Marcus Cull v. City of Orlando, Florida, et al

Filing

Opinion issued by court as to Appellant Marcus Cull. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 06/30/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14804
Non-Argument Calendar
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D.C. Docket No. 6:14-cv-00870-CEM-DAB

MARCUS CULL,
Plaintiff - Appellant,
versus
CITY OF ORLANDO, FLORIDA,
CARLOS VILLAVERDE,
individually,
MATHEW FLEURY,
individually,
Defendants – Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 30, 2017)

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Before WILLIAM PRYOR, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
Marcus Cull appeals the judgment against his complaint about excessive
force, malicious prosecution, and racial discrimination by Officers Carlos
Villaverde and Mathew Fleury of the City of Orlando, Florida. See 42 U.S.C.
§ 1983. Cull challenges the denial of his objection to the jury venire; the summary
judgment against his complaints of discrimination by the officers and by the City;
and the judgment as a matter of law against his complaint of malicious prosecution
of aggravated battery with a deadly weapon. We affirm.
I. BACKGROUND
On May 6, 2011, Villaverde and Fleury were driving their patrol cars and
received a dispatch to look for a vehicle used to flee from an armed robbery. While
stopped at a traffic light, the officers noticed ahead of them a Chevrolet Camaro
being driven by Cull that matched the description of the getaway vehicle.
Villaverde parked his patrol car sideways to block any traffic that might pass him,
drew his service gun, and crept toward the Camaro, which was waiting to turn left.
Villaverde was wearing a black polo shirt and black cargo shorts.
Cull and the officers gave different accounts of their encounter. Cull alleged
that he did not see the patrol cars. Scared of what he perceived to be an armed
pedestrian approaching, Cull began to veer into the lane to his right when Fleury
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sped forward and struck Cull’s passenger door. The officers alleged that Fleury
activated his lights and siren and pulled directly beside Cull, who rammed the front
left bumper of Fleury’s patrol car several times and sped away.
Cull led the officers on a high-speed chase for two miles until he crashed
into a curb. Cull then drove slowly against the flow of traffic until he reached the
entrance of an apartment complex, where he abandoned his car and fled on foot.
Villaverde shot Cull one time in the back, but Cull ran to a friend’s apartment. The
officers found Cull and transported him to the hospital for treatment.
Cull appeared in a Florida court for trial on six criminal charges. A jury
acquitted Cull of aggravated assault with a firearm and the Florida court declared a
mistrial on the five other charges. After the prosecutor nol prossed the charges
against Cull for aggravated battery with a deadly weapon and possessing a firearm
in the commission of a felony, Cull pleaded nolo contendere to aggravated assault
with a deadly weapon, aggravated fleeing or attempting to elude an officer, and
resisting an officer without violence.
Cull filed a complaint in a Florida court against the City and the two
officers, and the City and officers removed the complaint to the district court. Cull
alleged that Villaverde’s use of force was excessive; the officers’ actions were
“racially motivated” and violated Cull’s right to equal protection; the City had
“developed and maintained policies, procedures, customs and or practices
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exhibiting deliberate indifference to” and “failed to train and supervise its officers”
about “the constitutional rights of African Americans”; and the officers made
“false allegations” against Cull that resulted in his prosecution for aggravated
battery with a deadly weapon and for aggravated assault with a firearm.
The City and the officers moved for summary judgment, which the district
court granted in part and denied in part. The district court entered summary
judgment against Cull’s complaint about the denial of equal protection because he
“offer[ed] neither argument nor evidence to show that Officers Fleury and
Villaverde were motivated by race” to create “a genuine issue for trial.” The
district court also entered summary judgment against Cull’s complaint of
municipal liability because he “fail[ed] to identify ‘a final policymaker’ that acted
on behalf of the City” and because a newspaper report that Cull submitted
“discuss[ing] the use of force by the [Orlando Police Department] between 2010
and 2014” was “inadmissible hearsay” that Cull had not “indicat[ed] . . . could be
reduced to admissible form.” The district court concluded that the report failed “to
show a[] . . . custom of either excessive force, in general, or excessive force against
black citizens” or a “policy of failing to train its officers on the use of excessive
force.” The report lacked “sufficient detail to draw comparisons to the present
case” because it “sa[id] nothing about the circumstances underlying each use of
force or whether the force in question was excessive” and its “comparison of the
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portion of black citizens in the population—28%—to the portion of individuals
subject to force that were black— 55%—” was “flaw[ed] . . . [in] assum[ing],
without providing any basis, that police encounters occur uniformly across all
races.” The district court also ruled that Cull waived any objection he had to
summary judgment against his complaint of malicious prosecution of aggravated
assault with a firearm by not responding to the officers’ motion.
The district court denied summary judgment against Cull’s complaint of
malicious prosecution of aggravated battery with a deadly weapon on the ground
that a genuine dispute of fact existed about whether Fleury had probable cause to
ram Cull’s vehicle and, “if Mr. Cull’s story [was] true, . . . the officers’ statements
to the contrary would have improperly influenced the decision to prosecute Mr.
Cull . . . .” The district court also denied summary judgment against Cull’s
complaint of excessive force because his “version of the facts indicate[d] that, . . .
when [he was] shot . . ., there was no meaningful threat” that justified the use of
deadly force against him and “Villaverde had fair warning that such conduct was
unreasonable.”
During jury selection, Cull’s attorney voiced “concern[] about the overall
composition of the venire panel” on the ground it was not “reflective of the
relevant community” and “that Mr. Cull’s Sixth Amendment right to a jury of his
peers will not be observed.” The district court stated that the jury was “randomly
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selected” and it had “to rely on the process . . . [under which] the jurors have to be
randomly selected,” and Cull’s attorney responded that he “understood.” The
district court “note[d] [for the record] that we have one African American female
on the jury and no other African Americans on this jury” and heard from counsel
for Villaverde. After the district court repeated that it was “confident this jury is
randomly selected” and Cull’s attorney responded, “Yes, sir,” the district court
overruled Cull’s objection.
The trial ended unfavorably for Cull. The officers moved for judgment as a
matter of law on Cull’s complaint of malicious prosecution of aggravated battery
with a deadly weapon, and the district court granted the motion. The jury found
that Villaverde did not use excessive force against Cull.
II. STANDARD OF REVIEW
One standard of review governs this appeal. “We review de novo
constitutional challenges to jury selection processes,” United States v. Grisham, 63
F.3d 1074, 1077 (11th Cir. 1995), and to the entry of summary judgment and of
judgment as a matter of law, Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489
(11th Cir. 1997).
III. DISCUSSION
Cull makes three challenges to the judgment against him. First, Cull argues
that the district court violated his right to equal protection because “the venire
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panel was not comprised of a representative cross section of the community.”
Second, Cull challenges the summary judgment against his complaints about
discrimination by the officers and by the City. Third, Cull challenges the judgment
entered at trial against his complaint of malicious prosecution.
The district court correctly overruled Cull’s objection to the jury venire
based on the exclusion of African American citizens. To establish that he was
denied the right to select a petit jury from a representative cross-section of the
community, Cull had to prove that African Americans were a distinctive group in
the community; that the number of African Americans in the jury venire did not
fairly and reasonably represent the local population; and that the
underrepresentation was attributable to systemic exclusion of African Americans in
the jury selection process. See United States v. Davis, 854 F.3d 1276, 1295 (11th
Cir. 2017); Jackson v. Morrow, 404 F.2d 903, 906 (5th Cir. 1968) (considering a
challenge to the racial composition of the jury venire in a civil case). Cull
acknowledged that the venire was selected at random from the community. He
failed to mention how many African Americans lived in the district or to allege
that they were systemically excluded. On appeal, Cull cites statistical information
about the racial composition of the district and the number of African Americans
and Caucasians on his jury venire, but like the defendant in Davis, Cull “fails to
identify anything about the jury selection process that could be considered not
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racially neutral or susceptible to abuse as a tool of discrimination.” Davis, 854 F.3d
at 1296 (internal quotation marks and citation omitted). Instead, Cull speculates
that “opportunities [exist] for discrimination to be injected into” the plan used to
locate and summon citizens for jury service. See Jackson, 404 F.2d at 905–06
(rejecting equal protection challenge to jury venire without an “adequate showing”
that the names placed into a “jury box” were selected using an unconstitutional
process). The district court did not err by rejecting Cull’s conclusory challenge to
the racial composition of the jury venire.
The district court did not err by entering summary judgment in favor of the
officers and the City and against Cull’s complaint of discrimination based on his
race. Cull argues that “[t]he language employed by Villaverde” before he shot Cull
created a genuine dispute about whether the officer was “motivated by race,” but
the City argues Cull is making “this brazen assertion . . . for the first time” and
Cull fails to cite where Villaverde’s statement is located in the record, see Fed. R.
App. P. 28(a)(8)(A). Cull argues that the newspaper article “unambiguously
demonstrated . . . [that the City’s] officers were more likely to use . . . deadly force
against African Americans” and that the City had a policy or custom of tolerating
discrimination, but Cull could not rely on a hearsay news article to defeat the
motion for summary judgment. Cull does not dispute that the article could not be

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reduced to an admissible form for trial. See McMillian v. Johnson, 88 F.3d 1573,
1584–85 (11th Cir. 1996).
We affirm the judgment as a matter of law against Cull’s complaint of
malicious prosecution of aggravated battery with a deadly weapon. Cull argues that
a reasonable jury could have returned a verdict in his favor. See Fed. R. Civ. P.
50(a)(1). But we cannot review the judgment entered against Cull because he failed
to order a transcript of his trial. See Fed. R. App. P. 10(b)(2) (“If the appellant
intends to urge on appeal that a finding or conclusion is unsupported by . . . or is
contrary to the evidence, the appellant must include in the record a transcript of all
evidence relevant to that finding or conclusion.”). “[W]e must affirm . . . [because
Cull] fails to provide all the evidence that the trial court had before it” in ruling on
the officers’ motion. See Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002).
IV. CONCLUSION
We AFFIRM the judgment in favor of the City and Officers Villaverde and
Fleury.

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