MATTHEW RODGERS V MICHIGAN STATE TROOPERS
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STATE OF MICHIGAN
COURT OF APPEALS
MATTHEW RODGERS,
UNPUBLISHED
December 11, 2008
Plaintiff-Appellant,
v
MICHIGAN STATE TROOPER DAVERSA and
MICHIGAN STATE TROOPER THOMPSON,
No. 280186
Wayne Circuit Court
LC No. 05-523691-NO
Defendants-Appellees.
Before: Borrello, P.J., and Davis and Gleicher, JJ.
PER CURIAM.
Plaintiff appeals as of right a judgment of no cause of action following a jury trial. We
affirm.
Plaintiff filed this action for assault and battery against defendants, two Michigan State
Police troopers. Plaintiff alleged that during a routine traffic stop, he was physically assaulted
and injured by defendants for no apparent reason. Defendants testified that they stopped plaintiff
because he was driving erratically, that plaintiff subsequently refused defendants’ requests for
plaintiff’s drivers’ information, that plaintiff then became combative and struck one of the
officers, and that plaintiff thereafter aggressively resisted the officers’ attempts to place plaintiff
under arrest.1
On appeal, plaintiff raises three claims of instructional error. Claims of instructional
error are reviewed de novo. Ward v Consolidated Rail Corp, 472 Mich 77, 83; 693 NW2d 366
(2005). “Jury instructions should not omit material issues, defense, or theories that are supported
by the evidence.” Id. at 83-84. “Even if somewhat imperfect, instructions do not create error
requiring reversal if, on balance, the theories of the parties and the applicable law are adequately
and fairly presented to the jury.” Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17
1
Plaintiff’s complaint alleged additional claims for false arrest, false imprisonment, and
malicious prosecution, but those claims were dismissed before trial and are not at issue on
appeal.
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(2000). The trial court’s determination whether a particular instruction is applicable is a matter
of discretion. Johnson v Corbet, 423 Mich 304, 326-327; 377 NW2d 713 (1985).
Plaintiff first argues that the first two questions of the jury’s verdict form improperly
asked the jury to determine whether each defendant “commit[ted] and assault and battery” on
plaintiff, rather than asking the jury to determine separately whether there had been an assault or
a battery. We disagree. The verdict form was consistent with the “assault and battery” claim
alleged in plaintiff’s complaint and was consistent with plaintiff’s theory of liability argued at
trial. The verdict form did not take any issue from the jury’s consideration, nor was the jury’s
role as the trier of fact improperly limited in any way. Accordingly, we find no error.
Plaintiff next argues that the trial court improperly modified M Civ JI 115.09 when, in
the context of explaining that an officer may use such force as is reasonably necessary to effect
an arrest, “it does not matter what the arrest is for.” We disagree. A trial court should instruct
the jury in accordance with the Model Civil Jury Instructions on request if they are applicable
and accurately state the law, but the court is not precluded from giving “additional instructions
on applicable law not covered by the model instructions,” so long as they are “concise,
understandable, conversational, unslanted, and nonargumentative.” MCR 2.516(D)(2) and (4);
Bordeaux v Celotex Corp, 203 Mich App 158, 169; 511 NW2d 899 (1993).
The trial court instructed the jury in accordance was M Civ JI 115.09 as follows, as
modified by the emphasized language:
Now if a person has knowledge or by the exercise of reasonable care
should have knowledge that he is being arrested by a law enforcement officer, it is
the duty of that person to refrain from resisting the arrest. And [sic] arresting
officer may use such force as is reasonably necessary to affect [sic] an arrest. It
does not matter what the arrest is for. However, an officer who uses more force
than is reasonably necessary to affect [sic] an arrest commits a battery upon the
person arrested to the extent the force used was excessive. And of course it is
your determination whether or not any force used was reasonable or not.
[Emphasis added.]
The trial court gave the modified instruction because, during closing argument, plaintiff’s
counsel had attempted to minimize the reason for plaintiff’s arrest as “just for a traffic
enforcement, it wasn’t for murder 1 and that somehow that might play in here.”
The trial court’s instruction was consistent with the applicable law. The instruction
accurately informed the jury that when a person is arrested, the question of excessive force is to
be determined by whether the officer used more force than was reasonably necessary to effect
the arrest, not by the offense for which the person is arrested. The court acted within its
discretion in determining that the modified instruction was appropriate in light of plaintiff’s
closing argument, and the modification was concise, understandable, unslanted, and
nonargumentative. It did not require the jury to find any greater or lesser degree of force
depending on what the arrest was for. Accordingly, the court did not abuse its discretion in
giving the modified instruction.
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Lastly, plaintiff argues that the trial court erred in denying his request to give M Civ JI
6.01, which would have enabled the jury to infer that because a videotape of the arrest was not
preserved, the jury could infer that this evidence would have been adverse to defendants. We
disagree.
“It is well settled that missing evidence gives rise to an adverse presumption only when
the complaining party can establish intentional conduct indicating fraud and a desire to destroy
evidence and thereby suppress the truth.” Ward, supra at 84. In this case, regardless of whether
the videotape could be considered to have been under defendants’ control initially, there was no
showing that defendants failed to preserve it in bad faith. On the contrary, the testimony at trial
indicated that the videotapes were routinely recycled every 30 to 90 days. Plaintiff did not file
his complaint until approximately two years after his arrest, and there was no showing that the
videotape was timely requested such that it could have been produced. Accordingly, the trial
court did not err in denying plaintiff’s request to give M Civ JI 6.01.
Affirmed.
/s/ Stephen L. Borrello
/s/ Alton T. Davis
/s/ Elizabeth L. Gleicher
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