Johnson v. State

• Decision Date: 03 March 1976
• Docket Number: No. 663,663
• Citation: 352 A.2d 371,30 Md.App. 512
• Parties: Isaac Newton JOHNSON and Charles Terrell Walters v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 512

30 Md.App. 512

352 A.2d 371

Isaac Newton JOHNSON and Charles Terrell Walters v. STATE of Maryland.

No. 663.

Court of Special Appeals of Maryland.

March 3, 1976.

Certiorari Denied June 3, 1976.

Paul Mark Sandler, Baltimore, with whom were Cohan, Altman & Sandler, Baltimore, on the brief, for appellant Charles Terrell Walters.

Julius E. Schindler, Assigned Public Defender, Cumberland, for appellant Isaac Newton Johnson.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., John S. Hollyday, State's Atty., for Washington County, Darrow Glaser, Deputy State's Atty., for Washington County and Robert W. Hamilton, Deputy State's Atty., for Washington County on the brief, for appellee.

Argued before THOMPSON, MOYLAN, MENCHINE and LOWE, JJ.

LOWE, Judge.

Because the use of prior offenses in cross-examinations to impeach criminal defendants who choose to testify has been limited to criminal convictions, Mason v. State, 242 Md. 707, 710, 218 A.2d 682; Robinson v. State, 4 Md.App. 515, 532-533, 243 A.2d 879, it does not mean that the same limitation applies to the impeachment on cross-examination of all witnesses. Indeed, Cts. Art., § 10-905 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.'

This limitation has been applied in both civil ¹ and criminal ² cases. However, this rule is sometimes mistakenly interpreted to mean that evidence of anything other than a criminal conviction is never admissible. In Neam v. State, 14 Md.App. 180, 188, 286 A.2d 540, 545 we stated that '(an) unbroken line of cases, too numerous for complete citation, holds that this impeachment device is strictly limited to 'convictions' and that it is impermissible to reveal that a witness has been merely accused of or arrested for a crime.'

What is frequently overlooked, by the use of these overly broad statements of the rule, is that there is at least one circumstance where the fact that a witness is accused but not yet convicted of a crime may be revealed on cross-examination. ³ In 1931, the Supreme Court held that the right of a defendant to confront witnesses against him, U.S.Const. amend. VI, includes the right to ask, on cross-examination, where the witness is residing in order to reveal if he is in the custody of the State because of pending criminal charges. In Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624, defense counsel asked a state witness 'Where do you live?' The trial judge sustained an objection to this question on the ground that since the witness had not yet been convicted of a crime, the fact that he was currently in the custody of federal marshalls should not be brought out on cross-examination. Counsel argued that this fact should be revealed "for the purpose of showing whatever bias or prejudice he may have." In reversing the trial court, the Supreme Court pointed out:

'But counsel for the defense went further, and in the ensuing colloquy with the court urged, as an additional reason why the question should be allowed, not a substitute reason, as the court below assumed, that he was informed that the witness was then in court in custody of the federal authorities, and that that fact could be brought out on cross-examination to show whatever bias or prejudice the witness might have. The purpose obviously was not, as the trial court seemed to think, to discredit the witness by showing that he was charged with crime, but to show by such facts as proper cross-examination might develop, that his testimony was biased because given under promise or expectation of immunity, or under the coercive effect of his detention by officers of the United States, which was conducting the present prosecution. . . . Nor is it material, as the Court of Appeals said, whether the witness was in custody because of his participation in the transactions for which petitioner was indicted. Even if the witness were charged with some other offense by the prosecuting authorities, petitioner was entitled to show by cross-examination that his testimony was affected by fear or favor growing out of his detention.' 282 U.S. at 693, 51 S.Ct. at 220.

The right to cross-examine such witness is for the purpose of exposing the witness' motivation in testifying. Although the trial judge has wide discretionary control over the extent of cross-examination upon particular topics, the denial of cross-examination altogether, or its arbitrary curtailment upon a proper subject will be grounds for reversal. McCormick on Evidence, 2nd Ed., p. 46. In Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, the Court stated:

'The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.' 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.'

It is important to note that such examination is permitted only for a limited purpose. Mr. Justice Stewart wrote a concurring opinion to emphasize that point in Davis, supra, at 321, 94 S.Ct. at 1112:

'. . . the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.' (Emphasis added).

He pointed out that the majority opinion limited the necessity of permitting such examination 'to show the existence of possible bias and prejudice . . ..' Id. at 317, 94 S.Ct. at 1111.

The test of admissibility, therefore, is whether the question asked is directed at eliciting from a prosecution witness the fact that he may be under pressure to testify favorably for the State, as when he is under formal accusation, and/or incarceration awaiting trial. We do not mean to imply that any time a witness testifies against a criminal defendant his entire record of previous arrests becomes relevant to the inquiry. Only where there is some present possibility of coercion should such cross-examination be allowed. If it should appear that the cross-examination is directed simply at casting the witness in the suspicious light that falls upon anyone under formal accusation, the trial judge must not allow it. ^3A Yet cross-examination of witnesses in such instances is exploratory in nature and presumptively proper. The examiner need make no proffer as to the purpose of his inquiry:

'Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory; and the rule that the examiner must indicate the purpose of his inquiry does not, in general, apply. . . . It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. . . . To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. . . . In this respect a summary denial of the right of cross-examination is distinguishable from the erroneous admission of harmless testimony.' Alford v. United States, 282 U.S. at 692, 51 S.Ct. at 219.

Apparently we must view objections to such exploratory questions with a jaundiced eye.

-the issue of cross-examination-

The facts at issue in the case before us are remarkably akin to those in Alford v. United States, supra. Appellants, Isaac Newton Johnson and Charles Terrell Walters, were convicted by a jury in the Circuit Court for Allegheny County of murder, attempted robbery with a deadly weapon, assault and the use of a handgun in the commission of a crime. A State's witness testified that he was told by Walters that he and Johnson had participated in previous holdups and that they had planned one for the night in question but 'it didn't go down right. We had to shoot the man.' Counsel for appellant Walters asked this witness on cross-examination:

'Where are you living at the present time?'

The State objected to this question, explaining at the ensuing bench conference:

'This man is under indictment for three B & E's, two larcenies, all of which occurred subsequent to this occasion, and he is incarcerated in the Washington County Jail. But the fact he's (indecipherable) is the same as if the Defendants were on the stand.'

It is apparent that the counsel for the State applied the same restriction to cross-examination of a witness that is applicable to cross-examination of an accused. The colloquy that followed indicates that the court also fell under the same misapprehension. Upon finding that the witness, though presently accused, had never been convicted, the trial judge refused to permit appellant to show where the witness was 'currently residing' for the reason that:

'I don't...