State v. Brine

716 A.2d 208, 1998 Me. 191, 1998 Me. LEXIS 188
CourtSupreme Judicial Court of Maine
DecidedJuly 29, 1998
StatusPublished
Cited by3 cases

This text of 716 A.2d 208 (State v. Brine) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brine, 716 A.2d 208, 1998 Me. 191, 1998 Me. LEXIS 188 (Me. 1998).

Opinion

CLIFFORD, Justice.

[¶ 1] Michael Brine appeals from a judgment convicting him of attempted murder (class A) and aggravated assault with a dangerous weapon (class B) in violation of 17-A M.R.S.A. §§ 152,1 2012 & 208 3 (1983 & Supp.1997), entered in the Superior Court (Oxford, Delahanty, /.). Brine contends that the court erred in admitting certain evidence. Finding no error, we affirm the judgment.

[¶ 2] Alerted to a fight in progress on the evening of August 11, 1996, Norway police found Leroy Howard suffering from a knife wound. Howard testified that he was stabbed in the hallway of his apartment building by Brine and Michael Everett.4 Howard was hospitalized and treated for potentially life-threatening injuries. Howard’s girlfriend, Laura Mason, testified that she had had a previous two-and-a-half year relationship with Brine, that Brine is the father of her son, and that Brine and Howard’s friendship “went bad” at some point. Everett testified that he knocked on the door of Howard’s apartment and when Howard opened it “everybody just started beating on [Brine].” He also testified that as he and Brine drove from the crime scene, Brine indicated to Everett that he had stabbed Howard, and showed Everett a knife when they got out of the ear.

[¶3] A witness testified to being in an apartment with a large number of people shortly after the stabbing, and seeing a man he later identified as Brine, who “pulled out a knife and then, like, showed it to everybody and explained stabbing somebody.” Other witnesses testified to having seen Brine [210]*210showing people a knife on the evening of August 11th, although a former girlfriend of Brine’s testified that Everett admitted to her that he had stabbed Howard. Police located Everett standing' out in the street shortly after the stabbing, and arrested him. Everett testified that “he didn’t want to run” because he “had no reason to.” Brine was not located until the next day in a search of a local residence. Brine provided several different versions to police as to how Howard was stabbed.5

[¶4] The State called Evelyn Ashby of Freeport as a witness. Ashby is married to Brine’s grandfather. On the night of the stabbing Ashby called the Freeport police, and, in a tape-recorded call, sought to verify whether there had been a stabbing in the South Paris area, because her “nephew” had told her that he had stabbed someone. The transcript clearly shows that Ashby believed Brine had murdered someone.6

[¶ 5] Ashby did not incriminate Brine when she began to testify at Brine’s trial, but, rather, stated that Brine had telephoned her on the night of the stabbing to tell her that he had “been near a stabbing” and that he wanted to come down to her home in Freeport. When asked whether she recalled telling a Freeport police officer that Brine had murdered someone, she said she did not recall saying so, and stated that she had been “surprised when I read there that I am quoted as saying it because I have always known Michael, who has lived with me, to be suicidal, not homicidal.” Over Brine’s objection based on M.R. Evid. 403,7 the tape and a typed transcript of Ashby’s telephone call to the Freeport police were admitted in evidence as prior inconsistent statements, and the tape was played for the jury. Brine filed this appeal after the jury found him guilty of both counts.

[¶ 6] Brine contends that the tape and transcript evidence of Ashby’s statements to the Freeport police amounted to an unfairly prejudicial confession and that it constituted character evidence admitted contrary to M.R. Evid. 404.8

I.

[¶ 7] The State sought to introduce the tape and transcript “only as it applies to impeach the testimony of Ashby as a prior inconsistent statement.” Over Brine’s objection, the court allowed the jury to hear the tape and to read the transcript, and it gave a limiting instruction to the jury:

I would also instruct you, ladies and gentlemen, that this taped conversation is being offered only as it applies possibly to impeach the testimony of Evelyn Ashby as a prior inconsistent statement. It is not offered for the truth that any — of anything that is asserted in there.

[¶ 8] Brine contends that the State used the impeachment argument as a pretext to get what amounted to a confession before the jury, that otherwise would have been impermissible hearsay.

[211]*211[¶ 9] We have “consistently held that a witness may be impeached by evidence that he made an earlier, out-of-court statement inconsistent with his trial testimony.” State v. Robinson, 561 A.2d 492, 494 (Me. 1989). There are “two preconditions” before such statements may be admitted, however: “[T]he out-of-court statement must be truly inconsistent with the witness’s trial testimony, and the impeachment must be based on a ‘relevant’ and not a ‘collateral’ matter.” Id. (citing State v. Allen, 462 A.2d 49, 52 (Me. 1983)). Even if the prior statement satisfies all the prerequisites for admissibility as a prior inconsistent statement, a trial court must further ask whether the danger of unfair prejudice substantially outweighs the probative value of the evidence. State v. Dodge, 397 A.2d 588, 592 (Me.1979); M.R.Evid. 403. The danger of unfair prejudice arises from the risk that the out-of-court statement would be used by the jury as substantive proof of the defendant’s guilt. Dodge, 397 A.2d at 592. “The trial court has broad discretion in determining whether the risk of prejudice to the defendant outweighs the probative value of evidence.” State v. Hurd, 360 A.2d 525, 527 (Me.1976). Prejudice, in this context, “means more than simply damage to the opponent’s cause. A party’s case is always damaged by evidence that the facts are contrary to his contention; but that cannot be ground for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis.... ” State v. Forbes, 445 A.2d 8, 12 (Me.1982) (quoting Hurd, 360 A.2d at 527 n. 5).

[¶ 10] Brine relies on United States v. Ince, 21 F.3d 576 (4th Cir.1994) to argue that the State improperly impeached its own witness9 to get before the jury what amounts to a confession from the defendant. The court in Ince cautioned against allowing the prosecution to impeach its own witness “by presenting what would otherwise be inadmissible hearsay if that hearsay contains an alleged confession to the crime for which the defendant is being tried.” Id. at 581. Evidence inadmissible for substantive purposes may not be purposely introduced under the pretense of impeachment. United States v. Peterman, 841 F.2d 1474, 1479, n. 3 (10th Cir.1988).

[¶ 11] In Ince, the court found the State’s use of purported impeachment evidence to be a mere pretext.

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Bluebook (online)
716 A.2d 208, 1998 Me. 191, 1998 Me. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brine-me-1998.