Westcott v. Crinklaw

• Decision Date: 29 November 1995
• Docket Number: No. 94-2543,94-2543
• Citation: 68 F.3d 1073
• Parties: 43 Fed. R. Evid. Serv. 45 Vicki WESTCOTT, Administratrix, Plaintiff-Appellant, v. Joseph C. CRINKLAW, Defendant-Appellee, City of Omaha, A Municipal Corporation, Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1073

68 F.3d 1073

43 Fed. R. Evid. Serv. 45

Vicki WESTCOTT, Administratrix, Plaintiff-Appellant, v. Joseph C. CRINKLAW, Defendant-Appellee City of Omaha, A Municipal Corporation, Defendant.

No. 94-2543.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 16, 1994.

Decided Oct. 13, 1995.

Rehearing and Rehearing En Banc Denied Nov. 29, 1995.

Ronald H. Stave, Omaha, NE, argued (John F. Thomas and Matthew McGrory, Omaha, NE, on the brief), for appellant.

Thomas O. Memgaard, Omaha, NE, argued, for appellee.

Before McMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

JOHN R. GIBSON, Senior Circuit Judge.

Vicki Westcott appeals from the district court's entry of judgment in favor of Joseph C. Crinklaw following a jury trial. Westcott brought suit under 42 U.S.C. Sec. 1983 (1988) and 42 U.S.C. Sec. 1988 (Supp. V 1993), alleging that Crinklaw, an Omaha, Nebraska police officer, used excessive and unreasonable force when he shot and killed her husband, Arden Westcott. Following an eight day trial, the jury returned a verdict in Crinklaw's favor. We reverse the judgment of the district court and remand for a new trial.

Crinklaw testified that, on the morning of October 29, 1986, at approximately 3:30 a.m., he received a radio dispatch informing him that an intrusion alarm had sounded at the Keystone Pharmacy. When Crinklaw arrived at the pharmacy, he saw Westcott crouched near the building's rear door apparently attempting to break into the building. Upon seeing Crinklaw, Westcott ran toward the far east corner of the building and then back toward the west end of the building. As Westcott reversed course, Crinklaw saw something reflect in Westcott's hands. Crinklaw then got out of his car, chased Westcott, and yelled for him to stop. As the chase continued, Westcott turned his upper torso and began to bring his hand back towards Crinklaw. Crinklaw testified that, at that point, he believed Westcott had a gun, and that Westcott would shoot him in his attempt to get away. Crinklaw fired two shots, one of which killed Westcott. Crinklaw immediately went to Westcott's body and found no gun. Westcott was carrying only two screwdrivers and a hammer.

On appeal, Westcott argues that the district court committed reversible error in: (1) allowing Crinklaw's expert to testify that Crinklaw suffered from post-traumatic stress syndrome following the shooting, causing Crinklaw to make inaccurate statements; (2) excluding evidence about Crinklaw's suspension for shooting Westcott and a previous suspension following another shooting incident; (3) not requiring the City to produce the police department's internal investigation file concerning the shooting; (4) allowing Crinklaw's counsel to read portions of Crinklaw's criminal trial ¹ deposition at trial; (5) permitting Crinklaw to introduce evidence that the shooting was justified; and (6) refusing to give one of Westcott's proposed jury instructions. Additionally, Westcott contends that the district court abused its discretion in requiring her to pay part of an expert's deposition fee, for a deposition taken by Crinklaw.

I.

After the shooting, police officers questioned Crinklaw about the shooting. When asked whether "the subject turned in his direction," Crinklaw replied: "If you're asking me whether or not he turned in a menacing manner, no." Crinklaw also admitted that he "didn't know" if he was "in fear," and that he "did not know" if Westcott had a gun in his hand.

At trial, Dr. Steven Sherrets testified that Crinklaw suffered from post-traumatic stress syndrome after the shooting, and that post-traumatic stress syndrome may cause a person to make inaccurate, unreliable and incomplete statements. Westcott contends that Sherrets' testimony impermissibly invaded the province of the jury.

Decisions concerning the admission of expert testimony lie "within the discretion of the trial court and will not be reversed absent an abuse of discretion." United States v. Azure, 801 F.2d 336, 340 (8th Cir.1986).

Federal Rule of Evidence 702 permits expert testimony when "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." However, " '[a]n expert may not go so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility.' " Azure, 801 F.2d at 340 (quoting United States v. Samara, 643 F.2d 701, 705 (10th Cir.), cert. denied, 454 U.S. 829, 102 S.Ct. 122, 70 L.Ed.2d 104 (1981)). Nor may an expert pass judgment on a witness' truthfulness in the guise of a professional opinion. United States v. Whitted, 11 F.3d 782, 785-86 (8th Cir.1993).

The following are excerpts from Dr. Sherrets' testimony:

Q. Just focus upon the physiological, emotional and psychological reactions that the officer has afterwards in dealing with [a situation such as a shooting]?

A. Usually the heart is racing, adrenaline's flowing. Many officers report a numbness, an unrealness, difficulty making sense, an immediate attempt to try to reconstruct the events that have happened. Oftentimes incomplete, inaccurate or in some cases even total memory lapses of what's occurred.

Q. Is there a name applied in the psychological profession for this reaction that you're talking about?

A. Posttraumatic stress.

Q. Could you focus on how posttraumatic stress and these symptoms that you have listed would affect the police officer's ability to write reports and give oral accounts of what had happened.

...

A. Officers in this type of situation very frequently, in fact as a standard rule, give varying accounts ... basically the ability to accurately report immediately following a situation's [sic] seriously impaired.

Q. Was Joseph Crinklaw exhibiting the symptoms of posttraumatic stress syndrome?

A. Yes, he was.

In Azure, we concluded that the district court's admission of a pediatrician's testimony that an alleged victim of childhood sexual abuse "was believable and that he could 'see no reason why she would not be telling the truth in this matter ...' " constituted reversible error. 801 F.2d at 339. We reasoned that, although some expert testimony may be helpful in child sexual abuse cases, "putting an impressively qualified expert's stamp of truthfulness on a witness' story goes too far." Id. at 340.

Westcott relied on Crinklaw's statements immediately after the shooting to try and establish that Crinklaw was not in fear for his life when he shot her husband. Dr. Sherrets' testimony that Crinklaw suffered from post-traumatic stress syndrome following the shooting, and that post-traumatic stress seriously impairs an officer's ability to describe an incident, and often causes "incomplete, inaccurate or in some cases even total memory lapses," provided an explanation for Crinklaw's statements immediately after the shooting. Dr. Sherrets' testimony thus was directed to the reliability of Crinklaw's statements. The reliability of Crinklaw's statements, however, was a credibility issue which should have been left in the exclusive province of the jury. See Whitted, 11 F.3d at 786-87 (reversing jury verdict because expert's testimony invaded the jury's exclusive province to decide witness credibility); Azure, 801 F.2d at 341. Dr. Sherrets' testimony impermissibly bolstered Crinklaw's credibility by providing a psychological explanation for Crinklaw's varying accounts of the shooting. As a result of Dr. Sherrets' testimony, "[t]he jury may well have relied on his opinion and 'surrender[ed] their own common sense in weighing testimony....' " Id. (quoting United States v. Barnard, 490 F.2d 907 (9th Cir.1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974)). The district court abused its discretion in permitting Dr. Sherrets' testimony.

Crinklaw argues that United States v. Johns, 15 F.3d 740 (8th Cir.1994), supports the district court's admission of Dr. Sherrets' testimony. In Johns, the defendant challenged his convictions of sexual abuse arguing, among other things, that the district court erred in admitting expert testimony. Id. at 743. We concluded that "[a] qualified expert may inform the jury of characteristics of sexually abused children and describe the characteristics exhibited by the alleged victim but may not state an opinion that sexual abuse has in fact occurred." Id. Dr. Sherrets' testimony did more than describe characteristics of post-traumatic stress syndrome or its manifestations. Dr. Sherrets testified that Crinklaw was suffering from post-traumatic stress syndrome following the shooting, and that this syndrome oftentimes resulted in an officer making incomplete, inaccurate, and misleading statements. This testimony directly addressed the credibility of Crinklaw.

The issue is close and not fully covered by the cases we have considered. Azure and Whitted both involved doctors' opinions concerning whether a victim had been sexually abused. The doctor in Azure explicitly vouched for the credibility of the young victim's testimony. 801 F.2d at 341. Whitted involved a somewhat more indirect opinion, and we held that the doctors' diagnosis of sexual abuse was "only a thinly veiled way of stating that [the victim] was telling the truth." 11 F.3d at 787. Nevertheless, in both cases we held the testimony to be improperly admitted because of the testimony's impact on the issue of credibility.

Certainly the testimony before us is a small step beyond Azure and Whitted. ² The testimony before us, however, is the same type, as it provides a psychological label or diagnosis as a way of excusing or justifying Crinklaw's statements made immediately after the shooting. The accuracy of these statements is a pure question of credibility. Azure and Whitted plainly stand for the proposition that expert testimony going to the issue of credibility is not admissible.

"An error, in order to be reversible, must affect a substantial right...