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Davis v. Velez

United States District Court, E.D. New York

April 23, 2014

LEROY DAVIS, Plaintiff,
v.
JAVIER VELEZ, JAMES LUKESON, and GARY CALHOUN, Defendants

Page 235

For Plaintiff: James C. Neville and Michael B. Lumer, Lumer & Neville, New York, NY.

For Defendants: Duane G. Blackman and Elissa Beth Jacobs, New York City Law Department, New York, NY.

Page 236

MEMORANDUM & ORDER

Jack B. Weinstein, Senior United States District Judge.

I. Introduction

II. Facts

III. Trial

A. Conflicting Stories

1. Plaintiff's Account

2. Defendants' Account

B. Discussion

IV. Pending Post-Trial Motions

V. Rule 59 Standard

VI. Extraneous Information Entering Jury Room

A. Facts

1. Newspaper

2. Bags

3. Jury Instructions

B. Law

C. Application of Law to Facts

1. Newspaper

2. Bags

VII. Terrel Norman Hearsay Statements

A. Facts

B. Law

C. Application of Law to Facts

VIII. Improper Statements During Summation

A. Facts

B. Law

C. Application of Law to Facts

IX. Discharge of Juror 8

A. Facts

B. Law

C. Application of Law to Facts

X. Plaintiff's Prior Incarceration

A. Facts

B. Law

C. Application of Law to Facts

XI. Plaintiff's Prior Convictions

A. Facts

B. Law

C. Application of Law to Facts

XII. Conclusion

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I. Introduction

Defendants Officer Javier Velez, Officer James Lukeson, and Sergeant Gary Calhoun of the New York City Police Department were found liable for false arrest, denial of a fair trial, and malicious prosecution. See 42 U.S.C. § 1983. A jury awarded plaintiff Leroy Davis $560,000 in compensatory and punitive damages.

Defendants have filed a series of motions for a new trial. The motions are denied.

II. Facts

Defendants arrested plaintiff on October 2, 2009. They claimed that one of them saw plaintiff furtively drop a plastic bag on a public sidewalk, heard a metallic clink that sounded like a gun, and found a gun and crack cocaine inside the bag. Based on evidence supplied by defendants, plaintiff was indicted by a federal grand jury. See United States v. Davis, E.D.N.Y. No. 09-CR-829. After spending thirteen months in jail awaiting trial, plaintiff was tried on federal gun and drug charges. He was acquitted of all charges. Id., Judgment as to Leroy Davis, Dec. 23, 2010, ECF No. 92.

Plaintiff offered a starkly different account of what happened on the night of October 2. He denied that he possessed or discarded a plastic bag, and claimed that defendants fabricated the evidence against

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him--possibly conspiring with an enemy of his named Terrel Norman. Plaintiff's story was that the officers searched the house he shared with several other people after he was arrested, hoping to find the gun and drugs planted by Norman.

After three days of trial and three and a half days of deliberations, the jury returned a verdict of " liable" against all three defendants on each of plaintiff's section 1983 claims.

III. Trial

This is not a case where the weight of evidence supporting the verdict flattens objections like a steamroller. The jury's assessment of the veracity of the parties' stories controlled the jury's decision. The evidence would have supported a verdict for either side. These claimed trial errors that allegedly unfairly nudged victory to plaintiff need to be taken seriously.

A. Conflicting Stories

Two conflicting stories were presented to the jury concerning the events of October 2, 2009. Plaintiff's version of events was supported by the testimony of plaintiff, three neighbors, and (to some extent) the officers themselves. The defendants offered a conflicting account when they testified on their own behalves.

1. Plaintiff's Account

Except for the three police officers, the witnesses confirmed plaintiff's story.

Plaintiff testified that he and a friend were stopped on October 2, 2009 shortly after they exited plaintiff's abode at 642 Chauncey St. Trial Tr. 447:6-447:19. Plaintiff was on his way to visit his girlfriend next door at 640 Chauncey St. Id. He swore that when he was stopped he did not possess a gun or narcotics, Trail Tr. 454:3-454:4, and that he had multiple forms of identification (his Social Security card and his benefit card) on his person, Trial Tr. 462:11. During the stop, one of the officers asked plaintiff where he lived, seized plaintiff's house keys, and went into the front of 642 Chauncey St. Trial Tr. 450:17.

Shakima Jones, plaintiff's friend and neighbor, said she returned to the 600 block of Chauncey St. shortly after plaintiff and his friend were detained. Trial Tr. 157:5-159:19. From the sidewalk directly across the street, Jones saw the two sitting on the ground in handcuffs. Trial Tr. 161:8-161:9. She observed a number of police officers inside 642 Chauncey St. with flashlights reflecting off the walls. Trial Tr. 168:8-168:20; 182:16-182:25. The officers remained on a number of floors inside the residence for 20 to 30 minutes. Id.

Vincent Holmes, who lives at 644 Chauncey St., appeared to have no motive to lie. He said he arrived on the scene shortly after plaintiff's detention. Trial Tr. 257:7:257-13. Upon returning from his night shift, he observed plaintiff and another man being detained by police officers. Trial Tr. 257:16-257:21. Holmes testified that as he paused on his front steps, he saw a police officer emerge from 642 Chauncey St. Trial Tr. 359:3- 359:12. The officer summoned his colleague, showed him the contents of a box, and then returned to the house. Trial Tr. 259:16-260:10.

Defendant also introduced hearsay evidence suggesting that defendants may have had the assistance of Terrel Norman. Shakima Jones testified that Norman recently confessed that he had planted the gun and drugs inside 642 Chauncey St., and then called " [his] boys," Officers Velez and Calhoun, to notify them. Trial Tr. 176:8-178:11. Clara Jones, Shakima's mother, testified that she had heard Norman threaten plaintiff several months before the arrest: " I'm going to get you.

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I'm going to get you." Trial Tr. 108:11-109:4.

2. Defendants' Account

Defendants maintain that plaintiff was not exiting 642 Chauncey St. when the incident began, but rather that he was walking down the sidewalk of the 600 block of Chauncey St. in the direction of that address. Officer Velez testified that he and the other officers were slowly cruising through the neighborhood in an unmarked patrol car when Velez noticed plaintiff, walking alone in the same direction as the officers' car, drop a plastic bag on the ground. Trial Tr. 295:15-295:19. Velez stated that he heard " some kind of metallic sound" when the bag hit the ground and immediately suspected the bag contained a gun. Trial Tr. 296:3, 298:11-298:17.

Without saying anything to his colleagues, Officer Velez jumped out of the slowly moving car and asked the pedestrian what was in the bag. Id. When plaintiff responded " garbage," Velez searched the bag, finding " a firearm with crack cocaine" underneath a box of chicken and soda. Trial Tr. 298:18-299:8. He then " rushed over towards the plaintiff and [he] handcuffed him." Trial Tr. 299:11. Velez had no recollection of Officer Lukeson taking plaintiff's keys and did not see whether any officers entered 642 Chauncey St. Trial Tr. 301:4-301:14.

Lukeson noticed a black plastic bag on the ground after exiting the vehicle behind Velez. Trial Tr. 398:13-398:14. He was never asked if he heard a metallic " clink." According to Lukeson, Velez looked inside of the bag and promptly instructed Lukeson to place plaintiff under arrest. Trial Tr. 398:16-398:23. Only later, after returning to the 83rd Precinct, did Lukeson see the alleged contents of the plastic bag. Trial Tr. 403:19-403:20.

Lukeson admitted that, after handcuffing plaintiff, he took plaintiff's keys and entered 642 Chauncey St. without permission. Trial Tr. 381:8-382:4. He concedes that he did not know who the owner of the house was; he lacked a warrant; and there were no emergency circumstances necessitating his immediate entry. Id. He explained that plaintiff had no identifying documents on him when he was arrested, and that he entered the house in hopes of finding someone who (a) could identify plaintiff, and (b) supply plaintiff's identification. Trial Tr. 388:6-388:10. The house was " very dark" and Lukeson had never been inside the property. Trial Tr. 386:19-387:12. Lukeson claims he exited within 25 to 30 seconds after knocking on several ground-floor doors. Trial Tr. 386:19-386:23.

Calhoun's testimony largely echoed Lukeson's: he never saw plaintiff carrying a black plastic bag, and he confirmed that Lukeson entered 642 Chauncey St. for only 30 to 35 seconds. Trial Tr. 408:1, 411:13-411:19. Calhoun was not asked if he heard a metallic " clink" before Velez jumped out of the police vehicle. He conceded that he sometimes " exchanged [his] cell phone number with private citizens on the street [ i.e., not 'formal informants'] in order to get information." Trial Tr. 409:1.

B. Discussion

As already noted, the jury would have been justified in finding for either side. Nevertheless, several aspects of defendants' account could have troubled jurors.

Defendants' claim that they entered 642 Chauncey St. in search of plaintiff's identification. Even if plaintiff lacked identification at the time of his arrest, it would be dangerous and likely unconstitutional to enter a dark, unknown private residence--without a warrant or consent--in search of such information. Officers could have been shot by nervous homeowners or attacked

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by guard dogs. It could have been seen as improbable that Lukeson would undertake this dangerous adventure without informing his partner, Velez, what he was doing. Jurors had reason to doubt Lukeson's explanation for why he entered the home, and to doubt Velez's claim that he had no idea Lukeson had taken plaintiff's keys and was planning to enter plaintiff's house.

Jurors also would have been justified in rejecting defendants' account because they could have concluded that plaintiff did possess his identification at the time of his arrest. It is undisputed that plaintiff had his identification later during his incarceration, and defendants gave no explanation of how he obtained it. Defendants concede that no identification documents were retrieved from the house that night. Trial Tr. 386:19-386:23. Calhoun suggested that someone might have come to the 83rd Precinct to drop off plaintiff's identification, Trial Tr. 413:22-414:1, but conceded that there was no command log entry documenting that this had occurred, Trial Tr. 418:19-419:14. Defendants' justification for entering the home--and their account of an ensuing 25 to 35 second visit--was subject to doubt.

These testimonial peculiarities may have prompted jurors to attach substantial weight to plaintiff's two eyewitnesses, Shakima Jones and Vincent Holmes. Jones testified that multiple officers rummaged through the house for 20 to 30 minutes. Holmes testified that he saw an officer emerge from the house with a box (plausibly with evidence against plaintiff), summon a fellow officer, and then return to the house with the box. While defendants challenged Jones' credibility by underscoring her close relationship with plaintiff, Holmes had no apparent motive to lie. He provided testimony that might have been deemed compelling and damaging to defendants' account. He appeared to be a reluctant witness. He testified under subpoena and had minimal prior contact with attorneys.

Defendants' claimed justification for detaining plaintiff could be seen as shaky. Velez testified that he observed plaintiff dropping a plastic bag and heard a metallic " clink" when the plastic bag hit the ground. Neither Lukeson nor Calhoun, riding in the same car, corroborated this testimony. Defendants failed to introduce the plastic bag or its contents into evidence. Additionally, it might have been seen as unlikely that Velez would jump from a moving vehicle to verbally accost plaintiff without explaining to his partners what he had observed.

It is possible that jurors were swayed by plaintiff's hearsay evidence concerning Terrel Norman. This evidence was not necessary for the jury's verdict: jurors could have concluded that defendants discovered the gun and drugs in someone else's room in 642 Chauncey St., or that defendants planted the evidence once their possible fishing expedition failed to yield any contraband. But Norman's purported confession does provide an alternative explanation for defendants' behavior after the initial stop. Defendants' failure to depose Norman was a strategic error. The trial was set with sufficient time for defendants to unravel the Norman threads.

IV. Pending Post-Trial Motions

On February 6, 2014, defendants filed a motion for a new trial pursuant to Federal Rule of Civil Procedure 59. ECF No. 98. It identifies two types of extraneous materials brought into the jury room that allegedly tainted deliberations: (1) a copy of the Wall Street Journal containing an article suggesting that a Nassau County police official was corrupt, and (2) two bags allegedly

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used to test aspects of defendants' story.

On February 18, 2014, defendants filed a second motion for a new trial under Federal Rule of Civil Procedure 59. ECF No. 100. This motion advances five more grounds for a new trial: (1) the court improperly admitted hearsay statements by Terrel Normal; (2) plaintiff's counsel made improper statements during summation; (3) the court should have declared a mistrial when one juror reported that he was too ill to continue deliberating; (4) the court improperly limited evidence of plaintiff's prior incarceration, which was relevant for damages purposes; and (5) the court improperly limited evidence of plaintiff's prior convictions, which should have been admissible pursuant to Federal Rule of Evidence 609.

An evidentiary hearing was conducted on March 10, 2014. Testimony germane to defendants' motions was taken from three jurors and an attorney representing Terrel Norman.

On April 1, 2014, defendants filed a third motion for a new trial under Federal Rules of Civil Procedure 59 and 60. ECF No. 115. The third motion relies upon evidence adduced during the March 10, 2014 hearing, but does not identify any new grounds for relief.

V. Rule 59 Standard

" [F]or a district court to order a new trial under Rule 59(a), it must conclude that 'the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice.'" Manley v. AmBase Corp., 337 F.3d 237, 245 (2d Cir. 2003) (quoting Song v. Ives Labs, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992)). A jury's verdict " should rarely be disturbed." Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002).

VI. Extraneous Information Entering Jury Room

A. Facts

1. Newspaper

At the March 10 evidentiary hearing, Juror 7 testified that Juror 9 brought into the jury room a newspaper article about a " dirty cop on Long Island." Hr'g Tr. 10:23-11:1. According to Juror 7, " it was never shown to the [other] jurors because [Juror 7] stopped it from being shown, because it was irrelevant to the case." Id.; see also Hr'g Tr. 11:11-11:12 (" But like I said, I stopped the person from presenting it because he was waving it." ). Juror 7 stated that Juror 9 referred to the article as an example of police corruption, emphasizing " if this cop could be dirty, [the defendants] could be dirty." Id. at 11:24-11:25. Juror 7 could not remember any specifics of the article or recall which newspaper published it. Hr'g Tr. 10:22-12:3.

Juror 9 confirmed that it was his " normal habit" to bring the Wall Street Journal to court with him. Hr'g Tr. 30:20-30:21, 40:10-40:11. He recalls that one day during deliberations the newspaper contained an article about police misconduct, but he could not recall the article's specific contents. Hr'g Tr. 30:22-31:6, 32:16-32:22. He credibly testified that he brought the newspaper to court with no purpose of influencing fellow jurors through its contents. Hr'g Tr. 31:2-32:3. He stated with confidence that he brought the ...


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