10 Mass. App. Ct. 871

August 22, 1980

The defendant appeals from his conviction on an indictment charging aiding, counseling or procuring the burning of a building (G. L. c. 266, Section 2) on the sole ground that the trial judge erred in excluding evidence as to the bad reputation for truth and veracity of a key prosecution witness. There was no error.

The key witness had been a short order cook at the defendant's restaurant. The excluded evidence was that of a waitress at the restaurant who testified at a voir dire hearing that among her fellow workers, namely two waitresses and a cook, the key witness's reputation was that "she wouldn't know the truth if it hit her in the face."

Although by reason of G. L. c. 233, Section 21A, evidence of a person's reputation is not limited to his reputation in the community in which he resides, but can also be shown by his reputation in the community in which he works, the trial judge had discretion to exclude such evidence if he determines that it is based on the opinions of too limited a group. See Commonwealth v. Belton, 352 Mass. 263, 269, cert. denied, 389 U.S. 872 (1967).

This is so because "evidence of specific . . . opinions may not be used to prove reputation . . . ." Commonwealth v. United Food Corp., 374 Mass. 765, 769 (1978). The impeaching evidence must be of general reputation and not the private opinions of a few persons. F.W. Stock & Sons v. Dellapenna, 217 Mass. 503, 506 (1914). Commonwealth v. Belton, 352 Mass. at 269. See generally Leach & Liacos, Massachusetts Evidence 121-122 (4th ed. 1967). Compare Fed.R.Evid. 608(a) and proposed Mass.R.Evid. 608(a) (July, 1980). It is only where the sources are sufficiently numerous and general that they are viewed as trustworthy. Commonwealth v. United Food Corp., 374 Mass. at 769. See Commonwealth

Page 872

v. Edmonds, 365 Mass. 496, 503-504 (1974). See also McCormick, Evidence Section 44, at 92-93 (2d ed. 1972); People v. Colantone, 243 N.Y. 134, 139 (1926); People v. Paisley, 214 Cal. App. 2d 225, 233 (1963).

"We hold that, in view of the extremely narrow compass of the [witness's] business associations . . . the judge in his discretion was warranted in ruling that there was not a sufficient basis for reputation testimony." Commonwealth v. Belton, 352 Mass. at 269.

Judgment affirmed.