Horne v. State

• Decision Date: 01 September 1989
• Docket Number: No. 69,69
• Citation: 321 Md. 547,583 A.2d 726
• Parties: Corey R. HORNE v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 547

321 Md. 547

583 A.2d 726

Corey R. HORNE v. STATE of Maryland.

No. 69, Sept. Term, 1989.

Court of Appeals of Maryland.

Jan. 9, 1991.

Sherrie B. Glasser, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for petitioner.

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY and CHASANOW, JJ., WILLIAM H. ADKINS ^* and HARRY A. COLE, ^** Associate Judges of the Court of Appeals (retired), and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.

HARRY A. COLE, Judge.

We granted certiorari in this case to decide whether a non-party witness could properly invoke the Fifth Amendment privilege against compulsory self-incrimination on cross-examination in response to defense counsel's questions regarding his prior convictions.

We set forth those facts which are pertinent to resolution of this issue. Petitioner, Corey Horne, was charged with theft and unauthorized use of a motor scooter. These charges were filed following Horne's arrest for traffic violations not relevant to this appeal. ¹ At the time Horne was stopped for these traffic infractions, the police officer asked Horne why the keys did not fit the ignition of the motor scooter. Horne responded by stating that the scooter recently had been stolen. Due to Horne's arrest, the motor scooter was impounded. A subsequent computer check revealed that the motor scooter had been reported stolen. The theft and unauthorized use case was tried before a jury in the Circuit Court for Baltimore City. As part of his defense, Horne intended to show that although he had been in possession of the motor scooter, he had not stolen it. Instead a friend, Chanel Daye, [Daye] had brought the vehicle to Horne and asked him to repair it.

During presentation of the State's case-in-chief, the prosecutor called Daye to the stand. Thereafter, the following discussion took place at the bench outside the hearing of the jury:

[DEFENSE COUNSEL]: I think this defendant should be advised, should be informed of his Fifth Amendment right.

THE COURT: On this case, because of this case?

[DEFENSE COUNSEL]: Yes.

THE COURT: Does he have exposure?

[DEFENSE COUNSEL]: The State could charge him.

THE COURT: How is he exposed?

[DEFENSE COUNSEL]: Again, the defense is that he gave this stolen scooter--

THE COURT: He had possession of this?

[DEFENSE COUNSEL]: Yes.

THE COURT: All right. I will advise him of his rights.

After Daye was sworn in, the trial judge advised him of his Fifth Amendment right not to testify. The trial judge further explained to Daye that he probably would be asked questions regarding the stolen vehicle. Although Daye initially expressed a desire to remain silent, he did respond affirmatively to the State's question as to whether he knew the Petitioner. On cross-examination, when asked by defense counsel whether he had been convicted of "theft of a car, theft of a truck and theft of some tools," Daye refused to answer.

In his defense, Horne presented two witnesses, his father and his father's girlfriend, who testified that they saw Daye with the stolen motor scooter; that Daye brought the vehicle to Horne's house; and that later Horne began working on the same vehicle, which was red. These witnesses also testified that Horne owned a motor scooter which was beige or gold in color, thus implying that Horne had no reason to steal somebody else's motor scooter. Horne did not testify. Upon completion of the presentation of Horne's case, the State was allowed to recall Daye to rebut the testimony regarding Daye's possession of the motor scooter. The trial court again advised Daye of his right to remain silent. On direct examination the State elicited the following testimony:

Q. [Prosecutor] Sir, did you ever, at any point in time, leave a red motor scooter with the defendant at his house?

A. [Daye] No.

Thereafter Daye invoked his fifth amendment privilege in response to the State's remaining questions. On cross-examination, the following testimony ensued in part:

Q. [Defense counsel]: Since your 18th birthday at which time you were represented by an attorney or given up your right to an attorney is it a fact that you have been convicted of theft of tools, theft of a car, theft of a truck, which you told me about yesterday.

[PROSECUTOR]: Objection, your honor.

A. I wish to remain silent.

THE COURT: Wait a minute. Do you have an objection?

[PROSECUTOR]: Yes, your honor. ²

THE COURT: Overruled. Your answer is?

[DAYE]: I wish to remain silent.

[DEFENSE] Your Honor, may we approach the bench?

THE COURT: No, you may not. If you have anything to say, say it in front--

[DEFENSE]: I don't see how that can possibly incriminate him.

THE COURT: It's not for me to speculate.

All of Daye's testimony was elicited in the presence of the jury.

Horne was found guilty of theft and sentenced to four years imprisonment. Petitioner appealed and the Court of Special Appeals affirmed Horne's conviction in an unreported opinion. We granted certiorari in order to resolve the important question presented.

Daye was called to testify by the State in its case-in-chief and in rebuttal to Horne's defense. Daye invoked the privilege against self-incrimination in both instances in response to defense counsel's questions. It is to the questions asked when recalled to which Horne assigns error. He maintains that Daye's prior convictions were admissible for impeachment purposes; and, that impeachment of Daye's credibility was crucial in light of his rebuttal testimony denying any connection with the stolen motor scooter. Consequently, Horne argues, the trial court erred in permitting Daye to invoke the privilege, and thus prevent Petitioner from impeaching his credibility.

The State concedes that Daye should not have been allowed to invoke the Fifth Amendment in response to the question regarding his prior convictions. It argues, however, that there are at least two other bases upon which Horne's conviction may be affirmed. First, relying on Mack v. State, 300 Md. 583, 479 A.2d 1344 (1984) the State maintains that Horne did not preserve this issue for appellate review by proffering that the prior convictions were final and, thus, admissible. Second, the State contends that preventing Horne from impeaching the witness's credibility constituted harmless error in light of the other evidence establishing Petitioner's guilt.

I

The instant case presents the collision of two closely protected constitutional rights: the Fifth Amendment privilege against compulsory self-incrimination and the Sixth Amendment right to call witnesses to testify in one's behalf. The Supreme Court has concluded that, when the two rights are juxtaposed in a given case, the Fifth Amendment privilege of the witness prevails. Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972). The relevant portion of the Fifth Amendment declaration provides that "No person ... shall be compelled in any criminal case to be a witness against himself." Invocation of the privilege is not without limits, however. In Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), the Supreme Court made this clear, stating:

[t]he privilege afforded not only extends to answers that would in themselves support a conviction ... but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant.... But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.... The witness is not exonerated from answering merely because he declares in so doing he would incriminate himself--his say so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, and to require him to answer if "it clearly appears to the court that he is mistaken." (citation omitted). (Emphasis provided).

341 U.S. at 486, 71 S.Ct. at 818. We have consistently applied these principles. See Allen v. State, 318 Md. 166, 180, 567 A.2d 118 (1989); Choi v. State, 316 Md. 529, 536, 560 A.2d 1108 (1989); Adkins v. State, 316 Md. 1, 6-7, 557 A.2d 203, 205-06 (1989); Ellison v. State, 310 Md. 244, 252 528 A.2d 1271 (1987); Richardson v. State, 285 Md. 261, 266, 401 A.2d 1021 (1979); Smith v. State, 283 Md. 187, 198, 388 A.2d 539 (1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1050, 59 L.Ed.2d 92 (1979).

Not only must we apply the Hoffman standards to this case, but also the standard governing use of prior convictions for impeachment purposes. Maryland Code (1974, 1989 Repl.Vol.), § 10-905 of the Courts and Judicial Proceedings Article sets forth the applicable rule. It provides:

(a) In General.--Evidence is admissible to prove the interest of a witness in any proceeding, or the fact of his conviction of an infamous crime. Evidence of conviction is not admissible if an appeal is pending, or the time for an appeal has not expired, or the conviction has been reversed, and there has been no retrial or reconviction.

In Prout v. State, 311 Md. 348, 535 A.2d 445 (1988) we explained that "infamous crimes" included treason, the common law felonies, and the crimen falsi. 311 Md. at 360, 535 A.2d 449. In Wicks v. State, 311 Md. 376, 535 A.2d 459 (1988) we further discussed those crimes falling under the category of crimen falsi and concluded that the crime of theft fell within that category. 311 Md. at 382, 535 A.2d 459. More important, in Wicks we made it clear that infamous crimes were automatically admissible for impeachment purposes. Id. at 383, 535 A.2d 459.

II

Behind this backdrop, we now turn to the instant case to address Daye's invocation of the Fifth Amendment privilege. As previously set forth, Daye invoked the privilege in response to defense counsel's questions regarding his prior convictions. In...