Tracy Jones, et al v. Sandusky County, Ohio, et al

Filing

OPINION filed : AFFIRMED, decision not for publication. Ralph B. Guy , Jr. (AUTHORING), Danny J. Boggs and Deborah L. Cook, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0326n.06
No. 15-3378

FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

TRACY JONES, Deceased,
Plaintiff,
KIM JONES, Individually and as
administrator of the estate of Bryan Jones,
Deceased and Tracy Jones, Deceased,
Plaintiff - Appellant
v.
SANDUSKY COUNTY, OHIO;
SANDUSKY COUNTY BOARD OF
COMMISSIONERS; KYLE OVERMYER,
Sheriff, Sandusky County; JOSE CALVILLO;
MARIO CALVILLO,
Defendants-Appellees.
_________________________________/

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Jun 15, 2016
DEBORAH S. HUNT, Clerk

On Appeal from the United States
District Court for the Northern
District of Ohio

Before: GUY, BOGGS, and COOK, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. This appeal follows a jury trial and entry of
judgment in favor of the defendants with respect to federal and state law claims arising out of the
shooting death of Bryan Jones, age 26, in the home he shared with his parents. The district court
denied the motion for new trial filed by plaintiff Kim Jones, individually and as administrator of
the estates of her son Bryan and her husband Tracy Jones (who died during this litigation).

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Plaintiff appeals from that decision, arguing for a new trial on the grounds that her claims were
prejudiced by three evidentiary rulings, improper comments by defense counsel during closing
argument, and the district court’s error in responding to a question from the jury concerning its
consideration of the wrongful death claim against Sheriff Overmyer. For the reasons that follow,
we affirm.1
I.
After defendants’ interlocutory appeal from the denial of qualified immunity was denied,
Jones v. Sandusky County, 541 F. App’x 653 (6th Cir. 2013), the district court bifurcated the
issues of liability and damages and conducted a five-day jury trial in October 2014. The jury
returned its verdicts in favor of the defendants using interrogatories to guide its findings on the
claims of excessive force in violation of the Fourth Amendment brought under 42 U.S.C. § 1983
and for wrongful death under Ohio law. After judgment was entered accordingly, the district
court denied plaintiff’s motion for new trial.
Bryan Jones was fatally shot at approximately 11:30 p.m., on Sunday, July 11, 2010.
Earlier that afternoon, concerned that Bryan’s drinking was out of control, his parents, Kim and
Tracy Jones, called family members and sheriff deputies to the house. The deputies talked with
Bryan, who agreed to leave with a friend and not return until the next day. Kim Jones went to
spend the night with her mother and sister, Sherry Keller, at her mother’s house. Later, Tracy
Jones prepared to go to his night-shift job and found that Bryan had returned. They had a
confrontation and Tracy went to call 911 from another son’s nearby home. As the district court
summarized:
Tracy Jones called police dispatch [at approximately 9:45 p.m.] and relayed that
Bryan had been abusing alcohol for several days, had threatened to kill his
1

Plaintiff has abandoned her challenge to the directed verdict entered on the claim for intentional infliction of
emotional distress.

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mother, told his father to [go ahead and] call the police and that he, Bryan, would
“fight.”
Arriving after dark, sheriff deputies observed Bryan, through an exterior
first floor window, sitting on the living room couch with [his eyes closed,] a
pump-style shotgun resting on his lap and his feet resting on a coffee table. The
living room lay at the north end of the home, with a computer room adjoining to
the south, and a kitchen further south.
[Sheriff Overmyer heard the call over the radio and remembered that
Bryan had a prior conviction for shooting an occupied dwelling. Overmyer had
the area secured and called the four-member Sandusky County Tactical Response
Team (“TRT”), which included Deputies Jose and Mario Calvillo (who are
brothers). Dispatch attempted to make contact with Bryan by calling the house,
but there was no answer.]
Bryan sat facing the deputies’ vantage point. For the next 90 minutes, the
deputies observed Bryan in the same posture; he made few movements. One
deputy speculated that Bryan may have been dead (he was not). Sheriff
Overmyer eventually ordered [the TRT] into the home.
Around 11:30 PM, the TRT entered the home through the unlocked
exterior kitchen door. Their plan: after a stealth entry into the kitchen, the
deputies would “stack up” alongside the wall separating the kitchen from the
computer room. Then, Deputy Kevin Karns would lob a flashbang grenade across
the computer room and into the living room. At the same time, Fremont Police
Sergeant Anthony Emrich, standing outside the home at the living room’s north
window, would shatter that window with his asp, a type of telescoping baton.
Both the flashbang and shattered window were intended to distract and disorient
Bryan.
With guns drawn and shouting commands such as “Drop it!,” three of the
four TRT members would then rush Bryan, either as a show of force in hopes that
he would drop the shotgun or to physically subdue him. Mario Calvillo, first in
line, carried a ballistics shield and a handgun. TRT team leader Jose Calvillo,
second in line, held an M16 rifle in both hands. Karns, last in line, carried a
carbine; Karns had attached the carbine to his bullet-resistant vest with a lanyardlike device, leaving [his] hands free to manipulate the flashbang. Deputy Allen
Dorsey would remain in the kitchen as a rearguard.
The TRT executed the entry plan, which ended with both Calvillos fatally
shooting Bryan, who died just before midnight, despite attempts by emergency
responders to save his life.
The jury heard conflicting evidence on whether the flashbang startled
Bryan from sleep, whether he raised the shotgun toward the deputies, and whether

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the smoke from the flashbang made it difficult to determine if Bryan’s movements
were harmless or threatening. Kim Jones claimed errors in the police response
resulted in the needless killing of her son. Defendants claim that, as the TRT
entered the living room, Bryan swung the shotgun barrel in the TRT’s direction
and “racked” the shotgun (also called “pumping” or “ratcheting” . . . ). Mario
Calvillo claimed he was so certain Bryan would shoot him that he braced for the
impact of a shotgun blast. No party disputes that Defendants believed the shotgun
was loaded—during his 911 call, Tracy told dispatch there were loaded guns in
the home, and dispatch relayed that information to the deputies. In fact, the
shotgun was not loaded.
Prior to the TRT entry, deputies called Tracy to the scene. Tracy offered
to talk Bryan into laying down the shotgun, but deputies declined the offer, citing
the threat Bryan posed. Separately, Kim and her sister approached the home, but
a park ranger positioned at the end of the Jones driveway prevented them from
proceeding further, at least in part because Bryan had threatened Kim’s life.
When the sisters heard an explosion and gunshots, they ran past the ranger;
Keller, along with Tracy [Jones], claimed they heard Bryan cry “Why!?” before
he was shot.
Jones v. Sandusky Cnty., Ohio, 96 F. Supp. 3d 711, 714-15 (N.D. Ohio 2015). Plaintiff’s expert
witness, David Van Blaricom, offered a number of criticisms of the tactics, timing, and planning
of the entry; while defendants’ expert, James Scanlon, opined that defendants’ actions were
reasonable given the lack of observed movement and the potential threat posed under the
circumstances.
The jury rejected the § 1983 claims against both Jose and Mario Calvillo for the use of
excessive force either by using the flashbang device or by shooting Bryan Jones. As a result, the
jury was instructed not to answer the interrogatories relating to the § 1983 claims against Sheriff
Overmyer for directing the use of excessive force (individual liability), and for failure to train
resulting in the use of excessive force (official capacity). The jury also found for defendants on
the state-law claims for wrongful death against Jose Calvillo, Mario Calvillo, and Sheriff
Overmyer, which required proof that the defendant acted wantonly or recklessly to cause Bryan’s
death in order to overcome immunity under Ohio law. See OHIO REV. CODE § 2744.03(A)(6).

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The jury found that plaintiff had not proved the claim for wrongful death against either Jose or
Mario Calvillo; but, as instructed, did not answer the question of whether plaintiff proved
wrongful death against Sheriff Overmyer. This is the basis of plaintiff’s first claim on appeal.
II.
The denial of a Rule 59(a) motion is reviewed for an abuse of discretion, which occurs
when a district court “relies on clearly erroneous findings of fact, improperly applies the law, or
uses an erroneous legal standard.” Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 405
(6th Cir. 2006) (citing In re Brown, 342 F.3d 620, 627 (6th Cir. 2003)); see also FED. R. CIV. P.
59(a)(1). We will find an abuse of discretion only when the court is left with “a definite and firm
conviction that the trial court committed a clear error of judgment.” Mike’s Train House, 472
F.3d at 405 (quoting Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 728 (6th Cir. 1994)).
A.

Jury Question
“This court reviews a district court’s ‘actions in responding to questions from the jury’

for abuse of discretion.” United States v. Davis, 490 F.3d 541, 548 (6th Cir. 2007) (quoting
United States v. August, 984 F.2d 705, 712 (6th Cir. 1992) (per curiam)). “A jury instruction
which states the law with substantial accuracy and fairly submits the issues to the jury will not
provide grounds for reversal.” Clarksville-Montgomery Cnty. Sch. Sys. v. U.S. Gypsum Co.,
925 F.2d 993, 1003 (6th Cir. 1991). Judgment will be reversed “only if the instructions, viewed
as a whole, were confusing, misleading, or prejudicial.” Beard v. Norwegian Caribbean Lines,
900 F.2d 71, 72-73 (6th Cir. 1990).
Plaintiff contends that the district court improperly prevented the jury from considering
the wrongful death claim against Sheriff Overmyer by answering “no” to the second question
asked by the jury regarding the wrongful death claims. The jury first asked whether, if they

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found that plaintiff had not proved the claim of wrongful death against the Calvillos (Question
#5), they should answer the questions about whether Jose or Mario Calvillo had proved selfdefense (Question #6). With the agreement of counsel, the district court answered “no” because
if neither of the deputies was liable for wrongful death, it would not be necessary to decide
whether he had proved that he acted in self-defense. Jones, 96 F. Supp. 3d at 721.
The jury also asked: “If we didn’t have to answer #6 for the Calvillo[s], do we have to
answer #4 on the form for Mr. Overmyer?” The district court answered “no,” this time over
plaintiff’s objection, because no scenario had been presented that would allow the jury to find in
favor of the deputies but against the sheriff on the claims for wrongful death. Id. at 722.
Importantly, it is clear that this ruling was based on an assessment of the evidence; not a
mistaken belief that the sheriff’s liability depended on his position as a supervisor. Also, there is
no dispute that the jury was properly instructed that, in contrast to the § 1983 claims, it could
consider all of the events leading to the fatal shooting in deciding the claims for wrongful death.
Plaintiff argues that there was evidence from which the jury could have found that Sheriff
Overmyer acted “recklessly” to cause Bryan’s death—i.e., that he perversely disregarded a
known risk. See O'Toole v. Denihan, 889 N.E.2d 505, 517 (Ohio 2008). To be sure, plaintiff’s
expert witness opined that the TRT’s entry was unnecessary, or at least premature, and should
not have been undertaken as a stealth entry or using a flashbang device. The issue is not whether
there was a question for submission to the jury—the district court found that there was—but,
rather, whether that evidence would permit the jury to find that Sheriff Overmyer acted
recklessly to cause Bryan’s death if both Jose and Mario Calvillo had not.
To show the jury could have, plaintiff points to evidence that Sheriff Overmyer was in
command, made the decision to go in, and gave the order approving the TRT’s stealth entry

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using the flashbang device. However, the evidence showed, and plaintiff argued at trial, that
although Sheriff Overmyer gave the orders, the planning was done in consultation with, and with
the active participation of, TRT Leader Jose Calvillo, Chief Deputy Sheriff Hirt, and Fremont
Police Sgt. Emrich. Jose Calvillo also testified that he was involved in drawing up the entry plan
that was approved by Sheriff Overmyer, and that it was his idea to use the flashbang device.
Mario Calvillo said he was not involved in the discussions with Sheriff Overmyer, but Mario
approved of and executed the stealth entry. The district court did not err in concluding the jury
could not find that the sheriff had acted recklessly to cause Bryan’s death if it found plaintiff had
not proved the claim against either of the Calvillos. The district court’s response to the jury’s
question did not make the instructions, as a whole, confusing, misleading, or prejudicial.
B.

Evidentiary Rulings
Applying an abuse-of-discretion standard to the district court’s evidentiary rulings, we

review the district court’s factual determinations for clear error and its conclusions of law de
novo. CFE Racing Prods., Inc. v. BMF Wheels, Inc., 793 F.3d 571, 584 (6th Cir. 2015). “An
erroneous evidentiary ruling amounts to reversible error, justifying a new trial, only if it was not
harmless; that is, only if it affected the outcome of the trial.” Cummins v. BIC USA, Inc.,
727 F.3d 506, 510 (6th Cir. 2013).
1.

Unloaded Shotgun

Plaintiff claims the district court erred by prohibiting reference at trial to the fact that
Bryan’s shotgun was, in fact, not loaded. There was never any dispute that the defendants
thought Bryan held a loaded shotgun and only later discovered that it was not loaded. The
district court properly recognized that this fact should not be considered when judging the use of
force from the perspective of a reasonable officer on the scene “rather than with the 20/20 vision

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of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). Nor would this unknown fact
show that defendants acted recklessly for purposes of the wrongful death claims.
Plaintiff argues that this fact should have been admissible to refute the opinion of
defendants’ expert witness, James Scanlon, regarding “Bryan’s state of mind.” But, rather than
testifying to Bryan’s subjective intent, Scanlon opined that the entry plan was appropriate given
the information available—including that Bryan told his father to call the police and then got a
shotgun and sat on the couch facing the direction from which the officers would come. Plaintiff
did not suggest at trial that Scanlon’s testimony “opened the door” to the fact that the gun was
unloaded.

And, Scanlon conceded during cross-examination that he could not know what

Bryan’s intent was and only assumed that Bryan had expected his father would call the police.
Finally, Scanlon’s opinion was not inconsistent with the fact that the shotgun turned out to be
unloaded. Jones, 96 F. Supp. 3d at 717.
Plaintiff also argues that she should have been able to challenge the deputies’ credibility
by pointing out that it would have been completely illogical for Bryan to deliberately point an
unloaded shotgun at them. The probative value of this impeachment evidence would have been
minimal and, in this context, the value would be outweighed by the real danger that the fact
would be considered for an improper purpose (i.e., that Bryan did not actually pose an imminent
threat of serious bodily harm). Id. The district court did not abuse its discretion in this regard.
2.

Jose Calvillo’s Prior Discipline

The district court granted defendants’ motion in limine precluding plaintiff from offering
evidence or eliciting testimony concerning prior disciplinary action taken against Jose Calvillo.
Rule 404(b)(1) prevents other-acts evidence from being offered “to prove a person’s character in
order to show that on a particular occasion the person acted in accordance with the character.”

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FED. R. EVID. 404(b)(1). The district court found that the probative force of the evidence was to
show his propensity to use “his position as a deputy to intimidate others,” to “exhibit[] poor
impulse control,” or to “deny the inappropriateness of his behavior.” Nor has plaintiff made a
showing on appeal that the evidence should have been admitted “for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” FED. R. EVID. 404(b)(2); see also United States v. Hardy, 643 F.3d 143,
150 (6th Cir. 2011) (stating test for admission under Rules 404(b)(2) and 403).
Plaintiff argued that the disciplinary records were admissible for the purpose of attacking
Jose Calvillo’s credibility because he disputed the facts and still believed his conduct did not
warrant disciplinary action.

Except for certain criminal convictions, however, “extrinsic

evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness.” FED. R. EVID. 608(b). To the extent that
plaintiff sought only to inquire into the records on cross-examination, Rule 608(b) provides that
the district court may allow inquiry into specific instances of conduct “if they are probative of
[the witness’s] character for truthfulness or untruthfulness.” Id.
Calvillo was disciplined on three occasions: (1) in September 2007, for insubordination
after refusing to stay away from his wife during their divorce; (2) in June 2009, after an
altercation with a man and a taxi driver over a woman during a night out; and (3) in November
2009, for conduct unbecoming an officer when a former girlfriend complained that he was
stalking her. In denying the motion for new trial, the district court found that, “at best, his prior
disciplinary history marginally reflects his character for truthfulness,” and that, “while no party
disputes Jose Calvillo was in fact disciplined for these prior events, the conduct that led to this
discipline is highly disputed.” Jones, 96 F. Supp. 3d at 719. The district court added that it

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would have barred inquiry under Fed. R. Evid. 403 because the questions would have posed a
risk of jury confusion. Id. The district court did not abuse its discretion in concluding that
exclusion of this evidence did not warrant a new trial.
3.

Consolo’s Internal Investigation

Detective Captain James Consolo was called to the scene to conduct an internal
investigation of the shooting as required by the Sheriff’s Office Policy and Procedure Manual. 2
Consolo’s report consisted of a narrative summary of the information gathered, a detailed
timeline, and notes of his activities during the investigation. An additional two-page statement
containing Consolo’s opinions was removed before the report went to a review panel. The
district court granted defendants’ motion to exclude both the report of his investigation and his
opinions for reasons that included hearsay, lack of foundation for certain opinions, and concern
that the relevance was outweighed by unfair prejudice. Plaintiff argues that the exclusion of this
evidence warrants a new trial.
Wholesale exclusion of this evidence on hearsay grounds was error.

Rule 803(8)

provides that the following is not excluded under the hearsay rule: “A record or statement of a
public office if: (A) it sets out . . . (iii) in a civil case . . . factual findings from a legally
authorized investigation; and (B) the opponent does not show that the source of information or
other circumstances indicate a lack of trustworthiness.” FED. R. EVID. 803(8)(A)(iii) and (B)
(formerly Rule 803(8)(C)); see Bank of Lexington & Trust Co. v. Vining-Sparks Sec., Inc.,
959 F.2d 606, 616 (6th Cir. 1992) (identifying non-exclusive list of four factors to consider in
determining whether such a report is trustworthy). First, although defendants argued otherwise
below, the personal-knowledge requirement does not apply to reports admissible under the
2

Under those policies, incidents of the use of force resulting in serious injury or death are investigated by the
detective bureau, the incident report is reviewed by a panel of deputies, and then the review report is submitted to
the sheriff for internal use.

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public-records exception found in Fed. R. Evid. 803(8). See Combs v. Wilkinson, 315 F.3d 548,
555-56 (6th Cir. 2002).

Second, the district court overlooked the fact that the statements

incorporated from interviews with the defendants themselves and other employees or agents of
the Sheriff’s Office would not be hearsay under Fed. R. Evid. 801(d)(2)(A) and (D). Third, even
those portions of the report consisting of conclusions or opinions formed as a result of a factual
investigation are admissible under Rule 803(8). See Alexander v. CareSource, 576 F.3d 551,
561-62 (6th Cir. 2009) (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170 (1988)).
Although defendants argued that the report was incomplete, the opinions were rendered
without authority, and certain statements lacked foundation, the district court did not make a
determination concerning trustworthiness under Rule 803(8)(B). Instead, in denying the motion
for a new trial, the district court assumed that the exhibits were admissible and concluded that
plaintiff failed to show that the error was not harmless. Jones, 96 F. Supp. 3d at 720. Review of
the trial transcript supports the district court’s conclusion.
Plaintiff has not attempted to identify prejudice or refute the district court’s assessment
that: “The jury learned much (if not all) of the evidence summarized in the Report through the
firsthand testimony of witnesses and related exhibits.”

Id. There is every indication that

admission of the summaries of his interviews and his timeline would have been cumulative and
consistent with the evidence admitted at trial. In fact, where there was an inconsistency, Deputy
Allen Dorsey was impeached with the statement he gave to Consolo indicating that he could only
see Bryan’s feet when he looked in the window. Also, Sgt. Emrich acknowledged “that he told
Consolo that he made a ‘bad move’ by placing himself at a cross-fire window.” Id.
In reply, plaintiff contends that Consolo’s opinions that the entry was “rushed and
premature” and that use of the flashbang was a “poor tactical decision” were relevant. Although

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true, the record shows that these conclusions were fully presented to the jury through plaintiff’s
expert, the accompanying computer animation, and cross-examination of the defendants and
defendants’ expert witness. To the extent plaintiff argues the report would have undermined the
claim that medical need motivated the decision to go in, Consolo was allowed to testify that,
when he arrived on the scene, Sheriff Overmyer told him only that the TRT went in “to end a
standoff.” And the issue of whether concern for Bryan had been a consideration was fully
presented at trial. In addition, Consolo was allowed to testify both that he listened to the 911 call
fifty times and did not hear mention that Bryan was suicidal, and that he observed burn marks
indicating that the flashbang detonated within five feet of where Bryan was sitting. Because
plaintiff has not demonstrated that exclusion of Consolo’s report and opinions affected the
outcome of the trial, it was not an abuse of discretion to conclude that a new trial was not
warranted.
C.

Defense Counsel’s Closing Argument
To be granted a new trial on the grounds that defense counsel made inappropriate

comments during closing argument, plaintiff “must show both that the closing argument was
improper and that [plaintiff] was prejudiced by the impropriety, that is, that there is a reasonable
probability that the jury’s verdict was influenced by the improper argument.” Fuhr v. Sch. Dist.
of City of Hazel Park, 364 F.3d 753, 760 (6th Cir. 2004). Plaintiff did not object to those
comments at trial, which “raise[s] the degree of prejudice which must be demonstrated in order
to get a new trial on appeal.” Clark v. Chrysler Corp., 436 F.3d 594, 609 n.19 (6th Cir. 2006)
(quoting Strickland v. Owens Corning, 142 F.3d 353, 358 (6th Cir. 1998)).

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The comment that raises the most obvious concern was defense counsel’s reference to the
shotgun as “loaded.” But, it is eminently clear from the context that defense counsel was not
saying the shotgun was in fact loaded. Specifically, defense counsel argued:
as [Dispatcher] Pam Carper explained, when a highly intoxicated subject who has
threatened to murder his mother says he will fight, fight to the end, it’s reasonable
to conclude he’s suicidal. After all, what does fight to the end mean except that
Bryan Jones is going to fight it out with a loaded gun he has in his hands. Pam
would not be doing her job if she failed to inform the responding officers that the
subject is both homicidal and suicidal.
And of course the second point, what matters is what the responding
officers were told. Based upon the communication [from] dispatch, they had to
consider both the possibility that Bryan Jones might kill people other than himself
and he might kill himself.
The comment was part of a permissible argument about the evidence in response to plaintiff’s
argument that the dispatcher had not been told Bryan was suicidal.
Nor was it improper for defense counsel to argue that Bryan had “racked the shotgun.”
There was testimony from Trooper Nunez—however incredible—that he heard the sound of a
shotgun rack after the flashbang and before other shots were fired. It was not improper to argue
inferences from the evidence. And, given that there was no shortage of grounds to attack that
testimony since he claimed to have heard it from 100 yards away when no one else heard it and
neither of the Calvillos said they saw it, there is no reasonable probability that the jury’s verdict
was influenced by defense counsel’s statement.
Finally, plaintiff argued that defense counsel made several improper comments during
closing argument speculating about what Bryan Jones was thinking (i.e., that he was “wanting”
or “intending” to provoke a confrontation). However, as the district court concluded, these
comments were not improper speculation about Bryan’s state of mind. For example, responding
to the suggestion that the deputies should have known Bryan was harmless, defense counsel

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argued: “The truth is the only relevance that earlier call to the Jones house has to this case is that
[it] partly explains why Bryan was so angry that he would threaten to kill his mother[.]” It was
also permissible to argue that the jury could infer from Bryan’s actions suggesting he wanted or
intended to provoke a confrontation with police that he had raised the shotgun at the deputies
(i.e., “They are the actions of a man ready and willing to provoke a confrontation”; “Who else
was he waiting for but the cops?; “Lie and wait for the cops he knew would be coming. Bryan
Jones positioned himself and that shotgun in a way that would provoke the very confrontation he
told his father he wanted.”). Plaintiff has not demonstrated that defense counsel’s comments
during closing argument warranted a new trial.
AFFIRMED.