Prout v. State

Decision Date07 January 1988
Docket NumberNo. 131,131
Citation535 A.2d 445,311 Md. 348
PartiesLewis D. PROUT v. STATE of Maryland. Sept. Term 1985.
CourtMaryland Court of Appeals

Gary S. Offutt, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief) Baltimore, for appellant.

Valerie W. Loftin, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and SMITH *, ELDRIDGE, COLE, RODOWSKY, COUCH * and McAULIFFE, JJ.

COLE, Judge.

In this case we are asked to decide several important questions: (1) whether a motion in limine, under the circumstances presented, is sufficient, in and of itself, to preserve the issues raised therein for appellate review; and (2) whether the trial court erred in refusing to admit a witness's prostitution and solicitation for prostitution (solicitation) convictions for impeachment purposes. Furthermore, if both of these questions are answered in the affirmative, we are asked to decide whether the trial court's refusal to allow the defendant to cross-examine the State's principal witness regarding her prior convictions for prostitution and solicitation was harmless error.

The parties have stipulated to the following facts. Lewis D. Prout was charged with assault and robbery with a deadly weapon in the Circuit Court for Baltimore City. After the jury was selected, but before counsel made their opening statements, Prout's counsel made an oral motion in limine to "advise the court" of his intention to cross-examine the complainant, the State's sole witness, regarding her prior convictions. Prout's counsel read the following convictions from the complainant's record: grand theft in May 1980; shoplifting under $300 in July 1980; prostitution in December 1980; failure to appear in court in January 1981; solicitation for prostitution and resisting arrest in June 1981; solicitation in August 1981; violation of probation in September 1981; contempt of court in August 1982; and solicitation in October, 1983. Prout's counsel also stated:

Now, I am aware of the law which states that ... convictions of infamous crimes and crimes involving moral turpitude are proper subject[s] for cross-examination of a defendant and/or a witness. But I would suggest to the Court that, as the ... Court of Special Appeals said in Burrell v. State, 42 Md.App. [130, 399 A.2d 1354 (1979) ] it is basically discretionary with the trial judge as to what extent he would allow the cross-examination [with] convictions other than ... felonies and crimes involving moral turpitude, and heinous crimes. And they set forth some guidelines there which I believe the court can consider in this case ... [T]hat is, ... [is] the cross-examination ... concerning these convictions done only for the purpose of embarrassing and harassing the witness or is it being done because it has relevancy as to the matter before the court.

The State objected to Prout's motion in limine on the ground that there was nothing in the complainant's record to indicate that the offenses listed therein resulted in convictions. Accordingly, the trial judge asked Prout's counsel which of the aforementioned offenses resulted in actual convictions. When defense counsel indicated that he was uncertain, the trial judge stated that, "for purposes of [their] discussion," he would "assume ... everything that [defense counsel] read ended up in convictions." The State protested the trial judge's conclusion on the ground that defense counsel had "the burden of producing some documentation" of the convictions and the following colloquy ensued:

THE COURT: Do you agree [that] the theft and shoplifting incident[s] did result [in] convictions for those purposes?

[STATE'S COUNSEL]: No, your honor.

THE COURT: Not even the theft or shop lifting?

[STATE' COUNSEL]: No, your honor.

THE COURT: Call the witness.

....

While we are awaiting those witnesses to verify those convictions or lack thereof, in the exercise of my discretion, I will not permit any evidence for impeachment purposes [of] any prior convictions of the witnesses for solicitation, prostitution, failure to appear, resisting arrest, violation of probation, contempt of court, and failing to obey a court order, and possession of heroin. None of those crimes in my view effect [sic] the credibility or believeability of a witness. Since the admission of those prior convictions into evidence is discretionary with the trial judge, I will exercise my discretion by not allowing those into evidence for impeachment purposes.

....

If it turns out that this woman has been convicted of theft and shoplifting [defense counsel], then on cross-examination when you ask her about her prior convictions, do not ask her what she has been convicted of. Lead her and say, "Is it not true that you have been convicted of theft and shoplifting?" et cetera, so ... we will not inadvertently get into the other inadmissible convictions.

[DEFENSE COUNSEL]: Thank you your honor. May I just protect the record and take exception to the court's ruling.

THE COURT: You have it automatically.

At trial, pursuant to the court's instruction, defense counsel cross-examined the witness by asking her leading questions about her grand theft and shoplifting convictions. Defense counsel neither proffered nor mentioned the witness's prostitution and solicitation convictions. The jury found Prout guilty of assault and he appealed his conviction to the Court of Special Appeals. The intermediate appellate court affirmed in an unreported per curiam opinion. Prout v. State, No. 79, September Term, 1985, filed September 23, 1985. Both Prout and the State petitioned this Court for writs of certiorari, which we granted to review the important questions presented.

On appeal, the State argues that Prout failed to preserve his objection to the trial court's ruling on his motion in limine, which excluded the witness's prostitution and solicitation convictions. The State contends that Maryland Rule 4-322(a), which requires a party to object to the admission of evidence at the time it is offered, applies to the facts sub judice and, thus, that Prout needed to make a subsequent proffer of the convictions at the point at which he would have offered them at trial. 1 Prout, on the other hand, argues that the trial court's ruling on his motion in limine was alone sufficient to preserve the issue of the admissibility of the complainant's convictions for appeal. Prout contends that subsection (c) of Maryland Rule 4-322, rather than subsection (a), is the applicable rule for determining when an objection to a trial court's ruling excluding evidence has been preserved for appeal. 2 Prout further contends that he has satisfied the provisions of subsection (c).

Prout also argues that the trial court erred in excluding the complainant's prostitution and solicitation convictions for impeachment purposes. Prout maintains that, because the crimes fall within the class of offense "involving moral turpitude," the trial judge was without discretion to exclude them under this Court's previous cases. The State contends that Prout has already conceded, in his motion in limine, that prostitution and solicitation are not crimes of moral turpitude and, even if not conceded, they are not crimes of moral turpitude. In the alternative, the State maintains that if the complainant's prostitution and solicitation convictions should have been admitted for impeachment purposes, the trial court's refusal to do so was harmless. Prout posits three reasons why the trial court's error is harmful. First, the exclusion of evidence offered to impeach the State's sole witness cannot be deemed harmless in a case where the jury's inconsistent findings indicate that the jury questioned the witness's credibility even in the absence of the proffered convictions; 3 second, the witness's prostitution and solicitation convictions would not be merely cumulative; and, third, because "different crimes may be relevant to credibility in different ways," the witness's prostitution and solicitation convictions should be admitted due to their distinctive nature.

Whether a trial judge's ruling granting a motion in limine 4 may be reviewed on appeal when there is no subsequent proffer of the evidence at trial presents a question of first impression in this Court. Typically, a motion in limine is a motion made before or during a jury trial outside of the hearing of the jury, the purpose of which is to prevent the jury from hearing certain questions and statements that are allegedly prejudicial to the movant. Specifically, the motion usually seeks an order restricting opposing counsel from offering questionable evidence before the judge has had an opportunity to rule on its admissibility. Evidence is most often sought to be excluded because it is incompetent, irrelevant, immaterial, privileged, or otherwise inadmissible. See generally McCormick on Evidence § 52, at 128 (E. Cleary 3d ed. 1984). Thus, the real purpose of a motion in limine is to give the trial judge notice of the movant's position so as to avoid the introduction of damaging evidence which may irretrievably infect the fairness of the trial.

Obviously, the trial judge may either grant or deny the motion. If the trial judge admits the questionable evidence, the party who made the motion ordinarily must object at the time the evidence is actually offered to preserve his objection for appellate review. However, when the trial judge resolves these motions by clearly determining that the questionable evidence will not be admitted, and by instructing counsel not to proffer the evidence again during trial, the proponent of the evidence is left with nothing to do at trial but follow the court's instructions. Under these circumstances, the court's ruling controls the subsequent course of the trial and the proponent's objection is preserved for review without any further action on his part.

The State, however, insists that ...

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