Shows v. M/V Red Eagle, 82-3135
| Decision Date | 10 January 1983 |
| Docket Number | No. 82-3135,82-3135 |
| Citation | 695 F.2d 114 |
| Parties | 12 Fed. R. Evid. Serv. 149 Grady E. SHOWS, Plaintiff-Appellant, v. The M/V RED EAGLE, Platform Coating Services, Inc., Lawrence-Allison & Associates Corporation and Chevron USA, Inc., Defendants-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Tooley & Waldmann, John F. Tooley, Jr., Lester J. Waldmann, Gretna, La., for plaintiff-appellant.
Christovich & Kearney, Lawrence J. Ernst, New Orleans, La., for Platform and Fidelity & Cas.
Camp, Carmouche, Palmer, Barsh & Hunter, Robert I. Siegel, New Orleans, La., for Lawrence Allison & Associates and Chevron USA.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.
This is an appeal from a defendants' verdict in a Jones Act suit. 1 The sole issue presented is the admission into evidence of the plaintiff's conviction for armed robbery some ten years previous. Finding that the conviction carried little probative value but great prejudice, we reverse and remand for a new trial.
Grady Shows brought this suit against his employer, Platform Coating Services, Inc., as owner of a crew boat, The M/V Red Eagle, Lawrence-Allison & Associates Corporation, who controlled his work, and Chevron USA, Inc., the owner of the offshore fixed-rig platform. The facts giving rise to the claimed injury are simple. Shows claims that defendants were guilty of negligence in connection with his swinging on a "Tarzan" rope from the platform to the ship. He claimed that the transfer should not have been undertaken, given that the sea was rough and that the craft was both improperly maintained and controlled at the time. He testified that as he swung to the deck of the ship, it rose with the surge of the sea, resulting in the injury.
The three day jury trial opened in a routine fashion with the direct examination of Shows. His counsel took him through his background and the accident aboard the Red Eagle. After explaining that he had worked on the Red Eagle that season, he was asked the following questions and gave the following answers:
Q. You ever work for Platform Coating Services?
A. Yes, sir.
Q. And when did you do that?
A. 1979, year 1979.
Q. Did you work for them anytime before that?
A. Yes, sir.
Q. When was that?
A. I believe it was in 1972.
Q. And what sort of work were you doing for them?
A. Sandblasting, painting.
Q. How long had you been involved in the spray painting or sandblasting business?
A. Approximately ten years.
Q. Beginning about when?
A. 1964.
He also explained that he had a tenth grade education and had worked as a pipe fitter. Shows was cross-examined by Lawrence J. Ernst, counsel for Platform Coating Services, Inc. His cross-examination began with the following questions:
BY MR. ERNST:
Q. Mr. Shows, I am somewhat confused, sir. You said that you did other jobs, sandblasting jobs before this, sir?
A. Yes, sir.
Q. Mr. Shows, in 1979 you went to work for Coating--for Platform Coating, is that right?
A. Yes, sir.
Q. And you got out of prison in November of 1978, didn't you?
An extended bench conference followed. During the colloquy at side bar, there was confusion over the theory justifying an answer to the suggestion that Shows had gotten out of prison in November 1978. The trial judge understandably was annoyed with defense counsel for having suggested in the presence of the jury the imprisonment of the plaintiff. The court then excused the jury and a further conference "off the record" occurred. When trial resumed, Ernst continued with his interrogation and immediately returned to the conviction. The questions and answers follow:
Q. Mr. Shows, you have testified that you worked for this company back in 1972, is that right?
A. Yes, sir, I testified to that but it wasn't in 1972. I don't remember when it was.
Q. Well, that was what your testimony was, is that right?
A. Yes, sir.
Q. And in 1972 you were in prison, weren't you?
A. Yes, sir.
Q. And you were in prison in 1972 for armed robbery?
A. Yes, sir.
Q. And you were convicted in 1971, weren't you?
A. I believe so.
Q. And you say you served two years in the state penitentiary for that 15--you got 15 years, didn't you?
A. Yes, sir.
Q. And thereafter you spent another five years or until 1978, in fact, November of 1978 in a correctional institution, is that right?
A. No, sir.
Q. Well, why is that not right?
A. I was on parole.
Q. Well, you were on a work release program during some of that time, is that it?
A. Yes, sir.
Q. You were still in jail but you were permitted to go out of jail to do some work?
A. No, sir.
Q. Well, would you explain.
A. I was living with my brother.
Q. On a work release program?
A. Yes, sir.
Q. All right. Now, you got out of that correctional institution under the work release program on a parole in 1978, is that right?
Q. In 1978, in November of 1978 you were paroled, is that right?
A. I got off of parole in 1978.
Q. Yes, sir. Now, when was it that you said that you came to work for Platform Coating, sir?
A. I believe it was in April, 1979.
Q. April of 1979. And you worked with the company from April of 1979 until November of 1979, is that right?
A. I believe so, yes.
Defendants urge to this court that any error in receipt of this evidence was not preserved because Shows' counsel failed to move for mistrial or to renew his objections when trial resumed. We reject this argument. Shows' counsel promptly attempted to cut off the line of interrogation with objections. We do not know what transpired in the off-the-record conference. The record leaves little doubt but that during the conference the trial court decided to admit the evidence of Shows' conviction in the presence of the jury. No one suggests and it would make no sense for him to do so, that Shows' counsel thereafter acquiesced in this line of inquiry. Having made known his objections to the court out of the presence of the jury, he was not required to exacerbate the prejudice by being forced to renew the objection in the presence of the jury. But we need not rest here where the record of Shows' preservation of error is concededly equivocal. Defendants' present claim that error was not preserved faces, in addition to its inherent implausibility, additional contrary record evidence. In Shows' motion for new trial, he recited his objection to the proffered evidence. The response by defendants made no suggestion to the trial court that plaintiff had failed to inform the trial judge of his objection. Nor did the trial court do so, denying the motion for new trial by minute order and without explanation. While the margin is thin, the sum of the record facts leads us to conclude that the trial court ruling was preserved for appellate review.
Before this court, defendants abandoned their argument that the testimony regarding Shows' imprisonment was admissible under Rule 609, Fed.R.Evid. Instead, they shifted ground, urging that the testimony was admissible under Rule 801(d)(1)(A) controlling the admission of prior inconsistent statements offered to impeach testimony given by a witness at trial. Neither theory, however, justifies the admission of this testimony.
Defendants urge that the line of inquiry was admissible under 801(d)(1)(A) to demonstrate two inconsistencies with Shows' direct testimony. First, they argue that Shows suggested in his direct testimony that he had worked as a sandblaster for the ten years immediately preceding the injury. Shows did not so testify. The questions asked of him were:
Q. How long have you been involved in the spray painting or sandblasting business?
A. Approximately ten years.
Q. Beginning about when?
A. 1964.
That is, his testimony was that for ten years of the past seventeen, he had worked as a sandblaster. Second, defendants urge that Shows' statement that he had worked for Platform Coating Services in 1972 could be impeached by interrogation eliciting that he was in prison that year. Shows' actual testimony was that "I believe it was in 1972." The opening shot on the cross-examination of Shows, however, was in no way calculated to elicit testimony testing Shows' belief that he was employed in 1972 by Platform:
Q. Mr. Shows, in 1979 you went to work for Coating--for Platform Coating, is that right?
A. Yes, sir.
Q. And you got out of prison in November of 1978, didn't you?
That is, the jury effectively was told of Shows' criminal difficulty with no justification whatsoever. It was only after the luncheon recess that counsel attempted to "impeach" the testimony regarding the 1972 employment by Platform. On being confronted with the earlier statement, Shows stated that Despite this retreat from his earlier equivocal statement regarding employment some ten years prior to the injury, counsel then proceeded, as earlier set out, not only to develop that he was in prison in 1972, but to inquire into the nature of the offense, the length of time served, and even the conditions of parole.
Even assuming that Shows' trial testimony generated an inconsistency with prior out-of-court statements, a balancing of prejudice and probative value is still required. Rule 403,...
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