814 F.2d 397 (7th Cir. 1987), 85-2304, Davis v. Lane

Docket Nº:85-2304.
Citation:814 F.2d 397
Party Name:Larry E. DAVIS, Plaintiff-Appellant, v. Michael P. LANE, et al., Defendants-Appellees.
Case Date:March 10, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 397

814 F.2d 397 (7th Cir. 1987)

Larry E. DAVIS, Plaintiff-Appellant,


Michael P. LANE, et al., Defendants-Appellees.

No. 85-2304.

United States Court of Appeals, Seventh Circuit

March 10, 1987

Argued Sept. 26, 1986.

Page 398

David B. Bayless, Kirkland & Ellis, Chicago, Ill., for plaintiff-appellant.

Thomas A. Ioppolo, Ill., Atty. Gen. Office, Chicago, Ill., for defendants-appellees.

Before CUMMINGS and CUDAHY, Circuit Judges, and GORDON, District Judge. [*]

MYRON L. GORDON, District Judge.

Larry Davis, an inmate of the Stateville Correctional Center [Stateville], in Stateville, Illinois, who was shot by a Stateville guard, challenges the form of the district court's instructions to the jury on his federal and state law claims. Mindful as we are of the trial judge's discretion in charging the jury, we nevertheless find that there was an error in the instructions to the jury regarding the plaintiff's dual claims. Accordingly, we reverse and remand for a new trial. Moreover, on remand, we also direct the district court to reconsider its decision to direct a verdict in favor of the defendants on Mr. Davis' due process claim. We affirm, however, the trial court's decision to admit as demonstrative evidence a homemade knife, or "shank."


On December 10, 1982, defendant Lt. Oscar H. Williams removed Mr. Davis from his cell and conducted a body search of the inmate following a fight between prisoners in which Mr. Davis was allegedly involved. During the search, Lt. Williams thought that he noticed something hidden in Mr. Davis' pants. A struggle ensued between Mr. Davis and Lt. Williams. Observing this struggle, the tower guard, Officer Victor Hull, fired a warning shot; Mr. Davis took the opportunity to run towards a nearby window. Still watching Mr. Davis, Officer Hull thought that he saw the inmate reach for something shiny, perhaps a homemade knife or "shank." Concerned that it might in fact be a shank, the tower guard fired another shot. This time the gun was

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aimed at Mr. Davis; the inmate was shot in the groin area.

Although he did not sustain any permanent injury, Mr. Davis spent several days being treated in a hospital outside of the prison, as well as several additional days recovering in the Stateville infirmary. After the shooting, a shank was found near the location where Mr. Davis had been shot; prison officials disposed of this shank shortly after they found it. Mr. Davis denies ever possessing a shank.

While Mr. Davis was recuperating in the prison infirmary, Stateville's adjustment committee held a hearing to determine what disciplinary action, if any, should be taken against the convalescing inmate. This hearing was conducted despite a request by Mr. Davis for a continuance to locate witnesses. After the hearing, the committee determined that Mr. Davis should be disciplined for the incident. Mr. Davis appealed this decision; his appeal resulted in an affirmance of the committee's decision in all respects except that the amount of good time loss originally imposed was reduced.

In addition to appealing from the adjustment committee's decision, Larry Davis filed the civil action that gave rise to this appeal against several Stateville officials. Mr. Davis claimed damages under both 42 U.S.C. Sec. 1983 and Illinois tort law. Mr. Davis alleged that by shooting at him, Stateville officials used excessive force in violation of both his federal eighth amendment rights and the Illinois battery law. Mr. Davis further contended that the adjustment committee's refusal of his request for a continuance violated his procedural due process rights.

The matter proceeded to trial on December 4, 1984. On appeal, Larry Davis alleges that a series of errors occurred during the course of this trial. The issues he raises for our review are as follows: Whether the district judge erred in "merging" instructions on the plaintiff's federal eighth amendment and his state tort claims; whether the judge below improperly directed a verdict against him on his due process claim; and whether it was an abuse of discretion for the trial court judge to admit, as demonstrative evidence, a model of the shank Officer Hull claims to have seen before shooting at the plaintiff.

Although we are satisfied that the trial court judge did not abuse his discretion in admitting the demonstrative shank into evidence, we nevertheless are persuaded that the trial court failed adequately to instruct the jury on Mr. Davis' separate state law claim and failed adequately to support his decision directing a verdict for the defendants.


  1. Admission of the Shank

    A trial court's evidentiary decision will not be reversed unless it is shown to be a clear abuse of discretion. See Charles v. Daley, 749 F.2d 452 (7th Cir.1984), appeal dismissed sub nom., Diamond v. Charles, --- U.S. ----, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986); Gorby v. Schneider Tank Lines, Inc., 741 F.2d 1015, 1018 (7th Cir.1984). The trial court's balancing of probative value and unfair prejudice must be accorded "great deference." West v. Love, 776 F.2d 170, 174 (7th Cir.1985) (quoting United States v. Medina, 755 F.2d 1269, 1274 (7th Cir.1985)).

    Although there was conflicting testimony regarding Mr. Davis' possession of a shank, we are not persuaded that the shank was relevant, inadmissible evidence. The existence of a shank is clearly relevant to the question of the reasonableness of Officer Hull's reaction. See Rule 401, Federal Rules of Evidence (Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence ... more or less probable...."). Nor are we convinced that the demonstrative shank's probative value was outweighed by unfair prejudice contrary to Rule 403, Federal Rules of Evidence. The district court judge took several precautionary measures which satisfactorily eliminated any unfairness which may have inured to the plaintiff by virtue of the admission of the shank: The judge carefully admonished the jury to remember that Mr. Davis denied possession

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    of the shank. He also instructed the jury on the demonstrative nature of the shank and did not permit it to go into the jury room while the jurors were deliberating. Accordingly, we defer to the district court's decision regarding the admission of the shank as demonstrative evidence.

  2. Erroneous Jury Instructions

    Both parties submitted jury instructions to the trial judge. The plaintiff tendered instructions regarding his state law battery claim, as well as to his federal eighth amendment claim. The district judge properly rejected the battery instruction as submitted because it did not include a provision regarding the defendants' affirmative defense of justification. The trial judge decided that no separate battery instruction was needed in view of his giving an eighth amendment excessive force instruction; accordingly, he refused to charge the jury separately with respect to the plaintiff's state law claim. His decision to submit merged instructions to the jury was made despite an objection by the plaintiff at the...

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