Kirby v. State

426 A.2d 423, 48 Md. App. 205, 1981 Md. App. LEXIS 235
CourtCourt of Special Appeals of Maryland
DecidedMarch 9, 1981
Docket762, September Term, 1980
StatusPublished
Cited by10 cases

This text of 426 A.2d 423 (Kirby v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirby v. State, 426 A.2d 423, 48 Md. App. 205, 1981 Md. App. LEXIS 235 (Md. Ct. App. 1981).

Opinions

[206]*206Weant, J.,

delivered the opinion of the Court. Wilner, J., filed a concurring opinion at page 211 infra.

On 12 March 1980, a jury in the Circuit Court for Baltimore County found the appellant Richard S. Kirby guilty of assault and assault with intent to rape. As a consequence the appellant was committed to the custody of the Department of Correction for a fifteen year period. Having noted a timely appeal, Mr. Kirby presents the following questions:

I. Did the trial judge abuse [its] discretion by admitting, for impeachment purposes, evidence of a twenty-five year old sodomy conviction obtained when Appellant was seventeen years old?
II. Did the trial court err in denying defense counsel the opportunity to ask the complaining witness on cross-examination if she was under the care of a psychiatrist?
III. Was Appellant’s arrest illegal due to lack of probable cause that he had committed a felony, therefore requiring that any evidence obtained as a result of the arrest should have been excluded?
IV. Was the evidence adduced at trial legally insufficient to establish Appellant’s criminal agency?

Because we find that all of these queries warrant negative responses, we shall affirm the challenged conviction.

I.

In 1956, when he was seventeen years old, the appellant was convicted of sodomy. Despite Mr. Kirby’s objection, the trial court allowed the prosecution to use this conviction to impeach his credibility. It was and is Mr. Kirby’s contention that

[207]*207[t]he extreme remoteness of the sodomy conviction, the fact that [he] was a juvenile under today’s standards when he was convicted and the prejudicial similarity to the offense with which [he] was on trial all required that the trial court, in [its] discretion, rule the conviction inadmissible for impeachment purposes.

In our recent opinion of Burrell v. State, 42 Md. App. 130, 399 A.2d 1354 (1979), this Court reviewed the status of Maryland law with regard to impeachment of witnesses by a showing of a prior conviction. There, quoting Cousins v. State, 230 Md. 2, 4-5, 185 A.2d 488, 489 (1962), we said at pages 138-39, 399 A.2d at 1359:

"It has been held by this Court that evidence of the accused’s previous conviction of crime need not be restricted to infamous crimes or those involving moral turpitude, provided the violation of law may have some tendency to show that the person charged is not to be believed under oath. ... In such instances the exercise of discretion by the trial judge will not be interfered with on appeal unless the fact of the prior conviction is clearly irrelevant... . Where the conviction was for a crime not infamous, the length of time since it occurred considered with the nature of the crime has been deemed pertinent in citing relevancy. .. . We think that where the prior conviction was 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.” [Citations omitted].

The foregoing pronouncement prompts the following observations.

First, while we have been cited no case or cases wherein it has been stated definitively that sodomy is an infamous crime, we are convinced that it is such. In W. Clark and W. Marshall, A Treatise on the Law of Crimes (4th ed. 1940), [208]*208the authors state at section 464 that "[sjodomy or buggery is spoken of by the courts and in statutes as 'the unnatural crime,’ or 'the crime against nature.’ It is so disgusting a crime against morality and decency that it is punished by the common law, not as a misdemeanor merely, but as a felony.” Maryland in turn has held an infamous crime to be

such crime as involve[s] moral turpitude, or such as render[s] the offender incompetent as a witness in court, upon the theory that a person would not commit so heinous a crime unless he [is] so depraved as to be unworthy of credit. I Abbott’s Law Die. 602, and authorities there cited. The General Court of State in Evans v. Bonner, 2 H. & McH. 378, defined "infamous crime” to be one which rises at least to "the grade of felony.”

State v. Bixler, 62 Md. 354, 360 (1884). See also Black’s Law Dictionary 335 (5th ed. 1979), wherein infamous crime is defined as follows:

A crime which entails infamy upon one who has committed it. The term "infamous” — i.e., without fame or good report — was applied at common law to certain crimes, upon the conviction of which a person became incompetent to testify as a witness, upon the theory that a person would not commit so heinous a crime unless he was so depraved as to be unworthy of credit. These crimes are treason, felony, and the crimen falsi. A crime punishable by imprisonment in the state prison or penitentiary, with or without hard labor, is an infamous crime, within the provision of the fifth amendment of the constitution that "no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.” Mackin v. U.S., 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909; Brede v. Powers, 263 U.S. 4, 44 S.Ct. 8, 68 L.Ed. 132. It is not the character of the crime but the nature of the punishment which renders the crime "infamous.” Whether an offense is infamous de[209]*209pends on the punishment which may be imposed therefor, not on the punishment which was imposed. United States v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 370, 66 L.Ed. 700,

and Maryland Annotated Code article 27, section 553, which holds that "[e]very person convicted of the crime of sodomy shall be sentenced to the penitentiary for not more than ten years.” Therefore, in accordance with present day Maryland law, evidence of Mr. Kirby’s sodomy conviction was " 'admissible without reference to the time of its commission . . .’” Burrell, supra, 42 Md. App. at 139, 399 A.2d at 1359 (quoting Cousins, supra, 230 Md. at 5, 185 A.2d at 489).

Second, despite our reliance on Burrell’s proposition that "'where the prior conviction was for an infamous crime, evidence is admissible without reference to the time of its commission,’ ” we are uncomfortable with the thought that had the sodomy conviction in the instant case (or any infamous crime conviction for that matter) been a single, isolated incident, the prosecution could have used such to impeach Mr. Kirby, even after such a lengthy passage of time as twenty-fíve years. Nevertheless, such is the law.

Finally, we note that a contrary conclusion is not warranted even though Mr. Kirby was only seventeen years old when he was convicted of sodomy, since at that time the law regarded him an adult.

II.

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Kirby v. State
426 A.2d 423 (Court of Special Appeals of Maryland, 1981)

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426 A.2d 423, 48 Md. App. 205, 1981 Md. App. LEXIS 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-state-mdctspecapp-1981.