Jackson v. State

BELL, Judge,

dissenting.

The issue this case presents is whether a defendant’s prior convictions 1 for theft and theft related offenses are admissible *723to impeach that defendant when he or she is on trial for theft. Stated more particularly, the question is whether the probative value of the prior convictions outweighs their prejudicial effect. The majority affirms the appellant’s convictions, holding that the trial court did not abuse its discretion by permitting the State to use his prior theft and theft related convictions to impeach the appellant, who is on trial for theft. In the process, the majority observes that prior convictions similar to the conviction on trial are not “per se inadmissible.” 340 Md. 705, 714, 668 A.2d 8, 13 (1995). Because I believe the majority’s analysis is fatally flawed, I dissent.

The appellate courts of this State have long recognized, and been sensitive to, the risk of prejudice that the admission, for impeachment purposes, of prior convictions against a defendant presents. See e.g. Ricketts v. State, 291 Md. 701, 703-4, 436 A.2d 906, 907-8 (1981); Bane v. State, 73 Md.App. 135, 142, 533 A.2d 309, 313 (1987), citing Burrell v. State, 42 Md.App. 130, 399 A.2d 1354 (1979). That danger is that a jury likely may infer from a prior conviction that the defendant is guilty of the crime for which he or she is presently on trial. Ricketts, 291 Md. at 703-04, 436 A.2d at 907-08; Bane, 73 Md.App. at 142-43, 533 A.2d at 313; Burrell, 42 Md.App. at 136, 399 A.2d at 1357. The risk of prejudice is increased significantly, our courts recognize, when the prior conviction is similar, or identical, to the crime on trial. See Woodland, 337 Md. at 526-27, 654 A.2d at 1317-18; State v. Giddens, 335 Md. 205, 221, 642 A.2d 870, 878 (1994) (quoting Prout v. State, 311 *724Md. 348, 364, 535 A.2d 445, 453 (1988) (“[an] important factor to remember is that a prior conviction which is similar to the crime for which the defendant is on trial may have a tendency to suggest to the jury that if the defendant did it before he probably did it this time”)); Ricketts, 291 Md. at 703, 436 A.2d at 908 (“where the crime for which the defendant is on trial is identical to or similar to the crime for which he has been previously convicted the danger is greater, as the jury may conclude that because he did it before he most likely has done it again”); Dyce v. State, 85 Md.App. 193, 200, 582 A.2d 582, 585-86 (1990) (“in the case before us, the crime for which appellant was already on trial is virtually identical to the crime for which he has been previously convicted. Under these circumstances, admission of the prior conviction constituted a clear abuse of discretion by the trial judge ...”); Carter v. State, 80 Md.App. 686, 694, 566 A.2d 181,135 (1989) (the court observed that where the charged crime and the crime for which the defendant previously had been convicted were not similar, the “evidence had no tendency to suggest to the jury that appellant was repeating a crime he had committed in the past”); Bane, 73 Md.App. at 142, 533 A.2d at 313 (“prejudice is especially dangerous when the earlier crime is similar to that for which the defendant is currently being tried”).

Prior to January 1, 1992, infamous crimes2 were per se admissible. See Maryland Code (1973, 1989 Repl.Vol.) § 10-905(a) of the Courts & Judicial Proceedings Article3; Prout, *725311 Md. at 363, 535 A.2d at 452. It was not required that the trial judge weigh the probative value of the infamous crime against its prejudicial effect. That was required only in the case of crimes that were not infamous, but which otherwise had an effect on credibility. See Prout, 311 Md. at 363, 535 A.2d at 452. Thus, no matter how great the risk of prejudice the admission of a prior conviction of an infamous crime presented, when the conviction was a final one and offered by the State to impeach the defendant, the trial judge had no discretion to deny its admission. Wicks v. State, 311 Md. 376, 383, 535 A.2d 459, 462 (1988).

Adopted November 1, 1991, to take effect January 1, 1992, Maryland Rule 1-502 significantly impacted the admissibility of convictions for infamous crimes; in fact, after its promulgation, a final conviction of an infamous crime was no longer per se admissible. See Giddens 335 Md. at 213-14, 642 A.2d at 874; Beales, 329 Md. at 270-73, 619 A.2d at 109-110. Almost identical to its predecessor, Maryland Rule of Evidence 5-6094 contains a per se exclusion provision, § (b), *726pursuant to which ail prior convictions for crimes which otherwise would impeach a witness, but which are more than 15 years old, are inadmissible. Moreover, all of the prior convictions sought to be admitted to impeach a witness are made subject to a balancing of the probative value admission of the conviction has against its prejudicial effect. Maryland Rule 5r-609 was promulgated December 15,1993, to take effect July 1, 1994.

To be admissible under Maryland Rule 5-609, the prior conviction must be a final conviction, § (c), of an infamous crime, or one relevant to credibility, § (a)(1), which is less than 15 years old, § (b), and whose probative value has been determined by the trial court to outweigh its prejudicial effect on the witness, § (a)(2). No longer is the admissibility of evidence of a prior conviction solely dependent upon the nature of the crime, ie. whether it was a felony or involved moral turpitude. Moreover, the burden of proof of admissibility is on the proponent of the evidence, in this case the State. United States v. Mahone, 537 F.2d 922, 929 (7th Cir.1976), cert. denied 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976).

Before trial, the appellant moved in limine to preclude the State’s use of his prior convictions for theft and theft related offenses to impeach his testimony, pointing out that the charge on trial was theft. The court overruled that motion, observing:

With respect to the theft conviction guilty from March of 1991, again, as I understand the law as it stands at this point under the Maryland Rules of Procedure, the court is required, you know, [to] have a hearing, weigh and assess the issues of the prejudice to defendant, the probative value.
I understand that this defendant is on trial here for theft. I understand the potential harm, but I also understand that it is the court’s obligation to balance all of these things, considering again that theft is one of those crimes for which there has never been an issue or question about its relevance regarding credibility. It is one of those crimes which *727is in and of itself involved with dishonesty, so I think that is certainly a very strong factor in favor of its use for impeachment purposes.
In this case, the charges go back to March of 19— or the convictions go back to March of 1991. It is fairly recent memory. It is not so remote as to perhaps not have bearing. I don’t think that any and every defendant charged with theft is entitled to have impeachment evidence excluded because he is on trial for the same thing again. And in this case, I am satisfied that the State, if the defendant refuses to testify, may inquire as to the conviction for the fairly recent theft in March of 1991.

Previously, the court had stated:

As to the other case, ... considering the relatively recent conviction, not just one but two specifically for theft and a third for conspiracy to commit theft, I understand that this also involves a theft charge. But under your argument, Mr. Goldstein, no one would be able to bring up prior theft for somebody who was charged with a theft.
If it were more remote in age and time, if it were closer to the outer limits, then I think the prejudice would increase and the probative effect diminish. But considering that it is within fairly recent memory you are talking about three instances arising out [of] the same—or as to the March ’91 guilty, your motion is denied.

The majority relies on these comments as evidence that the trial court was aware of the issues and understood its responsibility to conduct a weighing process. Perhaps because the trial court’s comments clearly do not reflect the manner in which it conducted the weighing, the majority undertakes to balance the five factors, developed in the federal courts, it adopts to aid in the weighing process, in order to determine whether the trial court abused its discretion.

The five factors developed by the federal courts are: (1) the impeachment value of the prior crimes; (2) the similarity between the past crime and the charged crimes; (3) the point in time of the conviction and the defendant’s subsequent *728history; (4) the importance of the defendant’s testimony; and (5) the centrality of the defendant’s credibility. See e.g. 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 majority concludes that four of the five factors weigh in favor of the admission of the prior convictions. The first factor augurs in favor of admissibility of the convictions because, the majority says, of the deceitfulness inherent in theft and theft related offenses and the universal recognition that theft is conduct which adversely reflects on a witness’ honesty. 340 Md. at 721, 668 A.2d at 16, (citing Beales, 329 Md. at 270, 619 A.2d at 108); see Gordon, 383 F.2d at 940. The majority concedes that the similarity of the prior convictions to the crime on trial favors inadmissibility. Id. It then observes that the prior convictions were less than three years old and, therefore, concludes that the third factor weighs in favor of admissibility. Id. It weighs the final two factors against the appellant because “[t]he appellant’s credibility clearly is essential to this case; therefore, it was important for the State to be able to present evidence bearing on credibility.” 340 Md. at 721-22, 668 A.2d at 16.

The majority acknowledges that the factors should not be applied mechanically. 340 Md. at 717-18, 668 A.2d at 4. That, however, is precisely what the majority promptly proceeded to do. Indeed, the effect of the majority opinion is to provide a road map for trial judges on how to render infamous crimes and crimes bearing on credibility per se admissible, a result totally inconsistent with our promulgation of former Rule 1-502 and Maryland Rule of Evidence 5-609. Under the majority opinion, a trial court is enabled to admit into evidence, for impeachment purposes, a defendant’s prior conviction, which is identical to the crime on trial, simply by uttering the magic words: I am aware of my responsibilities under Rule 5-609 to weigh the probative value of the conviction against its prejudicial effect; no rationale counterbalancing the prejudicial effect of the prior similar or identical conviction need appear in the record and the trial court is not required to *729articulate one. I believe, therefore, that the review mandated by the majority opinion discourages, rather than encourages, a substantive and thorough analysis of the balance between prejudice inherent in a prior conviction and the probative value attributable to its admission.

To be meaningful, the weighing process mandated by Rule 5-609 must take into account each factor bearing on the achievement of a proper probative-prejudicial balance and the relationship of each of those factors to each other. This is especially true of factors (1), (2) and (3). I am prepared to consider factors (4) and (5) as being a wash, they counterbalance and negate each other.5 Focusing on factors (1), (2) and (3), it becomes rather obvious that the third factor, in most instances, will be the key to a proper analysis.

Where the prior conviction is for an infamous crime or one affecting credibility, the first factor invariably will favor admissibility. On the other hand, the second factor, similarity of the prior conviction to the crime on trial, almost always will favor inadmissibility. Nevertheless, the tendency of the prior conviction to impeach the credibility of the defendant and the prejudice attending the fact that it is similar to the crime on trial will impact, and color, the third factor. It is not simply that the prior conviction is within the universe of admissibility that is important or that provides a basis upon which to conclude that it is admissible or inadmissible; rather, what is important are the nature of the crime underlying the prior *730conviction and its impact, in terms of its tendency to affect credibility and the prejudice it portends to the defendant. Those factors also determine whether the prior conviction is admissible. In other words, recentness of a prior conviction cannot be considered in a vacuum.

Surely, it cannot be doubted that prejudice to the defendant attends every attempt by the State to introduce evidence of a prior conviction. See e.g. Ricketts, 291 Md. at 703-04, 436 A.2d at 907-08; Bane, 73 Md.App. at 142, 533 A.2d at 313. As we have seen, there is, in such cases, a danger that the jury will perceive the defendant as a bad person simply because the defendant has the prior conviction. On the other hand, when the crime for which the defendant previously has been convicted is one that has a direct relationship to credibility, the danger of the jury misusing the evidence is lessened. Consequently, where the prior conviction is for perjury, for example, and the defendant is on trial for a charge other than perjury, the relationship of perjury to credibility reasonably could be determined to outweigh the prejudice inherent in its admissibility. And the more recent the conviction for perjury, the more probative the evidence. Conversely, when the prior conviction is for a crime whose effect on credibility is not so clear, the danger of its misuse by the jury is significantly increased and the opposite conclusion reasonably may be reached, i.e., that the prejudice of introducing it outweighs the probative value.

When the prior conviction is for a crime that is similar or identical to the crime on trial, the risk of prejudice increases significantly, as our cases recognize. Woodland, 337 Md. at 526-27, 654 A.2d at 1317-18; Giddens, 335 Md. at 221, 642 A.2d at 878 (citations omitted); Ricketts, 291 Md. at 703, 436 A.2d at 908. This is true whether or not the prior conviction is for a crime directly affecting credibility. When the past conviction is for a crime directly affecting credibility, the risk that the jury will misuse the evidence is not as great as it would be if the conviction was a crime not directly affecting credibility, to be sure; nevertheless, the risk of misuse still exists.

*731A similar analysis applies to factor (3). Rule 5-609 recognizes that the proof that a defendant has been convicted of a crime, any crime, be it 15 years old or one month old, is prejudicial to that defendant. The rule also recognizes, if only by negative implication, that the more recent the conviction the more probative its impeachment value. To say that a conviction that is within 15 years is probative is not to say, however, that the probative value of that conviction is such that it outweighs its prejudicial impact. That determination may only be made in light of the nature of the offense and the context in which it is offered. In other words, a prior conviction for theft which is only two years old has a greater probative value than a prior conviction for theft which is six years old. On the other hand, the added probative value of the former may not overcome the prejudicial impact of that conviction when offered in a prosecution for theft. Just as the more recent the conviction, the greater its probative value for impeachment purposes, so too is the prejudicial impact of a recent conviction greater than an older one, when the prosecution in which it is offered is for the same or a similar offense. Just as a jury is likely to believe that because a defendant has committed a particular kind of crime once before, he or she is likely to have committed this one, the more recent that prior conviction, the more rational that conclusion becomes. Thus, not only is the recentness of the prior conviction relevant, so too is the nature of the offense for which the conviction was had and the nature of the crime for which the defendant is being tried. In short, in analyzing the timing of the prior conviction, more than when the offense occurred must be considered. Because the danger of the jury’s misuse of the evidence is important, how the jury may be affected by the more recent prior conviction must also be addressed.

In this case, it can be gleaned from the trial court’s comments that it was aware of its responsibility to conduct a weighing process to determine whether admitting the prior conviction was more probative than the prejudice admitting it would entail. It is also clear that the trial court appreciated, and considered, that the crime for which the appellant had *732previously been convicted was one relevant to credibility, and, therefore, “is certainly a very strong factor in favor of its use for impeachment purposes.” Moreover, the trial court considered how recent the offense was, concluding that “[i]t is not so remote as to perhaps not to have bearing.” It did not, however, analyze the issue in light of any other factors; it addressed it in a vacuum. While the trial court considered the similarity of the crime, the tenor of its comments suggests that its consideration focused on whether that factor precluded the admission of the prior convictions altogether, ie., whether it rendered the prior conviction per se inadmissible. The majority also focuses on the timing of the prior conviction in isolation, failing to consider factors (1) and (2) and whether taking them into account would have required a different conclusion. The majority, like the trial court, rejects all notions of per se inadmissibility of prior convictions for the same or similar crime as that on trial.

The issue in this case is not whether the prior convictions are per se inadmissible because they are for the same or similar crime; rather it is the admissibility of the prior convictions for impeachment purposes. As indicated, supra, the State bears the burden of proof in that regard. Focusing on the issue as if it were one of the per se inadmissibility of the prior convictions tends to confuse the issue since, as the proponent of that position, the burden of proof of that issue would seem to be on the defendant. Williams v. State, 322 Md. 35, 41, 585 A.2d 209, 212 (1991) (citations and footnote omitted). In any event, trial counsel did not argue per se inadmissibility. Indeed, counsel argued that similarity of the prior conviction to the crime on trial, coupled with the fact that the prior convictions were sought to be introduced against the defendant, rather than a witness, see Woodland, “[heightened] the scrutiny.” Nor do I read the argument of appellate counsel to be that prior convictions for crimes similar or identical to those on trial are per se inadmissible. As I understand her argument, it is that the State has a higher burden to meet in justifying the admission of a prior convic*733tion when the prior conviction is for a crime similar to that on trial.

There is nothing in this ease, beyond what is present in every case, certainly nothing articulated by the trial court or pointed out by the majority, or reflected in the record, to suggest anything that would tip the scales in favor of admitting the prior conviction. Indeed, it may be that there are less reasons for admitting the evidence in this case than is present in the usual case. Here, there were two witnesses who testified as to the defendant’s alibi. Consequently, the defendant’s credibility was not so critical as would have been the case had the jury been called upon to choose only between the testimony of the State’s witnesses and that of the defendant. See United States v. Browne, 829 F.2d 760, 764 (9th Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988). Nor is this a ease in which the appellant’s testimony, itself, provided a basis for admitting the prior conviction evidence. Whenever one accused of a crime denies committing the crime, that person portrays him or herself in a favorable light vis-a-vis the State. As the majority sees it, whenever an accused testifies as to his present status, to any past responsible position or activity, or suggests that he or she has a present position of significant responsibility, he or she presents a “stellar” picture for the jury, which entitles the State to offer contradictory evidence, including prior convictions for the same offense as that on trial. This underscores the per se admissibility aspect of the majority’s holding.

The majority notes that the State did not stress the prior conviction in closing argument, suggesting, I assume, that the proof of the prior convictions were not very significant to the jury verdict. That observation does not, in my view, address the real issue. If the trial court abused its discretion in admitting the evidence, its error is not excused simply because the State did not take as full advantage of the error as it could have. In my view, as I have already made clear, the trial court abused its discretion.

*734Finally, the weighing process is designed to avoid the jury being exposed to the prejudicial effect of a prior conviction. Consequently, the abuse of discretion in exposing the jury to the prohibited conviction is not excused by a jury instruction advising it as to the limited purpose for which the conviction could be used. The danger that the jury will misuse prior conviction evidence is so great that such a limiting instruction can be effective only when given in connection with evidence of a prior conviction which properly has survived the sanitizing process, i.e. the probative value/prejudieial effect balancing.

. The risk of prejudice is compounded when the impeachment evidence consists of more than one prior conviction for the same crime that is on trial. In that circumstance, the jury is even more likely to misuse the evidence—to conclude that because the defendant committed the same crime on more than one occasion, he probably committed it on this *723occasion. The majority contends that the effect of admitting multiple prior convictions for the same crime is not before us since it was not raised before the trial court. 340 Md. 705, 710-11, 668 A.2d 8, 11 (1995). We review the trial court’s evidentiary ruling on the basis of the entire record. State v. Woodland, 337 Md. 519, 526, 654 A.2d 1314, 1317 (1995), citing Beales v. State, 329 Md. 263, 273-74, 619 A.2d 105, 110 (1993). Thus whether or not the issue was raised below, it was appropriately a part of the balancing process. In any event, Rule 8-131(a) gives this Court the discretion to consider issues not raised below where not to consider them would result in a miscarriage of justice. County Council of Prince George’s County v. Offen, 334 Md. 499, 508-09, 639 A.2d 1070, 1074-75 (1994).

. An infamous crime is one which, because of its moral turpitude, impressed upon its perpetrator such a moral taint that to permit him or her to testify in the legal proceedings would injuriously affect the public administration of justice. They included treason, felony, perjury, forgery, and other offenses classified generally as crimen falsi. Cousins v. State, 230 Md. 2, 5, n. 1, 185 A.2d 488, 489, n. 1 (1962) (quoting Garitee v. Bond, 102 Md. 379, 383, 62 A. 631, 633 (1905)).

. Maryland Code (1973, 1989 Repl.Vol.) § 10-905(a) provided:

(a) In general.—Evidence is admissible to prove the interest of a witness in any proceeding, or the fact of his conviction of an infamous crime. Evidence of conviction is not admissible if an appeal is pending, or the time for an appeal has not expired, or the conviction has been reversed, and there has been no retrial or re-conviction.

. Because this case arose after the promulgation of the Maryland Rules of Evidence, and Rule 5-609 is almost identical to former Maryland Rule 1-502, I will set out Rule 5-609:

(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) a 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.
(c) Other limitations. Evidence of a conviction otherwise admissible under section (a) of this Rule shall be excluded if:
(1) the conviction has been reversed or vacated;
(2) the conviction has been the subject of a pardon; or
(3) an appeal or application for leave to appeal from the judgment of conviction is pending, or the time for noting an appeal or filing an application for leave to appeal has not expired.
(d) Effect of plea of nolo contendere. For purposes of this Rule, “conviction” includes a plea of nolo contendere followed by a sentence, whether or not the sentence is suspended.

. I am puzzled as to how the majority could reach a balance in which both factors (4) and (5) weigh in favor of admissibility. It seems to me that, in our seatch for truth, it is most desirable that the defendant be in a position, if not encouraged, to testify. It is the antithesis of our system to discourage a defendant's testimony. Gordon, 383 F.2d at 940-41. Thus, factor four favors the inadmissibility of the prior convictions, since we would want to encourage the defendant’s testimony. State v. McClure, 298 Or. 336, 692 P.2d 579, 586 (1984). On the other hand, I recognize that, as the importance of the defendant’s testimony and credibility increases, so too does the need for the State to impeach him or her. Id. Thus factor (5) almost always will favor the admissibility of the prior convictions. Gordon, 383 F.2d at 940-41. When considered together, therefore, neither outweighs the other and, hence, is a wash, as I have indicated. McClure, 692 P.2d at 591.