Watson v. State

• Decision Date: 01 September 1985
• Docket Number: No. 1185,1185
• Citation: 510 A.2d 1094,68 Md.App. 168
• Parties: James Henry WATSON v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 168

68 Md.App. 168

510 A.2d 1094

James Henry WATSON v. STATE of Maryland.

No. 1185, Sept. Term, 1985.

Court of Special Appeals of Maryland.

July 7, 1986.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, Andrew L. Sonner, State's Atty. for Montgomery County and Jack Hanly, Asst. State's Atty. for Montgomery County, on brief, Rockville), for appellee.

Argued before WILNER, BISHOP and ROBERT M. BELL, JJ.

BISHOP, Judge.

A jury in the Circuit Court for Montgomery County convicted appellant James Henry Watson of first degree rape, second degree rape, assault with intent to rape, and battery. The court sentenced appellant to life imprisonment on the first degree rape count and reserved sentencing as to the other counts. Appellant raises the following issue:

Did the trial court err in allowing evidence of appellant's prior attempted rape conviction to be admitted for impeachment purposes? ¹

Pretrial, appellant sought a ruling on the admissibility, for impeachment purposes, of his 1982 conviction in Virginia for attempted rape. The trial judge ruled that rape was an infamous crime, and that since he had no discretion to rule otherwise, the attempted rape conviction was admissible under Md.Cts. & Jud.Proc.Code Ann., *171s 10-905. ² The trial judge emphatically stated that if he had discretion in the matter he would not have admitted the prior attempted rape conviction because the prejudicial impact of the evidence would outweigh its probative value. During trial, at the close of the direct examination of appellant, consistent with his pretrial ruling, the trial judge ruled that the attempted rape conviction was admissible for impeachment purposes. In his cross-examination of appellant, the prosecutor did elicit the fact of the Virginia conviction. ³

Appellant argues that attempted rape is not an infamous crime and therefore not admissible under § 10-905, and that even if it is an infamous crime, the trial court could have invoked its discretion to exclude the evidence. In Duckett v. State, 61 Md.App. 151, 485 A.2d 691, aff'd, 306 Md. 503, 510 A.2d 253, (1985), opinion issued June 26, 1986, this Court summarized the Maryland law prior to Ricketts v. State, 291 Md. 701, 436 A.2d 906 (1981) as to admission of evidence of prior convictions to impeach a defendant:

1. The credibility of a witness is always a relevant issue in any case, civil or criminal;

2. When a defendant in a criminal case elects to testify in his own defense, he subjects himself to the same rules of cross-examination that govern other witnesses;

3. Evidence of a witness' prior conviction of an infamous crime is always admissible to impeach his credibility regardless of the age of that conviction. Md.Code (1974, 1984 Repl.Vol.), § 10-905 of the Courts and Judicial Proceedings Article;

4. The admissibility of evidence of a witness' prior conviction of a non-infamous crime is left to the sound discretion of the trial judge who must consider the nature of the crime and length of time since it occurred in determining the relevance of the conviction to the witness' credibility. ⁴

61 Md.App. at 153-54, 485 A.2d 691 ( citing Burrell v. State, 42 Md.App. 130, 399 A.2d 1354 (1979)) (footnotes omitted) (emphasis in original). See also Cason v. State, 66 Md.App. 757, 773-74, 505 A.2d 919 (1986); Kirby v. State, 48 Md.App. 205, 207, 426 A.2d 423, cert. denied, 291 Md. 777 (1981). Duckett then recognized that the Court in Ricketts had narrowed the latter category, which consists of non-infamous offenses, to those which the name of the crime tends to show the person convicted of such an offense should not be believed under oath. 61 Md.App. at 157, 485 A.2d 691. In affirming Duckett, the Court of Appeals restated the Ricketts' analyses as to both infamous and non-infamous crimes. See 306 Md. at 506-510, 510 A.2d 254-257.

Here, we are concerned only with the category of offenses which is defined as infamous crimes. In Cason we stated:

While evidence of a prior conviction for an infamous crime is always admissible to impeach credibility, [ Ricketts] 291 Md. at 706 ; Md. Courts and Judicial Proceedings Code Ann. § 10-905, "[t]he admissibility of evidence of a witness' prior conviction of a non-infamous crime is left to the sound discretion of the trial judge who must consider the nature of the crime and length of the time since it occurred in determining the relevance of the conviction to the witness' credibility." ⁵

66 Md.App. at 774, 505 A.2d 919 ( citing Duckett, 61 Md.App. at 154, 485 A.2d 691) (emphasis in original). We interpret the phrase "always admissible" as used in Cason and Duckett to mean that where infamous crimes are involved the trial court has no discretion to exclude the evidence of the prior crime when introduced for impeachment purposes. The trial court was therefore correct in ruling that if attempted rape is an infamous crime under § 10-905, it had no discretion to prevent admission of the fact of that conviction for impeachment purposes.

This Court has recognized the trend in other jurisdictions restricting prior conviction evidence used to impeach criminal defendants. See Duckett, 61 Md.App. at 154-55, 485 A.2d 691; Kirby, 48 Md.App. at 209, 211-12, 426 A.2d 423; Burell, 42 Md.App. at 135-54, 399 A.2d 1354. Nonetheless, § 10-905 has withstood constitutional attacks based upon due process grounds. See Nance v. State, 7 Md.App. 433, 442-44, 256 A.2d 377 (1969), cert. denied, 256 Md. 747, 398 U.S. 954, 90 S.Ct. 1881, 26 L.Ed.2d 296 (1970) (involving the essentially identical 1965 version of § 10-905, Md.Ann.Code, art. 35, § 10).

The issue which remains to be resolved is whether appellant's Virginia attempted rape conviction constitutes an "infamous" crime under § 10-905. This Court has had occasion to analyze the effect of foreign convictions in applying Maryland statutory provisions in the context of the enhanced punishment statute. The enhanced punishment statute, Md.Ann.Code, art. 27, § 643B, allows imposition of a mandatory life sentence upon a third conviction of a "crime of violence" as defined by the statute. In evaluating whether foreign convictions are "crimes of violence" as required by the statute, a two step process has evolved. First, we determine whether the Maryland counterpart to the foreign crime is one of those classified in the statute as a "crime of violence." See DiBartolomeo v. State, 61 Md.App. 302, 312-13, 486 A.2d 256 (1985); Mitchell v. State, 56 Md.App. 162, 183-84, 467 A.2d 522 (1983). Once it is determined that the counterpart Maryland offense is among those set out in the statute, we then look to the law of the foreign jurisdiction for its definition of that crime. If the elements of the crime as established by the foreign jurisdiction are sufficiently limited to those elements by which the crime is established in this State, it qualifies as a violent crime under our statute. Temoney v. State, 290 Md. 251, 262-64, 429 A.2d 1018 (1981); DiBartolomeo, 61 Md.App. at 312-13, 486 A.2d 256. If the crime meets both classification and definition requirements, it may be used for the purposes of applying the enhanced punishment statute. We believe the same reasoning may be applied to the issue in this case.

Section 10-905 allows, for purposes of impeachment, the admission into evidence of "infamous" crimes as defined by Maryland law. First, we must determine what Maryland offense is counterpart to the Virginia crime of attempted rape. Second, we shall decide whether the counterpart Maryland offense is an infamous crime. If the counterpart Maryland offense is an infamous crime, then we must examine the Virginia offense to determine if its elements are sufficiently limited to those elements by which the crime is established in this State. If so, the foreign offense is an infamous crime for purposes of applying § 10-905.

The Maryland crimes of attempted rape and assault with intent to rape could be embodied within the crime of attempted rape in Virginia. In Maryland, attempted rape, a common law misdemeanor, requires an intent to rape and any step towards completion of the offense. See Hines v. State, 58 Md.App. 637, 666, 473 A.2d 1335 (1984); Christensen v. State, 33 Md.App. 635, 639-40, 365 A.2d 562 (1976). A person convicted of attempted first degree rape in Maryland can be sentenced to life imprisonment, the maximum sentence for first degree rape. See Md.Ann.Code, art. 27, § 644A. See also Walker v. State, 53 Md.App. 171, 187, 452 A.2d 1234, cert. denied, 296 Md. 63 (1983). Assault with intent to rape in Maryland is defined as a felony, see Md.Ann.Code, art. 27, § 12, and requires an intent to rape combined with assaultive behavior. Christensen, 33 Md.App. at 639-40, 365 A.2d 562. The crime of assault with intent to rape is punishable by a prison sentence between two and fifteen years. Md.Ann.Code, art. 27, § 12.

In Virginia, attempted rape requires an intent to commit rape and a "direct, ineffectual act" done towards its commission which must "reach far enough towards accomplishment of the desired result to amount to the commencement of consummation." Chittum v. Commonwealth, 211 Va. 12, 174 S.E.2d 779, 781 (1970); Barrett v. Commonwealth, 210 Va. 153, 169 S.E.2d 449, 451 (1969); Ingram v. Commonwealth, 192 Va. 794, 66 S.E.2d 846, 851 (1951). Attempted rape is classified as a Class 4 felony in Virginia, carrying a potential sentence of ten years imprisonment. Va.Code, § 18.2-10(d). Virginia does not have a separate offense labeled assault with intent to rape, and consequently many of the attempted rape cases embody some form of assaultive behavior. See, e.g., Fisher v. Commonwealth, 228 Va. 296, 321 S.E.2d 202, 203 (1984) (testimony that defendant attempted to penetrate twelve year old victim sufficient to support conviction of attempted rape); ...