Gill v. Thomas

Citation83 F.3d 537
Decision Date05 April 1996
Docket NumberNo. 95-2303,95-2303
PartiesMichael GILL, Plaintiff, Appellant, v. Scot THOMAS, etc., et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Cynthia A. Dill, Portland, ME, for appellant.

Edward R. Benjamin, with whom Anne Skopp and Preti, Flaherty, Beliveau & Pachios, Portland, ME, were on brief, for appellees.

Before SELYA, STAHL and LYNCH, Circuit Judges.

STAHL, Circuit Judge.

Plaintiff-appellant Michael Gill sought redress under 42 U.S.C. § 1983 in Maine's federal district court for a police officer's alleged use of excessive force in arresting him following a routine traffic stop. After a two-day trial before a magistrate judge, 1 the jury returned a verdict for the police officer. Gill appeals the magistrate judge's denial of his in limine motion to preclude evidence of his prior misdemeanor convictions. Because we find that Gill waived his right to appeal the in limine ruling, we affirm.

I. Background
A. The Incident

On the night of November 27, 1993, Officer Scot Thomas of the South Berwick, Maine, Police Department stopped Michael Gill for driving with defective taillights. After obtaining Gill's driver's license and registration, Officer Thomas contacted the police dispatcher from his cruiser and learned that Gill's privilege to operate a motor vehicle in Maine had been suspended. Back at Gill's truck Officer Thomas notified Gill of the suspension and the resulting need to arrest him.

Gill and Officer Thomas both agree that the following sequence of events occurred thereafter: (1) Gill claimed that the suspension was a mistake, (2) Gill initially refused Thomas's request to place his hands on the cruiser, (3) Thomas's police dog bit Gill's arm, (4) Gill threatened to sue Thomas, and (5) Thomas sprayed Gill's face with mace. Predictably, however, Gill's and Thomas's stories diverge on the question of their respective roles in the foregoing events. While Gill maintains that he offered no physical resistance to Thomas and therefore the dog's attack and the mace were an excessive use of force, Officer Thomas contends that Gill physically resisted his attempts to effect the arrest and therefore the amount of force was justified.

B. The In Limine Motion and Ruling

Cognizant that his credibility would be the decisive factor at the impending jury trial, Gill filed a motion in limine seeking to preclude Thomas from inquiring about five of Gill's seven misdemeanor convictions. 2 In particular, Gill sought to exclude evidence of his two convictions for simple assault as well as his convictions for resisting arrest, criminal mischief, and willful concealment. Gill argued that because none of the five misdemeanors involved dishonesty or false statement or was punishable "by death or imprisonment in excess of one year," they could not be admitted under Rule 609 of the Federal Rules of Evidence. Thomas responded that while four 3 of the five misdemeanors were outside the parameters of Rule 609, each was nonetheless admissible to impeach Gill's answer to interrogatory # 7.

Interrogatory # 7 asked:

If you have been convicted of a crime involving potential punishment of one year or more or involving dishonesty or moral turpitude, please set forth the nature of the crime, the date of each conviction, the name of each court where the conviction took place, and a full description of any and all sentences imposed.

(Emphasis added). Gill replied "No." Thomas argued that Gill's failure to list the five misdemeanors (each of which involved terms of imprisonment of "up to one year") as well as the convictions for filing a false report and theft by deception (both of which patently involved dishonesty) constituted a false statement under oath, and Thomas should be permitted to impeach Gill with this falsity at trial.

After a hearing, the magistrate judge denied the in limine motion and stated that he would permit Thomas to question Gill about his convictions for the limited purpose of illustrating the inconsistency between Gill's interrogatory answer and "the apparent fact that he has been convicted for a number of crimes which would have required him to answer that interrogatory differently." The magistrate judge also indicated that he would give a limiting instruction to the jury if and when such testimony was elicited.

C. Presentation of the Misdemeanor Evidence at Trial

After opening arguments, Gill took the stand as his own first witness. In response to his attorney's questions, Gill described the events surrounding his arrest and then proceeded to enumerate each of his criminal convictions and describe the circumstances surrounding them (to the extent he could remember). For instance, after testifying that he had been convicted of simple assault on June 10, 1985, Gill recalled the circumstances of that crime by stating, "I think that was involved again with the DWI." Gill was alluding to his previous testimony about a driving-while-intoxicated incident following which he was convicted for resisting arrest.

Gill then addressed his answer to interrogatory # 7. Admitting that his answer was inaccurate, Gill explained that he had mistakenly read the interrogatory to be asking about felonies and believed that his convictions for filing a false report and theft by deception did not involve dishonesty. Finally, Gill squarely addressed his credibility in light of his checkered criminal past and erroneous answer to interrogatory # 7, testifying as follows:

Q: Mr. Gill, in light of this long criminal history that we've just gone through, including some crimes which involved some kind of dishonesty, how do you expect the jury to believe the story you've just told us about what happened with Officer Thomas?

A: ... I quit drinking in 1989 with the help of a friend and have been trying since then to turn my life around.... Things that I can change about myself and I have been changing, and I have since 1989 is I'm not a liar, and I'm not a thief.

On cross-examination, Officer Thomas also questioned Gill about his answer to interrogatory # 7. For each of Gill's convictions, Thomas asked whether Gill had listed that particular conviction in his answer to interrogatory # 7, to which Gill repeatedly answered that he had not. In the course of inquiring about Gill's January 1983 conviction for resisting arrest and his June 10, 1985, conviction for assault, Thomas highlighted what had already been brought out on direct, i.e., that both convictions involved a police officer who was trying to place Gill in custody.

Having offered the evidence of his criminal record himself, Gill neither requested a jury instruction limiting the purpose for which this evidence could be used nor objected to Thomas's questions regarding these convictions on cross-examination. The jury subsequently returned a verdict for Officer Thomas, and this appeal ensued.

II. Analysis

Gill appeals the magistrate judge's denial of his in limine motion, arguing that the five misdemeanor convictions were inadmissible under Rule 609 of the Federal Rules of Evidence. Gill maintains that but for the magistrate judge having indicated that he would permit Thomas to raise them on cross-examination, Gill never would have...

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22 cases
  • Coleman v. Sopher, 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...to resurrect issue in timely fashion, proponent is deemed to have abandoned point and cannot later complain on appeal); Gill v. Thomas, 83 F.3d 537 (1st Cir.1996) (when in limine motion to exclude evidence is denied counsel must renew objection at trial to preserve right to appeal admission......
  • Sheffield v. Superior Ins. Co.
    • United States
    • Court of Appeal of Florida (US)
    • June 30, 1999
    ...v. Johnson, 720 F.2d 519, 522 (8th Cir.1983); see also United States v. Ohler, 169 F.3d 1200, 1202-04 (9th Cir.1999); Gill v. Thomas, 83 F.3d 537, 541 (1st Cir.1996); Wactor v. Spartan Transp. Corp., 27 F.3d 347, 350 (8th Cir.1994); United States v. Williams, 939 F.2d 721, 724-25 (9th Cir.1......
  • Garcia v. V. Suarez & Co., 01-2015 (DRD).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • September 30, 2003
  • Vinick v. U.S.A.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 8, 1999
    ...Vinick who introduced much of the evidence from outside of the quarters in question and thus waived the objection. See Gill v. Thomas, 83 F.3d 537, 541 (1st Cir. 1996). Moreover, Vinick never objected to the government's introduction of such evidence. Therefore, review of the district court......
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8 books & journal articles
  • Witnesses
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2016 Contents
    • July 31, 2016
    ...his case-in-chief testimony, then he or she waives any right to object to admission of evidence of prior convictions. Gill v. Thomas , 83 F.3d 537 (1st Cir. 1996). Remember, also, that although ordinarily on cross examination the details of prior convictions §341.3 WITNESSES 3-72 should not......
  • Witnesses
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2017 Contents
    • July 31, 2017
    ...his case-in-chief testimony, then he or she waives any right to object to admission of evidence of prior convictions. Gill v. Thomas , 83 F.3d 537 (1st Cir. 1996). Remember, also, that although ordinarily on cross examination the details of prior convictions should not be presented to the j......
  • Impeachment
    • United States
    • James Publishing Practical Law Books Trial Evidence Foundations Witnesses
    • May 5, 2019
    ...his case-in-chief testimony, then he or she waives any right to object to admission of evidence of prior convictions. Gill v. Thomas , 83 F.3d 537 (1st Cir. 1996). WITNESSES §341.3 WITNESSES 3-84 Remember, also, that although ordinarily on cross examination the details of prior convictions ......
  • Witnesses
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2018 Contents
    • July 31, 2018
    ...his case-in-chief testimony, then he or she waives any right to object to admission of evidence of prior convictions. Gill v. Thomas , 83 F.3d 537 (1st Cir. 1996). Remember, also, that although ordinarily on cross examination the details of prior convictions should not be presented to the j......
  • Request a trial to view additional results

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