Coursey v. Broadhurst

• Decision Date: 16 November 1989
• Docket Number: No. 89-4240,89-4240
• Citation: 888 F.2d 338
• Parties: 29 Fed. R. Evid. Serv. 35 Bobby COURSEY, Plaintiff-Appellant, v. Chris BROADHURST, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 338

888 F.2d 338

29 Fed. R. Evid. Serv. 35

Bobby COURSEY, Plaintiff-Appellant, v. Chris BROADHURST, Defendant-Appellee.

No. 89-4240

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Nov. 16, 1989.

Ken R. Adcock, Shell, Buford, Bufkin, Callicutt & Perry, Ken R. Adcock, Jackson, Miss., for plaintiff-appellant.

Joseph W. McDowell and Joseph L. McCoy, McCoy, Wilkins, Noblin & Stephens, Jackson, Miss., for defendant-appellee.

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

Before REAVLEY, KING and JOHNSON, Circuit Judges.

PER CURIAM:

This negligence action arises from a motor vehicle collision in Rankin County, Mississippi, on January 2, 1986. Appellant-plaintiff Bobby T. Coursey appeals a final judgment entered upon a jury verdict in his favor, claiming that due to errors at trial, the jury did not adequately compensate him for his damages. Appellant Coursey challenges three rulings by the district court: (1) its denial of Coursey's motion in limine to exclude evidence of a prior theft conviction; (2) its denial of Coursey's motion for a mistrial when opposing counsel referred to the conviction in his opening statement and (3) its directed verdict in favor of appellee Broadhurst on the issue of damages to Coursey's tractor. We affirm the judgment of the district court.

I. BACKGROUND

On January 2, 1986, an automobile driven by appellee-defendant Chris Broadhurst ("Broadhurst") collided with a tractor-trailer truck driven by appellant-plaintiff Bobby Coursey ("Coursey") on an interstate highway near Brandon, Mississippi. The impact caused the right tires of Coursey's tractor and trailer to drop off the road surface onto the right shoulder of the highway. The weight of the load of sheetrock Coursey was carrying shifted to the right and the truck flipped on its side, causing personal injury to Coursey and property damage to his tractor-trailer unit.

On June 22, 1987, Coursey filed a negligence action against Broadhurst, based on diversity jurisdiction, in United States District Court for the Southern District of Mississippi, seeking damages resulting from the automobile-truck collision. After discovery was completed, Coursey filed a pretrial motion in limine to exclude any evidence regarding his 1983 felony conviction for cattle theft. The district court denied Coursey's motion. ¹

The action was tried to a jury on January 9 and 10, 1989. During his opening statement, counsel for Broadhurst referred to Coursey as "a convicted felon." Coursey moved for a mistrial, arguing that opposing counsel's conduct impermissibly exceeded the scope of Federal Rule of Evidence 609 and irreparably prejudiced Coursey in the eyes of the jury. The trial court denied the motion for mistrial.

After both sides had rested, the district court granted Broadhurst's motion for a directed verdict on the element of damages relating to Coursey's tractor, ruling that Coursey had failed to establish a prima facie case in support of these damages. In closing argument, Coursey asked the jury to render a verdict in his favor for $54,700 on the remaining elements of damages: medical expenses, pain and suffering, lost wages, repair costs for the trailer attachment, and costs for storing the trailer for a reasonable period during which repairs could have been completed. The jury returned a verdict for Coursey in the amount of $8,600.

Coursey filed a motion for additur or new trial under Rule 59 of the Federal Rules of Civil Procedure. The district court denied the motion, and Coursey then filed a timely appeal to this court. Coursey contends on appeal, as he did in his motion for additur or new trial, that the district court erred in denying his motion in limine and admitting evidence of his 1983 felony theft conviction. Coursey argues that, in any event, the court erred in allowing reference to Coursey's conviction to come out in Broadhurst's opening statement, rather than on cross-examination of Coursey as contemplated by Fed.R.Evid. 609(a). Finally, Coursey contends that the district court erred in directing a partial verdict for Broadhurst, excluding from the jury's consideration the issue of damages related to the alleged total loss of Coursey's tractor.

II. DISCUSSION

A. Admissibility of Coursey's Felony Conviction

In the course of discovery, Coursey revealed that he had pleaded guilty in August 1983 to a felony charge of cattle theft. Coursey filed a pretrial motion in limine in an attempt to exclude evidence relating to this conviction, contending that such evidence would be of very low probative value to the jury and would substantially prejudice his interests. The district court denied his motion. As explained in its order denying Coursey's motion for a new trial, ² the court ruled that evidence of Coursey's conviction was admissible under Rule 609(a)(1) of the Federal Rules of Evidence after determining that the probative value of the evidence outweighed its prejudicial effect. In his opening statement to the jury, counsel for Broadhurst made the following remarks:

We do believe, as you'll see from their presentation of the evidence and then our presentation of the evidence, there is a conflict in what happened that day as to the testimony and the facts. We believe it would be your opportunity and obligation to determine who's telling the truth and who's not telling the truth in this case. To determine that you've got to determine the demeanor of the witnesses, each witness from the stand, and their credibility.

We expect the evidence to show that the Plaintiff is a convicted felon, which is a fact.

Coursey immediately moved for a mistrial. The trial court noted that mention of Coursey's felony conviction was improper during Broadhurst's opening statement. However, the court denied Coursey's request for a mistrial.

Coursey renewed his complaint of attorney misconduct in a post-judgment Rule 59 motion for new trial. In its order denying Coursey's motion, the court explained that "the prejudice, if any, to Coursey occasioned by mention of his prior felony conviction was not such as to deprive him of a fair and impartial trial." The court also concluded that any error regarding admitting evidence of Coursey's conviction was cured when he explained the circumstances of the conviction on direct examination in his case-in-chief.

Coursey argues on appeal that evidence of his 1983 conviction should not have been admitted at all--i.e., the court should have granted his motion in limine--because theft is not a crime that involves "dishonesty or false statement" for purposes of Rule 609(a). He further contends that even if evidence of his conviction was admissible, it was admissible under Rule 609 only during cross-examination for purposes of impeaching his credibility. Therefore, argues Coursey, the district court erred in not granting a mistrial when Broadhurst's counsel improperly referred to Coursey's conviction during opening statements. Coursey maintains that such misconduct "permeated the jury's mind with prejudice which adversely influenced the verdict and deprived Mr. Coursey of a fair and impartial trial." We hold that the district court did not err in admitting evidence of Coursey's 1983 felony conviction. ³

Federal Rule of Evidence 609(a) provides:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

Looking first to Rule 609(a)(2), we briefly address the parties' disagreement as to whether Coursey's conviction was admissible under this subsection.

Subsection (a)(2) of Rule 609 is premised on a logical assumption that evidence showing a witness's conviction for a crime involving "dishonesty or false statement" is probative of the issue of the witness's propensity to testify truthfully. The mandatory language of Rule 609(a)(2) requires that a trial court admit evidence of such crimes to allow a party to impeach an adversary witness's credibility. Citing cases from other circuits, Broadhurst argues that felony theft, the crime for which Coursey was convicted, is a crime involving dishonesty or false statement. The rule in the Fifth Circuit is clearly to the contrary; evidence of conviction for a crime of the present nature cannot be used for impeachment under Rule 609(a)(2). See Howard v. Gonzales, 658 F.2d 352, 358-59 (5th Cir.1981) (felony theft) and cases cited therein.

We turn then to Rule 609(a)(1). This subsection has, until recently, been the subject of considerable controversy when applied in the context of civil lawsuits. The difficulty arises from Congress's use of the word "defendant" in its requirement that a court allow impeachment of any witness with prior convictions "only if" the probative value of the evidence outweighs its prejudice to "the defendant." In civil trials, Rule 609(a)(1) could thus be interpreted to provide the benefit of prejudice-weighing to civil defendants, but not to civil plaintiffs. Concluding that Congress could not have intended such an absurd--and perhaps unconstitutional--result, the Supreme Court held last term in Green v. Bock Laundry Machine Co. that the term "defendant" in Rule 609(a)(1) means "criminal defendant." --- U.S. ----, 109 S.Ct. 1981, 1991, 104 L.Ed.2d 557 (1989). Therefore, the prejudice-weighing prerequisite to admissibility of felony convictions applies only in criminal trials. In civil trials, Rule 609 precludes such judicial discretion; impeachment evidence of prior...