Burrell v. State

Wilner, J., delivered the opinion of the Court. March 10,1978, was a Friday, and that meant it was payday for Clyde Burrell, Jr. and Curtis Williams. Having completed ¹³¹ the night shift at Bethlehem Steel, they left work early Friday morning, armed with their week’s pay, and repaired to the North Point Liquor Store, as apparently was their weekly habit. Williams said he got there about 9:30 a.m., just after leaving work.

Burrell arrived about 12:30 p.m. At some point around midafternoon, after each of these gentlemen had consumed a fair amount of spirituous potion, they removed themselves to the parking lot outside the store for a friendly game of Tonke. Tonke is a card game, the precise rules of which are not fully described in the record and are not sufficiently well-known to this Court to permit the taking of judicial notice; but the game does clearly permit the placing of wagers upon its outcome. Indeed, it was not the love of the game itself that induced this adventure.

It was, alas, that both were flushed with their paychecks, conveniently cashed for them by the neighborly spirit shop, and they were settling down to a little gambling. As sometimes is known to happen in these situations, a dispute arose with respect to the proper interpretation and application of one of the rules of the game. Mr. Burrell attempted to explain the precise nature of the dispute — the text of the rule that was allegedly violated and the manner of its alleged violation — but we must confess that the explanation is lost on us. Fortunately, this case does not depend upon such an understanding.

Suffice it to say that Mr. Williams picked up $10 from the pot without the concurrence of Mr. Burrell, who attempted to explain to Mr. Williams why, under the rules of the game, his pocketing of the money was inappropriate. Mr. Williams remained unconvinced. Very quickly, the dispute left the arena of patient logic and calm, rational debate and dropped to a considerably less lofty but much more frequent forum for the resolution of such disputes. Mr. Williams lunged at Mr. Burrell with a knife.

He missed, however, and was, at least temporarily, suitably restrained. The narrative to this point is essentially undisputed. Also undisputed is that, at some later time, Mr. Burrell went to his car, got a .38 caliber pistol, and with it shot Mr. Williams in the chest and in the leg. The critical area of controversy is ¹³² the extent to which this shooting was provoked by Mr. Williams’ intervening actions — whether, in other words, Mr. Burrell was acting in self-defense.

The context in which this controversy arose and was resolved was Mr. Burrell’s trial in the Circuit Court for Baltimore County, sitting without a jury, for assault with intent to maim and use of a handgun in the commission of a crime of violence. Mr. Williams, though admitting having a knife and going after Mr. Burrell with it once, said that that had occurred at least an hour before the shooting. His version was that the argument had ended, that he was walking toward his car and away from Burrell, his knife in his pocket, when Burrell shot him from a distance of about two car lengths. Burrell, as might be expected, described a somewhat different sequence of events.

The argument continued, he said, despite his persistent attempts to end it. Williams taunted him, cursed him, and came at him not once but on at least three occasions with the knife. It was he — Burrell — who walked away. He went back into the liquor store, bought some pig knuckles, and started for his car when Williams came at him again.

Twice Williams shoved him, and advanced once more with the knife. It was at this point that Burrell shot him once in the chest. Undaunted, Williams came at him one more time with the knife and Burrell shot him in the leg. Burrell then drove away, but subsequently turned himself in to the Baltimore City police.

Two neutral witnesses testified for the State. Robert Ware was inside the North Point Liquor Store, along with quite a few other people, when the crowd suddenly rushed to the window facing the parking lot. Ware looked up {i.e., out of the window) just in time to see Burrell shoot Williams. Ware said that he was about 100 to 125 yards away from where this occurred, but no one questioned his ability to see what he described.

He did not see a knife. Indeed, he only looked up for the two or three seconds when the actual shooting occurred, and could not tell whether, at that moment, Williams was walking away from Burrell. When asked how far apart the two men were, he said “from here to that wall” which, in the absence of any more precise quantification, ¹³³ leaves this Court in a bit of a quandry as to how far that really was. The second neutral witness was police officer Albrecht, who had investigated the shooting.

No weapon was recovered — not a knife and not the gun. He testified as to an oral statement given to him by Burrell later in the day, which was generally consistent with the story given by Burrell in court. Upon this evidence, the court convicted Burrell on both charges and sentenced him to prison for a total of eight years (five years for assault with intent to maim and three years, consecutive, for the handgun offense). At the end of the State’s case (and the overruling of his motion for judgment of acquittal), Burrell elected to testify in his own defense.

This was not, however, until after he had been warned by his attorney that, if he did testify, the court and the State’s Attorney could ask questions about “any record you have since you have been eighteen years of age, where you have been represented by counsel or where you have in fact waived your right to counsel.” “That is”, said the attorney, “any convictions can be brought out.” So warned, appellant took the stand and gave his version of what occurred. Not to make a liar out of defense counsel, the State’s Attorney did indeed inquire, upon cross-examination, about several prior convictions. He first asked a general question — have you ever been convicted of a criminal offense while represented by counsel — but, at the court’s suggestion, then got more specific. He asked about a 1970 conviction for disorderly conduct, to which the court sustained an objection based on the fact that such a crime was not one of moral turpitude.

Compare Cousins v. State, 230 Md. 2 (1962). He then asked about a 1973 assault conviction, to which the court overruled an objection with the comment, “I think that that has some relevance to this case.” Finally, the State brought out that in 1975, appellant had been convicted of a “deadly weapon charge”, without specifying the offense further. Appellant’s sole complaint in this appeal is that the court erred in allowing the evidence of his 1973 assault conviction. Pointing up the court’s remark as to the relevance of that ¹³⁴ conviction in the light of our decision in Thomas v. State, 29 Md. App. 45 (1975), he assumes that the trial court recognized that the assault conviction would be irrelevant, and therefore inadmissible, for the purpose of impeaching appellant’s credibility as a witness, and therefore postulates that the court accepted the conviction as bearing directly on the issue of whether appellant was the aggressor in this instance.

This, he alleges, would be equally, if not more, impermissible: We do not share appellant’s interpretation of why — for what purpose — evidence of his earlier assault conviction was admitted. He reads too much into the court’s response to the objection expressed by counsel, and, in effect, damns the court with very faint praise. He credits the court with knowing of the concerns expressed in Thomas about the relevance of an assault conviction to one’s credibility as a witness, and yet implicitly charges the court with ignorance of a far inore fundamental principle. Clearly, a conviction for assault occurring five years ago is inadmissible as substantive evidence bearing on the ultimate issue of appellant’s guilt in the instant proceeding.

Cross v. State, 282 Md. 468 (1978). We presume that the trial court was aware of that rather basic tenet; certainly, a fair and unstrained reading of the record lends no support to the contrary. What the court obviously meant was that, in contrast to the 1970 conviction for disorderly conduct, which had no relevance for any purpose, the assault conviction, being more recent and more serious, would be relevant with respect to the issue of appellant’s credibility as a witness. Would the fact that he had once before been convicted of assault make him less likely to be truthful in his testimonial account of this incident?

That, it seems to us, is the question to which the court believed this evidence to be relevant, and that was the purpose for which it was admitted. The questions are then posed: does a conviction for simple assault, especially one that occurred five years earlier, necessarily indicate a propensity toward lack of credibility? Is such evidence admissible even for purposes of impeachment? Under the current state of the Maryland law, gleaned from ¹³⁵ the Opinions of the Court of Appeals and of this Court, the unequivocal answer to these questions is: maybe.

The “maybe,” as we shall see, is derived from the underlying rules laid down by our Court of Appeals concerning the impeachment of witnesses generally through a showing of their past criminal behavior. We, of course, are bound by those principles as enunciated by our State’s highest court — we may neither ignore nor alter them; and we shall decide this case, as indeed we must, in what we hope and believe is full conformance with them. We do not think it inconsistent with our bound obeisance, however, to take account of a growing reexamination of those precepts by courts, legislatures, and commentators across the nation, and to throw open the question of whether they should be reconsidered in Maryland. It has long been the law of this State, and generally throughout the country, that a defendant in a criminal case who elects to testify in his own defense “thereby subjects himself to the same rules of cross-examination that govern other witnesses” and “may properly be cross-examined as to his prior criminal record.” Davis v. State, 237 Md. 97 (1964), cert. den., 382 U. S. 945 (1965).

See also Braxton v. State, 11 Md. App. 435 (1971); 3A Wigmore Evidence § 890 (Chadbourn rev. 1970); Anno., Cross-Examination — Other Prosecutions; 161 A.L.R. 233 , 103 A.L.R. 350 , 25 A.L.R. 339 , 6 A.L.R. 1608 . This proceeds from a blending or confluence of three more basic propositions: (1) the credibility of a witness is always a relevant issue in any case — civil or criminal; (2) a person who has shown himself to be untrustworthy in the past may be untrustworthy in the present, a corollary hypothesis of which is that a person who has engaged in criminal activity involving some element of dishonesty or significant lack of moral commitment may have a lesser propensity to tell the truth than one who has not engaged in such activity; and (3) a criminal defendant electing to testify puts his credibility in issue, and that credibility may be tested, impeached, impugned as it could with any other witness. The controversy, that has recently been brewing over the ultimate product of this confluence — the ability to ¹³⁶ cross-examine a criminal defendant about his prior criminal record — has centered around the second and third underlying propositions. As regards the second, there has been a rather significant reexamination of the extent to which it actually retains validity.

What kinds of criminal activity really relate to one’s propensity to be a truthful witness? Quite apart from who the witness is or whether any collateral prejudice may result, the inquiry here concerns the basic relevance of the conviction in question to the person’s credibility as a witness. The attack on the third proposition is directed not so much at its inherent validity, but rather at its omission to consider and take account of the collateral prejudice that may arise when the defendant himself is the witness. When dealing with a mere witness — someone other than the defendant himself — it is not so difficult for the trier of fact to consider-evidence of prior convictions solely in the context of the credibility of the witness.

Indeed, such evidence, in most cases, would have no other function. When it is the defendant’s criminal history that is being inquired into, however, there is a more pervasive potential for prejudice that must be considered — that which is likely to emanate from advising the trier of fact that the very person standing in judgment before it is already a convicted criminal. And that prejudice looms especially large when the earlier crime is similar to that for which he is currently in jeopardy. j This is a problem that has not gone unrecognized. In Loper v. Beto, 405 U. S. 473 (1972), for example, the Supreme Court observed in footnote 11 at pp. 482-83: “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 ¹³⁷ 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.’ ” 1 See also the comment made in 22 Md.L.Rev. 244, 246 (1962): “The impeachment uses of prior convictions, like the substantive uses, are beset with considerations which often necessitate the exclusion of the prior convictions as a vehicle of impeachment. The problem is most acute when the witness is the criminal defendant.” The danger of a trier of fact drawing an improper inference from evidence of prior convictions has led the Court of Appeals to place extensive restrictions upon the admissibility of such evidence for any substantive purpose. See, for example, Ross v. State, 276 Md. 664 (1976); Cross v. State, supra, 282 Md. 468 .

Thus, as we indicated before, if this prior assault conviction had been offered for the purpose of showing that appellant committed this assault — that he was an aggressive or vicious person likely to commit this assault — it would flatly have been inadmissible. Yet the courts and text writers have long recognized the ¹³⁸ fiction that triers of fact — whether judge or jury — have that remarkable ability to comprehend, to take cognizance of and internalize, such prejudicial information, but to disregard it — to put it entirely aside — in its most likely and therefore most prejudicial context and yet to regard it and give it effect for a much more limited and much more abstruse purpose, as an indicator of the defendant’s propensity to tell the truth. See, for example, Michelson v. United States, 335 U. S. 469, 484-87 (1948); Spencer v. Texas, 385 U. S. 554 (1967), reh. den., 386 U. S. 969 (1967). Most States have statutes expressly permitting the impeachment of witnesses by showing prior convictions of one type or another, and these statutes rarely, if ever, distinguish between criminal defendants and other witnesses.

See 3A Wigmore, Evidence § 987 (Chadbourn rev. 1970), for a compilation of these statutes and how they have been interpreted. This may explain, at least in part, why some courts have continued to follow the traditional rule permitting such form of impeachment. See, for example, Marshall v. Martinson, 518 P. 2d 1312 (Or. 1974); also State v. Ruzicka, 570 P. 2d 1208 (Wash. 1977). Yet, notwithstanding such statutes or their own prior decisions, a number of courts (and legislatures) have recognized the serious nature and effect of the prejudice that emanates from the rule, and have either limited its scope generally or abandoned or modified the rule when dealing with the cross-examination of criminal defendants.

(See Appendix attached to this Opinion for a summary of the recent developments in this area around the country.) Maryland has such a statute (Courts article § 10-905), which permits a witness to be cross-examined as to convictions of “infamous” crimes. Rather than departing from this statutory rule, however, our courts have actually expanded its scope by permitting convictions for other than infamous crimes also to be used for impeachment purposes. The current rule in Maryland was expressed by the Court of Appeals in Cousins v. State, supra, 230 Md. 2, at 4-5 , as follows (citations omitted): “It has been held by this Court that evidence of the accused’s previous conviction of crime need not ¹³⁹ be restricted to infamous crimes or those involving moral turpitude, provided the violation of law may have some tendency to show that the person charged is not to be believed under oath.... In such instances the exercise of discretion by the trial judge will not be interfered with on appeal unless the fact of the prior conviction is clearly irrelevant....

Where the conviction was for a crime not infamous, the length of time since it occurred considered with the nature of the crime has been deemed pertinent in deciding relevancy.... We think that where the prior conviction was for an infamous crime, evidence of it is admissible without reference to the time of its commission, for such bearing and weight on credibility as the trier of fact may give it under the circumstances.” See also State v. Huston, 281 Md. 455, 460 (1977), where the Court reaffirmed as “the reason for considering a prior conviction of a witness as reflecting upon his credibility” that which had earlier been stated in Burgess v. State, 161 Md. 162 (1931): “ ‘The issue always is the truth of the witness’ testimony. In other words, is the witness devoid of moral perception, such a person as would regard lightly the obligations of an oath to tell the truth? In judging of a man’s moral fibre, his previous conduct, covering a reasonable time before the inquiry, undoubtedly has a real and substantial bearing upon the question.

It seems to us that there can be little argument that previous conduct of a witness can be shown to be such as, by the common experience of the average man, would justify a belief of his unworthiness as a witness. Certainly if it be shown that a witness had previously been convicted of perjury, it would materially discredit, if not entirely destroy, the value of his testimony. Conviction of many other crimes could properly have the same effect; while, on the other hand, there may ¹⁴⁰ be convictions of violations of hundreds of police regulations, which in no real or true sense can be taken as tending to make one so convicted unworthy of belief.’...” It would seem from these pronouncements that if the prior conviction was for an “infamous” crime, it is admissible for impeachment purposes regardless of who the witness is or how long ago the conviction was obtained. The presumed bearing of an “infamous” crime on one’s trustworthiness as a witness is so great that it remains admissible “without reference to the time of its commission, for such bearing and weight on credibility as the trier of fact may give it under the circumstances.” Cousins v. State, supra, at p. 5.

If, on the other hand, the earlier crime was not an “infamous” one, there seem to be three elements or considerations that interplay with each other and ultimately govern admissibility in Maryland. The first of these is the nature of the crime itself. Is it one which so involves the element of deceit, or lying, or dishonesty that could lead a rational person reasonably to conclude that one who would commit such a crime would be less likely to speak the truth than one who would not commit such a crime? If the answer is “yes,” then, at least prima facie, the evidence is deemed relevant.

If the answer is “no,” the evidence is considered to be “clearly irrelevant” and simply not admissible. See Linkins v. State, 202 Md. 212 (1953). The second element is that of time. When was this earlier crime committed?

Obviously, as a general rule, the farther in the past the indiscretion occurred, the weaker is its relevance to present credibility. It 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, ¹⁴¹ 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. See, in general, Anno., Impeachment of Accused— Remote Offense, 67 A.L.R.3d 824 , et seq. Also, Simond v. State, 127 Md. 29, 38-39 (1915). 2 The third element, which, in a sense, acts as the mechanism for weighing and blending the first two, is that of judicial discretion. This is what provides the flexibility necessary to amalgamate these various concepts in a fair and sensible way and to balance them against any collateral prejudice resulting from the reception of such evidence.

The Court of Appeals first recognized this in Nelson v. Seiler, 154 Md. 63 (1927), when, in considering the types of offenses that might be fairly reflective of one’s propensity to be a truthful witness, it observed at p. 69: “No rigid classification seems possible. The principle generally adopted by courts which follow otherwise the practice followed in Maryland is that the trial court must exercise discretion when offers of convictions are made, looking to the purpose for which the evidence is offered, and that its decision will not be interfered with on appeal except when the evidence is so clearly irrelevant that its admission ¹⁴² could not be said to be within the discretion lodged with the trial court.... And this we take to be the principle we are required to follow in Maryland.” (Citations omitted.) See also Burgess v. State, 161 Md. 162 (1931), where the Court again concluded that the extent to which a prior conviction of a non-infamous crime may be used to impeach the credibility of a witness was “in the sound discretion of the trial court, whose judgment in such matter should not be disturbed on appeal except in clear cases of error.” Burgess involved a prosecution for larceny of an automobile and 90 gallons of whiskey being transported in it. It appears to have been a hijacking of illicit whiskey — something out of The Untouchables.

Upon cross-examination, the driver of the hijacked car, whom the Court considered to be the “prosecuting witness,” was asked about an assault conviction occurring five vears earlier, which che trial court refused to permit. Without determining directly whether assault was one of those crimes so bearing upon one’s trustworthiness as a witness as to make it relevant for impeachment purposes or, if so, how recent the conviction must be in order to retain its relevance for that purpose, the Court simply declined to disturb the discretion exercised by the trial court. It affirmed the ruling below, noting at p. 174: “... [W]e are not prepared to say that, under these circumstances, the ruling of the court was so clearly wrong as to call for a reversal of the judgment. Especially is this true when it is shown by the record that the jury had the full benefit of inquiry into the witness’ past life sufficient to indicate to them the probable character of the witness.” Implicit in this somewhat equivocal explanation, it seems to us, is that if the trial court had allowed the question, rather than having excluded it, its decision may also have been affwmed upon the same reasoning.

Indeed, on at least three occasions, the Court of Appeals, in various contexts, has ¹⁴³ permitted a witness to be cross-examined about prior assault convictions. In Balto. & Ohio R. Co. v. Strube, 111 Md. 119 (1909), a special policeman employed by the railroad had arrested a young man for trespassing on the railroad’s property. The lad arrested sued the railroad for assault — excessive violence committed upon him in connection with the arrest. The Court permitted the arresting officer, who was, of course, the real alleged tortfeasor, to be asked (1) “How often have you been convicted of assault in Baltimore City or Baltimore County,” and (2) “You were arrested and convicted at the Southwestern Police Station for this assault upon Strube, were you not?” 111 Md. at 125 .

The Court of Appeals, in reviewing the allowance of these questions, said, at pp. 125-26: “The ground upon which this evidence is sought to be justified is that it ‘goes to the credibility of the witness.’ More properly speaking it may be said to affect the weight of the witness’ testimony in this case. Indeed the first question seems to have been framed with a view