Watson v. State

COLE, Judge. We granted certiorari in this case to decide whether the trial judge erred in concluding that he had no discretion to exclude the defendant’s prior attempted rape conviction when it was offered for impeachment purposes notwithstanding the fact that the judge found that the conviction’s probative value was outweighed by its prejudicial effect. The parties have agreed to the following facts. James Watson was charged in the Circuit Court for Montgomery County with rape and lesser included offenses.

Prior to his jury trial, Watson asked the court to rule on whether his ³⁷² 1982 Virginia attempted rape conviction and a prior theft conviction would be admissible to impeach his testimony. The trial judge ruled that both of Watson’s prior convictions were admissible. He found that both convictions were for infamous crimes and, as such, were always admissible for impeachment purposes. As to the admissibility of Watson’s attempted rape conviction, however, the trial judge stated emphatically that, had he been vested with the discretion to exclude it, he would have done so because he unequivocally found that its probative value was outweighed by its prejudicial effect.

At trial, Watson testified on direct examination that although he did, in fact, have intercourse with the complainant, the intercourse was consensual. At the close of Watson’s direct testimony, the State informed the court that it intended to introduce Watson’s prior convictions on cross-examination. The State further noted its contention that, even if the trial judge had the discretion to exclude Watson’s attempted rape conviction, he should not do so because the conviction’s probative value outweighed its prejudicial effect. The trial judge reiterated his pretrial conclusion that the probative value of Watson’s attempted rape conviction was outweighed by its prejudicial effect.

Nevertheless, the judge ruled that both of Watson’s prior convictions were admissible, stating: “If I am in error on this matter, ... I state strongly, affirmatively, positively and without equivocation that [the attempted rape conviction] is prejudicial and the case should be reversed.” Watson was cross-examined as to both his Virginia attempted rape conviction and his prior theft conviction without objection by defense counsel. 1 ³⁷³ The jury found Watson guilty of first degree attempted rape, and he appealed to the Court of Special Appeals. The Court of Special Appeals affirmed Watson’s conviction. Watson v. State, 68 Md.App. 168 , 510 A.2d 1094 (1986).

We granted certiorari to consider the important question presented. On appeal, Watson makes two basic arguments: first, he argues that attempted rape is not an infamous crime within the meaning of the Maryland Code (1974, 1984 Repl.Vol.), § 10-905 of the Courts and Judicial Proceedings Article; second, he argues that even if attempted rape is an infamous crime, the trial judge still had the discretion to exclude it under the circumstances sub judice because its probative value was outweighed by its prejudicial effect. The State, on the other hand, argues that attempted rape is an infamous crime and, as such, is automatically admissible for impeachment purposes. We agree with Watson that his prior attempted rape conviction is not an “infamous crime” within the meaning of § 10-905 and, thus, that the trial judge erred in not exercising his discretion to exclude this prior conviction when he found that its probative value was outweighed by its prejudicial effect.

We explain. ³⁷⁴ Section 10-905, which governs the admissibility of prior convictions for impeachment, provides that “[e]vidence is admissible to prove the ... fact of [a witness’s] conviction of an infamous crime.” Maryland Code (1974, 1984 Repl. Vol.), § 10-905 of the Courts and Judicial Proceedings Article. Our most recent opinion addressing the statute is Prout v. State, 311 Md. 348 , 535 A.2d 445 (1988). In Prout , the defendant, on trial for assault and robbery with a deadly weapon, was not permitted to use the victim’s prostitution and solicitation convictions to impeach her testimony.

On appeal, the defendant argued that the trial court erred in excluding the evidence because prostitution and solicitation were crimes of moral turpitude and, as such, were always admissible for impeachment purposes under § 10-905. We disagreed. We began our analysis of the case by tracing the legislative history of § 10-905. We discovered that the statute was originally enacted to ameliorate the harsh common law rule which disqualified those individuals convicted of infamous crimes from testifying before judicial tribunals.

Prout, 535 A.2d at 450 . We further observed that, in enacting the statute, the legislature chose to make those crimes that disqualified a witness from testifying at common law available for impeachment purposes. Id., 535 A.2d at 450 . We thus concluded that the convictions admissible under § 10-905 are “those that were infamous, and thereby rendered a person incompetent to testify, at common law.” Id.

Applying this rule to the case sub judice, we must determine whether attempted rape is a crime that was infamous, and thus, rendered an individual incompetent to testify at common law. If it was, then the trial