U.S. v. Sellers

• Decision Date: 19 July 1990
• Docket Number: No. 89-8513,89-8513
• Citation: 906 F.2d 597
• Parties: 31 Fed. R. Evid. Serv. 459 UNITED STATES of America, Plaintiff-Appellee, v. Danny SELLERS and Terry Roach, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 597

906 F.2d 597

31 Fed. R. Evid. Serv. 459

UNITED STATES of America, Plaintiff-Appellee, v. Danny SELLERS and Terry Roach, Defendants-Appellants.

No. 89-8513.

United States Court of Appeals, Eleventh Circuit.

July 19, 1990.

John T. Strauss, Strauss & Walker, Covington, Ga., and Edward Tolley, Cook, Noell, Tolley & Aldridge, Athens, Ga., for defendants-appellants.

Samuel A. Wilson, Jr., U.S. Atty., Macon, Ga., Suzanne Drouet, Daniel L. Bell, II, Tom Chandler, and Dennis J. Dimsey, U.S. Dept. of Justice, Civ. Rights Section, Crim. Div., Washington, D.C., for plaintiff-appellee.

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

Before JOHNSON and CLARK, Circuit Judges, and BROWN ^*, Senior District Judge.

JOHNSON, Circuit Judge:

Defendants Terry Roach and Danny Sellers appeal their convictions on one count each of depriving an individual of constitutional rights under color of law under 18 U.S.C.A. Secs. 2 and 242. Defendant Roach also appeals his sentence.

I. STATEMENT OF THE CASE

In 1987, Roach and Sellers were investigators with the Oconee County Sheriff's Department in Watkinsville, Georgia. On November 6, 1987, Edward Farmer, a businessman in nearby Eastville, reported a burglary and theft of $10,000 from his business. Roach, a longtime acquaintance of Farmer, was assigned to investigate. On the afternoon of November 16, 1987, Farmer called Roach and informed him that he had a suspect in the theft. Roach drove out to Farmer's place of business. That same afternoon, Kenneth Wayne Hill, an employee of Farmer, had driven to Farmer's place of business after dropping off his wife and children at a friend's house. Hill was the individual Farmer suspected. Hill's electricity had been shut off, and he went to Farmer hoping to borrow some money to pay the bill. After Hill arrived at Farmer's business and began moving some equipment, Farmer went inside to telephone Roach, and a little while later Roach arrived and went inside to talk with Farmer. When they came out, Roach asked Hill to come with him down to the Sheriff's Office to talk about the theft. Hill agreed and they drove to the Office in Roach's car. At the Office, Hill was left alone for a few minutes in a booking room, and was not allowed to use the phone. Roach then took Hill to a small interrogation room with a desk and chairs but no window or telephone.

According to Hill's testimony at trial, Sellers joined Roach and they began questioning him about the theft. Hill denied any knowledge of it. Roach and then Sellers left the room, and returned with Farmer. Roach and Sellers resumed questioning Hill while Farmer struck him repeatedly on the head, sometimes knocking his head against the wall. Hill repeatedly asked Roach and Sellers to stop Farmer, but they did nothing. At one point, according to Hill, Farmer threatened to kill him. After Farmer hit Hill in the eye, Roach and Sellers finally stopped him, and Sellers took Farmer out of the room. Roach warned Hill that Farmer might kill him if he didn't talk. Hill responded that he wanted to have Farmer arrested, but Roach told him to "keep [his] damn mouth shut," and that he and Farmer would have to settle matters for themselves.

Roach drove Hill back to Farmer's place of business so Hill could get his car. Hill couldn't find his keys when they got there, so Roach agreed to drive him back to the friend's house where Hill's wife and children were staying. Along the way, they stopped at a photo store where Roach had some film developed which related to another case he was working on. Roach finally dropped Hill off at the friend's house around 6:30 in the evening. Witnesses testified that Hill was unharmed before meeting with Roach, Sellers, and Farmer that day, but that after returning with Roach, Hill's left ear was injured, his right eye was swollen and bruised, and he had "knots" on his head. A doctor who treated Hill late that night at an emergency room testified that he had a ruptured left eardrum and bruising under his right eye, consistent with being beaten about the head. An FBI agent who interviewed Hill regarding the incident the next day observed signs of injury consistent with the foregoing.

On December 9, 1988, Roach, Sellers, and Farmer were each indicted for conspiracy to violate Hill's rights while in custody under 18 U.S.C.A. Sec. 241 ("the conspiracy count") and violating or aiding and abetting the violation of Hill's rights under 18 U.S.C.A. Secs. 2 and 242 ("the substantive count"). In the meantime, Roach had been elected sheriff of Oconee County, taking office on January 1, 1989. On March 3, 1989, Farmer was granted a severance, and jury trial began for Roach and Sellers on March 6, 1989. On March 9, 1989, the jury acquitted both defendants on the conspiracy count, but convicted both on the substantive count. On June 19, 1989, the district court sentenced Roach and Sellers each to 12 months imprisonment. ¹ The district court and this Court denied the defendants' motions for bond pending appeal, and they began serving their sentences on July 17, 1989. The defendants appeal to this Court, raising the issues discussed below. ²

II. ANALYSIS

A. Evidentiary Issues

The district court's evidentiary rulings are not subject to disturbance on appeal absent a clear abuse of discretion. See United States v. Kelly, 888 F.2d 732, 743 (11th Cir.1989). The district court's discretion to exclude concededly relevant evidence under Fed.R.Evid. 403 is limited, however; otherwise relevant evidence may be excluded under Rule 403 "only when 'its probative value is substantially outweighed by the danger of unfair prejudice.' " United States v. Finestone, 816 F.2d 583, 585 (11th Cir.), cert. denied, 484 U.S. 948, 108 S.Ct. 338, 98 L.Ed.2d 365 (1987). Even where an abuse of discretion is shown, nonconstitutional evidentiary errors are not grounds for reversal absent a reasonable likelihood that the defendant's substantial rights were affected. See United States v. Stout, 667 F.2d 1347, 1352 (11th Cir.1982); United States v. Nill, 518 F.2d 793, 802 (5th Cir.1975); Fed.R.Evid. 103(a). As discussed below, we find that the district court acted well within its discretion on all the challenged evidentiary issues.

1. Impeachment of Hill

Roach and Sellers both argue that the district court improperly prevented them from impeaching Hill's credibility in several respects. ³

(i) Hill's Hospital Admission

In October 1986, Hill voluntarily admitted himself to the psychiatric wing of a hospital, informing the hospital staff that he had an acute problem with drug and alcohol abuse. Hill testified in camera, however, that he had made up the drug addiction story, and had in fact checked into the hospital because his wife had just left him, he "was kind of crazy and didn't know what to do," and thought "maybe [he] would get some sympathy." Blood and urinalysis tests taken by the hospital turned up negative for illegal drugs. Hill had used cocaine and marijuana in the past, however, by his own admission and, apparently, according to other evidence. Hill left the hospital without checking out later on the same night he was admitted.

The defendants make a threefold argument against the district court's exclusion of this evidence. First, the defendants contend that it constituted "psychiatric" evidence bearing on Hill's mental capacity. Nothing in the defendants' proffer, however, suggested that Hill had ever suffered from any mental illness as such, aside from drug or alcohol abuse, and the proffered evidence certainly did not suggest that he suffered any mental disorder at the time of the November 1987 interrogation which might have impaired his ability to perceive events. Cf. United States v. Partin, 493 F.2d 750, 762 (5th Cir.1974) (evidence admissible concerning "witness's mental incapacity at a time about which he proposes to testify"); accord United States v. Lindstrom, 698 F.2d 1154, 1163 (11th Cir.1983) (admissibility of "a history of psychiatric disorders ... having specific relevance to the facts at issue ") (emphasis added).

Second, the defendants contend that Hill's prior drug use was admissible impeachment evidence. Hill denied, however, and the defense could proffer no evidence, that he had used illegal drugs during the year prior to November 1987. There was certainly no evidence that he was under the influence of drugs or alcohol at the time of the interrogation. Because of the extreme potential for unfair prejudice flowing from evidence of drug use, this Court has held that such evidence may properly be limited to "specific instances of drug use [during] relevant periods of trial and the transaction charged in the indictment." United States v. Holman, 680 F.2d 1340, 1353 (11th Cir.1982); accord Jarrett v. United States, 822 F.2d 1438, 1446 (7th Cir.1987) ("A witness's use of drugs may not be used to attack his or her general credibility, but only his or her ability to perceive the underlying events and testify lucidly at the trial."). Furthermore, prior instances of drug use are not relevant to truthfulness for purposes of Fed.R.Evid. 608(b). See United States v. Rubin, 733 F.2d 837, 841-42 (11th Cir.1984).

Third, the defendants contend that they were entitled to cross-examine Hill under Rule 608(b) concerning his admission that he lied to the hospital staff. This isolated untruth, however, which was apparently motivated by extreme emotional distress, would seem to have little if any conceivable relevance to his credibility at trial. See United States v. Fortes, 619 F.2d 108, 118 (1st Cir.1980) ("[T]he district court is not bound to allow examination into every incident, no matter how remote in time and circumstance, that may possibly bear upon the witness' veracity."). We note that Rule 608(b) provides that specific instances of prior conduct "may ... in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on...