Myers v. State

COLE, Judge. The issue of first impression presented in this case is whether a person who is found guilty of perjury, but who is given probation before judgment, is competent to testify. This issue arises by virtue of Md.Code (1974, 1984 Repl. Vol.), § 9-104 of the Courts and Judicial Proceedings Article (Courts Article), which provides that “[a] person convicted of perjury may not testify.” (Emphasis supplied).

Pursuant to an Agreed Statement of Facts under Md. Rule 828g, the facts are not in dispute. Appellant, Dennis Wayne Myers, was indicted for first degree murder by a grand jury sitting in the Circuit Court for Washington County. At trial, the State offered the testimony of appellant’s wife, Darlene, to establish his criminal agency. At the conclusion of her testimony, appellant moved to strike Darlene’s testimony on the ground that she had previously been found guilty of perjury 1 and was therefore incompe ⁶⁴¹ tent to testify as a witness.

In denying the motion, the Circuit Court for Washington County found that although Darlene had been found guilty of perjury, she had been given probation before judgment and was presently on probation. As a result, the trial court concluded that Darlene had not been convicted of perjury within the meaning of § 9-104 of the Courts Article and was thus competent to testify. Appellant was thereafter convicted of first degree murder and was sentenced to life imprisonment. The Court of Special Appeals affirmed his conviction and sentence in an unreported per curiam opinion filed March 6, 1984.

We granted certiorari to consider this important evidentiary issue, and we now affirm. I Appellant basically contends that a finding of guilt and the imposition of probation before judgment constitutes a conviction that renders the witness incompetent to testify. In support of this contention the appellant offers two arguments. First, appellant apparently believes that the finding of guilt made against the witness in the perjury proceeding is indistinguishable from a perjury conviction for purposes of § 9-104.

According to appellant, the witness was afforded the right to a trial, the court made a final determination of guilt, and, because probation is a form of punishment, the witness was punished for perjury. Second, appellant claims that the purpose of § 9-104 would be frustrated if the witness were found competent. Under this line of reasoning, appellant asserts that a witness who has been found guilty of perjury, but who has received probation before judgment, is no more worthy of credit than a witness given a harsher punishment for perjury. Upon our review of the relevant law, we are not persuaded by these arguments. ⁶⁴² A. The statutory disqualification of convicted perjurers set forth in § 9-104 of the Courts Article has long been the law in Maryland.

For example, as early as 1860 a Maryland statute provided that “[n]o person convicted of perjury ... shall be received as a witness until the judgment against him be reversed.” See Md.Code (1860), Art. 37, § 4 (superseded) (emphasis supplied). In 1864, the General Assembly repealed former § 4 and reenacted it as § 1 to read that “no person who has been convicted of the crime of perjury shall be admitted to testify in any case or proceeding whatever[.]” See 1864 Md.Laws 109, § 1 (emphasis supplied). Then, as now, the operative term is “convicted.” Because the General Assembly has not seen fit to provide a definition for this term, our task is to ascertain its meaning in the context of § 9-104. At common law a person was not “convicted” of a crime until the court entered a judgment on the finding of guilt.

See 2 J. Wigmore, Evidence in Trials at Common Law § 521, at 731 (J. Chadbourn ed. 1979). In today’s usage, however, the meaning of “convicted” and “conviction” turns upon the context and purpose with which those terms are used. See Hunter v. State, 193 Md. 596, 606-07 , 69 A.2d 505, 509-10 (1949); see also Conlow v. State, 441 A.2d 638, 639 (Del.1982) (per curiam) (“The meaning of the term ‘convicted’ or ‘conviction’ varies according to the context and purpose of the particular provision—statutory or constitutional—in which it appears or to which it relates.”); State v. Ege, 274 N.W.2d 350, 355 (Iowa 1979) (“The word ‘conviction’ may have different meanings within different contexts.”). For example, in its general and popular sense “conviction” means the establishment of guilt prior to, and independent of, the judgment of the court.

See, e.g., State v. Hanna, 179 N.W.2d 503, 507-08 (Iowa 1970); State v. Delashmutt, 676 P.2d 383, 384 (Utah 1983) (per curiam); State v. Herman, 93 Wash.2d 590, 595-96 , 611 P.2d 748, 751 (1980). By contrast, in its legal and technical sense this term means the final judgment and sentence rendered by a ⁶⁴³ court pursuant to a verdict or plea of guilty, and it is frequently used to denote the judgment or sentence. See, e.g., State v. Superior Court, 1 Storey 178 , 51 Del. 178 , 141 A.2d 468, 472 (1958) (“ ‘[Cjonviction’ means the final consummation of the prosecution against the accused including the judgment or sentence rendered pursuant to a conviction.”); Vasquez v. Courtney, 272 Or. 477, 480 , 537 P.2d 536, 537 (1975) (“The second, more technical meaning [of conviction] refers to the final judgment entered on a plea or verdict of guilty. In [this] case conviction has not been accomplished until the judgment is made by the court.”); Parker v. State Highway Department, 224 S.C. 263, 268-69 , 78 S.E.2d 382, 384 (1953) (“But the word [convicted] is also often used as including both the ascertainment of the guilt of the accused and the judgment thereon by the Court.”).

Where, as here, the statute under consideration imposes a legal disability, courts have defined “conviction” in its legal and technical sense. As one commentator explained, “[tjhese courts reason that the legislature did not intend for valuable rights and privileges to be lost without a final judgment and sentence. In actuality, perhaps this interpretation was inspired by the judiciary’s desire to aid the rehabilitation of those offenders whom it thought possessed a reformative potential.” Spécial Project, The Collateral Consequences of a Criminal Conviction, 23 Vand.L.Rev. 929, 953-54 (1970) (footnotes omitted). This Court has consistently and repeatedly embraced this particular position.

A brief review of several of our cases makes this point clear. One of our first cases to analyze the meaning of “convicted” involved a turnpike repair statute that contained that word. See Francis v. Weaver, 76 Md. 457 , 25 A. 413 (1892). The Francis Court, relying upon several English cases and a New York opinion, construed “convicted” in its strict legal sense to mean the judgment of the court.

Id. at 467 , 25 A. at 415 . ⁶⁴⁴ Later, in two cases consolidated for appeal in Hunter v. State, supra, appellant was tried in one case for accepting a bet on a horse race in violation of Maryland law. During cross-examination, the State questioned appellant whether he had been convicted of keeping and maintaining a gaming table. Over objection appellant admitted that he had been so “convicted.” On appeal, appellant claimed that although he had been found guilty of keeping and maintaining a gaming table, he had not been sentenced and therefore had not yet been convicted of that offense. Relying upon Francis , the Hunter Court, speaking through Chief Judge Marbury, observed that most courts interpret “conviction” to include “not only the verdict of a jury, but the imposition of a sentence or judgment.” Id. [193 Md.] at 606, 69 A.2d at 509 .

Despite this observation, the Court declined to pass on the issue because Hunter by that time had been sentenced. Eight years later this Court again considered whether a “conviction” is a determination of guilt or the judgment of the court on the verdict. State v. Rappaport, 211 Md. 523 , 128 A.2d 270 (1957). In that case, Rappaport tendered a plea of guilty to a felony charge in 1944 before a New York state court.

That court suspended Rappaport’s sentence, placed him on probation, and ordered him to make restitution. Several years later Rappaport was indicted for feloniously voting in several Maryland elections between 1946 and 1952 under a statute that prohibited a “person who shall have been convicted of bribery, felony or other infamous crime” from voting in any Maryland election. See Md.Code (1951), Art. 33, § 193 (superseded) (emphasis supplied). The Circuit Court for Howard County, applying New York law, dismissed the indictment because a person was not considered “convicted” of an offense when he received a suspended sentence after a verdict of guilty.

In so holding, the Rappaport Court noted that this conclusion was in harmony with Symington v. State, 133 Md. 452 , 105 A. 541 (1919), where our