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Carbajal v. Lucio

United States District Court, D. Colorado

January 9, 2019

DEAN CARBAJAL, Plaintiff,
v.
GILBERTO LUCIO, JAMES DIXON, MICHAEL O'NEILL, and JEFFREY WATTS, Defendants.

          ORDER

          PHILIP A. BRIMMER United States District Judge

         This matter is before the Court on Plaintiff's Motion for New Trial Under Fed.R.Civ.P. 59 [Docket No. 967]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND

         Plaintiff initiated this lawsuit on November 23, 2010. Docket No. 1. The complaint asserted a variety of claims against many different defendants under 42 U.S.C. § 1983.[1] On March 29, 2016, the Court entered an order accepting in part and rejecting in part the magistrate judge's recommendation on defendants' summary judgment motions. Docket No. 804. The effect of that order was to dismiss the majority of plaintiff's claims. See Id. at 17. By the start of trial on July 10, 2017, plaintiff's only remaining claims were claims for excessive force against defendants James Dixon, Jeffrey Watts, Gilberto Lucio, and Michael O'Neill. See Docket No. 873. These claims were based on incidents occurring on April 29, 2009, August 24, 2010, and August 28, 2010. See generally Docket No. 254 at 16-23. Specifically, plaintiff alleged that: (1) defendant Dixon used excessive force against plaintiff while responding to a noise complaint at plaintiff's residence on April 29, 2009, see Docket No. 783 at 33-35; (2) defendant Watts hit plaintiff with Watts' car while attempting to serve plaintiff with a subpoena on August 24, 2010, see Id. at 23; and (3) defendants O'Neill and Lucio beat plaintiff during his arrest on August 28, 2010, see Id. at 51. After a seven-day jury trial, the jury returned a verdict for defendants on all claims. See Docket No. 959. On August 22, 2017, plaintiff moved for a new trial. Docket No. 967. Plaintiff supplemented his motion on September 8, 2017. Docket No. 975. On September 12 and 18, 2017, defendants filed responses to plaintiff's motion. See Docket Nos. 976, 977.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 59(a) provides that "[t]he Court may, on motion, grant a new trial on all or some of the issues - and to any party . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a)(1)(A). A motion for a new trial may be granted on any error, so long as "the district court concludes the 'claimed error substantially and adversely' affected the party's rights." Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1217 (10th Cir. 2008) (quoting Sanjuan v. IBP, Inc., 160 F.3d 1291, 1297 (10th Cir. 1998)).

         III. ANALYSIS

          Plaintiff asserts eleven grounds for a new trial: (1) the Court improperly allowed defendants to introduce evidence regarding plaintiff's criminal history and lengthy prison sentence to vilify him in front of the jury, Docket No. 967 at 4, 5, 9, 15-16; Docket No. 975 at 2, 5; (2) the Court erred in instructing the jury on the meaning of a lawful use of force and in denying plaintiff a "theory of the case instruction," Docket No. 975 at 4, 6; (3) defense counsel misrepresented evidence in opening and closing arguments, Docket No. 967 at 8; (4) the Court erred in excluding the testimony of plaintiff's witness, Chris Marez, id. at 10;[2] (5) the Court improperly admitted expert testimony by Stephen Swan, id. at 13; (6) the Court erred in allowing evidence of plaintiff's drug use, Docket No. 975 at 7; (7) defense counsel improperly discussed plaintiff's past lawsuits in order to portray him as a chronic litigator, Docket No. 975 at 10; (8) the Denver Police Department intentionally interfered with the jury's deliberations, Docket No. 967 at 12; (9) plaintiff was improperly paraded in front of the jury in handcuffs, id. at 15; (10) the jury verdict in favor of defendants O'Neill and Watts was against the weight of the evidence, id. at 14; and (11) the cumulative effect of these errors deprived plaintiff of a fair trial. Docket No. 975 at 10. Because plaintiff is proceeding pro se, the Court construes his motion liberally without serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         A. Use of Plaintiff's Criminal History

          Plaintiff contends that the Court improperly admitted evidence related to his criminal history. Plaintiff's challenge consists of four sub-arguments: (1) defense counsel improperly commented on plaintiff's prior misdemeanor convictions, Docket No. 967 at 4, 9; Docket No. 975 at 5; (2) defense counsel improperly used the length of plaintiff's prison sentence to vilify him, Docket No. 967 at 5; (3) the Court erred in allowing defendants to introduce evidence of plaintiff's prior convictions to show defendants' "state of mind," Docket No. 975 at 2, 5; and (4) the Court improperly allowed evidence of fraudulent or void felony convictions for purposes of impeachment. Docket No. 967 at 15-16.

         1. Prior Misdemeanor Convictions

         Plaintiff argues that defense counsel improperly used plaintiff's prior misdemeanor domestic violence convictions to vilify him in front of the jury. Docket No. 967 at 4, 9; Docket No. 975 at 5. At trial, the Court ruled that evidence related to plaintiff's relationship with his ex-girlfriend, Lorena Holguin, including plaintiff's misdemeanor convictions for violating a protection order, was admissible for two purposes: (1) to rebut plaintiff's testimony that he had a good relationship with Ms. Holguin and was not doing anything wrong at the time of his arrest;[3] and (2) to explain defendants' sense of urgency in apprehending plaintiff, as well any force used at the time of plaintiff's arrest.[4]

         Plaintiff cites United States v. Commanche, 577 F.3d 1261 (10th Cir. 2009), for the proposition that a court may not allow evidence regarding the details of a criminal defendant's prior felony convictions, even if those convictions are admissible for impeachment purposes under Fed.R.Evid. 609. See Docket No. 967. In that case, however, the defendant's prior convictions were admissible only under Fed.R.Evid. 609. See Commanche, 577 F.3d at 1269-70. Here, by contrast, plaintiff opened the door to details about his criminal conduct by asserting that he had a good relationship with Ms. Holguin, was not committing any crimes on August 24 and 28, 2010, and was being persecuted by defendants in retaliation for his prior complaints of police abuse.[5] Plaintiff's prior convictions were also relevant to the excessive force analysis under Graham v. Connor, 490 U.S. 386 (1989), as defendants testified that their knowledge of plaintiff's criminal history informed their encounters with plaintiff on August 24 and 28.[6]

         Plaintiff contends that defense counsel committed gross misconduct by repeatedly making comments during opening and closing arguments regarding Ms. Holguin as the victim. Docket No. 967 at 5, 9. Contrary to plaintiff's assertions, however, defense counsel did not "harp" on this issue. Counsel made only two comments about Ms. Holguin during opening and closing arguments that were not directly relevant to rebutting plaintiff's assertion that he was not doing anything wrong at the time of his encounters with police. The first statement was that Ms. Holguin was in protective custody on August 27, 2010. The second was that defense counsel did not bring Ms. Holguin into court to testify because he did not want to "subject her to a cross-examination from the man who stalked, imprisoned her." Plaintiff cannot show that these isolated remarks were unduly prejudicial. The Court sustained plaintiff's objection to the first comment and instructed the jury after the second that plaintiff's prior felony convictions were to be considered only for the purpose of determining credibility. The Court therefore cannot conclude that counsel's remarks affected the fairness of the trial. See Beene v. Ford Motor Co., 513 Fed.Appx. 755, 762 (10th Cir. 2013) (unpublished) (holding that the district court did not abuse its discretion in concluding "that the jury was not unduly influenced by the allegedly improper remarks" during closing argument, where "[t]he remarks complained of were few and isolated, and [defendant's] three objections were sustained").

         2. Length of Sentence

         At trial, the Court ruled that defense counsel could ask plaintiff whether he was serving a lengthy sentence, but could not go into the actual length of the sentence, in order to correct the misleading impression, created by plaintiff, that he was a free man. As defense counsel argued, the fact of plaintiff's incarceration was relevant to the issue of plaintiff's claim for emotional distress damages. Plaintiff testified at length about his various hobbies and professional aspirations and argued that the physical and emotional injuries he sustained in his encounters with defendants "changed [his] life entirely." Had the Court precluded defendants from introducing evidence regarding plaintiff's prison sentence, the jury would have been "left with the highly prejudicial and unfair inference that everything that ha[d] gone wrong in [plaintiff's] life [was] a result" of defendants' conduct. Given these circumstances, there was nothing improper about allowing defendants to question plaintiff regarding his prison sentence.

         3. "State of Mind" Evidence

         Plaintiff contends that the Court erred in allowing evidence of plaintiff's prior convictions for purposes of showing defendants' "state of mind." Docket No. 975 at 2, 5. At trial, the Court permitted defendants to introduce evidence regarding plaintiff's prior convictions on the basis that the information defendants had before their encounters with plaintiff was directly relevant to whether defendants' use of force was excessive. See Graham, 490 U.S. at 396. Plaintiff argues that defendants' "state of mind" was irrelevant because defendants denied using any force against plaintiff. Docket No. 975 at 2. This argument fails for two reasons. First, defendant O'Neill did testify that he used force in apprehending plaintiff. He stated specifically that he pulled plaintiff off a roof and "forced [him] to the ground where [they] had a brief struggle" as plaintiff tried to return to his feet. Second, even if certain defendants denied using force, their knowledge of plaintiff's prior convictions informed the general manner in which they approached plaintiff's capture. Plaintiff has thus failed to establish that the Court erred in admitting plaintiff's prior convictions as relevant to the excessive force analysis under Graham.

         4. Fraudulent and/or Void Convictions

         Plaintiff alleges that his motion to suppress evidence of his prior convictions was intentionally "rejected by the Clerk of Court in an effort to prevent" the Court from learning that plaintiff's prior convictions were void and/or fraudulent. Docket No. 967 at 15-16. In support of his argument, plaintiff has submitted a motion to suppress evidence of his prior convictions, which is dated June 30, 2017. See Id. at 19, 32. Plaintiff has also attached an envelope purportedly showing that his motion was rejected by the Clerk's office in early July 2017. See Id. at 18. The Court finds this evidence insufficient to support plaintiff's claim that the Clerk's office intentionally prevented plaintiff from filing his motion. As an initial matter, plaintiff has not explained what the various dates on the envelope actually represent. The envelope indicates that mail was returned to plaintiff on July 7, 2017 and received in a mailroom on July 10, 2017. However, there is no evidence that the Clerk of the Court was responsible for the return. Plaintiff's assertion that he attempted to file a motion in limine in June 2017 is also inconsistent with his statements at trial. On the first day of trial, the Court twice addressed the issue of plaintiff's prior convictions. In the first instance, the Court expressed doubt that plaintiff would be able to collaterally attack his conviction so late in the proceedings, to which plaintiff responded that he had been "operating based on the court's local rules that the courts generally disfavor motions to suppress until they have had an opportunity to hear the facts or the evidence" relevant to the suppression issue. During the second discussion, the Court asked plaintiff what had prevented him from raising the issue before trial. Plaintiff stated only that his convictions were "being collaterally attacked independently in the individual proceedings" and that a "separate motion was filed with the courts to attack the[] judgments in the official documents." Defendants subsequently argued to the Court that plaintiff had waived the issue of the admissibility of his prior convictions by failing to file a motion in limine before trial. Again, plaintiff made no claim that he had, in fact, filed such a motion, arguing instead that "jurisdictional defects in a void judgment that's based on fraud" can never be waived. Because plaintiff has failed to explain the inconsistencies between his statements at trial and the evidence submitted in support of his instant motion, the Court finds no basis for a conclusion that the Clerk's office intentionally rejected plaintiff's motion.[7]

         There is also no support for plaintiff's assertion that, "had this document not been rejected[, ] the verdict here would have been different." Docket No. 967 at 16. In fact, the Court addressed the admissibility of plaintiff's prior convictions and ruled that it was improper for plaintiff to collaterally attack final criminal judgments in the middle of his civil trial. Plaintiff has not cited any authority demonstrating that the Court's ruling was incorrect. Cf. Custis v. United States, 511 U.S. 485, 496 (1994) (holding that defendant was not permitted to challenge state convictions in federal sentencing and reasoning that to allow otherwise would "deprive the state-court judgment of its normal force and effect in a proceeding that has an independent purpose other than to overturn the prior judgment" (internal quotation marks and brackets omitted)); White v. Medina, 464 Fed.Appx. 715, 718-19 (10th Cir. 2012) (unpublished) (holding that habeas petitioner was not entitled to collaterally attack prior conviction that was to be used only for impeachment purposes).[8]

         B. Errors in Jury Instructions

          Plaintiff argues that the Court erred in instructing the jury that "force is lawful if it is reasonably believed to be necessary" and improperly denied plaintiff a "theory of the case" instruction. Docket No. 975 at 4, 6.

         With respect to the first claim of error, plaintiff contends that the giving of an instruction regarding lawful use of force was improper because, with the exception of handcuffing, defendants denied using any force against plaintiff. Docket No. 975 at 4.[9]Plaintiff is incorrect. As discussed above, defendant O'Neill admitted to using some force during plaintiff's arrest. Accordingly, the Court's instruction on lawful use of force was appropriate.

         The instruction was also consistent with established law. While plaintiff argues that the Court "unfairly instructed the jury to consider highly prejudicial evidence," Docket No. 975 at 4, the jury was properly informed that it should consider the totality of facts and circumstances confronting defendants at the time of the alleged use of force, including "[t]he severity of the crime for which the police encounter was initiated" and "[w]hether the person who was arrested posed an actual or a reasonably-perceived threat to the safety" of himself or others. See Docket No. 956 at 17; see also Graham, 490 U.S. at 395-96 (providing that use of force in the course of an arrest, investigatory stop, or other seizure should be evaluated under an objective reasonableness standard requiring "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight").

         Plaintiff's argument that the Court improperly denied him a "theory of the case" instruction is also without merit. A party is entitled to an instruction on his theory of the case if it is consistent with applicable law and supported by the evidence. Pratt v. Petelin, 733 F.3d 1006, 1009 (10th Cir. 2013); Craig v. Murphree, 35 Fed.Appx. 765, 769 (10th Cir. 2002) (unpublished). A court may deny such an instruction, however, if the same subject matter is addressed in the general instructions, if the proffered instruction is argumentative, or if the instruction merely summarizes the facts in a light most favorable to the proponent. United States v. Chadwick, 554 Fed.Appx. 721, 723 (10th Cir. 2014) (unpublished); Craig, 35 Fed.Appx. at 769; United States v. Posey, 647 F.2d 1048, 1052 (10th Cir. 1981).

         At the final jury instruction conference on July 18, 2017, [10] plaintiff tendered a four-page "statement of the case" instruction in which he summarized the facts of the case in inflammatory terms. See Docket No. 957 at 2 (plaintiff's tendered Instruction No. 2). For ...


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