Is 4th Degree Burglary Impeachable?


Short Answer:  

Generally,  in and of itself, a prior conviction for a violation of CR 6-205 (a), (b), or (d) is not valid impeachment material. This is not the case for a conviction for CR 6-205 (c).

Long Answer:  

Depending on the specific subsection of Maryland Criminal Law Section 6-205, a criminal defendant may be subject to impeachment for a prior conviction.   CR Section 6-205 encompasses four different misdemeanor offenses: a) “a person may not break and enter the dwelling of another;” b) “a person may not break and enter the storehouse of another;” c) “a person, with the intent to commit theft, may not be in or on the dwelling or storehouse of another or a yard, garden, or other area belonging to the dwelling or storehouse of another;” and d) “a person may not possess a burglar’s tool with the intent to use or allow the use of the burglar’s tool in the commission of a violation of [6-205 a, b, or c].” (Id. at a, b, c, and d.)

In Bane v. State, the Maryland Court of Special Appeals addressed the impeachment value of misdemeanor breaking and entering. (73 Md. App. 135 (1987)). The court held in Bane, “misdemeanor breaking and entering involves no felonious or larcenous intent… [in the absence of substantial facts from the underlying conviction to indicate otherwise] …  the conviction of breaking and entering does not necessarily indicate such ‘base or vile’ conduct as would constitute it a crime of moral turpitude. We hold, therefore,  that it is not an offense involving such moral turpitude that evidence of a conviction may be used for impeachment purposes. ” (Id at 150).  The court went on to find that “statutory breaking and entering is [not] among those lesser violations having ‘some tendency to show that the person charged is not to be believed under oath.'” (Id at 151 quoting Cousins v. State, 230 Md. at 4).  This is due to the fact that “the offense of statutory breaking and entering lacks the proof of any conduct 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.'” (Id. quoting Burrell v. State, 42 Md. App. at 140).

Under Bane v. State, a criminal defendant should not be subject to impeachment for prior conviction, in and of itself, for violation of CR 6-205 (a) or (b) because the language of the statute deals only with breaking and entering.   Likewise, a prior conviction, without additional facts, for CR 6-205 (d) does not, on its face, generate impeachment value.  However, this is not the case with CR. 6-205 (c), whose language does include intent to commit a theft, a crime of moral turpitude,  making it ripe for impeachment.

Practitioner Note One: CR 6-205 (f) states “a person who is convicted of violating 7-104 of this article may not also be convicted of violating subsection (c) of this section based on the act establishing the violation of 7-104 of this article.”

Practitioner Note Two: Bane at 151-52 contains the following string citation: other “offenses that cannot be used for impeachment. See, e.g., State v. Duckett, 306 Md. 503, 510 (1986) (assault and battery); Lowery v. State, 292 Md. 2, 437 (1981) (per curiam) (possession of barbiturates); Ricketts v. State, 291 Md. 701 (1981) (indecent exposure); Nesbit v. Cumberland Contracting Co., 196 Md. 36, 75 (1950) (traffic violations including reckless driving,  passing on a curve,  failing to stop at a stop sign, and driving without a license or after license is revoked); Nelson v. Seiler, 154 Md. 63 (1927) (exceeding the speed limit and driving without a license in one’s possession); Paschall v. State, 71 Md. App. 234, 524 (1987) (malicious destruction); Matthews v. State, 68 Md. App. 282 (1986) (prostitution); Cason v. State, 66 Md. App. 757, (1986) (heroin possession); [and] Woodell v. State, 2 Md. App. 433, 439 n. 2 (1967) (a court martial conviction for disobeying a superior officer while in the military)…”

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