Ulmer v. Associated Dry Goods Corp., 86-2292

• Decision Date: 20 July 1987
• Docket Number: No. 86-2292,86-2292
• Citation: 823 F.2d 1278
• Parties: William ULMER, Appellant, v. ASSOCIATED DRY GOODS CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1278

823 F.2d 1278

William ULMER, Appellant, v. ASSOCIATED DRY GOODS CORPORATION, Appellee.

No. 86-2292.

United States Court of Appeals Eighth Circuit.

Submitted April 17, 1987.

Decided July 20, 1987.

Daniel P. Finney, Jr., St. Louis, Mo., for appellant.

Eugene K. Buckley, St. Louis, Mo., for appellee.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and MAGILL, Circuit Judge.

BRIGHT, Senior Circuit Judge.

William Ulmer brought this action against defendant Associated Dry Goods Corporation (Corporation), former operator of retail stores in the St. Louis, Missouri, area, asserting that the Corporation maliciously initiated a criminal charge of peace disturbance against him after he vocally protested his arrest by a Corporation security guard in a Corporation store. A jury denied Ulmer recovery and he appeals from the judgment of dismissal entered by the district court upon the jury verdict. We reverse and remand for a new trial.

On appeal, Ulmer claims, inter alia, that the district court erred in (1) excluding any and all evidence of the circumstances of his arrest by a Corporation security officer or his subsequent prosecution for peace disturbance, thereby preventing him from proving two elements of a malicious prosecution action, absence of probable cause and malice; (2) submitting a jury instruction defining "reasonable grounds" for instigating prosecution which required consideration of his guilt or innocence of the offense charged, an issue upon which the court excluded all evidence; (3) commenting upon and misstating the law regarding the existence of probable cause to the jury; and (4) excluding all evidence of Ulmer's later prosecution by the Corporation for assault in the third degree.

I. BACKGROUND

Associated Dry Goods is a corporation organized under the laws of Virginia which, until 1984, operated a chain of retail stores in the St. Louis area by the name of Stix, Baer and Fuller. William Ulmer is a resident of St. Louis, Missouri, who, at the time of the events leading to this lawsuit, was employed by the Corporation. Ulmer worked in the Corporation's retail credit department at a Stix, Baer and Fuller store located in a different location from the place where the events in issue took place.

On January 19, 1983, Ulmer was arrested and taken into custody at the South County Stix, Baer and Fuller store by Richard Putnam, a security guard employed by the Corporation. Ulmer was apprehended in the men's restroom where the store had previously been experiencing a security problem. Upon being apprehended, Ulmer immediately, and in a loud voice, requested that someone call the store manager or the police.

The morning following his arrest, Ulmer met with his supervisor and Robert Armentrout, the Corporation's Manager of Fair Employment Practices. Armentrout offered to drop charges against Ulmer if he agreed to release the store from any liability possibly arising out of his arrest. Ulmer testified at trial that Armentrout threatened to press charges against him if he did not sign a preprinted form releasing the store from liability or resign. Ulmer refused to either sign or resign.

Approximately one week later, Ulmer received a letter of discharge from his job with the Corporation. The letter stated no reasons for the termination. In preparing for possible legal action against the Corporation, Ulmer arranged for a friend to visit the South County store to obtain witnesses to his arrest. During his friend's visit, security guard Putnam was made aware of his presence in the store.

Shortly thereafter, Ulmer received a warrant for his arrest. Based upon a complaint filed with the St. Louis Associate Circuit Court and signed by Richard Putnam, the St. Louis County prosecuting attorney charged Ulmer with the Class A misdemeanor of peace disturbance. The alleged victim of the peace disturbance was Tammy Sutton, an employee of the South County store who overheard Ulmer's shouts upon his arrest. The warrant stated that Ulmer "unreasonably and knowingly caused alarm to Tammy Sutton by loud and unusual noise and/or fighting with Rich Putnam." Associate Circuit Judge Eberwine signed the warrant which related in the printed form that, "[u]pon consideration of the facts presented the court hereby finds that probable cause exists to issue a warrant and arrest warrant herein." After interviewing Tammy Sutton, the prosecuting attorney dismissed the charges by entering a memorandum of nolle prosequi on April 18, 1983.

Several weeks after the dismissal of the peace disturbance charge and at the insistence of management, the Corporation levied a second charge against Ulmer arising from his arrest at the South County store. This time the St. Louis County Prosecuting Attorney's Office charged Ulmer with the Class C misdemeanor of assault in the third degree, apparently arising out of the altercation or struggle he had had with Putnam at the time of his arrest. In January of 1985, this charge was also dismissed by a memorandum of nolle prosequi.

As a result of his prosecution, Ulmer filed a complaint against the Corporation, claiming malicious prosecution and alleging damages, including approximately $10,000 in lost wages for eleven months unemployment, $750 in attorneys' fees to defend himself against the peace disturbance charge, and an unspecified amount for mental anguish caused by the uncertainty of a possible six-month jail sentence.

The record reveals that prior to trial, the district court granted the Corporation's motion in limine, excluding "testimony of other men relating to occurrences similar to the plaintiff's arrest; defendant's policy for quota arrests; defendant's policy for forced confessions; and the circumstances of the plaintiff's arrest * * *." At the beginning of trial, Ulmer made an offer of proof, requesting leave to present evidence denied by the court's grant of defendant's motion in limine.

Ulmer claimed that the evidence he would introduce, if permitted, would first prove that Putnam did not have probable cause for his arrest, but rather arrested him only because he was obligated to fulfill his quota for arrests. Ulmer sought to introduce evidence that the Corporation required its security guards to make two arrests per week, and that the guards actually made approximately two arrests per week. Ulmer further sought to present evidence that his arrest was Putnam's fiftieth arrest within a twenty-five-week period. Ulmer claimed Putnam was to be evaluated the next week and that management considered the number of arrests a security guard secured during each guard's evaluation.

Ulmer also claimed that the evidence he would introduce, if permitted, would prove that he was prosecuted solely because of the Corporation's fear of a civil lawsuit. In an effort to protect the Corporation from civil liability, Ulmer claimed Corporation management forced every person arrested by their security staff to sign, under threat of prosecution, either a confession or a release of liability. To prove this, Ulmer claimed he would introduce the testimony of one Charles Montgomery who, after being arrested by a Corporation security guard, signed a confession dictated to him by the arresting guard. Ulmer claimed Montgomery would testify that after he returned to the store a month later to ask for the names of witnesses, the Corporation's Regional Director of Security, James Shelvy, ordered a security guard to take measures to procure a warrant for Montgomery's arrest.

The court rejected Ulmer's offer of proof, ruling that evidence as to the manner of arrest and its underlying circumstances, while relevant to an action for false arrest (not alleged in this case), was not relevant to an action for malicious prosecution. Thereafter, in addition to rejecting specific items of evidence mentioned in the offer of proof, the court sustained each of the Corporation's objections to Ulmer's attempts to introduce evidence relating to the circumstances surrounding his arrest. Thus, the trial court's rulings barred Ulmer from testifying to any of the events relating to his arrest.

In addition, Ulmer was not permitted to introduce evidence of the events surrounding his prosecutions for peace disturbance and assault in the third degree. Ulmer was not permitted to question Steve Goldman, Chief Trial Assistant for the St. Louis County Prosecuting Attorney's Office, concerning why his office charged Ulmer with peace disturbance or why his office eventually dismissed the charge. Ulmer was furthermore not permitted to question Putnam as to the existence of a Corporation policy of avoiding civil suits. The trial court ruled that because Ulmer had pleaded malicious prosecution only in the Corporation's efforts to prosecute him for peace disturbance, he could not present evidence of the Corporation's later attempts to prosecute him for third-degree assault.

Nevertheless, Ulmer did introduce some evidence of a lack of probable cause for his arrest and the existence of malice. Richard Putnam testified that he had observed no crime being committed by Ulmer in the men's restroom, but detained Ulmer only because he was suspicious and wished to question him. Putnam further testified that his supervisor, James Shelvy, authorized him to contact the police after the arrest because Shelvy was irritated with the men's room problem. Putnam testified that a day or two after the arrest, Shelvy instructed him to get a warrant for Ulmer's arrest because Ulmer had refused to resign. Putnam furthermore testified that his supervisor, Terry Boal, tore up the apprehension report he had prepared the night of the arrest and proceeded to prepare a second report, adding material not present in his original report that he in fact told Boal did not happen. He testified that Boal had said that "she did not wish to be sued along with Associated Dry Goods." According to Putnam, Shelvy instructed him to initiate whatever charges...