LEVINE, J., delivered the opinion of the Court.
The question presented here is whether appellant should have been granted separate trials on four independent and distinct offenses, where evidence as to each individual offense would not have been mutually admissible at separate trials. We granted certiorari after the Court of Special Appeals, in affirming appellant's convictions by a jury in the Criminal Court of Baltimore under each of four criminal informations, held in McKnight v. State, 33 Md.App. 280, 286, 364 A.2d 116 (1976), that the trial court had not abused its discretion in denying a severance of the cases. We reverse.
During a one-month period in late 1974, a series of four robberies was committed within the same neighborhood of Baltimore City in which appellant and each of the victims resided. On each occasion, the victim was a solitary male; in three of the four instances, the victim's trouser pockets were
In addition to denying both his participation in the four crimes and his presence on the immediate scene of each, appellant offered alibi defenses to the first two, which he corroborated with the testimony of several witnesses. He also produced a police officer who impeached the testimony of the first prosecuting witness in certain material respects. With regard to the third and fourth episodes, appellant simply testified as to his whereabouts on those two occasions, but without the benefit of any corroborating witnesses.
Because appellant's pretrial motion for separate trials had been denied, he requested at the outset of the trial that a cautionary instruction be given to the jury. The trial judge complied:
At the conclusion of the evidence, the court also included a similar statement in its advisory instructions to the jury.
Each of the four criminal informations filed by the State's Attorney contained eight charges ranging from armed robbery to the use of a handgun in the commission of a felony. The jury found appellant guilty of robbery and assault in the first case; robbery with a dangerous or deadly weapon in the second case (involving the shears); and robbery in the third and fourth cases.
In affirming the convictions, the Court of Special Appeals held that there was no abuse of discretion in the denial of the severance. It rested this decision on the "similarity of circumstances and of the conduct of the appellant in the perpetration of the crimes ..." McKnight v. State, 33 Md. App. at 285-86. The court recognized that "the evidence of guilt in each individual crime charged here would not be mutually admissible at separate trials," id. at 285, despite its conclusion that the crimes "formed part of a general scheme of unlawful conduct," id. at 284. This it found from the fact that three of the four victims were men in their late 50's or 60's; that the victims and appellant resided in the same neighborhood; that three of the victims recognized appellant; and that the modus operandi of the assailant on the four occasions was similar.
Joinder and severance of criminal trials are governed in this state by Maryland Rule 745,
Rule 745 c, in relevant part, is patterned on Rule 14 of the Federal Rules of Criminal Procedure. Under the Maryland rule, as is true under its federal counterpart, severance is committed to the discretion of the trial judge. Baumgartner v. State, 21 Md.App. 251, 253, 319 A.2d 592, cert. denied, 272 Md. 737 (1974); DiNatale v. State, 8 Md.App. 455, 458, 260 A.2d 669 (1970); Jennings v. State, 8 Md.App. 312, 315, 259 A.2d 543 (1969).
The standard established by Rule 745 c is merely a restatement of the test applied at common law:
Accord, Wanzer v. State, 202 Md. 601, 608, 97 A.2d 914 (1953); see State v. McNally, 55 Md. 559, 563-64 (1881); State v. Bell, 27 Md. 675, 678 (1867). It is particularly appropriate that Rule 745 c be patterned on Federal Rule 14, since the early federal practice was also rooted in the common law. See e.g., McElroy v. United States, 164 U.S. 76, 80-81, 17 S.Ct. 31, 41 L.Ed. 355 (1896); Pointer v. United States, 151 U.S. 396, 403, 14 S.Ct. 410, 38 L.Ed. 208 (1894).
The rationale traditionally offered to justify joinder of similar offenses is that a single trial effects an economy, by
Similar offense joinder has been criticized as being prejudicial to the defendant in three important respects. Drew v. United States, 331 F.2d 85, 88-89 (D.C. Cir.1964). First, he may become embarrassed, or confounded in presenting separate defenses. McElroy v. United States, 164 U.S. at 80-81; Pointer v. United States, 151 U.S. at 403; Simmons v. State, 165 Md. at 165. Secondly, the jury may cumulate the evidence of the various crimes charged and find guilt when, if the offenses were considered separately, it would not do so. At the very least, the joinder of multiple charges may produce a latent hostility, which by itself may cause prejudice to the defendant's case. Thirdly, the jury may use the evidence of one of the crimes charged, or a connected group of them, to infer a criminal disposition on the part of the defendant from which he may also be found guilty of other crimes charged. It is this form of prejudice which concerns us here, although there is much force in appellant's argument that he was also affected by the two other types of prejudice. In any given case of similar offense joinder, therefore, the trial judge must balance the likely prejudice caused by the joinder against the important
Two lines of authority have emerged from the cases seeking to reconcile the conflicting considerations of prejudice and economy within the framework of discretion accorded the trial judge. The first holds that a severance should be ordered where there has been a joinder of similar but unrelated offenses, if the evidence as to each crime would not be mutually admissible at separate trials. McElroy v. United States, 164 U.S. at 81; United States v. Foutz, 540 F.2d at 738; State v. Jonas, 169 Conn. 566, 363 A.2d 1378, 1381-82 (1975); People v. Barnett, 66 Mich.App. 99, 238 N.W.2d 208, 209 (1975); Lambert v. State, 73 Wis.2d 590, 243 N.W.2d 524, 531 (1976); see Grandison v. State, 32 Md.App. 705, 710-12, 363 A.2d 523 (1976), cert. dismissed, 280 Md. 259 (1977) (affirmance of trial court decision denying severance on ground that evidence would be mutually admissible); People v. Martinez, 549 P.2d 758, 760-61 (Colo. 1976); State v. Brower, 289 N.C. 644, 224 S.E.2d 551, 561-62 (1976); State v. Sanchez, 14 Or.App. 234, 511 P.2d 1231, 1233-34 (1973); Reagan v. State, 525 S.W.2d 683, 685 (Tenn. Crim. App. 1974).
The reasoning behind the rule permitting a joint trial of crimes where the evidence would be mutually admissible is evident. Where evidence of one crime would be admissible at a separate trial on another charge, a defendant will not suffer any additional prejudice if the two charges are tried together. It is equally clear, however, that where offenses are joined for trial because they are of similar character, but the evidence would not be mutually admissible, the prejudicial effect is apt to outweigh the probative value of such evidence.
Another line of cases has taken a different position. This view was apparently first enunciated by Judge Learned Hand in United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307 U.S. 622 (1939), and refined in Drew v. United States, 331 F.2d at 91-92, where the court said:
See Arnold v. United States, 358 A.2d 335, 338 (D.C. App. 1976); Bell v. United States, 332 A.2d 351, 353-54 (D.C. App. 1975). But cf. State v. Orsborn, 555 P.2d 509, 514-15 (Mont. 1976) (court cites Drew but evidence would have been mutually admissible in any event).
The flaw in the test articulated by the Drew court is that it overlooks the reason underlying the "other crimes" rule, which excludes evidence relevant to proof of criminal disposition because such evidence is generally more prejudicial than probative. This exclusionary rule is designed as a matter of policy to prevent prejudice to defendants; if this rationale is valid, prejudice will result from joinder whenever the rule itself is violated, even though the evidence is separable. As the court noted in United States v. Foutz, 540 F.2d at 738 n. 5:
On the record before us, we conclude that the evidence offered to prove appellant's guilt on each of the four robbery charges would not have been mutually admissible against him had he been prosecuted in separate trials. We applied the other crimes rule in Ross v. State, 276 Md. 664, 669, 350 A.2d 680 (1976), where we said:
As we there said, "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...." Id. We noted additional reasons for the 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." Id. Thus, even though evidence tending to prove the defendant's
The exceptions to the exclusionary rule, as we also pointed out in Ross v. State, 276 Md. at 669-70, are virtually as prominent as the rule itself. The more frequently mentioned exceptions admit evidence tending to establish motive, intent, absence of mistake, common scheme or plan, and identity. Id. The State, however, relies upon a further exception known as the "handiwork" or "signature" exception for its contention that the evidence as to each of the four offenses charged here would have been mutually admissible at separate trials, and that therefore appellant suffered no prejudice from the trial judge's refusal to grant a severance. The State, with an obvious view to Ross v. State, 276 Md. at 670, argues that the four offenses "were so nearly identical in method as to earmark the commission of those robberies as the handiwork of the Appellant." The signature exception has been described in this manner in C. McCormick, Evidence § 190 at 449 (2d ed. 1972):
We do not think that the four crimes charged here were, under the evidence, "so nearly identical in method as to earmark them as the handiwork of the accused"; nor were they "so unusual and distinctive as to be like a signature." Id. The evidence established that all four victims were solitary males, that they and appellant lived in the same neighborhood, which was in the heart of a thickly populated area of Baltimore City, and that in three of the four
We conclude that the evidence produced here to prove appellant's guilt under each of the four charges would not have been mutually admissible at separate trials for the same offenses. We hold, therefore, that he was sufficiently prejudiced by the denial of his motion for severance to constitute that denial an abuse of discretion, and thus mandate a reversal.
The State urges that any prejudice resulting from the joint trial of the four robberies was obviated by the cautionary instructions in which the trial judge advised the jury to consider each offense separately. This argument is of dubious merit in light of our conclusion that the evidence as to each offense would not have been mutually admissible at separate trials. The effectiveness of such limiting
The practice of issuing limiting instructions is, of course, not unique to joint trials, but is commonly employed where evidence is admitted for a restricted purpose or when inadmissible evidence has been heard by the jury. Recognizing that it is unrealistic to expect jurors to ignore seemingly relevant evidence which they have already heard, eminent jurists have been among the severest critics of the curative instruction. See e.g., Delli Paoli v. United States, 352 U.S. 232, 247, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957) (Frankfurter, J., dissenting) ("The fact of the matter is that too often such admonition against misuse is intrinsically ineffective"); Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (Jackson, J., concurring) ("The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction."); Nash v. United States, 54 F.2d 1006, 1007 (2d Cir.), cert. denied, 285 U.S. 556 (1932) (Learned Hand, J.) ("... the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody's else."); People v. Aranda, 63 Cal.2d 518, 407 P.2d 265, 272, 47 Cal.Rptr. 353 (1965) (Traynor, C.J.) ("A jury cannot `segregate evidence into separate intellectual boxes.'").
As we have recognized, the law frequently permits the jury to hear evidence admitted for a limited purpose, and presumes that the jury will comply with an appropriate instruction. But we are unwilling to make that assumption in circumstances such as these, where we have said that the prejudicial effect of the evidence heard by the jury outweighs its probative value. In the context of this case, where we have already rejected the "simple and distinct" test, the cautionary instruction simply cannot cure the prejudice.
Judgment of the Court of Special Appeals reversed; remanded with instructions to reverse the judgments of the Criminal Court of Baltimore and to remand for new trials; costs to be paid by the Mayor and City Council of Baltimore.