Norton v. Rosier et al

Filing 167

MEMORANDUM AND OPINION - This matter came before the court prior to trial on plaintiff's motion in limine 142 and during trial on plaintiff's objection to proposed jury instruction 150 . This order serves to memorialize the court's rulings. Signed by District Judge Louise Wood Flanagan on 4/1/2019. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-00260-FL
CALVIN TYRONE NORTON,
Plaintiff,
v.
JEFFREY ROSIER, in his individual
capacity,
Defendant.

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MEMORANDUM OPINION

This matter came before the court prior to trial on plaintiff’s motion in limine (DE 142) and
during trial on plaintiff’s objection to proposed jury instruction (DE 150). Outside the presence of
the jury, the court heard argument during trial concerning this motion and objection on the first and
second days of trial, February 11 and 12, 2019, and conducted voir dire of defendant’s witness
Judith A. Kelley (“Kelley”) on the afternoon of February 12, 2019. Following voir dire, the court
granted in part and denied in part plaintiff’s motion and overruled plaintiff’s objection. This order
serves to memorialize the court’s rulings.
Regarding plaintiff’s motion in limine, the parties have engaged in an ongoing dispute over
the relevance and admissibility of a file (“Investigation File”) compiled by Kelley, who conducted
an investigation of defendant on behalf of the North Carolina Criminal Justice Education and
Training Standards Commission, which is the agency that regulates standards for the training and
certification of law enforcement officers in North Carolina. Plaintiff sought in motion in limine to
exclude testimony by Kelley as well as the Investigation File. The court granted in part and denied
in part plaintiff’s motion.

First, the court allowed testimony by Kelley concerning her investigation and which
witnesses Kelley contacted, where plaintiff opened the door to such testimony by testifying himself
as follows: “I haven’t even given a statement to Ms. Judy Kelley . . . . I don’t recall her getting any
statements [from] anyone . . . . I don’t deny talking to Judy Kelley. But . . . Judy Kelley did not
investigate myself or the witnesses.” See, e.g., United States v. Blake, 571 F.3d 331, 348 (4th Cir.
2009) (“Defense counsel unmistakably advanced the argument . . . . To allow such an attack to go
unanswered would have been unfair.”); United States v. Birchette, 908 F.3d 50, 61 (4th Cir. 2018)
(“The defendant twice opened the door for the jury to hear the contested evidence.”).
However, the court excluded introduction of Kelley’s handwritten notes regarding her
investigation. Rule 801(d)(2)(A) provides that a statement is not hearsay if offered against an
opposing party and “was made by the party.” Here, under no definition of “made by the party” was
Kelley’s handwritten notes “made by” plaintiff, notwithstanding her summaries of conversations
with plaintiff, and defendant has offered no other avenue for admittance. For example, defendant
does not and cannot argue that plaintiff has manifested that he adopted or believed to be true
Kelley’s handwritten notes, pursuant to Rule 801(d)(2)(B). See, e.g., United States v. Stafford, 422
F. App’x 63, 65 (2d Cir. 2011) (“Stafford’s thorough review of the agent’s notes and
acknowledgment of their accuracy adequately demonstrated his adoption of their contents. They
were therefore admissible as non-hearsay.”).
Additionally, the court excluded testimony by Kelley regarding the substance of what others
informed her during the course of her investigation. First, as conceded by defendant, Rule
801(d)(2)(A) does not contemplate introduction of a party’s own hearsay via a witness. See United
States v. Portsmouth Paving Corp., 694 F.2d 312, 321 (4th Cir. 1982) (“A party’s own statements

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offered against him are excluded from the definition of hearsay by Rule 801(d)(2)(A).”) (emphasis
added).1
Additionally, the court excluded statements made to Kelley by alleged witnesses to the
incident in question who are not witnesses in the current trial (“missing witnesses”), rejecting
defendant’s arguments that the hearsay exceptions Rules 801(d)(2)(B) and 801(d)(2)(E) apply.
Here, for defendant to show that plaintiff adopted the statements of the missing witnesses pursuant
to Rule 801(d)(2)(B), defendant must show that plaintiff 1) heard the statements, 2) understood the
statements, and 3) acquiesced to the meaning of those statements. Where evidence indicates
plaintiff may not have heard the statements and where the statements made by the missing witnesses
are inconsistent with plaintiff’s version of events, there are not “sufficient foundational facts from
which the jury could infer that the defendant . . . acquiesced in the statement.” United States v.
Recio, 884 F.3d 230, 234 (4th Cir. 2018) (emphasis in original, citation omitted). Additionally,
defendant has offered no evidence in support of the existence of a conspiracy or that the statements
made by the missing witnesses were made in furtherance of that conspiracy as required by Rule
801(d)(2)(E).
Turning to plaintiff’s objection to proposed jury instruction, as previously stated by the court
regarding this issue, (see DE 135 at 10), the main dispute concerns the above-discussed missing
witnesses, who were noticed for deposition by defendant but who failed to appear to testify.
Counsels’ dispute concerns whether the court reporter’s certified transcripts evidencing failure of
each witness to appear for deposition may be admitted into the record, to support a “missing
witness” jury instruction along lines of the second paragraph below, in supplement to the first
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For similar reasons, statements made by defendant’s other witnesses to Kelley are excluded as hearsay where
defendant has not identified an exception to the hearsay rule that would allow admission of those statements.

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paragraph of the “witness” instruction, roughly in the form requested by plaintiff:
The law does not require any party to call as witnesses all persons who may appear
to have some knowledge of the matters at issue at this trial. Nor does the law require
any party to produce as exhibits all papers and things mentioned in the evidence in
the case.
However, if a party fails to call a person as a witness who has knowledge about the
facts in issue, and who is reasonably available to the party, and who is not equally
available to the other party, then you may infer that the testimony of that person is
unfavorable to the party who could have called the witness and did not.
Although the court held the transcripts inadmissible, the court determined that sufficient
evidence had been presented to warrant inclusion of the above missing witness instruction.
Evidence indicates plaintiff made representations to Kelley concerning his ability to secure the
missing witnesses’ testimony and facilitated providing Kelley with the missing witnesses’ statements
for her investigation, indicating greater availability to plaintiff. Cases cited by plaintiff do not
warrant a different conclusion where such cases stand for the proposition that a missing witness jury
instruction is not appropriate where the witness is equally available to either party, a situation not
currently before this court. See, e.g., Dunlap v. G. & C. Towing, Inc., 613 F.2d 493, 497 (4th Cir.
1980) (“The witness involved was plaintiff’s treating physician. He was equally available to either
party. That made the instruction inappropriate.”).2
Accordingly, based on the foregoing, the court granted in part and denied in part plaintiff’s
motion and overruled plaintiff’s objection.
SO ORDERED, this the 1st day of April, 2019.
_____________________________
LOUISE W. FLANAGAN
United States District Judge

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The court however recognizes that although the missing witnesses were duly noticed for deposition by
defendant, they were not subpoenaed, and could have been. In so recognizing, the court adds to the above instruction
the following: “, but you are not required so to do.”

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