# State v. Kalex > Supreme Judicial Court of Maine · February 15, 2002 · 789 A.2d 1286 URL: https://www.frixlaw.com/law-library/cases/9719064 ## Case - **Full name:** STATE of Maine v. Robert W. KALEX - **Court:** Supreme Judicial Court of Maine - **Decided:** February 15, 2002 - **Citations:** 789 A.2d 1286; 2002 ME 26; 2002 Me. LEXIS 25 - **Precedential status:** Published - **Opinion:** Dissent by Alexander - **Judges:** Clifford, Rudman, Dana, Alexander, Calkins - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9719064 ## Opinion text ALEXANDER, J., dissenting. [¶ 23] I respectfully dissent, but only from that portion of the Court’s opinion that vacates the conviction and holds that the trial court erred in excluding the part of Denise Everest’s testimony offered to attack the victim’s character. [¶ 24] In discussing the applicability of M.R. Evid. 608(a), the Court’s opinion appropriately cites with approval Inhabitants of Phillips v. Inhabitants of Kingfield, 19 Me. 375, 379 (1841), where we observed, one hundred and sixty years ago, that “[t]o permit the opinion of a witness, that another witness should not be believed, to be received and acted upon by a jury, is to allow the prejudices, passions and feelings of that witness to form, in part at least, the elements of their judgment.” That advice is particularly important for a trial court to respect, as the trial court respected it here, where a central issue in the case is racial prejudice. [¶ 25] The record establishes that Denise Everest was Robert Kalex’s girlfriend. She harbored a long standing hatred towards the victim, Rory Holland, ultimately convincing Kalex to exclude Holland from Kalex’s business. On the night of the incident, Everest was confrontational with the police, being “highly intoxicated and highly agitated.” During this confrontation, according to Kalex’s own testimony, Everest referred to the victim as a “nigger.” In the offer of proof to support her attack on the victim’s character, Everest asserted that “at least 200, maybe more, people” had come to her for help regarding the victim: “And a lot of people I knew and a lot of people I didn’t know, they were strangers.” Why 200 people — many of them strangers, would seek her help regarding the victim, or anyone else, was not indicated. When asked how many people had talked to her about the victim being untruthful, she stated: “Quite a few, more than 50. I can’t put a total number and I’m myself one of those people that came to the conclusion.” When asked if these opinions were of people within the Biddeford community, Everest answered: “Most of them, Saco, Old Orchard. I found a few that was in Portland.” [¶26] Kalex, as the proponent of the reputation evidence, had the burden to demonstrate that Everest’s testimony was reliable and representative of the community’s collective judgment. “The burden is on the proponent of reputation evidence to satisfy the foundational requirements of such evidence including the requirement that the community be sufficiently large and diverse to give the reputation evidence the reliability required for admissibility.” State v. Ricker, 2001 ME 76, ¶ 8 , 770 A.2d 1021, 1024 . See also Field & Murray, Maine Evidence § 405.2 at 149-50 (2000 ed.). *1293 [¶ 27] Admission of reputation evidence is usually addressed pursuant to M.R. Evid. 404(a), 405, or 608(a). That reputation evidence is really opinion testimony, summarizing the collective hearsay opinions of others. As such it is lay opinion testimony also subject to M.R. Evid. 701. 5 As a prerequisite to admission of such opinion testimony, trial courts must make a preliminary assessment of the reliability of that evidence. [¶ 28] We have repeatedly stated that a trial court must address reliability in evaluating an offer of opinion of reputation evidence. See Ricker, 2001 ME 76, ¶¶ 6, 8 , 770 A.2d at 1024 ; State v. Cyr, 2001 ME 35, ¶ 8 , 767 A.2d 307, 310 ; State v. Mazerolle, 614 A.2d 68, 73 (Me.1992). In State v. Brown, 592 A.2d 163, 165 (Me.1991), we vacated a conviction because a trial court did not, in our view, properly exercise its discretion and attempt to assess the reliability of opinion testimony offered on a character issue. [¶ 29] Evaluation of reliability is separate and distinct from the jury’s determination of credibility. When opinion of reputation evidence is offered, the trial judge may test the trustworthiness of proffered character evidence by requiring [the proponent of the evidence] to establish preliminarily that the witnesses are aware of the [person’s] reputation for a specific pertinent character trait and not simply aware of his ... reputation in general, and that the witnesses’ knowledge of the ... character trait is representative of the community’s collective judgment. The trial court’s determinations on these foundation issues will be reviewable only for an abuse of discretion. Field & Murray, Maine Evidence § 405.2 at 150 (2000 ed.). See also Ricker, 2001 ME 76, ¶¶ 6, 8 , 770 A.2d at 1024 . This is consistent with the general view that where opinion evidence is offered, the trial court must act as a “gatekeeper” 6 to preliminarily determine that there is a rational basis for the opinion, M.R. Evid. 701(a), or that it is “both relevant and reliable.” See In re Jon N., 2000 ME 123, ¶ 9 , 754 A.2d 346, 349 ; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 158 , 119 5.Ct. 1167, 143 L.Ed.2d 238 (1999). [¶ 30] After hearing Kalex’s offer of reputation evidence, the court excluded it as insufficient. The court stated no specific findings as to Everest’s testimony, and none were requested. Upon review of a ruling where no findings were stated or requested, we assume that the court found the facts necessary to support its decision. State v. Porter, 1997 ME 74, ¶ 5 , 693 A.2d 743, 744 . Because Kalex had the burden of demonstrating a sufficient foundation to admit Everest’s testimony, the trial court’s finding that Kalex’s burden had not been met can only be overturned if a contrary finding is compelled by the evidence. See State v. Pulsifer, 1999 ME 24, ¶ 14 , 724 A.2d 1234, 1238 ; see also Westleigh v. Conger, 2000 ME 134, ¶ 12 , 755 A.2d 518, 520 . [¶31] Certainly this record does not compel a finding that Everest’s testimony reflected the opinions of a “community sufficiently large and diverse to give the reputation evidence the reliability required for admissibility.” Ricker, 2001 ME 76, ¶ 8 , *1294 770 A.2d at 1024 (emphasis added). Within the record, it is unclear exactly how many of Everest’s fifty person sample, whom Everest claims had come to her, were of the Biddeford community, how diverse the sample was, how many were individuals she knew, how many were “strangers,” and how many were exaggerations fueled by hate. [¶ 32] The Court’s opinion states as the standard for admissability of opinion of reputation evidence under M.R. Evid. 608(a) that it “must embody the collective judgment of the community and must be derived from a group whose size contributes an indicium of inherent reliability.” Supra ¶ 17 (citing State v. Ricker, 2001 ME 76, ¶ 6 , 770 A.2d 1021 , 1024 7 and State v. Mazerolle, 614 A.2d 68, 73 (Me.1992)). Here, the nature of the “community” whose collective judgment was being evaluated was at best speculative; strangers, or known individuals from Portland, Bid-deford, Saco, or Old Orchard Beach. Who these individuals were, and how diverse or representative of the community’s collective judgment they were, was not explored in the offer of proof of Everest’s testimony. [¶ 33] With such a speculative community and the obvious bias and hatred of the witness offering the testimony, the trial court acted fully within the bounds of its discretion in concluding that Everest’s testimony had an insufficient “indicium of inherent reliability.” To suggest otherwise would be to permit any witness, no matter how biased, to offer character assassination testimony, based on a community no matter how vaguely defined, as long as the witness states a big number in describing the “community” with which she alleges to have had contact. [¶ 34] M.R. Evid. 608(a) is not a license to bring prejudice and hate into the courtroom in the guise of reputation evidence. For that reason, the trial court must perform an independent analysis of the reliability of such testimony looking to both the size and the diversity of the community upon which it is allegedly based. See M.R. Evid. 403, 405, 608(a), 701; Ricker, 2001 ME 76, ¶¶ 6, 8 , 770 A.2d at 1024 . In this emotionally charged case, the trial court performed such an analysis commendably. It committed no error in excluding Everest’s testimony. I would affirm the judgment. . RULE 701. OPINION TESTIMONY BY LAY WITNESSES If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. . See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999). . Paragraph 8 in Ricker states the diversity element of the "representative of the community” requirement. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9719064. Public record. Not legal advice.