McEwen v. City of Norman, Okl.

• Decision Date: 01 March 1991
• Docket Number: No. 89-6388,89-6388
• Citation: 926 F.2d 1539
• Parties: 32 Fed. R. Evid. Serv. 560 Kenneth Franklin McEWEN, as Representative of the Estate of Lawrence Robert McEwen, Deceased, Plaintiff-Appellant, v. The CITY OF NORMAN, OKLAHOMA, and Jim Parks, Individually and in his Official Capacity as a Police Officer of the City of Norman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1539

926 F.2d 1539

32 Fed. R. Evid. Serv. 560

Kenneth Franklin McEWEN, as Representative of the Estate of Lawrence Robert McEwen, Deceased, Plaintiff-Appellant, v. The CITY OF NORMAN, OKLAHOMA, and Jim Parks, Individually and in his Official Capacity as a Police Officer of the City of Norman, Defendants-Appellees.

No. 89-6388.

United States Court of Appeals Tenth Circuit.

March 1, 1991.

Mark Hammons of Hammons, Taylor & Moore, Oklahoma City, Okl., for plaintiff-appellant.

Chris J. Collins (Burton J. Johnson with him on the brief), of Looney, Nichols, Johnson & Hayes, Oklahoma City, Okl., and Robert E. Manchester (Haven Tobias with him on the brief), of Manchester, Hiltgen & Healy, Oklahoma City, Okl., for defendants-appellees.

Before HOLLOWAY, Chief Judge, BARRETT and TACHA, Circuit Judges.

BARRETT, Senior Circuit Judge.

Plaintiff below, Kenneth Franklin McEwen, as representative of the Estate of Lawrence Robert McEwen, deceased, appeals from the district court's judgment on jury verdict in this civil rights damage action in favor of defendants, the City of Norman, Oklahoma, and Jim Parks, individually and in his capacity as a police officer of the City of Norman.

Plaintiff's claim was based on alleged Fourth and Fourteenth Amendment violations. Plaintiff alleged that: defendant Officer Parks employed the deliberate use of a deadly force in the apprehension of a misdemeanant; defendant City of Norman failed to supervise and discipline Officer Parks; and the City concealed and ratified Officer Parks' actions. The plaintiff's complaint was anchored to 42 U.S.C. Sec. 1983 and sought substantial damage awards, including damages under a pendent state claim. (R., Vol. I, Tab 1).

At the conclusion of the evidence, and upon motions for directed verdicts, the court denied defendant Parks' motion on both the issue of his liability involving the collision of his police patrol vehicle with Lawrence McEwen's motorcycle and his alleged use of excessive force in arresting McEwen following the collision. The trial court did grant the City of Norman's motion for directed verdict on the alleged use of excessive force charge, but denied its motion relative to the "roadblock" and "ramming" issue involved in the collision.

Facts

At about 1:58 a.m. on August 28, 1986, Officer Mike Freeman who was employed by the City of Norman, Oklahoma, observed a motorcycle driven by decedent Lawrence Robert McEwen with his brother, Kenneth McEwen, II, riding as a passenger speeding northbound on Porter Avenue in Norman, Oklahoma. Freeman attempted to intercept and stop the motorcycle by turning on his patrol vehicle's red light. Instead of stopping, the motorcycle picked up speed. As Officer Freeman continued his pursuit of the motorcycle, he radioed the police dispatcher and informed his supervisor of the ongoing pursuit.

The motorcycle proceeded northbound on Porter Avenue before turning onto Crystal Bend Street. Eventually the motorcycle headed westbound on Dale Street at a high rate of speed with Officer Freeman still in pursuit. Defendant Officer Parks of the Oklahoma City Police force, then in his patrol vehicle, had heard the radio dispatch concerning the motorcycle pursuit. He contacted the police dispatcher and notified him that he would proceed to assist Officer Freeman. Parks proceeded southbound on Stubbeman and turned eastbound on Dale in the hope that his presence would encourage the operator of the motorcycle to stop. Such was not to be. The motorcycle drove past Officer Parks' vehicle in an attempt to turn northbound on Stubbeman. Lawrence McEwen lost control of the motorcycle and Kenneth McEwen, II, was ejected in the process. At the same time, Officer Parks had backed his vehicle onto Stubbeman so that his vehicle was positioned northbound. Plaintiff contends that Officer Parks positioned his patrol vehicle so as to blockade the street, thus using deadly force in the apprehension of Lawrence McEwen. Defendants specifically deny that Officer Parks intended to create a roadblock, but, and rather, that he had moved his vehicle only with intent to pursue the motorcycle. In any event, Lawrence McEwen righted the motorcycle and drove it southbound on Stubbeman toward Officer Parks' patrol vehicle, where it collided on the driver's side in the area of the front tire.

As a result of the impact Lawrence McEwen was thrown from the motorcycle. He was thereafter arrested by Officer Parks. Plaintiff contends that, as the injured McEwen lay on the ground, Officer Parks pushed him down by placing a foot on his back, flipped McEwen back and forth from his stomach to his side or chest, and threatened to put him "out of his misery" with a drawn gun even though Lawrence McEwen offered no resistance. Defendants counter that, as Officer Parks approached Lawrence McEwen lying face down in a ditch, McEwen got up on his hands and knees and Officer Parks directed McEwen to "freeze" because he wanted McEwen's hands out in front of him; Officer Parks had not drawn his gun; Officer Parks proceeded to handcuff Lawrence McEwen and raise him to his feet as McEwen was resisting him; when McEwen remarked that he was "hurting inside, real bad," Officer Parks asked Officer Freeman to call for an ambulance which arrived within a few minutes; and Officer Parks did not flip McEwen's body back and forth. Lawrence McEwen later died at the hospital.

Following a nine-day trial, the jury returned a verdict finding that (a) plaintiff had failed to prove the essential elements of his 42 U.S.C. Sec. 1983 civil rights claim of unreasonable seizure with a police vehicle against defendant Officer Jim Parks, and (b) plaintiff failed to prove the essential elements of his 42 U.S.C. Sec. 1983 civil rights claim against the defendant City of Norman based on the unreasonable seizure with a police vehicle. Judgment was entered thereon.

Plaintiff filed a "Motion for Relief from Judgment" based solely on alleged "surprise and misconduct" because witnesses Officer Post, Donald Boyd and defendant Parks offered materially different testimony at trial than that given by deposition and no supplementation had been filed notifying plaintiff that they had changed their positions. (R., Vol. I., Tab 169). The trial court treated the aforesaid motion as a Rule 60(b)(3), Fed.R.Civ.P. motion and denied it by a detailed Order. Id. at Tab 180.

Appellate Contentions--Discussion

On appeal, plaintiff contends that: (1) the expert testimony of Samuel Chapman was inadmissible and highly prejudicial, (2) the court permitted improper impeachment of witness Jamie Hall, (3) the admission of Lawrence McEwen's blood alcohol content was improper, (4) the trial court improperly and prejudicially allowed counsel for both defendants to examine witnesses and argue to the jury, (5) the court's jury instructions were erroneous and prejudicial, (6) the trial court improperly allowed dramatizations of defendants' evidence, and (7) the accumulations of errors requires reversal.

I.

Plaintiff contends that the expert testimony of Professor Samuel G. Chapman on questions of law and credibility was inadmissible and highly prejudicial.

Samuel Chapman, a professor of political science and the director of the Law Enforcement Administration degree program at the University of Oklahoma, was called by the defendants to give expert testimony relative to "[c]ompliance or noncompliance with police policy and police procedure" applicable in this case. (R., Vol. X, pp. 1505-10). Chapman had obtained a Masters Degree in criminology and had taught at the University of Oklahoma for twenty-two years. In his opening testimony, Chapman related that he had studied photographs, read depositions, visited the scene, interviewed some persons and had been present throughout the entire trial in preparation for his opinion testimony in four areas: (1) the propriety of the police pursuit of the motorcycle, (2) the review procedures of the Chief and the Board, (3) the roadblocks, and (4) the method of arrest and the handling of the incident after the accident. Id. at 1511.

Plaintiff had deposed Chapman and had filed a Motion in Limine with supporting brief seeking to exclude his testimony. Neither the motion (Docket Sheet No. 75) nor the brief (Docket Sheet No. 76) has been certified by plaintiff-appellant as part of the record on appeal. The trial court reserved ruling and, during trial, read the deposition of Chapman. (R., Vol. VIII, pp. 1311-12). Later, the court ruled, out of the presence of the jury, that Chapman would be permitted to testify. (R., Vol. IX, pp. 1453-54). The court further stated that, as a matter of courtesy, the plaintiff was to have any other opportunity he wished to make a record on that ruling. Id.

Chapman was then qualified as an expert witness, without objection. Indeed, counsel for plaintiff objected only once and only in part to Chapman's testimony. In that objection, counsel asserted that testimony regarding the propriety of the police pursuit was irrelevant because plaintiff had not challenged this and did not seek damages based thereon. (R., Vol. X, p. 1512). The objection was overruled and the court observed that plaintiff had presented some "[v]ery pointed testimony that went to the pursuit." Id.

At the conclusion of Chapman's testimony the trial court instructed the jury that, while other experts had testified on velocities and measurements and rendered opinions thereon, Chapman had testified "[t]o things other than scientific facts and opinions based on them." Id. at 1536. Pointedly, the court noted that Chapman had been permitted "[t]o include, without objection, some matters of a character that are within your common knowledge because they were entwined and involved with the basis for his expert opinion on matters which may not be among your common knowledge." Id. at 1537 (emphasis supplied). The court concluded its instruction as follows:

And the reason I'm emphasizing this...