637 F.2d 846
7 Fed. R. Evid. Serv. 1069
Aurora O'NEAL as Administratrix of Estate of Tyrone O'Neal,
deceased, Plaintiff-Appellant,
v.
Brinton Esty, Detective Edward MORGAN, Robert Garbus and
Sergeant Leslie Williams, Defendants-Appellees.
No. 145, Docket 80-7286.
United States Court of Appeals,
Second Circuit.
Argued Sept. 30, 1980.
Decided Dec. 23, 1980.
Gerald Murray, Jamaica, N. Y., for plaintiff-appellant.
Larry A. Sonnenshein, Sparkill, N. Y. (Allen G. Schwartz, Corp. Counsel of the City of New York, and Angelo Aiosa, New York City, on brief), for defendants-appellees.
Before OAKES and NEWMAN, Circuit Judges, and COFFRIN, District Judge.
NEWMAN, Circuit Judge:
This is an appeal from a judgment for the defendants-appellees entered after a jury verdict in the District Court for the Eastern District of New York (Mark Costantino, Judge) in an action for damages brought pursuant to 42 U.S.C. § 1983 (1976). The plaintiff-appellant's complaint alleged that the defendants, New York City police officers, violated the civil rights of her deceased husband, Tyrone O'Neal, by falsely arresting him, beating him, and failing to provide him with prompt and adequate medical care. The principal issue on appeal is whether the District Court erred in excluding testimony concerning an admission allegedly made by one of the defendants that they "beat up" O'Neal. Concluding that this exclusion of evidence going to the heart of the case was error, we reverse and remand for a new trial.
Facts
The bulk of the plaintiff's direct case consisted of two pretrial depositions of her husband. He testified that prior to the events giving rise to the complaint he had assisted several officers of the Narcotics Division of the New York City Police Department in an investigation of narcotics trafficking in Jamaica, Queens and that he had applied to become a paid informer. On March 4, 1978, the date of the events in question, at approximately 10:00 p. m., he entered a vacant building in Jamaica, which he knew to be a "drug shooting gallery," in an effort to obtain information. After being admitted to the second floor, he saw two hypodermic needles abandoned on the floor and a person who appeared to be receiving a drug injection from the operator of the "shooting gallery." Moments later, a contingent of police officers arrived, causing the other people at the scene to flee the premises. O'Neal testified that the officers seized the hypodermic needles and arrested and handcuffed him in a nearby room. He stated that he was then placed in an unmarked car with the four appellees. He recalled that Officer Esty, the arresting officer, sat to his right in the rear seat of the vehicle; that Sergeant Williams sat to his left; that Detective Morgan, Esty's partner, occupied the passenger side of the front seat while Officer Garbus, their other partner, drove. He claimed that he advised the officers that he was doing undercover work and that, if allowed to make a telephone call, he could clear up the misunderstanding. He testified that Esty reacted by punching him in the face with his fist and that Williams then struck him in the face repeatedly with a hand-held police radio. He stated that he tried to avoid further blows by ducking his head between his knees but that Morgan and Garbus were able to raise him by the collar and deliver additional blows from their positions in the front seat. The beating continued in flurries, he claimed, until he lost consciousness, bleeding from his mouth, the left side of his face, and his left ear. At the precinct house, he was booked on charges of burglary in the second degree, unlawful possession of a hypodermic needle, resisting arrest, and criminal impersonation.
The plaintiff also offered the testimony of New York City Detective Wayne Carrington, who had worked with O'Neal prior to the incident. Carrington testified that he had asked O'Neal to gather information concerning drug trafficking in the City. He also stated that, at the time of the arrest, he was processing O'Neal's application to become a paid informer.
The defense consisted of the testimony of the four defendants. Their version of the events inside the building agreed with the version given by O'Neal. They stated that after they got in the car, O'Neal told them "I'm just like you," but that his answers to questions posed in "police jargon" convinced them he was not a police informer. All denied using excessive force to effect the arrest or at any time during the drive to the precinct house.
At the close of the plaintiff's case, the District Court granted the defendants' motion for a directed verdict on the claim of false arrest, and submitted the remaining claims to the jury, which returned a defendants' verdict.The Exclusion of Evidence
The plaintiff unsuccessfully attempted on two occasions to elicit testimony concerning an admission allegedly made by one of the defendants during a telephone conversation with Detective Carrington. The plaintiff offered to prove that the officer with whom Carrington had spoken had admitted that the group of officers at the arrest scene "beat up" O'Neal.
1. The plaintiff first attempted to elicit testimony concerning the admission during the direct examination of Detective Carrington. Carrington testified that when he learned of O'Neal's arrest, he visited O'Neal in the detention center and was told by O'Neal that the defendants had beaten him after placing him under arrest. Carrington stated that he then contacted the Assistant District Attorney handling the case to ask if he could check the records "to see exactly what the officers said compared to what Mr. O'Neal (said)." The plaintiff did not pursue this line of inquiry. Instead, the examination, set out in the margin, sought to establish the identity of the person who had spoken to Carrington and the content of the conversation. The plaintiff elicited testimony that Carrington had spoken by telephone to a person who identified himself as one of the partners of the arresting officer. Objection to the content of that conversation was sustained.
The defendants contend that the District Court's exclusion of the conversation was proper because the plaintiff failed to satisfy the authentication or identification requirement of Rule 901(a) of the Federal Rules of Evidence. Rule 901(a) provides that "the requirement of authentication or identification is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The Advisory Committee Note to the Rule explains that "authentication and identification represent a special aspect of relevancy (citation omitted). Thus a telephone conversation may be irrelevant because on an unrelated topic or because the speaker is not identified.
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637 F.2d 846
7 Fed. R. Evid. Serv. 1069
Aurora O'NEAL as Administratrix of Estate of Tyrone O'Neal,
deceased, Plaintiff-Appellant,
v.
Brinton Esty, Detective Edward MORGAN, Robert Garbus and
Sergeant Leslie Williams, Defendants-Appellees.
No. 145, Docket 80-7286.
United States Court of Appeals,
Second Circuit.
Argued Sept. 30, 1980.
Decided Dec. 23, 1980.
Gerald Murray, Jamaica, N. Y., for plaintiff-appellant.
Larry A. Sonnenshein, Sparkill, N. Y. (Allen G. Schwartz, Corp. Counsel of the City of New York, and Angelo Aiosa, New York City, on brief), for defendants-appellees.
Before OAKES and NEWMAN, Circuit Judges, and COFFRIN, District Judge.
NEWMAN, Circuit Judge:
This is an appeal from a judgment for the defendants-appellees entered after a jury verdict in the District Court for the Eastern District of New York (Mark Costantino, Judge) in an action for damages brought pursuant to 42 U.S.C. § 1983 (1976). The plaintiff-appellant's complaint alleged that the defendants, New York City police officers, violated the civil rights of her deceased husband, Tyrone O'Neal, by falsely arresting him, beating him, and failing to provide him with prompt and adequate medical care. The principal issue on appeal is whether the District Court erred in excluding testimony concerning an admission allegedly made by one of the defendants that they "beat up" O'Neal. Concluding that this exclusion of evidence going to the heart of the case was error, we reverse and remand for a new trial.
Facts
The bulk of the plaintiff's direct case consisted of two pretrial depositions of her husband. He testified that prior to the events giving rise to the complaint he had assisted several officers of the Narcotics Division of the New York City Police Department in an investigation of narcotics trafficking in Jamaica, Queens and that he had applied to become a paid informer. On March 4, 1978, the date of the events in question, at approximately 10:00 p. m., he entered a vacant building in Jamaica, which he knew to be a "drug shooting gallery," in an effort to obtain information. After being admitted to the second floor, he saw two hypodermic needles abandoned on the floor and a person who appeared to be receiving a drug injection from the operator of the "shooting gallery." Moments later, a contingent of police officers arrived, causing the other people at the scene to flee the premises. O'Neal testified that the officers seized the hypodermic needles and arrested and handcuffed him in a nearby room. He stated that he was then placed in an unmarked car with the four appellees. He recalled that Officer Esty, the arresting officer, sat to his right in the rear seat of the vehicle; that Sergeant Williams sat to his left; that Detective Morgan, Esty's partner, occupied the passenger side of the front seat while Officer Garbus, their other partner, drove. He claimed that he advised the officers that he was doing undercover work and that, if allowed to make a telephone call, he could clear up the misunderstanding. He testified that Esty reacted by punching him in the face with his fist and that Williams then struck him in the face repeatedly with a hand-held police radio. He stated that he tried to avoid further blows by ducking his head between his knees but that Morgan and Garbus were able to raise him by the collar and deliver additional blows from their positions in the front seat. The beating continued in flurries, he claimed, until he lost consciousness, bleeding from his mouth, the left side of his face, and his left ear. At the precinct house, he was booked on charges of burglary in the second degree, unlawful possession of a hypodermic needle, resisting arrest, and criminal impersonation.
The plaintiff also offered the testimony of New York City Detective Wayne Carrington, who had worked with O'Neal prior to the incident. Carrington testified that he had asked O'Neal to gather information concerning drug trafficking in the City. He also stated that, at the time of the arrest, he was processing O'Neal's application to become a paid informer.
The defense consisted of the testimony of the four defendants. Their version of the events inside the building agreed with the version given by O'Neal. They stated that after they got in the car, O'Neal told them "I'm just like you," but that his answers to questions posed in "police jargon" convinced them he was not a police informer. All denied using excessive force to effect the arrest or at any time during the drive to the precinct house.
At the close of the plaintiff's case, the District Court granted the defendants' motion for a directed verdict on the claim of false arrest, and submitted the remaining claims to the jury, which returned a defendants' verdict.The Exclusion of Evidence
The plaintiff unsuccessfully attempted on two occasions to elicit testimony concerning an admission allegedly made by one of the defendants during a telephone conversation with Detective Carrington. The plaintiff offered to prove that the officer with whom Carrington had spoken had admitted that the group of officers at the arrest scene "beat up" O'Neal.
1. The plaintiff first attempted to elicit testimony concerning the admission during the direct examination of Detective Carrington. Carrington testified that when he learned of O'Neal's arrest, he visited O'Neal in the detention center and was told by O'Neal that the defendants had beaten him after placing him under arrest. Carrington stated that he then contacted the Assistant District Attorney handling the case to ask if he could check the records "to see exactly what the officers said compared to what Mr. O'Neal (said)." The plaintiff did not pursue this line of inquiry. Instead, the examination, set out in the margin, sought to establish the identity of the person who had spoken to Carrington and the content of the conversation. The plaintiff elicited testimony that Carrington had spoken by telephone to a person who identified himself as one of the partners of the arresting officer. Objection to the content of that conversation was sustained.
The defendants contend that the District Court's exclusion of the conversation was proper because the plaintiff failed to satisfy the authentication or identification requirement of Rule 901(a) of the Federal Rules of Evidence. Rule 901(a) provides that "the requirement of authentication or identification is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The Advisory Committee Note to the Rule explains that "authentication and identification represent a special aspect of relevancy (citation omitted). Thus a telephone conversation may be irrelevant because on an unrelated topic or because the speaker is not identified. The latter aspect is the one here involved." The Advisory Committee Note further explains that "this requirement of showing authenticity or identity falls in the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b)."
The allegation of fact on which the relevancy of the admission depended in this case was that the person who made the admission to Carrington was one of the defendants. If this allegation was supported by sufficient evidence, the admission was clearly relevant to the claim of police brutality. Carrington could not identify the voice of the person with whom he spoke as that of one of the defendants, but voice recognition is not required. Under Rule 901(b)(6), circumstantial evidence, including self-identification, may be sufficient to identify the person who answers a telephone call. In this Circuit, self-identification of the person called at a place where he reasonably could be expected to be has long been regarded as sufficient. See United States v. Markis, 352 F.2d 860, 864 (2d Cir. 1965); Van Riper v. United States, 13 F.2d 961, 968 (2d Cir.), cert. denied sub nom. Ackerson v. United States, 273 U.S. 702, 47 S.Ct. 102, 71 L.Ed. 848 (1926). Carrington's testimony showed that he called the arresting officer at the Street Crime Unit, the place where all the defendants could be expected to be; that the call was referred to one of the arresting officer's partners; and that the person to whom the call was referred identified himself as the arresting officer's partner. These circumstances were sufficient to support a finding that the person who made the admission was one of the arresting officer's partners, Garbus or Morgan. See United States v. Fassoulis, 445 F.2d 13, 17 (2d Cir.), cert. denied, 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 100 (1971); United States v. LoBue, 180 F.Supp. 955, 956 (S.D.N.Y.1960), aff'd sub nom. United States v. Agueci, 310 F.2d 817 (2d Cir. 1962).
The defendants contend that even if the plaintiff succeeded in showing that the admission was made by either Garbus or Morgan, exclusion of the admission was proper because Rule 901(a) required the plaintiff to identify which of these two defendants made the admission. Although the defendants ground their argument on Rule 901(a), they could perhaps more plausibly base it on Rule 801(d)(2), which provides that a statement is not hearsay if it is "offered against a party" and is "his own statement." (Emphasis added). Here the plaintiff presented a sufficient basis for the jury to find that the admission was made by either Garbus or Morgan, but no evidence from which the jury could select between the two.
The proper handling of an admission that could reasonably be found to have been made by one of the defendants, not further identified, in a multi-defendant civil trial poses an issue of some uncertainty, which appears not to have been previously considered, at least by this Circuit. A strict approach to the rules of evidence might suggest that an admission is not relevant and hence cannot come into evidence until the trial judge, acting under Rule 104(b), has determined that there is at least sufficient evidence (adduced or to be presented) for the jury reasonably to find that it was made by the particular defendant against whom it is offered. On the other hand, justice might be better served and the Rules of Evidence more reasonably construed by permitting a plaintiff to inform the jury that one of the defendants made an admission, leaving to each defendant the burden of persuading the jury that the admission was not made by him.
Support for the latter approach may be drawn by analogy to the way some courts have handled somewhat similar problems in the field of tort law. One situation arises when the plaintiff presents evidence to show that two persons acted negligently toward him, but is unable to determine which of the two caused the injury he sustained. Professor Prosser offers the example of two defendants negligently firing weapons in a public area, with the bullet from one striking the plaintiff. If from ballistics or other evidence the plaintiff cannot determine which defendant caused his injury, Professor Prosser endorses the view that the burden of persuasion shifts to the defendants to prove that they did not cause the injury; if the jury is not persuaded by the evidence of either defendant, liability is imposed upon both defendants. See Prosser, The Law of Torts 243 and nn. 54-57 (4th ed. 1971) (collecting cases). Another situation occurs when a plaintiff cannot even ascertain which defendant was negligent, but offers evidence that at least one of a group of defendants negligently caused him injury. In Ybarra v. Spangard, 93 Cal.App.2d 43, 208 P.2d 445 (1949), an unconscious plaintiff undergoing an appendectomy sustained injury to his shoulder. The Court, using principles of res ipsa loquitur, permitted the jury to impose liability upon all the medical personnel involved in the operation, though it was unlikely that each was at fault. In effect, each defendant was assigned the burden of proof on the issues of both negligence and causation.
These examples are distinguishable from the situation in this case, but they nevertheless indicate judicial aversion in some circumstances to permitting a loss to fall upon an innocent plaintiff in circumstances where a limited group of defendants, one of whom is responsible for the injury, is in a better position than the plaintiff to pinpoint individual responsibility. We find the analogies sufficiently helpful to rely upon them at least for the limited purpose of developing a procedure for placing an admission in evidence in a multi-defendant civil trial. We conclude that when a plaintiff presents to the trial judge sufficient evidence from which a jury can reasonably find that an admission was made by one of a limited group of two or more of the defendants, the admission should be received in evidence and the jury should be instructed that it may consider the admission against each member of that group of defendants who fails to persuade the jury that he did not make the statement. In this case, since the plaintiff's evidence was sufficient to permit the jury to find that the admission was made by either Garbus or Morgan, the admission should have been received in evidence in the cases of these two defendants, with the burden of proof on each of them to disprove that he made the statement. Of course, if both denied making the statement, the jury should then have been told that if it was persuaded by their denials and by any other evidence tending to show that neither made the admission, the jury should not consider the statement against either of them. At this point in the trial, the statement would not have been admissible against either of the other two appellees, Esty and Williams.
2. The plaintiff's second attempt to elicit testimony concerning the admission occurred during her cross-examination of the arresting officer, defendant Esty. The questioning, set out in the margin, sought to pursue testimony by defendant Garbus that Esty had told Garbus that it was Esty who had spoken to Carrington. When Esty was asked whether he had talked to Carrington, objection was made and sustained. The objection was initially made on the ground that the answer would be relevant only to the false arrest claim, which had been dismissed at the close of the plaintiff's case. When plaintiff's counsel argued that the conversation contained the admission of a beating and was relevant to the excessive force claim, defendants' counsel further objected on the ground that Carrington had testified that he had spoken to one of the arresting officer's partners, implying that he had not spoken to Esty, who was the arresting officer.
This objection was not well taken. Even though some of Carrington's testimony indicated that he had spoken to one of the partners of the arresting officer, the plaintiff was not bound by this version and was entitled to ask Esty if he was the one who had spoken to Carrington. If Esty had acknowledged speaking to Carrington, then, even if Esty denied making the admission, Carrington could have been recalled to testify to the content of the conversation, leaving for the jury the credibility issue as to whose version of the conversation was truthful. Moreover, if Esty had denied even speaking to Carrington, Carrington's version of the conversation would nonetheless have been admissible against him, because Garbus's testimony provided the jury with a reasonable basis to find that Esty was the person who had spoken to Carrington. Like Garbus and Morgan, Esty would then have had the burden of proof to persuade the jury that he had not spoken to Carrington, since the evidence would then have continued the uncertainty as to which of these three defendants had made the admission.
Since in each of the two instances described the District Court erred in excluding testimony concerning an admission crucial to the plaintiff's brutality claim, the judgment is reversed and a new trial is ordered.