Avery et al v. Brown et al

Filing 65

ORDER granting 55 Motion in Limine; granting 56 Motion in Limine; granting 57 Motion in Limine. Signed by Judge Kristine G. Baker on 12/17/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
KAREN WALLS, as next friend of
CHADARIOUS AVERY, a minor
v.

PLAINTIFF

Case No. 5:11-cv-174-KGB

RODERICK SHELBY and SHERIFF
GERALD ROBINSON

DEFENDANTS
ORDER

Before the Court are three motions in limine filed by plaintiff Karen Walls as Chaderious
Avery’s next friend (Dkt. Nos. 55, 56, 57). At the pretrial conference on December 13, 2012, the
Court heard argument from all counsel on the three motions in limine. Separate defendant
Roderick Shelby, in his individual capacity, then responded (Dkt. No. 62) to plaintiff’s third
motion in limine (Dkt. No. 57). Ms. Walls replied (Dkt. No. 64).
I.

Plaintiff’s First Motion in Limine (Dkt. No. 55)

Ms. Walls moves to exclude Mr. Avery’s school disciplinary records and “any and all
evidence or testimony regarding fights in which Avery may have participated prior to the
incident on April 18, 2011” (Dkt. No. 55, at 1-2). Ms. Wall maintains that such evidence should
be excluded under Rules 403, 404(b), and 405 of the Federal Rules of Evidence. At the pretrial
conference, counsel for defendants acknowledged they did not intend to introduce any physical
records but stated they planned to elicit testimony regarding Mr. Avery’s prior suspensions and
expulsions from school, most of which purportedly resulted from fighting.
The first and third motions in limine, and the responses thereto, involve the issue of
whether Mr. Shelby should be permitted at trial to establish that Mr. Avery had a habit or routine
practice, within the meaning of Rule 406 of the Federal Rules of Evidence, of being aggressive
and fighting when angry or mad. Defendants state: “Avery demonstrated a practice of being

angry or upset followed by physical assault on the object of his anger” (Dkt. No. 63, at 3). Two
key issues for trial are who threw the first punch and why during the April 18, 2011, incident and
Mr. Shelby’s state of mind during that incident as it relates to the level of force he used.
Defendants maintain the anticipated evidence and testimony addressed in these motions in limine
is relevant to these issues. Counsel for Mr. Shelby recognized at the pretrial conference that his
opposition to the third motion in limine also applies in part to the first motion in limine.
Rule 404(b)(1) of the Federal Rules of Evidence provides that “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with that character.” The Eighth Circuit has
stated that “Rule 404(b) precludes propensity evidence and we see no relevant distinction
between it and evidence tending to prove a predisposition or inherent tendency.” United States
v. Johnson, 439 F.3d 884, 887 (8th Cir. 2006). “The rule excludes evidence of specific bad acts
used to circumstantially prove a person has a propensity to commit acts of that sort. Propensity
evidence, whether of a person’s general character or examples of specific bad acts, is ordinarily
excluded because of the likelihood the jury may misuse it.” Id. There are certain exceptions to
Rule 404’s bar to the admissibility of propensity evidence, but the Court concludes those
exceptions do not apply here. See Fed. R. Evid. 404(b)(2) (providing for admissibility when
propensity evidence is used for a purpose other than showing that the person acted in conformity
with that character, such as “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident”).
Rule 405 states that “[w]hen a person’s character or character trait is an essential element
of a . . . defense, the character or trait may also be proved by relevant specific instances of the
person’s conduct.” Fed. R. Evid. 405(b). It is crucial to note, however, that Rule 405 “deals

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only with the allowable methods of proving character, not with the admissibility of character
evidence, which is covered in Rule 404.”

Fed. R. Evid. 405 (advisory committee notes)

(emphasis added).
Here, the Court concludes the evidence Ms. Walls seeks to exclude regarding Mr.
Avery’s school disciplinary record and prior fights is inadmissible propensity evidence within
the meaning of Rule 404(b). Defendants may not elicit testimony regarding, introduce evidence
of, or refer in argument or questioning before the jury to Mr. Avery’s having been disciplined at
school because of fighting or to any prior fights Mr. Avery may have been in to show that Mr.
Avery acted in accordance with that character or trait on April 18, 2011. Because the Court has
determined that the evidence is inadmissible under Rule 404, Rule 405 does not provide a
method for admissibility. Further, the Court notes that, even if this evidence were admissible
under Rule 404(b), the Court concludes it is inadmissible under Rule 403.
Mr. Shelby contends that Mr. Avery’s prior fighting rises to the level of habit evidence
and, therefore, should be admissible under Rule 406, despite Rule 404(b)’s prohibition. Mr.
Avery’s prior fighting does not rise to the level of a habit within the meaning of Rule 406, which
provides that “[e]vidence of a person’s habit or an organization’s routine practice may be
admitted to prove that on a particular occasion the person or organization acted in accordance
with the habit or routine practice.” As stated in the advisory notes to Rule 406, “[a] habit . . . is
the person’s regular practice of meeting a particular kind of situation with a specific type of
conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving
the hand-signal for a left turn, or of alighting from railway cars while they are moving. The
doing of the habitual acts may become semi-automatic.” (quoting McCormick, Evidence, § 162,

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at 340 (2d ed. 1972)). The advisory notes also address the distinction between character and
habit and state in pertinent part:
The rule is consistent with prevailing views. Much evidence is excluded simply
because of failure to achieve the status of habit. Thus, evidence of intemperate
“habits” is generally excluded when offered as proof of drunkenness in accident
cases, Annot., 46 A.L.R.2d 103, and evidence of other assaults is inadmissible to
prove the instant one in a civil assault action, Annot., 66 A.L.R.2d 806. . . .
Fed. R. Evid. 406 (advisory committee notes).
Mr. Shelby asserts that Mr. Avery had a habit of fighting or being aggressive when mad
but offers little specific evidence that Mr. Avery had a practice of meeting a particular situation
with specific conduct. Rather, Mr. Shelby asserts generally that Mr. Avery “demonstrated a
practice of being angry or upset followed by physical assault on the object of his anger” (Dkt.
No. 63, at 3). Mr. Shelby asserts that Mr. Avery was suspended multiple times from school for
fighting and that Mr. Avery fought regularly as a gang member. This alone fails to demonstrate
that Mr. Avery habitually responded to a particular situation with a specific type of conduct. Mr.
Shelby does not provide the Court with sufficient specific instances of Mr. Avery responding to
anger with physical violence such that the Court can conclude that doing so rises to the level of
habit within the meaning of Rule 406.

The Court notes that even if this evidence were

admissible under Rule 406, it would be inadmissible under Rules 404(b) and 403.
Rule 403 provides the Court discretion to “exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Assuming Mr. Avery’s school disciplinary records or prior fights are relevant to this action, the
Court concludes that the relevance is substantially outweighed by the danger of unfair prejudice
to Mr. Avery, undue delay, and wasting time.

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The specific school fight that Mr. Shelby

highlights for the Court is a fight allegedly involving Mr. Avery’s then-girlfriend. Evidence is
unfairly prejudicial under Rule 403 when it would influence the jury to decide the case on an
improper basis. Cummings v. Malone, 995 F.2d 817, 824 (8th Cir. 1993). Permitting such
evidence may lead the jury to conclude that Mr. Avery “deserved what he got” here based upon
his alleged prior bad acts. Id. The Court concludes the danger of unfair prejudice substantially
outweighs the probative value, if any, of such evidence. Moreover, there is no evidence before
the Court that any of the school fights or prior fights lead to criminal charges against or
convictions of Mr. Avery. If the Court permits defendants to introduce evidence of school fights
or any other prior fights, the Court necessarily would be required to permit Mr. Avery to
introduce evidence to put into context, explain, or rebut defendants’ claims about fights they
highlight from Mr. Avery’s past. That results in a danger of undue delay and wasting time. For
all of these reasons, the Court excludes such evidence under Rule 403.
For these reasons, the first motion in limine is granted (Dkt. No. 55).
II.

Plaintiff’s Second Motion in Limine (Dkt. No. 56)

Ms. Walls moves to exclude “any and all evidence or testimony regarding the charges(s)
that Avery was facing or the reasons for his incarceration on April 18, 2011” (Dkt. No. 56, at 1).
There is no evidence currently before the Court that Mr. Avery was convicted of the charges he
was facing on April 18, 2011. There is evidence Mr. Avery was a juvenile at the time and that
the charges were brought against him as a juvenile.

The Court concludes that Rule 609,

therefore, does not provide an avenue of admissibility for this evidence. Rule 609 only permits
evidence of a juvenile adjudication “if it is offered in a criminal case.” Fed. R. Evid. 609(d)(1).
The Court is persuaded that defendants’ only use for this evidence is to demonstrate that Mr.

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Avery acted in accordance with a propensity for violence, which is inadmissible under Rules
404(b) and 406, as discussed above.
The Court also concludes that, pursuant to Rule 403, the probative value, if any, of this
underlying criminal charge is substantially outweighed by the danger of unfair prejudice to Mr.
Avery if this evidence is admitted. Specifically, Mr. Avery would be unfairly prejudiced by the
risk that the jury would disavow his claims against defendants only because he was facing
charges for a crime or would impermissibly conclude that he “got what he deserved” here
because of those charges. This would distract the jury from the issues related to Mr. Avery’s
civil claims and could result in the jury “punishing” Mr. Avery because of the charges he was
facing at the time of the incident at issue in this case. Accordingly, any evidence regarding the
specific criminal charge that Mr. Avery was facing on April 18, 2011, and the facts underlying
that charge are inadmissible.
The Court makes clear this ruling is limited to the specific criminal charge Mr. Avery
was facing on April 18, 2011, and the facts underlying that charge. The facts and circumstances
of what occurred in juvenile court and immediately before the altercation at the juvenile
detention center on April 18, 2011, are relevant and likely admissible.
For these reasons, the second motion in limine is granted (Dkt. No. 56).
III.

Plaintiff’s Third Motion in Limine (Dkt. No. 57)

Ms. Walls moves to exclude “any and all testimony regarding any gang affiliation that
Mr. Avery might have had” (Dkt. No. 57, at 1). As Mr. Shelby points out, the admissibility of
this evidence is left to the Court’s discretion, and this Court has “broad discretion when weighing
probative value against unfair prejudice.” United States v. Sparks, 949 F.2d 1023, 1026 (8th Cir.
1991) (discussing gang-affiliation evidence in a criminal case and affirming the district court’s

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admission of the evidence because it “was necessary to rebut the defendants’ version of events”).
The Eighth Circuit has also stated that evidence of gang affiliation is “admissible if relevant to a
disputed issue” but “is not admissible where is it meant merely to prejudice the [alleged gang
member] or prove his guilt by association with unsavory characters.” United States v. McKay,
431 F.3d 1085, 1093 (8th Cir. 2005) (discussing gang-affiliation evidence in a criminal case).
Defendants’ proposed purpose in seeking to admit evidence and testimony of Mr.
Avery’s alleged gang affiliation is to show that Mr. Avery’s role in the gang required him to
fight and that he acted in accordance with his propensity to fight on April 18, 2011. Defendants
contend Mr. Avery’s role in the gang required him to fight everyone, including individuals in
positions of authority such as adults and police officers. For the reasons set out above, the Court
concludes this evidence is propensity evidence that will be excluded under Rule 404(b).
Likewise, for the reasons stated above, the Court is not persuaded that this evidence is admissible
habit evidence pursuant to Rule 406. The evidence before the Court is not sufficiently specific to
permit the Court to conclude Mr. Avery had a habit of fighting based on his alleged gang
affiliation. For example, the evidence does not indicate the length of time Mr. Avery allegedly
belonged to a gang or the acts he allegedly performed while in the gang.
Pursuant to Rule 403, the Court also concludes that the probative value of evidence or
testimony regarding Mr. Avery’s past gang affiliation, if any, is substantially outweighed by the
danger of unfair prejudice to Mr. Avery if this evidence is admitted. There is too great a
likelihood that the jury would reject Mr. Avery’s claims solely based on his past affiliation with
a gang. This is the type of prejudicial evidence Rule 403 is designed to exclude.
For these reasons, the third motion in limine is granted (Dkt. No. 57).

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***
Defendants, their witnesses, and their counsel may not elicit testimony regarding,
introduce evidence of, or refer in argument or questioning before the jury in any way to any of
the evidence excluded by the Court’s rulings on these three motions in limine. As to all of these
issues, however, the Court finds instructive the Eighth Circuit’s decision in Cummings v.
Malone, 995 F.2d 817 (8th Cir. 1993). In Cummings, an inmate brought an action against prison
officials alleging a violation of the Eighth Amendment due to use of excessive force. Prison
officials appealed several evidentiary rulings by the district court. Id. at 820-21. The Eighth
Circuit concluded “the district court did not abuse its discretion in excluding [prison officials’]
direct testimony concerning the reason [the inmate] was initially picked up and excluding [the
prison official’s] testimony about her allegations of sexual assault.” Id. at 823. The Eighth
Circuit went on to conclude, however, “that the district court committed reversible error in
excluding the testimony about the sexual assault allegation and [the inmate’s] prior assault
conviction once [the inmate] ‘opened the door’ to these issues on direct examination.” Id.
If the parties and their counsel believe that a door has been opened for introducing the
evidence addressed by this Order, counsel are directed to approach the Court before introducing
or eliciting such evidence, testimony, or argument before the jury.
SO ORDERED this the 15th day of December, 2012.

___________________________________
Kristine G. Baker
United States District Judge

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