Reed v. Pramstaller, et al

Filing 226

ORDER Granting 218 Plaintiff's Motion in Limine. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK ANTHONY REED-BEY,
Plaintiff,
v.

CASE NUMBER: 06-10934
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT COURT JUDGE

GEORGE PRAMSTALLER, ET AL.,
Defendants,
_________________________________________/
ORDER AND OPINION GRANTING PLAINTIFF’S MOTION IN LIMINE
I. INTRODUCTION
This matter is before the Court on Plaintiff Mark Anthony Reed-Bey’s (“Mr. Reed-Bey”)
Motion in Limine to prohibit the Defendants from introducing his prior convictions and the prior
convictions of another potential witness, Frederick McKinney, (“Mr. McKinney”) at trial. Mr.
Reed-Bey argues that these convictions are inadmissible character evidence under Fed. R. Evid.
404(b) and are also inadmissible for impeachment purposes under Fed. R. Evid. 609. The matter
is fully briefed, and Defendants do not concur in the Motion. A hearing was held on November
5, 2013.
Plaintiff’s Motion in Limine is GRANTED.
II. BACKGROUND
Mr. Reed-Bey, a state prisoner, filed a civil rights action under 42 U.S.C. § 1983 against
Defendants for failure to provide him with prompt and adequate medical care after he severely
injured his shoulder during a prison sporting event. Counsel for Mr. Reed-Bey filed this Motion
in Limine anticipating that Defendants will introduce Mr. Reed-Bey’s and Mr. McKinney’s prior

1

criminal convictions at trial as character evidence under Fed. R. Evid. 404(b), or as impeachment
evidence under Fed. R. Evid. 609.
Mr. Reed-Bey pled guilty to, and was sentenced on September 28, 1977 for criminal
sexual conduct in the second degree under MCL 750.520c. He was released from prison for that
conviction on March 15, 1986. Mr. Reed-Bey was convicted of, and sentenced on July 20, 1990
for first-degree murder under MCL 750.316 and felony firearm under MCL 750.227b. He was
sentenced to life imprisonment for the murder conviction and two years for the felony firearm
conviction.
Mr. McKinney was convicted of, and sentenced on June 6, 1994 for first-degree murder
under MCL 750.316, concealed weapons under MCL 750.227, and felony firearm under MCL
750.227b. He was sentenced to life imprisonment for the murder conviction, two to five years for
the concealed weapons conviction, and two years for the felony firearm conviction. Mr.
McKinney completed the concealed weapons sentence on March 5, 2000.
Both Mr. Reed-Bey and Mr. McKinney are now serving time for their murder and felony
firearm convictions. Mr. Reed-Bey argues that the prejudicial effect of these prior convictions
would improperly distract the jury from the central issue of the case.
III. APPLICABLE LAW
In determining the admissibility of evidence, the Court must first decide whether the
evidence is relevant. Evidence is relevant if “it has any tendency to make a fact more or less
probable than it would be without the evidence.” Fed. R. Evid. 401. Under Fed. R. Evid. 402, all
relevant evidence is admissible, unless a statute or rule provides otherwise. However, the Court
“may exclude relevant evidence if its probative value is substantially outweighed by a danger of

2

... unfair prejudice ...” Fed. R. Evid. 403.
A. Crimes or Other Acts under Fed. R. Evid. 404(b).
Under Fed. R. Evid. 404(b), “[e]vidence of a crime, wrong, or other act is not admissible
to prove a person’s character.” However, such evidence may be used to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Id. After identifying the specific 404(b)(2) purpose, the Court must determine whether
the identified purpose is a material issue in the case. United States v. Merriweather, 78 F.3d
1070, 1077 (6th Cir. 1996).
B. Impeachment by Evidence of a Criminal Conviction under Fed. R. Evid. 609.
1.) Fed R. Evid. 609(a)
Fed. R. Evid. 609(a)(1) allows the admission of evidence of a witness’s prior conviction,
for a crime punishable by death or prison for more than one year, to impeach that witness if the
probative value of the evidence outweighs its prejudicial effect. Fed. R. Evid. 609(a)(1). Rule
609(a)(2) allows conviction evidence, regardless of punishment, where establishing the elements
of the crime “required proving ... a dishonest act or false statement.” Fed. R. Evid. 609(a)(2).
2.) Fed. R. Evid. 609(b)
Fed. R. Evid. 609(b) applies a limitation on conviction evidence if more than ten years
have passed since the witness’s conviction or release from confinement, whichever comes later.
Under Rule 609(b), a ten-year-old conviction (including crimes of dishonesty) is admissible only
if: (1) its probative value, “supported by specific facts and circumstances,” substantially
outweighs its prejudicial effect; and (2) “the proponent gives an adverse party reasonable written
notice of the intent to use it” so that the party has a fair opportunity to object.

3

IV. ANALYSIS
A. Mr. Reed-Bey’s and Mr. McKinney’s Prior Convictions under Fed. R. Evid.
404(b).
Mr. Reed-Bey contends that if Defendants do attempt to use his criminal record to
suggest a character predisposition in this § 1983 action, the use would be barred by Rule 404(b).
The Court agrees. And, Defendants do not argue that they intend to introduce the criminal
records as character evidence under Rule 404(b), or for any other purpose.
Mr. Reed-Bey’s and Mr. McKinney’s prior convictions cannot be offered under Rule
404(b).
B. Evidence of Mr. Reed-Bey’s Criminal Sexual Conduct Conviction does not meet
the Rule 609(b) test.
Mr. Reed-Bey’s criminal sexual conduct conviction is twenty-seven years old; he was
released from prison on this conviction in 1986. It is inadmissible under the limitation imposed
by Rule 609(b). In United States v. Sims, the Sixth Circuit explained that “[w]hen stale
convictions are offered for the purpose of impeaching a witness, they often shed little light on
the present tendency of the witness toward truthfulness and veracity.” United States v. Sims, 588
F.2d 1145, 1148 (6th Cir. 1978). The Sixth Circuit concluded in Sims that evidence of
convictions more than ten years old will “very rarely and only in exceptional circumstances” be
admitted. Id. Rule 609(b) requires the Court to make an “on-the-record finding” of fact that the
probative value of the evidence substantially outweighs the danger of unfair prejudice. Id.
Defendants’ only argument is that if Mr. Reed-Bey could commit criminal sexual
conduct, he would be predisposed to lying on the stand. Defendants fail to show how the

4

probative value of this evidence substantially outweighs its prejudicial effect. Before the Court is
a § 1983 action for failure to provide medical care; for what is at issue, no probative value can be
gleaned from the admission of this twenty-seven year old conviction.
Evidence of Mr. Reed-Bey’s criminal sexual conduct conviction will be excluded under
609(b).
C. Evidence of Mr. Reed-Bey’s and Mr. McKinney’s Felony Firearm and Murder
Convictions, and Mr. McKinney’s Concealed Weapons Conviction (the “remaining
convictions”) are inadmissible under Rule 609(a).
Mr. Reed-Bey’s and Mr. McKinney’s remaining convictions are not subject to the Rule
609(b) time limitation because they actively remain under court supervision for these
convictions. Although Mr. McKinney completed his sentence for concealed weapons in 2000, he
still remains incarcerated.
The evidence of the remaining convictions potentially can be admissible as impeachment
evidence under Rule 609(a)(1) and (2). But, evidence of a criminal conviction (not for
dishonesty or false statement) used to attack a witness’s propensity for truthfulness, if punishable
by death or imprisonment for over a year, is subject to the Rule 403 balancing test. Fed. R. Evid.
609(a)(1). Crimes of dishonesty and false statement do not require this balancing test. Fed. R.
Evid. 609(a)(2).
1.) The remaining convictions do not meet the Rule 609(a)(2) test.
Crimes within the scope of Fed. R. Evid. 609(a)(2) are those indicative of truthfulness,
such as “perjury, false statement, fraud, or offenses in the nature of crimen falsi which involve
deceit, untruthfulness, or falsification.” Eng v. Scully, 146 F.R.D. 74, 78 (S.D.N.Y. Feb. 1, 1993)

5

(citing Fed. R. Evid. 609 Senate and House Conference Committees’ report). The remaining
convictions for murder, felony firearm, and concealed weapons, are not crimes of dishonesty and
do not fall within 609(a)(2). Courts have determined that convictions for crimes of force or
violence do not fall within Rule 609(a)(2). See U.S. v. Hayes, 553 F.2d 824 (2nd Cir. 1977); U.S.
v. Williams, 445 F.2d 421 (10th Cir. 1971); Gordon v. U.S., 383 F.2d 936 (D.C. Cir. 1967). The
Sixth Circuit has also observed that “carrying a concealed weapon is not a crime involving
dishonesty per se.” United States v. Cox, 159 F. App’x 654, 658 (6th Cir. 2005).
2.) The remaining convictions do not meet the Rule 609(a)(1) test.
To be admissible under Rule 609(a)(1), the remaining convictions must meet the Rule
403 balancing test. They do not.
Mr. Reed-Bey argues that the probative value of the remaining convictions is minimal
and is substantially outweighed by the extreme risk of unfair prejudice. He says a murder
conviction “has the potential to so prejudice the jury that its weighing of all the factual issues in
the entire case may be impaired.” Tabron v. Grace, 898 F. Supp. 293, 296 (M.D. Pa. 1995). The
district court in Tabron excluded a murder conviction in a prisoner’s § 1983 action. Many courts
have excluded murder convictions for the same reasons. See Eng, 146 F.R.D. 74, Boyd v.
Louisiana, No. 03-1249-P, 2008 WL 920306, at *2 (W.D. La. Apr. 4, 2008); Livingston v. Lee,
No. 9:04-cv-00607-JKS, 2007 WL 3197517 (N.D.N.Y. Oct. 26, 2007); Jolly v. Troisi, No. 92
Civ. 5332 (DAB), 2000 WL 620304 (S.D.N.Y. May 11, 2000). He also argues that the remaining
convictions shed no light on his or Mr. McKinney’s propensity for truthfulness in a § 1983
failure to provide medical care claim.
The Court agrees. Violent crimes generally do not reflect directly on the witness’s

6

propensity for truthfulness, and they also carry a high risk of unfair prejudice. “The average jury
is unable, despite curative instructions, to limit the influence of a defendant’s criminal record to
the issues of credibility.” U.S. v. Puco, 453 F.2d 539 (2nd Cir. 1971).
Defendants fail to show how the probative value of these convictions outweighs their
prejudicial effect. For that reason, evidence of the remaining convictions will be excluded at trial
under Rule 609(a).
V. CONCLUSION
None of the convictions at issue meets any of the Rule 609 tests.
Mr. Reed-Bey’s Motion in Limine is GRANTED.
IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: November 7, 2013
The undersigned certifies that a copy of this
document was served on the attorneys of record
by electronic means or U.S. Mail on November 7,
2013.
S/Linda Vertriest
Deputy Clerk

7