Md. high court will weigh prior crime’s admissibility in convicted killer’s appeal

The Maryland Supreme Court will consider whether the general prohibition on prosecutors introducing at trial evidence of a defendant’s previous crime applies when the facts of the current alleged offense seem so similar as to defy mere chance.

The justices this month agreed to hear a convicted child murderer’s argument that the trial judge improperly admitted into evidence his earlier no contest plea to having abused his own infant, who died of injuries when he was 7 months old.

The intermediate Maryland Appellate Court had upheld the admission of Francois Browne’s prior crime under the “doctrine of chances,” which holds that the similarity of two crimes is so unlikely that a jury should be permitted to consider the evidence and conclude they were committed by the same person.

The Maryland Supreme Court, however, has yet to embrace the doctrine, though then-Judge Irma S. Raker argued for its adoption in a dissent to the court’s 1998 decision in Wynn v. State.

The doctrine’s critics say introducing evidence of prior crimes will turn jurors against defendants by invalidly showing their propensity for violence to the exclusion of any solid evidence of their guilt to the current criminal charge. Such evidence of propensity is generally barred under Maryland’s evidentiary rules.

But the doctrine’s supporters say the prior crime should be admitted when it shows not a propensity but a similar method for committing violence.

In his successful bid for Supreme Court review, Browne stated through counsel that the doctrine is “merely propensity reasoning in disguise” and should not be adopted by Maryland courts. Browne’s involvement in the death of his son Kendall does not prove he killed Zaray, a child who was briefly in his care.

To tie Zaray’s death to Browne “requires an inference that Browne was the most likely person to harm Zaray because he had a predisposition for harming children – precisely the type of reason forbidden by the exclusionary rule for other-crimes evidence,” wrote Browne’s attorney, Assistant Maryland Public Defender Eva Shell. “The similarities were only that each child was killed by blunt force trauma inflicted by a person, which is not a unique cause of death in young children.”

In response, Assistant Maryland Attorney General Jessica V. Carter wrote that the Appellate Court validly applied the doctrine of chances in concluding that “the inherent improbability of two dead infants ‘belies an innocent explanation. It was not an accident.’”

The Supreme Court will hear arguments in the case in September. The justices are expected to render their decision by Aug. 31, 2024, in Francois Browne v. State of Maryland, No. 2 September Term 2023.

Browne was charged with second-degree murder and first-degree child abuse in the July 2018 death of Zaray, his girlfriend’s 17-month old son.

Browne’s defense at the 2019 Baltimore City Circuit Court trial was that he did not hit Zaray and that the youngster had preexisting injuries after having spent time with his father.

The prosecution successfully moved for the admission of Browne’s 2014 Alford plea to first-degree child abuse in Kendall’s 2013 death.

Judge Charles J. Peters held that the prior crime could be introduced to show absence of accident. Peters said the evidentiary value outweighed the risk of unfairness to Browne before the jury because the state’s case against him was otherwise weak.

The jury found Browne guilty of second-degree murder and first-degree abuse resulting in a child’s death. He was sentenced in November 2019 to life in prison plus 40 years.

The Appellate Court upheld the conviction in an unreported opinion last December.

“The primary function of the doctrine of chances is to show, through its showing of inherent improbability, that the recurrence of a second strange event was not an accident,” Judge Charles E. Moylan Jr. wrote for the 2-1 majority.

“The focus is on the event itself, and not on the character of the perpetrator of the event, added Moylan, a retired judge who sat by special assignment. “Because of the non-character focus of the examination, the propensity rule is never even involved, let alone violated.”

Moylan was joined in the opinion by Judge Rosalyn Tang. Judge Kevin F. Arthur dissented in Francois Browne v. State of Maryland, No. 495 September Term 2021.

Browne then sought review by the Supreme Court.