Sippio v. State
| Decision Date | 01 September 1997 |
| Docket Number | No. 70,70 |
| Parties | Dwayne SIPPIO v. STATE of Maryland. , |
| Court | Maryland Court of Appeals |
Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender; Margaret L. Lanier, Asst. Public Defender, on brief), Baltimore, for Petitioner.
Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.
In this appeal, we are called upon to address the following issues:
1. Did the trial court err in permitting a medical examiner to give opinion testimony as to a decedent's manner of death?
2. Does our ruling in Sahin v. State, 337 Md. 304, 653 A.2d 452 (1995), allowing a defendant on trial for a veracity impeaching offense to present evidence of his character for truthfulness after he testifies, apply where the defendant has announced his intention to testify but has not yet done so?
For the reasons set forth below, we shall hold that under the rules of evidence on expert testimony, the trial court did not err in admitting a medical examiner's testimony as to manner of death. We shall further hold that the requirement of Sahin, supra, that a criminal defendant charged with a veracity impeaching offense may present evidence of his or her character for truthfulness only after the defendant elects to testify, is not met by a nonbinding announcement of the defendant's intention to testify. We shall therefore affirm the judgment of the Court of Special Appeals affirming Sippio's conviction.
It is undisputed that, on December 30, 1995, Brenda Branch died as the result of a gunshot fired by Petitioner Dwayne Sippio, Branch's acquaintance of seven years and the father of her six-year-old daughter Demetrius. The shooting occurred in Branch's home in Baltimore City. Although Sippio maintained a separate residence in Baltimore City, Sippio stayed at Branch's home on frequent occasions, including the two weeks prior to the shooting. Demetrius and Gavin, Branch's son from a previous relationship, also resided at Branch's home.
Following Branch's death, Sippio was arrested and charged with murder, use of a handgun in the commission of a felony, and unlawfully wearing, carrying, and transporting a handgun. A jury trial commenced on July 9, 1996 in the Circuit Court for Baltimore City. Because Sippio admitted to having fired the shot that caused Branch's death, the trial centered on whether that shooting was accidental or deliberate.
At trial, Demetrius, who was an eyewitness to Branch's death, testified that, on the day of the shooting, she overheard a conversation between Branch and Sippio in which Sippio requested that Branch give him a set of keys she had in her possession and Branch repeatedly asked Sippio for money. Demetrius further testified that after this discussion, she saw Sippio pull a gun from his coat pocket and heard him say to Branch that it was "time for her to go," to which Branch responded: "[P]lease don't shoot me." Demetrius then saw Sippio shoot Branch. After the shooting, according to Demetrius, Sippio removed a set of keys from Branch's body and brought Demetrius to her grandmother's house.
Gavin testified that he left Branch's residence several hours before the shooting occurred and, thus, did not witness the shooting. Gavin, however, testified that, at times including the few weeks before the shooting, he had heard Sippio call Branch derisive names and, on the night before the shooting, Sippio had responded angrily to Branch's playful request for money. Gavin further testified that Branch "put [Sippio] out all the time ... [l]ike when he wouldn't give her money to pay the bills and stuff and she would tell him to pack his stuff and leave." Gavin also testified that, prior to the shooting, he found Sippio's unloaded gun in a bedroom drawer and that Sippio kept the bullets separate from the gun.
Another witness for the State, Detective Donald Steinhice, testified that he took a taped statement from Sippio at the Baltimore City Police Department's Homicide Unit on the day of the shooting. That taped statement was played at trial during the detective's testimony. According to Sippio's taped statement, Sippio thought that he had removed all the bullets from the gun before pointing it at Branch and pulling the trigger. Detective Steinhice also testified that, based on his observations of the crime scene, he believed a struggle had occurred.
The last witness for the State's case-in-chief, John Smialek, Chief Medical Examiner for the State of Maryland, testified as an expert in forensic pathology. Dr. Smialek had conducted the autopsy of Branch and had signed the autopsy report which was admitted into evidence as part of the medical examiner's report without objection during the direct examination of Dr. Smialek. As required by law, Dr. Smialek recorded Branch's cause and manner of death in the medical examiner's report. See Maryland Code (1982, 1994 Repl.Vol.) Health-General Article, § 5-311(a)(2)(iii). 1 Based on his examination of Branch, Dr. Smialek concluded that the cause of death was a close range gunshot wound to the head. After further investigation, which included a discussion with Detective Steinhice, Dr. Smialek concluded, and recorded in the medical examiner's report, that Branch's manner of death was homicide, thus ruling out the other possibilities--accident, suicide, natural, and undetermined--that appear in the medical examiner's report. Throughout direct examination and cross-examination of Dr. Smialek, no mention was made of the concepts of "homicide" or "accident." On redirect examination, however, Dr. Smialek was asked about his report and testified that he had marked an "X" next to the term "homicide." On recross, he explained that he had marked "homicide" rather than "accident" because the block marked accident is "reserved for a death that is the result of an action that was unexpected, untoward, that type of an event[, e.g.,] * * * someone who tripped on the stairs, fell down and struck their head and sustained a fatal ... injury." He also noted that his opinion that this was a homicide meant "that someone else fired a weapon to kill Ms. Branch," regardless of the shooter's intent.
The defense called several witnesses to testify to Sippio's character. One of those witnesses, Michael Martin, who had known Sippio for about fifteen years, described Sippio as a quiet person who stayed to himself. When, however, Martin was asked "Has [Sippio] been a truthful person to you?," the State objected, and the court sustained the objection.
As defense counsel had indicated during opening statements, Sippio testified at trial. He was the last witness called by the defense. According to Sippio, on the day of the shooting, Branch repeatedly requested money from him and requested that Sippio pack his belongings and leave her home. One of the items Sippio retrieved was a handgun, which he placed in his pocket. Sippio testified that the gun was normally kept unloaded in Branch's home, but he had loaded the gun that morning while he was gathering his possessions. According to Sippio, at some point after that but before Branch was shot, he unloaded the bullets into his hand and placed them in his coat pocket. He offered no explanation as to how the gun became reloaded before Branch was shot. According to Sippio, he called Branch into the kitchen where they again discussed money. At some point during this discussion, Sippio retrieved the gun from his coat pocket and began "playing with it." On direct examination, Sippio explained his version of what happened next:
"[Defense counsel]: How did you begin playing with it? What did you do?
[Sippio]: No more than just fire it.
[Defense counsel]: And when you say no more than firing it, what does that mean to you?
[Sippio]: That my hand was on the trigger.
[Defense counsel]: Did you pull the trigger?
[Sippio]: Yes, sir.
[Defense counsel]: How many times did you pull the trigger?
[Sippio]: It was numerous times. I don't remember how many times. Maybe once, twice or three times, I don't remember.
[Sippio]: On an angle towards her, by the eye, somewhere along in there.
[Defense counsel]: Why were you pointing the gun there?
[Sippio]: I was just playing with the gun.
[Sippio]: After I finished playing with it the first time, the second time nothing happened.
[Defense counsel]: ... [W]hat did Ms. Branch do?
[Sippio]: Ms. Branch was standing right in front of me.
[Defense counsel]: Had you ever done this before?
[Sippio]: Only in the privacy of the bedroom area. Behind closed doors.
[Defense counsel]: But you did it this morning, is that correct?
[Sippio]: Yes, sir, I did.
[Sippio]: First, like I said, the first two times, nothing came out of the gun at all. * * * Then a shot came out.
[Defense counsel]: And then what happened?
[Sippio]: Ms. Branch dropped right in front of me."
Then, according to Sippio, he grabbed Demetrius and exited the house.
The jury acquitted Sippio of first-degree murder, but convicted him of second-degree murder, felonious use of a handgun, and unlawfully wearing, carrying, and transporting a handgun. Sippio was sentenced to thirty years imprisonment for the second-degree murder conviction and to a concurrent five-year term for the felony handgun conviction. The court merged the other handgun conviction.
On June 11, 1997, in an unreported per curiam opinion, the Court of Special Appeals affirmed Sippio's convictions, holding that the testimony of the medical examiner was properly admitted. The intermediate appellate court also concluded that the requirement set forth in Sahin, supra, precluded Sippio from introducing character...
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