Summary
holding that the exclusion of defendant's character evidence of nonviolence was not harmless error, despite defendant's opportunity to present evidence of his reputation for being "honest and hardworking"
Summary of this case from Gardner v. CommonwealthOpinion
44386 Record No. 811623.
December 3, 1982
Present: All the Justices.
Evidence of defendant's lack of propensity for violence in the community improperly rejected when defendant, who admittedly shot his father, was indicted for murder but claimed self-defense.
(1) Criminal Procedure — Murder, Second Degree — Evidence — Good Character — Lack of Propensity for Violence — Defendant May Offer Evidence of Good Character for Trait Involved in Prosecution.
(2) Criminal Procedure — Murder, Second Degree — Evidence — Good Character — Lack of Propensity for Violence — Properly Proffered.
(3) Criminal Procedure — Murder, Second Degree — Evidence — Good Character — Lack of Propensity for Violence — Relevant as Tending to Negate Existence of Mens Rea Although Defendant Admitted Shooting.
(4) Criminal Procedure — Murder, Second Degree — Evidence — Good Character — Lack of Propensity for Violence — Exclusion not Harmless Error, Other Character Evidence Being Relevant to Accused's Credibility as Witness or Lack of History of Criminal Activity.
The defendant was convicted of second degree murder for shooting his father and for use of a firearm in the commission of murder. He admitted the shooting but claimed self-defense. Good character evidence that defendant had "no reputation for violent behavior in the community" was proffered but rejected. Evidence was admitted that defendant was honest and hard-working and that he had been involved in no criminal activity. The issue on appeal is whether the Court erred in excluding the evidence that defendant had no reputation for violent behavior in the community.
1. The accused may offer evidence of his good character for the trait involved in the particular prosecution.
2. The character evidence of the accused was properly proffered, the accused's lack of propensity for violence being relevant to the violence inherent in murder. The proffered witness would have responded in the same way if accused's counsel had inquired as to accused's general reputation for violence or nonviolence.
3. The character evidence was relevant. Although the accused admitted he shot his father, a specific intent is an indispensable element of murder and character evidence possibly tends to negate the existence of the mens rea.
4. The conclusion of the character evidence that defendant had no reputation for violent behavior in the community was not harmless error. The evidence that accused had a reputation for being honest and hard-working went to his credibility as a witness and not to the trait of violence. The evidence that he had been involved in no criminal activity involved specific acts and not the reputation of accused as non-violent.
Appeal from a judgment of the Circuit Court of York County. Hon. G. Duane Holloway, judge presiding.
Reversed and remanded.
Edward L. Chambers, Jr. (Smiley, Schultz Chambers, on brief), for appellant.
J. Steven Sheppard, III, Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for appellee.
Warren Edward Barlow, a 19-year-old restaurant employee, was indicted for the murder of his 57-year-old father. Entering a plea of not guilty, Barlow admitted the shooting, but claimed self-defense. A jury found him guilty of murder in the second degree and sentenced him to 20 years in the penitentiary. There was a simultaneous conviction for the use of a firearm in the commission of murder, and Barlow was sentenced to one year in prison. This opinion will dispose of both convictions.
The sole issue before us is whether the lower court erred in excluding evidence of good character proffered by the defense. During the trial, Rashid Shabazz, a social worker with the York County Social Services, was called as a witness for the defense. Out of the presence of the jury, the following dialogue occurred:
[Defense Attorney]: Are you aware of the defendant's general reputation for violent behavior in the community?
[Shabazz]: Yes, sir.
[Defense Attorney]: And what is that reputation?
[Shabazz]: He has no reputation for violent behavior in the community. . . . .
[Comm's. Attorney]: Well, I would object to that.
Court: The reputation for violence in the community of the victim is admissible to explain the reaction of the defendant at the time. But the defendant's reputation for violence is not admissible. So I'll sustain that objection. . . . .
[After the jury returned to the courtroom, Shabazz testified further:]
[Defense Attorney]: Mr. Shabazz, are you aware of the defendant's reputation for honesty, the defendant, that is Warren Barlow, are you aware of his reputation for honesty and veracity in the community?
[Shabazz]: Yes, sir.
[Defense Attorney]: And what is that reputation?
[Shabazz]: He has a reputation for being very honest and hard working in the community.
Text writers and persuasive precedents indicate generally that the accused may offer evidence of his good character for the trait involved in the particular prosecution. McCormick on Evidence Sec. 191 at 454-55 (E. Cleary 2d ed. 1972); Michelson v. United States, 335 U.S. 469, 476 (1948). The prevailing rule in Virginia is to the same effect. Roach v. Commonwealth, 157 Va. 954, 961, 162 S.E. 50, 52 (1932).
The Attorney General contends that Barlow did not make a proper proffer of the character evidence. He reasons that proof that the defendant did not have any reputation for violence is not the equivalent of having a reputation for being a peaceable, law-abiding citizen, citing People v. Wolski, 83 Ill. App.3d 17, 403 N.E.2d 528 (1980), cert. denied, 450 U.S. 915 (1981). In that murder case, the defendant, on appeal to the Appellate Court of Illinois, Second District, assigned as error the trial court's exclusion of his evidence as to his reputation for violence in the community.
Specifically, in Wolski, the witness was asked by the defense attorney as to the defendant's "reputation in the community for violence." The witness replied, "I wouldn't know of any." The defense attorney then asked, "[W]hat is [defendant's] community reputation whether you know of any or not?" To this query, the defense witness stated, "I would say good." 83 Ill. App.3d at 29, 403 N.E.2d at 537. The trial court then granted the prosecution's request to strike this line of testimony in its entirety. The Illinois court went on to state:
Defendant now argues this was testimony as to his reputation for peacefulness to which he was entitled.
We find no error in the court's ruling. Where an accused is charged with a crime of violence, as here, evidence of his good reputation for peacefulness is relevant . . ., but one cannot, however, have a good reputation for violence.
83 Ill. App.3d at 29, 403 N.E.2d at 537.
We do not believe that the case should be controlled by such semantical subtleties. If the attorney had phrased the question differently and inquired as to general reputation for violence or nonviolence, the import of the response would have been the same.
This issue arose in Seabrook v. State, 348 So.2d 663, 664 (Fla. Dist. Ct. App. 1977), where the Florida court said:
Certainly one's lack of propensity toward violence is relevant to the trait of violence inherent in the commission of an aggravated battery or aggravated assault; so the trial court's refusal to allow testimony as to appellant's reputation with respect to that trait was error.
Lastly, the Attorney General asserts that character evidence is irrelevant since Barlow, through his plea of self-defense, admitted that he committed the physical act of shooting his father. It is true that the admissibility of character evidence is grounded upon the premise of improbability of guilt by such a person, but a concession of the physical act which occurred is not synonymous with a concession of guilt. A specific intent is an indispensable element of the murder, and character evidence may tend to negate the existence of the mens rea.
As authority, the Attorney General cites 1 Wigmore, Evidence Sec. 56 (3d Ed. Supp. 1981). But he did not pursue the citation far enough. 1 Wigmore, Evidence Sec. 53(3) states:
Where the doing of the act charged is not in dispute, because conceded, it has been said that character no longer has any probative function, and should not he received, since it certainly cannot be set up merely in excuse. But, after all, so far as in criminal cases the criminal intent remains in issue, the good character of the defendant may be regarded as always relevant to disprove it; and the better way seems to admit it. [Emphasis added.]
We do not agree with the Attorney General's contention that the exclusion of this character evidence was harmless error. It is true that the defendant established a reputation for being honest and hard-working. But this goes to his credibility as a witness and not the trait of violence vel non. See Carnley v. United States, 274 F.2d 68, 69 (5th Cir. 1960). It is also true that on cross-examination the investigating state trooper testified that to his knowledge the defendant had never been involved in any criminal activity at all, but this involves specific acts, or the absence of them, and not the reputation of the defendant.
In Carnley, 274 F.2d at 69, the court said:
We do not think that the error in refusing to permit proof as to the appellant's reputation for honesty was cured by letting in proof of his reputation for truth and veracity. Such proof is traditionally admitted where there is question whether a witness has testified truthfully. It was important that the appellant here have the benefit of testimony concerning the trait involved here in the offense with which he was charged . . . .
We conclude that the trial court committed reversible error in excluding character evidence proffered by the defendant. Thus, we reverse both convictions and remand the cases to the trial court for a new trial consistent with the views herein expressed.
Reversed and remanded.