U.S. v. Myers

Decision Date25 September 1992
Docket NumberNo. 91-8567,91-8567
Citation972 F.2d 1566
Parties36 Fed. R. Evid. Serv. 1058 UNITED STATES of America, Plaintiff-Appellee, v. Carl Harold MYERS, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

William J. McKenney, McKenney & Froelich, Atlanta, Ga., for defendant-appellant.

Lisa J. Stark, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH, Circuit Judge, JOHNSON, and BOWNES *, Senior Circuit Judges.

BOWNES, Senior Circuit Judge:

Appellant, Carl Harold Myers, former Doraville Police Department Captain, was convicted on two counts of depriving two arrestees, Frederick Cowan and Gabriel Raul Reynaga (also known as Cesar Yanez, which is the name we use), of their civil rights under color of law, in violation of 18 U.S.C. § 242 (1992), 1 by using a stun gun to shock them. Appellant raises numerous contentions on appeal, arguing that the district court committed errors in three areas: 1) the applicable standard of reasonable force; 2) jury instructions; and 3) evidentiary rulings. We find that there are no grounds for reversal.

BACKGROUND

We review the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Perez, 956 F.2d 1098, 1102 (11th Cir.1992).

I. THE FACTS

At the time the incidents giving rise to the criminal action occurred, Myers was a captain in the Doraville Police Department. He had been with the police department for twenty-one years.

A. Cowan

On August 25, 1988, around 1:30 a.m., officers of the Doraville Police Department arrested Frederick Cowan at his home for driving without lights, driving while under the influence, and resisting arrest. Cowan was taken to the station and placed in a holding cell. Cowan had been drinking prior to his arrest. According to radio dispatcher Ryan Fleming, who testified as a government witness, Cowan "looked violent" as he was led handcuffed to the cell. Throughout the night, Cowan yelled, rattled and kicked the bars of his cell, and asked to see a doctor.

Around 5:15 or 6:00 that morning, Myers reported for duty as the watch commander at the station. Myers testified that he was informed by radio dispatcher Clint Jett that Cowan was high on dope, had been fighting with police officers, had broken his prison bunk, and that two officers had been hurt in attempting to arrest him. Myers further testified that when he asked Jett why Cowan had not been shackled, 2 Jett responded that he was "scared to go back there."

Myers went to his office, which was upstairs in the station, to obtain his stun gun that he kept inside his desk. A stun gun is a battery-operated device that sends electrical voltage into a person's body when fired. The electric charge retards or paralyzes muscle movement for a period of time.

Myers had purchased the stun gun in 1988 or 1989 when he was then a Lieutenant with the Doraville Police Department. He purchased the gun for use against Myers, accompanied by Jett and Fleming, entered Cowan's cell with the stun gun. Myers directed Cowan to move away from the cell door with his back to the wall so that he could safely enter the cell. Cowan responded, "M.F. I'm not going anywhere." Myers activated the stun gun and entered the cell. He asked Cowan to lay down and stretch his hands above his head so that he could be handcuffed to the bunk. When Cowan, who was sitting on the bunk, failed to respond, Myers aimed the stun gun at Cowan's chest and fired it. Cowan closed his eyes, looked as if he was in pain, screamed loudly, and in a movement like a muscle contraction, laid down flat on his back on the bunk. Jett then handcuffed Cowan's hands over his head. As Jett was facing the wall pushing Cowan's legs down to shackle them, Myers aimed the stun gun at Cowan's groin area and fired it. Cowan screamed loudly and flinched. Jett then shackled Cowan's feet to the end of the bunk. Cowan had neither been fingerprinted nor booked when these events occurred.

"rowdy prisoners." Chief Everett and Assistant Chief William Davis of the Doraville Police Department both had informed Myers that the stun gun was unauthorized and told him not to use it. Doraville Police Department regulations provided that an officer could not use a stun gun without official authorization.

Fleming testified that the next day, Jett expressed concern about what would happen if anyone learned of the incident and told Fleming that he "needed to be careful what [he] said about the incident that happened." Fleming further testified that Myers told him that he was "going to be the one to clear [Myers]," and that he "remembered the ones that helped him and the ones that hurt him."

B. Yanez

During the early morning hours of September 21, 1989, the Doraville Police arrested Cesar Yanez in a parking lot for having an open can of beer in public. The arresting officer radioed ahead for assistance because Yanez was yelling obscenities as he was being transported to the police station. When Yanez arrived at the station, he continued to yell obscenities and challenged various officers to a fight. The officers laughed at Yanez, who was five feet two inches and weighed 115 pounds, and appeared to be intoxicated. Myers grabbed Yanez by the throat and told him not to scream at the officers.

Yanez was taken to a holding cell inside the station. While in the cell, Yanez continued yelling obscenities and making threatening remarks. Myers entered the cell, showed Yanez the stun gun, activated it, and asked him if he had ever seen one before. Yanez responded, "Maybe I have and maybe I haven't." Myers then informed Yanez that the stun gun would be used if he did not settle down and allow himself to be searched.

Myers then told radio dispatcher Fleming to escort Yanez out of the cell to the back area of the station to be booked, searched, and processed. Myers walked Yanez down the corridor with the stun gun aimed at Yanez's back, between the shoulder blades. Myers kept his other hand on Yanez's chest. Before they reached the cell door area, Myers fired the stun gun. Fleming testified that at the time, Yanez was turning his head talking. Myers fired the stun gun again when Yanez grabbed the cell bars. Yanez was then placed up against a wall, with both hands against the wall and legs spread, so Fleming could search him. Fleming testified that Yanez complied with orders to remove his personal property from his pockets and did not make any threatening moves.

During the frisk, Myers fired the stun gun against Yanez's lower neck and upper back area. Yanez flinched and then looked at Myers and said, "If that is all you got, I can take some more." Yanez did not remove his hands from the wall or attempt to strike the officers. Yanez and Myers got into a shouting match and Myers fired the stun gun at Yanez a few more times.

On September 25 and 26, 1989, Lieutenant Welch, a nineteen-year veteran of the force, observed Yanez's back and saw six pairs of scabbed reddish burn marks approximately two and one half inches apart.

Lieutenant Welch testified that the marks were consistent with those left by a stun gun.

II. LEGAL PROCEEDINGS

On March 8, 1991, a jury convicted Myers of violating the civil rights of Cowan and Yanez, while acting under color of law, by shocking them with a stun gun, in violation of 18 U.S.C. § 242. The jury found that the violation of Yanez's civil rights resulted in his bodily injury. The district court sentenced Myers to twelve months imprisonment for violating Cowan's civil rights and eighteen months for violating Yanez's civil rights, to be served concurrently. It also imposed a fine of $5,000 and a special assessment of $75. Myers filed this timely appeal.

DISCUSSION
I. THE CONSTITUTIONAL STANDARD

The district court instructed the jury to evaluate Myers' conduct under an objective reasonableness standard.

All persons live under the protection of our constitution and have the legal right at all times to be protected from any official use of force which is unreasonable and excessive.... To determine whether the acts, if any, were beyond the lawful authority possessed by defendant as a police officer, you must determine whether the force used was unreasonable. Whether or not the force used by a police officer was unreasonable is an issue to be determined by you in the light of all the surrounding circumstances, on the basis of that degree of force a reasonable and prudent officer would have applied under the circumstances in this case.

In his pretrial discussions with counsel, the district court made it explicit that he was applying the Fourth Amendment standard.

Myers objected to the excessive force instruction, arguing that the Eighth Amendment standard of "malicious and sadistic force applied for the very purpose of causing harm" should have been given instead. On appeal, Myers has raised for the first time the contention that the Fourteenth Amendment "shocking to the conscience" standard governs. Federal Rule of Criminal Procedure 30 provides in pertinent part:

No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.

(emphasis ours).

In United States v. Hines, 955 F.2d 1449 (11th Cir.1992), this circuit stated:

According to the Federal Rules of Criminal Procedure, absent timely objection, only plain error in a charge warrants reversal. Fed.R.Crim.P. 30; Fed.R.Crim.P. 52(b). Plain error results only if "when examined in the context of the entire case, [it] is so obvious that failure to notice it would seriously affect the fairness, integrity and public reputation of the proceedings." United States v. West, 898 F.2d 1493, 1498 (11th Cir.1990), quo...

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