Cox v. Wilson
Filing
147
ORDER Granting in Part and Denying in Part 126 Motion in Limine by Judge William J. Martinez on 11/17/2016. (cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0128-WJM-NYW
CODY WILLIAM COX,
Plaintiff,
v.
DON WILSON, in his individual capacity
Defendant.
ORDER ON PLAINTIFF’S MOTION IN LIMINE
This case arises out of a police use-of-force incident between Plaintiff Cody
William Cox (“Plaintiff”) and Defendant Don Wilson (“Defendant”) that occurred on
January 31, 2014. (ECF No. 1 at 1.) As a result of this incident, Plaintiff brings suit
against Defendant under 42 U.S.C. § 1983. (Id. at 3.) This matter is set for a jury trial
commencing on Tuesday, December 6, 2016, with the Final Trial Preparation
Conference set for November 18, 2016. (ECF No. 120.) This matter is before the Court
on the Plaintiff’s Motion in Limine (“Motion”). (ECF No. 126.) For the reasons set forth
below, Plaintiff’s Motion is granted in part and denied in part.
I. ANALYSIS
Plaintiff’s Motion seeks evidentiary rulings on the admissibility of the following
evidence prior to trial: (1) Plaintiff’s prior felony and misdemeanor convictions, as well
as any charges not resulting in conviction; (2) Plaintiff’s driving behavior prior to
Defendant’s contact with Plaintiff; and (3) amounts paid by Medicaid to Plaintiff’s
medical providers.
A.
Plaintiff’s Prior Convictions and Charges
1.
Prior Felony Convictions
In 2003, Plaintiff was convicted of felony first-degree trespass and driving under
the influence of alcohol under Colorado Revised Statutes §§ 18-4-502 and 42-4-1301.
(ECF No. 126 at 5.) Plaintiff was also convicted of felony first-degree trespass in 2004
under Colorado Revised Statute § 18-4-502. (Id.) Plaintiff moves to exclude evidence
of his prior felony convictions under Federal Rule of Evidence 609(b). (Id. at 5-6.)
Rule 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.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed
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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.
Because the standard is vastly different, the Court must first determine whether
Rule 609(a) or (b) applies here. Plaintiff contends that the convictions meeting the
requirements of Rule 609(a)(1)(A) are all more than 10 years old, and are therefore
subject to the requirements of Rule 609(b). (ECF No. 126 at 5.) It is anticipated that
Plaintiff will testify on December 8, 2016, which is more than ten years after his
convictions for all three felonies. (ECF No. 128.) Thus, the Court finds that Rule 609(b)
applies.
With respect to a conviction more than ten years old, the general rule is one of
inadmissibility. United States v. Caldwell, 760 F.3d 267, 286 (3d Cir. 2014) (Rule
609(b) balancing test creates “predisposition toward exclusion”); United States v.
Rodriguez-Garcia, 983 F.2d 1563, 1571 (10th Cir. 1993); United States v. Cathey, 591
F.2d 268, 275 (5th Cir. 1979) (citing Fed. R. Evid. 609(b) advisory committee’s note (“It
is intended that convictions over 10 years old will be admitted very rarely and only in
exceptional circumstances.”)). To overcome this presumption and admit such evidence
Rule 609(b) requires that the conviction be “substantially” more probative than
prejudicial. Thus, the Court must determine whether the probative value of Plaintiff’s
prior convictions substantially outweighs the prejudicial effect of their admission. Fed.
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R. Evid. 609(b)(1).
The Court starts the balancing with the premise that there can be no doubt that
admission of evidence of a prior felony conviction is inherently and significantly
prejudicial. With this in mind, the Court notes that this is a constitutional excessive force
claim against Defendant, which is completely unrelated to Plaintiff’s prior felony
convictions for driving under the influence and trespass. Defendant’s response fails to
(1) establish that Plaintiff’s prior felony convictions have probative value, and (2) show
that such value, if any, substantially outweighs the seriously prejudicial effect of the
evidence. Fed. R. Evid. 609(b). In fact, Defendant, who bears the burden of showing
admissibility, fails to provide any argument against inadmissibility of this evidence under
Rule 609(b). (See generally ECF No. 136.) Since Defendant has not carried his
burden of showing why such evidence should be admitted, the Court will exclude it.
2.
Prior Misdemeanor Convictions and Charges
In 2004, Plaintiff was convicted of misdemeanor third-degree assault and
resisting arrest under Colorado Revised Statutes §§ 18-3-204 and 18-18-103. (ECF
No. 126 at 5.) In 2009, Plaintiff was convicted of misdemeanor second-degree trespass
and obstructing a police officer under Colorado Revised Statutes §§ 18-4-503 and
18-8-104. (Id.)
Plaintiff argues that his prior misdemeanor convictions and any charges that did
not result in conviction are not admissible under Rule 404(b)(1). (Id. at 6.) Specifically,
he argues that the only relevance of these convictions and charges would be to show
that he acted in conformity with this character on the date of the incident. (Id.)
Defendant argues that under Rule 404(b)(2) “other acts evidence, such as Cox’s pre4
incident interaction with law enforcement” can be admissible if offered to prove intent,
lack of accident, or motive. (ECF No. 136 at 3-4.)
Pursuant to Federal Rule of Evidence 404(b)(1), the admission of evidence of a
crime or “bad act” to prove 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. Fed. R. Evid. 404(b). 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). Furthermore, “[t]he
court may exclude relevant evidence if its probative value is substantially outweighed by
a danger of . . . unfair prejudice . . . .” Fed. R. Evid. 403.
Defendant carries the burden of “showing how the proffered evidence of other
crimes or acts is relevant to one or more issues in the case; specifically, (1) [Defendant]
must articulate precisely the evidential hypothesis by which a fact of consequence may
be inferred from the other acts evidence, and (2) there must be a clear and logical
connection between the alleged other acts and the case being tried.” United States v.
Cook, 745 F.2d 1311, 1317 (10th Cir. 1984); see also United States v. Biswell, 700 F.2d
1310, 1318 (10th Cir. 1983) (excluding the government’s other acts evidence, stating
that “we are not dealing with proof clearly establishing an identified, reasonably recent
offense . . . the evidence was of the most damning sort–referring to ‘ongoing
investigations,’ and persons ‘involved in criminal activity’”).
The Court finds that Plaintiff’s prior misdemeanor convictions and charges fit
squarely within the general exclusion of Federal Rule of Evidence 404(b)(1). Plaintiff’s
“prior interactions with law enforcement” are of marginal (if any) relevance to issues
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pertaining to the Fourth Amendment claim. (ECF No. 136 at 3.) Whether Plaintiff has a
history of “prior interactions with law enforcement” has no real bearing on whether the
Defendant’s use-of-force was objectively reasonable. (Id.) Moreover, although
Defendant points to permissible purposes under 404(b)(2) (motive, intent, lack of
accident), Defendant falls short of clearly identifying evidence of “bad acts” to which he
can prove a logical connection to the case being tried. See Cook, 745 F.2d at 1317.
Defendant’s reference to Plaintiff’s “prior interactions with law enforcement” lacks
specificity, and for this reason the Court finds that Defendant has not satisfied his
burden under Rule 404(b)(2). (ECF No. 136 at 3.)1 Thus, the Court finds that evidence
of Plaintiff’s “prior interactions with law enforcement” inadmissible under Rule 404(b)(1).
(Id.)
Given all of the above, the Court orders that (1) under Federal Rule of Evidence
609(b), evidence of Plaintiff’s 2003 and 2004 felony convictions are inadmissible at trial;
and (2) under Federal Rule of Evidence 404(b), evidence of Plaintiff’s 2004 and 2008
misdemeanors as well as evidence of prior charges not resulting in conviction are
inadmissible at trial.
B.
Plaintiff’s Driving Behavior
This case arises out of an officer-involved shooting between Plaintiff and
Defendant on January 31, 2014. (ECF No. 119 at 1.) The shooting occurred in the
westbound lanes of Interstate 70 near mile marker 229. (Id.) Plaintiff’s Motion seeks to
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With respect to the “three outstanding warrants for Cox’s arrest,” the Court cannot
make a ruling at this time as the record on this point is very undeveloped and Plaintiff failed to
address this point in his Motion. (ECF No. 136 at 4.) The Parties are DIRECTED to be prepared
to address this issue at the Final Trial Preparation Conference tomorrow.
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preclude any evidence of Plaintiff’s driving prior to Defendant’s initial contact with
Plaintiff. (ECF No. 126 at 3.) Plaintiff’s motion does not address evidence based on
Defendant’s personal knowledge or facts of which Defendant was aware. For the
reasons stated below, evidence of Plaintiff’s driving behavior of which Defendant was
aware prior to making contact with Plaintiff is admissible; however, evidence of
Plaintiff’s driving that Defendant was unaware of prior to making contact with Plaintiff is
inadmissible.
Claims of excessive force by law enforcement officers arise under the Fourth
Amendment and are analyzed under the Fourth Amendment’s “objective
reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989). “The
question is whether the officer[’s] actions are ‘objectively reasonable’ in light of the facts
and circumstances confronting [the officer], without regard to [the officer’s] underlying
intent or motivation.” Id. at 397.
Plaintiff asserts that the jury should only consider the facts that Defendant was
aware of at the time when the shooting occurred. (ECF No. 126 at 3 (citing Graham,
490 U.S. at 388.)) Plaintiff argues that evidence of Plaintiff’s driving behavior prior to
Defendant’s initial contact with him is not relevant to the issue of whether Defendant’s
conduct was objectively reasonable, because Defendant was unaware of this behavior.
(Id.)
Defendant responds that evidence of Plaintiff’s driving behavior will inform the
jury of the events prior to the shooting and enable the jury to evaluate Defendant’s
perception of the events once he made initial contact with Plaintiff. (ECF No. 136 at 3.)
Defendant contends that there is a dispute over whether Defendant actually faced
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imminent risk of death or serious bodily injury (i.e. whether Plaintiff was accelerating his
vehicle towards him when Defendant shot Plaintiff), and that evidence of Plaintiff’s prior
driving behavior will support Defendant’s version of the events. (Id. at 2.) Defendant
argues “where what the officer perceived just prior to the use of force is in dispute,
evidence that may support one version of events or another is relevant and admissible.”
(Id. at 3 (quoting Cordova v. City of Albuquerque, 816 F.3d 645, 659 (10th Cir. 2016)).)
The Court finds that any evidence of Plaintiff’s driving of which the Defendant
was unaware could not have informed his perception of risk when he arrived on the
scene, nor could it have informed his belief that Plaintiff was accelerating his vehicle
towards him. Thus, evidence of which Defendant was unaware at the time of his
conduct would be irrelevant to the jury’s evaluation of the reasonableness of his
conduct. Unlike Cordova, the evidence Defendant claims will make his version of the
events seem more likely is only remotely connected to the facts in dispute. The Court
also finds that admitting such evidence would be unfairly prejudicial to Plaintiff, and
unduly cumulative, given that there is sufficient admissible evidence illustrating Plaintiff’s
prior driving through Deputy Klaus’s observations relayed to Defendant.
Accordingly, the evidence of Plaintiff’s driving of which Defendant was unaware
before contact with Plaintiff is inadmissible, and Plaintiff’s motion is granted as to this
evidence. Evidence of Plaintiff’s driving of which the Defendant was aware before
reaching Plaintiff is admissible, since it bears on the reasonableness of Defendant’s
actions, and Plaintiff’s motion is denied to the extent it seeks to exclude such evidence.
For illustrative purposes only, admissible evidence may include the radio
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transmission communications informing Defendant of Plaintiff’s driving (e.g., Deputy
Klaus’s radio report at mile marker 235 that Plaintiff was weaving badly in low speed
traffic and was failing to yield to him, or Klaus’s radio report at mile marker 232 that
Plaintiff was traveling at a speed of up to 90 miles per hour, was approaching stopped
traffic ahead, but was not slowing for such traffic). (ECF No. 62-3 at 1.)
Inadmissible evidence would include, but not necessarily be limited to, video
recordings showing Plaintiff reversing into traffic and colliding into a guardrail, or
evidence of Plaintiff colliding into other vehicles, whether offered through motorist
testimony or video footage, and recordings and transcripts of 911 calls, all of which is
conduct that Defendant had no knowledge of prior to making initial contact with Plaintiff.
(ECF Nos. 136 at 2-3, 126 at 2-3.)
C.
Medicaid Payments
Plaintiff requests that the Court enter an order barring Defendant from
introducing any evidence “regarding amounts paid by Medicaid to [Plaintiff’s] medical
providers.” (ECF No. 126 at 7-8.) Plaintiff argues that, under the collateral source rule,
evidence of Plaintiff’s receipt of collateral benefits should not be admissible at trial. (Id.)
Additionally, the parties disagree as to what evidence shows the reasonable value of
Plaintiff’s healthcare expenses that he could recover—the amount billed to Medicaid or
the amount actually paid. (ECF Nos. 126 at 7, 136 at 4.)
Both parties failed to discuss the controlling substantive law of damages. Plaintiff
cites cases where the court had diversity jurisdiction and applied state substantive law.
(ECF No. 126 at 7-8 (citing Prager v. Campbell County Memorial Hosp., 731 F.3d 1046
(10th Cir. 2013) and Krauss v. Beach, 2008 WL 4371939 (D. Colo. Sept. 23, 2008)
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(noting as a preliminary matter that Colorado state law applied prior to addressing the
collateral source rule)).) Here, federal substantive law applies to Plaintiff’s claims
brought under 42 U.S.C. § 1983. Garrick v. City and County of Denver, 652 F.2d 969,
971 (10th Cir. 1981) (“Federal standards govern the determination of damages under
the federal civil rights statutes”). Defendant cites Berg v. United States, 806 F.2d 978,
981 (10th Cir. 1986), but there the underlying statute on which the claims were based
directed the court to apply state damages law. (ECF No. 136 at 4) (citing Berg, 806 at
981 n. 1) (noting “under the FTCA, liability is determined according to the law of the
state in which the wrongful act occurred”).
Absent a federal statute directing it to apply state law, this Court will look to
federal law in addressing the issue of what damages Plaintiff may recover. Other
Circuit Courts of Appeal have found that the federal common law collateral source rule
applies directly to § 1983 actions. Gill v. Maciejewski, 546 F.3d 557, 564 (8th Cir.
2008); accord Perry v. Larson, 794 F.2d 279, 286 (7th Cir. 1986). Further, in a prior
ruling in which this Court faced a similar issue, the Court chose to follow federal
common law but noted that it would “address Colorado state law because doing so
helps elucidate the common law rule.” Torres v. Kim, 2012 WL 128728, at *1 (D. Colo.
Jan. 17, 2012); see also McDonald v. Hewitt, 196 F.R.D. 650, 651 (D. Utah 2000) (in
§1983 action, “state rules on damages are subject to consideration only if they fully
serve the federal interest and become federal law” (citing Sullivan v. Little Hunting Park,
396 U.S. 229, 406 (1969); Malloy v. Monahan, 73 F.3d 1012 (10th Cir. 1996)). This
Court will do the same in resolving the instant motion.
“Derived from the common law, the collateral source rule posits that ‘[p]ayments
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made to or benefits conferred on the injured party from other sources are not credited
against the tortfeasor’s liability, although they cover all or a part of the harm for which
the tortfeasor is liable.’” Friedland v. TIC-The Indus. Co., 566 F.3d 1203, 1205 (10th Cir.
2009) (quoting Restatement (Second) of Torts § 920A(2) (1979)). “The rule thus
permits an injured plaintiff to recover more than the damages he has suffered as the
result of an injury. . .” Id. at 1206. “Public policy favors giving the plaintiff a double
recovery rather than allowing a wrongdoer to enjoy reduced liability simply because the
plaintiff received compensation from an independent source.” Green v. Denver & Rio
Grande W. R.R. Co., 59 F.3d 1029, 1032 (10th Cir. 1995).
Plaintiff argues that the collateral source at issue–Medicaid payments–fall within
the general common law definition of collateral source evidence. (ECF No. 126 at 7.)
Defendant’s response does not call into question this assertion. (ECF No. 136 at 4.)
The Court agrees with Plaintiff that the Medicaid payments made to his medical
providers constitute collateral source evidence. See Smith v. Kinningham, 328 P.3d
258 (Colo. App. 2013) (holding that evidence of Medicaid benefits falls squarely within
the definition of a collateral source).
The Court also agrees with Plaintiff that evidence of the amount actually paid by
Medicaid and accepted by his healthcare providers is not relevant to the jury’s
determination of the reasonable value of Plaintiff’s healthcare expenses; rather, it is the
amount billed that is most relevant to determining the value of the services rendered.
Medicaid rates are commonly much lower than a provider’s customary fee, thus the
amount actually billed by Plaintiff’s healthcare providers is the most suitable evidence
pointing to the true value of the services rendered. See Krauss, 2008 WL 4371939, at
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*3.
Accordingly, this portion of Plaintiff’s Motion is granted. Evidence regarding
amounts paid by Medicaid to Plaintiff’s medical providers will be excluded at trial. The
Court directs counsel on both sides not to mention this issue in front of the jury, and
also directs counsel to instruct their witnesses not to mention the issue at trial.
II. CONCLUSION
For the reasons stated above, the Court ORDERS as follows:
1.
Plaintiff’s Motion in Limine (ECF No. 126) is GRANTED IN PART and DENIED IN
PART as follows:
a.
Evidence of Plaintiff’s prior felony convictions, misdemeanor convictions,
and charges not resulting in conviction will be inadmissible at trial;
b.
Evidence of Plaintiff’s driving of which the Defendant was unaware prior to
his contact with Plaintiff will be inadmissible at trial;
c.
Evidence of Plaintiff’s driving of which the Defendant was aware prior to
his contact with Plaintiff will be admissible at trial;
d.
Evidence of Plaintiff’s Medicaid payments will be inadmissible at trial.
Dated this 17th day of November, 2016.
BY THE COURT:
William J. Martínez
United States District Judge
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