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Dwayne Sippio v. State of Maryland - No. 70, 1997 Term CRIMINAL LAW -- Evidence -- Medical examiner may give opinion testimony as to manner of death. A defendant may not introduce evidence of good character for truthfulness until the defendant testifies.

Circuit Court for Baltimore City Case # 196033011

IN THE COURT OF APPEALS OF MARYLAND No. 70 September Term, 1997 ________________________________________

DWAYNE SIPPIO v. STATE OF MARYLAND

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Bell, C. J. Eldridge Rodowsky Chasanow Raker Wilner Cathell JJ. _______________________________________ Opinion by Chasanow, J. ________________________________________ Filed: August 5, 1998

In this appeal, we are called upon to address the following issues: 1. Did the trial court err in permitting a medical examiner to give opinion testimony as to a decedent's manner of death? Does our ruling in Sahin v. State, 337 Md. 304, 653 A.2d 452 (1995), allowing a defendant on trial for a veracity impeaching offense to present evidence of his character for truthfulness after he testifies, apply where the defendant has announced his intention to testify but has not yet done so?

2.

For the reasons set forth below, we shall hold that under the rules of evidence on expert testimony, the trial court did not err in admitting a medical examiner's testimony as to manner of death. We shall further hold that the requirement of Sahin, supra, that a criminal defendant charged with a veracity impeaching offense may present evidence of his or her character for truthfulness only after the defendant elects to testify, is not met by a nonbinding announcement of the defendant's intention to testify. We shall therefore affirm the judgment of the Court of Special Appeals affirming Sippio's conviction.

I. It is undisputed that, on December 30, 1995, Brenda Branch died as the result of a gunshot fired by Petitioner Dwayne Sippio, Branch's acquaintance of seven years and the father of her six-year-old daughter Demetrius. The shooting occurred in Branch's home in Baltimore City. Although Sippio maintained a separate residence in Baltimore City, Sippio stayed at Branch's home on frequent occasions, including the two weeks prior to the shooting. Demetrius and Gavin, Branch's son from a previous relationship, also resided at

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Branch's home. Following Branch's death, Sippio was arrested and charged with murder, use of a handgun in the commission of a felony, and unlawfully wearing, carrying, and transporting a handgun. A jury trial commenced on July 9, 1996 in the Circuit Court for Baltimore City. Because Sippio admitted to having fired the shot that caused Branch's death, the trial centered on whether that shooting was accidental or deliberate. At trial, Demetrius, who was an eyewitness to Branch's death, testified that, on the day of the shooting, she overheard a conversation between Branch and Sippio in which Sippio requested that Branch give him a set of keys she had in her possession and Branch repeatedly asked Sippio for money. Demetrius further testified that after this discussion, she saw Sippio pull a gun from his coat pocket and heard him say to Branch that it was "time for her to go," to which Branch responded: "[P]lease don't shoot me." Demetrius then saw Sippio shoot Branch. After the shooting, according to Demetrius, Sippio removed a set of keys from Branch's body and brought Demetrius to her grandmother's house. Gavin testified that he left Branch's residence several hours before the shooting occurred and, thus, did not witness the shooting. Gavin, however, testified that, at times including the few weeks before the shooting, he had heard Sippio call Branch derisive names and, on the night before the shooting, Sippio had responded angrily to Branch's playful request for money. Gavin further testified that Branch "put [Sippio] out all the time ... [l]ike when he wouldn't give her money to pay the bills and stuff and she would tell him to pack his stuff and leave." Gavin also testified that, prior to the shooting, he found Sippio's

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unloaded gun in a bedroom drawer and that Sippio kept the bullets separate from the gun. Another witness for the State, Detective Donald Steinhice, testified that he took a taped statement from Sippio at the Baltimore City Police Department's Homicide Unit on the day of the shooting. That taped statement was played at trial during the detective's testimony. According to Sippio's taped statement, Sippio thought that he had removed all the bullets from the gun before pointing it at Branch and pulling the trigger. Detective Steinhice also testified that, based on his observations of the crime scene, he believed a struggle had occurred. The last witness for the State's case-in-chief, John Smialek, Chief Medical Examiner for the State of Maryland, testified as an expert in forensic pathology. Dr. Smialek had conducted the autopsy of Branch and had signed the autopsy report which was admitted into evidence as part of the medical examiner's report without objection during the direct examination of Dr. Smialek. As required by law, Dr. Smialek recorded Branch's cause and manner of death in the medical examiner's report. See Maryland Code (1982, 1994 Repl. Vol.), Health-General Article,

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