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Circuit Court for Frederick County Case No. 20727 IN THE COURT OF APPEALS OF MARYLAND No. 138 September Term, 1998

JASON AARON JENSEN v. STATE OF MARYLAND

Bell, C.J. Eldridge Rodowsky *Chasanow Raker Wilner Cathell, JJ.

Opinion by Raker, J. Bell, C.J. and Eldridge, J., dissent. Chasanow, J., concurs and dissents.

Filed: August 31, 1999 *Chasanow, J., now retired, participated in the hearing of this case while an active member of this Court; after being recalled pursuant to the

Constitution, Article IV, Section 3A, he participated in the decision. The issue we must decide is whether the trial court abused its discretion in restricting the testimony of a character witness called to impeach the credibility of another witness. In resolving this appeal, we must decide whether the excluded testimony was admissible under Maryland Rule 5-608(a)(3), which allows a character witness on direct examination to give a "reasonable basis" for opinion testimony but does not permit a witness to testify as to "specific instances of truthfulness or untruthfulness." We shall hold that the character witness's testimony was improperly restricted, but that the error was harmless. Accordingly, we shall affirm the Court of Special Appeals.

I. On June 17, 1996, Jason Aaron Jensen, along with Brian Wooldridge, Jean Nance, and Rachel Whitman, met up with Adrian Pilkington, the victim, at a McDonald's restaurant in Frederick where the victim worked. The group left McDonald's in Pilkington's car and, after spending some time at Whitman's house, traveled to Virginia. On a rural road in Virginia, Pilkington was stabbed twice and placed in the trunk of his car. On the return trip to Frederick, the car, driven by Jensen, stopped on the Route 17 bridge in Brunswick City. Pilkington, bleeding from his stab wounds but still alive, was taken from the trunk and thrown from the bridge. On June 21, 1996, Pilkington's body was recovered from the Potomac River a few miles from the bridge.

2 All four were charged with Pilkington's murder. Jensen's trial began on February 4, 1997 and lasted five days. Brian Wooldridge testified for the State pursuant to a plea agreement. The defense called one witness, Melissa Goff, to impeach the credibility of Wooldridge. Portions of her testimony follow. DEFENSE ATT'Y: Could you tell the jury, if you know, if you're familiar with Brian Wooldridge? GOFF: Yes, I am. Q: Okay, and how are you familiar with Brian Wooldridge? A: I've known him for a while. Q: You say a while? A: I guess about a year, even a little longer. Q: Now, is this a year before this incident or a year up to now? A: I guess a year before. Q: And during that particular year, how many times did you meet in a week? A: I guess once a week. * * * * * *

Q: Have you ever spoken to Mr. Wooldridge on the phone? A: Yes, I have. Q: And how many times have you spoken to him on the phone? A: I usually speak to him every day. Q: Okay, and when was that?

3 A: While he was out of school. Q: And when was that? A: I don't remember the exact months. Q: And for what period of time did you speak to him every day --a week, two weeks, a month? A: I guess for about a month. Yeah, a month. Q: Okay, and do you have an opinion as to his veracity to tell the truth? STATE'S ATT'Y: Objection, Your Honor. THE COURT: Sustained. Come forward, please, counsel. (Bench conference.) STATE'S ATT'Y: Insufficient, Your Honor. THE COURT: Here's what I'm going to do. I am going to excuse the jury, and I am going to conduct--have counsel conduct an examination out of the presence of the jury. I don't believe at this stage you've yet established that basis for her opinion, all right? Thank you. * * * * * *

(The jury was excused from the courtroom.) THE COURT: Now, I sustained that objection on the basis that I conclude at this point there's not been an adequate basis for that opinion to be given, but . . . I'll give you the opportunity at least to attempt to establish that basis while we're out of the presence of the jury. * * * * * *

4 DEFENSE ATT'Y: In general, what would you talk about on the phone during that year that you knew him? * * * * * *

A: Just things, but he liked to talk about--I guess regular things that kids or normal teenagers would talk about to each other. Q: Would he tell you inconsistent stories about different things? A: Yes. Q: Objection, Your Honor. THE COURT: Sustained. * * * * * *

DEFENSE ATT'Y: What basis do you have that Mr. Wooldridge would not tell the truth? A: 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. Q: And this happened once or was that over-- A: This was repeatedly. * * * * * *

THE COURT: Under the circumstances, it seems to me that testimony given by Ms. Goff supports a basis from the information for her perception of these conversations for giving evidence as to the truthfulness or not of Mr. Wooldridge, and I'm going to allow this course of examination to continue. * * * * * *

5 (The jury returned to the courtroom).

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DEFENSE ATT'Y: Do you have an opinion about Mr. Wooldridge's veracity to tell the truth? A: Yes, um-- Q: What is that opinion? A. I think that he's a compulsive liar. Q: What do you base that opinion on? STATE'S ATT'Y: Objection. THE COURT: Sustained. At a second bench conference, defense counsel argued that the jury was entitled to know the basis underlying Goff's opinion, while the State argued both that defense counsel was trying to elicit testimony of specific instances and that defense counsel had already elicited all the testimony that was contemplated by Rule 5-608(a)(3)(B). The court agreed with the State. Jensen was convicted of first degree murder, conspiracy to murder, and assault with intent to murder. Jensen appealed his conviction to the Court of Special Appeals. That court affirmed in an unreported opinion. We granted certiorari to consider the following issue: Did the Court of Special Appeals misinterpret Maryland Rule 5608, holding that a character witness could be prevented from giving the basis for her opinion that the State's chief witness was a compulsive liar?

6 II. Petitioner argues that a character witness is permitted to give the basis of his opinion on direct examination, so long as that witness does not cite specific instances of misconduct. Petitioner maintains that without allowing for some evidence of reasonable basis, "a jury will not be impressed with a bald conclusion of personal opinion." The State argues that reasonable basis evidence properly is limited to how long and under what circumstances the witnesses have been acquainted. The State contends that, "in accordance with common law evidentiary standards," Maryland Rule 5-608 "embodies a restrictive approach designed to avoid diverting the jury's attention and creating mini-trials on the issue of a witness's credibility." According to the State, Goff's proffered testimony was "no more than a number of specific events tied together" and thus contemplated specific instances of conduct prohibited on direct examination under Maryland Rule 5-608(a)(3)(B). The State further argues that any purported error in the evidentiary ruling was harmless beyond a reasonable doubt, given Goff's disparaging assessment of Brian Wooldridge as a "compulsive liar," and given the testimony by two of Jensen's friends and a fellow inmate that he had killed Pilkington.

III. Maryland Rule 5-608(a)(3)(B) provides: 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,

7 but may not testify as to specific instances of truthfulness or untruthfulness by the witness. We first must determine whether the excluded testimony constituted specific instances of untruthfulness. If we find that the evidence was not specific instances of untruthfulness, we must determine whether the evidence was admissible as a reasonable basis for testimony. Finally, if we determine that the evidence was improperly excluded, we must consider whether the error was harmless. A common understanding of the words "specific instance" indicate that Goff's testimony does not fall into that category. "Specific" is defined as "of an exact or particular nature," "particular," "precise." BLACK'S LAW DICTIONARY 1398 (6th ed. 1990). Goff was not testifying as to a particular incident; she was testifying, as a general matter, to Wooldridge's tendency to tell mutually inconsistent stories, i.e., his general tendency to be untruthful. Nor was her testimony "no more than a number of specific events tied together." She was not testifying as to several particular instances of conduct; she was testifying as to a general behavior pattern which was the basis for her opinion that Wooldridge was untruthful. Cf. Blake v. Cich, 79 F.R.D. 398, 403 n.2 (D. Minn. 1978) (applying the Federal counterpart to Maryland Rule 5-608 and explaining, "In one sense, the absence of a criminal record is a record of innumerable specific instances of good conduct. But such a history becomes something more than the specific instances comprising it, it is what is generally meant by good character.")

8 It becomes even clearer after examining the purposes underlying the prohibition that her testimony was not, as the State classifies the evidence, a string of "specific instances." Maryland's Rule 608(a)(3)(B) is based on Federal Rule of Evidence 608(b), which in turn is related to Federal Rule of Evidence 405(b) on specific instances evidence. The advisory committee's note to Federal Rule 405 explains that although specific instances are the most convincing character evidence, that type of evidence also "possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time." See also COURT OF APPEALS
OF MARYLAND STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE, PROPOSED

TITLE 5 OF THE MARYLAND RULES OF PROCEDURE: EVIDENCE

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