Ogburn v. State

ROBERT M. BELL, Judge. David Junior Ogburn, appellant, was convicted by a jury in the Circuit Court for Anne Arundel County of assault with intent to murder, robbery, and related offenses. Upon receiving sentences totaling thirty years, he appeals, presenting three questions for our review: 1. Did the trial court err in ruling that the defense may not impeach a State’s witness by eliciting that he received probation before judgment for theft or any other offense? 2.

Did the trial court err in refusing to grant a motion for mistrial after a State’s witness referred to an unrelated crime of theft by the Appellant? 3. Did the trial court err in refusing to grant a motion for mistrial, after a State’s witness referred to an unrelated drug offense by the Appellant? The home of the sixty-four year old victim was broken into while she was taking a nap. Awakened by a crashing ⁵⁰⁰ noise in her basement, she went to investigate.

When she opened her basement door, she saw a strange man ascending the basement stairs. Quickly closing the door, the victim retreated and attempted to telephone the police. Before she could complete the call, however, the man broke down the basement door, and finding her at the phone, grabbed her by the neck, and severely beat her. After he had gone through the house gathering items of personalty, the man asked the victim whether she had any guns.

As a ruse, the victim told him there might be one in the basement. The victim, who had been forced to accompany him to the basement, managed to get out of the house while he was searching for a gun. As she attempted to climb her neighbor’s fence, the man caught up to her and threw her to the ground. Her screams aroused the attention of her neighbors.

One of the victim’s neighbors, Nathan Singleton, was outside working on a car two doors from the victim’s home. Hearing the victim’s screams and seeing her being attacked by a man, he rushed to her rescue. The man escaped, however. Singleton’s identification of appellant as the victim’s assailant was the only conclusive identification evidence offered by the State; the victim was unable to identify her assailant and blood test and fingerprint evidence was inconclusive. 1.

Impeachment During cross-examination, appellant sought to impeach Singleton by inquiring into his criminal record. When the prosecutor objected, proffering that Singleton’s record consisted of only one offense, theft, he believed, for which Singleton received probation before judgment, appellant contended that because it proved a prior bad act relevant to credibility he should nevertheless be allowed to impeach Singleton by proving that he received that disposition for theft. The trial judge rejected the argument on two grounds: first, because a probation before a judgment ⁵⁰¹ disposition is not a conviction and second, because the bad act sought to be proved was “tangential to the trial” and, therefore, inadmissible. 1 On appeal, appellant has all but conceded, as he must, the correctness of the court’s ruling that a probation before judgment disposition is not a conviction. Myers v. State, 303 Md. 639, 647-48 , 496 A.2d 312 (1985), in which the Court of Appeals held “that probation before judgment under § 641 is not a ‘conviction’, and a person who receives probation before judgment is not convicted of the crime for which he has been found guilty, unless the person violates the probation order and a court enters a judgment on the finding of guilty”, is dispositive of this point.

This is true notwithstanding that the issue in Myers was whether, in light of Md.Cts. & Jud.Proc.Code Ann. § 9-104, prohibiting “[a] person convicted of perjury” from testifying, a State’s witness, who had received probation before judgment for perjury, was competent to testify, rather than the impeachment use of that disposition pursuant to Md.Cts. & Jud. Proc.Code Ann. § 10-905(a). 2 “Conviction” in both contexts has the same meaning. See Myers, 303 Md. at 642-45 , 496 A.2d 312 ; Sigma Reproductive Health Center v. State, 297 Md. 660, 665 , 467 A.2d 483 (1983) (“The general rule in ⁵⁰² criminal cases is that no final judgment exists until after conviction and sentence has been determined[.]”). Appellant’s position on appeal is that he was entitled to impeach the State’s witness with the evidence that the witness had committed theft, a bad act affecting the witness’ credibility, even though the witness was given probation before judgment.

In order to place appellant’s argument in context, it is necessary that we review the teachings of State v. Cox, 298 Md. 173 , 468 A.2d 319 (1983). There, the testimony of the victim was the sole direct evidence linking the defendant to the sexual assault charges on trial. Therefore, while cross-examining her, the defendant sought to impeach her credibility by showing that she had, on a previous occasion, under oath, charged another person with criminal assault and, at the previous trial, recanted that charge under cross-examination. The trial judge refused to permit this line of cross-examination.

Addressing whether that refusal was error, the Court of Appeals reiterated that a witness may be cross-examined about prior bad acts, as distinct from prior convictions, relevant to an assessment of that witness’ credibility. 298 Md. at 179 , 468 A.2d 319 . It pointed out, however, that “... Such inquiry [is allowed] to be conducted when the trial judge is satisfied that there is a reasonable basis for the question, that the primary purpose of the inquiry is not to harass or embarrass the witness, and there is little likelihood of obscuring the issue on trial.” Id. Thus, where the inquiry seeks to determine “the fact of prior misconduct”, ... [i]t is the responsibility of the trial judge to determine the relevance and materiality of the alleged prior misconduct, for it is purely collateral to the issue on trial and should only be admitted if probative of a lack of credibility.

The trial judge must constantly be alert to make certain that the probative value of the inquiry outweighs its potential prejudice to the witness and that the inquiry does not stem primarily from a desire to harass or embarrass the witness. ⁵⁰³ 298 Md. at 180 , 468 A.2d 319 . The Court also pointed out that any restriction of cross-examination “should be manifested by the exercise of sound discretion.” 298 at 183. Cox thus requires that four factors be present before a witness may be cross-examined on prior bad acts: 1. The act or acts must be relevant to an assessment of the witness’ credibility; 2.

There must be a reasonable basis for inquiry concerning the prior bad act; 3. The primary purpose of the inquiry must not be to harass or embarrass the witness; and 4. There must be little likelihood of obscuring the issue on trial. Whether these factors exist is a matter left to the sound discretion of the trial judge.

Taking each of these factors in turn, the inquiry sought to be made by appellant apparently meets the Cox test. Theft under Md.Code Ann. art. 27 § 342, “constitutes a single crime embracing the former separate crimes of larceny, larceny by trick, larceny after trust, embezzlement, false pretenses, shoplifting and receiving stolen property.” 3 Craddock v. State, 64 Md.App. 269, 277 , 494 A.2d 971 (1985). See Md.Code Ann. art. 27 § 341. See also Kawamura v. State, 299 Md. 276, 295-97 , 473 A.2d 438 (1984), which recognized that the offense reflected in § 342(f)(2) is substantially the same as the crime of larceny previously codified in § 340.

In Maryland, larceny has long been considered to be an “infamous crime”, which reflects upon a person’s honesty. State v. Bixler, 62 Md. 354, 360 (1884). See also Md.Code Ann. art. 33, § 3-4(c), disqualifying person convicted of “theft or other infamous crimes” from voting. Maryland cases have also recognized that ⁵⁰⁴ “[t]heft, regardless of the amount involved, is and always has been regarded as an extremely serious offense____” Kawamura, 299 Md. at 296 , 473 A.2d 438 , citing In Re Application of David H., 283 Md. 632, 640 , 392 A.2d 83 (1978) (“thievery of a repetitive nature ... is usually indicative of a serious character flaw”); State v. Huston, 281 Md. 455, 461 , 379 A.2d 1027 (1977) (theft “has in it an element of dishonesty, such as ... might indicate that ‘the witness [was] devoid of moral perception”, being “a person [who] would regard lightly the obligations of an oath to tell the truth.”).

Evidence that a witness has been convicted of an infamous crime is always admissible to impeach the witness’ credibility. Ricketts v. State, 291 Md. 701, 706 , 436 A.2d 906 (1981); Watson v. State, 68 Md.App. 168, 173 , 510 A.2d 1094 (1986). Even if this were not so, evidence of lesser crimes, which tends to show that a person should not be believed under oath may also be admitted. 4 Ricketts, 291 Md. at 708 , 436 A.2d 906 ; Duckett v. State, 61 Md.App. 151, 157 , 485 A.2d 691 (1985), aff'd, 306 Md. 503 , 510 A.2d 253 (1986). Thus, evidence that a witness has been found guilty of theft is relevant to an assessment of credibility and, therefore, may be admissible to impeach his or her credibility.

The State proffered that the witness sought to be impeached had received probation before judgment for theft. Pursuant to Md.Code Ann. art. 27 § 641, 5 that dispo ⁵⁰⁵ sition may be given only if the person has pled guilty or nolle contendere or is found guilty of an offense. See Horsey v. State, 56 Md.App. 667 , 468 A.2d 684 (1983), cert. denied, 299 Md. 426 , 474 A.2d 218 (1984), in which we held that “a factual determination ... as to the commission of an offense beyond a reasonable doubt in an adversary proceeding” is the required predicate for a § 641 disposition. Id., 56 Md.App. at 672 , 468 A.2d 684 .

Since “the fact of prior misconduct” must be established as a prerequisite to obtaining a probation before judgment disposition, the proffer that a witness has received that disposition for a theft offense necessarily establishes a reasonable basis for the inquiry concerning that offense. Once the relevance of the bad act to the assessment of the witness’ credibility has been established and a reasonable basis for the inquiry has been shown, it follows, a fortiori, that the primary purpose of the inquiry is the impeachment of the witness’ credibility. The incidental effect of the inquiry may be to embarrass the witness; however, that is no different, and certainly no greater, than any inquiry, made of a witness on cross-examination, the purpose of which is to impeach that witness’ credibility. In any event, to the extent that one of the purposes of the cross-examiner is to embarrass the witness, it certainly would not be the primary purpose. ⁵⁰⁶ Finally, Cox makes clear that inquiries concerning prior misconduct are subject to the rule that “... [t]he cross-examiner is bound by the witness’ answer and, upon the witness’ denial, may not introduce extrinsic evidence to contradict the witness or prove the discrediting act.” 298 Md. at 179 , 468 A.2d 319 .

Consequently, because “[t]he inquiry virtually stops with the question and answer”, the likelihood that the issue on trial will be obscured is, at best, minimal. The State rejoins that “only convictions of infamous crimes are admissible for impeachment purposes,” citing Scott v. State, 64 Md.App. 311, 321 , 494 A.2d 992 (1985), and that “although [ Myers, supra ] and Evans v. State, 304 Md. 487 , 499 A.2d 1261 (1985)] specifically address the application of Cts. and Jud.Proc.Code Ann. § 9-104 (which bars testimony of convicted perjurers[,] a person charged with theft who is granted probation before judgment would also be shielded from impeachment under Cts. and Jud.Proc. § 10-905; both statutes employ the word ‘conviction’.” This argument has relevance only with regard to appellant’s contention that a probation before judgment disposition constitutes a conviction or is tantamount to a conviction. We have already rejected that contention. We reiterate, however, that the only issue presented in Myers and Evans was the threshold one concerning the effect of probation before judgment on a witness’ competency to testify; the use of the underlying act, notwithstanding the probation before judgment disposition, to impeach the witness’ credibility simply was not presented.

Implicitly, the State may be arguing that the legislative intent in enacting § 641(c) — that probation before judgment not be a conviction augurs in favor of shielding the act for which probation before judgment was imposed from being used for impeachment purposes and, in fact, requires it because “a probationer who fulfills the terms and conditions of his probation avoids the stigmatizing effect of a criminal conviction.” Myers, 303 Md. at 647 , 496 A.2d 312 . If that were the intent of the legislature, the words of the statute ⁵⁰⁷ do not express it. Section 641(c) provides simply that satisfactory discharge from probation “is not a conviction for purposes of any disqualification or disability imposed by law because of conviction of crime.” (emphasis added) Use of a crime for which probation before judgment was the disposition for impeachment purposes is neither a disqualification nor disability imposed by law because of conviction of crime. Black’s Law Dictionary, Rev. 4th ed.

(1968) defines “disqualified” as “to divest or deprive of qualifications; to incapacitate; to render ineligible or unfit”, at 558 and “disability” as “the want of legal capacity to perform an act”, at 548. The context in which the terms are used in § 641(c) suggests that disqualification and disabling statutes are those which render a person ineligible, by reason of conviction of crime, for enjoyment of, or participation in, rights or privileges enjoyed by the public at large without restriction. See, e.g. Md.Cts. and Jud.Proc.

Code Ann. § 9-104 (disqualification by conviction of perjury); Md.Code Ann. Art. 33, § 3-4(c) 6 (disqualification from voting by virtue of conviction of “theft or other infamous crime”). Md.Cts. and Jud.Proc.Code Ann. § 10-905(a) has no disqualifying or disabling effect; nor could it have. Md.Cts. and Jud.Proc.Code Ann. § 9-101 specifically provides that “a person shall not be excluded from testifying in a proceeding because of incapacity from crime or interest in the matter in question.” All § 10-905(a) does is to explicitly permit the use in a proceeding of evidence of the fact of conviction of an infamous crime. The language of § 641 is clear and unambiguous.