Kelley v. State, 65
| Citation | 288 Md. 298,418 A.2d 217 |
| Decision Date | 27 August 1980 |
| Docket Number | No. 65,65 |
| Parties | Donald John KELLEY v. STATE of Maryland. |
| Court | Court of Appeals of Maryland |
Patricia A. Logan, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.
Kathleen M. Sweeney, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.
Argued before SMITH, DIGGES, ELDRIDGE, COLE and DAVIDSON, JJ.
We shall in this case decide whether the trial court erred in admitting the opinion testimony of a witness regarding the character for veracity of another witness.
Donald Kelley, a Belair police officer, was convicted by a jury in the Circuit Court for Harford County of receiving goods stolen from a Belair jewelry store. Prior to his arrest Kelley had in his possession a diamond ring, a diamond necklace and wrist watch similar to those allegedly stolen from the jewelry store. The essential question at trial was whether the items in his possession were the same as those stolen or whether, as he and his witnesses testified the diamond jewelry had been purchased by him while overseas and the wrist watch had been a Christmas gift from his father.
Among the witnesses whom Kelley called was fellow police officer, John Marck, who testified that he had seen the items in Kelley's possession prior to the alleged theft. In rebuttal the State called Trooper Dennis Hynen to present evidence to impeach Marck's character for veracity.
Hynen had conducted a polygraph examination on Marck as well as pre and post test interviews. When Hynen was called to testify defense counsel requested a bench conference so that the State could proffer what Hynen's testimony would be. The prosecutor indicated that he intended to rebut Marck's testimony as to having been called a liar when given a polygraph examination and intended further to introduce character testimony as to Marck. Defense counsel objected to the introduction of the results of any testing and to any character testimony by Hynen as to Marck. The prosecutor responded that he did not intend to introduce the results of the polygraph examination and that Hynen's testimony would be based on discrepancies made by Marck during pre-test and post-test interviews.
Part of the colloquy at the bench conference was as follows:
At the conclusion of the bench conference, the trial court overruled defense counsel's objection and permitted Hynen to give his opinion. Hynen testified that statements made by Marck during the post test interview were inconsistent with and directly opposite to those which he made during the pre test interview. The record indicates that Hynen was then allowed to give his opinion:
Kelley's conviction was affirmed by the Court of Special Appeals in an unreported opinion, Donald John Kelley v State of Maryland, No. 849, September Term, 1978 filed April 18, 1979. We granted certiorari. The only issue we shall consider is whether the trial court erred in admitting the opinion testimony of Trooper Hynen as to the character for veracity of the witness Officer Marck. 1
Appellant makes three major contentions on appeal. First, he maintains that the opinion testimony of Trooper Hynen was improperly admitted because it implicitly conveyed to the jury the results of the polygraph exam. Second, appellant maintains that Trooper Hynen did not, as a result of his brief and limited encounter with Marck, have an adequate basis to form an opinion as to Marck's character for veracity and truthfulness, and to the extent that his opinion was based upon the polygraph results, it may have been erroneously formed. Finally, appellant asserts that the so-called opinion as to character was actually not such an opinion at all, but was rather an opinion as to Marck's specific veracity in the instant case and is not the kind of opinion testimony envisioned by the statute.
The starting point for our analysis is Maryland Code (1974, 1979 Cum.Supp.), § 9-115 of the Courts and Judicial Proceedings Article. This section permits a witness to express a personal opinion regarding the general character for truthfulness of another witness provided that the personal opinion is relevant and has an adequate basis. The full text of the statute 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 legislature's purpose in enacting this statute was to abrogate the common law rule...
To continue reading
Request your trial
-
Cox v. State
...stated in Durkin v. State, 284 Md. 445, 449, 397 A.2d 600 (1979), or to abrogate it, as the Court later said in Kelley v. State, 288 Md. 298, 302, 418 A.2d 217 (1980), the declared purpose of the General Assembly as set out in the title to the Act was "to change the prior rule." Kelley stat......
-
Poole v. State
...of a test is erroneously admitted or otherwise reaches the jury, the accused is prejudiced. 9 More particularly, in Kelley v. State, 288 Md. 298, 418 A.2d 217 (1980), a person who had administered a test to an accused testified that the accused had initially refused to take an offered test,......
-
U.S. v. Piccinonna
...v. Anderson, 637 P.2d 354, 358 (Colo.1981); People v. Baynes, 88 Ill.2d 225, 58 Ill.Dec. 819, 430 N.E.2d 1070 (1981); Kelley v. State, 288 Md. 298, 418 A.2d 217, 219 (1980); State v. Mitchell, 402 A.2d 479, 482 (Me.1979); State v. Biddle, 599 S.W.2d 182, 185 (Mo.1980); State v. Steinmark, 1......
-
Devincentz v. State
...only acceptable upon the use of formulaic phrases is inconsistent with the intent of CJP § 9-115. As we explained in Kelley v. State , 288 Md. 298, 302, 418 A.2d 217 (1980), CJP § 9-115"permits the admission of a broad range of testimony[,] which may aid the jury in assessing the credibilit......