Wethington v. State

• Decision Date: 23 February 1968
• Docket Number: No. 118,118
• Parties: Bruce Allen WETHINGTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 237

3 Md.App. 237

238 A.2d 581

Bruce Allen WETHINGTON v. STATE of Maryland.

No. 118.

Court of Special Appeals of Maryland.

Feb. 23, 1968.

Ronald G. Kane, Riverdale, for appellant.

Edward L. Blanton, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, and Arthur A. Marshall, Jr., State's Atty. for Prince George's County, Upper Marlboro, on brief, for appellee.

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

MURPHY, Chief Judge.

At a jury trial held on February 10, 1967 in the Circuit Court for Prince George's County, the appellant, Bruce Allen Wethington, was convicted of two counts of assault with intent to maim and two counts of indecent exposure. Two year concurrent sentences were imposed on each of the indecent exposure counts to run consecutively with five year concurrent sentences imposed on each assault count. The principal question presented on this appeal is whether the trial court committed reversible error by allowing the State's Attorney to question the appellant, over objection, about a prior conviction of indecent exposure.

At the trial, the State presented evidence that the appellant exposed his penis to Mrs. Rogers on two occasions on June 11, 1966-once inside a Seven-Eleven store and again immediately after Mrs. Rogers left the store; that appellant then fled the scene in a vehicle, and was chased by Mrs. Rogers' husband, James Rogers, and Ronald Furr, operating separate vehicles; that appellant fired several shots at the pursuing vehicles, striking each one; that appellant then abandoned his vehicle; and that he was thereafter identified by Mrs. Rogers as the individual who had exposed himself to her, and by Mr. Rogers and Ronald Furr as the person whom they had chased and who fired at them.

At the outset of the trial, appellant advised the court that one of the basic issues in the case would be that of identification, i.e., '* * * whether the man who exposed himself is the same man who did the shooting * * *.' As the trial progressed it became apparent that appellant's defense to the charges against him was (1) insufficient identification, coupled with an alibi that he was in the District of Columbia when the crimes were committed, and, in the alternative, albeit inconsistent, (2) that as to the assault counts, he was acting in self-defense when he fired at the pursuing automobiles since they were trying to force him off the road.

After appellant had testified on his own behalf on direct examination, a bench conference was requested by the State's Attorney, at which time he indicated his intention to show that appellant had previously been convicted of indecent exposure. The court stated: 'He can be asked if he is the same one, for means of identification.' Defense counsel then stated: ' * * * you can't use the past record to prove a conviction in this case * * * to show his propensity to commit a similar crime,' to which the court responded:

'He can be asked, 'Are you the same Bruce Allen Wethington who on September 26, 1958, was convicted of indecent exposure?'

'Now he can't ask him 'What is your record?' or 'Have you ever been convicted of indecent exposure?"

The State's Attorney then said:

'Motion being you have a man who is charged with assault with attempt to murder and assault with intent to maim. You have a man who has a conviction with assault with a deadly weapon. You have a man who was convicted of indecent exposure and a man who was convicted of escape. These are all in one degree or another considerable elements to what he is charged with here * * *.'

Following this colloquy, the appellant was asked and gave an affirmative answer, over objection, to the question: 'Are you the same Bruce Allen Wethington, who in 1958 was convicted of indecent exposure in Durham, North Carolina?' ¹

The trial judge did not advise the jury that the evidence of the prior conviction for indecent exposure was to be considered solely for impeachment purposes, as bearing on appellant's credibility as a witness, nor were any instructions to that effect requested by appellant, or included by the court in its charge to the jury. Whether it was the intention of the trial judge to admit the prior conviction of indecent exposure as substantive evidence or as impeaching evidence, or for both purposes, cannot be gleaned with certainty from the record before us. That the State's Attorney was urging that such conviction constituted substantive evidence to prove guilt seems clear, just as clear as appellant's position that the prior conviction could not be used to prove the present offense or to show propensity to commit similar crimes. Had it been the purpose of the trial judge to admit the prior indecent exposure conviction to impeach appellant's credibility as a witness, we think such conviction under the circumstances of this case, would have been admissible for that purpose as having some tendency to show that appellant was not to be believed under oath. See Cousins v. State, 230 Md. 2, 185 A.2d 488; Woodell v. State, 2 Md.App. 433, 234 A.2d 890; Huber v. State, 2 Md.App. 245, 234 A.2d 264. On the record before us, however, we conclude that the prior conviction in question was admitted on a basis other than that it constituted proper impeaching evidence.

The primary question for our determination, therefore, is whether, under the circumstances, the prior conviction for indecent exposure, not admitted for the purpose of impeachment, was otherwise admissible, and, if not, whether the admission of such evidence constituted reversible error.

It is well settled that proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing commission of the particular crime charged. Bell v. State, 234 Md. 254, 198 A.2d 895; Gray v. State, 221 Md. 286, 157 A.2d 261; MacEwen v. State, 194 Md. 492, 71 A.2d 464; Huber v. State, supra; Gorski v. State, 1 Md.App. 200, 228 A.2d 835; 29 Am.Jur.2d, Evidence, § 320, p. 366. The rule is not without exceptions, however, so that the prior conviction may be shown when it tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, (5) the identity of the person charged with the commission of a crime on trial. Wentz v. State, 159 Md. 161, 164, 150 A. 278; Cothron v. State, 138 Md. 101, 110, 113 A.2d 620; Gorski v. State, supra; Hayes v. State, Md.App., 237 A.2d 531 (decided January 24, 1968). However, evidence which simply indicates a disposition on the part of the accused to commit a crime is ordinarily excluded as irrelevant and untrustworthy since it tends to deflect the mind of the trier of facts from the single issue of guilt or innocence of the particular crime under consideration. Gilchrist...