Williams v. State

³⁴⁵ Arthur, J. Appellant Harold Eugene Williams had an altercation with his girlfriend, Angela Swan, after reading a series of text messages between her and other men. An Anne Arundel County jury convicted Williams of second-degree assault, but he was acquitted of first-degree assault, reckless endangerment, a number of weapons offenses, and posting revenge porn in violation of Md. Code (2002, 2012 Repl. Vol., 2016 Supp.), § 3-809 of the Criminal Law Article. In Williams’s timely appeal, he complains of the trial court’s admission of his prior conviction for battery on cross-examination of his character witnesses and of the court’s response to a jury question.

Finding no error or abuse of discretion, we affirm. FACTUAL AND PROCEDURAL HISTORY 1 Williams and Swan were involved in an intimate relationship from 2012 to October of 2015. Although they did not live together, Swan had a key to Williams’s house, often stayed overnight, and kept her belongings there. Swan testified that in the last few months of their relationship they had argued frequently.

On October 23, 2015, Swan stayed at Williams’s house at his request. The next morning, while Swan was in the bathroom, wearing only a shirt, her cell phone started ringing. Williams was near her phone at the time. He noticed a text message from a man whom Swan had denied knowing only days earlier.

Williams read the man’s text messages, along with messages from three other men. He saw that Swan had sent a nude photograph to someone. Williams grabbed Swan’s cell phone and confronted her in the bathroom. ³⁴⁶ Swan claimed that Williams called her a “bitch,” accused her of cheating on him, shoved her against the bathroom wall, threw her phone towards her, hit her upper body, pushed her to the floor, and kicked her while she was on the floor on her back, all the while demanding that she leave. According to Swan, she said that she would leave, and Williams backed away, but continued yelling at her.

After a few moments, she went upstairs to gather her clothes and belongings. She claimed that Williams threw her pants down the stairs and held a gun to her head while he was using her phone to tell someone to come and get her before he killed her. She also claimed that he pushed her down the stairs as she begged him to let her leave. After Williams allegedly pushed her into a closet and took her purse, she claimed that she was able to escape, with a towel wrapped around herself, and with some of his possessions (which she said she intended to trade for hers).

She said that she found her pants and some of her belongings outside of the house. After the confrontation, Swan drove to a nearby convenience store to call 911. She told the operator that Williams had attacked her and held a gun to her head, but that she did not need medical attention. A police officer arrived.

He spoke to Swan, who was “visibly upset,” “shaking,” and “crying a lot.” She told the officer that Williams had physically assaulted her, pulled a gun on her, and pushed her down the stairs. The officer requested emergency medical services, but Swan refused treatment. 2 The officer went to Williams’s house and retrieved Swan’s phone. After he returned it to her, Swan received a call on her cell phone from a friend. The friend told Swan to check her Facebook account because nude photographs of her had been posted on her Facebook page.

The officer showed Swan how to delete the posting. ³⁴⁷ Testifying in his own defense, Williams denied punching or kicking Swan or threatening her with a gun. He claimed that after looking at the information in her phone and discovering evidence of her infidelity, including the nude picture that she had sent to another man, he had ordered her out of his house. He admitted that he had "tried to grab the towel" that she had around her waist and that he "tried to push her out the front door." Williams denied that he owned a gun. Williams called Arkina Taylor, his former neighbor, as a character witness.

Taylor said she had known Williams for ten years and that he was her "best friend." Taylor offered her opinion that Williams was a "hard-working fun-loving guy that just likes to have a good time." She testified that he had a reputation in the community as being a "[pleaceful" person and that she had "never" seen him with a firearm or become violent. When given the opportunity to cross-examine Taylor, the State asked to approach the bench, and the following colloquy occurred: [STATE]: Now that she has said he's a peaceful person- [COURT]: Uh-huh. [STATE]: -the State is entitled to rebut that by asking her if she's aware that he has a prior conviction for battery.[ 3 ] [COURT]: Uh-huh. I think you are, too. Do you want to say anything about it? [DEFENSE COUNSEL]: I do.

I think that the State should not be allowed to do that. If the State knew the specific facts of what that battery is, they- ³⁴⁸ [COURT]: Well, why would that be, because I don’t think the State is allowed to get into the facts; all they’re allowed to do is ask that single question. Remember, they’re not allowed to say or ask for their— [DEFENSE COUNSEL]: I would think at this point, that they’re referring to a conviction back in 1990 and I think it’s certainly more prejudicial than probative and I don’t think the State should be allowed— [STATE]: It is 1990, Your Honor. [COURT]: 1990. If she’s known him for 10 years— [STATE]: But they’re—it’s her best friend, so it’s very relevant if she [sic] ever told him if she is aware of his prior convictions— [COURT]: Uh-huh. [STATE]: —that he’s a peaceful and non-violent man.

I mean it’s completely relevant, Your Honor. [THE COURT]: Uh-huh. I think it is, too. [DEFENSE COUNSEL]: And I would just argue that this is a conviction that dates back 25 years. [THE COURT]: Uh-huh. [DEFENSE COUNSEL]: It dates a full 16 years prior to her knowing him. [THE COURT]: Does that make any difference? [DEFENSE COUNSEL]: I think it does. I think it’s certainly more prejudicial than probative. [COURT]: Well, here’s the problem I’m having and maybe you can help me with this; there’s a difference between admitting it (indiscernible—10:52:04) and admitting it because it may not be a true fact, if he’s always been a peaceful man, right? [DEFENSE COUNSEL]: Uh-huh. [THE COURT]: And I think the State is trying to get it in to show that he’s not peaceful. And so there’s no requirement that it did not date back to at least—you know, even in 15 years. ³⁴⁹ [DEFENSE COUNSEL]: I think there is.

I specifically-asked whether or not, based upon her knowledge of him and the length of time that she knew him, that he was peaceful, and based upon that, her knowledge, and those ten years of his reputation in the community, I think unless the State has some other hinge of evidence that he’s gotten a reputation, based upon that past prior for being not peaceful or being violent, it shouldn’t be allowed. ⅜ * ⅜ * [STATE]: They opened the door. They put his peacefulness in evidence. [THE COURT]: Uh-huh. [STATE]: Whether—and I’m not going to do this—first off, I do it (indiscernible—10:53:03) how well she knows him, because if she doesn’t know about this, then she really doesn’t know him that well, and if she does know about this, then he’s not a peaceful—his reputation is in question. They’ve completely opened this door— [COURT]: I think it comes in and the [State] will be entitled to say, knowing that, does that change your opinion of his peaceful character. Over a defense objection, the State asked Taylor if she was aware of Williams’s prior conviction for battery and, if she was not, whether this knowledge would cause her to change her opinion of him.

She answered “no” to both questions. 4 After the court had permitted the State to impeach Williams’s first character witness with evidence of his 1990 conviction for battery, Williams called two more character witnesses: Dana Webb, a former girlfriend; and Kamran Jones, a coworker. They had known Williams for six and 15 ³⁵⁰ years, respectively. They testified that Williams had a reputation for peacefulness and that they had never seen him with a firearm or become violent. On direct examination, Williams’s attorney asked both of them whether they knew of Williams’s 1990 battery conviction and, if they did not, whether it would change their opinion of him.

Both said, “no.” The State revisited that topic on cross-examination, and the witnesses reiterated their earlier answers. At the end of the State’s case-in-chief, the court granted a motion for judgment of acquittal on the charge of posting revenge porn. The State entered a nolle prosequi on the charge of use of a handgun in a felony. The court submitted the remaining counts to the jury.

The jury returned a verdict of guilty on the second-degree assault count and acquitted Williams of the four remaining counts. The court imposed a sentence of three years’ imprisonment, with all but six months suspended, to be followed by two years of probation. Williams filed this timely appeal. QUESTIONS PRESENTED Williams presents two issues on appeal, which we quote: 1.

Did the trial court abuse its discretion by allowing the State to ask a witness about Mr. Williams’s prior battery conviction? 2. Did the trial court abuse its discretion by failing to give a complete response to jurors’ question about second-degree assault? For the reasons that follow, we answer both questions in the negative. Consequently, we shall affirm Williams’s conviction.

DISCUSSION I. The Admission of Williams’s Prior Conviction for Battery In general, “evidence of a person’s character or character trait is not admissible to prove that the person acted in ³⁵¹ accordance with the character or trait on a particular occasion.” Md. Rule 5-404(a)(l). In a criminal case, however, “[a]n accused may offer evidence of the accused’s pertinent trait of character.” Md. Rule 5—404(a)(2)(A). “If the evidence is admitted, the [State] may offer evidence to rebut it.” Id. In Michelson v. United States, 335 U.S. 469, 479 , 69 S.Ct. 213 , 93 L.Ed. 168 (1948), the Supreme Court explained: “The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.” If a defendant’s character witness is unaware of information bearing on the defendant’s character, “the jury may doubt whether [the witness] is capable of giving any very reliable conclusions as to [the defendant’s] reputation.” Id. at 483, 69 S.Ct. 213 . Williams contends that his prior conviction was “too remote in time to be relevant.” Alternatively, he contends that its probative value was substantially outweighed by the danger of unfair prejudice.

We disagree that the court erred or abused its discretion in permitting the State to question the character witnesses about the conviction. 5 A. Relevance A court may admit relevant evidence, but it has no discretion to admit evidence that is irrelevant. Smith v. State, 218 Md.App. 689, 704 , 98 A.3d 444 (2014). A ruling that ³⁵² evidence is legally relevant is a conclusion of law, which we review de novo. See id.

A prior conviction is relevant to impeach character testimony if it “impugns the particular character trait or traits in issue.” State v. Watson, 321 Md. 47, 55 , 580 A.2d 1067 (1990). Williams relies on Watson to establish that his prior conviction was “too remote in time to be relevant” on cross-examination of his character witnesses. Watson is inapposite. In Watson , the defendant was charged with first-degree murder.

Id. at 49 , 580 A.2d 1067 . In his defense, he “called eight character witnesses, all of whom testified to their opinions as to [his] peaceful and non-violent character.” Id. at 50 , 580 A.2d 1067 . The State countered by cross-examining the character witnesses about their knowledge of the defendant’s prior conviction for second-degree rape. The circuit court allowed the cross-examination over the defendant’s objection that the offense “did not involve force” and that “the conviction was for having sexual intercourse with a consenting 13-year-old girl.” Id. at 51 , 580 A.2d 1067 .

On appeal, the Court concluded that the circuit court erred in allowing the State to use the conviction for second-degree rape in cross-examining the character witnesses, because “having sexual intercourse with a consenting 13-year-old girl [bore] little, if any, relationship to the defendant’s character for peacefulness and non-violence.” Id. at 56 , 580 A.2d 1067 . 6 Because the prior conviction was irrelevant to the character trait at issue, the Watson Court did not consider whether the conviction for second-degree rape was “too remote in time to be relevant.” In reaching its decision, the Watson Court referred to a multi-volume treatise on federal evidence, which, the Court said, “suggest[s]” that the trial judge should take the following ³⁵³ steps when the State seeks to cross-examine a character witness about a defendant’s prior misconduct: 1) determine that there is a good faith basis for the inquiry; 2) determine that the acts or events about which the [State] proposes to inquire are relevant to the particular character trait testified to by the witness on direct examination; 3) determine that the acts are not too remote in time to be relevant cross-examination of the character witness-, 4) reject any inquiry where the prejudicial effect outweighs the probative value; and 5) if requested, instruct the jury that the purpose of the question is only to test the basis for the character witness’ testimony. Id. at 54 , 580 A.2d 1067 (quoting 2 David W. Louisell & Christopher B. Mueller, Federal Evidence § 138, at 152 (1985)) (emphasis added). Nonetheless, Watson did not explore when a conviction is “too remote in time to be relevant” on cross-examination of character witnesses. Nor has any subsequent Maryland decision.

Williams himself offers no guidance as to when a defendant’s conviction might be so old and stale that, as a matter of law, it is irrelevant to impeach a witness’s testimony about a defendant’s character. Instead, Williams concedes that, “there is no hard-and-fast time limit for convictions to be subject to cross-examination of a character witness.” 7 Although Williams cites no authority besides the dicta in Watson , we have examined the treatises of Professor McLain, Judge Murphy, Judge Weinstein, McCormick, and Wigmore to see if they shed any light on when a conviction might be so ³⁵⁴ remote that it becomes legally irrelevant for purposes of impeaching a character witness’s credibility. None do. McCormick does, however, state that “most courts” adopt the “practical solution” of “accept[ing] testimony about reputation as of any pretrial time period which the judge in his discretion finds is not too remote.” McCormick on Evidence § 43, at 282-88 (7th ed. 2013).

Similarly, in Michelson, 335 U.S. at 484 , 69 S.Ct. 213 , the Supreme Court wrote that “[t]he court, in its discretion, may well exclude inquiry about rumors of an event so remote, unless recent misconduct revived them.” In other words, although some convictions might be so old that they no longer have any conceivable bearing on the character of the person whom the defendant has become (see, e.g., Victor Hugo, Les Miserables (1862)), the question of whether a conviction is too remote to be used to impeach a character witness’s testimony is typically one for the trial court, in its discretion, to resolve. State v. Cummings, 332 N.C. 487 , 422 S.E.2d 692, 703 (1992) (it is within the sound discretion of the trial judge to determine whether a past