895 F.2d 649 (10th Cir. 1990), 86-1148, Robinson v. Maruffi

Docket Nº:86-1148.
Citation:895 F.2d 649
Party Name:Van Bering ROBINSON, Plaintiff-Appellee, v. John MARUFFI, Joseph Polisar, Clarence Kraemer and Eloy Whitey Hansen, Chief of Police, Defendants-Appellants.
Case Date:January 19, 1990
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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895 F.2d 649 (10th Cir. 1990)

Van Bering ROBINSON, Plaintiff-Appellee,


John MARUFFI, Joseph Polisar, Clarence Kraemer and Eloy

Whitey Hansen, Chief of Police, Defendants-Appellants.

No. 86-1148.

United States Court of Appeals, Tenth Circuit

January 19, 1990

Page 650

Wayne C. Wolf, Civerolo, Hansen & Wolf, P.A., Albuquerque, N.M., (Anthony J.D. Contri, Civerolo, Hansen & Wolfe, P.A., Albuquerque, N.M., was also on the brief) for defendants-appellants.

David L. Plotsky, Toulouse, Toulouse & Garcia, P.A., Albuquerque, N.M., (James R. Toulouse, Toulouse, Toulouse & Garcia, P.A., Albuquerque, N.M., was also on the brief) for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and McWILLIAMS and LOGAN, Circuit Judges.

HOLLOWAY, Chief Judge.

This appeal arises out of a civil rights action brought under 42 U.S.C. Secs. 1983, 1985 and 1986 by Van Bering Robinson against three Albuquerque police officers, John Maruffi, Joseph Polisar and Klarence Kraemer, the Chief of Police, Eloy "Whitney" Hanson, and the City of Albuquerque for deprivation of his constitutional rights.

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Robinson alleged that the individual defendants caused the bringing of criminal charges against certain prosecution witnesses, which would then be dismissed for their false testimony before the grand jury and at the trial implicating Robinson in the murder of an Albuquerque police officer, Phil Chacon. Robinson alleged that the defendants knowingly permitted the false testimony to be used for the sole purpose of having him prosecuted, convicted and punished for Chacon's murder.

The defendants answered, denying that they participated in the conduct alleged by Robinson. The defendants also raised various affirmative defenses, including the statute of limitations. After a twelve day trial, the jury returned a verdict for Robinson in the amount of $75,000 against all individual defendants, finding that they deprived Robinson of his Constitutional rights. The jury found that the City did not deprive Robinson of his Constitutional rights.

The individual defendants appealed, raising these issues: (1) Robinson's claims were barred by the statute of limitations; (2) Robinson was collaterally estopped from pursuing this civil rights action; 1 (3) Robinson failed to prove the necessary causal link between the individual defendants' alleged conduct and his alleged injuries; (4) it was prejudicial error for the trial court not to instruct the jury on entrapment; (5) several jury instructions were erroneous, and taken as a whole, highly prejudicial; (6) the court erred by allowing Robinson's counsel to call witnesses for direct examination and not allowing defendants' counsel immediate cross-examination; and (7) the court's award of attorneys' fees to plaintiff Robinson was in error. We affirm.



There was evidence tending to show these facts, considering the record in the light most favorable to the jury verdict as we must, Rock v. McCoy, 763 F.2d 394, 396 (10th Cir.1985):

During the early evening hours on September 10, 1980, a Kinney's shoe store in Albuquerque was robbed by a masked black male carrying a pistol. The robbery was witnessed by some children who ran into the Albuquerque Woman's Center across the street and told some people of the robbery, including Officer Chacon. Officer Chacon left the Center and rode his motorcycle across the street where he was told by a Kinney's shoe store employee the direction in which the robber headed. Officer Chacon pursued the robber's vehicle in that direction. Shortly thereafter two shots were heard and Officer Chacon was found lying underneath his motorcycle, struck by both shots. He died from the wounds.

On September 12, 1980, Robinson and his friend, Reginald Walker, were arrested for the murder of Officer Chacon on a Crimestopper's tip. The grand jury returned a no-bill and refused to indict Robinson for Chacon's murder, the armed robbery and conspiracy charges of the shoe store. Nearly six months later, Robinson was again subject to a grand jury investigation. This time, with confession testimony of Walker, Robinson was indicted for the armed robbery of the Kinney's shoe store and the murder of Officer Chacon.

As part of the background to that indictment of Robinson, Maruffi had been assigned in early January 1981 to investigate the Chacon murder. Within a few days, Maruffi prepared and sent a memorandum to Chief Hansen, outlining the proposed investigation and requesting the assistance of defendants Kraemer and Polisar. This memorandum stated that a daily surveillance would take place at Walker's residence which "should successfully result in the apprehension of Walker for an in-

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progress felony crime. The probability of Walker's willingness to cooperate in the [Chacon] homicide investigation would increase considerably if the in-progress arrest was for a violent crime (robbery) rather than a property crime (burglary)." Addendum to Appellee's Brief, No. 252. 2 Maruffi believed at the time he wrote the memorandum that both Robinson and Walker were involved in the armed robbery and murder of Officer Chacon.

Shortly after the memorandum was written, surveillance began at Walker's and Robinson's shared residence. On January 15, 1981, Robinson met Gene Green, a convicted felon who had been spending time in jail until he became employed by Maruffi as an informant. Green moved next door to Robinson and began to spend time with him. During their acquaintanceship, both Robinson and Green committed various property crimes and an attempted armed robbery of a Jack-in-the-Box restaurant located across the street from the scene of Chacon's murder. Robinson was arrested on these charges by defendants Maruffi and Polisar. 3

On January 17 Walker's landlady, Sue Goett, was robbed outside Robinson's and Walker's apartment. Both Robinson and Walker were under surveillance during the time Ms. Goett was robbed. Neither the six police officers conducting the surveillance, nor any other individual, saw Robinson or Walker commit the robbery. Ms. Goett gave a statement to Maruffi in which she stated that less than a minute after she had been robbed, Walker came running up to her and gave chase in the direction that the robber fled. Ms. Goett did not identify Walker as the assailant. However, Maruffi had obtained a statement from Green two days earlier in which Green stated Walker bragged about committing the robbery. With Green's statement, Maruffi prepared an affidavit and obtained an arrest warrant for Walker. On February 20 Walker was arrested for the Goett robbery. Later that month Walker was indicted for the Goett robbery.

In early March 1981, facing the possibility of going to jail for the Goett robbery, Walker gave statements to Maruffi and Polisar incriminating Robinson and himself in the Kinney shoe store robbery and Officer Chacon's murder. He also stated that the car of Barry Foster, Robinson's foster brother, was used in the armed robbery and murder. Walker described how Foster threatened him by telling him that anyone who talked about the case would be killed. In exchange for Walker's testimony against Robinson for the armed robbery and murder, Walker would plead guilty to charges pending against him and receive five years' unsupervised probation. Walker was also provided with some money and relocated in Tucson.

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Shortly after Walker gave his statement that Foster had intimidated him, Foster's car was impounded by the defendants although it did not match the description of the get-away car given by the witnesses at the scene. On March 12, 1981, Foster was indicted for intimidating a witness due to Walker's testimony to the grand jury. On March 15 Foster was called to pick up his car by the Albuquerque Police Department. Not knowing of the indictment, Foster attempted to retrieve his car and was arrested. Foster was searched and a small vial of cocaine was allegedly found in his pocket. 4 Because Foster had been on probation, a preliminary parole revocation hearing was held on April 2. At this hearing, Foster denied that he was in possession of cocaine at the time he went to claim his car. The hearing officer recommended that Foster be continued on parole supervision until his charge was adjudicated. If Foster's parole was revoked, he could have been sentenced to jail for a period up to twenty years.

Sometime between April 3 and April 5, 1981, Foster called an investigator for the District Attorney's office. 5 Foster told Investigator Pierengelli during this...

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