Hagan v. Beard et al

Filing 198

MEMORANDUM OPINION AND ORDER - IT IS HEREBY ORDERED THAT the plaintiffs and defendants motions in limine (Docs. 145 and 155.) are GRANTED, in part, and DENIED, in part, as follows: 1. Defendants will be permitted to cross examine plaintiffs witnesses on the fact of their various prior convictions and the resulting imprisonment, without eliciting any further detail. 2. Defendants may testify to their knowledge that [Hagan] was convicted of crimes of violence and the length of his sentences, Womack v. Smith, 1:06-CV-2348, 2012 WL 1245752 (M.D. Pa. Apr. 13, 2012), but defendants may not describe the specific nature of those offenses. Signed by Magistrate Judge Martin C. Carlson on May 29, 2013. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAMONT HAGAN,
Plaintiff
v.
NATHAN GOSS, et al.,
Defendants.

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Civil No. 1:10-CV-883
(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER
I.

FACTUAL BACKGROUND

This is a civil rights action brought by the plaintiff, Damont Hagan, a state
prisoner formerly housed in the Special Management Unit (SMU) of the State
Correctional Institution at Camp Hill (SCI-Camp Hill). In his complaint, the plaintiff
brings claims under 42 U.S.C. §§ 1983 and 1985(2), against several present and
former SCI-Camp Hill SMU staff, alleging: (1) that the plaintiff was assaulted on
August 1, 2008, Amended Complaint ¶¶1-2, 19; and (2) that the defendants conspired
against the plaintiff to intimidate him to prevent him from testifying in violation of
42 U.S.C. §1985(2), Amended Complaint ¶¶6-8, 23.
Presently before the court are two motions in limine, both of which relate to the
impeachment of certain inmate-witnesses. For their part, the defendants have filed

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a motion in limine seeking authorization to impeach these inmate witnesses by
questioning them regarding the fact of their prior convictions. (Doc. 145.) Hagan,
in turn, has filed his own motion in limine seeking to exclude any reference to these
prior convictions in cross examination of either the plaintiff or the inmate-witnesses.
(Doc. 155.)
For the reasons set forth below, both motions will be granted, in part, and
denied, in part, in that we will permit cross examination regarding the fact of prior
convictions, but will restrict the scope of that cross examination in a fashion which
has previously been approved by the courts in similar circumstances. Further, to the
extent this evidence regarding the plaintiff’s violent criminal past informed the
defendants’ judgment “the extent of the threat to the safety of staff and inmates, as
reasonably perceived by responsible officials on the basis of the facts known to
them,” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000), it will be admissible
subject to the limitations imposed by Rules 402 and 403 of the Federal Rules of
Evidence, and in assessing the degree of force that the defendants perceived was
necessary on August 1, 2008, “Defendants may testify to their knowledge that
[Hagan] was convicted of crimes of violence and the length of his sentences,”
Womack v. Smith, 1:06-CV-2348, 2012 WL 1245752 (M.D. Pa. Apr. 13, 2012), but
defendants may not describe the specific nature of those offenses.
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II.

DISCUSSION

These competing motions in limine call upon us to balance both the probative
impeachment value and potential prejudicial impact of prior convictions of parties
and witnesses in this civil rights lawsuit. Moreover, we are called upon to strike this
balance in a setting where many of the plaintiff’s witnesses, including the plaintiff
himself, have significant prior criminal records.1
With respect to these convictions, the parties cast two starkly contrasting
positions in their motions. Plaintiff argues that defendants’ use of the witnesses’ past
convictions for impeachment purposes should be prohibited based on Federal Rules
of Evidence 403 and 404. In this regard, plaintiff contends that the convictions have

For example, the plaintiff, Damont Hagan, was convicted in Allegheny County of
3rd degree murder on April 4, 1997, and received a 15-40 year sentence with an
expiration date of April 4, 2037. Hagan was also convicted in Luzerne County of
aggravated assault, simple assault and aggravated harassment by prisoner in 2002,
convictions which carry consecutive 3-6 year sentences, and in Fayette County in
2008 of aggravated harassment by prisoner and received a 3-7 year sentence.
Inmate witness Terry Lee Brooks was convicted in Berks County of robbery and
criminal conspiracy on May 15, 1996, and received an aggregate sentence of 9 to
20 years with a maximum of May 14, 2016. Inmate witness Ronald Jackson
received a life sentence for 1st degree murder imposed in Philadelphia County.
Inmate witness Gary S. Tucker was convicted in 2003 in Montgomery County of
murder, criminal attempt, robbery, criminal conspiracy, intimidation of
witness/victim, and corruption of minors. Inmate witness David Crews was
convicted of conspiracy, robbery, aggravated assault, aggravated harassment by
prisoner, simple assault, and assault by prisoner, in Delaware, Westmoreland and
Luzerne Counties.

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no relevance to the case at hand, and claims that evidence of the convictions should
be excluded under Rule 403 because the probative value of the convictions–and
particularly the murder convictions– is outweighed by the danger of unfair prejudice
and their introduction will lead to confusion of the issues and mislead the jury.
In contrast, defendants argue that the convictions in question are probative of
these witnesses’ truthfulness and should be available during cross-examination for
purposes of impeachment. According to defendants, the felony convictions indicate
a flagrant disregard of societal norms and an increased likeliness that the witnesses
might commit perjury. Thus, this information is relevant to the jury’s evaluation of
the credibility of witness testimony, a central part of the case. Defendants also note
that the ten-year period set forth in Rule 609(b) runs not from the date of the
witness’s conviction, but rather from the date of the witness’s release from prison,
and thus for the most part, does not operate to bar the introduction of any of the
convictions at issue in this case.
Our analysis of these competing claims is guided at the outset by Federal Rule
of Evidence 609 which provides as follows:
(a) General rule. For the purpose of attacking the character for
truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of
a crime shall be admitted, subject to Rule 403, if the crime was
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punishable by death or imprisonment in excess of one year under the law
under which the witness was convicted, and evidence that an accused
has been convicted of such a crime shall be admitted if the court
determines that the probative value of admitting this evidence outweighs
its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be
admitted regardless of the punishment, if it readily can be determined
that establishing the elements of the crime required proof or admission
of an act of dishonesty or false statement by the witness.
(b) Time limit. Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the date
of the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date, unless the court
determines, in the interests of justice, that the probative value of the
conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect. However, evidence of a conviction more
than 10 years old as calculated herein, is not admissible unless the
proponent gives to the adverse party sufficient advance written notice of
intent to use such evidence to provide the adverse party with a fair
opportunity to contest the use of such evidence.

Fed. R. Evid. 609.
As written, Rule 609 is expressly subject to the balancing requirement set forth
in Rule 403 of the Federal Rules of Evidence, which provides that:
Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Fed. R. Evid. 403.
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With respect to this balancing of probative value and prejudicial impact
commanded by Rule 403, although evidence may be excluded pursuant to Rule 403
prior to trial, the Third Circuit has cautioned that “pretrial Rule 403 exclusions
should rarely be granted. . . . Excluding evidence as being more prejudicial than
probative at the pretrial stage is an extreme measure that is rarely necessary,
because no harm is done by admitting it at that stage.” In re Paoli R. Yard PCB
Litig., 916 F.2d 829, 859 (3d Cir. 1990); see also, Spain v. Gallegos, 26 F.3d 439,
453 (3d Cir. 1994) (noting the Third Circuit's “cautious approach to Rule 403
exclusions at the pretrial stage . . . .”).

Moreover, the Third Circuit has

characterized Rule 403 as a “trial-oriented rule” such that “[p]recipitous Rule 403
determinations, before the challenging party has had an opportunity to develop the
record, are . . . unfair and improper.” In re Paoli R. Yard PCB Litig., 916 F.2d at
859.
Upon consideration of the parties’ competing positions on the relevance and
potential for prejudice resulting from impeachment of the witnesses through their prior
convictions, and mindful of the Third Circuit’s cautious approach to Rule 403
challenges, we find that plaintiff’s motion to wholly exclude evidence of the
witnesses’ convictions should be denied for at least two reasons. First, Rule 609(a)
makes clear that evidence of felony convictions is indeed relevant to a jury’s effective
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evaluation of witness credibility. Rule 609(a) states that the evidence of a witness’s
felony conviction “shall be admitted” except for those instances where Rule 403 or the
time limit of Rule 609(b) demands otherwise. Rule 609 is based upon the “common
sense proposition” that an individual who has “transgressed society’s norms by
committing a felony is less likely than most to be deterred from lying under oath.” See
Walden v. Georgia-Pacific Corp., 126 F.3d 506, 523 (3d Cir. 1997). Its purpose is to
aid the jury in assessing the credibility of a witness. Id. In this case, witness
credibility will play a decisive role in the jury’s decision-making process. As such,
defendants should not be entirely prevented from pointing out witnesses’ felony
history during cross examination. The jurors should be allowed to consider such
relevant information as they weigh the credibility of each witness’s testimony, unless
Rule 403 or Rule 609(b) demands otherwise.
Moreover, plaintiff has offered no compelling reason why the fact of these prior
criminal convictions of the plaintiff and his witnesses, standing alone, should be
wholly excluded due to unfair prejudice. Although reference to felony convictions
during witness impeachment does carry with it some danger of prejudice, it is not so
overwhelming as to substantially outweigh the probative value under Rule 403 and
thus justify a pretrial order excluding evidence of all convictions. In particular, based
on the facts of this case, the witnesses’ status as inmates will be obvious to the jury.
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Therefore, the fact that the prisoner-witnesses are also convicted felons would not
result in surprise or an unfair prejudice at trial, and it is only when the prejudicial
impact of evidence becomes “unfair” that the evidence must be excluded. See
Coleman v. Home Depot, Inc., 306 F.3d 1333, 1344 and n.6 (3d Cir. 2002). At this
time, the potential prejudice of this form of impeachment, permitted by the rules of
evidence, falls short of this threshold.
For the foregoing reasons, plaintiff’s motion to entirely prevent defendants from
introducing evidence of the criminal convictions of the inmate witnesses will be
denied. However, we recognize that the specific nature of some of these charges, and
particularly the murder charges, adds a heightened element of prejudice to any cross
examination which ventures into the criminal histories of inmate-witnesses. When
considering impeachment of a witness by prior murder or violent crime convictions,
we have must be mindful of the fact that “A murder conviction ... has the potential to
do more than create a credibility handicap. It has the potential to so prejudice the jury
that its weighing of all the factual issues in the entire case may be impaired.” Womack
v. Smith, 1:06-CV-2348, 2012 WL 1245752 (M.D. Pa. Apr. 13, 2012)(quoting,
Tabron v. Grace, 898 F.Supp. 293, 296 (M.D. Pa.1995)). In such instances, when
confronted with a conviction which may be used under Rule 609 to impeach, but
whose underlying qualities have an extremely high potential for prejudice, the trial
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judge may in the exercise of discretion, adopt a middle course with respect to the issue
of impeachment and permit “admission of less prejudicial evidence-namely, the fact
of [the witness’] conviction of a crime and resulting imprisonment without further
detail.” Perryman v. H & R Trucking, inc., 135 F. App'x 538, 541 (3d Cir. 2005), see,
Womack v. Smith, 1:06-CV-2348, 2012 WL 1245752 (M.D. Pa. Apr. 13,
2012)(permitting disclosure of fact of plaintiff’s conviction, without disclosure of
offense of conviction).
This is the course we will adopt here, permitting cross examination of plaintiff’s
witnesses on the fact of their various prior convictions and the resulting imprisonment,
without any further detail. Such an approach in our view reconciles the probative
value of convictions for impeachment purposes, while minimizing any unfair prejudice
which may spring from the precise nature of the crime of conviction. Moreover, this
course of action fits squarely within the framework of Rule 609(a)(1), which provides
that: “evidence that a witness other than an accused has been convicted of a crime
shall be admitted, subject to Rule 403, if the crime was punishable by death or
imprisonment in excess of one year under the law under which the witness was
convicted, and evidence that an accused has been convicted of such a crime shall be
admitted if the court determines that the probative value of admitting this evidence
outweighs its prejudicial effect to the accused.” Fed. R. Evid., Rule 609(a)(1).
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Finally, by adopting this course we follow a path expressly endorsed by the courts in
the past when confronting similar issues of this type relating to the proper scope of
impeachment by prior convictions. See, e.g., Perryman v. H & R Trucking, inc., 135
F. App'x 538, 541 (3d Cir. 2005); Womack v. Smith, 1:06-CV-2348, 2012 WL
1245752 (M.D. Pa. Apr. 13, 2012)(permitting disclosure of fact of plaintiff’s
conviction, without disclosure of offense of conviction).
Finally, with respect to the plaintiff himself, we note that the motions in limine
touch upon a separate potential basis for admission of details concerning the plaintiff’s
criminal history, which has been marked by violent crimes, including acts of violence
within the institutional setting. The plaintiff has brought an excessive force claim
against the defendants arising out of an August 1, 2008, incident in the prison. The
keystone to analysis of an Eighth Amendment excessive force claim entails issues of
motivation–whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm. Hudson v. McMillian, 503
U.S. 1, 6-7 (1992). Therefore, excessive force claims often turn on factual disputes
which cannot be resolved as a matter of law. Brooks v. Kyler, 204 F.3d 102, 106 (3d
Cir. 2000). Consistent with this fact-bound approach to litigation of these claims,
there are several factual considerations that a jury must examine in determining
whether a correctional officer has used excessive force in violation of the Eighth
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Amendment, including: “(1) ‘the need for the application of force’; (2) ‘the
relationship between the need and the amount of force that was used’; (3) ‘the extent
of injury inflicted’; (4) ‘the extent of the threat to the safety of staff and inmates, as
reasonably perceived by responsible officials on the basis of the facts known to them’;
and (5) ‘any efforts made to temper the severity of a forceful response.’ ” Id. at 106.
When considering such claims, the reasonableness of a particular use of force
is often dependent upon factual context and must be “judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Graham v. Connor, 490 U.S. 386, 396-7 (1989). Moreover, in the context of prison
excessive force claims, in determining “whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm,”
Hudson v. McMillian, 503 U.S. 1, 6-7 (1992), “even if we concede [that an inmate]
has established at most that prison officials over-reacted to the disturbance that he
caused. . . , any such over-reaction would still fall short of supporting a finding that
prison officials acted ‘maliciously and sadistically to cause harm.’” Fuentes v.
Wagner, 206 F.3d 335, 346 (3d Cir. 2000).
Given this fact-bound approach, which examines “the extent of the threat to the
safety of staff and inmates, as reasonably perceived by responsible officials on the
basis of the facts known to them,” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000),
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an inmate’s known propensity for violence would be pertinent to a determination of
the quantum of force needed in a correctional setting to restore or maintain order.
Thus, this evidence is relevant to the issues in this case since “relevant evidence,” is
defined in Federal Rule of Evidence 401 as “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Considering this
evidence in the context of the claims brought in this case, if the individual corrections
officers were aware of the plaintiff’s prior criminal conduct and propensity for
violence while incarcerated, and this information helped to form a basis to assess the
threat level that the plaintiff presented, then “knowledge of such history would be
relevant to the inquiry as to whether the force used against plaintiff was reasonable
under the circumstances.” Smith v. City of Philadelphia, Civ. A. No. 06-4312, 2009
WL 3353148, at *2 (E.D. Pa. Oct. 19, 2009) (claims of excessive force against
corrections officers) (citing Virgin Islands v. Carino, 631 F.2d 226, 229 (3d Cir. 1980)
(“If it can be established that the accused knew at the time of the alleged crime of prior
violent acts by the victim, such evidence is relevant as tending to show a reasonable
apprehension on the part of the accused.”)).
However, to the extent this evidence is offered for purpose found to be
permissible, since it informs “the extent of the threat to the safety of staff and inmates,
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as reasonably perceived by responsible officials on the basis of the facts known to
them,” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000,) it will be admissible subject
to the limitations imposed by Rules 402 and 403 of the Federal Rules of Evidence.2
This Rule 403 balancing of probative value and prejudicial impact also cautions
against permitted detailed testimony in this case regarding the specifics of Hagan’s
prior convictions, an approach endorsed in the past by this court. See Womack v.
Smith, 1:06-CV-2348, 2012 WL 1245752 (M.D. Pa. Apr. 13, 2012) Thus, in assessing
the degree of force that the defendants perceived was necessary on August 1, 2008,
“Defendants may testify to their knowledge that [Hagan] was convicted of crimes of
violence and the length of his sentences,” Womack v. Smith, 1:06-CV-2348, 2012 WL
1245752 (M.D. Pa. Apr. 13, 2012), but defendants may not describe the specific nature
of those offenses.
III.

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ORDER

Rule 403 of the Federal Rules of Evidence provides that:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.

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AND NOW, this 29th day of May 2013, for the reasons set forth in the above
memorandum, IT IS HEREBY ORDERED THAT the plaintiff’s and defendants’
motions in limine (Docs. 145 and 155.) are GRANTED, in part, and DENIED, in part,
as follows:
1.

Defendants will be permitted to cross examine plaintiff’s witnesses on the fact
of their various prior convictions and the resulting imprisonment, without
eliciting any further detail.

2.

“Defendants may testify to their knowledge that [Hagan] was convicted of
crimes of violence and the length of his sentences,” Womack v. Smith, 1:06CV-2348, 2012 WL 1245752 (M.D. Pa. Apr. 13, 2012), but defendants may not
describe the specific nature of those offenses.

/s/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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