Taylor v. State

• Decision Date: 05 November 1975
• Docket Number: No. 150,150
• Citation: 28 Md.App. 560,346 A.2d 718
• Parties: William Edward TAYLOR, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 560

28 Md.App. 560

346 A.2d 718

William Edward TAYLOR, Jr. v. STATE of Maryland.

No. 150.

Court of Special Appeals of Maryland.

Nov. 5, 1975.

Howard L. Cardin, Assigned Public Defender, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William E. Brannan, State's Atty. for Baltimore County, and Steven D. Silverman, Asst. State's Atty. for Baltimore County, on the brief, for appellee.

Argued before ORTH, C. J., and GILBERT and MELVIN, JJ.

GILBERT, Judge.

The text writers on the law of evidence are generally agreed that cross-examination of character witnesses as to specific acts of a defendant for the purpose of testing the witnesses' knowledge and credibility is permissible as an exception to the rule that forbids the impeachment of witnesses by extrinsic testimony of such acts. ¹ See Commonwealth v. Selkow, 206 Pa.Super. 273, 212 A.2d 919 (1965). The Supreme Court in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), the Court of Appeals in Comi v. State, 202, md. 472, 97, A.2d 129 (1953) and this Court in Avery v. State, 15 Md.App. 520, 292 A.2d 728 (1972), cert. denied, 266 Md. 733 (1972), appeal dismissed, 410 U.S. 977, 93 S.Ct. 1499, 36 L.Ed.2d 173 (1973), have all adopted views to the effect that 'A character witness may be cross-examined as to an arrest whether or not it culminated in a conviction . . ..' Michelson v. United States, 335 U.S. at 482, 69 S.Ct. at 221.

Subsequent to the Michelson decision the Supreme Court decided Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) in which the Court ruled that a conviction obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) could not be used 'to support guilt or enhance punishment.' Later, the Court adjudicated United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) and thus extended Burgett so as to proscribe, in sentencing, the use of convictions obtained in violation of an accused's fundamental right to counsel. See Carroll v. State, 19 Md.App. 179, 310 A.2d 161 (1973); Moore v. State, 17 Md.App. 237, 300 A.2d 388 (1973); Towers v. Director, 16 Md.App. 678, 299 A.2d 461 (1973).

In Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), Mr. Justice Stewart, writing for the plurality, ² said:

'Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant's credibility deprives him of due process of law.' 405 U.S. at 483, 92 S.Ct. at 1019. (Footnote omitted). (Emphasis supplied).

Mr. Justice Stewart went on to quote with approval the words of the Court of Appeals for the First Circuit in Gilday v. Scafati, 428 F.2d 1027, 1029 (1st Cir. 1970) wherein that Court said:

'We conclude that the Burgett rule against use of uncounseled convictions 'to prove guilt' was intended to prohibit their use 'to impeach credibility', for the obvious purpose and likely effect of impeaching the defendant's credibility is to imply, if not prove, guilt. Even if such prohibition was not originally contemplated, we fail to discern any distinction which would allow such invalid convictions to be used to impeach credibility. The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt.' (Emphasis supplied.)

It is plain that the trinity of Burgett, Tucker, and Loper banned the use of constitutionally infirm convictions as a basis of (1) enhancing punishment of the defendant, (2) supporting guilt of the defendant, or (3) impeaching the credibility of the defendant. What is not so plain is, do the holdings of Burgett, Tucker, and Loper prohibit the use of defendants' admittedly constitutionally defective convictions in cross-examining defendants' character witnesses. ³

William Edward Taylor, Jr., appellant, was convicted at a jury trial, in the Circuit Court for Baltimore County, presided over by Judge Knneth C. Proctor, of murder in the second degree, use of a handgum in the commission of a felony, assault upon a police officer and another similar charge of assault. At trial, immediately prior to the presentation of the defense, counsel apprised the court that a problem had arisen relative to cross-examining the defendant's 'character witnesses'. The judge was advised that the State possessed knowledge that appellant had been convicted twice in 1963 of assault. In April of 1963 he had been 'found guilty of assault by striking someone and fined $13.00.' The following month of that year he was adjudged 'guilty of assault and bettery and fined $53.00.' Both convictions antedated Gideon, were without benefit of counsel, and were constitutionally infirm. If questions concerning the convictions were posed to the appellant, they would be impermissible under Burgett, Tucker, and Loper. The appellant vigorously objected to the State's request that it be permitted to interrogate the character witnesses about the two pre-Gideon convictions.

Appellant was under the impression that such testimony could not be properly allowed under Burgett and its siblings. The State, however, on the strength of this Court's decision in Avery v. State, supra, and the Court of Appeal's decision in Comi v. State, supra, carried the day and was granted permission to cross-examine the character witnesses with respect to their knowledge of the two 1963 convictions for assault.

The appellant produced a series of witnesses, all of whom had known the appellant for a number of years and who testified as to his good reputation in the community. One witness, in response to a question by the trial court as to whether the witness '(w)ould . . . believe (appellant) no matter what he says' responded, 'There's a doubt in my mind,' but that appellant was a 'peaceful man.' On cross-examination inquiry was made as to whether the witness had ever heard '. . . that in 1963, specifically April 1, 1963, that Mr. Taylor was found guilty of an assault by striking a Baltimore County police officer,' and was '. . . fined $13.00 at that time.' Further interrogation sought to ascertain if the witness had ever '. . . heard that on May 21, 1963, Mr. Taylor was found guilty of an assault and battery in Baltimore County, and fined $53.00. . . .' To both questions the witness replied in the negative. A second witness testified as to appellant's 'excellent' reputation for 'truthfulness and veracity.' The witness characterized Taylor as a 'peaceful person.' The witness was not, however, cross-examined relative to the 1963 convictions. a third witness, a clergyman, stated that Taylor 'was always truthful', and that he considered the appellant a 'reliable' and 'peaceful person.' When cross-examined by the Assistant State's Attorney, the witness readily acknowledged that he did not know that appellant had been living at an address different than the one about which the minister had been told, and that even if the witness had known, that knowledge would not alter the clergyman's opinion of the appellant. The clergyman further said that he had not heard of the two 1963 convictions for assault.

Taylor, testifying in his own defense, made a judicial confession that he had shot and killed the decedent, Barbara Bernice Daughton, on December 3, 1973. Following the jury's verdicts on the various counts of the indictment, Judge Proctor sentenced Taylor to thirty years for the second degree murder, and to a five year consecutive term for the handgun violation. The other two sentences are to be served concurrently.

In this Court Taylor voices objection to the use at his trial of the 1963 convictions on the ground that they were barred by Gideon v. Wainwright, supra, and that their use either to 'support guilt or enhance punishment for some other offense' erodes the principle of Gideon and violates Burgett. We glean from counsel's argument that he is in effect relying upon Heywood's Proverbs, Bk. 2, ch. 6 (1546) wherein it is said, 'He that hath an ill name is half hang'd ye know.'

Because a person's prior convictions may, as seen by some eyes, cause him to be 'half hang'd', the law, in order to protect a defendant, insists, however, that the convictions must have been constitutionally obtained before they are admissible for the purpose of impeachment of the defendant. When an accused objects to the State's use of prior convictions for purposes of impeachment, the State, out of the presence of the jury, must be able to convince the court of the constitutionality of such convictions before they may be utilized. Moore v. State, supra; Johnson v. State, 9 Md.App. 166, 263 A.2d 232 (1970). Moore and Johnson are concerned, as are Burgett, Tucker, and Loper, with precluding the State's cross-examination of a defendant as to his constitutionally invalid prior convictions.

We do not read the trilogy of Burgett, Tucker, and Loper as proscribing the use under all circumstances of unconstitutionally obtained convictions. ⁴ On the contrary, each of those cases, as we have noted, dealt with a defendant who had taken the stand and was then interrogated by the State relative to constitutionally infirm prior convictions. We see a vast difference between a defendant's taking the stand in his own defense and then being subjected to cross-examination about constitutionally invalid prior convictions and the cross-examination of so-called 'character witness'. In the former, some text writers think that if the accused declines to testify, a jury, despite instructions to the contrary, may well assume his guilt, but no such assumption will be made by the jury from a failure of a defendant to call witnesses to testify as to the defendant's good reputation. McCormick's Handbook on the Law of Evidence, § 191 (2d ed. E. Cleary 1972). We observe that it is the defendant in the first instance who opens the door to...