Robinson v. State

Wilner, J., delivered the opinion of the Court. On the afternoon of April 18, 1981, two men entered the office of the Automotive Moving Center in Prince George’s County and, at gunpoint, helped themselves to money from the company’s cash register and from the wallets of two employees, Joseph Foster and Donald Beauchert. On May 5, 1981, appellant was arrested in connection with another incident, and, as a consequence of that arrest, was routinely photographed. A month later that photograph was shown, as part of an array, to the two employee-victims of the April robbery.

One of the employees — Mr. Foster — identified appellant from that array, whereupon appellant was arrested and charged with the armed robbery and various associated offenses. Appellant was tried before a jury in the Circuit Court for Prince George’s County and convicted of two counts (each) of robbery with a deadly weapon, theft, and use of a handgun in the commission of a crime of violence. From those convictions and the twenty-five year prison sentence imposed ²⁹⁹ thereon, he brings this appeal raising seven issues. We shall address two of them: (1) "Did the trial court err in allowing the prosecutor to question Appellant regarding the details of a prior conviction”; and (2) "Did the trial court err in summarily rejecting Appellant’s contention that any identification of him by Foster should be suppressed as the fruit of an unlawful arrest?” The first of these we think must be answered in the affirmative.

The court erred in permitting, over forceful objection, an extensive and unwarranted cross-examination regarding the circumstances of another crime of which appellant had been convicted. The error was of sufficient magnitude and prejudice as to require that we reverse the judgments and remand for a new trial. All but one of appellant’s other complaints involve events occurring at his trial and are resolved by our reversal. The exception is the second issue noted above; that likely will surface again at retrial, as it involves the admissibility of evidence that the State apparently thinks is important.

(1) Cross-Examination Regarding Prior Conviction Appellant testified in his own behalf. His defense was that of alibi; he claimed that on the day of the robbery he was at his father’s home from ten in the morning to five in the evening. 1 Cross-examination was extensive. It ended with this colloquy: "Q [By prosecuting attorney] And you were in fact convicted on December 9, 1977 in the Circuit Court for Prince George’s County in Criminal ³⁰⁰ Trials 18207 of daytime housebreaking, is that correct? A [By appellant] Say that again, ma’am.

Q You were convicted on December 9,1977, Circuit Court, Prince George’s County, Criminal Trials 18207 for daytime housebreaking, is that correct? A Yes, ma’am.” On redirect, defense counsel pursued the matter thusly: "Q Mr. Robinson, when you were convicted in November, 1977, did you plead guilty? A Yes, sir. Q Were you guilty?

A Yes, sir. Q Were you offered a chance to plead guilty to a less[e]r count in this case? A Yes. Q Did you refuse to take that plea?

A Yes, sir. MRS. CLAGETT [Prosecuting Attorney]: I’m going to object. THE COURT: Sustained.” (Emphasis supplied.) On recross, the prosecutor returned to the subject again.

This is what happened: "Q Mr. Robinson, isn’t it a fact the reason you pled guilty in Criminal Trials 18207 was the fact that you broke into a woman’s home, took two fur coats and you were caught red-handed in that case, weren’t you? MR. NEAL [Defense Attorney]: Objection. THE COURT: Overruled.

THE WITNESS: No, ma’am. BY MRS. CLAGETT: Q You were not caught red-handed? A No, ma’am. ³⁰¹ Q Not caught as the security guard caught you as you came out?

MR. NEAL: May I approach the bench? THE COURT: Come on up. (Whereupon, counsel approached the bench, and and [sic] the following ensued:) MR.

NEAL: Your Honor, Mrs. Clagett has been State’s Attorney long enough to know you cannot go into facts of a conviction. THE COURT: You’ve been a State’s Attorney long enough not to ask a question about didn’t you plead guilty because you got a deal. All right, let’s go, you opened the door. MR.

NEAL: That was not my question, move for a mistrial. You made that statement so the jury can hear it. THE COURT: Let’s go. MR.

NEAL: Move for a mistrial. THE COURT: It’s denied. (Whereupon, counsel returned to their respective trial tables.) THE COURT: What was the question, Mrs. Clagett? MRS.

CLAGETT: I think it was isn’t it a fact as you were leaving, you and a buddy — MR. NEAL: Objection to any facts, Your Honor. THE COURT: What was that? MR.

NEAL: I object to any facts about a case that he pled guilty to. THE COURT: That is overruled. Read the question back before there was an objection. MRS.

CLAGETT: The question was Mr. Robinson, you were not caught by the security guard as you were leaving with these two fur coats? MR. NEAL: Objection. THE WITNESS: No, ma’am. ³⁰² THE COURT: That is overruled.

BY MRS. CLAGETT: Q In fact, as you were leaving that apartment he tried to subdue you and you ran away, is that right? MR. NEAL: Objection.

THE COURT: That is overruled. THE WITNESS: From security? BY MRS. CLAGETT: Q Yes.

A (No response.) Q You want me to repeat the question? A Security guard chased me? Q Yes. A Not that I know.

Q Emery Griffeth? A I don’t know. Q In that case you also confessed to the crime, did you not? A No. Q You didn’t confess to the crime?

MR. NEAL: Objection. THE COURT: Overruled. THE WITNESS: No. MR.

NEAL: I don’t know who these people she is calling out are, Your Honor. I object to the whole line of questioning. THE COURT: Overruled. Come up, please.

(Whereupon, counsel approached the bench, and the following ensued:) THE COURT: I indicated to you before, just make an objection, I’ll make a ruling. Don’t say anything after the objection. Now go back and sit down. MR.

NEAL: Your Honor asked us to approach the ³⁰³ bench and refused to grant me access. Asked for discovery, now going into the facts of the case, four years ago; I don’t have these people. I haven’t cross-examined them. I have no way of knowing what happened in that case except he pled guilty, that was supplied.

I just want to put my reasons. I don’t mean to be argumentative. THE COURT: You’re a very experienced attorney. You were a Deputy State’s Attorney in this county.

You knew very well the question you asked on redirect was highly improper and you opened up the door. And I’m going to let her ask anything about why he pled guilty in this previous offense based on the question that you have asked. Now go back and sit down. (Whereupon, counsel returned to their respective trial tables.) BY MRS.

CLAGETT: Q Now, Mr. Robinson, your nickname is Pee-Wee, isn’t it? A Yes, ma’am. Q Now, again I ask you, in the breaking and entering you pled guilty to, this is the house of Daisey Buggs, June 1st, 1977, were you not in fact stopped by security when you escaped with two fur coats? MR.

NEAL: Objection. THE COURT: Just a moment. He’s answered that question, Mrs. Clagett, ask him another question. MRS.

CLAGETT: Court’s indulgence. BY MRS. CLAGETT: Q And specifically, didn’t you give a verbal confession to the investigating officer in that case? MR.

NEAL: Objection. THE COURT: Overruled. THE WITNESS: I don’t know. ³⁰⁴ MRS. CLAGETT: You don’t know.

You learned not to do that, didn’t you? THE COURT: Just a minute, please. Just ask him a question, Mrs. Clagett, please. MRS.

CLAGETT: I have no other questions, Your Honor.” (Emphasis supplied.) The law is clear on this point. Md. Code Ann., Courts Article, § 10-905 (a) 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.” (Emphasis supplied.) In Huber v. State, 2 Md. App. 245, 257 (1967), we held that "the proper interpretation of [that provision] would permit only the fact of conviction for a specific crime to be permitted [sic, admitted] into evidence, and not the details of the commission of the crime.” (Emphasis supplied.) We noted that: "When the details of the commission of a prior crime by a witness are introduced into evidence, there is a danger that the jury may be misled into a conviction by evidence of an offense for which the defendant is not indicted... and hence the introduction of such evidence should be subject to rigid scrutiny by the court. ...” Id. See also Kable v. State, 17 Md. App. 16, 31 , cert. den. 268 Md. 750 (1973). More recently, the Court of Appeals observed in Ricketts v. State, 291 Md. 701, 703 (1981), "[t]he evidentiary tool the State customarily uses to attack the defendant’s credibility is evidence of his prior convictions.

The only details ordinarily allowed to be presented to the jury are the nature of the charge and the fact of conviction.” (Emphasis supplied.) The questions allowed here obviously extended far beyond the nature of the charge and the fact of conviction. They included not only the "details of the commission of the crime,” but the attempt at flight and an extra-judicial confession. The trial judge allowed this line of inquiry on the ground ³⁰⁵ that defense counsel had "opened the door” by asking whether appellant had pled guilty "because [he] got a deal.” It would seem from this that, although not very well articulated, the court, in effect, was applying the doctrine of "curative admissibility,” a doctrine which, under some circumstances, permits a party to offer otherwise inadmissible evidence in response to like evidence offered by his adversary. See, in general, 1 Wigmore, Evidence, § 15 (3d ed. 1940); McCormick on Evidence 2d, § 57; 29 Am.

Jur. 2d, Evidence, § 267. We are aware of but two instances in which this doctrine has been considered in the context now before us, both times by the District of Columbia Court of Appeals. See Jenkins v. United States, 374 A.2d 581 (D. C.), cert. den. 434 U.S. 894 (1977); and Middleton v. United States, 401 A.2d 109 (D.C. 1979). As expounded in Middleton , the theory proceeds thusly: (1) it is permissible for the State to attack a testifying defendant’s credibility by showing prior convictions; (2) it is also permissible for a defendant "to give a limited explanation of extrinsic convictions when the subject is first broached by the government” ( 401 A.2d at 125 ); (3) it is not permissible, however, for a defendant to contrast a guilty plea in a prior case with his defense of the instant case, for that bears not on his credibility but rather tends "to create an inference of innocence with respect to the charges in the present case” (id., 125); and (4) if the defendant nevertheless injects that into the case, he has "opened the door” to the State also using otherwise inadmissible evidence regarding the prior offenses in order to respond to the impermissible inference that he is innocent in this case.

The doctrine of curative admissibility, in this context, has not previously been accepted in Maryland; and we have some difficulty with it, especially in this case. We note, first, that the court was plainly wrong in its interpretation of appellant’s testimony on redirect examination. Appellant did not, as the court seemed to believe, indicate that he had pled guilty in the earlier case "because [he] got a deal.” His testimony on redirect neither mentioned nor suggested any ³⁰⁶ kind of "deal” with regard to the earlier case. Appellant said that he pled guilty and that he was guilty; and that was all that he said on that subject.

The question on redirect regarding a "deal” pertained to the instant charge, not the 1977 conviction; and the court sustained the State’s objection to it, thus removing the matter from the jury’s consideration. In that circumstance, the doctrine of curative admissibility has no application. No door was opened; there was simply nothing to respond to. Even when applicable, the doctrine must be used with great caution.

The Middleton Court itself recognized "that the doctrine of curative admissibility is 'dangerously prone to overuse’ ” and that it should be applied " 'only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.’ ” 401 A.2d at 127 . McCormick expresses a similar view (see McCormick, supra, § 57), as does Wigmore in what he calls the "Massachusetts rule”: "The opponent may reply with similar [inadmissible] evidence whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence, but in no other case.” (Emphasis in original; see Wigmore, supra, § 15.) We fail to see any such unfair prejudice in this case sufficient to justify the State’s far-ranging inquiry. In the first place, aside from the obvious (and no doubt intended) prejudicial side effect to appellant, all that the State’s recross examination did was to confirm what appellant had already conceded — that he was, in fact, guilty in the earlier case, and that he had pled guilty. It