State v. Conlogue
474 A.2d 167 (Me. 1984)
 

Glassman, J.

The defendant Christopher Conlogue was convicted by a jury in the Superior Court, Franklin County, of aggravated assault, 17-A M.R.S.A. 208(1983). On appeal from the judgment, he assigns numerous claims of error. Since we find the presiding justice committed reversible error in excluding certain testimony offered by the defendant tending to show the crime had been committed by another person, we sustain the appeal and vacate the judgment of conviction.

I

During the summer of 1981, the defendant and Patricia Easler lived at a camp in Chesterville with Ms. Easler’s three young children. Donna Dill, who visited the camp on August 6, 1981, observed what she believed to be abusive treatment of the 1 1/2–year-old Tina Easler by the defendant, and alerted the Department of Human Services. . . .

On September 29, 1981, a joint indictment was returned against the

7. This conclusion is strengthened by the fact that the district court gave the jury a clear cautionary instruction that it could not consider the evidence of the prior conviction in determining whether the defendant committed the act charged in the indictment. The court instructed that the jury may only use the evidence of the prior conviction "to help you decide whether to believe his testimony and how much weight to give it." defendant and Patricia Easler, charging each with aggravated assault. Patricia Easler subsequently agreed to plead guilty to a charge of endangering the welfare of a child, 17-A M.R.S.A. 554(1983), and to testify against the defendant, in return for a dismissal of the aggravated assault charge. . . .

The defendant’s trial began on October 25, 1982, in the Superior Court, Franklin County. After the State rested, the defendant moved for dismissal. . . . The jury returned a verdict on October 28, 1982, finding the defendant guilty of recklessly causing serious bodily injury to Tina Easler. The defendant’s motion for judgment notwithstanding the verdict was denied.

The defendant appeals, assigning error . . . to several evidentiary rulings made by the presiding justice. . . .

II. Evidentiary Rulings

The admissibility of evidence is left to the sound discretion of the presiding justice. Generally, the determination of relevance and the determination that the probative value of evidence is outweighed by its danger of unfair prejudice are reviewed on appeal only for an abuse of that discretion. . . .

4. Exclusion of Proffered Testimony

The defendant argues the exclusion of certain testimony of Dr. Lambert and three defense witnesses was erroneous. We agree.

On direct examination by the State, Dr. Lambert testified as to his training and experience with the treatment and diagnosis of child injuries, his training under Dr. Kempe, an international specialist and author of a treatise on "The Battered Child Syndrome," and the acceptance of the battered child syndrome as a diagnosis not only in Franklin County, but in the State of Maine. Dr. Lambert also testified as to the nature and extent of Tina Easler’s injuries and his diagnosis of Tina as an "abused battered child."

On cross–examination the doctor testified Patricia Easler told him it was she who had injured Tina. The defendant, out of the presence of the jury, through testimony of Dr. Lambert, then made an offer of proof that Patricia Easler had also told Dr. Lambert she had been an abused child, the details of such abuse, and the doctor’s opinion that, consistent with his experience and the teachings and treatise of Dr. Kempe, abused children often become abusive parents. The trial justice deemed this testimony inadmissible as violative of M.R.Evid. 404(a).1

The court also ruled inadmissible the testimony of three defense witnesses who, in offers of proof, indicated they would testify they were former neighbors of Patricia Easler and had seen her physically abuse her two older children. The court cited M.R.Evid. 404(a) as grounds for exclusion of this evidence. The defendant argues the exclusion of this testimony prevented him from pursuing a defense strategy of showing that Patricia Easler’s confession had been true, and her later recantation false.

We have previously recognized the right of a criminal defendant "in appropriate circumstances . . . to introduce evidence to show that another person committed the crime or had the motive, intent, and opportunity to commit it." State v. LeClair, 425 A.2d 182, 187 (Me. 1981). . . . In other words, evidence tending to implicate another person, and deflect guilt from the defendant, must be admitted if it is of sufficient probative value to raise a reasonable doubt as to the defendant’s culpability. As we stated in LeClair, "[T]he court should allow the defendant ‘wide latitude’ to present all the evidence relevant to his defense, unhampered by piecemeal rulings on admissibility.". . .

The presiding justice erred in his determination that M.R.Evid. 404(a) prohibited the introduction of this testimony. The medical testimony concerning battered child syndrome, and the eyewitness testimony of Patricia Easler’s three former neighbors cannot fairly be called "character evidence" within the meaning of the rule. Field & Murray, Maine Evidence describes character as a "generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness." 406.1 at 75. The rationale behind the rule limiting inquiry into the character of a witness is to ensure the trial remains focused on the guilt or innocence of the accused, and "avoids surprise, waste of time, and confusion, and makes the task of being a witness somewhat less unpleasant." M.R.Evid. 608 advisors’ note.

Such considerations supporting the rule make it obvious that it is not the rule’s purpose to preclude the introduction of evidence such as here offered by the defendant. Patricia Easler told the jury she had confessed, then retracted that confession when faced with the loss of her children in the subsequent District Court proceeding; she also told

1. M.R.Evid. 404(a) provides, in pertinent part:

(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: . . .

(2) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608 and 609. the jury she had been indicted with the defendant, and was allowed to plead guilty to a lesser charge in exchange for her later testimony against the defendant; Detective Lesson’s testimony informed the jury that Patricia Easler had herself been an abused child. In these circumstances, any evidence the defendant could adduce which would tend to prove the truthfulness of Easler’s confession, and thereby raise a reasonable doubt as to the defendant’s own guilt, should have been admitted for the jury’s consideration.

The medical testimony of the State’s expert witness concerning battered child syndrome, offered after the jury had heard evidence that Patricia Easler had been an abused child, tended only to rehabilitate her retracted confession. In State v. Anaya, 438 A.2d 892 (Me. 1981), we held the trial court abused its discretion in excluding testimony concerning battered wife syndrome, offered by the defendant to support her claim of self–defense. We decided testimony as to how the syndrome may have been manifested in the defendant’s behavior may have given the jury reason to believe that her conduct was consistent with her theory of self–defense. . . . Similarly, in the instant case, a description of battered child syndrome and the likelihood that Patricia’s own history of child abuse would predispose her to abuse her own child, would have allowed the jury to weigh the credibility of Patricia’s confession against the credibility of her later retraction. The defendant was improperly denied the opportunity to have the jury consider the credibility, based on all available evidence, of Patricia Easler’s recantation of her confession to the crime with which the defendant was charged. . . .

Judgment vacated. Remanded to the Superior Court for further proceedings consistent with the opinion herein.

Scolnik, Justice, with whom McKusick, Chief Justice, joins, dissenting.

. . . I must dissent, however, as to part II(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. . . . Character evidence, however, merely creates a conjectural inference or suspicion as to another’s guilt and therefore is inadmissible. . . .

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). . . . 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.". . .

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. . . . 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 parents2 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 Easler 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 excluding 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 Easler 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 Patri-

2. Testimony was offered that Patricia Easler was an abused child. cia 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, her character may be proved only by reputational evidence.

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 Easler’s recantation of her confession. Impeachment by character evidence is governed by Rule 608. . . . This rule is limited to evidence probative of the truthfulness or untruthfulness of the witness. Patricia Easler’s alleged character trait for child abuse has no bearing on her character for veracity. . . . 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 because Patricia Easler 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.

 


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