Leath v. Webb et al

Filing 90

MEMORANDUM OPINION & ORDER: 1) The 85 Objection to inclusion of the Offender Index as an exhibit at trial is SUSTAINED; 2) This Order only pertains to the Offender Index exhibit and has no effect upon the other evidentiary rulings made by the Court. Signed by Judge Joseph M. Hood on 9/25/2018.(JJ)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

DARRELL LEATH,

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Plaintiff,
v.
RANDALL WEBB, et al.,
Defendants.

Civil Case No.
5:17-cv-38-JMH
MEMORANDUM OPINION
AND ORDER

***
Plaintiff Darrell Leath objected to the inclusion of multiple
exhibits listed on Defendant Webb’s exhibit list [DE 72].

The

only objection remaining after the final pretrial conference is an
objection to the introduction of an Offender Index as an exhibit
that contains Leath’s prior criminal history.

[See

DE 85].

Specifically, Webb intends to introduce a prior conviction for
manslaughter for impeachment.

But because more than ten years

have passed since Leath’s release from custody and truthfulness is
not an element of the offense of manslaughter, Leath’s objection
to the inclusion of the Offender Index [DE 37-5] is SUSTAINED.
This matter is set for trial beginning on October 30, 2018.
The parties have briefed their arguments pertaining to objections
to certain exhibits.

[See DE 87; DE 88].

parties

argument

provided

oral

1 

on

the

Additionally, the

objections

to

certain

exhibits at the final pretrial conference.

[DE 89].

As such,

this matter is ripe for review.
Federal Rule of Evidence 609(b) limits the use of evidence of
a prior conviction for impeachment, “if more than 10 years have
passed since the witness’s conviction or release from confinement
for it, whichever is later.”
ten

years

old

should

be

“[E]vidence of convictions more than
admitted

exceptional circumstances.’”

‘very

rarely

and

only

in

United States v. Sloman, 909 F.2d

176, 180 (6th Cir. 1990) (quoting United States v. Sims, 588 F.2d
1145, 1149 (6th Cir. 1978)).
Leath was convicted of manslaughter in the second degree on
June 24, 1999.

He was released from incarceration in May 2005.

Thus, nineteen years have passed since Leath was convicted and
thirteen years have passed since Leath was released from custody
on the manslaughter conviction.

Thus, more than ten years have

passed since both the date of conviction and the date of release
from confinement.
Additionally, Leath was not convicted of a crime involving
dishonesty or false statements.

To be guilty of manslaughter in

the second degree, a defendant must have “wantonly cause[d] the
death of another person . . . .”

KRS § 507.040.

The elements of

manslaughter in the second degree under Kentucky law do not involve
proof of dishonesty, false statements, or untruthfulness.
2 

Thus, the Court must determine whether the probative value of
the evidence substantially outweighs its prejudicial effects.

FRE

609(b)(1); United States v. Peatross, 377 F. App’x 477, 489 (6th
Cir. 2010).

Courts weigh the following factors when making a

decision on whether to admit evidence under FRE 609(b): “(1) the
impeachment value of the prior crime, (2) the point in time of the
conviction

and

the

witness's

subsequent

history,

(3)

the

similarity between the earlier crime and the charged offense, (4)
the importance of the defendants' testimony, and (5) the centrality
of the credibility issue.”

Sloman, 909 F.2d at 181 (citing Gordon

v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967)).
First, proof of the prior conviction has little impeachment
value.
law

This matter is a civil case for excessive force and state

assault

and

battery.

Leath’s

criminal

conviction

for

manslaughter is not relevant and does little to inform the jury
about Leath’s character for truthfulness.

In fact, the Offender

Index would primarily serve as inadmissible character evidence
that would likely distract the jury from the main issue at hand.
Ultimately, the fact that proof of the prior conviction does little
to inform the jury of Leath’s character for truthfulness weighs
against admission of the exhibit.
Second,

Leath’s

conviction

and

subsequent

release

from

custody for manslaughter were over nineteen and thirteen years ago

3 

respectively.

Thus, the fact that the conviction was nearly two

decades ago weighs against admission.
Third, there is no similarity between Leath’s conviction for
manslaughter and this case.

Leath’s manslaughter conviction is a

criminal matter under state law. Alternatively, the current matter
is a civil action in federal court for excessive force and state
law assault and battery.

Thus, the lack of similarity between the

two matters weighs against admission.
Fourth, Leath’s testimony is important to this trial as he is
the alleged victim of excessive force and assault and battery by
a police officer.

Still, the incident of the alleged throat grab,

and the events leading up to the incident, are captured on the
officers’ body cameras.

As such, while Leath’s testimony is

important to this case, the jury can view videos of the events
leading up to and including the alleged throat grab and can make
an independent determination about Leath’s credibility based on
the videos and other evidence that will be introduced at trial.
Fifth, and finally, the credibility of Leath’s testimony
pertaining to the alleged throat grab is not central for reasons
already discussed.

The events that give rise to this case are

captured on the officers’ body cameras.

Leath’s testimony is more

important to the issue of the damages he allegedly suffered than
it is to the events that led up to the alleged throat grab.
4 

As

such, considering the video evidence, Leath’s credibility as a
witness is not a central issue to the trial.
Accordingly, for the foregoing reasons, IT IS ORDERED:
1) The objection to the inclusion of the Offender Index as an
exhibit at trial [See DE 85] is SUSTAINED;
2) This Order only pertains to the Offender Index exhibit and
has no effect upon the other evidentiary rulings made by the Court.
This the 25th day of September, 2018.

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