Anderson v. Franklin County

• Decision Date: 19 April 1999
• Docket Number: No. 98-3770,98-3770
• Citation: 192 F.3d 1125
• Parties: (8th Cir. 1999) Benjamin A. Anderson; Benjamin M. Anderson, Appellants, v. Franklin County, Missouri; and Gary F. Toelke, Doug Winholt, Janice Crews, in their individual and official capacities, Appellees. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1125

192 F.3d 1125 (8th Cir. 1999)

Benjamin A. Anderson; Benjamin M. Anderson, Appellants, v. Franklin County, Missouri; and Gary F. Toelke, Doug Winholt, Janice Crews, in their individual and official capacities, Appellees.

No. 98-3770

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: April 19, 1999

Filed: September 21, 1999

Appeal from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted] Before RICHARD S. ARNOLD and WOLLMAN,¹ Circuit Judges, and MAGNUSON,² District Judge.

MAGNUSON, District Judge.

Benjamin A. Anderson and Benjamin M. Anderson seek a new trial, asserting that the district court ³ erred in excluding an eyewitness' testimony and in denying a motion to permit examination of police audio tapes for evidence of tampering. Further, appellants challenge the district court's ⁴ adverse entry of summary judgment and dismissal of their federal and state claims for false arrest and imprisonment and various other constitutional claims. We affirm.

On February 1, 1994, the Franklin County Sheriff's Department dispatched officers to Benjamin M. Anderson's ("Anderson Jr.") home in response to a family dispute 911 call placed by Anderson Jr.'s stepdaughter. While en route, appellee Deputy Doug Winholt was radioed that an outstanding Illinois warrant existed for a "Benjamin Anderson" for theft over $10,000.00 by deceit.

Winholt reported that, upon his arrival on the scene, he observed Benjamin A.Anderson ("Anderson Sr.") standing in the middle of the driveway holding a rifle. Anderson Sr. had initially positioned himself in the driveway to block his step-granddaughter from leaving the premises. He had, however, on hearing the approaching police siren, determined that he would intercept the police in order to talk to them and explain the situation. After Winholt stopped his car and told Anderson Sr. that he needed to enter the property, Anderson Sr. asked if the officer had a warrant. Winholt responded affirmatively. He then asked Anderson Sr. to relinquish his gun. Anderson Sr. refused. After several attempts, Winholt was eventually able to seize the weapon. He then got back in his vehicle, intending to proceed to Anderson Jr.'s house. His progress was impeded, however, by Anderson Sr., who repeatedly stepped in front of the patrol car. Attempting to get around him, Winholt admits striking Anderson Sr. with his vehicle. According to Anderson Sr., the third time he was struck he fell forward onto the vehicle's hood and Winholt drove several feet up the driveway before Anderson Sr. rolled from the car. Winholt then radioed his backup, appellee Corporal Janice Crews, and instructed her that on her arrival she should arrest Anderson Sr. for interfering with an officer in the line of duty. Crews arrived soon thereafter and, according to her deposition, Anderson Sr. refused to follow her instructions to put his hands on the hood of her car. As a result, she maced him. For his part, Anderson Sr. asserts that he did not resist arrest but rather offered to be handcuffed.

Upon his arrival at Anderson Jr.'s residence, Winholt informed Anderson Jr. that he was placing him under arrest. Anderson Jr. asked to see a warrant. According to Winholt, Anderson Jr. then resisted being handcuffed and eventually had to be subdued with mace. Anderson Jr. denies having resisted arrest. His version is that he simply turned to put out his cigarette and the next thing he knew he was maced.

Appellants were transported to the Franklin County Sheriff's Department. Anderson Sr. posted bond and was released the next day. One month later,⁵ due to an apparent clerical error, Anderson Sr. was rearrested on the same charge. On January 12, 1995, Anderson Jr. pled guilty to a misdemeanor charge of theft under $300, one of the two charges on which the Illinois warrant had been issued. As part of the plea agreement, the felony charge of theft over $10,000 was dismissed.

In September 1995, Anderson Sr. filed a complaint against Franklin County, Missouri, Sheriff Toelke, and law officers Winholt and Crews, asserting claims under 42 U.S.C. 1983 for unconstitutional arrest and imprisonment and use of excessive force. He asserted state law claims for false arrest and imprisonment, malicious prosecution, assault and battery. In a subsequent action, Anderson Jr. sought recovery under 1983 for unconstitutional arrest and confinement and excessive force, and state law claims for false arrest and imprisonment, assault and battery. The actions were consolidated in June 1996.

Appellees filed a partial summary judgment motion against appellants in October 1996. The district court entered a partial summary judgment order granting (1) summary judgment for all appellees against Anderson Sr. on his 1983 claims and state law claims for false arrest and imprisonment; (2) summary judgment for Franklin County against Anderson Sr. on his 1983 claim for excessive use of force and on his state law claims for malicious prosecution, assault and battery; and (3) summary judgment for Franklin County against Anderson Jr. on his 1983 excessive force claim and state law claims for assault and battery. Further, the district court dismissed with prejudice appellants' various First, Second, Fifth and Sixth Amendment claims under 1983. The court, in May 1999, also granted appellees' renewed summary judgment motion in favor of Toelke, Winholt, and Crews and against Anderson Sr. on his claims for false arrest and imprisonment and malicious prosecution, claims based on the erroneous rearrest of Anderson Sr. In addition, summary judgment was entered for Toelke and against Anderson Sr. on his 1983 excessive force claim.

On April 14, 1997, the district court appointed sign language interpreter Chad Darce to interpret the deposition of Leroy Wideman, the sole eyewitness to the altercation between Anderson Sr. and the police officers. Wideman is both deaf and mute and cannot read or write. However, after meeting with the witness, Darce concluded that he could not do an adequate job of interpreting because Wideman could not communicate with a standard form of sign language. Instead, he used a self-learned and unique form of "home signing," which Darce described as similar to charades. In a further attempt to facilitate Wideman's testimony, the district court allowed appellants to designate new interpreters: Geneva Shearburn and Antonia Wilson. Their process of interpretation entailed Shearburn signing questions to Wilson, who is also deaf and mute, who would then relate home signs to Wideman. Wilson then relayed Wideman's responses to Shearburn, who would communicate the responses verbally. A videotape deposition of Wideman was taken using this procedure. Appellees brought a pretrial motion to exclude Wideman's testimony. After a hearing on the matter and reviewing the tape, the court granted the motion.

In another pretrial order, noting that the motion was brought more than a year and a half after the discovery cutoff date, the district court denied appellants' request for additional expert examination of the tape recording of the police radio transmissions. The court's decision was predicated on appellants' failure to show good cause for their untimely motion and, more importantly, upon the fact that the issue of whether the tapes had been altered was moot since the question of when appellees had notice of a warrant was irrelevant to the claims that remained for trial.

The trial commenced in September 1998. The claims remaining for trial consisted of both appellants' excessive force claims under 1983, and both appellants' state law claims for assault and battery. The jury found in favor of appellees Toelke, Winholt and Crews on all counts.

I.

Appellants first claim that the district court erred in excluding the testimony of eye witness, Leroy Wideman. In considering this issue, we recognize that a competency determination is best made with the benefit of personal observation of the witness and therefore, we will not interfere with a trial court's evidentiary ruling unless there has been a clear and prejudicial abuse of discretion. See United States v. Peyro, 786 F.2d 826, 830-31 (8th Cir. 1986).

Appellants initially attack the district court's failure to explicitly state on the record the basis for its ruling. This assertion is without merit. The district court ruled that "upon review of the videotaped deposition of Mr. Wideman, the Court finds that the communication to and from Mr. Wideman through the interpreters is not reliable. The accuracy of questions to and responses from Mr. Wideman are highly suspect." (J.A. at 2.) The court concluded that Wideman's severe limitation in communicating would render his testimony unreliable, confusing, and misleading. Not only does the court's ruling sufficiently state the basis for its determination, its reasons are apparent from the record. See United States v. Sampson, 980 F.2d 883, 889 (3d Cir.1992).

Anderson Sr. further complains that he was denied his constitutional rights when the district court barred the testimony of Wideman and he charges that the court's exclusionary ruling requires reversal of the jury determination. Anderson Sr., however, does not set forth what facts, if any, are in dispute with respect to his altercation with the police officers. Nor does he indicate what additional information could be produced if Wideman were allowed to testify. Additionally, appellants did not provide this court with a trial transcript, which they were required to do if they were urging on appeal that the jury's conclusion was unsupported by the evidence or was contrary to the evidence. See Fed. R. App. P. 10(b); Brattrud v. Exline, 628 F.2d 1098, 1099 (8th Cir. 1980).

Considering statements in their depositions, it appears that the trial testimony of Wideman would have been largely, if not totally, cumulative of the parties' testimony. This is confirmed by...