Robinson v. Troyan
Filing
95
ORDER denying 85 Motion in Limine; granting 86 Motion in Limine; granting in part and denying in part 87 Motion in Limine: For the reasons contained in the attached Order and stated on the record prior to trial, plaintiff's motion in limine is granted in part and denied in part and defendant's motion in limine is granted, subject to the terms and conditions stated on the record. So Ordered by Magistrate Judge E. Thomas Boyle on 11/8/2011. (Minerva, Deanna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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WILLIAM GARY ROBINSON,
Plaintiff,
ORDER
-against-
CV 07-4846 (ETB)
PETER TROYAN,
Defendant.
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Before the Court are the following motions in limine: (1) plaintiff’s motion to exclude his
prior criminal convictions from being admitted into evidence during this civil trial, in which
plaintiff alleges that defendant violated his civil rights through the use of excessive force while
plaintiff was a pretrial detainee; and (2) defendant’s motion to exclude testimony by the
Riverhead Chief of Police, David Hegermiller, pertaining to the fact that defendant was
suspended from police duty subsequent to the incident at issue here. For the following reasons,
plaintiff’s motion is granted in part and denied in part and defendant’s motion is granted, subject
to the terms and conditions stated on the record.
I.
Plaintiff’s Motion to Exclude Evidence of Prior Criminal Convictions
Rule 609 of the Federal Rules of Evidence governs the admissibility of criminal
convictions for impeachment purposes in civil actions. Daniels v. Loizzo, 986 F. Supp. 245, 249
(S.D.N.Y. 1997) (citing 4 Weinstein’s Federal Evidence, § 609.04[3][a], at 609-36 (1997)).
Pursuant to the Rule, there are two ways in which such evidence may be admitted. First, under
Rule 609(a)(1), evidence of prior criminal convictions may be introduced to impeach a witness
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where the conviction was for a crime “punishable by imprisonment in excess of one year.”
Daniels, 986 F. Supp. at 249 (citing Fed. R. Evid. 609(a)(1)). However, such evidence is subject
to the balancing test set forth in Federal Rule of Evidence 403, which “provides for the exclusion
of relevant evidence if its probative value is ‘substantially outweighed’ by the danger of unfair
prejudice, confusion, or waste of time.” Daniels, 986 F. Supp. at 248 n.4 (citing Fed. R. Evid.
403).
Second, “evidence that a witness has been convicted of a crime involving ‘dishonesty or
false statement’ must be admitted regardless of the severity of the punishment or any resulting
prejudice.” Daniels, 986 F. Supp. at 249 (citing Fed. R. Evid. 609(a)(2)). “Because this rule is
quite inflexible . . . it was inevitable that Congress would define narrowly the words ‘dishonesty
or false statement,’ which, taken at their broadest, involve activities that are part of nearly all
crimes.” United States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1977). As a result, “Congress
emphasized that the second prong [of Rule 609(a)] was meant to refer to convictions ‘peculiarly
probative of credibility,’ such as those for ‘perjury or subornation of perjury, false statement,
criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen
falsi, the commission of which involves some element of deceit, untruthfulness, or falsification
bearing on the accused’s propensity to testify truthfully.’” Id. (quoting Conf. Rep. No. 93-1597,
93d Cong., 2d Sess. 9, reprinted in [1974] U.S. Code Cong. & Ad. News 7098, 7103); see also
United States v. Estrada, 430 F.3d 606, 616 n.3 (2d Cir. 2005) (same).
However, Rule 609(b) contains a time limitation on the admissibility of prior criminal
convictions for impeachment purposes. Specifically, “[c]riminal convictions more than ten years
old are not admissible for impeachment unless the court determines that, in the interest of justice,
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the probative value of the conviction substantially outweighs its prejudicial effect.” Daniels, 986
F. Supp. at 249 (citing Fed. R. Evid. 609(b)). In order to admit a conviction under Rule 609(b),
the court must make an “on-the-record determination supported by specific facts and
circumstances that the probative value of the evidence substantially outweighs its prejudicial
effect.” United States v. Mahler, 579 F.2d 730, 736 (2d Cir. 1978).
A.
Plaintiff’s 2004 Attempted Burglary Conviction and 2007 Conviction for
Promoting Prison Contraband
Defendant argues that the prior burglary and promoting prison contraband
convictions are automatically admissible under Rule 609(a)(2) as crimes of dishonesty or false
statement. However, the Second Circuit has stated that “crimes of stealth, such as burglary . . .
do not come within [Rule 609(a)(2)].” Hayes, 553 F.2d at 827. “While much successful crime
involves some quantum of stealth, all such conduct does not, as a result, constitute crime of
dishonesty or false statement for purposes of Rule 609(a)(2).” Estrada, 430 F.3d at 614 (citing
cases). Rather, “the use of the second prong of Rule 609(a) is . . . restricted to convictions that
bear directly on the likelihood that the defendant will testify truthfully (and not merely on
whether he has a propensity to commit crimes).” Hayes, 553 F.2d at 827 (emphasis in original).
The burglary and promoting prison contraband convictions may, however, still be
admissible under Rule 609(a)(1). The convictions are “therefore subject to the Rule 403
balancing test imposed by Rule 609(a)(1).” Daniels, 986 F. Supp. at 250. “Rule 609(a)(1)
presumes that all felonies are at least somewhat probative of a witness’s propensity to testify
truthfully.” Estrada, 430 F.3d at 617 (citation omitted). Accordingly, in balancing the probative
value of a prior conviction against its prejudicial effect under Rule 609(a)(1), courts examine the
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following factors: (1) the impeachment value of the prior conviction; (2) the remoteness of the
prior conviction; (3) the similarity between the prior conviction and the conduct at issue; and (4)
the importance of the credibility of the witness. See Daniels, 986 F. Supp. at 250 (citing Hayes,
553 F.2d at 828) (additional citation omitted).
With respect to the first factor, the impeachment value, although crimes of burglary and
promoting prison contraband are not automatically admissible, as discussed above, the Second
Circuit has noted that “theft” crimes, as well as “crimes that involve evasions of responsibility or
abuse of trust,” rank “high on the scale of probative worth on credibility.” Estrada, 430 F.3d at
618. Therefore, the impeachment value of the prior convictions weighs in favor of the
introduction of such evidence. Second, the prior convictions occurred in 2004 and 2007. “The
age[s] of the convictions . . . [are] not so remote as to diminish [their] probative value. Daniels,
985 F. Supp. at 250 (citing United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968)). The third
factor, the dissimilarity of the prior conviction and the conduct at issue, also weighs in favor of
admitting the evidence. The crimes plaintiff was convicted of - burglary and promoting prison
contraband - bear no relation to the excessive force claim at issue in this trial. Finally, the fourth
factor, plaintiff’s credibility, also weighs in favor of the introduction of the evidence.
Notwithstanding the video tape, which appears to capture a portion of the incident, plaintiff and
the defendant will testify to divergent versions of what occurred during the period prior to the
videotaped portions of the incident. “Faced with these conflicting stories, the jury’s central task
will be to determine who is telling the truth.” Id. at 251. Plaintiff’s “credibility on the stand is
therefore of decisive importance.” Daniels, 986 F. Supp. at 251 (citation omitted). Accordingly,
the prior burglary and promoting prison contraband convictions are admitted for purposes of
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impeachment.
B.
Plaintiff’s Drug Convictions
Plaintiff has been convicted on various occasions of crimes involving drugs,
including: (1) a 2006 misdemeanor conviction for seventh degree criminal possession of a
controlled substance; (2) a 2007 misdemeanor conviction for seventh degree criminal possession
of a controlled substance; and (3) a 2007 felony conviction for third degree criminal sale of a
controlled substance and third degree criminal possession of a controlled substance. While
defendant argues that such crimes involve crimes of dishonesty or false statement, and therefore
must be admitted pursuant to Rule 609(a)(2), “[d]rug crimes . . . do not automatically implicate
the use of dishonesty or false statements.” Daniels, 986 F. Supp. at 249 (citing Lewis v. Velez,
149 F.R.D. 474, 481 (S.D.N.Y. 1993)); see also 4 Weinstein’s Federal Evidence §
609.03[2][b][iii], at 609-16 (1997) (“Convictions for narcotic offenses are usually not considered
to involve dishonesty or false statement.”).
“Where, as here, the crime falls within the ‘uncertain middle category neither clearly
covered nor clearly excluded by . . . [Rule 609(a)(2)],’ the proffering party must demonstrate
‘that [the] particular prior conviction rested on facts warranting the dishonesty or false statement
description.’” Daniels, 986 F. Supp. at 249-50 (quoting Hayes, 553 F.2d at 827) (alteration in
original). Here, defendant offers nothing more than a blanket statement that “the elements of the
underlying crime[s] require proof or an admission of an act of dishonesty or false statement, and
thus must be admitted into evidence under Rule 609(a)(2).” (Def. Opp’n to Pl. Mot. in Limine 6,
7.) Defendant fails to offer any evidence or facts to suggest that the prior drug convictions
involved dishonesty or false statement and therefore, the prior drug convictions are not
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automatically admissible under Rule 609(a)(2). See Daniels, 986 F. Supp. at 250.
Nonetheless, the prior felony drug convictions may still be admissible under Rule
609(a)(1) because they occurred within the past ten years and were punishable by imprisonment
in excess of one year. See Fed. R. Evid. After balancing the four factors outlined above, the
Court finds that the probative value of two additional drug convictions is outweighed by the risk
of unfair prejudice to the plaintiff.
Here, the impeachment value of the prior convictions is cumulative in nature given the
admission of the two felony convictions - attempted burglary and promoting prison contraband.
The Court is concerned that cumulative evidence reflected by the plaintiff’s extensive record of
felony convictions will be misused by the jury as evidence that he is a bad person. This would
distract the jury from the real issue in this Section 1983 action - whether the plaintiff was the
victim of excessive force. Such evidence may also provoke the jury to depart from the Court’s
instructions on the applicable law and impose a lesser standard, due to plaintiff’s extensive
record. The extent of permissible force used by defendant on February 7, 2007 should not be
affected by the extent of the plaintiff’s prior criminal record.
C.
Plaintiff’s 1991 Robbery Conviction
“The Second Circuit has recognized that Congress intended that convictions more
than ten years old be admitted ‘very rarely and only in exceptional circumstances.’” Daniels, 985
F. Supp. at 252 (quoting Zinman v. Black & Decker, Inc., 983 F.2d 431, 434 (2d Cir. 1993)). No
such “exceptional circumstances” are present here to justify the admission of plaintiff’s 1991
conviction for second degree robbery, which plaintiff was convicted of more than twenty years
ago. Such evidence would only serve to prejudice the plaintiff and his case. Nor do I consider
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this to be a crime of dishonesty or false statement, for the reasons set forth above. See Estrada,
430 F.3d at 614. Accordingly, these prior convictions are excluded.
II.
Defendant’s Motion to Exclude Testimony Regarding his Administrative Suspension
Defendant seeks to exclude the testimony of the Riverhead Chief of Police, David
Hegermiller, on the grounds that the relevance of such testimony is outweighed by the prejudicial
effect it would have on the defendant, pursuant to Federal Rule of Evidence 403. Defendant also
asserts that the self-critical analysis privilege should preclude such testimony.
The self-critical analysis privilege is “a qualified privilege that protects from disclosure
documents reflecting a party’s own forthright evaluation of its compliance with regulatory, legal
or professional standards.” In re Winstar Commcn’s Secs. Litig., No. 01 CV 3014, 2007 U.S.
Dist. LEXIS 85134, at *3-4 (S.D.N.Y. Nov. 15, 2007). “Where ‘a party has conducted a
confidential analysis of its own performance in a matter implicating a substantial public interest,
with a view towards correction of errors,’ a recognized self-critical analysis privilege ‘may
relieve the party of its obligation to provide the purely analytical material, absent a showing of
need by the other side, in order to encourage continued candid self-evaluations.’” Id. at *4
(quoting Wimer v. Sealand Serv., 1997 WL 375661, at *1 (S.D.N.Y. July 3, 1997)).
The dispute here concerns the proposed testimony of the Riverhead Chief of Police,
David Hegermiller, regarding the administrative action taken with respect to defendant following
the incident at issue herein - specifically, that defendant was suspended without pay for eight
months and that, after being reinstated, he was prohibited from carrying a weapon or resuming
any courtroom duty. The Court finds that the self-critical analysis privilege is applicable here.
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The Chief of Police’s analysis of defendant’s actions seems to fall loosely within the self-critical
analysis privilege in that the decision to suspend him necessarily involved the evaluation of
whether defendant’s actions complied with “regulatory, legal or professional standards.” In re
Winstar, 2007 U.S. Dist. LEXIS 85134, at *4. Moreover, plaintiff has not demonstrated a need
for Chief Hegermiller’s testimony since the issue before the jury is whether defendant used
excessive force, not whether he was disciplined. Permitting the Chief of Police to testify would
only serve to expose defendant to the risk of unfair prejudice under Rule 403 and lead to possible
confusion as to the elements of the alleged Section 1983 violation and the elements of any
disciplinary code or regulation applicable to Riverhead Police Department officers. However,
should defendant open the door to such evidence by maintaining that his conduct was consistent
with the police department’s standards of conduct, plaintiff will be permitted to pursue
defendant’s disciplinary suspension and/or call Chief Hegermiller to testify.
The Court also finds that Chief Hegermiller’s testimony is analogous to Federal Rule of
Evidence 407, which states that “[w]hen, after an injury or harm allegedly caused by an event,
measures are taken that, if taken previously, would have made the injury or harm less likely to
occur, evidence of the subsequent measures is not admissible to prove . . . culpable conduct.”
Fed. R. Evid. 407. As with a situation in which someone is injured due to a faulty condition and
evidence of subsequent remedial measures taken by the defendant are not considered admissible
to prove fault, Chief Hegermiller’s testimony concerning the disciplinary action taken against
defendant is not permitted to aid plaintiff in demonstrating that defendant engaged in excessive
force.
Accordingly, defendant’s motion to preclude the testimony of Chief Hegermiller is
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granted, subject to the conditions set forth herein.
SO ORDERED:
Dated: Central Islip, New York
November 8, 2011
/s/ E. Thomas Boyle
E. THOMAS BOYLE
United States Magistrate Judge
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