Powell v. Levit
| Decision Date | 29 May 1981 |
| Docket Number | No. 78-2694,78-2694 |
| Citation | 640 F.2d 239 |
| Parties | 7 Fed. R. Evid. Serv. 1303 Edward E. POWELL, Plaintiff-Appellant, v. Roger C. LEVIT et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Edward E. Powell, pro per.
Kevin M. O'Donnell, Deputy City Atty., San Francisco, Cal., for defendants-appellees.
Appeal from the United States District Court for the Northern District of California.
Before BROWNING, KENNEDY, and HUG, Circuit Judges.
Edward Powell brought this civil rights suit under 42 U.S.C. § 1983 against several police officers, alleging that the officers arrested him without probable cause and with the use of excessive force. The jury found for the defendants. On appeal Powell challenges the district court's admission of impeachment evidence of Powell's sixteen-year old criminal conviction and his juvenile record. We find that the admission of the evidence was prejudicial error and therefore reverse.
The events of the evening of June 9, 1976 that led to Powell's arrest were the subject of sharp dispute between Powell and the defendants. Special Patrol Guard Cole testified that when he saw Powell park his car in a private parking lot reserved for customers of the adjacent businesses, he walked up to Powell and asked him to move his car. According to Cole, Powell drove out of the lot, circled through a few minutes later, was again warned not to park, and then reentered a third time and parked his car. Cole stated that when he again warned Powell, Powell started using abusive language, at which time Cole summoned a backup guard. The confrontation escalated and police were called in. The officers testified that Powell was drunk, shouting obscenities in front of bystanders, disturbing the peace, and that he resisted arrest.
Powell's case rested largely upon his own testimony. He testified that he drove into the parking lot only once, and when Cole ordered him to move his car, he left the lot and parked on a street nearby. Powell further testified that after he had parked his car and was walking toward a building, Cole and another patrol guard stopped him and ordered him to produce identification, which he refused to do. Powell was subsequently arrested by the summoned police officers, handcuffed, taken to jail, and, according to his testimony, was injured on the wrists by the unnecessary use of force.
In cross-examining Powell, defense counsel asked Powell if he had complained about his wrist injuries at the police station. Powell replied that he had not because the officers were laughing at him and humiliating him. Defense counsel then asked if Powell generally felt that police humiliated him, to which Powell said "no" and added that "I don't hold any remorse or any anger against these gentlemen at all."
Defense counsel then began reading portions of Powell's deposition, in which Powell had answered questions about his previous experience with police.
Question: Okay. Had you ever been injured by police before?
Answer: Sure.
Answer: When I was a kid.
Over the objections of Powell's attorney, defense counsel twice reread the above deposition testimony while continuing his questioning. Defense counsel then asked Powell how he was injured by police as a kid. Powell said that he had been handcuffed and taken out of school. Defense counsel asked: "Why were you taken out of high school in handcuffs?" Powell revealed that he had been involved in a juvenile adjudication. Defense counsel also questioned Powell concerning time spent in jail in 1962 for a burglary conviction.
Fed.R.Evid. 609(d) provides that evidence of prior juvenile adjudications is generally inadmissible to attack the credibility of a witness, except under certain conditions in a criminal case. 1
Congress specifically added the words "in a criminal case" in limiting the circumstances under which a trial court may exercise its discretion in admitting evidence of a prior juvenile adjudication. The trial court has no discretion to admit such evidence in a civil proceeding. See 3 Weinstein's Evidence, P 609(05), at 609-86 (1978). Applying this provision, it was error to allow defense counsel to inquire about Powell's juvenile record.
Subdivision (b) of Rule 609 provides that criminal convictions more than ten years old are not admissible to impeach credibility, unless the "probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect" and the proponent gives "sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence." 2 The defense did not give notice that it intended to admit Powell's sixteen-year old conviction, nor did the district court make a finding...
To continue reading
Request your trial
-
Simpson v. Thomas
...convicted of a felony as an adult was clearly prejudicial to his chances of receiving fair consideration from the jury. Powell v. Levit, 640 F.2d 239, 241 (9th Cir.1981). As in Powell, the result in this case turned almost entirely on the credibility of the witnesses-it came down to whether......
-
State of Arizona Dep't of Law, Civil Rights Div. v. ASARCO, L.L.C.
...792 (1998), abrogated on other grounds, Weisgram v. Marley Co., 528 U.S. 440, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000); Powell v. Levit, 640 F.2d 239, 241 (9th Cir.1981) (holding that the Rule 61 prejudice standard was met where the erroneously admitted evidence of the plaintiff's juvenile an......
-
McCabe v. Arave
...only if the error affected the substantial rights of the parties or is "inconsistent with substantial justice." See Powell v. Levit, 640 F.2d 239, 241 (9th Cir.) (section 1983 action), cert. denied, 454 U.S. 845, 102 S.Ct. 160, 70 L.Ed.2d 131 (1981). A review of the record indicates that th......
-
Moore v. Richmond Police Dep't
...evidence will be reversed only if the error was prejudicial. Simpson v. Thomas, 528 F.3d 685, 689 (9th Cir. 2008); Powell v. Levit, 640 F.2d 239, 241 (9th Cir. 1981). This court will find prejudice when it is persuaded that the admissionaffected the outcome of the trial. United States v. Ed......