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State v. Stanley2/9/2000
edge of the 1991 stabbing would have helped explain his apprehension of danger, and would have aided the jury in determining whether his apprehension was reasonable. Accordingly, we cannot say that it is highly probable that the absence of this evidence did not affect the jury's judgment.
B. Evidence of Reputation
While evidence of a person's character is not admissible to prove that that person acted in conformity therewith, see M.R. Evid. 404, this rule "does not keep out the victim's reputation for violence, proved to have been known to the accused before the event, for the purpose of showing his reasonable apprehension of immediate danger," id. advisor's note; see also State v. Leone, 581 A.2d 394, 400 n.4 (Me. 1990); Dutremble, 392 A.2d at 46-47; Field & Murray § 404.3 at 129. In the present case, Stanley did not seek to introduce evidence of McVicar's reputation to demonstrate that she was the first aggressor in the altercation. Rather, he sought to demonstrate that his awareness of her reputation caused him to apprehend that he was in imminent danger. Accordingly, Stanley was permitted to testify as to McVicar's reputation when she consumed alcohol.
To buttress his credibility and the reasonableness of his testimony with respect to McVicar's reputation for violence while intoxicated, Stanley sought to introduce the testimony of other witnesses from the community with knowledge of this reputation. However, after a voir dire of three witnesses, the court concluded that the witnesses had not established a proper foundation for admitting their testimony. We review a trial court's determinations of foundational issues for an abuse of discretion. See State v. Brown, 592 A.2d 163, 165 (Me. 1991); Field & Murray § 405.2 at 150.
Our past decisions establish that evidence of a homicide victim's violent nature or reputation for violence or aggressive behavior is inadmissible to support a claim of self-defense, where the defendant was unaware of the evidence at the time of the incident. See Leone, 581 A.2d at 399-400; Mitchell, 390 A.2d at 501. Specifically, such evidence is not admissible to corroborate testimony by the defense regarding reputation of or acts by the victim See Leone, 581 A.2d at 399-400. However, where the defense establishes awareness of the offered evidence at the time of the incident, it is admissible on the issue of self-defense to show reasonableness of the defendant's acts or apprehension of danger. See id. at 400 n.4; Dutremble, 392 A.2d at 46-47.
The record of the offer of proof contains significant testimonial evidence of discussions in the small community of Indian Township regarding McVicar's reputation for violence when she was intoxicated. The record also includes evidence of Stanley's regular presence in the community and in groups where such discussions of McVicar's reputation occurred. The record is unclear, however, as to whether Stanley was present when McVicar's reputation was being discussed or was otherwise made aware of these discussions prior to November 8, 1996.
Because the case is being remanded for other reasons, and the record on the issue is unclear, we need not resolve this issue at this time. On remand, however, consideration of the admissability of this reputation evidence should be guided by the principles stated in this opinion.
The entry is:
Judgment vacated. Remanded to the Superior Court for further proceedings consistent with this opinion.
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