Browne v. State

486 Md. 169

305 A.3d 445

Francois BROWNE

v.STATE of Maryland

No. 2, Sept. Term, 2023

Supreme Court of Maryland.

November 28, 2023

Circuit Court for Baltimore City, Case No. 118232001, Charles J. Peters, Judge

Argued by Eva Shell, Asst. Public Defender (Natasha M. Dartigue, Public Defender of Maryland, Baltimore, MD), on brief, for Petitioner

Argued by Jillian Chieppor, Asst. Atty. Gen. (Anthony G. Brown, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent

Argued before: Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ.

Fader, C.J.

Maryland Rule 5-404(b) generally renders inadmissible evidence of a defendant’s “crimes, wrongs, or other acts” other than those for which the defendant is on trial (“other bad acts”), if offered for the purpose of proving the defendant’s propensity to engage in criminal or wrongful acts. The Rule also expressly recognizes that such evidence is admissible if offered for other purposes. In this case, we explore when certain other bad acts evidence qualifies for admission for purposes other than propensity.

Petitioner Francois Browne was tried for murder and child abuse in connection with the death of his girlfriend’s 17-month-old child. During the trial, over Mr. Browne’s objection, the Circuit Court for Baltimore City permitted the State to introduce evidence that, five years earlier, Mr. Browne had pled guilty to child abuse resulting in the death of his own infant son. Mr. Browne contends that the evidence should have been excluded pursuant to Rule 5-404(b). We agree. The evidence of Mr. Browne’s prior conviction was not relevant to any non-propensity issue that was in genuine dispute in the case. Accordingly, the circuit court erred in admitting it, and we must reverse and remand for a new trial.

[1,2] In reaching our holding, we reaffirm the following two points established by our caselaw. First, evidence of a defendant’s other bad acts is inadmissible to prove the defendant’s propensity to engage in criminal or wrongful acts. See, e.g., Burris v. State, 435 Md. 370, 385, 78 A.3d 371 (2013); Wynn v. State, 351 Md. 307, 316, 718 A.2d 588 (1998); Harris v. State, 324 Md. 490, 496, 597 A.2d 956 (1991); State v. Faulkner, 314 Md. 630, 633, 552 A.2d 896 (1989). Second, evidence of a defendant’s other bad acts is admissible if (and only if): (a) the evidence is offered for a non-propensity purpose that is relevant to a genuinely disputed issue in the case; (b) the defendant’s involvement in the other bad acts is established by clear and convincing evidence; and (c) the need for and probative value of the evidence is not substantially outweighed by any unfair prejudice likely to result from its admission. See, e.g., Burris, 435 Md. at 386, 78 A.3d 371; Wynn, 351 Md. at 317, 718 A.2d 588; Harris, 324 Md. at 498, 597 A.2d 956; Faulkner, 314 Md. at 634-35, 552 A.2d 896.

BACKGROUND

A. Factual Background ¹

This case arises out of the horrific death of 17-month-old Zaray Gray on the evening of Wednesday, July 18, 2018. That morning, Mr. Browne went to the Baltimore home of Whitney West, his then-girlfriend of roughly two months and Zaray’s mother. Mr. Browne had breakfast with Ms. West, Zaray, and Zaray’s two siblings, then approximately six and seven years old.²

After breakfast, Mr. Browne took all three children on a walk to a nearby playground while Ms. West stayed home. Two events that occurred during the trip to the playground played a role at trial. First, at one point, Zaray fell off the bottom of a slide and onto woodchips that covered the surface of the playground. Mr. Browne mentioned the fall in responding to questions about the day’s events during a police interview. Mr. Browne did not state that Zaray was hurt by the fall, and Zaray’s siblings both testified at trial that Zaray did not cry or appear hurt by it. Second, one of Zaray’s siblings testified that he saw Mr. Browne “yanking” Zaray’s arm as they were all leaving the playground. The sibling saw Zaray crying and making a “weird” face at the time.³

After being gone for roughly 30-45 minutes, Mr. Browne and the children arrived back at the West house. Shortly after Mr. Browne returned Zaray to Ms. West, Zaray vomited for the first time that day. Mr. Browne cleaned and changed Zaray before Ms. West put him down on her bed.

Around 4:00 p.m., Ms. West left the home with one of the other children, leaving Zaray and the other sibling with Mr. Browne. Zaray vomited twice more while Ms. West was gone. After the second time, Mr. Browne bathed and changed Zaray and put him on Ms. West’s bed. Mr. Browne then went back downstairs and told Zaray’s sibling to check on Zaray occasionally, which the child did.

Ms. West returned home sometime between 6:00 p.m. and 7:00 p.m. to find Mr. Browne downstairs on the couch and Zaray upstairs sleeping. When she went upstairs, Zaray was sleeping on his stomach and moaning in his sleep. After dinner, Ms. West again went upstairs to shower. When she returned to her room to change Zaray, she discovered he would not wake up and did not have a pulse. An ambulance took Zaray to the hospital, where he was pronounced dead at 10:35 p.m.

In August 2018, Mr. Browne was indicted for second-degree murder, first-degree child abuse resulting in death, and other crimes related to Zaray’s death. Zaray’s autopsy showed extensive injuries in his abdomen. At trial, both sides presented expert medical testimony. The State’s expert testified that Zaray’s death was caused by multiple injuries inflicted by blunt force trauma, and that his manner of death was homicide. The medical expert for the defense agreed on both points. The experts also agreed that Zaray’s death resulted from acute injuries that had been inflicted relatively recently, with the State’s expert testifying that the fatal injuries had occurred “within hours” of death and the defense expert testifying that they had occurred either the day of death or possibly the day before. Both experts also testified that Zaray had suffered older blunt force injuries to his abdomen and other parts of his body. The State’s expert testified that those older injuries had occurred within days, not weeks, before death, while the defense expert testified that the older, non-fatal injuries could have occurred “weeks to months” earlier.

B. Procedural Background

1. Motion in Limine

[3] The State filed a motion in limine seeking to introduce evidence of “other child abuse involving other victims based on the objective improbability that [Mr. Browne] would be innocently enmeshed in suspicious circumstances so frequently.” The State sought to introduce evidence of two prior incidents of death or injury to children involving Mr. Browne. First, the State sought to introduce evidence concerning the death of seven-month-old Kendall Browne, Mr. Browne’s son, in January 2013. According to the State, Kendall was hospitalized on December 31, 2012 after suffering cardiac arrest and was subsequently diagnosed with a subdural brain hematoma, anoxic brain injury, retinal hemorrhages, and rib fractures. Mr. Browne, who had only recently begun unsupervised visits with Kendall, had taken care of the infant from the evening of December 29, 2012, when he was dropped off in good health, until the incident occurred. Kendall died shortly thereafter, and his death was ruled a homicide caused by multiple blunt force head injuries. Mr. Browne was subsequently indicted and tried on second-degree murder and other charges arising from Kendall’s death. After two mistrials and an acquittal on the second-degree murder charge, Mr. Browne entered an Alford plea to first-degree child abuse resulting in death.⁴

Second, the State sought to introduce evidence concerning an injury to a three-month-old child, K.O., in November 2017, when Mr. Browne was dating the child’s mother. K.O. was diagnosed with an acute transverse femur fracture, an injury that would occur from compressive forces, as well as compressive fractures to several ribs, some of which were less than a few days old and others more. At the time, K.O.’s mother stated that Mr. Browne had stayed at the house on multiple occasions over the two weeks before the child’s injuries were diagnosed, that K.O. cried when with Mr. Browne, that she had observed Mr. Browne holding K.O. by the ribs, and that she had also observed Mr. Browne handling the child’s leg shortly before she noticed that it was swollen. Although Mr. Browne was investigated for possible child abuse, he was not charged in connection with K.O.’s injuries.

The State argued that both incidents were relevant to Mr. Browne’s trial for two permissible purposes under Rule 5-404(b). First, the State contended that, pursuant to a theory known as the doctrine of chances, it was objectively improbable that all three instances would have happened innocently, thus negating the possibility that Zaray’s death was an accident or a mistake and establishing Mr. Browne as the wrongdoer. Second, the State argued in the alternative that the evidence was relevant to prove Mr. Browne’s identity as Zaray’s killer because the circumstances surrounding the three incidents were so similar that they illustrated a common modus operandi.

On the first point, Mr. Browne responded that other bad acts evidence may be introduced to show absence of accident or mistake only when the defendant admits the act at issue but claims “that he [acted] accidentally or by mistake,” and that Mr. Browne “has made and is making no such assertion and raising no such defense.” Mr. Browne specifically disavowed any intent to argue that Zaray “might have sustained significant injury” as a result of the fall from the playground slide. With respect to the modus operandi theory, Mr. Browne argued that the other incidents had “to be nearly identical” to the charged conduct to be admissible on that basis, and that here, they were not. Thus, Mr. Browne argued, the evidence was not relevant for any purpose other than the...