State v. Babb

Finan, J., delivered the opinion of the Court. On April 24, 1968, the appellee was tried in the Criminal Court of Baltimore by Cardin, J., sitting without a ⁵⁴⁸ jury, on the charge of manslaughter by automobile. He was found guilty and sentenced to 2 years imprisonment. Upon appeal to the Court of Special Appeals the conviction was reversed and a new trial ordered.

Babb v. State, 7 Md. App. 116 , 253 A. 2d 783 (1969). We granted certiorari. The issue before this Court is whether the trial court committed reversible error in permitting the prosecutor on cross-examination to ask the accused if he had been convicted of being drunk, when on direct examination the accused had responded in the negative to the question: “Have you ever been charged with or convicted of operating under the influence or leaving the scene or anything of that nature?” The objectionable testimony was elicited during the following cross-examination of the accused: “A. I had the shot of whiskey and drank the beer later. Q. Just one shot of whiskey?

A. That’s all. Q. And one beer ? A. That’s all. Q. You drink quite heavily, don’t you, Mr. Babb?

A. No, sir, not quite heavily. Q. You have been convicted of being drunk, haven’t you ? Mr. Walker: Your Honor— Mr. Kaminkow: I think that’s very relevant in this case. The Court: I don’t know what the issue— Mr. Walker: I object to any convictions, Your Honor, that do not relate to this man’s credibility.

I can’t think that the State ought to be permitted to go into any other things. The Court: I will permit it to come in on anything pertaining to alcoholic beverages. By Mr. Kaminkow: ⁵⁴⁹ Q. You were found guilty of being drunk on a public street, is that right? A. Yes, several years ago.” * ❖ ❖ The State contended that this line of questioning was relevant for the purpose of impeachment and was used to attack the credibility of the accused.

It argued that the accused had opened the door regarding his character by his denial under direct examination of “operating under the influence and leaving the scene or anything of that nature.” Henderson v. Warden, Maryland Penitentiary, 237 Md. 519 , 206 A. 2d 793 (1965). On the other hand, the Court of Special Appeals concluded that this evidence was admitted for the purpose of showing propensity for excessive use of alcohol and was therefore reversible error, stating : “It is apparent in the case at bar the State’s Attorney offered the evidence for the purpose of showing a propensity to drink and therefore to show that Babb was probably drunk at the time of the traffic accident involved in these proceedings. It seems equally apparent, from the trial judge’s comment that the evidence was admitted, and considered, for the purpose of showing propensity and therefore the error is reversible.” 7 Md. App. 121 . Actually, from a reading of the record it is difficult to determine just why this evidence was admitted.

However, for the purpose of this opinion we do not deem it necessary to establish the rationale behind the admission of this testimony because, although it may have been error for the trial court to admit this evidence, nonetheless considering the record of the case as a whole we believe it to have been harmless error. The record reveals that there was ample evidence, separate and apart from that elicited by the question concerning the previous conviction for public drunkenness, ⁵⁵⁰ to support a finding that the accused was operating his vehicle under the influence of intoxicating liquor at the time of the accident. There was evidence to show that the accused, two blocks away from the scene of the accident, was operating his red Cadillac in a zigzag fashion. If the testimony of two of the witnesses was believed by the trial judge, he could have found that the accused had gone through two red lights prior to the collision.

There was also evidence that he was operating the vehicle at a speed above the established limit. One witness testified that at the time he heard the impact of the collision, he observed that the operator of the other vehicle, who was killed in the accident, had the green light in his favor. It was also admitted by the accused that he had been operating a motor vehicle