Johnson v. State

• Decision Date: 17 March 1970
• Docket Number: No. 331,331
• Citation: 263 A.2d 232,9 Md.App. 166
• Court: Court of Special Appeals of Maryland
• Parties: Donald James JOHNSON v. STATE of Maryland.

Page 166

9 Md.App. 166

263 A.2d 232

Donald James JOHNSON v. STATE of Maryland.

No. 331.

Court of Special Appeals of Maryland.

March 17, 1970.

[263 A.2d 234] James F. Garrity, Baltimore, 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, respectively, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

ORTH, Judge.

The principle of Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, decided 13 November 1967 is that to permit a conviction obtained without the assistance of counsel or a valid waiver thereof to be used against a person either It has been long and firmly established in this jurisdiction that the credibility of a witness may be impeached by evidence of his conviction of a crime. See Smith v. State, 64 Md. 25, 20 A. 1026 (1885). We stated the rule in Robinson v. State, 4 Md.App. 515, 532-533, 243 A.2d 879, 890:

to support guilt or enhance punishment for another offense is a violation of the right to counsel guaranteed by the Sixth Amendment to the Federal Constitution and applicable to the states by virtue of the Fourteenth. The question is whether this principle applies to exclude evidence of prior convictions offered by the State to impeach the credibility of a defendant testifying in his own behalf.

'The general rule is that evidence of a conviction of a crime is permitted to impeach the credibility of a witness on cross-examination in the trial court's discretion. Mason v. State, 242 Md. 707, 710, 218 A.2d 682. Such evidence need not be restricted to infamous crimes or those involving moral turpitude, provided the violation of law may have some tendency to show that the witness is not to be believed under oath. 'In such instances the exercise of discretion by the trial judge will not be interfered with on appeal unless the fact of the prior conviction is clearly irrelevant'. Cousins v. State, 230 Md. 2, 4, 185 A.2d 488, 489; Md.Code (1965 Repl.Vol.) Art. 35, § 10. See McLaughlin v. State, 3 Md.App. 515, 240 A.2d 298. The general rule applies where the defendant is a witness in his own behalf. '(H)e thereby puts his character in issue, and may be asked on cross-examination if he has been convicted of crime'. Taylor v. State, 226 Md. 561, 567, 174 A.2d 573, 576, citing Burgess v. State, 161 Md. 162, 169, 155 A. 153, 75 A.L.R. 1471.'

See Smith v. State, 6 Md.App. 581, 588-589, 252 A.2d 277; Stewart v. State, 4 Md.App. 565, 571, 244 A.2d 452; Gunther v. State, 4 Md.App. 181, 184, 241 A.2d 907; Huber v. State, 2 Md.App. 245, 256-257, 234 A.2d 264; In Nance v. State, 7 Md.App. 433, 442, 256 A.2d 377 we found that the Prior to Burgett it was the customary practice for the State, usually fortified with a police or FBI record of his previous convictions, to ask a defendant who took the stand at the trial of the charge against him if he had ever been convicted of a crime. If he admitted that he had the State would then, from the record in its possession, question him with respect to the date, the crime and the punishment as to specific convictions. If he denied a conviction the State could, pursuant to Md.Code, Art. 35, § 10, prove the conviction by introducing the certificate, under the seal of the clerk of the court wherein the criminal proceedings were had, stating the fact of the conviction and for what crime, it not being necessary to produce the whole record of the proceedings containing such conviction. ¹ Thus it was the fact of a conviction of him and the nature of the crime of which he was convicted which governed the admissibility of the evidence of the prior conviction.

rule continues to serve a legitimate purpose and does not conflict with constitutional protections afforded a criminal defendant.

To preserve the question of the admissibility of evidence of a prior conviction on appeal proper challenge must be made below. Md.Rule 522 d 2, applicable to criminal causes by Rule 725 f, provides: 'Every objection to the admissibility of evidence shall be made at the time when such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent, otherwise the objection shall be treated as waived.' This procedural rule does not infringe a guarantee in the Federal Constitution; state procedural requirements to raise or preserve a question may still be respected in the case of an alleged violation of the Fourteenth Amendment. See Mapp v. Ohio, 376 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; The precise holding in Burgett was to reverse a conviction on a charge that Burgett, 'had cut one Bradley with a knife and had stabbed at Bradley's throat with intent to kill.' The conviction was reversed because the State in attempting to establish that the defendant had incurred four previous felony convictions, also charged in the indictment under Texas recidivist statutes, ² and which if established would enhance his punishment, had produced before the jury evidence as to a prior conviction which was presumptively void. It was presumptively void because the certified records of the conviction raised a presumption that Burgett was denied his right to counsel in the Tennessee proceeding, presuming waiver from a silent record being impermissible. 389 U.S. at 114-115, 88 S.Ct. 258. The conviction was reversed even though the trial court had instructed the jury not to consider the prior offenses for any purpose whatsoever in arriving at the verdict and even though Burgett had not suffered the enhanced punishment The meaning and application of Burgett has troubled appellate courts, both federal and state, throughout the country and more often than not has divided the members of those courts. There has been little agreement with respect to the application and effect of its rationale, and the procedure to be followed when found applicable, even in those cases involving enhanced punishment under recidivist or habitual offender or subsequent offender statutes. ³

Porter v. State, 230 Md. 535, 187 A.2d 870; Baynard v. State, 2 Md.App. 701, 237 A.2d 71 provided by the recidivist statutes. The Court said, at 115, 88 S.Ct. at 262: 'The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright (372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799) is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error 'harmless beyond a reasonable doubt' within the meaning of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.'

There have been some cases which presented the applicability of Burgett as to the admission of evidence of prior convictions for the purpose of impeaching the credibility of the defendant-witness. The question was raised in a habeas corpus proceeding in Subilosky v. Scafati, 294 F.Supp. 18 (D.Mass.1968) but was not resolved because the court found it was not properly raised as it had been waived and because other statements made by the defendant on direct examination to the effect that he had been 'in a great deal of difficulty with the police' rendered evidence of the prior convictions non-prejudicial. In Gilday v. Commonwealth, 247 N.E.2d 396 (Mass.1969) the court, noting that it was not in agreement as to the effect The Sixth Amendment to the Constitution of the United States provides: 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.' Johnson v. Zerbst, 304 U.S.

of Burgett, said that even if it applies to the introduction of prior convictions for impeachment, the introduction of constitutionally void convictions was harmless error where other more serious convictions were also introduced and no objection was raised as to them on appeal. In Shorter v. United States, 412 F.2d 428 (9th Cir. 1969) a question presented whether the rationale of Burgett barred the use of felony convictions offered for impeachment purposes absent a clear showing that the convictions were not obtained in violation of the rule in Gideon v. Wainwright. At 429. Emphasizing that Burgett involved the use of prior convictions to enhance punishment under a recidivist statute, the majority of the court found it not necessary to determine the question because the prior convictions in the case before it were not offered by the prosecution but by the testimony of the appellant himself. The third judge sitting in the case dissented, making clear that he felt Burgett was applicable and that the case should be remanded in order that the Government may have an opportunity to satisfy the lower court, if it could, that the prior convictions were not obtained in violation of the Gideon rule. In Tucker v. United States, 299 F.Supp. 1376 (U.S.District Court, N.D. California 1969), a proceeding on motion to vacate sentence, the defendant urged that Burgett barred the use of felony convictions for impeachment when those convictions were obtained in violation of the standards of Gideon. The court concluded in a memorandum decision that 'the use of the constitutionally invalid prior convictions on cross-examination for impeachment purposes was error,' but that the error was harmless because the defendant's credibility was 'successfully impeached, and in fact, demolished,' by proof of prior inconsistent statements by him and by other evidence contradicting his testimony. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, construed this to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is freely and intelligently waived. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, expressly overruling Betts v. Brady, 316 [263 A.2d 238] U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, established the rule that the right to counsel guaranteed...