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FLETCHER v. CITY OF NEW YORK

United States District Court, Southern District of New York


June 22, 1999

RUDY FLETCHER, PLAINTIFF,
v.
THE CITY OF NEW YORK, A MUNICIPAL ENTITY, THE NEW YORK CITY HOUSING AUTHORITY, A MUNICIPAL CORPORATION, POLICE OFFICER JEFFREY COUSIN, SHIELD # 3709, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER, POLICE OFFICERS WEST PAGE 329 "JOHN" BALESTRIERI AND "JOHN" RUIZ, FIRST NAMES AND SHIELD NUMBERS UNKNOWN, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS POLICE OFFICERS, AND POLICE OFFICERS JOHN DOES, WHOSE NAMES AND SHIELD NUMBERS ARE UNKNOWN, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS POLICE OFFICERS, DEFENDANTS.

The opinion of the court was delivered by: Berman, District Judge.

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Rudy Fletcher ("Plaintiff' or "Fletcher") has filed a motion in limine for an order precluding from trial introduction of evidence of his prior criminal convictions and prior drug use; and for an order admitting into evidence the entire personnel records of the individual police officer defendants; as well as the 1994 so-called Mollen Commission Report and police training manual. Defendants have cross-moved, in limine, seeking the admission of Plaintiffs prior criminal convictions (and use of aliases) and drug use; and precluding use at trial of the personnel records of the individual police officer defendants and the Mollen Commission Report.

For the reasons set forth below, Plaintiffs motion is granted in part and denied in part; and Defendants' motion is granted in part and denied in part.*fn1

II. DISCUSSION

A. Criminal Convictions and Use of Aliases

Defendants' seek to introduce into evidence the following criminal convictions of Plaintiff in order to impeach his credibility: (i) August 10, 1990 conviction for invalid use of a credit card with fraudulent intent, a Class-A misdemeanor under New York Penal Law § 165.15(1); (ii) March 26, 1991 conviction for criminal possession of a controlled substance, a Class-A misdemeanor under New York Penal Law § 220.03; (iii) February 24, 1992 conviction for intent/fraudulent obtaining transportation without paying, a Class-A misdemeanor under New York Penal Law § 165.15(3); (iv) April 29, 1993 guilty plea to intent/fraudulent obtaining transportation without paying, a Class-A misdemeanor under New York Penal Law § 165.15(3); and (v) June 29, 1993 guilty plea to

attempted robbery in the second degree, a Class-D felony under New York Penal Law § 110/160.0. (Joint Statement, pp. 2-3). Defendants also seek to introduce into evidence eighteen (18) aliases used by Plaintiff; Plaintiff used these aliases in connection with the commission of the (five) crimes listed above, as well as other (criminal) activities that are too remote in time to be admitted into evidence.*fn2

1. Crimes Involving Dishonesty or False Statement

Relying on Federal Rules of Evidence ("Fed.R.Evid.") 403 and 609, Plaintiff seeks to preclude from trial evidence of his prior criminal convictions asserting they are "irrelevant" and that their probative value is "substantially outweighed by the danger of unfair prejudice to the witness." (P1.Br., p. 3). Fed.R.Evid. 609(a)(2) provides, however, that "[for the purposes of attacking the credibility of a witness, ... (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment." (emphasis added). Fed.R.Evid. 609(a)(2) mandates the admission of evidence of all prior convictions involving dishonesty or false statement, "whether the conviction was a felony or misdemeanor." 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 609.03[1] (2nd ed. 1998). "[T]he courts have now clearly held that the trial court lacks discretion pursuant to Rule 403 in this instance, and that a cross-examiner has an absolute right to introduce a conviction involving dishonesty or false statement for impeachment purposes." Id.

Whether a crime involved dishonesty or false statement is a factual determination for the Court. "In evaluating a state conviction, the federal court must look to the elements of the crime that the prosecutor had to prove, not the details of the particular crime committed, to determine whether the conviction involved dishonesty." Id. The proponent of the evidence bears the burden of demonstrating that the conviction was for a crime that involved dishonesty or false statement. Id. See also United States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1977), cert. denied; 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143 (1977) ("[i]f the title of an offense leaves room for doubt, a prosecutor desiring to take advantage of automatic admission of a conviction ... must demonstrate to the court "that a particular prior conviction rested on facts warranting the dishonesty or false statement description'"). Here, the "titles" of certain of Plaintiffs convictions suggest crimes of dishonesty: Plaintiffs August 10, 1990 conviction for invalid use of a credit card; his February 24, 1992 conviction for intent/fraudulent obtaining transportation without paying; and his April 29, 1993 guilty plea to intent/fraudulent obtaining transportation without paying. The Court seeks additional information concerning these crimes, particularly as to any dishonesty or false statement involved. Therefore, at the forthcoming pre-trial conference on June 30, 1999 (at 10:30 a.m.), the Court will hold a further hearing concerning these criminal convictions and will make a determination as to their admissibility at that time. Cf United States v. Rivers, 693 F.2d 52, 54 (8th Cir. 1982) (held that trial court was justified in delaying it's ruling because "[t]he trial court at the time of the motion in limine did not have the facts necessary to determine whether the prior convictions should be admitted for purposes of impeachment under Rule 609(a)"). Counsel

should be prepared to discuss these three convictions in further detail, including the elements of the crimes that the prosecutors had to prove.

2. Crimes Not Involving Dishonesty or False Statement

Plaintiffs March 26, 1991 conviction for criminal possession of a controlled substance is a Class-A misdemeanor under New York Penal Law § 220.03.*fn3 New York Penal Law § 70.15 provides that the sentence of imprisonment for a Class-A misdemeanor "shall not exceed one year . . ." Therefore, as this crime did not involve dishonesty or fraud and was not "punishable by death or imprisonment in excess of one year, "it is inadmissible under Fed. R.Evid. 609(a). See, e.g., United States v. Estes, 994 F.2d 147, 149 (5th Cir. 1993) (state misdemeanor conviction punishable by imprisonment for "no more than one year" is inadmissable under Fed.R.Evid. 609(a)); United States v. Hayward; 6 F.3d 1241, 1253 (7th Cir. 1993), cert. denied; 511 U.S. 1004, 114 S.Ct. 1369, 128 L.Ed.2d 46 (1994) (misdemeanor conviction not admissible under Fed.R.Evid. 609 (a) to attack credibility because it did not involve dishonesty or false statement).

Plaintiffs June 29, 1993 guilty plea to attempted robbery in the second
degree is not a crime that involves dishonesty or false statement and
is, therefore, inadmissible under Fed.R.Evid. 609(a)(2). See United
States v. Smith,  551 F.2d 348, 362-63 (D.C.Cir. 1976) (robbery is not a
crime characterized by "crimen falsi"). See also United States v. Begay,
144 F.3d 1336, 1338 (10th Cir. 1998) ("prior robbery conviction is not
automatically admissible under Rule 609(a)(2)"); United States v.
Grandmont, 680 F.2d 867, 871 (1st Cir. 1982) ("robbery per se is not a
crime of dishonesty within the meaning of 609(a)(2)"). However, under
Fed.R.Evid. 609(a)(1) "prior convictions of all witnesses other than a
criminal defendant, if punishable by death or imprisonment in excess of
one year and not involving dishonesty or false statement, ... shall be
admitted subject to Rule 403." 4 Jack B. Weinstein & Margaret A. Berger,
Weinstein's Federal Evidence, § 609.04[3][a] (2nd ed. 1998).
Fed.R.Evid. 403 provides that relevant evidence "may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice .. ." The District Court has "broad discretion" in making
decisions under Fed.R.Evid. 403. Ismail v. Cohen, 706 F. Supp. 243, 253
(S.D.N.Y. 1989), affd; 899 F.2d 183 (2d Cir. 1990). Here, applying the
Rule 403 balancing test,*fn4 the Court concludes that the prejudicial
effect of Plaintiffs guilty plea to attempted robbery in the second
degree substantially outweighs it's probative value and should,
therefore, be excluded from evidence.

3. Specific Instances of Misconduct

In their written submissions, Defendants also state that it is their intention "to question plaintiff on specific instances of conduct pursuant to Federal Rules of Evidence 608(b) for each arrest of the plaintiff . . ." (Joint Statement, p. 1). While Defendants do no seek to introduce evidence concerning Plaintiffs criminal convictions that are more than ten years old, they do wish to inquire into "the specific instances of conduct" that resulted in these convictions. (Joint Statement, p. 3). Defendants contend that "[w]ith respect to inquiries regarding the underlying acts constituting plaintiffs plea of guilty to criminal offenses, [Fed.R.Evid.] 608 governs." (Def.Br. in Opp., p. 3). Defendants' contention in this regard is unpersuasive. It is clear that "misconduct not culminating in a conviction cannot be proved by extrinsic evidence, but misconduct that has been the basis of a conviction may be so proved under the detailed provisions of Rule 609." 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 608.12[1] (2nd ed. 1998).*fn5 (emphasis added). Thus, with respect to any misconduct that resulted in criminal convictions, Defendants may cross-examine Plaintiff concerning only those crimes which the Court may find admissible, if any, under Fed.R.Evid. 609.

4. Aliases

Fed.R.Evid. 608(b) provides that specific instances of the witness' conduct may "in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness ..." Courts have held that "[a] witness' use of false names or false identities is a proper subject of cross-examination under Fed.R.Evid. 608." United States v. Mansaw, 714 F.2d 785, 789 (8th Cir. 1983), cert. denied; 464 U.S. 964, 104 S.Ct. 403, 78 L.Ed.2d 343 (1983). See also Young v. Calhoun, 1995 WL 169020 at *5 (S.D.N.Y. Apr.10, 1995) ("[a] witness' use of false names or identities is the proper subject of cross-examination under Rule 608"). The Court of Appeals for the Ninth Circuit put it well, reasoning that:

  The issue is whether the use of false names bears directly enough upon
  the witness' veracity as to outweigh the general prohibition against
  cross-examining about particular acts of misconduct other than
  convictions of a crime. We think it does. If a man lie about his own
  name, might he not tell other lies?

Lyda v. United States, 321 F.2d 788, 793 (9th Cir. 1963).

Plaintiff expresses concern that Defendants effort to introduce all eighteen (18) aliases into evidence will simply alert the jury to certain arrests and/or convictions that would not otherwise be admissible. (Joint Statement, p. 5). However, Defendants may inquire into Plaintiffs use of aliases, "without eliciting the fact that plaintiff was arrested and/or convicted for prior criminal conduct in connection with the use of these aliases." Young, 1995 WL 169020 at *5. Accordingly, with this limitation, all eighteen (18) of Plaintiffs aliases are admissible under Fed.R.Evid. 608(b).

B. Prior Drug Use

Plaintiff argues against the introduction of evidence as to his prior drug use, asserting that the only purpose for which the Defendants could offer evidence of Plaintiffs prior drug use "is to prove action in conformity with character that Rule 404(a) expressly forbids. Additionally, this evidence fails under Rule 403 in that "the danger of undue prejudice outweighs the probative value of the evidence.'" (PI.Br., pp. 6-7).

Plaintiff, in the Court's view, mischaracterizes the relevant rules. Fed.R.Evid. 404(b) bars the admission of evidence of past "bad acts" to show that the actor acted in conformity therewith in the present instance, "but allows the introduction of such evidence for other purposes." Lewis v. District of Columbia, 793 F.2d 361, 363 (D.C.Cir. 1986) (emphasis added). In Lewis, the plaintiff brought an action for damages based on the alleged excessive force used by police officers in the course of an arrest. The trial court admitted evidence of plaintiffs history of drug use. Following plaintiffs appeal, the Court of Appeals for the District of Columbia Circuit affirmed the ruling of the trial court holding that:

  Lewis' past use of drugs suggests that some of the suffering and
  nightmares he experienced following the shooting may have been
  proximately caused by drug withdrawal and not the shooting; the jury
  therefore would be aided by this evidence in measuring fairly the
  extent of damages.

Id.

In the instant case, as in Lewis, while the evidence of Fletcher's past drug use is not admissible to prove his bad character or to show that he acted in conformity therewith, it is admissible, under Fed. R.Evid. 404 (b), with respect to what damages, if any, may have been proximately caused by Defendants.

Fed.R.Evid. 403 provides that even if evidence is admissible under other provisions, such as Rule 404(b), it is still inadmissible if its prejudicial effect substantially outweighs its probative value. The trial judge has "large discretion" in this weighing process. Id. Here, the probative value of Fletcher's past drug use outweighs the danger of unfair prejudice and will be admissible for the (limited) purpose described above.

C. Personnel Records

Plaintiff seeks to have the personnel records of the individual defendant police officers admitted info evidence at the time of trial. (P1.Br., p. 9). Defendants contend, however, "that the scope of the discoverable portions of the personnel folders was limited to that directed by the Court following an in camera review by [U.S. District Court) Judge Martin."*fn6 (Def.Br. in Support, p.5). Defendants go on to state that the "portions of the personnel folders that were deemed discoverable [by Judge Martin], were previously exchanged with plaintiff's counsel . . ." (Def.Br. in Support, p. 7). Plaintiff does not contest these statements. Thus, as distinguished from the cases cited in Plaintiffs brief, such as Morrissey v. City of New York, 171 F.R.D. 85 (S.D.N.Y. 1997), Judge, Martin has already determined which portions of the personnel folders of the individual defendant police officers are discoverable and, therefore, admissible.

Furthermore, the discovery deadline in this case was June 1, 1998. In a letter to Judge Martin, dated August 11, 1998, Fletcher's attorney informed the Court that discovery had been completed. In effect, Plaintiff's instant motion is an eleventh hour request to reopen discovery and disavow Judge Martin's earlier ruling. The Court will do neither. Thus, Plaintiff may use only those portions of the personnel files of the individual defendant police officers that Judge Martin deemed discoverable and that are relevant to the proceedings, subject to appropriate evidentiary objections at trial.

D. Mollen Commission Report and Police Training Manual

Plaintiff seeks the admission into evidence of pertinent portions of the Mollen Commission Report*fn7 and the New York Police Department police training manual to prove that there is a "code of silence" within the police department as well as "inadequate police training." (P1. Br., p. 13). Evidence concerning the Mollen Commission Report and any police training manual appears to be directly related to Fletcher's "Monell claims" against the City of New York and the New York City Housing Authority.*fn8

In the case at bar, on December 10, 1997, Judge Martin (orally) granted defendant City of New York's request to bifurcate Fletcher's "Monell claims" and stay all "Monell discovery."*fn9 Thus, the Mollen Commission Report and police training manual are not properly admissible in the instant (non-Monell) portion of the action against the individual police officer defendants.*fn10 See Shaw v. City of New York, 1997 WL 187352 (S.D.N.Y. Apr.15, 1997) (citing Bryant v. New York City, 92 CV 0960 (E.D.N.Y. Oct. 27, 1994); Williams v. City of New York, 94 Civ. 6234 (S.D.N.Y. Sept. 6, 1996); Jackson v. City of New York, 93 CV 174 (E.D.N.Y. Apr. 24, 1996); for the proposition that the Mollen Commission Report should not be admitted into evidence when there is no [pending] Monell claim).

III. CONCLUSION

Accordingly, as more fully set forth above, it is hereby ordered that:

(1) On June 30, 1999 at 10:30 a.m., the Court will hold a further hearing concerning the admissibility of Plaintiffs convictions for the following crimes: (a) August 10, 1990 conviction for invalid use of a credit card; (b) February 24, 1992 conviction for intent/fraudulent obtaining transportation without paying; and (c) April 29, 1993 guilty plea to intent/fraudulent obtaining transportation without paying;

(2) Plaintiffs convictions for the following crimes are not admissible: (a) March 26, 1991 conviction for criminal possession of a controlled substance; and (b) June 29, 1993 guilty plea to attempted robbery in the second degree;

(3) Defendants may inquire, on cross-examination, into Plaintiffs use of aliases;

(4) Evidence of Plaintiffs past drug use is admissible with respect to the issue of damages;

(5) Plaintiff may introduce (only) those portions of the personnel files of the individual defendant police officers that Judge Martin deemed discoverable and that are relevant to the proceedings, subject to appropriate evidentiary objections at trial; and

(6) The Mollen Commission Report and police training manual are not admissible in this portion of the proceedings.


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