State v. Wells

• Decision Date: 01 December 1980
• Citation: 423 A.2d 221
• Parties: STATE of Maine, v. Calvin L. WELLS a/k/a Calvin L. Wills.
• Court: Maine Supreme Court

Page 221

423 A.2d 221

STATE of Maine, v. Calvin L. WELLS a/k/a Calvin L. Wills.

Supreme Judicial Court of Maine.

Argued Sept. 12, 1980.

Decided Dec. 1, 1980.

Henry N. Berry, III, Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., Portland, Michael McCarthy (orally), Law Student Intern, for plaintiff.

Ralph A. Dyer (orally), Ross A. Kimball, Portland, for defendant.

Before McKUSICK, C. J., GODFREY, NICHOLS, GLASSMAN and ROBERTS, JJ., and DUFRESNE, A. R. J.

DUFRESNE, Active Retired Justice.

The defendant appeals from his conviction of assault, a violation of 17-A M.R.S.A. § 207, entered in the Superior Court (Cumberland County) following a jury trial and verdict of guilty of said offense. At a previous hearing before a judge of the District Court (Portland), the defendant had encountered the same result. The defendant alleges error in the Superior Court's exclusion of the testimony of a character witness whom he sought to produce in his behalf. The ruling below was correct and we affirm the Superior Court conviction.

On September 6, 1979 the defendant was working as a clerk at a Stop-N-Go store in South Portland, when the alleged victim of the charged assault visited the establishment for the purpose of returning bottles and collecting the allowable refund. Two friends of the victim were at the market while the altercation took place. The defendant refused to accept the bottles and ordered the three minors to leave the premises. Asparas, the victim, argued with the defendant, who, in turn, called the police. A fight ensued between the two. The defendant contended at trial that he acted in self-defense, while Asparas claimed that the assault upon his person was unprovoked and wholly initiated by Wells. The two eye-witness friends corroborated Asparas' version of the incident.

At trial, after the defendant had testified, defense counsel called one Ronald J. Cuda, a Stop-N-Go executive, as a witness. The State objected on the grounds that Mr. Cuda had not been listed as a witness and his name had not been brought to the attention of the jury on voir-dire, and, besides, Mr. Cuda's testimony would not be relevant. ¹ Defense counsel responded by making the following offer of proof outside the hearing of the jury:

Your Honor, I would like Mr. Cuda to testify; number 1, that he-his organization undertook an investigation of Mr. Wills (or Wells) before he hired him, that he was satisfied with the result of that investigation; they had no prior complaints of this guy's behavior, that (he) is the manager of the store, that he is trusted with $30,000 worth of assets and that as far as he has been informed, through other store employees, this young man has a good reputation.

Defense counsel argued that the evidence was admissible to prove the character of the defendant under Rule 405, M.R.Evid. The Court sustained the State's objection and the case was submitted to the jury on the defendant's testimony and that of the three minors, with the result as stated above.

The sole issue before this Court is whether Mr. Cuda's alleged character evidence was properly excluded. The defendant seeks to justify his claim of error on the ground that, being the accused on trial, he had "an unqualified right to submit character evidence concerning his disposition to intentionally or knowingly injure or attack another person."

We agree that, under the constitutional guarantee of a jury trial and of due process of law (Article I, §§ 6 and 6-A, Constitution of Maine), the defendant must be given a reasonable opportunity to present in his defense at trial material and relevant evidence having a bearing on the determination of guilt or innocence. But the defendant's constitutional right to a fair trial and to offer evidence of an exculpatory nature in the form of character evidence is not as absolute as the defendant insists. The constitutional right does not guarantee unrestricted admission in evidence of all type of character-reference material supportive of the accused, anymore than a defendant's constitutional right to confront and impeach the witnesses against him warrants unrestrictive admission in evidence of all material of an impeaching nature. See State v. Brown, Me., 321 A.2d 478, 485 (1974).

Unqualified admission of good or bad character for the purpose of proving an accused's disposition toward or against the perpetration of the crime charged, as such, has never received the approval of this Court. It was recognized that, under certain circumstances, several counterbalancing factors outweighed the probative value of the particular proffered character evidence; hence, courts generally viewed such evidence as inadmissible, except in specific instances.

The following considerations served to compel the imposition of judicial strictures upon the admissibility of character evidence in a criminal trial: 1) facts evidencing the defendant's bad character, when introduced by the State, would be likely to arouse the jury's emotions against the defendant with resulting undue hostility toward him, while evidence of good character presented by the defendant might infuse into the case an excess of sympathy in his favor; 2) such evidence, when viewed in the overall aspect of proof and disproof, has a tendency to create a side issue with resulting distraction and confusion among the members of the jury; 3) the likelihood of substantial extension of judicial time merely in the development of the issue, and 4) the risk of unfair surprise to either of the parties unprepared to meet a somewhat collateral issue. See McCormick on Evidence, 2nd Ed., § 185, pp. 439-440; State v. Wyman, Me., 270 A.2d 460, 463 (1970); United States v. Giese, 9th Cir., 597 F.2d 1170, 1189-90 (1979), quoting copiously from Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

On the other hand, when the character trait of truthfulness is involved, an additional underlying basis for judicial restrictions in the admission of such evidence found root in the fact that every witness, including the accused who testifies in his own behalf, is in law assumed to be of normal moral character for veracity. See IV Wigmore on Evidence, 3rd Ed., § 1104; Homan v. United States, 8th Cir., 279 F.2d 767, 772 (1960).

Through the years, this Court did develop a comprehensive scheme regulating in a reasonable way the admissibility of character evidence. And, effective February 2, 1976, the Maine Rules of Evidence were adopted, prescribed and promulgated, codifying the existing common law policy respecting the introduction at trial of character evidence. These rules of evidence established by the Supreme Judicial Court respecting the conduct of the civil and criminal business in our courts of justice, duly authorized by law and not repugnant thereto, have the force of law and are binding on the courts and the parties to the litigation. See Cote v. State, Me., 286 A.2d 868, 869 (1972).

As distinguished from the limited concept of a character trait for truthfulness within the impeachment rule (Rules 607-608-609, M.R.Evid.) which, when referring to a criminal defendant, relates solely to his credibility as a witness, character evidence, good or bad, is not admissible for the purpose of proving that the accused acted in conformity therewith on a particular occasion on the theory that his character was such as to make it unlikely that he would have committed the crime charged against him, except as provided in Rule 404, M.R.Evid.

Rule 404.

(a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.

We note immediately that the rule (Rule 404(b)) bars the introduction of specific acts of conduct in proof of character of the accused for the purpose of showing that he acted in conformity therewith at the time the crime charged against him was committed. This follows the majority rule. See State v. Flaherty, 128 Me. 141, 146 A. 7 (1929); State v. Wyman, supra, at 463; State v. Eaton, Me., 309 A.2d 334, 337 (1973); United States v. Benedetto, 2nd Cir., 571 F.2d 1246, 1249-50 (1978).

Rule 404 confines such character evidence to proof of a pertinent trait of the accused, which must be interpreted to mean such specific trait of his character, the existence or non-existence of which would be involved in the non-commission or commission of the particular crime charged, whether the evidence is offered by the accused or by the prosecution in rebuttal. People v. Sexton, 192 Colo. 81, 555 P.2d 1151, 1154 (1976); State v. Blake, 157 Conn. 99, 249 A.2d 232, 234 (1968); People v. Wong, 83 Cal.App.2d 60, 187 P.2d 828 (1948); State v. Howland, 157 Kan. 11, 138 P.2d 424 (1943); 1 Wharton's Criminal Evidence (13th Ed.) § 229; McCormick on Evidence (2nd Ed.) § 191, p. 455; 1 Wigmore, Evidence (3d Ed.) § 59, p. 458.

Under the rule, which codifies the common law practice, the prosecution is prohibited from introducing in its case-in-chief evidence of a pertinent trait of the accused's character for the purpose of proving that he acted in conformity therewith on a particular occasion; it may do so only to rebut such type of evidence, once it has been introduced in the case by the accused. State v. Wyman, supra, at 463; State v. Eaton, supra, at 337.

Rule 405, M.R.Evid., then provides the method of proving character, when evidence of character or a trait of character of a person, including the accused, is admissible under Rule 404.

Rule 405. Methods of proving character

(a) Reputation. In all cases in which...