State v. Giddens

• Decision Date: 01 September 1993
• Docket Number: No. 148,148
• Citation: 335 Md. 205,642 A.2d 870
• Parties: , 37 A.L.R.5th 783 STATE of Maryland v. Dale GIDDENS. ,
• Court: Maryland Court of Appeals

Page 205

335 Md. 205

642 A.2d 870, 37 A.L.R.5th 783

STATE of Maryland v. Dale GIDDENS.

No. 148, Sept. Term, 1993.

Court of Appeals of Maryland.

June 10, 1994.

Gary Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for petitioner.

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

MURPHY, Chief Judge.

This case involves Maryland Rule 1-502, which governs the admissibility of prior convictions for impeachment purposes. It provides in pertinent part:

"For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination, but only if [ (1) ] the crime was an infamous crime or other crime relevant to the witness's credibility and [ (2) ] the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party." ¹

We granted certiorari to consider whether a three-year old conviction for distribution of cocaine may be used to impeach a witness's credibility under Rule 1-502. ²

I

By a statement of charges filed on May 11, 1992 in the District Court of Maryland sitting in Kent County, the State charged Dale Giddens, with assault. On July 17, 1992, upon Giddens's demand for a jury trial, the case was transferred to the Circuit Court for Kent County. The one-day trial took place on November 19, 1992. As summarized by the Court of Special Appeals, the State put forth the following evidence:

"James Coleman, the victim, testified that, on the evening of May 7, 1992, he was using a public telephone to converse with ... Rhonda Thorpe ... when [Giddens] drove up across the street, parked his car, and approached him. While still in the middle of the street, [Giddens] pulled out a black pistol and asked when Coleman was going to get off the phone. Coleman said that, although he knew it was a gun that [Giddens] had, he asked 'is that a gun you are pointing at me?' to which [Giddens], who was about three feet away, replied 'yes, it is. Do you have an f-ing problem with it?' At that point, Coleman ended his conversation and walked to [Ms. Thorpe's] house, leaving [Giddens] at the phone booth. Coleman said that he did not know [Giddens] at the time but learned his identity later. He stated that some time after the incident, he passed [Giddens] on the street, that [Giddens] told him that he did not have to say anything against [Giddens] in court, and that he should not have been on the corner in any event 'because it is a drug infested corner.' Coleman identified [Giddens] in court as the person who accosted him.

"Ms. Thorpe provided some corroboration for Mr. Coleman's story. The heart of her testimony was the statement: 'I was talking to [Coleman], and all I heard was "Have you got a problem with that?" [Coleman] says, "Is that a gun you are holding?"....' That was the State's case."

Giddens denied the entire incident, claiming that Coleman had identified the wrong person. Consequently, as the intermediate appellate court said, the issue before the jury was purely one of credibility: should it believe Coleman or Giddens?

After the State presented its case, Giddens stated his intention to testify. At that point, the prosecutor indicated that she planned to impeach Giddens's testimony with a 1989 conviction for distribution of cocaine. Giddens objected, arguing that drug distribution was not an "infamous" crime nor was it a crime that had any bearing on credibility; thus, he contended that the conviction was inadmissible. The State's reply was that the crime was a felony and involved "moral turpitude"; thus, it averred that the conviction was admissible to impeach Giddens's credibility.

After noting that Rule 1-502 controls the admissibility of prior convictions for impeachment purposes, the court ruled as follows:

"The question is whether it would be a crime of moral turpitude. It is a felony. Therefore, he has been convicted of a felony, which requires felonious intent to commit the offense--in this case, distribution of a controlled dangerous substance. The Court finds that that is ... conduct which is base or vile and contrary to the accepted and customary conduct between men. Therefore, I find that it is a crime of moral turpitude.

"Next, I need to determine ... whether or not its probative value of admitting the evidence outweighs the danger of unfair prejudice to the witness or the objecting party.

"In this case, the offense for which he is being tried is a battery, which has no relationship to distribution of a controlled dangerous substance. I find that I will give a cautionary instruction and instruct them as to how they can utilize it. But I believe that the probative value of admitting the evidence outweighs the danger of unfair prejudice in view of the charges in this case. If this were a charge of distribution of a controlled dangerous substance, I would have a different finding. But in view of the charges and the difference, I will permit [the introduction of the conviction] over objection."

Following this ruling, Giddens testified and admitted on direct examination that in 1989 he had been convicted of distribution of cocaine and that he had gone to prison. At the close of all the evidence, the court instructed the jury that it could consider Giddens's prior conviction in deciding whether he was telling the truth, but not for any other purpose.

The jury found Giddens guilty of assault; he was sentenced to 15 years incarceration, with all but eight years suspended, and five years supervised probation upon release. Giddens appealed to the Court of Special Appeals; that court, by a divided 2-1 vote, reversed the judgment of the circuit court. See Giddens v. State, 97 Md.App. 582, 631 A.2d 499 (1993). ³ In his opinion, Chief Judge Wilner first described the operation of Rule 1-502, explaining that "admissibility is not determined by whether the crime in question is a felony or by whether it involves moral turpitude." Id. at 588, 631 A.2d 499 (emphasis in original). He continued: "although moral turpitude was once a relevant consideration in determining what crimes were usable as impeachment material, the Court of Appeals expressly departed from that standard in Prout v. State, 311 Md. 348, 535 A.2d 445 (1988) [ (plurality opinion) ]." 97 Md.App. at 589, 631 A.2d 499. Rather, Judge Wilner observed that a prior conviction is only admissible for impeachment purposes if it is an "infamous crime" or an "other crime relevant to the witness's credibility." Id. at 588, 631 A.2d 499.

It was then explained that the primary issue before the court was whether the offense of distribution of cocaine fell within the category of an "other crime relevant to the witness's credibility." Id. at 589, 631 A.2d 499. After noting that simple possession of controlled dangerous substances is not a crime relevant to credibility, Judge Wilner held that distribution of cocaine is similarly not relevant to credibility. He pointed out that distribution could entail a person selling a ton of cocaine throughout the community or it could encompass a friend giving another friend a marijuana cigarette. From this, he concluded that the name of the offense says very little about the conduct for which the person was convicted. Id. at 590-91, 631 A.2d 499. Therefore, he believed that the crime was so "ill-defined" that a jury would have difficulty determining the precise nature of the offense and would likely assume the worst. Id. at 591-92, 631 A.2d 499. He also found it noteworthy that drug distribution "does not necessarily involve surreptitious conduct or moral depravity sufficient to suggest a lack of credibility." Id. at 591, 631 A.2d 499. Consequently, Judge Wilner held for the majority that "distribution of a controlled dangerous substance is not a crime relevant to credibility and may not ... be used under Rule 1-502 for impeachment purposes." Id. at 592, 631 A.2d 499.

Judge Motz "reluctantly" concurred in the result. She said that she was "troubled" by the holding "that a conviction for distribution of a controlled dangerous substance is never admissible for impeachment purposes under Md.Rule 1-502." Id. at 593, 631 A.2d 499. (emphasis in original). Nevertheless, she concurred with Chief Judge Wilner because she believed that our precedent required that result.

In his dissenting opinion, Judge Joseph Murphy stated his belief that "[a] conviction for distribution of cocaine is relevant to a person's credibility." Id. at 594, 631 A.2d 499. He also suggested that if a particular prior cocaine distribution conviction had no bearing on a witness's credibility, the witness could relate the circumstances of the conviction. Id. at 595, 631 A.2d 499. Specifically, he stated that if Giddens's prior "distribution conviction involved nothing more than handing a mirror with cocaine residue to a fellow attendee of a rock concert, this information should have been given to the trial judge." Id. In essence, Judge Murphy appeared to be advocating that a trial judge could, upon a request by a defendant, examine the circumstances of the prior conviction to determine if it had a bearing on credibility. He concluded that, because Giddens did not put forth any evidence that the prior cocaine distribution conviction was a minor violation that had no bearing on credibility, the trial court's decision to admit the conviction was correct. The State appealed and we granted its petition for certiorari.

II

Before us, the State reasserts its contention that a prior conviction for distribution of cocaine is relevant to credibility. It does not suggest that cocaine distribution is an infamous crime, but rather maintains that the...