GINA PLACIDO V JAMES RAMBERGER
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STATE OF MICHIGAN
COURT OF APPEALS
GINA PLACIDO,
UNPUBLISHED
August 10, 2001
Plaintiff-Appellant,
V
No. 221507
Wayne Circuit Court
LC No. 97-741294-CZ
JAMES RAMBERGER,
Defendant-Appellee,
and
HARPER WOODS POLICE DEPARTMENT,
Defendant.
Before: Jansen, P.J., and Collins and Cooper, JJ.
PER CURIAM.
This appeal involves plaintiff’s claims against defendant-appellee, a police officer with
the Harper Woods Police Department, for assault and battery, violation of her civil rights under
42 USC 1983, and gross negligence. A judgment of no cause of action was entered by the trial
court following a jury’s findings, by special verdict, that defendant-appellee did not assault or
batter plaintiff. The jury also found that there was no infringement of plaintiff’s civil rights or
that defendant’s treatment of plaintiff amounted to gross negligence. Plaintiff appeals as of right.
We affirm.
Plaintiff first asserts that defendant-appellee introduced medical records from Bon
Secours Hospital and St. John’s Hospital on her drug abuse history. However, we find no factual
basis in the record for this assertion and do not consider this claimed evidence. A party may not
leave it to this Court to search for a factual basis to sustain or reject a position. Great Lakes Div
of Nat’l Steel Corp v City of Ecorse, 227 Mich App 379, 424; 576 NW2d 667 (1998).
We have considered plaintiff’s evidentiary claim in the context of the trial court’s ruling
on the videotape deposition of Dr. Fanny dela Cruz, which was introduced by plaintiff at trial.
However, we are not persuaded that the trial court’s ruling to allow evidence of the crossexamination conducted by defendant-appellee’s attorney regarding plaintiff’s prior drug use was
an abuse of discretion. MRE 611(b); Wischmeyer v Schanz, 449 Mich 469, 474; 536 NW2d 760
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(1995); Kalamazoo Oil Co v Boerman, 242 Mich App 75, 78; 618 NW2d 66 (2000). Rather, the
cross-examination was relevant to plaintiff’s damages claim. MRE 401; People v Brooks, 453
Mich 511, 517-518; 557 NW2d 106 (1996). The doctor testified that plaintiff’s prior drug use
would have a significant effect on the types of procedures that could be performed on the
plaintiff during the proposed surgery. Further, it was plaintiff’s attorney who violated the trial
court’s instruction not to mention plaintiff’s prior drug use during the parties’ opening statement
by declaring in his opening statement that the jury would hear evidence regarding plaintiff’s past
problems with drugs during the course of the trial.
We also reject plaintiff’s claim that the evidence should have been excluded under MRE
403 on the basis of unfair prejudice. People v Mills, 450 Mich 61, 75-76; 537 NW2d 909 (1995),
mod on other grounds 450 Mich 1212 (1995). “An abuse of discretion is found only if an
unprejudiced person, considering the facts on which the trial court acted, would say there is no
justification or excuse for the ruling made.” Roulston v Tendercare, Inc, 239 Mich App 270,
282; 608 NW2d 525 (2000). Any perceived prejudice in the case at bar could have been cured by
requesting a limiting instruction. MRE 105; see also Lopez v General Motors Corp, 224 Mich
App 618, 635; 569 NW2d 861 (1997).
Next, concerning plaintiff’s challenge to evidence on her marijuana possession, we find
that plaintiff’s failure to brief the specific trial evidence that she claims should have been
excluded precludes appellate review. Great Lakes, supra at 424. To the extent that plaintiff’s
claim may be based on the booking officer’s testimony that marijuana was found in her purse
during the booking process, plaintiff has not established a basis for relief.
In this regard, we note that the trial court’s ruling denying plaintiff’s motion in limine,
and allowing evidence on plaintiff’s marijuana possession for purposes of impeachment, is
somewhat unclear standing alone. However, immediately after this ruling, the trial court was
called upon to rule on whether other evidence of plaintiff’s conduct; namely, her assault of the
store manager before defendant-appellee’s arrival, could be admitted. The trial court found,
within this context, that evidence of plaintiff’s conduct would be admissible because it was
probative of the defense that plaintiff resisted arrest and was part of the incident that gave rise to
the charges against defendant. We conclude that the trial court’s “impeachment” ruling, while
unclear, does not warrant relief because there was in fact a legitimate basis for the evidence.
MRE 103(a); MCR 2.613(A).
Next, plaintiff claims that evidence of her “conviction” for assault and battery was
improperly admitted. We find plaintiff’s reliance on MRE 609 misplaced, given her failure to
show that evidence on a conviction for assault and battery was offered by defendant-appellee or
admitted by the trial court to attack her general credibility. See People v Douglas Taylor, 422
Mich 407, 414; 373 NW2d 579 (1985).
Plaintiff also challenges the scope of cross-examination allowed by the trial court of
witness Jeffrey Curle concerning his prior arrests and an investigation conducted by the Harper
Woods Police Department where defendant-appellee was employed. Specifically, plaintiff
alleges that this testimony was improperly used to impeach Mr. Curle. However, plaintiff has
failed to show that the trial court’s ruling was an abuse of discretion. MRE 611(b); Wischmeyer,
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supra at 474. Prior arrests used to bring out a witness’ bias are admissible. People v Layher, ___
Mich ___; ___ NW2d ___ (Docket No. 116315, issued 3/7/2001), slip op at 2, 9. The “interest
or bias of a witnesses or his relationship toward the parties to an action is a proper factor to
consider on the issue of credibility.” People v Johnson, 174 Mich App 108, 112; 435 NW2d 465
(1989). Nonetheless, we believe that any error would have been harmless because the testimony
concerning Mr. Curle’s prior arrests and investigation neither prejudiced plaintiff or denied her
substantial justice. MRE 103(a); MCR 2.613(A); Merrow v Bofferding, 458 Mich 617, 634;
581 NW2d 296 (1998).
Plaintiff next questions the admissibility of testimony by two of defendant-appellee’s
fellow police officers. First, we find plaintiff’s reliance on the trial court’s earlier ruling
concerning her motion in limine on expert testimony misplaced for the purpose of challenging
testimony of Sergeant Miglio and Lieutenant Manor. The record reflects that the motion in
limine pertained solely to a proposed defense expert, John Israel, who did not testify at trial.
Furthermore, there is no merit to plaintiff’s claim that Sergeant Miglio’s testimony was
lay opinion testimony in conflict with MRE 701. Plaintiff’s brief focuses on the scope of the
testimony regarding the proper use of force during an arrest. Plaintiff claims that such opinion
testimony was inappropriate because the sole issue was the intentional banging of petitioner’s
head against the side of the car. However, plaintiff’s three counts plainly go beyond the issue of
whether plaintiff’s nose was intentionally broken and include the issue of whether excessive
force was used. MRE 701 provides that:
If the witness is not testifying as an expert, the witness' testimony in the
form of opinions or inferences is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness' testimony or the determination of a fact in issue.
Sergeant Miglio testified that he did not see defendant harm anyone during the situation at the
Farmer Jack’s store. We find that this testimony was based on Sergeant Miglio’s perceptions and
was helpful to a clearer understanding of his testimony or the determination of an issue of fact.
See Richardson v Ryder Truck Rental, Inc, 213 Mich App 447, 455-456; 540 NW2d 696 (1995).
We further disagree that the admission of Lieutenant Manor’s testimony concerning the
results of his investigation of plaintiff’s citizen complaint was reversible error. Even if the
results of his investigation were inadmissible as opinion testimony, reversal is not warranted.
Giving due consideration to the entire record, including the fact that plaintiff herself introduced
evidence regarding her citizen’s complaint, we hold that plaintiff’s substantial rights were not
affected by the cited testimony. MRE 103(a). Furthermore, substantial justice does not mandate
our reversal of this decision. MCR 2.613(A); Krohn v Sedgwick James of Michigan, Inc, 244
Mich App 289, 295; 624 NW2d 212 (2001).
Finally, plaintiff challenges the admissibility of the videotape of her booking at the police
station. We conclude that plaintiff has not shown that the trial court abused its discretion in
admitting the videotape over her objection that it lacked relevancy. MRE 401; Kalamazoo Oil
Co, supra at 78. Indeed, the tape was relevant because it showed her condition at the time of
arrest. Further, plaintiff failed to preserve her additional claim for appellate review, that the
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videotape should have been excluded under MRE 403, by making an objection on that ground
before the trial court. In re Weiss, 224 Mich App 37, 39; 568 NW2d 336 (1997).
Affirmed.
/s/ Kathleen Jansen
/s/ Jeffrey G. Collins
/s/ Jessica R. Cooper
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