Vitek v. State

VITEK, DONALD GILBERT JR. v. STATE OF MARYLAND Term, September [No. 1982.] Decided December 1982. J., Murphy, The cause argued Smith, before C. Rodowsky JJ.

Eldridge, Cole, Davidson, Couch, Bums, George Jr., Defender, E. Assistant Public with Murrell, Defender, brief, H. Public on the whom was Alan for appellant. General, Attorney Cummings,

Alexander L. Assistant General, Sachs, Attorney H. on the Stephen with whom was brief, appellee. for

Couch, J., opinion of the Court. C. delivered Murphy, J., J., J., Murphy, C. filed dissenting dissent. a and Smith, J., infra, joins. opinion at in which page Smith, Jr., Vitek, June, 1981, appellant, Donald Gilbert In Prince by jury in the Circuit Court for being after tried robbery and to County, was convicted of sentenced George’s years The years suspended. ten with four imprisonment judgment in affirmed the an Special Appeals Court of petitioned unreported per appellant curiam The for opinion. Court, the writ to consider granted to this and we certiorari of interest. public an issue important whether it reversible error for The issue this case is was prosecutor question to Vitek judge the trial allow Special Appeals Court regarding his financial status. The of permissible, stating questioning held that such pertinent part: ordinarily

"First, involving crimes in cases need for money a 'defendant’s to obtain committed a motive for money may proved be establish 1 Wharton’s Criminal that offense. committing’ (13th 1972); Evidence, § 172 see also ed. 1940). (3d 392(2)(a) § Evidence, ed. Wigmore, Second, of the assuming impropriety even fully answers appellant’s prosecutor’s questions, his any effectively inference and rebutted robbery. being That poverty was a motive case, beyond a reasonable any harmless error was doubt.” his of

Because we with of facts irrelevant to prejudicial financial status was case, of of Special reverse the decision the Court this we shall Appeals. which, parties agreed

The have to a statement facts purposes opinion, we shall summarize: this trial adduced at was that on the 13,1980,

evening December Patricia Cramer had Heights. been at shopping Iverson Mall Hillcrest o’clock, At approximately returning nine she was "fairly her car in underground well lit” parking walking lot when she saw a man towards her. As door, she opening her car the man rushed her, grabbed purse shoulder, her pushed off her her automobile, against fled with her purse. man, bystanders

Cramer and chased after the but were unable to catch him. On January array Cramer identified Vitek in photographic "as a strong alike.” subsequently look She was shown Vitek, different photographs and identified from a more recent photograph, as "the man that In did it.” addition, Cramer made an in-court identification the appellant as the man had purse. who taken her testified in his own behalf and stated he lived in Hillcrest he Heights, but denied any involvement Cramer incident.

His was that time in question, at the Inn, been with friends at Friendly near Andrews Air Force Base. trial,

During was, cross-examination the appellant in pertinent part, as follows:

"Q. date, You cut the on mustache off what sir? A. day It was I got jail. out of Q. day? Which would be what

A. The 12th of December.

Q. Vitek, you you got Mr. indicated out of 12, 1980,

on December is that correct? Yes, I did.

A. jail, it you got out of correct that Q. And when job? have a Is also true? you didn’t correct. A. That is also Vitek, therefore, you any So, Mr. did not have

Q. date? money on that Objection, [Defense Counsel]: MR. DULEY Your Honor. Honor, I Your [Prosecutor]:

MR. HARVEY the issue. goes think I think so. THE COURT: Honor, I Your want to state MR. DULEY: irrelevant; one, record, I think it’s number conclusion; two, drawing he is and number three, leading he is the witness. and number Well, you I with there. THE COURT: one, Number it’s MR. HARVEY: cross-examination. He can

THE It’s cross-examination. COURT: lead, objection on all the and I overrule the question. and answer the grounds. Go on HARVEY: BY MR. Vitek, any correct, you didn’t have Mr.

Q. Is that money? —add money, might but I large amount of

A. No me, Mr. Vitek. Q. Excuse (Interposing.) questions. asking A. You are Q. Yes. that also correct? you money, needed is

So A. That’s not correct. No. any? you need any, but didn’t

Q. You didn’t have have, I I could No. If would A. Not at that time. very easily by going to have obtained they have at Social Program Assistance familiar everybody I think most Services. They with that. you tell you about it when get probation. place There is a right here, out Parole, Probation and you and if do need anything, I think it’s $150 or and food $15 stamps, you if I need it. had place to stay. I had people, and I had no need go out and do anything as insane attacking as someone for a purse.” appellant

The contends that it was reversible error to allow this line of questioning relating to his financial status because it was prejudicial inasmuch as "[absolutely no direct link was shown between Appellant’s alleged indigency and the robbery.” appellant argues further credibility that his by was undermined "the suggestion that fhe] inwas a class of special individuals with a affinity for addition, crime.. ..” In any probative asserts that value of this line of questioning undoubtedly outweighed by prejudicial effect.

While conceding that evidence of indigency is not always admissible, argues the State it was allowable here because the appellant "opened the door” to such questioning by volunteering the fact that just gotten he had out of and because prosecutor proper laid a foundation asking before the appellant if he needed money. The State contends that judge the trial did not abuse his discretion allowing cross-examination concerning the appellant’s financial need. It is the State’s position that because "evidentiary facts of financial need clearly are relevant to show part motive on the ofthe accused to commit direct, indirect, crime for or financial gain,” evidence ofthe appellant’s financial situation was relevant. The evidence was not merely that impoverished; rather, the evidence showed that he was unemployed and had just been released jail.1 from object 1. While defense counsel did not to the reference that Vitek had just gotten jail, properly out of we note that the trial court instructed

jury guilt [could determined] that the "defendant’s . . . and that evidence of a or innocence not be convictions,” prior on the basis of other criminal turpitude go[es] conviction of a veracity....” . . . "crime of moral to the defendant’s 40 "[t]he allowance or disallowance

It is well established normally is left to questions on cross-examination of certain State, Beasley trial v. 271 judge,” the sound discretion of the (1974), 521, 527, 501, A.2d 504 "and the absence Md. 318 interfered with on will not be of an abuse of discretion State, 561, 566, 340, Md. 45 A.2d 344 Corens v. 185 appeal.” (1946). Nevertheless, that the has met appellant we believe an abuse of discretion” in this establishing "the burden of 292, State, 22, 28, A.2d 295 394 284 Md. instance. Mathias 1996, 60 denied, (1978), 441 99 S.Ct. cert. U.S. (1979). that it was error to allow L.Ed.2d 375 We conclude as to the financial situation of prosecutor inquire "beyond a and because we are not convinced appellant, way this evidence in no "contributed reasonable doubt” that verdict,” say the guilty the rendition of the we cannot 638, 659, Dorsey v. 276 Md. error was harmless. (1976). A.2d financial appellant

We with the that evidence of his case and that its status was irrelevant under facts of this outweighed any effect far value. As prejudicial probative Dorsey, supra: we observed admissibility of evidence in a "The real test proved criminal 'the connection of the fact case is as evidence which has a charged, with the offense tendency natural to establish the fact issue.’ [Ojur elementary stated it to be 'an predecessors evidence, admissible, be rule that to be must tend either to relevant to the issues must which thus disprove establish or them.’ Evidence is at which it probative proposition not of the ” 276 Md. at directed is deemed 'irrelevant.’ omitted). (Numerous A.2d citations at 668-69. was up jury appellant It is to the to determine whether the We believe guilty robbery charged as the indictment. the fact irrelevant to the recently had been released from used to main or innocence and could not be guilt issue importantly, prejudicial infer it was because motive. Most out, brought once the inference was the burden shifted to the and, money therefore, to show that he did not need had no motive. Appeals Michigan As the Court of observed Andrews, People 115, v. App. 867, 88 Mich. 276 N.W.2d (1979): 868-69 — girlfriend "Whether defendant or his for that —

matter poor or is legally irrelevant guilt issue of or innocence. This Court refuses to 'assume wealth exerts a greater attraction on the than poor on the rich’. To do so 'effectively would establish a two-tiered justice standard of and demolish pro tanto the presumption system of innocence’. justice Our guarantees and its constitutional are simply too fragile permit type this of unfounded character assassination. As in People Henderson, stated (1978): 447, 454, 22, App. Mich. 264 N.W.2d 25-26 'The motive for a theft offense seldom requires explanation. The motive is so pervasive proving that its will establish little more than the defendant’s typicality; such proof increases but little the likelihood that this defendant guilty is charged offense. If poor and rich share a common and obvious ’”

motive, (Footnotes then why prove poverty?

omitted). Stewart, Accord State v. 96, Super. N.J. 392 A.2d (1978) (generally improper to use a defendant’s poverty motive). to establish a criminal say

This is not to of an accused’s financial However, situation is never admissible. we with the admissible, appellant that in order for such evidence to be there something "general suspicion” must be more than a person that because a he is poor, going commit a crime. We normally hold that while it is not allowable to show impecuniousness accused, of an such evidence would be See, special e.g., admissible under circumstances. Gross v. (1964), 235 Md. 201 A.2d 808 where the defendant was convicted of murder in the degree first imprisonment. sentenced to life Gross was employed as an exotic dancer in a bar and lived in the hotel where the murder occurred. The trial court allowed employer Gross had indicated to her that she was looking for wires,” i.e., money” "live "men with and that she "would room, take [her] them to hotel and let them get then [she] would later visit them.” 201 A.2d at 817. We properly testimony, held that the trial court had allowed the stating pertinent part: fact,

"If believed the triers of it tended to show value, that [Gross] wanted or articles of Moreover, possible killing motive for the doctor. tended to establish a part consciousness on the of [Gross] of a course of conduct which the State [Gross]; actually pursued by namely, contended was having register doctor at her and hotel later State, him at visiting Compare his room. Pearson v. 1, 13, State, 182 Md. and v. Westcoat 231 Md. 367.” Id.2 testimony

Also admissible was the of the wife of the hotel " manager quite Gross had 'mentioned she had done . .. ” Id., things money.’ 444-45, few in life .. . for at 201 A.2d at 817. We stated: was, think, testimony

"The properly we admitted. The place very shortly conversation took before the theory It killing. was the State’s that the appellant had lured the purpose doctor to her hotel for the of him, killing taking whatever upon he had person, obtaining his his automobile. It was part of a chain of evidence which tended to establish 'money conscious,’ that appellant was and that she Pearson, guilty witness rape to 2. In found of and sentenced the defendant was accepting hanged. prosecuting had admitted be The husband of the night alleged Court held that $5 from Pearson on the of the attack. This earnings bank account or as to his as to the state of the husband’s "clearly guilt of or was inadmissible and innocence of the irrelevant” to the issue Pearson’s rape charge. acquire things to of value. might robbery resort 'The real test supra: in Pearson As stated of the fact admissibility proved is the connection of has a offense as evidence which charged, with the at issue tendency establish fact natural conversation, be admitted.’ We think should adduced, considered with the other evidence when robbery to establish as the tendency’ had a 'natural 445, 201 A.2d killing.” motive of doctor’s at 817. States, 168 U.S. v. United 18 S.Ct.

Cf. Williams (1897) (evidence deposited in bank L.Ed. of sums Stewart, case); in extortion defendant held inadmissible (evidence unemployment and lack supra, of defendant’s case). robbery funds held inadmissible in in that case is from Gross distinguishable The instant justify special there no which would were circumstances financial status. admitting appellant’s recently fact had been that Vitek nor not a "course conduct” released from is evidence of tendency” "natural to establish a motive evidence of a robbery. from other

The State has cited numerous cases jurisdictions in of the support of its contention that evidence appellant’s financial admissible show motive status is cases, robbery. reviewing After these we conclude they distinguishable the basis that there was are all on "desperate” money a for than evidence of need other Armstrong, mere In State v. 170 unemployment. fact 256, (1976), Armstrong Mont. 552 P.2d had been 616 robbery and by jury convicted homicide and deliberate years years. sentenced to consecutive terms of 100 and 40 that had showing Armstrong The court admitted evidence least two job, from had indicated to at been fired his recently had written money, without that he was the witnesses them, had been to cover sufficient funds checks without In evening in game question. poker in a on involved Armstrong had testimony addition, the court allowed 44 benefits,

applied for welfare during course of which he demeanor, an displayed angry and that he had been carry known to weapons loaded his house. The Superior Court held that such evidence "taken as a whole tends to defendant, crimes, establish the fact that just prior to the "[sjuch desperate money,” and that circumstantial may provide an inference for the motive of the Id., matter, crimes.” In only 552 P.2d at 620. the instant which evidence from motive could be inferred was that Vitek recently was unemployed jail. and had been released from nothing There was to indicate a "desperate” money. need for Similarly, Kentucky, Redd v. Commonwealth of 1979), (Ky. S.W.2d 704 Ct. App. court held that it was proper questioning to allow as to whether Redd was not, employed and if how he supported himself because "[i]f desperate money, [he were] it could robbery.” Id., indicate a motive for at 707. In People Jackson, 392, (1977), 77 Mich. App. 258 N.W.2d 89 Jackson testified on cross-examination "that on the evening of robbery he had sold a to a patron watch bar in order to raise money enough purchase drinks for himself and two Id., companions.” 258 N.W.2d at 92. The appellate court held involved, that "where a theft offense is the prosecutor may prove showing a motive the defendant ... was acutely money immediately short of before the offense Id., occurred.” 258 N.W.2d at 93. In People, Moss v. 92 Colo. (1932), P.2d the defendant gambled money was admissible to show a need for and that may have murdered the victim in order to rob her since he was aware that kept fairly large "she sum of Tierney, her In 424 F.2d house.” 18 P.2d at 318. U.S. v. (9th denied, 1970), Cir. cert. 400 U.S. 91 S.Ct. (1970), 27 L.Ed.2d 87 aiding the defendant was convicted of and abetting counterfeiting of federal reserve notes. Tierney admitted participating counterfeiting, but claimed he had acted under duress. There was evidence that Tierney president company of a mail order and that the counterfeit notes were printed company’s printing on the press. circumstances, Under these the appellate court

45 the he manufactured testify that Tierney to allowed money for his more he needed notes because counterfeit Ill. 2d Fleming, App. 54 in v. Lastly, People business. it was argued that (1964), defendant

203 N.E.2d 716 Id., indebtedness.” [his] mention of "the mere error to allow closing argument, prosecutor During at 719. N.E.2d $10,000 spite bond Fleming posted had pointed out that $1,400. The trial he was in debt for he had stated of the fact objection and instructed defendant’s judge sustained court held appellate disregard the comment. jury to instruction. cured the court’s any error had been Fleming’s mention” of "the mere They disagreed that may have been "[a|]though was error indebtedness with the conjunction improper to discuss the indebtedness did not court appellate . . . .” Id. While posting of bail issue, that there of this we note elaborate their discussion his Fleming. One of against was substantial evidence him Fleming previously had asked companions testified robbery; testimony of others showed in the participate days prior two Fleming gun had obtained a in the as the one used robbery gun and this was identified driver, and, been as a bus robbery; Fleming employed as well as its with that was robbed depot was familiar which, showed, and had a uniform procedures, robbery. 203 N.E.2d wearing at the time of the 718. that of analogous to judice

We believe the case sub (2nd 1966), Cir. Mullings, 364 F.2d 173 United States showing court held that appellate where the than earnings had net of less Mullings used narcotics and Judge Chief prove motive. per week was inadmissible $65 pertinent part: Lumbard stated show a is admissible to

"Although lack of crimes, Wigmore, motive for some possible (3d 1940), in the chain § ed. this case Evidence There was no speculative. of inferences is too narcotics, or what Mullings evidence how often took him, or maintenance a habit would cost of such that he was unable to obtain narcotics because of a only the shortage money. of In effect evidence shows have lacked and therefore might — have the crime might had a motive commit which inferred that he did so. We judge from the remote; money being think this the need for is too the motivation can be no better. speculative had, it probative value this evidence was Whatever outweighed by prejudicial place its effect. It would the mere his addiction far too much stress on fact of (Emphasis in original). alone.” at 175-76. Here, inference Mullings, as in of motive because Vitek just recently and had been released from remote,” and "too and the evidence speculative” is "too admitted. improperly Special of of

Accordingly, judgment the Court is reversed. Appeals Special of

Judgment the Court case Appeals reversed remanded to that Court with reverse instructions judgment entered in the Circuit George’s County for Court Prince for and remand to Court trial. new paid by George’s to be Prince Costs County. J., dissenting:

Murphy, C. reasoning Although fully majority’s I share the do not that, holding I do concur with process, case, by allowing trial judge erred circumstances this However, I money. since find on Vitek’s need questioning doubt, beyond I a reasonable the error be harmless respectfully dissent. virtually are cases unanimous

The authorities and our

47 admitted, e.g., to be Gross of motive allowing (1964); 429, 445, 201 A.2d 817 29 Am. Md. (1967); Perkins, Criminal Law § 363 R. 2d Evidence Jur. (2d 1969), the lack of or including need for 7, § ed. Ch. pecuniary gain. committed for money as a motive for crimes (1971 1982); §§ Annot., & Supp. See A.L.R.3d (13th § 172 Torcia, ed. 1 1972). Criminal Evidence C. Wharton’s disapprove of Even those authorities which (3rd 392(2)(a), § ed. 2 J. practice, Wigmore, see Evidence 1940), such evidence motive do so not because irrelevant, is outweighed but its relevance rather because may impecunious upon have prejudicial effect clear, a majority As the makes desire defendants. universal, virtually regardless is financial pecuniary gain be status, impoverishment need not general and a state gain crimes. pecuniary a motive shown establish However, special that "under majority the concedes circumstances,” may of a defendant the financial condition admissible, instance, where, is a "desperate” be there money. employment that mere or need for I the little person financial status of a of such additional value, in probative of motive given presumption crimes, in pecuniary gain it not be admitted should possible of the attach to those who light prejudice would cannot rebut the inference of need. When evidence financial proffered, of financial status is the court should determine will show that there is either a whether evidence desperate money special need for or some circumstance or which makes defendant’s financial status desire for money special before evidence is relevance such admitted. (1964). See, State, Md. e.g., Gross v. 201 A.2d 808 Here, utterly prosecutor’s questioning line of failed need, any less a demonstrate there was financial much need, desperate sustaining and there was in not error objection. course, error,

Of order to constitute reversible improperly prejudice admitted must work some §§

the defendant. See cases cited 36 A.L.R.3d 839 14-18. voluntarily Here the defendant jury disclosed to the that he just been A jail. question released from further on his employment objected to, status was not nor has Vitek made Rather, revelation of his employment status an issue. is a question money about the need for to which Vitek objected, and to which he devotes argument. the bulk of his However, simply there is no evidence or inferences that reasonably could be drawn from the evidence in this case that Vitek needed at the time of the crime. The only While, evidence adduced was that Vitek had no such need. circumstances, in the inquiry improper, itself was I am unwilling to conclude that the mere asking question of the warrants reversal of the conviction. I am able to declare beyond a reasonable doubt that there was no prejudice to Vitek within the contemplation of the harmless error rule Dorsey enunciated in 276 Md. 350 A.2d 665 (1976). I would affirm the conviction.

Judge Smith has joins authorized me to state that he me expressed the views herein.

Case Details

Case Name: Vitek v. State

Court Name: Court of Appeals of Maryland

Date Published: Dec 15, 1982

Citation: 453 A.2d 514

Docket Number: [No. 48, September Term, 1982.]

Court Abbreviation: Md.