Gamble v. Browning

• Citation: 277 S.W.3d 723
• Decision Date: 02 December 2008
• Docket Number: No. WD 67441.,WD 67441.
• Parties: Oren G. GAMBLE, Sr., and Debra Lynn Gamble, Appellants, v. Jim BROWNING, Dan Cline, Larry McCoy, Sr., Jimmy McCoy, Denis Eckold, Mayor Kay Barnes, Dr. Stacey Daniels-Young, Karl Zobrist and Javier M. Perez and Larry McCoy, Jr., (comprising former member of the Board of Police Commissioners of Kansas City, Missouri), Respondents, Arthur Brookfield, Beverly Barker-Nix and John Williams, Defendants.
• Court: Missouri Court of Appeals

277 S.W.3d 723

Oren G. GAMBLE, Sr., and Debra Lynn Gamble, Appellants, v. Jim BROWNING, Dan Cline, Larry McCoy, Sr., Jimmy McCoy, Denis Eckold, Mayor Kay Barnes, Dr. Stacey Daniels-Young, Karl Zobrist and Javier M. Perez and Larry McCoy, Jr., (comprising former member of the Board of Police Commissioners of Kansas City, Missouri), Respondents, Arthur Brookfield, Beverly Barker-Nix and John Williams, Defendants.

No. WD 67441.

Missouri Court of Appeals, Western District.

December 2, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 27, 2009.

Application for Transfer Denied March 31, 2009.

Joseph Paul Bednar, Jr., Jefferson City, MO, for appellant.

Doug Leyshock and Bart Anton Matanic, Office of Attorney General, Jefferson City, MO, James Franklin Ralls, Jr., Liberty, MO, for respondent.

RONALD R. HOLLIGER, Presiding Judge.

Oren Gamble and his wife appeal a judgment in favor of multiple defendants on their claim for a malicious prosecution against Larry McCoy (McCoy), a police informant, Jim Browning and Dan Cline, both now retired Kansas City, Missouri, police officers, and numerous former and current members of the Kansas City Board of Police Commissioners. The Gambles have dismissed their claims against the police board defendants, and they are not parties on this appeal. The Gambles claim that the trial court made numerous errors in the admission or exclusion of evidence. We find that some of those claims of error were not properly preserved and find that the trial court did not err as to others. We find, however that the trial court erred in excluding all portions of a surreptitiously filmed interview with McCoy. Because portions of this interview went directly to the heart of the Gambles' theory of the case and contradicted other statements by McCoy, their exclusion was prejudicial. We, thus, reverse and remand the cause for a new trial.

Facts and Procedural Background

In 1985, Oren Gamble was charged with burglary based on information provided by Larry McCoy; one year later he entered an Alford¹ plea of guilty and was placed on probation. His probation was subsequently revoked, and he was sentenced to fifteen years in the Missouri Department of Corrections. While he was still imprisoned, Judge Kelly Moorhouse set aside his guilty plea under Rule 29.07 on the grounds of manifest injustice. Specifically, the court found that officers Browning and Cline had failed to disclose favorable information concerning Gamble in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).²

The Gambles then filed this civil action alleging essentially that Gamble had been set up by McCoy and officers Browning and Cline in the 1985 prosecution. Gamble claimed that he had been working as an informant with Browning and Cline, providing information about criminal activity, including stolen property. In October 1985, Gamble told one of the two officers that McCoy wanted to sell him some stolen guns. McCoy was arrested and taken to the East Patrol Station. Larry McCoy's father, grandfather, and uncle were current or former Kansas City police officers. Shortly after his son's arrest, Larry McCoy, Sr., met with Browning and found out that Oren Gamble was the informant against his son. A few days later, Larry McCoy's uncle met with Browning and Cline to work out a deal. In exchange for dismissal of the gun charges, Larry McCoy agreed to "set up" Gamble. Browning and Cline then transferred McCoy to work with the Special Investigations Division, rather than the Property Crimes Division, to pursue Gamble. In mid November, Gamble called Browning to tell him that McCoy wanted him to help with a burglary. Gamble claimed Browning told him to go along but not to do anything overt. Gamble did not know of Browning and Cline's meetings with Larry McCoy or his relatives. Browning did not tell the investigating officers about his conversation with Gamble. The burglary led to Gamble's conviction in 1986.

In 1988, Gamble filed a Rule 24.035 motion to set aside his guilty plea, asserting that he had been set up by the police. His motion was denied for lack of evidence. In 1988, Gamble filed an action in federal court claiming entrapment but it was dismissed in 1990.

After the hearing before Judge Moorhouse and her order allowing Gamble to withdraw his guilty plea, a special prosecutor declined to pursue the charges, and Gamble was released from prison after serving over five years. Other facts will be discussed as relevant to particular issues raised on appeal.

Before considering the issues the Gambles raise, we first address the claim by Browning and Cline that the judgment should be affirmed on the basis of res judicata because of the dismissal of the earlier 42 U.S.C. section 1983 action brought by Gamble. We do not properly have that issue before us. Browning and Cline did not file a cross appeal. They contend correctly that the issue of whether a plaintiff has made a submissible case is inherent in every appeal. Grippe v. Momtazee, 696 S.W.2d 797, 798 (Mo. banc 1985). It is not necessary for a defendant to cross appeal to raise that issue. Browning and Cline also correctly state that under some circumstances, a non-appealing party may challenge rulings of the trial court in an effort to sustain a judgment in their favor. Burrous v. Am. Airlines, Inc., 639 S.W.2d 263, 267 n. 3 (Mo.App. E.D.1982). They argue this may include the merits underlying a denied motion for summary judgment, citing State ex rel. Liberty Mutual Insurance Company v. Gum for support. 904 S.W.2d 447, 451 (Mo.App. W.D.1995). They, thus, ask us to affirm the judgment under Rule 84.14.

Liberty Mutual, however, does not support their argument. It was not a direct appeal; rather, it was an action in prohibition seeking the review of a summary judgment. Id. at 448. It has been long settled in Missouri that there is generally no appeal from the denial of a motion for summary judgment. Parker v. Wallace, 431 S.W.2d 136, 137 (Mo.1968).³ Nor is the denial reviewable on appeal when the actual appeal is from a final judgment. Hihn v. Hihn, 235 S.W.3d 64, 67 (Mo.App. E.D.2007). Browning and Cline cite no authority to the contrary.⁴ That lack of authority is perhaps explainable by the reasoning in Parker: "Upon that ruling [denying summary judgment], the issues raised in the pleadings are still in the case, and it is upon those issues, when decided and if timely and properly presented, that an appeal lies." 431 S.W.2d at 137-38. So it is with Browning and Cline's affirmative defense of res judicata. Even if they could raise the applicability of their affirmative defense without a cross appeal (which we do not decide), they present no record on appeal that it was raised and preserved in a motion for directed verdict. Carson-Mitchell, Inc. v. Macon Beef Packers, Inc., 544 S.W.2d 275, 276 (Mo.App. W.D.1976) (claim that engineering company was barred from recovery because of lack of statutory authorization to practice professional engineering (a legal defense) was not preserved where raised in motion for directed verdict but not raised in JNOV motion).⁵ Thus, we proceed to the merits of the direct appeal.

Standard of Review

The Gambles' first four points each involve the trial court's ruling either admitting or excluding evidence. We will not disturb a trial court's decision to admit or exclude evidence absent an abuse of discretion. Whelan v. Mo. Pub. Serv., Energy One, 163 S.W.3d 459, 461 (Mo.App. W.D.2005). The trial court abuses its discretion if its ruling was "`against the logic of the circumstances before it and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.'" Id. (quoting Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991)). We affirm the trial court's evidentiary ruling unless there is a substantial or glaring injustice. Id. at 462.

The Court Erred in Refusing to Admit Portions of January 6 & 20th Videotapes of McCoy Because They Were Not Hearsay or Were Admissions of a Party Opponent

The Gambles offered two videotapes of Larry McCoy into evidence. The first involved McCoy and Gamble's brother and the second involved McCoy, Gamble's brother, and Oren Gamble. The trial court admitted certain portions of the first video, but the Gambles specifically complain of the exclusion of three other portions. The defendants objected that these portions were hearsay, and the trial court sustained that objection. The Gambles argued that they were admissible under the exception for admissions against interest.

January 6 Videotape

These three excerpts were excluded from the January 6 videotape:

Excerpt 1: Steve Gamble: So the cops talked you into setting his ass up? McCoy: Fuck, yeah. They did. Big time.

Excerpt 2: McCoy: . . . them motherfuckers, they said he'd never find out and somehow he found out. They told me his fucking lawyer—

Excerpt 3: McCoy: . . . they told me that he'd never find out and his lawyer would never find out, so evidently something went wrong. Now he's pissed at me.

The defendants all argue that the excerpts were not admissions. Browning and Cline further argue that they were inadmissible because the declarants were available at trial as witnesses. The latter contention is incorrect. Browning and Cline rely upon Nelson v. Holley, 623 S.W.2d 604, 606 (Mo.App. W.D.1981). That decision, however, involves a declaration against interest by a non-party. See id. Unavailability does not apply to an admission made by a party opponent. Carpenter v. Davis, 435 S.W.2d 382, 384 (Mo. banc 1968). It is admissible if made by a party or by one in privity with that party. Nettie's Flower Garden, Inc. v. SIS, Inc., 869 S.W.2d 226, 229 (Mo.App. E.D.1993). The first excerpt was clearly an admission by McCoy and should have been admitted; if it was not admissible against Browning and Cline, they could have sought a limiting...