Bane v. State

BLOOM, Judge. Leonard Morgan Bane, Jr. (appellant) was convicted by a jury in the Circuit Court for Prince George’s County of breaking and entering, 1 second degree rape, 2 and common ¹⁴⁰ law battery. 3 Sentenced to a total of twenty-three years imprisonment, with eight years suspended, Bane has appealed, asserting: 1. The trial court erred in permitting appellant to be impeached with a prior conviction of breaking and entering. 2. The trial court erred in permitting appellant to be impeached with a prior statement.

We agree with appellant’s first assertion of error and consequently we shall reverse the judgments on that basis. Since the ruling complained of in the second issue is one that may recur on retrial, we will address it in this opinion as a matter of judicial economy. Impeachment By a Prior Conviction At the conclusion of the State’s cross-examination of appellant, the following colloquy occurred: THE STATE: Sir, on January 3rd, 1978 when you were represented by counsel, were you convicted of the crime of breaking and entering? APPELLANT’S ATTORNEY: Objection, Your Honor.

APPELLANT: I’ll answer that. 4 THE COURT: Just a moment. Approach the bench. [BENCH CONFERENCE] (THEREUPON, THE DEFENDANT NOT PRESENT AT THE BENCH) THE COURT: Have you got a certified copy of the record? THE STATE: Yes, Your Honor. ¹⁴¹ THE COURT: Let me see what you have. (THEREUPON, THE COURT VIEWING SAME.) 5 THE COURT: What is the basis of your objection?

APPELLANT’S ATTORNEY: May I just see that, please? May I see that, please? THE COURT: Sure. (THEREUPON, [APPELLANT’S ATTORNEY] VIEWING SAME.) THE STATE: Your Honor, I would note for the record that I had informed [appellant’s attorney] by letter that I intended to use that conviction and I made the certification available to him prior to trial.

APPELLANT’S ATTORNEY: That’s absolutely correct. THE COURT: All right. APPELLANT’S ATTORNEY: You have the discretion as to whether this comes in, I understand. However, something that happened eight or nine years ago, breaking and entering what I believe to be his sister’s house.

THE COURT: I can’t go into the details and I’m not about to go into the details. But I consider breaking and entering an offense involving moral turpitude. APPELLANT’S ATTORNEY: Then I ask you give a cautionary instruction at this time. THE COURT: No. I will give an instruction at the time I give all the other instructions that they can use this for only the purposes of determining his credibility, and that’s it.

I always do that. I have no problems doing that. 6 APPELLANT’S ATTORNEY: All right. ¹⁴² (BENCH CONFERENCE TERMINATED.) THE STATE: I’ll repeat that question and I would ask you to answer it “yes” or “no.” On January 3rd, 1978 when you were represented by counsel, were you convicted of the crime of breaking and entering? APPELLANT: Yes, sir, I was. Appellant contends that the trial court erred in permitting the State to impeach him with the prior breaking and entering charge.

We agree. In this state, it has been firmly established that in criminal cases, when the defendant takes the stand as a witness in his own behalf he thereby places his character in issue and may be asked on cross-examination if he has been convicted of crime. Burgess v. State, 161 Md. 162 , 155 A. 153 (1931); Niemoth v. State, 160 Md. 544 , 154 A. 66 (1931); Boone v. State, 2 Md.App. 80 , 233 A.2d 476 (1967). The defendant is thus subjected to the same rules of cross-examination that govern other witnesses.

Davis v. State, 237 Md. 97 , 205 A.2d 254 (1964); Allen v. State, 183 Md. 603 , 39 A.2d 820 (1944); Guy v. State, 90 Md. 29 , 44 A. 997 (1899). But when it is the defendant’s criminal history that is being inquired into, the trial court should be mindful that there is more than mere credibility being attacked. A more pervasive potential for prejudice must be considered, namely, the prejudice that is likely to emanate from advising the trier of fact that the very defendant on trial before it is already a convicted criminal. See Burrell v. State, 42 Md.App. 130 , 399 A.2d 1354 (1979).

Such prejudice is especially dangerous when the earlier crime is similar to that for which the defendant is currently being tried. Id. 7 As the United ¹⁴³ States Supreme Court, in Loper v. Beto, 405 U.S. 473 , 92 S.Ct. 1014 , 31 L.Ed.2d 374 (1972), observed: That a record of prior convictions may actually do more than simply impeach a defendant’s credibility has been often noted. See, e.g., C. McCormick, Evidence, § 43, p. 93 (1954): The sharpest and most prejudicial impact of the practice of impeachment by conviction ... is upon one particular type of witness, namely, the accused in a criminal case who elects to take the stand. If the accused is forced to admit that he has a “record” of past convictions, particularly if they are for crimes similar to the one on trial, the danger is obvious that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on charge, or even that he ought to be put away without too much concern with present guilt, than they will to its legitimate bearing on credibility. 405 U.S. at 482 -83 n. 11, 92 S.Ct. at 1019 n. 11.

Judge Karwacki, speaking for this Court in Duckett v. State, 61 Md.App. 151 , 485 A.2d 691 (1985), aff'd, 306 Md. 503 , 510 A.2d 253 (1986), outlined the Maryland law governing the admission of evidence to impeach a witness, including a defendant-witness, through a showing of his criminal record: (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’s prior conviction of an infamous crime is always admissible to impeach his credi ¹⁴⁴ bility regardless of the age of that conviction. Md. Cts. & Jud.Proc.Code Ann. § 10-905 (Repl.Vol.1984, Cum.Supp.1987). 8 (4) The admissibility of evidence of a witness’s 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 the length of time since it occurred in determining the relevance of the conviction to the witness’s credibility. 61 Md.App. at 153-54 , 485 A.2d 691 . See also, L. McLain, Maryland Evidence, § 609 (1987). Therefore, the fact that a witness has been convicted of a crime is admissible to attack the witness’s credibility only where the prior conviction was for (1) an infamous crime, (2) a crime involving moral turpitude, or (3) a lesser violation of the law which has some tendency to show that the witness is not to be believed.

State v. Duckett, 306 Md. 503 , 510 A.2d 253 (1986); Ricketts v. State, 291 Md. 701 , 436 A.2d 906 (1981); Paschall v. State, 71 Md.App. 234 , 524 A.2d 1239 (1987). The Court of Appeals, in Garitee v. Bond, 102 Md. 379 , 62 A. 631 (1905), defined infamous crimes as those crimes of treason, felony, perjury, forgery, and other offenses, classified generally as crimen falsi, which impress upon their perpetrator such a moral taint that to permit him to testify in legal proceedings would injuriously affect the public administration of justice. Accord, State v. Duckett, supra; Ricketts v. State, supra; Paschall v. State, supra. It has never been fully determined what offenses, other than treason or felony, involve such moral turpitude ¹⁴⁵ as to have a legitimate bearing on one’s credibility.

The term “moral turpitude,” while imprecise, connotes conduct which is “base or vile and contrary to the accepted and customary conduct between men.” State v. Duckett, supra; Ricketts v. State, supra; Dental Examiners v. Lazzell, 172 Md. 314 , 191 A. 240 (1937). Moral turpitude suggests, therefore, “such a disregard for social values on the part of the perpetrator, that one could reasonably infer that such a person’s testimony is suspect.” Ricketts, 291 Md. at 711 , 436 A.2d 906 . Finally, it has been held that to constitute moral turpitude the conduct involved must be intentional and not merely an act of negligence or an accident. Ricketts, supra; Lazzell, supra; Paschall, supra.

Crimes that are determined to be infamous or involving moral turpitude are always admissible as impeachment devices; the admission into evidence of a witness’s prior conviction for a non-infamous crime is left to the sound discretion of the trial court. Cousins v. State, 230 Md. 2 , 185 A.2d 488 (1962); Cason v. State, 66 Md.App. 757 , 505 A.2d 919 (1986); Burrell v. State, supra. To be admitted for impeachment purposes, such a lesser crime must taint an individual’s credibility. The trial court, when exercising its discretion to admit or exclude lesser crimes as impeachment devices, needs to take into consideration the length of time since the offense occurred and the nature of the offense.

State v. Duckett, supra; Cousins v. State, supra; Paschall v. State, supra. When dealing with the nature of the offense, the trial court must inquire whether the crime proffered for impeachment purposes involves, for example, the element of deceit, lying, or dishonesty which could lead a rational person reasonably to conclude that one who would commit such a crime would be less likely to tell the truth than one who would not commit such a crime. If that inquiry draws an affirmative response, the prior conviction is prima facie relevant; if the response is in the negative, however, then ¹⁴⁶ the evidence of the prior conviction should be considered “clearly irrelevant” and thus simply not admissible. Burrell v. State, 42 Md.App. at 140 , 399 A.2d 1354 .

Next, the trial court needs to consider when the crime was committed. As a general rule, the farther in the past the crime, the weaker its relevance to present credibility. Judge Wilner, speaking for this Court in Burrell v. State, supra, likened the time requirement to the law of gravity. He noted: [The time requirement] is somewhat akin to the law of gravity: the farther away one is from the mass, the less is its gravitational pull or influence.

But, like another aspect of the law of gravity—the larger the mass, the stronger is its pull at any given distance—so it is that the more enormous the earlier crime (i.e., the more it embodies and therefore exudes dishonesty), the more likely will be its relevance, and thus its admissibility, even after the elapse of long intervals. With respect to other than infamous crimes, therefore, admissibility for impeachment purposes seems to be a function of a more or less direct ratio between the degree of dishonesty inherent in the earlier crime and the time elapsed since its commission. The greater the degree of dishonesty inherent in the earlier crime, the longer is the period of time since its commission that the conviction remains relevant, and therefore admissible, for impeachment purposes. 42 Md.App. at 140-41 , 399 A.2d 1354 . In conclusion, then, the law in Maryland relative to impeachment by a prior conviction bases its emphasis on the nature of the crime.

The crime must be an infamous crime, one involving moral turpitude, or a lesser crime of a type which tends to indicate that the person convicted should not be believed. Therefore, it is essential that the crime itself clearly identify the nature of the prior conduct of the witness in order to show that he, as a result of his conviction of that crime, is unworthy of belief. See, State v. Duckett, 306 Md. at 508 , 510 A.2d 253 . ¹⁴⁷ Breaking and Entering—Md.Ann. Code art. 27, § 31A Appellant contends that statutory breaking and entering is not an infamous crime and thus could not have been admitted for impeachment purposes pursuant to Md.Cts. & Jud.Proc.Code Ann. § 10-905, supra. He further asserts that statutory breaking and entering requires no specific intent, and the trial court should have exercised its discretion to exclude evidence of the conviction.

The State argues that statutory breaking and entering is an infamous crime or a misdemeanor involving moral turpitude, echoing the trial judge who, as noted supra, stated, “But I consider breaking and entering an offense involving moral turpitude.” This divergence of opinion as to the nature of statutory breaking and entering is understandable, since the crime, as pointed out by Judge Moylan, is a “late starter in the burglary field____” Moylan, The Historical Intertwining of Maryland’s Burglary and Larceny Laws or the Singular Adventure of the Misunderstood Indictment Clerk, 4 U.BaltL.Rev. 29, 31 (1974). At common law, burglary is defined as the breaking and entering of a dwelling house of another by night with the intent to commit a felony therein. Jennings v. State, 8 Md.App. 312 , 259 A.2d 543 (1969); Reagan v. State, 4 Md.App. 590 , 244 A.2d 623 (1968); Hall v. State, 1 Md.App. 392 , 230 A.2d 473 (1967). The requirement that each element of the offense—breaking, entering, dwelling house, nighttime; felonious intent—must be proved created problems for the prosecution when the facts of the case did not dovetail with all the elements of burglary.

For instance, in Dobbs’ Case, 2 East P.C. 513 (1770), the defendant, in the night, broke and entered a stable, within the curtilage of a dwelling, with the intent to disable a race horse. The horse died, and Dobbs was subsequently convicted of the felony of maliciously killing the horse. In the trial for burglary, however, he was held not guilty “for his intention was not to commit the felony, by killing and destroying the horse, but a trespass only to prevent his running; and therefore ¹⁴⁸ no burglary.” 9 As a result of these problems, legislatures enacted statutes to make criminal conduct closely related to burglary that could not be prosecuted as burglary! See, e.g., Md.Code Ann. art. 27, § 30 (Breaking dwelling with intent to steal or commit felony); Md.Code Ann. art. 27, § 31B (Breaking and entering storehouse, etc., of another); Md.Code Ann. art. 27, § 32 (Breaking outhouse, etc., or into boat with intent to commit felony); Md.Code Ann. art. 27, § 33A (Breaking into building or boat with intent to steal).

See generally, R. Perkins & R. Boyce, Criminal Law, 246-72 (3d ed. 1982). In 1973, the Maryland Senate Judicial Proceedings Committee received testimony from the State’s Attorneys of various counties and Baltimore City that there was a need for a burglary offense of less severity than common law burglary or any of the then applicable statutory burglary-type crimes. The existence of such an offense, it was argued, would facilitate prosecutors in the handling of cases in which the felonious intent, a required element of common law burglary and all of the then statutory burglary offenses, of the intruder could not be clearly shown. Senate Bill 218 was drafted and submitted to the 1973 General Session with the intent of creating a criminal offense to comply with the State’s Attorneys’ wishes.

Legislative Council of Maryland, Report to the General Assembly of 1973, at 122, item no. 187 (1973). See also, 1973 Journal of Proceedings of the Senate of Maryland—Regular Session ¹⁴⁹ 136. 10 Senate Bill 218 was passed as introduced, without any amendments, by both houses of the Maryland General Assembly. See, 1973 Journal of Proceedings of the Senate of Maryland—Regular Session 136, 255, 274; 1973 Journal of Proceedings of the House of Delegates of Maryland— Regular Session 280, 2444, 2593. Governor Marvin Mandel signed the enrolled bill into law on May 24, 1973. 1973 Md.Laws 661.

That law read, as it does now, as follows: Any person who breaks and enters the dwelling house of another is guilty of a misdemeanor and, upon conviction thereof, shall be sentenced to imprisonment for a term of not more than three (3) years or a fine of not more than five hundred dollars ($500.00) or both. Md.Code Ann. art. 27, § 31A (Repl.Vol.1982, Cum.Supp. 1987). The gravamen of the offense is the breaking and entering of the dwelling of another. To be convicted of statutory breaking and entering, as is evident from the legislative intent of the bill, no intent to commit a felony