Streater v. State

RAKER, Judge,

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 *824A.2d at 116. Distinguishing this case from Ayers v. State, 335 Md. 602, 636, 645 A.2d 22, 38 (1994), the Majority concludes that unlike in Ayers, it cannot say that it is readily evident from the record that the trial judge was fully aware of the governing rule. Maj. op. at 812-13, 724 A.2d at 116-17. In reviewing the trial court’s decision to admit the protective order containing the factual findings, the Majority fails to afford the trial court either a presumption of knowledge or any deference whatsoever. There is a presumption that trial judges know and properly apply the law. See Ball v. State, 347 Md. 156, 206, 699 A.2d 1170, 1194 (1997), cert. denied, — U.S.-, 118 S.Ct. 866, 139 L.Ed.2d 763 (1998); Williams v. State, 344 Md. 358, 365-66, 686 A.2d 1096, 1100 (1996). As this Court stated in Ayers, 335 Md. at 635-36, 645 A.2d at 38 (quoting Beales v. State, 329 Md. 263, 273, 619 A.2d 105, 110 (1993)), “there is a ‘strong presumption’ that judges properly perform their duties in weighing the probative value and prejudicial effect of so-called ‘other crimes’ evidence ... trial judges ‘are not obliged to spell out in words every thought and step of logic’ in weighing the competing considerations.” The Majority erroneously finds that the trial court erred in admitting the entire protective order form without addressing, in the record, the admissibility of the factual references to prior acts that the order contained.

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 *825prejudice of this evidence.1 As the Court of Special Appeals noted in its opinion below, Streater v. State, 119 Md.App. 267, 273, 704 A.2d 541, 543 (1998), Streater did not object to the specific portion of the order that he now alleges contains references to prior bad acts. Had the objection been made properly, the trial court could have found that the evidence was relevant, the acts were proved by clear and convincing evidence, and any prejudicial effect was outweighed by probative value. Id., 704 A.2d at 543.2 Alternatively, the trial court could have redacted any portion of the protective order, the prejudice from which exceeded its probative value.

Cloaked in terms of “observations,” the Majority engages in a de novo analysis of the admissibility vel non of the prior acts evidence.3 For this reason, some additional facts, contained in *826the record and omitted by the Majority, would be helpful. The events at issue in this trial occurred in April and May of 1996. A protective order forbidding the defendant from contacting the victim was in place during this time period. The victim testified that, despite the order, the following events occurred.

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 *827ass or get someone to whip my ass.” According to the victim, some of the phone calls involved threats, “related to if he can’t have me, no one else can.”

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 *828so as to enable a reviewing court to assess whether Md. Rule 5-404(b), as interpreted through the case law, has been applied correctly.” Maj. op. at 810, 724 A.2d at 116. While it would certainly be better if the trial court spread the reasons for the ruling on the record, neither the Maryland Rules nor the case law require the trial court to do so. See Lodowski v. State, 302 Md. 691, 728, 490 A.2d 1228, 1247 (1985), cert. granted and jdgmt. vacated, 475 U.S. 1078, 106 S.Ct. 1452, 89 L.Ed.2d 711 (1986), jdgmt. reversed on other grounds, 307 Md. 233, 513 A.2d 299 (1986). The Majority’s position is a marked change in Maryland law.

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 *829acts by the accused against the victim were specially relevant as tending to show that the accused engaged in a continuous course of conduct against the victim. See, e.g., Todd v. State, 280 Ga.App. 849, 498 S.E.2d 142, 145 (1998) (in prosecution for terroristic threats and stalking, evidence of prior acts by accused against victim admissible to show course of conduct of harassment and intimidation); Hayes v. State, 717 So.2d 30, 37 (Ala.Crim.App.1997) (an accused’s prior acts of harassing are admissible to demonstrate a “course of conduct”); Commonwealth v. Urrutia, 439 Pa.Super. 227, 653 A.2d 706, 710 (1995) (course of conduct by its very nature requires showing of repetitive pattern of behavior and, therefore, where evidence of prior bad acts is necessary to establish the pattern, the evidence is admissible).

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 *830alarms or seriously annoys another person.” I think such evidence falls well outside the proscriptions of Rule 404(b). The State is not using the prior acts to demonstrate the defendant’s general propensity toward crime, but rather to show a specific, repetitive pattern of behavior toward the victim, a pattern the State is required to prove to convict the defendant of harassment.

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.”4 Maj. op. at 817, 724 A.2d at 119. Interestingly, the Majority had no such difficulty in concluding that the threat, assault and/or battery were specially relevant as part of a continuing course of conduct, notwithstanding the lack of evidence that Mr. Streater had been warned before he committed those acts. The Majority states that “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.” Id. at 817, 724 A.2d at-. The Majority correctly observes that it is these prior acts, coupled with the events leading to the prosecution, that establish the course of conduct. The same rationale holds true for the breaking and taking conduct— when “coupled with the testimony concerning the events that led to Mr. Streater being prosecuted, which occurred after the *831protective order became effective,”—the acts of breaking into the house and taking the money are relevant to establish the ‘course of conduct’ and ‘continuity of purpose’ necessary to establish the offense of harassment. The absence of any prior warning does not alter this analysis.

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.5

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 *832“alarmed” and/or “seriously annoyed” by the defendant’s subsequent conduct. This is a required element of the harassment statute. See Maryland Code (1957, 1996 Repl.Vol.) Article 27, § 121A (providing that “[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.”) As the court stated in People v. McCray, 67 Cal.Rptr.2d 872, 881, 58 Cal.App.4th 159, 172 (1997), when faced with a similar situation,

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.

*833Maryland Code (1984, 1991 Repl.Vol., 1998 Supp.), Fam. Law § 4-506(c)(ii) provides that a protective order may issue “if the court finds by clear and convincing evidence that the alleged abuse has occurred, or if the respondent consents to the entry of a protective order.” The Majority contends that “[t]he protective order admitted into evidence in the case sub judiee contained two boxes, one indicating consent to the issuance of the order and another indicating that the order was based on a finding of clear and convincing evidence; neither box was checked, leaving ambiguous the grounds upon which the order was based.” Maj. op. at 818, 724 A.2d at 120. A closer look at the protective order demonstrates that it was not at all ambiguous, and that the order was based on the judge’s finding by clear and convincing evidence that the events had taken place. See Appendix.

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.

*834Judge RODOWSKY and Judge CATHELL have authorized me to state that they join in the views expressed herein.

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. 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 *826characterizes its comments as "observations.” These "observations” could be for two apparent reasons-either the Majority is engaging in a de novo review of the evidence (although it arrives at no conclusions), or the Court is merely advising the trial court on remand of the Court's opinion on the admissibility of the evidence. In either case, my remarks remain the same.

. 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)).