Lead Opinion
In the morning of 19 May 1989 City of St. Louis police officers stopped the car driven by 22-year-old Sorkis Sanders-El pursuant to a warrant for his arrest. The officers arrested Sanders-El, handcuffed him, and put him in the back seat of a police vehicle. As one of the officers was closing the door of the vehicle, Sanders-El kicked it open and fled. The officers gave chase. When the officers re-apprehended Sanders-El — who was still handcuffed — a struggle ensued during which Sanders-El sustained injuries to his eye, face, and head.
Sanders-El argues there were numerous prejudicial errors in the trial below, including faulty evidentiary rulings, incomplete instructions to the jury, and racially biased peremрtory challenges to members of the venire. What most troubles us, however, was the intentionally prejudicial conduct of defense counsel—particularly an incident in which defense сounsel, when cross-examining the plaintiff about prior criminal convictions, dramatically dropped a lengthy computer printout in front of the jury.
The manifest intent of the conduct was to arouse the prejudices of the jury by leading it to believe Sanders-El had the conviction record of a veteran vocational criminal. Counsel conducted this piece of theatrics despite pretrial discussions in which the court indicated its intention not to admit such evidence. After objections by both the plaintiff and his counsel, the court excused the jury and аdmonished defense counsel against a repetition of the display:
[T]he record should reflect that defense counsel ... beginning to question the witness about his prior record dramatically dropped in front of the jury a computer printout of some approximately— what looks like about 10 feet of paper [—] then beginning to question the witness from it. That I think is uncalled fоr. It’s not been shown to me that he has convictions which would warrant that kind of a display in front of the jury and I will caution you not to engage in such displays again in this lawsuit.
Yol. I Noce Trial Transcript at 142 (No. 89-1710-C(2)). Plaintiff also moved the court for sanctions and a mistrial, and the court denied the motion.
The standard of review applicable to a trial court’s denial of a motion for mistriаl is abuse of discretion. United States v. Muza,
More than eighty-five years ago this court made clear that under our system of jurisprudenсe
[i]t is the duty of the court and of its officers, the counsel of the parties, to prevent the jury from the consideration of extraneous issues, of irrelevant evidence, and of errоneous views of the law, to guard it against the influence of passion and prejudice, and to assure to the litigants a fair and impartial trial. An omission by court or counsel to discharge this duty, оr a persistent violation of it, is a fatal error, because it makes the trial unfair.
Union Pac. R.R. Co. v. Field,
Defendants cite 88 C.J.S. Trial § 199 (1955) for the proposition that improper conduct by counsel ordinarily is cured by rebuke or reprimand of counsel if the conduct is not repeated. The same authority, however, states in black letter that “[i]t is highly improper for counsel, acting in bad faith, to make statements or ask questions or engage in other conduct as to witnesses merely to prejudice his opponent’s case before the jury.” Id. § 162(b). Further, “[t]he misconduct of counsel may be such that its effect сannot be overcome by an admonition to the jury ... [or] by rebuke
It is not only the conscious impropriety of counsel here that we find troubling, but also the nature of the information counsel improperly intended to convey tо the jury. Before the second trial commenced, the judge indicated that Sanders-El’s prior felony convictions were admissible for impeachment purposes, but that it was his intention not tо allow evidence of prior arrests or probation violations. This sound evidentiary ruling conforms to “[t]he longstanding rule in this circuit ... that the credibility of a witness may not be impeached by showing that he has been accused of, charged with, or arrested for a crime which has not culminated in a conviction.” United States v. Kirk,
Whether errors had a significant prejudicial influence on the jury in a particular сase admittedly is a fine question of judgment in which precedents give little guidance, for what may be harmless in a case where the evidence strongly favors one party may be fatally рrejudicial in a close case. Fortunato v. Ford Motor Co.,
Even out of context we are dismayed at defense counsel’s impertinence, and agree with the trial judge that the conduct was “uncalled for.” If this were an isolated incident in a сase in which the dispute were not as close, we might have difficulty finding prejudice. In this case, however, we encounter no such difficulty. First, the case was exceedingly close — so clоse that once already a jury could not agree. Second, the incident was neither isolated nor accidental. Counsel, knowing that such evidence was irrelevant and prejudiсial, once already had alluded to the plaintiffs arrest record in front of the jury. After the court sustained the objection to that tactic, counsel resorted to the less candid but еqually prejudicial theatrical display at issue. Third, the record does not reveal that the jury received any curative instruction. Left with the distinct impression that the plaintiff was a hardenеd criminal with a long history of arrests, the jury retired to consider its verdict without an instruction from the court to disregard such evidence in its deliberations. Fourth, as the case law instructs, the nature of this irrelevant evidence is especially prejudicial. Fifth, considering the climate of the contest, we note that this claim by a black plaintiff against white police officers rests largely on the word of Sanders-El against that of the police. Such a case, of necessity, brings the credibility of the witnesses sharply into focus — thus highlighting the significance of the resulting prejudice. See United States v. Pennix,
Considering all the circumstances of the case, we find prejudicial error in defense counsel’s courtroom misconduct, and abuse óf discretion in the trial court’s denial of plaintiff’s motiоn for a mistrial. The other alleged errors we do not reach. Accordingly, based on the foregoing, we reverse and remand for a new trial.
Notes
. We note that defendants’ counsel of record on this appeal did not represent the defendants at trial.
Dissenting Opinion
dissenting.
The ruling of a trial court on a motion for mistrial is subject to a deferential standard of review. United States v. Huff,
Here, the trial court rebuked counsel for dropping the computer рrintout in front of the jury, and the offending conduct was not repeated. The jury was entitled to weigh plaintiffs prior convictions in assessing his credibility, and aside from anything improperly communicatеd to the jury about plaintiffs prior arrests, the jury knew by his own admission that he had not led a saintly life. The trial court was in a far better position than we are to make a well-informed judgment as to whеther misconduct by the defendants’ counsel had unfairly prejudiced the jury’s attitude toward the plaintiff. The finding that it had not comes to us from an experienced and respected trial judge, and I see no compelling reason for this Court to disturb that finding.
It is all too easy for this Court, working from a cold record and applying broad principles of trial practice, to assign to events occurring during the course of trial a significance they did not actually have. That is precisely why a reviewing court should give broad deference to the ruling made by the trial court in matters of this sort. As I am unable to conclude that the trial court abused its discretion in denying plaintiff’s motion for a mistrial, I would affirm the judgment entered on the jury verdict.