Lead Opinion
This case involves Maryland Rule 1-502, which governs the admissibility of prior convictions for impeachment purposes. It provides in pertinent part:
“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 cross-examination, 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.”1
We granted certiorari to consider whether a three-year old conviction for distribution of cocaine may be used to impeach a ■witness’s credibility under Rule 1-502.
I
By a statement of charges filed on May 11, 1992 in the District Court of Maryland sitting in Kent County, the State
“James Coleman, the victim, testified that, on the evening of May 7, 1992, he was using a public telephone to converse with ... Rhonda Thorpe ... when [Giddens] drove up across the street, parked his car, and approached him. While still in the middle of the street, [Giddens] pulled out a black pistol and asked when Coleman was going to get off the phone. Coleman said that, although he knew it was a gun that [Giddens] had, he asked ‘is that a gun you are pointing at me?’ to which [Giddens], who was about three feet away, replied ‘yes, it is. Do you have an f-ing problem with it?’ At that point, Coleman ended his conversation and walked to [Ms. Thorpe’s] house, leaving [Giddens] at the phone booth. Coleman said that he did not know [Giddens] at the time but learned his identity later. He stated that some time after the incident, he passed [Giddens] on the street, that [Giddens] told him that he did not have to say anything against [Giddens] in court, and that he should not have been on the corner in any event ‘because it is a drug infested corner.’ Coleman identified [Giddens] in court as the person who accosted him.
“Ms. Thorpe provided some corroboration for Mr. Coleman’s story. The heart of her testimony was the statement: T was talking to [Coleman], and all I heard was “Have you got a problem with that?” [Coleman] says, “Is that a gun you are holding?”.... ’ That was the State’s case.”
Giddens denied the entire incident, claiming that Coleman had identified the wrong person. Consequently, as the intermediate appellate court said, the issue before the jury was purely one of credibility: should it believe Coleman or Giddens?
After the State presented its case, Giddens stated his intention to testify. At that point, the prosecutor indicated
After noting that Rule 1-502 controls the admissibility of prior convictions for impeachment purposes, the court ruled as follows:
“The question is whether it would be a crime of moral turpitude. It is a felony. Therefore, he has been convicted of a felony, which requires felonious intent to commit the offense—in this case, distribution of a controlled dangerous substance. The Court finds that that is ... conduct which is base or vile and contrary to the accepted and customary conduct between men. Therefore, I find that it is a crime of moral turpitude.
“Next, I need to determine ... whether or not its probative value of admitting the evidence outweighs the danger of unfair prejudice to the witness or the objecting party.
“In this case, the offense for which he is being tried is a battery, which has no relationship to distribution of a controlled dangerous substance. I find that I will give a cautionary instruction and instruct them as to how they can utilize it. But I believe that the probative value of admitting the evidence outweighs the danger of unfair prejudice in view of the charges in this case. If this were a charge of distribution of a controlled dangerous substance, I would have a different finding. But in view of the charges and the difference, I will permit [the introduction of the conviction] over objection.”
Following this ruling, Giddens testified and admitted on direct examination that in 1989 he had been convicted of distribution of cocaine and that he had gone to prison. At the close of all the evidence, the court instructed the jury that it
The jury found Giddens guilty of assault; he was sentenced to 15 years incarceration, with all but eight years suspended, and five years supervised probation upon release. Giddens appealed to the Court of Special Appeals; that court, by a divided 2-1 vote, reversed the judgment, of the circuit court. See Giddens v. State,
It was then explained that the primary issue before the court was whether the offense of distribution of cocaine fell within the category of an “other crime relevant to the witness’s credibility.” Id. at 589,
Judge Motz “reluctantly” concurred in the result. She said that she was “troubled” by the holding “that a conviction for distribution of a controlled dangerous substance is never admissible for impeachment purposes under Md.Rule 1-502.” Id. at 593,
In his dissenting opinion, Judge Joseph Murphy stated his belief that “[a] conviction for distribution of cocaine is relevant to a person’s credibility.” Id. at 594,
Before us, the State reasserts its contention that a prior conviction for distribution of cocaine is relevant to credibility. It does not suggest that cocaine distribution is an infamous crime, but rather maintains that the offense is an “other crime relevant to the witness’s credibility” and as such is admissible for impeachment purposes under Rule 1-502. In addition, the State argues that the crime of cocaine distribution has a commonly understood meaning and is not so “ill-defined” that the fact finder would be put in a position of speculating what the witness did to be convicted of the crime. It urges us to reverse the Court of Special Appeals’ judgment and reinstate the judgment of the Circuit Court for Kent County.
Giddens maintains that a prior conviction for drug distribution is irrelevant to credibility. He points to the definition of the crime and concludes that there is nothing in the definition that requires any degree of stealth, surreptitiousness, secretiveness, or effort to avoid detection. He also contends that the crime of drug distribution encompasses so broad a spectrum of behavior as to bring within its ambit conduct that is not probative at all of a person’s credibility. For example, Giddens argues, handing a marijuana cigarette to a friend at a party or sharing a small quantity of cocaine falls within the definition of drug distribution but says nothing about an individual’s veracity.
Giddens further claims that practical problems would arise if a prior conviction for drug distribution could be used to impeach a witness. He notes that, because some types of drug distribution may reflect on a witness’s credibility, while other instances of drug distribution have no bearing on a witness’s veracity, trial judges would need to look beyond the name of the offense to determine if the prior conviction was relevant to credibility. Giddens claims that mini-trials, where trial judges attempt to parse out the underlying facts of the prior conviction, would routinely occur. According to Giddens, such a result would encourage judicial inefficiency and would be inconsistent with our prior decisions which hold that only
Ill
Rule 1-502 essentially creates a three-part test for determining whether prior convictions may be admitted for impeachment purposes. First, subsection (a) sets forth the “eligible universe” for what convictions may be used to impeach a witness’s credibility. This universe consists of two categories: (1) “infamous crimes” and (2) “other crimes relevant to the witness’s credibility.”
At common law, one who had been convicted of treason, any felony, a misdemeanor involving dishonesty, or crimes relating to the obstruction of justice, was considered incompetent to testify at any trial. See McCormick on Evidence (John William Strong ed., 4th ed. 1992) § 42, at 142. Therefore, at common law, an individual convicted of an “infamous crime” was disqualified from testifying. Prout, supra,
In Wicks v. State,
We first note that:
“In a purely philosophical sense it can be said, understandably, that all violations of the law, by their very nature, involve some element of dishonesty. Thus, one could argue that jay walking, spitting on a sidewalk, running a red light or a stop sign, and exceeding the speed limit, however slightly, are ‘dishonest’ because they involve acts for which one can be punished by the State or its subdivisions.”
Gregory v. State,
It is interesting to note that the question before us today was considered at a public meeting conducted by the Court on October 24, 1991, immediately prior to final adoption of Rule 1-502. Our discussion clearly indicates that we foresaw the issue at that time, but decided to not address it.
As already observed, we have held that a prior conviction for simple possession of narcotics has no bearing on credibility. See Morales, supra,
In Carter v. State,
*217 “[Ajppellant’s prior conviction for manufacturing drugs is relevant to the issue of his credibility. This particular crime necessarily requires several steps involving premeditation and conscious violation of the law—acquisition of the raw materials for making drugs, processing the material, and finding a means of distributing the drugs. Furthermore, all of these acts must be carried out surreptitiously to avoid detection and arrest.”
Id. at 693,
“We believe that drug manufacturing ... is relevant to the issue of appellant’s propensity to tell the truth. A person who has committed crimes that posed grave danger to the fabric of society, that only could have been carried on furtively, and that required him to take great pains to conceal his conduct, would probably not be adverse to concealing the truth if it is to his advantage to do so.”
Id. at 694,
Similarly, we believe that an individual convicted of cocaine distribution would be willing to lie under oath. “[A] narcotics trafficker lives a life of secrecy and dissembling in the course of that activity, being prepared to say whatever is required by the demands of the moment, whether the truth or a lie.” United States v. Ortiz, 553 F.2d 782, 784 (2nd Cir.), cert. denied,
We are aware that under article 27, § 286,
Although, in theory, some activity that falls within the definition of drug distribution would not be probative of an individual’s lack of veracity, the vast majority of convictions for cocaine distribution are relevant to credibility. As to this, we quote with approval from Judge Murphy’s dissenting opinion below.
“We do indeed see many drug cases, but of the cocaine distribution cases which come before the trial and appellate courts of this state, rare are the ones that do not involve surreptitious behavior. That appellant was sentenced ‘to prison’ indicates that he was guilty of a serious violation of the controlled dangerous substance laws. There is simply no warrant to declare all cocaine distribution convictions ineligible for impeachment because a minuscule number of them may not entail secretive behavior.”
Giddens, supra,
The crime of cocaine distribution is not so “ill-defined” that a jury would have difficulty determining the precise nature of the offense. The offense is unlike that involved in Ricketts, supra,
Other courts have similarly concluded that a prior conviction for drug dealing is relevant to a witness’s credibility. See State v. Pierce,
As we have said, however, we agree with the former line of cases holding that such a conviction is relevant to credibility. After determining that the crime of cocaine distribution falls within the eligible universe of offenses that may be used for impeachment purposes, we proceed to the second step which requires us to ensure that the conviction was not more than 15 years old, that it was not reversed on appeal, and that it was not the subject of a pardon or a pending appeal. See Md. Rule l-502(b), (c). In the instant case, the conviction was three years old and was not reversed on appeal or the subject of a pardon or a pending appeal.
Finally, the third step requires the trial court to determine that the probative value of the prior conviction outweighs
“[AJfter finding that it is a crime of moral turpitude, I need to determine whether or not its probative value of admitting the evidence outweighs the danger of unfair prejudice to the witness or the objecting party.
“In this case, the offense for which he is being tried is a battery, which has no relationship to distribution of a controlled dangerous substance. I find that I will give a cautionary instruction and instruct them as to how they can utilize it. But I believe that the probative value of admitting the evidence outweighs the danger of unfair prejudice in view of the charges in this case. If this were a charge of distribution of controlled dangerous substance, I would have a different finding.”
Although the trial court improperly used the term “moral turpitude,” it nevertheless properly weighed the probative value against the danger of prejudice. We note that when a trial judge weighs the probative value against the prejudicial effect, an “important factor to remember is that a prior conviction which is similar to the crime for which the defendant is on trial may have a tendency to suggest to the jury that if the defendant did it before he probably did it this time.” Prout, supra,
“The Subcommittee intends that the offenses be viewed categorically and that the court not examine the specific facts underlying the prior conviction. The marginal gain in probative value on the question of credibility in a particular case [is] likely to be substantially outweighed by the expenditure of judicial resources necessary to examine the facts underlying prior convictions in every case.” (emphasis in original).
In the instant case, the trial court appropriately declined to examine the underlying facts of Giddens’s prior conviction for cocaine distribution.
We therefore conclude that the trial court properly admitted Giddens’s prior conviction for distribution of cocaine for the limited purpose of impeaching his credibility. Consequently, his conviction for assault should have been affirmed.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR KENT COUNTY. COSTS TO BE PAID BY RESPONDENT.
ELDRIDGE and BELL, JJ., dissent.
Notes
. Rule 1-502 also contains other limitations. Subsection (b) states that “[e]vidence of a conviction under this Rule is not admissible if a period of more than 15 years has elapsed since the date of the conviction.” Subsection (c) provides that evidence of a prior conviction shall be excluded if (1) the conviction has been reversed or vacated; (2) the conviction has been the subject of a pardon; or (3) the conviction is the subject of a pending appeal.
. On July 1, 1994, when the new Rules of Evidence become effective, Rule 1-502 will be replaced by Rule 5-609, which is virtually identical to Rule 1-502.
. There were three separate opinions written by the intermediate appellate court—the decision rendered by Chief Judge Wilner, a concurrence by Judge Motz, and a dissent authored by Judge Joseph Murphy.
. We reaffirm our statement in Prout, supra,
. Crimes classified as crimen falsi include crimes in the nature of peijuiy, false statement, criminal fraud, embezzlement, false pretense, or any other offense involving some element of deceitfulness, untruthfulness, or falsification bearing on the witness’s propensity to testify truthfully. Beales v. State,
. In Prout, the three judge plurality believed that the issue of whether a particular crime bears on credibility should be viewed as a matter of trial court discretion. But the two concurring judges and two dissent
. Section 10-905(a) currently provides in pertinent part:
“Evidence is admissible to prove the interest of a witness in any proceeding, or the fact of his conviction of an infamous crime.’’
We have held, however, that to the extent that Rule l-502(a) is inconsistent with this section, the rule prevails. Beales, supra,
. We transcribe here the pertinent parts of the October 24, 1991 audio tape:
Murphy, C.J.: "Is [drug] distribution within this?"
Chasanow, J.: "That is a subject somebody is going to have to decide at a later date.”
Murphy, C J.: "That leaves the trial judges ... hanging out there not knowing ... what ... is eligible.”
* * * * #
McAuliffe, J.: "The only way we'll decide [whether convictions for drug distribution or possession of drugs with intent to sell are relevant to credibility] is to get a case up here and decide it.”
Eldridge, J.: "Grant cert.; we’ll decide it.”
Bell, J.: "We’ll get it.”
McAuliffe, J.: "Sounds like it.”
Wilner, C J. (Chairman of the Rules Committee): "There are plenty to choose from.”
. Section 286(a)(1) makes it unlawful to, inter alia, distribute a controlled dangerous substance.
. Dyce did not decide whether a prior conviction for drug distribution is relevant to a witness's credibility. See
. With regard to the general admissibility of prior cocaine distribution convictions for impeachment purposes, we provide the following guid
Dissenting Opinion
dissenting:
For the reasons set forth in Chief Judge Wilner’s opinion for the Court of Special Appeals, Giddens v. State,
