Bane v. State

• Decision Date: 13 November 1987
• Docket Number: No. 338,338
• Parties: Leonard Morgan BANE, Jr. v. STATE of Maryland. Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 135

73 Md.App. 135

533 A.2d 309

Leonard Morgan BANE, Jr. v. STATE of Maryland.

No. 338 Sept. Term 1987.

Court of Special Appeals of Maryland.

Nov. 13, 1987.

George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Alexander Williams, Jr., State's Atty. for Prince George's County, Thomas Krehely and Diane Adkins, Asst. State's Attys. for Prince George's County, on brief, Upper Marlboro), for appellee.

Submitted before BISHOP, BLOOM and WENNER, JJ.

BLOOM, Judge.

Leonard Morgan Bane, Jr. (appellant) was convicted by a jury in the Circuit Court for Prince George's County of breaking and entering, ¹ second degree rape, ² and common law battery. ³ Sentenced to a total of twenty-three years imprisonment, with eight years suspended, Bane has appealed, asserting:

1. The trial court erred in permitting appellant to be impeached with a prior conviction of breaking and entering.

2. The trial court erred in permitting appellant to be impeached with a prior statement.

We agree with appellant's first assertion of error and consequently we shall reverse the judgments on that basis. Since the ruling complained of in the second issue is one that may recur on retrial, we will address it in this opinion as a matter of judicial economy.

Impeachment By a Prior Conviction

At the conclusion of the State's cross-examination of appellant, the following colloquy occurred:

THE STATE: Sir, on January 3rd, 1978 when you were represented by counsel, were you convicted of the crime of breaking and entering?

APPELLANT'S ATTORNEY: Objection, Your Honor.

APPELLANT: I'll answer that. ⁴

THE COURT: Just a moment. Approach the bench.

[BENCH CONFERENCE]

(THEREUPON, THE DEFENDANT NOT PRESENT AT THE BENCH)

THE COURT: Have you got a certified copy of the record?

THE STATE: Yes, Your Honor.

THE COURT: Let me see what you have.

(THEREUPON, THE COURT VIEWING SAME.) ⁵

THE COURT: What is the basis of your objection?

APPELLANT'S ATTORNEY: May I just see that, please? May I see that, please?

THE COURT: Sure.

(THEREUPON, [APPELLANT'S ATTORNEY] VIEWING SAME.)

THE STATE: Your Honor, I would note for the record that I had informed [appellant's attorney] by letter that I intended to use that conviction and I made the certification available to him prior to trial.

APPELLANT'S ATTORNEY: That's absolutely correct.

THE COURT: All right.

APPELLANT'S ATTORNEY: You have the discretion as to whether this comes in, I understand. However, something that happened eight or nine years ago, breaking and entering what I believe to be his sister's house.

THE COURT: I can't go into the details and I'm not about to go into the details. But I consider breaking and entering an offense involving moral turpitude.

APPELLANT'S ATTORNEY: Then I ask you give a cautionary instruction at this time.

THE COURT: No. I will give an instruction at the time I give all the other instructions that they can use this for only the purposes of determining his credibility, and that's it. I always do that. I have no problems doing that. ⁶

APPELLANT'S ATTORNEY: All right.

(BENCH CONFERENCE TERMINATED.)

THE STATE: I'll repeat that question and I would ask you to answer it "yes" or "no."

On January 3rd, 1978 when you were represented by counsel, were you convicted of the crime of breaking and entering?

APPELLANT: Yes, sir, I was.

Appellant contends that the trial court erred in permitting the State to impeach him with the prior breaking and entering charge. We agree.

In this state, it has been firmly established that in criminal cases, when the defendant takes the stand as a witness in his own behalf he thereby places his character in issue and may be asked on cross-examination if he has been convicted of crime. Burgess v. State, 161 Md. 162, 155 A. 153 (1931); Niemoth v. State, 160 Md. 544, 154 A. 66 (1931); Boone v. State, 2 Md.App. 80, 233 A.2d 476 (1967). The defendant is thus subjected to the same rules of cross-examination that govern other witnesses. Davis v. State, 237 Md. 97, 205 A.2d 254 (1964); Allen v. State, 183 Md. 603, 39 A.2d 820 (1944); Guy v. State, 90 Md. 29, 44 A. 997 (1899). But when it is the defendant's criminal history that is being inquired into, the trial court should be mindful that there is more than mere credibility being attacked. A more pervasive potential for prejudice must be considered, namely, the prejudice that is likely to emanate from advising the trier of fact that the very defendant on trial before it is already a convicted criminal. See Burrell v. State, 42 Md.App. 130, 399 A.2d 1354 (1979). Such prejudice is especially dangerous when the earlier crime is similar to that for which the defendant is currently being tried. Id. ⁷ As the United States Supreme Court, in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), observed:

That a record of prior convictions may actually do more than simply impeach a defendant's credibility has been often noted. See, e.g., C. McCormick, Evidence, § 43, p. 93 (1954):

The sharpest and most prejudicial impact of the practice of impeachment by conviction ... is upon one particular type of witness, namely, the accused in a criminal case who elects to take the stand. If the accused is forced to admit that he has a "record" of past convictions, particularly if they are for crimes similar to the one on trial, the danger is obvious that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on charge, or even that he ought to be put away without too much concern with present guilt, than they will to its legitimate bearing on credibility.

405 U.S. at 482-83 n. 11, 92 S.Ct. at 1019 n. 11.

Judge Karwacki, speaking for this Court in Duckett v. State, 61 Md.App. 151, 485 A.2d 691 (1985), aff'd, 306 Md. 503, 510 A.2d 253 (1986), outlined the Maryland law governing the admission of evidence to impeach a witness, including a defendant-witness, through a showing of his criminal record:

(1) The credibility of a witness is always a relevant issue in any case, civil or criminal;

(2) When a defendant in a criminal case elects to testify in his own defense, he subjects himself to the same rules of cross-examination that govern other witnesses;

(3) Evidence of a witness's prior conviction of an infamous crime is always admissible to impeach his credibility regardless of the age of that conviction. Md.Cts. & Jud.Proc.Code Ann. § 10-905 (Repl.Vol.1984, Cum.Supp.1987). ⁸

(4) The admissibility of evidence of a witness's prior conviction of a non-infamous crime is left to the sound discretion of the trial judge who must consider the nature of the crime and the length of time since it occurred in determining the relevance of the conviction to the witness's credibility.

61 Md.App. at 153-54, 485 A.2d 691. See also, L. McLain, Maryland Evidence, § 609 (1987). Therefore, the fact that a witness has been convicted of a crime is admissible to attack the witness's credibility only where the prior conviction was for (1) an infamous crime, (2) a crime involving moral turpitude, or (3) a lesser violation of the law which has some tendency to show that the witness is not to be believed. State v. Duckett, 306 Md. 503, 510 A.2d 253 (1986); Ricketts v. State, 291 Md. 701, 436 A.2d 906 (1981); Paschall v. State, 71 Md.App. 234, 524 A.2d 1239 (1987).

The Court of Appeals, in Garitee v. Bond, 102 Md. 379, 62 A. 631 (1905), defined infamous crimes as those crimes of treason, felony, perjury, forgery, and other offenses, classified generally as crimen falsi, which impress upon their perpetrator such a moral taint that to permit him to testify in legal proceedings would injuriously affect the public administration of justice. Accord, State v. Duckett, supra; Ricketts v. State, supra; Paschall v. State, supra.

It has never been fully determined what offenses, other than treason or felony, involve such moral turpitude as to have a legitimate bearing on one's credibility. The term "moral turpitude," while imprecise, connotes conduct which is "base or vile and contrary to the accepted and customary conduct between men." State v. Duckett, supra; Ricketts v. State, supra; Dental Examiners v. Lazzell, 172 Md. 314, 191 A. 240 (1937). Moral turpitude suggests, therefore, "such a disregard for social values on the part of the perpetrator, that one could reasonably infer that such a person's testimony is suspect." Ricketts, 291 Md. at 711, 436 A.2d 906. Finally, it has been held that to constitute moral turpitude the conduct involved must be intentional and not merely an act of negligence or an accident. Ricketts, supra; Lazzell, supra; Paschall, supra.

Crimes that are determined to be infamous or involving moral turpitude are always admissible as impeachment devices; the admission into evidence of a witness's prior conviction for a non-infamous crime is left to the sound discretion of the trial court. Cousins v. State, 230 Md. 2, 185 A.2d 488 (1962); Cason v. State, 66 Md.App. 757, 505 A.2d 919 (1986); Burrell v. State, supra. To be admitted for impeachment purposes, such a lesser crime must taint an individual's credibility. The trial court, when exercising its discretion to admit or exclude lesser crimes as impeachment devices, needs to take into consideration the length of time since the offense occurred and the nature of the offense. State v. Duckett, supra; Cousins v. State, supra; Paschall v. State, supra.

When dealing with the nature of the offense, the trial court must inquire whether the crime proffered for impeachment purposes involves, for example, the element of deceit, lying, or dishonesty which could lead a rational person reasonably to conclude that one who would commit such a crime would be less likely to tell the truth than one who would not commit such a crime. If...