Johnson v. State

Orth, J., delivered the opinion of the Court. The principle of Burgett v. State of Texas, 389 U. S. 109 , decided 13 November 1967 is that to permit a conviction obtained without the assistance of counsel or a valid waiver thereof to be used against a person either ¹⁶⁹ to support guilt or enhance punishment for another offense is a violation of the right to counsel guaranteed by the Sixth Amendment to the Federal Constitution and applicable to the states by virtue of the Fourteenth. The question is whether this principle applies to exclude evidence of prior convictions offered by the State to impeach the credibility of a defendant testifying in his own behalf. It has been long and firmly established in this jurisdiction that the credibility of a witness may be impeached by evidence of his conviction of a crime.

See Smith v. State, 64 Md. 25 (1885). We stated the rule in Robinson v. State, 4 Md. App. 515 , 532-533: “The general rule is that evidence of a conviction of a crime is permitted to impeach the credibility of a witness on cross-examination in the trial court’s discretion. Mason v. State, 242 Md. 707, 710 . Such 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.

Tn 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’. Cousins v. State, 230 Md. 2, 4 ; Md. Code (1965 Repl. Vol.) Art. 35, § 10. See McLaughlin v. State, 3 Md. App. 515 .

The general rule applies where the defendant is a witness in his own behalf. * [¶] e thereby puts his character in issue, and may be asked on cross-examination if he has been convicted of crime’. Taylor v. State, 226 Md. 561, 567 , citing Burgess v. State, 161 Md. 162, 169 .” See Smith v. State, 6 Md. App. 581, 588-589 ; Stewart v. State, 4 Md. App. 565, 571 ; Gunther v. State, 4 Md. App. 181, 184 ; Huber v. State, 2 Md. App. 245, 256-257. In Nance v. State, 7 Md. App. 433 , 442 we found that the ¹⁷⁰ rule continues to serve a legitimate purpose and does not conflict with constitutional protections afforded a criminal defendant. Prior to Burgett it was the customary practice for the State, usually fortified with a police or FBI record of his previous convictions, to ask a defendant who took the stand at the trial of the charge against him if he had ever been convicted of a crime.

If he admitted that he had the State would then, from the record in its possession, question him with respect to the date, the crime and the punishment as to specific convictions. If he denied a conviction the State could, pursuant to Md. Code, Art. 35, § 10, prove the conviction by introducing the certificate, under the seal of the clerk of the court wherein the criminal proceedings were had, stating the fact of the conviction and for what crime, it not being necessary to produce the whole record of the proceedings containing such conviction. 1 Thus it was the fact of a conviction of him and the nature of the crime of which he was convicted which governed the admissibility of the evidence of the prior conviction. To preserve the question of the admissibility of evidence of a prior conviction on appeal proper challenge must be made below. Md. Rule 522 d 2, applicable to criminal causes by Rule 725 f, provides: “Every objection to the admissibility of evidence shall be made at the time when such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent, otherwise the objection shall be treated as waived.” This procedural rule does not infringe a guarantee in the Federal Constitution; state procedural requirements to raise or preserve a question may still be respected in the case of an alleged violation of the Fourteenth Amendment.

See Mapp v. Ohio, 367 U. S. 643 ; ¹⁷¹ Porter v. State, 230 Md. 535 ; Baynard v. State, 2 Md. App. 701. The precise holding in Burgett was to reverse a conviction on a charge that Burgett “had cut one Bradley with a knife and had stabbed at Bradley’s throat with intent to kill.” The conviction was reversed because the State in attempting to establish that the defendant had incurred four previous felony convictions, also charged in the indictment under Texas recidivist statutes, 2 and which if established would enhance his punishment, had produced before the jury evidence as to a prior conviction which was presumptively void. It was presumptively void because the certified records of the conviction raised a presumption that Burgett was denied his right to counsel in the Tennessee proceeding, presuming waiver from a silent record being impermissible. 389 U. S. at 114-115 . The conviction was reversed even though the trial court had instructed the jury not to consider the prior offenses for any purpose whatsoever in arriving at the verdict and even though Burgett had not suffered the enhanced pun ¹⁷² Ishment provided by the recidivist statutes.

The Court said, at 115: “The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright ( 372 U. S. 335 ) is inherently prejudicial and we are unable to say, that the instructions to disregard it made the constitutional error ‘harmless beyond a reasonable doubt’ within the meaning of Chapman v. State of California, 386 U. S. 18 , 87 S. Ct. 824 , 17 L.Ed.2d 705 .”, The meaning and application of Burgett has troubled appellate courts, both federal and state, throughout the country and more often than not has divided the members of those courts. There has been little agreement with respect to the application and effect of its rationale, and the procedure to be followed when found applicable, even in those cases involving enhanced punishment under recidivist or habitual offender or subsequent offender statutes. 3 There have been some cases which presented the applicability of Burgett as to the admission of evidence of prior convictions for the purpose of impeaching the credibility of the defendant-witness. The question was raised in a habeas corpus proceeding in Subilosky v. Scafati, 294 F. Supp. 18 (Mass. 1968) but was not resolved because the court found it was not properly raised as it had been waived and because other, statements made by the defendant on direct examination to the effect that he had been “in a great deal of difficulty to the police” rendered evidence of the prior convictions non-prejudicial. In Gilday v. Commonwealth, 247 N.E.2d 396 (Mass. 1969) the court, noting that it was not in agreement as to the effect ¹⁷³ of Burgett , said that even if it applies to the introduction of prior convictions for impeachment, the introduction of constitutionally void convictions was harmless error where other more serious convictions were also introduced and no objection was raised as to them on appeal.

In Shorter v. United States, 412 F. 2d 428 (9th Cir. 1969) a question presented whether the rationale of Burgett barred the use of felony convictions offered for impeachment purposes absent a clear showing that the convictions were not obtained in violation of the rule in Gideon v. Wainwright . At 429. Emphasizing that Burgett involved the use of prior convictions to enhance punishment under a recidivist statute, the majority of the court found it not necessary to determine the question because the prior convictions in the case before it were not offered by the prosecution but by the testimony of the appellant himself. The third judge sitting in the ease dissented, making clear that he felt Burgett was applicable and that the case should be remanded in order that the Government may have an opportunity to satisfy the lower court, if it could, that the prior convictions were not obtained in violation of the Gideon rule.

In Tucker v. United States, 299 F. Supp. 1376 (U. S. District Court, N. D. California 1969), a proceeding on motion to vacate sentence, the defendant urged that Burgett barred the use of felony convictions for impeachment when those convictions were obtained in violation of the standards of Gideon . The court concluded in a memorandum decision that “the use of constitutionally invalid prior convictions on cross-examination for impeachment purposes was error,” but that the error was harmless because the defendant’s credibility was “successfully impeached, and in fact, demolished,” by proof of prior inconsistent statements by him and by other evidence contradicting his testimony. The Sixth Amendment to the Constitution of the United States provides: “In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.” Johnson v. Zerbst, 304 U. S. ¹⁷⁴ 458 construed this to mean that in federal courts counsel must be provided for defendants. unable to employ counsel unless the right is freely and intelligently waived. Gideon v. Wainwright, 372 U. S. 335 , expressly overruling Betts v. Brady, 316 U. S. 455 , established the rule that the right to counsel guaranteed by' the Sixth Amendment was applicable to the States by virtue of the Fourteenth Amendment, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one.

That ruling was not limited to prospective applications. See Doughty v. Maxwell, 376 U. S. 202 ; Pickelsimer v. Wainwright, 375 U. S. 2 . Although the precise ruling in Gideon applied to state prosecutions for felonies, the Court remarked, at 344: “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” The Court of Appeals and this Court have construed Gideon as imposing on the State the absolute constitutional right of an accused to representation by a lawyer, either privately secured or furnished by the State, unless he affirmatively waives the right, in a serious State criminal prosecution. Manning v. State, 237 Md. 349, 353 ; Wayne v. State, 4 Md. App. 424, 428 .

Md. Rule 719 b establishes in what prosecutions in this jurisdiction an indigent accused shall be furnished counsel. The Court made clear in Burgett that its holding was predicated upon the ruling in Gideon . It said, 389 U. S. at 115 : “To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or to enhance punishment for another offense * * * is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amend- ; ment right.” (citation omitted). ¹⁷⁵ Thus evidence of a prior conviction when such conviction was unconstitutionally obtained by the denial of counsel must be excluded.

It noted that the States are free to provide such procedures as they choose in criminal causes, including rules of evidence, provided that none of them infringes a guarantee in the Federal Constitution. But the limitations which the Constitution places on state criminal procedures sometimes touch rules of evidence, and gave as examples the exclusion of coerced confessions, 4 the exclusion of evidence obtained by an unreasonable search and seizure, 5 and the exclusion of a transcript of a preliminary hearing because the defendant had no lawyer at that hearing, and did not therefore, have the opportunity to cross-examine the principal witness against him who since that time had left the State. 6 THE APPLICABILITY OF THE BURGETT PRINCIPLE We hold that the Burgett principle serves to exclude evidence of a prior conviction offered for the purpose of impeaching the credibility of an accused testifying on his own behalf when it is established that such conviction was obtained absent representation by counsel or a valid waiver thereof. We point to the language in the opinion of the Court in Burgett . “To permit a conviction obtained in violation of Gideon v. Wcdnwright to be used against a person either to support guilt or to enhance punishment for another offense * * * is to erode the principle of that case. * * * The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial * * (Emphasis supplied) 389 U. S. at 115 . We do not think that this language can be interpreted as limiting its application to recidivist, or habitual offender or subsequent offender statutes authorizing enhanced punishment upon conviction of a current substantive offense. ¹⁷⁶ And we cannot say that evidence of a prior conviction to impeach the credibility of an accused testifying in his own behalf does not support guilt of the offense for whicht he is on trial; the question of his credibility is. material to his guilt or innocence.

In Brown v. State, 4 Md. App. 623, we did not limit Burgett to its precise holding. The appeal was from a revocation of probation. We remanded the case for further proceedings sufficient for a determination by the-hearing court whether or not the defendant was. afforded' counsel at the trial of the substantive offense resulting-in conviction and the grant of probation and if she had 1 , not been afforded counsel whether or not she had intelligently and knowingly waived her right thereto. In so» doing we said, at p. 628: “We think the principle of Burgett is such that if appellant’s shoplifting conviction were* unconstitutionally obtained, and the sole reason for the; revocation of her probation was the fact of that conviction, then the conviction cannot of itself provide a proper-basis upon which to revoke the previous grant of probation.” And we find the clear implication, if not the precise holding, in Thomas v. Warden, 7 Md. App. 214 , Frazier v. State, 7 Md. App. 165 , and Suggs v. State, supra,. that the rationale of Burgett applies to the admission of evidence of prior convictions to impeach the credibility-of a defendant-witness.

In so holding we reject the contention of the State*, that Burgett is not here applicable because its facts are distinguishable. Nor do we see any validity in the State’s; argument that compliance with the provisions of Code, Art. 35, § 10 is all that is required to render the fact of a prior conviction admissible. The statute only provides, a procedural method of proving a conviction. It does not. and cannot make a conviction which is constitutionally void admissible.

The Supreme Court has made abundantly-clear that a procedural rule may not infringe a federal constitutional guarantee impressed upon the States. ¹⁷⁷ THE PROCEDURE Our holding that the principle of Burgett is applicable to impeachment of a defendant-witness by proof of prior-convictions requires consideration of the procedure to be followed with respect to it. Burgett does not disturb the procedural requirements of Rule 522 d 2. If timely objection is not made below the question of the admissibility of a prior conviction is not preserved for appeal. Rule 1085.

We so held in Frazier v. State, supra, at 166. And we observe that if the prior conviction was introduced by the defendant himself rather than by the State, he thereby waives objection. If he so offers the conviction, probably as a matter of trial strategy to soften the anticipated blow in the eyes of the trier of fact, he cannot be heard to complain that his own act of offering such evidence violated his constitutional rights. Rule 522 d 1 provides that unless requested by the court, it is not necessary to state the grounds of objections to evidence.

See Robert v. State, 220 Md. 159 ; compare Wilt v. Wilt, 242 Md. 129 ; Mulcahy v. State, 221 Md. 413 . But we believe that objection on the nontraditional ground, as here made, was not within the contemplation of the Rule when adopted and that the fair administration of justice requires the defendant specifically to make known to the court the ground of his objection. We hold that it is incumbent upon the defendant, when his objection to evidence of a prior conviction is on the ground that the conviction was constitutionally void to state his reasons to the court to enable it properly to determine the issue. This may be done by him out of the presence of the jury.

The court shall then conduct a hearing out of the presence of the jury. At the hearing the State shall first have the burden of producing evidence of a prior conviction, unless admitted by the defendant, sufficient to justify a finding by the court that, the defendant has suffered such previous conviction. Code, Art. 35, § 10 provides one method to accomplish ¹⁷⁸ this. When this showing has been made the defendant must produce evidence tending to establish that his constitutional right to counsel was infringed in the prior proceeding at issue.

Having already elected to testify, he may assert under oath that he was without counsel in the prior proceeding and did not waive the right to counsel. He is, of course, subject to cross-examination by the State on the point. The burden is then upon the State to prove by clear and convincing evidence that the defendant’s constitutional right to counsel was not infringed at the prior proceeding. We observe that if proof of the prior conviction is by a certificate, under the seal of the clerk of the court wherein such proceedings were had, stating the fact of the conviction and for what crime, or by any other admissible record of the proceedings establishing the conviction, and such evidence does not affirmatively show that the defendant was represented by counsel, the conviction is presumptively void.

Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 869 U. S. 506 . The State then must rebut the presumption, if it can. See Brown v. State, supra.

Cf. Thomas v. State, supra; Frazier v. State, supra; Suggs v. State, supra. The court shall make a finding on the basis of the evidence thus produced and shall exclude from the trial on the merits any prior conviction found to be constitutionally invalid. Any prior conviction found to be constitutionally valid shall be admitted in evidence as going to credibility if relevant to the issue.

As the admission of evidence vel non is a matter exclusively for the court, in a jury trial, no evidence with respect to the constitutionality of the conviction shall be presented to the jury. Of course, any objection capable of determination without the trial of the general issue may be raised before trial by motion. Rule 725 b. Thus the defendant may challenge, before trial, the admissibility of any prior convictions, which the State intended to offer if he took the stand, by a motion to exclude them stating the reasons therefor, and have a determination prior to trial, unless ¹⁷⁹ the court orders that it be deferred for determination at the trial of the general issue.

Such determination by hearing prior to trial would afford the defendant the opportunity of knowing what prior convictions would be admitted against him and could be of benefit to him in his decision whether or not to testify in the trial on the merits. It would also tend to make for a more orderly procedure at the trial which could proceed without interruption for a determination of such issue. 7 The procedure at a hearing before trial would be the same as that during trial. THE EFFECT OF ADMITTING INTO EVIDENCE A PRIOR CONVICTION CONSTITUTIONALLY INVALID It is error of constitutional dimension for the court to admit into evidence a prior conviction obtained by a proceeding in which the defendant’s constitutional right to counsel was infringed. But this is not to say that the error can never be harmless.

Although the Court said in Burgett : “The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial”, it continued, “and we are unable to say that the instructions to disregard it made the constitutional error ‘harmless beyond a reasonable doubt’ within the meaning of Chapman v. State of California, 386 U. S. 18 , 87 S. Ct. 824 , 17 L.Ed.2d 705 .” 389 U. S. at 115 . We do not construe this language to mean that the error is per se prejudicial so as to require reversal; it apparently applied the Chapman test in Burgett and were unable to say on the facts before it that the error was harmless within the meaning of Chapman . It did not foreclose the possibility, as we see it, that in a proper factual situation such error could be ¹⁸⁰ found to be harmless. 8 We think that whether or not the error can be found to be harmless depends on the particular facts of each case. For example, that there were a number of prior convictions properly admitted, or other evidence clearly impeaching the credibility of the defendant would be of probative value in determining whether the admission of invalid convictions was harmless.

And perhaps the gravamen of the offense, the conviction of which was erroneously admitted, could be weighed against the gravamina of the offenses, the convictions of which were properly admitted, in determining whether the error was harmless. We note that in Suggs v. State, supra, at 236, we recognized that impeaching evidence can have the utmost impact upon the jury in its resolution of close questions of credibility. THE INSTANT CASE Donald James Johnson (appellant) was found guilty by a jury in the Criminal Court of