Burrell v. State

• Decision Date: 11 April 1979
• Docket Number: No. 843,843
• Citation: 42 Md.App. 130,399 A.2d 1354
• Parties: Clyde Emanuel BURRELL, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 130

42 Md.App. 130

399 A.2d 1354

Clyde Emanuel BURRELL, Jr. v. STATE of Maryland.

No. 843.

Court of Special Appeals of Maryland.

April 11, 1979.

Joseph F. Murphy, Jr., Towson, for appellant.

Stephen H. Sachs, Atty. Gen., Kathleen M. Sweeney, Asst. Atty. Gen., Sandra A. O'Connor, State's Atty. for Baltimore County and Bruce G. Bellin, Asst. State's Atty. for Baltimore County, for appellee.

Submitted to THOMPSON, LOWE and WILNER, JJ.

WILNER, Judge.

March 10, 1978, was a Friday, and that meant it was payday for Clyde Burrell, Jr. and Curtis Williams. Having completed At some point around midafternoon, after each of these gentlemen had consumed a fair amount of spiritous potion, they removed themselves to the parking lot outside the store for a friendly game of Tonke. Tonke is a card game, the precise rules of which are not fully described in the record and are not sufficiently well-known to this Court to permit the taking of judicial notice; but the game does clearly permit the placing of wagers upon its outcome. Indeed, it was not the love of the game itself that induced this adventure. It was, alas, that both were flushed with their paychecks, conveniently cashed for them by the neighborly spirit shop, and they were settling down to a little gambling.

the night shift at Bethlehem Steel, they left work early Friday morning, armed with their week's pay, and repaired to the North Point Liquor Store, as apparently was their weekly habit. Williams said he got there about 9:30 a. m., just after leaving work. Burrell arrived about 12:30 p. m.

As sometimes is known to happen in these situations, a dispute arose with respect to the proper interpretation and application of one of the rules of the game. Mr. Burrell attempted to explain the precise nature of the dispute the text of the rule that was allegedly violated and the manner of its alleged violation but we must confess that the explanation is lost on us. Fortunately, this case does not depend upon such an understanding. Suffice it to say that Mr. Williams picked up $10 from the pot without the concurrence of Mr. Burrell, who attempted to explain to Mr. Williams why, under the rules of the game, his pocketing of the money was inappropriate. Mr. Williams remained unconvinced.

Very quickly, the dispute left the arena of patient logic and calm, rational debate and dropped to a considerably less lofty but much more frequent forum for the resolution of such disputes. Mr. Williams lunged at Mr. Burrell with a knife. He missed, however, and was, at least temporarily, suitably restrained.

The narrative to this point is essentially undisputed. Also undisputed is that, at some later time, Mr. Burrell went to his car, got a .38 caliber pistol, and with it shot Mr. Williams in the chest and in the leg. The critical area of controversy is Mr. Williams, though admitting having a knife and going after Mr. Burrell with it once, said that that had occurred at least an hour before the shooting. His version was that the argument had ended, that he was walking toward his car and away from Burrell, his knife in his pocket, when Burrell shot him from a distance of about two car lengths. Burrell, as might be expected, described a somewhat different sequence of events. The argument continued, he said, despite his persistent attempts to end it. Williams taunted him, cursed him, and came at him not once but on at least three occasions with the knife. It was he Burrell who walked away. He went back into the liquor store, bought some pig knuckles, and started for his car when Williams came at him again. Twice Williams shoved him, and advanced once more with the knife. It was at this point that Burrell shot him once in the chest. Undaunted, Williams came at him one more time with the knife and Burrell shot him in the leg. Burrell then drove away, but subsequently turned himself in to the Baltimore City police.

the extent to which this shooting was provoked by Mr. Williams' intervening actions whether, in other words, Mr. Burrell was acting in self-defense. The context in which this controversy arose and was resolved was Mr. Burrell's trial in the Circuit Court for Baltimore County, sitting without a jury, for assault with intent to maim and use of a handgun in the commission of a crime of violence.

Two neutral witnesses testified for the State. Robert Ware was inside the North Point Liquor Store, along with quite a few other people, when the crowd suddenly rushed to the window facing the parking lot. Ware looked up (I. e., out of the window) just in time to see Burrell shoot Williams. Ware said that he was about 100 to 125 yards away from where this occurred, but no one questioned his ability to see what he described. He did not see a knife. Indeed, he only looked up for the two or three seconds when the actual shooting occurred, and could not tell whether, at that moment, Williams was walking away from Burrell. When asked how far apart the two men were, he said "from here to that wall" which, in the absence of any more precise quantification The second neutral witness was police officer Albrecht, who had investigated the shooting. No weapon was recovered not a knife and not the gun. He testified as to an oral statement given to him by Burrell later in the day, which was generally consistent with the story given by Burrell in court.

leaves this Court in a bit of a quandry as to how far that really was.

Upon this evidence, the court convicted Burrell on both charges and sentenced him to prison for a total of eight years (five years for assault with intent to maim and three years, consecutive, for the handgun offense).

At the end of the State's case (and the overruling of his motion for judgment of acquittal), Burrell elected to testify in his own defense. This was not, however, until after he had been warned by his attorney that, if he did testify, the court and the State's Attorney could ask questions about "any record you have since you have been eighteen years of age, where you have been represented by counsel or where you have in fact waived your right to counsel." "That is", said the attorney, "any convictions can be brought out."

So warned, appellant took the stand and gave his version of what occurred. Not to make a liar out of defense counsel, the State's Attorney did indeed inquire, upon cross-examination, about several prior convictions. He first asked a general question have you ever been convicted of a criminal offense while represented by counsel but, at the court's suggestion, then got more specific. He asked about a 1970 conviction for disorderly conduct, to which the court sustained an objection based on the fact that such a crime was not one of moral turpitude. Compare Cousins v. State, 230 Md. 2, 185 A.2d 488 (1962). He then asked about a 1973 assault conviction, to which the court overruled an objection with the comment, "I think that that has some relevance to this case." Finally, the State brought out that in 1975, appellant had been convicted of a "deadly weapon charge", without specifying the offense further.

Appellant's sole complaint in this appeal is that the court erred in allowing the evidence of his 1973 assault conviction. Pointing up the court's remark as to the relevance of that We do not share appellant's interpretation of why for what purpose evidence of his earlier assault conviction was admitted. He reads too much into the court's response to the objection expressed by counsel, and, in effect, damns the court with very faint praise. He credits the court with knowing of the concerns expressed in Thomas about the relevance of an assault conviction to one's credibility as a witness, and yet implicitly charges the court with ignorance of a far more fundamental principle.

conviction in the light of our decision in Thomas v. State, 29 Md.App. 45, 349 A.2d 384 (1975), he assumes that the trial court recognized that the assault conviction would be irrelevant, and therefore inadmissible, for the purpose of impeaching appellant's credibility as a witness, and therefore postulates that the court accepted the conviction as bearing directly on the issue of whether appellant was the aggressor in this instance. This, he alleges, would be equally, if not more, impermissible.

Clearly, a conviction for assault occurring five years ago is inadmissible as substantive evidence bearing on the ultimate issue of appellant's guilt in the instant proceeding. Cross v. State, 282 Md. 468, 386 A.2d 757 (1978). We presume that the trial court was aware of that rather basic tenet; certainly, a fair and unstrained reading of the record lends no support to the contrary. What the court obviously meant was that, in contrast to the 1970 conviction for disorderly conduct, which had no relevance for any purpose, the assault conviction, being more recent and more serious, would be relevant with respect to the issue of appellant's credibility as a witness. Would the fact that he had once before been convicted of assault make him less likely to be truthful in his testimonial account of this incident? That, it seems to us, is the question to which the court believed this evidence to be relevant, and that was the purpose for which it was admitted.

The questions are then posed: does a conviction for simple assault, especially one that occurred five years earlier, necessarily indicate a propensity toward lack of credibility? Is such evidence admissible even for purposes of impeachment?

Under the current state of the Maryland law, gleaned from The "maybe", as we shall see, is derived from the underlying rules laid down by our Court of Appeals concerning the impeachment of witnesses generally through a showing of their past criminal behavior. We, of course, are bound by those principles as enunciated by our State's highest court we may neither ignore nor alter them; and we shall decide this case, as indeed we must, in what we hope and believe is full conformance...