Mason et al v. Lafayette et al

Filing 179

RULING: For the foregoing reasons, the Court concludes that while the Internal Affairs Report itself is admissible under the public records exception to the hearsay rule, the video statements and transcribed statements of Joel Grayson are hearsay and not admissible under any exception to the hearsay rule. Signed by Magistrate Judge Carol B Whitehurst on 2/28/2018. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Brenda Mason, et al.

Civil Action No. 12-2939

versus

Magistrate Judge Carol B. Whitehurst

Martine Faul, et al.

BY CONSENT OF THE PARTIES

RULING ON ADMISSIBILITY OF STATEMENT OF JOEL GRAYSON
The issue of the admissibility of the transcribed and recorded statements of
Officer Joel Grayson, who is deceased, was first raised by the plaintiff in the Pre-Trial
Order submitted by the parties on January 29, 2018 [Doc. 164]. The statements at
issue are contained within the Internal Affairs Case Summary prepared by the
Lafayette Police Department. In the parties’ Joint Pre-Trial Order, the parties listed
the Internal Affairs Case Summary (J-2), including all exhibits as a joint exhibit; the
video statement (J3(F)) of Mr. Grayson, as well as the transcribed statement of that
video statement(J2(I)), are also listed as joint exhibits. For the following reasons, the
Court concludes that while the Internal Affairs Report itself is admissible, all
transcribed and recorded statements that are contained therein, or are included as
attachments, are hearsay and not admissible under any exception to the hearsay rule.
Analysis
To be clear, in this Ruling, the Court addresses several different aspects of the
admissibility of the Internal Affairs Report, as follows:

1.

Admissibility of the Internal Affairs Report itself

In their Joint Pre-Trial Order, the parties listed as a joint exhibit the Internal
Affairs Report of the Lafayette Police Department and all attachments thereto.
Inexplicably, the plaintiffs then asserted an objection to the Report itself, as well as
the transcribed and video recorded statements of Joel Grayson. With respect to the
Report itself, the plaintiffs asserted the following objection in the parties’ Joint PreTrial Order:
Internal Investigation Report of
Lafayette Police Department,
including all attachments thereto

Plaintiffs object on the grounds
that this document was
prepared by the defendants and
is self-serving and irrelevant
under FRE 402 and 403

After discussion at the pre-trial conference, the plaintiffs withdrew their
objection to the admissibility of the Internal Affairs Report itself. The Federal Rules
of Evidence and jurisprudence support this withdrawal. Indeed, Federal Rule of
Evidence 401 defines “relevant evidence” as “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
Here, the Report sets forth the Lafayette Police Department’s findings
concerning the decedent’s death and the allegations that defendant Officer Martin Faul
acted improperly during the arrest of the decedent Quamaine Mason. The Report is
therefore relevant to Mason’s parents’ claims of excessive force in the arrest of
Quamaine. Furthermore, Federal Rule of Evidence 803(8)(C), which excludes from
the hearsay rule certain public records, expressly contemplates the admissibility of

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investigative reports such as the Internal Affairs Report that “result[ ] from an
investigation made pursuant to authority granted by law.” The hearsay exception set
forth in Rule 803(8) is based upon the assumption that public officers will perform
their duties, that they lack motive to falsify, and that public inspection to which many
such records are subject will disclose inaccuracies. Under this rule, a public record
is not excluded by the hearsay rule if it is a record, report, statement, or data
compilation setting forth “(A) the activities of the office or agency, or (B) matters
observed pursuant to duty imposed by law as to which matters there was a duty to
report ..., or (C) in civil actions and proceedings ..., factual findings resulting from an
investigation made pursuant to authority granted by law, unless the sources of
information or other circumstances indicate lack of trustworthiness.” Fed.R.Evid.
803(8).
Rule 803(8) presumes the admissibility of an investigator's findings “unless the
sources of information or other circumstances indicate a lack of trustworthiness.”
Fed.R.Evid. 803(8)(C); Fed.R.Evid. 803(8) advisory committee note (stating that the
Rule “assumes admissibility in the first instance but with ample provision for escape
if significant negative factors are present.”); see also Moss v. Ole South Real Estate,
Inc., 933 F.2d 1300, 1305-06 (5th Cir. 1991). In light of this presumption, the party
opposing the admission of the report must prove that the report is not trustworthy. See
Moss, 933 F.2d at 1306.
In the instant case, this Court concludes the Internal Affairs Report is
admissible as a public record under the hearsay exception of Rule 803(8). As to the

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first indicia of trustworthiness of investigative reports – timeliness – the Court finds
that the Report was timely. The incident occurred on December 9, 2011, and the
matter was referred to Internal Affairs the same day. The investigation was completed
on January 11, 2012, and the Report was completed on February 14, 2012. There is
no indication that the information Investigator Chastity Arwood relied on was stale
or compromised at the time she compiled the Report. As to the second indicia – the
skill or experience of the official -- the Court presumes that investigator Arwood had
the requisite experience to issue the Report, although the defendants have not
provided the Court with Arwood’s qualifications. Regarding the third indicia –
whether a hearing was held -- there is no evidence in the record that a hearing was
held. Thus, this factor does not bolster the trustworthiness of the Report. Finally, as
to whether the Report was plagued by motivation problems or bias, the Court
concludes that it was not. There is no indication that Arwood, who compiled the
Report, was at all involved in the incident at issue. There is no reason to suspect bias
in Arwood’s investigation or factual findings. On balance, these factors weigh in favor
of trustworthiness and, therefore, admissibility. Accordingly, the Report itself is
admissible, subject to certain portions being excluded by another evidentiary rule such
as double hearsay.
2.

Introduction of the Transcribed and Video Statements of Joel
Grayson

Notwithstanding the admissibility of the Report itself as an exception to the
hearsay rule, the defendants are attempting to introduce all attachments and exhibits
to the Report itself, which include videotaped witness statements and the
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transcriptions thereof. With respect to all of the transcribed witness statements, the
plaintiffs have withdrawn all of their objections, except for the transcribed statement
of Joel Grayson, a police officer with the Lafayette Police Department who died after
giving his statements and who is, therefore, unavailable to testify at trial. The
defendants also object to the video statement of Officer Grayson.
With respect to the transcribed statement of Joel Grayson, the plaintiff asserted
the following objection in the parties’ Joint Pre-trial order:
Transcribed statement of Officer
Joel Grayson (part of Lafayette
Police Department’s Internal
Affairs Investigation)

Defendants note that Officer
Joel Grayson is deceased and
defendants hope to use
videotaped statement at trial
under FRE 801, et seq. under the
hearsay exceptions.
Plaintiff objects as the video
recordings provided in J3 speak
for themselves.

Wirth respect to the video statement of Officer Grayson, the plaintiffs do not
assert an objection to the statement in the parties’ Joint Pre-Trial Order. However, the
defendants appear to anticipate an objection at trial and “argue” that Mr. Grayson is
deceased and that they “hope to use [the] videotaped statement at trial under FRE 801,
et seq. under the hearsay exceptions.” No specific hearsay exception is noted in the
Pre-Trial Order.
The jurisprudence is clear that although the Report itself may be admitted under
the public records exception to the hearsay rule, witness statements contained within
the Report or attached to the Report as exhibits are hearsay unless another hearsay
exception applies. Therefore, following the pre-trial conference, the Court ordered
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additional briefing on the admissibility of the transcribed and video statements of Joel
Grayson. The partied filed their briefs on February 26, 2018 [Docs. 176 & 177];
notably, both parties rely on argument only and neither party has cited this Court to
any jurisprudence interpreting the Federal Rules of Evidence that support their
argument.
In their brief, the defendants argue that the video statement of Joel Grayson –
who died within months of the incident involving Quamaine Mason – was taken on
December 13, 2011, as well as the transcribed statement of that video recording, are
admissible under both the business records exception and the public records exception
to the hearsay rule. However, this Court finds neither exception is applicable to
Officer Grayson’ statements in the instant matter.
To the extent that the defendants are arguing application of the present sense
impression exception, the Court similarly finds the exception inapplicable. Rule
803(1) provides that hearsay statements “describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or
immediately thereafter” should be admissible regardless of the availability of the
declarant.

The

justification

for

this

hearsay

exception

relies

on

the

contemporaneousness of the event under consideration and the statement describing
that event. Fed.R.Evid. 803(1). See also Rock v. Huffco Gas & Oil Co., 922 F.2d 272,
280 (5th Cir. 1991). Because the two occur almost simultaneously, there is almost no
“likelihood of [a] deliberate or conscious misrepresentation.” Fed.R.Evid. 803(1)
advisory committee's note; see also United States v. Peacock, 654 F.2d 339, 350 (5 th

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Cir. Aug. 1981), modified on other grounds, 686 F.2d 356 (5 th Cir. 1982) (statement,
otherwise hearsay, admitted under Rule 803(1), because “[t]here was no time for
[declarant] to consciously manipulate the truth”).
In Rock, the Fifth Circuit affirmed the district court’s conclusion that a report
prepared two days after an accident did not fit within the parameters of Rule 803(1).
922 F.2d at 280. Here, Officer Grayson’s video statement was made four days after
the incident involving Quamaine Mason and, therefore, cannot be construed as a
statement “made while the declarant was perceiving the event or condition, or
immediately thereafter.” For this reason, the statements of Officer Grayson are not
admissible under the present sense impression exception to the hearsay rule.
Because no other exception has been argued by the defendants, this Court
concludes that both the video statement and transcribed statement of Officer Grayson
constitute hearsay and are inadmissible at trial.
Conclusion
Thus, for the foregoing reasons, the Court concludes that while the Internal
Affairs Report itself is admissible under the public records exception to the hearsay
rule, the video statements and transcribed statements of Joel Grayson are hearsay and
not admissible under any exception to the hearsay rule.
THUS DONE AND SIGNED in Lafayette, Louisiana, on this 28 th day of
February, 2018.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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