Wierstak v. Heffernan
| Citation | 789 F.2d 968 |
| Decision Date | 05 February 1986 |
| Docket Number | Nos. 85-1643,85-1644,s. 85-1643 |
| Parties | 20 Fed. R. Evid. Serv. 908 Philip F. WIERSTAK, Plaintiff, Appellee v. James W. HEFFERNAN, Defendant, Appellant. Philip F. WIERSTAK, Plaintiff, Appellee, v. James W. HEFFERNAN, et al., Defendants, Appellees, City of Worcester, Defendant, Appellant. . Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Edward P. Reardon with whom Austin M. Joyce and Reardon & Reardon, Worcester, Mass., were on brief, for James W. Heffernan.
James T. Bergin, Asst. City Solicitor, Worcester, Mass., for City of Worcester.
Frederick U. Fierst with whom Kenneth P. Neiman and Fierst & Neiman, Northampton, Mass., was on brief, for Philip F. Wierstak.
Before COFFIN and ALDRICH, Circuit Judges, and PETTINE, * Senior District Judge.
This case stems from a civil rights action brought by plaintiff-appellee Philip F. Wierstak, [Wierstak] pursuant to 42 U.S.C. Secs. 1983 and 1988 for police brutality occuring during his arrest by defendant-appellant James W. Heffernan [Heffernan] and another Worcester City officer. In addition to pendent state law claims for assault and battery, intentional infliction of mental distress, and gross negligence against the officers, the complaint included a claim for a civil rights violation against defendant-appellant City of Worcester [Worcester] for its deliberate indifference to the constitutional rights of its residents and visitors by the hiring, supervising, and training of its police department. After a jury trial, a verdict was returned against Heffernan for civil rights violations and assault and battery, and against Worcester for civil rights violations. The jury assessed damages in the amount of $40,000 and awarded no punitive damages. No verdict was returned against the other officer, Anthony J. Giustino [Giustino]. Here, defendants-appellants appeal the judgment and the denial of their motions for directed verdict, judgment notwithstanding the verdict and for new trial. They base their appeal on several grounds, each of which we reject. The positions urged on appeal are:
1. That the district court committed prejudicial error by precluding the admission of the plaintiff's prior convictions.
2. That the district court committed prejudicial error by precluding evidence of the earlier break-in and the transfer of an object between Wierstak and his sister Mooney.
3. That the district court committed prejudicial error by qualifying a Professor Shubert as an expert and permitting him to testify as to the unreasonableness of Heffernan's conduct.
4. That the district court improperly denied Heffernan's motion for judgment notwithstanding the verdict.
5. That the district court abused its discretion in denying Heffernan's motion for new trial.
6. That the district court improperly denied Worcester's motions for directed verdict, judgment notwithstanding the verdict, and new trial.
A brief synopsis of the facts surrounding the case is necessary before these issues can be addressed. On Thursday, April 8, 1982, Officers Heffernan and Giustino were working their regular shift for the City of Worcester Police Department. Heffernan was assigned to the plain clothes burglary task force and Giustino to the patrol division. Heffernan was in an unmarked Toyota sedan that the police department had rented for undercover work. Giustino was in a car equipped with the usual police markings. Heffernan was looking for Wierstak in connection with a break-in earlier that day at 185 Country Club Boulevard in Worcester. Heffernan had received a transmission on his hand-held radio that a witness to the break-in had positively identified Wierstak as the perpetrator and that the vehicle used in the break-in was one belonging to Wierstak. Heffernan was visiting some places Wierstak was known to frequent when he observed Wierstak's blue Pinto being driven by Wierstak's sister, Mooney. He saw the vehicle drive into the parking lot of an A.M./P.M. Store and gas station. He stationed himself in a parking lot across Lincoln Street and kept the Pinto under observation. Shortly thereafter, Wierstak arrived in the same parking lot driving a brown Oldsmobile registered to his sister. The pair exchanged something through the windows of the cars and Wierstak then left the parking lot and traveled down a two-lane high speed road in excess of the speed limit. Heffernan followed Wierstak and radioed the suspect's location and direction. A high speed chase ensued with Heffernan and Giustino in pursuit. At some point Wierstak lost control of the Oldsmobile and collided with a snowbank. Heffernan's car skidded on the snow straight into Wierstak's right rear side, rendering the Toyota undrivable. Heffernan left his car, drew his service revolver, transferred it to his left hand and reached into his car for his radio. As he did so, Wierstak began to run and Heffernan pursued him. At this time several witnesses arrived on the scene. Heffernan shouted to Wierstak as he ran after him, gradually closing the distance between them. Soon Heffernan was close enough to reach out and punch Wierstak between the shoulder blades with his right hand which held the radio, knocking Wierstak off balance and sending him over the snowbank onto the sidewalk. Heffernan jumped over the snow bank and an altercation between them ensued. Guistino then arrived on foot. He and Heffernan managed to handcuff Wierstak and lift him to his feet. Wierstak had several cuts and was bleeding. Heffernan radioed for a police wagon to transport Wierstak and the three walked back toward the Oldsmobile, Toyota and cruiser. Before they reached that area, the wagon arrived and transported Wierstak to Worcester City Hospital for treatment of his injuries.
Wierstak testified that he thought the Toyota, which was unmarked, belonged to someone to whom he owed money for drugs and that he was unaware that Heffernan was a police officer. He maintained that as he was being pursued, Heffernan yelled "Stop of I'll shoot you in the back!" several times, that Heffernan jumped on top of him when he was only semi-conscious, and that after he was handcuffed Heffernan struck him repeatedly about the head, neck and shoulders with his revolver. Both sides presented eyewitness testimony as to what they believed transpired.
Defendants-appellants argue, as grounds for appeal, that the district court committed prejudicial error by precluding the admission of the plaintiff's prior convictions. Over the objection of the defendants, the trial judge excluded evidence of Wierstak's 1971 convictions for breaking, entering, and larceny in the nighttime, and possession of a harmful drug and his 1979 convictions for possession of a hypodermic needle and syringe and possession of a Class A controlled substance. The jury was however informed of Wierstak's 1981 conviction for possession of heroin, possession of hypodermic needles, attempted breaking and entering in the daytime (twice), larceny over $100 (twice) and possession of burglary tools. The jury was also informed that Wierstak was convicted of driving to endanger and of assault with a dangerous weapon on a police officer as a result of this incident. The jury was told, as well, that Wierstak was a drug user and heroin addict from 1978-1982 and that he owed money to heroin dealers in Worcester.
As to the 1971 convictions, we agree with the trial court that exclusion was appropriate. Rule 609(b) of the Federal Rules of Evidence [FRE] provides for exclusion of evidence of prior convictions over ten years old for impeachment purposes. The rule provides [E]vidence of conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from confinement imposed for that conviction, whichever is the later date, unless the Court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
Wierstak's 1971 convictions fall squarely within the words and policy of the rule. These crimes, crimes of theft, stealth, and drug use, lack probative value of showing a propensity to lie on the stand. See United States v. Glenn, 667 F.2d 1269 (9th Cir.1982); United States v. Hastings, 577 F.2d 38, 41 (8th Cir.1978). Defendants-appellants have demonstrated no compelling reason why Wierstak's 1971 convictions should be admitted; their argument rests solely on the fact that credibility of the witness was an essential element of the case. While Wierstak's credibility was indeed crucial, there was sufficient evidence before the jury, in the form of the 1981 convictions, that Wierstak had committed crimes and used drugs in the past. The prejudice that would have resulted by allowing evidence of these past convictions certainly outweighed any conceivable probative value of the information, and exclusion was proper.
As to the 1979 conviction, exclusion was also proper. FRE 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.
The trial judge correctly found that the potential for prejudicing plaintiff by introduction of his convictions was demonstrably greater than the potential probative value. Convictions for possession of a syringe and hypodermic needle and possession of heroin are not particularly probative as to veracity and are unquestionably highly prejudicial. Defendants-appellant's argument that Rule 609 mandates admission of the convictions since this is a civil, not criminal, trial is unpersuasive; the Rule 403 balancing test was certainly appropriate here, and the judge...
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