Love v. Curry

657 A.2d 796, 104 Md. App. 684, 1995 Md. App. LEXIS 96
CourtCourt of Special Appeals of Maryland
DecidedMay 1, 1995
DocketNo. 1341
StatusPublished
Cited by1 cases

This text of 657 A.2d 796 (Love v. Curry) 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
Love v. Curry, 657 A.2d 796, 104 Md. App. 684, 1995 Md. App. LEXIS 96 (Md. Ct. App. 1995).

Opinion

WENNER, Judge.

This matter comes before us on an appeal by Maria Lisa Love from a judgment entered by the Circuit Court for Baltimore County, after a jury returned a verdict in favor of appellee, Delores Christina Curry (Koscielski).1 On appeal, appellant presents us with the following questions:

1. Whether the trial court erred when it refused to admit evidence of appellee’s conviction for distributing/importing controlled dangerous substances?
2. Whether the trial court committed reversible error by allowing appellee to impeach appellant on a collateral matter by introducing testimony that appellant was in possession of an open container of beer when there was no evidence that appellant was under the influence of alcohol or intoxicated?
3. Whether appellee is contributorily negligent as a matter of law because she failed to judge the speed and distance of the approaching vehicle and stepped into the street to her peril?
4. Whether the trial court erred in instructing the jury?

Finding that the trial court erred in excluding evidence of appellee’s prior conviction for importing a controlled dangerous substance, we shall reverse the judgment of the circuit court and remand the case to that court for a new trial.

[689]*689DISCUSSION

This case began at dusk on 1 September 1988, when a car driven by appellant struck appellee as appellee was endeavoring to cross Old Eastern Avenue, in Baltimore County, Maryland. As a result of the accident, appellee and Robert Curry filed a complaint in the Circuit Court for Baltimore County seeking damages for injuries received by appellee as a result of appellant’s negligence and for loss of consortium. Subsequently, the claim for loss of consortium was dismissed.2 Ultimately, the case came to trial before a jury, which jury awarded appellee more than $224,000 in damages.

I.

Appellant first contends that the trial court erred by precluding her from impeaching appellee with evidence of appellee’s prior conviction for importing more than 28 grams of Phencyclidine (PCP), in violation of Maryland Code (1957, 1987 Repl.Vol.) Art. 27, § 286A. A violation of § 286A is a felony. Anyone convicted of violating § 286A may be fined not more than $50,000 and/or imprisoned for not more than 25 years. Appellee had violated § 286A approximately eight months after the accident occurred.

As the trial began, appellee moved in limine to preclude appellant from using her prior conviction for impeachment purposes, proffering that she intended to admit having smoked part of a PCP laced cigarette with friends, including one Ms. Philpot, several hours prior to the accident. We note here that Ms. Philpot later testified, contradicting appellee and stated that appellee was getting high throughout the afternoon. Nevertheless, the trial court reserved ruling on the motion until the trial had begun and both parties were ordered to refrain from mentioning appellee’s prior conviction during their opening statements.

[690]*690During the trial, appellant offered into evidence as Exhibit 8 a record of appellee’s conviction for importing a controlled dangerous substance. The following colloquy ensued:

LOVE’S COUNSEL: ... I am nevertheless offering this and ask the Court to permit me to introduce it into evidence concerning that conviction, because I believe our Court of Appeals is [sic] not spoken on that and I believe that the distribution of substances in view of the numerous problems that we are having in our society, specifically in our city and surrounding counties concerning the drug and drug abuse problem, while possession may not be a crime of moral turpitude, I believe that our Court of Appeals would consider that a distribution of this scourge on our society is a crime of moral turpitude.
KOSCIELSKI’S COUNSEL: I think this is what we already argued. The, the one case, Morales v. State, is right on point, too, says, despite Mr. Ferguson’s feelings to the contrary, it’s not what is referred to as crime of moral turpitude under the statute to permit the impeachment of a witness. So, therefore, we think it serves no other purpose than to, other than, than to prejudice the jury for no relevant reason to this case.
LOVE’S COUNSEL: Your Honor, 'I know we discussed this at the bench last week and your Honor ruled. I simply want to make sure I preserve this point for the record.
COURT: It’s preserved for the record. And I indicated that I think that I would deal with it when it arose. It has now arisen, and I will deal with it.
LOVE’S COUNSEL: Right.
COURT: I will not permit Defendant’s Exhibit No. 8 to be admitted into evidence, believing under the case of Morales v. State and Giddings [sic] v. State that a distribution of PCP is not a crime which is appropriately used for impeachment purposes.

Following this colloquy, Exhibit 8 was marked for identification only.

[691]*691A.

Whether a prior conviction for importing CDS can be used for impeachment purposes has not previously been addressed by Maryland’s appellate courts, although several similar drug offenses have been considered. See Morales v. State, 325 Md. 330, 600 A.2d 851 (1992) (possession of CDS not admissible); State v. Giddens, 335 Md. 205, 642 A.2d 870 (1994) (distribution of CDS is admissible); Carter v. State, 80 Md.App. 686, 566 A.2d 131 (1989) (manufacture of CDS is admissible). At the time of this trial, the admissibility of prior convictions for impeachment purposes was governed by Maryland Rule 1-502,3 which provided in pertinent part:

(a) Generally.—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 the crime was an infamous crime or other crime relevant to the witness’s credibility and the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party.
(b) Time Limit.—Evidence 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.
Hi * Hi ^ *

In the case at hand, the trial court likened importing CDS to possessing or distributing CDS. Relying on Morales, supra, and on our Giddens v. State, 97 Md.App. 582, 631 A.2d 499 (1993), the trial court concluded that appellee’s prior conviction was neither infamous nor relevant to appellee’s credibility. Seven months after the trial had been concluded, however, the Court of Appeals filed its State v. Giddens, 335 Md. 205, 642 A.2d 870

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Bluebook (online)
657 A.2d 796, 104 Md. App. 684, 1995 Md. App. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/love-v-curry-mdctspecapp-1995.