Harewood v. The City of New York et al
ORDER granting in part and denying in part 74 Motion in Limine; granting in part and denying in part 76 Motion in Limine: For the reasons discussed on the record at the September 13, 2013 pre-trial conference, in conjunction with those set forth in the attached, the Court Court grants, denies, and grants in part and denies in part the parties' respective motions in limine. Ordered by Judge Pamela K. Chen on 9/18/2013. (Galeotti, Matthew)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER ON
THE PARTIES’ MOTIONS IN
09-CV-2874 (PKC) (RML)
Detective Michael BRAITHWAITE,
PAMELA K. CHEN, United States District Judge:
Before the Court are the parties’ respective motions in limine. This matter is scheduled
for jury trial before the undersigned to begin on September 23, 2013. The trial will be bifurcated
into two phases, the liability phase and, if liability is found, a damages phase.
Plaintiff Deryck Harewood (“Plaintiff”) brings this false arrest, malicious prosecution,
and wrongful imprisonment action pursuant to 42 U.S.C. § 1983 (“Section 1983”) against
Detective Michael Braithwaite (“Det. Braithwaite” or “Defendant”).1 His claims arise out of his
June 11, 2007 arrest and subsequent no true bill vote by the Grand Jury. (See Complaint, dated
Plaintiff’s complaint alleged false arrest, malicious prosecution, and wrongful
imprisonment pursuant to Section 1983, the New York State Constitution and New York
common law. (Dkt. 1.) Defendants the City of New York, Det. Braithwaite, and an unidentified
New York Police Department (“NYPD”) employee moved for summary judgment. (Dkt. 29.)
The motion was granted in part and denied in part. (Dkt. 39.) Only Plaintiff’s Section 1983
claims for false arrest, malicious prosecution, and wrongful imprisonment against Det.
Braithwaite remain to be tried. (Id.)
July 3, 2009 (“Dkt. 1”).) The Court assumes the parties’ familiarity with the facts in this case.
For a detailed description, see Judge Block’s Memorandum & Order on defendants’ motion for
summary judgment, dated February 10, 2012. (Dkt. 39 (“SJ Op.”).)
In anticipation of trial, both parties have filed motions in limine (Dkt. 75, 77), which were
discussed at the pre-trial conference held on September 13, 2013 (the “Conference”). For the
reasons discussed on the record at the Conference, in conjunction with those set forth herein, the
Court rules as follows:
A. Plaintiff’s Motions in Limine
1. To Exclude Plaintiff’s Prior Arrests
Plaintiff moves for an order excluding evidence of Plaintiff’s prior arrests, other than his
February 10, 2007 arrest for marijuana possession. (Dkt. 75, at 4-6.) Plaintiff’s motion is
granted in part and denied in part.
The parties agree that Plaintiff’s February 10, 2007 arrest is relevant to the
reasonableness of Det. Braithwaite’s inclusion of Plaintiff’s picture in the photo array that led to
his identification by Beverly Creary. Therefore, evidence regarding this arrest will be admissible
during both phases of trial.
During the damages phase of trial, Defendant may present evidence regarding all of
Plaintiff’s prior arrests, except his 1994 arrest. Defendant may use the permissible prior arrests
solely to rebut Plaintiff’s argument that the emotional injuries and post-traumatic stress disorder
he suffered resulted from his June 2007 arrest and incarceration underlying this suit (“causation
argument”). Plaintiff’s 1994 arrest for marijuana and cocaine possession is of minimal probative
value and unduly prejudicial given, inter alia, the length of time between the arrest and the
events underlying this claim. It is inadmissible for any purpose. See Fed. R. Evid. 404, 609(b).
2. To Exclude Plaintiff’s Alleged Marijuana Use in 2007 and Beliefs About the
Legality of Marijuana
Plaintiff moves for an order precluding cross-examination of Plaintiff about his use of
marijuana in 2007 and his belief that marijuana is an herb, not an illegal drug. (Dkt. 75 at 6.)
Plaintiff’s motion is granted in its entirety.
Although the Court may have indicated at the Conference that testimony about Plaintiff’s
2007 marijuana use could be introduced, upon reconsideration, the Court has determined that it
should not be admitted. Though Plaintiff’s admission about marijuana use may bolster the
credibility of Beverly Creary’s testimony about seeing Plaintiff smoking marijuana during the
relevant time frame, this is not an admissible purpose. Ms. Creary’s credibility in general is not
relevant to the issues in this case; rather, only Ms. Creary’s credibility at the time of the arrest,
based on information known to Defendant at that time, is relevant. Because Plaintiff did not
admit to using marijuana at the time of his arrest, but only during his deposition relating to this
case, it does not weigh on the reasonableness of Defendant’s actions in relying on Ms. Creary’s
statements in deciding to arrest Plaintiff. Furthermore, Defendant suffers no prejudice from the
exclusion of this testimony because the Court has ruled that Defendant will be permitted to
introduce Plaintiff’s February 2007 arrest for marijuana possession.
Regarding Plaintiff’s belief about the legality of marijuana, Defendant concedes, and the
Court finds, that such evidence is irrelevant and will not be introduced at trial. (Dkt. 80 at 3).
3. To Exclude Plaintiff’s Belief Regarding a “Microchip” or “Biochip”
Plaintiff moves for an order to preclude cross-examination about his belief that a
“microchip” or “biochip” was implanted in his head through which the NYPD may have tracked
him. (Dkt. 75 at 2, 6.) This motion is granted in part and denied in part. Defendant
concedes, as he must, that evidence of such statements would be unduly prejudicial during the
liability phase of trial. (Dkt. 80 at 3), see Fed. R. Evid. 403. However, during the damages
phase of trial, Defendant intends to present evidence of Plaintiff’s statements to rebut
Defendant’s causation argument. The Court finds Plaintiff’s statements admissible during the
damages phase for this limited purpose.
4. To Preclude Assistant District Attorney John Gianotti From Testifying
Plaintiff moves for an order precluding Kings County Assistant District Attorney
(“ADA”) John Gianotti from testifying. (Dkt. 75 at 7). Defendant no longer intends to call ADA
Gianotti. (Dkt. 80 at 3-4.) This motion is therefore denied as moot.
5. To Permit Plaintiff to Treat Det. Braithwaite and Jennifer Bess as Hostile
Plaintiff moves the Court to deem Det. Braithwaite and Jennifer Bess hostile witnesses so
that he may examine them by leading questions. (Dkt. 75 at 7). Plaintiff’s motion is granted in
part and preliminarily denied in part.
Rule 611(c) provides that leading questions ordinarily should not be used on direct
examination, except “when a party calls a hostile witness, an adverse party, or a witness
identified with an adverse party.” Fed. R. Evid. 611(c)(2). Defendant concedes that Det.
Braithwaite’s testimony will be adverse to Plaintiff. Plaintiff’s motion is therefore granted with
respect to Braithwaite.
According to the proposed Joint Pretrial Order, only Plaintiff intends to call Bess as a
witness. (Dkt. 47.) Plaintiff contends that Bess is adverse to Plaintiff because she is employed
by the Kings County District Attorney’s Office. Without more, the Court finds Plaintiff’s
motion premature with respect to Bess and reserves its ruling until such time the witness evinces
hostility, bias, or recalcitrance during her testimony. See S.E.C. v. World Info. Tech., Inc., 250
F.R.D. 149, 151 (S.D.N.Y. 2008).
B. Defendant’s Motions in Limine
1. To Exclude Evidence and Argument that Braithwaite “Falsified” Evidence
Defendant moves to preclude Plaintiff from introducing evidence or argument that
Braithwaite falsified evidence regarding the underlying incident. (Dkt. 77 at 3.) Defendant’s
motion is denied.
Defendant argues that Judge Block, to whom this matter was previously assigned,
determined on summary judgment that Plaintiff’s allegation that Det. Braithwaite falsified
evidence lacks factual support. (Dkt. 77 at 2) (citing SJ Op. at 7).
The citation relied on by
Defendant does not support this argument. The passage in Judge Block’s summary judgment
opinion cited by Defendant appears to address the argument that the arrest reports relating to
Plaintiff’s February 2007 arrest were falsified—erroneously indicating that marijuana was
recovered from Plaintiff at that time—in an attempt to link him to the crime underlying this
action, which took place on May 17, 2007 and for which Plaintiff was arrested on June 11, 2007.
(SJ. Op at 7.) Furthermore, Judge Block noted that, “[i]f there were evidence showing that
Braithwaite falsified evidence, this would be a serious matter that the jury could consider on the
issue of false arrest.” (Id.)
Defendant further contends that Plaintiff’s allegations that Defendant falsified evidence
are factually unsupported. (Dkt. 77 at 4). While this may very well be true, it is the jury’s
responsibility to determine those facts, and Plaintiff should be permitted to elicit evidence and
make arguments bearing on that determination. Any confusion and prejudice can be avoided by
credible, straightforward testimony by Det. Braithwaite and argument by his counsel.
Plaintiff is therefore entitled to inquire and submit evidence on the issue of whether
Braithwaite falsified police reports relating to Plaintiff’s arrest.
2. To Preclude Paul Gibbs, Dawn Gibbs, and Yvette Mixon From Testifying
Det. Braithwaite moves to exclude the trial testimony of all three Plaintiff’s alibi
witnesses, Paul Gibbs, Dawn Gibbs, and Yvette Mixon. (Dkt. 77 at 5.) Defendant argues that
Paul Gibbs should be excluded from testifying because he refused to attend a deposition.
Defendant moves to preclude Dawn Gibbs and Yvette Mixon (together “Alibi Witnesses”) from
testifying, arguing that there is no evidence that “Braithwaite was aware of their existence, let
alone that they possessed exculpatory evidence.” (Dkt. 77 at 5.) Defendant’s motion is granted
in its entirety.
The Court grants Defendant’s motion with respect to Paul Gibbs based on his refusal to
be deposed even when subpoenaed. Were Paul Gibbs to testify, Defendant would be prejudiced
by having to confront his testimony for the first time at trial. See e.g., Bynum v. Metro. Transp.
Auth., 01 CV 7945 (CLP), 2006 WL 6555106 (E.D.N.Y. Nov. 21, 2006) (finding undue
prejudice to a party where it would have had to confront new testimony at trial without the
benefit of deposition).
Plaintiff claims that Det. Braithwaite is liable for his alleged failure to investigate
Plaintiff’s alibi defense and therefore the Alibi Witnesses’ testimony is relevant. According to
Russo v. City of Bridgeport, a police officer has a “duty to investigate specific, readily-verifiable
claims of innocence in a reasonable time period.” 479 F.3d 196, 209 (2d Cir. 2007) (internal
quotation marks omitted). The parties agree Russo is applicable to the situation presented in this
Under the standard established in Russo, the Alibi Witnesses’ testimony is irrelevant.
The key question at trial will be whether evidence negating probable cause to arrest Plaintiff was
readily available to Det. Braithwaite, and hence should have been obtained by him, not whether
the evidence (i.e., statements from the Alibi Witnesses) would have successfully negated
probable cause. Put another way, the focus of the trial is on Det. Braithwaite’s actions, not
Plaintiff’s, i.e., whether Plaintiff committed the underlying crime. The veracity of Plaintiff’s
alibi is therefore irrelevant in this case. In sum, the issue of whether Det. Braithwaite should
have investigated Plaintiff’s claimed alibi cannot, and should not, be answered by what that
investigation would have yielded.
While Plaintiff could argue that the testimony of the Alibi Witnesses is necessary to
establish that the evidence would have “negated probable cause,” that is incorrect. The mere fact
that the evidence was described to Det. Braithwaite as “alibi” evidence is sufficient for the jury
to conclude that it was evidence that could have negated probable cause. Thus, the probative
value of the Alibi Witness’ testimony itself is, at best, minimally more probative than Plaintiff’s
statements to Det. Braithwaite that he had an alibi.
Balanced against this minimal probative value is the real and substantial danger of unfair
prejudice to Defendant, confusion of the issues, and misleading the jury. Fed.R.Evid. 403.
Allowing the Alibi Witnesses to testify would inappropriately create a mini-trial regarding
Plaintiff’s guilt or innocence on the crime underlying this litigation, and divert the jury’s
attention from the relevant evidence about the reasonableness of Defendant’s actions. Exclusion
of the Alibi Witnesses will aid in keeping the focus of trial on Det. Braithwaite’s probable cause
3. To Exclude Damages-Specific Evidence and Argument From the Liability Phase
of the Bifurcated Trial
Defendant requests that the Court preclude Plaintiff from introducing evidence and
argument related to damages issues during the liability phase of trial. (Dkt. 77 at 12.) This
motion is granted to the extent described herein.
As a general matter, the Court will preclude either party from presenting damagesspecific evidence during the liability phase of trial. Specifically, Defendant seeks preclusion,
during the liability phase, of: (i) Plaintiff’s testimony about the prison facilities where he was
held after being arrested on the underlying crime; (ii) his inability to work and earn income as a
result of his incarceration; and (iii) the testimony of his mother, Sheila Harewood. The Court
grants Defendant’s motion with respect to this testimony and reserves judgment with respect to
any other damages-specific issues that may arise at trial.
4. Exclude or Limit Use of the Grand Jury Minutes
Defendant moves to exclude or limit use of the Grand Jury Proceeding minutes recently
unsealed by the State Court. (Dkt 77 at 9). The Court reserves judgment on this motion
pending its review of the minutes.
On July 15, 2013, Plaintiff moved this Court to unseal the minutes of Plaintiff’s Grand
Jury proceeding. (Dkt. 57.) The Court denied Plaintiff’s application for an Order compelling
production without prejudice to renewal after attempting to obtain relief from the state court that
oversaw the Grand Jury proceedings. Harewood v. Braithwaite, 09-CV-2874 PKC RML, 2013
WL 3863905 (E.D.N.Y. July 23, 2013) (listing cases standing for the proposition that requests
for disclosure of grand jury materials should first be directed to state court). On July 30, 2013,
Plaintiff filed an Order to Show Cause in Kings County Supreme Court, moving to unseal the
Grand Jury minutes related to the underlying criminal proceeding against Plaintiff.
September 17, 2013, the Kings County Supreme Court granted Plaintiff’s motion and ordered
that a sealed copy of the Grand Jury testimony be delivered to this Court.2 (Dkt. 82.) Therefore,
the Court reserves judgment on this motion until it conducts a review of the forthcoming Grand
5. To Exclude Details Concerning the Grand Jury Proceedings
Defendant offers to stipulate to the fact that the Grand Jury proceeding ended without an
indictment being returned against Plaintiff but moves to exclude further discussion of the
proceeding and its outcome. (Dkt. 77, at 8.) At the Conference, Plaintiff stated that he was
amenable to stipulation. However, he now notes in his opposition that he proposes to present the
“disposition certificate and transcript of the underlying criminal proceeding” because “favorable
termination” is an essential element on a malicious prosecution claim. (Dkt. 79 at 6.) Pending
review of the “disposition certificate”, the Court preliminarily finds it admissible. The Court
reserves judgment as to the admissibility of other details around the Grand Jury proceedings
pending review of the forthcoming Grand Jury minutes.
6. To Exclude Reference to News Events
Defendant moves to exclude references to current news events concerning the NYPD,
namely stop-and-frisk, from the trial. (Dkt. 77 at 13.) Plaintiff does not intend to introduce such
evidence at trial. This motion is denied as moot.
As of the time of the issuance of this Order, the Court has not yet received the minutes.
7. To Exclude Evidence of Plaintiff’s Military Record
Defendant moves to exclude evidence of Plaintiff’s military record, including a certificate
of release from the Army dated March 1986 and an award signed by Governor Pataki for
“Conspicuous Service” dated June 10, 1997. (Dkt. 77 at 13). This motion is denied in its
entirety. Plaintiff may testify as to his status as a veteran of the United States Armed Forces and
his receipt of the “Conspicuous Service” award. However, other testimony of this nature will be
strictly limited at trial, so as not to permit Plaintiff to improperly sway the jury, engender
sympathy or bolster his credibility.
8. To Permit Evidence of Plaintiff’s Prior Arrests for Limited Use
Defendant seeks permission to introduce during the liability phase of the trial a mugshot
and pedigree relating to Plaintiff’s February 10, 2007 arrest for marijuana possession.
previously discussed, this evidence is probative of Braithwaite’s defense that he acted reasonably
by including Plaintiff’s picture in the photo array that he showed Ms. Creary, and by relying on
her photo identification and subsequent in-person identification. Defendant’s motion is granted
as it pertains to the February 10, 2007 arrest.
Defendant also moves to introduce evidence regarding Plaintiff’s prior arrests in the
damages phase of the trial. (Dkt. 77 at 16.) This motion is granted in part and denied in part.
See supra Section I.A.1. for this Court’s ruling regarding the admissibility and permissible uses
of Plaintiff’s prior arrests.
9. To Permit Use of Plaintiff’s Tax Returns for Limited Purpose
Defendants move the Court to permit evidence of the Plaintiff’s tax returns filed in the
years 2006-2009. (Dkt. 77 at 19.) Defendant argues that they are relevant to both the liability
and damages phases of the trial. Defendant has sought but not yet received the responsive
documents from the Internal Revenue Service. (Dkt. 77 at 19, n.8.) The Court reserves
judgment on this motion pending receipt and review of the tax returns in question.
Both Plaintiff and Defendant move to introduce police reports as affirmative evidence
during the liability phase at trial. The Court concludes that the NYPD reports listed below are
admissible. NYC 32 and 54 are admissible on consent. The other exhibits are either offered for
a non-hearsay purpose (i.e., Det. Braithwaite’s knowledge of the underlying incident at the time
he determined he had probable cause), see Drummond v. Castro 55 F. Supp. 2d 667, 674
(S.D.N.Y. 2007), or are admissible as business or public record exceptions. See Fed. R. Evid.
NYC 10 (Dkt. 79, Ex-1.)
NYC 3 (Dkt. 79, Ex-2.)
NYC 1 (Dkt. 79, Ex-3.)
NYC 71 (Dkt. 79, Ex-4.)
NYC 32 (Dkt. 79-6.) (Dkt. 81.)
NYC 54 (Dkt. 79-7) (Dkt. 81.)
NYC 75 (Dkt. 79-8.)
NYC 60 (Dkt. 81.)
For the foregoing reasons, the Court grants, denies, and grants in part and denies in part
the parties’ motions in limine.
/s/Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: September 18, 2013
Brooklyn, New York
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