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IN THE COURT OF APPEALS OF MARYLAND

No. 99

September Term, 1996

___________________________________

JOHN J. MERZBACHER

v.

STATE OF MARYLAND

___________________________________

Bell, C.J. Eldridge Rodowsky Chasanow Karwacki Raker Wilner JJ.

___________________________________ Opinion by Karwacki, J. Bell, C.J. & Eldridge, J., concur in result only ___________________________________

Filed: July 28, 1997

In Wills v. State, 329 Md. 370, 620 A.2d 295 (1993), this Court exhaustively reviewed the history and constitutional imperative of the reasonable doubt instruction. We issued a writ of certiorari in this case to consider the adequacy of the instruction given on that subject, as well as the propriety of several evidentiary rulings made by the trial judge. Finding no error, we shall affirm.

I. John Joseph Merzbacher and Elizabeth Murphy first encountered each other in 1972 when Merzbacher was a teacher at the Catholic Community Middle School of Baltimore ("CCMS"). Murphy, who was eleven years of age at the time, was his student. According to Murphy, Merzbacher subjected her to three years of sexual, physical, and emotional violence.1 The torment ended when Murphy left CCMS in 1975. She did not reveal the substance of these attacks to anyone for some time. In 1979, she informed Sister Eilene Weisman of Merzbacher's behavior, but to no avail. She did so again in 1988, again without result.2 That same year, Murphy sought advice from Father William Mannion, a former classmate of hers at CCMS. Mannion agreed to speak with Murphy at length about her experiences with Merzbacher. After doing so, Mannion reported the incidents to officials of the Archdiocese of Baltimore. Merzbacher was eventually charged with three counts of carnal knowledge of a female

Because Merzbacher raises no issue regarding the sufficiency of the evidence, we see no need to describe in detail the horrific testimony adduced at trial. Accordingly to Murphy, Weisman served as the principal of CCMS during her last two years at that school. By 1988, she was the principal of another area Catholic school.
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child under the age of fourteen years, and single counts of perverted practice, common law rape, and sexual child abuse. From May 22 through June 8, 1995, he was tried before a jury in the Circuit Court for Baltimore City. Elizabeth Murphy was the principal State's witness against Merzbacher at that trial. The jury returned guilty verdicts on all counts, and the court sentenced Merzbacher to four life sentences, plus ten years, to run concurrently. Merzbacher timely appealed those judgments to the Court of Special Appeals. The intermediate appellate court affirmed in an unreported opinion. We will mention additional facts as necessary to our consideration of Merzbacher's contentions.

II. In his Petition for Certiorari, Merzbacher complains that the trial court (1) provided the jury with an erroneous reasonable doubt instruction; (2) improperly admitted criminal propensity or "bad acts" evidence against him; and (3) wrongfully excluded relevant evidence favorable to the defense. We shall consider each of these assertions in turn.

a. Merzbacher first alleges that the trial court "propounded a completely deficient instruction defining the concept of proof beyond a reasonable doubt." Following the close of all evidence, the trial court instructed the jury as follows upon reasonable doubt: "as you . . . know [ladies and gentlemen of the jury] under our law the Defendant is presumed to be innocent of all of the charges against him. This presumption remains with the Defendant throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the Defendant is -2-

guilty. The state, as you know, has the burden of proving the guilt of the Defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The Defendant is not required to prove his innocence, however, the State is not [] required to prove guilt beyond all possible doubt or to a mathematical certainty nor is the State required to negate every conceivable circumstance of innocence. Proof beyond a reasonable doubt, ladies and gentlemen, is proof that leaves you firmly convinced of the Defendant's guilt. There are very few things in this world that we know with absolute certainty and in criminal cases the law does not require proof that overcomes every possible doubt. If based on your consideration of the evidence you are firmly convinced that the Defendant is guilty of the crimes charged you must find him guilty. If on the other hand you think there is a real possibility that he is not guilty you must give him the benefit of the doubt and find him not guilty." Merzbacher excepted. In his view, this instruction, (1) set the State's burden too low; (2) failed to define or explain the State's burden in any comprehensible way; or (3) otherwise rendered the harboring of a reasonable doubt more difficult than that for which the law actually calls. The State, of course, responds by asserting that the trial court's reasonable doubt instruction fell within acceptable limits and in no way prejudiced the accused. The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees that a criminal defendant's conviction can be had only upon proof beyond a reasonable doubt. Wills v. State, 329 Md. 370, 374, 620 A.2d 296, 297 (1993)(citing In re Winship, 397 U.S. 358, 361-64, 90 S. Ct. 1068, 1071-73, 25 L. Ed. 2d 368, 373-75 (1970)); Lambert v. State, 193 Md. 551, 558, 69 A.2d 461, 464 (1949). The reasonable doubt standard is such an indispensable and necessary part of any criminal proceeding that, with respect to a case tried before a jury, the trial court's failure to inform the jury of that standard constitutes reversible error. Wills, supra, 329 Md. at 376, 620 A.2d at 298; Montgomery v. State, 292 Md. 84, 93, 437 -3-

A.2d 654, 658 (1981) (citing Jackson v. Virginia, 443 U.S. 307, 320 n.14, 99 S. Ct. 2781, 2790 n.14, 61 L. Ed. 2d 560, 574 n.14 (1979)). The issue in this case, of course, is not whether the trial court must provide the jury with a reasonable doubt instruction. It must. We here are asked the narrow question of whether the reasonable doubt instruction in the instant case understated the State's burden of proof to the prejudice of Merzbacher. We believe that it did not. Both the State and Merzbacher find support for their respective positions in Wills v. State, 329 Md. 370, 620 A.2d 295 (1993), and in Joyner-Pitts v. State, 101 Md. App. 429, 647 A.2d 116 (1994). Merzbacher's reliance, however, is misplaced. In Wills, supra, this Court endorsed the reasonable doubt instruction agreed upon by various members of the bench and bar comprising the Committee which adopted the Maryland Pattern Jury Instructions-Criminal Law (1991) (MPJI-CR). MPJI-CR 2:02 provides that "[a] reasonable doubt is a doubt founded upon reason. It is not a fanciful doubt, a whimsical doubt or a capricious doubt. Proof beyond a reasonable doubt requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs. However, if you are not satisfied of the defendant's guilt to that extent, then reasonable doubt exists and the defendant must be found not guilty."[3] (Emphasis added). In contrast to MPJI-CR 2:02, however, the trial judge in the case sub judice neither employed the "without reservation" language highlighted above, nor did he relate that concept to the jurors' decision to act "in an important matter in [their] own business or personal affairs." In

Merzbacher's "Requested Instruction #17" was a verbatim recitation of Maryland Pattern Jury Instruction -- Criminal 1991 2:02. In response to Merzbacher's request, the court said "[n]umber 17 I will grant in my own language."

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Merzbacher's view, "these ideas provide real assistance to lay jurors in coming to grips with the required degree of certainty in finding a fellow-citizen guilty of a crime[.]" Without them, he argues, the trial court's instruction was hopelessly deficient. While we agree that MPJI-CR 2:02 provides an adequate, if not preferable, explanation of the reasonable doubt standard, we in no way intimated in Wills that 2:02 is the definitive statement of the concept; to the contrary. We noted that "[o]ur opinions [prior to Wills] have refrained from adopting a boiler plate explanation of [the term] reasonable doubt[.]" 329 Md. at 382, 620 A.2d at 301; see also Poole v. State, 295 Md. 167, 186, 453 A.2d 1218, 1228 (1983); Montgomery, supra, 292 Md. at 95, 437 A.2d at 659-60. Merzbacher's contentions notwithstanding, the law does not enshrine any particular form of the reasonable doubt instruction. We recently said as much, albeit in dicta, in Hunt v. State, 345 Md. 122, 151-52, 691 A.2d 1255, 1269 (1997)(no magic words must be included in reasonable doubt instruction for it to pass muster). The United States Supreme Court expressed the same sentiment in Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994) by stating that "so long as the [trial] court instructs the jury on the necessity that the defendant's guilt be proven beyond a reasonable doubt , . . . the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof." 511 U.S. at 5, 114 S. Ct. at 1243, 127 L. Ed. 2d at 590. For our part, we have stressed that "when an explanation is given to the jury, whether at the instance of the judge or at the request of a party, it must be such as does not tend to confuse, mislead, or prejudice the accused. It is better that the explanation begin with a statement of the principle of presumption of innocence which places the burden of proof on the -5-

State, where it remains throughout the trial. The State is not required to prove guilt beyond all possible doubt or to a mathematical certainty, but it is not enough if the evidence shows that the defendant is probably guilty. Nor is it sufficient that reasonable doubt is defined only by its own terms. The explanation should focus on the term `reasonable doubt,' so as to bring home to the jury clearly that the corpus delicti of the crime and the criminal agency of the accused must be proved beyond a reasonable doubt." Wills, 329 Md. at 382-83, 620 A.2d at 301 (original emphasis). Merzbacher finds fault with the trial court's statement to the jury that proof beyond a reasonable doubt is synonymous with "proof that leaves [the members of the jury] firmly convinced of the Defendant's guilt." He likewise assails the court's suggestion to the jury that they must acquit if they believe there is a "real possibility that [Merzbacher] is not guilty." This latter statement, Merzbacher argues, undermines the State's burden by placing upon the defense the obligation to prove a "real possibility" of innocence. In considering his claim of error, we must consider the trial court's "explanation of reasonable doubt as a whole; [we cannot] determine the propriety of an explanation from an isolated statement[, but must] view[] the effect of a suspect statement on the jury in light of the entire explanation." 329 Md. at 384, 620 A.2d at 302; see also Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 138, 99 L. Ed. 150, 167 (1954) (instruction taken as a whole must adequately convey concept of reasonable doubt to the jury); Bowers v. State, 298 Md. 115, 159, 468 A.2d 101, 124 (1983) (objection to court's instruction should focus on instruction as a whole, not a portion lifted out of context). In that regard, we note that the trial court began its charge to the Merzbacher jury with the presumption of innocence principle, and reiterated it not once, but twice more during the -6-

charge. Moreover, the court reminded the jury on three occasions that the State was required to prove Merzbacher's guilt beyond a reasonable doubt, a burden, the court noted, which "remain[ed] on the State throughout the trial." While the remarks of which Merzbacher complains are susceptible of varying interpretations viewed in isolation, we are satisfied that the trial court's reasonable doubt instruction, taken as a whole, adequately conveyed the concept of reasonable doubt to the jury and impressed upon them the heavy burden borne by the State. To be sure, the reasonable doubt instruction assailed in the case sub judice is a far cry from the rambling and incomprehensible instruction that we condemned in Wills. There, the trial court instructed the jury that "`if you weigh all of the factors, if you weigh the things that say, I shouldn't do it, and you decide to go forward, then you don't have a reasonable doubt.'" 329 Md. at 387, 620 A.2d 303. We concluded that this explanation of reasonable doubt was both "confusing and misleading because it lean[ed] towards the preponderance standard rather than the reasonable doubt standard." Id., 620 A.2d at 303. We further observed that such an instruction could lead a jury to believe that "if the evidence adduced by the State has more convincing force and produces in the minds of the jury a belief that it is more likely true than not, the reasonable doubt standard has been met." Id., 620 A.2d at 303. The Wills instruction suffered from the additional infirmity that it equated "reasonable doubt" with a "nagging" doubt. We thus concluded that the trial court's "instruction as a whole did not measure up to an acceptable explanation of the reasonable doubt standard. 329 Md. at 388, 620 A.2d at 303. The Court of Special Appeals likewise condemned a trial court's reasonable doubt instruction in both Joyner-Pitts, supra, and Himple v. State, 101 Md. App. 579, 647 A.2d 1240 -7-

(1994). In attempting to define reasonable doubt for the jury, the Joyner-Pitts trial court, in what the Court of Special Appeals called a "rather lengthy, home spun instruction," launched into a meandering soliloquy that occupied twenty one paragraphs of the official and unofficial reporters. See Joyner-Pitts, 101 Md. App. at 436-441, 647 A.2d at 119-21. At times, the court compared the reasonable doubt standard to the decision to purchase consumer goods, and then at others, to the decision to marry. Observing that "[m]any human beings buy consumer goods on impulse . . . [and] ofttimes even get married on impulse . . . [and] also decline to do so based on no more articulable feelings than they could explain for acting to the contrary," Id. at 445, 647 A.2d at 124, the intermediate appellate court concluded that the instruction, taken as a whole, "blurred the concept of reasonable doubt to the extent that there is a reasonable likelihood that the jury applied the instruction in such a way as to require either a higher degree of doubt than is required for acquittal or a lower degree of proof for a finding of guilt than is required under the reasonable doubt standard." 101 Md. App. at 447, 647 A.2d at 125. In Himple, supra, the Court of Special Appeals went so far as to reverse a defendant's conviction for "plain error" under Maryland Rule 4-325(e). 4 Although the defense failed to object at trial, the court observed that the instruction provided to the jury defined reasonable doubt as "a certainty based upon a convincing ground of probability." 101 Md. App. at 581, 647 A.2d at 1241. Considering that the subject instruction failed to incorporate the "without

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Maryland Rule 4-325(e) provides:

"Objection. -- No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object."

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reservation language" sanctioned in Wills, and otherwise "conflict[ed] with any reasonable doubt instruction," the intermediate appellate court reversed, concluding that the instruction "was plain and prejudicial error." The common thread running through these cases is the notion that the trial court properly informed the jury of the evidentiary standard that the State must meet -- beyond a reasonable doubt -- and then proceeded to explain that standard in terms which suggested that they could convict upon a quantum of proof lower than that legally required. For these trial courts, what started as a laudable attempt to further explain a legal abstraction ended in reversible error. The case sub judice simply does not fit that mold. While the instruction provided by the trial court below was perhaps slightly anemic, we cannot conclude that, in its entirety, it understated the State's burden of proof, or otherwise prejudiced Merzbacher in any way. Nonetheless, we strongly recommend that trial courts closely adhere to the reasonable doubt instruction endorsed by Wills and articulated in MPJR-CR 2:02. Human experience has shown that language is, at best, an imperfect form of communication. Reasonable doubt is a vague and difficult concept that must be utilized by jurors in the demanding intellectual process of interpreting evidence presented to them in the course of a criminal proceeding. The concept evades formalistic precision and does not lend itself to quantification by the mechanical laws of the physical world. To suggest that reasonable doubt is best defined by a particular set of words strung in a specific order pretends a mathematical rectitude which, even in the best of circumstances, does not exist in the deliberative process. In defining reasonable doubt for jurors, a trial court must use its best legal judgment and explain the term in light of the principles we articulated in Wills, See 329 Md. at 382-83, 620 A.2d at 301, and avoid explanations and -9-

examples which undermine the State's burden proof and the defendant's presumption of innocence. A trial court can do, and a criminal defendant is entitled to, no more.

b. Merzbacher next contends that the trial court erroneously permitted the State to introduce "prior bad acts" and "prior crimes" evidence over his objections. In his view, "[n]one of these matters bore any significant probative value." At the outset, we note that the admission of evidence is committed to the considerable and sound discretion of the trial court. North River Ins. Co. v. Mayor and City Council of Baltimore, 343 Md. 34, 89-90, 680 A.2d 480, 508 (1996); Armstead v. State, 342 Md. 38, 66, 673 A.2d 221, 235 (1996); Lubinski v. State, 180 Md. 1, 8, 22 A.2d 455, 459 (1941). In that regard, all relevant evidence is generally admissible. A corollary to that rule is that irrelevant evidence is not admissible. Md. Rule 5-402. To be relevant, evidence must tend to establish or refute a fact at issue in the case. Md. Rule 5-401; see also Williams v. State, 342 Md. 724, 736, 679 A.2d 1106, 1112 (1996). Once a finding of relevancy has been made, we are generally loath to reverse a trial court unless the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse of discretion. White v. State, 324 Md. 626, 637, 598 A.2d 187, 192 (1991); Thomas v. State, 301 Md. 294, 317, 483 A.2d 6, 18 (1984), cert. denied, 470 U.S. 1088, 105 S. Ct. 1856, 85 L. Ed. 2d 153 (1985). Nonetheless, as we said in Williams, supra, "[a] finding by the trial judge that a particular piece of evidence is relevant, however, does not mean that evidence is automatically admissible. Even relevant evidence may be excluded if its -10-

probative value is substantially outweighed by the danger of unfair prejudice. Hunt v. State, 321 Md. 387, 425, 583 A.2d 218, 236 (1990), cert. denied, 502 U.S. 835, 112 S. Ct. 117, 116 L. Ed. 2d 86 (1991); 5 LYNN MCLAIN, MARYLAND EVIDENCE

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