Ayers v. State

BELL, Judge,

dissenting in which CHASANOW and RAKER, JJ., join.

The majority holds that statements about what the appellant said during the 7-Eleven incident were admissible to prove the appellant’s motive for committing those acts for which the appellant was on trial, since an element essential, to the State’s case is that the victim’s race caused the appellant to commit those acts. That is the special relevance which the State must prove the 7-Eleven incident evidence has to the case on trial. To arrive at that conclusion, the majority seems to read Maryland Code (1957, 1992 RepLVol.) Article 27, § 470A as requiring proof of “racial animus.”1 The majority *643points out that the testimony of the appellant’s co-defendant Riley was that the 7-Eleven incident was the motivating factor for the acts for which the defendant is on trial and that that incident was “racial” in nature. It also relies on the testimony of one of the participants in the 7-Eleven incident, the rebuttal witness Lisa Walker, to corroborate the latter point. The majority seems to say that Walker’s testimony, like Riley’s, tended to establish the causal connection between the two incidents.

Having determined the special relevance of the 7-Eleven-incident and that the appellant’s involvement in it had been proven by the requisite standard, the majority, consistent with the analysis reiterated in Terry v. State, 332 Md. 329, 335, 631 A.2d 424, 427 (1993),2 proceeded to weigh the probative value *644of that evidence against its prejudicial effect. To reach the conclusion that the former outweighs the latter, the majority starts with the premise that the probative value is great “because it took place only several days before the March 3 attacks upon the victims in the present case, and was relied upon by the State as the motivating factor for Ayers’s action. This evidence was therefore relevant to establish that, contrary to Ayers’s testimony that he did not act with racial motives in the early morning hours of March 3, he in fact committed the crimes upon the victims on that date because of their race.” Majority opinion at 635. While also recognizing that its prejudicial effect is likewise extremely high, it holds nevertheless that the balance favors admission of the evidence, reasoning:

The State was required to prove that Ayers perpetrated the crimes upon the victims because of their race. Manifestly, the evidence of the 7-Eleven store racial incident could properly be found to constitute the motivation underlying Ayers’s criminal misconduct in this case; it was therefore admissible to prove the motive element under § 470A. Consequently, the necessity for and probative value of this evidence in the circumstances was properly determined to outweigh its prejudicial impact.

Majority opinion at 635-636.

Conceding that generalized evidence concerning a defendant’s racial views does not suffice to prove motive, that only evidence actually connected with the offense will do, the *645majority characterizes the 7-Eleven incident evidence as a part of the causal chain leading to the offenses on trial. Finding “a ‘tight nexus’ between the February 29 and March 3 incidents,” Majority opinion at 39, it holds that the admission of that evidence was neither violative of the first amendment, nor of the rule generally prohibiting the introduction of other crimes evidence. In footnote 9, the majority addresses the timing of the Walker testimony. It notes, however, that, although it was admitted as rebuttal evidence, during the rebuttal stage of the trial, the trial court has discretion to allow evidence in rebuttal that could have been offered in the case in chief. Consequently, it says, that evidence was properly admitted in this case.

Whatever the majority may say, the evidence concerning what the appellant said during the 7-Eleven incident tends to prove and, I daresay, was offered to prove, the appellant’s racial bigotry. Whether admitted in the State’s case in chief to prove “motive” or as rebuttal evidence to refute the appellant’s testimony, and that of his character witnesses, that he is not a racial person, the point is that the focus of the evidence was on what he said, from which the trier of fact was invited to infer that he acted with respect to the participants in the 7-Eleven incident because of their race and from that, to further infer that he acted the same way, for the same reason, several days later towards the victim in this case.

I

I disagree, first of all, -with the majority’s assertion that Walker’s testimony was admissible, and, in fact, was admitted, to prove that the appellant committed the crimes because of the race of the victims and, thus, could have been offered in the State’s case in chief. More important, I reject the majority’s inference that motive, the critical element of the crime that the State must prove, may be proven in this case, by evidence of the racial bias of the defendant. Accordingly, I respectfully dissent.

*646To be sure, a violation of section 470A does require proof that the defendant committed the crimes against the victims “because of [their] race, color religious beliefs, or national origin.” Thus, to sustain a conviction under that section in this case, the evidence must not only show that the defendant committed the underlying crime, but that he did so because of the victim’s race.

What the appellant may have said, by way of racial epithets during the 7-Eleven incident may show, and certainly has some tendency to prove, that the appellant is a bigot. Because it may be assumed that a bigot is more likely to act on his or her bigotry, evidence of bigotry, i.e., the uttering of the racial epithets, may be relevant to prove that the appellant’s actions against the victims in this case were taken because the victims are black. That evidence, thus, may tend to establish a disposition relevant to the case sub judice. In that sense, then, the evidence has “special relevance.” And given its “special relevance,” it may be argued that it is not presented solely for the purpose of showing that the appellant is a person of bad character or generally is disposed to committing criminal acts. See Harris v. State, 324 Md. 490, 502, 597 A.2d 956, 962 (1991).

Simply because evidence may be relevant does not mean that it must be admitted. As indicated, the State has first to demonstrate that its probative value outweighs its prejudicial effect.3 That cannot be accomplished in this case.

It is of course true that to prove a violation of section 470A requires that the State establish the appellant’s “motive” for committing the crimes against those victims “because of [their] race.” This does not mean, as I see it, that the State has to prove that the appellant is a bigot, i.e., that he acted with “racial animus.” Proving that the appellant is racially *647prejudiced or biased can, to be sure, lead to an inference as to why the appellant acted. “Motive” as contemplated by section 470A is not, in other words, synonymous with racial prejudice or bias. What the statute proscribes is the purposeful selection of a victim because of the victim’s protected status, in this case, race. See State v. Stalder, 630 So.2d 1072, 1075-77 (Fla.1994); State v. Mitchell, 485 N.W.2d 807, 821-22 (1992) (Babitch J. dissenting), rev’d sub nom, Wisconsin v. Mitchell, 508 U.S. -, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993). As Justice Babitch put it (485 N.W.2d at 824-25):

Neither a perpetrator’s bigoted beliefs, nor his or her motivation for intentionally selecting a victim because of a protected status are punished____ [I]t is the act of selecting a victim because of his or her race, color, or etc., that is proscribed. If the perpetrator seeks out a Jewish person to physically assault his intent is not just to injure, but to injure a Jewish person. He may be motivated by a hatred of Jewish people, a calling from God to sacrifice a Jewish person, or some other irrational motive. This law does not look at why the perpetrator sought out a Jewish person. It looks only to whether the fact that the victim was Jewish was a substantial factor in the defendant’s purposeful choice of the victim.

Thus, while proof of the defendant’s bigotry may be a means of proving that, in this particular case, the defendant acted as proscribed by the statute, that proof is not a necessary element of section 470A; the State may successfully prove the appellant’s unlawful “motive” even though the appellant is not a bigot. As Judge Babitch pointed out (485 N.W.2d at 822, footnote omitted):

Admittedly, the conduct prohibited by the ... statute can be proven by an extensive combination of facts that might include words uttered by a defendant. However, if words are used to prove the crime, the words uttered are not the subject of the statutory prohibition; rather, they are used only as circumstantial evidence to prove the intentional selection. Permitting the use of such evidence does not chill free speech. Just as words of defendants are frequently *648used to prove the element of intent in many crimes "without violating the First Amendment, words may be used to prove the act of intentional selection. It is no more a chilling of free speech to allow words to prove the act of intentional selection in this “intentional selection’ ” statute than it is to allow a defendant’s words that he “hated John Smith and wished he were dead” to prove a defendant intentionally murdered John Smith.

If the “because of’ language must refer to bigotry, then section 470A would punish an actor for his or her beliefs, and, as the Wisconsin Supreme Court said of that State’s statute, it is unconstitutional because it directly punishes thought and has a chilling effect on speech. 485 N.W.2d at 815-816.4

The State contends in this Court as it did below and so sought to prove, that the precipitating cause of the defendant’s commission of the crimes on trial was the 7-Eleven incident. In support of that proposition, it called Riley to testify as to what motivated him and the appellant. Riley testified that, after drinking beers at the appellant’s home, he and the appellant decided to go “nigger hunting”, to go looking for blacks to beat up. The decision to go “nigger hunting” was made, he said, in response to a confrontation, which he characterized as racial in nature, that occurred between him, the appellant, and a group of black teenagers at a 7-Eleven store a few days earlier. It was because he and the appellant were “kind of pissed off about what happened” that night and “a little hostile,” that they decided to do something about it, ie. “going out looking for trouble.” Myrtle Guillory, one of the *649victims, testified to Riley and the appellant chasing her and her friend and that, while chasing her, Riley continually yelled, “I’m going to kill you, you black bitch,” thus, corroborating Riley’s testimony as to why they were selected.5 Testifying in his own defense, the appellant denied that he had a racial motive for committing the crimes. Significantly, although he acknowledged on cross examination that the 7-Eleven incident was racial in nature, he contends that he did not use racial epithets during that incident.

The State called Walker to testify, in rebuttal, both as to what the appellant did and said during the 7-Eleven confrontation. Specifically, she said that the appellant had, indeed, used racial epithets, among them “black bitch,” “nigger” and “black motherfucker,” may have pushed one of the young men down, and had chased her.

The appellant moved for a mistrial, arguing that Walker’s testimony had “so prejudiced this jury that I fail to see how in the world that man can get a fair trial.” The court denied the motion, opting instead to give a cautionary instruction as to the use of the evidence.6

*650There is nothing in the record that suggests, not to mention reflects, that the trial court admitted Walker’s testimony for the purpose of proving the appellant’s motive. Indeed, all indications are to the contrary. The State offered “motive” evidence during its case in chief primarily through the testimony of Riley and one of the victims, Myrtle Guillory; through those witnesses, it sought to prove why the appellant committed the crimes against those particular victims. Having presented its motive evidence, the State never sought to reopen its case, either directly or indirectly. Nor, when offering justification for its cross-examination of the appellant about the 7-Eleven incident or the need for, and propriety of, permitting Walker to testify in rebuttal, did it even suggest that it was properly a matter to be proved in chief. And the trial court’s ruling on the appellant’s objection to being cross-examined about the 7-Eleven incident and his motion for mistrial in no way indicated that the court believed that evidence to be admissible in chief or that, by its ruling, it intended to permit the State to reopen its case for the purpose of receiving it.7 In point of fact, the State was clear in noting *651that it called Walker to rebut the appellant’s character evidence and his denial of being a racist or having used any racial epithets during the 7-Eleven incident.8 That this is so is demonstrated by the fact that Walker’s testimony was not so much concerned with describing what occurred during the incident, as it was about detailing what the appellant said during the incident.

Assuming that the State had offered the evidence to prove the appellant’s motive, I would reach the same result. Whatever the admissibility of Walker’s testimony as rebuttal evidence, an issue that will be addressed later, in my view, its prejudice outweighs its probative value and it should not be admissible to prove motive and, hence, it could not properly have been offered in the State’s case in chief.

The State focused on the 7-Eleven incident, not the appellant’s racial beliefs, as the precipitating cause of the appellant’s actions toward the instant victims. Being the precipitating cause of a subsequent action may not necessarily be the same as being the “motive” for the action. In this case, this is clearly the case—the motive for committing the crimes does not equate with why the appellant went “nigger-hunting.” Viewed from the State’s perspective, the appellant’s motive was because the victims were black; however, the reason the appellant decided to go “nigger-hunting” was because of what happened at the 7-Eleven. In short, the 7-Eleven incident was the motive for the motive for the commission of the crime, not the motive itself.

*652The 7-Eleven incident involved more than simply what the appellant did or said. Indeed, what the appellant did or said during that incident could not, in my opinion, be the motive for his commission of the crimes. Other than the implication which can be drawn from those actions and comments that he is a racial bigot, the appellant’s actions and comments have absolutely no relevance to any issue sub judice.

It is tenuous at best to suggest that the fact that the appellant previously used racial epithets formed the motive for his future crimes. It is the fact that the 7-Eleven incident occurred, not necessarily what the appellant said, that Riley points to as the motivation for the crimes in the instant case. But even if it were deemed to be necessary to prove the facts of the 7-Eleven incident, the critical focus still would not be on what the defendant said; rather, logically, it would appear more appropriately to be on what the objects of the appellant’s rage, ie., the black teenagers, did or said. What the appellant did, how the appellant reacted, what the appellant said, do not address at all his “motivation,” borne of the incident. The most that can be said about Walker’s testimony, in the light most favorable to the State, is that it demonstrates that the appellant had a pre-existing animosity or bias toward the racial group of which the victims are members. Thus, viewed in that sense, focusing on the appellant’s actions and words during the 7-Eleven incident is an attempt simply to establish that the appellant is a racist, in this instance, or has a propensity, of the existence of which the proof of the instant crime would be evidence. On the other hand, focusing on what the teenagers did, or were perceived to have done, to prompt the appellant’s reaction is all that is required to establish, and thus corroborate, what Riley said—that he and the appellant became angry as a result of that incident and determined to do something about it. What prompted the appellant’s anger, I submit, is not what the appellant said or may have thought; rather, it is what the appellant thought was said and/or done to him.

*653It is well settled in Maryland that motive or intent9 may be proven by prior conduct. See Johnson v. State, 332 Md. 456, 470, 632 A.2d 152, 158 (1993); Harris v. State, 324 Md. at 502-03, 597 A.2d at 962-63; Harrison v. State, 276 Md. 122, 155, 345 A.2d 830, 849 (1975). This is true even if the conduct is not directly concurrent. Johnson, 332 Md. at 470, 632 A.2d at 158. All that is required is that the prior conduct be “ ‘committed within such time, or show such relationship] to the main charge, as to make connection obvious,’ ... that is to say they are ‘so linked in point of time or circumstances as to show intent or motive.’ ” Id. at 470, 632 A.2d at 158-159, quoting Bryant v. State, 207 Md. 565, 586, 115 A.2d 502, 511 (1955) and Harrison, 276 Md. at 155, 345 A.2d at 849. Of course, the prior conduct evidence must be relevant, i.e., it must have a tendency to prove the proposition for which it is offered, Dorsey v. State, 276 Md. 638, 643, 350 A.2d 665, 668-69 (1976), in this case, motive. Thus, evidence that is relevant is also probative. And, “[t]he stronger the connection between the evidence and the proposition [for which it is offered]—the greater the tendency of proof—the more probative the evidence is.” Johnson, 332 Md. at 474, 632 A.2d at 160.

When motive is an essential element of a criminal offense and proof of motive involves establishing prior conduct that either constitutes another crime or a prior bad act, evidence of that conduct is admissible, as the majority recognizes, only if its probative value outweighs its prejudicial impact. We have noted that, “[i]n arriving at the proper balance, not only must the evidence’s special relevance and potential for prejudice be *654considered, but its necessity, ie., whether other means of proof are available, and other relevant factors must be assessed as well.” Id. at 473, 632 A.2d at 160. This is best accomplished

if there is on the part of the trial judge a constant cognizance of the need for showing that the “evidence is probative of a material issue other than character,” ... coupled with an unremitting appreciation of the significant potential for unfair prejudice that is likely to accompany the admission of [specific acts of sexual conduct] the necessary analysis in weighing functions are likely to produce an appropriate result.

Harris, 324 Md. at 499-500, 597 A.2d at 961, quoting Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771, 780 (1988).

Evidence of other crimes generally is inadmissible to prove the defendant’s guilt of the offense for which the defendant is on trial, Terry v. State, 332 Md. 329, 334, 631 A.2d 424, 426 (1993); Clark v. State, 332 Md. 77, 83, 629 A.2d 1239 (1993); State v. Faulkner, 314 Md. 630, 633, 552 A.2d 896, 897 (1989), but is admissible, our cases make clear, to prove motive. Terry v. State, 332 Md. at 334-35, 631 A.2d at 426-427; Harris v. State, 324 Md. at 501, 597 A.2d at 962; State v. Faulkner, 314 Md. at 634, 552 A.2d at 898. Its admissibility is premised on such evidence having “special relevance,” Harris, 324 Md. at 500, 597 A.2d at 961, ie., that it “tend[s] to show a particular disposition that is at issue, as opposed to showing only that the defendant is a person of bad character or has a disposition toward criminal activity in general.” Id. In addition to special relevance, however, to be admissible, the evidence must be such that its probative value substantially outweighs its potential for unfair prejudice. Id. at 500, 597 A.2d at 961. Where the evidence is relevant to show a particular disposition that is at issue, “there must appear between the previous offense and that with which the defendant is charged some real connection other than the allegation *655that the offenses have sprung from the same disposition.” Id. at 502, 597 A.2d at 962.

Having already determined that “motive” as used in section 470A, and racial bigotry are not synonymous, ie., racial bigotry is not an element of section 470A, and that proof of racial bigotry has some relevance to the proof of motive, it becomes necessary to weigh the probative value of such evidence against its prejudicial effect. The results of that weighing will determine whether Walker’s testimony is admissible as “motive” evidence. As we have seen, Walker testified primarily to what the appellant said, emphasizing that he used racial epithets during the confrontation in which she was involved. From that testimony, the majority and the State infer that the appellant is racially prejudiced and, in turn, from that conclusion, that, on the later occasion, he committed the crimes because of that prejudice, ie., because of the victim’s race. Because, in other words, the appellant is a bigot, the argument must proceed, his motivation for both the 7-Eleven incident and the crimes on trial, springs from the same disposition. The State then asserts that, because “racial animus” must be proven, it follows that the probative value of Walker’s testimony outweighs its prejudicial impact. The majority reasons that the Walker testimony about what the appellant said during the 7-Eleven incident is more probative than prejudicial because that incident was relied on as the motivating factor for the attacks and thus Walker’s testimony was necessary. In my view, that is simply another way of saying that, in this case, “racial animus” must be proven and so evidence tending to prove it is more probative than prejudicial. I do not agree.

Certainly, that the appellant was engaged in a confrontation three days before in which he used racial epithets may permit the inference that the appellant acted as he did on that occasion out of hatred of or racial animus toward the victims. The inference from the 7-Eleven incident was that appellant was angered by the victims’ behavior, not just their race. His racial epithets were most likely a form of retaliatory punish*656ment, albeit, also an indication of his bigotry. The connection between the appellant’s bigotry and the present incident is not, as the majority suggests, “strong probative evidence of the defendant’s [motive] on this occasion.” Harris, 324 Md. at 502, 597 A.2d at 962.

Determining whether proffered evidence is unduly prejudicial requires consideration of several factors, “including the strength of [that] evidence ..., the similarities between the [incidents], the interval of time that has elapsed between [them], the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.” Edward W. Cleary, McCormick on Evidence, § 190, at 565 (3rd ed. 1984) (footnote omitted). Painting one as a bigot is a devastatingly and inherently prejudicial comment on that person’s character, whatever relevance to the case at issue that particular dispositional trait may have. Indeed, such evidence is quite likely to arouse the jury’s prejudice and hostility toward the defendant. See Eiler v. State, 63 Md.App. 439, 453-54, 492 A.2d 1320, 1327 (1985). Consequently, where it is not a necessary element of proof, its probative value almost always will be outstripped by its prejudicial effect. If the appellant is a racial bigot one can infer from his former remarks that he was similarly motivated in the instant case, but that does not make his bigotry admissible. Given the inherent prejudicial nature of racial bigotry evidence and the fact that proof of that trait is not a required element of section 470A, we do not have the requisite assurance that the probative value of proof of the 7-Eleven incident outweighs its prejudicial impact. Moreover, the appellant’s racial remarks were accompanied by assaults which constituted crimes quite similar to those on trial. From that, as the majority also recognizes, the jury easily could have its attention diverted and infer that because he committed the earlier act, he also committed the one on trial. In my opinion, it is patent that the prejudicial impact of Walker’s testimony far outweighs any probative value it may have.

*657II

Because it was admitted as rebuttal,101 think it appropriate to expand on whether the Walker testimony was proper rebuttal evidence. My analysis leads me to conclude that it was not.

It is well-settled in this State that what constitutes rebuttal testimony rests within the sound discretion of the trial court, whose ruling will not be reversed unless it constitutes an abuse of discretion. State v. Booze and Snead, 334 Md. 64, 68, 637 A.2d 1214, 1216 (1994); State v. Hepple, 279 Md. 265, 270, 368 A.2d 445, 449 (1977). When addressing whether a trial court has abused its discretion in determining and admitting rebuttal evidence, “[t]he proper inquiry ... is ‘whether the evidence explains, or is a direct reply to, or a contradiction of, any new matter that has been brought into the case by the accused.’ ” Booze and Snead, 334 Md. at 70, 637 A.2d at 1217, quoting Hepple v. State, 31 Md.App. 525, 534, 358 A.2d 283, 290 (1976), aff'd, State v. Hepple, 279 Md. 265, 368 A.2d 445 (1977). When that inquiry reveals that evidence that does not meet these criteria has been admitted, the court will be found to have abused its discretion and, if the impact of the evidence is such as to be both “manifestly wrong and substantially injurious,” Mayson v. State, 238 Md. 283, 289, 208 A.2d 599, 602 (1965) quoting Kaefer v. State, 143 Md. 151, 160, 122 A. 30, 33 (1923), ie., not harmless beyond a reasonable doubt, see Dorsey v. State, 276 Md. 638, 656-659, 350 A.2d 665, 676-678 (1976), to require reversal of the defendant’s conviction. Pursuing that inquiry in this case leads inexorably to the conclusion that the trial court committed reversible error by admitting Walker’s testimony as rebuttal evidence.

Viewed superficially, it may appear logical that, in calling Walker, the State was doing nothing more than attempting to *658rebut the appellant’s denials. The appellant denied being a racist and also denied making racial epithets during the 7-Eleven incident. Looking at the matter more closely, however, belies that interpretation. The appellant’s denial that he is “a racial person” came in response to the question, asked on direct examination, “did you attack this woman for any racially motivated reason?” Following up on that answer, the State inquired immediately about the 7-Eleven incident. In response to the State’s questions, the appellant clearly admitted that the incident did occur and conceded that it was racial in nature. Unlike Walker’s testimony, however, he indicated that it was the group of black teenagers that “started yelling racial slurs.” According to the appellant, the incident unfolded as follows:

I went in to buy a case of beer and as I came out there was a countless number of black people standing out there and he had—me. We had left and when we left [Riley] was driving dangerously out of the parking lot and they started yelling racial slurs.

In response to the question what the group of black people were saying, the appellant stated:

Honkey this, honkey that, learn how to drive, get a life, this and that. I asked him to turn around. We turned around. I went up, I pushed a guy and that was it. We turned around, we started to walk away. After we started walking away they were, all of the people who were originally there were on the other side of Lay Hill Road yelling more racial slurs after everything had happened and we were starting to leave. So I then again, we ran after them and then—

The appellant denied calling Walker “a black nigger bitch.” During his direct examination, Riley had answered in the affirmative to the question, “was there a confrontation racial in nature that you and the defendant were involved in that night?” He also testified that it was the discussion of that confrontation that led to them deciding to go “nigger-hunting”.

Walker’s testimony did not explain, directly reply to, or contradict any new matter, material to the issue before the *659court, that was brought into the case by the appellant. The appellant admitted the only thing that was relevant to the State’s contention that the 7-Eleven incident constituted the motivation for the attack on the victims—that the incident did, in fact, occur. Maintaining one’s innocence by denying the State’s allegations does not bring new matter into the case which would justify rebuttal evidence. Booze and Snead, 334 Md. at 76 n. 5 637 A.2d at 1220 n. 5. That he added to his denial, “I am not a racial person,” and called character witnesses in corroboration, do not, in my view, opén the door so as to permit the State, by way of rebuttal, to prove that he is.

It is only in that very rare instance when character is an element of the crime that the State is permitted to prove specific prior acts reflecting the relevant character trait. Lynn McLain, Maryland Evidence, § 405.4, at 391-92. Such evidence is admitted as substantive evidence. Id. Where character is not directly at issue, the State may, of course, cross-examine the character witness about specific prior acts or crimes; however, it is bound by the witness’s answer, id. at 392-94, and cannot, thereafter, offer extrinsic evidence to contradict the witness. Id. But see Erman v. State, 49 Md.App. 605, 632, 434 A.2d 1030, 1045-46, cert. denied, 292 Md. 13 (1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982). The State could have called its own character witnesses, but it could not offer extrinsic evidence of other crimes, other than relevant convictions, to impeach the character testimony. See McCormick, supra, § 91 at 818. The Walker testimony was inadmissible on this basis as well.

But not only was it improperly admitted, it was manifestly and substantially injurious in its effect upon the appellant’s case. The duty of the trial court to ensure that proffered evidence is not unduly prejudicial also applies to the State’s attempt to rebut character evidence if that attempt involves delving into prior crimes or bad acts. McCormick, supra at 569. The appellant having already acknowledged the motivating event and, indeed, provided the State with more ammunition for believing that it was the motivational event, Walker’s testimony had no other effect, if not purpose, than to expose *660the appellant as a racist. In the context of this case, this is tantamount to proving that the appellant was a bad person and, thus inviting the jury to take that into account when determining whether he committed the offenses with which he was charged. Evidence that a defendant charged with committing a crime because of the race of the victims is, or may be, a racist is like proving that a person charged with armed robbery is poor or needs money. See Vitek v. State, 295 Md. 35, 40, 453 A.2d 514, 516-517 (1982). Even if a person on trial for armed robbery denies needing money, that should not open the door to proof of a prior armed robbery where the person contended he or she was committing the robbery because he or she needed the money. It is also like proving that a person charged with distribution of cocaine has, on a previous occasion, distributed cocaine, evidence ordinarily highly prejudicial and, hence, inadmissible. This is not a case in which there are but two possibilities and the State’s proof would establish one to the exclusion of the other. Anaweck v. State, 63 Md.App. 239, 246, 492 A.2d 658, 652 (1985) (prosecution for possession of cocaine with intent to distribute in which defense contended the cocaine was for personal use. Proof of two recent sales admissible to prove intent). See Harris, 324 Md. at 502, 597 A.2d at 962.

Inasmuch as I believe and have already demonstrated, that Walker’s testimony is inadmissible to prove motive and, furthermore, given the context, has no special relevance and certainly must be outweighed by the prejudice that it can be expected to engender in the jury, I would reverse and remand for new trial the appellant’s conviction under Article 27, section 470A. I would allow the assault with intent to maim and kidnapping convictions and sentences to stand, however.

CHASANOW and RAKER, JJ., join in the views expressed herein.

. The majority does not use this phrase to define the elements of section 470A, dutifully adhering to the language of the statute. Indeed, it *643intimates that proof of racial bias is not a critical element of the crime, suggesting that section 470A can be proven without any showing of racial bigotry. That is belied, however, by its treatment of the admissibility of the 7-Eleven incident evidence. The details of the 7-Eleven incident were supplied by the testimony of Lisa Walker, on rebuttal, and the appellant on cross-examination by the State. Whereas the focus of the appellant's testimony was primarily on the activities of the other participants in the incident, Lisa Walker testified that the appellant used racial epithets. Thus, the only conceivable import of Lisa Walker’s testimony was to show that the appellant had a "racial animus” against black persons. If the 7-Eleven incident was the “motive” for the instant offense, it was what other people said and did to the appellant that supplied the motive. Because from that evidence, the majority suggests that it properly could be inferred that, in this case, the appellant acted because of the victims’ race, it follows that the majority endorses proof of racial bigotry as an acceptable means of proving the motive that is an element of section 470A.

. That test is:

"When a trial court is faced with the need to decide whether to admit evidence of another crime—that is, evidence that relates to an offense separate from that for which the defendant is presently on trial—it first determines whether the evidence fits within one or more of the Ross exceptions. That is a legal determination and does not involve any exercise of discretion.
"If one or more of the exceptions applies, the next step is to decide whether the accused’s involvement in the crimes is established by clear and convincing evidence....
"If this requirement is met, the trial court proceeds to the final step. The necessity for and probative value of the "other crimes” *644evidence is to be carefully weighed against any undue prejudice likely to result from its admission____ This segment of the analysis implicates the exercise of the trial court’s discretion.”

Terry v. State, 332 Md. 329, 335, 631 A.2d 424, 427 (1993), quoting State v. Faulkner, 314 Md. 630, 634-35, 552 A.2d 896, 898 (1989) (citations omitted). The reference to the Ross exceptions is to those set forth in Ross v. State, 276 Md. 664, 669-670, 350 A.2d 680, 684 (1976).

As will be seen infra, despite the appellant's denial that he made them, the trial court made no specific finding with respect to whether the State proved by clear and convincing evidence that the appellant used the racial epithets attributed to him by Lisa Walker. Nor does it appear that the trial court ever determined whether the prior bad acts evidence fits within one or more of the Ross exceptions.

. In this context, prejudice refers, not to the tendency of the evidence to damage the defendant’s case, but to its tendency to "arouse the jury's hostility or sympathy for one side without regard to the probative value of the evidence....” Edward W. Cleary, McCormick on Evidence, § 185, at 545-46 (3rd ed. 1984).

. I am aware that the Supreme Court has specifically stated that antidiscrimination laws requiring proof of motive aire not rendered unconstitutional simply because that proof may implicate a protected characteristic. Wisconsin v. Mitchell, 508 U.S. -, -, 113 S.Ct. 2194, 2200, 124 L.Ed.2d 436 (1993). It is significant to me that the speech at issue in that case was directly relevant to the acts on trial. That was consistent with the Court’s admonition that the admissibility of motive evidence remains subject to the rules of evidence relating to relevance, probative value and prejudice. Id. In this case, by contrast, the speech had little to do with the crime on trial except that the appellant's co-defendant said that the incident in which they were uttered motivated the crime on trial. See discussion infra.

. Other than being chased, the other victim did not remember very much about the incident. Hence, she did not testify that the appellant used racial epithets while chasing her.

. The appellant made a similar motion when the State cross-examined him about the 7-Eleven incident. That motion was also denied. As it did on this occasion, the court, at the appellant’s request, gave a cautionary instruction, which was, at best, confusing. That instruction was:

Before the witness is called I want to indicate to you what we refer to in this world as a cautionary instruction. You have heard and you may hear more testimony from witnesses relative to matters that appear to be other crimes or other incidents that might lend themselves to being prosecuted as crimes. But none of that testimony that you glean that from is to be received by you as the possibility of that being a criminal act. It is just being offered to you as indication of certain factual representations relative to substantiating other proof that one or both of the parties intends to put before you. Now I know that sounds confusing. I am just suggesting to you that the indication of any witness of any other act done by the defendant in this case other than these acts that he is charged with today is not to *650be received or considered by you or to be used by you in a determination of your ultimate decision in this case.

. While, to be sure, the trial court has discretion to vary the order of proof, and admit, during the rebuttal stage of trial, evidence more properly admissible in the State’s case in chief, State v. Booze and Snead, 334 Md. 64, 68-69, 637 A.2d 1214, 1216 (1994); State v. Hepple, 279 Md. 265, 270, 368 A.2d 445, 449 (1977); Mayson v. State, 238 Md. 283, 289, 208 A.2d 599, 602 (1965), we have been quite emphatic that, "to uphold an exercise of discretion by the trial court, it must be clear that the trial court was indeed exercising the particular discretion it purported to exercise.” Booze and Snead, 334 Md. at 70, 637 A.2d at 1217, citing Huffington v. State, 295 Md. 1, 15, 452 A.2d 1211, 1217 (1982) and Mays v. State, 283 Md. 548, 553-55, 391 A.2d 429, 431 (1978). Consequently, where evidence that is not properly rebuttal evidence is offered during the rebuttal stage of trial, it will not be presumed that the court exercised its discretion and allowed the State to reopen its case and receive that evidence out of turn. A court may not exercise discretion unless it has considered all relevant factors. When allowing evidence out of turn is at issue, that means considering whether the reasons advanced are truly extraordinary, see Dyson v. State, 328 Md. 490, 502-03, 615 A.2d 1182, 1188 (1992), "the desirability of maintaining an orderly trial” process, will be thwarted if reopen*651ing is allowed, id. at 503, 615 A.2d at 1188, and the defendant’s ability to answer and otherwise receive a fair trial will be impaired. See Hepple, 279 Md. at 270, 368 A.2d at 449. In this case, the record simply fails to reveal any basis for concluding that the trial court exercised its discretion to reopen the State's case for the purpose of accepting evidence more properly presented in chief. Consequently, notwithstanding that the trial court has discretion to vary the order of proof, there is, on this record, no reason to believe that that is what it did, or even intended to do.

. In fact, the State argued that it was appropriate "to confront and to explore character traits that aren’t consistent with what character witnesses have said.”

. At the threshold, it must be noted that intent and motive, though mental elements provable by prior conduct and other extrinsic evidence, are not precisely identical. “Motive is what prompts a person to act, or fail to act. Intent refers only to the state of mind with which the act is done or omitted.” Black's Law Dictionary 810 (6th ed. 1990). When the motive relates to a characteristic common to the victim, the distinction becomes less clear; in fact, it becomes quite blurred. In this case, for example, the State contends that the appellant committed the acts of violence on the victims because they are black. It would follow that it would view the appellant’s intent as being to harm a black victim.

. In footnote 9, the majority acknowledged that some of the evidence concerning the 7-Eleven incident was presented in rebuttal. It observed, however, that the trial court had the discretion to admit that evidence even though it more properly was admissible in the State’s case-in-chief.