Braxton v. State

• Decision Date: 16 March 1971
• Docket Number: No. 408,408
• Citation: 11 Md.App. 435,274 A.2d 647
• Parties: William B. BRAXTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 435

11 Md.App. 435

274 A.2d 647

William B. BRAXTON v. STATE of Maryland.

No. 408.

Court of Special Appeals of Maryland.

March 16, 1971.

David B. Allen, Baltimore, for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Howard L. Cardin, State's Atty., for Baltimore City, Anton Keating and Arrie W. Davis, Asst. State's Attys., for Baltimore City on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON and ORTH. JJ.

ORTH, Judge.

Standing trial before a jury in the Criminal Court of Baltimore on charges of robbing each of Edward Brown and Jessie Peoples with a deadly weapon on 8 March 1970, William Benjamin Braxton called Albert Johnson to testify on his behalf. Johnson said he had known Braxton for 16 months, was familiar with the neighberhood in which he lived and knew 'his reputation for honesty and truthfulness in the community in which he lives. * * * He has a reputation for good charcter and honesty, trustworthy.' He had never 'heard people speak badly of him.' This testimony came in without objection. He then gave testimony tending to give Braxton an alibi, in substance that he was with Braxton about the time of the commission of the robberies. On cross-examination he said that 'friends of mine and friends of (Braxton)' had told him Braxton was 'an honest and truthful person.' Braxton testified in his own behalf. There was no evidence elicited of a prior criminal record. At the close of all the evidence, after argument to the jury, the trial court gave its instructions. The charge covered the points usually covered, including the statement that the jury were 'the sole judges of the facts in this case and credibility of the witnesses, and you are the judge of how much weight you ought to give to the testimony of all the witnesses representing both sides.' Pointing out that it was the duty of the jury to determine which of the two versions before it were correct, the State's which tended to show by the identification of the victims that Braxton was one of the robbers, and the defense's which tended to show by Braxton's denial and the alibi evidence that he was not, the court again said it was to 'job and duty' of the jury in so determining 'to decide upon the credibility of the witnesses.' At the conclusion of the charge the transcript reads:

'(Counsel approached the Bench and noted the following exceptions, out of the hearing of the Jury.)

MR. CHIARIELLO (Defense Counsel): I respectfully except to the refusal of the Court to grant my instruction number one as to the weight the Jury may give to evidence of character of the Defendant. Will that instruction be placed in the file?

THE COURT: Yes, it is in the file.

MR. CHIARIELLO: And I advance my argument. I believe, that the decisions of this State are that evidence of good character goes to the very heart of the case as to guilt or innocence. I think it is proper that at least a part, if you decide not all, of that instruction should be given.

THE COURT: The record ought to note you made a very full argument on that point to the Jury, although I refuse to grant your request for instruction.'

The instruction requested read as follows:

'The Court instructs the jury that relative to the testimony pertaining to the character of one of the defendants in respect to those traits of charcter which ordinarily would be involved in the commission of a crime like that charged in this case, I would instruct you as follows:

MR. CHIARIELLO: And I advance my as relevant to the question whether the defendant is innocent or guilty of the crime charged, because the jury may, if its judgment so directs, reason that it is improbable that a person of good character in such respects would have conducted himself as alleged.'

The jury found Braxton guilty of each robbery as charged. On appeal he claims that the court erred in refusing to instruct the jury 'concerning the legal significance of the evidence then before them about (his) character.'

It has been ofttimes stated as established in this State '* * * that in criminal cases where the defendant is a witness in his own behalf, he thereby puts his character in issue, and may be asked on cross-examination if he has been convicted of crime.' Burgess v. State, 161 Md. 162, 169, 155 A. 153, 156. See Taylor v. State, 226 Md. 561, 566-567, 174 A.2d 573; Niemoth v. State, 160 Md. 544, 556, 154 A. 66; Huber v. State, 2 Md.App. 245, 257, 234 A.2d 264. This is so because it is competent for any parties to the proceedings to prove by legal evidence the conviction of any witness of an 'infamous' crime. ¹ Code, Art. 35, § 10. Thus when a defendant testifies as a witness, his credibility as a witness may be attacked. Although he is the defendant, if he assumes the role of a witness he may be attacked as such, and cannot claim immunity from that attack on the ground that he has not put his character in evidence. 1 Wharton's Criminal Evidence, 12th Ed., § 221, pp. 458-459. Therefore, 'character' within the contemplation of the rule is confined to truth and veracity, the prior convictions going to credibility and being used to impeach, Holbrook v. State, 6 Md.App. 265, 250 A.2d 904, as having a tendency to show that the defendant is not to be believed, Hurley v. State, 6 Md.App. 348, 251 A.2d 241. ²

As distinguished from the limited concept of character within the impeachment rule as relating only to credibility, a defendant may always offer evidence of his good character and to prove that his character was such as to make it unlikely that he would have committed the act charged against him. The defendant does not put his 'character' in this frame of reference in issue by merely taking the stand as a witness. It is put in issue, however, when he states that he has good character or a good record, or offers direct evidence of good character. 1 Wharton's Criminal Evidence, 12th Ed., § 221, pp. 458-459. Wharton discusses the rule:

'The defendant is not required to testify as a witness before offering character evidence on his own behalf. He may call witnesses for the purpose although he does not himself testify as a witness.

The offering of character evidence on his behalf is a privilege of the defendant, and the prosecution cannot comment on the failure of the defendant to produce such evidence.

The State cannot show the bad character of the accused until the accused has raised the issue by offering evidence of good character. Once the defendant raises the issue of his character, the prosecution may then offer evidence of the defendant's bad character. * * *

Neither the defendant nor the prosecution may offer evidence of general good or bad character. To be relevant, it is necessary that the character be confined to an attribute or trait the existence or nonexistence of which would be involved in the noncommission or commission of the particular crime charged. This, of course, depends upon the moral wrong involved in the commission of the crime charged. ³ * * *

Evidence relating to the good or bad character of the accused must be confined to proof of general reputation in the community or communities in which the accused has lived. His reputation among his business associates or his place of business or employment is generally inadmissible.

The witnesses to the defendant's character must show that they have knowledge of his reputation in the community.

In proving character, it is not relevant for the defendant to give evidence of particular acts unless they tend to disprove some fact put in issue.

On direct examination a witness cannot be asked whether he ever heard anything said against the defendant's reputation, but only whether he knew the defendant's reputation within the community and whether the reputation was good or bad. Both the prosecution and the defendant are limited to what the defendant's neighbors say about him, or...