Durkin v. State

• Decision Date: 22 February 1979
• Docket Number: No. 21,21
• Citation: 284 Md. 445,397 A.2d 600
• Parties: George Dino DURKIN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 445

284 Md. 445

397 A.2d 600

George Dino DURKIN v. STATE of Maryland.

No. 21.

Court of Appeals of Maryland.

Feb. 22, 1979.

Victoria A. Salner, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Kathleen M. Sweeney, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

ELDRIDGE, Judge.

We granted certiorari in this criminal case to consider the requirement of Maryland Code (1974), § 9-115 of the Courts and Judicial Proceedings Article, that for a character witness to give evidence based on personal opinion, he must have an "adequate basis for forming an opinion as to another person's character . . . ."

The petitioner, George Dino Durkin, was convicted by a jury in the Circuit Court for Montgomery County (Mitchell, J., presiding) of using a handgun in the commission of a felony and unlawfully transporting a handgun in a motor vehicle, in violation of Code (1957, 1976 Repl.Vol.), Art. 27, §§ 36B(b) and 36B(d). The testimony at Durkin's trial was in sharp dispute.

William Perry and John Sleman, witnesses for the State, testified to the following version of the facts. On October 25, 1975, the defendant Durkin came into the Texaco gasoline station located in Kensington, Maryland, where Sleman was employed. Mr. Sleman rented a U-Haul trailer to the defendant, and in the course of the transaction Durkin inquired if he knew anyone who was interested in helping to move some furniture. Sleman telephoned his friend Perry, who came down to the station and met the defendant. After working for Durkin for the remainder of the day, Perry was paid $50.00 for his efforts.

The defendant and Perry then picked up Sleman and went to Durkin's motel room and proceeded to drink beer and smoke marijuana. Sometime later the defendant "shot up" some cocaine, which he offered to sell to his companions. Perry responded by saying he knew someone who might be interested in buying the drug, whereupon the three drove to a parking lot where Perry had left his car. At that point the defendant drew a gun on Perry and Sleman and demanded and received all of their money, a total of $150.00.

On the other hand, the defendant's account of these events differed in several important respects. The defendant testified that Perry produced a small amount of cocaine in the motel room and sold it to him for $20.00. Perry then offered to sell the defendant more cocaine, whereupon the three men drove off to consummate the sale. When they arrived in the vicinity of the supposed cocaine supplier, Sleman and Perry left the car and returned a short while later with a bag of what was apparently cocaine. The defendant then took the bag without paying for it, told the men to "chalk it up to experience," and drove away.

At the conclusion of the trial, the jury found Durkin not guilty on charges of armed robbery and assault with intent to rob and guilty on the two counts of handgun violations under Art. 27, § 36B. He was sentenced to five years' imprisonment on each count, to be served concurrently.

Durkin took an appeal to the Court of Special Appeals where he argued, Inter alia, that the trial court erred in refusing to admit into evidence the testimony and personal opinion of a defense witness attacking the character for truthfulness of the State's witness Sleman. The defense witness was Chief of Police Roy A. Burke of the Chevy Chase Village Police Department. Chief Burke testified, under a proffer by the defendant out of the jury's presence, that in his opinion the State's witness Sleman had on one occasion falsely reported a larceny and that, based on the incident, Chief Burke did not believe that Sleman was an honest or truthful person regarding the matter. The State argued that the trial judge properly exercised his discretion in excluding the opinion testimony of Chief Burke, as there was no "adequate basis" for the evidence as required by § 9-115. The Court of Special Appeals, in an unreported opinion, affirmed the conviction, holding that the trial judge's discretion was "judiciously exercised." Durkin v. State, No. 776, September Term, 1977 (decided March 14, 1978). We then granted the defendant's petition for a writ of certiorari.

In this Court, as below, the defendant's position seems to be that once a character witness has formed a personal opinion as to the character for truthfulness of another witness, and that opinion has some basis in the personal experience of the character witness, the testimony, if relevant, is admissible, and the extent or nature of the basis for the opinion goes not to the admissibility but only to the weight of the evidence. The State, on the other hand, maintains that before a witness's opinion as to the truthful character of another witness can be admitted, the character witness must demonstrate an "adequate basis" for his opinion. In this case, the State asserts, the trial judge properly exercised his discretion in excluding the character evidence on the ground that the basis for the witness's opinion was inadequate. We agree with the state's position on this matter, and we shall affirm.

The issue in this case centers upon § 9-115 of the Courts and Judicial Proceedings Article. It provides:

"Where character evidence is otherwise relevant to the proceeding, no person offered as a character witness who has an adequate basis for forming an opinion as to another person's character shall hereafter be excluded from giving evidence based on personal opinion to prove character, either in person or by deposition, in any suit, action or proceeding, civil or criminal, in any court or before any judge, or jury of the State."

The purpose of this provision was to modify the rule, previously followed in Maryland and in a majority of other states, which did not allow a character witness to testify concerning his own personal opinion of the truthfulness of another witness. Instead, the truthfulness of a witness could only be impugned by a character witness by asking the latter if he knew the general reputation in the community for veracity of the witness under attack. For discussions of the rule, and its history, See Taylor v. State, 278 Md. 150, 155, 360 A.2d 430 (1976); Comi v. State, 202 Md. 472, 478, 97 A.2d 129, Cert. denied, 346 U.S. 898, 74 S.Ct. 223, 98 L.Ed. 399 (1953); Berger v. State, 179 Md. 410, 412-413, 20 A.2d 146 (1941); 7 Wigmore, Evidence §§ 1980-1985 (Chadbourn rev. 1978); McCormick, Evidence § 44 (2d ed. 1972). Against this background, the Legislature enacted what is now § 9-115 of the Courts and Judicial Proceedings Article, Chap. 760 of the Acts of 1971. The legislative purpose of the statute, as set forth in its title, was to change the prior rule and to permit "a character witness . . . to give evidence to prove character based on personal opinion."

Turning to the instant case, the defendant sought to impeach the testimony of the State's witness, Sleman, by having Chief of Police Burke testify as to his personal opinion regarding the character of Sleman for truthfulness. Out of the presence of the jury, the defendant proffered the following testimony by Chief Burke:

"Q. (By Defense Attorney) As a result of your duties at Chevy Chase Village Police Department, have you come to know Jack or John Sleman?

"A. Correct.

"Q. Does he live within the jurisdiction of your police department?

"A. He does.

"Q. Chief Burke, did there come occasion during your duties there that you had cause to investigate a matter that was reported to you by Mr. Sleman?

"A. It was.

"Q. What was the nature of that report to you?

"A. Mr. Sleman reported a larceny to us in reference to some property taken from the premises.

"Q. The general nature of that property was what?

"A. It was supposed to be automobile tools, and if I recall, it was some type of electrical tools for taking tires off. I don't remember the technical name, but it was tools.

"Q. Did you and your police department cause an investigation to be made into that?

"A. I did.

"Q. Now, I don't know if the Court feels it would be relevant as to what was the extent of his investigation. I would ask at this time as to whether or not he formed an opinion as to the honesty and truthfulness of Mr. Sleman based upon that investigation.

"Q. As a result of that investigation, did you form an opinion as to the honesty and truthfulness of Mr. Sleman?

"A. Regarding the submission of the report, yes.

"Q. As a result of that you formed an opinion as to Mr. Sleman's truthfulness and honesty, did you not, personal opinion?

"A. Regarding that, yes.

"Q. And what is that opinion?

"A. That it was not a valid complaint.

"Q. And, therefore, you felt he was not an honest or truthful person?

"A. Regarding that matter, no.

"Q. And your opinion is based upon that incident; is that what you are saying?

"A. That's correct.

"(By Defense Attorney): That is the extent of that, Your Honor."

The prosecuting attorney then cross-examined Chief Burke as follows:

"Q. Could you tell us I would like to know something about the report.

"A. The report, the complaint was made by Mr. Sleman that there were several items, large items, and a tool box that was missing out of the garage portion of his house. He stated that they were wrapped, as I recall, in some type of greasy rags, and there was only several people who had knowledge that they were there, he being one of them, and his father being the other. After the investigation of where he said these items were, he felt that and I can't recall where he was employed, but it was a gas station in Bethesda, that they had been removed by somebody he was employed with. However, he could not say who.

"Q. Did you ever find these tools?

"A. We never found the tools nor the location where they were stored.

"Q. What makes you think his story...