Opinion
No. 418, September Term, 1968.
Decided June 6, 1969.
WITNESSES — Accused May Be Cross-Examined Regarding His Criminal Record. When a defendant takes the stand in his own defense, he may be cross-examined regarding his criminal record. p. 166
APPEAL — Waiver Of Allegations Not Raised Below. Appellant's contentions that he was denied effective assistance of counsel, and that it was reversible error to allow him to be cross-examined about his past convictions, were not properly before the Court of Special Appeals, where the issues had not been tried and decided below. Rule 1085. p. 166
Appeal from the Criminal Court of Baltimore (FOSTER, C.J.).
Douglas Frazier was convicted in a non-jury trial of storehouse breaking with intent to steal goods of the value of $100 or more, and, from the judgment entered thereon, he appeals.
Affirmed.
The cause was submitted to MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
James F. Garrity for appellant.
Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, State's Attorney for Baltimore City, and Sandra Cohen, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
The appellant, Douglas Frazier, was convicted in the Criminal Court of Baltimore, Judge Dulany Foster sitting without a jury, of storehouse breaking with intent to steal goods of the value of $100. or more therefrom. He was sentenced to serve five years under the jurisdiction of the Department of Correction.
At trial the appellant elected to testify. On cross-examination the State, without objection, questioned him about his past convictions. Upon this appeal the appellant contends that "this is reversible error as clearly enunciated in Burgett v. Texas, 389 U.S. 109 (1967) because it was not shown that appellant was represented by counsel at the time of these prior convictions." No objection having been raised at trial, the issue is not properly before this Court on appeal. Maryland Rule 1085. Moreover, the law in Maryland is clear that when a defendant takes the stand in his own defense he may be cross-examined regarding his criminal record. Minor v. State, 6 Md. App. 82, 88 (1969). Burgett v. Texas, supra, is not applicable since Burgett's prior conviction was presumptively void, which is not the situation here. See Suggs v. State, 6 Md. App. 231, 235-36 (1969).
The appellant also contends that he was denied effective assistance of counsel. For the reasons set forth in Turner v. State, 5 Md. App. 584, 586-87 (1968), we decline to review the issue of competency of appellant's counsel, that issue not having been tried and decided below. Maryland Rule 1085. Of course, the appellant is not precluded from raising the point in other procedures available to him.
Judgment affirmed.