Howard v. Gonzales
| Decision Date | 07 October 1981 |
| Docket Number | No. 80-1467,80-1467 |
| Parties | 9 Fed. R. Evid. Serv. 176 William C. HOWARD, Plaintiff-Appellee, v. V. A. GONZALES, et al., Defendants-Appellants. Summary Calendar. . Unit A * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Calvin A. Hartmann, Asst. Dist. Atty., Houston, Tex., for defendants-appellants.
Michael P. Mallia, Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GEE, GARZA and TATE, Circuit Judges.
By this action, the plaintiff Howard sought damages for a beating and unlawful arrest. He alleged that, acting in concert, five defendants had under color of state authority deprived him of rights secured by the federal constitution. See 42 U.S.C. § 1983. After a five-day jury trial ending in verdict for Howard, judgment was entered in the amount of $56,050 against the five defendants cast. Only three defendants appeal; they raise six assignments of error: two concerning jury instructions, two questioning evidentiary rulings, and two questioning the sufficiency of the evidence as to two relatively minor findings of the jury on special interrogatories. Although we find that objected-to-incompetent evidence prevents recovery of $1,919.11 of the medical expenses awarded, thus entitling the defendants to a reduction of the judgment in this amount, we otherwise affirm.
The cast of characters in this story includes: The plaintiff Howard, who stopped to aid a motorist in distress; the motorist, Mrs. Mathis, her son Steve, and her husband John, none of whom had met Howard previously to the incident and all of whom testified strongly corroborative of his version of the incident; the defendants Pierce and Taylor, wrecker operators, who resented Howard's gratuitous services to Mrs. Mathis as unfair competition, and who did not appeal the judgment against them; and the defendants-appellants Gonzales, Reider, and White, deputy sheriffs, whom the jury found had acted in concert with their friends, Pierce and Taylor, in permitting the beating and in arresting Howard on false charges.
Construing the record evidence in favor of the jury findings, the jury could reasonably find as follows:
Mrs. Mathis had car trouble. Howard, a passerby, saw her hood raised and came up and asked if he could help her. He began working on the battery and motor of the Mathis vehicle. Pierce, a wrecker driver, drove up and had words with Howard about Howard taking money away from him. When his persistent efforts to have Mrs. Mathis retain him and to have Howard move on failed, Pierce drove away angrily; he returned shortly afterwards with Taylor, his supervisor. In the meantime, Mrs. Mathis' son Steve came up, having seen his mother's stalled car. While Howard and Steve were working on the battery, Taylor and Pierce came back on the scene. Taylor walked over to Steve and said, Pierce then told Taylor, "It isn't him, it's the other one," motioning toward Howard. Pierce and Taylor then started shoving Howard.
At this time, a deputy (the defendant Gonzales) drove up. Taylor and Pierce commented, "Well, here's our buddy", and they went over to the deputy's vehicle. Mrs. Mathis also walked over and tried to tell the deputy what had happened, but he was listening to the wrecker drivers (who were telling him that Howard was trying to cause trouble) and would not reply to her. She walked back to her own vehicle. Howard was standing by the side of the Mathis vehicle, while the son Steve was trying to start it. After the wrecker operators Taylor and Pierce talked with deputy Gonzales a little more, they walked back to the Mathis car. They then rammed Howard's head against the car and beat him with their fists and a flashlight and kept beating him for about five minutes, while they pushed him to the ground. Deputy Gonzales sat in his vehicle, watching. After some five minutes, he got out of his sheriff's vehicle and came over and said, "That's enough", and the beating stopped.
At about this time, Reider and White, the two other deputy defendants-appellants drove up, responding to Gonzales' radio call. Mrs. Mathis attempted to explain the incident to them. However, without listening to her, they arrested and handcuffed Howard for being intoxicated. At that time, one of them kicked Howard.
By expressly finding (in response to a special interrogatory) that the arrest was unlawful, the jury obviously accepted the strong evidence that Howard, then a member of Alcoholics Anonymous for six years, was not intoxicated. He did not act, talk, or smell like he had been drinking. Witnesses who had been with him all afternoon testified positively that he had not consumed any alcoholic beverage. No breathylzer test was given him, and his request for one at the site of the accident and when he arrived at the jail was denied.
At the time he was arrested, his face was bruised and bleeding, his teeth were broken, blood was trickling from his mouth, his eyes were swelling, and his clothes were bloodied. Howard's requests at the scene for medical assistance after his arrest were ignored, and he was taken to the jail where, shortly afterwards, his release was secured and he was taken to the emergency room of a nearby hospital.
In response to a special interrogatory, the jury expressly found that "at all material times they (Taylor and Pierce, the wrecker drivers) and the deputies were acting in concert and that the wrecker drivers in this case and the deputies had a customary plan which resulted in Howard's arrest or that the wrecker drivers assisted the deputies in carrying out an unlawful arrest." 1 The three appealing defendant deputies do not complain on appeal of this finding, nor of the form of the district court judgment that cast all five defendants for the total amount of the jury award. 2
In response to other interrogatories, the jury found: that the three deputy defendants performed an unlawful arrest in bad faith (a finding not questioned on this appeal, and indeed substantial evidence supports it); that Gonzales improperly failed to protect Howard from the beating; and that the three deputies subjected Howard to cruel and unusual punishment by denying medical care through deliberate, callous, or conscious indifference to the serious medical needs of Howard.
The three defendants (deputies Gonzales, Reider, and White) who appeal raise six issues. A threshold issue is whether two of these issues have been preserved for appeal, since these particular defendants did not make formal objection at the time. The plaintiff-appellee argues that the absence of objection by the appealing defendants precludes them from raising the issues on appeal, even though in each instance the counsel for a non-appealing defendant (Taylor) adequately raised the issues: (a) by offering the grand jury testimony of Mrs. Mathis to impeach her as to a relatively minor inconsistency between her trial testimony and her grand jury testimony; and (b) by objecting to the plaintiff Howard's hearsay testimony as to what a doctor had told him would be the cost ($1500) of an orthopedic brace and therapy needed as a result of traumatic ankle injuries resulting from the beating.
The threshold issue thus raised is whether under Fed.R.Evid. 103(a) error may be assigned on appeal to the admission or exclusion of evidence, when the appellant himself did not make the requisite objection or offer of proof, but a co-plaintiff or co-defendant aligned with him did so.
Rule 103(a) of the Federal Rules of Evidence provides:
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.
The literal wording of Rule 103(a) does not require that the objection or the offer of proof be made by the party seeking to raise the point on appeal. Unless the identity of the objector somehow affects the admissibility of the evidence, no reason appears why a party should be required to join in the objection or offer of another litigant aligned with him, in order to be able to raise the issue on appeal. 21 Wright & Graham, Federal Practice and Procedure § 5035, n. 26 (West Supp.1981). Accordingly, when one party has made an objection or offer of proof, it should be presumed, unless the contrary appears, that co-parties aligned with him have joined in the objection or offer. Without citation of Rule 103, this and other federal courts have reached the same conclusion. See United States v. Brown, 562 F.2d 1144, 1147 n. 1 (9th Cir. 1977); United States v. Love, 472 F.2d 490, 496 (5th Cir. 1973); United States v. Bagby, 451 F.2d 920, 927 (9th Cir. 1971); United States v. Lefkowitz, 284 F.2d 310, 313 n. 1 (2d Cir. 1960). 3
Thus when one co-party objects and thereby brings the matter to the attention of the court, further objections by other co-parties are unnecessary.
Accordingly, the two errors assigned by the defendants-appellants are adequately preserved for review through the offer and objection of the non-appealing defendant, which made known to the rejecting trial court the specific ground upon which ruling was sought. Since the two errors so assigned are the most arguable in the appeal, we will discuss them now.
Pretermitting whether these particular defendants-appellants had by...
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