Williams v. State

EYLER, Judge. A jury, sitting in the Circuit Court for Baltimore City, found Paul Andrew Williams, appellant, guilty of: Count one, malicious biting with intent to mark or disfigure; Count two, malicious biting with intent to maim, disfigure, or disable; Count three, robbery; and Count four, possession of controlled paraphernalia. The circuit court sentenced appellant to twenty-nine years of incarceration as follows: four years’ imprisonment for Count four; ten years’ imprisonment for Count three, to run consecutively to the sentence imposed for Count four; and, for Counts one and two, two fifteen year terms of imprisonment, to run concurrently to each other and ⁷ consecutive to Counts three and four respectively. Appellant noted an appeal to this Court, wherein he presents six issues for our consideration and resolution. 1.

Did the trial judge err in admitting evidence of the alleged assault’s mental, psychological and behavioral effects upon the victim? 2. Did the trial judge’s refusal to rule on the admissibility of Appellant’s prior convictions before he made his election to testify or remain silent improperly coerce his decision not to testify? 3. Was the evidence insufficient to sustain the conviction for robbery? 4. Was the evidence insufficient to sustain the convictions for malicious biting with intent to mark or disfigure and malicious biting with intent to maim[,] disfigure[,] or disable? 5.

Did the trial judge err when, despite the State’s discovery violation, he refused either to exclude the testimony of the State’s expert witness or to grant a continuance sufficient to enable the defense to find an opposing expert? 6. Must either malicious biting with intent to mark or disfigure or malicious biting with intent to maim, disfigure, or disable be merged? After reviewing the record, we are convinced that the circuit court committed reversible error when it improperly advised appellant that the circuit court would not review, outside of the jury’s presence, the admissibility, for impeachment purposes, of appellant’s prior convictions unless appellant first irrevocably “elected” to waive his Fifth Amendment right against self-incrimination by being sworn in front of the jury. Although we are reversing the circuit court’s judgments as discussed in II infra, we shall address several of appellant’s other contentions in order to guide the trial judge in the event of retrial and to avoid the expense and delay of another appeal.

See Bedford v. State, 317 Md. 659, 668 , 566 A.2d 111 (1989); Midgett v. State, 216 Md. 26, 38 , 139 A.2d 209 (1958). James Caple, the victim of appellant’s attack, testified at trial. Caple, who was running an errand for his daughter on ⁸ September 23, 1994, recounted to the jury what transpired on that morning. Well, I had dropped my, taken my daughter to work, and she had asked me to stop there to pay her cable bill for her.

When I stopped to pay the cable bill, I parked the car maybe three cars away from the cable company, and I walked up to the cable building, and this gentlemen [appellant] was there trying to sell a cable box. So, he asked me [if I wanted to purchase the] cable box. I told him no, and so a couple of more peoples [sic] was walking out at the time. He tried to sell it to them and they wouldn’t buy it.

So what he did is when I moved into the line, I got into the line to pay the bill. It was a lady in between me and him, and he came back around behind where I was, but he couldn’t- get behind me, so he moved to a window where I had to pay the bill at, and he stood there like he was writing something down. And as soon as I walked up to walk out to pay him [the cable company representative], I had the money, the bill in one hand and the bill in the other hand [sic], he walked up, too, but I thought it was somebody who knew one of my sons or something, because he said, give me the money, and I figured it was somebody playing with me, because peoples [sic] is always approaching me, you know, young guys, and then he grabbed me and pushed me, and when he pushed, he had to walk between some ropes, and I fell, and he put his feet on me like to kind of keep me down to get the money from me, and I got up and throwed him off of me, and got up. And when I got up, he started biting me.

He bit me up side of my face and bit my finger, this finger here almost in two, and bit on this, these marks here is where he bit me. I had a mark on my face. And that’s about the size of what he did. As a result of the attack, Caple lost significant use of his ring finger; in fact, he testified that he no longer can wear a ring on that finger.

He testified that he had in his hand $60 to $70, which tore in half during his struggle with appellant; Caple retained one half of the money and appellant the other when bystanders separated them. Over appellant’s objection, Caple ⁹ testified as to the psychological impact on his life caused by appellant’s attack. Other eyewitnesses testified at trial in substantial conformity to Caple’s recitation regarding the aforementioned events. No one testified that appellant, who, in his opening statement alluded to his history of seizures, 1 appeared to be in the throes of a seizure either before, during, or after the attack.

The one expert who testified at trial, Frank Eisenberg, M.D., explained to the jury that organized action (e.g., speech and motor activity) does not take place during a seizure. 2 [I]f you remember[,] the medical definition of a seizure disorder is the disorganized firing of neurological roots in the brain. The one criteria for seizure is that the firing is disorganized. If there’s any activity, if there’s any motor activity or if there’s any behavior, if there’s any speech, if there’s any sort of action directed by speech that even gives a glimmer of being organized, it is not a seizure. No question, no problem, it’s been 20 years that they [the medical community] have been debating this, and there’s no disputes.

Not since 1973 when it was decided in this country that that will not be called a seizure. We shall discuss additional facts as warranted. I. During the motions hearing prior to trial, appellant brought several issues to the circuit court’s attention. One of those ¹⁰ issues pertained to the psychological effect of the attack upon Caple.

The circuit court denied appellant’s motion concerning testimony to be elicited at trial from Caple and his daughter describing the effect of the attack on Caple’s mental and psychological state. At trial, Caple and his daughter testified, respectively, over appellant’s objection, to the impact that appellant’s attack had on Caple’s psyche. The circuit court admitted the evidence based on its conclusion that Maryland Code, Article 27, §§ 386 encompassed mental as well as physical disability. THE COURT: [3]86 is the intent to disable, and it says, or disable and I believe that that’s broad enough to include a mental disability as well as a physical disability.

I have. looked at the annotations, and counsel have not brought my attention to any other annotation. I think the way the statute is written it could include both ph[ys]ical and mental---- Appellant contends that the circuit court’s reading of § 386 was in error and that the circuit court’s ruling on this issue effectively allowed the State to introduce victim impact evidence normally admissible [if at all] only in sentencing proceedings. 3 Appellee, on the other hand, suggests that § 386 could reasonably be interpreted to include mental disability. As a fallback position, appellee submits that any error committed by the circuit court was harmless beyond a reasonable doubt because, among other things, the circuit court instructed the jury that the crime required an intent to cause physical injury; the jury was instructed not to be “swayed by sympa ¹¹ thy, prejudice or public opinion;” and there was overwhelming evidence of appellant’s guilt. Our inquiry begins with an examination of Article 27, § 386.

If any person shall unlawfully shoot at any person, or shall in any manner unlawfully and maliciously attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut or wound any person, or shall assault or beat any person, with intent to maim, disfigure or disable such person, or with intent to prevent the lawful apprehension or detainer of any party for any offense for which said party may be legally apprehended or detained, every such offender, and every person counselling, aiding or abetting such offender shall be guilty of a felony and, upon conviction are subject to imprisonment for not more than 15 years. Finding no explicit or implicit reference to psychic injury in § 386, we turn to cases interpreting that section. Judge Orth, writing for the Court of Appeals in Hammond v. State, 322 Md. 451 , 588 A.2d 345 (1991), concluded that the General Assembly did not change the common law requirement that the maiming, disfigurement, or disablement spoken of in § 386 be permanent. In reaching that conclusion, Judge Orth detailed the legislative and common law history of §§ 384, 385, and 386.

In relevant part, he stated: [SJection 386 is one of a package of three statutes grouped under the subtitle “Maiming” in Article 27. The other two are now codified as §§ 384 and 385. The statutes stem from the early English common law offense of mayhem____ It is apparent on the face of § 385 that it contemplates the old crime of mayhem as broadened by the early English statutes. Section 385 and the English common law after Sir John Coventry’s unpleasant experience speak in terms of the same types of injuries.

Thus, the Legislature has covered the field of mayhem. Section 384 encompasses the old common law crime; § 385 proscribes conduct in terms of the common law offense as broadened; § 386 creates a ¹² new offense of assault with intent to maim, disfigure, or disable.... [T]he intent to maim reflects the crime of mayhem, and the intent to disfigure and the intent to disable, in the context in which they appear, are inexorably bound to that crime. We cannot,conceive that the Legislature, in proscribing an assault with intent to maim, disfigure or disable,thereby divorced disfigure and disable from the crime of maiming [in relation to the permanency requirement]. Id. at 455-59, 588 A.2d 345 .

The common law and statutory history of the maiming statutes, as recounted by the commentators quoted by Judge Orth, makes no reference to psychic injury: all references are to physical injury. Id. at 456-58 , 588 A.2d 345 . Addressing a tangential argument made by the State, and instructive for our purposes, Judge Orth found no merit to the proposition that the disablement may be temporary, as in the case of mental disability or disability under Workers’ Compensation law. Mental disability and disability under the workers’ compensation law have absolutely nothing to do with disablement by maiming, and are of no significance whatever in divining the legislative intent as to § 386---- [T]he State simply avoids any discussion of the steadfast recognition, harking back to the first violent deprivation of the use of those members [of the body] as may render a person less able in fighting, that the deprivation must be permanent.

Id. at 465, 588 A.2d 345 . The State had argued that the concept of disability is common to the law, and the interpretation of such should not be limited to the context of maiming and statutory maiming. Id. at 464 , 588 A.2d 345 . Judge Orth’s reasoning and recitation in Hammond of the common law and statutory history of the maiming statutes, in conjunction with the precept that criminal statutes are to be strictly construed in favor of the accused and against the State, Collins v. State, 89 Md.App. 273, 293 , 598 A.2d 8 (1991), lead us to hold that § 386 requires an intent to cause ¹³ physical injury and that the circuit court abused its discretion when it allowed the State to present evidence at trial of Caple’s psychic injury.

Whittlesey v. State, 340 Md. 30, 87 , 665 A.2d 223 (1995) (“In reviewing objections based on relevance, great deference is afforded the trial judge in regulating the conduct of a trial.”). Caple and his daughter testified at length as to Caple’s psychic injury. In addition, hospital records admitted at trial included statements that Caple made in reference to his mental health. Moreover, although the circuit court did not mention psychic injury when it instructed the jury on this charge, 4 appellant’s counsel, during his closing argument, brought the matter to the jury’s attention, 5 as did the State in its rebuttal argument.

In part, the State made the arguments that follow. She said, the defense attorney told you that this was just a question of, do you believe Mr. Caple’s word or do you believe the defendant’s word. Mr. Caple was paranoid, delusional, depressed prior to this incident. Number one, you heard from his own daughter that his behavior changed significantly since this incident.

That he is afraid of going outside. He no longer drops her off at work. He certainly no longer pays her cable bill. He no longer picks up his grandchildren, and rightly so.... ¹⁴ So there is a reason for this man’s behavior to change after this attack.

There is a reason for him to be afraid to go in public places. There is a reason for him to not to feel safe anymore and to just want to hole up and hide in a corner. We have determined that the aforementioned evidence was irrelevant. It could not aid the jury; it could only improperly influence it or have no effect.

We cannot say that the comments were harmless but, rather, served, from our perspective, to cloud impermissibly the jury’s understanding of the term disable, especially given that assault with intent to disable is a specific intent crime. See Ford v. State, 330 Md. 682, 702 , 625 A.2d 984 (1993). 11(A). Appellant contends that the circuit court’s failure to rule on the admissibility of appellant’s prior convictions for purposes of impeachment before he made an election whether to testify coerced his decision not to testify. This issue must be discussed in context; consequently, we shall quote extensively from the proceedings before the circuit court.

The case was called for trial on June 20, 1995. Counsel for appellant advised the circuit court that counsel had two motions to present and inquired as to whether she should do so after the selection of a jury. The circuit court stated, “I prefer to do everything possible so that when, once the jury process starts, they [the jurors] don’t wait. So, what do you have in mind?” Counsel for appellant then announced that she wanted a ruling as to appellant’s “impeachables, any impeachables that the State has,” and explained to the circuit court that the admissibility of certain crimes would have a bearing on whether appellant elected to testify.

The circuit court then asked counsel for the State if the circuit court was required by law to rule on the matter “before the defendant makes the election [to testify].” Counsel for the State advised the circuit court that it did not have to rule on the motion until after appellant had made an election. On this point, neither ¹⁵ party brought any legal authority to the circuit court’s attention. The circuit court then stated: Well, I know what the rules say. All right.

Then I am going to hold in abeyance that ruling, and I’ll expect each of you to give me some brief memo, nothing big or formal; it can be a page or two. But as far as I know, and I might be wrong, there is no appellate authority that says when the trial judge must conduct that hearing relevant to the defendant’s election. Obviously it has to be made before they’re referred to by counsel in cross or direct. The circuit court continued and stated that it was “inclined” not to rule until after appellant made his election, requested from each side a memorandum on the matter, and deferred ruling until a later time.

The circuit court further stated that it understood why appellant, on the one hand, would want a ruling prior to his election and why the State, on the other hand, would not want appellant to have the benefit of the ruling prior to his election. The circuit court concluded by stating, “It’s a question of fairness and a question of whether there’s been an appellate ruling one way or the other.” On June 21, 1995, the circuit court again referred to appellant’s request for a ruling on the admissibility of his prior convictions and stated: Also, I think the defendant is moving to have the court to determine the admissibility of the defendant’s previous record, parts of it, before the defendant makes the election, and the court’s ruling on that is that the court will not make that, conduct that hearing until after the defendant has made the election. After the defendant has made the election to testify or not testify, if that election is to testify, then the court will hold the hearing out of the presence of the jury to determine the admissibility or inadmissibility of his previous record. Six days later, on June 27, after the close of the State’s case, appellant was advised of his right to testify or to remain silent.

The following colloquy occurred: ¹⁶ THE COURT: You do not have to make your decision now. You don’t have to make that decision until there’s nothing else to do in your case. So, it’s up to you. THE DEFENDANT: I don’t think—I have one question.

THE COURT: Do you want to talk to your lawyer, or— wait a minute. Ask the question, whatever you want to do. (Ms. Gering [counsel for appellant] conferred with the defendant). MR.

CHIU [counsel for the State]: I would proffer what evidence the State has as to impeachable crimes. THE COURT: No. Because I have already ruled that I am not going to conduct that hearing until after the defendant has made an election. MR. CHIU: Your Honor, at this time may I proffer to the defendant what convictions he has?

THE COURT: You can, you can do whatever you want. MR. CHIU: I have true test copies of convictions of theft, arrest date—the dates I am going to give are arrest dates— 5/31/89, theft; September 7th, 1988, theft; March 23rd, 1987, theft; May 14, 1986, theft; April 17, 1986, theft. The circuit court then addressed the defendant as follows: As to which, if any, of those crimes I would say are admissible, or would be admissible, you would not know until after you’ve decided to testify or not testify.

And if you decided to testify, after you have taken the stand, and been sworn as a witness, and given your name, then I will excuse the jury and then I’ll determine which of these prior convictions, if any, will be admissible. Immediately thereafter, appellant and his counsel conferred off the record. Back on the record, appellant’s counsel once again implored the circuit court to “hold that balancing test now so that he [appellant] can make an educated decision as to whether or not he wants to testify.” Although the circuit court acknowledged that it understood appellant’s “concerns,” it stated, nevertheless, that the law did not compel such a hearing and continued, “I think in fairness to the State, that ¹⁷ decision not be made.” The circuit court proceeded to deny the motion, and in support thereof stated that it had balanced all of the equities before it but had not found any authority that compelled it to grant appellant’s request. On June 28, counsel for appellant advised the circuit court that the defense would not call any witnesses and that appellant would make his election.

When the circuit court asked appellant for his decision, appellant informed the circuit court that he had not decided, and explained at some length that he had made a change in his life, that he had been going to college the last four or five years, and that he was supposed to graduate within a month. In relevant part, appellant stated: [I] would like to testify, you know, because maybe I can stress a point to the jury that they didn’t see. But in the same token, I don’t want to be tore [sic] apart and made into a criminal. He went on to point out that, if he had been a criminal in the past, he was not one at the time of trial and that, prior to the arrest that gave rise to the proceedings in question, he had not been arrested since 1986.

The following discussion ensued. THE COURT: M[s]. Gering, have you explained to Mr. Williams the rule that governs the admissibility of previous convictions? MS.

GERING: I talked to him about the balancing test, about the thefts and my hope that it would not be used against him because— THE COURT: And the time limits? MS. GERING: Yes. Fifteen years.

MR. CHIU: Your Honor, as I hear his response, first he said he couldn’t make a decision, but in this little speech there he did say that he did want to testify. I think at this stage we have to assume that he does want to testify. I— MS.

GERING: Wait a minute. THE COURT: No. I’m not making that assumption at all. ¹⁸ MR. CHIU: Well, follow me, though? And at which point I would then tell Your Honor what the impeachables are, and you can make your ruling, and he can change his mind about his election— THE COURT: No. MR.

CHIU:—and once he makes that decision— THE COURT: No. That’s not how I intend to do it. I believe, and I asked counsel for authority before and neither attorney has provided this court with any authority, for the proposition that the court must conduct a hearing before the election or authority for the converse, that the court can conduct the hearing before or after the election, and no authority has been given to the court. I don’t know of any, and I think it’s an open question, and I have put some reasons on the record. My reasons previously, but my decision is that I think the law is that the court has the option of conducting the hearing before the election or after the election.

And my option is to conduct the hearing after the election. And the election would have to be an irrevocable election or the whole issue is pointless. Therefore, the procedure would be, the jury would be called out, the defendant, if he elects to testify, the defendant would take the stand, be sworn, give his name and address, then the jury would be told to go back into the jury room. Then the court would conduct the hearing and the court would then decide which, if any, of the previous convictions are admissible.

Then the jury would be brought back in, the defendant would give his testimony and then be cross-examined. That’s the only [way] that I’m—that’s the way that I’m going to do it. The circuit court then gave appellant additional time within which to review documents that counsel for the State had provided to him relating to his prior convictions. When called upon to make his election, appellant repeated that he was undecided and that the ten minutes provided to him by the circuit court was insufficient for him to make his decision.

The circuit court responded that, “Normally it [the decision to ¹⁹ testify] takes ten seconds,” and then requested counsel for the State to put appellant’s convictions on the record. Counsel for the State complied. May 31st, 1989, theft.... September 7, 1988, misdemeanor shoplifting....

March 23, 1987, auto theft.... April 17, 1986, theft.... May 14, 1986, misdemeanor theft.... April 17, 1986, theft under $300.00.... [A]pril 10, 1986 malicious destruction.... [Fjebruary 15th, 1984, possession of cocaine ...

February 14th, 1984 unauthorized use, which is joyriding and possession of a concealed deadly weapon, to wit, a knife.... The circuit court again inquired as to appellant’s decision. THE DEFENDANT: I’m going to testify. THE COURT: Very well, sir.

Go to the stand and be sworn. Go ahead. THE DEFENDANT: I would like to know which you, what you— THE COURT: I’ve told you that you won’t know until after you start testifying what my decision is. MS.

GERING: He said he would not do the balancing test, Mr. Williams, until you take the stand. But then if you do, he’s saying you have to testify. THE DEFENDANT: Huh? MS.

GERING: If you do, he’s saying you have to testify. We will have the hearing about the balancing, and he may allow all those convictions in, and then you will have to testify at that point.. There will be no backing out at that point is what I’m saying. The record reveals that counsel for the State attempted to provide appellant with greater leeway.

MR. CHIU: I would like to say for the record that once the balancing test is done, M[s]. Gering is advising her client that he then has to testify. We can’t force him to do anything.

I mean, he’s on the stand— THE COURT: I am forcing him to make his election. MR. CHIU: Exactly. ²⁰ THE COURT: And the way that will be done is, he’ll go to the witness stand now, and the jury will come out, and then he will be given the oath and he will be sworn and give his name and address. The jury will see he’s elected to testify, and then out of the presence of the jury, we’ll conduct this hearing.

MS. GERING: Your Honor, he then is saying he’s forced to testify. You’re saying he has the right to—to— MR. CHIU: After that, he can do anything he wants.

THE COURT: I am saying— MS. GERING: Based upon your decision— THE COURT:—once he has said he is going to testify, and he takes the witness stand and he’s sworn, then he’s going to be a witness. No one’s forcing him to do that. He’s elected to do that.

MS. GERING: The problem is, he’s not making an informed decision based on what he knows is going to happen. And it’s— THE COURT: Exactly. I am ruling he cannot make an— he—I’m ruling he does not have the legal right to make an informed decision.

All he’s entitled to know is, what everybody else knows, and that is what the law is, what his convictions are, and what the court can do and what the court cannot do, and what thé court might do and might not do. And he knows all of that now. MS. GERING: Can I state something for the record?

THE COURT: Sure. MS. GERING: That we’re objecting to that decision by Your Honor, because it obviously infringes on his right against self-incrimination. THE COURT: M[s], Gering— MS.

GERING: Against his right to make— THE COURT: M[s]. Gering, we’ve— MS. GERING:—a decision. THE COURT:—going over this ten times.

You maintain that the court must or should conduct the hearing before ²¹ the defendant’s election. I have ruled against you. We’ve been over that. MS.

GERING: I’m just preserving the record, Judge. THE COURT: Okay. And now I’m saying again what must be for the fifth or sixth time, I want the defendant to make his election now. I’ll conduct a hearing after he has made his election.

So he can decide to testify or not testify. Yes? THE DEFENDANT: If I took the stand, Your Honor, will be able to say what I want to say, would I be able to just speak? THE COURT: Oh, no, sir.

THE DEFENDANT: Or would I just be cross[-]examined by the State? THE COURT: No, sir. You’ll be like, you’ll be like every other witness. You will not be able to volunteer any information.

Your lawyer will ask you questions, and then the State will ask you questions, and I might or might not ask you questions. And the jury might ask questions. You’ll be like any other witness on the stand. THE DEFENDANT: Are you saying I can’t voluntarily speak— THE COURT: Correct.

THE DEFENDANT:—to the jury and— THE COURT: Correct. You cannot. You have an attorney and either you or your attorney speaks to the jury, but not both. THE DEFENDANT: Well, if I can’t voluntarily speak, then I wish not to take the stand.

I thought that I would be able to explain in my version as far as I can tell from the records of what happened in this situation, but— THE COURT: You will be able to answer all of the questions that your lawyer asks you subject to the right of the State to object. If, if she asks you a question and the State doesn’t object, you can answer. If she asks you a question and the State objects and I overrule the objection, ²² you can answer. If she asks you a question and the State objects and I sustain the objection, you will not have to answer.

You will not be able to answer because she will not be able to ask the question. If a juror or alternate asks a question, we go through the same process. They’ll ask you the question, either lawyer can object. If I sustain an objection; no question; if I overrule the objection, then you have to answer.

So, you’re like any other witness once you get on that witness stand, but you cannot just start speaking and give a talk from the witness stand. THE DEFENDANT: May I speak to my attorney? THE COURT: Absolutely. Go ahead.

Talk to your lawyer. (Pause while defendant conferred with M[s]. Gering). THE COURT: Are you still conferring with your lawyer?

THE DEFENDANT: I’ve decided I’m not going to take the stand, Your Honor, because I might— THE COURT: Stand up, please, sir. THE DEFENDANT:—I might—I’ve decided not to take the stand because I don’t want to be made up as a monster that I’m not. You know, I’m trying to be a productive person in society, and I got involved in this incident, and I don’t want to do anything to throw my life away, you know. 11(B). We begin our analysis by examining Maryland Rule 5-609(a), which governs the admissibility of prior convictions for purposes of impeachment of any witness.

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. ²³ Other subsections of the Rule provide further constraints on the admissibility of prior convictions. Most notably, if more than fifteen years has passed since the date of the conviction or if the conviction is not final, it is not admissible. Md. Rule 5—609(b). In other words, if the conviction is final and occurred within fifteen years, and if the crime was an infamous crime or a crime relevant to the witness’s credibility, the trial judge must weigh the probative value of the evidence against the danger of unfair prejudice. 6 The Court of Appeals, in Jackson v. State, 340 Md. 705 , 668 A.2d 8 (1995), discussed the probative-prejudice weighing process required under Rule 5-609.

The Court’s specific holding was that the decision to permit “same-crime impeachment [i]s within the trial court’s discretion, and that prior convictions for offenses that are similar or identical to the charged crime are not per se inadmissible.” Id. at 707-08 , 668 A.2d 8 . The trial court had denied the defendant’s motion in limine with respect to his prior theft conviction, and ruled that if the defendant elected to testify at trial, the prior theft conviction would be admissible for purposes of impeachment under Rule 5-609. Id. at 709 , 668 A.2d 8 . The defendant did testify, and evidence of the prior theft conviction was admitted.

The Court of Appeals observed that Rule 5-609 was derived from Federal Rule of Evidence 609 and Maryland Rule 1-502. Id. at 712 n. 4, 668 A.2d 8 . Acknowledging that the Maryland Rule differs from the Federal Rule in some material respects, the Court emphasized that both rules impose the same requirement that the trial judge engage in a balancing process to determine whether the probative value of the conviction outweighs its prejudicial effect. Id. at 716 , 668 A.2d 8 .

In light of the similarity of the Maryland and Federal ²⁴ rules, the Court reviewed Federal cases interpreting the Federal rule for guidance in interpreting the balancing prong of the Maryland rule. Id. The Court cited United States v. Mahone, 537 F.2d 922, 929 (7th Cir.), cert. denied, 429 U.S. 1025 , 97 S.Ct. 646 , 50 L.Ed.2d 627 (1976), as an example of the guidelines that numerous courts across the country have adopted. Jackson, 340 Md. at 717 , 668 A.2d 8 .

The Jackson Court identified five factors: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant’s testimony; and (5) the centrality of the defendant’s credibility. Id.; see 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); Mahone, 537 F.2d at 929 . The Jackson Court was quick to point out that those “factors should not be considered mechanically or exclusively... they may be a useful aid to trial courts in performing the balancing exercise mandated by the [Maryland] Rule.” Jackson, 340 Md. at 717 , 668 A.2d 8 . In addition, the Jackson Court quoted that portion of the Mahone opinion wherein the U.S. Court of Appeals for the Seventh Circuit set forth the reasoning undergirding the recommended procedure to be followed.

In the future, to avoid the unnecessary raising of the issue of whether the judge has meaningfully invoked his discretion under [Federal] Rule 609, we urge trial judges to make such determinations after a hearing on the record ... and to explicitly find that the prejudicial effect of the evidence to the defendant will be outweighed by its probative value. When such a hearing on the record is held and such an explicit finding is made, the appellate court easily will be able to determine whether the judge followed the strictures of [Federal] Rule 609 in reaching his decision. Mahone, 537 F.2d at 929 , quoted in Jackson, 340 Md. at 717, 668 A.2d 8 . The rationale set forth above comports fully with the current rule in Maryland “governing impeachment by evi ²⁵ dence of conviction of a crime,” whereby the trial judge is required to “weigh the probative value against the unfair prejudice for all convictions used to impeach credibility.” Id. at 713 , 668 A.2d 8 .

The weighing process must be done prior to ruling on admissibility and, if the trial judge is presiding over a jury, out of the presence of the jury. Id. at 714 , 668 A.2d 8 , citing Beales v. State, 329 Md. 263, 270 , 619 A.2d 105 (1993). Because all convictions used to impeach credibility, including those historically deemed to be admissible per se, are subject to the procedures set forth in Jackson , it follows that all bases for objecting to the admissibility of convictions are also subject to the procedure. Specifically, the applicability of the procedure is not limited to an objection that the prior conviction was unconstitutionally obtained. 7 Having determined the procedure to be followed, we next consider when a trial judge should employ that procedure. ²⁶ Our inquiry begins with Maryland Rules 725 and 736.

Maryland Rule 736, which became effective on January 1, 1977, was the successor to former Rule 725. 8 In pertinent part, both rules provided that any defense or objection that is capable of determination without the trial of the general issue may be raised before trial by motion. The Rules also provided that “a motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue .... ” Rule 725(d)(4) and Rule 736(c). Through Judge Orth, we discussed former Rule 725 in Johnson, wherein he stated: Of course, any objection capable of determination without the trial of the general issue may be raised before trial by ²⁷ motion. Rule 725 b.

Thus, the defendant may challenge, before trial, the admissibility of any prior convictions, which the State intended to offer if he took the stand, by a motion to exclude them stating the reasons therefor, and have a determination prior to trial, unless the court orders that it be deferred for determination at the trial of the general issue. Such determination by hearing prior to trial would afford the defendant the opportunity of knowing what prior convictions would be admitted against him and could be of benefit to him in his decision whether or not to testify in the trial on the merits. It would also tend to make for a more orderly procedure at the trial which could proceed without interruption for a determination of such issue. The procedure at a hearing before trial would be the same as that during trial.

Johnson, 9 Md.App. at 178-79, 263 A.2d 232 (footnote omitted). Current Maryland Rule 4-252(a) is the successor to Rule 736. Subsection (a), not germane here, provides that certain matters shall be raised by motion and, if not so raised, are waived unless the circuit court, for “good cause” shown, orders otherwise. Subsections (d) and (g), which are particularly relevant to the instant discussion, provide as follows. 9 (d) Other Motions.—A motion asserting failure of the charging document to show jurisdiction in the court or to charge an offense may be raised and determined at any time.

Any other defense, objection, or request capable of determination before trial without trial of the general issue, shall be raised by motion filed at any time before trial. (g) Determination.—Motions filed pursuant to this Rule shall be determined before trial and, to the extent practicable, before the day of trial, except that the court may defer ²⁸ until after trial its determination of a motion to dismiss for failure to obtain a speedy trial. If factual issues are involved in determining the motion, the court shall state its findings on the record. Maryland Rule 4-252 parallels Federal Rule of Criminal Procedure 12.

Kohr v. State, 40 Md.App. 92, 98 , 388 A.2d 1242 , cert. denied, 283 Md. 735 (1978). Because of the similarity between the two rules, the interpretations and applications of the Federal Rule have added significance for us. See Jackson, 340 Md. at 716 , 668 A.2d 8 . Federal Rule of Criminal Procedure 12, 10 in pertinent part, provides: (b) Pretrial Motions.- Any defense, objection, or request, which is capable of determination without the trial of the general issue may be raised before trial by motion....

(e) Ruling on Motion. A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no such determination shall be deferred if a party’s right to