Ricketts v. State

Murphy, C. J.,

dissenting:

The Court holds that a prior conviction for indecent exposure is per se inadmissible to impeach the credibility of a defendant testifying in his own behalf in a criminal case. It concludes that the offense is a general intent crime *715encompassing "types of offenses [which] ... vary from the reprehensible to the arguably innocuous, from offenses indicative of a specific intent to offenses which can only be characterized as negligent.” The majority opines that "the intent required for the crime does not require the accused to have performed a flagrant act damnable as an affront to decency and social norms but encompasses acts committed where the accused was unaware that his or her lack of apparel would be noticed.” The Court holds that a prior conviction for indecent exposure "sheds no light on what it is the defendant has done and hence it is beyond the ken of any factfinder to assess what, if any, impact such conviction has upon the defendant’s veracity.” According to the majority, for the purposes of impeachment, indecent exposure "is not an infamous crime, a crime of moral turpitude, a felony, nor a crime involving dishonesty or deceit,” but instead "is a lesser crime for which the proscribed conduct includes such a wide variety of behavior that the factfinder would be unable to make a reasoned judgment as to whether the offense affects the defendant’s credibility.” In so holding, the majority disregards the settled law of Maryland and injects needless confusion into the law governing the admissibility of prior convictions to impeach credibility. I, therefore, respectfully dissent and give my reasons.

The record discloses that the trial judge, before admitting the prior indecent exposure conviction in evidence, inquired of the defendant’s counsel, out of the presence of the jury, "what the nature of the indecent exposure was.” Counsel responded by stating his recollection that the act "occurred at Congressional Plaza and [involved] exposing the penis outside of a business establishment.” In admitting the prior conviction, the court instructed the jury that it was only to be considered as impeachment evidence with respect to the credibility of the defendant’s testimony.

In Messina v. State, 212 Md. 602, 130 A.2d 578 (1957), the defendant was convicted of the common law offense of indecent exposure for having exposed his "private parts” to two young school girls on a public street. Quoting from Hochheimer on Crimes and Criminal Procedure, at 430 (2d. *716ed. 1904), the Court noted that the offense consists of "exposure in public of the entire person, or of parts that should not be exhibited.” In affirming the conviction, the Court said:

"Indecent exposure, to amount to a crime, must have been done intentionally. Intent may be inferred from the conduct of the accused and the circumstances and environment of the occurrence. The essential intent is a general and not a specific intent. An exposure becomes indecent, and a crime, when defendant exposes himself at such a time and place that, as a reasonable man, he knows or should know his act will be open to the observation of others, [citations omitted).” Id. at 660 (emphasis supplied).

In Dental Examiners v. Lazzell, 172 Md. 314, 191 A. 240 (1937), the Court flatly held that the common law offense of indecent exposure was a crime involving moral turpitude. We said:

"it requires no discussion to argue or prove that the offense is so base, vile, and shameful as to leave the offender not wanting in depravity, which the words 'moral turpitude’ imply.” Id. at 321.

In that case, the defendant’s license to practice dentistry was revoked under a statute which authorized such a revocation upon conviction of a crime of moral turpitude. While the defendant had pled guilty to the offense, he argued at the revocation hearing that he had not committed the act of indecent exposure intentionally but only accidentally. The question squarely before the Court was whether the offense of indecent exposure involved moral turpitude. The Court defined moral turpitude as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of the law and duty between persons. 172 Md. at 321. The Court rejected Lazzell’s claim that the exposure was accidental, indicating in effect that *717had it been accidental, no conviction would have been warranted. The Court stated that the offense encompassed both "publicity and intention” and that "moral turpitude is not involved in a charge unless it is intentional or not innocent in its purpose, or not accidental.” Id. at 322.

The definition of moral turpitude, set forth in Lazzell, continues to be a part of the law of Maryland. See Atty. Griev. Comm’n v. Klauber, 289 Md. 446, 423 A.2d 578 (1981); Attorney Grievance Comm’n v. Walman, 280 Md. 453, 374 A.2d 354 (1977); Braverman v. Bar Assn. of Balto., 209 Md. 328, 121 A.2d 473 (1956). The question whether a crime involves moral turpitude under Maryland law does not depend, as the majority indicates, upon whether the offense is being used to impeach credibility in a criminal case or as evidence in a civil license revocation proceeding. The standard is, and can only be the same in all cases, i.e., whether the crime in question involves moral turpitude. Messina and Lazzel together stand for the proposition that the offense of indecent exposure involves moral turpitude and is not committed unless there is a deliberate and intentional act of public exposure; an act which is merely negligent, reckless, accidental, or otherwise unintentional is not sufficient.

It is, of course, elementary that when a defendant in a criminal case elects to testify on his own behalf, he asks the jury to credit his testimony rather than the conflicting testimony of other witnesses. He presents himself before the jury as a person worthy of belief and thereby places in issue his credibility as a witness. Under Maryland Code (1981), § 10-905 of the Courts and Judicial Proceedings Article, evidence is always admissible for impeachment purposes, without regard to time, to establish that a witness was convicted of "an infamous crime.” As the majority indicates, our cases hold that an infamous crime is a crime that involves moral turpitude and includes treason, felony, perjury, forgery and such other offenses as are classified generally as crimen falsi. See Cousins v. State, 230 Md. 2, 185 A.2d 488 (1962); Garitee v. Bond, 102 Md. 379, 62 A. 631 (1905); State v. Bixler, 62 Md. 354 (1884). It has long been the *718law of this State that evidence of an accused’s previous conviction of a crime need not be restricted to infamous crimes, or those involving moral turpitude, provided the violation may have some tendency to show that the witness is not to be believed under oath. State v. Huston, 281 Md. 455, 379 A.2d 1027 (1977); Taylor v. State, 226 Md. 561, 174 A.2d 573 (1961); Burgess v. State, 161 Md. 162, 155 A. 153 (1931); Nelson v. Seiler, 154 Md. 63, 139 A. 564 (1927). These cases indicate that as to those offenses which are not infamous or do not involve moral turpitude, the trial judge must exercise discretion as to the nature of the prior conviction but that his decision will not be reversed on appeal unless the prior conviction is so clearly irrelevant to impeach credibility that its admission constituted an abuse of discretion. Indeed, our cases demonstrate that we have been loath to reverse a criminal conviction on the ground that the trial judge abused his discretion in admitting a prior conviction to impeach the credibility of a witness or a defendant. For example, we have repeatedly held that a prior conviction for assault is not per se inadmissible as having no bearing on the credibility of a witness. Taylor v. State, supra; Linkins v. State, 202 Md. 212, 96 A.2d 246 (1953); Burgess v. State, supra; Balto. & Ohio R. Co. v. Strube, 111 Md. 119, 73 A. 697 (1909); Burrell v. State, 42 Md. App. 130, 399 A.2d 1354 (1979). See also Hunter v. State, 193 Md. 596, 69 A.2d 505 (1949) (prior conviction for operating a gambling table properly admitted in evidence).

I find inexplicable the majority’s view that the crime of indecent exposure does not connote "such a disregard for social values on the part of the perpetrator, that one could reasonably infer that such a person’s testimony is suspect.” I think the intentional and deliberate public exposure of one’s person is a deceitful act which reeks of moral taint; it is an act so infected with moral turpitude as would permit a rational person reasonably to conclude that one who would commit such a crime would be less likely to speak the truth than a person who had not committed such an offense.

The majority’s holding that indecent exposure is a general *719and not a specific intent crime does nothing to lessen the gravity of the offense or to dissipate the moral taint associated with it. There are, of course, two components of every crime — the actus reus (the guilty or criminal act) and the mens rea (the guilty mind or the mental state accompanying a forbidden act). The term "general intent” is frequently used to mean the general notion of mens rea, to encompass all forms of the mental state requirement, or to characterize an intent to commit an act on an undetermined occasion, while "specific intent” is used to characterize the mental state required for a particular crime, or to denote an intent to commit an act at a particular time and place. See W. LaFave and A. Scott, Criminal Law, at 201-02 (1972). See also McBurney v. State, 280 Md. 21, 371 A.2d 129 (1977), a case involving commingling and misuse of client funds by an attorney, where Judge Orth, for the Court, noted that a general mens rea or intent includes those consequences which (a) represent the very purpose for which an act is done, regardless of likelihood of occurrence, or (b) are known to be substantially certain to result, regardless of desire. A specific intent, on the other hand, is required when an element of the mens rea of a particular offense is some intent other than to do the actus reus specifically required for guilt. Id. at 29. The Court pointed out in McBurney that in general intent crimes, the essential intent is to do the actus reus and a requirement that the criminal act be done wilfully does not impose a specific intent as an essential ingredient of an offense. Surely, the Court in the present case does not mean to suggest that all general intent crimes are per se inadmissible to impeach credibility.

If indecent exposure is an infamous crime under § 10-905 of the Courts Article, it is admissible under the statute in all cases. Assuming, however, that the crime is not infamous, notwithstanding the fact that it involves moral turpitude under our cases, it is within the discretion of the trial judge to admit the prior conviction in evidence for impeachment purposes. Consistent with our prior cases, this Court must not disturb that discretion unless it is clearly abused. There *720is no such abuse in this case, particularly since the decision of the trial judge to admit the prior conviction was fortified by knowledge of the details of the prior offense, and he instructed the jury that the offense could not be used other than to impeach credibility. I would affirm the conviction.