author: Gilbert, C. J.,

text:
    CONRAD WHITFIELD and NIGEL ANTONIO LITTLE v. STATE OF MARYLAND
    [No. 793,
    September Term, 1978.]

      Decided April 11, 1979.

      The cause was submitted on briefs to Gilbert, C. J., and Moore and Wilner.
    Submitted by Arnold M. Zerwitz and Michael S. Elder for appellants.
    Submitted by Stephen H. Sachs, Attorney General, Stephen Rosenbaum, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Harvey Greenberg, Assistant State’s Attorney for Baltimore City, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

A cadet guard at the Baltimore City Jail surreptitiously carried a handgun into the jail and delivered it to an inmate who intended to use the weapon to effect an escape. The plot was revealed before the escape occurred. As a result, the appellants, Conrad Whitfield (Whitfield), Nigel Little (Little), and Peteta Davis (Davis)* were indicted by the Grand Jury for Baltimore City and charged with conspiracy to violate the Maryland statute proscribing escape from jail. Md. Ann. Code art. 27, § 139(a). Whitfield, a then jail inmate, and Little, a then cadet guard, were also charged with a handgun violation, Md. Ann. Code art. 27, § 36B(b). Little was additionally charged with delivering “one .25 caliber automatic pistol” to Whitfield. All three accused pleaded not guilty to the indictments, and the case proceeded to a trial by jury on March 29, 1977. On the second day of trial, Judge David Ross declared a mistrial.

Three months later, June 22, 1977, a new jury, presided over by Judge Milton Allen, was sworn and the three defendants were retried. After a protracted trial, the jury found: 1) Whitfield guilty of the conspiracy and handgun charges, 2) Little guilty of the handgun and contraband charges but not guilty of conspiracy, and 3) Davis guilty of conspiracy.

The factual scenario began in the spring of 1976. From May to July of that year, Whitfield and one Thomas Brown were involuntary residents in the Baltimore City Jail. By happenstance, each was represented, on unrelated criminal matters, by the same attorney, Marshall Stewart. On July 2, 1976, Brown was in the Southwestern District Court for a hearing on a case there pending against him. Stewart, who was representing Brown in that proceeding, was also present. Brown took Stewart aside and told him he “had some information about a pistol” in the jail, and that he wanted “to speak to somebody” about it. Stewart informed the Police Captain in charge of the District, and Brown was taken to Central Police Headquarters where he gave a written statement relative to the details of the gun’s being in the jail.

Shortly thereafter, the police alerted the Warden of the jail that a pistol had been carried into the institution, and that Whitfield and Cadet Little knew where it was. Correctional Major Howard Parks, joined by Captain Calvin Young and Lieutenant William Britton, accosted Whitfield in a passageway of the jail and ordered him to accompany them to a secluded section. There, Young and Britton confronted Whitfield with the fact that they knew “that he was in possession of a weapon within the institution.” No Miranda warnings were given prior to the confrontation or subsequent interrogation. In the words of Major Parks, the objective was “to obtain the weapon and get it out of the institution.”

Whitfield admitted knowledge of the pistol and was sent, unaccompanied, to retrieve it. He returned with the gun which was wrapped in a shirt. Britton then took him to Parks’s office for further questioning. Whitfield was told “he could contact his attorney,” but no other rights were read to him. Whitfield then used the phone, apparently to call Stewart.

Several minutes later, a Mr. Clauss, Stewart’s “legal assistant,” arrived. Under renewed interrogation by Lt. Britton, with Clauss present, “Whitfield laid everything out ... what was supposed to have transpired.” Whitfield’s statement implicated Little and Davis. Indictment and trial followed.

On appeal to this Court, Whitfield and Little pose three contentions. We shall discuss each in thq order raised by the appellants, adding such additional facts as may be necessary for a better understanding of. the resolution of the issue.

I.

“The retrial of the present cases was barred by the Double Jeopardy Clause as a result of prosecutorial overreaching.”

Appellants argue that:

“The failure of the prosecutor in the present case to disclose to Judge Ross that Whitfield and Davis were being represented by an attorney who had worked out an arrangement for leniency for the State’s chief witness [Brown] and who was also a potential witness against his clients was clearly prosecutorial overreaching under either the intentional misconduct or gross negligence standards.” (Footnote omitted.)

An analysis of those standards leads us to the opposite conclusion.

When the case was first called to trial on March 29, 1977, before Judge Ross and a jury, Whitfield and Davis were represented by Mr. Stewart. On the second day of the trial, Whitfield made known to Judge Ross that Stewart was “still representing Mr. Brown,” who was the principal prosecution witness. Whitfield said that Stewart was “trying to get ... [Brown] off of the hook, and I feel as though ... I am not getting fair representation by the attorney representing me.”

A bench conference before Judge Ross disclosed that Stewart had, in fact, represented Brown, Whitfield, and Davis in separate matters prior to the disclosure by Brown, at Southwestern Police Station, of the gun’s presence in the jail. Stewart had told Whitfield that he, Stewart, would not be representing Brown during Whitfield’s current trial. Stewart admitted, however, that he had negotiated with the State for leniency for Brown in return for Brown’s cooperation in the case against Whitfield, Little and Davis. The prosecutor said that he knew about Stewart’s involvement with both Brown and Whitfield “for quite sometime” but had been assured by Stewart that Stewart “had had no contact with Mr. Brown since” the revelation about the gun on July 2, 1976. After hearing from all the parties, and with the express concurrence of all three defendants, Judge Ross declared a mistrial. He based his declaration on the ground that it was of “manifest necessity, under the total circumstances,” to avoid forcing Whitfield to trial in view of Whitfield’s feelings toward Stewart and the apparent conflict of interest.

Prior to the commencement of the second trial, a hearing was held on the defense motions to dismiss the indictments and to suppress oral and written statements made by Whitfield and Davis. The motions averred that a retrial would subject the defendants to double jeopardy because of prosecutorial misconduct in failing to disclose Stewart’s conflict of interest to the court. It was also argued that the statements taken by police from Whitfield and Davis should have been suppressed because of ineffective assistance of counsel caused by Stewart’s conflict of interest.

The trial court granted the motion to suppress the statements made by Whitfield and Davis at police headquarters. All other defense motions, including the motion to suppress the oral statements made by Whitfield to Young and Britton in the City Jail, were denied.

Recently, in Thompson v. State, 38 Md. App. 499, 381 A. 2d 704 (1978), we discussed prosecutorial overreaching in relation to double jeopardy. We said:

“Although the double jeopardy clause is designed to protect the defendant against multiple punishments or repeated prosecutions for the same offense, United States v. Dinitz, 424 U. S. 600, 96 S. Ct. 1075, 47 L.Ed.2d 267 (1976), a request by a defendant for a mistrial ordinarily removes any bar to reprosecution even though the motion was necessitated by prosecutorial or judicial error. Lee v. United States, 432 U. S. 23, 97 S. Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Dinitz, supra. This rule is not absolute and where a mistrial is the product of prosecutorial or judicial overreaching, the double jeopardy clause prevents a retrial. Lee v. United States, supra; United States v. Jorn, 400 U. S. 470, 91 S. Ct. 547, 27 L.Ed.2d 543 (1971). The exact boundaries of prosecutorial overreaching, necessary to bar retrial, have not been specifically delineated by the Supreme Court. Other courts which have considered the point generally hold that prosecutorial error attributable to negligence does not amount to overreaching, People v. Baca, Colo., 562 P. 2d 411 (1977), while intentional misconduct calculated to gain a more favorable chance for conviction or to abort a trial that is going badly prevents reprosecution. United States v. Kessler, 530 F. 2d 1246 (5th Cir. 1976). The appellant argues that prosecutorial overreaching is not confined to intentional misconduct but encompasses gross negligence as well. Commonwealth v. Bolden, 472 Pa. 602, 373 A. 2d 90 (1977). Although in Bolden, the Court noted that it is unclear from the decisions of the Supreme Court whether overreaching is limited to intentional misconduct or whether it extends to gross negligence on the part of the prosecutor, or judge, it concluded gross negligence was encompassed in the term after an examination of the purposes underlying the double jeopardy clause. The Court stated:
‘A defendant forced to request a mistrial by conduct which conspicuously fails to satisfy professional standards should not be required to bear the heavy burdens incident to reprosecution.’ 373 A. 2d at 109.” 38 Md. App. at 502, 381 A. 2d at 705-06.

While the precise perimeters of the term, “prosecutorial overreaching” have not, as Thompson points out, been drawn by the Supreme Court or the Maryland Court of Appeals, Judge Moylan shed some light on the subject in Loveless v. State, 39 Md. App. 563, 387 A. 2d 311 (1978), when he stated:

“Except in those rare instances where the prosecution or the court has deliberately sabotaged a trial that was going badly, the available redress where an irremedial error is recognized in mid-trial is the declaration of a mistrial followed by a retrial....
The only time that a retrial is barred under double jeopardy principles is when there has been such prosecutorial or judicial overreaching as to have mounted to a deliberate and intentional sabotaging of the earlier trial.” (Citations omitted.) 39 Md. App. at 565-66, 387 A. 2d at 313.

Thompson and Loveless allude to the possibility that the gross negligence standard may be encompassed within the term “prosecutorial overreaching,” Thompson v. State, 38 Md. App. at 504, 381 A. 2d at 706, Loveless v. State, 39 Md. App. at 569, 387 A. 2d at 315, but we did not so hold. It was unnecessary for us to decide that question because the facts were insufficient to create an issue of gross negligence.

The bar against double jeopardy does not prevent a retrial where the prosecution’s commission or omission, absent an intent to cause a mistrial, amounts, at most, to the exercise of poor judgment. Loveless v. State, supra; Thompson v. State, supra; Commonwealth v. Bolden, 472 Pa. 602, 373 A. 2d 90 (1977). While the facts before us indicate poor judgment on the part of the prosecution, we discern no intentional misconduct or gross negligence.

Appellants place heavy reliance upon the Code of Professional Responsibility as the standard by which to measure the Assistant State’s Attorney’s conduct in the matter subjudice. They refer us to DR 1-103, DR 5-102, and DR 5-105. Violations of the disciplinary rules, however, are not necessarily tantamount to gross negligence or intentional misconduct.

From the facts in this case, we cannot infer intentional misconduct on the part of the prosecution. He admitted to the court that he had been aware of the representation by Mr. Stewart of Brown, Whitfield and Davis, but said he had discussed the possible conflict with both defense attorneys, Stewart and the counsel for Little, prior to the aborted first trial. The prosecutor stated that based on those discussions, he did not feel there would be a dispute of fact requiring Mr. Stewart’s testimony. Therefore, the Assistant State’s Attorney saw no need to inform the court of Stewart’s representation of possible conflicting interests. There was no indication by Whitfield prior to, or during, the first day of the short-circuited first trial that he was dissatisfied with Stewart’s services.

Whitfield became alarmed after he had observed Stewart associating with Brown and Brown’s family during recesses in the trial proceedings. Whitfield knew from the outset of the case of Stewart’s relationship with Brown, but he had apparently decided to proceed with the status quo. Moreover, it is clear from the record that after the initial incident concerning a gun being in the jail on July 2,1976, Stewart did not act as counsel for Brown. Stewart did, however, become Whitfield’s and Davis’s attorney for the escape and related offenses case, with no further dealings with Brown on the matter.

The Assistant State’s Attorney vigorously argued against a mistrial. That fact, while not conclusive, at least suggests that there was no intent to “sabotage” the trial in the hope of gaining a more favorable chance of conviction or abort it because it was going badly.

Under the particular facts of this case, we perceive no prosecutorial overreaching in the form of gross negligence or intentional misconduct which would serve to activate the double jeopardy clause bar to the retrial of appellants.

II.

“Evidence of other crimes was improperly admitted into evidence.
A. The State’s evidence was insufficient to permit this Court to determine that evidence of other crimes was admissible under the common scheme exception.
B. The State failed to present clear and convincing evidence that the other crimes were committed and that Whitfield and Little had committed them.
C. Evidence of other crimes should have been excluded on the ground that its probative value was far outweighed by its prejudicial effect.”

During its case in chief, the prosecution sought to introduce a written statement given by Brown to the police on July 3, 1976. The statement set out in detail the manner in which the defendants passed the gun into the jail via Davis, to Little, to Whitfield. According to the text of the writing, Cadet Little brought “in packages of narcotics” for Brown, Whitfield and other inmates on occasions previous to the date the gun was smuggled by Little past the other guards and into the institution.

Little’s attorney objected to that part of the statement dealing with the narcotics. The prosecutor proffered that the statement was admissible under the “common scheme” exception to the rule that evidence of other unrelated crimes is inadmissible at trial of a particular crime. Judge Allen overruled the objection, saying, “I think it is a common scheme and design ... to bring contraband into the jail. I will admit it.” Thereafter, the statement was read to the jury in toto, and testimony was furnished by Brown concerning both the charged and uncharged “other crimes.” Oddly, only Whitfield objected to the oral testimony regarding the uncharged crimes, and he was overruled on the “common scheme theory.” Only Whitfield’s argument as to the oral testimony was thus preserved for appeal, Hyson v. State, 225 Md. 140, 169 A. 2d 449 (1961). Little has no standing to raise the issue. Nevertheless, pursuant to Md. Rule 1085, we shall consider the issue with respect to both appellants because the oral testimony did not appreciably add to the written statement.

The Court of Appeals, in Ross v. State, 276 Md. 664, 350 A. 2d 680 (1976), supplied a definitive analysis of the evidentiary rule pertaining to the use of prior offenses or prior convictions against an accused who is on trial for different or unrelated acts. The Court said:

“The frequently enunciated general rule in this state, followed uniformly elsewhere, is that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible. This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character. Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is ‘substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.’ C. McCormick, Evidence, § 190 (2d ed. 1972).
... [Ajpart from the fundamental proposition that an accused may be convicted only by evidence which shows that he is guilty of the offense charged, and not by evidence which indicates his guilt of entirely unrelated crimes, there are additional reasons underlying the general rule. Evidence of other crimes may tend to confuse the jurors or prejudice their minds against the accused and to predispose them to a belief in his guilt. Finally, unless he knows in advance that evidence of other crimes is to be used against him, the accused will be unprepared to defend against such evidence.
There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial, and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused.” 276 Md. at 669-70, 350 A. 2d at 684. (Emphasis supplied.) (Citations omitted.)

Accord, Cross v. State, 282 Md. 468, 386 A. 2d 757 (1978); McKnight v. State, 280 Md. 604, 375 A. 2d 551 (1977); Martin v. State, 40 Md. App. 248, 389 A. 2d 1374 (1978). See also Worthen v. State, 42 Md. App. 20 (1979).

There are, as the Court stated in Cross v. State, supra, at 473, 386 A. 2d at 761, exceptions which “appear to swallow the rule.” Judge Digges, writing for. the Court, said:

“As a general rule, in order to gain the admission of evidence of other criminal acts under the common scheme or plan exception it is necessary that the crimes, including the crime charged, so relate to each other that proof of one tends to establish the other. Moreover, there must be ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ 2 J. Wigmore, Evidence § 304, at 202 (3d ed. 1940) (emphasis in original). The concurrence of common features under this exception, however, must be more than simply a manner of operation, which is possessed to some extent by most criminal recidivists. A method of operation is not, by itself, a common scheme, but merely a repetitive pattern. Thus, evidence of other crimes can be introduced under the common scheme exception only when the relationship between the time, place, circumstances or parties involved in the crimes is such that the uncharged crime or crimes ‘support the inference that there exists a single inseparable plan encompassing both the charged and uncharged crimes, typically, but not exclusively, embracing uncharged crimes committed in order to effect the primary crime for which the accused has been indicted.’ 312 N.E.2d at 177, 356 N.Y.S.2d at 42-43.” 282 Md. at 475-76, 386 A. 2d at 762.

The prosecutor, in answer to the objections by the defense, made the following proffer:

“I submit in this case this evidence of other crimes is admissible and tends to show a common scheme, a plan which deals with a bringing into the Baltimore City Jail contraband, a weapon, in the Baltimore City Jail by a guard. I said to the jury in my opening statement, how does an inmate just go up to a guard, he doesn’t just go up to a guard and say, hey, get in a gun for me. There has to be some handling of it, something that he has over the guard or some prior connection with the guard in other criminal activities which makes the guard susceptible to a part of a general scheme and the plan to make the guard be able to not submit, but make the guard subject to bringing in that contraband. I submit to the Court that the evidence will be that this guard was continuing to bring to inmates contraband other than weapons, explaining the intent of the activities of bring {sic\ in pieces of contraband, a weapon, part of the same common scheme and design as bringing previous narcotics in and that’s why he was able to be approached. It’s an essential part of the State’s case, if I can show to the jury why it is that they picked this particular guard over all the others.”

To underpin their argument that the State’s proffer of evidence was insufficient to allow the court to admit it under the common scheme exception, appellants rely on Cross v. State, supra; McKnight v. State, supra; and Jones v. State, 38 Md. App. 432, 381 A. 2d 317 (1978), aff’d, State v. Jones, 284 Md. 232 (1979). We think those cases to be inapposite.

The State’s evidence, offered in Cross under the common scheme exception, consisted merely of a blue car having been seen in front of two residences where break-ins had occurred on a particular day. The defendant was charged with one of the break-ins, and evidence concerning the other break-in was admitted against him. The Court of Appeals, in reversing this Court, Cross v. State, 36 Md. App. 502, 374 A. 2d 620 (1977), held the evidence “clearly inadequate to show any kind of systematic scheme or plan sufficient to allow admission of the evidence of the other crime.” 282 Md. at 476, 386 A. 2d at 762.

McKnight was jointly tried on four charges of robbery allegedly committed within the time span of one month. The Court, in rejecting the State’s argument that joinder of the four cases was justified under the “signature or handiwork” exception, declared that “such similarities as existed here ‘fit into an obvious tactical pattern which would suggest itself to almost anyone disposed to commit a depredation of this sort.’ ” 280 Md. at 614, 375 A. 2d at 557.

Similarly, this Court, in Jones, reversed the conviction of a defendant who had been tried jointly upon indictments charging the commission of three armed robberies on the same day. We rejected the State’s reliance upon the common scheme exception and observed, “All that we ... [had before us was] a series of similar but unrelated robberies which do not have the common features necessary to establish a common scheme.” 38 Md. App. at 439, 381 A. 2d at 322.

Our review of the record in the instant case leads us to conclude that the evidence proffered and admitted by the State was sufficient to meet the requirements of the common scheme or plan exception to the general rule. Ross v. State, supra; Cross v. State, supra; Martin v. State, supra. “[T]he crimes, including the crime charged, so relate to each other that proof of one tends to establish the other.” Cross v. State, supra, 282 Md. at 475, 386 A. 2d at 762. It is apparent that Judge Allen was able to observe sufficient “relationship between the time, place, circumstances or parties involved in the crimes” so as to permit the introduction of the evidence as being part of a common scheme. Id. Paraphrasing the Court in State v. Jones, supra, the evidence adduced by the State in the case at Bar showed a “causal relation or logical or natural connection,” between the furtive transporting of narcotics to inmates in the City Jail and the smuggling of the weapon into the same institution, so as to allow a rational inference that the dealings were a “continuing transaction.”

Appellants also maintain that the State failed to demonstrate by clear and convincing evidence that the “other crimes” were committed, and that Whitfield and Little committed them.

The rule is that the accused’s involvement in an uncharged crime must be established by clear and convincing proof. Cross v. State, supra, 282 Md. at 478, 386 A. 2d at 764; Brafman v. State, 38 Md. App. 465, 474, 381 A. 2d 687, 691-92 (1978). The Court, in Cross, n. 7, opined:

“The preferred method for submitting any evidence of other crimes to the court during trial would be by way of a proffer to the trial judge outside the presence or hearing of the jury. Such a proffer not only protects the jury from immediate prejudice, but also allows the trial judge to determine whether there is any way to limit the prejudicial aspects of the evidence while retaining its probative character and whether the evidence should properly be introduced at that time. See United States v. Bailey, 505 F. 2d 417, 420 (D.C. Cir. 1974), cert. denied, 420 U. S. 961 (1975).” 282 Md. at 478, 386 A. 2d at 764. (Emphasis supplied.)

We think the trial judge in the instant case was presented with a sufficient proffer by the State to establish a factual question regarding the common scheme involvement among Little, Whitfield and Brown. The written statement and the oral testimony tended to establish that Whitfield, Brown and Davis used Little as a conduit for the carrying of narcotics into the jail without subjecting the contraband to search and seizure by the other custodial personnel. The same method that was employed in the smuggling of the narcotics was used to secrete the weapon.

Brown testified that he was present on numerous occasions when plans were discussed between Little and Whitfield relative to carrying narcotics into the jail. That evidence established the appellants’ involvement in the other crimes, Cross v. State, supra, and satisfied the burden of proof shouldered by the State. Id.

Appellants next attack the common scheme evidence by asserting that its probative value was outweighed by its prejudicial effect.

Judge Digges, in Cross, supra, said:

“In many instances, the breadth of these exceptions will present the prosecution with little difficulty in ‘pigeonholing’ the evidence within one of them. But it should be remembered that, though the evidence may fall within one or more of the exceptions, the trial judge still possesses discretion as to whether it should be received. In the judicious determination of this issue he should carefully weigh the necessity for and probativeness of the evidence concerning the collateral criminal act against the untoward prejudice which is likely to be the consequence of its admission. Harris v. United States, 366 A. 2d 461, 463-64 (D.C. 1976); see McKnight v. State, supra at 612-13 [556]. See generally McCormick on Evidence, supra, § 190, at 453-54. In some cases, this may require that evidence of the criminal actions of the defendant be totally excluded; in others, admission of portions or all of the evidence of the defendant’s specific criminal actions may be permissible.” 282 Md. at 474, 386 A. 2d at 761.

See also Brafman v. State, supra, 38 Md. App. at 474-75, 381 A. 2d at 692-93.

The problem in cases such as that now before us is one of balancing the probative value of the evidence against its prejudicial effect. The balancing process is described by McCormick in his Handbook of the Law of Evidence § 190 at 453 (2d Ed. 1972), where it is said:

“[S]ome of the wiser opinions ... recognize that the problem is . . . one of balancing, on the one side, the actual need for the other-crimes evidence in light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.” (Footnotes omitted.)

See Brafman v. State, 38 Md. App. 465, 475-76, 381 A. 2d at 693 (1978).

Appellants argue that “introduction of the other crimes evidence served no legitimate need” and that “it was unnecessary for the State to prove Little’s motive in order to prove its case on the crime charged.” See Martin v. State, supra, 40 Md. App. at 255, 389 A. 2d at 1377 (1978). We view the matter in a different light. As we see it, aside from Brown, there was no other known witness who could have testified as to the conversations and the machinations that took place among Little, Whitfield and Davis. Brown’s testimony was absolutely crucial to the State’s case on the issue of whether a conspiracy was extant to get a gun into the jail and use it to effect an escape. The prior dealings leading up to the time the weapon was smuggled into the jail were, in our view, material to the showing of the existence of a conspiracy. Brown’s evidence was probative on the issue of Little’s involvement as the perdu of the other two co-conspirators.* Although evidence of prior criminal acts by a defendant, not charged in the matter for which he is on trial, is prejudicial to a defendant, we believe that the evidence educed by the State in the case sub judice was properly balanced by Judge Allen, and that he correctly found that its probative value outweighed its prejudicial effect. We perceive no error.

III.

Appellants seek to invoke Miranda and thereby exclude from the evidence Whitfield’s inculpatory oral statement which was made to the correctional officers, Captain Young and Lieutenant Britton. Appellants asseverate that “[b]ecause Miranda warnings were not given, the trial court improperly admitted incriminating statements made by Whitfield during interrogations conducted by jail authorities.” Appellants had raised this issue by way of a pretrial motion to suppress, but Judge Allen denied that motion. At trial, they failed to object to the testimony establishing that the incriminating statements were made by Whitfield.

The State asserts that the issue has not been preserved for our review because the record shows no objection was voiced by Whitfield when testimony concerning his retrieving the gun and his statement that “he wasn’t going to see Mr. Dardeen [another jail employee] get hurt” was introduced. Inasmuch as those two answers went to the very viscera of Whitfield’s oral admission, the State reasons that the admissibility vel non of the oral statement, as such, is not preserved. In short, the State says that the failure to object to the questions which drew the damaging response constitutes a waiver of the earlier motion to suppress. Of course, Little has no standing to raise the Miranda issue. The privilege against self-incrimination is highly personal and may not be vicariously utilized. Butz v. State, 221 Md. 68, 156 A. 2d 423 (1959). Little may not seek refuge under Whitfield’s constitutional umbrella.

The difficulty with the State’s position relative to Whitfield is that it seems to overlook Md. Rule 736, which provides that a motion asserting that an “omission, statement or confession” was unlawfully obtained must be raised before the trial. Md. Rules 736 a 4 and 736 b. If the hearing court denies the motion to suppress, that ruling “is reviewable on a motion for a new trial or on appeal of a conviction.” Md. Rule 736 g 2. The rule became effective July 1,1977, the day after the testimony that the State thinks constitutes a waiver. The order of the Court of Appeals adopting the new rules of criminal procedure states:

“ORDERED, that the Rules and Forms hereby

adopted by this Court shall govern the courts of this State and all parties and their counsel in all actions and proceedings; and shall take effect and apply to all proceedings commenced on and after July 1,1977, and insofar as practicable, to all proceedings then pending____”

There is, we believe, no practical reason for not applying Rule 736 to the instant case. Therefore, we hold that the issue of the applicability vel non of Miranda has been properly preserved. Md. Rule 736 g 2.

Miranda proscribes custodial interrogations unless specified warnings are first furnished to an accused and then knowingly and intelligently waived by him. It is undisputed that the questioning of Whitfield in the City Jail by Captain Young and Lieutenant Britton was not preceded by Miranda admonitions, nor, apparently, was Miranda even mentioned.

The record is clear that when the two guards stopped Whitfield, led him to a secured area, and demanded that he surrender the gun, he at first denied knowledge of it, but shortly thereafter went to the place where he had hidden the pistol and then carried it to Young and Britton. Whitfield was then taken to Major Parks’s office for further questioning. Once there, Britton informed Whitfield that Whitfield could contact an attorney. No other warnings were given. Whitfield requested counsel, and the interrogation was halted. By coincidence, Mr. Clauss was in the City Jail visiting another prisoner. Clauss consulted with Whitfield. Thereafter Whitfield “laid everything out.” Whitfield contends “that inasmuch as his statements flowed from questioning initiated by Young and Britton after they accosted him and took him to a secluded part of the jail, the custodial interrogation requirement of Miranda is met and the oral statement made by him were [s/c] inadmissible at his trial.”

Unequivocally, knowledge by prison or jail officials of a gun’s being in the hands of an inmate creates an emergency with which they must cope immediately. The situation demands prompt and drastic action. The gun’s presence in the penal institution is a “bell ringer” that an escape attempt is imminent, with the strong possibility that one or more homicides may occur. It behooves the officials to move with alacrity to locate the weapon and confiscate it in order to protect their own lives, the lives of the prison populace, visitors who might be in the institution at the time, and the public generally.

Without question, an inmate’s possession of a gun is a breach of prison discipline. In that connection, this Court, speaking through then Chief Judge Murphy, stated in Hunt v. State, 2 Md. App. 443, 447, 234 A. 2d 785, 787-88 (1967):

“Inmates must of necessity surrender some of their constitutional rights so that proper prison administration and discipline may prevail. In Stewart v. State, 1 Md. App. 309, 316, [229 A. 2d 727, 731 (1967)], and Smith v. State, 1 Md. App. 297, 301, [229 A. 2d 723, 725 (1967)], we held that searches of inmates by prison authorities were reasonably necessary in the fulfillment of the custodian’s administrative duties. Similarly, interrogation by prison officials with relation to the maintenance of internal security and discipline and to the rules and regulations of the prison, where the thrust and purpose of the interrogation does not relate to a prosecution for any crime, does not fall within the ambit of the Miranda decision.” (Footnote omitted.)

Appellants rely on Mathis v. U. S., 391 U. S. 1, 88 S. Ct. 1503, 20 L.Ed.2d 381 (1968), and its siblings. See, e.g., U S. v. Redfield, 402 F. 2d 454 (4th Cir. 1968); State v. Harris, 576 P. 2d 257 (Mont. 1978); State v. Davis, 67 N. J. 222, 337 A. 2d 33 (1974). In Mathis, the defendant was interrogated by a tax investigator while Mathis was serving a prison sentence for an unrelated offense. Statements made by Mathis, without benefit of Miranda warnings, were subsequently admitted against him in a criminal prosecution for filing false tax refund claims. The Supreme Court held that even though the interrogation was not conducted in furtherance of criminal proceedings, such investigations frequently lead to criminal charges and that possibility, itself, was sufficient to warrant that Miranda warnings be given. Cf., State v. Davis, supra, (interrogation by a parole officer). The United States Court of Appeals for the Fourth Circuit reversed a conviction of a prison inmate on marijuana charges because statements used by the prosecution at trial against the defendant were elicited from the defendant by a warden at a disciplinary hearing without the Miranda warnings having been given. The Court held that Mathis precluded the use of statements obtained by prison officials without Miranda warnings even where the intent is nonprosecutorial at the time of questioning. United States v. Redfield, supra.

The Mathis reasoning has been followed in other cases. Baxter v. Palmigiano, 425 U. S. 308, 96 S. Ct. 1551, 47 L.Ed.2d 810 (1976); Sands v. Wainwright, 357 F. Supp. 1062, 1093, n. 76 (M.D. Fla. 1973), vacated on other grounds, 491 F. 2d 417 (5th Cir. 1973); State v. Harris, supra. See generally Biddy v. State, 127 Ga. App. 212, 193 S.E.2d 31 (1972); Annot., 31 A.L.R.3d 565, 666 (1970). The State, however, argues that such cases are “all factually inapposite in that they involve either post-emergency disciplinary hearings or investigations which do not deal with possible imminent breaches of prison security.”

Hunt v. State, supra, upon which the State relies, is the sole Maryland case to ever address the issue, although a number of other jurisdictions have had the occasion to speak on the subject. People v. Sanchez, 65 Cal. 2d 814, 423 P. 2d 800 (1967) (statements admissible due to apprehension of safety for prison by guard); State v. Archible, 25 N. C. App. 95, 212 S.E.2d 44 (1975) (interrogation of prison guard held non-custodial); State v. Abbott, 21 Utah 2d 307, 445 P. 2d 142 (1968) (interrogation immediately after stabbing to find owner of knife); State v. Persinger, 72 Wash. 2d 561, 433 P. 2d 867 (1967), cert. denied, 393 U. S. 864 (1968) (statement taken during course of escape); State v. LaRue, 19 Wash. App. 841, 578 P. 2d 66 (1978) (on-the-scene investigation for weapon).

We agree with the State that the above-cited cases' more •aptly apply to the circumstances surrounding the incriminating statements made by Whitfield, than do those which journey to an opposite end. The questioning of Whitfield was not an interrogation, looking toward prosecution, but an on-the-scene investigation for a deadly weapon which presented a threat to the security of the jail. State v. LaRue, supra. Moreover, a fair reading of the record discloses that the correctional officers were preoccupied more so with the recovery of the gun, whether there were other guns inside the jail, and the details of the escape attempt, than with the apprehension and punishment of Whitfield.

Appellants aver that Mathis, decided after Hunt, “severely eroded” Hunt’s dicta as “precedental value.” We disagree. Mathis and its progeny were concerned with totally different circumstances, a factual dissimilarity which distinguishes the Mathis-Redfield rationale from the case sub judice. The value of the dicta in Hunt as a guiding light for cases of this genre has not been extinguished, nor has its illumination been dimmed.

We hold that where, as here, correctional officers of a penal institution are informed of the existence of a weapon cached within the institution’s confines and, consequently, presenting the possibility of an imminent breach of security or a volatile situation, a questioning of a person reasonably likely to have knowledge of the weapon’s whereabouts so as to aid the officials in removing the weapon from the institution, or which questioning is designed to secure the safety of the prison population, is permissible. Incriminating statements made by any party involved in the immediate scope of the investigation may, within the sound discretion of the trial judge, be admitted in evidence even though the declarant was not afforded proper Miranda warnings before questioning.

We are not to be understood as sanctioning a carte blanc, sans Miranda interrogation by correctional officials of prison inmates. Prisoners do not surrender all of their constitutional rights when they enter a penal institution. Miranda is normally applicable to them as well as to the general populace. Only the most unusual explosive circumstances will excuse Miranda compliance.

Judge Allen thoughtfully summed up the situation that confronted Major Parks, Captain Young and Lieutenant Britton when he said:

“[A] prison is a different type of facility than anything [else] we have in this country. . . . [There] different rules are followed, different regulations for control, different anxieties arise and reactions to those are different----[W]hereas it might have been wise in the courthouse, for instance, to rush in with a squad of policemen to find ... [the] gun that had gotten into the courthouse, I find the actions of the officers at the Baltimore City Jail wise and commendable in the course that they took, ... as quietly as possible, without exciting the other prisoners, or without letting it be known what was going on, to secure the dangerous situation [in which] they found themselves.......[T]hey went about it by quietly talking to Mr. Whitfield, letting him know they knew he had a gun or that he had access to a gun, directed him to go get it rather than charge through the halls with him to get it, recovering the gun and then questioning Mr. Whitfield with reference to — of the details of the alleged prison break or the planned prison break____ I think it would be stretching it a great deal if we required prison officials acting in a very dire emergency to accord to prisoners under their care the right guaranteed by the Miranda case.”

We agree.

Judgments affirmed; costs to be paid by appellants.

      . Ms. Davis is not a party to this appeal.

      . That section of the criminal code has been recently much attacked on the ground that it is unconstitutional. The Court of Appeals and this Court have, however, upheld the constitutionality of the statute. See Clark v. State, 284 Md. 260 (1979); State v. Rogers, 40 Md. App. 573, 392 A. 2d 1186 (1978).

      . Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 294 (1966).

      4. The Fifth Amendment Double Jeopardy clause mandates that, “No person shall be ... subject for the same offense to be twice put in jeopardy of life or limb____”

      . Certiorari denied October 20, 1978.

      . DR 1-103 requires a lawyer to report violations of disciplinary rules to the appropriate tribunal.

      . DR 5-102 prohibits the representation of a client where the lawyer is a potential witness in the same case.

      . DR 5-105 prohibits representation of multiple clients with conflicting interests.

      . The State’s opposition to the mistrial in the case now before us, arising in point of time as it did, negates the idea of the trial “going badly.”

      . It was necessary for the State to show that Little changed sides. Instead of guarding the inmates, the job he was hired to do, he became an ally of Whitfield, Davis and Brown.

      . Little proved to be the kind of guard against whom other guards guard.

      . See n. 3, supra.

      . The record is unclear as to Clauss’ status except that he worked for Marshall Stewart. He was described as an investigator and as an associate.


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    CLYDE EMANUEL BURRELL, JR. v. STATE OF MARYLAND
    [No. 843,
    September Term, 1978.]

      Decided April 11, 1979.

    The cause was submitted on briefs to Thompson, Lowe and WlLNER, JJ.
    Submitted by Joseph F. Murphy, Jr., for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Kathleen M. Sweeney, Assistant Attorney General, Sandra A. O'Connor, State's Attorney for Baltimore County, and Bruce Beilin, Assistant State’s Attorney for Baltimore County, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

March 10,1978, was a Friday, and that meant it was payday for Clyde Burrell, Jr. and Curtis Williams. Having completed the night shift at Bethlehem Steel, they left work early Friday morning, armed with their week’s pay, and repaired to the North Point Liquor Store, as apparently was their weekly habit. Williams said he got there about 9:30 a.m., just after leaving work. Burrell arrived about 12:30 p.m.

At some point around midafternoon, after each of these gentlemen had consumed a fair amount of spirituous potion, they removed themselves to the parking lot outside the store for a friendly game of Tonke. Tonke is a card game, the precise rules of which are not fully described in the record and are not sufficiently well-known to this Court to permit the taking of judicial notice; but the game does clearly permit the placing of wagers upon its outcome. Indeed, it was not the love of the game itself that induced this adventure. It was, alas, that both were flushed with their paychecks, conveniently cashed for them by the neighborly spirit shop, and they were settling down to a little gambling.

As sometimes is known to happen in these situations, a dispute arose with respect to the proper interpretation and application of one of the rules of the game. Mr. Burrell attempted to explain the precise nature of the dispute — the text of the rule that was allegedly violated and the manner of its alleged violation — but we must confess that the explanation is lost on us. Fortunately, this case does not depend upon such an understanding. Suffice it to say that Mr. Williams picked up $10 from the pot without the concurrence of Mr. Burrell, who attempted to explain to Mr. Williams why, under the rules of the game, his pocketing of the money was inappropriate. Mr. Williams remained unconvinced.

Very quickly, the dispute left the arena of patient logic and calm, rational debate and dropped to a considerably less lofty but much more frequent forum for the resolution of such disputes. Mr. Williams lunged at Mr. Burrell with a knife. He missed, however, and was, at least temporarily, suitably restrained.

The narrative to this point is essentially undisputed. Also undisputed is that, at some later time, Mr. Burrell went to his car, got a .38 caliber pistol, and with it shot Mr. Williams in the chest and in the leg. The critical area of controversy is the extent to which this shooting was provoked by Mr. Williams’ intervening actions — whether, in other words, Mr. Burrell was acting in self-defense. The context in which this controversy arose and was resolved was Mr. Burrell’s trial in the Circuit Court for Baltimore County, sitting without a jury, for assault with intent to maim and use of a handgun in the commission of a crime of violence.

Mr. Williams, though admitting having a knife and going after Mr. Burrell with it once, said that that had occurred at least an hour before the shooting. His version was that the argument had ended, that he was walking toward his car and away from Burrell, his knife in his pocket, when Burrell shot him from a distance of about two car lengths. Burrell, as might be expected, described a somewhat different sequence of events. The argument continued, he said, despite his persistent attempts to end it. Williams taunted him, cursed him, and came at him not once but on at least three occasions with the knife. It was he — Burrell — who walked away. He went back into the liquor store, bought some pig knuckles, and started for his car when Williams came at him again. Twice Williams shoved him, and advanced once more with the knife. It was at this point that Burrell shot him once in the chest. Undaunted, Williams came at him one more time with the knife and Burrell shot him in the leg. Burrell then drove away, but subsequently turned himself in to the Baltimore City police.

Two neutral witnesses testified for the State. Robert Ware was inside the North Point Liquor Store, along with quite a few other people, when the crowd suddenly rushed to the window facing the parking lot. Ware looked up {i.e., out of the window) just in time to see Burrell shoot Williams. Ware said that he was about 100 to 125 yards away from where this occurred, but no one questioned his ability to see what he described. He did not see a knife. Indeed, he only looked up for the two or three seconds when the actual shooting occurred, and could not tell whether, at that moment, Williams was walking away from Burrell. When asked how far apart the two men were, he said “from here to that wall” which, in the absence of any more precise quantification, leaves this Court in a bit of a quandry as to how far that really was.

The second neutral witness was police officer Albrecht, who had investigated the shooting. No weapon was recovered — not a knife and not the gun. He testified as to an oral statement given to him by Burrell later in the day, which was generally consistent with the story given by Burrell in court.

Upon this evidence, the court convicted Burrell on both charges and sentenced him to prison for a total of eight years (five years for assault with intent to maim and three years, consecutive, for the handgun offense).

At the end of the State’s case (and the overruling of his motion for judgment of acquittal), Burrell elected to testify in his own defense. This was not, however, until after he had been warned by his attorney that, if he did testify, the court and the State’s Attorney could ask questions about “any record you have since you have been eighteen years of age, where you have been represented by counsel or where you have in fact waived your right to counsel.” “That is”, said the attorney, “any convictions can be brought out.”

So warned, appellant took the stand and gave his version of what occurred. Not to make a liar out of defense counsel, the State’s Attorney did indeed inquire, upon cross-examination, about several prior convictions. He first asked a general question — have you ever been convicted of a criminal offense while represented by counsel — but, at the court’s suggestion, then got more specific. He asked about a 1970 conviction for disorderly conduct, to which the court sustained an objection based on the fact that such a crime was not one of moral turpitude. Compare Cousins v. State, 230 Md. 2 (1962). He then asked about a 1973 assault conviction, to which the court overruled an objection with the comment, “I think that that has some relevance to this case.” Finally, the State brought out that in 1975, appellant had been convicted of a “deadly weapon charge”, without specifying the offense further.

Appellant’s sole complaint in this appeal is that the court erred in allowing the evidence of his 1973 assault conviction. Pointing up the court’s remark as to the relevance of that conviction in the light of our decision in Thomas v. State, 29 Md. App. 45 (1975), he assumes that the trial court recognized that the assault conviction would be irrelevant, and therefore inadmissible, for the purpose of impeaching appellant’s credibility as a witness, and therefore postulates that the court accepted the conviction as bearing directly on the issue of whether appellant was the aggressor in this instance. This, he alleges, would be equally, if not more, impermissible:

We do not share appellant’s interpretation of why — for what purpose — evidence of his earlier assault conviction was admitted. He reads too much into the court’s response to the objection expressed by counsel, and, in effect, damns the court with very faint praise. He credits the court with knowing of the concerns expressed in Thomas about the relevance of an assault conviction to one’s credibility as a witness, and yet implicitly charges the court with ignorance of a far inore fundamental principle.

Clearly, a conviction for assault occurring five years ago is inadmissible as substantive evidence bearing on the ultimate issue of appellant’s guilt in the instant proceeding. Cross v. State, 282 Md. 468 (1978). We presume that the trial court was aware of that rather basic tenet; certainly, a fair and unstrained reading of the record lends no support to the contrary. What the court obviously meant was that, in contrast to the 1970 conviction for disorderly conduct, which had no relevance for any purpose, the assault conviction, being more recent and more serious, would be relevant with respect to the issue of appellant’s credibility as a witness. Would the fact that he had once before been convicted of assault make him less likely to be truthful in his testimonial account of this incident? That, it seems to us, is the question to which the court believed this evidence to be relevant, and that was the purpose for which it was admitted.

The questions are then posed: does a conviction for simple assault, especially one that occurred five years earlier, necessarily indicate a propensity toward lack of credibility? Is such evidence admissible even for purposes of impeachment?

Under the current state of the Maryland law, gleaned from the Opinions of the Court of Appeals and of this Court, the unequivocal answer to these questions is: maybe.

The “maybe,” as we shall see, is derived from the underlying rules laid down by our Court of Appeals concerning the impeachment of witnesses generally through a showing of their past criminal behavior. We, of course, are bound by those principles as enunciated by our State’s highest court — we may neither ignore nor alter them; and we shall decide this case, as indeed we must, in what we hope and believe is full conformance with them. We do not think it inconsistent with our bound obeisance, however, to take account of a growing reexamination of those precepts by courts, legislatures, and commentators across the nation, and to throw open the question of whether they should be reconsidered in Maryland.

It has long been the law of this State, and generally throughout the country, that a defendant in a criminal case who elects to testify in his own defense “thereby subjects himself to the same rules of cross-examination that govern other witnesses” and “may properly be cross-examined as to his prior criminal record.” Davis v. State, 237 Md. 97 (1964), cert. den., 382 U. S. 945 (1965). See also Braxton v. State, 11 Md. App. 435 (1971); 3A Wigmore Evidence § 890 (Chadbourn rev. 1970); Anno., Cross-Examination Other Prosecutions; 161 A.L.R. 233,103 A.L.R. 350, 25 A.L.R. 339, 6 A.L.R. 1608. This proceeds from a blending or confluence of three more basic propositions: (1) the credibility of a witness is always a relevant issue in any case — civil or criminal; (2) a person who has shown himself to be untrustworthy in the past may be untrustworthy in the present, a corollary hypothesis of which is that a person who has engaged in criminal activity involving some element of dishonesty or significant lack of moral commitment may have a lesser propensity to tell the truth than one who has not engaged in such activity; and (3) a criminal defendant electing to testify puts his credibility in issue, and that credibility may be tested, impeached, impugned as it could with any other witness.

The controversy, that has recently been brewing over the ultimate product of this confluence — the ability to cross-examine a criminal defendant about his prior criminal record — has centered around the second and third underlying propositions.

As regards the second, there has been a rather significant reexamination of the extent to which it actually retains validity. What kinds of criminal activity really relate to one’s propensity to be a truthful witness? Quite apart from who the witness is or whether any collateral prejudice may result, the inquiry here concerns the basic relevance of the conviction in question to the person’s credibility as a witness. The attack on the third proposition is directed not so much at its inherent validity, but rather at its omission to consider and take account of the collateral prejudice that may arise when the defendant himself is the witness.

When dealing with a mere witness — someone other than the defendant himself — it is not so difficult for the trier of fact to consider-evidence of prior convictions solely in the context of the credibility of the witness. Indeed, such evidence, in most cases, would have no other function. When it is the defendant’s criminal history that is being inquired into, however, there is a more pervasive potential for prejudice that must be considered — that which is likely to emanate from advising the trier of fact that the very person standing in judgment before it is already a convicted criminal. And that prejudice looms especially large when the earlier crime is similar to that for which he is currently in jeopardy. j This is a problem that has not gone unrecognized. In Loper v. Beto, 405 U. S. 473 (1972), for example, the Supreme Court observed in footnote 11 at pp. 482-83:

“That a record of prior convictions may actually do more than simply impeach a defendant’s credibility has been often noted. See, e.g., C. McCormick, Evidence, § 43, p. 93 (1954):
“ ‘The sharpest and most prejudicial impact of the practice of impeachment by conviction ... is upon one particular type of witness, namely, the accused in a criminal case who elects to take the stand. If the accused is forced to admit that he has a “record” of past convictions, particularly if they are for crimes similar to the one on trial, the danger is obvious that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on charge, or even that he ought to be put away without too much concern with present guilt, than they will to its legitimate bearing on credibility.’ ”

See also the comment made in 22 Md.L.Rev. 244, 246 (1962): “The impeachment uses of prior convictions, like the substantive uses, are beset with considerations which often necessitate the exclusion of the prior convictions as a vehicle of impeachment. The problem is most acute when the witness is the criminal defendant.”

The danger of a trier of fact drawing an improper inference from evidence of prior convictions has led the Court of Appeals to place extensive restrictions upon the admissibility of such evidence for any substantive purpose. See, for example, Ross v. State, 276 Md. 664 (1976); Cross v. State, supra, 282 Md. 468. Thus, as we indicated before, if this prior assault conviction had been offered for the purpose of showing that appellant committed this assault — that he was an aggressive or vicious person likely to commit this assault — it would flatly have been inadmissible.

Yet the courts and text writers have long recognized the fiction that triers of fact — whether judge or jury — have that remarkable ability to comprehend, to take cognizance of and internalize, such prejudicial information, but to disregard it — to put it entirely aside — in its most likely and therefore most prejudicial context and yet to regard it and give it effect for a much more limited and much more abstruse purpose, as an indicator of the defendant’s propensity to tell the truth. See, for example, Michelson v. United States, 335 U. S. 469, 484-87 (1948); Spencer v. Texas, 385 U. S. 554 (1967), reh. den., 386 U. S. 969 (1967).

Most States have statutes expressly permitting the impeachment of witnesses by showing prior convictions of one type or another, and these statutes rarely, if ever, distinguish between criminal defendants and other witnesses. See 3A Wigmore, Evidence § 987 (Chadbourn rev. 1970), for a compilation of these statutes and how they have been interpreted. This may explain, at least in part, why some courts have continued to follow the traditional rule permitting such form of impeachment. See, for example, Marshall v. Martinson, 518 P. 2d 1312 (Or. 1974); also State v. Ruzicka, 570 P. 2d 1208 (Wash. 1977). Yet, notwithstanding such statutes or their own prior decisions, a number of courts (and legislatures) have recognized the serious nature and effect of the prejudice that emanates from the rule, and have either limited its scope generally or abandoned or modified the rule when dealing with the cross-examination of criminal defendants. (See Appendix attached to this Opinion for a summary of the recent developments in this area around the country.) Maryland has such a statute (Courts article § 10-905), which permits a witness to be cross-examined as to convictions of “infamous” crimes. Rather than departing from this statutory rule, however, our courts have actually expanded its scope by permitting convictions for other than infamous crimes also to be used for impeachment purposes.

The current rule in Maryland was expressed by the Court of Appeals in Cousins v. State, supra, 230 Md. 2, at 4-5, as follows (citations omitted):

“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 deciding 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.”

See also State v. Huston, 281 Md. 455, 460 (1977), where the Court reaffirmed as “the reason for considering a prior conviction of a witness as reflecting upon his credibility” that which had earlier been stated in Burgess v. State, 161 Md. 162 (1931):

“ ‘The issue always is the truth of the witness’ testimony. In other words, is the witness devoid of moral perception, such a person as would regard lightly the obligations of an oath to tell the truth? In judging of a man’s moral fibre, his previous conduct, covering a reasonable time before the inquiry, undoubtedly has a real and substantial bearing upon the question. It seems to us that there can be little argument that previous conduct of a witness can be shown to be such as, by the common experience of the average man, would justify a belief of his unworthiness as a witness. Certainly if it be shown that a witness had previously been convicted of perjury, it would materially discredit, if not entirely destroy, the value of his testimony. Conviction of many other crimes could properly have the same effect; while, on the other hand, there may be convictions of violations of hundreds of police regulations, which in no real or true sense can be taken as tending to make one so convicted unworthy of belief.’...”

It would seem from these pronouncements that if the prior conviction was for an “infamous” crime, it is admissible for impeachment purposes regardless of who the witness is or how long ago the conviction was obtained. The presumed bearing of an “infamous” crime on one’s trustworthiness as a witness is so great that it remains 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, supra, at p. 5.

If, on the other hand, the earlier crime was not an “infamous” one, there seem to be three elements or considerations that interplay with each other and ultimately govern admissibility in Maryland. The first of these is the nature of the crime itself. Is it one which so involves the element of deceit, or lying, or dishonesty that could lead a rational person reasonably to conclude that one who would commit such a crime would be less likely to speak the truth than one who would not commit such a crime? If the answer is “yes,” then, at least prima facie, the evidence is deemed relevant. If the answer is “no,” the evidence is considered to be “clearly irrelevant” and simply not admissible. See Linkins v. State, 202 Md. 212 (1953).

The second element is that of time. When was this earlier crime committed? Obviously, as a general rule, the farther in the past the indiscretion occurred, the weaker is its relevance to present credibility. It is somewhat akin to the law of gravity: the farther away one is from the mass, the less is its gravitational pull or influence. But, like another aspect of the law of gravity — the larger the mass, the stronger is its pull at any given distance — so it is that the more enormous the earlier crime (i.e., the more it embodies and therefore exudes dishonesty), the more likely will be its relevance, and thus its admissibility, even after the elapse of long intervals. With respect to other than infamous crimes, therefore, admissibility for impeachment purposes seems to be a function of a more or less direct ratio between the degree of dishonesty inherent in the earlier crime and the time elapsed since its commission. The greater the degree of dishonesty inherent in the earlier crime, the longer is the period of time since its commission that the conviction remains relevant, and therefore admissible, for impeachment purposes. See, in general, Anno., Impeachment of Accused— Remote Offense, 67 A.L.R.3d 824, et seq. Also, Simond v. State, 127 Md. 29, 38-39 (1915).

The third element, which, in a sense, acts as the mechanism for weighing and blending the first two, is that of judicial discretion. This is what provides the flexibility necessary to amalgamate these various concepts in a fair and sensible way and to balance them against any collateral prejudice resulting from the reception of such evidence. The Court of Appeals first recognized this in Nelson v. Seiler, 154 Md. 63 (1927), when, in considering the types of offenses that might be fairly reflective of one’s propensity to be a truthful witness, it observed at p. 69:

“No rigid classification seems possible. The principle generally adopted by courts which follow otherwise the practice followed in Maryland is that the trial court must exercise discretion when offers of convictions are made, looking to the purpose for which the evidence is offered, and that its decision will not be interfered with on appeal except when the evidence is so clearly irrelevant that its admission could not be said to be within the discretion lodged with the trial court.... And this we take to be the principle we are required to follow in Maryland.” (Citations omitted.)

See also Burgess v. State, 161 Md. 162 (1931), where the Court again concluded that the extent to which a prior conviction of a non-infamous crime may be used to impeach the credibility of a witness was “in the sound discretion of the trial court, whose judgment in such matter should not be disturbed on appeal except in clear cases of error.” Burgess involved a prosecution for larceny of an automobile and 90 gallons of whiskey being transported in it. It appears to have been a hijacking of illicit whiskey — something out of The Untouchables. Upon cross-examination, the driver of the hijacked car, whom the Court considered to be the “prosecuting witness,” was asked about an assault conviction occurring five vears earlier, which che trial court refused to permit.

Without determining directly whether assault was one of those crimes so bearing upon one’s trustworthiness as a witness as to make it relevant for impeachment purposes or, if so, how recent the conviction must be in order to retain its relevance for that purpose, the Court simply declined to disturb the discretion exercised by the trial court. It affirmed the ruling below, noting at p. 174:

“... [W]e are not prepared to say that, under these circumstances, the ruling of the court was so clearly wrong as to call for a reversal of the judgment. Especially is this true when it is shown by the record that the jury had the full benefit of inquiry into the witness’ past life sufficient to indicate to them the probable character of the witness.”

Implicit in this somewhat equivocal explanation, it seems to us, is that if the trial court had allowed the question, rather than having excluded it, its decision may also have been affwmed upon the same reasoning. Indeed, on at least three occasions, the Court of Appeals, in various contexts, has permitted a witness to be cross-examined about prior assault convictions.

In Balto. & Ohio R. Co. v. Strube, 111 Md. 119 (1909), a special policeman employed by the railroad had arrested a young man for trespassing on the railroad’s property. The lad arrested sued the railroad for assault — excessive violence committed upon him in connection with the arrest. The Court permitted the arresting officer, who was, of course, the real alleged tortfeasor, to be asked (1) “How often have you been convicted of assault in Baltimore City or Baltimore County,” and (2) “You were arrested and convicted at the Southwestern Police Station for this assault upon Strube, were you not?” 111 Md. at 125.

The Court of Appeals, in reviewing the allowance of these questions, said, at pp. 125-26:

“The ground upon which this evidence is sought to be justified is that it ‘goes to the credibility of the witness.’ More properly speaking it may be said to affect the weight of the witness’ testimony in this case. Indeed the first question seems to have been framed with a view to eliciting information concerning the witness’ general disposition for fighting. But in either aspect we think the question was admissible under the circumstances.
“The issue was whether McCarron had made an unjustifiable assault upon the plaintiff. The plaintiff’s testimony tended to prove that the assault was not justified. McCarron’s tended to prove that it was. If the answer to the first question had shown that McCarron had been convicted of a number of assaults it would have reflected upon the weight of his testimony as the justification for the assault in this case. The answer however was of such a negative character as to be of little value either for or against the plaintiff and even if error it would have been harmless error.
“The second question objected to, is admissible for the same reason as the first. The answer affects the weight of McCarron’s testimony as to the character of the assault, and therefore in a sense his credibility as a witness. The case of Mattingly v. Montgomery, 106 Md. 461, is directly in point. The cases cited by appellant in support of its contention that such evidence is not admissible are not apposite.
“Such evidence would not he admissible in chief for the purpose of proving the fact of the assault, but the questions are proper upon cross-examination of the person charged with committing the assault. ” (Emphasis supplied.)

The matter arose again, in a somewhat more analogous context, in Linkins v. State, supra, 202 Md. 212. The defendant was charged with robbery, assault, and related offenses. He testified in his own defense, and, on cross-examination, was asked whether he had once been convicted of assault on an officer, the date of the queried conviction being unspecified. The Court reiterated much of what it had said in Nelson v. Seiler, supra — that, while not restricted to infamous crimes or those involving moral turpitude, “such convictions should be for law violations which may have some tendency to impeach defendant’s credibility as a witness.” It said:

“The court must exercise discretion and its decision will not be interfered with on appeal, except when the evidence is so clearly irrelevant that its admission could not be said to be within the discretion of the trial court.... We find no error.” (Citations omitted.) (Emphasis supplied.) Linkins, supra, at 220-21.

It was at that point that the Court noted that the defendant’s answer to the question was tantamount to a denial, but whether this had any bearing upon the Court’s conclusion that no error was committed is not altogether clear.

In Taylor v. State, 226 Md. 561 (1961), the defendant, charged with murder (shooting the victim with a rifle), conceded the State’s ability to question him, on cross-examination, as to prior convictions generally, but objected to being required to admit that one of those convictions (or perhaps the only one) was for assault with a deadly weapon occurring two years earlier. The Court affirmed the allowance of the question. Referring to its prior decisions, the Court concluded, at p. 567:

“Though there are authorities elsewhere that a conviction for assault does not bear upon credibility, that rule seems inconsistent with our Linkins and Strube cases. Under those cases and others above cited, including Burgess, we think that the admissibility on cross-examination of the appellant’s prior conviction for assault for the purpose of impeaching his credibility was to be determined by the trial court in the exercise of its discretion; and we think that on this phase of the case, too, no abuse of discretion has been shown. The evidence admitted was not clearly irrelevant.” (Emphasis supplied.)

The Court of Appeals has thus made clear that a prior conviction for assault is not perse inadmissible as having an insubstantial relevance to one’s credibility as a witness, but, by relegating the question of ultimate admissibility to the trial court’s discretion, has affirmed decisions both ways. This Court has done likewise, for much the same reason. See, for example, Huber v. State, 2 Md. App. 245 (1967); Stewart v. State, 4 Md. App. 565 (1968), and Cook v. State, 8 Md. App. 243 (1969), where such convictions were deemed admissible for the purpose of impeaching the credibility of the defendant, and Thomas v. State, 29 Md. App. 45 (1975), where we affirmed the trial court’s exclusion of such a question directed at a non-defendant witness.

Discretion, of course, is not a fixed and rigid thing. It implies the exercise of sound judgment in the light of what is in fact before the court. The same ruling may, in one setting, be an entirely reasonable exercise of discretion and in another constitute a gross abuse of that discretion. See Worthen v. State, 42 Md. App. 20 (1979). In light of the concepts expressed in Burgess, and repeated subsequently in Linkins, Taylor, Cousins, and Huston, it is not for ús to declare absolutely that a five-year old conviction for assault is admissible or inadmissible for impeachment purposes in any given context. We believe, however, that, even under the current state of the Maryland law, when it is the defendant himself who is being asked such questions, the court’s discretion is considerably narrower than when some other witness is being challenged; and where a jury is involved, the range of discretion grows smaller yet.

This was a court trial. Without objection, the court learned of an even more recent (1975) conviction on a deadly weapon charge, which would seem to have at least an equal, if not a deeper, relevance to one’s propensity to be truthful than does assault. Moreover, the court made clear in its ruling from the bench that it was deciding the case primarily upon the testimony of the neutral witness, Mr. Ware, whose account (depending upon the distance “from here to that wall”) apparently corroborated that given by the victim. In short, under the circumstances of this case, we cannot say that the court abused its discretion in permitting the question about the assault conviction. In point of fact, we don’t think, from this record, that it made any difference whatever to the outcome of the case.

Judgment affirmed; appellant to pay the costs.

APPENDIX

The reevaluation of the traditional rules concerning the cross-examination of witnesses generally, and criminal defendants in particular, has taken different forms, and has been a slow process.

The Federal courts, and subsequently the Congress, have attempted to deal with the problem by circumscribing the rule generally — limiting the type of prior conviction evidence admissible against any witness — rather than concentrating on the specific application of the rule to criminal defendants who testify.

In Luck v. United States, 348 F. 2d 763 (D.C. Cir. 1965), the Court concluded that, under the District of Columbia Code, a trial court was not required to allow impeachment by prior conviction every time a defendant testifies. It had discretion in the matter, and in the exercise of that discretion would be required to consider whether “the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility.” 348 F. 2d at 768. The Court listed a number of factors that might be relevant in making this determination: “the nature of the prior crimes, the length of the criminal record, the age and circumstances of the defendant, and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction.” Luck, supra, at 769.

The rule announced in Luck was somewhat general but defendant-oriented. In Gordon v. United States, 383 F. 2d 936 (D.C. Cir. 1967), cert. den., 390 U. S. 1029 (1968), the Court applied more specific limitations, but did so in a more general way. In an Opinion authored by now Chief Justice Warren Burger, the Court observed, at page 940:

“... In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity. A ‘rule of thumb’ thus should be that convictions, which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not; traffic violations, however serious, are in the same category.” (Emphasis supplied.)

The Second Circuit Court of Appeals fashioned a somewhat different rule. In United States v. Palumbo, 401 F. 2d 270 (2nd Cir. 1968), cert. den., 394 U. S. 947 (1969), the Court viewed the allowance of prior conviction evidence as discretionary, but concluded that the court may bar it if it finds that the prior conviction “negates credibility only slightly but creates a substantial chance of unfair prejudice, taking into account such factors as the nature of the conviction, its bearing on veracity, its age, and its propensity to influence the minds of the jurors improperly.” 401 F. 2d at 273.

This groping for a proper balance between relevance and prejudice infected the Halls of Congress as well, the inhabitants of which have resolved the matter, at least for the present, by the adoption of Rule 609 of the Federal Rules of Evidence. This Rule was perhaps the most extensively debated of any of the new Federal Rules. See 3 J. Weinstein & M. Berger, Weinstein’s Evidence, § 609-2, et seq. (1978). The changes made by the Rule from the maxims announced in Luck and Gordon are delineated in United States v. Smith, 551 F. 2d 348 (D.C. Cir. 1976). The Rule permits a prior conviction to be used to impeach the credibility of a witness (any witness) only if the crime (1) was punishable by death or imprisonment for more than one year and the court determines that its probative value outweighs its prejudicial effect to the defendant or (2) involved dishonesty or false statement, regardless of the punishment. A conviction more than ten years old is not admissible unless the court determines that its probative value “supported by specific facts and circumstances substantially outweighs its prejudicial effect.” See United States v. Cavender, 578 F. 2d 528 (4th Cir. 1978). At the very least, where the earlier crime is not one involving dishonesty or false statement, the court must make the balancing determination, possibly on the record. See United States v. Smith, supra, 551 F. 2d at 357 (footnote 17).

An open question is whether, by virtue of Federal Rule 403, the balancing test must be made even where the earlier crime involved dishonesty or false statement. Rule 403, applicable to any evidence, provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” In New Mexico, where these Federal rules have been adopted as part of the State law, the balancing test required under Rule 403 has been applied even to crimes involving dishonesty or false statement. See State v. Day, 577 P. 2d 878 (N.M. 1978).

A balancing test of some type — either similar to the principles announced in Luck and Gordon or to the new Federal rule — has been adopted in a number of States. Michigan, for example, adopted a composite of Luck and Gordon, and has limited the use of prior convictions to impeach a criminal defendant to “only such convictions as in the trial judge’s discretion appropriately balance ‘the prejudicial effect of impeachment’ against ‘the probative relevance of the prior conviction to the issue of credibility.’ ” See People v. Downs, 206 N.W.2d 241, 243 (Mich. App. 1973).

The Iowa Supreme Court has abandoned the liberal use of prior conviction evidence, and has ruled that a prior felony conviction is admissible only if “(1) the felony involved dishonesty or false statement, and (2) the judge determines any danger of unfair prejudice does not substantially outweigh the probative value of such prior felony conviction, taking into account such factors as (a) nature of the conviction, (b) its bearing on veracity, (c) its age, and (d) its propensity to improperly influence the minds of the jurors.” See State v. Martin, 217 N.W.2d 536, 542 (Iowa 1974).

In 1972, the California Supreme Court held that trial courts had discretion to exclude evidence of prior felony convictions offered as impeachment “when their probative value on credibility is outweighed by the risk of undue prejudice.” People v. Beagle, 492 P. 2d 1, 8 (Cal. 1972). Five years later, the Court was more direct. In People v. Rollo, 569 P. 2d 771 (Cal. 1977), it put the trial courts under a duty “(1) to determine the probative value of that evidence on the issue of the defendant’s credibility as a witness, (2) to appraise the degree of prejudice which the defendant would suffer from admission of the evidence, and (3) to weigh the foregoing two factors against each other and exclude the evidence 'if its probative value [on the issue of credibility] is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice.’ (Evid. Code, § 352).” 569 P. 2d at 774. See also People v. Woodard, 590 P. 2d 391 (Cal. 1979).

Tennessee, along with New Mexico (see supra) has adopted Federal Rule 609. See State v. Morgan, 541 S.W.2d 385 (Tenn. 1976). Pennsylvania has apparently opted for the Luck approach. See Commonwealth v. Bighum, 307 A. 2d 255, 263 (Pa. 1973): “Where the defendant has no other means by which to defend himself, it would be particularly unjust to subject him to the introduction of prior convictions. Or, where the prior conviction is not critically important to the Commonwealth’s case — e.g, where other adequate means of attacking the defendant’s credibility are available — exclusion of prior convictions is strongly indicated.”

The New York Court of Appeals has also adopted a form of balancing requirement, but one that is less favorable to defendants than what has heretofore been described. In that State, the defendant must inform the court of the prior convictions that might unfairly affect him as a witness, and then has the burden of demonstrating that the prejudicial effect of the admission of such evidence “would so far outweigh the probative worth of such evidence on the issue of credibility as to warrant its exclusion.” People v. Sandoval, 314 N.E.2d 413, 418 (N.Y. 1974). The Court also laid down fairly specific guidelines as to what types of crimes are relevant to credibility. In that context, it noted, “[t]he commission of an act of impulsive violence, particularly if remote in time, will seldom have any logical bearing on the defendant’s credibility, veracity or honesty at the time of trial,” but also observed that “[a] demonstrated determination deliberately to further self-interest at the expense of society or in derogation of the interests of others goes to the heart of honesty and integrity.” 314 N.E.2d at 147-18. See also People v. Davis, 376 N.E.2d 901 (N.Y. App. 1978).

New Jersey, which has a general rule of evidence somewhat akin to Federal Rule 403, requires a balancing of relevance against prejudice, but, as New York, places the burden on the defendant to show that the one is outweighed by the other. State v. Sands, 386 A. 2d 378 (N.J. 1978). See Cotton v. Commonwealth, 454 S.W.2d 698 (Ky. 1970); Strong v. Commonwealth, 507 S.W.2d 691 (Ky. 1974); Stiles v. Commonwealth, 570 S.W.2d 645 (Ky. App. 1978), for the balancing test adopted by the Kentucky Court of Appeals, and State v. Marquez, 273 A. 2d 689 (Conn. 1970), for the somewhat similar standard promulgated by the Connecticut Supreme Court.

Virginia has also, by judicial fiat, limited the scope of this type of cross-examination. In that State, an accused who takes the stand may be questioned as to prior felony convictions but the name of the conviction and the details thereof may not be given, unless it was for perjury. See Harmon v. Commonwealth, 185 S.E.2d 48, 51 (Va. 1971).

The Supreme Court of Alaska has attempted to deal with the problem by adopting a rule of procedure that (1) limits the type of convictions admissible for impeachment purposes to those for crimes involving “dishonesty or false statement,” (2) makes even those convictions inadmissible after the lapse of five years, and (3) requires that before a witness may be impeached by such evidence, the court “shall rule if the witness may be impeached by proof of the conviction by weighing its probative value against its prejudicial effect.” See Lowell v. State, 574 P.2d 1281, 1283 (Alaska 1978).

Illinois, pursuant to statutory mandate, permits a certified copy of a prior conviction to be admitted into evidence, but forbids such evidence to be brought out through cross-examination of a criminal defendant. See People v. Halkens, 53 N.E.2d 923 (Ill. 1944); People v. Dye, 319 N.E.2d 102 (Ill. App. 1974); People v. Hines, 232 N.E.2d 111 (Ill. App. 1967). A number of reasons have been advanced to support this particular modification. Part of the rationale was explained in People v. Halkens, supra, at 927-28, as follows:

“... We think there is a considerable difference in the effect upon a defendant in a criminal case in cross-examining him to establish conviction of an infamous crime from that in cross-examining a witness either for the State or for the defendant. In the case of the defendant himself it will inevitably affect his defense to show he had been previously convicted of a crime, and especially to compel him to so testify himself; while on the other hand, if merely the record of conviction is offered in evidence, not only is there no humiliation of the witness, but the one fact of conviction and its purpose can be controlled by instructions____”

In State v. McAboy, 236 S.E.2d 431 (W. Va. 1977), the West Virginia Supreme Court of Appeals abandoned prior decisions and held that evidence of prior convictions designed to impeach the credibility of a criminal defendant would be limited to convictions for perjury and false swearing. Noting, both logically and empirically, the chilling effect that cross-examination as to prior convictions has on the willingness of defendants to exercise their Constitutional right to testify in their own defense, the Court said, at p. 436: “We believe that impeachment through evidence of prior conviction is but a remnant from a barbaric past. It stands as one of the last vestiges of the common law harshness that denied the accused the right to testify in his own behalf.” The decision as to whether a prior conviction may be used to impeach the credibility of any other witness remains within the discretion of the trial judge.

The most dramatic departure from the traditional rule was taken by the Supreme Court of Hawaii. In State v. Santiago, 492 P. 2d 657, 661 (Hawaii 1971), that Court held that “to convict a criminal defendant where prior crimes have been introduced to impeach his credibility as a witness violates the accused’s constitutional right to testify in his own defense.” It explained, at p. 660:

“A number of authorities have come to believe that when the witness to be impeached is also the defendant in a criminal case, the introduction of prior convictions on the issue of whether the defendant’s testimony is credible creates a substantial danger that the jury will conclude from the prior convictions that the defendant is likely to have committed the crime charged. The danger of prejudice is scarcely mitigated by an instruction to consider the prior convictions only in determining whether or not the defendant’s testimony is credible. To inform the jury in a rape case that the defendant has a prior rape conviction and then instruct them to consider the conviction only in evaluating the defendant’s credibility is to recommend ‘a mental gymnastic which is beyond, not only their power, but anybody else.’ ” [Footnotes omitted.]

To date, insofar as we can tell, no other State has followed the rather broad Constitutional approach taken in Santiago. See, for example, People v. Downs, 206 N.W.2d 241 (Mich. App. 1973); State v. Hackett, 200 N.W.2d 493 (Iowa 1972); State v. Prather, 290 So. 2d 840 (La. 1974); People v. McKenna, 585 P. 2d 275 (Colo. 1978). This Court, relying heavily on Spencer v. Texas, supra, rejected a variety of Constitutional challenges to the impeachment rule in Nance v. State, 7 Md. App. 433 (1969), cert. den., 256 Md. 747 (1970), cert. den., 398 U. S. 954 (1970). The intermediate appellate court of Arizona, following the rationale expressed by the Hawaii Court, challenged the rule permitting cross-examination of criminal defendants as to prior convictions, State v. Mayes, 515 P. 2d 1185 (Ariz. App. 1973); however, the State’s highest court declined to depart from the general rule. State v. Mayes, 518 P. 2d 568 (Ariz. 1974). Studies cited by the intermediate court showing that “jurors do not segregate evidence introduced for impeachment purposes” and that they “have an almost universal inability and/or unwillingness either to understand or to follow the court’s instructions on the use of a defendant’s prior criminal record for impeachment purposes” (515 P. 2d at 1187) were not considered as “persuasive authority to cause us to change our position” by the Arizona Supreme Court (518 P. 2d at 569). Compare Spencer v. Texas, supra, 385 U. S. at 565, n. 8.

For some of the non-judicial comment developing in this area, see notes, comments, and articles in 46 Temp. L.Q. 291 (1973); 20 Kansas L. Rev. 411 (1972); 25 Vand. L. Rev. 918 (1972); 6 Crim. Law Bull. 26 (1970); 1 Loy. Chi. L.J. 247 (1970); 71 W. Va. L. Rev. 160 (1969); 18 DePaul L. Rev. 1 (1968); 19 Hastings L.J. 919 (1968); 37 U. Cin. L. Rev. 168 (1968); 113 U. Pa. L. Rev. 382 (1965); 78 Harv. L. Rev. 426, 440-42 (1964); 22 Md. L. Rev. 244 (1962); 70 Yale L. J. 763 (1961); 36 Minn. L. Rev. 724 (1952); 89 Pa. L. Rev. 166 (1940); C. McCormick, Evidence, § 43 (1972).

      . Some further evidence of the Supreme Court’s concern about the collateral effect of questioning a criminal defendant as to prior convictions appears in the actual text of the Loper Opinion. Loper itself dealt with whether a prior conviction obtained where the defendant was not represented by counsel — i.e., in contravention of the Sixth Amendment right enunciated in Gideon v. Wainwright, 372 U. S. 335 (1963) — was admissible for impeachment purposes. In that context, the Supreme Court quoted (as being unable to express better) this passage from Gilday v. Scafati, 428 F. 2d 1027, 1029 (1st Cir., 1970), cert. den., 400 U. S. 926 (1970): “We conclude that the Burgett[v. Texas, 389 U. S. 109] rule against use of uncounseled convictions ‘to prove guilt’ was intended to prohibit their use ‘to impeach credibility,’ for the obvious purpose and likely effect of impeaching the defendant's credibility is to imply, if not prove, guilt. ” (Emphasis supplied.) Compare Taylor v. State, 28 Md. App. 560 (1975), aff’d, 278 Md. 150 (1976), dealing with the cross-examination of character witnesses offered by the defendant.

      . Simond illustrates, to some extent, the Court’s attempt to strike a proper balance between relevance and prejudice. At the time, the law, established by earlier cases, was that a witness could be asked whether he had ever been confined in jail. See Smith v. State, 64 Md. 25 (1885); McLaughlin v. Mencke, 80 Md. 83 (1894). In Simond, the trial court refused to allow a State’s witness to be asked whether, ten years earlier, he had been arrested, fined, and sent to jail for being drunk on the street. Conceding that the court’s refusal to permit the questions was, under Smith and McLaughlin, error, the Court of Appeals nonetheless sustained the conviction, noting: “The object of such testimony is to reflect upon the credibility of the witness, and it would be pretty close to reflecting upon the intelligence of the jury to suppose they would be influenced in passing on the credibility of a witness by evidence of such an incident happening ten years before.” Simond, supra, at 39.

      . We are not unaware that Burgess, Linkins, and Taylor each involved a jury trial. However, the special prejudice that may arise from such a setting was not articulated in those cases. We think that it should be mentioned ana taken into account, however, in the exercise of the court’s overall discretion. In this context, see:
      (1) State v. Babb, 258 Md. 547, 550 (1970): “The assumed proposition that judges are men of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence, lies at the very core of our judicial system. Such an assumption would be completely unwarranted with regard to a jury of laymen and the impact which evidence may have upon their deliberative powers.”
      (2) Concurring Opinion by Mr. Justice Jackson in Krulewitch v. United States, 336 U. S. 440, 453 (1949): “The naive assumption that prejudicial effects can be overcome by instructions to the jury [citations omitted], all practicing lawyers know to be unmitigated fiction.” Also the statement in Bruton v. United States, 391 U. S 123, 135 (1968): “... [T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.”