Ogilvie v. Collier County Sheriff's Office et al

Filing 47

ORDER granting 39 Plaintiff David Ogilvie's Amended Motion in Limine to the extent listed as outlined: Evidence of Ogilvie's June 28, 2011 DUI arrest and accompanying video may not be admitted into evidence unless Ogilvie opens the d oor during testimony. Dr. Hobaicia, will not be permitted to testify as to his personal opinions on the merits of the lawsuit. Defendants Caceres' and Swank's Motion in Limine 41 is GRANTED. Evidence of past incidents involving Deputy Caceres are not admissible. The fact the Plaintiff's underlying criminal charges were nolle prossed is not admissible. Signed by Judge Sheri Polster Chappell on 4/18/2016. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAVID OGILVIE,
Plaintiff,
v.

Case No: 2:14-cv-354-SPC-

JERRY SWANK, individually, and
PETE CACERES, individually.
Defendants.
/
ORDER1
This matter comes before the Court on the following two motions: (1)
Plaintiff David Ogilvie’s Amended Motion in Limine (Doc. #39), filed on March 23,
2016, and (2) Defendants Caceres and Swank’s Motion in Limine (Doc. #41), also
filed on March 23, 2016, to which Ogilvie has filed a Response in Opposition (Doc.
#43). The Court heart argument on the motions at the Final Pretrial Conference on
April 15, 2016.
1. Ogilvie’s Motion in Limine
Ogilvie’s Motion in Limine seeks an order from the Court excluding two
things from the record.

First, he seeks to exclude any mention, reference,

examination, insinuation, or introduction into evidence of Ogilvie’s June 28, 2011

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arrest for driving under the influence. (Doc. #39 at ¶ 1). He also seeks to exclude
Ogilvie’s field sobriety video from the arrest. (Doc. #39 at ¶ 1). Second, he seeks
to exclude any “pure opinion” testimony from Dr. Paul Hobaica, specifically page
56, line 12 through page 58, line 6 of his deposition. (Doc. #39 at ¶ 2).
A. Evidence of Ogilvie’s June 28, 2011 Arrest
In support of excluding evidence of Ogilvie’s June 28, 2011 arrest, he
argues the charges were misdemeanor charges, the nature and sentence for
which is proscribed from being used as a basis for an attack under Federal Rule
of Evidence 609(a)(1) (Doc. #39 at ¶1). Ogilvie also cites Rule 403, suggesting
the probative value of any evidence of the field sobriety video, arrest, or encounter
would be substantially outweighed by the danger of unfair prejudice and confusion
of the issues.2
In their Response, Defendants concede that evidence of the prior arrest
cannot be used to prove general bad character of Ogilvie. (Doc. #44 at 1). Instead,
Defendants note that Ogilvie may “open the door” to the admissibility of such
evidence for other purposes set out in Rule 404(b), such as proof of motive,
opportunity, intent, etc. (Doc. #44 at 1). As such, Defendants request that the
Court make any ruling on the matter without prejudice. (Doc. #44 at 1–2).
Rule 609 sets out criteria for attacking a witness’s character for truthfulness
by evidence of criminal conviction. FED. R. EVID. 609. Part (1) sets requirements

Ogilvie’s argument reads, “Such evidence substantially out weighs [sic] the danger of the unfair
prejudice and confusing the issues as contemplated by Fed. R. Evidence. 403.” (Doc. #39 at 1).
It is clear Ogilvie meant to argue that such evidence is outweighed by the danger of unfair prejudice
and confusion of the issues in accordance with Rule 403.
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for prior felony convictions, and Part (2) sets requirements for any prior criminal
conviction involving a dishonest act or false statement. Id.
Ogilvie is correct that Defendants may not use 609(a)(1) to introduce
evidence of the prior arrest as the crime, a first offense for driving under the
influence, is not punished as a felony. FLA. STAT. § 316.193(2). Similarly, evidence
of the arrest cannot be introduced under 609(a)(2), as establishing the elements
of a driving under the influence offense does not require proving a dishonest act
or false statement. Id. at § 316.193(1). As such, evidence of Ogilvie’s prior arrest
cannot be introduced into evidence under Rule 609.
Defendants’ remaining argument is that evidence of the arrest can be
introduced under Rule 404, should Ogilvie “open the door” during trial. (Doc. #44
at 1).

Rule 404(b) states that evidence of a crime, wrongs, or other act is

inadmissible to prove the character of a person in order to show he acted in
accordance with that character, but such evidence is admissible to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. FED. R. EVID. 404(b).
This Circuit uses a three-part test to determine the admissibility of such
evidence under Rule 404(b).
First, the evidence must be relevant to an issue other than the [person’s]
character. Second, as part of the relevance analysis, there must be
sufficient proof so that a jury could find that the [person] committed the
extrinsic act. Third, the evidence must possess probative value that is not
substantially outweighed by its undue prejudice, and the evidence must
meet the other requirements of Rule 403.
United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003) (quoting United
States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992)).
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This evidence, even if permitted under Rule 404(b), is still subject to Rule
403, which permits the court to exclude relevant evidence “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
Here, the Court finds the danger of unfair prejudice to Ogilvie is substantially
outweighed by any probative value of evidence of the arrest.

Accordingly, the

Motion in Limine with regard to evidence of Ogilvie’s prior arrest on June 28, 2011
is granted without prejudice.

Should Ogilvie “open the door” during trial as

suggested by Defendants, the Court will reconsider this objection to the extent
necessary.
B. Evidence of Dr. Hobaica’s Deposition Testimony
Ogilvie next seeks to exclude what he believes to be “pure opinion”
testimony in Dr. Hobaica’s deposition Page 56, Line 12 to Page 58, Line 6. (Doc.
#39 at 2). Ogilvie provides no further argument or case law as to why the evidence
should be excluded.
In response, Defendants argue that the testimony they seek to elicit from
Dr. Hobaica will be opinion testimony by a lay witness Under Rule 701, or
testimony by an expert witness Under Rule 702. (Doc. #44 at 2).
As a physician who responded to Ogilvie’s residence on the day of the
incident and who evaluated Ogilvie, Dr. Hobaicia’s testimony has strong probative

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value as to Ogilvie’s alleged injuries. (Doc. #44 at 1). Defendants will be permitted
to question Dr. Hobaica regarding what he saw and heard during that time,
including his personal opinion on the injuries Ogilvie presented upon encountering
him. Because the portion of the deposition testimony Ogilvie seeks to exclude
contains Dr. Hobaicia’s testimony as to his opinion regarding Ogilvie’s injuries, the
Court declines to exclude the entire portion of the deposition testimony.
Dr. Hobaicia, however, will not be permitted to testify as to his personal
opinions on the merits of the suit. Defendants state they do not anticipate eliciting
any testimony from Dr. Hobaica regarding his personal opinion on the legitimacy
of the lawsuit. (Doc. #44 at 2). Accordingly, Ogilvie’s Motion in Limine (Doc. #39)
is granted in part and denied in part with regard to Dr. Hobaica’s testimony.
2. Defendants Caceres and Swank’s Motion in Limine (Doc. #41)
Defendants seek to exclude two things from evidence. First, they seek to
exclude any evidence involving either of the Defendants and other citizens,
including past incidents involving Dep. Caceres for which he was disciplined. (Doc.
#41 at 2–3). Second, they seek to exclude the outcome of Ogilvie’s criminal case,
for which a notice of nolle prosequi was entered. (Doc. #41 at 3–4).
A. Evidence of Past Incidents Involving Defendants Caceres and Swank
In addition to excluding any evidence of Dep. Caceres’ and Dep. Swank’s
contact with other citizens, Defendants specifically seek to exclude the documents
in Doc. #41-1, detailing incidents from 2005 and 2006 involving Dep. Caceres for
which he was disciplined and ultimately received a final warning and placed on
one year of probation. (Doc. #41 at 2). Defendants argue those incidents are too

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remote in time, too factually dissimilar to the current claims, irrelevant under Rule
402, and unfairly prejudicial under Rule 403. (Doc. #41 at 2–3). In response,
Ogilvie argues that portions of Dep. Caceres’ deposition testimony are relevant to
Dep. Caceres’ credibility as a witness as they involve past admissions of
deceitfulness. (Doc. #43 at 4).
To determine whether evidence is relevant, courts must ask (1) whether it
has any tendency to make a fact more or less probable than it would be without
the evidence, and (2) whether the fact is of consequence in determining the action.
FED. R. EVID. 401. Relevant evidence may nonetheless be excluded as unfairly
prejudicial under Rule 403. FED. R. EVID. 403.
In this case, the Court finds the probative value of Dep. Caceres’ deposition
testimony regarding the 2005 and 2006 incidents is outweighed by their undue
prejudicial nature. That evidence, if admitted, would have an undue tendency to
lead a jury to make its decision on the improper basis of how Dep. Caceres has
conducted himself in the past, as opposed to how he and Dep. Swank acted in the
present matter. Further, the past incidents are not similar to the circumstances in
this case. Additionally, the incidents from 2005 and 2006 being ten and eleven
years old, respectively, are remote in time.

Accordingly, evidence of the

Defendants’ past encounters with other citizens is to be excluded from evidence.
B. Evidence of the Notice of Nolle Prosequi in Ogilvie’s Criminal Case
Defendants argue that evidence a notice of nolle prosequi was entered for
Ogilvie’s charges is irrelevant to determining the validity of his arrest. (Doc. #43
at 3–4). Ogilvie did not respond to this argument in his Response. (Doc. #43).

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In deciding a verdict in this case, the jury will have to determine the validity
of Olgivie’s arrest. Courts have long held that the validity of an arrest does not
depend upon whether the chargers are subsequently acquitted or dropped. See
Hutton v. Strickland, 919 F.2d 1531 (11th Cir. 1990); Marx v. Gumbinner, 905 F.2d
1503, 1507 (11th Cir. 1990); Rodi v. Rambosk, No. 2:13-cv-556-FtM-29CM, 2015
WL 1910499, at *1 (M.D. Fla. Apr. 27, 2015); Blanck v. City of Altamonte Springs,
No. 6:11-cv-293-Orl-28KRS, 2011 WL 3516071, at *2 (M.D. Fla. Aug. 11, 2011).
As such, the subsequent dismissal of Ogilvie’s charges is not relevant to the
determination of whether the arrest was valid or invalid as he alleges in the
Complaint (Doc. #7). Defendants’ Motion in Limine is due to be granted.
Accordingly, it is now
ORDERED:
1. Plaintiff David Ogilvie’s Amended Motion in Limine (Doc. #39) is GRANTED
to the extent outlined below.


Evidence of Ogilvie’s June 28, 2011 DUI arrest and accompanying
video may not be admitted into evidence unless Ogilvie opens the
door during testimony.



Dr. Hobaicia, will not be permitted to testify as to his personal
opinions on the merits of the lawsuit.

2. Defendants Caceres’ and Swank’s Motion in Limine (Doc. #41) is
GRANTED.


Evidence of past incidents involving Deputy Caceres are not
admissible.

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

The fact the Plaintiff’s underlying criminal charges were nolle
prossed is not admissible.

DONE and ORDERED in Fort Myers, Florida, this 15th day of April, 2016.

Copies: All Parties of Record

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