Suggs v. State, 156

• Decision Date: 06 March 1969
• Docket Number: No. 156,156
• Parties: Jimmy SUGGS a/k/a Jimmy Lee Suggs v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 231

6 Md.App. 231

250 A.2d 670

Jimmy SUGGS a/k/a Jimmy Lee Suggs v. STATE of Maryland.

No. 156.

Court of Special Appeals of Maryland.

March 6, 1969.

Thomas V. Miller, Jr., Clinton, for appellant.

Donald Needle, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., and Robert J. Woods, State's Atty. and Asst. State's Atty. for Prince George's County, respectively, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

Appellant was found guilty of armed robbery by a jury in the Circuit Court for Prince George's County on March 14, 1968 and was thereafter sentenced by the court to twenty years under the jurisdiction of the Department of Correction. His principal contention on this appeal is that he was denied due process of law by reason of the prosecutor's improper reference to a prior conviction for armed robbery which, at the time of the trial, was pending on appeal, and which subsequently was reversed by the United States Court of Appeals for the District of Columbia in Suggs v. United States, 401 F.2d 387, decided May 2, 1968.

A brief summary of the evidence will suffice for purposes of this appeal. On January 19, 1967 at approximately 4:00 or 4:30 p. m., Winnie's Corporation in Brentwood, Maryland was robbed at gun point of $5,100 by two masked men who made their escape in an automobile driven by a confederate. The car was pursued by the police and eventually crashed. The appellant was apprehended by the police running from the scene and was observed by one of the officers to discard a mask. Appellant was identified as the driver of the getaway car by one witness, and another witness identified him as being one of the masked holdup men. A witness on behalf of the appellant, who lived in the area where the arrest was made, testified that appellant was with him at his home between 2:00 and 4:30 p. m. on the day of the robbery and that he had left when he heard police sirens. The appellant testified that he was with this witness at his home at the stated time and when he heard gun shots and sirens, went to investigate, at which time he was arrested by the police. He denied any involvement in the crime and particularly denied that he discarded a mask at the time he was arrested.

Upon cross-examination of the appellant, the State's Attorney was permitted to inquire over appellant's vigorous objection as to whether he had been convicted of armed robbery in the District of Columbia in March of 1967. Appellant's objection to this question was on the ground that the conviction was not final in that it was then pending on appeal and that, under such circumstances, it would be a denial of procedural due process to introduce it in evidence. The court overruled the appellant's objection and admitted the prior conviction for armed robbery. As heretofore indicated, the conviction was reversed on May 2, 1968 on the ground that a statement made by Suggs to the police was erroneously admitted in evidence against him in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

I

It appears to be the majority rule that it is permissible to attack the credibility of a witness by showing the fact of a previous criminal conviction even though an appeal therefrom is then pending. The rule is bottomed upon the premise that unless and until the judgment of the trial court is reversed, the defendant stands convicted and may properly be questioned regarding that conviction. The cases are collected in an Annotation at 16 A.L.R.3d 726-738. See Newman v. United States, 331 F.2d 968 (8th Cir.); United States v. Owens, 271 F.2d 425 (2d Cir.); Bloch v. United States, 226 F.2d 185 (9th Cir.); United States v. Empire Packing Co., 174 F.2d 16 (7th Cir.); Latikos v. State, 17 Ala.App. 655, 88 So. 47; State v. Johnson, 99 Ariz. 52, 406 P.2d 403, 16 A.L.R.3d 723; People v. Braun, 14 Cal.2d 1, 92 P.2d 402; Gonzales v. State, 97 So.2d 127 (Fla.App.); People v. Spears, 83 Ill.App.2d 18, 226 N.E.2d 67; Dickson v. Yates, 194 Iowa 910, 188 N.W. 948, 27 A.L.R. 533; James v. State, 64 Okl.Cr. 174, 78 P.2d 708; Shaffer v. State, 124 Neb. 7, 244 N.W. 921; In re Abrams, 36 Ohio App. 384, 173 N.E. 312; McGee v. State, 206 Tenn. 230, 332 S.W.2d 507; State v. Crawford, 60 Utah 6, 206 P. 717; State v. Martin, 176 Wash. 637, 30 P.2d 660.

The eliciting of impeaching evidence that a witness had previously suffered a conviction from which an appeal was pending has been held proper even where, as here, the appeal subsequently resulted in the reversal of the previous conviction. See Latikos v. State, supra; People v. Braun, supra; In re Abrams, supra; State v. Crawford, supra. In Manning v. State, 7 Okl.Cr. 367, 123 P. 1029, a case upholding the use of a conviction pending appeal despite its subsequent reversal on appeal, it was indicated that where a witness had been tried for a felony, and the case submitted to a jury which found from the evidence that he was guilty, this fact could in any event be shown in evidence for the purpose of affecting his credibility since the law presumes that the jury, as an intelligent and impartial body, would not find the accused guilty upon mere suspicion or accusation. The Manning court, in concluding that the prior conviction was properly admissible, held that it was the verdict of the jury upon such an accusation that affects the credibility of the witness (without regard to the subsequent reversal of the conviction).

A minority of jurisdictions have reached a contrary conclusion, reasoning that a conviction from which an appeal is pending is not final and may not be introduced in evidence for the purpose of attacking the credibility of a witness. See Fenwick v. United States, 102 U.S.App.D.C. 212, 252 F.2d 124; Campbell v. United States, 85 U.S.App.D.C. 133, 176 F.2d 45; State v. Blevins, 425 S.W.2d 155 (Mo.); Adkins v. Commonwealth, 309 S.W.2d 165 (Ky.); Ringer v. State, 137 Tex.Cr.R. 242, 129 S.W.2d 654. These cases purport to recognize that if the judgment of conviction is reversed on appeal, the defendant may have been irreparably prejudiced by disclosure of the former conviction.

In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, the Supreme Court held that to permit a conviction obtained in violation of an accused's right to counsel under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, to be used against him either to support guilt or enhance punishment for another offense would be to unlawfully erode the principle of that case. It clearly appeared from the face of the record of the prior conviction in Burgett that the defendant had not been represented by counsel, nor had he waived his right to counsel. Under these circumstances, the court concluded, in effect, that the prior conviction was presumptively void and thus could not be shown in evidence.

In People v. Coffey, 67 Cal.2d 204, 60 Cal.Rptr. 457, 467, 430 P.2d 15, 25, the Supreme Court of California held that the use of a constitutionally invalid prior conviction to impeach testimonial credibility is improper since 'the utilization of such a conviction, at the trial of a subsequent offense, for any purpose leading to a conviction for such subsequent offense, is violative of the due process clause of the Fourteenth Amendment,' where not harmless.

Like Burgett, Coffey involved use of a prior conviction to enhance punishment, it appearing from the face of the record that the prior conviction was secured in violation of the strictures of Gideon v. Wainwright, supra. See also Brown v. State, 4 Md.App. 623, 244 A.2d 471.

It is clear from the holding in Suggs v. United...