State v. Cox

• Decision Date: 22 December 1983
• Docket Number: No. 59,59
• Citation: 468 A.2d 319,298 Md. 173
• Parties: STATE of Maryland v. Thomas Wayne COX. Sept. Term 1982.
• Court: Maryland Court of Appeals

Page 173

298 Md. 173

468 A.2d 319

STATE of Maryland v. Thomas Wayne COX.

No. 59 Sept. Term 1982.

Court of Appeals of Maryland.

Dec. 22, 1983.

Diane G. Goldsmith, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellant.

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

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

COLE, Judge.

The gory details of this crime need not be recounted with specificity. Suffice it to say that the facts clearly show that the prosecutrix was brutally beaten about her face and body, raped, sodomized and forced to perform fellatio at night on the ground in an outdoor area near her home. She identified Thomas Wayne Cox as her assailant to her mother and the police immediately after the attack as someone whom she knew from the neighborhood who gave as his excuse for his assault that he had just gotten out of jail and "had not had a woman in six months."

Cox was arrested the same night in a house on the property where the criminal acts took place. His clothing was dirty and dusty, with grass stains on the elbows of his jacket and the knees of his pants; he also had several "newly made" abrasions or scratches on his arm. He had been released from the Maryland Correctional Institute in Hagerstown that same day.

At his trial before a jury in the Circuit Court for Baltimore County, Cox did not dispute the fact that the victim had been physically and sexually abused. He did, however, maintain that he was not her assailant. To this end he produced alibi witnesses to generate a reasonable doubt that he was the criminal agent. These witnesses placed him in the general vicinity of the scene of the crime before, during, and after its commission but attempted to show his whereabouts and activities at the specific time of the crime so as to prove it impossible for Cox to have assaulted and brutalized the victim.

The matter reaches us because of the following colloquy which transpired at trial when the prosecutrix was being cross-examined by defense counsel:

Q Do you know a Donald Vrhovac?

A Donald Vrhovac, yes, I do.

Q How do you know him?

A Because I used to go with him.

Q You used to date him, right?

A Yes, sir.

* * *

* * *

Q Did you ever make an allegation, a criminal charge against a Mr. Vrhovac claiming an assault on you?

The State's objection to this question was sustained, and at the ensuing bench conference, the following colloquy occurred [DEFENSE COUNSEL]: I think I should proffer in this fashion, I have information that the witness made a criminal charge against this Vrhovac of assault on her. And then subsequent, during the course of the trial admitted that she did not tell the truth, that it was not an assault on her. And that he was, as a result of her recanting her statement, found not guilty.

MR. LEVITZ: How is that relevant to this trial?

MR. KAHN: Credibility.

THE COURT: If you have a whole lot of them, but just one isolated instance.

MR. KAHN: Testimony, false testimony that was recanted.

MR. LEVITZ: From what you have indicated she told the truth in court.

MR. KAHN: No. She first came into court and said that he did commit the assault, and then on cross-examination the information I have is that she then recanted it.

MR. LEVITZ: Judge, this is--

THE COURT: I think it's an independent matter. And if it were more than one, but one isolated instance I don't think it's relevant to this, so I will sustain the objection.

Cox was convicted and sentenced to prison for life. He appealed to the Court of Special Appeals which reversed his convictions, Cox v. State, 51 Md.App. 271, 443 A.2d 607 (1982), holding that it was error for the trial court to have limited defense counsel's cross-examination. We granted certiorari and shall affirm the judgment of the Court of Special Appeals.

It is clear that defense counsel was attempting to impeach the testimony of the prosecutrix for it was her identification of the defendant that was the sole piece of direct evidence linking him to the crime. He sought to establish that she was lying by showing she had on a prior occasion under oath charged another with criminal assault and recanted that charge under cross-examination. The trial court denied him the opportunity to pursue this course and he maintains this ruling was reversible error.

We begin our discussion by noting that the trial of any case is a search for the truth. The strength of each side of an issue rests upon the believability of the evidence offered as proof. This evidence unfolds, in large measure, as testimony of the witnesses is produced at trial. The tool available to each side to test the believability of the testimony is cross-examination.

This Court has recognized as a general rule that a witness may be cross-examined "on such matters and facts as are likely to affect his credibility, test his memory or knowledge, show his relation to the parties or cause, his bias, or the like." Kantor v. Ash, 215 Md. 285, 290, 137 A.2d 661 (1958). The exception to this rule is that cross-examination will not be permitted on matters that are immaterial or irrelevant to the issue being tried. See id.; Harris v. State, 237 Md. 299, 302, 206 A.2d 254 (1965). In this regard, the trial judge plays a significant role; for he must balance the probative value of an inquiry against the unfair prejudice that might inure to the witness. Otherwise, the inquiry can reduce itself to a discussion of collateral matters which will obscure the issue and lead to the fact finder's confusion.

To assist the trial judge, our courts have recognized and enforced certain principles. We have permitted extrinsic evidence of a prior conviction of a character witness or the defendant himself to be introduced to question the veracity and credibility of the witness or the defendant. See Taylor v. State, 278 Md. 150, 152, 360 A.2d 430 (1976) (citing Taylor v. State, 226 Md. 561, 565-66, 174 A.2d 573 (1961); Linkins v. State, 202 Md. 212, 220-21, 96 A.2d 246 (1953)). ¹ However we have insisted that the prior conviction should be relevant to the inquiry. We have indicated that "infamous crimes, felonies, crimes involving moral turpitude, deceit, or dishonesty are ... admissible for purposes of impeachment...." Ricketts v. State, 291 Md. 701, 708, 436 A.2d 906 (1981); see also Linkins v. State, 202 Md. 212, 96 A.2d 246 (1953); Hunter v. State, 193 Md. 596, 69 A.2d 505 (1949); Burgess v. State, 161 Md. 162, 155 A. 153 (1931). But generally, we have reposed the responsibility for determining the relevance of prior convictions used for impeachment in the discretion of the trial judge.

We have also permitted a witness to be cross-examined about prior bad acts which are relevant to an assessment of the witness' credibility. See Mahan v. State, 172 Md. 373, 191 A. 575 (1937); Sappington v. Fairfax, 135 Md. 186, 108 A. 575 (1919). We have allowed such inquiry to be conducted when the trial judge is satisfied that there is a reasonable basis for the question, that the primary purpose of the inquiry is not to harass or embarrass the witness, and that there is little likelihood of obscuring the issue on trial. We recognize that in cases regarding prior misconduct, the cross-examiner is bound by the witness' answer and, upon the witness' denial, may not introduce extrinsic evidence to contradict the witness or prove the discrediting act. The witness is not disadvantaged because there is nothing for him to rebut. Thus, the inquiry virtually stops with the question and answer, except to the extent that the trial judge may allow further cross-examination to refresh the witness' recollection.

We have also been steadfast in holding that mere accusations of crime or misconduct may not be used to impeach. See Martens Chevrolet v. Seney, 292 Md. 328, 439 A.2d 534 (1982); Burgess v. State, supra; Nelson v. Seiler, 154 Md. 63, 139 A. 564 (1927). The rationale for this viewpoint is obvious. First of all, accusations of misconduct are still clothed with the presumption of innocence and receiving mere accusations for this purpose would be tantamount to accepting someone else's assertion of the witness' guilt and pure hearsay. 3A J. Wigmore, Evidence § 980a (Chadbourn rev. 1970).

In the instant case, defense counsel was not inquiring into prior convictions or an accusation of misconduct but seeking to determine the fact of prior misconduct. Under such circumstances, it is the responsibility of the trial judge to determine the relevance and materiality of the alleged prior misconduct, for it is purely collateral to the issue on trial and should only be admitted if probative of a lack of credibility. The trial judge must constantly be alert to make certain that the probative value of the inquiry outweighs its potential prejudice to the witness and that the inquiry does not stem primarily from a desire to harass or embarrass the witness.

In this connection, the problem becomes more acute when it is the defendant on the witness stand. See United States v. Schiller, 187 F.2d 572, 576 (2nd Cir.1951) (Frank, C.J., concurring) (noting that "impeachment should be limited more strictly in favor of the accused than in the case of an ordinary witness"). The trial judge must carefully scrutinize the potential prejudice to the defendant lest the jury conclude that the defendant should be convicted because of his history of bad or immoral conduct. See generally Ricketts v. State, supra; Ross v. State, 276 Md. 664, 350 A.2d 680 (1976); MacEwen v. State, 194 Md. 492, 71 A.2d 464 (1950); Comment, Other Crimes Evidence at Trial: Of Balancing and Other Matters, 70 Yale L.J. 763 (1961).

In the instant case we are not concerned with the impeachment of a defendant or a character witness. The issue we must resolve is rather straightforward: to what extent may the testimony of...