Johnson v. State

• Decision Date: 12 May 1970
• Docket Number: No. 331,331
• Citation: 265 A.2d 281,9 Md.App. 436
• Parties: Donald James JOHNSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 436

9 Md.App. 436

265 A.2d 281

Donald James JOHNSON v. STATE of Maryland.

No. 331.

Court of Special Appeals of Maryland.

May 12, 1970.

James F. Garrity, Baltimore, on brief, for appellant.

William E. Brannan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., and Charles A. Herndon, Jr., Asst. State's Atty. for Baltimore City, on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

Donald James Johnson appealed to this Court from his conviction by a jury in the Criminal Court of Baltimore of robbery with a deadly weapon. We remanded the case without affirming, reversing or modifying the judgment for the sole purpose of obtaining a determination by the lower court whether or not appellant had been represented by counsel at two previous trials in which convictions were obtained against him, the convictions having been proved by the State to impeach his credibility as a witness at the trial of the case before us. Johnson v. State Md.App., 263 A.2d 232, decided 17 March 1970. In so doing we held that the principle of Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 serves to exclude evidence of a prior conviction offered for the purpose of impeaching the credibility of an accused testifying on his own behalf when it is established that such conviction was obtained absent representation by counsel or a valid waiver thereof. We found that it is error of constitutional dimension for the court to admit into evidence a prior conviction obtained by a proceeding in which the defendant's constitutional right to counsel was infringed, but that on the particular facts of a given case the error could be harmless. In determining whether or not such error was harmless, the 'beyond a reasonable doubt' test of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 is applicable.

In our opinion remanding the case we finally decided all other points raised by appellant, finding that none warranted reversal of the judgment, and the opinion is conclusive as to those points. Maryland Rule 1071 a.

The transcript of the proceedings at the trial showed prior convictions of appellant obtained at two prior trials. One trial resulted in a petty larceny conviction designated by the Assistant State's Attorney to have been obtained on 24 June 1964. The other trial was referred to by the Assistant State's Attorney as occurring 21 June 1956 but in referring to the crime he indicated it was committed on 2 April 1966. At that trial appellant was convicted of robbery with a deadly weapon and assault with intent to murder. At the hearing on remand it was stipulated that the petty larceny conviction was obtained in 1954 and the robbery and aggravated assault convictions in 1956. It was also stipulated that the 1956 convictions were obtained at a trial in the Criminal Court of Baltimore at which appellant was represented by counsel appointed for him. The 1954 conviction was obtained at a trial before Magistrate Samuel Gaboff presiding in the Northeastern District. The records available did not disclose whether or not appellant was then represented by counsel. Appellant testified that he was not represented by an attorney at the 1954 trial. The substance of his other testimony on the issue was that he had not intelligently waived representation. On this testimony by appellant, the burden was on the State to prove by clear and convincing evidence that his constitutional right to counsel was not infringed at the prior proceeding. ¹ The State here was unable to do so. Thus evidence of the 1954 conviction was admitted in error. The question is whether we can say that the error was harmless beyond a reasonable doubt. We can. We observed in our prior opinion in this case that whether or not the error can be found to be harmless depends on the particular facts of each case. We pointed out:

'For example, that there were a number of prior convictions properly admitted, or other evidence clearly impeaching the credibility of the defendant...