Charles v. Wade

• Decision Date: 11 January 1982
• Docket Number: No. 80-7409,80-7409
• Citation: 665 F.2d 661
• Parties: Earl CHARLES, Plaintiff-Appellant, v. F. W. WADE, Leo B. Ryan and City of Savannah, Georgia, Defendants-Appellees. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 661

665 F.2d 661

Earl CHARLES, Plaintiff-Appellant, v. F. W. WADE, Leo B. Ryan and City of Savannah, Georgia Defendants-Appellees.

No. 80-7409.

United States Court of Appeals Fifth Circuit.

Unit B ^*

Jan. 11, 1982.

Dennis N. Balske, Ira A. Burnim, Montgomery, Ala., for plaintiff-appellant.

James B. Blackburn, Savannah, Ga., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before MORGAN, RONEY and KRAVITCH, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Appellant Earl Charles had served approximately three and one half years of a sentence for murder when he was released from prison after new evidence was discovered that supported his alibi defense. Following his release, appellant filed an action under 42 U.S.C. § 1983 against the City of Savannah and F. W. Wade, a detective with the Savannah Police Department, alleging that the defendants had concealed and falsified evidence that exculpated him of the crime and had initiated his prosecution without probable cause. At the conclusion of appellant's case, the district judge directed a verdict in favor of the City and, after deliberation, the jury returned a verdict for Wade. Appellant raises three issues on appeal. First, he argues that the district court abused its discretion in denying his motion to depose a person confined in a Florida prison, a witness alleged to be crucial to his case. Second, appellant argues that the court erred in instructing the jury that it could not find in appellant's favor on the basis of Detective Wade's alleged false testimony at appellant's criminal trial. Finally, appellant asserts that the court erred in directing a verdict for the City of Savannah. We agree with appellant's initial argument that the district court abused its discretion in denying his motion to depose and, for this reason, we reverse the court's judgment and remand for a new trial. We see no merit to appellant's second contention and find it unnecessary to address appellant's final argument.

I.

The parties offer divergent accounts and emphasize different aspects of the facts that led up to appellant's arrest and prosecution. We will briefly summarize the salient facts of the case and will describe in detail only those facts that are necessary to an understanding of the issues on appeal.

On October 3, 1974, Max Rosenstein, the proprietor of a furniture store in Savannah, Georgia, and his son, Fred Rosenstein, were shot and killed during an armed robbery of the store. Myra Rosenstein, Max's wife and Fred's mother, and Macy Corcelius were present in the store when the murders occurred. The Savannah Police Department (hereinafter SPD) immediately began an investigation that led to appellant's indictment for the crimes on November 21, 1974. At that time appellant was confined in the Pasco County Jail near Tampa, Florida on charges unrelated to the Savannah murders. Following a hearing before the Circuit Court of Pasco County on December 9, 1974, the court granted extradition, and appellant was returned to Georgia.

At his criminal trial, appellant introduced the testimony of Robert Zachery, the manager of a service station in Tampa, who testified that appellant had been working at the station on the day of the murders. Appellant also introduced time cards and payment vouchers from the station that verified his employment on October 3. In an effort to contradict appellant's alibi defense, the prosecution elicited testimony from Detective Wade that Robert Zachery had previously told him that appellant was not at work on the day of the murders. The prosecution then called James Nixon, an individual who had been arrested in Florida with appellant, who testified that while he and appellant were confined in the Pasco County Jail appellant confessed to Nixon that he had committed the Savannah murders. The jury evidently believed the prosecution's witnesses, for it returned a verdict finding appellant guilty of murdering the Rosensteins. Appellant was sentenced to death.

In February 1978 appellant through counsel filed a motion for new trial on the basis of newly discovered evidence that a Florida police officer had seen appellant working at the Tampa service station on the day of the murders. The District Attorney for Chatham County, Georgia dispatched his Chief Investigator to check out this new evidence and, after the investigator reported that the evidence was consistent with appellant's alibi, the district attorney ordered that all witnesses be reinterviewed. After the completion of this investigation the district attorney made the decision not to oppose the motion for new trial and not to reprosecute appellant. Appellant was released from custody on July 5, 1978, over three years and seven months after his arrest and incarceration.

On June 20, 1979, appellant filed a complaint seeking damages under 42 U.S.C. § 1983 for violations of his Sixth and Fourteenth Amendment rights and under Georgia law for false imprisonment, malicious arrest, and malicious prosecution. In his initial complaint appellant named as defendants not only Detective Wade and the City of Savannah but also the Chief of the SPD and three other detectives employed by the department. Appellant subsequently voluntarily dismissed all state law claims and all defendants except Detective Wade and the municipality. Appellant made essentially four allegations against these two defendants: (1) that Detective Wade had falsified two eyewitness identifications of appellant, (2) that Wade had persuaded a witness, James Nixon, to testify falsely that appellant had confessed to committing the Savannah murders, offering Nixon his freedom in exchange for this testimony, (3) that Wade had withheld exculpatory evidence from the district attorney, and (4) that Wade had perjured himself at the criminal trial when he testified that appellant's employer had stated that appellant was not at work on the day of the murders.

Our concern here is with three rulings issued by the district court before and during the trial of appellant's civil case. We will discuss each of these issues in turn.

II.

The first issue is whether the district court abused its discretion in refusing to permit appellant to depose James Nixon, who was then confined in a maximum security prison in Starke, Florida.

At appellant's 1975 criminal trial James Nixon testified for the prosecution that appellant had confessed committing the Savannah murders to him. Nixon also stated that the prosecution had not promised him anything in return for his testimony. However, during the course of discovery for the 1980 civil trial, appellant's counsel found a letter from Detective Wade and another detective with the SPD to the Governor of Florida requesting that James Nixon be released from prison as a reward for his testimony at appellant's criminal trial. Counsel also found a letter from Nixon to Detective Wade suggesting that Nixon expected to be released from prison in return for his testimony.

Prompted by these discoveries, appellant's counsel sent an associate to interview Nixon at the Florida State Prison in November 1979. According to appellant, ¹ at this interview Nixon stated that appellant had not confessed any murders to him and that Detective Wade had promised Nixon his freedom in return for his testimony. Appellant's counsel himself traveled to Florida on February 18, 1980 to further interview Nixon and to see if he would be willing to testify by deposition. At this interview Nixon revealed that Detective Wade had supplied him with the details of the murders. Nixon stated that Wade had come to the jail where he was being held and had questioned him about certain statements appellant had made concerning the Savannah murders. Nixon told Wade that appellant had said nothing about any murders but had stated that he had robbed a furniture store in Savannah where he had once worked. ² Wade then told Nixon that appellant had killed the owners of the furniture store. Nixon, taking Wade's word that appellant had in fact committed the murders, agreed to testify that appellant had confessed the Rosenstein murders to him in exchange for a guarantee that he, Nixon, would be released from prison. Wade agreed, and a bargain was struck.

At the conclusion of the interview, Nixon agreed to give a deposition. The next day, February 15, 1980, appellant's counsel contacted defense counsel to arrange a mutually agreeable time for the deposition. Two days later, on February 25, defense counsel informed appellant's counsel that under Rule 30(a), Fed.R.Civ.P., a court order would have to be obtained before such a deposition could be scheduled. The following day, some six weeks before the trial, appellant's counsel filed a motion seeking to depose James Nixon. Defendants filed a response opposing appellant's motion. On March 4, 1980, the district court denied the motion on the basis that the discovery period had closed.

The Federal Rules of Civil Procedure permit a party to introduce at trial the deposition of a witness if the witness is more than 100 miles from the place of trial or is unable to appear because of imprisonment. Fed.R.Civ.P. 32(a)(3)(B) & (C). The witness James Nixon satisfied both of these conditions: he was incarcerated in a prison located more than 100 miles from Savannah. Nevertheless, appellant was not automatically entitled to depose the witness since, under Rule 30(a), "(t)he deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes."

When appellant sought the court's leave to depose Nixon, the court denied permission on the basis that the discovery period had closed. This was clearly an inappropriate reason for denying appellant's motion to depose. Although the discovery period had indeed closed at the time appellant made his motion, the requested deposition would not have been taken for purposes of discovery...