Crane v. Dunn

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Crane v. Dunn No. 109, September Term 2003 EVIDENCE - ADMISSION OF A PARTY OPPONENT It was error f or the trial judg e to exclud e from ev idence at a c ivil trial an adm ission of a p arty opponent because th e party against w hom the e vidence w as offered previously pleaded g uilty to a traffic offense in open court as part of a plea bargain, compromise, or as a matter of convenience. Such evidence of guilt is admissible in the civil trial arising out of the same occurrence as the traffic offense and is not inadmissible abse nt a determination on the re cord that the prejudicial effect of the evidence outweighs its probative value. In the Circu it Court for C aroline Co unty Case No. 05-C-01-007512 IN THE COURT OF APPEALS OF MARYLAND No. 109 September Term, 2003 LINDA J. CRANE v ANNIE V. DUNN Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Greene, J. Filed: July 26, 2004 In Maryland, a guilty plea to a traf fic citation is ad missible in a c ivil trial; its probative value is deemed to outwe igh any p rejudici al effe ct. An exp ress ackno wledgm ent of guilt to the charged offen se in open court is far more probative than a questionable acknowledgment of culpability that might be inferred from paying a p reset fin e in lieu o f going to cour t. Brigge man v . Albert, 322 Md. 13 3, 139, 586 A. 2d 15, 18 (1991). In this case we must decide wheth er the trial judge correctly excluded evidence of a party s guilty plea , in traffic court, to the charge of negligent driving when that evidence was offered at a subsequent civil trial. We ho ld that the trial jud ge misinterp reted our de cision in Briggeman and err oneou sly exclud ed a pa rty oppon ent s pri or adm ission o f guilt. FACTS Linda J. Crane ( Crane ) and Annie V. Dunn ( Dunn ) were friends and co-work ers who were inv olved in a sin gle vehicle accident on August 19, 1998. The accident occurred while Crane and Dunn traveled home together after an evening at Midway Slots in Harrington, Delaware.1 Dunn was driving her Toyota pickup and Crane was her passeng er. No other people or vehicles were involved in the accident. Both parties testified and gave conflicting versions as to how the accident happened. Although they agree that Dunn left the main traveled portion of the roadway to avoid striking a deer, that the accident happened between 10:00 pm and 10:30 pm, and that Dunn drove either below or at the posted speed of 1 Both Crane and Dunn drank alcohol during the course of the evening at the casino and before the accident. The parties stipulated, however, that the consumption of alcohol was not a cause of th e accident a nd that there would b e no refere nce to alcoh ol in the civil case. 50 mp h, they ga ve con tradicto ry version s of the specifi c details of the a cciden t. According to Crane, as Dunn drove along Whiteleysburg Road, Rt. 314 in Maryland, a deer ran parallel to the right side of the road and the pickup truck. Dunn swerved sharply to the left to avoid a collision and drove into a field, throug h a ditch, a fe nce and in to another ditch before the vehicle came to rest. The vehicle traveled off the roadway approximately 50 feet. Crane explained that the deer was actu ally a car length a way in fron t of them b efore it came across the road in front of the truck. On the other hand, Dunn testified that, as she drove along Rt. 314, Crane yelled, watch out, and then she saw the deer for the first time, coming out in front and that s when [she] swerved to the left. According to Dunn the deer did not run parallel with the truck until she swerved left. Dunn pointed out that her evasive actions were taken to get around the deer, so she, intention ally drove off the road in to a field to avoid th e deer, and at n o time a pplied h er brak es to av oid strik ing the d eer. Prior to the civil trial in the Circuit Court for Caroline County, Dunn appeared in the District Court of Maryland sitting in Caroline County on December 17, 1998, and pleaded guilty to negligent driving, Md. Code (1977, 2002 Repl. Vol.), § 21-901.1(b) of the Transportation Article. The additional traffic citations for driving while intoxicated and driving under the influence, Md. Code (1977, 2002 Repl. Vol.), §§ 21-902(a) and (b) of the Transportation Article, respectively, were abandoned in the District Court proceedings.2 The 2 No transcript of the District Court proceedings was offered into evidence at the civil trial. A Notice of Nolle Prosequi filed in the District Court proceedings was offered into evidence by Dunn s attorney. The Notice of Nolle Prosequi, however, does not (continued...) 2 maximum penalty for negligent driving is $500, including administrative sanctions. Md. Code (1977 , 2002 R epl. Vo l.), §§ 27 -101 an d 16-4 02 of th e Tran sportatio n Artic le. Crane sued Dunn in the Circuit Court for Caroline County for damages resulting from Dunn s negligent operation of her motor vehicle . Dunn move d, in limin e, to exclude any reference to her g uilty plea to neglige nt drivin g. Even though Dunn p leaded gu ilty to negligent driving, the trial judge did not believe the plea constituted an express acknowledgment of responsibility for the accident and, instead, accepted Dunn s explanation, as recorded in her depo sition answ ers, that she w as not adm itting guilt when she pleaded guilty, but that she pleaded guilty only to avoid prosecution for more serious charges.3 The 2 (...continued) identify the charge or charges nolle prossed by the State. Dunn, during her deposition, answere d affirma tively to the ques tion, So the plea was they dropped the driving w hile intoxicated and driving under the influence charge? The parties do not dispute that the alcohol related charge or charges were disposed of in the District Court and that Dunn pleaded guilty to negligent driving. A s will be discussed further, D unn s attorney s position at the time of the civil trial was that Dunn probably did not understand the difference betwe en pleading guilty and paying a fine. H e theorizes that perhaps in return for the State agreeing to drop one charge she paid a fine, or cost or something for the negligent driving. The thrust of this argument is that the traffic court record is unclear and it is u nknow n wh ether it w as a gui lty plea or a , simply [s ic] or som ething w as paid . Therefore, Dunn posits that the traffic court record is ambiguous and any testimony about the traff ic court p roceed ings sh ould be exclud ed as ev idence in the civ il trial. 3 Dunn s Answ er to Interrog atory No. 26: Question : If you were is sued a traff ic citation, ticket or summons, or if you were charged by any governmental body for any violation of the law with respect to the occurrence complained of, state the nature of the charge, the d ate, place an d time of a ny hearing on said charge , the plea ente red by you to said charge, the result or verdict entered by the court and the date thereof. ANSWER : Ms. Dunn was cited with driving under the influence and negligent (continued...) 3 trial judge concluded that the facts of the District Court traffic proceedings were ambiguous as to whether Dunn admitted g uilt. In granting Dunn s motion in limine to exclude evidence the trial judge stated: [T]he Court s going to grant Defense s Motion, based upon Briggeman, in reading the deposition as well as reading the case. I do agree Mr. Farina that in certain context if someone says, on the record and I doubt the guilt, there was any guilty plea on the record in District Court even if there was I don t hav e it in front of me. If she adm itted her guilt, on the record a t, in District Court that really would have been an a dmission, th at would h ave been admissible d espite Briggeman. But based upon her own deposition testimony at page 14, she talks 3 (...continued) driving as a result of the occurrence. A hearing on the charges was held on December 17 th , 1998, at which time Ms. Dunn pleaded guilty to negligent driving. The driving under the influence charge was dismissed. This plea was accepted by the court on that date. In response to a series of deposition questions, Dunn stated: Q. Now , as a result of the police coming to the scene that evening, you w ere charged with driving while intoxicated and under the influence of alcohol and also negligent d riving; wer e you not? A. Ye s. .... Q. . . . you pleaded guilty to negligent driving ; didn t you? A. Yes. Q. And in your mind, you were adm itting your respo nsibility for the acc ident? A. No. Q. No? A. It was a plea they offe red me. T hey droppe d the other c harge, and just to hasten everythin g and s o everyb ody didn t have to go thro ugh a tr ial, I said o kay. Q. So the plea was they dropped the driving while intoxicated and driving under the influence charge? A. Right. Q. In your return to admitting to the negligent driving? A. Right, which was 2 years 2 points. Q. And you paid a fine and some costs or whatever at that time? A. I do n t rem embe r. I don t r emem ber payin g anythin g. 4 about she specifically says, she wasn t admitting her responsibility, it was a plea they offered me, they dropped other charges, jus t to hasten ev erything. That in and of itself is enough ambiguity to me, to cloud or to cause me to doubt whether her payment of the fine or the acceptance of the plea was an admission of the guilt or as you said she wante d to take the ben efit of th e barga in, so as not to be exposed to the greater penalties that she may have been expos ed . . . to for D UI . . . . At the conclu sion of the tria l in the Circu it Court the ju ry returned a ve rdict in favor of D unn on th e issu e of l iabil ity. Crane filed a motion for new trial which the court denied. Sub sequ ently, Crane filed an appeal to the Court of Special Appeals. Before argument in the intermediate appellate court, this Court granted Crane s petition for a w rit of cer tiorari. Crane v. Dun n, 379 M d. 224, 8 41 A. 2 d 339 ( 2004) . Standard of Review The exclusion of competent, relevant and material evidence may constitute prejudice and result in r eversib le error. Stacy v . Burke , 259 Md. 390, 269 A.2d 837 (1970); see also Regal Const. Co. v. West L anham Hills C itizen s A ss n., 256 Md. 302, 260 A.2d 82 (1970). It is the policy of this Court not to reverse fo r harmless error and the burden is on the appellant in all cases to sh ow preju dice as w ell as error . Rippon v . Mercan tile Safe Dep osit Co., 213 Md. 215, 222, 131 A.2d 695, 698 (1957) (quoting Sieland v. Gallon, 194 Md. 282, 71 A.2d 45; Balto. Transit Co. v. Castranda, 194 Md. 421 , 71 A.2d 442). Prejudice will be found if a show ing is made that the error was likely to have affected the verdict below. It is not the pos sibility, but the proba bility, of prejudice w hich is the ob ject of the ap pellate inquiry. State Deposit Ins. Fund Corp. v. Billman, 321 Md. 3, 17, 580 A.2d 1044, 1051 5 (1990) (citing Harford Sands, Inc . v. Groft, 320 Md. 136 , 148, 577 A.2d 7 , 12-13 (1990)) . Courts are reluctant to set aside verdicts for errors in the admission or exclusion of evidence unless they cause substantial injustice. Hance v. State Roads Comm., 221 Md. 164, 176, 156 A.2d 644, 65 0-651 (1959 ). Substantial prejud ice mu st be sho wn. Id. To justify the re versal, an error be low m ust hav e been . . . both manifestly wr ong an d subst antially inju rious. Rotwein v. Bogart, 227 Md. 434, 437, 177 A.2d 258, 260 (1962) (quoting 2 Poe on Pleading and Practice (Tiffany's ed.), § 287, p. 249.) Maryland Rule 5-103(a) provides, in pertinent part, that error may not be predicated upon a ruling that admits or excludes evidence unless the party is prejudiced by the ruling. . . . Maryland Rule 5-104(a) entrusts to the court questions of admissibility of evidence. Likewise, pursuant to Rule 5-1 04(a) [p]reliminary questions concerning . . . the admissib ility of evidence shall be dete rmined by the court. Th us, the court s duty is to determine whether such prelimin ary fa cts exist to sup port the a dmissibility of evidence. Th e court gen erally applies the preponderance of the evidence standard in making that determination. See Bourjaily v. United States, 483 U. S. 171, 175-76, 107 S. Ct. 2775, 2778-79, 97 L.Ed.2d 144, 152-5 3 (198 7). Judge Harrell, on behalf of this Court, explained the difference between our review under the a buse of d iscretion stand ard and leg al error. He s aid: Application of [the abuse of discretion] standard, however, depends on whether the trial judge s ruling under review was based on a discretionary weighing of relevance in relation to other factors or on a pure co nclusio n of law . When the trial judge s ruling involves a weighing, we apply the more deferential abuse 6 of discretion standard. On the other hand, when the trial judge s ruling involves a legal question, we review the trial court s ruling de novo. J. L. Mathews, Inc. v. Maryland-National Capital Park, 368 Md. 71, 91-92, 792 A.2d 288, 300 (2002) (footnote and internal citations om itted). Admissibility of gu ilty pleas to minor tra ffic offenses in subsequ ent civil litigation arising out of the same occurrence In Brohawn v. TransAmerica Insurance Company, 276 Md. 396, 347 A.2d 842 (1975), we acknow ledged tha t a plea of guilty to the crime of assault may be introduced in a subsequent civil proceed ing, emph asizing that th e guilty plea may be rebutted or explained in the subsequent proceeding. We reaffirmed the general proposition and the rationale for the introduc tion of the p lea in the civil co ntext: A plea of guilty to a crimina l charge m ay be introduc ed in a subsequ ent civil proceeding as an ad mission . Campfield v. Crowther, 252 Md. 88, 100, 249 A.2d 168 (1969). But this a dmission does no t con clusively e stablish liabil ity. Instead, it may be rebu tted or expla ined in the su bsequen t civil case in which it is admit ted. Nicholson v. Snyder, 97 Md. 415, 42 5, 55 A. 484 (19 03); Teitelbaum Furs, Inc. v. Dominion Insurance Company, 58 Cal. 2d 601, 25 Cal.Rptr. 559, 375 P .2d 439, 441 (196 2) (citations omitted). Justice Traynor, for the Supreme Court of California, explained the reasons underlying this r ule in the Teitelbaum case (375 P.2d at 441 ): When a plea of guilty has been entered in the prior action, no issues have been drawn into controversy by a full presentation of the case. It may reflect only a compromise or a belief that paying a fine is more a dvanta geous than litig ation. Considerations of fairness to civil litigants and regard for the expeditious administration of criminal justice . . . combine to prohibit the application of collateral estoppel against a pa rty who, havin g pleaded guilty to a criminal charge, seeks for the first time to litigate this cause in a civil action. Brohawn, 276 Md. 396, 403-404, 347 A.2d 842, 848. 7 Although Brohawn involved a guilty plea to assault which was given in exchange for dismissal of kidnaping charges against Mrs. Brohaw n, we find no suppo rt in our case law for drawing a distinction between pleas of guilty to serious crimes and traffic or other minor crimes.4 We have d ecided three cases involving the issue of admissibility of a guilty plea 4 Some jurisdictions draw a distinction between m inor traffic offenses and other crimes, resultin g in the dete rmination th at evidence of a guilty plea to a minor traf fic offense or other misdemeanor is inadmissible in a civil suit for damages arising out of the same traffic violation or minor crime. In Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768 (1966), the Pennsylvania Supreme Court explained: [W]e recognize a valid existing distinction in cases involving the record of conviction of relatively minor matters such as traffic violations, lesser misdemeanors, and matters of like import. Especially in traffic violations, expediency and con venience, rather than guilt, often co ntrol the defendant s trial technique. Loughner, 421 Pa. at 284-85, 218 A.2d at 769. This re asonin g has b een ex tended to guilty ple as. See Cusa tis v. Reic hert, 267 Pa. Super. 247, 253-54, 406 A.2d 787, 791 (1979). Other jurisdictions, however, follow Maryland a nd draw no such d istinction. For e xample, the Idaho C ourt of A ppeals, in Beale v . Speck , 127 Idaho 521,530, 903 P.2d 110, 119 (1995) held that evidence of a party s plea of guilty to a traffic infraction is admissible against that party in a subsequent civil proceeding arising from the same occurrence as an admission of a party-opponent. That Co urt felt it was a better policy to allo w only pleas made in o pen cour t and not to distinguish b etween th e seriousne ss of the of fenses. Th e Court he ld that the plea s should be received into eviden ce as an admission, sub ject to explanation or rebuttal. The C ourt further held: Evidence of such a plea is not conclusive on the issue of negligence; the party against whom the evidence is offered is free to explain the circumstances under which the guilty plea was entered, and the jury, as the trier of fact, shall determine the weight to which that explanation is entitled. Id. 8 entered in traffic court as evidence in a subsequent civil proceeding arising out of the same occurrence. The most expansive discussion of the issue can be found in Briggeman v. Albert, 322 Md. 133, 586 A.2d 15 (1991). Although the discussion of the issue is limited in the other two cases, the cases a re, none theless, r elevan t to our d iscussio n. See Camfield v. Crowther, 252 Md. 88, 249 A.2d 168 (1969) (holding that a guilty plea to a criminal charge may be introduced in a subsequent civil proceeding as an admission) and Miller v. H all, 161 Md. 111, 155 A. 327 (1931) (ho lding that the te stimony of the defenda nt, at his subsequent civil trial for negligen ce, in which he ple aded guilty in tra ffic court to f ailur e to yie ld the right of way, was an admiss ion of f ault and relevan t). In Briggeman we held that payment of a traffic fine is neither a guilty plea nor an express acknowledgment of guilt. Therefore, the payment of a traffic fine has no relevance to the subsequent civil proceeding arising f rom the same o ccurren ce. Briggeman, 322 Md. at 137, 58 6 A.2d at 17. Briggeman involved a single vehicle accident that occurred when Phillip K. Albe rt, Jr. was driving his automobile in Ocean City and struck Betty L. Briggeman, a pedest rian. Briggeman, 322 M d. at 134 , 586 A.2d at 15. At the scene, a police officer issued Mr. Albe rt a citation for failure to exercise due care for a pe destrian . Id. Mr. Albert had the option of payin g the cita tion in lie u of ap pearing for trial in court. Id. Because the accident occurred in Worcester Co unty and Mr. Albert resided in Howard County, he paid the fine to av oid a trial i n Worce ster C ounty, which was a considerable distance from his home. Id. 9 In a civil tort proce eding rega rding the sa me accide nt, the pedes trian sough t to introduce Mr. Albert s payment of the fine as evidence that he adm itted guilt for the accident. Id. The trial judge ruled that the evidence was inad missible and the Court o f Special A ppeals affirmed. Briggeman, 81 Md.App. 482, 586 A.2d 865. We reviewed the matter, affirming the intermediate appellate co urt and ho lding that the p ayment of a traffic fine is not an admission of guilt because M r. Albert m erely chose to e xercise his sta tutory right . . . to dispose of a traffic citation without appearing in court. Briggeman, 322 Md. at 136, 586 A.2d at 16. We p ointed out th at payment o f a fine is not the evidentiary equivalent of a guilty plea in open court. Id. Briggeman draws a distinction between two categories of convictions those that are admissible in evidence in a subsequent civil proceeding arising out of the same accident and those that are not. In the first category are guilty pleas, w hich supp ort an adm ission of gu ilt: Admissions, in the form of word s or acts of a party-opponent, may be offered as evidence against that party. It is reasoned that allowing such an admission into evidence is fair, as the party-opponent's case cannot be prejudiced by an inability to cross-examine him or herself. Generally, when a guilty plea to a criminal charge is admitted in a subsequent civil action, it is under the auspices of an admission by a party-opponent. For this reason, a defendant may choose to plead nolo contendere in order to avoid the admissibility of the plea. Briggeman, 322 M d. 133, 1 35, 586 A.2d 1 5, 16. (F ootnot e and c itations o mitted.) Admissions are "the words or acts of a party-opponent, or of his predecessor or representative, offered as evidence agains t him." McCormick on Evidence, § 262 at 628. Admiss ions are considere d to be s ubstan tive evid ence o f the fa cts adm itted. 10 Smith v. Branscome, 251 Md. 582, 248 A.2d 455 (1968); Terry v. O 'Neal, 194 Md. 680, 72 A.2d 26 (1950); Lambros v. Coolahan, 185 Md. 46 3, 45 A.2d 96 (1 945); Kirk & Son s v. Garrett, 84 Md. 383, 35 A . 1089 (18 96); Maurice v. Worden, 54 Md. 233 (1880). A party may of fer into evidence against his oppone nt anything said by him as long as it illustrates some inconsistency with the facts now asserted by the opponent in pleadings or in tes timony. 4 Wigmore on Evidence § 1048, at p. 4 (Chadbourne rev. ed. 1972). Admissions do not have to be against the speaker's interest when made and may even be made by someone not having personal knowledge of the fact admitted. Unlike some hearsay exceptions, the speaker need not be, and rar ely is, unav ailable. McCormick on Evidence, § 254 at 136. Dunn s plea in District Court fits into this category of guilty pleas which are admiss ible under Brigge man. Evidence of Dunn s plea in traffic court is contained in her answer to interrogatory number 26. In acco rdance w ith Maryland Rule 2-421(d ), answers to interrogatories may be used for any purpose to the extent permitted by the Rules of Evidence. Under Maryland R ule 5-803 (a) an adm ission of a p arty-opponen t is admissible a nd is considered an excep tion to hearsa y. Here, the trial judge noted that under Briggeman, [if] [Dunn] admitted h er guilt . . . on the record, in District Court that really would have been an admission, that would have been admissible. Despite the clear statement of her admission of guilt as embodied in Dunn s answer to interrogatory number 26, the trial cou rt erroneou sly determined that Dunn s guilty plea was ambiguous and, thus, inadmissible. In order to reach this conclusion the trial judge either ignored or discounted Dunn s express acknowledgment 11 of guilt and gave greater weight to her explanation, embodied in her answers to deposition questions, of why she pleade d guilty. This w as not the pr oper role of the trial court in determ ining ad missibili ty of evid ence. The question o f admissib ility of evidence is different than the q uestion o f cre dibility. The later issue is reserved f or determin ation by the trier of fact. Even if we were to assume that Dunn s guilty plea to negligence was ambiguous and did not constitute a clear expression of guilt, and we do not, it was an ambiguity that Dunn created and had the power to correct or explain. Sh e was in th e best position to articulate what happened in the District Co urt traffic case. Dunn could have produced a transcript or other recording of those proceedings or she could have testified in open court. Dunn was in the best position to explain to the trier of fact the reas ons for he r answer to interrogatory nu mber 26 and the co nflict, if any, between those a nswe rs and h er answ ers give n at her d epositio n. The second category unde r Briggeman is evidence of a mere conviction which is not necessarily proof of guilt. For example, payment of a fine would fall into this category. Such evidence is inadm issible. Brigge man, 322 Md. at 137, 586 A.2d at 17. Mr. Albert s payment of a traffic c itation, in Briggeman, fits into this category because it was tendered purely out of conve nience . Briggeman, 322 Md. at 136, 586 A.2d at 16. While convenience may have been a factor motivating Dunn to enter a guilty plea, her express acknowledgmen t in open court of guilt is far more significant than the payment of a fine. In Briggeman we said: [A]n admission of guilt in the tra ffic court is admissible [as] evidence in a subsequent civil proceeding arising out of the same accident. The submission 12 of payment personally or by mail in satisfaction of a traffic fine, howev er, is not the eviden tiary equivalent o f a guilty plea in open court . . . . The payment of a traffic fine is neither a guilty plea nor a n express a cknow ledgmen t of guilt . . . . The classification of a traffic fine payment as a consent to conviction rather than a g uilty plea is a n impo rtant disti nction. In Maryland, evidence of a conviction is inadm issible as subs tantive proo f in a subse quent civil su it arising from the same inciden t as the cr iminal c harge . . . . Payment of a traffic fine is a consent to conviction, and a conviction, even when entered by consent, is no t adm issib le to p rove liabi lity. Brigge man, 322 M d. at 135 -137, 5 86 A.2 d at 16- 17. (Inte rnal citati ons om itted.) In addition, we disagree with the trial court s conclusion that evidence of what occurred in the District C ourt procee ding wa s not befo re the court. T he court ha d the bene fit of Dunn s answers to interrogatory No. 26 and her answers to deposition questions concerning the guilty plea. Dun n s assertions about her c onduct an d statemen ts in the Distric t Court, indeed, is evidence of what occurred in that proceeding. Undoubtedly, a transcript of the District Court traffic proceed ings may have presented a more detailed statemen t than Dunn s pre-trial admissions. The burden of producing a transcript of the District Court proceedings, however, did not rest on Crane s shoulde rs. Generally, the b urden of production rests squarely upon the proponent of the evidence. If Dunn wanted to offer into evidence the record of the District Court proceedings, she had the burden of producing a transcript. Crane was free, how ever, to off er into evide nce proo f of Du nn s statem ents as reflec ted in her answers to interrogatories and her answ ers to deposition questions by reading those answers into evid ence in the pres ence o f the jur y. Moreover, we pointed out in Campfield v. Crowther, 252 Md. 88, 101, 249 A 2d 168, 13 176 (1969) that the introduction into evidence of a transcript of a prior traffic court proceeding is not the only proper method of proving admissions of a party oppon ent made in the prior proceeding. In Campfield we held that the guilty pleas to traffic charges made by an attorney on behalf of his client during the traffic proceeding were binding on the client and admissible in subsequent litigation. On the issue of whether the testimony of the defendant alone was adequate proof of an admission, we said, there may have been sufficient contradictory testimony from Defend ant Hill to justify a finding by a jury that there was an admission against interest when Hill admitted he was present during the traffic court proceedings, but initially indicated he did not remember the pleas his attorn ey entered on his behalf. Subsequently, Hill stated that his attorney in the traffic p roceeding told [him] what charges the attorney pleaded guilty to, then later stated that his attorney never told him. Camp field 252 M d. 88, 10 1, 249 A .2d 168 , 176. Lastly, pursuant to Maryland Ru le 5-803(a) (S tatem ent b y a Party-Oppo nent), a party is free to introduce anything an opposing party has said or done to prove the truth of the matter asserted . McLain, Maryland Evidence, §801(4):1a (citing Bartlett v. Wilbur, 53 Md. 485, 497-498 (1880)). Such statements are admissible against a party, unless excluded by the court, under Maryland Rule 5-403 or case law. In this case, alternatively, Crane s counsel was free to use the deposition testimony of Dunn as substantive evidence and place the burden, tactically, on the defense to clarify the statements made in the answers to interrogatories and the depos ition. See, Snowhite v. State, Use o f Tenna nt, 243 Md. 291, 221 A.2d 342 (1966). 14 Thus, all of Dun n s pretrial statements were admissible as substantive evidence at her civil trial. Maryland Rule 5-403 All relevant, evidence m ay be exclud ed if its proba tive value is su bstantially 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. Maryland Rule 5-403 codifies the inherent powers of trial judges to exercise discretion to exclude relevant, probative evidence that is unduly prejudicial, confusing, or timeconsuming. See, e.g ., Briggeman, sup ra, State v. Wats on, 321 Md. 47, 57, 580 A.2d 1067, 1072 (1990); Su v. We aver, 313 Md. 370, 545 A. 2d 692 (1988). This Ru le necessarily requires the trial judge to engage in a balancing test. The Rule does not, how ever, specify that the trial judge m ust state on the record the re asons for h is or her decision to exclude evidence, even though that practice is preferable . We hav e said that the b etter practice f or trial courts when applying the balancing test is to articulate on the reco rd the reasons for the decision to exclude eviden ce. See Streater v. State, 352 Md. 800, 810, 724 A.2d 111 (1999) (in the context of applying Rule 5-404(b)). If the court intends to exclude otherwise admissible evidence, it may do so if the risk of unfair preju dice, confusion of the fact finder, or waste of time substantially outweighs the probative value of the e videnc e offe red. See Farley v. Allstate Ins. Co ., 355 Md. 34, 42-43, 733 A.2d 1014, 1018 (1999); Graves v. State, 334 Md. 30, 40-43, 637 A.2d 1197, 1202 (1994) (internal citations omitted). In determining probative value, it is improper for the court to resolve issues of credibility or reliability, which are for 15 the jury. Rainey v . Conerly , 973 F.2d 321, 32 6 (4 th Cir. 199 2). Here, the trial court stated its reasons on the record for its ruling, but did not engage in the balancin g contem plated by M aryland Rule 5-403. The court determined that the facts surrounding the guilty plea were ambiguous and concluded that Dunn did not acknowledge guilt to neglige nt driving. T he court rea soned tha t, assuming the guilty plea was entered, it was not an express acknowledgment of guilt because it was made as part of a ple a bargain or as a convenience to Dunn. In our view, Dunn s version of what occ urred durin g the traffic court proceedings did not warrant a finding that her acknowledgment of guilt was ambiguous. Her explanation indicates that she entered into a compromise in traffic court. Her plea of guilty to negligent driving constitutes an ackno wledgm ent of neg ligent driving and repres ents an admission of responsibility for the accident. If she did not intend for that to happen, she is free to exp lain or rebut th at fact. 5 It is a matter within the province of the jury to weigh Dunn s credibility, and the trial judge invaded that province. Simply because the parties failed to offer into evidence a transcript of the traffic court proceedings, the court was incorrect in its assessment that Dunn s pretrial statem ents were insufficien t proof of h er guilty plea or an a cknow ledgmen t of guilt. In our view, it was prejudicial error to exclude evidence of Dunn s plea to negligent 5 At oral argument, Dunn s counsel asserted it would constitute a hardship for Dunn to explain or rebut the guilty plea because the parties agreed that there would be no mention of alcohol in the civil case. Counsel overlooks, however, that Dunn would not have to mention the specific charges that were nolle prossed in exchan ge for her g uilty plea. She need only say that other charges were dropped. 16 driving. Crane an d Dunn were the o nly witnesses to this accident. Evidence of the admission of Dunn, along with any other evid ence of fault, was a ma tter f or co nsid erati on by the ju ry. Of course, the admission in traffic court to negligent driving is not conclusive on the issue of negligence. The party against whom the evidence is offered is free to explain the circumstances under which the plea of guilty was ente red, and the jury decides w hat weigh t, if any, to giv e that ex planatio n. It was unfair to Crane for the court to exc lude Du nn s guilty plea on the basis that it was an ambiguous statement of responsibility for the accident. Her admission in traffic court was substantive evidence. T he trial court articulated no other reason for its decision and gave no reasons why the evidence was more prejudicial than probative. We have said that, it is not the possibility but the probability of prejudice which is the object of the appellate inquiry. State D eposit v . Billma n, 321 M d. 3, 17, 5 80 A.2 d 1044 , 1051 (1990). Crane had a right to show the jury that, previously, D unn had taken respo nsibility for the accident, an d Dunn had every righ t to explain or rebut that assertion. We cannot say that the exclusion of her adm ission did no t affect the o utcome o f the trial. The refore, we hold that the trial court erred in granting the motion in limine excluding evidence of the guilty plea, and because the judge failed to properly exercise the discretion embodied in Rule 5-403, we are compelled to reverse. JUDGMENT OF THE CIRCUIT COURT FOR CAROLINE COUNTY REVERSED. CASE REMANDED TO THAT COURT FOR A NEW TRIAL. APPELLEE TO PAY COS TS. 17 18

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