      Gerald A. Kroop for appellant.

      W. Timothy Finan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Ara Crowe, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

As part of a campaign to rid Baltimore City of massage parlors engaged in illegal activities, the police raided an establishment known as Massage Parlor Incorporated and arrested among others, appellant, Amanda Linda Reed. She was convicted at a bench trial in the Criminal Court of Baltimore of occupying a structure for the purpose of prostitution, lewdness or assignation, in violation of Article 27, § 15 (b) of the Annotated Code of Maryland. On appeal appellant argues that the evidence was insufficient to support her conviction. We agree.

The only evidence presented at trial was the following statement of facts:

On the 11th of November, 1976, at approximately four o'clock in the afternoon, Detective Leo F. Martin, a Baltimore City Police officer assigned to the Criminal Investigation Division Vice Unit and his expertise in matters of vice has been stipulated to, was on duty as a police officer and had occasion to go to the Massage Parlor Incorporated located at 14 through 16 North Gay Street. At the time he entered the premises he was approached by a young lady by the name of Miss Williams. She requested what he wanted. He advised her he wanted a massage. At that time he was advised the price for a massage would be $20.00. In the front of the room at that time was the defendant, Barbara Ann Baker [a co-defendant uninvolved in this appeal] whom Detective Martin would identify as the young lady seated next to my left in the blue. She identified herself as Terry. Detective Martin was advised that Terry would perform the requisite massage at which time the officer went back into a massage room and the defendant did then come in. At that time she commenced the massage and at which time she proposed a sexual act for the sum of $5.00. Detective Martin then identified himself as a police officer and placed the defendant under arrest. At that time other vice officers, who were on the scene, responded to the premises pursuant to a prearranged signal and found on the premises was the [appellant] Amanda Reed, who Detective Martin would identify as the young lady seated at the far end of the trial table to my left, an employee of the Massage Parlor Incorporated. Both young ladies were then, of course, placed under arrest and transported.

The statute under which appellant was convicted, Article 27, § 15 (b) of the Annotated Code of Maryland, makes it unlawful:

To occupy any place, structure, building or conveyance for the purpose of prostitution, lewdness or assignation, or for any person to permit any place, structure, building or conveyance owned by him or under his control to be used for the purpose of prostitution, lewdness or assignation with knowledge or reasonable cause to know that the same is, or is to be, used for such purpose.

Appellant, in reliance on Kolker v. State, 230 Md. 157 (1962), argues that there was no evidence to show that she had “knowledge or reasonable cause to know that the premises were being used for the purpose of prostitution”, as required by the statute. The State, on the other hand, contends that there was sufficient evidence that appellant had the requisite knowledge.

Based on the facts in this case, we think the State and appellant misapprehend the meaning of the statute. In Kolker, supra, the Court held that the proprietor of a nightclub, who supervised twenty-five female employees, knew or should have known that his establishment was a disorderly house, even though the evidence did not show he had specific knowledge of illegal conduct.

It is clear that the statute is aimed at two different types of offenders. First it applies to those who “occupy any place ... for the purpose of prostitution, lewdness or assignation.” Secondly, it is directed at those who “permit any place ... owned by him or under his control to be used for the purpose of prostitution, lewdness or assignation with the knowledge or reasonable cause to know that the same is, or is to be used for such purpose.” (Emphasis supplied). Appellant here neither owned nor controlled the subject massage parlor. Therefore, her knowledge, or lack thereof, that the premises were used for the purpose of prostitution, lewdness or assignation, in and of itself, is of no controlling significance.

Consequently, we are concerned only with that part of the statute which makes it unlawful to occupy any place, structure, building or conveyance for the purpose of prostitution, lewdness or assignation. Construing this language of the statute, in its natural and ordinary signification, In Re Appeal No. 180, 278 Md. 443, 446 (1976), we conclude that the phrase “for the purpose of prostitution, lewdness or assignation” is a mens rea requirement modifying the verb “occupy”. “For the purpose of” is one of the phrases typically used in criminal statutes to indicate some “bad-mind” requirement. LaFave & Scott, Criminal Law, 192 (1972). For example, Section 2 of the Mann Act, 18 U.S.C.A. § 2421, makes it illegal for one to “knowingly [transport] in interstate or foreign commerce ... any woman or girl for the purpose of prostitution or debauchery----” (Emphasis supplied). The federal courts’ interpretations of the aforementioned Mann Act phrase “for the purpose of prostitution” have required that the transportation “have for its object or be the means of effecting or facilitating the proscribed activities.” Mortensen v. United States, 322 U. S. 369, 374 (1944). In Yoder v. United States, 80 F. 2d 665, 670 (10th Cir. 1935), the court describes “purpose” as:

[T]he motive for an act, the intention which prompted it, and without which it would not have occurred. “Purpose” is an intent that motivates. Action is had because of one or more purposes; accompanying the purpose are intentions which are purely incidental and which exert no influence on the action. Counsel go from Oklahoma City to Denver to argue a case; when they leave, they have a fixed intention to ride on the train, to eat, and to sleep. Yet no one would say the purpose of the trip was to eat.

Dictionary definitions of the word “purpose” indicate the following: Webster’s Third New International Dictionary (Unabridged ed. 1971): “l.a: something that one sets before himself as an object to be attained; an end or aim to be kept in view in any plan, measure, exertion, or operation.” The American Heritage Dictionary of the English Language (1973), “1. The object toward which one strives or for which something exists; goal; aim.” The Random House Dictionary of the English Language (Unabridged ed. 1966), “2. an intended or desired result; end; aim; goal.”

As determined earlier, the phrase “for the purpose of prostitution” modifies the verb “occupy”. Thus, replacing the word “purpose” with some of the above noted definitions, the State must show that appellant’s “aim” or “goal” for occupying the massage parlor was prostitution. Even if the agreed statement of facts showed that the premises were a house of ill fame, that alone would not prove' that the presence of every employee was for the purpose of prostitution. In the absence of any evidence establishing the purpose for which appellant occupied the premises, it is clear that the State has failed to prove a violation of the statute.

Judgment reversed.

Costs to be paid by Mayor and City Council of Baltimore.

      . We construe the verb “occupy” to mean being physically present. State v. Deppe, 286 S.W.2d 776, 779 (Mo. 1956).

      . Although the record does not disclose the types of employees in such an establishment, we hypothesize it may employ persons other than prostitutes, for example, cleaning persons.


author: Melvin, J.,

text:
    MARK JAY BRAFMAN v. STATE OF MARYLAND
    [No. 207,
    September Term, 1977.]

      Decided January 11, 1978.

      The cause was submitted on briefs to Thompson, Melvin and Wilner, JJ.
    Submitted by Stuart Jay Robinson for appellant.
    Submitted by Francis B. Burch, Attorney General, Alexander L. Cummings, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Dana M. Levitz, Assistant State’s Attorney for Baltimore County, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On January 19, 1977, Mark Jay Brafman (appellant) was found guilty by a jury in the Circuit Court for Baltimore County of rape; use of a handgun in the commission of a felony (rape); perverted sexual practices; kidnapping; use of a handgun in the commission of a felony (kidnapping); and robbery with a dangerous and deadly weapon. Sentences totaling twenty-three years were imposed on January 19, 1977. These crimes were allegedly committed on September 22, 1972, at which time the appellant was sixteen years old. He presents four questions for our review:

“1. Did the lower Court err in violating the Appellant’s juvenile rights by assuming automatic jurisdiction over the indictment hearing without juvenile waiver hearing prior to criminal jurisdiction attaching?
2. Did the trial court err in its failure to include specific language in its instruction with regard to the alibi requirements for burden of proof as they pertain to the defense?
3. Did the Court err in allowing evidence concerning Nancy Stang because the jury might have been misled into a conviction based on an offense upon which the Appellant was not tried, or that he would be prejudiced by confrontation with an offense for which he was not prepared to defend?
4. Did the trial court err in its advisory instructions to the jury concerning the testimony surrounding the Nancy Stang incident of September 19, 1972?”

Because we are of the opinion that the trial court committed reversible error in instructing the jury relative to the testimony of Nancy Stang, we will reverse appellant’s convictions and remand the case for a new trial. This action renders consideration of appellant’s second question unnecessary. We will consider appellant’s first and third questions for the guidance of the trial court on remand.

I

Appellant first contends that because he was sixteen years old at the time the crimes were allegedly committed, the lower court committed reversible error in assuming jurisdiction over all of the offenses charged in the indictment. In appellant’s previous appeal to this Court (Brafman v. State, Sept. Term, 1974, No. 269 per curiam, filed December 31, 1974, rev'd. other grounds, 276 Md. 676 (1976)), we rejected this contention with respect to the charges of rape; use of a handgun in the commission of a felony (rape); perverted sexual practices; and robbery with a dangerous and deadly weapon. We again reject this contention.

This leaves for our consideration, however, the charges of kidnapping and use of a handgun in the commission of a felony, to wit: kidnapping. We conclude that no waiver of jurisdiction was necessary with respect to these charges as well. Former Art. 26, § 70-2 id) (1) (1972 Supp.), the relevant statutory provision in effect at the time of the alleged offenses, provided that the juvenile court does not have jurisdiction over:

“A proceeding involving a child who has reached his 14th birthday, alleged to have done an act which, if committed by an adult, would be a crime punishable by death or life imprisonment (including a lesser offense or an offense arising out of the act alleged to have been committed), unless an order removing the proceeding to the juvenile court has been filed pursuant to § 594A of Article 27.” (Emphasis supplied).

The evidence shows that at 9:30 A.M. on September 22, 1972, an individual identified as the appellant approached the victim on the parking lot of a shopping center on Reisterstown Road, asked her for directions to “Garrett Road”, then forced her at gun point into his red car, “with a black top”, and then drove to a secluded place where he raped her. It is clear that although the kidnapping and use of a handgun in the commission thereof preceded the rape, they were both part of a single criminal incident or transaction that culminated in that alleged act and therefore were, within the meaning of the statute, “offenses arising out of the act alleged to have been committed.” As rape is an act which, if committed by an adult, would be a crime punishable by life imprisonment, the juvenile court was without jurisdiction as to these offenses, absent a “reverse waiver” order by the Circuit Court pursuant to Section 594A of Article 27. There being no such order, the Circuit Court had jurisdiction over the kidnapping and related handgun charge — along with the other offenses with which appellant was charged as part of the same criminal incident or transaction.

Any doubt that we have correctly interpreted the legislative intent of former Art. 26, § 70-2 (d) (1) is resolved by subsequent legislative actions concerning the matter. In 1973, the legislature by ch. 2, § 1, Acts of 1973 (1st Sp. Sess.), substituted the phrase “or an associated offense” for the phrase appearing in parentheses in former Art. 26, § 70-2 (d) (1) quoted above. The revisor’s note, C. & J. Proc. Art., § 3-308 (1974), states that “the phrase ‘associated offense’ is substituted for ‘an offense arising out of the act alleged to have been committed’ for the purpose of clarity.” In 1975, by ch. 554, Acts of 1975, this latter phrase was changed to “... all other charges against the child arising out of the same incident" and now appears in § 3-804 (d) (1) of the Courts and Judicial Proceedings Article of the Annotated Code (1976 Cum. Supp.). We think it clear that these two enactments were merely legislative interpretations of the prior statute, intended to declare the original intent that under circumstances such as exist in the present case the kidnapping and related handgun charges were without the original jurisdiction of the juvenile court. As we said in The Swarthmore Company v. Comptroller of the Treasury, 38 Md. App. 366 (1977):

“While subsequent legislative interpretation of a prior statute is not binding or controlling on the Court, Crunkleton v. Barkdoll, 227 Md. 364, 369, 177 A. 2d 252, 255 (1962), a subsequent ‘statute purporting to declare the intent of an earlier one might be of great weight in assisting a court when in doubt.’ United States v. Stafoff, 260 U. S. 477, 480, 43 S. Ct. 197, 199, 67 L. Ed. 358, 361 (1923).”

II

With regard to appellant’s third question, appellant contends that the trial judge committed reversible error in admitting over objection the testimony of Mrs. Nancy Stang that three days before the victim in the instant case was criminally attacked she too was accosted by a male person she later identified as the appellant. Mrs. Stang testified that she was twenty-three years old (the victim in the instant case was twenty-five years old) and that on September 19, 1972, at approximately 9 o’clock in the evening, the male person approached her car as she was about to drive away from a shopping center on Reisterstown Road (approximately two miles from the shopping center involved in the instant case). The person asked her for directions to “Granite Road”. (She said she had noticed him before she went into one of the shopping center stores because “he had tapped someone else’s car” with his car — a red Ford convertible. She was not sure of the color of the top of the car.) As she began to give him directions to Granite Road, he went back to his car supposedly for a pencil and paper. When he returned to her car “he had a gun at the window telling me to pull back into the lot and get into ... [his] car.” She “pulled back into the lot” and got out of her car. She described what happened next:

“Q What happened then?

A Well, I had locked the car and I got out and he told me to get in his car and he said if I didn’t he was going to shoot me, and I said: Go ahead. I would not get in the car.

Q Did you say anything particular to him?

A I said: Go ahead and shoot me.

Q Why did you say that?

A Because he told me to get in his car where he would shoot me.

Q What happened when you told him you weren’t going to get into his car?

A He more or less just panicked and jumped into his car and took off.”

Appellant contends that the evidence concerning the alleged criminal actions toward Mrs. Stang does not come within any of the exceptions to the general exclusionary rule that “in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible.” Ross v. State, 276 Md. 664, 669, 350 A. 2d 680 (1976). The Court in Ross went on to say:

“This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character. Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is ‘substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.’ C. McCormick, Evidence § 190 (2d ed. 1972).
“Moreover, apart from the fundamental proposition that an accused may be convicted only by evidence which shows that he is guilty of the offense charged, and not by evidence which indicates his guilt of entirely unrelated crimes, there are additional reasons underlying the general rule. Evidence of other crimes may tend to confuse the jurors or prejudice their minds against the accused and to predispose them to a belief in his guilt. Finally, unless he knows in advance that evidence of other crimes is to be used against him, the accused will be unprepared to defend against such evidence. MacEwen v. State, supra, 194 Md. at 501; Wharton’s Criminal Evidence § 240 (Torcía ed. 1972).
“There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission 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 a crime on trial. Wentz v. State, 159 Md. 161, 164, 150 A. 278 (1930); Cothron v. State, 138 Md. 101, 110, 113 A. 620 (1921); Chandler v. State, 23 Md. App. 645, 650, 329 A. 2d 430, cert. denied, 274 Md. 726 (1974); Wethington v. State, Gorski v. State, both supra. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial, Berger v. State, 179 Md. 410, 414, 20 A. 2d 146 (1941); and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. C. McCormick, Evidence § 190, supra.” (Emphasis added.)

The State in its brief argues that the challenged evidence is admissible because it establishes “(1) intent, (2) absence of mistake or accident or (3) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.” At the outset of the trial below, it was made clear to the court and jury, by both the prosecutor and defense counsel, that the only contested issue in the case was the identity of the appellant as the person who committed the crimes for which he was then on trial. The identification testimony of the rape victim was subjected to vigorous cross-examination, and the appellant, testifying in his own behalf denied any participation in the criminal incidents of September 22 or those involving Nancy Stang on September 19 and offered alibi witnesses as to both days’ incidents.

In ruling that the “other crimes” evidence was admissible the trial judge did not indicate which of the recognized exceptions he felt formed the basis for its admissibility, and the State did not specify the particular basis on which it sought its admission. In our view, in the circumstances of the instant case as reflected by the present record, the evidence of the prior criminal incident is admissible only if it comes within the exception known as the “handiwork” or “signature” exception mentioned in Boss. This exception is described in C. McCormick, Evidence § 190 at p. 449 (2d ed. 1972) as follows:

“To prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature.” (Emphasis • added; footnotes omitted).

If the evidence comes within that exception it is relevant to the issue of appellant’s criminal agency and is admissible — unless in the exercise of its discretion the trial court determines that its probative value on this issue is outweighed by its prejudicial effect. See Hoes v. State, 35 Md. App. 61, 70 (1977); Mollar v. State, 25 Md. App. 291 (1975). See also McCormick, Evidence § 190, p. 453. Thus, in the instant case, upon remand, if the State offers other-crimes evidence as coming within the “handiwork” or “signature” exception, the trial judge, in determining its legal relevancy to the issue of appellant’s criminal agency, must first determine whether the facts pertaining to the “other crimes”, as shown by clear and convincing proof, are sufficiently similar and possess a sufficiently high degree of common features with the acts charged to warrant the inference that if the defendant committed the other acts he committed the acts for which he is on trial. To lessen the danger that the other-crimes evidence will be viewed by the jury merely as evidence of the defendant’s disposition or propensity to commit crimes similar to those for which he has been indicted, the common features “must be so unusual and distinctive as to be like a signature”. McCormick, supra at 449; Ross v. State, supra. To further lessen the danger that the jury will decide the defendant’s guilt upon improper considerations, the trial judge must then decide, even though the other-crimes evidence may warrant an inference that the defendant is “the right man”, whether the probative value of the evidence outweighs its prejudicial effect. “A decision clearly wrong on this question of balancing probative value against danger of prejudice will be corrected on appeal as an abuse of discretion.” McCormick, supra at 454.

The Court of Appeals has said that “the introduction of evidence which shows other offenses by the accused should be subjected to rigid scrutiny by the courts because of the great potential for danger which characterizes it. [Citations omitted].” Ross v. State, supra at 671. To summarize, where the other-crimes evidence is offered as coming within the “handiwork” or “signature” exception to the general exclusionary rule, this “rigid scrutiny” requires the trial judge to consider the following factors before allowing the jury to consider it over the defendant’s objection:

1) The commonality of the facts between the “other crimes” and the immediate charges. Here, the common features must be so unusual and distinctive as to indicate that if the defendant committed the “other crimes” he committed the acts for which he is on trial.
2) The convincingness of the evidence that the other crimes were committed and that the defendant was the actor. Here, clear and convincing proof is required.
3) The probative value of the other-crimes evidence on the issue of criminal agency as weighed against the prejudicial effect of such evidence. Here, the trial judge must consider the actual need for the other-crimes evidence in the light of other evidence available to the prosecution on the issue of criminal agency. Another factor to be considered is surprise, i.e., whether the defendant has had prior notice of the proposed evidence and an opportunity to prepare a rebuttal. Also, of course, it must be clear that the defendant’s criminal agency is indeed a genuine issue in the case. If, for example, consent is the only defense in a rape case, there would be no need to introduce other-crimes evidence to show the criminal agency of the defendant.

It can thus be seen that the determination of the admissibility of other-crimes evidence in criminal cases involves something more than merely determining whether the particular evidence of other crimes does or does not fit within one of the recognized exceptions to the general exclusionary rule. The problem is one of balancing, discussed by McCormick, supra at 452-454:

“There is an important consideration in the practice as to the admission of evidence of other crimes which is little discussed in the opinions. This is the question of rule versus discretion. Most of the opinions ignore the problem and proceed on the assumption that the decision turns solely upon the ascertainment and application of a rule. If the situation fits one of the classes wherein the evidence has been recognized as having independent relevancy, then the evidence is received, otherwise not. This mechanical way of handling these questions has the advantage of calling on the judge for a minimum of personal judgment. But problems of lessening the dangers of prejudice without too much sacrifice of relevant evidence can seldom if ever be satisfactorily solved by mechanical rules. And so here there is danger that if the judges, trial and appellate, content themselves with merely determining whether the particular evidence of other crimes does or does not fit in one of the approved classes, they may lose sight of the underlying policy of protecting the accused against unfair prejudice. The policy may evaporate through the interstices of the classification.
Accordingly, some of the wiser opinions (especially recent ones) recognize that the problem is not merely one of pigeonholing, but one of balancing, on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.
Such a balancing calls for a large measure of individual judgment about thé relative gravity of imponderables. Accordingly, some opinions stress the element of discretion. It should be recognized, however, that this is not a discretion to depart from the principle that evidence of other crimes, having no substantial relevancy except to ground the inference that accused is a bad man and hence probably committed this crime, must be excluded. The leeway of discretion lies rather in the opposite direction, empowering the judge to exclude the other-crimes evidence, even when it has substantial independent relevancy, if in his judgment its probative value for this purpose is outweighed by the danger that it will stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial. Discretion implies not only leeway but responsibility. A decision clearly wrong on this question of balancing probative value against danger of prejudice will be corrected on appeal as an abuse of discretion.” (Footnotes omitted).

In the case sub judice, as indicated earlier, we have concluded that error in instructing the jury compels reversal and remand. We therefore deem it unnecessary and inadvisable in this appeal to decide whether the trial court committed reversible error in its ruling on the admissibility of Mrs. Stang’s other-crimes testimony; for whatever we may decide on that issue, upon a retrial the facts and circumstances may be different than those previously presented. The admissibility, vel non, of such evidence depends upon the facts and circumstances that exist in a particular case. For the purposes of this appeal, therefore, we shall assume without deciding that the challenged evidence was properly admitted in evidence. We are, nevertheless, constrained to comment that on the record before us the question is a close one and we are inclined to agree with defense counsel’s remarks, apparently directed to the prosecutor, during argument on the issue at the trial below: “I think you are just sticking your neck out all the way when you do something like that ....”

III

In instructing the jury relative to the testimony of Mrs. Stang, the trial judge stated:

“During the course of this trial you also heard about certain crimes being committed against Nancy Carol Stang. That is the young lady who gave the testimony about something that happened on the 19th which was prior to this incident which supposedly happened on the 22nd. Even though there may have been crimes committed against her there are no charges in front of you for you to consider in reference to that. You are only considering the charges as to any crimes, if any, committed against the complaining witness in this case, although you may take into consideration the testimony of Nancy Carol Stang in making the determination of guilt or innocence in this present case. But there are no findings necessary by the Court as to whether or not there are some criminal charges a person is guilty of for anything that happened to Nancy Carol Stang.”

Appellant contends, as he did below, that this instruction constituted reversible error and we agree.

In 1 Wharton’s Criminal Evidence, '§ 264, it is stated:

“Where evidence of another crime is admitted, the trial judge must instruct the jury as to the limited purpose for which it is introduced. The failure so to instruct the jury will constitute reversible error if prejudicial.” (Emphasis supplied.)

See also Mollar v. State, supra at 300.

The instruction given in this case was not a limiting instruction, but rather was one which virtually invited the jury to consider the other-crimes evidence for the very purpose for which it was not admissible: to show a probability that the defendant committed the crime for which he was on trial because he is a man of criminal character. Ross v. State, supra at 669.

In Hoes v. State, supra at 71, we made clear that:

“. . . It is the court’s responsibility to offset or avoid as well as it can, the inherent human tendency to substitute a predisposition of guilt for the constitutional presumption of innocence when an accused’s reputation as a ‘bad man’ becomes known.”

The court’s instruction in the instant case simply advised the jury that it “may take into consideration the testimony of Nancy Stang in making the determination of guilt or innocence in the present case.” Compare the instruction given in Mollar v. State, supra at 300-302. Rather than offsetting the “inherent human tendency” referred to above, the court’s instruction in the instant case allowed the jury to consider Nancy Stang’s testimony in any manner it saw fit. We think the instruction given constituted reversible error.

Judgments reversed; case remanded for new trial; costs to be paid by Baltimore County.

      . In the previous appeal (Brafman v. State, supra) these two charges were not before us as the trial judge had sua sponte arrested judgment on the jury’s verdict of guilty as to them. The record now before us does not reveal the reason for the arrest of judgment. Upon retrial, appellant objected to being tried again on the kidnapping and related handgun charges. The trial judge overruled the objection. That ruling is not before us in this appeal.

      . The record does not reveal a request for a “reverse waiver” hearing. See Kennedy v. State, 21 Md. App. 234, 319 A. 2d 850 (1974).

      . We also observe that the record indicates that the challenged evidence was not offered during the appellant’s prior trials on the instant charges and that prior to the last trial appellant’s motion for a severance of his trial on the Nancy Stang incident was granted in the face of the State’s evident desire to try the appellant on the instant charges at the same time. See McKnight v. State, 280 Md. 604, 612 (1977), decided after the appellant’s trial below, holding that “ [A] defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individua^offense would not be mutually admissible at separate trials”. We do not intimate that in granting the severance, the court below was guided by that not yet enunciated test. Nor do we intimate that the type of prejudice forming the basis for granting severance in the McKnight case is the exclusive test for granting a severance under Md. Rule 745 c.


author: Thompson, J.,

text:
    STATE OF MARYLAND v. IRVIN RAWLINGS
    [No. 245,
    September Term, 1977.]

      Decided January 12, 1978.

      The cause was submitted on briefs to Gilbert, C. J., and Thompson and Moore, JJ.
    Submitted by Francis B. Burch, Attorney General, F. Ford Loker, Assistant Attorney General, Warren B. Duckett, State’s Attorney for Anne Arundel County, and Joseph Reina, Assistant State’s Attorney for Anne Arundel County, for appellant.
    Submitted by Paul M. Kirby and Anthony P Palaigos for appellee.
   Thompson, J.,

delivered the opinion of the Court.

The State appeals from an order of the Circuit Court for Anne Arundel County signed by Judge W. Harvey Beardmore dismissing a criminal information against Irvin Rawlings, the appellee, for abandoning and failing to support his minor child.* The question that we are called upon to decide is whether an individual can properly be charged with criminal non-support under Md. Code, Art. 27, § 88 (b) (1) when the child is illegitimate.

The case arose out of a criminal information filed against the appellee charging him with a violation of § 88 (b) (1) which provides:

“(b) Desertion of child. — (1) Any parent who deserts or wilfully neglects to provide for the Support and maintenance of his or her child under the age of 18 is guilty of a misdemeanor and upon conviction is subject to a fine not exceeding $100, or imprisonment not exceeding three years, or both.”

In dismissing the indictment the trial judge ruled the term child, as used in the statute, only refers to “legitimate children where the question of paternity is not at issue.” On appeal the State makes three attacks on this ruling. It argues the construction: (1) is improper, (2) it discriminates against illegitimate children in contravention of the equal protection clause, and (3) it amounts to a denial of procedural due process. We will discuss all of the contentions together.

The State’s argument under the first contention is twofold. First, it argues the word “child” as used in the statute refers to both legitimate and illegitimate children. Second, it argues that any dispute as to paternity is irrelevant because paternity is just another element of the crime which the State must establish. Although we agree with the State that the term child refers to legitimate and illegitimate children, we cannot agree with the State’s second proposition.

The legislature, in its rules of statutory interpretation, defined child in Md. Code, Art. 1, § 16 as follows:

“The word child or its equivalent shall be construed to include any illegitimate child, except in matters of inheritance, descent or distribution of real and personal property, unless such a construction would be unreasonable.”

The object of § 88 (b) (1) is to “provide directly for unsupported ... children ... by fear of punishment....” Ewell v. State, 207 Md. 288, 295, 114 A. 2d 66 (1955), quoting State v. Moran, 99 Conn. 115, 121 A. 277 (1923). This purpose is as applicable to an illegitimate child as to a legitimate child, thus interpreting the word child in the criminal statute to include illegitimate children is not unreasonable. The problem is that before a parent can be convicted of wilfully failing to support his child, paternity must first be admitted or established. We find the State’s argument that paternity can be established during the criminal proceeding inapposite, in light of the statutory scheme.

We start with the general proposition that statutes which relate to the same general subject matter and which are not inconsistent must be construed together and harmonized to the extent possible. Police Commissioner v. Dowling, 281 Md. 412, 379 A. 2d 1007 (1977). The question of child support for illegitimate children and the establishment of paternity calls into focus four statutes: Art. 16, §§ 66A-P (Paternity Act), Estates and Trusts Article § 1-208, Courts & Judicial Proceedings Article § 3-602, and Art. 27, § 88 (b) (1). In construing the latter we cannot ignore the existence of the other statutes.

In enacting §§ 66A-P, the legislature intended to provide a means by which paternity could be established and the basic obligation of support for illegitimate children could be enforced. Corley v. Moore, 236 Md. 241, 203 A. 2d 697 (1964). The Court of Appeals again reviewed the statutory scheme in Quinan v. Schneider, 247 Md. 310, 313, 231 A. 2d 37 (1967) and stated:

“It is manifest that the Legislature intended the Paternity Act to occupy and control the field of disputed paternity.”

As part of the statutory scheme the legislature created a detailed procedure for determining the paternity of a child. Under the Paternity Act the court can order the mother, child, and putative father to submit to blood tests. If the defendant is found to be the father, the court may order him to post bond for the support of the child. Even though the action is in equity, the defendant is entitled to a jury trial and he may not be required to testify. The Act provides that the complainant can be represented by the State’s Attorney, and in any event he must approve the institution of the proceedings. It requires the complaint to be filed within two years of the birth of the child or if the putative father has provided support or acknowledged the child, within two years of the date of the last acknowledgment or provision of support. In this way the Act attempts to provide a uniform means for identifying the father. See People v. Estergard, 169 Colo. 445, 457 P. 2d 698 (1969).

While the Paternity Act was intended to control the field of disputed paternity, it is not now the exclusive basis for establishing paternity. In Md. Code, Estates and Trusts Article, § 1-208 the legislature stated when an individual is deemed to be the parent of a child. Section 1-208 provides:

“Illegitimate child.
“(a) Child of his mother. — A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his mother.
“(b) Child of his father. — A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his father only if the father
“(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings; or
“(2) Has acknowledged himself, in writing, to be the father; or
“(3) Has openly and notoriously recognized the child to be his child; or
“(4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.”

Although the statute deals with inheritance, the Court of Appeals in Thomas v. Solis, 263 Md. 536, 542, 283 A. 2d 777 (1971), held the provision “is not limited in its scope and application to matters of inheritance only.” The Court went on to note:

“There certainly should be little that is startling about such a concept, for the reason that no right or privilege in the history of the common law, or in statutory law, is accorded greater sanctity than the right of inheritance. If the law provides a means of legitimation for the purposes of inheritance, such a procedure should certainly be of sufficient legal validity to establish other rights, ofttimes inferior to that of inheritance, arising from the relationship existing between parent and legitimate issue.” Id. at 542.

In Williams v. Williams, supra, we utilized this language and held that when a child met the requirements of § 1-208 (b) (4) the question of paternity and the obligation of support could be adjudicated in divorce proceedings. Since Thomas v. Solis, supra, and our decision in Williams, supra, the legislature has amended Md. Code, Courts and Judicial Proceedings Article, § 3-602. Subsection (a) (2) of that section provides:

(a) Jurisdiction of courts of equity. — A court of equity has jurisdiction over the custody, guardianship, legitimation, maintenance, visitation and support of a child. In exercising its jurisdiction, the court may:
“(2) Determine the legitimacy of a child, pursuant to § 1-208 of the Estates and Trusts Article of this Code.”

The net effect of the statutory scheme seems to be that unless paternity has been admitted by prior acts or declarations it must be determined under the provisions of the Paternity Act. There is a good reason for our interpretation because the determination of the paternity of illegitimate children presents special problems. Although the situation has improved, proof of paternity remains an inexact science. See Shaw and Kass, Illegitimacy, Child Support, and Paternity Testing, 13 Houston L. Rev. 41, 47 (1975). Once an individual is accused of being the father of the child he may have a difficult time rebutting the charge. The legislature recognized the problem and after weighing the various interests involved provided for uniform procedures for determining disputed paternity coupled with a set statute of limitations to protect the rights of the alleged father. The State admitted below it was trying to circumvent these procedures to avoid being confronted with the two year limitation provision contained in Art. 16, § 66 (e). This we cannot allow because while it is reasonable to remove the effect of two year limitations when there has been a clear confession of paternity, to do so otherwise is to put an alleged father in an impossible position.

The requirement that the criteria of § 1-208 be met before a criminal charge can be filed charging a violation of § 88 (b) (1) is necessary for another reason. If paternity could be initially established under § 88 (b) (1), without a prior admission of paternity, an individual could reasonably believe he is not the father of the child yet be subject to a conviction for wilful non-support. A prior civil determination of paternity serves to inform the individual that he has legally been determined to be the father and if he wilfully fails to fulfill that obligation, criminal proceedings may be instituted.

The State argues that by refusing to allow paternity to be initially established in a criminal action an illegitimate child is being denied equal protection. This argument goes too far. We are not saying an illegitimate child is not covered by § 88 (b) (1). We merely hold that prior to the institution of a criminal action for support of an illegitimate child the case must fit within one of the requirements of § 1-208. The classification concerning the establishment of paternity has a reasonable basis and thus does not deny equal protection. See Mathews v. Lucas, 427 U. S. 495, 96 S. Ct. 2755, 49 L.Ed.2d 651 (1976); Wheeler v. State, 281 Md. 593, 380 A. 2d 1052 (1977). See also discussion in Ward v. State, 37 Md. App. 34, 375 A. 2d 41 (1977).

The State anticipated this approach and argues that paternity need not be established prior to the criminal charges but that both civil and criminal actions can proceed concurrently under § 88 (b) (2) which provides:

“(2) Any parent charged with a violation of this section may be prosecuted in the jurisdiction where he or she or the child resides. Jurisdiction of a criminal court under this section is not affected by commencement of a civil support action before or after prosecution under this section.”

We think a more reasonable interpretation of § 88 (b) (2) is that it allows concurrent jurisdiction in most support actions, but does not alter the procedural prerequisite that unless there have been prior acts or declarations satisfying the requirements of § 1-208 (b)(2)-(4), paternity must be established under the Paternity Act before the criminal charges can be instituted. In other words, once paternity is admitted, or judicially established under Art. 16, §§ 66A-P, support for an illegitimate child can be sought in either civil or criminal proceedings. This reading is consistent with the purposes behind both § 88 (b) (2) and Art. 16, §§ 66A-P as shown by the cases and statutes cited supra.

Order affirmed.

Anne Arundel County to pay the costs.

      . The State appeals under Md. Code, Courts & Judicial Proceedings Article § 12-302 (c), which provides: “In a criminal case, the State may appeal:
      (1) From a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition; and (2) From a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code.”

        . In Williams v. Williams, 18 Md. App. 853,306 A. 2d 564 (1973), we stated in dicta that the word child as used in Art. 72A, § 1 only referred to legitimate children. In construing the statute we relied on a general rule of construction stated in 10 Am. Jur.2d Bastards § 67 without considering the effect of Art. 1, § 16.

      . The State argues that the two year statute of limitations for establishing paternity contained in Art. 16, § 66 (e) amounts to a denial of procedural due process because the wilful failure to support a child under § 88 (b) (1) is a continuing offense. As this question was not raised below, we declined to consider it. Md. Rule 1085; Devine Seafood, Inc. v. Attorney General, 37 Md. App. 439, 377 A. 2d 194 (1977) cert. granted 12-23-77; Hall v. State, 22 Md. App. 240, 323 A. 2d 435 (1974).

      . We note that our holding in no way affects the requirement that the State prove each element of the criminal offense beyond a reasonable doubt. See e.g. State v. Grady, 276 Md. 178, 345 A. 2d 436 (1975). One element of the offense is, of course, that the individual is the father of the child. In prosecuting the criminal action the State must still establish the paternity of an illegitimate child, just as it must for a legitimate child. There is no hint in the record that in the instant case the appellant would come within § 1-208 (b) (2), (3), or (4). If so, of course, there is nothing to prevent new charges from being filed.