Timothy Rush v. James Smith Silas Hardison David Robbins James Conway Rita Krapf Nesby Moore Vincent Schoemehl

45 F.3d 1197

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 16, 1995
• Docket: 93-3585
• Status: Published

Opinions

MAGILL, Circuit Judge.

Timothy Rush appeals the trial court’s denial of his motions for a new trial and for default judgment in this civil rights action under 42 U.S.C. § 1983. Rush argues that the trial court erred by dismissing the sole black juror, by making prejudicial comments to the jury, by denying his motions for a new trial and default judgment based on defendants’ abuse of discovery, and by denying his motion for a new trial on grounds that the verdict was against the weight of the evidence. We affirm.

I. BACKGROUND

After an eight-day trial, running from February 22 through March 3, 1993,¹ a jury returned a verdict for defendants, St. Louis police officers and the St. Louis Board of Police Commissioners, in this excessive force claim. Timothy Rush appeals the trial court’s denial of his motion for a new trial, arguing that the trial was prejudiced by the dismissal of the sole black juror and by the court’s comments regarding that dismissal; that discovery abuses by defendants warranted a default judgment or new trial; and that the jury verdict was manifestly unjust and against the weight of the evidence.

A. Juror Dismissal

On the fourth day of trial, February 25, there was a snowstorm in St. Louis resulting in ten to fourteen inches of snow on the ground by morning. Dorothy Bleuett, the only black juror, advised the trial court’s staff that she would not appear that day due to the snow. Before the judge’s arrival, plaintiffs counsel requested that a marshal pick Bleuett up in his car. The marshal agreed, but the judge indicated by telephone that the marshal was not to leave court, as only a “skeleton staff’ was present that day. IV Trial Tr. at 7. When the judge arrived at court, he stated to counsel that the jurors present were the jurors who would sit, and that it was already late and “ample time to start this case.” TV Trial Tr. at 7-8. Plaintiffs counsel requested permission to send a taxicab for Bleuett, but the judge denied the request on the grounds that party involvement in juror transportation was problematic, and that there was no guarantee that Bleuett would be willing to come to court even if a taxi were provided.

When the jury entered, the court explained Bleuett’s absence to them:

I’ve got to preserve the justice and pursuit of justice by this Court, prevailed upon the City to put at least one of those black ladies on this panel so that Mr. Rush would be at least represented ethnic-wise or race-wise. I just, I’m not a damn fool. I haven’t been around here for seventy-six years and not found out that the races have a tendency to stick together and that may be good or bad, but whatever it is, it exists.

TV Trial Tr. at 19. After the judge completed his remarks to the jury, counsel approached the bench:

MR. DICK [Counsel for plaintiff]: ... I know the Court’s intention is good, but I would just, I think what was said might give the impression that the City was the one who graciously put a black juror on.

THE COURT: I put the black juror on. I said, “I did it.” I asked the attorneys to do it. I didn’t say which one.

MR. SINGER [Counsel for plaintiff]: I thought the City gracious, — I thought you used the term that the City graciously agreed and maybe I’m mistaken, Judge, but,—

THE COURT: Well, I’ll clear it up if I did.

MR. SINGER: Well, now Judge, I think that’ll only emphasize what was done.

THE COURT: Well, what do you want me to do?

MR. SINGER: Well, I mean, I’d like to go on and try this case. If your Honor thinks he can correct the measure without any further emphasis,—

THE COURT: Okay, let’s go.

MR. SINGER: —then I would agree to do it, but, — Okay. The first witness, we had asked the City to produce Mr. Scott.

IV Trial Tr. at 20-21.

B. Discovery

Before trial, plaintiff Rush presented defendants with a request for production of documents concerning prior firearms training provided to St. Louis police officers, including defendant Smith. Defendants responded that they had no documents concerning the annual firearms qualification program as it was when Smith graduated from the police academy or concerning changes in the program since that time; that Smith had not attended any in-service firearms courses other than annual qualifications since graduating from the academy because such courses did not exist; and that they objected to requests for all proposals or requests presented to the Board of Police Commissioners concerning the provision of firearms training to St. Louis police officers and for all complaints where it was alleged that a St. Louis police officer had misused firearms or wrongfully shot at an individual. Among documents produced by defendants was a Police Department Special Order providing for administrative investigation and report (ARTS report) regarding every incident in which an officer discharges a firearm, an annual shots fired report, and establishing a firearms review committee.

Plaintiff then presented defendants with a second request for production of documents, requesting production of the ARTS report on the incident at issue in the case, all ARTS reports prepared pursuant to the Special Order, all annual shots fired reports, and all firearms review committee reports and recommendations. Defendants objected to the requests for the ARTS reports and for the shots fired reports as burdensome.

Plaintiff filed a motion to compel discovery of the documents not produced by defendants, and on February 11, there was a hearing on this motion. At the conclusion of the hearing, the court ordered defendants to produce any documents showing purchases of firearms training equipment, any documents regarding firearms training proposals rejected during the previous seven years, and any information regarding the use or misuse of firearms by police officers. In addition, the court ordered the Board of Police Commissioners to designate competent witnesses for deposition on this subject. Defendants produced documents regarding the purchase of a firearms simulator, but no documents concerning a 1992 firearms study, no ARTS reports, and no other documents concerning the use of firearms. The Board provided a list of potential witnesses for deposition.

On the first day of trial, February 22, plaintiff argued a motion for default judgment based on allegations that defendants failed to comply with discovery orders; the motion was denied. On the third day of trial, February 24, defendants provided plaintiff with documents constituting the underlying materials for a study concerning police use of firearms conducted by the police department in 1992. That evening, plaintiff deposed the police department employee who delivered the documents. On February 25, plaintiff again raised a motion for default judgment; again, it was denied.

C. Weight of the Evidence

The facts of the incident from which this case arose were presented to the jury in the form of directly conflicting testimony by plaintiffs and defendants’ witnesses. It is clear that plaintiff Rush was shot by St. Louis police officer Smith at approximately 12:30 a.m. on January 1, 1990, in or near his house. The circumstances surrounding the shooting, however, were presented differently to the jury by plaintiff and by defendants.

Plaintiffs witnesses testified that plaintiff Rush was in his house on the second floor, wearing only pajama bottoms, while Michael Mayhorn, a guest at the house, was in the backyard firing a shotgun in celebration of the new year. Rush’s grandmother asked that Rush stop Mayhorn from firing further shots. Rush descended to the kitchen to do so and, while in the kitchen looking out through the screen door, was shot by Smith.

Defendants’ witnesses testified that, responding to a call reporting shots in the area, officers Smith and Hardison approached the rear yard of the house and saw two figures in the yard, one of whom was firing a shotgun at them. After twelve to fourteen shots, Smith returned fire, firing a total of five shots. During this exchange, the figure with the gun, who was wearing blue pants and a dark shirt, passed it to the second figure, and entered the house. Two neighbors testified that they saw two figures in the yard. One neighbor, Pamela Rudderforth, testified that she saw one of the figures firing at two police officers who were behind a tree, and that one of the figures then slumped over and climbed up the back stairs into the house. Plaintiffs witness testified that Rudderforth could not have seen the back of the house from her window; defendants’ witness testified that she could.

II. DISCUSSION

Rush first argues that the trial eourt erred by denying his motion for a new trial on the grounds that the court’s dismissal of the sole black juror and the court’s comments to the jury regarding that dismissal prejudiced his trial.

We review the trial court’s decision to dismiss Dorothy Bleuett from the jury for abuse of discretion. United States v. Key, 717 F.2d 1206, 1209 (8th Cir.1983). “The decision of whether or not to remove a juror is normally vested in the wise discretion of the trial court. If the record shows a legitimate basis for his decision, there is no abuse of that discretion.” Id. (citing United States v. Peters, 617 F.2d 503 (7th Cir.1980)). The trial court’s findings show a legitimate basis for Bleuett’s dismissal. Bleuett informed the eourt that she would not attend court that day because she would not travel when there was almost a foot of snow on the ground. The court would not authorize a marshal to “chauffeur” Bleuett into court because, due to the snow, the courthouse was already functioning with only a “skeleton staff’ that day, and because the court did not wish to assume the responsibility of transporting a juror under dangerous road conditions. In addition, if Bleuett was driven to the courthouse, provisions would have to be made to return her to her home at the end of the day. The court further would not allow plaintiff to send a taxicab to retrieve Bleuett, because the day’s proceedings were already late in beginning, and this request would cause more delay, and because the court did not find it appropriate for a party to provide transportation services to a juror. These findings show a legitimate basis for the court’s decision to dismiss Bleuett and to seat instead one of the two alternate jurors available, and we find that the trial court did not abuse its discretion by dismissing Bleuett.

Rush argues that the trial court nevertheless abused its discretion because of the “importance that Plaintiff be racially represented on the jury.” Appellant’s Br. at 35. The court, concerned about Batson2 implications, had made a special effort to make sure that Bleuett, who is black, was on the original jury despite the government’s inclination to strike her. I Trial Tr. at 155-56. The remainder of the jurors empaneled were all white. Timothy Rush is black, and his fact witnesses are all also black. Of the two police officers directly involved in the incident at issue, one is white and the other black. The defendant Board of Police Commissioners is a multi-racial group. Batson, however, applies to a government advocate’s attempt to strike potential jurors because of their race, not to a court’s decision to dismiss a seated juror for legitimate, non-racial cause. The court stated on the record a legitimate basis for Bleuett’s dismissal, and the fact that she was the only black member of the jury does not invalidate that legitimate basis.³

More problematic are the court’s comments to the jury regarding Bleuett’s dismissal. The court’s statements regarding the circumstances of Bleuett’s empanelment and the court’s views regarding the tendency of races to “stick together” are beyond inappropriate: they egregiously and obnoxiously flout even minimal standards of judicial propriety and integrity, and we strongly reprimand the court for engaging in behavior that has no place in the courts of the United States.

The plaintiff, however, failed to lodge an objection to the court’s comments. When the complaining party has failed to object to the court’s statements at trial, our review is for plain error only. Cowens v. Siemens-Elema AB, 837 F.2d 817, 823 (8th Cir.1988); see Fed.R.Civ.P. 51. Regardless of the impropriety of the court’s statements, plain error is found only when the court’s comments destroyed the overall fairness of the trial. Harris v. Steelweld Equip. Co., 869 F.2d 396, 403 (8th Cir.), cert. denied, 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37 (1989); Williams v. Fermenta Animal Health Co., 984 F.2d 261, 264 (8th Cir.1993). More specifically, we do not reverse the trial court for misconduct “unless it appears that the conduct complained of was intended or calculated to disparage the [plaintiff] in the eyes of the jury and to prevent the jury from exercising an impartial judgment upon the merits.” Id. at 400 (internal quotations omitted). In addition, the complaining party must show that he was prejudiced by the misconduct. Id.

Counsel for the plaintiff did not object on the record to the court’s comments, nor did he request a mistrial. The court offered to clear up any misunderstanding regarding his comments, but counsel rejected this offer. When asked by the court what he wanted the court to do, counsel replied that he wished to go on with the case. He then shifted the discussion to the topic of the first witness that day, effectively foreclosing further discussion of a remedy for the comments.

We find that the court’s comments were not plain error and did not destroy the overall fairness of the trial. Although the comments were improper, they did not indicate a preference for the defendants over the plaintiff or disparage the plaintiff, nor did they reach the merits of the case or constitute advocacy in favor of either party. See Williams, 984 F.2d at 264 (comments not intended to suggest an opinion as to an issue in the ease and comments not indicating a partiality for a party not plain error). We have often held that “a few improper comments are not necessarily enough to require reversal,” see, e.g., Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1330 (8th Cir.1985), and have considered the weight of improper comments in the context of the length and complexity of the trial, see id. (court’s comment in product liability case that he had “put air in a lot of tires, but [he] never had one blow up on [him]” not sufficient for reversal, because this was a minor incident in a lengthy trial); Cowens, 837 F.2d at 824 (comments considered in light of entire seven-volume trial transcript). In this case, we find that a single improper comment, during an eight-day trial, not reaching the merits of the ease or indicating a partiality for a particular party, did not destroy the overall fairness of the trial or prejudice the plaintiff. We therefore find no plain error by the trial court.

Rush next argues that the trial court erred by denying his motions for default judgment and new trial on the grounds that the Board of Police Commissioners failed to respond to discovery requests and to court orders for document and witness production. These discovery requests, however, related to a failure to train claim against the Board arising from Officer Smith’s shooting of Rush. In Los Angeles v. Heller, the Supreme Court held that, when a police officer is found to have inflicted no constitutional injury in a § 1983 suit, it follows that this finding is dispositive as to the liability of the supervising police commission and municipality as well. 475 U.S. 796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1985) (per curiam). The supervising authorities “were sued only because they were thought responsible for [the police officer’s] actions; if the latter inflicted no constitutional injury on [plaintiff], it is inconceivable that [the city and its Police Commission] could be liable.” Id.

The documents and witnesses requested by the plaintiff from the Board were relevant to establishing a claim against the Board for failure to train police officers in the use of firearms. This claim, however, is now moot, because the jury verdict finding no constitutional violation on the part of the individual officers eliminates the basis for the Board’s liability. See Robinson v. City of St. Charles, Mo., 972 F.2d 974, 977 (8th Cir.1992) (jury verdict awarding no damages to plaintiff in § 1983 suit against police officers rendered moot failure to train claim against the municipality). We find that any error regarding the course of discovery was harmless, because the question of the Board’s liability is now moot.

Finally, Rush argues that the trial court erred by denying his motion for a new trial on the grounds that the jury verdict was against the weight of the evidence and resulted in a manifest injustice. We review the trial court’s decision not to grant a new trial on these grounds for abuse of discretion. White v. Pence, 961 F.2d 776, 781 (8th Cir.1992). A trial court, when considering a motion for a new trial on grounds that the verdict was against the weight of the evidence, may rely on its own reading of the evidence and assessment of witnesses’ credibility in determining whether a manifest injustice has occurred. Id. at 780. This discretion is, however, limited. When the evidence is such that reasonable persons could differ as to the result, such as a direct conflict in credible and plausible evidence, the determination is properly left to the jury. Id. at 781 (citing Fireman’s Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d 179, 187 (8th Cir.), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973)); see Washburn v. Kansas City Life Ins. Co., 831 F.2d 1404, 1409-10 (8th Cir.1987).

Testimony by plaintiffs and by defendants’ witnesses as to exactly what happened after midnight on January 1 was in direct conflict. Plaintiff and his witnesses, members of his household, stated that plaintiff was in the house when shot. Defendant police officers and a neighbor stated that a figure resembling Rush was in the yard when shot, that he or his companion was shooting at the officers, and that the figure entered the house after the shooting. Each story is straightforward and credible. When “diametrically opposed testimony from credible witnesses” is at issue, the choice of which story to believe is to be made by the jury, not by the trial court.⁴ White, 961 F.2d at . We therefore find that the trial court did not abuse its discretion in denying plaintiffs motion for a new trial on the grounds that the verdict was against the weight of the evidence.

III. CONCLUSION

For the above reasons, the denial of appellant’s motions for a new trial and for default judgment is affirmed.

1 . All dates refer to 1993 unless otherwise indicated.

2 . In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1985), the Supreme Court held that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” Id. at 89, 106 S.Ct. at 1719. In Reynolds v. City of Little Rock, 893 F.2d 1004 (8th Cir.1990), cert. denied, 501 U.S. 1204, 111 S.Ct. 2795, 115 L.Ed.2d 969 (1991), this court held that the Batson rule applies to government counsel in civil cases as well as in criminal cases.

3 . The plaintiff also argues that we should follow United States v. Tabacca, 924 F.2d 906 (9th Cir.1991). Tabacca, however, is readily distinguishable. In Tabacca, the court dismissed a juror after the jury had already retired for deliberation, leaving a jury of only eleven. Id. at 914. In the instant case, an alternate juror was available, and the number of jurors remained at six.

4 . The court, in its order of June 1, unfortunately states that "after careful review of. the evidence, the Court cannot find that there was not sufficient evidence to support [the] verdict.” This language is that applicable to a motion for JNOV, not a new trial on the grounds that the verdict is against the weight of the evidence. In White v. Pence, the trial judge expressed his confusion regarding whether he could make an independent reading of the evidence in a motion for new trial, and stated that he thought that he could not, but if he could, he would grant the motion due to manifest injustice. 961 F.2d at 778. We remanded the case, finding that had the court stated its reasons for its reading of the evidence, a new trial may have been warranted. Id. at 782. In this case, the trial judge used incorrect language in his denial of plaintiff's motion, but he states that he made a careful review of the evidence, and gives no indication that he had reason to find any of the witnesses incredible. Because, upon our review of the record, we find that a new trial is precluded in this case as one in which reasonable persons could differ as to the result to be drawn from the evidence, the trial court's erroneous statement of the standard is harmless error. We, however, strongly encourage the court to take care to state the correct legal standards in future orders.