Miller v. Poretsky, 77-1115

Citation193 U.S. App. D.C. 395,595 F.2d 780
Decision Date28 December 1978
Docket NumberNo. 77-1115,77-1115
Parties, 3 Fed. R. Evid. Serv. 1227 Green MILLER, Jr., Appellant, v. Lester PORETSKY et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Daniel B. Silver, Washington, D. C., with whom Thomas C. Hill, Washington, D. C., was on brief, for appellant.

Charles R. Donnenfeld, Washington, D. C., with whom Paul A. Kaplan, Washington, D. C., was on brief, for appellees.

Before ROBINSON, MacKINNON and ROBB, Circuit Judges.

Opinion for the court filed by MacKINNON, Circuit Judge.

Concurring opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

MacKINNON, Circuit Judge:

This case presents an appeal from a jury verdict finding that appellant had not been the victim of racial discrimination during the course of his tenancy, and subsequent eviction, from the luxury Crestwood Apartments located in Washington, D. C. Appellant, Green Miller, filed suit seeking compensatory, punitive and injunctive relief under the (1) Thirteenth Amendment, (2) section one of the Civil Rights Act of 1866, now codified as 42 U.S.C. § 1982 (1970), (3) section 16 of the Civil Rights Act of 1870, now codified as 42 U.S.C. § 1981 (1970), and (4) the Fair Housing Act of 1968, 42 U.S.C. § 3601 Et seq. (1970). At trial, the appellant introduced evidence of a number of incidents allegedly indicative of racial discrimination, and the appellee landlord countered this evidence most of which involved various altercations with Crestwood personnel and fellow tenants with testimony explaining these incidents as caused more by Miller's own obstreperous behavior than by any racial bias on the part of the appellees.

In this appeal, we are not concerned with the details of the factual issues which the jury at trial clearly determined were more accurately portrayed by the landlord than by appellant. We are confronted solely with three grounds on which appellant claims the verdict below should be overturned and a new trial ordered: (1) an allegedly erroneous evidentiary ruling, (2) a denial of collateral estoppel, and (3) a refusal of a requested instruction. We find that the lower court did commit error in its evidentiary ruling, but that such error was harmless, and that its denial of collateral estoppel and its refusal of appellant's proposed instruction were not erroneous. Accordingly, we affirm the judgment below in all respects.

I THE EVIDENTIARY RULING

At the trial, appellant wished to introduce evidence of alleged incidents of discrimination involving other Crestwood tenants similar to those which he himself claimed to have suffered. The District Court refused to admit this evidence (only one incident was actually proffered, that of a one Horan, although appellant alludes to the existence of several others). The trial court did not specify its reasons for exclusion of Horan's testimony, but appellees argue here that the court's ruling was adequately supported by Federal Rule of Evidence 403:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Appellees insist that evidence of incidents of discrimination concerning parties other than Mr. Miller were properly excluded by the trial court in the exercise of its discretion, because not only would demonstrating that actual discrimination had taken place in such incidents have required extensive investigation of collateral issues, but also because evidence of such incidents although probative of the motive of the landlord in dealings with the appellant 1 would have been excessively prejudicial to the appellee. 2

It is unquestionably the case, in this circuit and elsewhere, that the trial judge's weighing of evidence against the criteria of Rule 403 is a matter within his discretion and will only be overturned on appeal for abuse, E. g., United States v. Wright, 160 U.S.App.D.C. 57, 62, 489 F.2d 1181, 1186 (1973); Kilarjian v. Horvath, 379 F.2d 547, 548 (2d Cir. 1967); Hardy v. United States, 118 U.S.App.D.C. 253, 254, 335 F.2d 288, 289 (1964). We are naturally reluctant to disturb a trial judge's ruling on an evidentiary matter such as this, and we recognize that problems of prejudice and time-consuming examination of collateral issues are present, nevertheless we conclude for several reasons that it was error to exclude this testimony.

First, the court did admit testimony of black witnesses for the appellees asserting that they had Not suffered racial discrimination at Crestwood. Such testimony was the counterpart of that which the appellant wished to introduce through Horan, and elementary fairness would require that if the appellee could bring in such evidence, the appellant should have been allowed to do so also. The trial court in making its ruling on this matter alluded to the fact that appellees had only put on witnesses serving to rebut Mr. Miller's own statement in open court, 3 but this rationale proves little. Clearly the testimony of third persons would be more persuasive in the jury's eyes than that of the appellant himself, and he should have been entitled if he were able to rebut the landlord's defense of a non-discrimination motive by the same apparently disinterested evidence that appellees were allowed to use to rebut appellant's claim of racial animus.

It is hard to see how appellant's evidence of possible discrimination against Horan and possibly others would tend to embroil the court in investigation of collateral issues any more than would appellees' evidence of non-discrimination. It is likely, however, that the former would involve a substantially higher risk of prejudice. This danger, however, seems outweighed by the fact that at the pretrial conference, the district judge gave appellant good reason to believe that he would be entitled to admit testimony concerning alleged acts of discrimination against others. At this conference, the following exchange took place concerning the status of such evidence:

MR. DONNENFELD. Your Honor, I would suggest that, if I know the evidence here, if they call another tenant not affiliated with Mr. Miller who says that they also had some problem; they were once chewed out by the landlord, and they view that as a racial matter, I can't see how that is in any way probative of the landlord's actions toward Mr. Miller vis-a-vis Mr. Miller.

MR. HEARITY. It is certainly relative as to motive, Your Honor.

MR. DONNENFELD. What does what the defendants did to tenant "X" have to do with their motives vis-a-vis Mr. Miller?

MR. GARLAND. If the landlord did to tenant "X" a certain act because of his race and his race is, in fact, the same race as Mr. Miller's then you can also say that his motive for acting toward Mr. Miller was due to Mr. Miller's race.

MR. DONNENFELD. What about the 200 tenants who are black and did not have the same experience?

MR. GARLAND. No. 1, there were not 200 other blacks who were tenants. At this time we are talking about 19 other tenants who are black. They can testify to the fact that they were not discriminated against because of their race.

MR. HEARITY. This, we believe, apart from any pattern and practice theory, is relevant evidence to make the fact that Mr. Miller was discriminated against on the basis of his race more likely to be true.

We think it is relevant. The witnesses will be short.

THE COURT. All right.

I will let you, over the objection of Mr. Donnenfeld, so the record is clear, present evidence with respect to pattern and practice, but that has to be limited, in fairness to the defendants, certainly to no more than the Crestwood Apartments. Do you not agree?

MR. HEARITY. Yes, Your Honor.

MR. DONNENFELD. Your Honor, may we ask that it be limited to the types of alleged discriminatory acts that were visited on Mr. Miller?

THE COURT. I think that is a fair caveat, and I don't think the plaintiffs will object to that, either.

MR. HEARITY. We will not, Your Honor, depending on the definition of "discriminatory acts visited upon Mr. Miller." If you are talking about unfounded complaints of this, that or the other thing

THE COURT. I think we can settle that, as my law clerk just mentioned, when the problem comes up at trial.

J.A. 45-46.

It appears from this transcript that the district judge had agreed, or at least misspoke in such a way as to lead appellant justifiably to believe that he had agreed, to admit into evidence instances of other tenants' experience of the "types of alleged discriminatory acts that were visited on Mr. Miller." The excluded testimony involved a claim that the landlord had refused to rent to a black (Horan), one of the grievances appellant himself had asserted against appellees. 4 Thus, it appears that appellant had legitimate grounds to expect that such testimony would be allowed. A judge is not absolutely bound by representations at the pretrial conference, but representations made at that time should only be reneged upon with great reluctance, usually only to prevent manifest injustice, E. g., Manbeck v. Ostrowski, 128 U.S.App.D.C. 1, 384 F.2d 970 (1967), Cert. denied, 390 U.S. 966, 88 S.Ct. 1077, 19 L.Ed.2d 1170 (1968). We find no such justification in this case, and feel that the possible damage the trial court's unexpected exclusion did to appellant's case outweighed any reasonable fear of prejudice to the appellees from introducing such evidence.

In summary, it is clear that the proffered evidence of past acts of racial discrimination was relevant to prove the landlord's motive in his action towards appellant, the risk of time-consuming collateral inquiries was no more present in admitting appellant's evidence of such past incidents than in admitting appellees' similar testimony; and the danger of prejudice to the...

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