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State v. Martin Cyr
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME   35
Docket:	Pen-00-337
Submitted
on Briefs:	December 20, 2000
Decided:	February 21, 2001	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.



STATE OF MAINE v. MARTIN G. CYR



WATHEN, C.J.


	[¶1]  Martin G. Cyr appeals from the judgment entered in the
Superior Court (Penobscot County, Mead, J.) on a jury verdict finding him
guilty of one count of assault in violation of 17-A M.R.S.A. § 207 (1983).{1}  Cyr
argues that the court erred by granting the State's motion in limine to
exclude testimony regarding specific acts of untruthfulness that the
complaining witness had committed in the past and her reputation for
untruthfulness in the community.  We disagree and affirm the judgment.
	[¶2]  The relevant facts may be summarized as follows: Cyr's
estranged wife, Aimee Cyr, testified at trial that, on the night of September
16, 1999, Cyr arrived at her house to visit their children for the weekend
and that he argued with her about divorce.  In the course of the argument,
she maintains, Cyr physically assaulted her.  The next morning, Aimee's
cousin reported the incident to the police.  Aimee initially did not cooperate
with authorities, indicating that she did not want the children to witness
Cyr's arrest.  Because she feared that Cyr would take their children to his
home in Vermont, Aimee told the investigating officer that she would not
press charges unless Cyr failed to return their children on Sunday.  After the
Officer explained that he would proceed with or without Aimee's help, she
denied that Cyr had assaulted her and begged the officer not to arrest Cyr
that day because the children had been through enough.
	[¶3]  At trial, Cyr intended to call Peter Rouleau, Lynn Beaulier, and
Andrea Wiley as witnesses to discredit Aimee's allegations.  After voir dire
examination, however, the court, without specifying any particular basis for
its decision, granted the State's motion in limine to exclude the testimony. 
Peter Rouleau, Aimee's former boyfriend, would have testified that,
approximately eight years before trial, Aimee claimed that she had been
raped by another man when Peter was working onboard a ship in the Great
Lakes, but that she decided not to press charges in the case after he
returned to her.  He would have also testified that, a year later, Aimee falsely
accused him of giving her a black eye, threatening to press charges if he did
not pay her $5000 as an informal "alimony" for the time that she had not
worked while they were living together. Lynn Beaulier, the mother of
Aimee's high school boyfriend, would have testified that when Aimee was in
high school, twelve years before trial, she had accused her son of assault only
to dismiss the charges before proceedings began in the juvenile court. 
Finally, Andrea Wiley, Aimee's former friend, would have testified that Aimee
does not have a good reputation for truthfulness in the community.       
I.
	[¶4]  Cyr argues that the court erred by excluding the testimony
relating to specific instances of Aimee's lying in the past because it was
admissible, under Rule 404(b) of the Maine Rules of Evidence, to show that
it was Aimee's plan or modus operandi to fabricate an assault charge and
then use the judicial process to leverage a desired result in her relationship
with Cyr.  Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show
that the person acted in conformity therewith."  M.R. Evid. 404(b). 
Nonetheless, this provision "does not exclude the evidence when offered for
another purpose, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident."  Id. advisers'
note.  We review the trial court's determination whether the evidence is
relevant for some purpose other than propensity for clear error.  State v.
Demass, 2000 ME 4, ¶ 11, 743 A.2d 233, 236 .  
	[¶5]  In the present case, the proffered testimony relates to three
instances from the distant past when Aimee allegedly claimed to have been
assaulted.  None, however, establishes a plan or modus operandi to fabricate
an assault charge in order to use the judicial process for her personal
advantage.  Lynn Beaulier would have testified that when Aimee was in high
school, twelve years before trial, she had accused her son of assault but then
dropped the charge before trial.  In Beaulier's opinion, Aimee's allegations
were false.  Her testimony, however, does not indicate that Aimee attempted
to gain any advantage by making the allegations.  Likewise, Peter Rouleau
would have testified that, approximately eight years before trial, Aimee
decided not to press charges against a man that she claimed had raped her. 
At the time, Rouleau was working on the Great Lakes and could only spend
one-half of a day every two weeks with Aimee.  Although Cyr maintains that
this testimony demonstrates that Aimee concocted the charges so that she
could induce Rouleau to spend more time with her, the record offers no
support for his conclusion.  Rouleau did not testify that Aimee's claims were
false.  Furthermore, when asked if he knew whether Aimee's desire to
spend more time with him had played any part in her claiming to be raped,
Rouleau responded only that he believed that Aimee would have liked to
spend more time with him.  The only incident reported in the proffered
testimony in which Aimee allegedly made a false accusation in order to gain
some personal advantage occurred seven years prior to the trial when
Rouleau claimed that Aimee falsely accused him of giving her a black eye and
threatened to press charges if he did not pay her $5000 as informal
"alimony."  This incident, however, does not inexorably support Cyr's theory
because there is no evidence that Aimee used the judicial process.  Even
though Rouleau refused to pay the money, Aimee did not file charges.  The
testimony, at best, evidences only an empty threat made long before the
events of the present case.  Under the  circumstances, we cannot say that
the court clearly erred or abused its discretion in excluding the testimony. 
II.
	[¶6]  Cyr also argues that the court erred by excluding testimony
regarding Aimee's reputation for untruthfulness in the community.  Rule
608(a) provides that "[t]he credibility of a witness may be attacked or
supported by evidence of reputation" relevant to his or her "character for
truthfulness or untruthfulness."  M.R. Evid. 608(a).  The rule permits
reputation testimony on the assumption that the collective judgment of a
significant group of diverse people regarding the character of a person that
they each know is reliable.  28 Charles Alan Wright & Victor James Gold,
Federal Practice and Procedure: Evidence § 6114 (1993).  Accordingly,
reputation testimony must "embody the collective judgment of the
community and be derived from a group whose size constitutes an indicium
of inherent reliability."  State v. Mazerolle, 614 A.2d 68, 73 (Me. 1992)
(quotations omitted).  The judgment of a group that is too small or insular
does not demonstrate the requisite reliability because its conclusion may be
the product of no more than "a handful of people who coincidentally share
the same opinion as to the credibility of the witness" and who may have
formed their opinions "based on the same set of biases."  Wright & Gold,
supra.
	[¶7]  We leave it to the trial court to exercise its discretion in
determining the reliability of proffered reputation testimony, and we will
overturn its decision to admit or exclude such evidence only when it has
abused its discretion.  We have held that a trial court did not abuse its
discretion by excluding the testimony of a witness who claimed that six
people had told the witness to stay away from the individual and that several
others had told the witness that the individual was not very honest.
Mazerolle, 614 A.2d at 73.  Likewise, in State v. Doherty, 437 A.2d 876 (Me.
1981), we explained that a community of two or three people is
insufficiently broad "to insure that its collective judgment about the
defendant's character is reliable."  Id. at 878.
	[¶8]  In the present case, Cyr contends that the testimony offered by
Peter Rouleau, Lynn Beaulier, and Andrea Wiley is sufficient to establish
Aimee's reputation for untruthfulness in the community.  Rouleau and
Beaulier, however, did not testify regarding Aimee's reputation.  Rather,
they related only their own opinions of her truthfulness.  Rule 608(a), unlike
its federal counterpart, does not permit character evidence in the form of
the witness' own opinion.  Compare Fed. R. Evid. 608(a) with M.R. Evid.
608(a).  
	[¶9]  Andrea Wiley was the only witness to testify that Aimee does
not have a good reputation for truthfulness in the Millinocket area.  It is
readily apparent from the record, however, that her testimony, at best,
reflects only the collective judgment of a relatively small and discrete group
of friends.  Wiley explained that the basis for her testimony was that she and
a "few friends" had caught Aimee telling "stupid stories that [she] would
make up" about her interest in and involvement with "boys" that the friends
had dated.  This testimony does not reflect the collective judgment of a
sufficiently large and diverse group whose conclusion manifests the
"indicium of inherent reliability" that is demanded of reputation testimony. 
See Mazerolle, 614 A.2d at 73.  The court, therefore, did not abuse its
discretion by excluding the testimony.  
	The entry is:
	Judgment affirmed.
     
Attorneys for State: R. Christopher Almy, District Attorney C. Daniel Wood, Asst. Dist. Atty. Darcie McElwee, Asst. Dist. Atty. 97 Hammond Street Bangor, ME 04401 James S. Nixon, Esq. Gross, Minsky & Mogul, P.A. P O Box 917 Bangor, ME 04402-0917
FOOTNOTES******************************** {1} . Section 207 provides, in pertinent part, that "[a] person is guilty of assault if he intentionally, knowingly, or recklessly causes bodily injury of offensive physical contact to another." 17-A M.R.S.A. § 207. The court sentenced Cyr to ninety days in the county jail, with all but seven days suspended, and two years of probation.