Holmes v. Slay et al

Filing 304

OPINNION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion for Judgment as a Matter of Law and for New Trial, [Doc. No. 263], is denied. 263 Signed by District Judge Henry Edward Autrey on 1/11/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL HOLMES,
Plaintiff,
v.
FRANCIS G. SLAY, et al.,
Defendants.

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Case No. 4:12CV2333 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Judgment as a
Matter of Law and for New Trial, [Doc. No. 263]. Plaintiff opposes the Motion.
For the reasons set forth below, the Motion is denied.
Background
This action was tried before a jury from February 29, 2016 through March 3,
2016. The Court denied Defendants’ oral motions for judgment as a matter of law
at the close of Plaintiff’s case and at the close of all the evidence. The jury
returned its verdict in favor of Plaintiff and against Defendants Garrett and Sharp
on March 4, 2016.
Plaintiff alleged that his federal civil rights were violated when he was
arrested, convicted and imprisoned for a period of over five years based on false

evidence manufactured by defendants Garrett and Sharp. The jury rendered its
verdict in the amount of $2,500,000.00 in favor of the Plaintiff.
Standards
A motion for judgment as a matter of law should be granted only if the jury's
verdict is utterly lacking in evidentiary support. In re Prempro Prods. Liab. Litig.,
586 F.3d 547, 571 (8th Cir. 2009). When deciding a Rule 50 motion, the Court
must construe the evidence most favorably to the prevailing party and draw all
inferences in his favor, denying the motion “if reasonable persons could differ as to
the conclusions to be drawn from the evidence.” Western Am., Inc. v. Aetna Cas.
and Sur. Co., 915 F.2d 1181, 1183 (8th Cir. 1990). The Court may not make
credibility determinations or weigh the evidence. In re Prempro, 586 F.3d at 572
(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
On a motion for judgment as a matter of law, the Court must give “great
deference to the jury's verdict.” Heaton v. The Weitz Co., Inc., 534 F.3d 882, 889
(8th Cir.2008)(citation omitted). The nonmoving party receives the benefit of all
inferences which can be drawn without resort to speculation. Marvin Lumber &
Cedar Co. v. PPG Indus., Inc., 401 F.3d 901, 908–09 (8th Cir.2005). Indeed, the
court must consider the evidence in the light most favorable to the jury verdict.
Specifically, the Court assumes all conflicts in the evidence were resolved in
Plaintiff’s favor, assume Plaintiff proved all facts that his evidence tended to
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prove, and give Plaintiff the benefit of all favorable inferences that reasonably may
be drawn from the proven facts. Craig Outdoor Advertising, Inc. v. Viacom
Outdoor, Inc., 528 F.3d 1001, 1009 (8th Cir.2008)(citations omitted). The court
must make “all reasonable inferences in favor of the nonmoving party and view[ ]
the facts most favorably to that party.” Lee ex rel. Lee v. Borders, 764 F.3d 966,
971 (8th Cir.2014); see also In re Prempro, 586 F.3d at 571.
A motion for new trial under Rule 59, Fed.R.Civ.P., is appropriate “when
the outcome is against the great weight of the evidence so as to constitute a
miscarriage of justice.” Bank of America N.A. v. JB Hanna, LLC, 766 F.3d 841,
851 (8th Cir.2014). When the jury instructions are challenged, the question is
“whether the jury instructions, taken as a whole, fairly and adequately represent the
evidence and applicable law in light of the issues presented to the jury in a
particular case.” Lee, 764 F.3d at 972. Granting a new trial because of jury
instructions “is only warranted if a party's substantial rights are prejudiced by
instructional error.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 720 (8th
Cir.2008).
Discussion
Judgment as a Matter of Law
Conspiracy

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Defendants argue that there was no evidence that Defendant Garrett had any
material involvement in Plaintiff’s arrest on December 9, 2003, and no evidence
that he conspired with Defendant Sharp to deprive Plaintiff of his rights. In order
to present a submissible case, Plaintiff was required to prove that two or more
persons conspired to deprive him of a constitutional right that at least one of those
persons took an overt act in furtherance of the conspiracy, and by which he was
injured. White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008). As Plaintiff points
out, although there may not have been direct evidence to establish Garrett and
Sharp entered into an agreement to deprive Plaintiff of his rights, Plaintiff
presented evidence that Sharp sought out Garrett and requested him to join him on
the narcotics case involving Plaintiff. Both Defendants had previously worked
with another officer, Vincent Carr, who was later indicted with Garrett for federal
crimes involving on duty drug transactions. The jury also heard evidence that
Garrett pled guilty to the federal crimes and that Sharp retired in the wake of these
events. Conflicting evidence was presented regarding the surveillance of 5894
Cates. Evidence was also presented that Garrett interviewed Plaintiff. Plaintiff
elicited evidence from both Defendants which tended to question their credibility
regarding the Defendants’ relationship vis a vis Plaintiff’s arrest and conviction.
The Eighth Circuit has held
“ ‘[t]he question of the existence of a conspiracy to deprive the plaintiff[ ] of
[his] constitutional rights should not be taken from the jury if there is a
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possibility the jury could infer from the circumstances a “meeting of the
minds” or understanding among the conspirators to achieve the conspiracy’s
aims.’ ” White, 519 F.3d at 816 (quoting Larson v. Miller, 76 F.3d 1446,
1458 (8th Cir.1996) (en banc)). Because [Plaintiff] put forth “‘at least some
facts which would suggest that [Defendants] “reached an understanding” to
violate [his] rights,’ ” this question was reserved for the jury. City of Omaha
Emps. Betterment Ass’n, 883 F.2d at 652 (quoting Nelson, 876 F.2d at 59).
Bonenberger v. St. Louis Metro. Police Dep’t, 810 F.3d 1103, 1109 (8th Cir. 2016).
Malicious Prosecution
Defendant Garret argues he is entitled to judgment as a matter of law on
Plaintiff’s malicious prosecution claim.
Under Missouri Law, to prevail on a claim for malicious prosecution, “a
plaintiff must prove: ‘1) commencement of an earlier suit against plaintiff; 2)
instigation of the suit by defendant; 3) termination of the suit in plaintiff’s favor; 4)
lack of probable cause for the suit; 5) malice by defendant in instituting the suit;
and 6) damage to plaintiff resulting from the suit.’ State ex rel. Police Ret. Sys. Of
St. Louis v. Mummert, 875 S.W.2d 553, 555 (Mo.1994) (en banc).” Zike v.
Advance Am., Cash Advance Centers of Missouri, Inc., 646 F.3d 504, 509 (8th Cir.
2011).
Defendant Garrett challenges element two, instigation of the suit. He argues
that there is no evidence that he took any action to stimulate, promote or encourage
Plaintiff’s prosecution, nor that there is any evidence that any action taken by
Garrett caused Plaintiff to be prosecuted. As Plaintiff points out, the jury could
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reasonably conclude that Garrett had instigated Plaintiff’s prosecution through his
involvement in the surveillance, the transportation of Plaintiff to the police holding
area, questioning Plaintiff and having him sign the money waiver. The jury heard
evidence from both Defendants about the events surrounding Plaintiff’s arrest; the
credibility of the witnesses was exclusively within the jury’s purview.
False Imprisonment
Under Missouri law to prevail on a claim for false arrest, also termed
“false imprisonment,” a plaintiff must show that the defendant confined the
plaintiff without legal justification. Highfill v. Hale, 186 S.W.3d 277, 280
(Mo.2006) (en banc). A defendant is considered to have “confined” the
plaintiff for the purposes of false arrest if he or she “encourages, causes,
promotes, or instigates the arrest.” Id. (citing Day v. Wells Fargo Guard
Serv. Co., 711 S.W.2d 503, 505 (Mo.1986) (en banc)).
Zike, 646 F.3d at 512.
Similar to the malicious prosecution claim, the jury heard the evidence and
made credibility determinations based on all of the evidence.
New Trial
Defendants contend they are entitled to a new trial because of erroneous
evidentiary rulings and erroneous jury instructions. Initially, Defendants argue that
Plaintiff’s prior arrest and conviction should have been admitted pursuant to Rule
404(b) of the Federal Rules of Evidence. As Plaintiff correctly argues, Plaintiff’s
knowledge and intent were not at issue in this matter. Plaintiff brought this action

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seeking recovery for a violation of his rights; at issue was whether Defendants’
actions violated Plaintiff’s rights.
Rule 404(b) provides that evidence of prior bad acts, though
inadmissible to show that a person acted in conformity with the prior act,
may be admissible for other purposes, such as proof of motive, opportunity,
intent, and absence of mistake or accident. Fed.R.Evid. 404(b). Evidence is
admissible under Rule 404(b) if it is “(1) relevant to a material issue; (2)
proved by a preponderance of the evidence; (3) higher in probative value
than in prejudicial effect; and (4) similar in kind and close in time to the
[event at issue].” United States v. Aranda, 963 F.2d 211, 215 (8th Cir.1992)
(citation omitted).
Berry v. Oswalt, 143 F.3d 1127, 1132 (8th Cir. 1998).
The 1996 plea is a classic example of “other crimes, wrongs, or acts”
evidence prohibited by Rule 404(b). It is intended to show that Plaintiff has been
involved in drug trafficking. Defendants have not presented any convincing
arguments as to why the 1996 plea was admissible for “other purposes” under Rule
404(b). Defendants clearly attempted to use the 1996 plea to establish Plaintiff’s
propensity to engage in drug trafficking.
Defendant Garrett also argues he was entitled present the conviction
pursuant to Rule 608(b). Rule 608(b) provides that the Court may, on crossexamination, allow specific instances of a witness’ character for truthfulness to be
inquired into, if they are probative of the character for truthfulness or
untruthfulness. Plaintiff did not question the accuracy of Garrett’s testimony in the

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2005, and therefore, Rule 608(b) could not provide a basis upon which to allow
him to testify about Plaintiff’s 1996 conviction.
Defendant urges that he should have been allowed to put the 1996
conviction and Plaintiff’s statement that he allegedly made that he was a “small
crack dealer” into evidence because it was intrinsic evidence and necessary to
provide context for the parties’ claims and defenses. The Court is unpersuaded.
The 1996 conviction was 20 years prior to this trial, Plaintiff did not argue that
Defendants’ trial testimony provided the basis for this action, and never questioned
Garrett about what his testimony was in the former trial.
Instructions
“A new trial based on errors in jury instructions will only be granted where
the error likely affected the jury's verdict.” Process Controls Intern., Inc. v.
Emerson Process Management, 2013 WL 2420360, at *2 (E. D.Mo. June 3, 2013)
(citing Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 720 (8th Cir.2008)). Jury
instructions are generally committed to the sound discretion of the trial court and
the trial court is entitled to a great deal of deference in their formulation. See
Friedman & Friedman, Ltd. v. Tim McCandless, Inc., 606 F.3d 494, 499 (8th
Cir.2010)). “The instructions need be neither technically perfect nor a model of
clarity.” Id. “The jury instructions are to be considered in their entirety and even a
single, erroneous instruction (which Plaintiff does not concede exists in this case)
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does not require reversal if the charge as a whole fairly and adequately submits the
issue to the jury.” Bauer v. Curators of the University of Missouri, 2011 WL
2940455, at *2 (W.D.Mo. July 19, 2011).
Defendants argue that Instruction 15 allowed the jury to find a conspiracy
based on a “mere modicum of evidence.” To the contrary, when read in
conjunction with instruction 14, the jury was properly instructed that each element
must be proven by the preponderance of the evidence.
Defendants also argue that the inclusion of the definition of “instigate” in
Instructions 16 and 17 requires a new trial. The definition was an accurate and
complete definition.
To instigate means “‘to stimulate or goad to an action, especially a bad
action’; and that one of its synonyms is ‘abet,’ which ‘means, in law, to aid,
promote, or encourage the commission of an offense.’” Snider v. Wimberly,
357 Mo. 491, 209 S.W.2d 239, 242 (1948) (quoting *115 State v. Fraker,
148 Mo. 143, 165, loc. cit., 49 S.W. 1017, 1022 (1899)).
Crow v. Crawford & Co., 259 S.W.3d 104, 114–15 (Mo. Ct. App. 2008), and it
was within the Court’s discretion to include the definition of the term in the
instructions.
Taken as a whole, the Court finds the jury instructions fairly and adequately
represented the evidence and applicable law in light of the issues presented to the
jury. Swipies v. Kofka, 419 F.3d 709, 716 (8th Cir.2005) (internal quotation marks
and citation omitted)). The Court finds nothing to suggest that the instruction
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“misled the jury or had a probable effect on the verdict.” Process Controls, 2013
WL 2420360, at *2 (quoting Friedman, 606 F.3d at 499).
Future Damages
Defendants claims that the Court erred in instructing the jury on the
availability of future damages arguing that there was no evidence in this case that
Plaintiff will suffer damages in the future as a result of the conviction. Contrary to
Defendants’ position, Plaintiff testified that he continues to experience pain and
suffering.
As to the lack of evidentiary support for the future damage instruction
it may be conceded that no direct evidence was adduced that plaintiff would
have disability or pain in the future although defendant's doctor conceded a
person could have difficulty for several years. Plaintiff relies upon the
recognized rule that “‘the long continuance of conditions existing at the
hearing of the cause is sufficient to warrant the giving of an instruction on
future pain and suffering * * * and ‘makes a situation where it is for the jury
to determine the probable duration of the injury.” Harrison v. Weller,
Mo.App., 423 S.W.2d 226(6—8). The evidence of such conditions may
come solely from the plaintiff and need not be corroborated by medical
evidence, and in fact may be in conflict with medical evidence on the
question. Palmer v. Lasswell, Mo.App., 267 S.W.2d 492(9—11); Johnston
v. Owings, Mo.App., 254 S.W.2d 993(13).
Jones v. Allen, 473 S.W.2d 763, 766 (Mo. Ct. App. 1971). Plaintiff was entitled to
present his testimony of his pain and suffering he continues to experience and it
was within the purview of the jury to consider it and award damages for future
damages.
Testimony of Hal Goldsmith
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The Court allowed Mr. Goldsmith’s testimony for the limited purpose of
Defendant Garrett’s convictions. Mr. Goldsmith testified regarding the specific
charges for which Garrett was convicted; Defendant Garrett was unable to recall
the names and details of several of the crimes. The testimony was not cumulative.
Nor was the testimony unduly prejudicial. Defendant did not object to the
admission of his convictions, and as such, Mr. Goldsmith’s testimony about the
crimes Garrett committed was not unduly prejudicial in light of Garrett’s lack of
recall.
Testimony of Angela Wingo
On June 20, 2014, Judge Charles Shaw, in his consolidated Memorandum
and Order discussed Dr. Wingo’s background, qualifications, methodology and the
extent to which she should be allowed to testify with respect to Plaintiff.
Defendants’ arguments that her testimony should have been excluded are without
merit. The jury heard the testimony regarding the applicable standards for police
practices and police department policies. This testimony aided the jury in making
its determination as it related to the facts of this case. Dr. Wingo’s testimony was
properly limited and properly allowed.
Conclusion

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The Court gives great deference to the jury’s verdict. Defendants have
failed to satisfy the afore stated burdens of establishing that they are entitled to a
judgment as a matter of law or a new trial. The Motion is denied.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Judgment as a
Matter of Law and for New Trial, [Doc. No. 263], is denied.
Dated this 11th day of January, 2017.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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