Jensen v. State

BELL, Chief Judge,

dissenting.

Today, the Court holds that the trial court abused its discretion, and thus erred, when it restricted the testimony of the character witness, Melissa Goff, called by Jason Aaron Jensen, the petitioner, to impeach the testimony of State’s witness Brian Wooldridge, but that the error was harmless. Accordingly, it, like the Court of Special Appeals, affirms the petitioner’s murder conviction. I agree that the trial court erred. I do not agree that the error was harmless.

The majority’s interpretation of Maryland Rule 5-6081 is careful and well reasoned, it takes into account the wording of the rule, its difference from the federal rule, from which it emanated, the history of its promulgation and its relationship to Maryland Code (1974, 1998 Replacement Volume), § 9-115 of the Courts and Judicial Proceedings Article.2 The majority’s analysis makes clear that the term, “reasonable basis,” as used in Rule 5-608, contemplated something more than a *718recitation by the character witness of his or her “length and manner of acquaintance” the witness whose testimony is being impeached. It makes a strong case not only for its conclusion that “[i]n drafting Rule 5-608, the Rules Committee chose a workable compromise which, while allowing for meaningful opinion testimony, does not transform trials into a series of separate mini-trials,” 355 Md. at 707-08, 736 A.2d at 315 (1999), but for concluding that this Court, in adopting the rule, intended the character witness to have “some latitude in informing the jury as to the basis for an opinion, so long as that person avoids venturing into the troublesome area of specific instances” of truthfulness or untruthfulness. See id.

A critical issue in Rubin v. State, 325 Md. 552, 602 A.2d 677 (1992) was harmless error. Unlike this case, evidence had been erroneously admitted, so the inquiry was the effect of its admission on the verdict, while, here, the question is whether its admission would have made a difference. Nevertheless, what I said in dissent in that case is relevant to this case and bears repeating:

“Following a thorough review of our cases and those of the Supreme Court which addressed the issue, this Court, in Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976), enunciated the test of harmless error which controls the resolution of this case:
‘ ... When an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of—whether erroneously admitted or excluded—may have contributed to the rendition of the guilty verdict, (footnote omitted)’
“Id. at 659, 350 A.2d at 678. The test focuses on the effect of erroneously admitted, or excluded, evidence on the verdict rendered by the jury. Once it has been determined *719that error was committed, reversal is required unless the error did not influence the verdict; the error is harmless only if it did not play any role in the jury’s verdict. The reviewing court must exclude that possibility, ‘beyond a reasonable doubt.’
“We also made clear that the test of harmless error is supposed to be strict; indeed, it ‘ “has been and should be carefully circumscribed.” ’ Younie v. State, 272 Md. 233, 248, 322 A.2d 211, 219 (1974). In that case, quoting People v. Jablonski, 38 Mich.App. 33, 195 N.W.2d 777, 780 (1972), we pointed out:
‘ “Continued expansion of the harmless error rule will merely encourage prosecutors to get such testimony in, since they know that, they have a strong case, such testimony will not be considered to be reversible error, yet if they have a weak case, they will use such testimony to buttress the case to gain a conviction and then hope that the issue is not raised on appeal.”
“272 Md. at 248, 322 A.2d at 219.
“Where the evidence remaining after excluding erroneously admitted evidence is insufficient to sustain the conviction, the error can never be harmless. Similarly, if the questioned evidence goes to an important issue in the case, especially if credibility is central to the resolution of the case, the error in admitting that evidence is likewise not harmless. This is the case because it is the trier of fact, in this case, the jury, not an appellate court, that must find the facts and resolve credibility issues. Therefore, what appears, on the cold record, to be an insurmountable case for the State, when viewed from the jury’s perspective, having seen it unfold through live witnesses, in the dramatic atmosphere of the courtroom, may be quite a close case or result in a defense verdict. How, or why, a jury may decide to resolve credibility or fact issues in a particular manner is a matter only it knows. One thing is certain, the jury is *720under no obligation to decide any case consistently with what is, objectively, the strongest case.
“No matter how strong a case for conviction the State may present, even when the defense presents no evidence, the court may not direct a verdict for the State. See Maryland Rule 4-324, which, while providing that a defendant may move for judgment of acquittal, Rule 4-324(a), and the court may direct the entry of judgment in his or her favor if there is insufficient evidence, as a matter of law, Rule 4-324(b), makes no provision for the making of a motion for judgment by the State. Compare Maryland Rule 2-519, the civil counterpart. Lyles v. State [State v. Lyles], 308 Md. 129, 135, 517 A.2d 761, 764 (1986). This is so because it is the trier of fact, whether the court or a jury, that must determine if the State has met its burden of proof. To make that determination, the trier of fact is required to find the facts and when, as is usually the case, there are credibility issues, to resolve them. That, in turn, involves weighing the evidence. Appellate courts do not find facts or weigh evidence, ‘what evidence to believe, what weight to be given it, and what facts flow from that evidence are for the jury ... to determine.’ Dykes v. State, 319 Md. 206, 224, 571 A.2d 1251, 1260-61 (1990). See Gore v. State, 309 Md. 203, 214, 522 A.2d 1338 (1987); Wilson v. State, 261 Md. 551, 566, 276 A.2d 214, 221 (1971); Jacobs v. State, 238 Md. 648, 650, 210 A.2d 722, 723-24 (1965). Even when an appellate court assesses the sufficiency of the evidence, it does not weigh it, see Clemson v. Butler Aviation-Friendship, 266 Md. 666, 671, 296 A.2d 419, 422 (1972); Gray v. Director, Patuxent Institution, 245 Md. 80, 84, 224 A.2d 879, 881 (1966), it only determines if any evidence exists, on the basis of which a rational trier of fact could find the elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560, 573 (1979); Bloodsworth v. State, 307 Md. *721164, 167, 512 A.2d 1056, 1057 (1986). There is no reason that a harmless error analysis should permit it to do more.”

325 Md. at 592-94, 596-97, 602 A.2d at 696-97, 698-99.

As in Rubin, the majority declares that it can say beyond a reasonable doubt that the excluded testimony would not have affected the jury’s verdict. Boiled down to its essence, its basis is:

“The excluded testimony was relatively insignificant. Goffs testimony was that ‘A lot of the stories that he told me didn’t add up, saying that—one day he would tell me something that happened on that day and then a couple days later he would tell me something else that had happened on that day that wouldn’t have been able to happen if what he said before was true’ and that this happened repeatedly. While we do not suggest that this testimony did not provide some further basis to her opinion, ... given Goffs statement that Wooldridge was a ‘compulsive liar,’ the defense’s vigorous cross-examination of Wooldridge concerning his arrangement with the State in exchange for his testimony, and the fact that Jensen’s trial occurred over the course of five days, we can say beyond a reasonable doubt that this testimony would not have influenced the jury’s verdict.”

355 Md. at 709, 736 A.2d at 316.

It is, to be sure, undoubtedly true, as the majority also points out that the State’s case is much stronger than the petitioner’s. Indeed, that is to be expected; after all, it is the State that has the burden of proof and all the petitioner has to do is to create a reasonable doubt in the mind of the trier of fact. The majority is not the trier of fact, yet it has weighed the evidence—note its characterization of the excluded testimony—and substituted its judgment for that of the jury. When it weighs evidence, an appellate court usurps the function of the jury. In this case, the usurpation of the jury function has occurred after holding that the jury was deprived of relevant evidence favorable to the petitioner, evidence that *722explained the character witness’s reason for testifying that the State’s main witness was a liar.

Explaining why one calls another a “compulsive liar” is, to my mind, quite important and, in this case, may have been, and most likely would have been, viewed by the jury as more than “relatively insignificant.” To call a person a “compulsive liar” is but to state a conclusion; telling the jury what you mean by compulsive liar or why you have drawn that conclusion is more persuasive and, to a trier of fact, has more value in the decision-making process. In any event, whether that explanation was important or not, or its effect on the jury, is a matter that the jury should have been allowed to determine in the first instance.

The majority concludes its opinion with the following statement: “Taken as a whole, even without Brian Wooldridge’s testimony, Jensen’s explanation that the first stabbing of Pilkington was in self defense simply flies in the face of the evidence.” 355 Md. at 716-17, 736 A.2d at 320. From this, it appears that, like the Rubin majority, the majority is also construing the Dorsey test as permitting harmless error to be determined on an “otherwise sufficient” basis: if the evidence is sufficient without the improper evidence, ie., the jury could have convicted the defendant without it, so harm could not have resulted. See Ross v. State, 276 Md. 664, 674, 350 A.2d 680, 686-7 (1976). In any event, whether intended or not, there is a real danger that it will be so construed in future cases.

The application of the Dorsey test in this case is nothing more than unwarranted expansion of the harmless error rule. As I have said on a number of prior occasions, that is something that should not be condoned by this Court. I dissent.

Judge ELDRIDGE joins in the views expressed herein.

. At issue in this case is the limitation on character witnesses contained in section (a)(3)(B) of the rule:

"On direct examination, a character witness may give a reasonable basis for testimony as to reputation or an opinion as to the character of the witness for truthfulness or untruthfulness, but may not testify to specific instances of truthfulness or untruthfulness by the witness.”

. Maryland Code (1974, 1998 Replacement Volume), § 9-115 of the Courts and Judicial Proceedings Article 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.”