Patrick v. City of Detroit
| Decision Date | 28 June 1990 |
| Docket Number | Nos. 89-1019,89-1637,s. 89-1019 |
| Citation | 906 F.2d 1108 |
| Parties | 30 Fed. R. Evid. Serv. 1252 Joseph PATRICK, Plaintiff-Appellee, v. The CITY OF DETROIT; Ronald Gibson; Jeffrey Rees; Kevin Johnson; John Wiktor; Beryl Mandeville; Willie Harris; Keith Wilkerson; Cynthia Cheatom; and Betty Roland, Defendants, and Anselm Foster and Walter Clement, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Maury Klein (argued), Southfield, Mich., for plaintiff-appellee.
Kevin F. Robbins, City of Detroit Law Dept., Detroit, Mich., Kenneth L. Lewis (argued), Detroit, Mich., for defendants-appellants.
Before MARTIN and BOGGS, Circuit Judges, and BROWN, Senior Circuit Judge.
Walter Clement and Anselm Foster, Detroit police officers, appeal a jury verdict in favor of plaintiff-appellee Joseph Patrick in this action brought pursuant to 42 U.S.C. Sec. 1983, 1 in which Patrick alleged that police officers had used excessive force while taking him into custody following a high-speed chase of an automobile in which Patrick was a passenger. 2 The jury found Clement and Foster jointly and severally liable and awarded Patrick $300,000 in compensatory damages. 3 The officers make the following claims of error on appeal: (1) that the district court's erroneous refusal to permit Clement's attorney to cross-examine Patrick concerning the extent of his injuries during Clement's presentation of his proof adversely affected both Clement and Foster; (2) that this refusal also violated Clement's sixth amendment right to confrontation; and (3) that the district court demonstrated bias against Clement to the extent that both defendants were denied a fair trial.
After thoroughly reviewing the record, we cannot agree that the district court's conduct constituted bias that warrants reversal. 4 Moreover, these defendants have presented no authority, and we know of none, for extending a criminal defendant's sixth amendment right to confrontation to a civil litigant. We do hold, however, that the district court erred by refusing to allow Clement's attorney to question Patrick concerning the extent of his injuries during Clement's presentation of his proof. This refusal resulted in the jury's not receiving evidence that might have affected its calculation of the total amount of compensatory damages to be awarded. Accordingly, for the reasons that follow, we affirm the verdict of joint and several liability against Clement and Foster; however, we reverse and remand for a new trial limited solely to determining the amount of compensatory damages for which Clement and Foster are to be held jointly and severally liable.
Patrick was a passenger in a vehicle that Detroit police chased at high speed after its driver ran a red light. Although the parties disagreed at trial over the route that the chase had taken, it is clear that three police cars chased the suspect car several miles and that the car made evasive maneuvers during the chase. Once the suspect car came to a halt, the officers took the driver, a passenger named Darren Mathews, 5 and Patrick into custody. Patrick and Mathews later were released without any charges having been filed against them.
The conduct of the officers in arresting Patrick formed the basis for Patrick's lawsuit. It was undisputed at trial that Patrick did not resist arrest. He alleged that excessive force had been used against him in that after he had been pulled from the auto through an open window and thrown face-down onto the sidewalk, at least one officer stepped on his face and kicked him in the head and the back. He claimed that as a result of this conduct, he received disabling neck and back injuries. However, Patrick was unable to identify specifically which of the officers had injured him because he was face-down on the concrete when the allegedly wrongful conduct occurred.
The lawsuit originally was brought against the City of Detroit and eleven police officers, including Clement and Foster. The city was dismissed as a party prior to trial. At the end of the plaintiffs' proof, the eleven officers moved for a directed verdict, which was granted to all of them except Clement, Foster, and two others. The jury exonerated the two other officers and found the aforementioned liability on the part of Clement and Foster.
It was discovered prior to the beginning of the trial that there was a possible conflict between the defense of Officer Clement and that of the other officers. Therefore, the attorney who originally had represented all of the defendants ceased representing Clement, who was provided separate counsel.
During Patrick's case-in-chief, the district court permitted his attorney to bifurcate Patrick's testimony between the liability and damages issues so that the case could be understood more easily. After Patrick had testified concerning liability, both defense attorneys cross-examined him. After Patrick had been recalled and had testified concerning the issue of damages, however, only the attorney who represented the officers other than Clement cross-examined Patrick with respect to damages. Clement's attorney asked Patrick no questions at this point; however, the attorney stated to the court:
Your Honor, I have no questions at this time, I'd like to reserve the right to call him when and if we have to present a defense.
Joint Appendix 80. The court made no adverse ruling on, or response of any kind, to this request, and Patrick's attorney made no objection to it.
The defendants moved for a directed verdict after the plaintiffs' case-in-chief. With respect to the four officers whose motion the district court denied, the court stated:
[S]ince we know an injury occurred; since we know, taking the testimony in the light most favorable to the Plaintiffs, that excessive and unnecessary force was used; and since we know the universe of the officers that were involved but we don't know which ones specifically; under those circumstances the law imposes the burden on them to point out who was involved and who was not involved; and if they can't carry that burden they are jointly responsible and they can sort out their liability as among themselves.
Joint Appendix 111. At this point in the trial, the district court, in denying the directed verdict for the defendants, thus shifted the burden to the defendants each to prove that he was not a cause of Patrick's injuries. 6
During Clement's presentation of his proof, his attorney called Patrick to the stand. Clement's attorney attempted to question Patrick concerning employment applications that Patrick had completed after the car-chase incident, in which Patrick had stated that he had no back pain or back injuries. This was intended to impeach direct examination testimony by Patrick and others that as a result of the injuries Patrick had received, he had neck and lower back injuries that were disabling to some degree. The court prohibited this line of questioning, calling the testimony "cumulative." After several exchanges between Clement's attorney and the court, the court stated to the attorney:
You may not inquire of this witness with regard to anything that occurred on the damage element of this case. This witness was called. You had ample opportunity to cross-examine him and you have shown no reasons why these questions could not have been asked initially.
Joint Appendix 123.
Clement's attorney attempted to explain that he had called Patrick as an adverse party, a tactic permitted by the Federal Rules of Evidence. He asked that the testimony be permitted at least as proof in mitigation of damages. However, the court ruled that Clement's attorney could not establish any claim of mitigation of damages through Patrick. Rather, he would have to do that by using other witnesses.
On the following trial day, Clement's attorney made an offer of proof concerning the testimony he had attempted to elicit concerning the extent of Patrick's injuries, reminding the court that he had reserved the right to call Patrick to question him about the extent of his injuries if it became necessary for his client to put on a defense. The court stated that the prior reservation was of "no consequence." Quoting Federal Rule of Evidence 611(a), the court ruled that it had the authority to decline this request, because Clement's attorney was given an opportunity to cross-examine Patrick during Patrick's case-in-chief and had not stated the reasons why he wanted to recall Patrick. The court also ruled that Clement's attorney had not suggested when he made his reservation that he had not completed his cross-examination.
After the parties had made arguments to the jury, the court gave the following jury instructions in pertinent part:
In order to prove a Plaintiff's claim, the burden is upon the Plaintiff to establish, by a preponderance of the evidence in the case, the following:
First, a Defendant knowingly beat and bruised him about the head and body, as alleged;
Second, that Defendant then and there acted under color of law;
Third, that Defendant's acts and conduct deprived the Plaintiff of his Federal Constitutional right to be secure from unreasonable seizure;
Fourth, that Defendant's acts and conduct were the proximate cause of injury and consequent damages to a plaintiff;
Fifth, the extent and nature of his injuries and damages.
....
You may decide that the conduct of a Defendant was a proximate cause. If you decide that one or more of the Defendants beat and bruised a Plaintiff and that such conduct was a proximate cause of an injury it is not a defense that the conduct of any other person also may have been a cause of the injury. Each Defendant is entitled to separate consideration as to whether his or her conduct was a proximate cause of injury.
... In a situation where several individuals participate in a wrongful act through commission or omission and it is impossible to tell...
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