Smith v. Conley
| Decision Date | 11 September 1978 |
| Docket Number | No. 77-1875,77-1875 |
| Citation | 584 F.2d 844 |
| Parties | 3 Fed. R. Evid. Serv. 168 Albert SMITH and Edwena Wynema Smith, Plaintiffs, Appellants, v. Robert CONLEY, Defendant, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Susan M. Hammer, Clayton, Mo., argued, Charles P. Todt, Clayton, Mo., on brief, for plaintiffs, appellants.
John Gianoulakis of Kohn, Shands, Elbert, Gianoulakis & Giljum, St. Louis, Mo., argued, Mark J. Bremer and Cynthia C. Bottini, St. Louis, Mo., on brief, for defendant, appellee.
Before VAN OOSTERHOUT, Senior Circuit Judge, LAY, Circuit Judge, and MacLAUGHLIN, District Judge. *
Plaintiffs appeal from judgment for defendant entered on a jury verdict in the United States District Court for the Eastern District of Missouri. The jury found no deprivation of constitutional rights in the death of plaintiffs' son which resulted from the discharge of defendant's gun. We affirm.
This suit under 42 U.S.C. § 1983 arises out of events which occurred in University City, Missouri, on November 23, 1974. That day, defendant Robert Conley reported for work in his capacity as a patrolman for the University City Police Department. Patrolling alone in a squad car, he received a call at approximately 1 p. m. to investigate a minor traffic accident.
The jury had to resolve the parties' differing versions of the events that transpired at the scene of the accident. Defendant testified that in an attempt to gather information for an accident report he approached the automobile Albert Smith was driving. The automobile had not been directly involved in the accident, but a participant had told defendant that its movement had caused the collision. Defendant asked to see Albert Smith's driver's license. Albert Smith responded with profanity and attempted to leave the car. Defendant stopped him, fearing that a fight between the occupants of another automobile involved in the accident and Albert Smith was likely. Eventually, Albert Smith gave defendant his driver's license and succeeded in getting out of the automobile. He then grabbed the officer and began striking him. At about the same time, Albert's brother Darrell, who was a passenger in the vehicle, emerged, circled the back of the vehicle, and jumped on defendant's back. During the ongoing struggle, Darrell Smith tried to remove defendant's gun from its holster. The officer removed the gun himself and, while bent over from the weight of Darrell Smith on his back, attempted to strike Albert's knees with the handle of the gun. Failing in the attempt, defendant brought the gun in close to his body. The gun discharged while in defendant's hand and the bullet struck Albert Smith in the stomach, causing his death. A hole made by a bullet traveling outward was discovered in defendant's jacket. Defendant testified he did not intend to shoot anyone, but attempted only to secure his weapon in a safe position in the circumstances and it accidentally discharged. Four witnesses corroborated to various degrees defendant's testimony.
Plaintiffs, who are the parents of the decedent, maintained that defendant initially reached into the automobile and assaulted Albert Smith to provoke the incident. Albert then forced his way out of the vehicle and exchanged blows with defendant. Darrell Smith testified that he emerged only to break up the fight, that he never jumped on the officer's back, and never tried to remove his gun. Another witness, a friend of the decedent, testified that without warning defendant drew his revolver, disentangled himself from the struggle, aimed, and deliberately shot Albert Smith in the stomach.
The primary issue raised on appeal concerns the exclusion of certain expert testimony during plaintiffs' rebuttal. 1 After calling three other rebuttal witnesses, plaintiffs called R. A. Steindler, a firearms expert. Steindler would have testified that defendant's gun would not fire unless the trigger was pulled, and that if the gun had discharged while defendant gripped its barrel, he would have felt a definite sting and experienced powder burns on his hands. The district court excluded the testimony on two grounds: first, because it was not proper rebuttal evidence, and, second, because plaintiffs had failed to disclose Steindler as a witness in violation of the court's pretrial order and Fed.R.Civ.P. 26. Since we hold that the testimony was excludible as improper rebuttal evidence, we do not reach the question of the consequence of plaintiffs' failure to disclose the identity of Steindler or the substance of his testimony.
Rule 611(a) of the Federal Rules of Evidence provides a district court discretion in managing the conduct of a trial:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
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