Browne v. State ( 2023 )

Francois Browne v. State of Maryland, No. 2, September Term, 2023.
EVIDENCE – MD. RULE 5-404(b) – RULE OF EXCLUSION
Under Maryland Rule 5-404(b), evidence of other crimes, wrongs, or other acts (“other bad
acts”) is not admissible to prove the character of a person to show action in conformity
therewith. The proffering party bears the burden of showing that the evidence is specially
relevant to a contested issue in the case other than propensity.
EVIDENCE – MD. RULE 5-404(b) – IDENTITY AND MODUS OPERANDI
Evidence of other bad acts may be admissible under Maryland Rule 5-404(b) to prove the
identity of the accused as the perpetrator of a charged crime if the evidence shows a certain
modus operandi attributable to the accused was used in the charged crime and other crimes
to which the accused is connected. In this case, that the accused was convicted of the fatal
beating of a child several years prior did not amount to a modus operandi allowing the
inference that the same person also fatally beat the child victim in this case.
EVIDENCE – MD. RULE 5-404(b) – CONTESTED ISSUE
Evidence of other bad acts may be admissible only if, among other requirements, it is
relevant to some genuinely contested issue in the case other than the defendant’s propensity
to commit crime. Whether an issue is “contested” is determined in the context of the
evidence presented and the arguments made. Here, where: (1) the defendant affirmatively
disavowed an intent to rely on a defense of accident; (2) the defendant did not raise any
defense or assertion of accident at trial; and (3) expert witnesses for the State and the
defendant agreed that the victim’s death was a homicide caused by blunt force trauma, lack
of accident was not a genuinely contested issue in the case.
EVIDENCE – MD. RULE 5-404(b) – DOCTRINE OF CHANCES
Other bad acts evidence is inadmissible under Maryland Rule 5-404(b) when offered to
show propensity to commit crime. The “doctrine of chances” theory, under which other
bad acts evidence is said to be specially relevant based on the objective unlikelihood that
two similar events occurred by chance, as opposed to through human intervention, is not
an independent theory of special relevance. Here, where the State sought to show that
because the defendant was previously convicted of a similar intentional crime, it is
objectively unlikely that the defendant was not responsible for the intentional crime
charged, that is impermissible propensity reasoning. Accordingly, the circuit court abused
its discretion in admitting the other bad acts evidence at issue.
Circuit Court for Baltimore City
Case No. 118232001
Argued: September 8, 2023
IN THE SUPREME COURT
OF MARYLAND
No. 2
September Term, 2023
______________________________________
FRANCOIS BROWNE
v.
STATE OF MARYLAND
______________________________________
Fader, C.J.,
Watts,
Hotten,
Booth,
Biran,
Gould,
Eaves,
JJ.
______________________________________
Opinion by Fader, C.J.
Watts, J., dissents.
______________________________________
Filed: November 28, 2023
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic.
2023-11-28 15:33-05:00
Gregory Hilton, Clerk
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.
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 (2013); Wynn v. State, 351 Md. 307, 316 (1998); Harris v. State, 324
Md. 490, 496 (1991); State v. Faulkner, 314 Md. 630, 633 (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; Wynn, 351 Md. at 317; Harris, 324 Md. at 498; Faulkner, 314 Md. at
634-35.
BACKGROUND
A. Factual Background1
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
1
The facts presented in this section are based on the testimony and other evidence
introduced at trial.
2
Zaray’s siblings were seven and eight years old, respectively, at the time of trial,
which took place approximately 13 months after Zaray’s death. We will not name Zaray’s
siblings in this opinion in consideration of their privacy.
2
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
3
The two siblings provided slightly different accounts of their trip home. According
to the one who testified about Mr. Browne “yanking” Zaray’s arm, all three siblings and
Mr. Browne walked home after that. According to the other, Mr. Browne and Zaray took
a shortcut to get home while the other two siblings returned the same way they had come.
The difference is not material to our resolution of this appeal.
3
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
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
4
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
4
An Alford plea is a guilty plea in which a defendant concedes that there is sufficient
evidence for a jury to find guilt beyond a reasonable doubt but does not admit to committing
the crime. Smith v. State, 484 Md. 1, 23-24 (2023).
5
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,
6
Mr. Browne argued, the evidence was not relevant for any purpose other than the
impermissible one of showing Mr. Browne’s propensity to commit crime.
Following a hearing, the court granted the State’s motion with respect to evidence
of Kendall’s death, finding that it was relevant to show Mr. Browne’s “intent and
knowledge,” to establish his identity as Zaray’s killer, and to rebut any indication that
Zaray’s death was an accident. The motions court found that whether an accident occurred
was genuinely contested because Mr. Browne had told the police that Zaray had fallen off
the slide. The court also concluded that the State had satisfied the other criteria for
admission, including proof of the incident by clear and convincing evidence and that any
risk of unfair prejudice did not substantially outweigh the need for and probative value of
the evidence. By contrast, the court concluded that the State could not introduce evidence
concerning the alleged abuse of K.O. because the State had not met its burden of producing
clear and convincing evidence that the abuse had occurred.
2. Trial
The State’s presentation of evidence at Mr. Browne’s trial took approximately three
days. The State spent the better portion of one of those days providing the details of
Kendall’s death. The State’s presentation of evidence included the direct examination of
two witnesses, a police sergeant who investigated the crime and the doctor who performed
Kendall’s autopsy, as well as the introduction of medical records and other documents.
The evidence was consistent with the State’s proffer in connection with its motion in limine
as described above, including that Kendall had died of multiple injuries, the most serious
7
of which were to the head, that his injuries resulted from blunt force trauma, and that the
manner of death was homicide.
The jury found Mr. Browne guilty of second-degree murder and first-degree child
abuse resulting in Zaray’s death. Mr. Browne noted an immediate appeal.
3. Motion for New Trial
Approximately a year after trial, Mr. Browne’s appellate counsel discovered that
digital copies of two videos that were not admitted into evidence at trial had been included
on a disk that was provided to the jury along with all of the admitted exhibits. The disk,
marked State’s Exhibit 3, was inadvertently sent to the jury room after it was substituted
for the original Exhibit 3 disk during trial. The unadmitted videos included a recording of
a formal police interview with Zaray’s father, Denardo Gray, and body-worn camera
footage from a detective’s visit to Ms. West’s home to recover evidence six days after
Zaray’s death. The record contains no indication that the jurors played, viewed, or
otherwise became aware of the unadmitted videos.
In January 2021, Mr. Browne filed a motion for a new trial on the ground that the
existence of the disk in the jury room constituted newly discovered evidence warranting a
new trial. The trial court denied the motion, finding that defense counsel had not acted
with due diligence because if counsel had checked the disk before it had been sent to the
jury, as the court had instructed counsel to do, “the error would have been easily found and
corrected.” Mr. Browne appealed that ruling as well.
8
4. Decision of the Appellate Court of Maryland
The Appellate Court consolidated the two appeals, and ultimately affirmed in an
unreported 2-1 opinion. Browne v. State, No. 1892, Sept. Term 2019, No. 0495, Sept.
Term 2021, 2022 WL 17490062, at *40, 50 (Md. App. Dec. 7, 2022). The Appellate Court
held that the evidence of Kendall’s death was admissible under the doctrine of chances. Id.
at *40. The court treated that doctrine as an independent theory of relevance that allowed
the State to bypass the requirements of Rule 5-404(b) and this Court’s test for the
admissibility of “other bad acts” evidence set forth in State v. Faulkner, 314 Md. 630(1989), and its progeny. Browne, 2022 WL 17490062, at *40. According to the
intermediate appellate court, that test was inapplicable because the “focus” of attention
under the doctrine of chances is the objective improbability of the occurrence of events,
not the defendant’s character. Id. at *40. The Appellate Court stated that, “as an alternative
or back-up holding,” the evidence of Kendall’s death was also admissible to show identity
and absence of accident or mistake, although the majority opinion did not provide any
analysis or explanation on that point. Id.
The Appellate Court also affirmed the trial court’s denial of Mr. Browne’s motion
for a new trial. Id. at *50. The court agreed with the trial court that Mr. Browne did not
satisfy the standard for a new trial based on newly discovered evidence because he had
failed to exercise due diligence in discovering the unadmitted videos on the disk. Id.
In dissent, Judge Arthur would have held that the evidence of Kendall’s death was
inadmissible under Rule 5-404(b). Id. at *50-51 (Arthur, J., dissenting). The dissent
9
reasoned that the evidence was not relevant to establish a modus operandi because although
there may be some generic similarities between Kendall’s and Zaray’s deaths, the
circumstances were not so similar as to allow the inference that the same person killed both
children. Id. at *58. Judge Arthur also concluded that the evidence was not admissible to
show an absence of accident because whether Zaray died by accident was not genuinely in
dispute at trial. Id. at *61. As to the doctrine of chances, Judge Arthur determined that the
theory did not support Mr. Browne’s identity as the perpetrator except through
impermissible propensity reasoning. Id. at *68. Because Judge Arthur would have
reversed the conviction and granted Mr. Browne a new trial on those grounds, he did not
reach the issue of the trial court’s resolution of the motion for a new trial. Id. at *72.
Mr. Browne filed a petition for a writ of certiorari, which we granted. Browne v.
State, 483 Md. 265 (2023).
DISCUSSION5
Evidence of other bad acts is admissible only if: (i) it is relevant to some contested
issue in the case other than the defendant’s propensity to commit crime; (ii) proven by clear
5
The petition for a writ of certiorari asks this Court to decide six questions, the first
four of which concern the admissibility of the other bad acts evidence. Those questions
include whether the Appellate Court was correct to consider departing from the traditional
analysis under Rule 5-404(b) without briefing on the issue; whether the Appellate Court’s
refashioned analytical framework should be adopted by this Court; whether the Appellate
Court erred in recognizing the doctrine of chances theory and applying it in this case; and
whether the trial court erred and abused its discretion in admitting the evidence of
Kendall’s death. We will address and resolve the admissibility of the other bad acts
evidence using our well-established framework, which we reaffirm in this opinion, and
which will render it unnecessary to reach the other questions concerning the Appellate
10
and convincing evidence; and (iii) where the need for and probative value of the evidence
is not outweighed by the risk of unfair prejudice. Faulkner, 314 Md. at 634-35. The State
argues that the evidence it introduced concerning the death of Kendall was relevant to three
contested, non-propensity issues: (1) Mr. Browne’s identity as the perpetrator, by revealing
a modus operandi demonstrating that the same individual committed both crimes;
(2) whether Zaray’s death was caused by an accident; and (3) Mr. Browne’s identity as the
perpetrator, by showing the objective improbability of him being innocently involved in
the deaths of two infants by blunt force trauma. We will begin with an overview of the
well-established framework Maryland courts apply to other bad acts evidence and then
address each of the State’s theories in turn.
I. MARYLAND RULE 5-404(B)
A. Legal Background and Analytical Framework
“Maryland Rule 5-404(b) embodies the common law rule of ‘other crimes
evidence.’” Merzbacher v. State, 346 Md. 391, 406 (1997). The Rule states:
Evidence of other crimes, wrongs, or other acts . . . is not admissible to prove
the character of a person in order to show action in the conformity therewith.
Such evidence, however, may be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, common scheme or plan,
knowledge, identity, absence of mistake or accident, or in conformity with
Rule 5-413.
Court’s approach. The fifth and sixth questions presented address the motion for a new
trial, asking both what “due diligence” requires in the context of Rule 4-331(c) and whether
the trial court abused its discretion in denying the motion for a new trial based on newly
discovered evidence. Because we will order a new trial based on the improper admission
of the other bad acts evidence, we will not reach Mr. Browne’s questions regarding the
motion for a new trial.
11
Md. Rule 5-404(b). Each sentence of the Rule serves a different function. The first
provides that other bad acts6 evidence is inadmissible when it is offered “to suggest that
because the defendant is a person of criminal character, it is more probable that [the
defendant] committed the crime for which [the defendant] is on trial.” Streater v. State,
352 Md. 800, 806 (1999) (quoting John W. Strong, McCormick on Evidence § 190, at 798
(4th ed. 1992)). The second sentence clarifies that, notwithstanding the inadmissibility of
other bad acts evidence to prove propensity, such evidence “may be admissible for other
purposes,” including, but not limited to, the enumerated purposes. Md. Rule 5-404(b).
The rationale behind the exclusion of other bad acts evidence when it is offered to
show propensity is not that such evidence is irrelevant or has no “probative force.” Harris
v. State, 324 Md. 490, 495-96 (1991). To the contrary, such evidence has “admitted
probative value.” Michelson v. United States, 335 U.S. 469, 476 (1948). Rather, the Rule
is “grounded in the reality that ‘substantive and procedural protections are necessary to
guard against the potential misuse of other crimes or bad acts evidence and avoid the risk
that the evidence will be used improperly by the jury against a defendant.’” Burris v. State,
435 Md. 370, 385 (2013) (quoting Streater, 352 Md. at 807). Such evidence is thus
“excluded because it may tend to confuse the jurors, predispose them to a belief in the
defendant’s guilt, or prejudice their minds against the defendant.” Terry v. State, 332 Md.
6As we have previously observed, the Rule does not require that the other acts at
issue be “bad.” Klauenberg v. State, 355 Md. 528, 547 n.3 (1999). We nonetheless use
the phrase “other bad acts” for simplicity.
12
329, 334 (1993). The overarching concern is that the jury may use evidence of crimes that
are not the subject of the trial “to conclude that the defendant is a ‘bad person’ and,
therefore, should be convicted of the charges for which [the defendant] is on trial” for that
reason, rather than based on evidence specific to those charges. Wynn v. State, 351 Md.
307, 317 (1998); see also Michelson, 335 U.S. at 476 (“[Other bad acts evidence] is said
to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad
general record and deny [the defendant] a fair opportunity to defend against a particular
charge.”); Straughn v. State, 297 Md. 329, 333 (1983) (stating that evidence of other bad
acts is excluded because “if a jury considers a defendant’s prior criminal activity, it may
decide to convict and punish [the defendant] for having a criminal disposition” and because
“a jury might infer that because the defendant has committed crimes in the past, [the
defendant] is more likely to have committed the crime” at issue).
With that overarching concern in mind, in Harris we considered how the Rule
should operate mechanically. 324 Md. at 494-95. We weighed the merits of an
“inclusionary” approach to the Rule, in which other bad acts evidence is presumptively
admissible unless the party opposing it demonstrates that it is offered to show propensity,
versus the “exclusionary” approach, in which such evidence is presumptively inadmissible
unless the party offering it proves that it is offered for some non-propensity reason. Id.We concluded that the exclusionary approach offers the best balance between appropriate
concerns for potential unfair prejudice from the introduction of other bad acts evidence, on
13
the one hand, and the risk of excluding evidence possessing special relevance that
outweighs the potential for unfair prejudice, on the other. Id. at 499-500. We reasoned:
By stating the rule in exclusionary form—evidence of other bad acts
is generally not admissible—followed by an exception for those instances in
which the evidence 1) has special relevance, i.e. is substantially relevant to
some contested issue in the case and is not offered simply to prove criminal
character, and 2) has probative force that substantially outweighs its potential
for unfair prejudice, the focus is correct, and the burden is where it belongs.
Id. at 500. We further explained that the choice of the exclusionary approach was “most
likely to produce a just result” because that approach would “ensure that adequate
consideration be given to the conceded, but sometimes overlooked, potential for unfair
prejudice that invariably accompanies the introduction of evidence of other bad acts.” Id.In other words, given the high degree of potential unfair prejudice accompanying the
improper admission of other bad acts evidence, as well as the understanding that “it will
be the exceptional, and not the usual, case where the evidence of other bad acts is
substantially relevant for reasons other than proof of criminal character,” it is appropriate
to place on the party offering the evidence “the burden of demonstrating relevance other
than criminal character, as well as the burden of demonstrating that the probative value
substantially outweighs the potential for unfair prejudice.”7 Id. at 500-01.
7
The Appellate Court’s majority opinion in this case purported to adopt the
inclusionary approach that this Court rejected in Harris. See Browne, 2022 WL 17490062,
at *38. Neither party advocated for that approach at any stage of this litigation and both
expressly rejected it before this Court. Lacking any evidence that the considered approach
this Court adopted in Harris has proved unworkable or produced unjust results, and seeing
no other reason to depart from it, we decline to do so. We therefore reaffirm that Maryland
courts must approach questions concerning the admission of other bad acts evidence under
Rule 5-404(b) using the exclusionary approach set forth in Harris and its progeny.
14
While confirming our use of the exclusionary approach in Harris, we also clarified
that “admissibility of evidence of other bad acts is not confined to a finite list of
exceptions.” Id. at 497. To the contrary, all evidence with “sufficient relevance, other than
merely by showing criminal character, may be admissible.” Id. The “so-called exceptions”
identified in the Rule are thus merely examples, honed over the course of centuries of
development of this common law evidentiary principle, “of those areas where evidence has
most often been found admissible even though it discloses other bad conduct.” Id. at
497-98, 501; see also McKinney v. State, 82 Md. App. 111, 122 (1990) (describing the
“exceptions” to the Rule as “a well established list of matters other than propensity that
other crimes evidence may logically tend to prove”); Thomas J. Reed, The Development of
the Propensity Rule in Federal Criminal Causes 1840-1975, 51 U. Cin. L. Rev. 299,
301-03 (1982) (stating that the earliest federal decision discussing the admissibility of
evidence of other bad acts was decided in 1795 and noting that the rule tended to develop
by the expansion of the judicial definition of each “exception” to the rule).
Under Maryland’s exclusionary approach to other bad acts evidence, the proponent
of such evidence must satisfy three requirements before it may be admitted: (1) the
evidence must be specially relevant; (2) the defendant’s involvement must be proved by
clear and convincing evidence; and (3) the necessity for and probative value of the evidence
must not be substantially outweighed by the risk of unfair prejudice. Burris, 435 Md. at
385-86; Gutierrez v. State, 423 Md. 476, 489-90 (2011). These requirements were first set
forth in this Court’s decision in Faulkner, 314 Md. at 634-35.
15
1. Special Relevance
The first Faulkner requirement is that the evidence must be “substantially relevant
to some contested issue in the case” and “not offered to prove the defendant’s guilt based
on propensity to commit crime.” Faulkner, 314 Md. at 634. When other bad acts evidence
has substantial relevance to a contested issue other than propensity, it is said to have
“special relevance.” Harris, 324 Md. at 500; Hurst v. State, 400 Md. 397, 407-08 (2007).
In other words, as summarized by Professor Lynn McLain, to have special relevance, other
bad acts evidence “must be strongly probative of an issue other than character that is a
significant issue in the case.” 5 Lynn McLain, Maryland Evidence: State and Federal,
§ 404:5, at 760 (3d ed. 2013) (“McLain, Maryland Evidence”).
As noted, Rule 5-404(b) lists examples of non-propensity purposes for which other
bad acts evidence might be admitted as “exception[s] to the general rule of exclusion,”
Harris, 324 Md. at 501, including: “proof of motive, opportunity, intent, preparation,
common scheme or plan, knowledge, identity, [and] absence of mistake or accident[.]”8
Md. Rule 5-404(b). Some of these examples “are phrased in terms of the immediate
inferences sought to be drawn (such as plan or motive) while others are phrased in terms
8
The second sentence of Rule 5-404(b) also provides that other bad acts evidence
may be offered “in conformity with Rule 5-413.” Unlike the other purposes identified in
that sentence, however, Rule 5-413 permits introduction of specific other bad acts
evidence—“evidence of other sexually assaultive behavior by the defendant”—for a
propensity purpose. See Woodlin v. State, 484 Md. 253, 261-62 (2023); Md. Code Ann.,
Cts. & Jud. Proc. § 10-923(e) (2020 Repl.; 2023 Supp.) (permitting admission of “evidence
of sexually assaultive behavior,” under certain circumstances, to prove lack of consent or
to rebut an allegation of fabrication by a minor victim).
16
of ultimate facts (such as knowledge, intent or identity) which the prosecution seeks to
establish.” 1 McCormick on Evid. § 190.1, 1148 (8th ed. 2020). As we have previously
made clear, however, even where a purpose identified in the Rule is implicated, a court
may not admit other bad acts evidence if the primary inference to be drawn from it depends
on propensity reasoning. Thus, in Harris, we clarified that the identification of “intent” as
a permitted purpose “does not mean . . . that whenever intent is an issue in a case, evidence
of a prior bad act that is relevant to intent is automatically admissible. If the relevance of
the prior bad act is limited to a showing of general criminal propensity, the evidence should
be excluded.” 324 Md. at 498.
This point is demonstrated by the ways in which prior bad acts evidence may
permissibly be used to prove identity. In Faulkner, this Court identified ten different paths
to the admission of other bad acts evidence under the identity exception. 314 Md. at
637-38. None rely upon propensity reasoning. Some allow for the introduction of evidence
that directly connects the defendant to the crime or crime scene, such as proof of presence
at the crime scene.9 See id. Others concern direct proof of the defendant’s identity itself,
rather than identity as the perpetrator of the crime at issue, such as handwriting exemplars,
mug shots, fingerprint records, or ballistics tests; remarks the defendant made; or the
9
Other paths in this category include the defendant’s membership in an organization
with a purpose of committing crimes similar to the crime at issue; the defendant’s prior
theft of an object used in the crime; the defendant’s possession of articles taken from the
victim; the defendant’s prior use of an alias or co-conspirator that was used in the crime at
issue; and the defendant’s prior wearing of clothing or use of objects that were worn or
used by the perpetrator of the crime at issue. Faulkner, 314 Md. at 638.
17
witnesses’ ability to identify the defendant based on having seen the defendant at another
crime. See id. And one, which we will discuss in more detail below, permits a secondary
inference of identity based on knowledge that the defendant was responsible for other
crimes using the same “peculiar modus operandi” as was used in the crime at issue. Id. at
638. By contrast, when a defendant’s identity as the perpetrator of the crime is the primary
inference to be drawn from the defendant’s commission of other bad acts, that is generally
propensity reasoning.
Special relevance requires more than being “technically or minimally relevant”; in
addition to pertaining to an issue other than propensity, the issue must be genuinely
contested and the evidence must be substantially relevant to it. Emory v. State, 101 Md.
App. 585, 602 (1994). Before admitting such evidence, a trial court must therefore
determine that the issue to which the evidence is addressed is genuinely contested in that
case and that the evidence has more than a minimal bearing on the issue. See, e.g., Wynn,
351 Md. at 331 (holding that the circuit court erroneously admitted evidence of the
defendant’s possession of goods stolen in burglaries other than the one for which he was
on trial where the defendant did not raise a defense of mistake or accident); Emory, 101
Md. App. at 604-21 (concluding that evidence of the defendant’s prior drug-dealing
activities was not admissible after reviewing potential non-propensity purposes for its
admission and determining that the evidence either was not relevant to them or the potential
issue was not genuinely in dispute); McKinney, 82 Md. App. at 125 (concluding that lack
of accident was not genuinely at issue in a sexual assault case, notwithstanding the
18
defendant’s testimonial admission that “it’s possible” he may have inadvertently come in
contact with victims in a crowded place, where the defendant otherwise denied the alleged
acts occurred).
2. Clear and Convincing Evidence
If a trial court determines that the other bad acts evidence is specially relevant, the
second requirement to admit the evidence under Rule 5-404(b) is that the accused’s
involvement in the other bad act(s) must be established by clear and convincing evidence.
Faulkner, 314 Md. at 634.
3. Weighing the Probative Value Against Possible Prejudice
If the first two requirements are satisfied, the trial court must still weigh the
necessity for and probative value of the evidence against the danger of unfair prejudice that
would result from its admission. Id. at 635. If that danger substantially outweighs the
necessity for and probative value of the evidence, the trial court should exclude it.
Md. Rule 5-403; Gutierrez, 423 Md. at 490. “Underlying this prong of the test is the
concern that other crimes or bad acts evidence ‘is generally more prejudicial than
probative.’” Streater, 352 Md. at 810 (quoting State v. Taylor, 347 Md. 363, 369 (1997)).
B. Standard of Review
We evaluate the trial judge’s determination with respect to each of the three
Faulkner requirements using a different standard. The determination of special
relevance—whether evidence is substantially relevant to a contested issue other than
propensity—is a legal determination that we review without deference to the trial court.
19
Faulkner, 314 Md. at 634. We review the trial judge’s finding of clear and convincing
evidence of the accused’s involvement in other bad acts for sufficiency of the evidence.
Id. at 635. Finally, we review the trial judge’s balancing of probative value against the
danger of unfair prejudice for an abuse of discretion. Id. at 635, 641.
II. ADMISSIBILITY OF THE OTHER BAD ACTS EVIDENCE
Consistent with the Faulkner framework, we begin by determining whether
evidence of Kendall’s death was specially relevant to prove something other than
Mr. Browne’s propensity to commit the crimes for which he was tried. The State argues
that evidence of Kendall’s death was relevant to two contested issues—identity and lack
of accident—in three different ways: (1) to show Mr. Browne’s identity as Zaray’s
murderer based on a common modus operandi underlying the two crimes; (2) to show that
Zaray’s death was not an accident, which would in turn demonstrate Mr. Browne’s criminal
intent; and (3) to show the objective improbability that Mr. Browne would have been
innocently associated with circumstances involving the murder of two infants by blunt
force trauma. We address each argument in turn.
A. Identity and Modus Operandi
The State first argues that the details of the crimes against Kendall and Zaray are so
similar that they establish a common modus operandi, allowing the jury to infer, without
resorting to any propensity reasoning: (1) that the same person must have committed both
crimes; and (2) because Mr. Browne pled guilty to causing Kendall’s death, that he also
murdered Zaray.
20
Modus operandi or “signature crime” evidence “is useful in identifying a defendant
who claims that he was not the person who committed the crime.” Hurst, 400 Md. at 414.
The theory underlying the introduction of other bad acts evidence to prove the use of a
modus operandi is that “there is some clear connection between [the uncharged] offense
and the one charged so that it may be logically inferred that if [the] defendant is guilty of
one[, the defendant] must be guilty of the other.” Moore v. State, 73 Md. App. 36, 41
(1987) (quoting People v. Haston, 444 P.2d 91, 99 (Cal. 1968)). Modus operandi evidence
thus supports a primary inference that the charged offense shares such common, signature
features with the uncharged offense(s) that “they may be said to be the work of the same
person.” Hurst, 400 Md. at 415. A secondary inference, when evidence that the defendant
committed the uncharged offense(s) is added to the evidence tying the offenses together, is
that the defendant also committed the charged offense. Establishing a modus operandi thus
provides a path to the introduction of other bad acts evidence to prove identity that is not
premised on propensity reasoning.
To establish a modus operandi, the crimes at issue must be “so nearly identical in
method as to earmark them as the handiwork of the accused.” Faulkner, 314 Md. at 638(quoting McKnight v. State, 280 Md. 604, 613 (1977)). We have said, for example, that
“[t]he device [used to commit the crime] must be so unusual and distinctive as to be like a
signature.” Id. (alteration in Faulkner).
Evidence regarding a modus operandi “should be considered as a whole, instead of
as a set of unrelated parts.” Faulkner, 314 Md. at 639. Thus, features of a crime that may
21
be ordinary when considered alone can still establish a modus operandi when considered
in combination. Id.; see also Garcia-Perlera v. State, 197 Md. App. 534, 548-49 (2011)
(finding a modus operandi among four home invasions within a year of elderly women
living alone, each within walking distance of the other, on weekdays between Monday and
Wednesday, all gagged and “hog-tied,” with three of the victims detained in their
basements); Oesby v. State, 142 Md. App. 144, 155-57 (2002) (finding a modus operandi
among four attacks over the course of nine days on women living near each other in the
common areas of their apartments where the attacker approached the victims in a friendly
manner before raping them while wielding a knife with specific characteristics); Moore,
73 Md. App. at 42-44, 47-48 (finding a modus operandi where three women were attacked
within a month of one another, all crimes occurred between 11:45 a.m. and 1:30 p.m., the
assailant in all demanded or took jewelry from the victim’s purse, all three occurred near
the same Metro station, all victims were choked, and in all, the attacker initiated the
encounter by showing the victims a photo and asking for directions).
On the other hand, simply showing common elements of charged and uncharged
crimes is insufficient; the common elements must mark the offenses as sufficiently
consistent and extraordinary as to indicate that they must both have been undertaken by the
same individual. Thus, for example, in McKnight, we found insufficient evidence of a
modus operandi where four victims of different robberies that occurred within a one-month
period were all men living alone in the same neighborhood, in a thickly populated urban
area, and three of the men had their pants ripped during the crimes. 280 Md. at 613-14.
22
We explained that the similarities among the crimes were not sufficiently distinctive to
amount to a modus operandi. Instead, “[s]uch similarities . . . ‘fit into an obvious tactical
pattern which would suggest itself to almost anyone disposed to commit a depredation of
this sort.’” Id. at 614 (quoting United States v. Foutz, 540 F.2d 733, 737 (4th Cir. 1976));
see also Hurst, 400 Md. at 415 (finding no modus operandi in the cases of two women who
were sexually assaulted by a perpetrator who approached the victims seeking directions
and then traveled with them to secluded areas and attacked them, where the assaults
occurred 21 years apart in different cities, the perpetrator was the driver in one incident
and a passenger in the other, and there were other differences); Brown v. State, 85 Md.
App. 523, 536 (1991) (“[T]he indicated inference [of modus operandi] does not arise . . .
from the mere fact that the charged and uncharged offenses share certain marks of
similarity, for it may be that the marks in question are of such common occurrence that
they are shared not only by the charged crime and defendant’s prior offenses, but also by
numerous other crimes committed by persons other than the defendant.” (quoting Moore,
73 Md. App. at 41) (alteration in Brown)).
Here, the State argues that the deaths of Kendall and Zaray shared the following
characteristics that amount to a distinctive signature: Kendall and Zaray were both
preverbal babies who could not tell adults about their abuse; each was the youngest of
multiple siblings; each died following one of the only occasions they had been left alone
with Mr. Browne; each died of blunt force trauma; and Mr. Browne blamed the victims’
older siblings after each death. We share Judge Arthur’s assessment of this evidence:
23
Certainly, these two horrific crimes share a generic resemblance with each
other: both are forceful beatings directed at the upper half of an infant child’s
body by an adult. Yet “[t]here is nothing particularly unusual or distinctive”
about the overlapping features. Lebedun v. State, 283 Md. 257, 281 (1978).
As noted in Browne’s appellate brief, blunt-force trauma to an infant is,
unfortunately, far from a unique cause of death. Examples of similar crimes
are not difficult to find. E.g., Pinkney v. State, 151 Md. App. 311, 317 (2003)
(describing death of six-month-old child caused by multiple blunt-force
injuries to the head); Robey v. State, 54 Md. App. 60, 68 (1983) (describing
death of 10-month-old child caused by multiple blunt-force injuries to the
chest and abdomen). The fact that both crimes occurred outside the view of
witnesses is a common feature of physical child abuse, not the type of
similarity that tends to establish a distinctive signature. See Lebedun, 283
Md. at 281-82; Cross v. State, 282 Md. [468,] 475-76 [1978]; McKnight, 280
Md. at 614; Brown, 85 Md. App. at 537.
...
Unlike the evidence in cases cited by the State, the other-crimes evidence
here does not involve close proximity of location and time, matching
descriptions of the perpetrator, or the repeated use of a particular method of
committing the crime. Here, the charged crime and the prior crime were
committed against similar victims, apparently in a similar manner, six years
apart. Overall, it cannot be said that these two crimes were “so nearly
identical in method as to earmark them as the handiwork” of a singular
perpetrator or “so unusual and distinctive as to be like a signature.”
McKnight, 280 Md. at 613. The degree of similarity is not enough to support
the inference that the same person probably committed both crimes. See
Hurst, 400 Md. at 415; Lebedun, 283 Md. at 281; McKnight, 280 Md. at
613-14; Brown, 85 Md. App. at 537.
Browne, 2022 WL 17490062, at *58 (Arthur, J., dissenting).
Ultimately, we cannot say that a reasonable person presented with the facts
surrounding these two crimes—without knowing the identity of Mr. Browne as the
perpetrator of one of them and a suspect in the other—would have concluded that the same
person likely committed both. The State’s modus operandi theory of admission thus fails.
24
B. Lack of Accident
The State next argues that the evidence of Kendall’s death was specially relevant to
show that Zaray did not die as a result of an accident, which it claims also proves
Mr. Browne’s criminal intent. Mr. Browne maintains, as he did in response to the motion
in limine, that absence of accident is not an issue in genuine dispute because it is undisputed
that Zaray’s injuries were inflicted by a person and that the person who did so intended to
hurt Zaray. We agree with Mr. Browne.
The “absence of mistake or accident” theory of admission of other bad acts evidence
encompasses two distinct but related (and sometimes conflated) theories. Absence of
mistake is applicable when a defendant acknowledges taking the action that resulted in
harm to the victim but contends that it was the product of a mistake, rather than an
intentional act. See Wynn, 351 Md. at 325; see also McLain, Maryland Evidence, § 404:12,
at 803 (“If the defendant admits that [the defendant] took an action, but claims to have done
so unintentionally or by mistake, . . . the prosecution may offer evidence of the defendant’s
similar prior wrongs, acts, or crimes, to prove absence of mistake . . . .”). Absence of
accident, by contrast, is applicable when the State seeks to negate a claim that the harm the
defendant is accused of inflicting resulted from an independent accident and not from any
act of the defendant, purposeful or otherwise. Emory, 101 Md. App. at 609; see also
McLain, Maryland Evidence, § 404:12, at 804 (“The defendant may claim that the harm
[the defendant] is alleged to have caused was not at [the defendant’s] hands, but was the
25
result of an independent accident. Evidence of prior similar acts by the defendant is then
admissible to show lack of accident.”).10
Critically here, however, neither theory of admission is applicable in the absence of
a defense or assertion of mistake or accident to rebut. In Wynn, for example, this Court
considered a purported absence of mistake theory in a robbery prosecution in which the
defendant claimed to have come into possession of goods he was accused of stealing by
innocently purchasing them at a flea market. 351 Md. at 318-19, 331. We ultimately
concluded that neither mistake nor accident applied because the defendant never invoked
either. Id. at 331-32.11 Surveying cases from Maryland and other jurisdictions, we
observed that “for the exception to apply, the defendant generally must make some
assertion or put on a defense that [the defendant] committed the act for which [the
defendant] is on trial, but did so by mistake.” Id. at 330-31. Because the defendant in
Wynn had done neither, the absence of mistake or accident exception to the rule against
admission of other bad acts evidence did not apply. Id. at 331.
10
Contributing to the confusion in some caselaw between absence of mistake and
absence of accident is the common English usage of “accident” to cover what Rule
5-404(b) treats separately as “mistake” and “accident.” See, e.g., Accident, Merriam-
Webster’s Collegiate Dictionary 7 (11th ed. 2014) (defining “accident” as including,
among other definitions, “an unforeseen and unplanned event or circumstance,” “lack of
intention or necessity,” and “an unfortunate event resulting esp. from carelessness or
ignorance”).
11
In Wynn, the majority opinion separately identified the two “factual scenarios”
underlying absence of mistake and absence of accident, but used the phrase “absence of
mistake” to cover them both. 351 Md. at 325-26.
26
In Emory, the Appellate Court engaged in similar reasoning in rejecting absence of
mistake or accident as a theory supporting the admissibility of evidence of uncharged
narcotics-related activities in a prosecution for drug kingpin conspiracy and related
offenses. 101 Md. App. at 608-09. Because the defendants “never argued that their
apparent involvement with marijuana was somehow an inadvertent and bizarre mistake,”
the court held that “[t]here was . . . no claim, proffer, or theory of mistake that needed to
be negated,” and so the evidence was not admissible on that basis. Id.; see also McKinney,
82 Md. App. at 125 (reversing admission of other bad acts evidence on absence of mistake
theory where court concluded that the defendant had “never asserted a defense of accident
or mistake”).
Here, Mr. Browne neither made any assertion nor raised any defense to make
absence of accident an issue in genuine dispute at trial. In his written response to the State’s
motion in limine concerning other bad acts evidence, Mr. Browne’s counsel observed that
the absence of accident exception applied only when the defendant admitted engaging in
the act at issue but claimed “that he did so accidentally or by mistake,” and argued 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. In later arguing the
motion, Mr. Browne’s counsel reiterated that “we’re not asserting a defense of accident or
mistake and I don’t think his recounting of [the fall from the slide] rise[s] to the level of an
assertion of accident or mistake in his own statement, Your Honor.”
27
At trial, consistent with those representations, Mr. Browne made no assertion of
accident and raised no defense of accident. Indeed, Mr. Browne’s own medical expert
agreed with the State’s medical expert that the manner of death was homicide and that the
cause of death was “[b]lunt force injuries.” The defense’s expert further agreed with most
of the findings of the autopsy report on which the State relied, including that Zaray had
sustained acute injuries shortly before he died that were the cause of death, along with older
injuries that were not. The main points of disagreement between the experts concerned the
timeframes over which the respective injuries might have occurred, as Mr. Browne’s
primary defense strategy was to argue that they were inflicted at times when someone
besides Mr. Browne could have inflicted them. In other words, Mr. Browne argued neither
that an independent accident caused Zaray’s fatal injuries nor that he inflicted those injuries
by mistake. He effectively conceded that someone had intentionally inflicted Zaray’s
injuries but argued that the someone was not him.
The State makes two arguments to support its contention that there was a genuine
dispute regarding absence of accident.12 First, the State contends that Mr. Browne placed
12
In its brief, the State suggests in passing that the other bad acts evidence may have
been relevant to prove absence of mistake in addition to absence of accident. It states that
agreement by the medical experts that Zaray’s death was a “homicide” indicates that
Zaray’s death could have been a death caused by a person “and also an accident.” The
State goes on to argue that “[i]f, purely for sake of argument, . . . Browne . . . had
inadvertently injured Zaray, but had no criminal intent, his death would have been a
homicide, but not a criminal one. Accordingly, the State was entitled to present evidence
of Kendall’s death to rebut the possibility that Zaray’s death was an accidental,
non-criminal homicide.” That “absence of mistake” argument suffers the same fate as the
28
lack of accident at issue: (1) by telling police, in a recorded statement that the State later
played for the jury, that Zaray fell off the slide the day he died; and (2) via defense counsel’s
statement in closing argument that Zaray was injured at the playground. Neither contention
is supported by the record. Although Mr. Browne, in recounting the events that occurred
on the day of Zaray’s death in his recorded statements, included Zaray’s fall from the slide,
neither he nor any other witness attributed any of Zaray’s injuries, much less his death, to
the fall. And the statement from closing argument on which the State relies, viewed in
context, does not invoke Zaray’s fall from the slide at all. Although defense counsel’s
statement referenced the playground as the location where Zaray and Mr. Browne were
before Zaray vomited for the first time, it did so in the course of pointing out that the
detective investigating the case had been visiting the wrong playground until a month
before trial.13 Defense counsel’s focus was on the quality of the police investigation, not
Zaray’s fall from the slide.
State’s more prominent “absence of accident” argument because neither mistake nor
accident was genuinely at issue at trial.
13
The statement at issue is:
[DEFENSE COUNSEL]: So, what does [the detective] do in
December three months after the second interviews of the children, he
goes where? He goes back to the wrong playground. Surely by now,
with all of these interviews and all this opportunity to do a follow-up
investigation to determine the right playground. And why is it
important? Because, if you look at the time line at least from the
detective’s point of view and the State’s point of view, Zaray Gray
vomits for the first time at 11:00 a.m. And so whatever might have
happened to Zaray Gray would have likely have happened, at least
29
Second, the State contends that absence of accident was genuinely at issue because
the State, in every case, bears the burden of proof beyond a reasonable doubt as to every
element of the crime, including intent, and Mr. Browne never expressly conceded absence
of accident. Taken to its logical conclusion, the State’s argument would permit it to
introduce other bad acts evidence to disprove every conceivable defense a defendant might
raise that the defendant had not expressly conceded. That contention is inconsistent with
our caselaw, which, as discussed above, permits the introduction of other bad acts evidence
to show absence of mistake or accident only when it is genuinely at issue. See, e.g., Wynn,
351 Md. at 330-31 (“[F]or the exception to apply, the defendant generally must make some
assertion or put on a defense that [the defendant] committed the act for which [the
defendant] is on trial, but did so by mistake.”); Boyd v. State, 399 Md. 457, 484-85 (2007)
(declining to admit other bad acts evidence to show absence of mistake where the defendant
“has never asserted or defended on the ground that [the defendant’s] conduct . . . was
permitted or was based on a mistake or mistaken belief”); Hurst, 400 Md. at 410-11(holding that where consent was the only contested issue in the case, and the Court
concluded that “[e]vidence that a third party did not consent to sexual intercourse . . . in
the past” was not relevant to whether the victim in this case “consented to sexual activity,”
evidence of the prior crime was inadmissible propensity evidence).
initially, before that. And where were they before that? The
playground. And the detective is not looking or doesn’t care about
looking beyond the 18th of July. He’s just focusing on the 18th of
July. So let’s get the right playground.
30
The State relies on State v. Taylor, 347 Md. 363, 374-75 (1997), for the proposition
that a defendant’s decision not to contest an element of the offense does not relieve the
prosecution of its burden to prove each element of the crime beyond a reasonable doubt.
That proposition is of course true. But when the issue is the admissibility of other bad acts
evidence, whether a matter is genuinely contested must be determined in the context of the
evidence presented and the arguments made. In Taylor, for example, we considered the
consolidation of five charges of physical child abuse in a single trial. 347 Md. at 366-67.
In holding that evidence of each incident of alleged physical child abuse was admissible in
the trials of the others, such that it was not error to consolidate the charges, we observed
that we had previously “recognized the relevance of intent and malice in child abuse cases,”
which “can be critical in distinguishing permissible parental corporal punishment from
criminal child abuse.” Id. at 370. In such cases, “often the only way to determine whether
the punishment is a non-criminal act of discipline that was unintentionally harsh or whether
it constitutes the felony of child abuse is to look at the parent’s history of disciplining the
child.” Id. at 377. In that case, there was no dispute concerning the identity of the
perpetrator; the only issues were whether the child was fabricating his claims and whether
the defendant was engaged in permissible disciplinary acts. Id. at 372. Thus,
notwithstanding that the defendant, who did not testify, did not expressly raise a defense
of lack of intent or malice, the other bad acts evidence at issue had special relevance in the
context of that case. Id.31
Here, unlike in Taylor: (1) the defense expressly disavowed any argument of
mistake or accident;14 and (2) the evidence presented at trial essentially precluded any
possibility of mistake or accident. The fact and expert testimony at trial all established that
Zaray was murdered by blunt force trauma from repeated blows inflicted by an adult, with
the fatal injuries inflicted either on the day of his death or the day before, and additional
blunt force injuries inflicted before that. The only question at trial was whether
Mr. Browne, as opposed to another person, intentionally inflicted the fatal injuries.
Because lack of accident was not genuinely contested, evidence of Kendall’s death was not
specially relevant for that purpose.
C. The Doctrine of Chances
The final theory of special relevance upon which the State relies is the doctrine of
chances, which is a theory that this Court has not previously adopted. The State claims
that, by use of the doctrine, evidence of Kendall’s death was properly admitted to permit
the jury to infer Mr. Browne’s responsibility for Zaray’s death due to the objective
improbability of him being innocently enmeshed in suspicious circumstances surrounding
the deaths of two infants. As we shall explain, while the doctrine may be a useful theory
14
We do not suggest that the defense disavowing an intent to rely on a particular
defense is dispositive. Such a disavowal would be ineffective in precluding the admission
of other bad acts evidence if, for example, it is inconsistent with evidence or argument that
implicates such a defense. And if the inconsistency arises in a trial in which other bad acts
evidence was previously excluded, the court, upon the State timely raising the issue, should
explore how to alleviate the prejudice to the State.
32
to invoke in other circumstances, here, it served merely as a cover for impermissible
propensity-based reasoning.
The doctrine of chances, as described and used by commentators and some other
courts, concerns the objective improbability of a certain event occurring more than once
with innocent explanations. Edward J. Imwinkelried, An Evidentiary Paradox: Defending
the Character Evidence Prohibition by Upholding a Non-Character Theory of Logical
Relevance, the Doctrine of Chances, 40 U. Rich. L. Rev. 419, 423 (2006). When presented
with a series of unlikely, repeated events, the doctrine “represents a permissible path to one
factual inference: Based on the objective improbability that uncommon events will happen
repeatedly by chance, a factfinder may reasonably infer that one or some events in a group
of unlikely events were not the result of chance.” State v. Jackson, 498 P.3d 788, 802 (Or.
2021); see also Westfield Ins. Co. v. Harris, 134 F.3d 608, 615 (4th Cir. 1998) (“[The]
doctrine posits that the more often an accidental or infrequent incident occurs, the more
likely it is that its subsequent reoccurrence is not accidental or fortuitous.”).
Dean John Wigmore’s quintessential example of the doctrine’s reasoning illustrates
that inferential path:
[I]f A while hunting with B hears the bullet from B’s gun whistling past his
head, he is willing to accept B’s bad aim or B’s accidental tripping as a
conceivable explanation; but if shortly afterwards the same thing happens
again, and if on the third occasion A receives B’s bullet in his body, the
immediate inference (i.e. as a probability, perhaps not a certainty) is that B
shot at A deliberately; because the chances of an inadvertent shooting on
three successive similar occasions are extremely small . . . .
33
1 John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at
Common Law, § 302, at 611-12 (2d. 1923). As in that example, the doctrine is often used
to show absence of mistake, allowing from the repeated occurrence of uncommon events
the inference that a defendant had the requisite intent when committing the action of a
crime and did not act inadvertently. Edward J. Imwinkelried, A Brief Essay Defending the
Doctrine of Objective Chances as a Valid Theory for Introducing Evidence of an Accused’s
Uncharged Misconduct, 50 N.M. L. Rev. 1, 10-11 (2020) (“Imwinkelried, Brief Essay”).
Some courts have also approved of the doctrine as a means to show absence of
accident, permitting the inference that an event occurred not by independent accident, but
rather by human action, because it is unlikely that the event would occur frequently without
human intervention. Id. at 9-10. A classic example of that reasoning is in United States v.
Woods, 484 F.2d 127, 135 (4th Cir. 1973). In Woods, the defendant was on trial for the
murder of her 8-month-old, pre-adoptive foster child, who was healthy when placed with
the defendant, but then suffered a series of episodes of cyanosis, a condition related to
deprivation of oxygen in the blood, and eventually died.15 Id. at 129-30. During the trial,
the government was permitted to introduce evidence that nine other children who were
otherwise healthy suffered episodes of cyanosis while in the defendant’s care, with seven
of them dying. Id. at 130-31. In a 2-1 decision, the court upheld the decision to admit the
15
“Cyanosis is the medical term for when your skin, lips or nails turn blue due to a
lack of oxygen in your blood.” Cleveland Clinic, Cyanosis, available at
https://my.clevelandclinic.org/health/diseases/24297-cyanosis (last accessed Nov. 1,
2023), archived at https://perma.cc/SPT9-G99C.
34
evidence. Id. at 133-35. The court reasoned that although there was insufficient evidence
of the defendant’s guilt with respect to any child when the incidents were viewed
independently, when the evidence considering all of the incidents was viewed collectively,
it showed “that the probability that some or all of the other deaths, cyanotic seizures, and
respiratory deficiencies were accidental or attributable to natural causes was so remote, the
truth must be that [the victim] and some or all of the other children died at the hands of the
defendant.” Id. at 133.
The majority “conclude[d] that the evidence was admissible generally under the
accident and signature exceptions,” but went further, grounding its holding on the broader
rationale of “the remoteness of the possibility that so many infants in the care and custody
of defendant would suffer cyanotic episodes and respiratory difficulties if they were not
induced by the defendant’s wrongdoing.” Id. at 134-35. Moreover, the court reasoned,
because that same rationale led directly to the defendant, it also stood to “prove the identity
of defendant as the wrongdoer.” Id. at 135. Establishing the identity of the defendant as
the perpetrator of the crime was thus the secondary inference established by the pattern of
improbable episodes. Id. at 134-35.
This Court has not previously had the opportunity to assess whether to adopt the
doctrine of chances as an independent basis for the special relevance of other bad acts
evidence. Judge Irma Raker engaged in a thorough exploration of the doctrine in a dissent
35
in Wynn, 351 Md. at 343-47 (Raker J., dissenting), and encouraged its adoption,16 but the
majority declined to address the issue on preservation grounds, id. at 319 (majority op.).
In his dissent in this case, Judge Arthur did not reject the potential usefulness of the doctrine
in supporting the basis for inferences such as absence of mistake or accident, but he viewed
the doctrine as “not an independent ground upon which to admit other acts evidence.”
Browne, 2022 WL 17490062, at *64 (Arthur, J., dissenting) (quoting State v. Atkins, 819
S.E.2d 28, 37 (Ga. 2018)).
Without determining the specific circumstances in which the doctrine of chances
might be useful in proving special relevance, we agree with Judge Arthur that in this case,
“the State stretched the doctrine of chances beyond its limits.” Browne, 2022 WL
17490062, at *69 (Arthur, J., dissenting). That is because where the doctrine is applicable,
“[t]he only warranted inference . . . is that one or some of the incidents are likely not
accidents.” Imwinkelried, Brief Essay at 10. As in Woods, that permissible primary
inference can then lead to a secondary inference identifying the defendant as the
16
In Wynn, the State sought to introduce evidence of the defendant’s possession of
goods stolen in multiple robberies during his prosecution for one of the robberies, arguing
that the evidence was specially relevant to prove absence of mistake. 351 Md. at 318-19.
Judge Raker concluded that the evidence was “perhaps better, and more intuitively,
explained by the doctrine of chances[.]” Id. at 343. As applied there, Judge Raker
explained that the defendant’s “possession of the [goods stolen in other robberies] was
offered by the State to prove that [the defendant’s] claim of innocent possession of the
goods stolen [in the robbery at issue] was not worthy of belief.” Id. at 345-46. Judge Raker
would have held the evidence admissible based on the doctrine of chances because the
“intermediate inference permissibly tended to establish an ultimate fact at issue in this case;
i.e., the circumstances by which [the defendant] came into possession of the goods stolen
[in the robbery at issue].” Id. at 346.
36
perpetrator. See, e.g., People v. Weeks, 369 P.3d 699, 705-06 & n.7 (Colo. App. 2015)
(holding that where the defendant claimed a child died from accidental injuries, evidence
of other bad acts was admissible to show that the child did not die by accident, allowing a
secondary inference that the defendant committed the act). Thus, as we explained in Cross
v. State, “a need for proving identity is not ordinarily of itself a ticket of admission, but . . .
the evidence will usually follow, as an intermediate channel, some one or more of the other
[exceptions].” 282 Md. 468, 476 (1978) (alteration in Cross) (quoting McCormick on
Evidence, § 190, at 451 (2d ed. 1972)). In other words, proving that the accused had a
motive or plan to commit a crime, or used the same distinct signature in another crime that
was present in the charged crime, can allow the secondary inference that it is more likely
that the accused, and not someone else, committed the charged crime. Id. at 477.
But where, as here, the State seeks to introduce evidence to show that because the
defendant was previously convicted of a similar intentional act, it is objectively unlikely
that the defendant is not responsible for the intentional act at issue, that is propensity
reasoning.17
17
We are unaware of any case in which a court has approved the use of the doctrine
of chances to establish a primary inference of identity. The State offers quotes from two
cases that it claims support such an inference, but the doctrine was not used for that purpose
in either case. In one, People v. Balcom, the majority held that evidence of prior bad acts
was admissible “to support the inference that the uncharged acts and the charged offense
are manifestations of a common design or plan.” 867 P.2d 777, 784 (Cal. 1994). The quote
on which the State relies comes from a concurring opinion in which one justice postulated
corroboration of a witness’s testimony as an alternative basis for admission. See id. at 785
(Arabian, J., concurring). In the other, People v. VanderVliet, the testimony at issue was
37
Shorn of any utility to demonstrate a modus operandi or absence of accident—
neither of which apply as explained above—evidence of Kendall’s death would be relevant
only to permit the jury to infer that because Mr. Browne was responsible for Kendall’s
death, he more than likely murdered Zaray; i.e., that Mr. Browne had a propensity to harm
young children. The circuit court therefore abused its discretion in admitting evidence of
Kendall’s death. Accordingly, we will reverse the judgment of the Appellate Court and
remand to that court with instructions to remand the case to the Circuit Court for Baltimore
City for a new trial.
III. OTHER CONTENTIONS
In addition to his contention that the Appellate Court erred in upholding the circuit
court’s admission of evidence concerning Kendall’s death, Mr. Browne argues that the
intermediate appellate court erred or abused its discretion in affirming the circuit court’s
denial of his motion for a new trial based on the discovery that two unadmitted videos were
mistakenly included on a disk that was provided to the jury along with properly admitted
evidence. Mr. Browne contends that the Appellate Court erred in its assessment of whether
his trial counsel acted with due diligence in discovering the error. Because we are already
remanding this case for a new trial, and because it is unlikely that the mistake concerning
offered “to make it objectively less probable that the defendant acted with innocent intent
in [another] case.” 508 N.W.2d 114, 128 (Mich. 1993). The opinion of the Michigan high
court does not suggest that the doctrine of chances could be employed to support a primary
inference of identity.
38
the submission of unadmitted videos to the jury will recur on remand, we decline to resolve
Mr. Browne’s contentions concerning the denial of his motion for a new trial.
CONCLUSION
In sum, we hold that evidence of the death of Mr. Browne’s infant child was not
offered for a permissible purpose that was relevant to a disputed issue in the State’s
prosecution of Mr. Browne for the death of Zaray Gray. Accordingly, the circuit court
abused its discretion in admitting the evidence, and the Appellate Court erred in affirming
the circuit court’s judgment.
JUDGMENT OF THE APPELLATE
COURT OF MARYLAND REVERSED AND
CASE REMANDED WITH
INSTRUCTIONS TO REVERSE AND
REMAND TO THE CIRCUIT COURT FOR
BALTIMORE CITY FOR A NEW TRIAL;
COSTS IN THIS COURT AND IN THE
APPELLATE COURT OF MARYLAND TO
BE PAID BY THE MAYOR AND CITY
COUNCIL OF BALTIMORE.
39
Circuit Court for Baltimore City
Case No. 118232001
Argued: September 8, 2023
IN THE SUPREME COURT
OF MARYLAND
No. 2
September Term, 2023
______________________________________
FRANCOIS BROWNE
v.
STATE OF MARYLAND
______________________________________
Fader, C.J.
Watts
Hotten
Booth
Biran
Gould
Eaves,
JJ.
______________________________________
Dissenting Opinion by Watts, J.
______________________________________
Filed: November 28, 2023
Respectfully, I dissent. I agree with much of the majority opinion, but not the result.
I agree with the Majority that the doctrine of chances does not render admissible, in this
case, evidence that Francois Browne, Petitioner, engaged in physical child abuse of Kendall
Browne, his 7-month-old biological son, resulting in Kendall’s death and Mr. Browne
entering an Alford plea to first-degree child abuse resulting in death. See Maj. Slip Op. at
36-37. Specifically, I agree with Judge Arthur that the doctrine “is not an independent
ground upon which to admit other acts evidence[.]” Francois Browne v. State, No. 495,
Sept. Term, 2021, 2022 WL 17490062, at *64 (Md. Ct. Spec. App. Dec. 7, 2022) (Arthur,
J., dissenting) (cleaned up). I also agree with the Majority that Mr. Browne never raised
the defense of accident at trial and that, therefore, evidence related to Kendall’s death
would not fit within the “absence of mistake or accident” exception to the prohibition on
evidence of other acts under Maryland Rule 5-404(b). See Maj. Slip Op. at 32.1
Where I part ways with the Majority is on the issue of whether the evidence of
Kendall’s death was admissible under Maryland Rule 5-404(b) to establish identity. I
would hold that it was.2 Although the Appellate Court did not provide any analysis on the
1
In addition, I agree with the Majority that, based on the result that it reaches, it need
not address the denial of the motion for a new trial based on the availability to the jury of
unadmitted videos. See Maj. Slip Op. at 38-39.
2
I would also conclude that the circuit court did not abuse its discretion in denying
Mr. Browne’s motion for a new trial, given that there is no evidence whatsoever that the
jury ever viewed the videos that were mistakenly included on the State’s compact disc that
had been admitted into evidence. I agree with the Appellate Court that “there was no
indication that the jury was even aware of the fact that the disc contained two other
conversations that had never been introduced in evidence.” Browne, 2022 WL 17490062,
at *46. In light of the outcome reached by the Majority, it is unnecessary to spill a great
deal of ink on the point.
point, it reached the correct result in determining that evidence of Kendall’s death was
admissible to show identity. Accordingly, for this reason only, I would affirm the judgment
of the Appellate Court, which affirmed Mr. Browne’s convictions. See Browne, 2022 WL
17490062, at *50.
It is not necessary to repeat in detail the Majority’s summary of the State’s
observations regarding the similarities between Zaray’s and Kendall’s deaths or the
Majority’s explanation of the law governing the “identity” exception to the prohibition on
evidence of other acts under Maryland Rule 5-404(b). See Maj. Slip Op. at 20-24. Both
are accurate. It suffices to say that the “identity” exception under Maryland Rule 5-404(b)
may apply where the other acts establish a modus operandi by being “so nearly identical
in method as to earmark them as the handiwork of the accused” and “so unusual and
distinctive as to be like a signature.” State v. Faulkner, 314 Md. 630, 638, 552 A.2d 896,
900 (1989) (cleaned up).
In my view, a person viciously beating to death a child, who is left in the person’s
care, when the person is alone with the child, is unusual and distinctive behavior. The
material circumstances surrounding Zaray’s and Kendall’s deaths were horrific and so
nearly identical that it would be reasonable to infer that they earmark both deaths as Mr.
Browne’s work. In both cases, the victim was less than two years old, preverbal, and, at
the relevant time, was not only in Mr. Browne’s exclusive care and custody, but also alone
with him. In this case, Zaray’s brother testified that, at one point, after leaving, he tried to
get back into the house, but the front door was locked, and he looked through the window
and saw Mr. Browne sitting on the couch and watching TV, with Zaray asleep in his lap.
-2-
Similarly, as far as the record in this case reveals, Mr. Browne was alone with Kendall until
paramedics arrived and found Kendall in full cardiac arrest.
In both cases, there was evidence indicating that Mr. Browne was mad, upset, or
frustrated at the time that the offenses occurred. In this case, Zaray’s siblings’ testimony
indicated that, on the day of Zaray’s death, on the way home from the playground, Mr.
Browne had been frustrated with Zaray for repeatedly falling down and that he yanked
Zaray’s arm so hard that Zaray cried. Similarly, Zaray’s mother testified that, when telling
her about Kendall’s death, Mr. Browne said that the State alleged that, after a football game
between the Dallas Cowboys and the team now named the Washington Commanders, “he
got mad and upset and beat his son to death.”
In both cases, the manner of death was homicide, and both children suffered blunt
force trauma to both the head and torso. In addition, both children incurred other injuries
that were similar. Both children had bone fractures, internal injuries, contusions (i.e.,
bruises), and scrapes or abrasions.
In each case, there was evidence that Mr. Browne had been mad or upset and was
alone with a child less than 2 years old, and then beat the child so badly that the child died
as a result. Despite the similarities between Zaray’s and Kendall’s deaths, the Majority
states that no “reasonable person presented with the facts surrounding these two crimes—
without knowing the identity of Mr. Browne as the perpetrator of one of them and a suspect
in the other—would have concluded that the same person likely committed both.” Maj.
Slip Op. at 24. The Majority seems to look at the modus operandi analysis in a vacuum,
as if there were an untold number of people who could have been responsible for both
-3-
crimes. In most child assault cases, there will be only a small set of people who could be
responsible for the charged offenses. Approaching the analysis as if there could be an
untold or infinite number of people potentially culpable presents a disconnect from the
reality of these type of physical child abuse crimes.
The facts of this case include the circumstance that there was an extremely narrow
set of people who had access to Zaray around the time of his death and thus could have
been responsible for his fatal injuries—namely, Mr. Browne, Zaray’s siblings (who were
only 7 and 9 at the time of trial), and his biological parents (though there is no evidence
that his biological father was with him in the hours leading up to his death). Given this
extraordinarily small group of people who could have potentially been identified as
responsible for Zaray’s fatal injuries, the similarities between his death and Kendall’s were
highly probative of, and directly went to, Mr. Browne’s identity as the member of the group
who was the perpetrator.
This is not a case in which the State tried to establish a modus operandi so vague
that it could be used to identify anyone in the general population as the guilty party, which
seems to underpin the Majority’s conclusion that Kendall’s death was not admissible to
establish Mr. Browne’s identity as the one responsible for Zaray’s death. See Maj. Slip
Op. at 24. Unlike in a murder case involving, for instance, a nighttime break-in at a
residence, in this case, not just anyone could have caused Zaray’s fatal injuries. To the
contrary, Zaray’s death could have been caused only by someone who had exclusive care
or custody of him—i.e., someone who was left alone with him—around the time of his
death. Given that, at most, only five people fit that description (and two of them were
-4-
young children), the fact that one of those individuals—namely, Mr. Browne—was
convicted of physical child abuse resulting in death under extremely similar circumstances
takes on a special relevance.
I am troubled by the possibility that, in future physical child abuse cases, the
majority opinion could be taken to mean that the circumstances of a defendant having been
alone with another child or children who ended up dying by similar means as the victim at
issue cannot be factors that establish a modus operandi, regardless of how few people had
access to the victim at issue around the time of the victim’s death. In my view, the smaller
the number of individuals who had access to the child at the relevant time, the more
probative it is that one of those individuals was previously alone with, and then fatally
injured, another child in a similar manner.
I would conclude that evidence of Kendall’s death was relevant to establish a modus
operandi and supported an inference that the conduct in the prior case shared distinctive
and unusual features with the offenses charged in this case. I would conclude that the
probative value of the evidence outweighed the danger of unfair prejudice. The probative
value of the evidence of Kendall’s death was extremely high, given the similarities between
Zaray’s and Kendall’s deaths. In addition, the circuit court mitigated the risk of unfair
prejudice by giving limiting instructions twice—first before there was testimony about
Kendall’s death, and again after the conclusion of the evidentiary phase of the trial.
In sum, I cannot join the Majority’s reasoning that the similarities between Zaray’s
and Kendall’s deaths were not specific enough to identify Mr. Browne as the one
responsible for Zaray’s fatal injuries. See Maj. Slip Op. at 24. Simply put, evidence of the
-5-
deaths of two young children who experienced similar devastating injuries while alone with
Mr. Browne, who had been mad or upset around the time, was sufficient to establish a
modus operandi.
For the above reasons, respectfully, I dissent.
-6-