Dissenting opinion by Wilner, J., in which Bell, C.J., and Eldridge, J., join

This is a peculiar setting. Judge Raker's opinion announces the judgment of the Court. She would hold that by revealing his prior conviction on direct examination, petitioner waived any right to complain about the trial court's earlier ruling that evidence of that conviction was admissible. Only two other judges share that view, however. I disagree with it, as do Chief Judge Bell and Judges Eldridge and Harrell. Although Judge Harrell agrees that the issue was not waived, he would hold that evidence of the conviction was nonetheless admissible. I disagree with that as well; so do Chief Judge Bell and Judges Eldridge and Raker. When coupled with Judge Raker's view that petitioner's complaint was waived, however, Judge Harrell's conclusion as to admissibility suffices to create four votes to affirm the judgment. Ultimately, therefore, this opinion is a dissenting one. Four judges, and therefore the Court, would affirm the judgment; I would reverse it.

FACTUAL BACKGROUND

Judge Raker's opinion, resting solely on the notion of waiver, does not consider the underlying facts of the case. They are important, however, even on the question of waiver.

There was legally sufficient evidence adduced in this case to show that Damon Mitchell, the victim, was assaulted by six people, including petitioner, as he was returning to his home. How the affray commenced and proceeded, Mitchell's role in it, and the degree of petitioner's participation were in substantial dispute, however, and, in judging even the waiver issue before us, we need to look at the evidence in a light most favorable to the petitioner.

The issue of petitioner's prior drug dealing surfaced initially in the context of a pre-trial motion in limine. The State intended to present evidence that the motive behind the assault was that, for a two-month period preceding the assault, petitioner and others were continually on Mitchell's property engaging in drug transactions and that Mitchell had repeatedly called the police. The assault, theorized the State, was in retaliation for that effort. Both petitioner and his co-defendant, Avon Brown (Avon), moved to exclude that evidence, which they regarded as unduly prejudicial evidence of prior bad acts. Seemingly of the view that the citizens of Baltimore City were so accustomed to drug dealing in their neighborhoods that evidence of it would not be unduly prejudicial, the court denied the motion.

That ruling opened the way for Mr. Mitchell and his wife to testify about a group of "guys," including petitioner, who "hung around" in front of his house and engaged in transactions with passing motorists that, by almost necessary implication, constituted drug dealing. Petitioner, he said, usually stayed across the street but occasionally came to his steps to talk with Mitchell's 18-year-old daughter, Gloria. Petitioner and Gloria were more than friends; he was the father of her child. Mitchell warned petitioner against selling drugs in front of his house and threatened to call the police. He did call the police — sometimes seven times a night five days a week, he said — but the group scattered whenever they saw the police arriving. On one occasion, he led the police into the alley where the group ran, leading to the discovery of some capsules. It was never clear whose capsules they were or what, if anything, they contained.

Mitchell said that the assault occurred as he and his wife were returning by separate cars to Mitchell's home. Mrs. Mitchell arrived first and waited for him on the steps to his house. As he neared the house after parking his car, Avon, whom he did not know, approached, pulled a knife, asked whether Mitchell wanted to die, and commented, "You like calling the cops on people." Mitchell was a correctional officer, approximately seven inches taller than Avon and accustomed to confrontations, and he knew he might be facing some trouble. He therefore removed his glasses in preparation for the coming fray. Someone else, whom he said he did not know — thus excluding petitioner, whom he did know — then hit him, knocking him to his knees. As he got up, he heard his wife scream and saw Avon grab her, at which point Mitchell seized Avon by the throat. "Next thing I know," he said, "it was six, seven, eight guys on top of me." One of them was petitioner, who hit him in the face. It appears from Mitchell's testimony that the worst of the assault — kicking and stomping — was committed by Avon Brown and that petitioner did not strike him until after he had grabbed Avon by the throat.

Some of the force of Mitchell's direct examination was eroded both on his cross-examination and by other evidence. Mr. Mitchell admitted that it was only Avon Brown who initially approached him — that the others stood back against a car. He admitted that he had asked the State to drop the charges against petitioner and that, in describing the attack to the officer who first responded, he did not mention petitioner and did not mention anyone having a knife. On cross-examination, he said that he grabbed Avon from behind when he saw Avon approach his wife, not grab her. Mrs. Mitchell stated that Wade Spriggs was initially in the group, although she said he was not involved in the assault.

Mrs. Mitchell's testimony also cast the affray as being initially between her husband and Avon. He was the one who approached Mr. Mitchell, pulled a knife, and accused him of calling the police. While the two were arguing, someone "out of nowhere" punched Mitchell. She said that, when Avon "came towards me," she hollered and Mitchell grabbed him and "put him in a choke hold." At that point, petitioner hit Mitchell and someone else began to kick him. The final witness for the State was Detective Wallace, who saw Mitchell at the hospital after the attack. Mitchell identified Avon and petitioner as two of the assailants. Wallace confirmed that the initial police report made by the first officer on the scene did not mention petitioner as an assailant.

When the State rested, petitioner moved to preclude the State from introducing evidence of his 1993 conviction for possession with intent to distribute a controlled dangerous substance. He conceded that, under existing case law ( State v. Woodland, 337 Md. 519, 654 A.2d 1314 (1995)), such a conviction was within the universe of crimes admissible as impeachment evidence and noted that, under ordinary circumstances, he would not be concerned, in an assault case, that a drug conviction would be unduly prejudicial, there being no similarity between the two crimes. Given that the court, over objection, permitted the State to offer evidence of petitioner's drug dealing as underlying the alleged motive for the assault, however, counsel urged that there was an affinity that would make evidence of the conviction particularly prejudicial and beyond remedy by a curative instruction. Because the conviction was more than six years old and occurred when petitioner was a teenager, counsel argued that the probative value was not great and that its prejudicial effect — the danger that the jury might take it as propensity evidence to bolster Mitchell's testimony about the drug dealing — would outweigh its probative value.

Though acknowledging that the evidence would be "somewhat prejudicial," the State nonetheless insisted that it was admissible and the court agreed, concluding that "the conviction is more probative than prejudicial and accordingly [the court] will permit the State to impeach." That ruling, as noted, came at the end of the State's case.

Avon, the co-defendant, testified before petitioner. He said that he and petitioner were in front of Mitchell's home talking to two girls, who lived either in Mitchell's house or next door, when Mrs. Mitchell arrived and stood on the steps. He then saw Mr. Mitchell walking toward the house, apparently angry, and mumbling, in somewhat inelegant language, about people in front of his house. Avon said that he asked Mitchell whether Mitchell was talking to him, at which point Mitchell took off his glasses and said that he had had enough. Mrs. Mitchell then threw some keys at Avon, and, as he turned toward her, Mitchell grabbed him. Avon cried for help, and someone hit Mitchell, throwing them both to the ground. Avon denied ever displaying, or even having, a knife (no knife was ever found). He also recounted a conversation with Mitchell that occurred at an earlier hearing in the case, in which Mitchell allegedly acknowledged that Avon was not involved in the assault and suggested that Wade Spriggs had "set him up." A neighbor, who had accompanied Avon to that hearing, corroborated that conversation.

Petitioner then testified, as the last witness. He told essentially the same story as Avon, except that he denied any part in the scuffle. His story was that Mitchell started choking Avon — "got a good choke hold around him" — and that Avon called for help, whereupon Cecil White hit Mitchell, causing them both to fall. At that point, he said, the "guys" from across the street ran over to lend their assistance to Avon. Petitioner said that he remained on the step and did not get involved. When he finished his story, he was asked, and he admitted, that in 1993, when he was nineteen, he was convicted of possession with intent to distribute a controlled dangerous substance and that he had served his penalty. The prosecutor, on cross-examination, had him repeat the fact of his conviction.

The evidence created a clear and genuine jury issue: who started the fight; why would petitioner, who knew Mitchell and was known by him, who knew his daughter and fathered his grandchild, who lived and was known in the neighborhood, attack him? The only motive, the only explanation, offered by the State was that the attack was in retaliation for Mitchell's interference with petitioner's drug business, carried on in front of Mitchell's home. Aside from the testimony from the Mitchells, there was no corroboration that petitioner was selling drugs. The defense offered some alternative explanations for the affray, each of which was supported by some testimony: that the attack was set up by Mrs. Mitchell's young boyfriend, Spriggs, or that Mitchell was angry and was spoiling for a fight, and that he was attacked only after he grabbed Avon Brown by the throat and Avon cried out for help. This was the setting in which the court overruled petitioner's objection to evidence of the prior conviction and made clear that, if he testified, that evidence would be admitted.

DISCUSSION

(1) Introduction

My view of the matter is this: First, as most States that have had the opportunity to consider the matter have done, I would reject the view of the majority in Ohler v. United States, 529 U.S. 753, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000), which is not binding on us, and hold that, in the circumstances of this case, petitioner did not, by drawing the sting, waive his right to complain about the court's ruling that evidence of his prior conviction was admissible. Second, I would overrule State v. Giddens, 335 Md. 205, 642 A.2d 870 (1994), and State v. Woodland, 337 Md. 519, 654 A.2d 1314 (1995), which I believe were wrongly decided, and hold that possession with intent to distribute a controlled dangerous substance has no clear relationship to one's credibility as a witness and therefore is not within the universe of crimes that is admissible for impeachment purposes under Maryland Rule 5-609. Third, I would hold that, even if Giddens and Woodland were to remain as precedent, the court erred in concluding, in the circumstances of this case, that the prejudicial effect of that conviction was outweighed by its probative value.

(2) Waiver: Ohler v. United States

Judge Raker weaves three generally valid principles of law together to find a waiver in this case: (1) that a party who introduces evidence in a case may not complain on appeal that the evidence was erroneously admitted; (2) that, under Maryland Rule 4-323, an objection to the admission of evidence in a criminal case is waived unless it is made at the time the evidence is offered or as soon thereafter as the ground for objection becomes apparent; and (3) that ordinarily, a pre-trial motion in limine to exclude evidence does not suffice to constitute or preserve an objection to the evidence — the objection must be made when the evidence is offered. Those principles are not absolute, however, and, when they have the effect of creating undue prejudice to a testifying defendant in a criminal case, they must yield. Maryland Rule 5-102, which states the general purpose of the rules of evidence, makes clear that one of the functions of those rules is "that the truth may be ascertained and proceedings justly determined."

Maryland Rule 5-609 permits evidence of a criminal conviction "[f]or the purpose of attacking the credibility of a witness" if the crime is either an infamous one or one that is "relevant to the witness's credibility," certain other requirements are met, and the court determines that the probative value of admitting the evidence outweighs the danger of unfair prejudice to the witness or the objecting party. Any witness, of course, is subject to being impeached with prior criminal convictions under the Rule, but because of the particularly acute danger of prejudice when used, or threatened to be used, against a defendant in a criminal case, we have viewed their use in that context with special caution. See Ricketts v. State, 291 Md. 701, 436 A.2d 906 (1981); Beales v. State, 329 Md. 263, 619 A.2d 105 (1993); Jackson v. State, 340 Md. 705, 668 A.2d 8 (1995).

The threatened use may affect the defendant's decision to testify, which he or she has a Constitutional right to do and, as a practical matter, may need to do in order to meet the State's evidence and establish a defense. If the defendant testifies, evidence of prior criminal convictions, despite limiting instructions, may be taken by a jury not as simply weakening the credibility of the defendant's testimony, but as propensity evidence — if he engaged in that conduct once, he likely did it again — or as establishing the defendant as a bad and disreputable person generally deserving of punishment whether or not he or she committed the crime currently at issue. Indeed, given the lessons learned from common human experience, those are the more likely ways in which such evidence may be used. Lay people, and, I expect, even lawyers, may have considerable difficulty in putting what they regard as logic and common experience aside and treat this powerful experiential evidence as affecting only one's credibility as a witness.

It is this very likelihood that makes evidence of prior convictions so troublesome for defendants in criminal cases and so popular with prosecutors. It is rare, I expect, that a prosecutor will decline to offer a prior conviction even potentially admissible under the Rule because of any concern over whether, despite a limiting instruction from the judge, the jury might use the conviction as substantive propensity evidence. It is common, then, for defendants, before they decide to testify, to determine which convictions the State intends to offer and to seek to exclude those that may be particularly prejudicial. The device for presenting the issue to the court in a timely fashion — before the defendant is forced to cross the Rubicon by either testifying or electing not to do so, is the motion in limine, in which the court is asked to determine whether disputed evidence likely to be offered will, or will not, be admitted. If the court concludes that the conviction is admissible, it is necessarily determining that the conviction (1) is relevant to the defendant's credibility and (2) has substantial probative value as to that issue — sufficient probative value to outweigh any prejudice to the defendant. If the defendant then decides to testify, he or she must reasonably expect that the jury will conclude likewise — that, even if it does not use the conviction for any improper purpose, once the conviction is brought to its attention, it may well determine that the defendant is not a credible person and that his or her testimony, to the extent it is inconsistent with other evidence, is not worthy of belief.

Some defendants, though convinced that the court erred in its ruling that the prior conviction was admissible, have attempted to gain the best of both worlds by declining to testify, thereby avoiding revelation of the conviction, and then raising the issue on appeal, complaining that the court's allegedly erroneous decision effectively prevented them from testifying. The courts generally have rejected that attempt and have concluded that, because the prior conviction was never presented, any harm to the defendant from the in limine ruling was too speculative to entitle him or her to relief. The Supreme Court reached that conclusion in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), a case relied upon in Ohler and therefore worthy of comment.

In Luce, the defendant, charged with possession with intent to distribute cocaine, moved in limine to preclude the Government from impeaching him with a prior conviction of simple possession of a controlled substance. Under Federal law, such a conviction was regarded as a serious crime and was therefore within the universe of crimes admissible under F.R.E. 609, and the question became whether its probative value outweighed its prejudicial effect. In addressing that issue, the Supreme Court observed that when the defendant does not testify, (1) a reviewing court does not have a complete factual record from which to determine the likely impact of the prior conviction, (2) any possible harm flowing from the trial court's in limine ruling is entirely speculative, in that the ruling might have changed had the actual testimony been different from what was contained in the defendant's proffer, (3) the reviewing court has no way of knowing whether the Government would, in fact, have used the conviction as impeachment evidence, and (4) there is no way of knowing whether, if the in limine ruling was erroneous, the error was harmless. Id. at 41-42, 105 S.Ct. at 463-64, 83 L.Ed.2d at 447-48. For all of those reasons, the Court concluded that, to preserve for appellate review the claim of improper impeachment with a prior conviction, the defendant must testify and the conviction must be admitted into evidence. Id. at 43, 105 S.Ct. at 464, 83 L.Ed.2d at 448.

Like Ohler, Luce was not a Constitutional ruling but one based on the Court's interpretation or implementation of F.R.E. 609. Although we have not had occasion to consider precisely the same question, we reached a similar conclusion with respect to a challenged confession. In Jordan v. State, 323 Md. 151, 591 A.2d 875 (1991), the defendant moved, before trial, to suppress a statement he had given to the police, on the ground that it was both involuntary and given without a waiver of counsel. The trial court ruled that the statement was voluntary but that Jordan had not waived his right to counsel, and that, as a result, the confession could not be used in the State's case-in-chief but could, under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), be used as impeachment evidence if Jordan testified. Faced with that ruling, Jordan decided not to testify but nonetheless raised the issue on appeal. Following somewhat the reasoning used in Luce, and indeed citing Luce, we concluded that the alleged injury was remote and speculative, in that there was no way to tell whether the State would actually have used the confession had Jordan testified. Blinding our eyes to reality, we suggested the prospect that Jordan may have testified consistently with the confession, thereby depriving the confession of any impeachment value. We were not inclined, we said, "to review a trial court's decision authorizing the State to use particular evidence when, as a result of a tactical decision by the defendant, the State ultimately was precluded from utilizing that same evidence." Jordan, supra, 323 Md. at 156, 591 A.2d at 877.

Despite the obvious differences between the Luce-Jordan situation and the one now before us, the Ohler Court regarded Luce as a "similar, but not identical, situation," Ohler, 529 U.S. at 759, 120 S.Ct. at 1854, 146 L.Ed.2d at 832, and Judge Raker in this case regards Jordan as "analogous and therefore instructive." Any similarity, in my view, is merely facial, not real.

In Ohler, the defendant was charged with importation of, and possession with intent to distribute, marijuana. The Government moved in limine to admit her prior conviction for possession of methamphetamine, a conviction, as noted, that was admissible under the Federal rule but would be inadmissible in Maryland. The trial court ruled that the conviction was admissible. Ohler testified and, on direct examination, drew the sting by admitting the conviction, but on appeal she challenged the in limine ruling. She sought to avoid the consequences of the general rule precluding a party who introduces evidence from complaining that the evidence was wrongfully admitted by arguing, among other things, that to apply a waiver rule in that situation would be unfair. It would be unfair, she said, because it "compels a defendant to forgo the tactical advantage of pre-emptively introducing the conviction in order to appeal the in limine ruling." Id. at 757, 120 S.Ct. at 1853, 146 L.Ed.2d at 831-32. If a defendant is forced to wait for the conviction to be revealed on cross-examination, she complained, "the jury will believe that the defendant is less credible because she was trying to conceal the conviction." Id.

Evoking aspects of the somewhat outmoded and discredited "sporting theory of justice," the Court responded that both sides in a criminal trial must make tactical decisions as the case progresses. Id. at 757, 120 S.Ct. at 1854, 146 L.Ed.2d at 831. The defendant must choose whether to testify and whether, if he or she does, to draw the sting. Id. at 757-58, 120 S.Ct. at 1854, 146 L.Ed.2d at 831. The Government, on the other hand, must make the tactical decision whether to use the conviction, the Court suggesting that, if the defendant does not mount a plausible defense, the Government may decide not to risk reversal from its use. Id. at 758, 120 S.Ct. at 1854, 146 L.Ed.2d at 831. Ohler's approach, the Court said, would deprive the Government of its right to wait until the defendant testifies before making that decision. Id. at 758, 120 S.Ct. at 1854, 146 L.Ed.2d at 832. Judge Raker finds that response compelling. I do not.

It is important to note that, prior to Ohler, the majority of State courts and a number of Federal courts had held that drawing the sting by revealing a prior conviction, after the prosecutor has clearly indicated an intent to use the conviction for impeachment and the court, over the defendant's objection, has ruled that the conviction would be admitted, does not preclude the defendant from challenging the in limine ruling on appeal. See Eubanks v. State, 516 P.2d 726 (Alaska 1973); State v. Ellerson, 609 P.2d 64 (1980); People v. Carpenter, 21 Cal.4th 1016, 90 Cal.Rptr.2d 607, 988 P.2d 531 (1999); State v. Miller, 186 Conn. 654, 443 A.2d 906 (1982); People v. Williams, 161 Ill.2d 1, 104 Ill. Dec. 72 641 N.E.2d 296 (1994); State v. Jones, 271 N.W.2d 761 (Iowa 1978); People v. Harris, 86 Mich. App. 301, 272 N.W.2d 635 (1978); McGee v. State, 569 So.2d 1191 (Miss. 1990); State v. Williams, 212 Neb. 860, 326 N.W.2d 678 (1982); State v. Ross, 329 N.C. 108, 405 S.E.2d 158 (1991); State v. Eugene, 340 N.W.2d 18 (N.D. 1983); State v. Mueller, 319 S.C. 266, 460 S.E.2d 409 (App. 1995); State v. McGhee, 746 S.W.2d 460 (Tenn. 1988); Salt Lake City v. Holtman, 806 P.2d 235 (Utah App. 1991); State v. Ryan, 135 Vt. 491, 380 A.2d 525 (1977); State v. Watkins, 61 Wash.App. 552, 811 P.2d 953 (1991); Nicholas v. State, 49 Wis.2d 683, 183 N.W.2d 11 (1971); Vanlue v. State, 87 Wis.2d 455, 275 N.W.2d 115 (App. 1978); rev'd on other grounds, 96 Wis.2d 81, 291 N.W.2d 467 (1980); United States v. Puco, 453 F.2d 539 (2d Cir. 1971), cert. denied, 414 U.S. 844, 94 S.Ct. 106, 38 L.Ed.2d 82 (1973); United States v. Yarbrough, 352 F.2d 491 (6th Cir. 1965); United States v. Vanco, 131 F.2d 123 (7th Cir. 1942); United States v. Cook, 608 F.2d 1175 (9th Cir. 1979), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980).

Ohler was a five-four decision that went against that strong tide. Justice Souter, writing for the dissent, noted that "[w]ith neither precedent nor principle to support its chosen rule, the majority is reduced to saying that `there is nothing "unfair". . . about putting petitioner to her choice in accordance with the normal rules of trial.' Things are not this simple, however." Ohler, supra, 529 U.S. at 763, 120 S.Ct. at 1857, 146 L.Ed.2d at 834. When convictions are revealed for the first time on cross-examination, he observed, "[t]he jury may feel that in testifying without saying anything about the convictions the defendant has meant to conceal them," and its assessment of the defendant's testimony "may be affected not only by knowing that she has committed crimes in the past, but by blaming her for not being forthcoming when she seemingly could have been." Id. at 764, 120 S.Ct. at 1857, 146 L.Ed.2d at 835. Justice Souter concluded that "`[c]reating such an impression of current deceit by concealment is very much at odds with any purpose behind Rule 609, being obviously antithetical to dispassionate factfinding in support of a sound conclusion," that the chance to create that impression may be a tactical advantage for the Government but "disserves the search for truth," and that allowing the defendant to draw the sting promotes the fairness of trial without depriving the Government "of anything to which it is entitled." Id.

The Federal courts, of course, are bound by Ohler, but we are not, and, although we necessarily give any decision of the United States Supreme Court great respect, there is good reason not to give this one very much weight. It is not based on sound reasoning, and, as Judge Souter complained, it is antithetical to the search for truth by necessarily placing the defendant in a false light before the jury. Nor is it really supported by Luce. The points made in Luce and Jordan are, for the most part, legitimate. If the defendant does not testify, it is usually impossible for an appellate court to know for certain why — whether the admissibility of the conviction was the determining factor — much less what effect the conviction might have had if it had been revealed to the jury. In this situation, there is no mystery, no speculation. It was clear that the State intended to use the conviction, and, from the closeness of the case, there can be little doubt that it would have been compelled to do so. There was no doubt as to the court's ruling or to the finality of that ruling. It was not made before trial but at the close of the State's case. Petitioner did testify, and the Court thus has a full factual record from which to judge the correctness of the trial judge's ruling.

Other States have declined to follow Ohler. See State v. Daly, 623 N.W.2d 799 (Iowa 2001) (where issue is fully argued and trial court, apprised of defendant's objection, rules evidence of prior conviction admissible, defendant need not abandon all trial tactics to preserve error); State v. Keiser, 807 A.2d 378 (Vt. 2002); State v. Thang, 145 Wn.2d 630, 41 P.3d 1159 (2002); compare State v. Dunlap, 346 S.C. 312, 550 S.E.2d 889 (App. 2001), where the defendant revealed his prior conviction in opening statement, before the ruling on its admissibility was final.

I would adhere generally to the contemporaneous objection rule, because it is a useful rule. I would bend it in this situation, however, because, when rigidly applied, it fails to serve the ends of either fairness or the search for truth. Bending it in this limited setting advances the cause of justice and creates no problem, either for the courts or for the State. The limited setting is where (1) the State makes clear that it intends to offer the conviction if the defendant testifies, (2) the defendant makes a clear objection to the evidence, (3) the court makes a definitive ruling, intended to be final, that the evidence will be admitted, and (4) the defendant testifies and, to blunt the force of the conviction, reveals it on direct examination.

For the reasons stated, I would hold that there was no waiver in this case — that petitioner did not lose his right to challenge the court's ruling that the conviction was admissible by revealing the conviction during direct examination.

(3) Admissibility of the Conviction

As noted, despite its disagreement on the issue of waiver, three judges would hold that the prior conviction was admissible. That holding rests on two prongs: (1) that possession with intent to distribute a controlled dangerous substance is a crime relevant to credibility and is therefore within the universe of crimes admissible for impeachment purposes, and (2) that in this case, the probative value of that conviction, as impeachment evidence, outweighed the danger of unfair prejudice to petitioner. I disagree with both conclusions.

Until 1995, this Court had not ruled whether a conviction for possession with intent to distribute a controlled dangerous substance is within the universe of crimes admissible for impeachment purposes under Rule 5-609. In Lowery v. State, 292 Md. 2, 437 A.2d 193 (1981), we held, and in Morales v. State, 325 Md. 330, 339, 600 A.2d 851, 855 (1992), we confirmed, that mere possession of a controlled dangerous substance (PCP) was neither an infamous crime nor one relevant to credibility and was therefore inadmissible as impeachment evidence. In Morales, we concluded that possession with intent to distribute a controlled dangerous substance was not an infamous crime but found it unnecessary in that case to determine whether a conviction for that offense could "ever be used to impeach a witness." Morales, supra, 325 Md. at 339, 600 A.2d at 855.

In Giddens v. State, 97 Md. App. 582, 631 A.2d 499 (1993), the question arose whether a conviction for distribution of cocaine was usable as impeachment evidence under the predecessor rule to Rule 5-609. Because it was clear that the offense was not an infamous crime, the particular question was whether it had any relevance to credibility. Germane to that determination was the fact that, in Foster v. State, 304 Md. 439, 499 A.2d 1236, cert. denied, 478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986), this Court adopted what appears to be the majority rule that, when presenting evidence of a conviction under Rule 5-609, only the fact of the conviction — the name of the crime, the date, and the court — may be disclosed and that "ordinarily one may not go into the details of the crime by which the witness is being impeached." Id. at 470, 499 A.2d at 1252 (quoting State v. Finch, 293 N.C. 132, 235 S.E.2d 819, 824-25 (1977)). That principle was confirmed in State v. Woodland, 337 Md. 519, 524-25, 654 A.2d 1314, 1317 (1995).

The Court of Special Appeals noted that the criminal code listed over 200 substances as controlled dangerous substances, plus various salts, isomers, derivatives, and compounds of those substances, and that a person could violate the law by selling a ton of cocaine to sub-dealers throughout a community or by giving a friend a marijuana cigarette. Giddens, supra, 97 Md. App. at 591, 631 A.2d at 503. The distribution could occur in an open air drug market or in the privacy of one's home, furtively in the back of a car or on a public street in broad daylight; it could be part of a secret business enterprise or simply a gift to an acquaintance. Id. "The net," the court said, "is very large and encompasses a wide variety of conduct, and therein lies the problem." Id.

The court pointed out that, in Ricketts v. State, 291 Md. 701, 436 A.2d 906 (1981), this Court had declared a conviction for indecent exposure inadmissible for just that reason — that the name of the crime "says little about the conduct for which the person was convicted" and that "the gamut of offenses and circumstances that fall within the ambit of the crime are so widely varied that, while one person may indeed have shown a moral depravity sufficient to impact upon his credibility, another may have committed a very minor infraction indicative of nothing more than momentary poor judgment perhaps dictated by necessity." Giddens v. State, 97 Md. App. at 591, 631 A.2d at 503 (quoting Ricketts, supra, 291 Md. at 710, 436 A.2d at 911). We concluded in Ricketts that the crime "is so ill-defined that it causes the factfinder to speculate as to what conduct is impacting on the defendant's credibility, it should be excluded," that "since the issue is always the truth of the witness, where there is no way to determine whether a crime affects the defendant's testimony simply by the name of the crime that crime should be inadmissible for purposes of impeachment." Ricketts, 291 Md. at 713, 436 A.2d at 913.

That concern, the Court of Special Appeals concluded, was equally justified with respect to the crime of distribution, which "does not, inherently and of itself, indicate that the person is not to be believed." Giddens v. State, 97 Md. App. at 591, 631 A.2d at 503. Although the behavior is criminal, it is not necessarily dishonest and "does not necessarily involve surreptitious conduct or moral depravity sufficient to suggest a lack of credibility." Id. Citing Department of Justice statistics from 1990, the court pointed out that there were nearly 112,000 convictions for drug trafficking in State courts in 1988 and posited that many of those convictions were of "of low-level street dealers who are caught because they openly sell drugs to undercover police officers on public streets, sidewalks, and parking lots or are observed in such places openly selling to other passerby." Id. at 592, 631 A.2d at 503-04.

This Court disagreed with the intermediate appellate court's conclusion. In State v. Giddens, 335 Md. 205, 642 A.2d 870 (1994), though confirming our earlier holdings that convictions for mere possession of controlled dangerous substances had no bearing on credibility and were therefore inadmissible as impeachment evidence, we held, without noting any supporting empirical evidence, that "an individual convicted of cocaine distribution would be willing to lie under oath." Id. at 217, 642 A.2d at 876. We cited United States v. Ortiz, 553 F.2d 782, 784 (2d Cir. 1977) for the proposition that "a narcotics trafficker lives a life of secrecy and dissembling in the course of that activity, being prepared to say whatever is required by the demands of the moment, whether the truth or a lie," and, on that premise, held that a prior conviction for distribution of cocaine was relevant to credibility and therefore admissible under Rule 5-609. Giddens, supra, 335 Md. at 217, 642 A.2d at 876.

In retrospect, Ortiz does not appear to me to be a particularly persuasive case. For one thing, it was a two-to-one decision authored by a District Court judge over the dissent of a Court of Appeals judge. Moreover, Ortiz was a case like Luce and Jordan, in which, on the basis of an in limine ruling that prior convictions of heroin distribution would be admissible, the defendant never testified and the convictions never got into evidence. The Second Circuit Court of Appeals never should have reached the merits and, under Luce, could not do so today. Finally, the court did not make a determination as a matter of law because, at the time, the Federal rule did not directly require that the conviction be relevant to credibility. It required only that the crime be punishable by death or more than a year in prison and that the probative value of the conviction outweigh its prejudicial effect. In looking at that balance, the appellate court said that the trial judge, in his discretion, was "entitled to recognize that a narcotics trafficker lives a life of secrecy and dissembling in the course of that activity, being prepared to say whatever is required by the demands of the moment. . . ."

Acknowledging that the crime of distribution "may include activity that would have little bearing on a witness's credibility," State v. Giddens, 335 Md. at 217, 642 A.2d at 876, we nonetheless somehow took judicial notice, without citing any evidence in support, that "those convicted of cocaine distribution are almost always `drug dealers' in the traditional sense" and then jumped to the ultimate conclusion that "it is reasonable to conclude that a person is less credible because he or she is a convicted drug dealer." Id. at 218, 642 A.2d at 876. That was quite a leap, of course, from making assumptions about cocaine dealers and then applying those assumptions to any "convicted drug dealer," including one who distributed a marijuana cigarette to a friend.

Apart from that unwarranted leap, the cases cited for that proposition, to me, are anything but persuasive. The first, other than Ortiz, was State v. Pierce, 107 Idaho 96, 685 P.2d 837 (App. 1984), in which the Idaho court, though acknowledging that it would be a strain to characterize delivery of heroin as a crime of dishonesty, concluded that, when coupled with two other felonies of which the defendant had been convicted — escape and disruption of a jail — showed "a pattern of disrespect for law and lawful authority" and that "such established disrespect is relevant to evaluating whether Pierce would take an oath seriously as a witness and whether he would hesitate to testify untruthfully if it seemed advantageous to do so." Id. at 844. The test in Maryland is not "a pattern of disrespect for law and lawful authority," but whether the particular crime is relevant to credibility. The second case cited, People v. Washington, 85 Ill. App.3d 522, 40 Ill. Dec. 954, 407 N.E.2d 185 (1980), followed the Illinois law that unlawful possession or delivery was probative of credibility. That, too, runs counter to our case law. The third case, State v. Lagares, 247 N.J. Super. 392, 589 A.2d 630 (App.Div. 1991), aff'd in part, rev'd in part on other grounds, 127 N.J. 20, 601 A.2d 698 (1992), applied the New Jersey law that the conviction "of any crime" was admissible as impeachment evidence and allowed evidence of convictions for both simple possession of marijuana and possession with intent to distribute marijuana.

What State v. Giddens reveals to me is an unwarranted and uncritical acceptance of assumptions that are simply too general and decisions in other jurisdictions that follow different rules than we do. We compounded that error, in both logic and judgment, in State v. Woodland, 337 Md. 519, 654 A.2d 1314 (1995), in which we blindly followed Giddens and held that, as distribution of CDS was an impeachable offense, so was possession with intent to distribute such a substance. Parroting the statement from Ortiz that a narcotics trafficker lives a life of secrecy and dissembling and is prepared to say whatever is required, we concluded that "[o]ur reasoning in Giddens is therefore as applicable to possession with intent to distribute drugs as to distribution." Woodland, at 524, 654 A.2d at 1316.

For the reasons noted, I do not accept the conclusion stated in Ortiz as a universal proposition. To me, the Court of Special Appeals got it right in Giddens v. State. The majority of convicted drug traffickers — convicted either of distribution or possession with intent to distribute — I expect are the low-level street dealers who carry on their business quite openly. The very numbers suggest that to be the case. I seriously doubt that we are convicting close to 200,000 druglords each year in State courts, especially, in light of long mandatory sentences applicable to such persons, on guilty pleas. The drug importers and kingpins may well possess the attributes ascribed in Ortiz, but they do not constitute the majority (or even a sizable minority) of the people appearing in the State courts. If there was some validity to the Ortiz notion, moreover, it would apply as well to nearly any criminal. Most people who commit crimes, other perhaps than episodic crimes of passion, do so in ways that will avoid discovery, and, in that sense, most convicted criminals, regardless of the crime, can be said to act furtively and in manners that will avoid the truth coming to light. Persons who simply possess drugs unlawfully do not advertise the fact; they secrete the drugs and, upon confrontation, are as likely to dissemble as those who possess drugs as part of a trafficking scheme. If we do not accept that possession is relevant to credibility, what makes possession with intent to distribute relevant?

The Court, I fear, went out of bounds in State v. Giddens and extended that march in State v. Woodland. Juries, I think, are quite capable of judging credibility without our throwing into the credibility mix evidence that really has no relevance, or, at best, only the most marginal relevance, to credibility. We should reverse Giddens and Woodland and hold that these crimes are not admissible under Rule 5-609.

Finally, even if Giddens and Woodland are to remain the law, it is clear to me that, in this case, the trial court abused its discretion in concluding that the probative value of the conviction outweighed its prejudicial impact. As noted, the conviction was more than six years old and occurred while petitioner was a teenager. We do not know what substance he possessed with intent to distribute or any of the circumstances surrounding the offense. We do not know whether the conviction was based on a guilty plea, which might show some openness rather than secretiveness and dissembling. Under the circumstances, the probative value as to credibility, to me, was virtually nil. On the other hand, given the State's theory of the case and the significant conflict in the evidence, the danger of the jury using the evidence improperly was great. Despite the limiting instruction, which runs counter to most human experience, the jury could very well have concluded from the conviction that petitioner was, indeed, conducting a drug operation in front of the Mitchell home, which would bolster the prosecutor's argument as to the motive for the assault.

For these reasons, I would reverse the judgment of the Court of Special Appeals and direct that court to reverse the judgment of the Circuit Court. Chief Judge Bell and Judge Eldridge have authorized me to state that they join in this opinion.