Whitehead v. State

• Decision Date: 15 April 1983
• Docket Number: No. 1002,1002
• Citation: 458 A.2d 905,54 Md.App. 428
• Parties: Michael Anthony WHITEHEAD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 428

54 Md.App. 428

458 A.2d 905

Michael Anthony WHITEHEAD v. STATE of Maryland.

No. 1002.

Court of Special Appeals of Maryland.

April 15, 1983.

Mark Colvin, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Jillyn K. Schulze, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and Joseph C. Sauerwein, Asst. State's Atty. for Prince George's County on the brief, for appellee.

Argued before MASON and ADKINS, JJ., and CHARLES E. ORTH, Jr., Specially Assigned Judge.

ADKINS, Judge.

At the conclusion of a jury trial in the Circuit Court for Prince George's County, appellant Michael Anthony Whitehead was convicted of felony murder, conspiracy to commit armed robbery, theft, and use of a handgun in the commission of a crime of violence. He was sentenced to a total of life plus fifteen years imprisonment. On this appeal, he makes numerous assignments of error. In view of our disposition of the case, we need consider only four of them. They are that:

1. The trial court erred in refusing to give a limiting instruction after Whitehead had admitted, during direct examination, to a prior armed robbery conviction.

2. The trial court erred in refusing to allow defense counsel to inspect, for purposes of cross-examination and impeachment, notes of oral statements made by the prosecution's chief witness.

3. The trial court erred in refusing to dismiss the theft count.

4. The trial court erred in refusing to give a specific intent instruction with respect to the theft charge.

Refusal to Give a Limiting Instruction With Respect to Evidence of Prior Conviction

As a general rule, and subject to certain exceptions, the fact that a witness, including a criminal defendant, has previously been convicted of a crime is admissible in evidence, if at all, only on the issue of the witness's credibility. Ross v. State, 276 Md. 664, 350 A.2d 680 (1976). When evidence of conviction of a prior crime is admissible on the issue of credibility, what is admissible is normally limited to the facts of the former conviction, as opposed to details about the commission of the earlier crime. Robinson v. State, 53 Md.App. 297, 452 A.2d 1291 (1982); Courts and Judicial Proceedings Article § 10-905(a). When a former conviction is admitted for the purpose of impeachment, the party against whom it is admitted is generally entitled to a limiting or cautionary instruction, advising the jury that the evidence may only be considered on the issue of credibility, and not as tending to prove guilt of the crime which is the subject of the pending case. See, e.g., Piles v. State, 233 Md. 487, 489, 197 A.2d 238, 239 (1964) (instruction therein "correctly stated the law").

In the case at bar, no one takes issue with these general principles. The controversy here arises from the fact that Whitehead himself, on direct examination, testified to a former conviction of armed robbery, unrelated to the crimes for which he was then on trial. The trial judge declined to give a cautionary instruction because Whitehead did not introduce the former conviction for purposes of impeachment of himself. Whitehead now argues that he was entitled to such an instruction even though his counsel elicited the evidence on direct examination in order to "minimize the impact of this conviction on the jury...." The State, on the contrary, contends that a limiting instruction is required only when the prior conviction is introduced solely for the purpose of impeachment, and not when that evidence comes in an effort "to impress the jury with [the defendant's] propensity to admit guilt when guilt exists in the hope that the jury would conclude that he would have likewise admitted guilt [in the instant case] ... had it existed." The State also argues that the prosecution's use of prior conviction evidence went beyond efforts to impeach, in that they amounted to rebuttal of Whitehead's claim that his participation in the offense was not intentional.

What happened at the trial was this:

When Whitehead took the stand in his own defense, defense counsel elicited some general background information. Then the following colloquy occurred:

Q. Mike, have you ever been in trouble before?

A. Yes, I have.

Q. When was that?

A. Seventy-nine.

Q. What happened?

A. I pleaded guilty to armed robbery.

Q. Where was that armed robbery charged?

A. In Prince George's County.

Q. Did you go to jail? What happened?

A. I served two years and a half in the penitentiary, Hagerstown.

Q. When did you get out of prison, Michael?

A. The 16th of July last year.

Q. And when you got out of prison, where did you come back to?

A. Live with my mother in Capitol Heights.

Whitehead then testified to events that had occurred on the date of the crimes with which he was charged. These included the facts that he had encountered one Donald Brown, that at Brown's request he had started an automobile without the use of ignition keys, that he had driven the car to a certain location at Brown's directions, that Brown had entered a "store" in Hampton Mall, then left the store and instructed Whitehead to drive away, and that Brown then told Whitehead that Brown had shot a man.

On cross-examination, the relevant portions of the questioning went as follows:

Q. When did you get out of jail?

A. July 16th, last year.

Q. When were you sentenced?

A. Hagerstown Penitentiary.

Q. When were you sentenced before that?

A. Seventy-nine.

Q. What month?

A. I don't know. I can't remember the month.

Q. What were you convicted of?

A. Armed robbery.

Q. What else?

A. Use of a handgun.

Q. Use of a handgun. And what else?

A. Armed robbery, use of a handgun, and a handgun in the commission of a felony.

Q. All right. Out of a different case?

A. No, the same case.

Q. Were you also convicted of transporting, carrying or wearing a handgun in 1979?

A. No, I was not.

Q. Any different--you were not? You didn't plead--

A. Not that I can recall, no Q. Not that you can recall. You remember being convicted on the same date, July 25, 1979, carrying and transporting a handgun, and being sentenced to a concurrent sentence with the sentence in the armed robbery, the offense occurring November '78? Do you remember the offense date in the armed robbery?

A. No, I do not.

Q. Was it January 10, 1979?

A. I do not know.

Q. You don't know?

A. No.

Q. Are you saying you weren't convicted then of a separate handgun offense?

A. Not that I know of.

Q. It wasn't you who plead guilty?

A. No, not that I recall.

* * *

* * *

Q. What was the sentence you were sentenced to for the armed robbery?

A. Twelve years.

Q. Then you got out in July of 1981?

A. Yes, I did.

Q. When you got out, you mean you were paroled?

A. Yes, I was.

Q. Did you have a parole agent supervising you?

A. Yes, I did.

Q. And you knew that if you were involved in any type of an offense for which you would be arrested, you could very well go back to prison for the remaining portion of time, is that correct?

A. Yes, I did.

Q. And it didn't bother you at all about getting in a car, that you didn't know whether it had any tags on it or not, is that correct?

A. No, it is not.

* * *

* * *

Q. You knew the car was stolen, didn't you?

A. Yes, I did.

Q. And that didn't bother you, being in a stolen car?

A. It bothered me.

Under the circumstances disclosed by the record, as quoted above, we hold that Whitehead was entitled to the cautionary instruction he requested.

What occurred below was apparently a manifestation of a practice described in United States v. Bad Cob, 560 F.2d 877, 883 (8th Cir.1977):

The introduction by a witness himself, on his direct, of a prior conviction is a common trial tactic, recommended by text writers on trial practice. There is a paucity of authority justifying in theory this well-accepted practice, but it has been justified on the ground that it serves a two-fold purpose: (a) to bring out the witness' "real character", the whole person, particularly his credibility, and (b) to draw the teeth out of the adversaries' proper use of the same evidence on cross-examination.

Others have suggested that this strategy helps "take the sting out [of impeachment by proof of former conviction] and prevents the prosecutor from bringing it out...." F. Bailey and H. Rothblatt, Successful Trial Techniques, 222 (1971). See 1 I. Goldstein and F. Lane, Goldstein Trial Technique, § 11.30 (2 Ed.1969).

In Kitt v. United States, 379 A.2d 973 (D.C.App.1977), for example, the court held evidence of the defendant's prior convictions admissible as part of his case, observing "[n]othing precludes either side from bringing out the prior criminal record of one of its own witnesses on direct examination as a matter of trial strategy...." 379 A.2d at 975. See also U.S. v. Vanco, 131 F.2d 123 (7th Cir.1942) (government allowed to introduce evidence of prior conviction of one of its witnesses).

The technique has made appearances in Maryland. Very recently in Chadderton v. State, --- Md.App. ---, 456 A.2d 1313 (1983), we held that it was not an abuse of discretion to permit the prosecution to elicit from several of its witnesses information about prior convictions. And a few months earlier, in Robinson v. State, supra, we decided that a defendant had not opened the door to unlimited cross-examination about his prior criminal activities when on redirect examination he revealed a guilty plea in connection with a prior conviction and his rejection of a chance to plead guilty to the charges for which he was then being tried. But the issue before us now--whether a cautionary instruction is required when such testimony comes in--was not raised in either Chadderton or Robinson. Indeed, this precise issue does not appear to have been decided in any reported Maryland case.

The precise issue has been raised in at least a few of our sister...