Ricketts v. State

• Decision Date: 06 November 1981
• Docket Number: No. 167,167
• Citation: 291 Md. 701,436 A.2d 906
• Parties: Richard Eugene RICKETTS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 701

291 Md. 701

436 A.2d 906

Richard Eugene RICKETTS v. STATE of Maryland.

No. 167.

Court of Appeals of Maryland.

Nov. 6, 1981.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

COLE, Judge.

In this case we shall decide whether a prior conviction for indecent exposure was admissible to impeach the credibility of the defendant.

The facts may be stated briefly. Richard Eugene Ricketts was tried by a jury in the Circuit Court for Montgomery County on charges of second degree rape, second degree sexual offense, and burglary. When Ricketts took the witness stand to testify in his defense the trial judge, over the objection of defense counsel, allowed the prosecutor to question Ricketts regarding a three year old conviction for indecent exposure for the limited purpose of impeaching his credibility. Ricketts was convicted and appealed to the Court of Special Appeals which affirmed the conviction in an unreported per curiam opinion, No. 354, September Term, 1979, filed December 4, 1979. We granted certiorari to address the important question presented.

Before us Ricketts contends that Maryland law does not permit cross-examination on prior convictions for any offenses other than infamous crimes and crimes of moral turpitude, or lesser crimes affecting the credibility of the witness. He argues that indecent exposure fits none of these categories and, therefore, it was error for the trial court to admit evidence of this prior conviction. The State argues that indecent exposure is a crime of moral turpitude which may be used to attack the defendant's veracity.

We begin our consideration of this issue by recognizing that in our system of criminal justice every defendant has the right to testify in his own defense. Equally fundamental to the system is the right of the State to cross-examine such defendant and impeach him, if it can, as to the truthfulness of his testimony. The evidentiary tool the State customarily uses to attack the defendant's credibility is evidence of his prior convictions. The only details ordinarily allowed to be presented to the jury are the nature of the charge and the fact of conviction. The purpose in admitting such evidence is to assist the factfinder in measuring the credibility of the defendant.

The danger in admitting prior convictions as evidence to impeach the defendant stems from the risk of prejudice. The jury may improperly infer that the defendant has a history of criminal activity and therefore is not entitled to a favorable verdict. Such evidence may detract from careful attention to the facts, despite instructions from the Court, influencing the jury to conclude that if the defendant is wrongfully found guilty no real harm is done. Where the crime for which the defendant is on trial is identical or similar to the crime for which he has been previously convicted the danger is greater, as the jury may conclude that because he did it before he most likely has done it again. The net effect of such evidence is often to discourage the defendant from taking the stand.

Thus, the role of the trial judge takes on added importance. It becomes his function to admit only those prior convictions which will assist the jury in assessing the credibility of the defendant. The trial judge must weigh the probative value of the convictions against the prejudice to the defendant in asserting his defense. Obviously, not all prior convictions will survive this balancing process. The problem arises when the trial judge seeks to determine which crimes do prevail and are, therefore, admissible.

The jurisdictions vary in their legislative and judicial determinations of what crimes may be used to impeach. At one end of the spectrum are Hawaii and Montana which allow no cross-examination on the subject of impeachment by use of prior convictions. Hawaii reaches its result on constitutional grounds, State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971), Montana by legislative enactment. Rule 609, Mont.R.Evid. See, State v. Camitsch, Mont., 626 P.2d 1250 (1981). West Virginia has a similar approach, it excludes evidence of prior crimes in every case except where the defendant has been convicted of perjury. State v. McAboy, 236 S.E.2d 431 (W.Va. 1977). Florida and Virginia allow the prosecutor to introduce the existence of prior convictions but not to reveal what crimes those convictions are for (with the exception that in Virginia the prosecutor is allowed to particularize if the conviction is for perjury). Johnson v. State, 380 So.2d 1024 (Fla. 1979); Harmon v. Commonwealth, 212 Va. 442, 185 S.E.2d 48 (1971).

At the other end of the spectrum, Louisiana, Massachusetts, Missouri, and Oregon allow the prosecutor to introduce evidence of any prior conviction based on their construction of applicable statutes. State v. Prather, 290 So.2d 840 (La. 1974); Commonwealth v. West, 357 Mass. 245, 258 N.E.2d 22 (1970); Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760, 88 A.L.R.3d 62 (Mo.App. 1974) and State v. Rush, 248 Or. 568, 436 P.2d 266 (1968).

The States which remain are largely those which permit impeachment by proof of conviction of infamous crimes or crimes involving moral turpitude, See generally, 3A Wigmore, Evidence, § 980 (Chadbourn Rev. 1970), and those states which employ a weighing or balancing test, giving considerable deference to the trial court's discretion in determining which crimes may be used to impeach. Among the states that employ this test two cases are frequently cited for guidance, Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965) and Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967); cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). See, e. g., Bogie v. Commonwealth, 467 S.W.2d 767 (Ky. 1971); Bustillos v. State, 464 S.W.2d 118 (Tex.Cr.App. 1971). Luck proposed that the trial court should weigh the prejudicial effect of impeachment against the probative relevance of the prior conviction to the issue of credibility. 348 F.2d at 768. To assist the trial court in its determination Luck also recited four relevant factors to consider: "the nature of the prior crimes (footnote omitted), the length of the criminal record, the age and circumstances of the defendant, and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant's story than to know of a prior conviction." 348 F.2d at 769.

Gordon cited and approved the balancing test of Luck, then went on to explain its application:

In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity. A "rule of thumb" thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not; traffic violations, however serious, are in the same category. The nearness or remoteness of the prior conviction is also a factor of no small importance. Even one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness. (383 F.2d at 940 (footnote omitted)).

While this Court has not approved guidelines as broad as those announced in Gordon nor sanctioned a balancing test with all the factors outlined in Luck, it has set certain standards to be followed and has also recognized the importance of considering several factors in determining whether lesser crimes have any relevance or probative value impacting upon the defendant's credibility. A cursory examination of Maryland law will illustrate the point.

Maryland Code (1974, 1980 Repl.Vol.), § 10-905 of the Courts and Judicial Proceedings Article provides that "(e)vidence is admissible to prove ... the fact of (a witness') conviction of an infamous crime." This statute, in one form or another, has been in effect since 1864, Chapter 109, Acts of 1864, and has received the attention of this Court in various contexts. ¹

In 1884 this Court explained in State v. Bixler, 62 Md. 354, 360 (1884) that at common law "(a)n 'infamous crime' is such crime as involved moral turpitude, or such as rendered the offender incompetent as a witness in court, upon the theory that a person would not commit so heinous a crime unless he was so depraved as to be unworthy of credit." In Garitee v. Bond, 102 Md. 379, 383, 62 A. 631 (1905) we further elaborated:

The crimes which the common law regarded as infamous because of their moral turpitude were treason, felony, perjury, forgery and those other offenses, classified generally as crimen falsi, which impressed upon their perpetrator such a moral taint that to permit him to testify in legal proceedings would injuriously affect the public administration of justice.

However, what offenses could properly be said to be crimes of moral turpitude were still undetermined. We recognized that the term was imprecise but acknowledged that it connoted conduct which was base or vile and contrary to the accepted and customary conduct between men. Dental Examiners v. Lazzell, 172 Md. 314, 320, 191 A. 240 (1937).

In Cousins v. State, 230 Md. 2, 185 A.2d 488 (1962) we recognized a broader base for the use of prior convictions to impeach. We said:

It has been held by this court that evidence of the accused's previous conviction of crime need not be restricted to...