Gerrard Luke Harrison v. State of Maryland, No. 2390, September Term, 2024. Opinion by Nazarian, J.
SEVERANCE AND JOINDER – MUTUAL ADMISSIBILITY OF OTHER
CRIMES EVIDENCE
To determine whether three criminal charges against the accused should be severed or joined and, accordingly, whether evidence of the offenses would be mutually admissible in separate trials for each individual offense, a circuit court must make six one-directional admissibility determinations. The circuit court erred when it decided the mutual admissibility of evidence as to only one of the criminal offenses for which appellant was accused, instead of all three.
SEVERANCE AND JOINDER – JOINDER BALANCING TEST
In deciding whether to join or sever charges for trial after a finding of mutual admissibility has been made, the analyses required for joinder and admissibility of other crimes evidence diverge and each calls for distinct balancing tests. A court’s assessment of unfair prejudice under the other crimes doctrine can’t substitute for the required balancing of judicial economy against the prejudice arising from joinder. The circuit court abused its discretion when it rejoined appellant’s previously severed cases without considering the likelihood of prejudice that could arise from trying the charges together or weighing that prejudice against judicial economy.
Circuit Court for Montgomery County
Case No. C–15–CR–23–000396
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 2390
September Term, 2024
GERRARD LUKE HARRISON
v.
STATE OF MARYLAND
Nazarian,
Arthur,
Sharer, J. Frederick
(Senior Judge, Specially Assigned),
JJ.
Opinion by Nazarian, J.
Filed: September 30, 2026
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
18:00:35 2026.09.30
'00'04-Gregory Hilton, Clerk
Gerrard Luke Harrison was charged in the Circuit Court for Montgomery County
with five counts of armed robbery, two counts of attempted armed robbery, and one count
each of conspiracy to commit armed robbery and theft between $100 and $1,500. The
charges arose from five separate incidents that occurred on different days in February 2023.
Mr. Harrison filed a pretrial motion to sever the charges by incident and the court granted
that motion.
At the first of the severed trials, the State moved to introduce evidence about the
other four incidents. At a hearing on that motion, the circuit court granted the motion and
then, on its own initiative, re-joined the charges arising from three of those incidents for
trial. Mr. Harrison pleaded not guilty to those charges and the parties proceeded on an
agreed statement of facts. After a bench trial, the court convicted Mr. Harrison of four
counts of armed robbery and two counts of attempted armed robbery and sentenced him to
a total term of twenty years’ imprisonment.1 On appeal, he contends that the court erred in
re-joining those charges for trial. We reverse the judgments and remand for further
proceedings.
1
Mr. Harrison later entered guilty pleas to the remaining armed robbery and theft counts, and the State nol prossed the conspiracy charge. For those convictions, the court imposed a total term of twenty years’ incarceration, suspending all but seven and one-half years, to run concurrently with the sentences imposed in the consolidated case.
I. BACKGROUND
A. Factual Background
Because Mr. Harrison challenges the circuit court’s joinder decision, we base our
recitation of the facts on the evidence adduced at the hearing that led to that ruling and the
three incidents underlying the charges that the court re-joined for trial.
On the evening of February 21, 2023, Detective Bradley Schmidt of the
Montgomery County Police Department’s Major Crimes Unit responded to a report of an
attempted armed robbery at a Smoothie King located in the Fallsgrove Shopping Center on
Shady Grove Road. At the scene, Detective Schmidt interviewed two Smoothie King
employees. According to those employees, when the suspect first entered the
establishment, he asked whether they could make change for a $100 bill and inquired about
obtaining a job. The employees responded that they couldn’t break the bill and directed
him to a nearby grocery store.
The suspect left the Smoothie King but returned shortly after. He then told the
employees, “I don’t want the change, I want the money.” He unzipped his jacket, revealing
what appeared to be a long-barreled gun, but no property was ultimately taken from the
store. The employees reported that the suspect exited the restaurant and proceeded on foot
toward Sandy Spring Bank. They described him as thin and approximately 5’10” tall.
A police canine tracked the suspect’s scent to the area of Fallsgrove Drive and
Blackwell Road, where the trail was lost. In addition to interviewing witnesses, Detective
Schmidt reviewed video footage from a Smoothie King surveillance camera but was unable
to obtain a copy at first. One or two days later, he returned with an evidence technician and
2
downloaded the recording. The footage—which was admitted into evidence at the motion
hearing and played for the court—showed the suspect entering the Smoothie King at
approximately 8:30 p.m. Detective Schmidt testified that the footage depicted the suspect
wearing “a black jacket with the hood up, [a] ski mask, gray sweatpants[] with [a] white
triangular logo on the front, and black sneakers.” The footage also showed “an
orangish-reddish colored cellphone” in the suspect’s hand, as well as the apparent firearm.
Based on the object’s length, Detective Schmidt opined that it was likely either “a shotgun
or a rifle . . . .”2
At or around 11:48 p.m. on February 25, 2023, police received a 911 call reporting
a robbery in progress at a Wingstop located in the same Fallsgrove Shopping Center, within
a one-minute walk of the Smoothie King. Although the investigation was initially assigned
to another Montgomery County detective, Detective Schmidt assumed responsibility for
the case after learning that the robbery involved a rifle. Like the Smoothie King incident,
the Wingstop robbery was captured by a surveillance camera. The footage showed the
suspect entering the restaurant, removing a rifle from his pants, and jumping the counter
with the weapon in hand.
The robbery occurred shortly before the restaurant was scheduled to close at
2
Statements in the record use the term “rifle” to describe the dangerous weapon that the suspect was alleged to have used in the robberies. It appears, however, that the weapon found at Mr. Harrison’s apartment during the execution of the search warrant was a BB gun, a weapon similar to those used in the alleged robberies. The police didn’t recover a rifle as that term is defined by Md. Code (2002, 2021 Repl. Vol.), § 4-201(e) of the Criminal Law Article. Our use of “rifle” in this opinion reflects only what was stated in the record.
3
midnight, when the employees had just completed or were preparing to conduct their
end-of-day “money count.” The safe was propped open with two money bags visible. After
“announcing the robbery[,]” the suspect stole both money bags and a Guess purse
belonging to a female clerk. Two employees present during the robbery described the
suspect to Detective Schmidt as between 5’9” and 5’10” tall and weighing between 150
and 160 pounds. Detective Schmidt testified that the suspect was dressed in all black and
wore a “full face mask.”
On February 28, 2023, Detective Schmidt responded to a report of another armed
robbery at a 7-Eleven on Darnestown Road, less than a mile from the Fallsgrove Shopping
Center. That incident, too, was captured on video. At 1:52 p.m., the footage showed the
suspect drawing a rifle from his pants and pointing it at the clerk. Detective Schmidt
testified that the suspect wore a black hoodie or jacket and black pants. The gunman took
cash from the register and a customer’s camouflage-colored wallet before leaving the store.
The clerk and customer described the gunman as being in his 20s or 30s and between 5’5”
and 5’7” tall.
On March 2, 2023, a local resident provided Detective Schmidt with a brief video
and photographs taken at the intersection of Fallsgrove Drive and Blackwell Road—the
same area where the police canine had lost the Smoothie King suspect’s trail. The photos
depicted a man whom Detective Schmidt identified at the motion hearing as Mr. Harrison.
The man wore a black hoodie and gray sweatpants with what appeared to be a white logo
on the left pant leg and a “reddish orange cellphone” protruding from his right pocket. The
similarities between the cellphone and clothing in the photos and those shown in the
4
Smoothie King surveillance footage led Detective Schmidt to believe that the same
individual appeared in both.
After developing Mr. Harrison as a suspect, the police executed a search warrant at
his residence on or about March 3, 2023. The search yielded gray sweatpants bearing a
white triangular logo, two black hoodies, a “reddish” iPhone, and a BB rifle.
B. The Indictment and Motion to Sever
On April 6, 2023, the State filed a nine-count indictment against Mr. Harrison.
Counts 2 and 3 alleged attempted armed robbery at the Smoothie King; Counts 4 and 5,
armed robbery at the Wingstop; and Counts 6 and 7, armed robbery at the 7-Eleven. The
indictment also included one count each of armed robbery (Count 1) and conspiracy to
commit armed robbery (Count 8), both stemming from conduct alleged to have occurred
on or about February 18, 2023. Finally, Count 9 charged Mr. Harrison with theft between
$100 and $1,500 based on a separate episode alleged to have occurred on or about February
12, 2023.
On August 4, 2023, Mr. Harrison filed a motion to sever the counts into five trials,
one for each incident. After a hearing, the circuit court granted the motion in an Opinion
and Order entered on April 2, 2024. In severing the charges, the court noted that “[t]he
offenses occurred in the same general geographic area . . . near [Mr. Harrison’s] residence”
during a sixteen-day period in February 2023. It reasoned, however, that “[t]he proximity
and timing of the incidents . . . [were] not so close to each other as to strongly suggest the
commonality required for joinder in this case.” Although the suspect was described as
“wearing black and/or grey clothing” in each incident and a black mask in four of the five,
5
the court determined that this attire was not unusual in the commission of such crimes.
With regard to the Smoothie King, Wingstop, and 7-Eleven incidents, the court
observed that the suspect had “show[n] or brandished what appeared to be a black rifle” in
each and that police had found evidence in Mr. Harrison’s home implicating him in those
crimes. The court reasoned, however, that evidence relating to any one of those incidents
wouldn’t necessarily be admissible in a trial on each of the others. Although the court didn’t
foreclose entirely the possibility that some of the evidence might be cross-admissible, it
concluded that joinder of all nine charges would be “unduly prejudicial.”
At a status hearing on April 15, 2024, the circuit court scheduled five separate trials
on the severed charges. At the State’s request, it scheduled the Wingstop armed robbery
counts to proceed first, with trial to commence on October 28, 2024. The court allotted
three days for that trial and a total of ten days for the remaining four.
C. Motion In Limine
On May 30, 2024, the State moved in limine to introduce certain “other crimes”
evidence of the other four incidents at Mr. Harrison’s trial on the Wingstop armed robbery
charges. In that motion, the State argued that the proffered evidence was admissible to
establish Mr. Harrison’s identity as the Wingstop gunman and to demonstrate that the
offenses were committed as “part of a common scheme to rob businesses in and nearby the
Shady Grove Shopping Center.”
Among other things, the State sought to introduce surveillance footage from the
Smoothie King and 7-Eleven robberies that depicted a suspect with Mr. Harrison’s “basic
physical characteristics” who wore clothing similar to items recovered from his residence
6
later. The State also sought to admit evidence that the gunman in those incidents had used
“a slim black rifle” resembling the weapon wielded during the Wingstop robbery, which,
in turn, matched the rifle recovered from Mr. Harrison’s residence. The State proffered
further that a detective would testify that he saw Mr. Harrison return to the 7-Eleven three
days after it was robbed, retrieve the rifle, and conceal it in the same manner as had the
gunman during the Smoothie King, 7-Eleven, and Wingstop incidents—with the “barrel
tucked down a pant leg and the stock covered by his jacket.”
D. The Motion Hearing
On June 28, 2024, the circuit court held a hearing on the State’s motion. At the
outset, the State narrowed its request and advised the court that it sought to introduce other
crimes evidence only from the Smoothie King and 7-Eleven incidents. It then called
Detective Schmidt as its sole witness and elicited the testimony summarized above. After
Detective Schmidt had finished testifying, the court heard argument from both parties.
For its part, the State maintained that evidence pertaining to the Smoothie King,
7-Eleven, and Wingstop offenses was mutually admissible as identity evidence to prove
that the same suspect had committed all of them. The State asserted further that the court’s
severance of the charges by incident—coupled with the narrowed scope of the State’s
motion—sufficiently mitigated any danger of unfair prejudice to Mr. Harrison. In other
words, the State relied on the earlier severance ruling to support its in limine argument.
Defense counsel responded that evidence suggesting “that the same person
committed the crimes” did not satisfy the identity exception to the rule against other crimes
evidence. Counsel argued that to satisfy that exception, the offenses must have been
7
committed in so “unusual and distinctive” a manner “as to be like a signature . . . .” Counsel
maintained that the asserted similarities among the offenses did not meet that requirement.
Although defense counsel acknowledged that the court was not bound by the earlier
decision to sever the counts, she stressed that the standard the State had invoked in
opposing severance required a different analysis than the standard governing the
admissibility of other crimes evidence.
In rebuttal, the State addressed the court’s initial severance ruling. It asserted that
although the prior judge had found the evidence not mutually admissible as to all five
incidents, that ruling did not preclude the admission at one trial of other crimes evidence
concerning some, but not all, of the other incidents. The State emphasized further that
evidence from the Smoothie King, 7-Eleven, and Wingstop incidents indicated that each
involved a suspect of similar build who wore a black jacket and carried what appeared to
be a long black firearm in his pants. Turning to its alternative theory that the other crimes
evidence was admissible to show a common scheme, the State reiterated that the suspect
“sought to rob commercial businesses near where he resided.”
E. The Court’s Ruling
After hearing argument, the circuit court announced its ruling from the bench. It
began by setting forth the three-part test governing the admissibility of other crimes
evidence:
The [c]ourt engages in a three-step process to determine if
other crimes evidence is admissible: [O]ne, I must determine if
the evidence fits within an established exception to [the rule
against] other crimes evidence, those being motive[,] intent,
absence of mistake, common scheme or plan, identity,
8
opportunity, preparation and knowledge; two, if there is an
exception which applies, I then must decide if the defendant’s
involvement is established by clear[] [and] convincing
evidence; finally, the [c]ourt must weigh the necessity for and
the probative value of the other crimes evidence against any
undue prejudice likely to result from the evidence’s admission.
The court then made factual findings about each of the three incidents at issue. The
court found that the Smoothie King surveillance footage showed a suspect wearing gray
sweatpants and carrying “a reddish phone” walk into the establishment at approximately
8:30 p.m. on February 21, 2023, and draw “a long gun” from his waist area. The suspect
was described as 5’10” tall, thin, and wearing a “black mask.”
Turning to the Wingstop robbery, which occurred four days later at around
midnight, the court found that video footage depicted the suspect entering the restaurant,
“jump[ing] onto the counter,” and pointing a rifle at employees. Witnesses described the
assailant as 5’9” to 5’10” tall, weighing between 150 and 160 pounds, and “wearing all
black and a black face mask.” The court also found that two money bags and a Guess purse
were taken from the restaurant.
Finally, the court addressed the 7-Eleven robbery, which occurred three days later
at 2:20 p.m., less than a mile from the Fallsgrove Shopping Center, where the first two
incidents had occurred. It found that surveillance footage showed the suspect pacing inside
the store before approaching the counter, “brandish[ing] a rifle directly at the clerk[,]” and
taking cash from the register and a “camo wallet” from a customer.
In summarizing the ensuing investigation, the court recounted that the police had
executed a search warrant at Mr. Harrison’s residence a few days after the final robbery.
9
The court observed that the search yielded a red iPhone, a BB rifle resembling the weapon
used in all three incidents, “black hoodie jackets” like the one the suspect had worn at each
establishment, and a pair of gray sweatpants bearing a triangular logo similar to that
described by the Smoothie King employees.
In applying the first prong of the other crimes analysis, the circuit court concluded
that the proffered evidence fell within the identity exception to the exclusionary rule. The
court determined that the attire and “camo wallet” recovered from Mr. Harrison’s residence
resembled the clothing worn by the suspect in the surveillance footage and the wallet taken
from the 7-Eleven customer. The court noted that in assessing the admissibility of other
crimes evidence, each item need not “be in each and every one of the offenses, but when it
ties together, that is where the evidence does become relevant and admissible.”
At the second step of its other crimes analysis, the court found that Mr. Harrison’s
involvement in each incident had been “established by clear and convincing evidence[,]”
citing the close geographic and temporal proximity of the crimes. Finally, the court
balanced the necessity for and probative value of the proffered evidence against the danger
of undue prejudice and concluded that the former outweighed the latter. In so doing, it
reasoned that when viewed separately, the evidence pertaining to each incident provided
little basis for identifying the gunman.
After balancing the probative value and danger of unfair prejudice in admitting the
Smoothie King and 7-Eleven evidence in a trial on the Wingstop charges, the circuit court
found that the “common scheme” exception to the other crimes rule also applied. It based
that conclusion on the close proximity of the incidents, their occurrence at commercial
10
establishments, and the use of a rifle in each offense, which the court described as “an
unusual weapon to be displayed . . . .”
The court then—on its own, without a motion or any sort of request from the State,
and notwithstanding Maryland Rule 4-253’s direction that “either party may move for a
joint trial of the charges”—took its prior bad acts ruling and (re)joined the Smoothie King,
Wingstop, and 7-Eleven cases for trial:
[N]ow that I find that all of the evidence is mutually
admissible, it makes no sense whatsoever to have three
different trials, and although it is certainly not anyone’s desire
to routinely engage in reconsidering evidentiary rulings, the
[c]ourt is free to do so. It is time for courts to reconsider rulings
made earlier in the stage of the trial preceding the motions
hearing and so the [c]ourt will join for trial the three cases
involving Smoothie King, Wingstop[,] and the 7-Eleven.
The court memorialized that oral ruling in a written order entered on July 2, 2024.
Mr. Harrison pleaded not guilty to the charges arising from the Smoothie King,
Wingstop, and 7-Eleven incidents, which included two counts of attempted armed robbery
(Counts 2 and 3) and four counts of armed robbery (Counts 4 through 7). On January 21,
2025, the consolidated cases proceeded to a bench trial on an agreed statement of facts. At
the conclusion of that proceeding, the court found Mr. Harrison guilty on all counts. This
appeal followed.
II. DISCUSSION
In deciding whether to join or sever charges for trial, Maryland courts apply a
two-part test. First, the court must determine “whether evidence as to each of the accused’s
individual offenses would be ‘mutually admissible’ at separate trials concerning the
11
offenses[.]” Cortez v. State, 220 Md. App. 688, 694 (2014). If the evidence is mutually
admissible, the court considers second “whether ‘the interest in judicial economy
outweighs any other arguments favoring severance[.]’” Id. (cleaned up) (quoting Conyers
v. State, 345 Md. 525, 553 (1997)).
In challenging the joinder of the Smoothie King, Wingstop, and 7-Eleven charges,
Mr. Harrison contends that the court failed to apply either prong of the governing analysis
properly. He advances two principal arguments. First, Mr. Harrison asserts that the court
failed to conduct a complete mutual admissibility analysis of the evidence relating to all
three incidents. Second, he claims that the court abused its discretion by applying the “other
crimes admissibility weighing analysis” rather than the joinder balancing test. As a result,
Mr. Harrison argues, the court both “failed to give the prejudice to . . . [him] its due weight”
and balanced that potential prejudice improperly against the probative value of the
evidence rather than against the interests of judicial economy and efficiency.
With respect to Mr. Harrison’s mutual admissibility argument, the State responds
that the court “was not required to spell out every step of its decision-making,” but was
entitled instead simply to “announce its conclusion that the evidence was mutually
admissible based upon the extensive record before it.” As to Mr. Harrison’s assertion that
the court failed to afford sufficient weight to the danger of unfair prejudice, the State
counters that “the case law does not support his claim that prejudice weighs ‘significantly
more heavily’ in the case of joinder” than under an other crimes admissibility analysis.
Finally, the State maintains that the court’s statement that “‘it makes no sense whatsoever
to have three different trials . . . demonstrate[d] that [it] properly considered judicial
12
economy against any potential prejudice to [Mr. Harrison].”
A. The Circuit Court Erred By Failing To Conduct A Complete Mutual
Admissibility Analysis.
In challenging the adequacy of the circuit court’s mutual admissibility analysis, Mr.
Harrison acknowledges that the court addressed “the admissibility of the Smoothie King
and 7-Eleven [evidence] at trial for the Wingstop [charges].” He maintains, however, that
those were only two of the “six assessments of one-directional admissibility” that the court
was required to make. He asserts that the court failed to consider whether (1) the Smoothie
King and Wingstop evidence would have been admissible at a trial on the 7-Eleven
charges; and (2) the 7-Eleven and Wingstop evidence would have been admissible at a trial
on the Smoothie King charges.
The State doesn’t dispute that the mutual admissibility determination required six
one-directional admissibility analyses, nor does it deny that the circuit court expressly
conducted only two of them. The State maintains, however, that the court was not required
to “state[] six times how the evidence of each crime would be mutually admissible at a trial
for each of the other offenses.” Rather, the State asserts that the court’s statement that “all
of the evidence is mutually admissible[,]” coupled with the presumption that the court
knew and properly applied the law, establishes sufficiently that it conducted the requisite
analyses. We agree with Mr. Harrison.
Whether evidence is mutually admissible is a question of law that we review de
novo. See Hart v. State, 260 Md. App. 491, 527 (2024) (explaining that the question of
mutual admissibility “involves a legal determination, which we review without deference
13
to the trial court”). “‘Mutual admissibility’ means that ‘evidence of each crime would be
admissible in a trial for the other.’” Id. (cleaned up) (quoting Bussie v. State, 115 Md. App.
324, 333 (1997)). As Mr. Harrison observes correctly, “‘[m]utual admissibility’ consists of
multiple unidirectional determinations of admissibility.” Bussie, 115 Md. App. at 333. A
determination of whether evidence of two offenses is mutually admissible “consists of two
determinations of one-directional admissibility.” Solomon v. State, 101 Md. App. 331, 341
(1994). Where, as here, the joined charges arise from three separate incidents, the court
must conduct six unidirectional admissibility analyses. See Conyers, 345 Md. at 549 n.1
(“When there are three offenses, . . . there will be six analyses of admissibility . . . .”).
In making each one-directional admissibility determination, “a trial court conducts
the same analysis that it would conduct in determining whether evidence of other crimes
or wrongs would be admissible under Rule 5-404(b).” Hart, 260 Md. App. at 527. Although
presumptively inadmissible in a criminal trial, “other crimes” evidence “‘may be admitted
. . . if it is substantially relevant to some contested issue in the case and if it is not offered
to prove the defendant’s guilt based on propensity to commit crime or his character as a
criminal.’” Harper v. State, 162 Md. App. 55, 89 (2005) (quoting State v. Faulkner, 314
Md. 630, 634 (1989)). Maryland Rule 5-404(b) provides a non-exhaustive list of
permissible purposes for which other crimes evidence may be properly admitted, including
“as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge,
14
identity, absence of mistake or accident, or in conformity with Rule 5-413.”3
Against this backdrop, the circuit court erred when it made only two one-directional
admissibility determinations as it announced its initial ruling on the State’s motion in
limine. The court was answering a different question at the time of its ruling—it was
deciding whether to admit other crimes evidence at the trial of the Wingstop charges, not
whether to re-join the cases (again, without a motion). The court considered and concluded
only that the evidence concerning both the Smoothie King and the 7-Eleven incidents was
admissible at trial on the Wingstop charges under the identity exception to the rule against
other crimes evidence. After supplementing that conclusion with a determination that the
“common scheme or plan” exception also applied, the court stated: “[N]ow that I find that
all of the evidence is mutually admissible, it makes no sense whatsoever to have three
different trials . . . .” Read in context, we understand that statement as incorporating by
reference the Rule 5-404(b) determinations the court had just made. But because those
determinations exclusively addressed the admissibility of the Smoothie King and 7-Eleven
evidence at a separate trial on the Wingstop charges, they resolved only two of the six
one-directional inquiries the court would have had to make if it had been performing the
re-joinder analysis at the time, which it wasn’t.
In insisting that the circuit court “consider[ed] the mutual admissibility of all the
3
Rule 5-413 states that “[i]n prosecutions for sexually assaultive behavior as defined in Md. Code (1974, 2020 Repl. Vol.), § 10-923(a) of the Courts & Judicial Proceedings Article (“CJ”), evidence of other sexually assaultive behavior by the defendant occurring before or after the offense for which the defendant is on trial may be admitted in accordance with CJ § 10-923.”
15
evidence to the three offenses[,]” the State invokes the “strong presumption that judges
properly perform their duties.” Colkley v. State, 251 Md. App. 243, 275 (2021) (quotation
marks and citations omitted). Although “not rebutted by silence,” the presumption that a
court knows and properly applies the law “may very well be rebutted by what the [court]
says or, depending upon the circumstances or the context, by what [it] does not
say.” Campolattaro v. Campolattaro, 66 Md. App. 68, 80 (1986), superseded on other
grounds by Flanagan v. Flanagan, 181 Md. App. 492, 531–32 (2008). Here, the court’s
stated reasoning reveals the scope of the analysis it performed, and we decline to stretch
the presumption as far as the State would, especially in light of the earlier decision to sever
these cases.
Although the circuit court wasn’t required to articulate every step of its mutual
admissibility analysis, we can’t disregard the reasoning that the court offered initially and
then incorporated by reference into its joinder ruling. That rationale addressed only the
admissibility of the Smoothie King and 7-Eleven evidence at the Wingstop trial and didn’t
include the other four one-directional admissibility determinations required to establish
mutual admissibility. Nor did the court supplement its earlier analysis with those
determinations when it made its joinder decision.4 We hold that the court didn’t perform a
complete mutual admissibility analysis when it re-joined the Wingstop case with the
Smoothie King and 7-Eleven cases for trial.
4
We don’t read the court’s reference to “all of the evidence” as making four additional mutual admissibility determinations that were neither addressed nor otherwise reflected in the rationale the court articulated.
16
B. The Circuit Court Abused Its Discretion By Failing To Perform The
Joinder Balancing Test.
That conclusion doesn’t, however, require automatically that we reverse all six
convictions arising from the joint trial in this case. In addressing whether misjoinder
warrants reversal, this Court has “consistently determined that ‘the remedy for a misjoinder
need be no broader than the harm.’” Bussie, 115 Md. App. at 339 (quoting Wieland v.
State, 101 Md. App. 1, 19 (1994)). “A one-directional inadmissibility only calls for a
one-directional reversal and remand.” Wieland, 101 Md. App. at 19. See also Kearney v.
State, 86 Md. App. 247, 253–55 (1991) (holding that an erroneous mutual admissibility
determination required reversal of a kidnapping conviction tainted by inadmissible murder
evidence, but not of the murder conviction because evidence of the kidnapping would have
been admissible in a separate trial on that charge). Relief from misjoinder extends only to
the convictions affected by the error.
Although the record doesn’t reflect that the court conducted a complete mutual
admissibility analysis, it does reflect the express conclusion that the Smoothie King and
7-Eleven evidence was admissible at a trial on the Wingstop charges. Because Mr. Harrison
doesn’t challenge the court’s analysis or conclusion in that regard, his convictions on those
charges are not subject to reversal solely for the failure to make the remaining four
one-directional determinations. Whether the joinder ruling requires reversal of those
convictions depends on whether the court properly performed the second step of the joinder
analysis.
Mr. Harrison argues that the court didn’t perform the second step properly, and that
17
the circuit court abused its discretion by applying the “other crimes admissibility weighing
analysis” rather than the joinder balancing test. Although both inquiries require courts to
consider the danger of unfair prejudice to the accused, Mr. Harrison asserts that prejudice
“weighs significantly more heavily” under the latter framework than the former.
Accordingly, he claims, the court “failed to give the prejudice to [him] its due weight.” He
further argues that the court balanced the wrong considerations by weighing prejudice
against probative value rather than against judicial economy and efficiency.
The State acknowledges “the difference between an ‘other crimes’ and a ‘joinder’
analysis . . . .” It maintains, however, that “the case law does not support [Mr. Harrison’s]
claim that prejudice weighs ‘significantly more heavily’ in the case of joinder” than under
an other crimes admissibility analysis. The State also disputes Mr. Harrison’s contention
that the court failed to consider judicial economy. It argues that the court’s statement that
“‘it makes no sense whatsoever to have three different trials’ . . . demonstrate[d] that the
court properly considered judicial economy against any potential prejudice to [Mr.
Harrison].”
The joinder and other crimes doctrines overlap only at the mutual admissibility
stage, when the court must “ascertain if evidence of each crime would be admissible in a
trial for the other . . . .” Bussie, 115 Md. App. at 333. See also Solomon, 101 Md. App. at
342 (“The two different bodies of law, however, only overlap to this limited extent.”). From
there, the analyses diverge and the joinder and other crimes analyses call for distinct
balancing tests. See Solomon, 101 Md. App. at 345 (“There is . . . a vast qualitative
difference between the two weighing operations.”). In the joinder context, a court doesn’t
18
weigh prejudice against “probative value and need as one might in the evidentiary context.”
Id. at 373. See also Conyers, 345 Md. at 556 (“[T]he balancing test required by Faulkner
has no part in a joinder analysis.”). Conversely, “[i]n ‘other crimes’ determinations, judicial
economy is not an issue.” Bussie, 115 Md. App. at 332. See also Solomon, 101 Md. App.
at 346 (“[T]he interest of judicial economy . . . is not any part of [the other crimes] weighing
process.”). At the final step of the other crimes analysis, a court “must . . . weigh the
necessity for and probative value of the evidence against the danger of unfair prejudice that
would result from its admission.” Browne v. State, 486 Md. 169, 193 (2023). In the joinder
context, by contrast, a court must determine whether “the interest in judicial economy
outweigh[s] any other arguments favoring severance[.]” Conyers, 345 Md. at 553. The
court balances “the ‘likely prejudice’ to the defendant if the charges are tried together,
against ‘considerations of judicial economy and efficiency, including the time and
resources of both the court and the witnesses.’” Hart, 260 Md. App. at 531 (quoting Cortez,
220 Md. App. at 694). In assessing the likely prejudice to the accused, a trial court should
consider whether and to what extent joinder causes confusion, guilt by association, or
conflation:
“First, [the defendant] may become embarrassed, or
confounded in presenting separate defenses. . . . Secondly, the
jury may cumulate the evidence of the various crimes charged
and find guilt when, if the offenses were considered separately,
it would not do so. At the very least, the joinder of multiple
charges may produce a latent hostility, which by itself may
cause prejudice to the defendant’s case. Thirdly, the jury may
use the evidence of one of the crimes charged, or a connected
group of them, to infer a criminal disposition on the part of the
defendant from which he may also be found guilty of other
crimes charged.”
19
Graves v. State, 298 Md. 542, 545 (1984) (quoting McKnight v. State, 280 Md. 604, 609
(1977)). When balanced against such potential prejudice, “‘judicial economy is a heavy
counterweight on the joinder/severance scales.’” Cortez, 220 Md. App. at 697 (quoting
Solomon, 101 Md. App. at 346). A court’s assessment of unfair prejudice under the other
crimes doctrine can’t substitute for the required balancing of judicial economy against the
prejudice arising from joinder.
The process of weighing prejudice against judicial economy is committed to the
circuit court’s sound discretion, see Conyers, 345 Md. at 556 (“The balancing test is a
discretionary function . . . .”), and “we will reverse the trial court’s balancing analysis only
for a clear abuse of [that] discretion.” Hart, 260 Md. App. at 531 (quotation marks and
citations omitted). A court abuses its discretion “where no reasonable person would take
the view adopted by the trial court, or when the court acts without reference to any guiding
rules or principles.” Alexis v. State, 437 Md. 457, 478 (2014) (cleaned up). An abuse of
discretion also occurs when a court fails to exercise its discretion when required to do so,
see Johnson v. State, 325 Md. 511, 520 (1992), or applies “an incorrect legal standard in
reaching its conclusion.” Carver v. State, 482 Md. 469, 485 (2022). See also Faulkner v.
State, 468 Md. 418, 461 (2020) (“[T]rial judges do not have discretion to apply
inappropriate legal standards, even when making decisions that are regarded as
discretionary in nature.” (quoting Wilson-X v. Dep’t of Hum. Res., 403 Md. 667, 675
(2008))).
Mr. Harrison argues that by performing only the other crimes balancing test, the
20
court “failed to give the prejudice to [him] its due weight.” Mr. Harrison cites no authority
squarely supporting his assertion that the danger of unfair prejudice necessarily weighs
more heavily under the joinder balancing test than under the other crimes analysis. Even
so, we are persuaded that the circuit court failed to “conduct the correct weighing
operation” and we are unwilling to assume that the court did it anyway.
In ruling on the State’s motion in limine, the circuit court balanced the danger of
unfair prejudice resulting from the admission of other crimes evidence against that
evidence’s necessity and probative value properly for that purpose before determining that
the evidence was admissible under Maryland Rule 5-404(b):
[H]aving weighed the necessity to the evidence and the
probative value, clearly in this case, independent of each other,
there is very, very little that would be able to establish the
identity of the individual but, of course, there is always a
prejudicial aspect of this type of evidence. But in weighing
whether or not it is unduly prejudicial against the probative
value of that evidence, the [c]ourt finds that the evidence is
probative and it is not outweighed by any undue prejudice in
this case.
In turning to joinder, however, the court did not address the potential for or
likelihood of prejudice from trying the charges together. Nor does the court’s ruling suggest
that it considered whether joinder posed a danger of prejudice distinct from or in addition
to that arising from the admission of other crimes evidence.
We turn now to Mr. Harrison’s related contention that the court failed to weigh
judicial economy and efficiency. In responding to that argument, the State relies on the
court’s statement that “it makes no sense . . . to have three different trials.” Citing Conyers,
345 Md. at 556, the State asserts that this statement “sufficed to demonstrate that the court
21
properly considered judicial economy against any potential prejudice to the defendant.”
We disagree. The court’s remark may reflect its recognition that three separate trials would
entail some inefficiency. But the ruling doesn’t reflect that the court weighed judicial
economy against prejudice arising from joinder—the court only balanced the danger of
unfair prejudice from admitting the other crimes evidence against its necessity and
probative value.
Conyers doesn’t alter our conclusion. The appellant in that case moved to sever two
murder charges for separate trials. In conducting his joinder analysis, the trial judge first
found that evidence of the alleged murders was mutually admissible. Proceeding to the
second prong, the judge balanced joinder against prejudice specifically:
I agree that there is a very difficult balancing issue when we are
admitting evidence of one crime in the trial of another[,] which
we do if we join offenses for trial. When we balance judicial
economy against prejudice, I believe there is prejudice to the
defendant. Judicial economy certainly weighs toward trying
them together, but I would not join these matters for trial for the
sake of judicial economy in light of the prejudice it would cause
the defendant, but the question is the probative nature of the
evidence.
345 Md. at 555. The judge then applied the other crimes balancing test and concluded that
the probative value of the evidence outweighed the danger of unfair prejudice.
On appeal, the Supreme Court of Maryland held first that the trial judge had
concluded properly that the evidence at issue was mutually admissible. In addressing the
second step of the analysis, however, the Court observed that the judge had not been
required to weigh the probative value of the other crimes evidence against the danger of
unfair prejudice because “the balancing test required by Faulkner has no part in a joinder
22
analysis.” Id. at 556. The Court noted that the judge had “lump[ed] together the ‘other
crimes’ balance and the ‘joinder’ balance.” Id. at 555. The Court affirmed the judgment
nevertheless because, it held, the judge had concluded correctly that the other crimes
evidence was mutually admissible and had not abused his discretion by permitting joinder.
The Court reasoned that the judge’s statement that “[j]udicial economy certainly weighs
toward trying [the offenses] together” reflected a finding that “some economy could be
effected by joining the two offenses for trial . . . .” Id. at 556.
Conyers is distinguishable from this case. First, although Mr. Conyers challenged
the trial judge’s severance ruling, the Supreme Court didn’t base its decision on a
determination that the trial judge had properly applied the joinder balancing test. In
affirming the convictions, the Court framed its holding in terms of the judge’s ultimate
ruling, concluding “that his decision to permit joinder was not an abuse of discretion.” Id.
(emphasis added). Second, before turning to the probative value of the evidence, the trial
judge acknowledged expressly that a joint trial would prejudice the defendant, recognized
that judicial economy favored joinder, and stated that economy alone would not justify
trying the offenses together. Although the judge then considered the probative value of the
evidence improperly, the ruling addressed both sides of the joinder balance. Conyers stands
for the proposition that an imperfect joinder/severance analysis doesn’t necessarily require
reversal when the record reflects that the court considered both sides of the required
balance, not that any reference to judicial economy establishes that the court performed the
joinder balancing test.
In this case, though, the operative ruling reveals no analysis of the prejudice arising
23
from joinder, much less any weighing of that prejudice against judicial economy. Nor does
the record support a reasonable inference that the court did so implicitly. We do not mean
to suggest that a trial court is required to articulate its application of the joinder test in any
particular manner, but the record must reflect that in exercising its discretion, the court
weighed the proper considerations. Here, the record indicates that the court performed the
other crimes balancing analysis and treated the resulting admissibility determination as
sufficient to permit joinder, but didn’t weigh joinder independently against judicial
economy. And in that way, the court abused its discretion by re-joining the cases sua
sponte.
Because the record doesn’t reflect that the circuit court properly performed either
step of the joinder analysis, we reverse Mr. Harrison’s convictions and remand for further
proceedings. We express no opinion on the mutual admissibility of the evidence or the
potential prejudice arising from joinder relative to the countervailing interest in judicial
economy. This opinion should not be construed as precluding the court from reaching the
same conclusion after applying the appropriate analysis.
JUDGMENTS OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
REVERSED AND CASE REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. MONTGOMERY
COUNTY TO PAY COSTS.
24