Wicks v. State
Wicks v. State
Opinion of the Court
In this case we shall decide whether the trial judge had the discretion to exclude the defendant’s prior petit larceny conviction for impeachment purposes.
Jack Ellwood Wicks was indicted in the Circuit Court for. Anne Arundel County for sexual child abuse, assault, as
On appeal, Wicks argues that the trial court erred when it concluded that it had no choice but to allow the State to impeach Wicks’s testimony with his prior petit larceny conviction. Wicks contends that the trial court had the discretion to exclude his prior conviction because petit larceny is not an infamous crime and, even if petit larceny is an infamous crime, the trial court had the discretion to exclude the evidence because of its remoteness. The State maintains that petit larceny is an infamous crime and that infamous crimes are admissible for impeachment purposes without reference to their age. We agree with the State and explain.
In Maryland, a trial judge’s discretion to determine the admissibility of crimes that have been offered for impeachment purposes is limited by Maryland Code (1974, 1984 Repl. Yol.), § 10-905 of the Courts and Judicial Proceedings Article. Section 10-905 provides that “[ejvidence is admissible to prove the ... fact of [a witness’s] conviction of an infamous crime.” This statute deprives the trial court of discretion to determine the admissibility of infamous crimes by making infamous crimes automatically admissible for impeachment purposes. Prout v. State, 311 Md. 348, 535 A.2d 445 (1988). Thus, under the statute, the trial court’s discretion to exclude prior convictions offered for impeachment purposes is limited to non-infamous crimes.
Larceny was one of the first crimes recognized by the common law, 2 J. Turner, Russell on Crime 1000 (11th ed. 1985), and was divided into petit and grand by statute in
In 1809, the legislature divided larceny into simple and petit at the amount of five dollars and assigned different punishments to each offense. Chapter 138 of the Laws of 1809. Nevertheless, each offense remained a felony. Thus, in 1864 when § 10-905’s predecessor was enacted, petit larceny was a felony and thus an infamous crime that was admissible for impeachment purposes under the statute. By Chapter 78 of the Laws of 1933, the legislature changed the amount dividing petit and grand larceny from five dollars to twenty-five dollars and made larceny under the value of twenty-five dollars a misdemeanor.
However, this legislation did not change its status under § 10-905 which determined an infamous crime to be a conviction which rendered an individual incompetent to testify at common law. Thus, although petit larceny is now a misdemeanor, it was clearly a felony at common law and “infamous” within the meaning of § 10-905. The trial judge was therefore correct in concluding he had no discretion to exclude this prior conviction when offered for impeachment purposes.
Nonetheless, even if we were to conclude (which we do not) that the change of petit larceny to a misdemeanor prevents its use for impeachment because it was no longer a felony, the result here would be the same.
Infamous crimes at common law also included the crimen falsi. Prout, 535 A.2d at 451; Garitee v. Bond, 102 Md. 379, 383, 62 A. 631, 633 (1905). Therefore, if petit larceny is a crimen falsi it is admissible under § 10-905 without regard to whether it was, or is currently, a felony or a misdemeanor. Thus, the question to which we now turn is whether petit larceny is a crimen falsi. We conclude that it is.
Crimes historically classified as crimen falsi include crimes in the nature of perjury or subornation of perjury, 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. Black’s Law Dictionary 335 (5th ed. 1979) (citation omitted). We find that theft, in any amount, is the embodiment of deceitfulness. Thus, in applying the above definition to petit larceny, we cannot avoid the conclusion that petit larceny is a crimen falsi and, thus, an infamous crime within the meaning of § 10-905. Our conclusion is buttressed by the fact
Wicks further argues that, even if petit larceny is an infamous crime within the meaning of § 10-905, the trial judge still had the discretion to exclude evidence of his prior conviction if he determined that it was too remote, or if he concluded that its probative value was outweighed by its prejudicial effect. However, this Court has previously held that “where [a] prior conviction [is] for an infamous crime, evidence of it is admissible without reference to the time of its commission, for such bearing and weight on credibility as the trier of fact may give it under the circumstances.” Cousins v. State, 230 Md. 2, 4-5, 185 A.2d 488, 489 (1962) (footnote omitted). Thus, the fact that an infamous crime is remote does not negate its admissibility under § 10-905; it is admissible for impeachment purposes irrespective of its age. Moreover, it is only when a prior conviction is for a wm-infamous offense that the trial judge has the discretion to balance its probative value against its prejudicial effect in determining its admissibility. Prout, 535 A.2d at 452. When a conviction is for an infamous crime it is admissible under § 10-905 without regard to its prejudicial effect. Ricketts v. State, 291 Md. 701, 708, 436 A.2d 906, 910 (1981). Accordingly, Wicks’s argument that the trial court had the discretion to exclude his prior petit larceny conviction either because it was too remote or prejudicial must fail.
Wicks further argues that our holding will lead to absurd results. He claims that it is absurd that a person convicted of larceny of a candy bar at age 18 may be impeached with
JUDGMENT AFFIRMED. COSTS TO BE PAID BY THE APPELLANT.
. It is evident that petit larceny was not a form of treason at common law and we shall discuss this point no further.
. In the late 1700’s, in Massachusetts, 12 pence would buy a pound of starch. Eleven pence would buy a pound of coffee or ham, and ten pence would buy a bushel of apples. M. Maulhall, Dictionary of Statistics 488 (4th ed. 1899 & republished 1969).
. This explains the fact that larceny is virtually always listed among those offenses that were felonies at common law without a distinction being made between petit and grand larceny. 3 Op.Atty.Gen. 86 (1918); Ginsberg & Ginsberg, Criminal Law and Procedure in Maryland 6-7 (1940); R. Perkins & R. Boyce, supra, at 14; 1 Wharton's Criminal Law, supra, § 17, at 81.
. Section 3-4(c) provides that ‘‘[n]o person shall be registered as a qualified voter if he has been convicted of theft or other infamous crime, unless he has been pardoned, or, in connection with his first such conviction only, he has completed any sentence imposed.... ” (emphasis supplied).
. See Md. Const. (1981 Repl.Vol.), Art. IV, § 18(a), and Md.Code (1974, 1984 Repl.Vol.), § l-201(a) of the Courts and Judicial Proceedings Article. The statute directs liberal construction of our rule-making power and explains that the power includes, among other things, “the admissibility of evidence in all cases, including criminal cases.” The area of law addressed in this opinion would appear to be an appropriate one for consideration by the Rules Committee. See, e.g., Ricketts v. State, 291 Md. 701, 703-705, 436 A.2d 906, 907-909 (1981); Burrell v. State, 42 Md.App. 130, 399 A.2d 1354 (1979); 3 J. Weinstein and M. Berger, Weinstein’s Evidence, Ch. 609 (1987).
Concurring Opinion
concurring.
I concur in the result, but I would hold the misdemeanor of theft to be an infamous crime only because it is a crimen falsi. In recognition of established precedent, and in the absence of a constitutionally grounded objection, I concur with the holding that the trial judge may not exclude evidence of a previous conviction of an infamous crime even though its potential for improper prejudice outweighs its probative value.
Reference
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- Jack Ellwood WICKS v. STATE of Maryland
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