Turner v. State

Weant, J., delivered the opinion of the Court. On 7 and 8 June 1982, the appellant, Ernest Turner, was tried by a jury in the Criminal Court of Baltimore wherein he was acquitted of the charge of assault with intent to maim and convicted of assault. On 2 July 1982, he was sentenced to a term of ten years, promptly generating this appeal with the following questions being presented: 1. Did the trial court err in prohibiting Appellant from explaining that a prior conviction was the result of a guilty plea? 2.

Did the court’s instructions to the jury contain plain error material to Appellant’s rights? 3. Did the trial court err in imposing sentence for an offense of which Appellant had not been convicted? 4. Was the evidence insufficient to sustain Appellant’s conviction? 1. During cross-examination of the appellant, the prosecutor extracted from the appellant the fact that he had previously been convicted of robbery.

On re-direct examination of the appellant by his counsel, the following colloquy occurred: BY MR. QUISGARD: Q When you were 16, you pled guilty to that robbery or have a trial? MR. SCHER: Objection, Your Honor.

THE COURT: I’ll sustain the objection. Strike it. MR. QUISGARD: Your Honor, for the record, let’s approach the bench.

(Whereupon, counsel approached the bench and the following conference ensued:) MR. QUISGARD: He’s the proud possessor of the certified copy of the docket entry. It says he pleaded guilty. ³⁶⁹ MR. SCHER: I am going to ask — Mr. Quisgard knows it’s properly admissible.

THE COURT: The only question, it’s a conviction. Doesn’t make a difference whether it’s a guilty plea. MR. QUISGARD: It bears on his credibility.

He did wrong and admitted it. MR. SCHER: You can’t go beyond the conviction. Turner now professes that this ruling was error on the part of the trial judge.

He argues that, because the witness’ prior conviction was introduced for the purpose of impeaching his credibility, he is entitled to counteract this attack by evidence establishing good character. Defense counsel contends that "If Appellant had admitted his involvement in the prior offense by pleading guilty in those proceedings, that fact would certainly go toward establishing his good character for truth.” We do not see things that way. Had the trial judge allowed the proposed question regarding the guilty plea to be answered, we might in this case be faced with the doctrine of "curative admissibility” discussed in the matter of Robinson v. State, 53 Md. App. 297 , 452 A.2d 1285 (1982). Nonetheless, we think the quote in Robinson, taken from Middleton v. United States, D.C. App., 401 A.2d 109 (1979), to be apposite.

This Court said in considering Middleton, supra, 53 Md. App. at 305, that 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” .... [Emphasis in original.] The Court went on to say in Middleton, supra, 401 A.2d at 126 , that: The fact and circumstances of appellant’s guilty plea to an unrelated prior offense have little if any bearing on the issue of his present credibility. Trial ³⁷⁰ counsel’s transparent attempt to use appellant’s self-serving explanation of the previous episode to buttress his account of the instant robbery was improper. Admittedly, the defendant is privileged to explain the circumstances of a conviction, so long as he does not attempt to show he was not guilty of the offense after he had been impeached by evidence of a prior conviction. Brooks v. State, 24 Md. App. 334, 343 , 330 A.2d 670 , cert. denied, 275 Md. 746 (1975).

However, there is no explanation contained in a guilty plea. The circumstances are not even mentioned. Obviously, the appellant is trying to establish the illusion that he always pleads guilty when, in fact, he is guilty and, of course, would have