United States District Court, E.D. Michigan, Southern Division
ORDER REGARDING DEFENDANTS' MOTIONS IN
LIMINE
DAVID
M. LAWSON United States District Judge
This
matter is before the Court on numerous motions in
limine filed by the parties in advance of the trial in
this case. The Court has reviewed the motions and finds that
they all are fully briefed and ready for decision, and that
in most instances the issues adequately are presented by the
briefing, and oral argument would not aid in their
disposition. Accordingly, it is ORDERED that
the following defendants' motions, which are addressed by
this order (ECF No. 179, 180, 182, 183, 185, 187, 190, 193,
194, 195, 197, 198, 201, 203, 204), shall be decided on the
papers submitted, and the oral argument on those motions
scheduled for June 14, 2019 is CANCELLED.
E.D. Mich. LR 7.1(f)(2). The hearing on the parties'
remaining pending motions shall proceed as scheduled.
I.
The
Court notes that the defendants recently filed a notice of
appeal of the Court's denial of their motion for summary
judgment premised on qualified immunity. Although the Court
lacks jurisdiction to entertain any proceedings in this case
that implicate the issues presented by the pending appeal,
the Court does have limited authority to address ministerial
affairs such as the evidentiary housekeeping issues present
by the pending motions in limine, which have no
bearing on the disposition of the appeal. “The filing
of a notice of appeal is an event of jurisdictional
significance - it confers jurisdiction on the court of
appeals and divests the district court of its control over
those aspects of the case involved in the appeal.”
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56,
58 (1982). “It is generally understood that a federal
district court and a federal court of appeals should not
attempt to assert jurisdiction over a case
simultaneously.” Ibid. However, in certain
circumstances the district court may retain limited power to
address aspects of the case not involved in the appeal, when
the court's action “do[es] not threaten the orderly
disposition of the interlocutory appeal.” 16A Fed.
Prac. & Proc. Juris. § 3949.1 (4th ed. 2016);
see also Seeds of Peace Collective v. City of
Pittsburgh, No. 09-1275, 2010 WL 2990734, at *3 (W.D.
Pa. July 28, 2010) (denying stay as to defendants not subject
to appeal of the denial of qualified immunity in a civil
rights case). The Court finds that issuing prompt rulings on
the parties' evidentiary motions will not affect any
rights at stake in the pending appeal.
II.
A.
In
their first motion, the defendants ask the Court to
“preclude [the plaintiff] from introducing Detroit
Police Department's policies and procedures into
evidence, ” because policies and procedures do not
establish constitutional standards, and, therefore, their
terms are irrelevant to the plaintiff's civil rights
claims in this case. “Evidence is relevant if: (a) it
has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of
consequence in determining the action.” Fed.R.Evid.
401. The plaintiff correctly points out, the content of the
policies and procedures may be relevant to the determination
of willfulness of the defendants' conduct, if it is shown
that the defendants were aware of or had been trained in
police procedures relating to interrogations, but
deliberately did not follow them. The defendants' motion
to exclude police policies and procedures (ECF No. 179)
therefore is DENIED.
B.
Next,
the defendants ask the Court to “preclude [the
plaintiff] from offering any evidence [about] why he pled
[sic] guilty when he claimed privilege related to discussions
he had with his attorney?” However, after reviewing the
proffered portions of the plaintiff's deposition, the
Court finds that there is no indication that the plaintiff
refused to answer any questions that were asked under an
assertion of privilege. It is true that the plaintiff made
clear that he was not waiving his attorney-client privilege
with his criminal defense lawyer. But the transcript
indicates that defendants' counsel disavowed any
intention to inquire about discussions that the plaintiff had
with his attorney in the criminal case and chose not to press
the topic. The defendants' motion (ECF No. 180) therefore
is DENIED for lack of merit in the grounds
presented.
C.
Next,
the defendants ask the Court to exclude photographs of a
pistol retrieved from a cell phone that belonged to Michael
Robinson, who appears to have been the principal target of
the shooting attack on Runyon Street. The defendants contend
that there is “no evidence” that the gun in the
photographs belonged to the deceased, or that Robinson took
the picture. However, the plaintiff has proffered evidence
that (1) Vincent Smothers testified that he took a .40
caliber pistol from the Runyon Street home (Robinson's
residence), after he found the gun sitting on a table beside
Robinson's dead body in the living room, (2) Smothers
confessed that he used the same gun to commit another murder
for which he was convicted, and the ballistics evidence in
that case established a match between bullets taken from the
victims and a .40 caliber pistol that was retrieved from a
hiding spot where Smothers told police he had concealed the
gun, (3) Michael Robinson's cell phone as examined by
Michigan State Police (MSP) forensic experts and several
photos were recovered, including the one at issue here, and
(4) an MSP ballistics expert attested that he viewed the
photograph and examined the .40 caliber pistol that was used
to commit the other murder to which Smothers confessed, and
in his opinion the guns appeared to be the same model, with
similar wear patterns, although he could not conclusively
state that they were the same gun. The Court observes that
the overarching relevance of evidence about the gun is to
connect Smothers to the Runyon Street murders and bolster the
credibility of his confession. The relevancy of the
photograph depends on the fulfillment of a condition of fact,
namely, whether the photo depicts the same gun that Smothers
picked up at the scene. In that circumstance, the Court need
only conclude that proof has been offered that is
“sufficient to support a finding that the fact does
exist.” Fed.R.Evid. 104(b); United States v.
Isiwele, 635 F.3d 196, 199 (5th Cir. 2011) (“Under
Rule 104(b), the trial court must admit the evidence if
sufficient proof has been introduced so that a reasonable
juror could find in favor of authenticity or
identification.” (quotations omitted)). Under Rule 401,
the bar for establishing relevancy as a general principle is
relatively low. Here the relevancy of the gun and the
photograph readily are apparent, and the proofs suggested by
the plaintiff are sufficient for a jury reasonably to infer
that the gun Smothers took from the scene and the gun
depicted in a photograph on the decedent's cell phone are
the same weapon, particularly since the weapon (and the
phone, presumably) both were discovered nearabout the body of
the deceased in his own home. Those same proofs also are
sufficient for a jury reasonably to conclude that the
photograph is what the plaintiff claims it to be, namely a
snapshot of the weapon taken from near Robinson's person
and later used by Smothers to commit other crimes.
Fed.R.Evid. 901(a) (“To satisfy the requirement of
authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it
is.”). The foundational evidence offered to establish
admissibility may be circumstantial, and an item may be
authenticated by its distinctive characteristics. Fed.R.Evid.
901(b)(4). The preliminary showing here is sufficient, and
the defendant's motion to exclude photographs of a .40
caliber pistol (ECF No. 182) therefore is
DENIED.
D.
Next,
the defendants ask the Court to exclude evidence of certain
consent decrees entered in proceedings that predated the
events on Runyon Street. The plaintiff indicated in his
response that he does not intend to introduce any evidence of
those consent decrees at trial, and the ...