Hill v. City Of Chicago et al

Filing 608

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 8/30/2011:Mailed notice(kef, )

IN THE UNITED STATED DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HAROLD HILL,

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Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

Case No. 06 C 6772

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Before the Court is Defendant Chicago Police Detectives Kenneth Boudreau’s and John
Halloran’s motion in limine to bar evidence of ten other acts pursuant to Federal Rule of
Evidence 404(b). For the following reasons, the Court, in its discretion, grants in part and denies
in part Defendants’ Rule 404(b) motion. Specifically, the Court grants Defendant Officers’
motion as to other acts evidence concerning Curtis Milsap, Abel Quinones, Arnold Day, Enrique
Valdez, Clayborn Smith, and Robert Wilson. The Court denies Defendant Officers’ motion as to
other acts evidence regarding Kilroy Watkins, and grants in part and denies in part Defendants’
motion as to Tyrone Reyna, Oscar Gomez, and Derrick Flewellen. The parties must submit an
agreed upon limiting jury instruction concerning this Rule 404(b) evidence by no later than
September 6, 2011.
BACKGROUND
Plaintiff Harold Hill brought this lawsuit pursuant to 42 U.S.C. § 1983 against the City of
Chicago, Chicago police officers, and a Cook County Assistant State’s Attorney after his
conviction for sexual assault and homicide was vacated based on post-conviction DNA evidence

that excluded Hill from samples taken from the victim’s fingernails. After the Court’s ruling on
summary judgment, the following claims remain in this lawsuit against Defendant Officers
Boudreau and Halloran: (1) Hill’s Fifth Amendment coerced confession claim; (2) Hill’s Section
1983 conspiracy claim based on his coerced confession claim; and (3) Hill’s failure to intervene
claim based on his coerced confession claim.
Hill’s case arises out of the October 14, 1990 sexual assault and murder of Kathy
Morgan. On March 20, 1992, two Chicago police officers arrested Hill for possession of a stolen
automobile and possession of a handgun, and then transported him to the Seventh District Police
Station in Chicago. At the police station, Hill admitted to committing two armed robberies – one
in Chicago and one in Oak Lawn, Illinois. During the follow-up investigation of the Chicago
armed robbery, Hill participated in a line-up at the Area 3 Station at 39th Street and California
Avenue on March 21, 1992. Defendant Officers Boudreau and Halloran participated in
conducting the line-up and questioned Hill about other crimes.
Approximately twenty-six hours after his arrest, Hill gave a court-reported statement
implicating himself and two other men, Dan Young and Peter Williams, in the Morgan crimes.
Hill, who was eighteen-years-old at the time, contends that Defendant Officers Boudreau and
Halloran coerced his confession. Specifically, Hill testified at his deposition that Defendant
Officers Boudreau and Halloran interrogated him in a closed interrogation room where he was
handcuffed to a wall. He further testified that Defendant Officers started giving him details of
the Morgan crimes, including showing him photographs and the victim’s clothing. In addition,
Hill testified that Defendant Officers put him in a car and took him to the crime scene, after
which Defendant Boudreau asked him how he committed the Morgan crimes. After Defendants

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drove Hill back to the police station, they put him in the same interrogation room and handcuffed
him to the wall. Hill testified that at that time, Defendant Officers said “You know you did it”
and “You did this crime.” Thereafter, Defendant Boudreau yelled and screamed at Hill and
when Hill denied committing the murder, Officer Boudreau grabbed him. Hill admits that
Defendant Halloran did not touch him, although Defendant Halloran remained in the
interrogation room on and off during Hill’s interrogation. At one point, Defendant Halloran left
the room and then Defendant Boudreau continued yelling at Hill and hit him in the ribs with his
fist, after which he left the room. When Defendants Halloran and Boudreau returned to the
interrogation room, Defendant Boudreau continued to drill Hill about the Morgan murder.
Again, Defendant Boudreau grabbed and yelled at Hill. Also, Hill testified that Defendant
Boudreau slapped him, continued to tell him that he had committed the murder, and told him the
details of the crime. Once again, Defendants took Hill to the scene of the crime at which time
Defendant Boudreau slapped Hill and yelled at him. After Defendants and Hill returned to the
police station, Defendant Boudreau came into the interrogation room to show Hill photographs
of potential suspects. Hill testified that Defendant Boudreau pointed to photographs of Williams
and Young. Thereafter, Hill implicated Williams and Young in the Morgan murders because he
was scared that Defendant Boudreau would hit him. Hill further testified that he implicated
Williams and Young because Defendant Boudreau continued to yell at him and applied
psychological pressure. Hill claims that he also implicated himself in the Morgan murder due to
Defendant Boudreau’s physical and psychological abuse. Finally, Hill maintains that Defendant
Boudreau told him what to say to the Cook County Assistant State’s Attorney.

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Over the next few days in March 1992, Chicago police detectives obtained written
confessions from both Young and Williams. Despite Williams’ confession, it was later
confirmed that Williams was incarcerated at the Cook County Jail on the day of Morgan’s
homicide.
In September 1994, Hill and his co-defendant Dan Young were tried simultaneously –
but to separate juries – for Morgan’s sexual assault and homicide. The State introduced Hill’s
and Young’s confessions as evidence against them during trial. In addition, both Hill and Young
testified at trial maintaining their innocence and asserting that law enforcement coerced them
into giving their confessions. In September 1994, the juries convicted Hill and Young for
Morgan’s sexual assault and homicide. Over a decade later, the results of DNA testing resulted
in the trial court vacating Hill’s and Young’s convictions and the State dropping the charges
against them.
LEGAL STANDARDS
“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the
practice has developed pursuant to the district court’s inherent authority to manage the course of
trials.” Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). In
limine rulings avoid delay and allow the parties the opportunity to prepare themselves and
witnesses for the introduction or exclusion of the applicable evidence. See Wilson v. Williams,
182 F.3d 562, 566 (7th Cir. 1999); United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).
Trial courts have broad discretion in ruling on evidentiary issues before trial. See United States
v. Chambers, 642 F.3d 588, 594 (7th Cir. 2011); Cefalu v. Village of Elk Grove, 211 F.3d 416,
426 (7th Cir. 2000). Regardless of the Court’s initial ruling on a motion in limine, the Court

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may adjust its ruling during the course of trial. See Farfaras v. Citizens Bank & Trust of
Chicago, 433 F.3d 558, 565 (7th Cir. 2006). The Court will only grant a motion in limine when
the evidence is clearly inadmissable for any purpose. See Jonasson v. Lutheran Child & Family
Servs., 115 F.3d 436, 440 (7th Cir. 1997); Thakore v. Universal Mach. Co. of Pottstown, Inc.,
670 F.Supp.2d 705, 714 (N.D. Ill. 2009). The moving party bears the burden of establishing that
the evidence is not admissible for any purpose. See Mason v. City of Chicago, 631 F.Supp.2d
1052, 1056 (N.D. Ill. 2009).
“Rule 404(b) provides that evidence of other acts is inadmissible ‘to prove the character
of a person in order to show action in conformity therewith’ but may be admissible for other
purposes, such as proof of motive, opportunity, intent, plan, knowledge, identity, or absence of
mistake or accident.” United States v. Hicks, 635 F.3d 1063, 1069 (7th Cir. 2011) (citation
omitted). When determining whether evidence is properly admitted under Rule 404(b), the
Court considers whether: (1) the evidence is directed toward establishing a matter at issue other
than the defendant’s propensity to commit the conduct in question, (2) the evidence shows that
the other act is similar and close enough in time to be relevant to the matter at issue, (3) the
evidence is sufficient to support a jury finding that the defendant committed the similar act, and
(4) the probative value of the evidence is not substantially outweighed by the danger of unfair
prejudice pursuant to Federal Rule of Evidence 403. See id.; see also Duran v. Town of Cicero,
Ill., ___ F.3d ___, 2011 WL 3444353, at *10 (7th Cir. Aug. 9, 2011). Under the second factor,
the question of “how similar is similar enough” depends on the theory that makes the evidence
admissible, and courts reach this decision on a case-by-case basis. See United States v. Foster,
___ F.3d ___, 2011 WL 2909455, at *6 (7th Cir. July 21, 2011) (quoting United States v. Torres,

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977 F.2d 321, 326 (7th Cir. 1992)). Also, “Rule 404(b) involves a discretionary decision for
which the trial judge is best suited because of ‘his familiarity with the case and ability to gauge
the likely impact of the evidence in the context of the entire proceeding.’” Okai v. Verfuth, 275
F.3d 606, 611 (7th Cir. 2001) (quotation omitted).
ANALYSIS
I.

Matters Other Than Propensity
Hill first argues that the manner in which Defendant Officers interacted and interrogated

other murder suspects is relevant to establish Defendant Officers’ modus operandi, especially
because Defendant Officers claim that they followed specific police protocols for securing
confessions from suspects and that these protocols did not involve coercion. See United States v.
Robinson, 161 F.3d 463, 467 (7th Cir. 1998) (“Evidence of modus operandi is evidence that
shows a defendant’s distinctive method of operation.”). Defendant Officers, however, maintain
that they do not intend to assert that they followed the usual practice and protocol in
investigating Hill nor do they intend to discuss any other investigations other than Hill’s
investigation and interrogation. Meanwhile, although prior bad acts may be used to show that a
defendant has a modus operandi, see Treece v. Hochstetler, 213 F.3d 360, 363 (7th Cir. 2000),
any such evidence is usually offered to prove identity. See Robinson, 161 F.3d at 467; see also
United States v. Rollins, 301 F.3d 511, 518 n.3 (7th Cir. 2002); United States v. Moore, 115 F.3d
1348, 1354 n.3 (7th Cir. 1997); United States v. Hudson, 884 F.2d 1016, 1021 (7th Cir. 1989);
Newsome v. James, No. 96 C 7680, 2000 WL 1047822, at *1 (N.D. Ill. July 27, 2000). In the
present lawsuit, identity is not at issue because Defendant Officers do not assert the defense that
Hill has mistaken them for other officers. See Okai, 275 F.3d at 613. Moreover, Hill gives no

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other cogent reason why the Court should allow this evidence under his modus operandi theory.
See United States v. Connelly, 874 F.2d 412, 417 n.7 (7th Cir. 1989) (“Rule 404(b) does not
specifically enumerate ‘modus operandi’ proof as an exception for similar act evidence but this
court has approved the introduction of modus operandi evidence under the ‘identity’ exception to
Rule 404(b)”). Indeed, Hill’s modus operandi argument appears to be a disguised propensity
argument. Finally, even if Hill’s modus operandi theory were applicable, the factual background
of many of the other bad acts do not meet the high degree of similarity required to prove modus
operandi – as discussed in detail below. See Foster, ___ F.3d ___, 2011 WL 2909455, at *7; see
also U.S. v. Rollins, 301 F.3d 511, 519 (7th Cir. 2002) (“modus operandi evidence must ‘bear a
singular strong resemblance to the pattern of the offense charged’”) (citation omitted); Treece,
213 F.3d at 363 (“[i]f defined broadly enough, modus operandi evidence becomes nothing more
than the character evidence that Rule 404(b) prohibits”) (citation omitted).
Next, Hill maintains that the Rule 404(b) evidence is relevant and admissible to show
intent because he is seeking punitive damages against Defendant Officers Halloran and
Boudreau. See Jannotta v. Subway Sandwich Shops, Inc., 125 F.3d 503, 517 (7th Cir. 1997)
(other bad acts evidence admissible to show defendant’s intent with respect to punitive damages
in relation to fraudulent scheme); see also Edwards v. Thomas, 31 F.Supp.2d 1069, 1074 n.8
(N.D. Ill. 1999) (plaintiff’s request “for punitive damages would appear to make the issue of
Officers’ intent to do harm relevant on that claim”). The Supreme Court cautions, however, that
tangential other bad acts evidence which is independent from the acts upon which liability is
premised cannot form the basis for punitive damages. See State Farm Mut. Auto. Ins. Co. v.
Campbell, 538 U.S. 408, 422-23, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (“A defendant should

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be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or
business.”); see also Philip Morris USA v. Williams, 549 U.S. 346, 356-57, 127 S.Ct. 1057, 166
L.Ed.2d 940 (2007) (jury cannot punish defendants for the harm caused by others). Hence,
Hill’s intent argument is tenuous at best, especially because evidence of Defendant Officers’
other acts cannot be used against them in determining any punitive damages awards. See Philip
Morris, 549 U.S. at 356-57.
Hill also maintains that the other bad acts evidence goes to Defendant Officers’
preparation and plan. See Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th Cir. 1993) (police
officers’ previous interrogation methods “admissible for other purposes, including intent,
opportunity, preparation, and plan”). In Wilson, the Seventh Circuit concluded that the trial
court erred in excluding other bad acts evidence that police officers had interrogated another
suspect using an electroshock device to extract a confession approximately nine days before the
same police officers allegedly interrogated the plaintiff in the same manner. See id. Under
Wilson, the other bad acts evidence may go to Defendant Officers’ plan and preparation to
coerce Hill’s confession. Hill must still, however, meet the other mandates of Rule 404(b). The
Court thus turns to the specific instances of other bad acts to determine whether the acts are
similar enough in the context of Defendant Officers’ preparation and plan, whether the acts are
close enough in time, and whether the evidence’s probative value is substantially outweighed by
unfair prejudice under Rule 403.
II.

Specific Instances of Other Bad Acts Evidence
Defendant Officers move in limine to exclude other bad acts evidence under Rule 404(b)

concerning the following ten individuals: (1) Kilroy Watkins; (2) Curtis Milsap; (3) Tyrone

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Reyna; (4) Oscar Gomez; (5) Abel Quinones; (6) Arnold Day; (7) Enrique Valdez; (8) Clayborn
Smith; (9) Derrick Flewellen; and (10) Robert Wilson.
A.

Kilroy Watkins

Chicago police officers arrested Kilroy Watkins on January 15, 1992. The police then
took Watkins to the Third District police station and placed him in a line-up after which he was
identified for having participated in an armed robbery. The police transported Watkins to the
Area 3 police station and placed him in lock-up. The next morning, January 16, 1992, Defendant
Officers Boudreau and Halloran interrogated Watkins about the shooting death of Leroy Porter.
Watkins testified at his deposition that Officer Halloran accused him of committing the shooting
and when Watkins denied shooting Porter, Officer Halloran stormed out of the room and brought
back Officer Boudreau. Watkins further testified that Officer Boudreau then yelled at him,
grabbed him in a choke hold, and struck him on the head. Thereafter, Officers Boudreau and
Halloran left the room and returned approximately an hour later with a Cook County Assistant
State’s Attorney and a written statement for Watkins to sign. At some point, the Assistant
State’s Attorney told Watkins what the statement said, and Watkins testified that this written
statement was not what Watkins had told Defendant Officers Boudreau and Halloran. In
addition, Watkins testified that while he was trying to read the statement, Officer Boudreau
grabbed him by the neck and forced him to sign the statement.
Based on Watkins’ testimony, Defendant Officers’ conduct is close enough in time to
their interrogation of Hill because it happened approximately two months before Hill’s
interrogation. See United States v. Lee, 558 F.3d 638, 647 (7th Cir. 2009) (two-year time frame
close enough to be relevant to matter at issue). Further, Watkins’ interrogation involved similar

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threats by Defendant Officers Halloran and Boudreau. Also, like Hill, Watkins maintains that
Officer Boudreau physically abused him, yet Officer Halloran did not. In addition, Watkins’
testimony is sufficient evidence to support a finding that Defendant Officers committed this
similar act. See, e.g., United States v. Ross, 510 F.3d 702, 713 (7th Cir. 2007) (co-conspirator’s
testimony satisfied third Rule 404(b) factor); see also Lee, 558 F.3d at 647 (first-hand testimony
sufficiently satisfied third Rule 404(b) factor). Defendants’ argument that the physical threats
and abuse were somewhat different in Watkins’ situation than Hill’s, namely, that Defendant
Officer Boudreau slapped and punched Hill instead of putting him in a choke hold, is a
distinction without a difference and does not establish that the incidents were dissimilar for Rule
404(b) purposes. See Foster, ___ F.3d ___, 2011 WL 2909455, at *7 (comparison of other bad
acts need not be unduly rigid); United States v. Vargas, 552 F.3d 550, 555 (7th Cir. 2008) (prior
act need not be duplicate of conduct at issue).
Finally, Defendants’ argument that other acts that occurred before Hill’s coerced
confession are inadmissible is misplaced. See United States v. Anifowoshe, 307 F.3d 643, 64647 (7th Cir. 2002) (“by its very terms, 404(b) does not distinguish between ‘prior’ and
‘subsequent’ acts”); United States v. Brown, 31 F.3d 484, 492 (7th Cir. 1994) (Under Rule
404(b), “trial courts may admit evidence of prior or subsequent bad acts”). In fact, the majority
of other acts evidence under Rule 404(b) involves prior, not subsequent, bad acts. See, e.g.,
United States v. Ciesiolka, 614 F.3d 347, 355 (7th Cir. 2010); United States v. Harris, 587 F.3d
861, 864 (7th Cir. 2009). The Court thus denies Defendant Officers’ Rule 404(b) motion as to
Watkins. Hill may introduce Watkins’ testimony as proof of Defendant Officers’ plan and
preparation. See Wilson, 6 F.3d at 1238.

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B.

Curtis Milsap

Next, Hill seeks to introduce evidence concerning other police officers who allegedly
coerced Curtis Milsap’s confession based on the officers’ similar methods of interrogation. Hill
admits, however, that neither Officer Boudreau nor Halloran had any involvement in Milsap’s
interrogation. Because Milsap’s interrogation did not involve either of the officers in this case
and there is no pending claim against the City pursuant to Monell v. Dep’t of Social Servs., 436
U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the evidence surrounding Milsap’s
confession is not relevant under the circumstances. See Fed.R.Evid. 401; see also Foster, ___
F.3d ___, 2011 WL 2909455, at *7 (comparison of other acts concerns relevancy of 404(b)
evidence). In other words, actions taken by these other officers are not relevant to Defendant
Officer Boudreau’s or Halloran’s plan and preparation. The Court therefore grants Defendants
Officers’ motion in this respect.
C.

Tyrone Reyna

Hill also moves to introduce evidence of Tyrone Reyna’s confession to the shooting
death of Hector Olague. Defendant Officers Halloran and Boudreau, along with other police
officers, interrogated Reyna – who was sixteen-years-old at the time of his interrogation – on
February 11, 1993. At his deposition, Reyna testified that during his interrogation, Defendant
Officer Halloran punched and kicked him and also handcuffed him to a chair and that Defendant
Officer Boudreau smacked, punched, kicked and threatened him. He further testified that
Defendant Officers drove him around to view evidence of the murder. When Reyna denied
involvement in the murder, Defendant Officers beat him after which he gave a false statement
implicating himself. Reyna admits that he signed the false confession not only because

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Defendant Officers threatened him about his family and girlfriend, but also because Defendant
Officers “smacked” him around. Also, like Hill, Reyna claims that he agreed to a false statement
that Officer Boudreau created.
Defendant Officers’ interaction with Reyna is close enough in time to their interrogation
of Hill because it happened approximately eleven months after Hill’s interrogation and
confession. See Lee, 558 F.3d at 647. Further, Reyna’s interrogation involved similar threats
and abuse, including being handcuffed and beaten by the officers. Also, like Hill, Defendant
Officers drove Reyna around to view the evidence in the case. Reyna’s interrogation, however,
differs from Hill’s interrogation in the respect that other police officers besides Defendant
Officers Boudreau and Halloran were involved. Further, Reyna alleges that Defendant Officer
Halloran physically abused him, whereas Hill admits that Defendant Officer Halloran did not
touch him. Because Hill concedes that Defendant Officer Halloran did not touch him, evidence
that Officer Halloran physically abused Reyna is unfairly prejudicial. See United States v.
Zahursky, 580 F.3d 515, 525 (7th Cir. 2009) (“Evidence is unfairly prejudicial only if it will
induce the jury to decide the case on an improper basis, commonly an emotional one, rather than
on the evidence presented.”) (citation omitted). As such, the Court grants Defendants’ motion
regarding Reyna’s interrogation as to Officer Halloran.
That being said, because Defendant Boudreau’s conduct was sufficiently similar to his
alleged conduct involving Hill, the Court denies Defendants’ motion in this respect. Meanwhile,
under the third Rule 404(b) requirement, Reyna’s testimony is sufficient evidence to support a
finding that Defendant Officer Boudreau committed this similar act. See Lee, 558 F.3d at 647;
Ross, 510 F.3d at 713. Hill may only introduce Reyna’s testimony with respect to his interaction

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with Defendant Boudreau as proof of Defendant Boudreau’s plan and preparation. See Wilson, 6
F.3d at 1238. Plaintiff is cautioned, however, that Reyna may not testify about any acts of
physical abuse concerning Defendant Halloran.
D.

Oscar Gomez

Next, Hill seeks to introduce evidence concerning Oscar Gomez’s arrest for the shooting
death of Richard Zielinski. More specifically, Gomez testified at his deposition that on April 24
or April 25, 1995, Defendant Officers Halloran and Boudreau picked him up for questioning.
Defendant Officers placed Gomez in a room after which they and two other police officers
questioned him regarding the Zielinski murder. Gomez repeatedly denied involvement in the
murder, after which Defendant Officer Halloran became more aggressive and punched, kicked,
and choked Gomez. According to Gomez, Defendant Officer Boudreau also choked him and
punched him in the stomach. Thereafter, Defendant Officers Boudreau and Halloran showed
Gomez photographs of the victim and crime scene and told him that he had murdered Zielinski.
Gomez further testified that Officer Boudreau dictated Gomez’s confession directly to the Cook
County Assistant State’s Attorney. In addition, Gomez testified that he was told that if he signed
the confession to Zielinski’s murder, he could leave.
Defendant Officers’ interrogation of Gomez is close enough in time because it occurred
approximately three years after Defendant Officers interrogated Hill. See Ross, 510 F.3d at 713
(prior bad acts occurring five and six years after incident not too remote). Also, Defendant
Officer Boudreau’s physical abuse is similar to his alleged abuse of Hill. That being said, like
Reyna’s interrogation, Gomez accuses Defendant Officer Halloran of physically abusing him,
whereas Hill did not. Again, because Hill concedes that Defendant Officer Halloran did not

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touch him, evidence that Officer Halloran physically abused Gomez is both irrelevant and
unfairly prejudicial. See United States v. Thompson, 359 F.3d 470, 479 (7th Cir. 2004)
(“Evidence is ‘unfairly prejudicial if it appeals to the jury’s sympathies, arouses its sense of
horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on
something other than the established propositions in the case.’”) (citation omitted). In other
words, there is a real danger that evidence of Officer Halloran’s interrogation of Gomez would
induce the jury to decide this case based on Defendant Halloran’s conduct in connection with
Gomez – not Hill. See United States v. Conner, 583 F.3d 1011, 1025 (7th Cir. 2009). The Court
therefore grants Defendant Officers’ Rule 404(b) motion in this respect.
The Court, however, denies Defendants’ motion regarding Gomez’s interaction with
Officer Boudreau because Gomez’s allegations of Officer Boudreau’s conduct during his
interrogation are sufficiently similar to Hill’s allegations, and thus fulfill Rule 404(b)’s second
requirement. Also, Gomez’s own testimony is sufficient evidence to support a jury finding that
Defendant Officer Boudreau committed this similar act. See Lee, 558 F.3d at 647; Ross, 510
F.3d at 713. Hill may only offer Gomez’s testimony concerning his interactions with Defendant
Officer Boudreau during Gomez’s interrogation as proof of Officer Boudreau’s preparation and
plan. See Wilson, 6 F.3d at 1238. Hill is admonished that Gomez many not testify to any
physical abuse Defendant Halloran allegedly inflicted upon him.
E.

Abel Quinones

Similarly, Chicago police officers picked up Abel Quinones for questioning concerning
Zielinski’s murder on April 25, 1995. After Quinones was at the police station, Defendant
Officer Halloran grabbed him and pushed him into the wall and then told Quinones that he had

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no rights. According to Quinones’ deposition testimony, three or four different detectives
interrogated him besides Defendant Officer Halloran. Quinones further testified that Defendant
Officer Halloran grabbed his face and forced him to look at photographs of the victim. In
addition, Defendant Halloran prepared Quinones’ statement and read it to him. Further,
Quinones testified that Defendant Boudreau – whom Quinones described as the shorter detective
with a mustache – pulled him by the hair, grabbed him by the neck, and pinned him against the
wall. Quinones, like Hill, was questioned for over 24 hours.
Again, Defendants Officers’ interrogation of Quinones is close enough in time to Hill’s
interrogation because it occurred approximately three years after Defendant Officers interrogated
Hill. See Ross, 510 F.3d at 713. Quinones’ deposition testimony that Defendant Officers and
other officers physically abused and threatened him, however, is not sufficiently similar to Hill’s
testimony because Quinones maintains that Defendant Officer Halloran grabbed him and pushed
him into the wall telling Quinones he had no rights. Quinones also maintains that Officer
Halloran grabbed his face and forced him to look at photographs of the victim and then made
him sign a statement. Meanwhile, Defendant Officer Boudreau’s involvement was quite limited.
These facts are significantly different from Hill’s allegations and are unfairly prejudicial in light
of Hill’s admission that Officer Halloran did not touch him. See Zahursky, 580 F.3d at 525;
Thompson, 359 F.3d at 479. Given Officer Boudreau’s limited involvement, the admission of
such testimony against him would be unfairly prejudicial as well. Accordingly, the Court grants
Defendant Officers’ Rule 404(b) motion as to Quinones’ interrogation.

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F.

Arnold Day

Next, Hill asks to introduce evidence that Defendant Officer Boudreau and two other
police officers coerced Arnold Day into confessing to the murder of Rafael Garcia that occurred
on September 15, 1991 and the murder of Gerrod Erving that occurred on May 17, 1991. In
particular, police officers arrested Day on February 4, 1992 and transported him to the Area 3
police station. At Area 3, a police officer handcuffed Day to the wall of the interrogation room.
Thereafter, Defendant Officer Boudreau questioned Day and told him that a fellow gang member
had given a statement that Day was involved in a murder. When Day told Defendant Officer
Boudreau and another police officer that he was not involved in the murder, the other police
officer choked and threatened him. Day gave a written statement implicating himself in the
shooting murders of Erving and Garcia. At his deposition, Day testified that Officer Boudreau
coached him on what to say. Day also testified that Defendant Officer Boudreau did not
physically or verbally abuse him.
The facts surrounding Day’s interrogation, although close in time to Hill’s interrogation,
are not similar enough to fulfill the second Rule 404(b) requirement under the circumstances.
More specifically, Day admitted that Defendant Boudreau did not physically or verbally abuse or
threaten him. Moreover, other non-defendant officers were involved in Day’s interrogation, but
Defendant Halloran was not. Although Day testified that Defendant Officer Boudreau coached
him on what to say, this factor, alone, does not make the Day interrogation sufficiently similar
under Rule 404(b) because Day’s interrogation involved different circumstances and different
police officers who allegedly coerced him into confessing to the murders. Based on these
differences, the Day incident is not sufficiently relevant to the Hill interrogation. See

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Fed.R.Evid. 401; see also Foster, ___ F.3d ___, 2011 WL 2909455, at *7 (comparison of other
acts evidence concerns relevancy). In addition, because of the differences, there is an increased
risk that this evidence would distract the jury from the central issue in this lawsuit – whether
Defendant Officers coerced Hill’s confession to the Morgan crimes. See United States v.
Alayeto, 628 F.3d 917, 922 (7th Cir. 2010). Therefore, the Court grants Defendant Officers’
Rule 404(b) motion as to Day’s interrogation because it is not relevant to Defendant Officer
Boudreau’s or Halloran’s plan and preparation in relation to their interrogation of Hill.
G.

Enrique Valdez

Additional other bad acts evidence that Hill seeks to introduce involves Enrique Valdez’s
arrest and confession to two murders. On August 24, 1991, Chicago police officers arrested
Valdez at his home because he had been identified as a murder suspect. Upon arriving at the
police station, the police officers put Valdez in a room where Defendant Officer Boudreau was
present. Valdez testified that during his interrogation, a police officer handcuffed him to the
wall, beat him, punched him, and threw him to the ground. When Valdez denied involvement in
the murder, a police officer continued to beat him. He also testified that once the other officer
left the room, Defendant Officer Boudreau struck him on the right side of his ear and told him to
stop giving his partner the runaround. Thereafter, Valdez gave his false statement due in part to
the fear that Defendant Boudreau and the other police officer would continue to beat him.
Valdez’s confession, which occurred approximately seven months before Hill’s
interrogation and confession, is close enough in time under the second Rule 404(b) factor. See
Lee, 558 F.3d at 647; Ross, 510 F.3d at 713. That being said, Valdez’s interrogation was not
similar to Hill’s interrogation in that Defendant Officer Halloran was not involved and other

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police officers besides Defendant Officer Boudreau physically abused and threatened Valdez
into giving a false statement. Also, Defendant Boudreau’s alleged involvement in the physical
abuse was limited and significantly less than the non-defendant officers. Because Defendant
Halloran was not involved in Valdez’s interrogation, this evidence is unfairly prejudicial to him
because it may induce the jury to decide the case against him on an improper basis, namely, the
conduct of others. See United States v. Collins, 604 F.3d 481, 487 (7th Cir. 2010) (“relevant
evidence may be excluded if it is so unfairly prejudicial that it will cause the jury to decide the
case on an improper basis rather than on the evidence”). The evidence of the other police
officers’ alleged misconduct is similarly prejudicial to Officer Boudreau because, in contrast to
Hill’s allegations, Defendant Officer Boudreau’s involvement with Valdez was quite limited.
The Court therefore grants Defendant Officers’ Rule 404(b) motion as to Valdez’s interrogation.
H.

Clayborn Smith

In addition, Hill seeks to introduce other bad acts evidence concerning Clayborn Smith’s
interrogation for the beating deaths of his grandfather and aunt. At his deposition, Smith
testified that police officers arrested him on October 20, 1992. While the police officers
transported Smith to the police station, Smith testified that Defendant Officers Boudreau,
Halloran, and two other officers yelled at him and told him that they would beat him up if he did
not talk about the murders. At the station, the police placed Smith in a room and Defendant
Officer Halloran and another detective questioned him. During his interrogation, Smith was
handcuffed to the wall. Smith testified that another police officer slapped him and grabbed him.
He also testified that Defendant Halloran pushed his head between his knees and held him down
while the other police officer punched him.

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In contrast to Hill, Smith testified that Officer Halloran physically abused him and that
Officer Boudreau did not physically abused him. Moreover, other police officers were involved
in Smith’s interrogation, including the unknown detective who threatened and physically abused
Smith throughout his interrogation. As such, not only are the facts surrounding Smith’s
interrogation significantly different from Hill’s allegations – because the unknown police
detective repeatedly abused Smith – Defendant Officers Halloran and Boudreau would be
unfairly prejudiced by this evidence because it could induce the jury to decide the case against
Defendants on an improper basis, such as the unknown detective’s conduct. See Collins, 604
F.3d at 487. Therefore, the Court grants Defendant Officers’ in limine motion as to Smith’s
interrogation.
I.

Derrick Flewellen

Hill also seeks to introduce evidence of Derrick Flewellen’s interrogation by Defendant
Officer Boudreau and another Chicago police detective. According to Flewellen, on the night of
June 14, 1995, he was at the hospital being treated for a foot injury when two police officers
approached him to answer some questions. The police officers took Flewellen to the police
station after which Defendant Officer Boudreau began questioning him about the two murders.
Flewellen testified that when he said that he did not know anything about the murders,
Defendant Officer Boudreau punched him in the head. Later, Defendant Officer Boudreau
grabbed Flewellen by the neck, slammed him into the wall, punched him, and then threw him
down. The other officer present slammed a metal chair on Flewellen’s injured foot. Another
police officer threatened Flewellen that he would charge his girlfriend as an accomplice to the
murders if he did not confess. Thereafter, Defendant Officer Boudreau gave Flewellen a

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statement to sign. When Flewellen refused to sign the statement, Defendant Boudreau punched
him in the jaw. Flewellen signed the statement implicating himself in the murder of Sherry
Hunt. After additional threats and abuse, Flewellen signed a statement implicating himself in the
murder of Lovie Ford. Flewellen maintains that the police wrote out his statements for him and
that he signed the statements so the officers would stop beating him up.
Although Defendant Officer Halloran was not involved in Flewellen’s interrogation,
Defendant Officer Boudreau’s conduct when interrogating Flewellen was sufficiently similar to
Hill’s allegations under the second prong of the Rule 404(b) requirements. Also, Flewellen’s
testimony is sufficient evidence to support a jury finding that Defendant Officer Boudreau
committed this similar act. See Lee, 558 F.3d at 647; Ross, 510 F.3d at 713. Thus, Hill may
offer Flewellen’s testimony as to Flewellen’s interactions with Defendant Officer Boudreau
during his interrogation as proof of Officer Boudreau’s preparation and plan. See Wilson, 6 F.3d
at 1238. Hill may not, however, elicit testimony of any physical abuse the other non-defendant
officers allegedly exerted against Flewellen.
J.

Robert Wilson

Five years after Hill’s arrest, police officers arrested Robert Wilson at a bus stop because
he matched a description of an individual who stabbed a woman at that bus stop the day before.
At his deposition, Wilson testified that detectives placed him in a room and asked him where he
was the day before. When the police patted Wilson down, he reached into his pocket to pull out
his gun. The detectives then drew their weapons after which one detective hit Wilson in the
head. Thereafter, Defendant Officer Halloran verbally abused Wilson. Other police officers
slapped him and denied him medication during this time.

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The police then took Wilson to lock-up where he stayed for approximately eight hours.
After he was in a line-up, a Chicago police detective told Wilson that the victim had identified
him. Two detectives then met with Wilson in an interview room where one of the detectives
accused Wilson of assault and hit him in the head. This detective also verbally threatened
Wilson to confess. Wilson then met with a Cook County Assistant State’s Attorney who told
him that if he did not confess, the detectives would beat him. Wilson agreed to give a statement
because he was afraid for his life and was sick. The Assistant State’s Attorney described the
events of the night of the crime and Wilson then gave his statement based on these suggestions.
The facts of Wilson’s interrogation do not survive the similarity test under Rule 404(b).
Defendant Halloran’s role in the alleged coerced confession is minimal at best, namely, that prior
to Wilson being placed in lockup, Defendant Officer Halloran and other officers verbally abused
him. Moreover, there is no evidence in the record that Defendant Officer Halloran was in the
interview room later when Wilson gave his statement. Furthermore, there is no indication in the
record that Defendant Officer Boudreau was involved in Wilson’s interrogation in the first
instance. Without more, the Court would be hard-pressed to conclude that the facts surrounding
Wilson’s statements are sufficiently similar to Hill’s interrogation. In addition, due to the
differences between the Wilson and Hill circumstances, there is an increased risk that this
evidence would distract the jury from the central issue in this lawsuit – whether Defendants
coerced Hill’s confession to the Morgan crimes. See Alayeto, 628 F.3d at 922. The Court
therefore grants Defendants’ motion in limine as to Wilson’s interrogation.

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III.

Danger of Unfair Prejudice
The last Rule 404(b) factor requires the Court to determine whether the probative value

of the other bad acts evidence is substantially outweighed by the danger of unfair prejudice. As
discussed, evidence concerning both Defendant Officers’ interrogation of Watkins is highly
probative only to Defendant Officers’ plan and preparation in relation to their interrogation of
Hill. See Wilson, 6 F.3d at 1238. Also, evidence of Defendant Officer Boudreau’s interrogation
of Reyna, Gomez, and Flewellen is relevant and highly probative only to Defendant Boudreau’s
plan and preparation. And, it is well-settled that the “more probative the evidence, the more the
court will tolerate some risk of prejudice.” Vargas, 552 F.3d at 557 (citation omitted). The
Court therefore denies Defendant Officers’ motion as to Watkins, and grants in part and denies
in part as to Reyna, Gomez, and Flewellen. The parties must submit an agreed upon limiting
jury instruction concerning this Rule 404(b) evidence by no later than September 6, 2011. In
addition, Hill must confine this other acts evidence consistent with this opinion in order to avoid
prejudice, jury confusion, and a mini-trial of the individuals’ overall interrogations and
investigations. See Rogers, 587 F.3d at 822.
As to the other bad acts evidence regarding the other interrogations, what little (if any)
probative value such evidence has is substantially outweighed by the real danger that the jury
would view these acts as improper propensity evidence, namely, that if Defendant Officers
physically and verbally abused these other murder suspects to coerce their confessions, they did
the same to Hill. See United States v. Tanner, 628 F.3d 890, 904 (7th Cir. 2010) (“Rule 404(b)
forbids the use of a person’s prior bad acts only to show that same person’s later action in
conformity therewith.”). In other words, this other bad acts evidence is susceptible to misuse

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because it could lead the jury to decide that Defendant Officers have the propensity to coerce
confessions. See United States v. Powell, ___ F.3d ___, 2011 WL 2712969, at *3 (7th Cir. July
13, 2011).
Finally, the other Rule 404(b) evidence has the potential to confuse or mislead the jury
and cause undue delay, especially because introduction of such evidence would consist of
multiple mini-trials of the facts surrounding these interrogations. See Manuel v. City of Chicago,
335 F.3d 592, 597 (7th Cir. 2003). Indeed, the other acts evidence would most likely distract the
jury from the central issue in this lawsuit, namely, whether Defendant Officers coerced Hill’s
confession to the Morgan crimes. See Alayeto, 628 F.3d at 922. As such, the Court grants
Defendant Officers Rule 404(b) motion in part. See Lewis v. City of Chicago Police Dept., 590
F.3d 427, 441 (7th Cir. 2009) (“district court is afforded a special degree of deference when
deciding whether evidence is unfairly prejudicial under Rule 403”).
CONCLUSION
For the reasons stated above, the Court grants in part and denies in part Defendant
Officers’ motion to bar evidence of ten other acts brought pursuant to Federal Rule of Evidence
404(b).
DATED: August 30, 2011

ENTERED

________________________
AMY J. ST. EVE
United States District Judge

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