This case arises from a shooting by a Metropolitan Police Department officer in the course of an investigatory stop of a vehicle, which, tragically, resulted in the death of a fourteen-year-old boy. The child’s mother, Faunett Evans-Reid, filed a complaint for damages against the officer and the District of Columbia claiming negligence and assault and battery. On appeal, she challenges the trial court’s entry of judgment as a matter of law dismissing her complaint. Appellant also contends that the trial court abused its discretion in *934 excluding expert testimony and certain police reports. After reviewing the record and the parties’ arguments, we conclude that the trial court’s challenged evidentia-ry rulings were not an abuse of discretion and agree with the trial court that the evidence presented by appellant did not, as a matter of law, provide a sufficient basis from which the jury could have found that the officer’s use of deadly force was unreasonable and returned a verdict in her favor. Therefore, we affirm the entry of judgment for appellees.
I.
BACKGROUND
On May 21, 1995, at approximately 7:00 p.m., fourteen-year-old Sean Evans was riding in the front passenger seat of a red Mazda that was being driven with the rear hatch-back door open. Upon reaching the intersection of Riggs Road and Chillum Place, N.E., the vehicle made a left turn on a red light. Two Metropolitan Police Department (“MPD”) Officers, Officer Mark Green and Officer David Mosely, were separately patrolling the area at the time. They followed the red Mazda but did not give any direction to the driver to pull over. Officer Green, riding a motorcycle, followed the vehicle from behind, while Officer Mosely, who was driving a squad car, took another route to cut it off. After Officer Green followed the Mazda for less than two blocks, the car voluntarily came to a stop and parked at the curb. Officer Green stopped behind the Mazda, from where he observed that the front-seat passenger was making movements which caused the officer to suspect that a weapon was being concealed. Shortly thereafter, Officer Mosely came from the other direction and parked on the opposite side of the street. As both officers approached the vehicle, Officer Green used a verbal signal to indicate to Officer Mosely his suspicion that there might be a gun in the car. Officer Green approached the passenger’s side of the vehicle while Officer Mosely approached the driver’s side.
During his testimony, Officer Green explained that, because he suspected danger, he approached the car with his weapon drawn, holding it next to his hip and pointed at the ground. When he reached the passenger window, Officer Green saw Evans “lift up his shirt and pull out a gun.” The weapon, which appeared to Officer Green to be a semi-automatic handgun, was pointed in his direction. Fearing for his life, Officer Green quickly raised his weapon and, holding it with both hands, fired in the direction of Evans’s chest. Officer Green recounted that, as he fired, he stepped back while raising his gun, with his arm extended. Still afraid because the passenger’s gun continued to be pointed at him, he then shot Evans a second time, this time in the head. According to Officer Green, Evans had a “cold” and “glazed type” or “glossy” look in his eyes.
As Officer Green approached the passenger, Officer Mosely had approached the driver. Officer Mosely testified that by the time he reached the car, the driver had already opened the door and placed his feet on the pavement, as if to get out, but was still seated in the car. He spoke to the driver and requested his license and car registration. Officer Mosely went to the rear of the car to compare the license plate number with the registration he had obtained from the driver. He then heard two shots before he had a chance to finish the comparison. Officer Mosely testified that as he approached the driver, he did not pay attention to the passenger, and later, when he was standing behind the car to compare the registration with the tag number, did not see any sudden movements by the passenger, did not see him hiding anything, and did not see him pull his shirt up or pull a gun from his waist *935 and point it at Officer Green. Altogether, he believed that “a dozen or more seconds” passed from the time Officer Mosely stopped his car across from the Mazda until the shooting took place. After the shots were fired, the driver jumped down on the ground. After restraining the driver with handcuffs as a precautionary measure, Officer Mosely looked up and saw Officer Green “standing on the passenger side of the car ... just looking distraught ... almost like he [had] seen a ghost ... [fjrightened.” He also looked at the passenger inside the car and saw that he was bleeding profusely and had a gun in his left hand. The gun, as it turned out, was a BB gun. Except for the two officers, no eyewitness to the shooting testified at trial. 1
The medical examiner who conducted the autopsy determined that Sean Evans died from gunshot wounds to the face and chest. According to the forensic expert, Dr. Jonathan Arden, stippling around the wound to the head indicated that the shot was fired from a distance of approximately twelve inches. 2 Tests conducted at the time also revealed that Evans’s blood alcohol level was 0.11 percent, in the “intoxicated” range. The forensic expert testified that, at such a level, a person would be “significantly” and “visibly” intoxicated, his judgment and reflexes could be impaired, and his usual inhibitions and mood altered.
Evans’s mother (appellant) took the stand. She testified that her son was right-handed, calling into question that he would have drawn and pointed a gun at Officer Green with his left hand. Testimony and pictures of the car showed that the door handle was missing from inside the front passenger door. A photograph also showed a shell casing in the Mazda’s roof gutter. 3
II.
DISCUSSION
A. Exclusion of Expert Witness
Appellant argues that the trial court abused its discretion in excluding the expert testimony of Commander Winfred Stanley based on the fact that Commander Stanley lacked experience on the national standard of care for conducting traffic stops and had local experience only.
“The admission of expert testimony is committed to the broad discretion of the trial court and a ruling either admitting or excluding such evidence will not be disturbed unless ‘manifestly erroneous.’ ”
Dyas v. United States,
Appellant argues that Commander Stanley’s testimony during voir dire demonstrated that he was qualified to serve as an expert witness on police procedures and the national standard governing police conduct in this case. In support of her argument, appellant asserts that, in addition to his twenty-one years of experience with the Metropolitan Police Department, Commander Stanley participated in numerous in-service programs, and traveled to other jurisdictions to study police patrol activities. Moreover, appellant contends, Commander Stanley studied the literature on police administration and testified that he was familiar with national standards concerning police traffic stop practices including the Commission on Accreditation of Law Enforcement Agencies (CALEA), which accredits hundreds of law enforcement agencies across the country. As proof of his qualifications, appellant asserts that Commander Stanley had previously been qualified as an expert on police procedures in the Superior Court of the District of Columbia. 4
We perceive no abuse of discretion in the trial court’s determination that Commander Stanley lacked the necessary expertise to opine on the national standard. As the trial court explained, “[h]is expertise is local. He’s only relying on the single national standard. It has nothing to do with the conduct of a traffic stop and so he isn’t an expert and cannot give expert testimony on conduct of a traffic stop.” Because the record confirms that the single national standard proffered by Commander Stanley (CALEA) did not provide guidelines for a police officer’s conduct during a traffic stop,
5
it was inadequate to establish the national standard of care by which a trier of fact could measure the specific conduct at issue in this case, the use of deadly force while conducting an investigatory traffic stop.
See District of Columbia v. Carmichael,
B. Judgment as a Matter of Law
Judgment as a matter of law (sometimes referred to as a directed verdict) is proper “if during a trial by jury [the plaintiff] has been fully heard on an issue, and there is no legally sufficient evidentiary basis for a reasonable jury to find for [her].”
Burke v. Md. Auto Ins. Fund,
“When an individual is shot by a District of Columbia police officer, and he or his successors in interest decide to bring a lawsuit, they may proceed under one or more different common law theories of legal liability.”
Holder v. District of Columbia,
An assault is “an intentional and unlawful attempt or threat, either by words or by acts, to do physical harm to the victim.”
Etheredge,
A police officer has a qualified privilege to use reasonable force to effect an arrest, provided that the means employed are not in excess of those which the actor reasonably believes to be necessary. Moreover, any person, including an officer, is justified in using reasonable force to repel an actual assault, or if he reasonably believes he is in danger of bodily harm. Use of “deadly force,” however, is lawful only if the user actually and reasonably believes, at the time such force is used, that he or she (or a third person) is in imminent peril of death or serious bodily harm.
Id. (internal quotations and citations omitted) (emphasis added).
Appellant contends that the trial court erred in concluding that she failed to present evidence from which the jury could find that Officer Green did not have a reasonable belief that he was in imminent peril of death or serious bodily harm when he shot her son. Specifically, appellant asserts that the trial court was incorrect in its view that appellant had the *938 burden to prove that her son was unarmed when he was shot by Officer Green. 7 In addition, appellant argues, the trial court erred in concluding that the circumstantial evidence she presented was insufficient to allow the trier of fact to draw reasonable inferences that Officer Green had an alternative motive (other than fear for his own safety) to shoot Sean Evans and that Officer Mosely had the opportunity to plant the weapon recovered from the car in order to provide a justification for the shooting.
“[T]he inquiry involved in a ruling on a motion for [judgment as a matter of law] necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.”
Anderson v. Liberty Lobby, Inc.,
Appellant argues that once she presented a
prima facie
case that Officer Green intentionally shot her son
(ie.,
assault and battery),
see Holder,
Of course, the jury did not have to believe Officer Green’s testimony. Here, appellant contends, the jury could have rejected the claim of privilege by drawing several inferences in her favor from the evidence presented at trial. Specifically, appellant asserts that a jury could infer from the evidence that Officer Mosely was in a position to observe whether Sean Evans had a weapon or made any sudden movements to point a weapon at Officer Green when Mosely initially approached the driver’s side of the vehicle or when he was standing behind the car comparing the registration card with the license plate. Appellant asserts that from Officer Mosely’s testimony that he did not see a weapon at either time, a jury could reasonably infer that Sean Evans was not armed and, therefore, did not pose a serious threat to Officer Green. The record shows, however, that Officer Mosely testified that he was not paying attention to the passenger when he approached the vehicle and that he was focused on the license plate when he heard shots being fired. More importantly, Officer Mosely also testified that after arresting the driver outside the driver’s door of the Mazda, he looked into the car and saw Sean Evans bleeding and holding a weapon in his left hand. Given this testimony, the jury could not reasonably infer that Sean Evans was unarmed based only on that portion of Officer Mosely’s testimony that he did not see a weapon when he initially approached the vehicle.
Appellant also contends that a jury could infer from the evidence not only that Officer Mosely did not see Sean Evans holding a gun, but also that he planted the gun that was recovered from the car. In support of her argument, appellant points to evidence presented at trial that, approximately two years before the shooting, Officer Mosely had been seen in possession of an “unauthorized gun”
11
that fell from his briefcase while he was standing in line at the check-out window of a police station. Appellant contends that from this evidence a jury could reasonably infer that Officer Mosely had access to a “throw down” weapon
12
and that he used it on the day of the shooting in order to provide a justification for Officer Green’s use of deadly force. At trial, Officer Mosely testified that the “unauthorized gun” he had been seen with at the police check-out window was a “starter pistol” (an inoffensive cap gun) and not a BB gun.
13
The “starter pistol” Officer Mosely claimed as his was introduced into evi
*940
dence, as was the gun found in Evans’s hand after he was shot. Obviously they were not one and the same gun, and if Officer Mosely were believed that his “unauthorized gun” was not the BB gun, but the starter pistol, appellant’s theory would be rejected by the jury. In order to impeach Officer Mosely, appellant presented testimony from officers who witnessed the incident at the police station check-out window in an effort to establish that Officer Mosely’s “unauthorized gun” was not the starter pistol as Mosely claimed, but the gun found in Evans’s hand. Appellant offered no further evidence that would support a reasonable inference that the gun recovered from the car was Officer Mosely’s gun or that it was, in fact, planted by Officer Mosely on the day her son was shot. Appellant’s theory was sound, but the testimony needed to support it did not, unfortunately for her claim, materialize to bridge the gap identified by the trial court that there was insufficient evidence linking the two guns.
14
As a result, evidence of Officer Mosely’s dropped gun two years earlier, though relevant, is of tenuous probative value and insufficient by itself to permit a jury reasonably to infer that the gun found inside the car came from Officer Mosely.
Cf. Webster v. City of Houston,
Finally, appellant argues that the case should have gone to the jury because if the jurors thought the officers lacked credibility and had a motive to offer false testimony, they could have inferred that what occurred was the
opposite
of what the officers testified to,
ie.,
that Sean Evans was, in fact, unarmed and never posed a threat to Officer Green. Specifically, appellant points to the officers’ evasiveness, contradictory testimony and bias. The Supreme Court has stated, however, that “[w]hen the testimony of a witness is not believed, the trier of fact may simply disregard it. Normally the discredited testimony is not considered a sufficient basis for drawing a contrary conclusion.”
Bose Corp. v. Consumers Union of United States, Inc.,
We think, however, that a different result might have obtained if there were evidence from which the jury could infer that the officers were motivated by racial bias, particularly in a civil trial where the plaintiffs burden is a preponderance of the evidence.
Cf. Anderson,
Appellant’s argument to the jury would have been that the shooting of Evans was not only not justified, and not a miscalculation, but an intentional act fueled by the officers’ desire to “get” a black man. 17 To prove this racial motivation, appellant sought to introduce as substantive evidence a number of reports, consisting of interviews of various officers conducted by the MPD Internal Affairs Division after the shooting of Evans. 18 These IAD reports raise immensely troubling allegations that — if there were an evidentiary basis for their admission — would have been relevant to the jury’s consideration, and along with disbelief of the officers, could have provided a sufficient basis to allow the jury to decide the truth of the accusation that the officers fabricated their story and planted the weapon to cover up an unjustified shooting. We, therefore, review the trial judge’s exclusion of the IAD reports. 19
*943 C. Exclusion of the IAD Reports
The trial judge did not admit the reports as substantive evidence during the appellant’s case in chief.
20
She explained that the reports contained “double hearsay.” In some cases, in fact, it was multiple hearsay: the first level of hearsay being the report writer, the second level being the person interviewed, and then the persons whose statements the interviewee described to the report writer. Appellant argues that the first level of hearsay came within the exception for business records kept by the police department in the regular course of an internal investigation,
see
Super. Ct. Civ. R. 43-1;
Montgomery v.
*944
United States,
We disagree with appellant that the reports could overcome the multiple hearsay objection noted by the trial court. It has long been established that “a police report of [an] accident is not to be admitted [under the business records exception] if it contains hearsay or conjecture or conclusions. Statements in a police report which are based on what the officer was told by others are just as much hearsay as if stated on the witness stand by the officer himself. Likewise inadmissible are conclusions and conjectures by the officer as to fault or lack of fault....”
Levin v. Green,
Even if the first level of hearsay objection could be hurdled under the business records exception, the second and third levels of hearsay — the statements of the interviewees and the conversations that the interviewees reported — would not qualify for the state of mind exception urged by appellant.
22
The state of mind exception permits the use of hearsay statements for the limited purpose of showing the state of mind of the declarant,
see Clark v. United States,
We conclude that while the jury could well have drawn negative inferences from its disbelief of the officers’ testimony, as a matter of law such inferences are insufficient, without more, to rebut the appellees’ proof by a preponderance of the evidence. Even assuming — as we must — that the jury could have rejected the claim of privilege based on the evidence in the IAD reports, had they been admissible, the trial judge did not abuse discretion in excluding them. As there is no evidence from which the jury could reasonably make inferences to rebut appellees’ defense of privilege, judgment as a matter of law was proper.
See Eisen,
Affirmed. 24
. Appellant's counsel has recently filed motions to disqualify the division and, indeed, the entire court, from deciding this appeal, on the ground that the court's delay in deciding the appeal has invested it with an interest in how it decides the case, and that the court is seeking to protect the District government from liability to appellant. The court regrets the delay and is cognizant of the appellant’s personal and emotional investment in this difficult case. The court, however, is independent of the other branches of District government and its judges are bound to uphold the independence of the judiciary, as is shown by the substance of our reasoning in this opinion. There is no merit to counsel’s argument, and those motions me denied.
Appellant’s counsel has also recently filed a motion to vacate all of the trial judge’s rulings, orders and judgment in this case “as a nullity due to structural defect." We note that, in the trial court, counsel also sought to disqualify the trial judge. On appeal he has *946 not challenged the trial court’s denial of his motion. In this latest effort, counsel relies on a July 15, 2005 “Determination and Undertaking” of the District of Columbia Disabilities and Tenure Commission that the trial judge's conduct during a traffic stop on March 6, 2005 "fairly gave the appearance of an attempt to lend the prestige of her office to advance her private interests, that is, to gain the personal advantage of deferential treatment, and that her conduct was of a sort that erodes public confidence in the judiciary.” According to the Commission, the trial judge made comments to the police officers who stopped her "which were reasonably understood to suggest that, as a judge, she was entitled to 'professional courtesy’ from the police.” The Commission noted that the trial judge had “accept[ed] the Commission’s determinations and conclusions ..., recognize[d] that her conduct in this instance had the regrettable impact ... and violated the applicable provision of the Code of Judicial Conduct.” The Commission imposed no sanction, however, in view of the trial judge's "record of integrity and exemplary judicial service on behalf of the people of the District of Columbia over some twenty-one years.”
Counsel’s argument seems to be that a reasonable observer could conclude that in her rulings in this case the trial judge returned the “professional courtesy” to the police. The "objective observer” standard, however, implies the observer’s knowledge of relevant facts — not speculation or simply cynicism— giving rise to "an appearance of bias or prejudice sufficient to permit the average citizen
reasonably
to question [the] judge's impartiality.” York
v. United States,
Notes
. The driver did not testify.
. According to the expert, Dr. Arden, “eighteen inches is pushing the outer limit. Six is very much pushing the inner limit.”
.There was no expert testimony, however, to explain the significance of this.
. Commander Stanley stated that he had testified as an expert once before in a civil case involving a pedestrian stop and that the incident did not involve a shooting.
. In addition, it appears that CALEA standards have been adopted in fewer than five percent of the jurisdictions nationwide.
. As noted, appellant’s complaint included a negligence claim. In order to prevail in a negligence action, the plaintiff must prove "the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff's injury.”
Etheredge,
.According to the record, the trial court's statement was not as narrow as appellant suggests:
[Counsel]: — it appears that what the Court is telling us is that we did not do and should have done is that we did not prove sufficiently that Shawn [sic] did not have a gun in his hand.
[The Court]: Well, stated a little differently, you have the burden of proving an unjustified shooting or the use of excessive force by Officer Green. Not technically that Shawn [sic] was unarmed, but because your theory is that Officer Green shot him while he was unarmed, that would be proof that the shooting was unjustified and that excessive force had been used.
But it wouldn’t matter how you proved that the shooting was a result of excessive force so long as you prove that.
. The same standard applies in the context of a motion for summary judgment. "The mov-ant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict.”
Anderson,
. We have "specifically left open the question of who bears the burden on the privilege issue.”
See District of Columbia v. Chinn,
.Tragically, in this case the gun that was found in Evans’s left hand after he was shot turned out to be a BB gun unlikely to inflict serious injury to Officer Green, a fact that an experienced officer would have known — and would have undermined a defense of qualified privilege — if the officer had perceived it to be a relatively inoffensive BB gun. The testimony at trial, however, was that the BB gun "[l]ooked like a semi automatic handgun,” such that the officer could have nonetheless been in reasonable (although mistaken) fear for his life.
See Holder,
. An "unauthorized gun,” as used by appellant, refers to a gun that an officer does not possess in the course of his official duties and is not traceable to him.
. A "throw down” gun is used to refer to a weapon — e.g., an "unauthorized gun” — that can be used ("planted”) to incriminate a suspect.
. Officer Mosely was impeached on this point by a statement he had made to investigators of the MPD Internal Affairs Division that he recalled being questioned about a "BB gun or starter gun I had in my ... briefcase.”
. There were no fingerprints — Mosely's or Evans’s — recovered from the gun. Lt. Per-seaud and Officer Conrad gave equivocal testimony about whether the unauthorized gun they had seen at the police station resembled the gun recovered after the shooting, or was more similar to the starter pistol Officer Mosely produced at trial. Although Officer Conrad said the gun found in the car at the time of the shooting looked like Officer Mosely’s unauthorized gun, he also testified, as the trial court noted, that the gun Officer Mosely had was a revolver whereas the one found at the shooting was an automatic or semiautomatic pistol.
.
See also Moore v. Chesapeake & O Ry. Co.,
. Appellant also argues that the forensic expert's testimony about the likely range of 12 inches from which the second shot (to the head) was fired, permitted the jury to infer that the first shot was a "contact shot” up against Evans’s chest because Officer Green testified that he stepped back before he fired the second shot. From this, according to appellant, the jury could reject Officer Green’s testimony that he was about two and a half to three feet from Evans when he fired the first shot, and, further, infer that he did not shoot Evans out of fear for his life. We note, however, that Officer Green testified that he was holding the gun with both hands and had his arms extended when he fired, and then took a step “a little bit further back,” which would account for the expert’s opinion based on the stippling around the head wound. Moreover, the jury’s rejection of Officer Green’s assessment of the exact location from which the shots were fired would not necessarily negate that the use of force was justified if Evans was pointing a gun in Officer Green’s direction. Appellant’s argument would impermissibly allow a very speculative conclusion.
. Appellant painted a scene where the driver had stopped the car of his own accord and that he and Evans were about to exit from the vehicle when the officers approached with their evil purpose. Because the inside handle of the passenger door was broken (as shown by a photograph admitted into evidence), Evans had innocently turned to face the window in order to reach around with his left hand to open the door using the outside handle. This would account for the bullet wounds to the middle of his chest and face.
. These interviews consisted of statements made to the interviewees or conversations overheard by the interviewees that alleged that Officers Green and Mosely were racially motivated to select black men to harass and, worse, to shoot them. Among the sickening details in the reports is that they discussed the shooting immediately before Evans was killed, and then planned to hold a party at which a congratulatory card would be presented with the "image of a black person” to "celebrate” the shooting of Evans.
.In its brief and during oral argument, the District maintained that the transcript of the trial judge’s oral ruling was not part of the record on appeal and thus, appellant had not met her "duty to present this court with a record sufficient to show affirmatively that error occurred."
Robinson v. Howard Univ.,
The IAD reports (appellant’s exhibits 15-27) were not admitted into evidence and were not listed in the Designation of Record. The transcript indicates, however, that the trial court suggested to counsel that, to preserve them for appellate review, counsel should present them directly to this court. Appellant has included the reports in the appendix filed with this court. Although this was not the proper procedure at the time, in view of the trial court's direction to counsel, we treat them as part of the record on appeal as it is apparent from the transcript that the trial judge had the reports and knew what was in them. The District does not contend that the reports in the appendix are not the ones that were presented to the judge at trial. We, therefore, take note of the reports and their content in assessing appellant's claim of trial court error.
. The trial judge did permit Officer Mosely to be questioned about the allegations in the reports, but only for purposes of impeachment,
see Brooks v. United States,
Officer Mosely, on the other hand, reiterated that he and Officer Green had conducted a routine stop for traffic violations. He denied having talked to Sgt. Murphy at all and also denied each of the allegations Murphy had made. He (as well as Officer Green) explained that the supposed "party” for Officer Green was no more than a gathering at Officer Green’s house — that had been planned before the shooting — so that several officers could help Officer Green fix up his house prior to sale. Officer Mosely's testimony was generally consistent with the interview he gave during the IAD investigation.
. The IAD reports were part of a criminal investigation, which resulted in no charges against the officers. A record will not come within the business records exception if it is prepared in anticipation of litigation.
See Montgomery,
Nor do we think that the IAD reports would have been admissible under the exception for
public
records and reports that contain “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.” Fed.R.Evid. 803(8).
See Bowman
v.
Redding & Co.,
. There is also no merit to appellant's contention that the hearsay statements during the investigatory interviews recorded in the reports that were conducted some time after the shooting, come within the exceptions for excited utterances and present sense impressions.
See Hallums v. United States,
. Appellant also argues that the court should have granted her motion to amend the complaint to add a claim under 42 U.S.C. § 1983, which she filed upon receiving from the District the reports of the MPD's Internal Affairs Division. As we conclude that the reports were properly excluded, any error in denying the motion to amend the complaint would have been harmless. As the evidence admitted is insufficient to overcome the defense of privilege to a claim of assault and battery, it would be similarly insufficient in the context of an immunity defense to a constitutional claim.
See Kotsch, supra
note 5,