Fulp v. State

SALMON, Judge. This case requires us to decide whether the trial judge erred in overruling a defense objection to the admission for impeachment purposes of appellant’s prior conviction for assault with intent to murder in a case where the appellant was charged with murder. We hold that the trial court did err and reverse. BACKGROUND FACTS A. The State’s Case The victim, Shawn Greene (Greene), was fatally shot by appellant, Kurt Fulp, on November 23, 1997.

Fulp was charged in the Circuit Court for Baltimore City with the first degree murder of Greene and the unlawful use of a handgun in the commission of a crime of violence. Fulp was tried before a jury and was convicted of second degree murder and the handgun offense. At trial, Thomas Wilson testified that while walking down the street on the day of the shooting, he saw Fulp and the victim “tussling.” He heard two gunshots and saw Fulp standing over the victim. Fulp then fled.

The shooting occurred in the 1600 block of Presbury Street in Baltimore City. ¹⁶⁰ Wilson also testified that on the day before the shooting, Fulp and Greene had an argument concerning who had the right to sell drugs on the corner of Presbury and Mount Streets. During that argument, Greene had pulled out a gun and pointed it at Fulp. A second eyewitness to the shooting was Patrick Greene, the sixteen-year-old brother of the victim. He testified that he was standing on the corner of Mount and Presbury Streets talking to a friend when his brother walked by.

According to Patrick Greene, Fulp caught up with Shawn Greene, grabbed him, turned him around, and then shot him. After the first shot, the victim tried to run across the street whereupon appellant shot him again. According to Patrick Greene, no words were exchanged between Fulp and the victim immediately prior to or after the shooting. B. Appellant’s Testimony Fulp admitted that he shot the victim but claimed he did so in self-defense.

According to Fulp, on the day before the shooting, he was standing on the corner of Presbury and Mount Streets when the victim and another man approached him and told him to get off the corner. Fulp retorted, “Man, you got to be crazy.” Shawn Greene then pulled out a gun, pressed it against Fulp’s head, and told Fulp that he was going to kill him. Greene next reiterated his warning that Fulp had better “get off the corner.” When Fulp said “Wait a minute,” Greene jammed his gun into Fulp’s mouth and said, “I should blow your ... brains out.” This scared Fulp greatly, and he left the corner and went home. The following day (November 23, 1997) Fulp saw Shawn Greene on the street.

Fulp was unarmed. Greene approached from the rear and said that he (Fulp) “shouldn’t be in the area.” Shawn Greene then said that he was going to kill Fulp, whereupon Fulp grabbed Greene intending to hit him in the mouth; however, before Fulp could strike a blow, Greene pulled out a gun. The two struggled over possession of the weapon, and it “just went off.” Greene fell backward, leaving Fulp in possession of the gun, whereupon the weapon ¹⁶¹ “went off again.” Fulp looked at the weapon and then “fled.” He concluded his testimony by saying that during his struggle with Greene he believed that Greene was going to kill him, but nevertheless he had no intention of killing Greene. Additional facts will be added in order to resolve the question presented.

ANALYSIS Did the trial court err in overruling appellant’s objection to the impeachment of appellant with a prior conviction of assault with intent to murder? Prior to appellant taking the stand, defense counsel handed the trial judge and the prosecutor a written motion in limine. Counsel orally advised the court that his client previously had been convicted of assault with intent to murder and distribution of cocaine. The conviction of assault with intent to murder was eight years old.

During the argument concerning the motion, appellant’s counsel asserted that the court should apply the balancing test set forth in Jackson v. State, B40 Md. 705, 668 A.2d 8 (1995), and exclude the conviction. Defense counsel said: And one of the issues in the case, Your Honor, for you to decide is, is ... centrality or the importance of the defendant’s testimony. I’d like to proffer that the defendant is going to take the stand to testify that he does not deny being the one involved in the altercation that led to the decedent’s death, but that the gun that was used to kill the decedent came from the decedent himself; in the struggle, he took the gun from the decedent. And it was probably the very same gun that was put in his mouth the day before.

Therefore, his credibility on this issue is of key importance to both sides. And if Your Honor allows the State to impeach this defendant by, of all crimes, assault with intent to murder when he’s on trial for murder, Your Honor, I think it would be impossible for the jury to distinguish that the admissibility of such evidence is only to his credibility. ¹⁶² What it really does is paint him as a violent, negative guy. And that’s exactly the evil that Your Honor must balance out of the equation. At the conclusion of the hearing, the trial judge denied the motion in limine and advised the prosecutor that he could impeach appellant by use of the assault with intent to murder conviction.

Defense counsel then asked for a continuing objection in regard to the admissibility of the conviction. The trial judge granted that request. See Md. Rule 2 — 517(b). 1 On cross-examination, the prosecutor and the appellant had the following exchange: Q. Since your 18th birthday, Mr. Fulp, when you have been represented by counsel or waived; that is, given up the right to be represented by counsel, have you been convicted of any crime of moral turpitude? Would you like me to explain what those are?

A. No. Yes. Q. You’d like me to explain? A. I know what you’re saying. Yes.

Q. Yes, you have. Would you tell the jury what that might be, please? A. Drugs. Q. That would be the distribution of narcotics, would it not?

A. Yes. Q. And when were you convicted of that? A. ’86. Q. Anything else?

A. Attempt. Q. Attempt? ¹⁶³ A. Attempted murder.[ 2 ] Q. And when were you convicted of that, sir? A. In 1990. Maryland Rule 5-609 governs the admissibility of prior convictions that are intended to be used for impeachment purposes.

It provides in material part: (a) Generally. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of ¹⁶⁴ a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness’s credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party. (b) Time limit. Evidence of a conviction is not admissible under this Rule if a period of more than 15 years has elapsed since the date of the conviction.

Appellant contends that the crime of assault with intent to murder” was neither an “infamous crime” nor a “crime relevant to” credibility, and therefore, that conviction was inadmissible under Rule 5 — 609(a)(1). The term “infamous crimes” means treason, common-law felonies, 3 and other offenses classified generally as crimen falsi. State v. Giddens, 335 Md. 205, 213 , 642 A.2d 870 (1994); Prout v. State, 311 Md. 348, 360 , 535 A.2d 445 (1988). Crimen falsi offenses “include crimes in the nature of perjury, false statements, criminal fraud, embezzlement, false pretense, or any other offense involving some element of deceitfulness, untruthfulness, or falsification bearing on the witness’s propensity to testify truthfully.” Giddens, 335 Md. at 213, n. 5 , 642 A.2d 870 ; see also Beales v. State, 329 Md. 263, 269-70 , 619 A.2d 105 (1993).

To determine the nature of the crime that led to the prior conviction, the trial court should focus on the elements needed to prove the offenses for which the witness was convicted and not upon the particular facts surrounding that conviction. Giddens, 335 Md. at 222 , 642 A.2d 870 . When an assault with intent to murder is charged, the State must prove an assault upon the victim coupled with an intent to murder, which can be shown by proof that the crime would have been murder if the victim had died. See ¹⁶⁵ Hardy v. State, 301 Md. 124, 128 , 482 A.2d 474 (1984) (“Assault with intent to murder is a statutory aggravated assault set forth in § 12 of article 27.”).

The fact that murder was a common law felony, of course, does not mean that assault to commit that crime can also be so characterized. See Watson v. State, 311 Md. 370, 375 , 535 A.2d 455 (1988), where the Court said that even though rape is a common law felony, attempted rape is not. 4 See also State v. Bixler, 62 Md. 354, 360 (1884) (“If ... the prisoner had been convicted of any of the assaults with intent, mentioned and punished by the Code, and had been sentenced to the penitentiary and served his time out there, without being pardoned by the governor, he would not be chargeable with having committed an ‘infamous crime.’ ”). Because appellant had not been convicted of either treason or an “infamous crime,” the question arises as to whether assault with intent to murder is a crime “relevant to the witness’s credibility” as that phrase is used in Rule 5-609(a). In Giddens , Chief Judge Robert Murphy, for the Court, said: We first noted that: “In a purely philosophical sense it can be said, understandably, that all violations of the law, by their very ¹⁶⁶ nature, involve some element of dishonesty.

Thus, one could argue that jay walking, spitting on a sidewalk, running a red light or a stop sign, and exceeding the speed limit, however slightly, are ‘dishonest’ because they involve acts for which one can be punished by the State or its subdivisions.” Gregory v. State, 616 A.2d 1198, 1204 (Del.1992). Nevertheless, we have determined that certain crimes have little or no bearing on credibility and consequently are not admissible for impeachment purposes. See, e.g., Morales[ v. State ], 325 Md. [330,] 339, 600 A.2d 851 [ (1992) ] (possession of POP, assault and battery, disorderly conduct, and motor vehicle offenses); Lowery v. State, 292 Md. 2, 2 , 437 A.2d 193 (1981) (possession of barbiturates); Ricketts v. State, 291 Md. 701, 713-14 ,