Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Thomas v. State – Prior Convictions

Thomas v. State, 422 Md. 67 (2011).

            Evidence – Impeachment with Prior Conviction

(Case should not be confused with the 2012 Maryland case of Thomas v. State, a case about Miranda and confessions.)

Petitioner was convicted in trial court of carrying a handgun.  Petitioner appealed his conviction and asked the Court of Special Appeals to determine whether the trial court erred in not allowing him to impeach a State’s witness’s testimony with evidence of either the witness’s prior conviction or the conduct underlying that conviction. The Court of Special Appeals affirmed the judgment of conviction, concluding that the trial court did not abuse its discretion in disallowing either form of impeachment evidence.

The issue before the Court of Appeals was whether the trial court erred in refusing to allow defense counsel to impeach the State’s “star witness” with a prior theft conviction or the underlying conduct because the conviction was based on a guilty plea where the witness was not represented by counsel and had not waived her right to counsel?

The Witness who testified had been convicted of motor vehicle theft in March 2007, but at the Witness’s hearing she was not given the right to counsel and never waived her 6th Amendment Right.  Therefore, the Court of Appeals determined that under Loper, a Supreme Court case in which the Court explained that the “rule against use of uncounseled convictions to prove guilt was intended to prohibit their use ‘to impeach credibility,’ because ‘the absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt,” the trial court neither erred nor abused its discretion in refusing to allow Petitioner to impeach Ms. Williams with evidence of that conviction.

However, the Court of Appeals determined that the trial court did err in prohibiting Petitioner’s counsel from questioning the Witness, pursuant to Md. Rules of Evidence 5-608(b), about the conduct underlying the same conviction.  Under this Rule, the questioner must (1) show that the witness’s prior conduct sheds light on the witness’s personal credibility, and (2) if the opposing party objects, establish “a reasonable factual basis for asserting that the conduct of the witness occurred.” Md. Rule 5–608(b). Additionally, “[t]he conduct may not be proved by extrinsic evidence.” Id.  Thus, the Court of Appeals distinguished the case at hand from Pantazes v. State, 376 Md. 661 (2003), in which the only evidence offered by the questioner to show a reasonable factual basis for the asserting that the conduct of the witness occurred were two affidavits not mentioning the conduct at all.  Unlike Pantazes, in this case, the State’s undisputed proffer established that the Witness pleaded guilty to the crime of motor vehicle theft, thereby formally ‘admitting’ in open court to having committed that offense, was enough to establish a “reasonable factual basis” that the Witness’ conduct occurred.