Kirkland v. Deputy O'Brien, et al

Filing 90

ORDER granting in part and denying in part 84 Defendants Motion in Limine; and Evidence of prior uses of excessive force by Defendants OBrien, Jones, and Avina will be inadmissible at trial, by Judge William J. Martinez on 9/26/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-2083-WJM-KLM
ROBERT KIRKLAND,
Plaintiff,
v.
DEPUTY JAMES O’BRIEN,
DEPUTY BRIAN D. JONES,
DEPUTY RAFAEL AVINA, and
DEPUTY HENRY E. TRUJILLO,
Defendants.

ORDER ON DEFENDANTS’ MOTION IN LIMINE

Plaintiff Robert Kirkland (“Plaintiff”) has brought this civil action against
Defendant Deputies James O’Brien, Brian D. Jones, Rafael Avina, and Henry E. Trujillo
(collectively “Defendants”), alleging constitutional violations under 42 U.S.C. § 1983.
(ECF No. 1.) The trial of this action is scheduled to commence on October 20, 2014,
with the Final Trial Preparation Conference set for October 14, 2014. (ECF Nos. 75,
88.)
This matter is before the Court on Defendants’ Motion in Limine (“Motion”). (ECF
No. 84.) For the reasons set forth below, the Motion is granted in part and denied in
part.
I. ANALYSIS
Defendants’ Motion seeks to preclude the following evidence from being
admitted at trial: (1) evidence of prior allegations or incidents of the use of excessive

force by Defendants and their witnesses; (2) evidence related to computation of
damages; (3) evidence related to Plaintiff’s self-inflicted injuries; and (4) evidence of a
judge’s finding in another matter that Defendant O’Brien’s testimony was not credible.
(ECF No. 84 at 1-7.) The Court will address each category of evidence in turn.
A.

Prior Allegations or Incidents of Excessive Force
Defendants move to exclude evidence of several prior incidents or allegations of

the use of excessive force by Defendants O’Brien, Jones, and Avina, and potential
witnesses Deputy Sliz and Sergeant Johnson. (ECF No. 84 at 1-2.) Defendants
contend that Plaintiff will seek to introduce such evidence to prove these individuals’
action in accordance with a character for committing excessive force, which is
excludable under Federal Rule of Evidence 404(b). (Id.)
Rule 404(b) prohibits the admission of evidence of a crime or wrong to prove a
person’s character in order to show that he acted in accordance with that character on a
particular occasion. Fed. R. Evid. 404(b)(1). However, the evidence may be admissible
under Rule 404(b)(2) for another purpose, such as motive, opportunity, plan,
knowledge, or absence of mistake. For evidence of a prior use of excessive force to be
admissible against a defendant in a § 1983 case, it must be offered for a proper
purpose. Chavez v. City of Albuquerque, 402 F.3d 1039, 1046 (10th Cir. 2005) (holding
that such evidence must also be relevant, must pass the Rule 403 balancing test, and
must be accompanied by a limiting instruction upon request).
As to the two potential witnesses who are not defendants, Deputy Sliz and
Sergeant Johnson, the Court finds Rule 404(b) inapplicable to the evidence of their
alleged prior uses of excessive force. Because Plaintiff has not alleged that either of
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these witnesses participated in the use of excessive force here, there is no reason that
Plaintiff would introduce evidence of such prior acts as character evidence in order to
show the witnesses’ action in conformity with that character on another particular
occasion. Accordingly, as to the alleged prior uses of excessive force by Deputy Sliz
and Sergeant Johnson, Rule 404(b) does not exclude that evidence, and Defendants
have made no showing that it is excludable on any other basis. However, if Plaintiff
seeks to introduce such evidence, Plaintiff must show that it is relevant and not unfairly
prejudicial. See Fed. R. Evid. 401, 403.
As to the evidence of the alleged prior uses of excessive force by Defendants
O’Brien, Jones, and Avina, the Court finds that Rule 404(b) applies to exclude the
evidence if it is used for character purposes. Therefore, Plaintiff must show that the
evidence will be used for another purpose in order for it to be admissible. Fed. R. Evid.
404(b)(2). Plaintiff argues that the evidence is admissible for several purposes: (1) to
show Defendants’ state of mind; (2) to rebut positive character evidence; (3) to rebut
testimony that no wrong was committed; and (4) to show reputation and opinion.
The Court finds none of these purposes applicable to the instant case. First, it is
well settled that an officer’s state of mind is irrelevant to a claim of excessive force,
because the claim is assessed under an objective standard. See Tanberg v. Sholtis,
401 F.3d 1151, 1168 (10th Cir. 2005) (“an of ficer’s personal motivations in using a
particular degree of force are irrelevant”). Second, any positive character evidence that
could be rebutted by the evidence of these prior acts, e.g., a character for
peacefulness, would be inadmissible under Rule 404(a), and Plaintiff has not explained
any other theory of character rebuttal. Third, there is no indication that this evidence
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will be relevant to attack Defendants’ credibility, as Defendants do not now deny that
the incidents occurred and there is no reason to believe they would do so on the
witness stand. Absent such a denial, the evidence of prior acts of excessive force do
not bear on truthfulness, and thus Rule 608(b) does not apply. Finally, Plaintiff cites
Rule 404(b) in support of his reference to reputation and opinion testimony, but those
types of evidence are not among the enumerated permissible uses in Rule 404(b).
Rather, evidence of a reputation for untruthfulness may be admissible in order to attack
the witness’s credibility under Rule 608(a). As the prior acts of excessive force do not
bear on truthfulness, they are not admissible as reputation or opinion evidence.
The Court finds that Plaintiff has failed to show that the prior incidents of
excessive force by Defendants O’Brien, Jones, and Avina are admissible for any
permissible purpose under Rule 404(b)(2). Accordingly, the Motion is granted as to the
evidence of those incidents committed by the Defendants, and denied as to potential
witnesses Deputy Sliz and Sergeant Johnson.
B.

Computation of Damages
Defendants argue that all evidence related to the computation of Plaintiff’s

damages should be excluded because Plaintiff has failed to provide a specific
computation despite Defendants’ specific request for it during discovery. (ECF No. 84
at 2-4.) Defendants admit that Plaintiff ultimately sent Defendants evidence of medical
damages, in the form of hospital billing records, but contend that Plaintiff’s failure to
specifically compute the damages caused by Defendants constitutes a discovery
violation under Federal Rule of Civil Procedure 26(a)(1)(A)(iii), and that the evidence
should therefore be excluded. (Id.) However, Defendants do not explain how they
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have been deprived of the ability to prepare a defense against this admittedly produced
evidence merely because Plaintiff has not added the relevant medical bills together or
otherwise provided them with a precise calculation.
Plaintiff’s response to this category of evidence is no more enlightening, as it is
composed of a single line, reading in its entirety as follows: “Plaintiff has provided
Defendants with all documentation responsive to this request.” (ECF No. 86 at 2.)
Plaintiff appears to contend that he has complied with all discovery requirements and
that the evidence should not be excluded, but does not elucidate further or explain what
was, and what was not, produced to Defendants.
The Court finds both parties’ briefs insufficient to evaluate this aspect of the
Motion. Accordingly, the Court declines to issue an evidentiary ruling at this time on
what is clearly a discovery dispute. The parties are strongly encouraged to attempt to
work out their differences on this dispute prior to the Final Trial Preparation Conference.
If the issue remains in dispute at that time, the parties may raise it during the Final Trial
Preparation Conference.
C.

Plaintiff’s Self-Inflicted Injuries
Defendants move to exclude evidence of the self-inflicted injuries Plaintiff

incurred when he used a razor to cut his wrists while incarcerated, arguing that such
evidence is not relevant. (ECF No. 84 at 4-5.)
Under the Federal Rules of Evidence, “‘[r]elevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401. Relevant evidence is generally admissible at trial, Fed.
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R. Evid. 402, but “may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence,” Fed. R. Evid. 403.
Here, Defendants argue that Plaintiff’s self-inflicted injuries are relevant only to
his First Amendment retaliation claim and his Eighth Amendment medical care claim
against Nurse Mahoney, both of which are no longer at issue in this case. (ECF No. 84
at 4-5.) Defendants state that if there is some remote relevance, it is outweighed by the
danger of unfair prejudice to Defendants and confusion of the issues. (Id. at 5.)
In response, Plaintiff argues that his self-inflicted injuries are indicative of his
emotional distress, which is demonstrative of the damages he suffered as a result of
Defendants’ actions. (ECF No. 86 at 2-3.) Based on the low bar for relevance set by the
Federal Rules, the Court agrees that these injuries are relevant to the issue of damages.
See Fed. R. Evid. 401. Furthermore, Defendants have not explained how admission of
such evidence would be unduly prejudicial or confusing to the jury, and have merely cited
Rule 403 in a conclusory manner. (See ECF No. 84 at 5.) The Court finds that
Defendants have failed to show that Rule 403 should apply to exclude this evidence.
Accordingly, the Motion is denied as to the evidence of Plaintiff’s self-inflicted
injuries.
D.

Judicial Finding of Non-Credibility
Finally, Defendants’ Motion seeks to preclude the admission of evidence of the

judicial finding in a prior case that Defendant O’Brien’s testimony was not credible.

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(ECF No. 84 at 6-7.) Defendants refer to the finding of a Boulder District Court Judge in
a criminal prosecution that then-Detective O’Brien’s testimony as to the defendant’s
failure to invoke the right to an attorney and the scope of his interrogation “[wa]s not
credible, nor [wa]s Detective O’Brien’s testimony that he is a sticker for the right to an
attorney”, and that such conduct was “egregious”. (Id. at 6; ECF No. 84-2 at 2-3.)
Pursuant to Federal Rule of Evidence 608(b), a court may allow crossexamination on specific instances of a witness’s conduct “if they are probative of the
character for truthfulness or untruthfulness.” The Tenth Circuit has set forth a list of
factors that a court should consider when determining whether a prior court’s finding
that a witness has lied is relevant or probative of untruthfulness for purposes of Rule
608(b):
(1) [W]hether the prior judicial finding addressed the witness’s veracity in
that specific case or generally; (2) whether the two sets of testimony
involved similar subject matter; (3) whether the lie was under oath in a
judicial proceeding or was made in a less formal context; (4) whether the
lie was about a matter that was significant; (5) how much time had
elapsed since the lie was told and whether there had been any intervening
credibility determination regarding the witness; (6) the apparent motive for
the lie and whether a similar motive existed in the current proceeding; and
(7) whether the witness offered an explanation for the lie and, if so,
whether the explanation was plausible.
United States v. Woodard, 699 F.3d 1188, 1195 (10th Cir. 2012) (quoting United States
v. Cedeño, 644 F.3d 79, 82-83 (2d Cir. 2011) (internal quotation marks and ellipses
omitted)). Where an analysis of these factors reveals that the prior lie is relevant and
highly probative of untruthfulness, the evidence is admissible under Rule 608(b). Id.
Both parties agree that the Woodard factors apply here, and that the third, fourth,
and fifth factors weigh in favor of admissibility—that is, the prior finding that Defendant
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O’Brien was untruthful was made under oath in a judicial proceeding, was regarding a
significant matter, and was made relatively recently before the events at issue in the
instant case. (See ECF Nos. 84 at 7; 86 at 4.) Both parties also agree that the first
Woodard factor, whether the finding of untruthfulness was specific to the case or was
general, weighs against admissibility, because the Boulder District Court’s finding was
specific to that case. (ECF Nos. 84 at 8; 86 at 4.) However, the parties disagree on the
remaining three factors, which the Court will consider in turn.
As to the second factor, whether the two sets of testimony involve similar subject
matter, Plaintiff contends that both sets of testimony involve Defendant O’Brien’s
“execution of his job and violation of the constitutional rights of persons in custody.”
(ECF No. 86 at 4.) However, the fact that Defendant O’Brien was performing the job of
a law enforcement officer and that constitutional violations are alleged in both instances
does not mean that his testimony involves similar subject matter. Rather, the testimony
in the Boulder District Court case involved the defendant’s invocation of the right to an
attorney and the scope of interrogation, while here the testimony will involve the alleged
excessive use of force against a detainee. The subject matter is patently dissimilar.
Therefore, the Court finds that the second factor weighs against admissibility.
As to the sixth factor, the apparent motives for untruthfulness in the two
proceedings, Plaintiff contends that Defendant O’Brien’s motive to lie in the instant
proceeding is stronger than in the prior proceeding, because the instant matter
potentially subjects him to personal liability. (ECF No. 86 at 4.) However, the sixth
factor does not inquire into the relative strength of the motives to lie; rather, it inquires
into whether the motives are similar. Defendant O’Brien’s apparent motive for
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untruthfulness in the prior proceeding was to ensure the admissibility of evidence
against a criminal defendant, while here the motive to be untruthful would be to avoid
personal liability. These are dissimilar motives, and thus the sixth factor weighs against
admissibility.
Finally, as to the seventh factor, whether the witness offered a plausible
explanation for the lie, the parties disagree on the plausibility of Defendant O’Brien’s
explanation that he had simply failed to prepare for his testimony and did not remember
the specifics of his interrogation of the defendant in the Boulder District Court
proceeding. (ECF Nos. 84 at 7; 86 at 4.) The Court agrees with Plaintiff that this
explanation is not plausible. Defendant O’Brien’s untruthfulness, as found by the
Boulder District Court, consisted of a statement that the defendant had not invoked his
right to an attorney and that the interview had taken only about 15 minutes, while the
Boulder District Court found that the defendant had requested an attorney multiple
times after 31 minutes of interrogation. (ECF No. 84-2.) Furthermore, Defendant
O’Brien testified in the prior case that he was a “stickler” for safeguarding a suspect’s
Miranda rights. (Id.) The nature of such a lie cannot plausibly be explained by a lapse
of memory, particularly when the truth revealed a potential violation of a defendant’s
constitutional rights in the face of the witness’s assertion that he is a stickler for
safeguarding such rights. Accordingly, the seventh factor weighs in favor of
admissibility.
Considering all seven factors, the Court finds that four weigh in favor of
admissibility, and three weigh against. Considering the content of the various factors,
the Court concludes that the Boulder District Court’s determ ination that Defendant
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O’Brien was not credible is sufficiently relevant and probative of untruthfulness to permit
its admissibility on cross-examination under Rule 608(b). See Woodard, 699 F.3d at
1195. Furthermore, the Court finds the factors that weigh in favor of admissibility to be
particularly compelling, given that Defendant O’Brien was found to have recently lied
under oath about a highly significant matter and failed to provide any plausible
explanation for the lie. The fact that the prior judicial determination was not a general
pronouncement on Defendant O’Brien’s untruthfulness and that the nature and subject
matter of the circumstances in the two cases was dissimilar does not make it less
probative of his untruthfulness as a witness. Therefore, the Court finds that the
evidence is admissible under Rule 608(b), and the Motion is denied as to the prior
judicial finding of Defendant O’Brien’s untruthfulness.
II. CONCLUSION
In accordance with the foregoing, the Court ORDERS as follows:
1.

Defendants’ Motion in Limine (ECF No. 84) is GRANTED IN PART and DENIED
IN PART as described herein; and

2.

Evidence of prior uses of excessive force by Defendants O’Brien, Jones, and
Avina will be inadmissible at trial.
Dated this 26th day of September, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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