Commonwealth v. ArthurCommonwealth v. Arthur
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- Before:
- Laurence
Michael Arthur presents four errors on appeal from his conviction on two of four indictments charging indecent assault and battery on his minor stepdaughter, Lisa. 1 We need deal at length with only one: the trial judge’s exclusion of the defendant’s proffered evidence of Lisa’s bad reputation for truthfulness. We agree with Arthur that the judge committed prejudicial error in refusing to admit evidence of Lisa’s reputation for lying and exaggerating from two of Lisa’s female eighth grade classmates.
In contrast, defense counsel here established, through the impeaching witness’s voir dire: a discrete, identifiable community familiar with Lisa (her middle school eighth grade class of 150 students); a large group of persons in that community who had expressed views about Lisa’s reputation for veracity (fifty or sixty classmates); and a witness who was a member of that community, had known Lisa for at least six years, and was in a position to know of that reputation. In
Gomes,
we recognized that such a school group might be an acceptable community from which reputation may be drawn.
The judge also erred in ruling that the reputation witness based her testimony on specific instances of lying. It is unquestioned that evidence of specific events and personal opinions are not admissible to prove reputation, see Commonwealth v. United Food Corp., 374 Mass. 765, 769 (1978), but those truisms are not applicable here. Defense counsel did not attempt to introduce evidence of specific instances of Lisa’s lying. Only during the Commonwealth’s cross-examination, and in response to explicit questions seeking examples of such lying, did the reputation witness mention any particular events. It was entirely proper for the cross-examiner to test the witness’s knowledge of Lisa’s reputation by asking for specifics regarding the events and opinions that formed the basis for that reputation. See Commonwealth v. O’Brien, 119 Mass. 342, 345-346 (1876); Walker v. Moors, 122 Mass. 501, 504-505 (1877); Clark v. Eastern Mass. St. Ry., 254 Mass. 441, 443 (1926).
The judge, however, appeared to confuse this legitimate effort to discredit the impeaching witness with the foundational requirements for reputation testimony, which were sat
(Chadbourn Rev. 1970, 1972, 1974, 1978). 5 The impeaching witness’s direct voir dire examination established that among “practically all the kids that know her,” at least fifty to sixty (and possibly as many as one hundred and fifty) individuals in her school class, Lisa had a reputation for lying and exaggeration. That was “impeaching evidence . . . of general reputation and not the private opinions of a few persons.” Commonwealth v. LaPierre, 10 Mass. App. Ct. at 871. It would undermine the common law and statutory principles of admissibility to permit qualifying general reputation testimony to be excluded by cross-examination eliciting specifics as to the source or basis of the evidence. The thrust of such cross-examination goes to the weight of the testimony and is a matter for the “jury under appropriate instructions. See F.W. Stock & Sons v. Dellapenna, 217 Mass. 503, 507 (1914).
Given the crucial role of Lisa’s testimony to the prosecution, as the victim of and only eyewitness to the crimes charged, and the materiality of the impeaching reputation evidence, the exclusionary ruling was highly prejudicial, and we order a new trial on that’ ground alone.
We comment briefly on other issues raised by the appeal that may arise at any retrial.
1.
Evidence of prior bad acts.
We assume that Arthur’s complaints about the judge’s admission of testimony from Lisa, her mother, and a police detective, regarding prior interactions between Arthur and Lisa of a sexual nature that were not the subject of any indictment, will be appropriately addressed in pretrial proceedings. Evidence of such prior sexual contacts may be admissible to show inclination to commit the acts charged in the indictments if sufficiently similar and not too remote in time. See
Commonwealth
v.
King,
387
2.
Access to Department of Social Services (DSS) records.
As to the issue of Arthur’s right to discovery of the
3.
Jury instructions on fresh complaint.
Arthur’s contention that the judge’s charge failed to inform the jury that they should not consider the prosecution’s fresh complaint evidence unless they themselves found that it was in fact sufficiently fresh does not strike us as persuasive. The instructions, read as a whole, did convey to the jurors that they must make that preliminary determination, as the authorities require. See
Commonwealth
v.
Dockham,
405 Mass. 618, 626-627 (1989);
Commonwealth
v.
Densten,
23 Mass. App. Ct. 981, 982 (1987). Any fresh complaint instructions on retrial will presumably be clear and explicit as to this “ulti
Judgments reversed.
Verdicts set aside.
Notes
We use a pseudonym.
Defense counsel did not conduct a voir dire of the second witness because of the similarity of her proposed testimony.
“A party’s reputation is based on information from sources in the community who have come in contact with the person in question and who have the means of knowing what that person’s general character is. ‘It is what is said of the person under inquiry in the common speech of his neighbors and members of his community or territory of repute, from which his reputation for truth or falsehood arises, and not what the impeaching witness may have heard others say who numerically may be few and insignificant.’ F.W. Stock & Sons v. Dellapenna, 217 Mass. 503, 506 (1914). A judge has discretion to exclude evidence of reputation if he determines that it is based on the opinions of too limited a group. Commonwealth v. LaPierre, 10 Mass. App. Ct. 871 (1980). ‘It is only where the sources are sufficiently numerous and general that they are viewed as trustworthy.’ Ibid.” Commonwealth v. Gomes, 11 Mass. App. Ct. at 933.
Compare F.W. Stock & Sons v. Dellapenna, 217 Mass. 503, 504-507 (1914) (opinions of “more than two or three” fellow flour dealers and unspecified fellow “Italians who lived in Lynn” adequate bases for reputation evidence). Contrast Commonwealth v. Baxter, 267 Mass. 591, 593 (1929) (five members of the residential community insufficient basis); Commonwealth v. Belton, 352 Mass. 263, 267-269, cert. denied, 389 U.S. 872 (1967) (three or four coworkers insufficient); Commonwealth v. Dockham, 405 Mass. 618, 631 (1989) (one person insufficient); Commonwealth v. LaPierre, 10 Mass. App. Ct. 871-872 (1980) (three cóworkers insufficient); Commonwealth v. Gomes, supra.
The judge’s confusion, abetted by the prosecution, was understandable. The Supreme Judicial Court has acknowledged that the “distinction between general reputation and individual opinions often is difficult to determine . . . [a]nd the decisions in this Commonwealth in regard to qualifying witnesses to give reputation testimony are not easy to reconcile.” Commonwealth v. Belton, 352 Mass. 263, 269, cert. denied, 389 U.S. 872 (1967).
In a pretrial motion, Arthur sought to discover the 51A and 51B reports for this case prepared by DSS. While the Commonwealth stated that it “will not oppose discovery of DSS records deemed relevant by [the] Judge,” the court denied the motion and refused to inspect the records in camera, because Arthur never filed an affidavit setting forth specific need for the records. See
We note that under