State v. Conlogue

SCOLNIK, Justice,

with whom McKU-SICK, Chief Justice, joins, dissenting.

I concur with parts I and 11(1) — (3). I must dissent, however, as to part 11(4). In my view, the proffered testimony was not only inadmissible pursuant to M.R.Evid. 404, but it also was an improper method of proof under M.R.Evid. 405. For these reasons, I find no error in the trial court’s exclusion of the evidence and would affirm the judgment of the Superior Court.

While a defendant may prove any fact or circumstance tending to show that someone else committed the crime, such evidence is inadmissible unless it clearly links the other person to the commission of the crime. E.g., Brown v. United States, 409 A.2d 1093 (D.C.1979); Fortson v. State, 269 Ind. 161, 379 N.E.2d 147 (1978); State v. Hamlette, 302 N.C. 490, 276 S.E.2d 338 (1981); State v. Harman, 270 S.E.2d 146 (W.Va.1980); see also State v. LeClair, 425 A.2d 182, 187 (Me.1981). Character evidence, however, merely creates a conjectural inference or suspicion as to another’s guilt and therefore is inadmissible. United *174States v. Puckett, 692 F.2d 663, 670-671 (10th Cir)., cert. denied, 459 U.S. 1091, 103 S.Ct. 579, 74 L.Ed.2d 939 (1982); United States v. Bocra, 623 F.2d 281, 286-287 (3rd Cir.), cert. denied, 449 U.S. 875, 101 S.Ct. 217, 66 L.Ed.2d 96 (1980); People v. Culhane, 45 N.Y.2d 757, 758, 380 N.E.2d 315, 317, 408 N.Y.S.2d 489, 491, cert. denied, 439 U.S. 1047, 99 S.Ct. 723, 58 L.Ed.2d 706 (1978).

Generally, evidence of a person’s character is not admissible for the purpose of proving that he “acted in conformity therewith on a particular occasion.” M.R.Evid. 404(a). Rule 404 renders inadmissible evidence of the character of third persons, “even if the ultimate purpose of proof of another’s character is to exculpate the accused.” 22 C. Wright & K. Graham, Federal Practice and Procedure § 5236, at 385 (1978). Cf. 1 Wharton’s Criminal Evidence § 195, at 406 (13th ed. 1972) (“The evidence by which the guilt of the third person is to be established must conform to all the rules regulating the admission of evidence.”). For example, the rule does not allow evidence of the reputation of the victim for violence to support a claim of self-defense in a homicide case where the evidence was offered to show that the decedent was the aggressor. State v. Mitchell 390 A.2d 495, 501 (Me.1978); see also State v. Lagasse, 410 A.2d 537, 542 (Me.1980). A defendant is also precluded from introducing evidence of a rape victim’s reputation for chastity in support of a claim of consent. In each situation, the evidence, although relevant, is excluded because it has only “slight probative value and is likely to be highly prejudicial, so as to divert attention from what actually occurred.” M.R. Evid. 404 advisers’ note, Field & Murray, Maine Evidence at 66 (1976).

Rule 404 may be viewed as -a concrete application of the balancing of the probative value of character evidence against countervailing dangers of prejudice, confusion, distraction, and delay. The rule itself concludes that the probative value of character evidence is always outweighed by the danger of prejudice, confusion, distraction and delay. See 22 Wright & Graham, supra, § 5232, at 340 (“It is sometimes suggested that [Federal Rule 404] emerged from repeated applications of the doctrine of relevance to recurrent patterns in the use of circumstantial evidence.”); McCormick, Evidence § 186, at 442 (1972) (common law rules regarding evidence of character were “molded by the effort to balance probative values against countervailing dangers of prejudice, distraction, etc.”). Such is the justification advanced in the Adviser’s Note to Rule 404. M.R.Evid. 404 adviser’s note, Field & Murray, supra, at 66. (evidence of the character of criminal defendant is excluded “because the danger of prejudice (‘he’s a bad man, so he is probably guilty’) outweighs the probative value;” evidence of the character of the victim of a crime is excluded “because it has slight probative value and is likely to be highly prejudicial, so as to divert attention from what actually occurred”). When the defendant, in an attempt to raise a reasonable doubt as to his own guilt, seeks to introduce character evidence of a third person, the evidence is no more probative and no less likely to confuse the issues, divert the jury, and waste time, than any other time when character evidence is sought to be introduced.

In the present case, both the medical testimony that abused children often become abusive parents 1 and the testimony of former neighbors as to prior acts of child abuse is evidence of a trait of Patricia Easler’s character. See State v. Lagasse, 410 A.2d at 542 (evidence that the decedent regularly beat his wife was character evidence). This testimony was offered for the sole purpose of furnishing a basis for an inference that 1) Patricia Easier is an abusive parent and 2) on the particular occasion in question, she acted in conformity with her character. Because it is difficult logically to justify the drawing of such a chain of inferences, the trial justice, in ex*175cluding this evidence, was in full compliance with the letter and spirit of Rule 404.

Even if not subject to exclusion under Rule 404, the proffered character testimony was inadmissible for its failure to satisfy the requirements of Rule 405. With one exception, character must be proved by evidence of reputation M.R.Evid. 405(a). Proof may be made by evidence of specific instances of conduct only in those situations in which character is an essential element of a charge, claim or defense. M.R.Evid. 405(b). Dr. Lambert’s testimony was not evidence of Patricia Easler’s reputation. In fact, it was not even proof of what her character was but rather what it might possibly have been. Nor was it evidence of specific instances of her conduct. At most, it demonstrated that Patricia Easier was herself the victim of abusive conduct engaged in by others as a result of which expert witnesses deemed it probable that her victimization caused her to develop a child abusing character trait.

The testimony of the former neighbors to specific instances of Patricia Easler’s conduct is also defective under Rule 405. Because her disposition to abuse her children is not an element of a charge, claim or defense,2 her character may be proved only by reputation evidence.3

The Court's position which erroneously concludes that the proffered testimony is not character evidence cannot alternatively be justified by its assertion that the evidence is admissible for the purpose of impeaching the credibility of Patricia Eas-ler’s recantation of her confession. Impeachment by character evidence is governed by Rule 608. Field & Murray, supra, § 607.1. This rule is limited to evidence probative of the truthfulness or untruthfulness of the witness. Patricia Eas-ler’s alleged character trait for child abuse has no bearing on her character for veracity. Cf. State v. Flood, 408 A.2d 1295, 1299 (Me.1979) (reputation for drug use was not evidence of witness’s character for truthfulness). Therefore, the evidence was also inadmissible for the purpose of impeaching her credibility.

Furthermore, the Court’s reliance on State v. Anaya, 438 A.2d 892 (Me.1981), is misplaced. In Anaya, we found it an abuse of the trial court’s discretion to exclude, pursuant to M.R.Evid. 403, expert testimony regarding battered wife syndrome, when such evidence was offered to support the defendant’s claim of self-defense or provocation to mitigate or justify her conduct. Its purpose was to show the psyche of battered wives and that the defendant’s perceptions and behavior at the time of the killing were consistent with those exhibited by women who suffered repeated physical abuse at the hands of their husbands or lovers. This testimony supported the defendant’s contention that she was indeed fearful of her abuser despite the fact that she continued to live with him. Thus, evidence of battered wife syndrome was admissible, not to prove conduct, but rather for the purpose of showing her mental perceptions to assist the jury in determining whether in such a state of mind she acted reasonably to protect herself from another beating. It was not evidence of character. Its admission contravened none of the rules of evidence and was governed exclusively by the general rules of relevance.

In the present case, however, the attempted use of evidence of battered child syndrome was totally dissimilar to the use of battered wife syndrome evidence found permissible in Anaya. The sole purpose of evidence of the vicious cycle where abused children grow up to become abusive parents was to allow the jury to infer that *176because Patricia Easier was an abused child, she was an abusive parent, and to further infer, that she abused her child, Tina, on the particular occasion in question. As earlier demonstrated, evidence for this purpose is inadmissible under the Maine Rules of Evidence.

Accordingly, the trial justice correctly excluded the evidence. In striving to achieve the worthy goal of affording a criminal defendant every exculpatory nuance, we are not free to stretch the rules to permit in substance and method the kind of “character evidence” which was offered in this case.

I would affirm the judgment.

. Testimony was offered that Patricia Easier was an abused child.

. A person’s character is an essential element of a charge, claim, or defense "when character or a character trait is an operative fact which under the substantive law determines the legal rights of the parties.” M.R.Evid. 405 advisers' note, Field & Murray, supra, at 72.

. At trial, the defendant conceded that Rule 404 barred this evidence arguing instead that the rule as applied to this case was unconstitutional. On appeal, he neither briefed the point, nor argued orally, that the testimony of the neighbors was improperly excluded.