Valdez v. Derrick, III et al
Filing
232
ORDER Granting in Part and Denying in Part both Defendants' 197 Joint Motion in Limine and Plaintiff's 199 Motion in Limine. ORDERED by Judge William J. Martinez on 3/24/2021.(angar, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0109-WJM-STV
MICHAEL VALDEZ,
Plaintiff,
v.
ROBERT MOTYKA, Jr., Denver Police Officer, in his individual capacity, and
CITY AND COUNTY OF DENVER, a municipality,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART BOTH DEFENDANTS’ JOINT
MOTION IN LIMINE AND PLAINTIFF’S MOTION IN LIMINE
Defendant Robert Motyka, Jr., a Denver police officer, shot Plaintiff Michael
Valdez at least once at the end of a car chase on the morning of January 16, 2013.
Valdez claims that Motyka opened fire after all danger had passed, in violation of the
Fourth Amendment, and that Denver has failed to train its police officers to prevent such
violations. Familiarity with the parties’ respective versions of events, recounted
elsewhere (e.g., ECF No. 152), is presumed.
Before the Court is Defendants’ Joint Motion in Limine (“Defendants’ Motion”),
filed June 10, 2020. (ECF No. 197.) Also before the Court is Plaintiff Michael Valdez’s
Motion in Limine as to Defendants’ Motyka and City and County of Denver (“Plaintiff’s
Motion”), filed June 10, 2020. (ECF No. 199.)
For the reasons explained below, Defendant’s Motion is granted in part and
denied in part and Plaintiff’s Motion is granted in part and denied in part.
I. LEGAL STANDARDS
“The admission or exclusion of evidence lies within the sound discretion of the
trial court . . . .” Robinson v. Mo. Pac. R.R. Co., 16 F.3d 1083, 1086 (10th Cir. 1994);
see also United States v. Golden, 671 F.2d 369, 371 (10th Cir. 1982) (“Trial judges
have discretion to decide whether an adequate foundation has been laid for the
admission of evidence.”).
Under Federal Rule of Evidence 401, “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would without the evidence; and
(b) the fact is of consequence in determining the action.” Relevant evidence is
generally admissible and should only be excluded “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.” Fed. R.
Evid. 403. “Irrelevant evidence is not admissible.” Fed. R. Evid. 402.
II. DEFENDANTS’ MOTION IN LIMINE (ECF No. 197)
Defendants argue that the Court should preclude evidence and argument
regarding: (1) the dismissal of Plaintiff’s criminal case stemming from this incident; (2)
unrelated incidents involving Motyka’s use of force; (3) a dramatized video reenactment
of the events of January 16, 2013; (4) Defendants’ experts who will not testify at trial; (5)
comparisons of Motyka’s conduct to other officers at the scene; (6) Plaintiff’s allegation
that unidentified Denver Police Department officers used force against Plaintiff at the
end of the January 16, 2013 incident; and (7) punitive damages in Plaintiff’s opening
2
statement, as well as other “inflammatory punitive damages language.” (ECF 197 at 1.)
A.
Dismissal of Subsequent Criminal Case
Defendants anticipate that “Plaintiff may attempt to support his Fourth
Amendment claim by seeking to introduce evidence that the criminal charges filed
against him in connection with the underlying incident were dismissed.” (ECF No. 197
at 2.) Defendants request that the Court preclude evidence regarding the dismissal of
Plaintiff’s criminal case because this evidence “has no bearing on whether a reasonable
officer faced with the facts known to [Motyka] at the time [of] the incident would have
had probable cause to believe that Plaintiff posed an imminent threat to the safety of
[Motyka] or others.” (Id. at 3.) According to Defendants, any evidentiary value of this
information is “substantially outweighed by the dangers enumerated in Rule 403.” (Id.
at 3–4.)
In response, Plaintiff argues that “while Defendants try to create an impression
[Plaintiff] is guilty of a significant crime related to this case, they simultaneously seek to
preclude evidence that would establish that impression as false.” (ECF No. 215 at 1.)
He argues that introduction of evidence that his criminal case was dismissed is “key” to
avoid jury confusion. (Id.)
The Court agrees with Plaintiff. To be sure, the fact that Plaintiff’s criminal
charges were dropped has no bearing on whether Motyka used excessive force against
Plaintiff on January 16, 2013. See Sebright v. City of Rockford, 585 F. App’x 905, 907
(7th Cir. 2014) (recognizing that a majority of circuit courts have agreed that “the
lawfulness of an arrest is irrelevant to an excessive force analysis”); Beier v. City of
3
Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) (“Because the excessive force and false
arrest factual inquiries are distinct, establishing a lack of probable cause to make an
arrest does not establish an excessive force claim, and vice-versa.”). Nonetheless, the
jury will undoubtedly hear testimony that Plaintiff was arrested after his encounter with
Motyka on January 16, 2013. If the Court were to preclude testimony that Plaintiff’s
criminal charges were later dropped, the jury might incorrectly speculate that Plaintiff’s
arrest resulted in a criminal conviction, which would prejudice Plaintiff. See, e.g., Stroud
v. Boorstein, 2014 WL 5784639, at *2 (E.D. Penn. Nov. 5, 2014) (concluding in
excessive force and battery case that “[p]rejudice may result to [p]laintiff if a jury were to
learn that he was charged with [aggravated assault and reckless endangerment], but
not hear that he was found not guilty of them”); Saunders v. City of Chicago, 320 F.
Supp. 2d 735, 739 (N.D. Ill. 2004) (“While the disposition of the charge is not relevant to
whether the defendants used excessive force, if the battery charge is mentioned, the
disposition must be included in order to prevent the jury from assuming that [plaintiff]
was found guilty.”).
Of course, Defendants may elect not to introduce any evidence, or make or elicit
any attorney or witness argument or comment, about Plaintiff’s arrest on January 16,
2013. In such event, Plaintiff will similarly not be permitted to introduce evidence or
make or elicit any attorney or witness argument or comment, about the fact that the
subject criminal charges against him were subsequently dropped.
Accordingly, the Court denies this portion of Defendants’ Motion.
4
B.
Unrelated Incidents Regarding Motyka
Defendants seek to preclude evidence under Federal Rules of Evidence 401,
403, and 404 regarding unrelated incidents regarding Motyka, namely: (1) the excessive
force allegations made against Motyka in Martinez v. Valdez, Civil Action No. 11-cv0102-MSK-KLM (D. Colo.); (2) complaints pertaining to use of force by Motyka in 2009
and 2010; and (3) statements made by Motyka during protests surrounding the
Democratic National Convention in 2008. (ECF No. 197 at 4.) Specifically, Defendants
contend that “Plaintiff cannot identify any way in which the proposed evidence could
establish any element of liability with respect to his municipal liability claims” as “there is
no factual similarity between the other allegations against [Motyka] and this incident,”
and “Plaintiff has not identified any evidence demonstrating that such complaints
possessed merit.” (Id. at 4–5.) Defendants further argue that the evidence constitutes
improper character evidence under Rule 404 and that “any probative value of such
evidence is substantially outweighed by the danger of prejudice” to Motyka. (Id. at 5–6.)
Plaintiff responds that these incidents exemplify “Denver’s pervasive failures to
investigate use-of-force complaints and take corrective action,” which are “among the
municipality’s ‘deliberate action[s]’ that are the ‘moving force behind the plaintiff’s
deprivation of federal rights.’” (ECF No. 215 at 2–3 (quoting Bd. of Cnty. Comm’rs of
Bryan Cnty. v. Brown, 520 U.S. 397, 400 (1997)).)
However, in ruling on Denver’s Motion for Summary Judgment (the “Summary
Judgment Order”), the Court considered the probative value of the various use of force
allegations made against Motyka in Martinez v. Valdez and the 2009/2010 complaints.
5
(ECF No. 224.) As the Court noted in the Summary Judgment Order, “the jury actually
found against Martinez on his claim that Motyka had used excessive force” and Denver
did not conclude that Motyka had used excessive force in the 2009/2010 incidents. (Id.
at 6–7 (emphasis in original).) Moreover,
all three of the alleged excessive force incidents proffered by
Valdez involved bodily force only (punching, kicking, etc.) in
the process of taking someone into custody. They do not
establish a pattern of failing to investigate officers’ choices to
discharge their firearms, which is a materially different
situation. Cf. Carney v. City & Cnty. of Denver, 534 F.3d
1269, 1274 (10th Cir. 2008) (“In attempting to prove the
existence of such a continuing, persistent and widespread
custom, plaintiffs most commonly offer evidence suggesting
that similarly situated individuals were mistreated by the
municipality in a similar way.” (internal quotation marks
omitted)).
(Id. at 8.) As a result, the Court concluded that the prior use of force incidents “have no
probative value as to Denver’s alleged failure to investigate and discipline Motyka for
excessive force” and granted summary judgment in favor of Denver on Valdez’s failureto-investigate/discipline theory of Monell liability. 1 (Id. at 8.)
Plaintiff also argues that evidence of Motyka’s prior use of force incidents are
admissible under Rule 404(b) to show the absence of mistake. (ECF No. 215 at 3
(“Should Defendants argue the shooting of [Plaintiff] was a one-time error or the product
of Motyka’s mistaken circumstances, past incidents allow the jury to infer instead that
the events in question arise from a style of policing, not a mistake”.).)
Under Rule 404(b)(1), the admission of evidence of a crime or “bad act” to prove
1
Plaintiff does not argue that evidence regarding Motyka’s prior use of force incidents is
6
a person’s character “in order to show that on a particular occasion the person acted in
accordance with the character” is precluded from the jury’s purview. However, such
evidence may be admissible for other purposes, “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2). Such evidence is admissible if four factors are satisfied: (1) the
evidence is offered for a proper purpose; (2) the evidence is relevant; (3) the probative
value of the evidence is not substantially outweighed by its potential for unfair prejudice;
and (4) the district court provides an appropriate limiting instruction upon request. See
Chavez v. City of Albuquerque, 402 F.3d 1039, 1046 (10th Cir. 2005).
Although Plaintiff argues that Motyka’s other use of force incidents should be
permitted to show absence of mistake, 2 the Court notes that Motyka does not argue that
he mistakenly shot at Plaintiff or did not know of the type and degree of force that he
used on Plaintiff. To the contrary, Defendants’ own version of the facts confirms that
Motyka intentionally fired at Plaintiff in what they contend was a reasonable use of force
under the circumstances. (See ECF No. 152 at 6–10.) Thus, Plaintiff has failed to
show that evidence regarding Motyka’s other use of force incidents is relevant at this
stage. See Chavez, 402 F.3d at 1046 (finding district court did not abuse its discretion
relevant to his remaining failure to train theories of Monell liability. (See generally ECF No.
215.)
2
To the extent Plaintiff wishes the jury to conclude that Motyka often intentionally uses
excessive force, such evidence is inadmissible under Rule 404(a). See Tanberg v. Sholtis, 401
F.3d 1151, 1170 (10th Cir. 2005) (“If, as seems only too likely, [p]laintiffs wished the jury to infer
that Officer Sholtis often intends to use excessive force when arresting the hapless innocents
who cross his path, the evidence is offered to prove propensity rather than for a proper purpose,
and was properly excluded.”).
7
in precluding evidence of prior excessive force claims regarding use of police dog under
Rule 404(b) where “[t]here was no claim or defense suggesting that [the officer]
accidentally or mistakenly used the police dog”).
Even if this evidence were relevant, the probative value of introducing evidence
of Motyka’s other use of force incidents to show an absence of mistake is substantially
outweighed by the danger of unfair prejudice to Defendants, particularly given: (1) the
lack of similarity between the Motyka’s other alleged use of force incidents and the
events of January 16, 2013, and (2) the fact that the record of Motyka’s other incidents
does not unambiguously permit the conclusion that he used excessive force. See
Tanberg, 401 F.3d at 1170 (“Given the lack of similarity between the other acts
evidence and [p]laintiffs’ arrest, and the fact that the record does not permit the
conclusion [defendant] used excessive force in the other arrests, the proffered evidence
would do little to establish [defendant’s] awareness that his use of force in arresting
[p]laintiffs might be problematic.”); see also Martinez v. Gabriel, 2013 WL 798236, at *2
(D. Colo. March 5, 2013) (determining the probative value of summaries of past
administrative investigations into officers involved in the action is “substantially
outweighed by the danger of prejudice”).
Thus, the Court grants this portion of Defendants’ Motion. Plaintiff is precluded
from introducing evidence and/or argument regarding: (1) the allegations made against
Motyka in Martinez v. Valdez; (2) complaints pertaining to uses of force by Motyka in
2009 and 2010; and (3) statements made by Motyka during protests surrounding the
Democratic National Convention in 2008.
8
C.
Video Reenactment of the January 16, 2013 Encounter
Defendants next seek to exclude evidence of a dramatized video reenactment of
Motyka’s encounter with Plaintiff, which was created by the Denver Police Foundation
and presented at an award ceremony honoring Motyka and other officers involved in the
January 16, 2013 encounter. 3 (ECF No. 197 at 7.) According to Defendants, “[t]he
reenactment does not accurately depict the incident, nor does it reflect any version of
the events offered by [Motyka], nor any other trial witness” and therefore constitutes
inadmissible hearsay and lacks probative value. (Id.)
Plaintiff counters that the reenactment portion of the video is admissible against
Motyka under Federal Rules of Evidence 802(d)(2)(B) and 802(d)(2)(C) as an adoptive
admission and authorized statement. (ECF No. 215 at 3.) Moreover, Plaintiff contends
that “the video is the best evidence of glorification of bad police tactics.” (Id. at 4.)
The Court is very troubled by the fact that a non-profit organization in some way
affiliated with the Denver Police Department would create a dramatized video
reenactment of Motyka’s January 16, 2013 encounter with Plaintiff, and then play the
video at an award ceremony. However, notwithstanding the distasteful and highly
troubling nature of the video (to say nothing of the motive and intent of such an
organization in creating such a video), the Court cannot conclude that the dramatized
video reenactment should be admissible at trial.
Importantly, although Plaintiff argues that “Motyka never disavowed the truth of
3
Defendants do not seek to preclude the entire video played at the award ceremony,
just the portion of the video containing the reenactment. (See ECF No. 197 at 7 n.3.)
Accordingly, the Court will confine its analysis and ruling to the portion of the video containing
9
the reenactment” and that portions of the reenactment “tracks” Motyka’s statements,
Plaintiff does not contend that the reenactment is an accurate depiction of the events of
January 16, 2013. For the Court, this is the dispositive factor for determining the
admissibility of the reenactment video. After all, visual evidence generally has a very
powerful effect on a trier of fact. The likelihood that a jury will mistakenly conclude that
the reenactment—which, critically, was not created by either Motyka or Denver—is
intended to reflect Defendants’ version of January 16, 2013 outweighs any probative
value that it may have.
Thus, the Court grants this portion of Defendants’ Motion. Plaintiff is precluded
from introducing evidence of and/or argument regarding the dramatized video
reenactment of the January 16, 2013 encounter.
D.
Defendants’ Experts
Defendants anticipate that “Motyka and the other involved officers, who were
previously defendants in this case, could be asked questions pertaining to meetings
they held with Defendants’ non-testifying experts Ron McCarthy and Tom Martin.” (ECF
No. 197 at 8.) Defendants ask that “Plaintiff not be allowed to reference Mr. McCarthy
and Mr. Martin because it may lead jurors to conclude that Mr. McCarthy and/or Mr.
Martin are not testifying at trial because they had opinions that were not favorable to
Defendants.” (Id.)
In response, Plaintiff contends that Motyka and other then-defendants “met
together in the presence of their counsel and each of their two retained experts,
the dramatized reenactment of the events of January 16, 2013.
10
including their ‘crime scene reconstruction’ expert” twice “to discuss their varying
accounts of the shooting.” (ECF No. 125 at 4.) Accordingly, Plaintiff argues that “[t]he
jury is entitled to understand Motyka’s and Denver’s extensive efforts to coordinate the
officers’ stories as impeachment of their in-court testimony.” (Id.)
The Court agrees that to the extent Motyka met with other officers involved in
the January 16, 2013 encounter to coordinate their stories, this fact and the extent to
which their stories evolved and changed over time are undoubtedly fair game for
Plaintiff to explore during trial as impeachment testimony. Nonetheless, the Court also
agrees with Defendants that there is a risk that the jury may erroneously conclude that
McCarthy and Martin are not testifying at trial because they hold opinions that are
unfavorable to Defendants. Thus, while the Court will permit Plaintiff to explore Motyka
and other witnesses’ shifting stories, Plaintiff will not be permitted to explore the fact that
Defendants’ experts are no longer testifying at trial.
According, this portion of Defendants’ Motion is granted in part and denied in part
as set forth herein.
E.
Comparisons of Motyka’s Conduct With Other Officers’ Conduct At the
Scene on January 16, 2013
Defendants “anticipate Plaintiff will attempt to argue that [Motyka’s] use of lethal
force against Plaintiff was unreasonable because Officer Jeremy Olive, who was the
first officer on scene, did not direct any force at Plaintiff,” and will compare Motyka’s
conduct with that of “later arriving officers.” (ECF No. 197 at 9–10.) Defendants
therefore request that the Court preclude any argument and testimony comparing
11
Motyka’s conduct with the conduct of the other officers at the scene, arguing that such
evidence is irrelevant to Plaintiff’s excessive force claim against Motyka. (ECF No. 197
at 8–9.) In support of their request, Defendants argue that “[f]ederal courts have
repeatedly noted that the subjective beliefs and decisions of non-party officers are not
relevant to an excessive force claim because, in evaluating the objective
reasonableness of an officer’s actions, the focus is on what that officer reasonably
perceived at the time and whether a reasonable officer armed with the same information
would have had the same perception and acted in a like fashion.” (Id. at 8–9.)
In assessing Plaintiff’s excessive force claim, the jury must consider “whether
[Motyka’s] actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to [his] underlying intent or motivation.” Graham v.
Connor, 490 U.S. 386, 397 (1989). However, while it may be true that the “subjective
lack of fear” of an officer with a different perspective of an encounter “sheds little weight
on whether [defendant’s] conduct was objectively reasonable,” Penley v. Eslinger, 605
F.3d 843, 852 (11th Cir. 2010), the Court cannot conclude that the perspectives of other
officers at the scene are irrelevant. The manner in which other officers acted during the
January 16, 2013 encounter may well bear on whether Motyka’s actions were
objectively reasonable. Moreover, such information is critical to set the scene for the
jury. To the extent the parties dispute whether the other officers at the scene had the
same particularized information as Motyka (and therefore are proper comparators of
objectively reasonable conduct), the parties will have ample opportunity to explore this
subject matter on cross-examination and in attorney argument. However, precluding
12
any argument on this topic would be inappropriate at this juncture.
Accordingly, this portion of Defendants’ Motion is denied.
F.
Allegations of Subsequent Excessive Force by Other Officers
Defendants seek to preclude testimony that after Plaintiff was shot, “an
unidentified [Denver Police Department] officer tried to make him stand up and, when
he couldn’t, pulled him up by the neck into a headlock position then dragged him
toward[ ] the street where another unidentified officer squeezed his legs to slam him on
a gurney.” (ECF No. 197 at 11.) Defendants contend that such evidence is “not
relevant to the claims in this case and could be highly prejudicial” to Motyka. (Id.)
In response, Plaintiff contends that “[t]he mistreatment of Mr. Valdez is
‘inextricably intertwined’ evidence,” is “necessary to complete the party’s story,” and is
relevant to damages. (ECF No. 215 at 5–6.) The Court agrees with Plaintiff.
Of course, Plaintiff’s contention that other officers subjected him to excessive
force does not tend to make it more or less likely that Motyka engaged in excessive
force. The Court also recognizes that Plaintiff’s introduction of evidence of other
officers’ conduct may cause some prejudice to Motyka; however, such prejudice is
outweighed by the Plaintiff’s need to exhaustively recount all events of January 16,
2013 and to explain the full nature of his injuries. See Guzman v. City of Chicago, 2010
WL 11627265, at *2 (N.D. Ill. Feb. 26, 2010) (recognizing that evidence of other officers’
conduct is necessary to fully explain the events and therefore is relevant to provide
context and to complete the party’s story).
Accordingly, the Court denies this portion of Defendants’ Motion. Nonetheless,
13
Plaintiff is advised that this aspect of the January 16, 2013 encounter is not of primary
importance in this case and should not receive significant attention during trial.
G.
Discussion of Punitive Damages
Defendants request that the Court preclude Plaintiff “from mentioning punitive
damages until closing statements” on the basis that a “premature reference to punitive
damages, directly or indirectly[,] has a strong possibility of inflaming the passions of the
jury, thus causing prejudice to the Defendants.” (ECF No. 197 at 11–12.) Defendants
further ask that Plaintiff be “barred from using inflammatory language in support of” his
punitive damages claim, such as asking jurors to “send a message,” “act as the
conscience of the community,” or “place themselves in Plaintiff’s shoes.” (Id. at 12.)
Plaintiff responds that he “has not only a right but a responsibility to select jurors
able to follow the law regarding punitive damages and also to give selected jurors a
roadmap of evidence that will lead them to award punitive damages at the conclusion of
the case.” (ECF No. 215 at 6.)
The Court concludes that Plaintiff’s ability to present a roadmap of his case in the
manner as he sees fit outweighs any potential prejudice from allowing Plaintiff to
reference punitive damages prior to his closing argument. Further, the Court will
instruct the jury on the appropriate standard for punitive damages after closing
arguments and presumes that the jury will analyze the parties’ evidence according to
that standard, not based on attorney argument. See Morgan v. Baker Hughes Inc., 947
F.3d 1251, 1260 (10th Cir. 2020) (recognizing that courts presume that the jury follows
its instructions during deliberations).
14
Moreover, to the extent Defendants seek a pretrial ruling on the specific
language that Plaintiff’s counsel may use when discussing the punitive damages claim,
this request is denied. The Court expects that counsel are aware of the appropriate
limits of attorney argument at trial within the Tenth Circuit, and will tailor their arguments
accordingly.
Accordingly, this portion of Defendants’ Motion is denied.
III. PLAINTIFF’S MOTION (ECF No. 199)
Plaintiff argues that the Court should preclude evidence and argument regarding:
(1) the alleged criminal actions by the Montoya family occurring prior to the January 16,
2013 shooting; (2) events subsequent to January 16, 2013 involving the Montoya family;
(3) Plaintiff’s criminal history; (4) Plaintiff’s history of prison sentences, drug use, and
homelessness; and (5) undisclosed expert opinion testimony by law enforcement
officers. (ECF No. 199.)
A.
Events of January 16, 2013 Preceding Motyka’s Shooting of Plaintiff
Plaintiff anticipates that Defendants “intend to offer evidence concerning earlier
alleged criminal acts by persons in the red truck that occurred without the knowledge or
participation of [Plaintiff] and also evidence concerning activities of the red truck’s
driver.” (ECF No. 199 at 3.) Plaintiff contends that “[b]ecause Motyka was unaware of
the events earlier in the day concerning the ‘red truck’ and its occupants (minus
[Plaintiff]), such evidence is irrelevant to the question” of whether Motyka’s actions are
objectively reasonable and should therefore be precluded. (Id.)
In response, Defendants argue that Plaintiff’s argument is based on a “false
15
premise” that Motyka was unaware of the criminal activity of the red truck’s occupants
prior to the shooting. (ECF No. 217 at 1–2.) Defendants note that on the afternoon of
January 16, 2013, “Motyka (along with all other officers) had received ‘Be On the
Lookout’ (‘BOLO’) alerts about the truck and the passengers,” which warned
dispatchers and officers of “several incidents involving 97 Re[d]” vehicle, and “Sus[pect]
Veh[icle] in felony menacing Thornton / shots fired . . . Per Thornton Johhny Montoye
[sic] strung out meth had blk semi auto handgun.” (Id. at 2.) They argue that “[s]ince it
is incorrect for Plaintiff to maintain that [Motyka] ‘was completely unaware’ of these
events, it is equally mistaken to assert that” such evidence is irrelevant to the
determination regarding the reasonableness of Motyka’s actions. (Id.) Defendants
further contend that if Plaintiff testifies regarding his own innocence or his actions that
day prior to the shooting, then Defendants’ contrary evidence rebutting those assertions
must also be relevant and admissible. (Id.)
The Court finds that evidence of prior activity by the red truck’s occupants of
which Motyka was unaware could not have informed his perception of risk when he
arrived on the scene and is therefore irrelevant to Plaintiff’s excessive force claim and
unfairly prejudicial to Plaintiff. 4 However, to the extent that Motyka had demonstrable,
personal knowledge of activity of the red truck’s occupants prior to making contact with
Plaintiff, such evidence is relevant to the reasonableness of Motyka’s actions and will be
permitted at trial.
4
The Court makes no finding at this time regarding whether certain evidence regarding
the prior criminal activities of the red truck may be admissible as impeachment evidence in the
event that Plaintiff testifies.
16
Thus, the resolution of this portion of Plaintiff’s Motion depends on the specific
evidence introduced at trial regarding Motyka’s personal knowledge. Defendants are on
notice that the Court will sustain objections to the introduction of evidence regarding
prior criminal activity by the red truck’s occupants unless and until Defendants introduce
evidence of Motyka’s prior actual knowledge regarding these topics.
Accordingly, this portion of Plaintiff’s Motion is denied without prejudice to being
renewed as an objection(s) at trial.
B.
Events Subsequent to January 16, 2013 Involving the Montoya Family
Plaintiff seeks to preclude evidence regarding events involving the Montoya
family after January 16, 2013. (ECF No. 199 at 4.) Specifically, he contends that:
•
Johnny Montoya was killed during the January 16, 2013 encounter with
police, and drugs were subsequently found in his system;
•
Chuck Montoya was convicted at trial of various crimes and is serving a
state sentence of 151 years’ imprisonment;
•
Jude Montoya pled guilty to attempted murder and is serving a state
sentence of 40 years’ imprisonment;
•
Alyssa Moralez was interviewed by police and released; and
•
The “Montoyas and their family members made threatening statements to
and concerning law enforcement, widely discussed their gang affiliations
and drug distribution, and other bad acts.”
(Id.) Plaintiff argues that “[t]here is absolutely no evidence that [he] had any role or
participation in any of these events” and that evidence regarding these events does not
17
bear on the question about whether Motyka used excessive force. (Id. at 4–5.) Thus,
according to Plaintiff, “[t]he evidence is not only irrelevant under Rule 401, but highly
and unduly prejudicial under Rule 403 because it implies that [Plaintiff] had knowledge
or of participation in any of these subsequent proceedings when there is no evidence
that he did.” (Id. at 5.)
In response, Defendants argue that such evidence is relevant to Plaintiff’s claim
that Denver failed to properly investigate and discipline its police officers for the use of
force and that “Denver must have the ability to defend itself with evidence of the
complete and thorough investigation that followed the shooting.” (Id. at 2–3.) However,
after Plaintiff’s Motion was fully briefed, the Court granted summary judgment in favor of
Denver on Plaintiff’s failure-to-investigate/discipline theory of Monell liability. (ECF No.
224 at 8.) Thus, evidence regarding subsequent events involving the Montoya family is
no longer relevant to Plaintiff’s Monell claim against Denver. 5
Defendants next argue that “[t]he investigation . . . uncovered facts that may bear
on the accuracy of testimony, from Plaintiff and others, regarding the totality of
circumstances facing [Motyka] when he made his decision to employ deadly force,” and
that Defendants should be entitled to rebut inconsistent testimony. (ECF No. 217 at 3.)
They further argue that Plaintiff has accused Motyka of making inconsistent statements
about the facts of this case during the Montoyas’ criminal case and that Motyka must be
permitted to explain the context in which his statements were made, including that the
5
Defendants do not argue that such evidence is relevant to Plaintiff’s failure to train
theory of Monell liability against Denver.
18
threats influenced his testimony. (Id. at 4.)
Specific evidence regarding the fates of the Montoya family members may be
admissible as impeachment or rebuttal evidence if, and only if, Plaintiff’s witnesses first
open the door to this evidence. Absent such a development, however, Defendants will
not be permitted to introduce evidence regarding the Montoya family after January 16,
2013, as the evidence is highly prejudicial to Plaintiff.
Accordingly, this portion of Plaintiff’s Motion is granted as set forth herein.
C.
Plaintiff’s Criminal Convictions
Federal Rule of Evidence 609 governs when and how a witness’s prior
convictions may be used to impeach a witness’s character for truthfulness at trial:
(a) In General. The following rules apply to attacking a
witness’s character for truthfulness by evidence of a criminal
conviction:
(1) for a crime that, in the convicting jurisdiction, was
punishable by death or by imprisonment for more than
one year, the evidence:
(A) must be admitted, subject to Rule 403, in a
civil case or in a criminal case in which the
witness is not a defendant; and
(B) must be admitted in a criminal case in
which the witness is a defendant, if the
probative value of the evidence outweighs its
prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the
evidence must be admitted if the court can readily
determine that establishing the elements of the crime
required proving—or the witness’s admitting—a
dishonest act or false statement.
19
(b) Limit on Using the Evidence After 10 Years. This subdivision (b)
applies if more than 10 years have passed since the witness’s conviction
or release from confinement for it, whichever is later. Evidence of the
conviction is admissible only if:
(1) its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice
of the intent to use it so that the party has a fair opportunity to
contest its use.
Plaintiff represents that he has two state felony convictions—from 1996 and
2015—as well as various misdemeanor convictions. (ECF No. 199 at 6, 8.) He
requests that the Court preclude evidence regarding his prior convictions. (Id.)
Defendants do not specifically respond to Plaintiff’s request to exclude the 1996
conviction and misdemeanor convictions. (See generally ECF No. 217.) As a result,
this portion of Plaintiff’s Motion is granted, and Defendants are precluded from
introducing evidence regarding Plaintiff’s 1996 felony conviction and misdemeanors.
Plaintiff contends that his 2015 felony conviction for “Attempted Assault on a
Peace Officer of the Second Degree” has no bearing on whether Motyka’s use of force
in January 2013 was objectively reasonable and that this is not a case in which
Plaintiff’s credibility is of central importance. (ECF No. 199 at 7–8.) Moreover,
according to Plaintiff, “the similarity of the prior crime to [D]efendants’ theory in this case
—that Mr. Valdez posed a threat to a peace officer—weighs against admission because
the prejudicial effect (suggesting a propensity to commit the crime) outweighs its
probative value.” (Id. at 8 (emphasis in original).)
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In response, Defendants argue that Plaintiff’s “recent felony conviction is
admissible under the plain terms of [Rule] 609.” (ECF No. 217 at 4.) They contend that
the “[f]acts underlying Plaintiff’s 2015 arrest and felony conviction are also relevant to
Plaintiff’s claims of physical disability” as officers involved in that arrest purportedly
observed Plaintiff “running without the use of any mobility aids while using both arms”
and “violently resist[ing] arrest in a manner inconsistent with his claims of partial
paralysis” as a result of the events of January 16, 2013. (Id. at 5.)
The Court agrees with Plaintiff that his 2015 arrest and conviction are highly
prejudicial and should be precluded according to Rule 403. After all, Plaintiff’s
conviction for Attempted Assault on a Peace Officer of the Second Degree is directly
comparable to Defendants’ theory regarding the events of January 16, 2013. There is a
high likelihood that a jury would improperly consider that conviction as evidence
suggesting that Plaintiff posed a threat to Motyka that justified his use of force. The
prejudice to Plaintiff therefore outweighs the impeachment value of the conviction.
Thus, notwithstanding Rule 609(a), Defendants will not be allowed to introduce
Plaintiff’s 2015 conviction.
Nonetheless, Plaintiff may open the door during trial by arguing that he has
become partially disabled as a result of the events of January 16, 2013. If this happens,
the facts underlying Plaintiff’s 2015 conviction may become relevant as rebuttal
evidence or as impeachment evidence. However, unless and until Plaintiff opens that
evidentiary door, Defendants will not be permitted to introduce evidence regarding
Plaintiff’s 2015 conviction.
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Accordingly, this portion of Plaintiff’s Motion is granted in part and denied in part
as set forth herein.
D.
Plaintiff’s Prison Sentences, Drug Use, and Homelessness
Plaintiff seeks to exclude evidence of Plaintiff’s prison sentences, prior drug use,
and prior homelessness, arguing that this evidence is irrelevant and unduly prejudicial.
(ECF No. 199 at 8–9.)
In response, Defendants note that Plaintiff is seeking “economic damages and
non-economic damages, including but not limited to medical expenses, pain and
suffering, mental anguish, emotional suffering, loss of enjoyment of life, loss of earning
potential, and punitive damages.” (ECF No. 217 at 5 (quoting ECF No. 46 at 7).)
According to Defendants,
[e]vidence of Plaintiff’s time in prison, drug use, and
homelessness will bear on whether he can establish the
existence of any mental anguish, lost earning potential, or
loss of enjoyment of life; how and at what amount to value
such losses, if they exist; and the extent to which the
shooting caused or contributed to any such damages.
(Id.)
The Court agrees that evidence regarding Plaintiff’s prior sentences, drug use,
and homeless may bear on his claims for economic and non-economic damages as a
result of the events of January 16, 2013. See, e.g., Cobige v. City of Chicago, Ill., 651
F.3d 780, 784–85 (7th Cir. 2011) (recognizing that evidence of decedent’s “drug
addiction and legal problems” are relevant to issue of damages for “loss of
companionship” and “enjoyment of life” where decedent’s son put decedent’s character
22
and life prospects into question); Zibolis-Sekella v. Ruehrwein, 2013 WL 12177858, at
*2 (D.N.H. Oct. 8, 2013) (recognizing that danger of unfair prejudice from introducing
evidence of decedent’s drug use is outweighed by the relevance of drug use to a claim
for damages for loss of enjoyment of life). Thus, to the extent that Plaintiff opens the
door by presenting testimony of his lost earning potential or lost enjoyment of life that
can be reasonably rebutted with evidence of Plaintiff’s prior sentences, drug use, and/or
homelessness, Defendants may introduce such evidence solely on the issue of
damages.
However, if Plaintiff does not open the door to the introduction of this evidence
through his testimony or argument regarding damages, then the danger of unfair
prejudice of such evidence outweighs its probative value. In such a scenario,
Defendants will be precluded from introducing evidence of Plaintiff’s prior sentences,
drug use, and/or homelessness.
Accordingly, this portion of Plaintiff’s Motion is denied without prejudice to being
raised at trial.
E.
Undisclosed Law Enforcement Expert Opinion Testimony
Plaintiff notes that Defendants did not disclose any non-retained experts from
whom opinion testimony may be elicited at trial and that “[i]t is unclear what other
opinions based on ‘training and experience’ that any of the witness law enforcement
officers may attempt to offer as testimony during the trial.” (ECF No. 199 at 11.)
Plaintiff therefore asks that “this Court rule in limine that Defendants[’] witnesses will not
be permitted to testify concerning their ‘opinions,’ whether based on their training and
23
experience, but rather they instead be limited to their perceptions and observations in
the performance of their duties.” (Id.)
Plaintiff is effectively asking the Court for an order stating that it will apply Federal
Rule of Evidence 701. See Fed. R. Evid. 701 (opinion testimony by lay witnesses is
limited to opinions that are (a) rationally based on the witness’s perception; (b) helpful to
clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702). Such an order is unnecessary in a pre-trial setting.
To the extent the parties have concerns about the admissibility of specific
testimony by lay witnesses, the Court will entertain evidentiary challenges to that
testimony at trial. Accordingly, this portion of Plaintiff’s Motion is denied without
prejudice to being reasserted at trial.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1. Defendants’ Joint Motion in Limine (ECF No. 197) is GRANTED IN PART AND
DENIED IN PART, as set forth herein; and
2. Plaintiff Michael Valdez’s Motion in Limine as to Defendants’ Motyka and City
and County of Denver (ECF No. 199) is GRANTED IN PART AND DENIED IN
PART, as set forth herein.
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Dated this 24th day of March, 2021.
BY THE COURT:
______________________
William J. Martinez
United States District Judge
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