Murphy v. City of Tulsa, The et al

Filing 356

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; denying 206 Motion in Limine; granting 214 Motion in Limine (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

MICHELLE DAWN MURPHY,

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Plaintiff,
v.
THE CITY OF TULSA,
Defendant.

Case No. 15-CV-528-GKF-FHM

OPINION AND ORDER
This matter comes before the court on the Motion in Limine Number Eight: To Exclude
the Testimony of J. Peter Messler [Doc. #214] of defendant City of Tulsa and the Eleventh Motion
in Limine [Doc. #206] of plaintiff Michelle Dawn Murphy. The City of Tulsa’s Eighth Motion in
Limine seeks to wholly preclude Ms. Murphy from calling as a witness, or presenting any
testimony of, retired Judge J. Peter Messler, who presided over Ms. Murphy’s preliminary hearing
in 1994. Ms. Murphy’s Eleventh Motion in Limine seeks admission of Judge Messler’s testimony
regarding the quality of the Tulsa Police Department’s (“TPD”) investigation of the murder of
Travis Wood, and the basis for Judge Messler’s finding of probable cause. For the reasons
discussed below, the City of Tulsa’ Motion in Limine Number Eight is granted, and Ms. Murphy’s
Eleventh Motion in Limine is denied.
I

Judge Messler’s Testimony Regarding His Opinions of the Quality of TPD’s
Investigation of the Murder of Travis Wood
The City moves to exclude Judge Messler’s testimony regarding his opinions of the quality

of TPD’s investigation of the murder of Travis Wood on the basis that such testimony is improper

expert witness testimony pursuant to Fed. R. Evid. 702. Ms. Murphy asserts that such testimony
is relevant lay witness testimony under Fed. R. Evid. 701.
Pursuant to Fed. R. Evid. 701,
[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited
to one that is:
(a)

rationally based on the witness’s perception;

(b)

helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and

(c)

not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702.

Conversely, Fed. R. Evid. 702 permits the introduction of expert testimony, provided that “the
expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue,” “the testimony is based on sufficient facts or data,”
and the testimony is the product of reliably applied principles and methods. Fed. R. Evid. 702.
The advisory committee notes to the 2000 Amendments to Rule 701 state as follows:
Rule 701 has been amended to eliminate the risk that the reliability requirements
set forth in Rule 702 will be evaded through the simple expedient of proffering an
expert in lay witness clothing. Under the amendment, a witness’ testimony must
be scrutinized under the rules regulating expert opinion to the extent that the witness
is providing testimony based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Fed. R. Evid. 701, advisory committee notes.
The court is not persuaded that Judge Messler’s testimony regarding the quality of TPD’s
investigation is admissible as opinion testimony by a lay witness pursuant to Fed. R. Evid. 701.
Rule 701 permits testimony by a lay witness only if the opinion is “rationally based on the
witness’s perception.” Based on the court’s review of Judge Messler’s testimony, the court is not
persuaded that Judge Messler’s opinions are rationally based on Judge Messler’s perception.

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In response to questioning regarding his opinion as to the quality of the investigation
conducted in Ms. Murphy’s case, Judge Messler responded:
Well, it certainly wasn’t very good. For years, our police department has always
had a really good reputation for the most part about doing very thorough jobs. I
don’t know where they were on this case, because looking back on it now with some
of the things that have been brought to my attention, even shortly after the trial and
the jury trial, it wasn’t even close to a thorough investigation.
[Doc. #214-1 at p. 19:14 to 20:1 (emphasis added)]. Additionally, Judge Messler testified that
any information he had regarding Ms. Murphy’s statements to detective Mike Cook was “secondand thirdhand information,” and that he had no firsthand knowledge of the conduct of the
investigation by TPD other than the content of the testimony at the preliminary hearing. [Doc.
#269-1, pp. 41:2 to 42:4 and 55:19 to 56:2]. Thus, based on Judge Messler’s testimony, the court
is not persuaded that Judge Messler’s opinions regarding the quality of TPD’s investigation were
rationally based on Judge’s Messler’s perception as required by Fed. R. Evid. 701.
Further, the court is persuaded that, to permit Judge Messler to testify regarding the quality
of TPD’s investigation without personal knowledge, would be to permit improper expert
testimony. This court has previously concluded that the quality of TPD’s investigation as
compared to national police practices and procedures is the proper subject of expert testimony.
See [Doc. #355]. However, Ms. Murphy did not designate Judge Messler as an expert. Nor has
Ms. Murphy established that Judge Messler’s testimony would satisfy the requirements of Fed. R.
Evid. 702, even if Ms. Murphy had previously expressed an intent to introduce Judge Messler’s
testimony as expert testimony.
First, Ms. Murphy has not met her burden to establish Judge Messler’s qualification as one
possessing “scientific, technical, or specialized knowledge” regarding police procedures and
practices in investigating homicides. See United States v. Nacchio, 555 F.3d 1234, 1260 (10th Cir.

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2009) (proponent of expert testimony bears the burden to establish admissibility). Ms. Murphy
has offered no evidence regarding Judge Messler’s qualifications beyond his juris doctorate and
experience in conducting preliminary hearings. The court is not persuaded that experience in
conducting preliminary hearings is sufficiently related to conducting a homicide investigation to
render Judge Messler qualified under Fed. R. Evid 702. See Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 578, 590 (1993).
Second, Judge Messler testified that he was not given any factual background regarding
the case beyond his prior general knowledge by Ms. Murphy’s counsel, that he was not given
documents to review regarding Ms. Murphy’s case prior to his deposition other than the
preliminary hearing transcript, that he did not participate in Ms. Murphy’s criminal trial, that any
information he had regarding Ms. Murphy’s statements to Mike Cook was “second- and thirdhand
information,” and that he had no firsthand knowledge of the conduct of the investigation by TPD
other than the content of the testimony at the preliminary hearing [Doc. #269-1 at pp. 34:17-24;
36:15-21; and 41:2 to 42:4].1 Thus, the court concludes that Judge Messler’s testimony was based
on insufficient facts or data, and is not admissible pursuant to Fed. R. Evid. 702.
Finally, Judge Messler’s testimony regarding the quality of TPD’s investigation, including
whether Mr. Cook read the preliminary hearing transcript, is subject to the balancing test of Fed.
R. Evid. 403. Pursuant to Fed. R. Evid. 403, “[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Ms. Murphy seeks to impose liability on the City of Tulsa for

1

It is undisputed that Mr. Cook did not testify at Ms. Murphy’s preliminary hearing and Ms.
Murphy’s recorded statement was not offered into evidence.
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inadequacies in its investigation of the murder of Travis Wood and lack of training. Testimony
from Judge Messler, a neutral magistrate directly involved in Ms. Murphy’s preliminary hearing,
would no doubt greatly influence the jury, despite Judge Messler’s lack of personal knowledge
regarding TPD’s investigation into Travis Wood’s murder. For these reasons, the court concludes
that the probative value of Judge Messler’s opinion testimony as to the quality of TPD’s
investigation is substantially outweighed by the risk that the testimony will confuse the issues and
mislead the jury.
II.

Judge Messler’s Testimony Regarding the Basis for his Finding of Probable Cause
Ms. Murphy seeks to admit Judge Messler’s testimony regarding the basis for binding Ms.

Murphy over for trial, specifically the following:
Q:

And if you thought there was no probable cause that Michelle Murphy
committed this murder, you would have dismissed—you could have
dismissed the case right there, right?

A:

Well, there was probable cause because she was the only one there.
That’s—that’s enough right there to bind somebody over, for the most part.2

Ms. Murphy asserts a section 1983 claim against the City of Tulsa, a municipality. In the Tenth
Circuit, “a plaintiff asserting a § 1983 claim must show 1) the existence of a municipal policy or
custom and 2) a direct causal link between the policy or custom and the injury alleged.’ Through
its deliberate conduct, the municipality must have been the ‘moving force’ behind the injury.”
Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015) (internal citations and quotations
omitted).

2

The portion of Judge Messler’s deposition transcript containing this testimony was not provided
to the court. Rather, counsel for Ms. Murphy included the above testimony in her Eleventh Motion
in Limine and, by signing the motion, has represented that the testimony is accurate pursuant to
Fed. R. Civ. P. 11.
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A municipal policy or custom may take the form of (1) “a formal regulation or
policy statement”; (2) an informal custom “amoun[ting] to ‘a widespread practice
that, although not authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a custom or usage with the force of
law’”; (3) “the decisions of employees with final policymaking authority”; (4) “the
ratification by such final policymakers of the decisions—and the basis for them—
of subordinates to whom authority was delegated subject to these policymakers’
review and approval”; and (5) “the failure to adequately train or supervise
employees, so long as that failure results from ‘deliberate indifference’ to the
injuries that may be caused.”
Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (alterations in original) (quoting
Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010)).
Evidence irrelevant to these claims is inadmissible. Fed. R. Evid. 402. The Federal Rules of
Evidence define relevant evidence as evidence that “has any tendency to make a fact more or less
probable than it would be without the evidence,” and “is of consequence in determining the
action.”
The court is not persuaded that the basis for Judge Messler’s finding of probable cause is
of consequence to determining this action. The finding of probable cause has no bearing on TPD’s
training or supervision of its employees, nor was Judge Messler’s finding based on a formal or
informal policy of TPD. There is no allegation that Judge Messler is a final policymaker for TPD.
Finally, although Ms. Murphy seeks to impose liability on the City of Tulsa for its ratification of
detective Mike Cook’s conduct, including in interrogating Ms. Murphy, it is undisputed that Mr.
Cook did not testify at the preliminary hearing and Ms. Murphy’s recorded statement was not
offered into evidence at the hearing. Thus, the court concludes that Judge Messler’s testimony
regarding the finding of probable cause is irrelevant to Ms. Murphy’s claims in this matter.
III.

Judge Messler’s Testimony Regarding William Lee
The City argues that Judge Messler’s opinion testimony regarding William Lee is

inadmissible. The court agrees.
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In the Tenth Circuit, determining the credibility of witnesses is a “critical function of the
jury,” and is not the appropriate subject of testimony. See United States v. Toledo, 985 F.2d 1462,
1470 (10th Cir. 1993). Nor is extrinsic evidence admissible to prove a witness’s character for
truthfulness or untruthfulness. Fed. R. Evid. 608(b). And, further, although Rule 608(a) permits
“testimony about the witness’s reputation for having a character for truthfulness or untruthfulness,
or by testimony in the form of an opinion about that character,” the Tenth Circuit has held “[i]n
order to establish an appropriate foundation, a witness testifying under Rule 608(a) must show
‘such acquaintance with the [person under attack], the community in which he has lived and the
circles in which he has moved, as to speak with authority of the terms in which generally he is
regarded.’” United States v. Bedonie, 913 F.2d 782, 802 (10th Cir. 1990) (alteration in original)
(quoting Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1552 (10th Cir. 1988)), overruled
on other grounds by, United States v. Flowers, 464 F.3d 1127 (10th Cir. 2006). The unavailability
of a witness does not warrant a departure from the applicable Federal Rules of Evidence. See
Armstrong v. Bair, No. CIV-03-0255-C, 2007 WL 626043, at *3 (W.D. Okla. Feb. 23, 2007). See
also United States v. Saada, 212 F.3d 210, 220-21 (3d Cir. 2000) (“Rule 806 does not modify Rule
608(b)’s ban on extrinsic evidence of prior bad acts in the context of hearsay declarants, even when
those declarants are unavailable to testify.”). Rather, Rule 806 permits evidence bearing on a
hearsay declarant’s credibility only to that extent the “evidence . . . would be admissible for those
purposes if the declarant had testified as a witness.” Fed. R. Evid. 806.
Judge Messler’s opinions regarding the credibility of William Lee are generally
inadmissible. Further, the court is not persuaded that Judge Messler had a sufficient acquaintance
and knowledge of Mr. Lee to render his testimony admissible pursuant to Fed. R. Evid. 608(a)
because, based upon the court’s review, Judge Messler’s opinions regarding Mr. Lee are based

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solely on Mr. Lee’s appearance and testimony at the preliminary hearing. See, e.g., [Doc. #214-1,
pp. 48:24 to 49:21]. For these reasons, the court grants the City of Tulsa’s motion to exclude Judge
Messler’s testimony regarding William Lee.3
IV.

Judge Messler’s Testimony Regarding Evidence Not Presented at the Preliminary
Hearing
The City of Tulsa moves to preclude Judge Messler’s testimony regarding the evidence

that was presented during the preliminary hearing, and whether he was “concerned” or “surprised”
that certain evidence was not presented. The court concludes that such testimony is irrelevant. As
discussed above, Ms. Murphy seeks to impose municipal liability on the City of Tulsa based on
the conduct of the investigation into Travis Wood’s murder and its training programs. However,
neither TPD nor the City of Tulsa was responsible for the determination of what evidence to
present at the preliminary hearing and, therefore, the evidence is of no consequence in determining
the issues in this action. For this reason, Judge Messler’s testimony regarding the evidence
presented in the preliminary hearing is irrelevant and inadmissible pursuant to Fed. R. Evid. 402.
V.

Judge Messler’s Testimony that He Has Nightmares
Finally, the City of Tulsa argues that Judge Messler’s testimony that he has nightmares

regarding Ms. Murphy’s case is irrelevant and unduly prejudicial. The court agrees. To the extent
that Judges Messler’s dreams regarding this matter reflect his opinion regarding TPD’s
investigation, this court has concluded that Judge Messler’s opinion testimony is inadmissible.
Further, such evidence would result in unfair prejudice to the City of Tulsa, as the evidence would

3

The City also moves to preclude Judge Messler’s opinion testimony that William Lee murdered
Travis Wood. However, Ms. Murphy does not seek admission of this testimony, and, therefore,
Judge Messler’s testimony regarding his opinion as to who murdered Travis Wood is not at issue.
See [Doc. #301, p. 5].
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likely have an undue tendency to suggest a decision on an emotional basis. See United States v.
Caraway, 534 F.3d 1290, 1301 (10th Cir. 2008) (“To be unfairly prejudicial, the evidence must
have ‘an undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.”) (emphasis in original).
WHEREFORE, the City of Tulsa’s Motion in Limine Number Eight: To Exclude the
Testimony of J. Peter Messler [Doc. #214] is granted, and Plaintiff’s Eleventh Motion in Limine
[Doc. #206] is denied.
DATED this 23rd day of January, 2018.

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