Hemingway v. State

KARWACKI, Judge. In the course of a confrontation between the occupants of two vehicles at a Mobil gas station in Prince George’s County, Eric Dwayne Hemingway, the appellant, shot and ¹³⁰ killed Randall Hickman. A jury in the Circuit Court for Prince George’s County convicted appellant of manslaughter, use of a handgun in the commission of a felony, and transporting a handgun in a vehicle traveling upon a public highway. He was acquitted of first and second degree murder.

Judge David G. Ross sentenced appellant to concurrent ten year, eight year, and one year terms of imprisonment. In this appeal from those judgments, appellant asserts that the trial court erred when it prohibited a character witness called by him from testifying to the bases for the witness’s opinion that Randall Hickman was a violent person. Appellant also contends that the court erred by refusing to give two proposed jury instructions and by preventing defense counsel from reading to the jury in his closing argument a portion of an opinion of the Court of Appeals from which appellant derived one of his proposed jury instructions which the court had rejected. Finally, appellant alleges that the court abused its discretion by restricting his cross-examination of two witnesses.

On May 28,1986, a Trans Am driven by Randall Hickman stopped at a Mobil station on Indian Head Highway. Hickman’s brother, Steve, and a friend, Randy Mullins, were passengers in the vehicle. The three had been drinking beer earlier that evening. Two young women, Mary Louise Johnson and Susie Murphy, were sitting in a parked vehicle at the Mobil station with their friend, Anthony Vernon, when Hickman’s Trans Am arrived.

The three had planned to meet appellant there for an evening out. As the Trans Am drove through, one of the young women shouted, “nice car.” In response, Randall Hickman backed his vehicle alongside the other car to initiate a conversation with the two women. Within minutes, appellant arrived in a red Chevrolet Blazer. Emboldened by the arrival of his friend, Vernon left his vehicle, walked around to the passenger side of Hickman’s Trans Am, and exchanged some hostile words with its occupants. ¹³¹ He then joined appellant in his parked Blazer to recount what had transpired before appellant’s arrival.

The events which followed were the subject of conflicting accounts at trial. Steve Hickman and Randy Mullins testified that, after Vernon entered appellant’s Blazer, Randall Hickman backed the Trans Am to where the Blazer was parked. In their version of events, all three occupants then exited the Trans Am, but Randall Hickman was able to take just one step before appellant leapt from his vehicle, ran toward Hickman, and shot him at close range. Steve Hickman and Mullins also testified that neither they nor Randall Hickman possessed any weapons or made any threatening gestures before appellant discharged his handgun.

According to appellant and Anthony Vernon, the occupants of the Trans Am shouted violent threats at them as the Trans Am backed toward appellant’s vehicle. In this second account, the occupants of the Trans Am jumped out of their vehicle and approached appellant and Vernon. Appellant testified that, fearing an imminent attack, he placed a pistol in his back pocket and stepped out of his vehicle, but before he could close the car door, Hickman charged, throwing a kick. He concluded that, although he originally brandished his gun with an intent to fire it into the air, he instead panicked and shot Hickman.

Appellant conceded that he did not see the Hickmans or Mullins in possession of any weapons. All three of the Trans Am’s occupants were unknown to appellant. Character Evidence Appellant called Phillip N. Lantz, a retired West Virginia State Policeman, to testify as to the reputation for violence of the victim, Randall Hickman. Prior to Officer Lantz’s testimony, the court and counsel conducted an examination of Officer Lantz out of the presence of the jury to determine the basis of his knowledge of the victim’s character.

The State had previously filed a motion in limine to prevent Lantz from mentioning any specific acts ¹³² of violence by Randall Hickman in the course of his testimony. At that in camera hearing, Lantz informed the court that he had retired in March of 1987 after 19V2 years service as a West Virginia State Policeman. From December 1977 until his retirement, he was one of four law enforcement officers in Calhoun County, West Virginia, which had a population of approximately 5,000 persons. Lantz further testified that he was well acquainted with Randall Hickman, who resided in Calhoun County.

In Lantz’s opinion Hickman was a very violent person. He based that opinion on his investigation of two crimes. The first resulted in Hickman’s conviction on May 2, 1979 of voluntary manslaughter of one Edward Carr on November 17, 1978. The certified record of that conviction by the Circuit Court for Calhoun County reflected that Hickman had shot Carr in a barroom fracas.

The second crime was the malicious wounding of one Rue Powell that occurred on June 5, 1981. An unexecuted warrant charging Hickman with that offense had been issued on June 11, 1981. The certified copy of the record of the court which issued that warrant revealed allegations that Hickman had severely beaten Powell about the head with the butt of a shotgun. The court ruled that Lantz could not mention before the jury either act of violence committed by Hickman as a basis for his opinion as to Hickman’s violent character.

Also, the court sustained an objection to the admission of the certified copies of the court records pertaining to Hickman’s voluntary manslaughter conviction and to the outstanding warrant for Hickman’s arrest on the charge of malicious wounding. Officer Lantz was therefore limited to testifying that he was acquainted with Randall Hickman and that Hickman was, in his opinion, a violent person. Appellant asserts that the court erred in prohibiting Lantz from testifying to his bases for that opinion. In Thomas v. State, 301 Md. 294, 306-07 , 483 A.2d 6 (1984), the Court of Appeals explained that evidence of the ¹³³ character of the victim is admissible for two purposes where the issue of self-defense has been properly raised in a homicide prosecution.

First, it may be introduced to prove the defendant’s state of mind when the victim was killed. Specifically, the character evidence may be used to prove that defendant had reasonable grounds to believe that he was in danger. Jones v. State, 182 Md. 653, 659 , 35 A.2d 916 (1944). The accused may introduce evidence of the deceased’s previous violent acts to prove that he had reason to perceive a deadly motive and purpose in the overt acts of the victim.

To use character evidence in this way, the defendant first must prove: (1) his knowledge of the victim’s prior acts of violence; and (2) an overt act demonstrating the victim’s deadly intent toward the defendant. Gunther v. State, 228 Md. 404, 410 , 179 A.2d 880 (1962); Jones v. State, supra, 182 Md. at 659-60 , 35 A.2d 916 . Second, the violent character of the victim may be introduced to corroborate evidence that the victim was the initial aggressor. Williamson v. State, 25 Md.App. 338, 333 A.2d 653 (1975).

It is not necessary to prove that the defendant had knowledge of the victim’s reputation. Id. Id. 25 Md.App. at 345 , 333 A.2d 653 . To use character evidence for this second purpose, however, the proponent must first establish an evidentiary foundation tending to prove that the defendant acted in self-defense.

Id. Id. 25 Md.App. at 345 , 333 A.2d 653 ; 1 Jones on Evidence § 4:40 at 463-64 (1972); 1 Wharton’s Criminal Evidence, § 236 at 510-11; 40 Am.Jur.2d Homicide § 303 (1968). See Nixon v. State, 204 Md. 475, 484 , 105 A.2d 243 (1954) (evidence concerning the “quarrelsome disposition” of the victim is properly excluded unless a proper foundation is laid). Because appellant did not know Randall Hickman prior to the confrontation which resulted in Hickman’s death and was not familiar with his violent history, Lantz’s opinion of the victim’s character was admissible for the sole purpose of corroborating appellant’s and Anthony Vernon’s testimony that Hickman was the initial aggressor.

The admissibili ¹³⁴ ty of this opinion evidence is governed by Md.Code (1984 Repl.Vol.), § 9-115 of the Courts & Judicial Proceedings Article which 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. This statute, enacted by ch. 760 of the Acts of 1971, made a drastic change in the law of this State governing the use of relevant opinion evidence as to the character of a person in the trial of both criminal and civil cases. Kelley v. State, 288 Md. 298, 302 , 418 A.2d 217 (1980); Durkin v. State, 284 Md. 445, 448-49 , 397 A.2d 600 (1979); Taylor v. State, 278 Md. 150, 155 , 360 A.2d 430 (1976), affing 28 Md.App. 560, 567-68 , 346 A.2d 718 (1975). Prior thereto, a character witness was limited to offering an opinion as to another’s reputation in the community for possessing a relevant character trait.

Such witness was not permitted to venture his personal opinion as to whether another possessed that character trait nor was the witness allowed to testify to specific instances where the person exhibited that character trait or the lack thereof. Taylor v. State, supra, 278 Md. at 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). Under Md.Code, supra, § 9-115 of the Courts & Judicial Proceedings Article, the party who offers the personal opinion of a character witness must first convince the trial judge that the witness possesses an adequate basis for forming an opinion as to another person’s character. Kelley v. State, supra; Durkin v. State, supra.

The trial court’s exercise of its discretion in performing this threshold function will be reversed on appeal only where there is a clear abuse of discretion. This does not mean, however, ¹³⁵ that the basis for the character witness’s opinion, if admitted, has no relevance to the weight ascribed to that opinion by the jury. Clearly, the bald conclusion of the witness without any reason to support it hardly commends the opinion for serious consideration by the trier of the fact. Thus, in discussing the impact of § 9-115 upon the common law of this State when that statute was initially reviewed by this Court in 1975, Chief Judge Gilbert, writing for this Court in Taylor v. State, supra, 28 Md.App. at 567-68 , 860 A.2d 480 , observed: A character witness at common law could be cross-examined about specific or particular acts or courses of conduct of a defendant, but on direct examination he could not testify to such specific or particular acts or courses of conduct.

His testimony was, in essence, limited to what he heard from others about the defendant’s reputation. As a result of the enactment of what is now Courts Art §