Thurman v. State

MEREDITH, J. Candus Thurman, appellant, was charged in the Circuit Court for Prince George’s County with attempted murder, first-degree assault, second-degree assault, armed carjacking, carjacking, robbery with a dangerous weapon, robbery, theft over $1,000, use of a handgun in the commission of a felony or crime of violence, and wearing and carrying a handgun. Following a jury trial, Thurman was convicted of first-degree assault, armed carjacking, use of a handgun in the commission of a felony or crime of violence, and wearing and carrying a handgun. The circuit court sentenced Thurman to three concurrent sentences of fifteen years’ imprisonment for first-degree assault, armed carjacking, and use of a handgun in the commission of a felony or crime of violence. The conviction for wearing and carrying a handgun merged for the purposes of sentencing.

Thurman noted a timely appeal and presents two questions for our review: 1. Did the trial court err in ruling that defense counsel could not impeach [the victim’s] credibility with evidence of his prior convictions for assault on a police officer and fleeing a law enforcement officer? 2. Did the trial court erroneously deny defense counsel the opportunity to re-cross examine [a State’s witness]? Finding no reversible error, we affirm the judgments of the circuit court. ⁴⁵⁹ FACTS AND PROCEDURAL HISTORY On February 23, 2010, at approximately 1:40 a.m., Cedric Bosier arrived at the Skylark, a strip club in Washington, D.C. When Bosier arrived, the club was letting out.

So he talked to some people outside of the club. Bosier struck up a conversation with Thurman, and she asked him for a ride home. Thurman got in Bosier’s car, and he drove toward Shadyside Apartments, which is where Thurman’s cousin lived. When they arrived at the Shadyside Apartments, Thurman indicated that she had decided to go home with Bosier.

But she asked him to come with her to her cousin’s apartment so she could get clothes and tell her cousin where she was going. They exited the car, and Bosier followed Thurman toward the apartment building. According to Bosier, Thurman “put her hood on because it was kind of misty that night, and then she turned around and pulled a gun on me.” She said: “Give me your money and your keys.” As Bosier began to retrieve his keys from his pocket, Thurman shot him. Then, Thurman drove away in Bosier’s car.

After Thurman left, Bosier called 9-1-1, and walked to a nearby gas station where he was met by police. Bosier initially told the police that a man with dreads got in his car, told him to drive, and then got out of the car and shot him. He later explained that he told this story because he was embarrassed that a woman “could rob me and shoot me like that.” A few days later, Thurman called Bosier and apologized for shooting him. After he hung up the phone, Bosier called the investigating detective and gave a second statement, saying that a woman shot him.

At trial, Thurman testified and told a version of events that was quite different from Bosier’s. Although there are significant discrepancies between the stories, sufficiency of the evidence is not raised on appeal, and therefore, we simply note that the defense’s theory was that Thurman acted in self ⁴⁶⁰ defense because she felt that Bosier was pressuring her for sex, and she feared that he was going to sexually assault her. Additional facts will be discussed below as they pertain to each question presented. DISCUSSION I. During the cross-examination of Cedric Bosier, defense counsel attempted to impeach Bosier by introducing evidence of some of his prior convictions.

The trial judge sustained the State’s objections when defense counsel asked Bosier to admit that he had been previously convicted of assault on a police officer, threat to do bodily harm, and reckless endangerment. Defense counsel then asked to approach the bench and the following colloquy occurred: [DEFENSE COUNSEL]: Certainly, Your Honor, reckless endangerment is a crime that goes to moral turpitude. COURT: I don’t think so. [DEFENSE COUNSEL]: Well, it’s not a second degree— I’m not asking about a second degree assault— COURT: I understand. I don’t consider reckless endangerment a term of moral turpitude. [DEFENSE COUNSEL]: Well, it’s a little more egregious.

It’s in the area of aggravated—as a type of assault. It carries a five-year felony [sic]. COURT: Well, reckless endangerment is not a felony. [DEFENSE COUNSEL]: Okay. He also has a conviction for fleeing from a police officer in the District of Columbia.

COURT: Not a crime of moral turpitude. The court then asked defense counsel to proffer all of the convictions he sought to use for impeachment, and counsel described the witness’s convictions as follows: ⁴⁶¹ [DEFENSE COUNSEL]: Okay. The reckless endangerment is in CT96-1047X. He had a conviction on June 19, 1997.

He was convicted of assault and battery, which I agree, I didn’t ask him about that. But, also, he was convicted of reckless endangerment in that particular case. Then he was convicted in 2006, CMD, which is the case number, 020246, in the District of Columbia. He was convicted of assault on a police officer and threats to do bodily harm.

That conviction was on April 22, 2008. He also has another conviction in the District of Columbia—if I can just get it? COURT: Um-hmm. [DEFENSE COUNSEL]: Which is fleeing a law enforcement officer, which is a misdemeanor under D.C. law. That was in 2007, CF210—0012601.

I believe all those are the impeachable convictions. [STATE]: The State objects for the record, for obvious reasons. COURT: All right. I do not consider them crimes of moral turpitude as they’re used for impeachment under Maryland law.... Thurman contends on appeal that “the trial court erred in concluding that neither [the witness’s conviction for] assault on a police officer nor fleeing a law enforcement officer was admissible for impeachment purposes.” Thurman acknowledges that no Maryland reported opinion has addressed whether these crimes are relevant to credibility, but argues that these crimes “each contain an element of contempt or disrespect for law enforcement and the rule of law.” Thurman asserts that “the very nature of the crimes bears on credibility and may reasonably reflect one’s status as a scofflaw, who might not take seriously the witness’s oath.” 1 ⁴⁶² The State responds that the trial court properly excluded the proffered evidence of the convictions.

The State quotes the following statement from Prout v. State, 311 Md. 348, 363 , 535 A.2d 445 (1988): [W]e think the law of this state may be generally summarized as holding that to be admissible for impeachment purposes a conviction must be either a felony at common law or a crimen falsi and thus infamous, or a lesser crime bearing upon the witness’s credibility. Noting that the adoption of Maryland Rule 5-609 has not altered this limitation on the use of convictions for impeachment, the State emphasizes: “None of the convictions were for felonies. None of them involved theft, fraud, or deceit. None of them was a ‘crimen falsi,’ a ‘crime of falsifying.’ ” The State further contends that the mere fact that the convictions involved offenses against police officers did not elevate the convictions’ relevance to the witness’s credibility.

The State asserts: No court in Maryland has ever held that a crime that is not otherwise a qualifying offense becomes “relevant to the witness’s credibility” if the conduct involved a police officer. There has never even been a hint of such a definition.... [OJnly misdemeanors which directly relate to a propensity ⁴⁶³ for fraud, deception, or dishonesty may be considered for impeachment purposes. (Footnote omitted.) We agree with the State’s contention that neither of Bosier’s misdemeanor convictions was properly admissible for impeaching him. Maryland Rule 5-609 addresses the use of prior convictions to impeach a witness.

The rule provides 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 examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness’s credibility and (2) 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 is not admissible under this Rule if a period of more than 15 years has elapsed since the date of the conviction.

The Court of Appeals has described a three-part test for determining whether a witness may be impeached with evidence of a prior conviction offered under Rule 5-609: First, subsection (a) sets forth the eligible universe for what convictions may be used to impeach a witness’s credibility. This universe consists of two categories: (1) infamous crimes and (2) other crimes relevant to the witness’s credibility. Infamous crimes include treason, common law felonies, and other crimes classified as crimen falsi. 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. If a crime falls within one of the two categories in the eligible universe, then the second step is for the proponent to establish that the conviction was not more than 15 years old, that it was not reversed on appeal, and that it was not the subject of a ⁴⁶⁴ pardon or a pending appeal. Finally, in order to admit a prior conviction for impeachment purposes, the trial court must determine that the probative value of the prior conviction outweighs the danger of unfair prejudice to the witness or objecting party. This third step is clearly a matter of trial court discretion.

King v. State, 407 Md. 682, 698-699 , 967 A.2d 790 (2009) (quoting State v. Westpoint, 404 Md. 455, 477-478 , 947 A.2d 519 , (2008)) (emphasis added) (internal quotation marks omitted). The Court of Appeals has said that a conviction that bears upon a witness’s credibility is one where “the crime itself, by its elements ... clearly identifies] the prior conduct of the witness that tends to show that he is unworthy of belief.” Westpoint, supra, 404 Md. at 484 , 947 A.2d 519 (citing State v. Giddens, 335 Md. 205, 218 , 642 A.2d 870 (1994)). The Court of Appeals has also observed that “a crime [such as cocaine distribution] tends to show that the offender is unworthy of belief’ because it is widely known that a narcotics trafficker “lives a life of secrecy and engages in dissembling in the course of [the crime], being prepared to say whatever is required by the demands of the moment, whether the truth or a lie.” Id. (quoting Giddens, supra, 335 Md. at 217 , 642 A.2d 870 ) (internal quotations omitted).

Although, in a “purely philosophical sense it can be said, understandably, that all violations of the law, by their very nature, involve some element of dishonesty[,] ... certain crimes have little or no bearing on credibility and consequently are not admissible for impeachment purposes.” Id. at 483, 947 A.2d 519 (quoting Giddens, supra, 335 Md. at 215 , 642 A.2d 870 ) (internal quotation' marks omitted). Applying that analysis in West-point, the Court held that a conviction for a third degree sexual offense was not admissible for impeachment of credibility. Id. at 486, 947 A.2d 519 . The Court noted that, even though “an individual who is convicted of a third degree sexual offense usually acts in ‘secrecy,’ that, in an[d] of itself, is not sufficient to render the prior conviction admissible for the purpose of impeachment.” Id.

(citing Morales v. State, 325 ⁴⁶⁵ Md. 330, 339 , 600 A.2d 851 (1992); Lowery v. State, 292 Md. 2, 2 , 437 A.2d 193 (1981)). As the State points out in the present case, neither assault on a police officer nor fleeing a law enforcement officer is a felony or infamous crime. It appears that no Maryland appellate court has addressed whether a prior conviction for the specific crime of assault on a police officer has sufficient relevance to a witness’s credibility that such a conviction should be admissible for impeachment purposes. Maryland courts have, however, addressed the admissibility of convictions for other types of assault.

In holding that the crime of assault and battery had little or no bearing on a witness’s credibility, the Court of Appeals has noted that “ ‘[a]cts of violence ... [,] which may result from a short temper, a combative nature, extreme provocation, or other causes!,] generally have little or no direct bearing on honesty or veracity.’ ” State v. Duckett, 306 Md. 503, 512 , 510 A.2d 253 (1986) (quoting Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967), cert, denied, 390 U.S. 1029 , 88 S.Ct. 1421 , 20 L.Ed.2d 287 (1968)). Similarly, in Fulp v. State, 130 Md.App. 157, 167 , 745 A.2d 438 (2000), we addressed whether the crime of assault with intent to murder was admissible under Rule 5-609. In reaching the conclusion that the conviction was inadmissible to impeach credibility, we explained: [T]he fact that an accused has committed such a crime does not tell us anything about the truth telling propensity of the accused. There is simply no relationship between the disposition to commit such a crime and the disposition to be untruthful....

Because it cannot be said, as a generalization, that persons who are guilty of the crime of assault with intent to murder are likely to be dishonest, trial judges should not admit evidence of such convictions for impeachment purposes. Id. In our view, the rationale of the cases excluding the use of assault convictions for impeachment purposes applies with ⁴⁶⁶ equal force to a conviction for assault upon a law enforcement officer. There is nothing inherent in the elements of the offense that bears directly on the likelihood that the offender would lie under oath.

We reach a similar conclusion with respect to the offense of fleeing from a law enforcement officer. Although there may be some instances when the flight from a police officer is motivated by a desire to avoid the consequences of dishonesty, deception is not an element of the crime, and it cannot be said, as a generalization, that persons convicted of that offense are likely to lie under oath. We hold, therefore, that the circuit court did not err in finding that Bosier’s prior convictions were inadmissible for impeachment purposes.

II

At the conclusion of defense counsel’s cross-examination of Bosier, the trial judge informed the parties that it was his policy not to permit any re-cross examination of any witness: I advise the parties that I do not permit recross after redirect. So if there’s any