Dеborah Kay PERRIN, Administratrix of the Estate of Terry Kim Perrin, Deceased, as Administratrix and as Guardian of Chance Lee Perrin, Sole Heir of Terry Kim Perrin, Deceased, Plaintiff-Appellant, v. Donnie ANDERSON and Roland Von Schriltz, Defendants-Appellees.
No. 83-1714.
United States Court of Appeals, Tenth Circuit.
Feb. 27, 1986.
784 F.2d 1040 | 19 Fed. R. Evid. Serv. 1564
Stephen Jones and Susan McNaughton of Jones, McNaughton & Blakley, Enid, Okl., for defendants-appellees.
Before LOGAN, SETH and SEYMOUR, Circuit Judges.
LOGAN, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appеal. See
This is a
In this appeal plaintiff contends that the district court erred in admitting: (1) testimony by four police officers recounting previous violent encounters they had had with Perrin; (2) a report by the Shooting Review Board of the Oklahoma Department of Public Safety; (3) a defense attorney‘s statement in closing argument that defendants would be personally liable for any judgment; and (4) evidence that Perrin‘s home contained many pornographic drawings, sketches, books, and materials.
A simple highway accident set off the bizarre chain of events that culminated in Perrin‘s death. The incident began when Perrin drove his car into the back of another car on an Oklahoma highway. After determining that the occupants of the car he had hit were uninjured, Perrin walked to his home, which was close tо the highway.
Trooper Von Schriltz went to Perrin‘s home to obtain information concerning the accident. He was joined there by Trooper Anderson. They knocked on and off for ten to twenty minutes before persuading Perrin to open the door. Once Perrin opened the door, the defendant officers noticed Perrin‘s erratic behavior. The troopers testified that his moods would change quickly and that he was yelling that the accident was not his fault. Von Schriltz testified that he sensed a possibly dangerous situation and slowly moved his hand to his gun in order to secure its hammer with a leather thong. This action apparently provoked Perrin who then slammed the door. The door bounced open and Perrin then attacked Anderson. A fierce battle ensued between Perrin and the two officers, who unsuccessfully applied several chokeholds to Perrin in an attempt to subdue him. Eventually Anderson, who testified that he feared he was about to lose consciousness as a result of having been kicked repeatedly in the face and chest by Perrin, took out his gun, and, without issuing a warning, shot and killed Perrin. Anderson stated that he was convinced Perrin would have killed both officers had he not fired.
At trial the court permitted four police officers to testify that they had been involved prеviously in violent encounters with Perrin. These officers testified to Perrin‘s apparent hatred or fear of uniformed officers and his consistently violent response to any contact with them. For example, defendants presented evidence that on earlier occasions Perrin was completely uncontrollable and violent in the presence of uniformed officers. On one occasion he rammed his head into the bars and walls of his cell, requiring administration of a tranquilizer. Another time while barefoot, Perrin kicked loose a porcelain toilet bowl that was bolted to the floor. One officer testified that he encountered Perrin while responding to a public drunk call. Perrin attacked him, and during the following struggle Perrin tried to reach for the officer‘s weapon. The officer and his back-up had to carry Perrin handcuffed, kiсking and screaming, to the squad car, where Perrin then kicked the windshield out of the car. Another officer testified that Perrin attacked him after Perrin was stopped at a vehicle checkpoint. During the ensuing struggle three policemen were needed to subdue Perrin, including one 6‘2” officer weighing 250 pounds and one 6‘6” officer weighing 350 pounds.
Defendants introduced this evidence to prove that Perrin was the first aggressor in the fight—a key element in defendants’ self-defense claim. The court admitted the evidence over objection, under Federal Rules of Evidence provisions treating both character and habit evidence. Plaintiff contends this was error.
A
Section 404(a) of the Federal Rules of Evidence carefully limits the circumstances under which character evidence may be admitted to prove that an individual, at the time in question, acted in сonformity with his character.1 This rule is necessary because of the high degree of prejudice that inheres in character evidence. See
In a case of this kind, the civil defendant, like the criminal defendant, stands in a position of great peril. See E. Cleary, McCormick on Evidence Sec. 192, at 570-71 (3d ed. 1984) (herеinafter McCormick). A verdict against the defendants in this case would be tantamount to finding that they killed Perrin without cause. The resulting stigma warrants giving them the same opportunity to present a defense that a criminal defendant could present. Accordingly we hold that defendants were entitled to present evidence of Perrin‘s character from which the jury could infer that Perrin was the aggressor. The self-defense claim raised in this case is not functionally different from a self-defense claim raised in a criminal case.3
Although we agree with the district court that character evidence was admissible in this case, we hold that the district court should not have permitted testimony about prior specific incidents.
Federal Rule of Evidence 405 establishes the permissible methods of proving character:
“(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.”
Testimony concerning specific instances of conduct is the most convincing, of course, but it also “possesses the greatest capacity to arouse prejudice, to confuse, to surprise and to consume time.”
Character is directly in issue in the strict sense when it is “a material fact that under the substantive law determines rights and liabilities of the parties.” McCormick Sec. 187, at 551. In such a case the evidence is not being offered to prove that the defendant acted in conformity with the character trait; instead, the existence or nonexistence of the character trait itself “detеrmines the rights and liabilities of the parties.” Id. at 552 n. 5. In a defamation action, for example, the plaintiff‘s reputation for honesty is directly at issue when the defendant has called the plaintiff dishonest. See Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U.Pa.L.Rev. 845, 852 (1982).
Defendants here offered character evidence for the purpose of proving that Perrin was the aggressor. “[E]vidеnce of a violent disposition to prove that the person was the aggressor in an affray” is given as an example of the circumstantial use of character evidence in the advisory committee notes for
Character and habit are closely akin. The district court found, alternatively, that the testimony recounting Perrin‘s previous violent encounters with police officers was admissible as evidence of a habit under
“Evidence of the habit of a person ..., whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person ... on a particular occasion was in conformity with the habit....”
The limitations on the methods of proving character set out in
This court has defined “habit” as “a regular practice of meeting a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances.” Frase v. Henry, 444 F.2d 1228, 1232 (10th Cir.1971) (defining “habit” under Kansas law). The advisory committee notes to
Four police officers testified to at least five separate violent incidents, and plaintiff offered no evidence of аny peaceful encounter between Perrin and the police. Five incidents ordinarily would be insufficient to establish the existence of a habit. See Reyes v. Missouri Pacific Railway Co., 589 F.2d 791, 794-95 (5th Cir.1979) (four convictions for public intoxication in three and one-half years insufficient to prove habit). But defendants here had made an offer of proof of testimony from eight police officers concerning numerous different incidents. To prevent undue prejudice to plaintiff, the district court permitted only four of these witnesses to testify, and it explicitly stated that it thought the testimony of the four officers had been sufficient to establish a habit. Id. We hold that the district court properly admitted this evidence pursuant to
II
Plaintiff asserts that thе district court should not have admitted a report by the Shooting Review Board. This report concluded that there was “no doubt that [Anderson] acted within the guidelines set forth in the Policies and Procedures Manual.” The Shooting Review Board consisted of five members of the Oklahoma State police and was convened under the auspices of the Oklahoma Department of Public Safety. In reaching its conclusion the Board interviewed defendants and their superior officers.
The district court admitted the shooting report pursuant to
“[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (C) in civil actions ..., factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.”
Several factors must be addressed in determining the applicability оf
Second, the rule applies only to “factual findings.” Courts have construed this term broadly, however, and regularly have admitted conclusions and opinions found in evaluative reports of public agencies. See, e.g., Wilson v. Beebe, 743 F.2d 342, 346-47 (6th Cir.1984) (admitting report by police captain that officer‘s conduct was contrary to department training); Litton Systems, Inc. v. American Telephone and Telegraph Co., 700 F.2d 785, 818-19 (2d Cir.1983) (admitting findings of FCC that tariffs were “unreasonable” and “discriminatory“), cert. denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1985); see also Zenith Radio Corp. v. Matsushita Electric Industrial Co., 505 F.Supp. 1125, 1144-45 (E.D.Pa.1980) (reports “rendering normаtive judgments or opinions” admissible). Therefore, although the Shooting Report contained conclusions concerning the propriety of defendants’ conduct, the report comes within the scope of
Plaintiff here has not offered any convincing evidence that this report is untrustworthy. It was prepared approximately five weeks after the incident by high-ranking officers. Hearings, althоugh not adversarial, were held. Moreover we are unwilling to conclude that an internal investigation is necessarily biased, absent specific evidence. That an investigation was conducted internally should affect the weight to be given the report, not its admissibility. The district court therefore did not abuse its discretion in finding this report admissible. See Nulf v. International Paper Co., 656 F.2d 553, 563 (10th Cir.1981) (admission of report is within trial court‘s discretion); Franklin v. Skelly Oil Co., 141 F.2d at 572 (trial court is “first and best judge ... of trustworthiness and reliability“).
In addition, the district court instructed the jury that the report was “an agency hearing of its own personnel and for its own purpose” and was to have no “determinative effect on any issue in the case.” R. VI, 492. We believe that this cautionary instruction mitigated any prejudice the report may have had. See Litton Systems, Inc., 700 F.2d at 818-19; see also 4 J. Weinstein & M. Berger, Weinstein‘s Evidence p 803(8), at 803-257 (1985) (judge may caution jurors against substituting official‘s judgment for their own).
III
Plaintiff‘s third claim of error is based on a defense attorney comment during closing argument. Counsel stated:
“I think that there is one matter that I would like to leave you with. My clients are being asked to account in money damages. And incidentally, this is an action against them, personally, not against the State of Oklahoma, not against anyone else. A judgment against them is their individual judgment to be paid by them and no one else.”
R. VI, 510. Plaintiff claims that this remark was equivalent to an assertion that defendants were uninsured.
Statements that a defendant in a negligence action is insured or uninsured typically have been forbidden. See
Here, however, punitive damages were requested; the ultimate source of payment therefore is relevant. See Rodgers v. Fisher Body Division, General Motors Corp., 739 F.2d 1102, 1105 (6th Cir.1984) (approving district court holding that remarks concerning defendant‘s size and wealth are relevant when punitive damages are at issue). The jury must know the impact an award will have on the defendant to properly assess punitive damages. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 269, 101 S.Ct. 2748, 2761, 69 L.Ed.2d 616 (1980) (punitive damages in
IV
Plaintiff‘s final assertion is that the trial court erred in admitting testimony about numerous sexuаlly explicit pornographic items that were strewn about Perrin‘s home and were readily accessible to his six-year-old son. Defendants offered evidence that approximately fifty magazines containing pictures of “kinky-type sex” were in the bathroom, a bedroom, and the living room. There also was evidence that hand-drawn pictures signed by Perrin depicting oral sodomy and nude women with straps on them were in every room but the kitchen and one bedroom. Plaintiff contends that this testimony was irrelevant, and, even if relevant, unduly prejudicial. Defendants counter that this testimony was permissible rebuttal to plaintiff‘s contention that Perrin was a good father and that his son‘s loss of his companionship should be valued by the jury at $1,000,000.
We agree with defendants that this testimony was relevant on the damages issue. In determining the amount to which Perrin‘s son was entitled, the jury properly could have considered the nature of the influence Perrin was having on his son. See, e.g., Smith v. United States, 587 F.2d 1013, 1017 (3d Cir.1978) (admitting evidence that defendant‘s mental condition precluded award of damages for loss of services and nurture); Solomon v. Warren, 540 F.2d 777, 788 (5th Cir.1976) (evidence must be admitted that deceased parent furnished physical, intellectual, and moral training to child); In re Paris Air Crash of March 3, 1974, 423 F.Supp. 367, 373 (C.D.Cal.1976) (instructing jury to consider factors such as the disposition of the decedent in assessing loss to child).
AFFIRMED.
Notes
Rule 404(a) provides:
“(1) Character Evidence Generally. Evidence of a person‘s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim wаs the first aggressor; ....”
We agree with Professor Uviller‘s explanation of why a criminal defendant is entitled to use character evidence to a greater extent than a civil defendant:
“About the best one can do with this puzzle is to guess that somewhere, somehow the rule was relaxed to allow the criminal defendant with so much at stake and so little available in the way of conventional proof to have special dispensation to tell the factfinder just what sort of person he really is.”
Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U.Pa.L.Rev. 845, 855 (1982).