Trulove v. San Francisco et al

Filing 446


Download PDF
1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 JAMAL RASHID TRULOVE, Case No. 16-cv-050 YGR Plaintiff, 7 v. 8 9 10 MAUREEN D’AMICO, MICHAEL JOHNSON, ROBERT MCMILLAN, AND JOHN EVANS, ET AL, Dkt. No. 436 Defendants. 11 United States District Court Northern District of California PRETRIAL ORDER NO. 7 DENYING DEFENDANT’S MOTION TO PRECLUDE PLAINTIFF FROM ADMITTING PORTIONS OF TRIAL TESTIMONY AND RULING ON OBJECTIONS TO DESIGNATIONS OF LUALEMAGA DEPOSITION TRANSCRIPT 12 Defendants have filed a belated motion in limine to preclude plaintiff from introducing 13 portions of witness Priscilla Lualemaga’s testimony at the preliminary hearing and trials in the 14 underlying criminal case. The parties have indicated that Lualemaga will be unavailable for 15 purposes of testifying at the trial of this civil action. Her deposition testimony in this matter will 16 be presented in lieu of her live testimony as a result. For the reasons stated herein, the Court 17 DENIES the motion to exclude the trial and preliminary hearing testimony. In addition, as stated in 18 the attached Appendix A, the Court Sustains In Part and Overrules In Part the parties’ objections 19 to their respective designations of Lualemaga’s deposition testimony. 20 Defendants contend that the criminal trial testimony plaintiff seeks to admit is not offered 21 for impeachment of Lualemaga’s deposition testimony, nor is it offered as inconsistent with her 22 deposition testimony. Thus, defendants argue, the prior testimony is hearsay and not subject to 23 any exception under the Federal Rules of Evidence, including Rule 801(d)(1)(A)1 (prior sworn 24 testimony inconsistent with current testimony), Rule 613 (prior inconsistent statements), and Rule 25 804(b)(1) (former testimony).2 Defendants further argue that, while the prior testimony is relevant 26 1 27 28 Defendants cite Rule 804(d)(1)(A) which the Court interprets as a typographical error since no such section exists. 2 Defendants seek to admit limited portions of Lualemaga’s testimony for rehabilitation. 1 to the issue of whether certain evidence was “material” for purposes of plaintiff’s Brady and 2 Tatum claims, it would be unduly prejudicial to permit only portions of Lualamaga’s testimony to 3 be offered in isolation, i.e., without submitting to the jury the entire transcripts of both criminal 4 trials for context. 5 Plaintiff counters that the testimony he seeks to admit is not hearsay because it is not being offered for the truth of the matters to which she testified, but instead to demonstrate its falsity. 7 Plaintiff further argues that the prior testimony is subject to the hearsay exceptions in Rules 8 804(b)(1) and 801(d)(1) in any event. Plaintiff intends to offer portions of Lualemaga’s sworn 9 testimony to: (1) establish the evidence that he contends caused him to be prosecuted in violation 10 of his constitutional rights; (2) provide those portions on which Lualemaga was questioned during 11 United States District Court Northern District of California 6 her deposition and which were inconsistent with her trial testimony; and (3) for excerpts from the 12 second trial, to establish the truth of certain details of her testimony relevant to the investigation or 13 for impeachment purposes. 14 As to the first category, the prior testimony is not being offered for its truth, but to show 15 that the statements were made, and their effect on the listeners, i.e., the juries in the criminal trials 16 before whom the testimony was made, resulting in plaintiff’s conviction at the first trial, and his 17 prosecution and acquittal in the second. Thus, they are not subject to exclusion as hearsay. See 18 United States v. Kirk, 844 F.2d 660, 663 (9th Cir. 1988) (prior trial testimony of witnesses in 19 timeshare fraud/RICO action was not hearsay per rule 801(c) because testimony regarding 20 misrepresentations was not admitted for truth but “to establish that the statement was made or to 21 demonstrate the effect the statement had on the hearer”). 22 Likewise, the second category of testimony, proffered in conjunction with Lualemaga’s 23 deposition testimony answering questions about it, is not properly excluded as hearsay. During 24 her deposition, Lualemaga was asked to read her prior trial testimony and then answer questions 25 about it. Including the testimony on which she was questioned will make the deposition testimony 26 understandable. It is not being offered for its truth but to provide that context, or to show that it is 27 28 (Motion at 2, n.1.) 2 1 inconsistent with Lualemaga’s deposition testimony in this action. Further, even if the prior 2 testimony were offered for its truth, it would meet the hearsay exceptions in Rule 801(d) to the 3 extent it shows Lualemaga’s trial testimony was inconsistent with her deposition testimony. Rule 4 801(d) provides that: [a] statement that meets the following conditions is not hearsay: (1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; 5 6 7 8 9 10 Thus, the Court will not bar plaintiff’s introduction of Lualemaga’s trial testimony offered for purposes of providing context for the deposition testimony, or to contradict that deposition testimony, on hearsay grounds. United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 The third category offered by plaintiff is certain portions of Lualemaga’s testimony at the second trial. These portions are being offered for their truth, or for impeachment of subsequent statements about her view on the night of the murder. Specifically, plaintiff seeks to introduce statements from the second trial which indicate that Lualemaga’s window was closed on the night of the murder, and describe how closely she viewed the wall of photos at the police station. Rule 804(b) provides that the rule against hearsay does not exclude testimony if the declarant is unavailable and the statement is former testimony that: “(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had--or, in a civil case, whose predecessor in interest had-an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” F. R. E. 804(b). The Ninth Circuit has not decided the meaning of “predecessor in interest” for purposes of 23 this rule. However, district courts within the Ninth Circuit have found that “[u]nder the modern 24 view of the former testimony exception . . . parties who are found to have an ‘opportunity and 25 similar motive’ like that of the current party are deemed to be predecessors in interest.” Lisker v. 26 27 City of Los Angeles, No. CV09-09374 AHM AJWX, 2012 WL 3610134, at *1 (C.D. Cal. Aug. 20, 2012) (citing Hynix Semiconductor Inc. v. Rambus Inc., 250 F.R.D. 452, 458 (N.D.Cal.2008) 28 3 (“The modern test does not require privity between the current party and the party who 2 participated in the prior proceeding.”). Similarity of motive does not require that the motives be 3 identical between the proceedings. See United States v. Salerno, 505 U.S. 317, 326 (1992) 4 (Blackmun, J., in concurrence). Thus, in Lisker, the court found that a criminal prosecutor in a 5 murder trial had a similar opportunity and motive in developing the testimony of two witnesses 6 found unavailable in a later section 1983 civil case against the investigating officers. Lisker, 2012 7 WL 3610134, at *1; Carpenter v. Dizio, 506 F. Supp. 1117, 1124 (E.D. Pa.), aff'd sub nom. 8 Appeal of Allmond, 673 F.2d 1298 (3d Cir. 1981), and aff'd, 673 F.2d 1298 (3d Cir. 1981) 9 (eyewitness account of the confrontation between section 1983 plaintiff and officers accused of 10 excessive force was essential to both criminal trial and civil suit, giving prosecutor and attorneys 11 United States District Court Northern District of California 1 for officers same motive to cross-examine eyewitness for purposes of Rule 804 predecessor in 12 interest determination). Here, the prosecutors in the underlying criminal proceedings had the 13 opportunity to examine Lualemaga, and had a similar motive as the defendants here in examining 14 her: to establish the credibility of her identification of Trulove and the integrity of their 15 investigation. The testimony from the second trial offered by plaintiff for its truth--concerning 16 how well Lualemaga could have viewed the scene and how well she reviewed the photos on the 17 wall in the police station--therefore is admissible under Rule 804(b)(1). 18 The Court finds defendants’ suggestion that the portions of the trial testimony should only 19 be presented if the entire transcript of the prior trials is read into evidence to be without merit. The 20 issues before the jury in this civil case are limited, and the jury does not need to rehear the prior 21 two criminal trials in their totality in order to decide them. See Jimenez v. City of Chicago, 732 22 F.3d 710, 719 (7th Cir. 2013) (plaintiff whose wrongful murder conviction was vacated was not 23 required to present entire criminal trial transcript in order to support his due process Brady claim 24 against former police detective). 25 Thus, defendants’ motion to exclude portions of the testimony from the criminal trials and 26 preliminary hearing is DENIED. However, defendants may designate additional testimony from 27 the prior trials or preliminary hearing to be read into the record here, subject to existing time 28 limitations. Accordingly, the portions of the prior criminal trial testimony at pages 666-68 maybe 4 1 2 3 be read into evidence by plaintiff on Monday, March 12, 2018. Attached hereto as Appendix A are the Court’s rulings on the parties’ objections to their respective designations of Lualemaga’s deposition testimony. 4 This terminates Docket No. 171. 5 IT IS SO ORDERED. 6 7 8 Dated: March 11, 2018 ______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 APPENDIX A XXXXXXXXX Objections to designations are overruled ("O/R") in part and sustained in part as follows: SEE ORDER

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?