814 F.2d 1412 (10th Cir. 1987), 85-2042, Ryder v. City of Topeka

Docket Nº:85-2042.
Citation:814 F.2d 1412
Party Name:Candi RYDER, Plaintiff/Appellant, v. The CITY OF TOPEKA and Michael Meyer, Defendants/Appellees.
Case Date:March 06, 1987
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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814 F.2d 1412 (10th Cir. 1987)

Candi RYDER, Plaintiff/Appellant,

v.

The CITY OF TOPEKA and Michael Meyer, Defendants/Appellees.

No. 85-2042.

United States Court of Appeals, Tenth Circuit

March 6, 1987

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Jerry K. Levy, Topeka, Kan. (Gerald L. Michaud of Michaud, Cordry, Michaud, Hutton & Hutton, Wichita, Kan., with him on the briefs), for plaintiff/appellant.

Wilburn Dillon, Jr., Topeka, Kan. (Richard L. Jones, Deputy City Atty., Topeka, Kan., with him on the briefs), for defendant/appellee, City of Topeka.

Mark L. Bennett, Jr., of Marshall, Davis, Bennett & Hendrix, Topeka, Kan., for defendant/appellee, Michael Meyer.

Before HOLLOWAY, Chief Judge, and ANDERSON, Circuit Judge, and CHILSON, [*] District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

This appeal is brought by plaintiff, Candi Ryder, from an adverse jury verdict finding that her constitutional rights were not violated when defendant, Topeka Police Detective Michael Meyer, shot her while she fled from the scene of a felony. Ryder raises three basic issues on appeal: first, whether the district court erred when it denied her motion for judgment notwithstanding the verdict; second, whether the misconduct of defendants' counsel in failing to timely produce a statement of Detective Meyer warrants reversal and remand for a new trial; and third, whether the district court improperly instructed the jury on the standard of probable cause.

For the reasons set forth below, we find that the trial court did not commit reversible error when it denied Ryder's motion for judgment notwithstanding the verdict. We further hold that the district court did not abuse its discretion when it concluded that counsel's failure to produce Detective Meyer's statement did not so prejudice Ryder as to justify a new trial. We do, however,

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remand this case to the district court to determine whether counsel's failure to produce the statement warrants disciplinary action. Finally, we do not reach the merits of whether the trial court improperly instructed the jury on the definition of probable cause since Ryder failed to preserve that issue by timely objection at trial. Therefore, we affirm the jury verdict in all respects but remand to the district court for a factual finding on whether sanctions or disciplinary action should be instigated against defendants' counsel for failure to comply with discovery rules.

I.

BACKGROUND

This action arises from the shooting of Ryder while she was fleeing from the commission of a felony. The crux of this case is whether Detective Meyer had probable cause to assume that Ryder had been involved in the commission of a crime involving the infliction or threatened infliction of serious bodily injury, or that she posed a threat of serious physical harm, either to Detective Meyer or others, and that the use of deadly force was necessary to prevent her escape. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).

The facts in this case are involved and in dispute. During March of 1979, Candi Ryder, a fourteen year old runaway, and a man named Jim Callender discussed the idea of stealing money from the Pizza Hut restaurant where Callender worked. 1 At that time, both Ryder and Callender were living in a half-way house located approximately two blocks from the Pizza Hut. R.Vol. VIII at 1496. Sometime thereafter, Callender told another employee of the Pizza Hut, Frank Bently, that he had been involved in a plan to steal money from the Pizza Hut but now wanted to back out. The two approached the Pizza Hut area supervisor and informed him of Callender's involvement with the plan. R.Vol. VI at 596-97. The area supervisor visited the Topeka Police Department and informed Detectives Meyer and Brooks that there was to be a "robbery" of his Pizza Hut on West Sixth. Id. at 466-68, 605. The detectives requested that he have Callender and Bently come to the station. Id. at 469.

On March 15, 1979, Callender went to the police station and informed Detectives Meyer and Brooks of his discussions with Ryder. Id. at 337-38. The parties dispute what Callender actually told the police about Ryder and the other individuals who were involved in the scheme. Defendants suggest that Callender only informed the detectives that a person "by the name of 'Candi' had approached him to work as the inside man on a robbery." Id. at 471. They suggest that Callender produced neither information regarding Ryder's name, address and age, id. at 476, nor information about any other people who were to be involved in the commission of the crime, 2 id. at 142, 338-39, 471-75.

Ryder paints a different picture of events. 3 She suggests that Callender informed the detectives of her last name, her address, and the fact that she was a juvenile. Statement of Detective Meyer, Brief of Plaintiff/Appellant at app. A-6 to A-7. Ryder further suggests that Detective Meyer was aware of the names of two

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males in Ryder's group and that one of these was a juvenile. Id. at A-12.

It is undisputed that Callender informed the detectives that the group would be armed with knives and guns. R.Vol. VI at 338-39, 479; R.Vol. II at 34.

Sometime later Callender told the police that the "robbery" would take place Sunday, March 25, 1979, at 11:30 p.m. R.Vol. VI at 154. 4 On that date, several Topeka Police officers, three members of the tactical squad, and Detectives Meyer, Brooks, and Starr met to set up the stake-out. Callender and Bently were present at the Pizza Hut and were to carry out the plan as established between Ryder and Callender. Detectives Brooks, Starr and Meyer positioned themselves in the garage directly south of the Pizza Hut. Id. at 157, 347. Officer Beach was stationed in the restroom of the Pizza Hut. Id. at 155, 350. Officer Sandberg was stationed to the east of the Pizza Hut, Officer Lemon to the north, Officer Weidner was in an unmarked car to the west, Officers Schwerdt and Reed were positioned in unmarked cars to the east and south, and a helicopter unit was made available. Id. at 156-57.

At approximately 10:00 p.m., after the stake-out had been set-up, two girls, Leslie Jester and Ann Martin, stopped by the Pizza Hut and informed Callender that they had decided to "break off" from "Candi's group," and rob the restaurant before her. At 11:00 p.m., the two girls phoned Callender, informing him that they were on their way. Officer Beach radioed the other officers that two girls were on their way and that a second group would come around 11:30 p.m. R.Vol. VII at 768-69. Shortly thereafter, the two girls walked by the garage in the alley where the three detectives were stationed and went into the Pizza Hut through the back door. R. Vol. VI at 496 to 97-a. After they went inside, the three detectives moved up behind some dumpsters. Id. at 497-a.

As the girls exited the Pizza Hut, the detectives observed a knife in the hands of one of the suspects. 5 Id. at 359. The three detectives yelled, "Halt, police," and approached the suspects with their guns drawn. While the officers were apprehending the suspects, one of the suspects "took a swipe with a knife." Id. at 359-60; R.Vol. VIII at 1687. Ryder claims that, while being handcuffed, Leslie Jester saw Callender come to the back door of the Pizza Hut and tell the officers to "hurry up and get them out of here. Candi Ryder is on her way." R.Vol. VIII at 1691. The two girls were transported to police headquarters in a marked police vehicle driven by Officer Reed. Id. at 1653-54. 6 The stake-out was then set up again. R.Vol. VI at 362-63.

At approximately 11:20 p.m., Callender received another telephone call informing him that a second group was on its way to the Pizza Hut and that its members would be armed. R.Vol. VII at 783-84. Callender relayed this information to Officer Beach who was still stationed inside the Pizza Hut.

At approximately 11:30 p.m., three people walked across the parking lot to the rear door of the Pizza Hut. The detectives could not tell whether or not they were armed. R.Vol. VI at 368; R.Vol. VII at 1388. Two of the individuals went inside the Pizza Hut and the taller of the three remained outside. Because of the lookout, the detectives could not move closer to the Pizza Hut as they had done previously. At one point after the suspects had entered the restaurant, the back door was opened and something was handed out to the lookout. R.Vol. VI at 369, 514-15.

A short time later the two suspects who had been inside the restaurant came out the back door. At that moment, the detectives ran out from behind the garage with their handguns drawn and yelled, "Halt, police." Id. at 370, 518. Two of the suspects

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commenced running north, immediately pursued by Detectives Brooks and Starr. The third suspect, Ryder, ran east and was pursued by Detective Meyer. Id. at 370-71, 518-19. As he began his pursuit, Detective Meyer was unaware of the suspect's name, sex, or age. Id. at 370-71. After chasing the suspect for a short time, Detective Meyer fired a warning shot. The suspect continued to run. She was over fifty feet from Detective Meyer, and about to run around a building into a darkened residential area, when Detective Meyer fired a second shot. Id. at 236, 373, 375-76. The second shot struck the suspect and she fell to the ground. Detective Meyer approached the fallen suspect, 7 noticed that she was a young girl, and called for an ambulance. 8

Ryder subsequently filed this action against the City of Topeka, Kansas, and Detective Meyer, claiming her Fourth Amendment right to be free from unlawful search and seizure had been violated by Detective Meyer's use of deadly force. 9 The trial began on April 13, 1985, and lasted four weeks. During the trial, Ryder became aware...

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