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State v. Albert Stanley

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 22 
Docket:	Was-98-543
Argued:	October 5, 1999
Decided:	February 9, 2000




	[¶1]  Albert Stanley appeals from the judgment entered in the
Superior Court (Washington County, Atwood, J.) on a jury verdict finding him
guilty of murder.  See 17-A M.R.S.A § 201(1)(A) (1983).{1}  Stanley contends
that the court erroneously excluded (1) evidence of his knowledge of a prior
act of violence by the victim which he had offered to support his argument
that he reasonably believed that his life was in danger and (2) evidence of
the victim's reputation for violence while intoxicated that Stanley sought to
introduce for the same purpose.  We agree that Stanley should have been
permitted to introduce his knowledge of a prior act of violence and,
therefore, vacate the judgment.
A.  The Events that Led to the Shooting

	[¶2]  Stanley had gone to Mabel McVicar's home at approximately 5:00
p.m. on the night of November 8, 1996, and the couple consumed alcohol
there for several hours before leaving to look for friends.  They made several
stops, including a trip to a store to purchase beer, before arriving at
Stanley's home at approximately 12:30 a.m.  Stanley and McVicar had argued
earlier in the evening and discussed breaking up,{2} but they had settled down
and were not arguing with each other at this point in the evening.
	[¶3]  For the next three hours Stanley and McVicar consumed beer
and welcomed guests in Stanley's home.  McVicar became involved in a
heated argument with two of the guests that culminated in McVicar
throwing them out.  Stanley recollected that one of the guests remained for
a short period of time and attempted to calm McVicar down but left because
McVicar's anger appeared to be increasing.
	[¶4]  Stanley testified that after the guests left, McVicar directed her
anger at him.  He fueled the flames of her anger by telling her she should
not have "pick[ed] on" their guests.  According to Stanley, McVicar then
began pushing and hitting him and said she "wanted to kill" him.  Stanley
asserted he shot McVicar because these events escalated to the point that
he believed it was his only option to adequately protect himself. 

B.  Stanley's State of Mind

	[¶5]  Stanley supported his belief that he was in danger by testifying
that McVicar was a strong woman who was capable of overpowering him.  He
testified that although he and McVicar were of similar physical size, his
ability to defend himself was diminished by a physical disability.{3}   The court
also allowed Stanley to testify about his personal knowledge of McVicar's
reputation for violence when she consumed alcohol, and about specific acts
of violence of which he had been the target.  The parties also stipulated that
McVicar's blood-alcohol level was .30 percent, nearly four times the legal
limit for operating a motor vehicle.{4}
	[¶6]  Stanley also sought to testify to his knowledge that McVicar,
while intoxicated, had stabbed an ex-boyfriend during an argument in 1991
and to have other members of the community testify as to McVicar's
reputation for violent behavior while intoxicated to corroborate his own
assertion to that effect.  The court, however, excluded the 1991 stabbing
incident because it found that testimony regarding a specific act of violence
would be improper character evidence and excluded the testimony of other
members of the community because it found the absence of a proper
	[¶7]  A person may justify the use of deadly force when that person
reasonably believes the other person is about to use unlawful, deadly force
against him or another person.  See 17-A M.R.S.A. § 108(2)(A)(1) (Supp.
1994).  In addition, it is an affirmative defense to a prosecution for murder
that the actor "causes the death while under the influence of extreme anger
or extreme fear brought about by adequate provocation."  17-A M.R.S.A.
§ 201(3) (1983).  As each of these defenses relies heavily on the
reasonableness of Stanley's state of mind, it was critical that Stanley be
afforded the opportunity to present the facts, as he understood them to be,
during his altercation with McVicar.
	[¶8]  Evidence of a person's character or of a person's bad acts is
generally not admissible to prove that that person acted in conformity
therewith.  M.R. Evid. 404 (emphasis added).  In applying Rule 404, we have
stated that  evidence of a victim's violent nature is "clearly inadmissible" to
prove the victim was violent on a given occasion.  See State v. Mitchell, 390
A.2d 495, 501 (Me. 1978).  Stanley, however, did not seek to admit
evidence of McVicar's 1991 stabbing and her reputation for violence while
intoxicated for that purpose.  Rather, he sought to demonstrate that his
knowledge of these facts caused him to have a reasonable apprehension of
imminent danger.  See State v. Dutremble, 392 A.2d 42, 46-47 (Me. 1978)
(error by trial court in excluding evidence of defendant's knowledge of
murder victim's reputation for violence; ruled harmless in the
circumstances).  We review the trial court's exclusion of evidence for clear
error or an abuse of discretion.  State v. Shuman, 622 A.2d 716, 718 (Me.

A.  Evidence of the Prior Bad Act

	[¶9]  We agree with the numerous jurisdictions that have admitted
evidence of prior bad acts offered for the purpose of proving the defendant's
state of mind and excluded such evidence when offered to demonstrate the
victim's character.{5}  A defendant's knowledge of prior acts of violence,
whether witnessed by or recounted to the defendant, serves to establish that
the defendant's mental judgments and physical responses during the
encounter were reasonable.  See King v. United States, 177 A.2d 912, 913
(D.C. 1962) (finding error in court's exclusion of evidence offered by the
defendant that he "had heard" that the victim had been involved in two
other fights with co-workers).{6}
	[¶10]  Stanley did not offer the evidence of the 1991 incident for the
purpose of proving that McVicar acted in conformity with her violent nature
or even to show that she had a violent nature.  Rather, he offered the
evidence for the purpose of demonstrating that his knowledge of that
incident caused him to reasonably apprehend that his life was in danger
during the event in question.  In State v. Bennett, 658 A.2d 1058, 1062 (Me.
1995), we stated that the exclusion of such evidence is not erroneous
"[u]nless the accused is aware of the victim's reputation or past acts." 
(Emphasis added.)  Conversely, where the accused is aware of the victim's
past acts, it is erroneous for the trial court to exclude the evidence.  Field &
Murray, Maine Evidence  404.3 at 129 (2000 ed.).
	[11]  When offered to demonstrate the reasonableness of a
defendant's apprehension of danger, evidence of prior violent acts is
essentially proof of the reasonableness of the defendant's belief with respect
to the violent character of the victim, and not evidence of the victim's
character.  See Field & Murray § 404.3 at 129.  Thus, we conclude that it
was error for the trial court to exclude the evidence of the 1991 stabbing.
	[¶12]  An error that is properly preserved for review, as is the case
here, will result in a judgment being vacated unless the error is harmless. 
"An error is harmless if it is highly probable the error did not affect the
judgment."  State v. Robbins, 666 A.2d 85, 88 (Me. 1995); see also M.R.
Crim. P. 52(a).  Stanley's state of mind was critical to his defense.  His
knowledge 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

	[¶13]  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.
	[¶14]  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.
	[¶15]  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.
	[¶16]  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.
	[¶17]  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.

Attorneys for State: Andrew Ketterer, Attorney General Donald W. Macomber, Asst. Attorney General (orally) Lisa Pelkey Marchese, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006 Attorney for defendant: Jeffrey C. Toothaker, Esq. (orally) Toothaker & Chong 14 High Street Ellsworth, ME 04605
FOOTNOTES******************************** {1} . 17-A M.R.S.A. § 201(1)(A) (1983) provides that a person is guilty of murder if "he intentionally or knowingly causes the death of another human being." {2} . The State theorized that Stanley killed McVicar because he was angered by her desire to terminate their relationship. There was evidence, however, that the couple shared an off and on relationship and that it was quite common for them to break up and then reunite. {3} . Stanley had suffered from polio as a child and had limited use of his legs. {4} . In Maine, the legal limit for operating a motor vehicle is a blood-alcohol level of .08 percent. See 29-A M.R.S.A. § 2411. {5} . Numerous jurisdictions have determined that evidence of prior violent acts are admissible if the defendant was aware of the acts at the time of the event in question. See Harris v. United States, 618 A.2d 140, 143 (D.C. 1992) (stating defendant may introduce prior acts of violence committed by the victim provided the defendant knew of them); State v. Daniels, 465 N.W.2d 633, 636 (Wis. 1991) (stating defendant may support claim of self-defense by establishing what the defendant believed the victim's turbulent and violent character to be by proving "prior specific instances of violence within his knowledge at the time of the incident"); State v. Tribble, 428 A.2d 1079, 1085 (R.I. 1981) (stating that "[e]vidence of specific acts of violence committed by the victim against third parties of which acts the defendant was aware would enlighten the jury on the defendant's state of mind at the time of the confrontation."); see also Harris v. State, 400 P.2d 64, 70 (Okla. Crim. App. Ct. 1965) (stating the defendant is to be given great latitude in the introduction of this form of testimony). {6} . In Jones v. State, 284 A.2d 635, 640 (Md. Ct. Spec. App. 1971), a Maryland court rationalized the admission of such evidence as follows: [c]ertainly . . . analogies of the law (apart from the common sense of the situation) favor such evidence; for if particular vicious acts of an animal are relevant to show that its owner was warned of its viciousness, and if particular misconduct of an employee is relevant to show that his employer was warned of his incompetency, then particular deeds of unscrupulous violence may well be deemed relevant to show an apprehension of violence from such a person. The true solution is to exercise a discretion, and to admit such facts when common sense tells us they could legitimately affect a defendant's apprehensions. Id. at 640.