U.S.A. v. Meserve
| Decision Date | 02 October 2001 |
| Docket Number | No. 00-2091,00-2091 |
| Citation | 271 F.3d 314 |
| Parties | (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. BRIAN EUGENE MESERVE, Defendant, Appellant. Heard |
| Court | U.S. Court of Appeals — First Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Matthew S. Robinowitz for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.
Before Lynch, Circuit Judge, Coffin, Senior Circuit Judge, and Young,* District Judge.
Brian Eugene Meserve ("Meserve") appeals from his conviction for robbery and firearms offenses in the United States District Court for the District of Maine. On appeal, Meserve claims four errors occurred during the course of his two-day trial; specifically that (A) the district court allowed a witness to repeat the out-of-court statement of a third party in violation of Federal Rule of Evidence 802, (B) the district court barred the defense from cross-examining a government witness about the omission of certain information stated at trial from her grand jury testimony in violation of Meserve's Sixth Amendment right of confrontation, (C) the government used a stale conviction to impeach a defense witness in violation of Federal Rule of Evidence 609(b), and (D) the government cross-examined a defense witness about his character for violence and his prior convictions in violation of Federal Rules of Evidence 608 and 609. Meserve further asserts that even if these errors, considered individually, do not necessitate a new trial, the cumulative effect of the errors cannot be considered harmless.
On April 24, 1998, the Ferris Market, a family-owned convenience store in Vassalboro, Maine, was robbed at gunpoint. In a four-count indictment, Meserve was charged with the robbery and the associated firearms offenses.1
Viewing the evidence adduced at trial in the light most favorable to the jury verdict, United States v. Josleyn, 99 F.3d 1182, 1185 n.1 (1st Cir. 1996), the facts are as follows: At around 6:00 p.m. on the evening of the robbery, Meserve showed his girlfriend and accomplice, Holly Grant ("Grant"), a sawed-off shotgun and told her that he was going to rob the Ferris Market. After nightfall, Meserve and Grant drove to the Ferris Market together in Meserve's car, where they waited until the store became less busy. Meserve then got out of the car, while Grant stayed behind.
Meserve, wearing a ski mask and carrying a black bag and a short gun with a brown handle, entered the Ferris Market. He forced Shawna Vashon, an employee, and Sumayah Ferris, the mother of the owner, to the floor, and ordered Amy Craig ("Craig"), a second employee, to give him the money in the cash register. Craig handed Meserve everything that was in the cash register -- one hundred dollars. Meserve then fled from the store, passing a customer on his way out of the building.
When Meserve returned to the car where Grant was waiting, he told Grant that the robbery was a "piece of cake," and that the only problem was that "an old lady gave him a hard time." During the drive away from the scene, Meserve tossed his gloves and ski mask, the bag used to carry the money, and the gun out of the car. When Meserve and Grant arrived at Meserve's mother's house, he gave Grant his sweatshirt and asked her to burn it and buried his shoes in the woods.
Later that evening, Grant and Meserve went to the Chez Paris and the Bob-In, two local bars, where they used the robbery proceeds to buy drinks. While Meserve and Grant were at the Chez Paris, Craig came into the bar and Meserve commented to Grant that Craig was working at the Ferris Market when he robbed it. Later that night, when a report about the robbery came on the evening news, Meserve remarked to Grant, "If they only knew."
At trial, Grant supplied many of the details about the robbery and Meserve's conduct afterwards. Although Grant denied any knowledge of the crime when first asked about it by Detective Sampson Pomerleau ("Detective Pomerleau") in October 1998, she later came to an agreement with the government. Grant met with prosecutors several times to go over her grand jury testimony and police reports regarding her statements. She also discussed the case with Sergeant Gerard Madden ("Sergeant Madden"), a Maine State Trooper who testified on her behalf at her child custody proceeding. Under direct examination, Grant admitted to several prior bad acts, including fraudulently using her grandmother's credit card on multiple occasions and obtaining Aid for Families with Dependent Children after she no longer had custody of her child.
Meserve presented a defense based on alibi and mistaken identity. Both Meserve's mother, Lindsay Overlock ("Overlock"), and his brother, Kevin Meserve ("Kevin"), testified that he was at home until a little after 8:00 p.m. on the evening of the robbery. Kevin testified that at approximately 8:10 p.m., he and Meserve went to the Chez Paris, where they stayed for two hours before heading to the Bob-In. Kevin also testified that he had seen Grant at the Chez Paris during the last week of August 1999, two months before the trial. Kevin stated that Grant was drinking heavily at that time, and complained to him that Sergeant Madden had been "keeping tabs on her," and that every time she met or spoke with Sergeant Madden, he would instruct her what to say at trial.
Meserve's other alibi witness, Jane Morissette ("Morissette"), a bartender at the Chez Paris, testified that she saw Meserve and his brother, Kevin, enter the bar around 8:30 p.m., but that Grant was not with them. She stated that later in the evening, Meserve told her that he was going to the Bob-In with Kevin, and asked her to let Grant know where he was when she arrived. According to Morissette, Grant entered the Chez Paris shortly thereafter and Morissette told her that Meserve had gone to the Bob-In. Morissette testified that between 11:30 p.m. and midnight, a girl named Amy (Craig) arrived at the Chez Paris. Morissette overheard Craig tell a man about a robbery that had occurred earlier that evening at a store at which she worked in Vassalboro.
On October 21, 1999, the jury convicted Meserve on all four counts. Meserve filed a motion for a new trial, which was denied on July 20, 2000. Accordingly, on August 29, 2000, Meserve was sentenced to concurrent terms of one hundred months imprisonment on Counts I, III, and IV of the indictment and to a consecutive term of one hundred twenty months on Count II of the indictment.
Generally, questions of admissibility of evidence that do not raise issues of law are reviewed for abuse of discretion. E.g., Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 251-52 (1st Cir. 1995). During the government's case in chief, Detective Pomerleau was permitted to testify over the objection of the defense that he drove by Meserve's house on the night of the robbery "to see exactly where the subject was living." Detective Pomerleau further testified, again over objection, that Meserve became a suspect in the case because he matched the description of the robber and because Craig thought Meserve might have been the robber because she knew him. Meserve asserts that this testimony constitutes hearsay and is inadmissible under Federal Rule of Evidence 802. The government argues, however, that the district court admitted Craig's statement not for the truth of the matter asserted, but rather to explain why Detective Pomerleau drove by Meserve's home that evening. Meserve counters that the statement was nevertheless inadmissible because, if not hearsay, the fact that Detective Pomerleau drove by Meserve's home shortly after the robbery had no tendency to prove any issue in the case.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Testimony that is not offered to prove the truth of an out-of-court statement, but is instead offered to provide relevant context or background, is not considered hearsay. E.g., United States v. Mazza, 792 F.2d 1210, 1215 (1st Cir. 1986); accord United States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987); United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985). Moreover, the hearsay rule does not apply to statements that are offered to show what effect they produced on the actions of a listener. United States v. Castro-Lara, 970 F.2d 976, 981 (1st Cir. 1992).
In the instant case, however, the government's espoused reason for introducing the testimony -- to explain why Detective Pomerleau drove by Meserve's house on the evening of the robbery -- is completely irrelevant to the government's case. Detective Pomerleau did not discover any evidence or valuable information during his drive-by and made no observations pertinent to the investigation; thus, the fact that he went on such a drive has no "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Detective Pomerleau's motivation for driving by Meserve's home is likewise irrelevant. In light of the government's baldly pretextual basis for the introduction of Craig's out-of-court statement, this court is not prepared to say that the statement is admissible non-hearsay. The government is thus reduced to its claim that the error is harmless -- a matter considered below.
Meserve claims that the district court erred by not allowing the defense to cross-examine Grant concerning a discrepancy between her trial testimony and her grand jury testimony. At trial, Grant testified that...
To continue reading
Request your trial
-
United States v. Brown
...district court's evidentiary ruling on any ground apparent in the record, we reject Edward's hearsay argument. See United States v. Meserve, 271 F.3d 314, 327 (1st Cir.2001). The court did not abuse its discretion in excluding the evidence. This concludes our analysis of Edward's arguments.......
-
Miller v. Stovall
...it cannot be said that the admission of the note had a substantial and injurious effect on the jury's verdict. Cf. United States v. Meserve, 271 F.3d 314, 330 (1st Cir.2001); United States v. Abadie, 879 F.2d 1260, 1264 (5th Cir.1989). Accordingly, the Court should conclude that petitioner ......
-
Lexington Ins. v. General Acc. Ins. Co. of America
...that a sentencing issue was not forfeited as a result of counsel's failure to object after the court's ruling); cf. United States v. Meserve, 271 F.3d 314, 325 (1st Cir.2001) (motion to strike unnecessary to preserve evidentiary issue where party objected prior to trial court's ruling). Eve......
-
United States v. Taylor
...the burden falls to the government to show the error was harmless. Burgos–Montes, 786 F.3d at 114 (citing United States v. Meserve, 271 F.3d 314, 329 (1st Cir. 2001) ). An error is harmless if it "does not affect [a] substantial right[ ]," Fed. R. Crim. P. 52(a), meaning it is "highly proba......
-
Trial
...circumstances of death of victim admitted to impeach defendant’s testimony that he acted in self-defense); United States v. Meserve , 271 F.3d 314, 320-21 (1st Cir. 2001) (“prior statements, such as the grand jury testimony at issue here, that omit details included in a witness’s trial test......