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McEwen v. City of Norman
Citation: 926 F.2d 1539Docket: No. 89-6388
Court: Court of Appeals for the Tenth Circuit; February 28, 1991; Federal Appellate Court
Kenneth Franklin McEwen, representing the Estate of Lawrence Robert McEwen, appeals the district court's judgment favoring the City of Norman, Oklahoma, and Officer Jim Parks in a civil rights damage case. The claims involve alleged violations of the Fourth and Fourteenth Amendments, asserting that Officer Parks used deadly force while apprehending a misdemeanant and that the City failed to supervise Parks adequately, concealing and ratifying his actions. The complaint, filed under 42 U.S.C. § 1983, sought significant damages, including state claims. During the trial, the court denied Officer Parks' directed verdict motion concerning his liability for the collision between his patrol vehicle and McEwen's motorcycle, as well as the alleged excessive force in McEwen's arrest post-collision. However, the court granted the City of Norman's directed verdict on the excessive force claim but denied it on the roadblock and ramming issues related to the collision. The incident occurred on August 28, 1986, when Officer Mike Freeman attempted to stop McEwen's speeding motorcycle, which instead accelerated away. Officer Parks, hearing the pursuit dispatch, intervened but did not successfully block the motorcycle's path. McEwen lost control and collided with Parks' vehicle, resulting in his ejection from the motorcycle. The plaintiff alleges Parks then applied excessive force during the arrest, including threats and physical intimidation, despite McEwen not resisting. Defendants assert that Officer Parks encountered Lawrence McEwen lying face down in a ditch, where McEwen stood up on his hands and knees at Officer Parks' request to 'freeze'. Officer Parks did not draw his weapon, proceeded to handcuff McEwen despite his resistance, and called for an ambulance when McEwen expressed he was in severe pain. McEwen later died at the hospital. Following a nine-day trial, the jury found that the plaintiff did not prove essential elements of his 42 U.S.C. § 1983 civil rights claims of unreasonable seizure against Officer Parks or the City of Norman. A judgment was entered accordingly. The plaintiff subsequently filed a "Motion for Relief from Judgment," citing 'surprise and misconduct' due to discrepancies in witness testimonies, which the trial court treated as a Rule 60(b)(3) motion and denied in a detailed order. On appeal, the plaintiff raises several contentions: 1) the expert testimony of Samuel Chapman was inadmissible and prejudicial; 2) improper impeachment of witness Jamie Hall occurred; 3) the admission of McEwen's blood alcohol content was inappropriate; 4) defendants’ counsel were improperly allowed to examine witnesses and argue to the jury; 5) jury instructions were erroneous and prejudicial; 6) dramatizations of defendants’ evidence were improperly allowed; and 7) the cumulative errors necessitate a reversal. Specifically, the plaintiff challenges Professor Samuel G. Chapman's expert testimony regarding police compliance and procedures, arguing it was inadmissible. Chapman, an experienced political science professor and director of a law enforcement program, provided testimony based on his research and observations throughout the trial. Although the plaintiff sought to exclude Chapman's testimony through a Motion in Limine, the motion and supporting brief were not certified as part of the appellate record. The trial court allowed Chapman to testify after reviewing his deposition and without objection from the plaintiff. Counsel for the plaintiff raised a partial objection to Chapman’s testimony, arguing that the relevance of the police pursuit was not in dispute since the plaintiff did not seek damages related to it. The court overruled this objection, noting that the plaintiff had provided relevant testimony on the pursuit. After Chapman’s testimony, the judge instructed the jury that while other experts presented scientific opinions, Chapman addressed matters within common knowledge, which could influence the jury's understanding of reasonableness, excessive force, and related policies. The court emphasized that jurors should not relinquish their own judgment of the facts based on expert testimony. The plaintiff referenced the precedent set in *Palmerin v. City of Riverside*, where a detailed objection during a Motion in Limine preserved issues for appeal without needing further objection at trial. However, the court found that the plaintiff did not include the relevant Motion in Limine or supporting brief in the appeal record, thus lacking the necessary substance for review. The court declined to adopt the *Palmerin* rule and cited *Sil-Flo, Inc. v. SFHC, Inc.*, asserting that an objection made during jury instruction conferences is insufficient unless formally noted before the jury deliberates. Sil-Flo aligns with precedents that establish a party must object during trial to preserve issues for appeal if a motion in limine is overruled. Since the plaintiff did not object to Professor Chapman’s testimony at trial, the issue is not preserved for appeal. A party must make a specific, timely objection to allow the trial court to reconsider the motion in light of trial developments. Evidentiary rulings made with contemporaneous objections are typically upheld unless deemed an abuse of discretion. In this case, the only objection raised by the plaintiff was regarding the propriety of pursuing Chapman’s testimony, which the court did not abuse its discretion in admitting, particularly as the plaintiff had previously introduced related testimony. Without a contemporaneous objection, the court must assess whether admitting Chapman’s testimony constituted 'plain error' under Rule 103(a)(1)(d) of the Federal Rules of Evidence, which allows for recognition of plain errors that affect substantial rights, even if not raised at trial. The 'plain error' exception is limited to errors that impact the fairness and integrity of judicial proceedings. The court distinguished this case from past instances where expert testimony was improperly admitted, concluding that no such error occurred here, drawing parallels to Karns v. Emerson Elec. Co., where the admission of expert testimony was also upheld. Fed. R.Evid. 704(a) states that expert opinion testimony is permissible even if it addresses an ultimate issue for the trier of fact, but opinions that reference legal standards may be excluded due to potential jury confusion, unfair prejudice, or lack of assistance to the jury (Fed. R.Evid. 403, 702). The district court correctly excluded expert testimony labeling a product as "unreasonably dangerous," as such matters fall within the trial court's discretion, reviewed only for abuse. The court found that the challenged testimony did not aid the jury in decision-making, as the expert essentially indicated the desired outcome on key elements. However, the jury was not likely confused, as the expert provided ample reasoning for his opinions, allowing for independent evaluation. The jury was also instructed that they could disregard any expert opinion deemed unsound. In examining trial testimony, it was noted that expert opinions sometimes suggested specific outcomes to the jury, such as the lack of evidence for intentional roadblock establishment by police and attributing a motorcycle accident to "extraordinary disorientation" due to injury and alcohol. The expert also concurred with an administrative finding that no disciplinary action was warranted against Officer Parks based on witness credibility. Despite this, no objections were made to the expert's testimony, which appeared compliant under Rules 702 and 704. The trial court provided thorough instructions regarding the jury's role in assessing common knowledge and credibility, resulting in no plain error regarding the expert's testimony. Additionally, the plaintiff contended that improper impeachment occurred regarding witness Jamie Hall, who observed the motorcycle collision and reported seeing the motorcycle make a wide turn before crashing into a ditch. Hall provided testimony regarding an incident involving Lawrence McEwen and a motorcycle collision with a patrol vehicle. He observed McEwen retrieve the motorcycle from a ditch and ride it south when the police car, already positioned to collide, struck the motorcycle. Officer Parks exited the vehicle, brandished a gun at McEwen, and subsequently arrested him. Hall later felt compelled to provide a false name, David Fields, due to intimidation from Officer Parks, stemming from prior experiences. After giving a deposition, Hall was arrested by Officer Parks, who remarked on their prior interactions. During cross-examination, Hall admitted to having provided false identification that night and acknowledged prior aliases, as well as being underage and drinking at a nightclub. Defense counsel sought to question Hall about a traffic offense, which led to an objection based on potential prejudice, but the objection was overruled after a hearing determined the inquiry was permissible due to Hall's prior statements. Hall confirmed he did not provide his real name due to an outstanding bench warrant related to a DUI charge. He acknowledged another bench warrant had been issued for bogus check charges in the intervening years and admitted to using the alias Jamie Fields. The trial court instructed the jury that evidence of the bench warrants was relevant to understanding Hall's credibility. The plaintiff contested the propriety of questions regarding Hall's drug use and drinking habits during the cross-examination, but no objections were raised at the time. The court upheld the trial court's discretion in allowing this line of questioning, citing relevant legal precedents. The plaintiff invited cross-examination regarding Hall's use of an alias, his intimidation by Officer Parks, alcohol use, and fear of reprisals, implying that Officer Parks was targeting Hall due to his prior deposition testimony. Hall's alias and bench warrants were relevant to his credibility, and no objections were raised during cross-examination, limiting the court's ability to address these issues. The trial court provided a cautionary instruction clarifying that evidence about bench warrants was only to assess Hall’s credibility, ruling that the cross-examination did not constitute a 'plain error' affecting the plaintiff's rights. The plaintiff also sought to reverse the trial court's decision permitting Officer Robert W. Post to testify about Lawrence McEwen's post-mortem blood alcohol level of .11, arguing it was prejudicial and irrelevant. However, no pre-trial ruling on the plaintiff's Motion in Limine was found. Testimony from Dr. Chai S. Choy indicated that the legal limit for DUI in Oklahoma is .10, and he expressed uncertainty about the impact of a .11 level on driving ability. The plaintiff reiterated concerns about the prejudicial nature of alcohol mention and argued that any linkage to the collision was insufficient. The court acknowledged the plaintiff's timely objection and determined the probative value of the alcohol evidence outweighed its prejudicial impact, justifying its admission. The plaintiff's objection regarding the admissibility of Officer Post's testimony about Lawrence McEwen's blood alcohol level was overruled by the trial court. Officer Post, an accident reconstructionist, revealed he had training in alcohol influence testing and was identified as a qualified witness. The court noted the pre-trial order did not specify the testimony of deposed witnesses, leading to confusion. Despite the plaintiff's claim of surprise, the court found the blood alcohol evidence, which indicated a level of .11 (above the .10 DUI threshold), to be relevant in determining the cause of the collision. Officer Post testified that McEwen's alcohol consumption impaired his driving abilities, asserting it was a contributing factor to the accident. On appeal, the plaintiff contended that the evidence lacked competent medical support and was unfairly presented. However, it was noted that the plaintiff had previously deposed Officer Post and failed to inquire about alcohol's role in the incident, ultimately calling him as a witness at trial. The appellate court upheld the trial court's ruling, dismissing the surprise objection. The trial court determined that Lawrence McEwen's blood alcohol content of .11 was relevant evidence, with its probative value surpassing any potential unfair prejudice as per Rule 403, Fed. R. Evid. 28 U.S.C.A. Officer Post testified on how alcohol impairs a driver's judgment, control, and reaction time, aiding the jury in understanding the collision's cause. The district court acted within its discretion by admitting this testimony, as the probative value outweighed the risk of misleading the jury. The plaintiff contended that he was prejudiced by the allowance of both defendants' counsel to examine witnesses and argue to the jury, referencing his objection in Docket Item 100, which he failed to include in the appeal record. Consequently, the appellate court could only speculate on the plaintiff's claims, as he did not provide necessary documentation or trial transcripts to support his argument. The rules require that an appellant designates relevant portions of the record and objections for review, which the plaintiff neglected to do. Therefore, he could not demonstrate that the district court's decision to deny his motion to disqualify counsel constituted an abuse of discretion. Even if the issue had been preserved, no trial court error was established, as decisions on motions to disqualify counsel are reviewed for abuse of discretion, which was not found in this case. Plaintiff argues that the court's instructions regarding high-speed police chases and debris removal were prejudicial, as they addressed non-issues during the trial. The plaintiff did not contest the pursuit of Lawrence McEwen but challenged the use of a rolling roadblock. Testimony from Mrs. Cecilia McEwen, the decedent’s mother, revealed her belief that the police could have simply recorded her son’s license plate instead of pursuing him, especially since he committed only a misdemeanor. The trial court instructed the jury that law enforcement may pursue traffic offenders, which the plaintiff objected to on grounds that it was not relevant to the case, but the objection was overruled. The court found that the instructions, when viewed as a whole, accurately conveyed the applicable law. Additionally, the plaintiff contested an instruction about the obligation to remove hazardous substances from the roadway, claiming it was irrelevant and only served to enhance the officers' credibility. This argument was deemed meritless by the court. Sergeant Louis Schultz testified about debris at a collision scene, indicating that it was removed before subsequent photographs were taken by Sergeant Post. Sergeant Gerald Roy Moody confirmed he photographed the scene shortly after the accident when debris was still present, but it was later cleared. During cross-examination, the plaintiff's counsel sought to discredit Sergeant Post's earlier testimony, unaware that debris had been cleared before Post's photographs were taken. The plaintiff acknowledged that Post did not provide false testimony; he simply lacked knowledge of the debris removal timeline. The trial court's jury instruction regarding debris removal was deemed appropriate, as the photographs presented were devoid of debris, which the plaintiff's counsel used to argue discrepancies in the accident depiction. The plaintiff also contended that the trial court erred in allowing in-court "dramatizations" of evidence, specifically three brief demonstrations. One instance involved witness Jamie Hall's testimony about Officer Parks confronting Lawrence McEwen with a drawn gun. Following Hall's acknowledgment of his prior deposition statement, Officer Parks' counsel sought to demonstrate Parks' left-handedness to counter Hall's claims, which the court permitted outside the jury's presence. Counsel for the plaintiff objected to the timing of Officer Parks' testimony and the court allowed a reenactment of the handcuffing process. Witnesses Terry Adams and Valerie Johnson testified that Officer Parks used excessive force when handling Lawrence McEwen post-collision, including drawing his gun and repeatedly flipping McEwen onto his back and stomach while handcuffing him. During cross-examination, defense counsel demonstrated McEwen's position, which was contested by Johnson, leading the court to conclude that this demonstration did not result in prejudicial error. A further demonstration during Officer Parks' examination involved him handcuffing his counsel to illustrate the handcuffing process, despite the plaintiff's objections regarding the reliability of such staged reenactments. The trial court deemed the demonstration essential for understanding the reasonableness of Officer Parks' actions after the incident, emphasizing the importance of demonstrating the officer's intentions. Demonstrations conducted during the trial served as a defensive measure to evaluate the knowledge and truthfulness of the plaintiffs' witnesses on key issues before the jury, functioning as part of the defendants' cross-examination. Under Federal Rule of Evidence 611, the court has the authority to control the process of interrogating witnesses to effectively ascertain the truth. Cross-examination is confined to the direct subject matter and issues affecting witness credibility. The district court has broad discretion in determining the relevance of evidence, and appellate courts will not overturn these rulings unless there is an abuse of discretion, as established in United States v. Alexander and Graham v. Wyeth Laboratories. The district court acted within its discretion by allowing these limited demonstrations. Additionally, the plaintiff's argument for reversal based on accumulated errors was rejected after careful examination of the trial court's evidentiary rulings, which were found to be sound. The appellate court applies an "abuse of discretion" standard, affirming the lower court’s judgment unless a clear error is evident. The court ultimately affirmed the district court's decisions.