finding that because the State has the burden of persuasion, the death sentence may not be imposed when aggravating and mitigating factors are balanced evenly
How later courts described this case
- finding that because the State has the burden of persuasion, the death sentence may not be imposed when aggravating and mitigating factors are balanced evenly
- although Maryland’s death penalty statute does not require the prosecution to disprove the existence of miti gation, it does place on the defendant the risk of nonproduction and nonpersuasion
- "[T]his Court has consistently held that if a prospective juror `is unable to apply the law' or `holds a particular belief . . . that would affect his ability or disposition to consider the evidence fairly and impartially,' he `should be excused for cause.'"
- argument that Maryland capital punishment statute places improper burden on defendants at sentencing phase "made in virtually all death sentence appeals in this Court"
Written by the judges who cited it.
The opinion
COLE, Judge,
concurring:
I agree with the judgment and with all parts of the Court's opinion except Part III, which deals with impeach *485 ment of an absent witness’ credibility. My initial objection is that the Court addresses the issue at all, since it was not preserved for appellate review. More particularly, I object because assuming the issue is preserved, the Court’s analysis and resolution of it is incorrect under present Maryland law.
In this case the defendant sought to impeach the prior testimony of an absent witness by producing the record of a 1983 Delaware conviction for harboring and contempt of court. The defendant moved to redact that part of the record which showed the dispositions of the convictions, which in each case was a $25.00 fine. The State maintained that the entire document should be admitted. The trial court, while doubting whether the crimes were of an impeaching nature and admissible at all, nevertheless indicated that based “on fairness,” it would admit the dispositions as well as the convictions. Later on in the trial, by agreement of counsel and on motion of defense counsel, the entire record of the witness comprising both convictions and fines was admitted without objection.
Under this factual backdrop, as I see it, no issue regarding admissibility of the record of the witness remains for appellate review. Our cases make clear that a prior objection is waived when the entire record of conviction is introduced by the objecting party or by agreement of all counsel. Tichnell v. State, 287 Md. 695, 715-716 , 415 A.2d 830, 841 (1980). The issue is no longer viable.
Despite this posture of the case, the majority takes this opportunity, on these facts, to announce that Maryland adheres to the proposition that the punishment for a crime is admissible to impeach. I fail to see how the majority can reconcile this holding on these facts with Maryland law.
First of all, our decisions show that only certain crimes may impeach. See Ricketts v. State, 291 Md. 701 , 436 A.2d 906 (1981); State v. Huston, 281 Md. 455 , 379 A.2d 1027 (1977); Cousins v. State, 230 Md. 2 , 185 A.2d 488 (1962); Burgess v. State, 161 Md. 162 , 155 A. 153 (1931); Nelson v. *486 Seiler, 154 Md. 63 , 139 A. 564 (1927). In Ricketts , we said 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.” 291 Md. at 708 , 436 A.2d at 910 . It is clear to me, as it was to the trial judge, that neither harboring nor contempt of court is an impeaching crime. We further said, “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.” Id. at 713 , 436 A.2d at 913 . Certainly harboring and contempt of court are so vague and ill-defined as not to suggest the conduct which reflects on the witnesses’s credibility. It is clear to me that if these crimes do not impact upon credibility, then punishment for them is irrelevant.
But more important, it seems obvious that the punishment received for criminal behavior is immaterial no matter what the underlying crime. We suggested this in Ricketts when we said, “The only details ordinarily allowed to be presented to the jury [when using a prior connection to impeach] are the nature of the charge and the fact of conviction.” Id. at 703 , 436 A.2d at 907 . The reason for this limitation is obvious. By restricting the impeaching crimes to that conduct which is commonly understood to impact upon credibility, we avoid any undue prejudice to the witness and minimize the extent to which the jury is caused to speculate as to what the criminal behavior was.
On the other hand, the fact that a witness received a certain punishment causes the jury to speculate. The fact finder does not know what variables the sentencer considered. It is generally understood that punishment for the same crime for defendants of similar backgrounds differs radically from county to county and from judge to judge. I see no assistance to the jury (in determining the believability of a witness) in knowing that the witness was in jail for a long or short time or was released on parole or probation. *487 If anything, such evidence compounds the difficulty a jury would have in assessing the witness’s trustworthiness. The Supreme Court of Michigan in People v. Rappuhun, 390 Mich. 266, 273 , 212 N.W.2d 205, 208 (1973) stated the proposition rather succinctly:
“It is the prior conduct undertaken by the accused and not the ensuing punishment, which is relevant. Moreover, sentences for the same offense vary from tribunal to tribunal and judge to judge.” [Quoting lower court’s opinion, 26 Mich.App. 35, 39-40 , 181 N.W.2d 803, 805-06 .] [Emphasis supplied.]
The length of sentence, the conditions under which served and so on ... are not defendant’s conduct but an uncertain sequel. It is defendant’s conduct that is relevant and by which his credibility may be tested.
The majority cites several Maryland cases in support of its position decided at the turn of the century. In my opinion none of these cases can withstand critical analysis under present law.'