Bailey v. State, 64

• Decision Date: 12 November 1971
• Docket Number: No. 64,64
• Citation: 283 A.2d 360,263 Md. 424
• Parties: Clifton Edward BAILEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 424

263 Md. 424

283 A.2d 360

Clifton Edward BAILEY v. STATE of Maryland.

No. 64.

Court of Appeals of Maryland.

Nov. 12, 1971.

Argued before HAMMOND, C. J., and BARNES, FINAN, SINGLEY and DIGGES, JJ.

HAMMOND, Chief Judge.

We granted certiorari to decide if the Court of Special Appeals had erred in approving the admission of evidence of a prior conviction of a witness for the accused in violation of the mandate of the final sentence of Code (1957, 1971 Repl.Vol.), Art. 35, § 10 (enacted by Ch. 259 of the Laws of 1969, effective July 1, 1969), which reads: 'No conviction may be used for any purpose under this section when the conviction is being appealed or the time for noting an appeal has not expired.' After full consideration of the briefs and oral argument, we are persuaded that it did.

Clifton Edward Bailey, the appellant, was convicted by a jury in the Circuit Court for Prince George's County of housebreaking and grand larceny and sentenced to concurrent ten-year terms of imprisonment. The evidence showed that on April 15, 1969 various items of tangible personal property, including a .22 Colt Woodsman pistol and a tan General Electric television set were taken from the home of one Moroski after the house had been broken into. Bailey and one John Coakley had for several weeks stayed as guests in the house next door. On the morning of the crime, a neighbor saw Bailey near the Moroski house holding a tan television set, and saw Coakley arrive on the scene in a 1961 white Ford. Three days later Bailey and Coakley were driving in a 1961 white Ford when an officer stopped them for a traffic violation. The officer saw an RCA television set and a tire and a typewriter in the car. Bailey showed the officer a driver's license in the name of Coakley's brother. Coakley quietly slipped away while the officer was questioning Bailey, who soon after ran away. A subsequent search of the car revealed the .22 Colt Woodsman pistol.

Coakley testified for Bailey that the two were moving from the house next to Moroski's house on April 15, the day of the robbery; that Bailey was carrying his own television set when the neighbor saw him and that Bailey had bought the .22 pistol on April 18 from a man named Bright. Coakley said the white Ford belonged to him and Bailey, although it was titled in his (Coakley's) brother's name. He slipped away from the officer because he knew Bailey was driving on a false license.

Bailey's testimony was essentially the same as Coakley's. He had run away because his driver's license was invalid.

During Coakley's testimony, he was asked on cross-examination by the prosecutor whether he was the same person who had pleaded guilty to forgery last month. This colloquy then ensued:

'(Mr. Berry) (defense counsel): Objection, Your Honor. This is not pertinent to-

(The Court) Overrule the objection.

(By Mr. O'Connell) (the prosecutor) Q.-forgery in Criminal Trial 9685 in this county last month?'

No one made any further comment and Coakley admitted the prior conviction.

In its unreported per curiam opinion the Court of Special Appeals noted that the final sentence of Art. 35, § 10, took effect before the date of Bailey's trial, and held:

'As Coakley's conviction was not final at the time of appellant's trial-the time for appeal not having expired-it appears clear that the admission of the prior conviction would have constituted error had the objection been based on the statute. But we think it plain that the objection was not made on that ground, but on the contrary was predicated on the traditional ground of its relevance to impeach the credibility of the witness. We, therefore, find no error in admitting the forgery conviction in evidence. See Metz v. State, 9 Md.App. 15, 262 A.2d 331; Bitzer v. State, 4 Md.App. 415, 243 A.2d 33.'

Bailey points out that Maryland Rule 522 d 1, which provides that 'unless requested by the court, it is not necessary to state the grounds for objections to evidence,' is applicable to criminal cases. Rule 725 f; Robert v. State, 220 Md. 159, 151 A.2d 737. He says that not only did the trial judge not ask for the basis of the objection but that he summarily cut off Bailey's counsel when he began to volunteer the basis of his objection.

We think Bailey's points are well taken and that it was error to admit the prior conviction over objection in violation of the statute. We can see no basis for the inference drawn by the Court of Special Appeals that it is 'plain that the objection was not made on that ground (§ 10 of Art. 35), but on the contrary was predicated on the traditional ground of its relevance to impeach the credibility of the witness.' We find it impossible from the record to tell what the basis of the objection was. Further, we see some force to the argument of Bailey that the trial judge should have been put on notice of the applicability of § 10 of Art. 35, since the prosecutor referred to a trial held 'last month' in 'this County' and in Prince George's County the time for appeal in a criminal case...