288 F.3d 932 (6th Cir. 2002), 00-6323, Diamond v. Howd

Docket Nº:00-6323
Citation:288 F.3d 932
Party Name:Diamond v. Howd
Case Date:May 07, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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288 F.3d 932 (6th Cir. 2002)

Terrell DIAMOND, Plaintiff-Appellant,


Steven HOWD, Defendant-Appellee.

No. 00-6323.

United States Court of Appeals, Sixth Circuit

May 7, 2002

Argued Feb. 1, 2002.

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Phillip L. Davidson (argued and briefed), Nashville, Tennessee, for Plaintiff-Appellant.

Dennis W. Stanford (briefed), Rita M. Roberts-Turner (argued), Metropolitan Legal Department, Nashville, Tennessee, for Defendant-Appellee.

Before MARTIN, Chief Judge; GILMAN, Circuit Judge; EDMUNDS, District Judge. [*]


BOYCE F. MARTIN, JR., Chief Judge.

Plaintiff, Terrell Diamond, appeals (1) the district court's admission into evidence of an audiotape of her telephone conversation with a police dispatcher and (2) the district court's directed verdict in favor of defendant, Officer Steven Howd, on Diamond's false arrest claim under 42 U.S.C. § 1983. We AFFIRM the district court's decision to admit the audiotape into evidence, REVERSE its judgment granting Howd's motion for judgment as a matter of law, and REMAND so that the probable cause issue may be submitted to a jury.


According to Diamond, on the day of her arrest, she had three or four drinks before having dinner with her husband and several friends. During their meal, Diamond and her husband had a heated argument, which continued after dinner in front of the restaurant. Upset and unwilling to leave with either her husband or his friends, Diamond flagged down a passing motorist and entered his car. The motorist--apparently having witnessed the argument--was speaking to a police dispatcher on his mobile telephone when Diamond

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entered his car. While the motorist drove her a short distance to a second restaurant, Diamond herself spoke with the dispatcher. During the conversation, Diamond reacted hysterically to the dispatcher's questions.

Shortly after the motorist dropped Diamond off at the second restaurant, Officer Howd arrived. He informed Diamond that he was responding to a "911 call" regarding domestic violence. According to Howd, Diamond smelled of alcohol and was unable or unwilling to tell him where she was staying or where her husband or his friends were. At some point during the questioning, Diamond turned to leave. When Howd grabbed her arm to restrain her, she stomped on his foot.

Howd arrested Diamond. She was subsequently charged with public intoxication, resisting arrest, and assault. Diamond waived a state preliminary hearing for the criminal charges. The criminal trial jury acquitted Diamond of the public intoxication charge and hung on the resisting arrest and assault charges.

Her attorney claimed that he made a strategic decision to waive her preliminary hearing because Tennessee law does not afford the accused an opportunity to obtain discovery from the prosecution prior to such a hearing. He anticipated filing a lawsuit against Howd under section 1983 and believed that the state court's preliminary probable cause determination would bind the court adjudicating her section 1983 claim under Smith v. Thornburg, 136 F.3d 1070 (6th Cir. 1998). Because he was unwilling to litigate the probable cause issue without the benefit of discovery, Diamond's attorney sought to preserve the issue by waiving her preliminary hearing.

Diamond filed a lawsuit against Howd under section 1983, alleging that he arrested her without probable cause and used excessive force during her arrest. At trial, over Diamond's objection, the district court permitted Howd to introduce the audiotape of Diamond's conversation with the police dispatcher into evidence. Although Howd had not heard the audiotape before he arrested Diamond, the district...

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