Sahin v. State

CHASANOW, Judge. This appeal requires that we decide the appropriateness of calling character witnesses to testify to a criminal defendant’s good reputation for truthfulness. For the reasons indicated, we depart from the majority rule, and we hold that a criminal defendant on trial for a veracity impeaching offense 1 may, after testifying, offer evidence of his or her good character for truthfulness. I. The defendant Isa Sahin, an American immigrant of Turkish descent, was arrested and charged with four counts each of distribution of cocaine and lesser included offenses.

After a jury trial before the Honorable Martin A. Wolff of the Circuit Court for Anne Arundel County, Sahin was convicted of the four counts of distribution of cocaine and sentenced to serve four concurrent three year terms of incarceration. The princi ³⁰⁸ pal testimony at trial was given by a vice detective of the Anne Arundel County Police Department. He asserted that he and an informant made four purchases of cocaine from Sahin between June 29, 1992 and July 1, 1992. The officer testified that the only persons present during the transactions were himself, the defendant, and the informant.

The informant was not called to testify. Upon conclusion of the last sale, the vice detective arranged to make one more purchase which was to occur the following day. On that date, officers returned with a search warrant for defendant’s residence. The warrant authorized a search for controlled dangerous substances, drug paraphernalia, books and records detailing drug transactions, telephone numbers, address books, and photographs of associates related to the sale of drugs.

None of the suspected items were recovered during the execution of the warrant. The inculpatory evidence retrieved from defendant’s residence consisted of two fifty dollar bills and one twenty dollar bill, the serial numbers of which allegedly matched the serial numbers of the bills used by the vice detective for the undercover purchases. The bills were recovered by the vice detective from the pocket of a pair of pants located in an unused room on the second floor. Additionally, eighteen dollars was discovered in a pocket of a pair of pants located in a room later identified as the defendant’s bedroom.

The money recovered from defendant’s residence was not available at trial as it was put back into circulation by the Anne Arundel County Police Department. When questioned as to whether the pants containing the “marked” bills fit the defendant, the officer responded that he did not know. In his own defense, Sahin took the stand and testified, through an interpreter, that unusual happenings occurred at his residence while he was away working two jobs. Sahin contends that a back door which he never used was often ajar, strange cigarette butts were found in his ashtray, and his dining room table had been moved on multiple occasions.

He further alleged that his friend, Ms. Corrine Boston, who was present with him when the search warrant was executed, visited his residence on several prior occasions. Defendant ³⁰⁹ suggested that Ms. Boston and/or an acquaintance may have used his residence to sell the illegal narcotics. Sahin testified that he did not know the vice detective or the informant, and he vehemently denied the detective’s allegations. Sahin asserted that he has never sold drugs to anyone and that he has never been convicted of any crime.

When questioned about the pants, Sahin testified that he didn’t keep clothes in any room other than his bedroom. He also testified that he did not know to whom the pants belonged. In support of his theory that someone else had used his residence, Sahin testified that he had recently moved into the home and that he did not know if anyone else had a key or access to the residence. After Sahin’s testimony, defense counsel attempted to call two of Sahin’s former employers as character witnesses who would testify that the defendant had a good reputation for truthfulness.

The court allowed one of the witnesses to testify as to the length and nature of the relationship with the defendant but disallowed any evidence as to Sahin’s reputation for truthfulness. Weather conditions in New York City prevented the second witness from appearing and testifying on the day of trial, but the trial judge accepted a proffer at the bench that the witness would also testify to Sahin’s good character for truthfulness. The trial court excluded the character evidence on two grounds. First, the court reasoned that truthfulness was not a relevant character trait of one accused of selling narcotics and that testimony to that respect was therefore inadmissible.

Additionally, the court held that character evidence offered to bolster the credibility of a witness is inadmissible until such time that that witness’s character is attacked or challenged and merely being charged with distribution of cocaine and related offenses was not an attack on veracity. In closing argument, both the defense and the prosecution agreed that “this case hinges on who do you believe. Do you believe [the vice detective or] do you believe Isa Sahin, the Defendant.” The defense suggested it was either a case of mistaken identity or the charges were manufactured by the officer to account for the $720.00 in police department funds he received and allegedly gave to the defen ³¹⁰ dant in exchange for drugs, as well as the approximately $200.00 in police department funds he allegedly paid the confidential informant during this investigation. The jury apparently believed the vice detective rather than the defendant and convicted Sahin of all charges.

The defendant’s convictions were affirmed by the Court of Special Appeals in an unreported opinion. We granted certiorari to consider the appropriateness of the trial court’s exclusion of the character evidence.

II

Sahin’s sole contention on appeal is that the lower courts erred in ruling that, after he testified at trial, he could not offer character evidence of his good reputation for truthfulness. He argues that the trial court’s refusal to allow the character evidence denied him a fair trial. Sahin’s first contention is based on the well established doctrine that a criminal defendant may always offer evidence of his or her good character for a trait relevant to the crime charged as circumstantial evidence of innocence. See 1 McCormick on Evidence § 191, at 812-14 (John W. Strong ed., 4th ed. 1992).

He reasons from this basic rule of evidence that his character for truthfulness is pertinent to the crime of distribution of cocaine. In support of his contention, Sahin relies on State v. Giddens, 335 Md. 205, 217 , 642 A.2d 870, 876 (1994), wherein we quoted from United States v. Ortiz, 553 F.2d 782, 784 (2d Cir.), cert. denied, 434 U.S. 897 , 98 S.Ct. 277 , 54 L.Ed.2d 183 (1977) that “ ‘a narcotics trafficker lives a life of secrecy and dissembling in the course of that activity, being prepared to say whatever is required by the demands of the moment, whether the' truth or a lie.’ ” Sahin argues that we should extend this statement to connote that credibility is a “pertinent” character trait of the crime of distribution of narcotics. As such, Sahin contends that he should be permitted to put on character witnesses that will testify to the relevant issue of his good reputation for truthfulness and that the jury should consider this evidence when determining his guilt or innocence in relation to the crime charged. ³¹¹ In arguing that truthfulness is a character trait pertinent to the offense of distribution of cocaine, Sahin fails to distinguish the admissibility of evidence of a character trait relevant to the propensity of the defendant to commit the charged offense from the admissibility of evidence relevant to the untruthfulness of a witness. In defining character traits relevant to the charged offense, the Maryland Court of Special Appeals has observed “ ‘[t]o be relevant, it is necessary that the character be confined to an attribute or trait the existence or nonexistence of which would be involved in the noncommission or commission of the particular crime charged.’” Braxton v. State, 11 Md.App. 435, 440 , 274 A.2d 647, 650 (1971) (quoting 1 Wharton’s Criminal Evidence § 221, at 458-59 (12th ed. 1955)).

That court enumerates examples of irrelevant character traits for specific crimes: “It is irrelevant to show the defendant’s reputation for honesty and integrity in a prosecution for adultery; for truth and veracity, or peace and quietude, in a prosecution for statutory rape; for good military conduct in a rape prosecution; for truth and veracity in a robbery prosecution; or for honesty and integrity, in a murder prosecution; for morality and sobriety in a prosecution for a false bank report entry; or for reliability in business in a prosecution for the malicious destruction of property.” 11 Md.App. at 440 n. 3, 274 A.2d at 650 n. 3 (quoting 1 Wharton’s Criminal Evidence § 221, at 460). In Giddens , we also cited with approval from State v. Pierce, 107 Idaho 96, 103 , 685 P.2d 837, 844 (1984). We said: “[Although [the Idaho] court said that it would be a strain to characterize delivery of heroin as a crime of dishonesty, it held that that offense ‘had probative value on the question of ... credibility’ because a person who has committed such a crime shows disrespect for the law and may not take an oath seriously.” Giddens, 335 Md. at 219 , 642 A.2d at 877 (quoting Pierce, 107 Idaho at 103 , 685 P.2d at 844 ). While we stated in Giddens that the distribution of drugs is a crime relevant to dishonesty and such a conviction is admissible for impeachment purposes, we decline to hold that good ³¹² character for truthfulness is a relevant, pertinent character trait that constitutes circumstantial evidence that the accused is unlikely to distribute drugs.

See, e.g., United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir.) (character evidence of the trait for truthfulness not relevant to the criminal charge of conspiracy to distribute heroin and not admissible as circumstantial evidence of innocence of this crime), cert. denied, 442 U.S. 941 , 99 S.Ct. 2882 , 61 L.Ed.2d 310 (1979); Grant v. State, 55 Md.App. 1, 39 , 461 A.2d 524, 540 , cert. granted, 466 A.2d 39 (1983), and cert. dismissed, 299 Md. 309 , 473 A.2d 455 (1984). There exist character traits more directly relevant and pertinent to the commission or noncommission of the offense of drug dealing than character for truthfulness. See, e.g., United States v. Angelini, 678 F.2d 380, 381 , 382 n. 1 (1st Cir.1982) (evidence of defendant’s good character as a law abiding person relevant to distribution of a controlled dangerous substance, but good character for truthfulness is not relevant); United States v. Diaz, 961 F.2d 1417, 1419 (9th Cir.1992) (the defendant’s good character for being a law abiding person and not being prone to criminal conduct is admissible in a trial for possession with intent to distribute cocaine). The character trait for truthfulness, though it has some relevance, is not the pertinent character trait which constitutes circumstantial evidence that the defendant would be unlikely to commit the drug offenses for which he was being tried.

The Maryland Court of Special Appeals, in Grant , noted that truthfulness may be a relevant character trait when the crime is one in the nature of crimen falsi. Grant, 55 Md.App. at 39 , 461 A.2d at 542 . This Court defines crimen falsi as “crimes in the nature of perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense involving some element of deceitfulness, untruthfulness, or falsification bearing on witness’ propensity to testify truthfully.” Wicks v. State, 311 Md. 376, 382 , 535 A.2d 459, 461-62 (1988) (citing Black’s Law Dictionary 335 (5th ed. 1979)). Our holding in Giddens asserts only that truthfulness is relevant for impeachment purposes; it does not indicate distribution of drugs is a crimen ³¹³ falsi offense.

It follows that, since drug dealing is not a crimen falsi offense, truthfulness is only indirectly a relevant character trait and this trait should not be admissible as circumstantial evidence of innocence in lieu of a more directly relevant character trait. Thus, because truthfulness is only relevant after the defendant testifies, defendants charged with drug distribution, who do not testify, may introduce their good character for being law abiding people, but not their good character for truthfulness. Our holding that good character for truthfulness is not a character trait which would be admissible as circumstantial evidence that Sahin did not commit the crime of drug distribution does not end our inquiry. Because Sahin testified as a witness, the next issue is whether that testimony makes his character for truthfulness admissible.

Maryland Rule 5-608(a), although not in effect at the time of trial, nevertheless sums up the general rule regarding any witness’s character for truthfulness. That rule states in pertinent part: “(1) Impeachment by a Character Witness.—In order to attack the credibility of a witness, a character witness may testify (A) that the witness has a reputation for untruthfulness, or (B) that, in the character witness’s opinion, the witness is an untruthful person. (2) Rehabilitation by a Character Witness.—After the character for truthfulness of a witness has been attacked, a character witness may testify (A) that the witness has a good reputation for truthfulness or (B) that, in the character witness’s opinion, the witness is a truthful person.” (Emphasis added). Thus, all witnesses, including criminal defendants, may be rehabilitated with their good character for truthfulness after their character for truthfulness has been attacked.

See, e.g., Vernon v. Tucker, 30 Md. 456, 462 (1869); Hallengren v. State, 14 Md.App. 43, 50 , 286 A.2d 213, 217 (1972); State v. Webb, 252 Mont. 248 , 828 P.2d 1351, 1356 (1992). The defendant suggests that the State’s accusations of drug distribution, a crime acknowledged to be relevant for impeachment, and the ³¹⁴ State’s evidence that the defendant committed these crimes are attacks on his truthfulness in the same manner that a conviction for drug dealing would be an attack on truthfulness. The State acknowledges that the crime of drug dealing indicates untruthfulness and it alleges that the defendant is guilty of drug dealing, yet it also maintains that it has not attacked his credibility. We hold that, when a defendant charged with a crime which would be an impeachable offense elects to testify, the State’s evidence that the defendant committed the impeachable offense constitutes an attack sufficient to allow the defendant to present character evidence of his or her good character for truthfulness. 2 The 1971 Revision of the initial draft of the proposed federal rules of evidence added language which would have expressly allowed a criminal defendant who testifies to introduce evidence of good character for truthfulness.

Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates, 51 F.R.D. 315 , 388-90 (March, 1971). An explanation for that proposal was: “In a sense a defendant is always intensely interested in the outcome of the case and is impeached by his status alone. While this change was a modification of common law theory, it followed courthouse practice in many parts of the country. Typically a character witness for the defendant is called once and asked all the questions under Rules 404(a)(1) and 404(a)(3) and 608.

For example, in an assault case he is asked both about defendant’s reputation for peacefulness and, when defendant will take, or has taken, the stand, about the defendant’s reputation for veracity. Since character witnesses normally have other things to do and their testimony is usually brief, they are typically put on the ³¹⁵ stand as soon as they arrive in court, whether or not the defendant has already testified.” 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence ¶ 608[02], at 608-14-15 (1988). The Department of Justice and Senator McClellan objected to the language expressly permitting an accused to