Tyler v. White
| Decision Date | 19 February 1987 |
| Docket Number | No. 85-2512,85-2512 |
| Citation | 811 F.2d 1204 |
| Parties | 22 Fed. R. Evid. Serv. 826 Curtis TYLER, et al., Appellants, v. Carl WHITE, et al., Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Paul N. Venker, St. Louis, Mo., for appellants.
Kelly Mescher, Asst. Atty. Gen., Jefferson City, Mo., for appellees.
Before McMILLIAN and ARNOLD, Circuit Judges, and ARNOLD, * District Judge.
This civil rights action, brought under 42 U.S.C. Secs. 1981 and 1983, arises out of a disturbance that occurred in 1983 at the Missouri Training Center for Men (MTCM) near Moberly, Missouri. Plaintiffs, inmates at MTCM, claim that during this disturbance defendants, employees of MTCM, injured them physically in contravention of rights secured to them by the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States. After a four-day jury trial, a verdict for defendants was returned on all counts. Plaintiffs appeal, alleging that the Magistrate who tried the case 1 erred in a number of ways during the trial. We take up each of plaintiffs' points in turn.
Plaintiffs assert that it was error to admit a photograph of a guard who was attacked and fatally stabbed during the disturbance. They characterize the photograph as a "graphic and gruesome depiction" and claim that its prejudicial effect clearly outweighed any probative value that it may have had. See Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322 (8th Cir.1985).
We disagree. The photograph possessed high probative value since a central factual issue in the case was the amount of force necessary to quell the disturbance. The photograph shows what the officers called to restore order saw when they entered the area of the disturbance and is therefore relevant on the issue of their perception of the seriousness of the situation. That being so, we entertain no serious doubt that the Magistrate acted within his discretion in admitting the picture. See Pritchard v. Downie, 326 F.2d 323 (8th Cir.1964); Frank's Plastering Co. v. Koenig, 341 F.2d 257 (8th Cir.1965). Indeed, the Magistrate acted most judiciously in selecting from among the three photographs offered the one which most objectively, and in the least inflammatory fashion, captured for the jury, in a way that testimony probably could not match, factual circumstances important to its decision.
Plaintiffs also claim that the Magistrate erred in refusing to allow them to cross-examine a defendant on his alleged transfer to another facility for carrying brass knuckles after the incident that gave rise to this complaint. Plaintiffs cite no cases in support of their position. Indeed, they do not even indicate on what theory they believe that this evidence is admissible. The Magistrate ruled that it was not relevant and, even if it were, that its probative value was outweighed by the prejudicial effect that it would generate. We agree and note, moreover, that evidence of a defendant's character, subject to exceptions not relevant here, "is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion...." Fed.R.Evid. 404(a). 2 This seems to have been exactly plaintiffs' theory for the admissibility of this evidence, for in their brief they urge that "carrying brass knuckles is certainly equivalent to carrying a blackjack," and conclude that "most people would be very suspicious of the 'peaceful nature' of someone carrying a blackjack."
If the admission of this evidence were sought to prove motive, opportunity, intent, or any of the other issues of fact enumerated in Fed.R.Evid. 404(b), we believe that its probative value is extremely limited, especially since it occurred after the incident giving rise to this lawsuit; and we therefore can hardly say that the Magistrate wrongly concluded that its probative value was exceeded by its prejudicial effect.
Plaintiffs further complain that the Magistrate erred in refusing to grant a mistrial when counsel for one of the defendants asked a plaintiff about his refusal to take a psychological stress examination, commonly referred to as a lie detector test. We find no merit in this assignment of error. The Magistrate sustained the objection to the question and instructed the jury to disregard it and the answer to it. Under the circumstances, we cannot say that resort to the extraordinary remedy of a mistrial was required in this instance. The Magistrate's refusal to grant a mistrial was not "inconsistent with substantial justice." See Sanitary Milk Producers v. Bergjans Farm Dairy, Inc., 368 F.2d 679 (8th Cir.1966).
The final point that plaintiffs raise has to do with a statement made by defense counsel in closing argument. In plaintiffs' own closing argument, their counsel called attention to the fact that certain of the defendants had failed to testify; and they invited the jury to infer from that fact that their testimony would have been damaging to the defense. Such arguments about missing witnesses are commonly made and we have frequently countenanced them. See, e.g., Johnson v. Richardson, 701 F.2d 753 (8th Cir.1983); see also 2 J. Wigmore, Evidence 192 (J. Chadbourn ed. 1979). Over plaintiffs' objection, defendants' counsel in his summation remarked that the defendants who did not testify were equally available to the plaintiffs, and invited the jury to draw the inference that, since plaintiffs did not call them, their testimony would have been damaging to the plaintiffs. This was in accordance with the Magistrate's ruling that it was "fair argument to argue that all parties are equally available to everyone else as witnesses."
We begin our consideration of this point with the observation that its determination depends on federal common law and that we have no decided case directly on point in this circuit. It is true that in Iowa Cent. Ry. Co. v. Hampton Electric L. & P. Co., 204 F. 961 (8th Cir.1913), we held that no inference is allowable to either party where the witness is equally available to both parties. This rule is criticized by Professor Wigmore, who argues persuasively that "the more logical view is that the failure to produce is open to an inference against both parties, the particular strength of the inference against...
To continue reading
Request your trial
-
Dansbury v. State Of Md..
...but that he is of equal avail to both parties in the sense that he is not presumptively interested in the outcome.” Tyler v. White, 811 F.2d 1204, 1207 (8th Cir.1987). This is a difficult showing to make. See Hayes v. State, 57 Md.App. 489, 499, 470 A.2d 1301, 1306 (1984) (noting the “strin......
-
Bereano v. State Ethics
...but that he is of equal avail to both parties in the sense that he is not presumptively interested in the outcome." Tyler v. White, 811 F.2d 1204, 1207 (8th Cir.1987). This is a difficult showing to make. See Hayes v. State, 57 Md.App. 489, 499, 470 A.2d 1301, 1306 (1984) (noting the "strin......
-
Baker v. John Morrell & Co., C01-4003-MWB.
...affect a substantial right of the objecting party, and the burden of showing prejudice rests on that party.") (citing Tyler v. White, 811 F.2d 1204, 1207 (8th Cir.1987)). 5. Admission of Dr. Jennings's As its fourth ground for a new trial, John Morrell contends that the court erred in admit......
-
Welsh v. U.S.
...to one party would reasonably be expected to make his testimony naturally more favorable to that party. See Tyler v. White, 811 F.2d 1204, 1206-07 (8th Cir.1987) (federal law); Hill v. Boles, 583 S.W.2d 141, 145-46 (Mo.1979) (medical malpractice case); see generally Stier, Revisiting the Mi......