Huber v. State
| Decision Date | 20 October 1967 |
| Docket Number | No. 184,184 |
| Parties | Paul E. HUBER v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Elsbeth Levy Bothe, Baltimore, for appellant.
S. Leonard Rottman, Asst. Atty. Gen., Francis B. Bruch, Atty. Gen., Baltimore, Richard J. Kinlein, State's Atty., for Howard Co., Ellicott City, on the brief, for appellee.
Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and RUSSELL, GEORGE, L., Jr., Special Judge.
Paul E. Huber was indicted by the Grand Jury of Baltimore City for kidnapping and rape. Upon request by the Appellant, the case was removed to the Circuit Court for Howard County. A Motion to Dismiss the first count of the rape indictment was granted, and the other indictments were consolidated and tried before a jury. The Appellant was convicted of common law assault and kidnapping on May 25, 1966. After a Motion For New Trial was heard and denied, the Appellant was sentenced to fifteen years for kidnapping and five years for assault in the Maryland Penitentiary, the sentences to be served consecutively.
The Appellant raises the following contentions in his appeal from the above judgments:
1. That the use of the Appellant's military records were improper:
(a) The Appellant's military court-martial convictions were not admissible for the purposes of impeachment.
(b) The State was not entitled to show the details of the court-martial convictions and to introduce the records into evidence.
(c) The Court did not adequately instruct the jury on the evidential use of the Appellant's military records.
2. The pictures and tracings introduced into evidence against the Appellant were inadmissible, because they were not subject to seizure, they were obtained through an illegal search and seizure, and they were not competent evidence.
3. The court erred in refusing to allow Appellant to inquire as to whether the prosecuting witness was under the effects of medication while testifying.
4. The court erred in refusing to allow the Appellant to impeach the testimony of the prosecuting witness through the testimony of other witnesses which would show prior inconsistent statements made by the prosecuting witness.
5. The court erred in holding the witness immune from impeachment generally on the ground that the Appellant made her his witness for purposes of laying a foundation for impeachment.
6. The court erred in ruling the fact and content of a telephone conversation between a witness and the prosecuting witness inadmissible under the hearsay rule.
7. The court erred in ruling the testimony of witnesses concerning occurrences between Appellant and his attorney inadmissible under the hearsay rule.
The Appellant met the prosecuting witness after she finished work at 1 a. m. on the morning of March 4, 1964. After stopping at a restaurant and a night spot, the Appellant drove to a place several blocks from the prosecutrix's home, where he left the car. After returning, he drove the car around the corner and stopped, claiming that he had to wait for his brother to bring some money. The prosecuting witness testified that after ten minutes, the Appellant suddenly grabbed her arms, gagged her with a handkerchief and Kleenex, and tied her arms with ropes procured from the glove compartment. The Appellant pushed the victim down in the seat and drove to a secluded area where they remained until dawn. The Appellant alternately tied and untied the prosecutrix, but made no advances. He then drove to a motel, rented a cabin, and once inside, resumed his procedure of tying and untying the prosecutrix. During this time, he removed all of the prosecutrix's clothing, but left her feet tied, and made an unsuccessful attempt to have sexual intercourse with her. Some time in the late morning, the Appellant helped the prosecutrix to dress and they left the motel. Upon reaching the residence of the prosecutrix, the Appellant unbound her arms, and, after warning her not to report the incident, allowed her to leave.
The uncle of the prosecutrix testified that she came to his home about 12 noon on the day the alleged offense occurred, and that she related the episode at that time. The prosecutrix went to work on the night of March 4, 1964, and did not report the incident until the next day, some thirty hours after its occurrence.
I.
In regard to that part of the Appellant's first contention which concerns the admissibility of the Appellant's court-martial convictions, the Court finds that such evidence, within the guidelines set down by this opinion, is admissible. The Appellant argues that the fact of convictions is not admissible, as the Appellant was convicted by a military tribunal, and there was no showing of whether or not the conduct of the court-martial provided due process of law to the Appellant. This particular issue is a point of first impression in Maryland, and the Court has reviewed the pertinent decisions of other jurisdictions in arriving at its conclusion.
Wharton's Criminal Evidence, 12th Ed., Vol. 3, Sec. 939, p. 375, states that:
'Conviction by court-martial of a military offense or imprisonment for breach of military discipline involve no moral turpitude and cannot be shown to affect a witness's credibility.'
Wharton cites People v. Joyce, 233 N.Y. 61, 134 N.E. 836, where the district attorney was permitted to inquire over objection and exception for two pages of the record as to whether the defendant was imprisoned while in the army in World War I and as to whether he did anything there for which he was imprisoned. The Court said:
(233 N.Y. at 71, 134 N.E. at 840)
In Midkiff v. State, 29 Ariz. 523, 243 P. 601, also cited by Wharton, the defendant tried to impeach a witness by proving that the witness had been convicted by a court-martial for desertion. The Court, in ruling that such evidence was properly refused admission, stated:
'Desertion is purely a military offense; it is not a crime under the general law; its character is such as not to involve moral turpitude or to indicate a disposition or trait that would make the witness' testimony questionable.' (29 Ariz. at 537, 243 P. at 606).
The rule of law applied in the above authorities can be stated in more concise form by reference to three cases cited by Appellant. Henderson v. United States, 202 F.2d 400, at 405-406 (6th Circuit Court of Appeals), held that cross-examination for impeachment purposes should be limited to showing convictions for felonies or crimes involving moral turpitude, and that the lower court erred in admitting evidence of court-martial convictions for absent without leave (AWOL) offenses. The Second Circuit held in United States v. Tomaiolo, 249 F.2d 683, at 692, that a court-martial conviction for an AWOL offense was a breach of military discipline, and as such, was neither a felony or a crime involving moral turpitude. Rhea v. State, 208 Tenn. 559, 347 S.W.2d 486, citing Henderson v. United States, supra, and United States v. Tomaiolo, supra, held that:
'* * * the rule seems to be that for the purpose of impeachment of a witness a bad conduct or a dishonorable discharge is not admissible unless it is shown that the breach of military disicipline involved acts of moral turpitude.' (347 S.W.2d at 487)
It seems, then, that in order for evidence of prior court-martial convictions of a witness to be admitted for the purpose of impeaching the witness's credibility, the conviction must involve an act of moral turpitude, which is not purely a matter of military discipline, and which is a crime under the general law.
The Court finds that Huber's convictions were admissible for the purposes of impeachment because a conviction for assault involves an act of moral turpitude; an 'assault on a German national' is not purely a matter of military discipline, and assault is clearly a crime under the law of Maryland. See Miller v. State, 1 Md.App. 653, 232 A.2d 548.
The Appellant contends further that the details of the court-martial convictions are inadmissible, even if the fact of these convictions is to be admitted.
The record shows that the Appellant was asked on cross-examination whether or not he had ever been convicted of larceny. He answered that he had been convicted, that his conviction was reversed, and the State then confessed not guilty. On further cross-examination, the Appellant was asked:
'Q. Now, finally, Mr. Huber, you have indicated to the Court and jury that you have never been convicted, or you have never tied any other woman or forced any other woman. Is that correct?
'A. I answered a question to that effect. Yes.
'Q. Is it true or is it false?
'A. It is-that I had?
'Q. That you have.
'A. I will say I did not.
'Q. Have you been convicted of it?
'A. I was convicted of assault in the service.
'Q. How many times?
'A. Twice.
'Q. On a woman?
'A. Yes.
'Q. Did it involve the question of whether or not you tied her hands and tore her clothing off?
'A. I did not tear her clothing off.
'Q. I did not ask you what you did.
'A. Yes.
'Q. I asked you what the Court found you guilty of.
'A. Yes.
'Q. They found you guilty of tearing the clothing off of a woman and tying her wrists, is that correct?
'A. I did not tie her wrists, but this is the way the testimony went there.
'Q. That's what they found you guilty of?
'A. Yes, sir.
'Q. And that was in 1951.
'A. In Berlin, Germany.
'Q. And you were in the service from 1949 until approximately 1953?
'A. Yes, sir.
'Q. And again in 1950 you were charged with placing your hands over a woman's mouth?
'A. That was the charge.
'Q. And tearing her...
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