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State v. Robert Kalex
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  	2002 ME 26							
Docket:	Yor-01-367
Argued:	November 7, 2001
Decided:	February 15, 2002

Panel: 	CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
Dissenting:	ALEXANDER, J.


STATE OF MAINE v. ROBERT W. KALEX
DANA, J.

	[¶1]	Robert W. Kalex appeals from a conviction for terrorizing, 17-A
M.R.S.A. § 210 (1983 & Supp. 2000), entered by the Superior Court (York
County, Fritzsche, J.) following a jury trial (York County, Cole, J.).  Kalex
contends that the court erred in refusing to admit evidence of victim Rory
Holland's reputation for untruthfulness and in admitting a photograph of
Kalex dressed in a Ku Klux Klan outfit.  The State contends that the court did
not abuse its discretion and that if there was any error, it was harmless. 
Because we conclude that the court exceeded the bounds of its discretion in
refusing to admit certain reputation testimony, and because the error was not
harmless, we vacate.
I. BACKGROUND
	[¶2]	On July 25, 2000, Kalex was driving a red pickup truck with a
passenger inside.  Kalex pulled up beside Holland, who was walking down the
street, and said, according to Holland's trial testimony, that Holland "was
lucky that [Kalex and the passenger] didn't have a gun right then or they would
shoot [Holland]," while Kalex gestured like he was pointing a gun at Holland. 
According to Holland's testimony, Kalex's passenger told Holland he could
"take that to the bank because that's a promise, not a threat."  Holland
reported the incident to the police, identified Kalex and described the truck and
passenger, after which the police went to Kalex's home.  When Kalex arrived,
the police questioned him.  During a heated conversation, Kalex referred to
Holland as a "nigger," and stated he would not do anything to Holland, but his
family "would take care of" Holland.
	[¶3]	The State charged Kalex with interference with Holland's
constitutional and civil rights, 17 M.R.S.A. § 2931 (Supp. 2000), and
terrorizing, 17-A M.R.S.A. § 210 (Supp. 2000).{1}  At the trial on the count of
terrorizing,{2} the court admitted testimony that Kalex and others had
approached Holland's house on October 31, 1999, wearing KKK outfits and
carrying a sign from Holland's mayoral campaign; the sign was altered to
display a drawing of a raccoon circled in red with a line through it.  The court
admitted a photograph of Kalex in a KKK outfit "for the limited purpose of the
jury understanding the -- the attire that the officer said was similar to what
appears in that picture."{3}  
	[¶4]	The court refused to admit evidence presented through voir dire
regarding Holland's reputation for truthfulness.  Theresa Ordway testified that
"a few people had warned [her] that he wasn't a very nice guy," and that "he
takes things that don't belong to him, that he lies about -- he tells stories, he
fabricates stories in order to get things that he wants."  She testified that she
based her testimony on what she heard from about fifteen people.  Brian
McLaughlin, a local business owner, stated that Holland "had caused problems
or stolen merchandise" from local businesses and that other business owners
told him Holland "tr[ied] to con things out of . . . store[s], merchandise or
anything."  McLaughlin stated, however, that apart from hearing about
Holland being manipulative and trying to strong-arm or con five to ten
business people, McLaughlin "couldn't tell you about his reputation for
truthfulness . . . ."
	[¶5]	Denise Everest, Kalex's girlfriend, stated that she had spoken with
at least fifty people in the greater Biddeford area who regarded Holland as
untruthful.  She also testified that, apart from those approximately fifty
people, the Biddeford business community "had dishonest problems with him
as far as products, services, and lack of payment."  Thomas Kent testified that
Holland was "manipulative" of local businesses according to the five to ten
people with whom he had conversed about Holland.  Kalex himself testified
that Holland was "an extortionist," that he "lies and cheats and thieves," and
that the newspapers had questioned Holland's honesty about obtaining
signatures for "his electoral ballots."  Kalex did not say how many people had
communicated to him about Holland's reputation for untruthfulness.
	[¶6]	The court concluded that the above testimony, based on the
witnesses' own observations or the observations of a number of business people
regarding Holland's reputation for being a con man who strong-arms people or
fails to pay them did not constitute evidence of his reputation in the
community for truthfulness.  The court stated:
	And to the extent that if five or 10 business people on Main
Street have issues in regard to truthfulness, which I didn't even
hear, but to the extent that wouldn't be a big enough community,
clearly the defense has failed to meet its required standing to
proceed with the -- on the issue of character, and I am not going to
permit the proposed inquiry about the defendant's reputation for
truthfulness or veracity in the community on the basis of what has
been presented by way of the voir dire here and these six witnesses.
	[¶7]	The jury convicted Kalex of terrorizing before the Superior Court
(York County, Fritzsche, J.).  Kalex filed his notice of appeal from the
conviction, after which the court (York County, Cole, J.) entered its judgment
and commitment, sentencing Kalex to 364 days in jail with all but 120 days
suspended, plus a year of probation.
II. DISCUSSION
	A.	KKK Photograph

	[¶8]	Kalex contends that the court abused its discretion when it
admitted a photograph of him in a KKK outfit because the photograph's
prejudicial nature substantially outweighed its probative value.  He contends
that the jurors did not need a photograph to know what a KKK uniform looks
like, and that the image was inflammatory.  He contends the admission of the
photograph was not harmless error.
	[¶9]	The State contends that the photograph was probative of whether
Kalex placed Holland "in reasonable fear that the crime w[ould] be committed." 
17-A M.R.S.A. § 210(1)(A).  The State also contends that, if the court erred in
admitting the photograph, the error was harmless because the record contains
other evidence of Kalex's racism.
	[¶10]	We review a court's determination of the admissibility of a
photograph pursuant to Rule 403 for an abuse of discretion.  State v. Francis,
539 A.2d 213, 215 (Me. 1988).
	[¶11]	Rule 403 of the Maine Rules of Evidence provides that, "[a]lthough
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."  A photograph is admissible if it
truly and accurately depicts what it purports to represent, is relevant to some
issue involved in the litigation, and its probative value is not outweighed by
any tendency it may have toward unfair prejudice.  State v. Plante, 623 A.2d
166, 167 (Me. 1993).
	[¶12]	We stated that an array of "mug shots" including a photograph of
the defendant was inadmissible pursuant to Rule 403 because it had "an
undue tendency to move the jury to convict [the defendant] on the improper
basis of his criminal record."  State v. Almurshidy, 1999 ME 97, ¶ 17, 732 A.2d
280, 285; see also State v. Robbins, 666 A.2d 85, 87-88 (Me. 1995) (holding that
the court erred in admitting a photographic array because there were no
identification issues relating to the array and the "mug shot" of the defendant
unfairly besmirched his character).  We also held that a court erred in
admitting a gruesome photograph of a victim when the "essential evidentiary
value in the photograph [was] tenuous in the extreme" because it did not
advance any material facts beyond the trial testimony and there was no dispute
concerning identification.  State v. Conner, 434 A.2d 509, 512-13 (Me. 1981). 
By contrast, when a photograph of a victim had "slight evidentiary value," but
was not gruesome, we held that it was within the court's discretion to admit
the photograph early in the trial before it was clear the defendant would not
dispute the cause of death.  State v. Joy, 452 A.2d 408, 412-13 (Me. 1982).
	[¶13]	We conclude that in the circumstances of this case the admission
of the photograph was not so unfairly prejudicial that it was beyond the scope
of the court's discretion to admit it for its probative value in determining
whether Kalex's behavior in 1999 contributed to a reasonable fear on Holland's
part that Kalex would act on his July 25, 2000, threat.  The photograph was
not gruesome and did not suggest any convictions or other acts unsupported by
testimony.

	B.	Reputation Testimony

	[¶14]	Kalex contends that the court should have admitted the testimony
of five witnesses that Holland had a reputation for untruthfulness.  According
to Kalex, the error is not harmless because, as a result, the jury was not
permitted to hear any testimony to undermine Holland's credibility.
	[¶15]	The State contends that the court did not abuse its discretion in
refusing to admit the evidence of untruthfulness because only one person
spoke of Holland being untruthful, "as opposed to being manipulative,
dishonest, or just generally disliked."  The State further contends that any
error was harmless because other witnesses corroborated Holland's testimony.
	[¶16]	Rule 608(a) of the Maine Rules of Evidence provides, in pertinent
part, that "[t]he credibility of a witness may be attacked or supported by
evidence of reputation, but subject to these limitations: (1) the evidence may
refer only to character for truthfulness or untruthfulness . . . ."  The Maine
rule, unlike the federal rule, "does not permit character evidence in the form of
the witness' own opinion."  State v. Cyr, 2001 ME 35, ¶ 8, 767 A.2d 307, 310;
Fed. R. Evid. 608; see also Inhabitants of Phillips v. Inhabitants of Kingfield, 19
Me. 375, 379 (1841) (stating, even before the adoption of the rule, 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").  "Nor does Rule 608 authorize opinion evidence of untruthfulness
based on prior instances of conduct."  Field & Murray, Maine Evidence, § 608.1
(2000 ed.).  A person is truthful if he provides "a fully accurate account of
events."  Black's Law Dictionary 1520 (7th ed. 1999).
	[¶17]	Evidence regarding reputation "'must embody the collective
judgment of the community and must be derived from a group whose size
constitutes an indicium of inherent reliability.'"  State v. Ricker, 2001 ME 76, ¶
6, 770 A.2d 1021, 1024 (quoting State v. Mazerolle, 614 A.2d 68, 73 (Me. 1992)). 
The community in which the impeached party has the reputation for
untruthfulness must be sufficiently large; "[i]f the group is too insular, its
opinion of the witness' reputation for truthfulness may not be reliable because
it may have been formed with the same set of biases."  Id.  
	[¶18]	Although we have not provided a specific definition of what
constitutes a sufficiently large and diverse community, we have held that
reputation testimony was admissible that was derived from knowledge of a
fifty-person sample.  State v. Rytky, 476 A.2d 1152, 1154-55 (Me. 1984).  In
addition, we have made clear that reputation testimony may be offered by a
person who has knowledge of a witness in only one sphere of that person's life. 
State v. Lambert, 104 Me. 394, 398-99, 71 A. 1092, 1093-94.{4}    "[A] man may
have one reputation in the suburb of his residence and another in the
commercial or industrial circles of his place of work. . . . There is no reason
why the law should not recognize this."  Id., 104 Me. at 398, 71 A. at 1093
(internal quotation marks omitted).  We stated that the defendant's "general
reputation as to honesty may have been better established and more definitely
understood in the community where the witnesses [rather than the defendant]
lived and where they had numerous business dealings with him."  Id. (internal
quotation marks omitted).
	[¶19]	By contrast, we have held that reputation testimony is
inadmissible when the community of which the witness testifies is a four-
person neighborhood sample, State v. Kim, 2001 ME 99, ¶ 5, 773 A.2d 1051,
1054; certain members of a child's family on her father's side, Ricker, 2001 ME
76, ¶¶ 7-8, 770 A.2d at 1024;  a small and discrete group of friends, State v.
Cyr; 2001 ME 35, ¶¶ 8-9, 767 A.2d at 310; a six-person neighborhood sample,
Mazerolle, 614 A.2d at 73; or a child's small community of two or three
teachers, State v. Walker, 506 A.2d 1143 (Me. 1986).
	[¶20]	"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."  Ricker, 2001 ME 35, ¶ 8, 770 A.2d at
1024.  We review the exclusion of reputation evidence for an abuse of
discretion.  Id. ¶ 3, 770 A.2d at 1023.
	[¶21]	Without addressing the purported reputation evidence offered by
Ordway, McLaughlin, Kent and Kalex, himself, Everest testified that she spoke
with approximately fifty people in the greater Biddeford area who stated
Holland was untruthful.  The court exceeded the bounds of its discretion in
concluding that Everest's testimony about Holland's reputation in the broader
community lacked sufficient indicia of reliability to establish a foundation for
admissibility.    Although Everest is Kalex's girlfriend, which might undermine
her credibility, such credibility determinations are properly within the province
of the factfinder and go to the weight of the testimony as opposed to its
admissability.  See In re Amberley D., 2001 ME 87, ¶ 21, 775 A.2d 1158, 1165. 
	[¶22]	"An error is harmless if it is highly probable that the error did not
affect the factfinder's judgment."  State v. Joel H., 2000 ME 139, ¶ 21, 755 A.2d
520, 525 (internal quotation marks omitted).  We cannot say that the court's
error in refusing to admit this reputation testimony was harmless because
Holland was the only person who testified regarding the statements Kalex
made when he pulled his truck over.  Because Kalex was not permitted to
impeach the credibility of the only witness who testified about the threat, a
necessary element of terrorizing, the court's error was not harmless. 
	The entry is:
Judgment vacated. Remanded to the
Superior Court for further proceedings
consistent with this opinion.

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.). [¶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 (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, 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, Biddeford, 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.

Attorneys for State: Michael P. Cantara, District Attorney Tara K. Bates, Assistant Dist. Atty. (orally) P O Box 399 Alfred, ME 04002 Attorney for defendant: Kevin R. Heffernan, Esq. (orally) 555 Forest Avenue Portland, ME 04101
FOOTNOTES******************************** {1} . The terrorizing statute provides, in pertinent part: 1. A person is guilty of terrorizing if that person communicates to any person a threat to commit or to cause to be committed a crime of violence dangerous to human life, against the person to whom the communication is made or another, and the natural and probable consequence of such a threat, whether or not such consequence in fact occurs, is: A. To place the person to whom the threat is communicated or the person threatened in reasonable fear that the crime will be committed . . . . 17-A M.R.S.A. § 210(1)(A). {2} . Before trial, the court dismissed the count of interference with constitutional or civil rights on the ground that there was insufficient evidence to prove the elements of the claim. {3} . The evidence conflicted regarding whether Kalex was the man in the photograph. Kalex testified that "[t]here's no identification on that picture that says that is me." He stated that he had never worn a KKK outfit before. By contrast, Biddeford police officer Roy Sherman testified that he had seen Kalex in the outfit after robed figures fled from Holland's residence, and Margie Berkovich, a detective at the Attorney General's office, testified that Kalex told her it was a ghost costume he wore held up by a pizza box so he could easily flip up the hood to drink. {4} . The evidence of the defendant's reputation for truthfulness in the business community in Lambert was relevant to the larceny charge brought against him and was not offered as impeachment evidence; the court's reasoning regarding the reliability of such reputation testimony may nonetheless be applied in the present case. {5} . 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. {6} . See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). {7} . Paragraph 8 in Ricker states the diversity element of the "representative of the community" requirement.