Unpublished Disposition, 872 F.2d 428 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 428 (9th Cir. 1989)

Donald E. KNUDSEN, Plaintiff-Appellant,v.J. WELSH and Curry County, a political subdivision of theState of Oregon, Defendants-Appellees

No. 88-3645.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 1989.Decided March 10, 1989.

Before CANBY, DAVID R. THOMPSON and LEAVY, Circuit Judge.


MEMORANDUM* 

Donald Knudsen appeals the district court's denial of his motion for a mistrial. Knudsen brought this action pursuant to 42 U.S.C. § 1983 to recover damages for an alleged illegal detention and the use of excessive force. Pendent state claims included false imprisonment and outrageous conduct. A jury trial was held before a United States magistrate with the consent of both parties. Before jury deliberations, Knudsen sought a mistrial on the basis of the admission of allegedly inadmissible and clearly prejudicial evidence. We review the magistrate's denial of the motion for a mistrial only for an abuse of discretion. United States v. Smith, 790 F.2d 789, 795 (9th Cir. 1986). See also Maddox v. City of Los Angeles, 792 F.2d 1408, 1412 (9th Cir. 1986) (rulings on admissibility of evidence reviewed for abuse of discretion). Because we do not have "a definite and firm conviction that the court below committed an error," id., we affirm.1 

Knudsen sought to recover for "extreme and severe mental distress, terror and humiliation." When damages are sought in a Section 1983 action involving false imprisonment, "the fact of prior imprisonment is a consideration to the extent of mental suffering occasioned by the wrongful confinement." Bryan v. Jones, 519 F.2d 44, 46 (5th Cir. 1975), rev'd on other grounds on rehearing, 530 F.2d 1210 (1976) (damages issue unaffected by holding on rehearing). Similarly, in a case involving a Section 1983 claim for excessive force used to arrest, this circuit held that the trial judge did not abuse his discretion by admitting evidence proffered by the defendant of the plaintiff's "subsequent encounters" with the police and "difficulties in school," when the jury was instructed to limit its consideration of that evidence to the issue of damages. Peraza v. Delameter, 722 F.2d 1455, 1457 (9th Cir. 1984) (emphasis added).2 

The evidence of Knudsen's former arrests and/or contacts with the police introduced in this case was at least as relevant to the issue of damages as the evidence introduced in Peraza. The transcript of Knudsen's testimony indicates that the magistrate presented a limiting instruction to the jury before the defense began cross-examination, stating that "the questions and answers [with regard to prior occasions of confinement] are only relevant insofar as they may bear on the issue of damages." The defense then questioned Knudsen about numerous arrests and, when and only when Knudsen positively recalled a particular arrest, followed up with a question regarding the length of custody or confinement. This evidence was certainly relevant to the issue of damages.3 

We also note, after carefully reviewing the transcript of Knudsen's testimony, that his counsel did not object to the line of questioning regarding prior arrests or police contacts (or make any other objection) until some 14 alleged arrests were already discussed without objection. At that time, Knudsen's counsel objected to a question regarding "the underlying facts of those arrests" on the grounds that those facts were irrelevant to the issue of damages and moved to strike. The objection was sustained. Only after Knudsen, both on redirect and rebuttal, offered an explanation about the circumstances underlying prior police confrontations did the magistrate rule that Knudsen had opened the door to this line of questioning and overruled a second similar objection.4  Knudsen's counsel never entered a general objection to the line of questioning for the reasons pursued in this appeal during any of Knudsen's testimony. Similarly, Knudsen's motion to strike, never ruled upon by the magistrate, did not purport to encompass all prior questions regarding alleged arrests elicited on cross-examination. Therefore, even if the evidence were not otherwise admissible, Knudsen's counsel's failure to timely object or move to strike may have been fatal to his appeal. See Fed.R.Evid. 103(a) (1).

Finally, while we would not and do not condone the misuse of questioning regarding prior encounters with police (e.g., by asking about arrests which never occurred or arrests clearly associated with another individual), we do not see such misuse in this case. Knudsen testified that his name was often used by his brother and that, on occasion, both brothers used the same alias. Because of this confusion, it was not improper for the defense to cast his net broadly to ask about arrests involving either of the three names. Knudsen certainly cannot blame the defense for his own inability, on the witness stand, to remember when, where and how many times he had been arrested.

In sum, Knudsen's appeal is meritless. In both Bryan and Peraza, not only incidents of prior custody and/or confinement, but also other encounters with the police and authority figures, were found relevant to the issue of damages. The defense in this case used the list of Knudsen's "arrests," some apparently subsequently "deemed not arrests," as a method of systematically determining how often and for how long Knudsen had previously been confined or otherwise held in the custody of police authorities. This testimony would assist the jury in determining the extent of damages, if any. This use was not improper. The magistrate did not abuse his discretion by allowing admission of this evidence subject to a limiting instruction.

The denial of Knudsen's motion for a mistrial is AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

Pursuant to FRAP 10(e), Knudsen requests the correction of a misstatement on the district court docket sheet; namely, Item 21, dated January 20, 1988. We agree that an error was made on the docket sheet; Knudsen's version is supported by the January 20 civil minutes. We therefore consider the entry as corrected to read: "Plaintiff's oral motion for a mistrial is DENIED. Defendant Curry County's oral motion for directed verdict is DENIED. Defendants' oral motion for mistrial is WITHDRAWN."

 2

The general rule is that all relevant evidence is admissible. Fed.R.Evid. 402. Knudsen attempts to characterizes the Bryan and Peraza holdings as "exceptions" to the Federal Rules of Evidence. However, the holdings in both cases are consistent with the relevant rules cited by Knudsen. Under Fed.R.Evid. 404(b), evidence of other "crimes, wrongs, or acts" is admissible unless used to prove Knudsen's character "in order to show that he acted in conformity therewith." Here, the "wrongs" were properly introduced for the purpose of proving damages, not as character evidence. See Heath v. Cast, 813 F.2d 254, 259 (9th Cir. 1987) (" 'Rule 404(b) is 'one of inclusion which admits evidence of other crimes or acts relevant to an issue in the trial, except where it tends to prove only criminal disposition.' ' ") (citations omitted) (emphasis in original). Similarly, both Bryan and Peraza are consistent with Fed.R.Evid. 403 which permits the introduction of prejudicial evidence when the danger of prejudice does not outweigh the probative value of the evidence. Prior police encounters and prior confinements are clearly probative with regard to damages. Finally, Fed.R.Evid. 608(b) and 609 are simply irrelevant in this case. The defense did not introduce evidence for purposes of attacking Knudsen's credibility

 3

Because we conclude that the evidence was properly admitted under the Bryan/Peraza reasoning, we do not address the defense's contention that Knudsen opened the door to such evidence through his testimony on direct examination

 4

It is interesting to note that, while making the second objection, Knudsen's counsel implicitly recognized both the relevance of the prior testimony of police contacts and the limited scope of the prior objection. He stated: "Because of the [ ] possible prejudicial effect [of the testimony regarding numerous police contacts at cross-examination] I felt it necessary to offer rebuttal testimony for rehabilitation. I think we are getting pretty collateral now ... [w]e are asking the circumstances behind these various contacts which were offered in the first place just to show he had been confined." Similarly, in his third and last objection to the defense's questioning regarding "arrests" which did not appear as arrests on a list held by defense counsel, Knudsen's counsel did not object to the line of questioning generally. Rather, he stated: "I guess he can call it an incident or a contact, but if the official record says he wasn't arrested I don't think he can be--These questions are argumentative at best." Therefore, none of Knudsen's objections below are as broad as Knudsen argues