Unpublished Disposition, 865 F.2d 264 (9th Cir. 1983)

MEMORANDUM^* 

Edward Bruce Osborne ("Bruce Osborne" or "Osborne") appeals various rulings of the trial court in this civil rights suit, following a jury verdict for the defendants. He also appeals the directed verdict for defendant Teresi. Osborne seeks damages under 42 U.S.C. § 1983 and various pendent state causes of action, for false arrest and assault and battery by Long Beach police officers.

FACTS

On January 3, 1983, at 11:00 p.m., plaintiff Bruce Osborne was arrested along with two companions--his brother, Brent Osborne and Antonio Johnson--for being under the influence of a controlled substance, "PCP," in violation of California Health and Safety Code Sec. 11550(b). Officers Salvatore LaDuca and Cynthia Orel were responding to an unrelated, minor complaint by a resident of 1206 Walnut Street. LaDuca testified that he spotted Bruce Osborne staggering along the sidewalk and that, as he approached Osborne, he detected a smell of ether, which is associated with ingestion of PCP. Suspecting Osborne of possible drug use, LaDuca detained Osborne, telling him to "wait there" as LaDuca confronted Brent Osborne and Antonio Johnson, who had just arrived on the scene. Brent and Antonio also smelled of ether, and as LaDuca began to administer field sobriety tests to these men, Bruce Osborne walked away. LaDuca radioed for assistance, indicating that a suspect had fled the scene. Within several minutes, Osborne was detained by Officers Meyers and Trott. These officers administered field sobriety tests to Osborne and held him until LaDuca arrived and arrested him.

Bruce and Brent Osborne and Antonio Johnson were taken to the station, where they were given additional sobriety tests, which they failed, and were booked for being under the influence. According to testimony from LaDuca and Orel, Bruce Osborne faked a fainting spell, falling forward on his face while his hands were handcuffed behind him. According to Orel, no more than "one or two" drops of blood came from Osborne's nose. Osborne spent the next 86 hours in jail. Eventually, charges against him were dropped when, according to defendants' brief, the California legislature inadvertently decriminalized being under the influence of PCP.

Osborne gives a different version of the facts, although portions of Osborne's account were excluded from the trial as a result of the trial court's evidentiary rulings and counsel's tactical decisions. According to Osborne, he had gotten out of Johnson's car while Johnson and Brent Osborne were parking. When he saw LaDuca's patrol car pull up, he began to walk away and had left the block when LaDuca confronted Johnson and Brent Osborne. LaDuca allegedly arrested Johnson and Brent, and put out the radio call on Bruce.

Osborne testified that he never fell down, but that his nose was bloodied at the police station when he was struck twice by LaDuca. According to Osborne, he was standing next to his brother Brent, both men handcuffed behind their backs, in the narcotics squad room. LaDuca told Bruce Osborne to stop staring at him. When Osborne did not comply, LaDuca slapped him across the face with his open hand. Osborne continued staring and LaDuca slapped him again. Co-defendants Orel and Chad Teresi allegedly witnessed the slapping but took no action to intercede or report the incident. Osborne's nose bled, and he tried to stop the bleeding on his brother's T-shirt. According to Osborne, LaDuca had some animus against him because the Osborne family had a civil rights suit pending against LaDuca's long-time partner, John Abrego.

Osborne filed a complaint in district court alleging both the slapping and unlawful arrest in violation of his civil rights. Osborne also claimed pendent state law causes of actions for emotional distress and false imprisonment.

After a two-day trial the jury returned a verdict of no liability against the individual defendants.¹ 

DISCUSSION

Osborne urges reversal and remand for a new trial based on various evidentiary rulings made by the district court. To justify reversal, Osborne must show that such error affected his "substantial rights." Heath v. Cast, 813 F.2d 254, 257 (9th Cir. 1987); Fed. R. Civ. P. 61. If the district court committed more than one such error, this court may consider their cumulative effect on the appellant's substantial rights. See United States v. Wallace, 848 F.2d 1464, 1475-76 (9th Cir. 1988).

The district court excluded the three arrest reports prepared by Officer LaDuca for his arrest of Antonio Johnson, Brent Osborne and plaintiff Bruce Osborne. Osborne sought to have these admitted as party admissions under Fed.R.Evid. 801(d) (2), as relevant to his claim of false arrest. The district court ruled that the arrest reports were irrelevant and more prejudicial than probative, and that they would be admissible only as impeachment if Officer LaDuca gave testimony inconsistent with them. Subsequently, the court ruled that LaDuca's testimony was not inconsistent with the reports, and the court excluded them. The district court's rulings are reviewed for abuse of discretion. Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980).

Rule 403 permits the trial court to exclude concededly admissible evidence only when unfair prejudice substantially outweighs its probative value.²  The federal rules favor admission of evidence over exclusion if the evidence has any probative value. See Fed.R.Evid. 402. Because it permits a trial court to exclude concededly probative evidence, Rule 403 is an extraordinary remedy which should be used sparingly. Because substantial deference must be given to the district court's evidentiary rulings, remand or reversal is not appropriate simply because we disagree with its weighing of prejudice against probative value. Here, however, the district court did not understand, or misunderstood, what the discrepancies were between the arrest reports and trial testimony. Accordingly it did not understand their relevance. Thus the district court did not have a proper basis for making the probative/prejudicial analysis, and remand is required for the district court to undertake that analysis.

At trial, LaDuca testified that he saw Bruce Osborne staggering and appearing dazed. Brent Osborne and Antonio Johnson were standing about 20 feet away. He smelled ether on Bruce Osborne and "told him to stay where he was." When LaDuca then turned his attention to Brent and Johnson, Bruce Osborne walked away. LaDuca then radioed that Bruce Osborne was under the influence of PCP and had gotten away. It was only after Bruce was detained by Officers Meyers and Trott, at 11th and Walnut, that LaDuca gave Osborne field sobriety tests and arrested him.

The arrest reports present a different story. According to the Johnson report, "After interviewing and placing both co-def [endan]ts [i.e., Brent and Bruce Osborne] in custody, Off [icer] LaDuca then spoke with the def [endan]t [Johnson]," gave Johnson field sobriety tests, and arrested him. This report conflicts with LaDuca's testimony. LaDuca testified that the phrase "in custody" means "under arrest." Thus, the Johnson report suggests that LaDuca had arrested Bruce Osborne before interviewing, testing and arresting Johnson. However, LaDuca testified that he had not arrested Bruce Osborne, but only Terry -stopped him ("Wait right there"), while he interviewed and arrested Brent Osborne and Johnson. The arrest reports for Bruce and Brent Osborne are vague as to the precise sequence of events, merely stating that each suspect was in turn separated from the other two and examined for PCP. Significantly, none of the three reports indicates that Bruce Osborne walked away and had to be detained by other officers. At his deposition, LaDuca attempted to explain this with a somewhat implausible story regarding a "missing paragraph" and a supplemental report that was destroyed.

Osborne argues that the version given in the arrest reports was fabricated to cover up the fact that Bruce Osborne was arrested without probable cause. According to Osborne, LaDuca's trial testimony, which is closer to Osborne's version of the facts surrounding the arrest than are the arrest reports, was a recent fabrication designed to mesh with the expected testimony of plaintiff's witnesses from the neighborhood that LaDuca arrested only two men at 1206 Walnut Street. Thus, according to Osborne, the arrest reports are relevant on the arrest issue and also admissible to impeach LaDuca's credibility.

The district court understandably failed to see the relevance of the arrest reports to the propriety of the arrest. Because Osborne admittedly smelled of ether (he claims that the smell came from his recent use of an ether-based engine-starting fluid on his car), any officer encountering him would probably have had reasonable suspicion to make an investigatory stop and administer field sobriety tests, which all three suspects failed.

Nevertheless, the court's conclusion that LaDuca's testimony was consistent with the arrest reports reflects a clearly erroneous assessment of the evidence. This erroneous assessment also appeared to inform the court's conclusory statement that the reports would be more prejudicial than probative. The arrest reports tend to show that a witness was fabricating his account of one of the central factual issues in the case. The jury, as "weigher of credibility," is "entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony." United States v. Abel, 469 U.S. 45, 52 (1984). Such impeachment evidence is particularly important where, as here, the case turned upon the plaintiff's word against the defendant's. Accordingly, remand is necessary to enable the district court in light of the relevance of the evidence to reweigh its possible prejudice against its probative value under Rule 403.

II. Evidence regarding the "Code of Silence"

The district court excluded testimony of Charles Ussery, who had recently retired as police chief of the Long Beach Police Department, from whom the plaintiff intended to elicit testimony regarding a "code of silence" among the Long Beach police. According to plaintiff's offer of proof, Chief Ussery was prepared to testify that in his 27 years with LBPD, he had heard of only one instance of an officer "blowing the whistle" on another's unnecessary use of force; and that peer pressure, in the form of potential ostracism and refusal to assist, worked against an officer breaking this code of silence. The district court ruled that this line of inquiry was irrelevant and, in any case, more prejudicial than probative. See Fed.R.Evid. 403. The court also prohibited inquiry into this subject with respect to the testimony of Officer Orel.

Osborne argues that the excluded evidence is relevant to show bias. In United States v. Abel, 469 U.S. 45 (1984), the government sought to discredit the testimony of a key defense witness, Mills, by presenting testimony that Mills, along with the defendant Abel, was a member of a secret prison gang that required its members always to deny the existence of the gang and to commit perjury, murder and theft on each member's behalf. The district court allowed the testimony, and Abel was convicted. The court of appeals reversed the conviction, reasoning that it was impermissible for the prosecution to suggest a witness might be lying by virtue of a group tenet. The Supreme Court reversed, holding that the evidence of gang membership was sufficiently probative of Mills' possible bias toward the defendant to warrant its admission. According to the Court:

A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony.

469 U.S. at 51.

Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony.

Id. at 52.

Here, the district court concluded that "code of silence" testimony was irrelevant because it did not tend to show whether the particular officer on the witness stand was lying. This conclusion is plainly insupportable in light of Abel. "A witness' and a party's common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias ... [T]he jury may be permitted to draw an inference of subscription to the tenets of the organization from membership alone ..." Id. at 52-53. Defendants try to distinguish Abel on the ground that the prison gang had an enunciated tenet of lying to protect one another, whereas there is no evidence that the alleged LBPD code of silence calls for perjury. While it is true that the tenet in Abel appears more extreme, this argument goes to the weight rather than admissibility of the evidence. The plaintiff's contention that the members of the LBPD had a code of behavior under which they would not testify against one another for misconduct comes within Abel 's holding on relevance.

Even though the "code of silence" evidence is relevant to show bias, the district court has "wide discretion" to limit such evidence by balancing its probativeness against its prejudicial effect under Rule 403. Abel, 469 U.S. at 54; Lewy v. So. Pac. Transp. Co., 799 F.2d 1281, 1298 (9th Cir. 1986). The district court stated, without explanation, that the testimony would also be more prejudicial than probative.

To support the district court's ruling, the defendants cite United States v. Dickens, 775 F.2d 1056, 1059 (9th Cir. 1985). In Dickens, this court reversed a defendant's conviction after a trial in which the prosecutor extensively questioned the defendant regarding his connection to an infamous drug ring. The government argued on appeal that the questioning was admissible as impeachment under Abel. In rejecting that argument, the court stated that "the defendant's bias in his own behalf was self-evident", and that, furthermore, the improper questioning was not intended to show bias and failed to "demonstrate any motive for lying or indicate any bias in connection with this trial." 775 F.2d at 1059. Instead, the questioning was intended to impeach the defendant's credibility in the manner of prior bad conduct tending to undermine his character for truthfulness under Fed.R.Evid. 608(b). See 775 F.2d at 1058. In addition, the cross-examination was highly prejudicial because it tended to support an improper inference of guilt by association--in particular, it showed defendant's membership in a gang noted for crimes of a similar nature to that with which defendant was charged. Id. at 1057-58.

Dickens is inapposite to this case. First, unlike Dickens, the proposed evidence does tend to show a motive for bias in this trial. Second, the rights of the criminally accused are not implicated: Dickens 's rationale that "a defendant's guilt may not be proven by associating him with unsavory characters" carries less force in a civil suit. Third, unlike Dickens, the "code of silence" does not carry the prejudicial implications associated with criminal gangs; nor is any specific wrongdoing imputed by association to the particular witness in this case.

Dickens is pertinent to this case only insofar as it indicates that the witness's status as a party is a factor for determining the probative value of bias evidence. Normally, parties can be expected to be biased. However, in a civil rights suit alleging police misconduct and cover-up, there are factors that favor admission of the evidence. Here, the defendants are police officers: in the minds of the jurors, the officers' personal stake as defendants may be offset somewhat by their status as public servants charged with enforcing the law. It is counterintuitive to suspect officers holding such public trust of collaborating to obstruct justice. On the other hand, the plaintiff in this type of suit has typically been arrested at least once, and is often a member of a racial minority. Thus, the jurors in this type of case can be expected to enter the courtroom with a natural bias in favor of the truthfulness of the defendants and against that of the plaintiff. See Project, Suing the Police in Federal Court, 88 Yale L.J. 781, 794-95, 800-02 (1979).

In light of the district court's failure to recognize the relevance of this evidence, it was disabled from determining its probative value and its importance to the plaintiffs' case. See Lewy, 799 F.2d at 1298 (this court finds no abuse of discretion " [a]s long as a jury is provided 'sufficient information [overall] to appraise the bias and motives of [a] witness' "). We remand for the district court to exercise its discretion in light of our determination that this evidence is relevant.

The district court, at the close of evidence, granted defendant Teresi's motion for a directed verdict pursuant to Fed. R. Civ. P. 50(a). This court reviews de novo the district court's ruling on a motion for directed verdict. See Othman v. Globe Indemnity Co., 759 F.2d 1458, 1463 (9th Cir. 1985). A directed verdict is proper if the evidence, when viewed in its entirety in the light most favorable to the nonmoving party, permits only one reasonable conclusion. Id.

Osborne's theory of liability against Teresi is that Teresi witnessed the slapping incident, but failed to intercede or to report it, participating instead in covering up the incident. The district court found that no reasonable jury could find Teresi liable because Teresi testified that he was in and out of the room for at least some of the time when the slapping incident allegedly occurred. The court also noted that Teresi was working at his desk while he was in the main narcotics room where the incident allegedly took place, and that it was a large room. However, Osborne testified that Teresi was in the room at his desk, about nine feet away, when LaDuca shouted at Osborne and slapped him. The jury was entitled reasonably to believe Osborne's account, under which Teresi could have been liable. Accordingly, it was improper for the district court to resolve this factual dispute.

Osborne argues that the district court erred by refusing to allow videotaped witness interviews, made at the arrest scene shortly after the incident, to be played for the jury. Osborne offers no support for the argument that these should have been admitted, other than Fed.R.Evid. 801(d) (1). Rule 801(d) (1) (B) permits admission of an out-of-court statement if it is "consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Osborne does not argue that any such charge was made against any of the declarants. The district court did not abuse its discretion in excluding the videotapes. Breneman v. Kennecott Corp., 799 F.2d 470, 472-73 (9th Cir. 1986).

Bruce Osborne testified that LaDuca slapped him as he stood next to his brother, Brent. However, Brent Osborne was incarcerated in federal prison at the time of trial and was not called to testify on his brother's behalf. Counsel for the defendants knew Brent was incarcerated. In his closing argument, defendants' counsel argued that the absence of Brent as a witness showed that Brent probably would not corroborate Bruce Osborne's account, supporting the view the slapping did not in fact occur. Plaintiff's counsel objected to this argument--the so-called "missing witness inference"--but the court overruled the objection and subsequently gave the following standard "missing witness instruction":

If a party fails to call a person who possesses knowledge about the facts in issue, and who is reasonably available to him, and who is not equally available to the other party, then you may infer that the testimony of that witness is unfavorable to the party who could have called him and did not.

See Devitt & Blackmar, Federal Jury Practice & Instruction Sec. 72.16.

Osborne argues that the district court erred both in failing to remedy what Osborne contends was an unfair and prejudicial use of the missing witness inference, and in giving the missing witness instruction. According to Osborne, defense counsel knew that Brent Osborne was in prison and, furthermore, declined to participate in a telephone deposition of Brent Osborne when requested to do so by plaintiff's counsel.

The district court's decision whether to give the "missing witness instruction" is reviewed for an abuse of discretion. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 212 (9th Cir. 1988). A missing witness instruction is proper only if "from all the facts and circumstances an inference of unfavorable testimony from an absent witness is a natural and reasonable one." United States v. Long, 533 F.2d 505, 509 (9th Cir. 1976).

Although no inference may be drawn where the potential witness is "equally available" to both parties, the determination of equal availability "depends upon all the facts and circumstances bearing upon the witness's relation to the parties, and not merely upon his physical presence at trial or accessibility for service of a subpoena." Kean v. CIR, 469 F.2d 1183, 1188 (9th Cir. 1972). Thus, a witness is not "equally available" if he is favorably disposed towards one party. Id. Here, Brent Osborne, the plaintiff's brother arrested together with him, can be supposed to have been favorably disposed toward Bruce Osborne.

It is less clear whether the other criteria for the missing witness inference have been met in this case. To justify the inference, the uncalled witness must be able to offer testimony that is not cumulative or inferior to evidence already presented. Kean, 469 F.2d at 1188. As pointed out in the plaintiff's rebuttal argument at trial, Brent Osborne would have given the same account as Bruce did. Arguably, testimony that would aid in resolving a conflict in testimony should not be regarded as cumulative in this context. See McCormick on Evidence Sec. 272, at 805 n. 12 (3rd ed. 1984). However, Brent's bias would have been apparent, and his testimony might have been expected to add little weight to Bruce's testimony.

Osborne appears to argue that because Brent was in prison, the natural inference to be drawn from his absence is that he was not reasonably available to testify, not that his testimony would be unfavorable.³  However, Osborne's counsel does not seem to have made an adequate record on this subject. Although counsel pointed to encountering a good deal of difficulty, inconvenience and potential expense in securing Brent's availability for trial, counsel does not go so far as to claim that Brent was unavailable. Nor does counsel appear to have attempted to serve a subpoena or writ of habeas corpus ad testificandum, or to have alerted the court in advance to any difficulties in obtaining Brent's appearance. In the absence of a stronger showing of unavailability, Brent's absence may indeed give rise to a natural inference that his testimony would have been unfavorable to the plaintiff. We find no abuse of discretion on the part of the district court in giving the instruction or allowing defense counsel to argue the inference.

Osborne's counsel also argues that defendant's counsel declined his offer to conduct a telephone deposition of Brent Osborne. Presumably, the purpose of the inference is to remove any incentive for a party to "hide" unfavorable witnesses, by allowing the jury to presume the worst when a witness is not produced. However, with civil discovery, such "hiding" is less practicable, as the opposing party can get an opposing witness's testimony in advance. If Brent had been deposed, it could have been ascertained whether his testimony would be favorable or unfavorable to Bruce. If it were favorable, plaintiff's counsel should have been allowed to weight the practical and tactical considerations in deciding whether to produce him without fear that the inference would be employed. If unfavorable, defense counsel could have called him. Here, the inference can work as an incentive against defendant's counsel's use of discovery: it could allow defendants to benefit from the mere possibility that Brent's testimony would have been unfavorable, without running the risk of finding that his testimony would, in fact, have been favorable. This court has disapproved such use of the inference where it would promote "gamesmanship" rather than act as a stimulus to develop evidence. See United States v. Bramble, 680 F.2d 590, 592 (9th Cir. 1982) (missing witness instruction and inference inappropriate where defense counsel, who had interviewed government informant, sought to argue inference to obtain "benefit" of his testimony "without the risk of cross examination"). In light of these principles, we might have disapproved defense counsel's argument of the inference, had plaintiff's counsel made a sufficient showing of diligent efforts to depose Brent Osborne. However, on this record it appears that counsel's offer to take the deposition came entirely at the last minute.

The Ninth Circuit has not required that counsel intending to argue the missing witness inference must obtain an advance ruling from the trial court. Bramble, 680 F.2d at 592. Thus, advance notice by counsel that he would argue the inference, while perhaps advisable, was not required.

The district court declined to instruct the jury on punitive damages, although requested to do so by the plaintiff. Failure to submit a proper jury instruction is a question of law reviewable de novo. 999 v. CIT Corp., 776 F.2d 866, 871 (9th Cir. 1985). A party is entitled to jury instructions on all theories supported by the evidence and applicable law. Los Angeles Memorial Coliseum Commission v. NFL, 726 F.2d 1381, 1398 (9th Cir. 1984).

Punitive damages are available in a Sec. 1983 action, as they are under state law tort claims, where the conduct in question shows "reckless or callous disregard for the plaintiff's federal rights, as well as intentional violations of federal law ..." Smith v. Wade, 461 U.S. 30, 51 (1983). The evidence that Officer LaDuca intentionally struck Osborne while Teresi and Orel looked on, clearly supports a punitive damage instruction under this standard.

Both parties sought to admit evidence of past arrests. The defendants sought to introduce all seven of Bruce Osborne's prior arrests, including two misdemeanor convictions, one of which was over ten years old. The plaintiff sought to introduce evidence that: (1) LaDuca and his former partner, John Abrego, previously arrested Bruce Osborne for being under the influence of PCP and that this arrest was rejected by the prosecutor for lack of probable cause; (2) Abrego, LaDuca's former partner, had been sued by Brent Osborne for arresting Brent for allegedly burglarizing what turned out to be the Osborne family home; (3) the charges against Bruce resulting from the arrest that is the subject matter of this case were dismissed, creating a favorable inference toward the plaintiff's contentions of false arrest. The district court exercised its discretion by ruling that any evidence introduced by Osborne regarding the prior false arrests and reasons for LaDuca's animus toward Osborne would open the door to Osborne's criminal history: "It is either all or none."

Osborne argues that the court's ruling created a "Hobson's choice" that effectively excluded relevant evidence tending to show LaDuca's animus and past misconduct toward Osborne. We find no abuse of discretion. We have held that a plaintiff's prior arrests are relevant to show bias in a civil rights suit for wrongful arrest. Heath v. Cast, 813 F.2d 254, 259 (9th Cir. 1987). If Osborne had introduced evidence of LaDuca's animus against him, it would not have been improper to allow the defendants to adduce evidence to show Osborne's bias against the police. We do not agree that Osborne's "valid" arrests would have been more prejudicial than probative had Osborne presented evidence of LaDuca's motive for arresting or striking him.

Osborne argues that this court should order the case reassigned to a new judge on remand, because the district judge (Chief Judge Real), failed to follow the local rules in reassigning the case to himself. We find no authority to support the granting of Osborne's request.

CONCLUSION

We conclude that the district court, by failing to recognize the relevance of the arrest reports and the "code of silence" evidence to the credibility terminations to be made by the jury concerning the testimony of Osborne and LaDuca, did not have a proper foundation for weighing the probative/prejudice values of the evidence. We remand to the district court to determine two issues: (1) whether under Rule 403, in light of our determination as to relevance, the evidence should have been admitted, and (2) if the district court determines that the evidence should have been admitted, whether failure to admit it at trial was prejudicial error, see United States v. Wallace, 848 F.2d at 1475-76 (where criminal trial turns on credibility of witnesses, errors which go to credibility are particularly troubling). If the second question is answered in the affirmative, Osborne is entitled to a new trial against defendants LaDuca, Orel and Teresi.

We REMAND.