Bates v. Murdy et al

Filing 75

ORDER granting 64 Motion in Limine; granting in part and denying in part 65 Motion in Limine. Signed by Judge Holly B. Fitzsimmons on 10/2/09. (Milligan, C.)

UNITED STATES DISTRICT COURT D I S T R I C T OF CONNECTICUT : : : : : : :

E A R L A. BATES, JR V. T R O O P E R DELGAIS AND T R O O P E R MUDRY

CIV. NO. 3:06CV1848(HBF)

O C T O B E R 2, 2009

R u l i n g on Pending Motions in Limine [Docs. #64 and 65] P e n d i n g are Defendants' Motion in Limine [Doc. #64] and P l a i n t i f f ' s Motion in Limine [Doc. #65]. c o n s i d e r a t i o n the Court rules as follows: Defendants' Motion in Limine [Doc. #64] T h e defendants, Troopers Gennaro Delgais and Michael Mudry, s e e k to preclude plaintiff from introducing into evidence, t e s t i m o n y and/or documentary evidence of: (1) a racial motivation f o r his alleged body cavity search; and (2) any litigation in w h i c h a settlement or verdict was reached in his favor, including b u t not limited to claims of excessive force and/or unlawful searches. Plaintiff consents to the limitation sought on the After careful

i n t r o d u c t i o n of evidence concerning other litigation. No evidence has been proffered to support a claim that the a l l e g e d digital body cavity search of plaintiff's rectum was r a c i a l l y motivated. Plaintiff testified at his deposition that he

w a s searched only because "he is a black male and I ran from him s o he predicted that I had drugs on me." Pl's Depo. p. 65, lines

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9-10.

However, plaintiff did not make any allegation in either

h i s pro se complaint or amended complaint that any of the actions o f defendants were racially motivated. When asked as his

d e p o s i t i o n if he was called any racist names, he responded, "[n]o, I didn't hear any racist names." Pl's Depo. p. 65, lines 17-18.

Any testimony about the defendants' alleged motivation would be i m p r o p e r opinion evidence under Federal Rule of Evidence Rule 701. Rule 701 states, If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to t h o s e opinions or inferences which are (a) rationally based o n the perception of the witness, (b) helpful to a clear u n d e r s t a n d i n g of the witness' testimony or the determination o f a fact in issue, and (c) not based on scientific, t e c h n i c a l or other specialized knowledge within the scope of R u l e 702. One purpose of Rule 701(b) is to prevent lay witnesses from s u g g e s t i n g that the jury take such a jump. See U.S. v. Rea, 958 F . 2 d 1206, 1215 (2d Cir. 1992)(holding that "[rule 701] provide[s] a s s u r a n c e [ s ] against the admission of opinions which would merely t e l l the jury what result to reach"). Plaintiff's conclusions are n o t based on any facts reasonably perceived by him. Therefore,

t h e Court concludes that opinion testimony concerning the d e f e n d a n t s ' motivation is inadmissible under the Rule. Defendant's Motion in Limine is GRANTED. P l a i n t i f f ' s Motion in Limine [Doc. #65] P l a i n t i f f seeks to preclude admission of his prior or s u b s e q u e n t criminal history as well as his prison disciplinary

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records.

Plaintiff argues that any inquiry into his criminal

h i s t o r y or disciplinary history in Department of Corrections would p r e j u d i c e him. 1 F e d e r a l Rule of Evidence Rule 609(a) provides: For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall b e admitted if elicited from the witness or established by p u b l i c record during cross-examination but only if the crime ( 1 ) was punishable by death or imprisonment in excess of one y e a r under the law under which the witness was convicted, and t h e court determines that the probative value of admitting t h i s evidence outweighs its prejudicial effect to the d e f e n d a n t , or (2) involved dishonesty or false statement, r e g a r d l e s s of the punishment."

Plaintiff contends that the "jury may be unable to resist the c o r r e l a t i o n between this past crime and the present incident and m a y improperly determine that the plaintiff in this action was a c t i n g in conformity with his prior behavior." Doc. #65 at 5-6.

The Court will permit evidence of plaintiff's 2004 conviction for A s s a u l t on a Peace Officer in violation of Conn. Gen. Stat. § 53a1 6 7 c because its introduction would not be unduly prejudicial and a n y prejudice is outweighed by its probative value. First, this

c o n v i c t i o n is admissible under Rule 609 because the conviction t o o k place within the past 10 years, and it was for a Class C f e l o n y carrying a maximum term of imprisonment of 10 years. A d d i t i o n a l l y , applying the balancing test under Federal Rule of

Plaintiff does not object to the admissibility of the convictions which stem from this incident. 3

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Evidence 404(b),2 the Court finds the probative value of this a r r e s t outweighs its prejudical effect for the following reasons: T h e plaintiff is not a defendant in a criminal trial; this is the o n l y prior conviction which will be allowed to impeach plaintiff o n the present record; and plaintiff was on probation for that o f f e n s e when he fled the police in this case; thus the conviction m a y provide proof of motive to evade the underlying arrest. U n i t e d States v. Washington, 746 F.2d 104, 106-07 (2d Cir. 1 9 8 4 ) ( N e w m a n , J., concurring). P l a i n t i f f ' s subsequent convictions for sale of h a l l u c i n o g e n i c / n a r c o t i c substances in violation of Conn. Gen. S t a t . 21a­277(a); Assault on a Peace Officer in violation of Conn. G e n . Stat. 53a-167c; and Interfering/Resisting Arrest in violation o f Conn. Gen. Stat. 53a-167a are inadmissable on the present record. There is little probative value to the use of this See

e v i d e n c e for impeachment purposes in addition to the 2004 c o n v i c t i o n and the convictions arising out of this incident, while t h e potential prejudice to plaintiff is greater because of the

Federal Rule of Evidence 404(b) states: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon requests by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." 4

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similarity of his subsequent conduct to the defendants' version of e v e n t s here. Should plaintiff's testimony raise issues of mistake

o r accident or other non-impeachment purposes for which the s u b s e q u e n t wrongful conduct would be admissible under Rule 404(b), t h e Court will reconsider this limitation. P l a i n t i f f ' s disciplinary records while incarcerated may only b e offered should plaintiff open the door on direct examination. Plaintiff has claimed that he woke up after dreaming of this a l l e g e d assault and, as a result, assaulted his cellmate. Should

p l a i n t i f f testify about this, defendants will be allowed to cross e x a m i n e him concerning the 14 other disciplinary tickets plaintiff h a s received for other assaults. Otherwise, on the present

r e c o r d , plaintiff's DOC disciplinary record will not be the s u b j e c t of inquiry. I f plaintiff would like the Court to give a limiting i n s t r u c t i o n when any evidence of prior bad acts is introduced, c o u n s e l should submit proposed instructions to the Court prior to t h e start of trial. Accordingly, the Court GRANTS defendants' Motion in Limine [ D o c . #64] and GRANTS IN PART AND DENIES IN PART plaintiff's M o t i o n in Limine [Doc. #65]. SO ORDERED at Bridgeport this 2 nd day of October 2009. _____/S/____________ H O L L Y B. FITZSIMMONS U N I T E D STATES MAGISTRATE JUDGE

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