RICHARD EUGENE RICKETTS v. STATE OF MARYLAND
No. 167, September Term, 1979
Court of Appeals of Maryland
Decided November 6, 1981
291 Md. 701
George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.
Richard B. Rosenblatt, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
COLE, J., delivered the opinion of the Court. MURPHY, C. J., dissents and files a dissenting opinion at page 714 infra.
In this case we shall decide whether a prior conviction for indecent exposure was admissible to impeach the credibility of the defendant.
The facts may be stated briefly. Richard Eugene Ricketts was tried by a jury in the Circuit Court for Montgomery County on charges of second degree rape, second degree sexual offense, and burglary. When Ricketts took the witness stand to testify in his defense the trial judge, over the objection of defense counsel, allowed the prosecutor to question Ricketts regarding a three year old conviction for indecent exposure for the limited purpose of impeaching his credibility. Ricketts was convicted and appealed to the Court of Special Appeals which affirmed the conviction in an unreported per curiam opinion, No. 354, September Term, 1979, filed December 4, 1979. We granted certiorari to address the important question presented.
Before us Ricketts contends that Maryland law does not
We begin our consideration of this issue by recognizing that in our system of criminal justice every defendant has the right to testify in his own defense. Equally fundamental to the system is the right of the State to cross-examine such defendant and impeach him, if it can, as to the truthfulness of his testimony. The evidentiary tool the State customarily uses to attack the defendant‘s credibility is evidence of his prior convictions. The only details ordinarily allowed to be presented to the jury are the nature of the charge and the fact of conviction. The purpose in admitting such evidence is to assist the factfinder in measuring the credibility of the defendant.
The danger in admitting prior convictions as evidence to impeach the defendant stems from the risk of prejudice. The jury may improperly infer that the defendant has a history of criminal activity and therefore is not entitled to a favorable verdict. Such evidence may detract from careful attention to the facts, despite instructions from the Court, influencing the jury to conclude that if the defendant is wrongfully found guilty no real harm is done. Where the crime for which the defendant is on trial is identical 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. The net effect of such evidence is often to discourage the defendant from taking the stand.
Thus, the role of the trial judge takes on added importance. It becomes his function to admit only those prior convictions which will assist the jury in assessing the credibility of the defendant. The trial judge must weigh the probative
The jurisdictions vary in their legislative and judicial determinations of what crimes may be used to impeach. At one end of the spectrum are Hawaii and Montana which allow no cross-examination on the subject of impeachment by use of prior convictions. Hawaii reaches its result on constitutional grounds, State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971), Montana by legislative enactment.
At the other end of the spectrum, Louisiana, Massachusetts, Missouri, and Oregon allow the prosecutor to introduce evidence of any prior conviction based on their construction of applicable statutes. State v. Prather, 290 So. 2d 840 (La. 1974); Commonwealth v. West, 357 Mass. 245, 258 N.E.2d 22 (1970); Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760, 88 A.L.R. 3d 62 (Mo. App. 1974) and State v. Rush, 248 Or. 568, 436 P.2d 266 (1968).
The States which remain are largely those which permit impeachment by proof of conviction of infamous crimes or crimes involving moral turpitude. See generally, 3A Wigmore, Evidence, § 980 (Chadbourn Rev. 1970), and those states which employ a weighing or balancing test, giving considerable deference to the trial court‘s discretion in determining which crimes may be used to impeach.
Gordon cited and approved the balancing test of Luck, then went on to explain its application:
In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversly on a man‘s honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity. A “rule of thumb” thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not; traffic violations, however serious, are in the same category. The nearness or remoteness of the prior conviction is also a factor of no small importance. Even one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness. [383 F.2d at 940 (footnote omitted)].
Maryland Code (1974, 1980 Repl. Vol.),
In 1884 this Court explained in State v. Bixler, 62 Md. 354, 360 (1884) that at common law “[a]n ‘infamous crime’ is such crime as involved moral turpitude, or such as rendered the offender incompetent as a witness in court, upon the theory that a person would not commit so heinous a crime unless he was so depraved as to be unworthy of credit.” In Garitee v. Bond, 102 Md. 379, 383, 62 A.2d 631 (1905) we further elaborated:
The crimes which the common law regarded as infamous because of their moral turpitude were treason, felony, perjury, forgery and those other offenses, classified generally as crimen falsi, which
impressed upon their perpetrator such a moral taint that to permit him to testify in legal proceedings would injuriously affect the public administration of justice.
However, what offenses could properly be said to be crimes of moral turpitude were still undetermined. We recognized that the term was imprecise but acknowledged that it connoted conduct which was base or vile and contrary to the accepted and customary conduct between men. Dental Examiners v. Lazzell, 172 Md. 314, 320, 191 A. 240 (1937).
In Cousins v. State, 230 Md. 2, 185 A.2d 488 (1962) we recognized a broader base for the use of prior convictions to impeach. We said:
It has been held by this court that evidence of the accused‘s previous conviction of crime need not be restricted to infamous crimes or those involving moral turpitude, provided the violation of law may have some tendency to show that the person charged is not to be believed under oath. Taylor v. State, 226 Md. 561 [, 174 A.2d 573, (1961)]; Linkins v. State, 202 Md. 212 [, 96 A.2d 246 (1953). 230 Md. at 4 (emphasis supplied)].
Prior to Cousins, in Nelson v. Seiler, 154 Md. 63, 69, 139 A. 564 (1927), we held that every conviction does not affect a witness’ credibility; and if it does not, evidence of such is irrelevant and should not be admitted. Most recently, in State v. Huston, 281 Md. 455, 460, 379 A.2d 1027 (1977), we repeated the words of Judge W. Mitchell Digges in Burgess v. State, 161 Md. 162, 155 A. 153 (1931) where he set forth the purpose, breadth, and limitation on admitting evidence of prior convictions.
The issue always is the truth of the witness’ testimony. In other words, is the witness devoid of moral perception, such a person as would regard lightly the obligations of an oath to tell the truth? In judging of a man‘s moral fibre, his previous conduct, covering a reasonable time before the inquiry,
undoubtedly has a real and substantial bearing upon the question. It seems to us that there can be little argument that previous conduct of a witness can be shown to be such as, by the common experience of the average man, would justify a belief in his unworthiness as a witness. Certainly, if it be shown that a witness had previously been convicted of perjury, it would materially discredit, if not entirely destroy, the value of his testimony. Conviction of many other crimes could properly have the same effect; while, on the other hand, there may be convictions of violations of hundreds of police regulations, which in no real or true sense can be taken as tending to make one so convicted unworthy of belief.
Our cases then clearly point out that while infamous crimes, felonies, crimes involving moral turpitude, deceit, or dishonesty are not the only types of crimes which are admissible for purposes of impeachment, lesser crimes, to be admissible, must tend to show that the person charged is not to be believed under oath. In Cousins v. State, supra, 230 Md. at 4, we announced two factors to be considered in deciding the admissibility of lesser crimes: (1) “the length of time since it occurred considered with [(2)] the nature of the crime.” We deem these factors relevant for consideration here.
Returning to the case sub judice, our precedents dictate that if indecent exposure is an infamous crime or a crime of moral turpitude, as the State contends, it was admissible for purposes of impeachment. However, if it is a lesser crime, then its admissibility must be determined under a different standard.
Classifying indecent exposure as infamous, a crime of moral turpitude or a lesser violation is no easy task. We are concerned, here, with a vague crime having its roots in the law of blasphemy and vagrancy. See 2 Stephen, History of the Criminal Law of England 470 (1883). Indecent exposure was first dealt with statutorily in Maryland when the General Assembly amended Article 27, “Crimes and Pun-
The common law crime of indecent exposure was described by this Court in Messina v. State, 212 Md. 602, 606, 130 A.2d 578 (1956):
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 [a] 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. State v. Martin (Iowa), 101 N. W. 637; Peyton v. District of Columbia, 100 A.2d 36, 37.
By thus labeling indecent exposure a general intent crime, the types of offenses brought within its scope vary from the reprehensible to the arguably innocuous, from offenses indicative of a specific intent to offenses which can only be characterized as negligent. A review of a few cases on the subject will illustrate the point.
In Messina v. State, supra, the defendant was seated in a parked car and exposed himself to two thirteen year old girls who were walking by. The girls testified that, at the time, the defendant “was giving them a ‘funny’ look, a look that ‘made us feel funny.‘” 212 Md. at 604. The defendant was
In State v. Sousa, 2 Conn. Cir. 452, 201 A.2d 664 (1964), the court relied on Messina in upholding an indecent exposure conviction. There a man had been observed masturbating in front of a window in his home in the middle of the day. “Intent,” ruled the court, “may be inferred from recklessness.” 201 A.2d at 666.
Davenport v. United States, 56 A.2d 851 (D.C. 1948), upheld an indecent exposure conviction where the defendant was accused of urinating by a tree at night in view of a women‘s dormitory. There was no evidence that the defendant intended others to see him, though the Court noted the defendant made no attempt to hide himself. The Court apparently satisfied the intent inquiry by finding willfulness with regard to the exposure element and negligence with regard to the public element.
A clearer case of general intent inferred from negligence is State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970). There the court sustained the conviction of two nude sunbathers after police, acting upon an anonymous tip, used binoculars to spot them on an isolated beach. There was no showing that anyone, other than the police, had seen the sunbathers or had been offended.2
The point we stress is that an indecent exposure conviction, without more, says little about the conduct for which the person was convicted. Because the offense requires only a general intent, the gamut of offenses and circumstances that fall within the ambit of the crime are so widely varied that, while one person may indeed have shown a moral depravity sufficient to impact upon his credibility, another may have committed a very minor infraction indicative of nothing more than momentary poor judgment perhaps dictated by necessity. The intent required for the crime does not
It is this vagueness or uncertainty in the nature of the offense that makes it difficult to classify indecent exposure as infamous or something less. As we have noted, the crimes that are normally associated with the term “infamous because of their moral turpitude [are] treason, felony, perjury, forgery and those other offenses, classified generally as crimen falsi,” Garitee v. Bond, supra, 102 Md. at 383. They leave no doubt as to the type of conduct committed and condemned. The courts, legislature, and society have made the determination that such crimes, because they show such a lack of regard for societal norms and values, are relevant in assessing the credibility of one who has been convicted of those offenses. It is our view that the wide spectrum of conduct and degrees of depravity associated with indecent exposure make it clear that it does not conform with those offenses regarded as infamous. We, therefore, conclude that whatever else it may be, indecent exposure is not an infamous crime.
Moral turpitude, while being somewhat less specific than infamous crimes, still connotes 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. Additionally, we note that what constitutes a crime of moral turpitude may involve different considerations compelling different results in different circumstances. An excellent example of this is provided by the State‘s reliance in the instant case on Dental Examiners v. Lazzell, 172 Md. 314, 191 A. 240 (1937).
In Lazzell a dentist contested the revocation of his license to practice dentistry by the Board of Dental Examiners on the basis of three prior convictions of indecent exposure. The Board based its action on a statute allowing it to cancel the registration and certificate of a dentist upon a showing that he was convicted of a crime involving moral turpitude. The dentist alleged that indecent exposure was not a crime
The Lazzell Court first noted that while moral turpitude may not be hard to define, characterizing offenses as involving moral turpitude was a different matter. After listing a compendium of cases where offenses were adjudged as involving moral turpitude the Court said that “[i]t has been decided that moral turpitude is not involved in a charge unless it is intentional or not innocent in its purpose, or not accidental [citations omitted].” 172 Md. at 322. The Court then found that the facts showed that the dentist‘s conduct had been public and intentional and that “it require[d] no discussion to argue or prove that the offense [indecent exposure] is so base, vile, and shameful as to leave the offender not wanting in depravity, which the words ‘moral turpitude’ imply.” 172 Md. at 321.
The first and most fundamental distinction we note between Lazzell and the case at bar is that the Court in Lazzell was assessing the propriety of a licensing board‘s determinations whereas here we are concerned with the cross-examination of a defendant in a criminal trial. In Lazzell the question was whether a dentist had violated the ethical standards of his profession. In the case sub judice the question is whether the conviction was relevant to an assessment of the credibility of a criminal defendant. Therefore, the light under which the conviction is examined as well as the effect it would produce on the examiners is drastically different. A second basic difference is that the Board of Examiners in Lazzell was apprised of the circumstances attending Lazzell‘s convictions. In the instant case there is no such factual background. Because of these differences and because of the unique aspects of the criminal trial process, we decline to apply the holding of Lazzell to the instant circumstances. However, while Lazzell may not be a controlling precedent in our present inquiry, the case is instructive.
The Lazzell Court found that conduct must be “intentional” and “not accidental” to constitute moral turpitude. 172 Md. at 322. We agree. Accidental or negligent conduct
At this point, then, our conclusion is obvious. Indecent exposure is a general intent crime that includes within its scope an innumerable variety of offenses, including acts that are reckless or negligent. As such its meaning is entirely too unspecific to warrant the appellation of a crime of moral turpitude, at least in the context with which we are here concerned.
This leaves one possible category of offenses within which indecent exposure may yet fit, i.e., the lesser violations which affect credibility. We need not pause long here as our previous discussion covers most of the relevant ground.
As we said before, Cousins mandates that we take at least two factors into consideration; length of time and nature of the offense. The length of time involved here is three years. We have held longer periods to be insufficient to vitiate the import of a particular crime and do not consider this length of time significant enough to be dispositive.
At the very heart of our determination of this matter, however, is the kinds of conduct which give rise to this offense. We believe that whether the crime sought to be used to impeach describes with sufficient specificity the conduct reflecting on the defendant‘s credibility is another factor to be weighed by the trial court. If the crime is so ill-defined that it causes the factfinder to speculate as to what conduct is impacting on the defendant‘s credibility, it should be excluded. Stated differently, since the issue is always the truth of the witness, where there is no way to determine whether a crime affects the defendant‘s testimony simply by the name of the crime that crime should be inadmissible for purposes of impeachment. It is clear to us that the introduction of a prior conviction for indecent exposure sheds no light on what it is the defendant has done and hence it is beyond
The argument arises that the defendant has the opportunity to explain the circumstances surrounding his prior conviction, allowing him to offset whatever prejudicial effect the conviction might have. This, however, is manifestly unfair and would amount to a retrial of the prior conviction before the present jury. The prejudice resulting from such a procedure clearly would outweigh whatever minute probative value the conviction had.
We hold, therefore, that, for purposes of impeachment, indecent exposure is not an infamous crime, a crime of moral turpitude, a felony, nor a crime involving dishonesty or deceit. Further, we hold, it 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; it is inadmissible for purposes of impeachment. Under the circumstances of the instant case, where the defendant was on trial for sex related offenses, the prejudicial effect of its admission, though impossible to gauge, could have been significant and, therefore, constitutes reversible error.
Judgment of the Court of Special Appeals reversed; case remanded to that court with instructions to reverse the judgment of the Circuit Court for Montgomery County and remand to that court for a new trial.
Costs to be paid by the County.
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
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.
“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
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),
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
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