Brown v. State

HARRELL, Judge.

As Judge Wilner points out in his dissent (Dissent, op. at 251), I am responsible for the “peculiar setting” here. As he explains, I agree with Part (2) of the Dissent rejecting the *247majority view in Ohler v. United States, 529 U.S. 753, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000) and instead concluding that there was no waiver in the instant case (Dissent, op. at 257-66), but I would hold that the evidence of Brown’s prior conviction for possession of CDS with intent to distribute was admissible. Other than stating that I do not support overruling State v. Giddens, 335 Md. 205, 642 A.2d 870 (1994) or State v. Woodland, 337 Md. 519, 654 A.2d 1314 (1995), I need elaborate only why I believe the trial court did not abuse its discretion in admitting evidence of Brown’s prior conviction. See Dissent, op. at 273.

The trial judge explicated his ruling to allow use of Brown’s prior conviction as impeaching evidence as follows:

THE COURT: As I’m sure the State intended to refer me to Jackson v. State,1 the guidelines that are set forth therein in determining whether a prior conviction is admissible under Maryland Rule 5-609,2 that’s a series of questions that the Court is to answer. First, is the prior conviction within the universe too admissible. That is, infamous *248crimes or crimes relevant to [the] witnesses] credibility. Of course, the Jackson v. State Court said that drug felonies are such offenses.3
The second is a conviction less than fifteen years old. Yes, as the parties agree, a conviction is timely in that sense.4
So finally we’re left to weigh the probative value versus unfair prejudice to the Defendant. And in looking at -the things that Jackson v. State sets forth including, one, the impeachment value of the prior crime, we have to take the Court of Appeals at its word that drug felonies are impeachables. They do impeach one’s credibility. So, yes, it is one that is recognized although perhaps not universally recognized as reflecting upon the witness’ honesty.
The time in conviction of the earlier offense is over six years ago, tends to lessen its prejudicial value. The similarity between the earlier crime and the charged crime, the similarity would weigh against admission, and in this case they’re not similar. So it weighs in favor of admission.
Upon consideration of the items enumerated in Jackson v. State, I find that the conviction is more probative and accordingly will permit the State to impeach.

Given the unquestioned applicability of the Rule 5-609 factors and the now renewed vitality of Giddens and Woodland, the trial court’s analysis and conclusions as to the legal considerations (eligibility of prior conviction to be used and eligible conviction must be less than 15 years old) are flawless. The only other factor requiring comment is the weighing of probity versus unfair prejudice. Deliberation regarding this *249factor is committed in the first instance to the sound discretion of the trial court. Giddens, 335 Md. at 214, 642 A.2d at 874. Although a strong presumption of correctness attaches to the trial judge’s conclusion reached after engaging in this balancing test (Woodland, 337 Md. at 526, 654 A.2d at 1317; Beales v. State, 329 Md. 263, 273, 619 A.2d 105, 110 (1993)), we are not reluctant to overturn such a conclusion where an abuse of discretion or error of law is found.

A brief reflection on the abuse of discretion standard of appellate review is in order.

“Abuse of discretion” is one of those very general, amorphous terms that appellate courts use and apply with great frequency but which they have defined in many different ways. It has been said to occur “where no reasonable person would take the view adopted by the [trial] court,” or wdien the court acts “without reference to any guiding rules or principles.” It has also been said to exist when the ruling under consideration “appears to have been made on untenable grounds,” when the ruling is “clearly against the logic and effect of facts and inferences before the court,” when the ruling is “clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result,” when the ruling is “violative of fact and logic,” or when it constitutes an “untenable judicial act that defies reason and works an injustice.”
There is a certain commonality in all of these definitions, to the extent that they express the notion that a ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective. That, we think, is included within the notion of “untenable grounds,” “volatile of fact *250and logic,” and “against the logic and effect of facts and inferences before the court.”

North v. North, 102 Md.App. 1, 14, 648 A.2d 1025, 1032 (1994) (internal citations omitted). Similarly, in In re Adoption/Guardianship No. 3598, 347 Md. 295, 701 A.2d 110 (1997), we described “abuse of discretion” as follows:

Judicial discretion was defined in Saltzgaver v. Saltzgaver, 182 Md. 624, 635, 35 A.2d 810, 815 (1944) (quoting Bowers’ Judicial Discretion of Trial Courts at P 10) as “that power of decision exercised to the necessary end of awarding justice and based upon reason and law, but for which decision there is no special governing statute or rule.” It has also been defined as a “reasoned decision based on the weighing of various alternatives.” There is an abuse of discretion “where no reasonable person would take the view adopted by the [trial] court,” or when the court acts “without reference to any guiding rules or principles.” An abuse of discretion may also be found where the ruling under consideration is “clearly against the logic and effect of facts and inferences before the court,” or when the ruling is “volatile of fact and logic.”
Questions within the discretion of the trial court are “much better decided by the trial judges than by appellate courts, and the decisions of such judges should only be disturbed where it is apparent that some serious error or abuse of discretion or autocratic action has occurred.” In sum, to be referenced “the decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.”

347 Md. at 312-13, 701 A.2d at 118-19 (internal citations omitted).

Regarding the probity versus unfair prejudice analysis and conclusion in the instant case, I cannot say that the trial judge abused his discretion or erred as a matter of law. Although the danger of unfair prejudice is heightened where the prior conviction and pending charge are identical or similar {Jack*251son, 340 Md. at 715, 668 A.2d at 13), that was not the case here. Brown was on trial for second degree assault. The impeaching prior conviction was for possession of CDS with intent to distribute. These offenses manifestly are neither identical nor similar. While it is true that the contextual background of the charged crime for which Brown was tried and convicted involved allegations of earlier friction between Brown, the co-defendant (Avon Brown), and others with the victim over the former’s drug-selling in the victim’s neighborhood, it was not an abuse of the trial judge’s discretion to view the attenuated relationship of a prior CDS conviction to the background facts of this case as not presenting the most heightened danger of unfair prejudice previously recognized in our cases.

Regarding the weighing of the fourth and fifth considerations mentioned in Jackson — importance of the defendant’s testimony and centrality of the defendant’s credibility — , we said “[w]here credibility is the central issue, the probative value of impeachment is great, and thus weighs heavily against the danger of unfair prejudice.” 340 Md. at 721, 668 A.2d at 16 (internal citations omitted). Here, Brown’s credibility and that of the co-defendant were as central to the case as the victim’s. The Dissent’s recounting of the competing evidence from the State and the defense (Dissent, op. at 252-57) clearly makes that point.

Therefore, as Chief Judge Murphy stated in his concurring opinion in the Court of Special Appeals in this case, “[the trial judge] neither erred nor abused his discretion in permitting the impeachment by conviction evidence at issue in this case.” I join in this Court’s judgment affirming the judgments of the Court of Special Appeals and the Circuit Court for Baltimore City.

Dissenting opinion by

. Jackson v. State, 340 Md. 705, 668 A.2d 8 (1995).

. Md. Rule 5-609, as relevant to the trial judge’s analysis, provides:

Rule 5-609. Impeachment by evidence of conviction of crime.
(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) 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.
(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
*248(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.

. Not only is this conclusion supported by Woodland, 337 Md. at 524, 654 A.2d at 1316, Brown concedes such in his brief to this Court (Petitioner’s Brief at 29).

. The relevant conviction was six years old at the time of trial.