*1 (iv) Commission the Public Service summary, In we hold BNB’s for determination of remedy Act the exclusive provides reason, For this regulation. P violated a PSC claims that C & counterclaim, on the based as was of BNB’s the dismissal and the proper, regulation, of this PSC asserted violation equal- the counterclaim was court’s refusal to reinstate circuit Moreover, regulation of the since the violation PSC ly proper. directory advertis- by and did not violate was not covered a breach of that contract. contract, it could not constitute ing on C & P’s claims Thus, summary judgment grant proper. was also under that contract AFFIRMED. JUDGMENT BE PAID BY APPELLANT.
COSTS TO
Dale GIDDENS v. Maryland.
STATE Term, Sept. 1993. No. Appeals Maryland. Special
Court 4, 1993. Oct. advertiser, to the that it having pay the balance of the contract law for damages recoverable under the leave him for that are would COMAR, which isn’t before me. wrongful termination under *3 Jordan, Harris, L. Asst. (Stephen Susan Public Defender E. Defender, brief), Baltimore, Public on the appellant. for (J. Simms, III, E. George Sp. Atty. Joseph Asst. Gen. Curran, Jr., Gen., brief), Baltimore, on the Atty. appellee. for WILNER, C.J., MURPHY,
Argued before and MOTZ and JJ.
WILNER, Judge. Chief A in the jury County Circuit Court Kent convicted conviction, In appellant of assault. from that he appeal (1) makes two that the court in complaints: allowing erred the to with a impeach testimony his conviction for (2) cocaine, distribution of and that it erred as well in refusing inquire jurors the or their relatives prospective in were involved law enforcement. For the reasons stated in 1008, Md.App. granted, Davis v. cert. (1992), A.2d we find no merit his focus, therefore, complaint. second Our will be on the im peachment evidence. victim, that, evening on the Coleman, testified the
James to converse with using telephone public he was May across appellant up drove when Thorpe, Rhonda girlfriend, his car, him. While still street, approached his parked and street, pistol a black and pulled out appellant middle of the Cole- get phone. was off the going when Coleman asked that gun appellant he it was a although knew man said me?” to which gun pointing are at had, you he asked “is that is. “yes, it away, replied about feet who was three appellant, At problem point, with it?” that f-ing you Do have an Rhonda’s his conversation walked Coleman ended Coleman said house, phone booth. leaving appellant at learned his appellant know at the time but he did not that incident, he later. that some time after identity He stated him he street, told that appellant on the passed appellant court, say anything against appellant not have to did in any have on the corner event that he should not been drug it is a infested corner.” Coleman identified “because him. who person court as accosted for Mr. Coleman’s Thorpe provided Ms. some corroboration “I her was statement: was story. testimony The heart of Jamie, you got problem and all heard was ‘Have talking you says, gun holding?’----” ‘Is that a are with that?’ Jamie That was the State’s case. on May could not account for his whereabouts
Appellant said he did not know denied the incident. He 1992 but purely issue one of Mr. Coleman. *4 to Mr. or appellant? believe Coleman credibility: going was his When, case, stated appellant at the end of the State’s that she intended testify, prosecutor indicated intention distribu- testimony with a impeach his Citing Ricketts v. tion of cocaine. (1981), distri- objected ground drug on the no bearing had one of the infamous crimes and
bution not that the crime was responded believability. on his State and, as involving turpitude a moral only felony a but crime 1-502, which such, reading Md.Rule was admissible. After governs prior the admission of convictions for impeachment purposes, counsel, and considering argument further of court ruled that the could use distribution conviction. It explained reasoning: its
“THE question COURT: The is whether it would be a Therefore, turpitude. felony. crime moral It is a he has felony, requires been convicted which felonious intent to case, commit the offense—in this distribution of a controlled substance, dangerous the Court finds that that ... by being convicted of such a that is felony, conduct which is contrary base or vile and to the accepted customary Therefore, conduct between men. I find that it is a crime of turpitude. moral
Next, determine, find, I need to after having finding after that it is a crime of moral I turpitude, need to determine whether or not its probative admitting value of the evidence outweighs danger of unfair prejudice to the witness or the objecting party. case,
In this the offense for which he is being tried is a battery, which has no relationship distribution of a con- dangerous trolled substance. I give find that will cautionary instruction and instruct they them as to how can utilize it. But I believe that the probative value of admit- ting outweighs the evidence the danger prejudice of unfair charges view of the in this case. If this were a charge substance, distribution of I would have finding. different But view of charges and the difference, I permit objection.” will it over and, Following ruling, appellant did testify an obvi- sting, ous effort to dull the admitted on direct examination 1989 he had been convicted distribution of cocaine and that gone prison.1 he had There was no mention of any text, 1. In its Rule 1-502 allows a conviction to be used impeachment by public "if elicited from the witness or established cross-examination____” during record The Committee Note to the Rule, Appeals, regard added the Court of states in that that "[t]he conviction, requirement purposes impeach- when offered for *5 sentence was of the offense what of the details in no mention of the conviction The made imposed. instructions, jury the In the court told its cross-examination. deciding in the conviction that could consider no other The purpose. the truth but for appellant telling could not use the jury admonished specifically court the as- had committed appellant as evidence that conviction sides Although both charged. which he was sault with closing credibility arguments their stressed the issue made to the conviction. neither reference jury, the First, he argument. in his points makes three Appellant wrong ruling standard that the court used the complains turpitude moral that conviction was admissible —that the Second, he distribution argues that not the criterion. having any one infamous crime nor is neither an cocaine that, he credibility. finally, And contends relevance to special had re- testimony that light of Mr. Coleman’s corner,” prejudice the “drug to the scene as infested ferred about the cocaine distribu- informing jury from the emanating value that evidence outweighed any probative tion conviction appel- by allowing speculate had might have ment, brought during protection for the cross-examination is be out preclude authorize or and is not intended either to the witness on calling bringing out the conviction direct party the witness from examination.” Rule, 609, has comparable eliminated Federal Fed.R.Evid. cross-examination, brought requirement be out on that the conviction Note, that, “virtually according Advisory Committee to the limitation inapplicable.” F.R.D. every has found to be See 129 circuit [Federal] by Appeals 1-502 Note added the Court of to Rule 353. The Committee practice bringing out Court's awareness of the demonstrates the sting of the to remove kind of evidence on direct examination implicit regard Note an determi- impeachment. the Committee as We that, may be in which while there circumstances nation the Court examination, ought be done on direct convictions not revelation event, prohibit any In State does itself not that tactic. the Rule does any way right his appeal appellant has in waived argue in this ruling revealed the complain the court’s because he himself about prosecutor’s from the on examination. is evident direct It appellant not presentation of the issue had confessed initial examination, State would have disclosed conviction on direct during cross-examination.
lant was drug dealer and wanted to use the telephone *6 furtherance of that nefarious endeavor. in full quoted reasoning
We have the the court expressed by in allowing the conviction to It be used. is evident at a glance that, 1-502, although certainly the court was aware of Rule it was, best, at proper confused as to the standard apply under that Rule. It seemed to conclude that the standard was whether distribution of cocaine was a crime involving moral turpitude and because the crime was a it neces- felony, sarily was, reason, turpitude involved moral for that admission, eligible subject for only to a of its balancing probative against value undue prejudice. 1-502, essentially,
Md.Rule
creates a three-part
test
determining
for
the
admissibility
prior convictions for im
(a)
peachment purposes. Section
begins by making clear that
“only
a conviction is admissible
if’ the crime was an “infamous
crime” or an “other crime relevant to the witness’s credibili
ty.” That identifies
eligible
the
universe.
If the crime does
not fall within one of those two
categories,
eligible
is not
for
evidence,
impeachment
admission as
and no further consider
ation need be
to it.
If
given
the crime falls within that
raised,
universe and the
proponent
issue
must then
(b)
(c)
satisfy the conditions in sections
of the Rule by
showing
old,
that the conviction is not more
years
than 15
that
it was not reversed on appeal,
subject
and that it was the
neither a
nor a
pardon
pending appeal. Finally, assuming
(or
asserted),
that these conditions are satisfied
court
must determine that
the probative value of the evidence
outweighs
danger
prejudice
of unfair
to the witness.
State,
(1993).
Beales v.
329 Md.
major
issue here is whether distribution of cocaine
Rule,
within
falls
the allowable universe under the
for there is
no contention
conviction fails
satisfy
(b)
(c)
conditions of sections
or
of the Rule.
In that regard,
we note at
admissibility
the outset that
is not
determined
whether
in question
the crime
is a
felony
by (Fed.
involves
turpitude.
moral
Unlike the Federal Rule
felonies eligible
609), which makes all Federal
R.Evid.
admission,
The Court
1-502 is far more restrictive.
Md.Rule
Rule,
of the Federal
was aware
Appeals,
developing
to have its
expressly rejected
opportunity
approach and
Moreover,
moral
although
felonies.
Rule embrace all State
in determining
relevant consideration
turpitude was once a
material,
Court
impeachment
as
what crimes were usable
in Prout v.
from
standard
departed
expressly
of Appeals
admission,
noted,
eligible
As
to be
or that
an “infamous” one
that either was
must be
a crime
crimes consist
credibility. The “infamous”
has relevance to
felonies, and crimes
treason,
that were common law
crimes
*7
State,
v.
crimen
Morales
category
-withinthe
that fall
falsi.
(1992). The crimes classified as
330,
Our know, for existing example, We for us case law. simple possession of controlled substances is not a crime that is relevant to credibility and therefore cannot be used for State, Morales v. impeachment purposes. supra, 330, State, 339, Carter v. 600 A.2d In 686, 851. Md.App. (1989), A.2d 131 on the other hand —a case decided before the adoption of Md.Rule 1-502—this Court concluded that a con- viction for drug manufacturing could regarded be as relevant to credibility, even it was though not an infamous crime. At 693, 566 A.2d we explained:
“This particular crime necessarily requires steps several involving premeditation and conscious violation of the law— acquisition of the raw making materials for drugs, process- materials, ing the finding means of distributing the Furthermore, all of these acts must be carried out drugs. surreptitiously to avoid detection and arrest.” added.) (Emphasis Morales, supra,
In
The offense at issue is proscribed by Md.Ann.Code art. 286(a), which, § in relevant part, states simply it is unlawful any person for to distribute a controlled dangerous substance. Section of art. 27 lists over 200 substances that it defines as dangerous ones and adds to that salts, isomers, derivatives, list as well and compounds of or containing those substances. A person § can violate by a community throughout of to sub-dealers ton cocaine selling a marijuana cigarette. The a by friend a giving well as as home, in of privacy can the one’s occur unlawful distribution of a or in a market, in the back car furtively open drug air an in the daylight, or street in broad alley, public on a dark hotel. It of a downtown grand ballroom middle of a crowded simply gift or a enterprise of a secret business may part be a large encompasses The is very net an acquaintance. conduct, problem. lies the of and therein variety wide in Rick- very problem The of addressed Appeals Court where it 436 A.2d v. Md. supra, etts not be could exposure that a conviction indecent concluded 710, 436 At A.2d impeachment purposes. used for “says little about conduct a conviction noted that such Court Continuing, was convicted.” person which “fbjecause only requires general a the offense observed that fall intent, of and circumstances gamut offenses varied while widely of the crime are so the ambit within suffi- depravity indeed have shown moral person may one may have commit- his another impact upon credibility, cient nothing more than very minor infraction indicative ted necessity.” dictated poor judgment perhaps momentary said, further, at on this the Court Expounding 906:
“If it causes factfinder to the crime is so ill-defined that on the as conduct is defendant’s speculate impacting to what differently, since credibility, should be excluded. Stated witness, where there is always is the truth the issue the defendant’s no crime affects way determine crime that crime testimony by the name simply impeachment.” for purposes should be inadmissible justified here. equally in Ricketts is The concern enunciated substance, cocaine, even of a controlled Distribution is not, itself, person indicate that the inherently and of does sure, criminal, to be but it not to be believed. behavior necessarily It involve dishonest. does necessarily is not suggest depravity conduct moral sufficient surreptitious course, but it need not. credibility. may, It a lack of *9 Because jury hears only and, the fact of the conviction if offered, any sentence that imposed, it has no reliable indication of the precise nature of the offense and therefore is liberty at assume the worst. See Foster v.
439, 470,
(1985),
denied,
cert.
478 U.S.
S.Ct.
(1986),
Drug even when engaged in for profit, is not necessarily surreptitious or furtive. According to the U.S. Justice, Department of 112,000 there were nearly convictions for drug in trafficking State in courts 1988 and at least 13,000 another for various drug law offenses in Federal courts. See Sourcebook Criminal Justice U.S. Statistics — Dept. Justice, Tables 5.32 and 5.22. Many of these convic tions, at in courts, least are of low-level street dealers who are caught because they openly sell drugs to undercover police on public streets, sidewalks, officers and parking lots or are observed such places openly selling to other passersby. We see the cases. There is simply no warrant to declare these offenses eligible for impeachment on the theory that they behavior, entail secretive and to do so on any other basis would be to broaden the Rule significantly beyond its limited reach purpose.2
We conclude that distribution of a controlled dangerous substance is not a crime relevant to credibility not, and may therefore, be used under Rule 1-502 for impeachment pur- See, poses. accord, Jarmon, State v. 245 Kan. 783 P.2d (1989) and cases cited there. The ruling court’s error, and, was in on us, the facts before we cannot declare dissent, Judge Murphy, 2. recognizes ordinarily never gets to hear the details of the offense unless try the witness chooses to mitigate the effect of the significance conviction but finds some court, proposition in determining admissibility, inquire can into those details. Even if that is so—and it is not at all clear that it is problem. clear, so—that solve doesn’t As Ricketts makes it is the itself, law, crime as defined in the special must have a relevance to credibility, not the manner in which the crime was commit- ted. *10 We harmless. error was doubt that the a reasonable beyond reverse. therefore PAY REVERSED; TO KENT COUNTY
JUDGMENT THE COSTS.
MOTZ, concurring. Judge, agree issue. I difficult exceedingly an presents
This case particularly I am dissent. Judge Murphy’s much with for a conviction here means that holding troubled our ad- is never dangerous substance of a controlled distribution 1-502. Md.Rule under purposes for impeachment missible permitting impeach- are occasions when undoubtedly There discretion, an abuse such a conviction would be ment with a “giving conviction involved example, prior for where the marijuana cigarette” present or is identical friend State, 85 Md.App. v. charge. Dyce See slate, certainly it would But, if on a clean writing we were of a controlled distribution view that a conviction my be in at least purposes impeachment substance admissible Indeed, case to me that this seems circumstances. some is, be should within such That involves circumstances. defendant, accused permit
trial court’s discretion behalf, to be his own testify wishes assault who of cocaine for distribution with a 1989 conviction impeached jail sentence and in a that conviction resulted when evidence, convic- no or proffer, defendant offers con- surreptitious no a minor infraction involved tion was words, I conviction distribu- that a In other believe duct. Judge McAuliffe’s falls within tion of a controlled substance A.2d III, Md. Prout v. see Category court (1988) (McAuliffe, and that a trial dissenting), J. determine, case, if the particular should be able to That purposes. for impeachment is admissible reversal, if review, course, would, subject be decision See, of discretion. in a case was an abuse admission State, supra. v. e.g., Dyce not, however,
We are writing on a clean slate. Like Chief Wilner, Judge I believe Court of Appeals’ precedent requires reversal here. Accordingly, I reluctantly concur.
MURPHY, Judge, dissenting. I agree that there is no merit in appellant’s second com- plaint. I agree also that Md.Rule 1-502 creates a three-part test for determining whether a prior conviction is admissible for the limited purpose impeachment. dissent, however, from the holding that a conviction for distribution of cocaine may never be used for impeachment.
It is of no consequence that the trial judge might have been
confused about how to decide whether appellant’s prior convic
tion was relevant
to credibility. Our task is to determine
that decision was
Joiner v.
correct.
82 Md.
282, 293,
(1990).
App.
The trial judge (1) stated that distribution of cocaine is (2) crime of morale turpitude; a felony. Those state ments do not indicate confusion. It is reasonable to character ize distribution of cocaine as a crime of moral turpitude. See Lazzell, Dental Examiners v. 320-321, 191 Md. A. 240 (1937), and Attorney Walman, Griev. Comm’n. v.
459-60, Distribution of cocaine is a felony. The maximum penalty for a first conviction of this (20) offense is twenty years $25,000.00. and a fine of Md.Ann. 286(b)(1). 27, § Code art.
A prior conviction is relevant if it has any tendency to establish that the witness veracity. lacks That determination involves a question of law. The judge was either right or wrong. In my opinion, he right. A conviction for distri- bution of cocaine is relevant person’s to a credibility. of law that distri- as a matter Having correctly determined to is “relevant the witness’s a crime which bution of cocaine is whether, determine proceeded credibility,” judge the trial case, particular probative the circumstances under of unfair danger outweighed conviction value of that re- determination by This case case appellant. prejudice to stated that judge The trial of discretion. quires an exercise if were on appellant he have excluded the would charge for “a of distribution” trial however, in a “one was the defendant Appellant, substances. he therefore ruled that judge The trial on one” assault case. (1) about the to question prosecutor would allow the (2) conviction, limiting instruction. deliver distribution an abuse rulings constitute persuaded that these am not discretion. of evidence the formal rules
A not bound judge trial item of evi- out whether figure trying when trial urging the or excluded. When dence should be admitted the conviction using from the State judge prohibit to, but opportunity had the defense counsel impeach appellant, not, Appel- conviction. circumstances of that did discuss the unique mitigating knowledge had whatever superior lant If appel- conviction. were involved circumstances *12 nothing more than hand- conviction involved distribution lant’s attendee of a rock with residue to a fellow ing a mirror cocaine concert, given to trial should have been this information judge. any judge trial with attempt supply
Having made no case, this particular would indicate facts which outweigh did not prior conviction appellant’s value probative him, suggests now danger prejudice of unfair surreptitious have involved might not have appellant “may not speculate conduct. We should more nothing minor infraction indicative very committed a or that his conviction did momentary poor judgment” than conduct. proof involve secretive cases, do many drug We indeed see but of the cocaine distribution cases which come before trial appellate state, courts of this rare are the ones that do not involve behavior. surreptitious That 'appellant was sentenced “to prison” guilty indicates that he was of a serious violation of the substances laws. There is simply no warrant to declare all cocaine distribution ineligi- convictions ble impeachment because a minuscule number of them may not entail secretive behavior.
In fairness to the witness who is impeached
proof
with
of a
conviction, the party who uses this mode of impeachment
prohibited from asking about the circumstances of the convic-
Watson,
(1990).
tion. State v.
321 Md.
prohibition, however,
That
does not prohibit the witness from
testifying
any
about
mitigating circumstances which the fact-
finder ought to consider in deciding how much impact the
conviction has on the witness’s credibility. During his testi-
mony, appellant could have explained the circumstances of the
conviction, “if in extenuation of the act and in mitigation of its
effect.” Donnelly
81, 86,
v. Donnelly, 156 Md.
Appellant also an opportunity had to further blunt the effect impeachment by showing that imposed the court an inconsequential punishment. Foster v.
469-471,