Thе gory details of this crime need not be recounted with specificity. Suffice it to say that the facts clearly show that the prosecutrix was brutally beaten about her face and body, raped, sodomized and forced to perform fellatio at night on the ground in an outdoor area near her home. She identified Thomas Wayne Cox as her assailant to her mother and *176 the police immediately after the attack as someone whom she knew from the neighborhood who gave as his excuse for his assault that he had just gotten out of jail and “had not had a woman in six months.”
Cox was arrested the same night in a house on the property where the criminal acts took place. His clothing was dirty and dusty, with grass stains on the elbows of his jacket and the knees of his pants; he also had several “newly made” abrasions or scratches on his arm. He had been released from the Maryland Correctional Institute in Hagerstown that same day.
At his trial before a jury in the Circuit Court for Baltimore County, Cox did not dispute the fact that the victim had been physically and sexually abused. He did, however, maintain that he was not her assailant. To this end he produced alibi witnesses to generate a reasonable doubt that he was the criminal agent. These witnesses placed him in the general vicinity of the scene of the crime before, during, and after its commission but attempted to show his whereabouts and activities at the specific time of the crime so as to prove it impossible for Cox to have assaulted and brutalized the victim.
The matter reaches us because of the following colloquy which transpired at trial when the prosecutrix was being cross-examined by defеnse counsel:
Q Do you know a Donald Yrhovac?
A Donald Vrhovac, yes, I do.
Q How do you know him?
A Because I used to go with him.
Q You used to date him, right?
A Yes, sir.
* * * * * *
Q Did you ever make an allegation, a criminal charge against a Mr. Vrhovac claiming an assault on you?
The State’s objection to this question was sustained, and at the ensuing bench conference, the following colloquy occurred:
*177 [DEFENSE COUNSEL]: I think I should proffer in this fashion, I have information that the witness made a criminal charge against this Vrhovac of assault on her. And then subsequent, during the course of the trial admitted that she did not tell the truth, that it was not an assault on her. And that he was, as a result of her recanting her statement, found not guilty.
MR. LEVITZ: How is that relevant to this trial?
MR. KAHN: Credibility.
THE COURT: If you have a whole lot of them, but just one isolated instance.
MR. KAHN: Testimony, false testimony that was recanted.
MR. LEYITZ: From.what you have indicated she told the truth in court.
MR. KAHN: No. She first came into court and said that he did commit the assault, and then on cross-examination the information I have is that she then recanted it.
MR. LEVITZ: Judge, this is—
THE COURT: I think it’s an independent matter. And if it were more than one, but one isolated instance I don’t think it’s relevant to this, so I will sustain the objection.
Cox was convicted and sentenced to prison for life. He appealed to the Court of Special Appeals which reversed his convictions,
Cox v. State,
It is clear that defense counsel was attempting to impeach the testimony of the prosecutrix for it was her identification of the defendant that was the sole piece of direct evidence linking him to the crime. He sought to establish that she was lying by showing she had on a prior occasion under oath charged another with criminal assault and recanted that charge under cross-examination. The trial court denied him *178 the opportunity to pursue this course and he maintains this ruling was reversible error.
We begin our discussion by noting that the trial of any case is a search for the truth. The strength of each side of an issue rests upon the believability of the evidence offered as proof. This evidence unfolds, in large measure, as testimony of the witnesses is produced at trial. The tool available to each side to test the believability of the testimony is cross-examination.
This Court has recognized as a general rule that a witness may be cross-examined “on such matters and facts as are likely to affect his credibility, test his memory or knowledge, show his relation to the parties or cause, his bias, or the like.”
Kantor v. Ash,
To assist the trial judge, our courts have recognized and enforced certain principles. We have permitted extrinsic evidence of a prior conviction of a character witness or the defendant himself to be introduced to question the veracity and credibility of the witness or the defendant.
See Taylor v. State,
We have also permitted a witness to be cross-examined about prior bad acts which are relevant to an assessment of the witness’ credibility.
See Mahan v. State,
We have also been steadfast in holding that mere accusations of crime or misconduct may not be used to impeach.
See Martens Chevrolet v. Seney,
In the instant case, defense counsel was not inquiring into prior convictions or an accusation of misconduct but seeking to determine the fact of priоr misconduct. Under such circumstances, it is the responsibility of the trial judge to determine the relevance and materiality of the alleged prior misconduct, for it is purely collateral to the issue on trial and should only be admitted if probative of a lack of credibility. The trial judge must constantly be alert to make certain that thе probative value of the inquiry outweighs its potential prejudice to the witness and that the inquiry does not stem primarily from a desire to harass or embarrass the witness.
In this connection, the problem becomes more acute when it is the defendant on the witness stand.
See United States v. Schiller,
In the instant case wе are not concerned with the impeachment of a defendant or a character witness. The issue we must resolve is rather straightforward: to what extent may the testimony of a prosecuting witness in a rape *181 case be impeached on cross-examination? We have already stated the general rule that any witnеss may be cross-examined on matters and facts affecting his credibility, so long as such facts are not immaterial or irrelevant to the issue being tried.
The State argues that the inquiry sought by defense counsel is not probative of the witness’ credibility because the misconduct is in the nature of a mere accusation. It cites several сases to buttress its contention. For instance, the State relies on
Martens Chevrolet v. Seney,
One other case cited by the State is instructive because it involves two improper inquiries on cross-examination that indicate the ways in which facially similar cases are distin
*182
guishable from the case at bar. In
Rau v. State,
“Q. Didn’t you about a year ago tell your mother that a man by the name of Horton who was your neighbor, had put his person in your person.” [Id at 614,105 A. 867 .]
This question obviously did not relate to the witness’ credibility. Thus, the Court held that this question was improper because it did not tend to impeach hеr general character for truth and veracity. The trial court also properly sustained the State’s objection to the following question asked of the prosecutrix’s father:
“Q. You have been sworn before; I want to ask you, Mr. Lohmeyer, if your daughter Martha, the prosecutrix in this case, didn’t tell you that a man by the name of Hutton, a neighbor across the road where you lived about a year ago, that about that time that this Mr. Hutton had sexual intercourse with her, and if she didn’t thereafter tell you that it was not so and that she had told a lie on Hutton (Horton)?” [Id at 616,105 A. 867 .]
This question reached a specific act of untruth relevant to the prosecutrix’s credibility; however, the inquiry was madе during the examination of another witness, not on cross-examination of the one charged with the untruth. The Court alluded to the significance of asking this question of the prosecutrix rather than her father:
It will be seen that the prosecuting witness was not asked on cross-examination whether she had told a lie concerning the alleged intercourse with Hutton or Horton, but whether or not she had told her mother a year ago that a man by the name of Horton, a neighbor of hers, had sexual intercourse with her. [Id at 617,105 A. 867 .]
As this passage suggests, the facts in Rau disclosed a question that may have been proper for cross-examination of the witness. However, counsel failed to cross-examine the wit *183 ness spеcifically about an act reflecting on her credibility and erred in attempting to broach the subject through extrinsic testimony.
As we see it, the case
sub judice
is clearly distinguishable from these cases. Defense counsel’s inquiry focused on the fact of prior misconduct when the witness had actually lied under oath in a similar situation. Counsel’s proffer indicated a proper line of cross-examination since the information to be extracted from the witness would relate to her character for veracity and thereby allow the fact finder to assess her credibility. Of course, if the witness denied the prior misconduct; the examiner would be bound by her answer, in that, he could not introduce extrinsic evidence to prove the discrediting acts.
See Smith v. State,
While the right to cross-examine is not absolute and may be restricted by the trial judge, such restriction should be manifested by the exercise of sound discretion. As Chief Judge Murphy (then Chief Judge of the Court of Special Appeals) said in
DeLilly v. State,
We are, of course, mindful of the general rule so frequently citеd that the allowance or disallowance of questions on cross-examination is normally left to the sound discretion of the trial judge. But where the limitations imposed by the court upon cross-examination are such as plainly inhibit the ability of the accused to obtain a fair trial, the general rule is manifestly inapplicable. Shupe v. State,238 Md. 307 [208 A.2d 590 ], The real object of cross-examination is “to elicit all the facts of any observation or transaction which has not been fully explained.” Williams v. Graff,194 Md. 516 [71 A.2d 450 ], and cases cited at p. 523 [71 A.2d 450 ]. That a witness may be cross-examined on such matters and facts as are likely to affect his credibility, test his memory or knowledge or the like, is a fundamental concept in our system of jurisрru *184 dence. Kantor v. Ash,215 Md. 285 [137 A.2d 661 ]; Bryant v. State,4 Md.App. 572 [244 A.2d 446 ]. And cross-examination to impeach, diminish, or impair the credit of a witness is not confined to matters brought out on direct examination; it may include collateral matters not embraced in the direct examination to test credibility and veracity, it being proper to allow any question which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity, character, or credibility. 3 Wharton’s Criminal Evidence, Sections 870, 871; 58 AmJur. Witnesses Section 625. Of course, the right to cross-examine effectively necessarily includes the right to place the testimony of a witness in its proper setting to fairly enable the jury to judge its credibility. Smith v. Illinois, m U.S. 129 [88 S.Ct. 748 ,19 L.Ed.2d 956 ]; Alford v. United States,282 U.S. 687 [51 S.Ct. 218 ,75 L.Ed. 624 ]; Plank v. Summers,205 Md. 598 [109 A.2d 914 ].
Here the inquiry had substantial probative force and there was no indication that defense counsel was harassing the witness by asking an unfounded question or seeking primarily to embarrass the witness. Indeed, the proffered question would have gone to the very heart of the witness’ credibility. The evidence of the crime was extremely damaging and Cox’s defense necessarily rested on the fact finder not believing the prosecutrix’s statement that he was her assailant. The trial judge in denying defense counsel the opportunity to cross-examine as proffered abused his discretion (assuming that he exercised it in the first instance). 2
Finally, the State argues that any error presented by this ruling was harmless beyond a reasonable doubt. We disagree. In
Dorsey v. State,
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. BALTIMORE COUNTY TO PAY THE COSTS.
MURPHY, C.J., concurs in the result.
Notes
. Section 10-905 of the Courts and Judicial Proceedings Article, Md.Code (1974, 1980 Repl.Vol.), provides:
(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 *179 conviction has been reversed, and there has been no retrial or reconviction.
(b) Certifícate under seal as evidence. — The certificate, under the seal of the clerk of the court, of the court in which the conviction occurred is sufficient evidence of the conviction.
. The trial judge mistakenly believed that to impeach the witness counsel would have to proffer multiple acts of misconduct by the witness.