Love v. Curry

WENNER, Judge. This matter comes before us on an appeal by Maria Lisa Love from a judgment entered by the Circuit Court for Baltimore County, after a jury returned a verdict in favor of appellee, Delores Christina Curry (Koscielski). 1 On appeal, appellant presents us with the following questions: 1. Whether the trial court erred when it refused to admit evidence of appellee’s conviction for distributing/importing controlled dangerous substances? 2. Whether the trial court committed reversible error by allowing appellee to impeach appellant on a collateral matter by introducing testimony that appellant was in possession of an open container of beer when there was no evidence that appellant was under the influence of alcohol or intoxicated? 3.

Whether appellee is contributorily negligent as a matter of law because she failed to judge the speed and distance of the approaching vehicle and stepped into the street to her peril? 4. Whether the trial court erred in instructing the jury? Finding that the trial court erred in excluding evidence of appellee’s prior conviction for importing a controlled dangerous substance, we shall reverse the judgment of the circuit court and remand the case to that court for a new trial. ⁶⁸⁹ DISCUSSION This case began at dusk on 1 September 1988, when a car driven by appellant struck appellee as appellee was endeavoring to cross Old Eastern Avenue, in Baltimore County, Maryland. As a result of the accident, appellee and Robert Curry filed a complaint in the Circuit Court for Baltimore County seeking damages for injuries received by appellee as a result of appellant’s negligence and for loss of consortium.

Subsequently, the claim for loss of consortium was dismissed. 2 Ultimately, the case came to trial before a jury, which jury awarded appellee more than $224,000 in damages. I. Appellant first contends that the trial court erred by precluding her from impeaching appellee with evidence of appellee’s prior conviction for importing more than 28 grams of Phencyclidine (PCP), in violation of Maryland Code (1957, 1987 Repl.Vol.) Art. 27, § 286A. A violation of § 286A is a felony. Anyone convicted of violating § 286A may be fined not more than $50,000 and/or imprisoned for not more than 25 years.

Appellee had violated § 286A approximately eight months after the accident occurred. As the trial began, appellee moved in limine to preclude appellant from using her prior conviction for impeachment purposes, proffering that she intended to admit having smoked part of a PCP laced cigarette with friends, including one Ms. Philpot, several hours prior to the accident. We note here that Ms. Philpot later testified, contradicting appellee and stated that appellee was getting high throughout the afternoon. Nevertheless, the trial court reserved ruling on the motion until the trial had begun and both parties were ordered to refrain from mentioning appellee’s prior conviction during their opening statements. ⁶⁹⁰ During the trial, appellant offered into evidence as Exhibit 8 a record of appellee’s conviction for importing a controlled dangerous substance.

The following colloquy ensued: LOVE’S COUNSEL: ... I am nevertheless offering this and ask the Court to permit me to introduce it into evidence concerning that conviction, because I believe our Court of Appeals is [sic] not spoken on that and I believe that the distribution of substances in view of the numerous problems that we are having in our society, specifically in our city and surrounding counties concerning the drug and drug abuse problem, while possession may not be a crime of moral turpitude, I believe that our Court of Appeals would consider that a distribution of this scourge on our society is a crime of moral turpitude. KOSCIELSKI’S COUNSEL: I think this is what we already argued. The, the one case, Morales v. State, is right on point, too, says, despite Mr. Ferguson’s feelings to the contrary, it’s not what is referred to as crime of moral turpitude under the statute to permit the impeachment of a witness.

So, therefore, we think it serves no other purpose than to, other than, than to prejudice the jury for no relevant reason to this case. LOVE’S COUNSEL: Your Honor, 'I know we discussed this at the bench last week and your Honor ruled. I simply want to make sure I preserve this point for the record. COURT: It’s preserved for the record.

And I indicated that I think that I would deal with it when it arose. It has now arisen, and I will deal with it. LOVE’S COUNSEL: Right. COURT: I will not permit Defendant’s Exhibit No. 8 to be admitted into evidence, believing under the case of Morales v. State and Giddings [sic] v. State that a distribution of PCP is not a crime which is appropriately used for impeachment purposes.

Following this colloquy, Exhibit 8 was marked for identification only. ⁶⁹¹ A. Whether a prior conviction for importing CDS can be used for impeachment purposes has not previously been addressed by Maryland’s appellate courts, although several similar drug offenses have been considered. See Morales v. State, 325 Md. 330 , 600 A.2d 851 (1992) (possession of CDS not admissible); State v. Giddens, 335 Md. 205 , 642 A.2d 870 (1994) (distribution of CDS is admissible); Carter v. State, 80 Md.App. 686 , 566 A.2d 131 (1989) (manufacture of CDS is admissible). At the time of this trial, the admissibility of prior convictions for impeachment purposes was governed by Maryland Rule 1-502, 3 which provided in pertinent part: (a) Generally.—For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination, but only if the crime was an infamous crime or other crime relevant to the witness’s credibility and 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 under this Rule is not admissible if a period of more than 15 years has elapsed since the date of the conviction.

Hi * Hi ^ * In the case at hand, the trial court likened importing CDS to possessing or distributing CDS. Relying on Morales, supra, and on our Giddens v. State, 97 Md.App. 582 , 631 A.2d 499 (1993), the trial court concluded that appellee’s prior conviction was neither infamous nor relevant to appellee’s credibility. Seven months after the trial had been concluded, however, the Court of Appeals filed its State v. Giddens, 335 Md. 205 , 642 A.2d 870 (1994), reversing our Giddens. ⁶⁹² Whether a prior offense is relevant to credibility is a matter of law. See State v. Giddens, supra at 213, 642 A.2d 870 (“If a crime does not fall within one of the two categories, then it is inadmissible and the analysis ends.

This threshold question of whether or not a crime bears upon credibility is a matter of law.”). Although the trial court ruled that appellee’s prior conviction for violating § 286A was not an offense to be used for impeachment purposes, equating it with a conviction for distributing CDS, in light of the Court of Appeals’s Giddens, the trial court erred by excluding appellee’s prior conviction. As the trial court determined that appellee’s prior conviction could not be used for impeachment purposes, it did not consider whether its probative value outweighed its prejudicial effect. In support of its ruling, the trial court first cited Morales, supra, in which the Court of Appeals concluded that simple possession of PCP was neither infamous nor relevant, and did “not bear on the witness’s credibility.” Morales, supra, 325 Md. at 339 , 600 A.2d 851 ; but see Smith v. State, 6 Md.App. 581, 589 , 252 A.2d 277 (1969) (‘We think a conviction for possession of narcotics is certainly as relevant to bear on credibility as a conviction for assault, and we do not think that the fact that the conviction was seven years prior to the trial was sufficient to make it too remote for a crime which is not infamous under the law.”).

Although the Court in Morales concluded that possession was not an infamous crime, it did not decide “whether a prior conviction for possession with intent to distribute a controlled dangerous substance may ever be used to impeach.” Id. at 339 , 600 A.2d 851 . 4 Our Giddens was the first occasion for a Maryland appellate court to be directly confronted with the use of a conviction for distribution of CDS for impeachment purposes. In our Gid ⁶⁹³ dens, we concluded that distribution of CDS was too ill-defined an offense to be used for impeachment. We said: The behavior is criminal, to be sure, but it is not necessarily dishonest. It does not necessarily involve surreptitious conduct or moral depravity sufficient to suggest a lack of credibility.

It may, of course, but it need not. Giddens v. State, 97 Md.App. at 591 , 631 A.2d 499 . In reaching our conclusion, we quoted from Ricketts v. State, 291 Md. 701 , 436 A.2d 906 (1981), in which the Court of Appeals said: [i]f the crime is so ill-defined that it causes the factfinder to speculate as to what conduct is impacting on the defendant’s credibility, it should be excluded. Stated differently, since the issue is always the truth of the witness, where there is no way to determine whether a crime affects the defendant’s testimony simply by the name of the crime that crime should be inadmissible for purposes of impeachment.

See Giddens, 97 Md.App. at 591 , 631 A.2d 499 . In sum, we concluded in our Giddens that, as distribution of CDS does not necessarily involve dishonest behavior, if admitted, “the jury is at liberty to assume the worst”. Id. at 591-592, 631 A.2d 499 . As we have said, the Court of Appeals reversed our Giddens, holding that “[t]he crime of cocaine distribution is not so “ill-defined” that a jury would have difficulty determining the precise nature of the offense.” State v. Giddens, supra, 335 Md. at 218 , 642 A.2d 870 .

Rather, the Court of Appeals compared drug distribution with drug manufacture, citing with approval our Carter v. State, 80 Md.App. 686 , 566 A.2d 131 (1989), in which we said: We believe that drug manufacturing, on the other hand, is relevant to the issue of appellant’s propensity to tell the truth. A person who has committed crimes that posed grave danger to the fabric of society, that only could have been carried on furtively, and that required him to take great pains to conceal his conduct, would probably not be adverse to concealing the truth if it is to his advantage to do so. ⁶⁹⁴ Id. at 694 , 566 A.2d 131 . Building upon Carter , the Court went on to conclude that similar characteristics are inherent in the life of one convicted of drug distribution, opining that a narcotics trafficker would be willing to lie under oath because he/she “lives a life of secrecy and dissembling in the course of that activity, being prepared to say whatever is required by the demands of the moment, whether the truth or a lie.” Id. at 217, 642 A.2d 870 (quoting U.S. v. Ortiz, 553 F.2d 782, 784 (2nd Cir.), cert. denied, 434 U.S. 897 , 98 S.Ct. 277 , 54 L.Ed.2d 183 (1977)). Thus, the Court of Appeals recognized the nature of the conduct inherent in distributing narcotics, and concluded that a prior conviction for distribution of CDS is admissible for impeachment purposes if it is determined to be relevant, and not unduly prejudicial to the accused.

In the instant case, we note that the offense of importing CDS into Maryland is neither akin to possession of CDS nor distribution of CDS. Although it possesses elements common to each, the question is whether the nature of the conduct underlying the offense is more similar to that of possession, or to that of distribution. According to appellee, “[t]he crime of importation is identical to the crime of possession, in its relationship to the activities encompassed and their bearing on credibility.” To be sure, were we to overlook the minimum amount required to constitute the offense, and the requirement that the CDS be smuggled across the State line, the offense of bringing CDS into Maryland is no more serious than that of possession. But the minimum amount required to be imported to constitute the offense is quite substantial.

Such minimum amounts include: 1) 100 pounds or greater of marijuana, 2) 28 grams or greater of cocaine, 3) 4 grams or more of morphine or opium, 4) 1,000 dosage units of lysergic acid diethylamide or any mixture containing the equivalent of 1,000 dosage units of lysergic acid diethylamide, 5) 28 grams or more of PCP in liquid or powder form or 112 grams or more of any mixture containing PCP, ⁶⁹⁵ 6) 1,000 dosage units or more of methaqualone, or 7) 28 grams or more of methamphetamine. Md.Code (1957, 1987 RepLVoL) Art. 27, § 286A. Clearly, the necessary minimum amount indicates the intent of the Legislature to catch larger fish than those simply possessing CDS. As we see it, § 286A is aimed at drug suppliers or their couriers, who import CDS into Maryland where the CDS does its harm.

Moreover, the proscribed punishments fit the offense. Importing CDS into Maryland is a felony, punishable by a fine of not more than $50,000 and imprisonment for not more than 25 years. On the other hand, simple possession is a misdemeanor, punishable by a fine of not more than $25,000 and imprisonment for not more than 4 years. That § 286A targets those who import substantial amounts of CDS into Maryland should not be treated lightly.

Rather, the very fact that one knowingly imports CDS into Maryland is an indicium of the untrustworthiness of the one doing the importing. Instead of involving one who returns to Maryland with a small amount of CDS for his or her personal use, a violation of § 286A involves surreptitiously bringing a substantial amount of CDS into Maryland. Hence, we disagree with appellee’s simplistic description of her prior conviction. Nevertheless, importing CDS into Maryland is a separate and distinct offense from manufacturing or distributing CDS.

The requisite intent for either of the latter offenses may be presumed where one is found to have possessed CDS in a sufficient quantity reasonably to indicate an intent to distribute or manufacture the drug. Md.Code (1957, 1992 Repl.Vol.) Art. 27, § 286. Conversely, that one intended to distribute the CDS is not an element of the offense of bringing CDS into the State. Rose v. State, 74 Md.App. 644 , 539 A.2d 1142 , cert. denied, 313 Md. 31 , 542 A.2d 858 (1988).

One may be convicted of both bringing into Maryland and of distribution without placing the offender in double jeopardy. Id. Rather, a conviction for importing CDS simply requires proof that one brought at least the necessary minimum amount of ⁶⁹⁶ the substance into the State. Cherry v. State, 86 Md.App. 234 , 586 A.2d 70 (1991).

The offenses of manufacturing and distributing CDS are relevant to the credibility of a witness because of the premeditative, furtive and surreptitious nature of the underlying activities; in addition to the necessity for the perpetrator to be “prepared to say whatever is required by the demands of the moment, whether the truth or a lie.” State v. Giddens, 335 Md. at 217 , 642 A.2d 870 (quoting U.S. v. Ortiz, 553 F.2d 782, 784 (2nd Cir.), cert. denied, 434 U.S. 897 , 98 S.Ct. 277 , 54 L.Ed.2d 183 (1977)). In either offense, the perpetrator must first devise a scheme for successfully completing the task while remaining hidden from law enforcement officials. While carrying out the scheme, the perpetrator must always avoid detection. Inherent in the nature of either distributing or manufacturing illegal drugs is a consciousness of guilt and a willingness to be deceptive.

Importing a substantial quantity of CDS into the State requires no less willingness to deceive than do manufacturing and distributing drugs. One importing CDS into the state is a drug trafficker, and is fully aware of the consequences of being apprehended. It is obvious to us that, in order to avoid detection, the perpetrator would not only fabricate whatever tale he/she may