Huston v. State

Morton, J., delivered the opinion of the Court. Melodi Marie Huston, appellant, was convicted of second degree murder by a jury sitting in the Criminal Court of Baltimore (Levin, J., presiding) and sentenced to twenty years’ imprisonment. In this appeal she first contends that the “trial court improperly cut off appellant’s right to impeach the credibility of State’s witness Michael Burtpn/vith reference to a prior conviction of Burton’s for the crime of unauthorized use.” The major thrust of the State’s case was the evidence elicited from Michael Burton who testified that shortly after 3 a.m. on July 25, 1975, he was standing in the area of “The Block” in Baltimore City when he “observed four people across the street, surrounding * * * a human being.” He then heard “a great big blast, which was a shot * * * saw people running in different directions” and “observed [the victim] laying flat on the ground.” Immediately thereafter appellant, whom he knew by the name of Wanda, came “running towards me.” According to Burton, appellant asked him- if she “could come to stay at my place that night, because she had just shot and killed a man.” After Burton refused her request, she departed. In response to a question by defense counsel on cross-examination, Burton denied that he had ever received any money for lodging from the State or the police prior to or during the trial.

Later the prosecuting attorney was called by the defense as a witness and testified that he had given Burton, just prior to and during the trial, a total of $108 for transportation, meals and hotel accommodations. Also, in the course of cross-examination, Burton was asked if he had ever been convicted of a crime and he replied: “Unauthorized use of a motor vehicle” sometime between “September, '73 to April ’74.” The trial judge immediately announced: “Well, I’m going to instruct the jury to ignore that testimony in its entirety with respect to being convicted of a crime. Next question.” ⁴⁵⁷ After defense counsel argued unsuccessfully that Burton’s acknowledgement of his conviction “should go before the jury as to credibility,” the trial judge stated: “No, because I don’t think it has anything to do with credibility. The fact that two years ago, or three years ago he was convicted of an authorized use crime, I think has no bearing whatever on credibility.

And I think it would be unfair and prejudicial to permit it to stay in to attack his credibility. There is a very recent case that upheld a trial judge in exactly that ruling. That’s my ruling, sir.” Later in the trial the judge advised counsel that the case he had in mind was Thomas v. State, 29 Md. App. 45, 53-54 (1975). In this context we agree with appellant that the trial judge’s reliance upon Thomas was misplaced and that appellant was entitled to have the jury consider Burton’s conviction of the crime of unauthorized use of an automobile in making their appraisal or judgment of his credibility.

In Thomas the trial court would not permit the defendant to cross-examine a State’s witness about previous convictions for assault. In affirming the action of the trial judge, we adopted the statement he gave in support of his ruling, in the course of which he said: “ ‘Well, those are certainly not infamous crimes, and they are certainly not crimes involving moral turpitude. So the question is whether they are crimes which have some tendency to show that the witness is not to be believed under oath. I don’t think they are.’ ” Whether to admit evidence of an accused’s or a witness’s prior conviction of a crime for the purpose of impeaching his credibility is ordinarily in the sound discretion of the trial judge and the exercise of this discretion will not be disturbed unless it is shown that the admission or rejection of such evidence unfairly prejudiced the accused’s defense.

Cousins ⁴⁵⁸ v. State, 230 Md. 2 (1962); Johnson v. State, 9 Md. App. 166 (1970); Robinson v. State, 4 Md. App. 515 (1968). While § 10-905 of the Courts and Judicial Proceedings Article provides that “[ejvidence is admissible to prove the interest of a witness in any proceeding, or the fact of his conviction of an infamous crime,” we have held that “[sjuch evidence need not be restricted to infamous crimes or those involving moral turpitude, provided the violation of law may have some tendency to show that the witness is not to be believed under oath.” Robinson v. State, supra at 532. See also Johnson v. State, supra at 169.