Court: Court of Appeals for the Fourth Circuit; July 12, 2000; Federal Appellate Court
Rodney Brice filed a lawsuit against Safeway, Inc. and security guard E. J. Nkaru in the District of Maryland, alleging malicious prosecution after Nkaru reported him for attempting to forge and use a Safeway courtesy card. A jury found both defendants liable, awarding Brice $500,000, which he later remitted to $100,000. The defendants appealed, claiming entitlement to judgment as a matter of law.
The case involved an incident on September 16, 1994, when Nkaru reported to Officer Marcus Wigglesworth that a black male had tried to cash a check using a false courtesy card application. Nkaru identified Brice as the suspect based on a previous incident. Officer Wigglesworth’s investigation revealed Brice’s Social Security number was linked to the false application. Detective Andrew Jessup continued the investigation, finding discrepancies in the application and connecting it to Brice. In November 1994, Nkaru identified Brice from a photo array, leading to a warrant for Brice's arrest in December 1994.
Brice remained unaware of the warrant until July 1996, when he was detained upon reentering the U.S. after a cruise. During his preliminary hearing, both Nkaru and Jessup testified, resulting in the judge finding probable cause for Brice's prosecution. The appellate court ultimately reversed the district court's judgment, agreeing with the defendants that they were entitled to judgment as a matter of law.
Brice's wife recalled their September 1994 Caribbean cruise during a preliminary hearing, leading to the discovery of documentation confirming their U.S. entry on September 16, 1994, the day after the alleged Safeway incident. Brice's counsel shared this information with the Commonwealth's Attorney, who then moved to dismiss the criminal charges against Brice. In February 1998, Brice filed a diversity action against Safeway and Nkaru, alleging several claims, including malicious prosecution. At trial, only the malicious prosecution claim remained, with both Brice and his wife testifying about the impacts of the arrest and prosecution. Testimonies from Detective Jessup and Officer Wigglesworth supported the investigation's reliance on Nkaru's information. Although Nkaru's deposition was partially read into the record, he did not testify at trial. The jury awarded Brice $500,000, which he later accepted as reduced to $100,000. The district court denied Nkaru's motion for judgment as a matter of law. Under Virginia law, malicious prosecution requires proof that the defendant initiated a criminal prosecution without probable cause, acted maliciously, and that the prosecution ended favorably for the plaintiff. Nkaru argued he did not 'institute' or 'procure' Brice's prosecution, citing the 1928 Virginia case King v. Martin, where the court ruled that merely providing information to authorities does not constitute instigation of prosecution if the informant did not take active steps to pursue charges. The court emphasized that King only appeared as a witness and did not engage in the prosecution process.
In Marsh v. Commercial and Sav. Bank of Winchester, the court dismissed a malicious prosecution claim, emphasizing that a victim's honest cooperation with police does not equate to 'instituting' a prosecution. Nkaru argued he did not initiate criminal proceedings against Brice, as he merely reported a crime and assisted police with identification, while the police independently conducted the investigation, identified Brice, and obtained a warrant based on their findings. Nkaru's testimony was that of a disinterested witness, compelled by subpoena.
Brice contended he was innocent based on evidence of his re-entry into the U.S. on September 16, 1994, arguing this precluded him from committing an offense the previous day. He attempted to distinguish his case from King by noting Nkaru's confidence in identifying him, contrasting it with Mr. King's uncertainty. However, the court found no legal basis to assert that a witness providing incorrect information could be deemed to 'institute' prosecution, as the key factor is whether the witness acted in good faith. The court reiterated that a witness's honest provision of information cannot be held against them if it does not impede law enforcement's independent duty to investigate. Thus, the court rejected Brice's argument that Nkaru's statements impeded further investigation, noting that police often act on witness reports without the witnesses' influence over the prosecution process.
Nkaru provided information to the police, which they reasonably believed, similar to established legal standards regarding eyewitness identification in institutional settings. For a malicious prosecution claim, the plaintiff must demonstrate that the defendant was actively involved in instigating the prosecution, such as through requesting the proceedings or signing a complaint. In this case, there was no evidence that Nkaru influenced law enforcement's decisions regarding the investigation of Brice. Brice's argument that post-nolle prosequi events suggest Nkaru falsely identified him is rejected, as those events do not indicate Nkaru's bad faith. Nkaru maintained his belief that Brice was the perpetrator, which aligns with the understanding that eyewitness accounts can be honest yet inaccurate. Additionally, Nkaru's failure to identify a Safeway cashier involved in the incident does not indicate bad faith, especially since the police did not pursue this information at the time. Brice’s claims about Nkaru's inconsistent deposition statements are deemed confusing and do not substantiate a claim of bad faith. The definition of "utter" is also clarified, indicating its legal significance in the context of check circulation.
Nkaru's testimony indicated he could not recall informing police that the suspect went by Chief Chris Ubani, a detail that was recorded four years after the 1994 incident. His lack of recollection is not inherently inconsistent with the police report. Brice argued that Nkaru's decision not to testify during the civil trial warranted an adverse inference under the Restatement of Torts. However, it was determined that Nkaru did not "refuse" to testify, as parties are not compelled to testify on their own behalf, and the opposing party, Brice, failed to call Nkaru as a witness, which negated the basis for an adverse inference. Consequently, it was concluded that there was insufficient evidence to suggest that Nkaru acted in bad faith when providing information to law enforcement, leading to the determination that Nkaru did not initiate or cause Brice's prosecution. The judgment of the district court was reversed, and a judgment in favor of Nkaru and Safeway was ordered. Additionally, Brice's prosecution stemmed from a charge of forgery, and damages sought included personal and reputational harm. The testimony given by Nkaru at the preliminary hearing was protected by absolute witness immunity, preventing liability based on that testimony.
False testimony in a criminal case does not allow the defendant to file a civil lawsuit against the witness. At common law, a witness could be liable for damages if they fail to comply with a subpoena without sufficient excuse. However, the current ruling does not rely on witness immunity, as only part of Nkaru's actions would be relevant. During deposition, Nkaru, who struggles with English, provided contradictory statements regarding his encounters with Brice. The definition of "utter" a check refers to the act of circulating or publishing it. Without evidence of significant omitted material facts due to Nkaru's failure to testify, an adverse inference cannot be drawn, as supported by previous case law. Adverse inferences are only permissible if the missing testimony is material, not merely cumulative. Consequently, other errors raised by Nkaru do not need to be addressed.
