Gamble v. Browning

Decision Date31 July 2012
Docket NumberNo. WD 73352.,WD 73352.
PartiesOren Gene GAMBLE, Sr., et al., Appellants, v. Jim BROWNING, et al., Respondents.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

Application for Transfer Denied Oct. 30, 2012.

Joseph P. Bednar, Jr., Jefferson City, MO and Chad C. Beaver, Kansas City, MO, for appellant.

Doug Leyshock, Jefferson City, MO and James F. Ralls, Jr., Liberty, MO, for respondent.

Before: ALOK AHUJA, P.J., and JAMES M. SMART, JR., JJ. and JAMES E. WELSH, JJ.

ALOK AHUJA, Judge.

Oren Gamble sued Respondents Larry McCoy, a police informant, and Jim Browning and Dan Cline, both now retired Kansas City, Missouri police officers, for malicious prosecution, based on Gamble's conviction for burglary in 1986. 1 Gamble appeals a judgment entered in favor of the Respondents following a jury trial. He claims that the trial court made numerous errors in the admission or exclusion of evidence, and that he is entitled to a new trial. We disagree, and affirm the circuit court's judgment.

Factual Background

In 1985, Oren Gamble was charged with burglary based on an incident in which he and McCoy were involved. He entered an Alford plea of guilty one year later, and was given a suspended imposition of sentence and placed on probation for three years. Gamble's probation was subsequently revoked, and he was sentenced to fifteen years in the Missouri Department of Corrections. After unsuccessful attempts at post-conviction relief in both state and federal court, Judge Kelly Moorhouse of the Circuit Court of Jackson County set aside Gamble's conviction and permitted him to withdraw his guilty plea under Supreme Court Rule 29.07(d) on June 26, 2001. Judge Moorhouse's order found that a manifest injustice had occurred. This conclusion was based in significant part on her finding that the police had failed to disclose, to either the defense or the prosecution, the relationship betweenMcCoy, his family members, and the detectives involved in the burglary case, and the deal they had struck with respect to the events underlying Gamble's conviction. Because the special prosecutor assigned to the case advised the court that she did not intend to further pursue the case, Judge Moorhouse's order “order[ed] [Gamble's] immediate release from the Central Missouri Correctional Center where he has been incarcerated on the charge.”

Gamble then filed this civil action. He alleged that he had been working as an informant for Browning and Cline in the early 1980's, providing information about criminal activity, including stolen property. In October 1985, Gamble informed one of the two officers that McCoy wanted to sell him some stolen guns. McCoy was arrested and taken to the East Patrol Station. McCoy's father, grandfather, and uncle were current or former Kansas City police officers. According to Gamble, shortly after McCoy's arrest his father met with Browning and found out that Oren Gamble was the informant against his son. A few days later, McCoy's uncle met with Browning and Cline to work out a deal. Gamble alleged that, in exchange for dismissal of the gun charges, McCoy agreed to fabricate charges against Gamble. Browning and Cline transferred McCoy to work with the Special Investigations Division, rather than the Property Crimes Division, to pursue Gamble.

In mid-November 1985, Gamble called Browning to tell him that McCoy wanted him to help with a burglary. Gamble claimed that Browning told him to go along with McCoy on the planned burglary, but to avoid taking any overt action, such as breaking a window. Gamble did not know of Browning and Cline's meetings with McCoy's relatives, or that McCoy was cooperating with Browning and Cline to implicate Gamble.

On November 18, 1985, Gamble was arrested at the scene of the burglary McCoy had instigated, of a Circle K convenience store in Kansas City. Browning did not tell the investigating officers about his relationship with Gamble. As noted above, Gamble was convicted of the burglary.

In the first trial of this civil case, the jury found in favor of the Respondents.2 On appeal, Gamble argued that the trial court had erred in various evidentiary rulings. Based on the trial court's wholesale exclusion of videotapes containing McCoy's admission of complicity in the plot against Gamble, we reversed and remanded for a new trial. Gamble v. Browning, 277 S.W.3d 723 (Mo.App. W.D.2008). In the new trial, the jury again found for the defendants. Gamble again appeals, challenging several of the trial court's evidentiary rulings.

Standard of Review

The trial court has broad discretion to admit or exclude evidence, and we will affirm the trial court's decision absent a clear abuse of discretion. This standard gives the trial court broad leeway in choosing to admit evidence, and its exercise of discretion will not be disturbed unless it is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.

Owens v. ContiGroup Cos., 344 S.W.3d 717, 726 (Mo.App. W.D.2011) (citations and internal quotation marks omitted).

Analysis
I.

Gamble's first three Points Relied On challenge the exclusion from evidence of Judge Moorhouse's June 2001 order, which set aside Gamble's conviction and ordered his release from custody. Judge Moorhouse's order found that a manifest injustice had occurred, justifying the setting aside of Gamble's conviction under Rule 29.07(d). In the course of reaching this conclusion, the order made numerous findings which would be helpful to Gamble's litigation of this civil action, including: that Gamble had “rendered valuable service” as an informant for the Kansas City Police Department in 1984 and 1985; that Browning told McCoy that he would not be charged for various offenses if he helped “set-up” Gamble; that Browning and Cline met with McCoy's uncle and father, during which this deal with McCoy was discussed and finalized; that Gamble repeatedly rebuffed McCoy's efforts to involve Gamble in various crimes; that [o]n November 18, 1985, the night of the burglary, the policy gave Larry McCoy specific instructions to go out with [Gamble] and to find a location to commit a burglary, and to let [Gamble] do the actual break-in in order to set him up”; and that, following Gamble's arrest, Browning misrepresented “that he was not using [Gamble] as his agent the night of the ‘burglary’ of the Circle K store.”

Instead of providing the jury with Judge Moorhouse's order (or with the exhibit prepared by Gamble which recited certain of the order's factual findings), the trial court read to the jury the following “stipulation”:

On June 4th, 2001 the Honorable Kelly J. Moorhouse entered an order finding manifest injustice which permitted Oren G. Gamble, Sr. to withdraw his guilty plea for the November 18, 1985 burglary. This order vacated his conviction and sentence.

As reported in Judge Moorhouse's order the special prosecuting attorney, Bronwyn Werner, dismissed the 1985 burglary charge against Oren G. Gamble, Sr. and that act terminated the criminal prosecution of Oren G. Gamble, Sr. in his favor.3

A.

We begin with Gamble's third Point Relied On, which argues that Judge Moorhouse's order was admissible because Browning, Cline and McCoy were collaterally estopped from relitigating the facts found in the order.

Collateral estoppel, or issue preclusion, bars relitigation of issues that were necessarily and unambiguously decided in a prior proceeding. In determining whether collateral estoppel applies, courts must consider whether: (1) the issue decided in the prior case was identical to that in the present action; (2) the prior suit resulted in a final judgment on the merits; (3) the party against whom the doctrine is asserted participated as a party or in privity with a party to the prior adjudication; and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue. Unlike res judicata, collateral estoppel applies to issues that are being relitigated even though the prior lawsuit raised a different cause of action. Collateral estoppel does not require the identity of claims and may be asserted by strangers to the original action.Spath v. Norris, 281 S.W.3d 346, 351 (Mo.App. W.D.2009) (citations and internal quotations marks omitted); see also Green v. Fred Weber, Inc., 254 S.W.3d 874, 884 (Mo. banc 2008) (“Missouri follows the ‘narrow use of offensive collateral estoppel....’ Under that rule, no party can be bound by a judgment unless she was in privity with the parties to that judgment.' ”) (citations omitted); Moore v. City of Desloge, Mo., 647 F.3d 841, 847 (8th Cir.2011) (Missouri law; same).

Gamble cannot satisfy the third element necessary to invoke collateral estoppel, because the Respondents were not in privity with the State in the proceedings which resulted in Judge Moorhouse's order. Therefore, the Respondents were not collaterally estopped from relitigating the facts found in Judge Moorhouse's order.

Under Missouri law, [p]rivity is not established between two people merely because they both have an interest in proving or disproving the same set of facts.” Steinhoff v. Churchill Truck Lines, Inc., 875 S.W.2d 175, 177 (Mo.App. E.D.1994).

A privy, in the context of collateral estoppel, is one so related by identity of interest with the party to the judgment that such party represented the same legal right. Parties are in privity for collateral estoppel purposes if the interests of the non-party are so closely related to the interests of the party, that the non-party can be fairly considered to have had his day in court. Whether parties are in privity depends mostly on their relationship to the subject matter of the litigation.

Mo. Mexican Prods., Inc. v. Dunafon, 873 S.W.2d 282, 286 (Mo.App. W.D.1994) (citations omitted).

We cannot say that the State represented the Respondents' legal rights...

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