Opinion
No. 74-1093
Decided December 24, 1975.
Criminal law — Evidence — Witnesses — Credibility — Impeachment of — Rebuttal testimony proper, when — Judge as character witness — Propriety.
Evidence cannot be given to prove an infamous crime against a witness, of which she has not been convicted, for the purpose of impeaching her credit; yet, where the question as to whether the witness is guilty of such a crime becomes the legitimate subject of inquiry on the trial, her reputation for truth may be proved, to rebut the imputation of guilt which the evidence makes against her. (Paragraph four of the syllabus in Webb v. State, 29 Ohio St. 351, approved and followed.)
APPEAL from the Court of Appeals for Cuyahoga County.
Defendant, Max Schechter, was indicted for the crimes of murder in the first degree (R.C. 2901.01) of Linda Kyman, a 25-year-old resident of University Heights, assault with intent to kill (R.C. 2901.24) of Helen Kyman, the mother of Linda Kyman, and unlawful possession of a firearm (R.C. 2947.30).
A jury found Schechter guilty of the lesser-included offense of murder in the second degree, guilty of aggravated assault, and not guilty of unlawful possession of a firearm.
Linda Kyman was an employee of a McDonald's restaurant where Schechter was the manager. During the period from December 1972 to January 6, 1973, Linda Kyman loaned about $1,085 to Schechter on several occasions. Linda's mother, Helen Kyman, learned of the loans and asked defendant, Schechter, to return the money. He promised to bring the money to the Kyman home. When he arrived at the home, Helen Kyman and Linda were there. An altercation ensued in which Linda Kyman was fatally shot and Helen Kyman was allegedly kicked in the face by the defendant.
Defendant was later arrested with a .22-caliber weapon and a box of ammunition on his person. At the trial, in the Court of Common Pleas, it was stipulated that this weapon was the one used in the killing, and that the bullet recovered from the victim's body was fired from this weapon. There was a further stipulation that defendant's fingerprints were found on a soup cup in the Kyman home.
On the jury voir dire examination, defense counsel questioned prospective jurors as to whether they would consider evidence that Helen Kyman, mother of the victim, in fact, shot her daughter. In his opening statement, defense counsel stated to the jury that the evidence would show that Helen Kyman secured the murder weapon from defendant Schechter's pocket and the weapon discharged, killing Linda Kyman. On cross-examination of Mrs. Kyman, defense counsel questioned her pursuant to this theory of defense. The defendant, Schechter, did not take the stand. Witnesses for Schechter testified generally as to defendant's reputation in the community. The record showed that the defendant owned the murder weapon and that powder residue tests of his hand were positive. The state presented evidence by way of a tape recording of defendant's statement in which he denied killing Linda Kyman and accused her mother of the slaying, which evidence was admitted.
The prosecution took the position that the combination of defendant's accusation of Helen Kyman as the murderer and the defense cross-examination directed toward establishing that accusation was such an attack upon her credibility which would permit her rehabilitation by witnesses for the state on rebuttal. This was permitted, over objection, and two Common Pleas Court judges testified as to Helen Kyman's reputation for veracity.
Upon conviction of the first two charges, appeal was lodged in the Court of Appeals, and the judgment of the trial court was affirmed.
The cause is now before this court pursuant to the allowance of defendant's motion for leave to appeal. We limited argument to the applicability of the rule of law set forth in Webb v. State (1876), 29 Ohio St. 351.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Patrick G. Lazzaro, for appellee.
McDonald, Hopkins Hardy Co., L.P.A., and Mr. John T. Mulligan, for appellant.
I.
Counsel for appellant earnestly urges a reversal of the decision of the Court of Appeals and remand for a new trial solely on the application of the rule of law established in Webb v. State, supra ( 29 Ohio St. 351). It is a bifurcated prayer tined with two propositions of law, the first of which asserts:
"The rule of law in Webb v. State, 29 Ohio St. 351 (1876) permits the introduction of opinion testimony as to the reputation of the prosecution's witness for truth and veracity only where there has been an `inquiry' involving the introduction of testimony and other evidence."
Such reliance on Webb under the facts reflected in the record in this case can at best be characterized as tenuous, if not fatuous. Of course, there has been an inquiry here as to who murdered Linda Kyman, involving the introduction of testimony and evidence. That was the purpose of the trial below. And, as this court held in paragraph four of the syllabus in Webb, almost a century ago:
"Evidence cannot be given to prove an infamous crime against a witness, of which he has not been convicted, for the purpose of impeaching his credit; yet, where the question as to whether the witness is guilty of such crimes becomes the legitimate subject of inquiry on the trial, his reputation for truth may be proved, to rebut the imputation of guilt which the evidence makes against him."
Appellant's first proposition of law is rejected.
II.
The second proposition of law advanced by appellant declares:
"Once it has been determined that an `inquiry' has been conducted sufficient to justify the application of the rule in Webb v. State, the trial judge must exercise discretion in determining whether to permit certain persons to testify as to this collateral issue. Judges should not be permitted to testify in this situation if their testimony is likely to have an unfair and prejudicial effect."
Appellant presents no precedent for the proposition he urges this court to accept. We are unable to find any statute or case law applicable to this fact situation. There was likewise no canon of judicial ethics in force in June 1973, at the time of this trial, which prohibited a judge from testifying as a character witness.
Effective December 20, 1973, however, this court adopted a new Code of Judicial Conduct governing the judiciary of Ohio. Canon 2B thereof provides, in part, that "[a] judge * * * should not testify voluntarily as a character witness." In the commentary on that canon, it is stated:
"The testimony of a judge as a character witness injects the prestige of his office into the proceeding in which he testifies and may be misunderstood to be an official testimonial. This canon, however, does not afford him a privilege against testifying in response to an official summons."
We are unable to conclude that permitting the two judges of the Court of Common Pleas to testify as character witnesses, under the rule of Webb v. State, supra, for the witness, Helen Kyman, was illegal, unethical, unfair or prejudicially erroneous, even though it may have been unwise.
We do not accept the second proposition of law.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
HERBERT, CELEBREZZE and P. BROWN, JJ., concur.
O'NEILL, C.J., STERN and W. BROWN, JJ., concur in the judgment.
It is a basic rule of evidence that witnesses may not be called to testify in support of the character or reputation for truth of another witness. Such testimony is collateral to the actual issues at bar and is unnecessary, for every witness is, in the first instance, presumed to be truthful. 4 Wigmore on Evidence 233— 35, Section 1104. Further, the admission of such testimony would tend to turn trials into oath-taking contests, as in the early common law trials by compurgation, in which cases were decided by the number of oath helpers on each side. Our trials are of facts, not of the worth of oaths.
There are exceptions to that rule of evidence consistent with its purpose. The defendant in a criminal case may introduce witnesses to show his good character, for his character is considered to be directly in issue. A witness whose character has been directly attacked by evidence of particular misconduct may also be rehabilitated by evidence of good character. It is a matter of fairness to admit evidence relevant to the issue of character, when that issue is raised, and, more importantly, the admission of such evidence gives some protection against the trier of fact being swayed by the implication that there may well be some substance to attacks upon a witness's character, when such attacks are answered only by the witness himself. Wigmore on Evidence, supra, at page 236.
But the exception does not swallow the rule, and the important issue in determining whether the exception should apply is whether a sufficient direct inquiry has been made into the character of the witness. In Webb v. State (1876), 29 Ohio St. 351, the issue was whether the defendant had forged a contract. The defendant testified that he received the contract from a prosecution witness not knowing it was forged. The defense then called witnesses who testified that the same prosecution witness had made statements (including statements at a previous trial) inconsistent with his testimony. In effect, the witness was impeached by evidence of perjury and of attempting to convict an innocent man of that witness's own crime. Very clearly, an issue was raised in that case, by the defense's evidence, as to whether the witness had committed an infamous crime, and the court properly held that witnesses might be called to rebut the imputation thus directly cast upon that witness.
In the present case, the basis for any inquiry into the character or reputation of the witness, Helen Kyman, was that, upon voir dire and opening statement, defense counsel indicated that there was evidence that Mrs. Kyman had shot her daughter, without suggesting whether that shooting was intentional; that the defendant stated, in a tape-recorded interview introduced in evidence by the prosecution, that Mrs. Kyman, and not he, had shot the gun; and that in the course of a lengthy cross-examination the defense asked questions seeking to discredit Mrs. Kyman's account, including one question as to whether she had in fact fired the gun, which she denied. No witnesses were called to testify as to her general character, as to any past instances of misconduct, or as to any statement or acts by her which contradicted her testimony. The sole issue was whether her account of the death of her daughter was believable beyond a reasonable doubt. That question was fully explored on cross-examination and by comparison of her testimony with the other evidence in the case. The defense contended that her testimony was inconsistent with the other evidence, or was at least doubtful. That the defense may do, without being considered to have made a direct attack upon the character of the witness, for the attack is directly upon the facts alleged to form the substance of the charge against the defendant, although it, of course, reflects upon the veracity of any witness to those facts, and, in this case, upon the possibility of blame attaching to the witness. Cf. Reed v. State (1918), 98 Ohio St. 279, 120 N.E. 701.
Mrs. Kyman had full opportunity to explain or deny the inconsistencies asserted by the defense, both upon direct and cross-examination, and the defense did not give evidence of any other facts which would degrade or discredit her. In such a case, it appears that the prosecution's character witnesses acted essentially as oath helpers, testifying, in effect, that the charges were probably true, not because they possessed any knowledge of them, but because someone they knew had so sworn. Such a practice shifts the focus of inquiry away from weighing the evidence in the case, toward weighing instead the public esteem of the defendant and the prosecuting witnesses. The fact that the witnesses in this case were judges serves to reinforce the prejudice of such procedure. We do, of course, allow the testimony of character witnesses for the defendant; but that right does not imply that, out of some sense of sporting justice, a prosecution witness's version of disputed facts may be propped up by the testimony of those who believe her in other matters. The testimony of such character witnesses should be limited to rebuttal of direct attacks upon the character of the witness, and not extended to rebuttal of attacks which are fundamentally upon a witness's version of the facts at issue.
I concur in the judgment of the court because the evidence of the defendant's guilt was so overwhelming and the case so fully and competently argued at trial that the error in allowing the testimony of the prosecution's character witnesses was, I believe, harmless. Crim. R. 33(E); see Chapman v. California (1967), 386 U.S. 18.
O'NEILL, C.J., and W. BROWN, J., concur in the foregoing concurring opinion.