Beruflich Dokumente
Kultur Dokumente
____________________
No. 96-1223
Plaintiff, Appellant,
v.
Defendants, Appellees.
____________________
____________________
Before
____________________
____________________
Plaintiff-appellant
____________________
Adalberto
his
42
U.S.C.
action, and
1983
action,
Massachusetts tort
Massachusetts Civil
claim
against seven
appeal
concern
evidentiary
court.
rulings made
Rights
Boston
by
the
district
I.
I.
THE EVIDENCE
THE EVIDENCE
____________
this appeal.
in
made, of course,
to the verdicts.
Newell P.R.,
____________
Plaintiff
F.3d 15, 18
was patrolman.
Starting in 1982,
Boston area.
gym in Dedham,
Detective
In the
Marquardt
In
selling drugs
was using a
April of 1991,
(one of
-- steroids
he
spring of 1991, he
Massachusetts.
Leonard
informed by an
Lio was
1994).
in the
(1st Cir.
the
Sergeant-
defendants)
was
-- at
a gym
in Dedham.
____________________
1.
The original
Massachusetts,
judgments
defendants
and
two of
were granted
included the
its
in favor
police
of
Town
of
officers.
Dedham,
Summary
these defendants.
No
-22
Marquardt
contacted
Saia (also a
motion.
supervisor, Superintendent
defendant), and
a sting operation
Joseph
was set
in
John
Marquardt
his
and
defendant) for
Detective
Walter F.
Robinson,
Jr. (another
purchase a quantity
the gym.
Police
in
He was
one of
steroids.
Antoniou was
whom the
at
Dedham
given $650 by
Marquardt to make
the "buy."
On
May 23,
1991,
Marquardt was
Pantry
informed by
informed Detectives
Robinson
and
(another
on duty,
to be
prior
the "buy."
to the "buy."
Marquardt
Kenneth
Beers
available to
He emphasized
White Hen
Marquardt
observe
the
in Dedham
visible
officers.
so
it could
be
observed
by
the watching
police
The "buy"
Lio, who
was not
was in police
made at
the White
Hen Pantry.
to Antoniou
-33
Antoniou's car
followed
police
Lio's
car down
officers
kept
situation by radio.
parked
about
observing
twenty
officers,
Hyde Park
their
Avenue.
superiors
Lio's cars.
meet in
he and
feet
from
Detectives
the
Beers
of
Street and
intersection.
and
Robinson,
Beers
the
The
were
parked his
both Antoniou's
and
the middle
Antoniou's
apprised
car so that
The observing
of the
chest, which
street.
Antoniou
Lio
thrust a
threw into
bag onto
the passenger
roof back.
When the
examined by
the
police, it
was found
to
contain packages
of steroids
and
hypodermic needles.
to
Austin Street,
angle
which was
forward.
Beers then
one-way, and
as to block
approached Lio.
Lio
hit him
hard in
parked it
a difference
According to Lio,
the midsection
at an
There is
his car
that
and knocked
him down.
Beers claims that he put Lio under arrest for assaulting him.
a blue
to back up at
a high speed.
-44
Beers
hung onto
the
side of
at Detective Robinson.
at
Lio.
His shot
car until
it
stopped
blew out
in reverse.
Lio's
the front
side window
on the
the car
Lio's car.
the
car.
Superintendent Robert
night
He
heard a
radio
transmission by
state
approaching at
Parkway.
police officer
a small
been a
crash.
Faherty
saw Lio get out of his car and run into a patch of woods.
In
a short
time,
back-up police
units began
to
Cornell
where
Patterson (another
Patterson took
Lio.
to
Officer
defendant).
He asked
Faherty's flashlight
and began a
Faherty
search for
-55
be
Miranda warnings.
_______
Lio was
Sergeant
into
the
then taken to
Superintendent
Edward
defendant) to
O'Donnell
(the
conduct a "use of
shots
fired at
Lio
the area
Saia
seventh
station
commanded
police-officer
and
his
car by
Detectives
assault
dangerous weapon (a
by means of a
(a car),
car), driving to
to
stop
for a
police officer,
distribution
of a
Class E
controlled
substance,
unlawful
possession
of
possession of syringes.
hypodermic
In May 1994,
Plaintiff's
U.S.C.
1983
prosecution,
(false
and
complaint
alleged
arrest,
excessive
conspiracy
to
violations
of
force,
malicious
civil
rights),
violate
arising out of
1991.
had a
42
23,
of allowing constitutional
-66
The district
the trial
severed
prior to the
start of
from
immediately
officers
court decided
that
of
thereafter
the
if
police
any
of
officers
the
and
defendant
tried
police
II.
II.
THE ISSUES
THE ISSUES
__________
Appellant has
as they are
for
abuse of
discretion.
which we state
We review
I.
Evidence
of
Reputation Pursuant to
Evidence
404(b),
exclusion of evidence
Limine To
Character
Federal Rules
resulting
of racial
in
or
of
the
animus,
to
prove
motive,
preparation,
opportunity,
plan,
intent,
knowledge,
and
There
was
hearing
on
defendants'
motion
in
__
limine.
______
Gregory
Matthews,
Jose Alfonso,
Latson
-- all of whom
Police
defendant
Marquardt
Marilyn Hinton,
--
on the Boston
that Marquardt
-77
and Brian
harbored a
racial
stated the
acting
At the
question as he understood
in a
motivated
supervisory
by racial
agreed that
capacity, did
animus.
Counsel
question.
something that
for Lio,
The
Mr. Kelley,
following colloquy
then ensued:
THE COURT:
All right.
Now, then it
of
racial animus
itself an
element of
question
becomes
admissible
is
not
the
what
to show that
evidence
question.
is
was
That's the
us directly,
then,
proving
therewith
action
occurred
occasion.
on
in
conformity
particular
MR. KELLEY:
the purpose of
It would be in point if
the offer were restricted
THE COURT:
But
of the offer?
MR.
KELLEY:
of
the
operations
of
these
to question the
animus of
station,
racial
given officers
did
nothing,
took
in a
no
THE
doesn't
COURT:
at all
Well,
support
you
see,
an argument
that
of
opinion or reputation
in the
community.
evidence
that Saia
himself knew
-88
about
this
characteristic of
the other
MR. KELLEY:
THE COURT:
right.
Well, that's
not -- all
ruled
that the
deposition
testimony of
Now, that's
a proffer
trial.
Of
course,
about
my
complain
you're
It then stated:
not going to
making
going to
stop you
during
made
at that
from
the course
if
you
ruling
have to
want
on
to
And
more detail,
time just
of
appeal,
do that.
the four
in case
be
it may
I hold at the
present
that the
only way
I can
determine
acted with
racial animus
and that
The court
minority
what
you're
cover
some
proffering
gaps
officer's
between
personal
experiences
to
and,
me
a
view
first,
doesn't
particular
about
the
his
inference
and
secondly,
third,
has
that
that
that
Saia
when
reputation,
knows
Saia
that
and,
making
his
decisions
he's not
executive
decision,
but he's
animus
because of
with racial
racial animus.
just
is
and,
making
bad
making it
his
own
-99
On
November
23, 1995,
the day
after defendants'
deposition
testimony
Matthews, Alfonso,
of
minority
Boston
Police
The purpose
In
respect
testimony
of
is
replete
experiences that
the
service
horrific
as
officer.
She
personal
Leonard Marquardt
racial
in
with
her
defendant,
rampant
Marilyn Hinton
animus
which
had a
made
her
and
Area
humiliating
black
female
extended his
police
paradigmatic
Officers
of the
racism
as
illustrative
of the
cynical
are "easier to
The gist of
Gregory Matthews
[sic]
by
refer to
minorities
at
In
the
case of
Brian
Latson, his
testimony is probative
Marquardt, had
propensity
division
defendant,
Internal
Affairs.
Leonard Marquardt,
The
arrogated
In
the case
testimony is
of
Jose
and
his
Alfonso
as a
defense to
administrative
invented such
the criminal
charges against
him
by
"buy bust"
Area
operation
personnel
(all
-1010
defendants
except
Saia) for
a spurious
execution in Dedham.
We
have read
the deposition
testimony carefully.
testimony
of all the
deponents is
would not be
admissible.
information about
Area E
partners for
a year
areas
of Boston.
Because
told him.
for Marquardt
were
work in Area
Officer
that reason
E.
He did
and a
half, assigned
of Lio's advice,
alone
his
and
and they
to Spanish
Faherty at
all.
that
sting
the
motivated
testimony,
"buy-bust"
by Marquardt's
operation
racial
was
animus, there
spurious
and
is no
such
Nor
Officers
Marquardt,
Matthews
apparently
Marquardt
as a
and
worked
times.
Both described
who treated
minorities with
at different
bigoted racist
Hinton
under
E.
He testified
that either
minority
Marquardt or
officers.
anything suggesting
Detective Robinson
He testified
-1111
were targeting
further that
he did
not
think
the racial
enjoyed
climate at Area
working
questioning
by
there.
Lio's
Latson
counsel
would
be
grounds:
clearly
inadmissible
Latson's commanding
African-American), called
that he had
denied
heard that
E was
also
that
Lio
bad at
all and he
testified
was
under
upset
with
on
relevancy
officer, Deputy
him into
and
Clayburn (an
he had been
hearsay
steroids.
told him
Latson
a Christian Scientist
aspirin.
Latson
further
this inquiry
were
give.
It was Latson's
opinion that
he and Lio
a "street
source" for Latson, who told him that two detectives had been
inquiring
about
Marquardt
was
him.
asking
Latson testified
about
him
because
that
of
he
his
thought
close
the
"buy-bust"
racial
sting
operation
was
motivated
by
Marquardt's
of
which
the
depositions
of
Hinton
and
Matthews
are
-1212
probative, and
we fail
depositions.
There
to comprehend the
was
no
direct,
this or should
relevancy of
the
circumstantial,
or
Marquardt's
racial
Lio was
animus
"set up" as
toward minority
a result
officers.
of
The
That police
dealing in steroids.
John Antoniou
to make
the "buy."
He got
permission
from
sting.
who selected
Marquardt had
drugs.
reliable
his
superior officer
There is nothing
to
in the
Hispanic.
have been
excluding
the deposition
testimony on the
grounds of Federal
Evidence 404(a):
Rule
Rule
404.
404.
Character
Character
Admissible To
Admissible To
Evidence
Evidence
Not
Not
Other Crimes
Other Crimes
(a)
(a)
Evidence
Character
Character
of a
evidence generally.
evidence generally.
person's
character or
purpose
conformity
admissible for
of
proving
therewith
on
action
a
in
particular
occasion, except: . . .
-1313
Rule of
wrongs, or
wrongs, or
acts.
acts.
person in
the character
order to show
conformity therewith.
action in
It may,
however,
of
motive,
preparation,
or
absence
provided
accused,
opportunity,
plan, knowledge,
of
mistake
that
the
upon
advance of trial, or
excuses
request
prosecution in
court
or
intent,
identity,
accident,
by
the
a criminal
reasonable notice
in
pretrial
notice on
good
conformity therewith."
within any
there
is no evidence in
other
purposes,
the district
court correctly
any of the
excluded the
deposition testimony.
Appellant
Cartagena,
_________
882 F.2d
admitting the
a 42 U.S.C.
officers
argues
of
unwarranted
that
553 (1st
Gutierrez-Rodriguez
v.
________________________
Cir. 1989), is
precedent for
Gutierrez involved
_________
the
Commonwealth
shooting
of
the
of
Puerto
plaintiff,
Rico
rendering
for
him
the
paraplegic.
In
that
case the
district
court allowed
in
the police
-1414
plaintiff.
We affirmed
the admission,
stating:
the
Cartagena
supervisory
and
liability
Alvarez.
They
of
were not
conduct
participated
The
it
was
in the
evidence
period.
stressed
by
evidence
could
Cartagena
and
the
that
he
Gutierrez shooting.
was
conduct,
likely
not
used
As
was
district
only
prove
repeatedly
court,
be
Alvarez
to
used
to
the
against
show gross
and discipline
of Soto.
Id.
___
at 572.
This
depositions in this
cases
cited
by
not
case.
appellant
could be
is
precedent
admitting
in
support
more attenuated.
for
of
The
admitting
Even if an
the
other
the
argument
of motive,
the evidence was extremely weak for the reason already given.
II.
Whether the
denying
trial
judge erred
in
Plaintiff-Appellant's Motion
In
of the
trial.
This
issue does
not require
Lio's
extended discussion.
Appellant alleges
examination of Marquardt:
-1515
Q:
(By
any
Mr. Kelley):
other
Antoniou at
words
with
John
(By Marquardt):
Q:
Did
any
of
No.
the
other
any
words directly
Antoniou
that
with
you
overheard?
. . .
A:
Q:
A:
Yes.
Q:
Ms. Harris:
__________
Objection.
Hearsay, your
Honor.
The Court:
_________
A:
Overruled.
(indicating)
Adalberto
Lio.
Q:
A:
Q:
Did
he then move
on from that
Q:
he was willing
to try to
Lio, is
that correct?
A:
Yes, sir.
THE COURT:
give
the
Now, I
limiting
think I
instruction
should
that
[statements
received
of
to
Antoniou are]
prove
statements made,
the
but it
truth
charge of
without
people
information
.
.
if
is
in
or acting
cause against
even
the
bears upon
probable cause
probable
of
has to come
not being
some
various
of
hearsay
the
within
information that
is
-1616
being
passed along
and
is
taken
into
defendants, if
whether
action
is
appropriate.
MR. KELLEY:
I guess,
then,
is,
as
specifically
as
your
Court to
possible,
THE COURT:
Lio
did not
I'll do that.
object
to this
instruction; to
the
and
the circumstances
here, it
a criminal record.
was not
error for
knew
Under all
the district
court to
record.
The third
and final
issue raised by
appellant is
stated:
III.
in denying Plaintiff's
to
Permit
the
Massachusetts
Prosequi"
Motion In
Introduction
Superior
and
related
"Nolle
papers
under
applying the so
of
Court
Limine
201 and
called
of Rule 404(b) to
that evidence.
Some explanation
allowed Lio to
read to
is in order.
-1717
nolle prosequi
_____ ________
docket
entries.
The
jury was
then instructed
that these
entries
and one
Attorney giving
statement
was
by the Suffolk
clearly
hearsay;
the nolle
_____
it
was
two
County District
prosequi.
________
an
This
out-of-court
statement
therein.
at
offered
And as
for
the
truth
of
what
was
contained
Lio's counsel
records,
reports,
compilations,
offices
or
in
statements,
any
form,
agencies,
. . . . in civil actions
and
against
or
data
of
public
setting
forth,
and proceedings
the Government
in criminal
by law,
information
or
pursuant to authority
unless
other
the sources
of
circumstances
THE COURT:
finding
here?
that
to offer
MR. KELLEY:
recited
evidence
in
the
was
prose
compromised
by
itself,
police
THE COURT:
minute.
Where is
Wait a minute.
Wait a
that finding?
Read me
-1818
MR.
KELLEY:
deficiencies
in
officers
"Because
the
way Boston
controlled
and
of
Police
handled
the
case"
--
determination
"a
that's
-- "there
substantial
Commonwealth
is," therefore,
likelihood
cannot
factual
that
establish
the
prima
THE
trying to
COURT:
look
All right.
for some
Now,
finding
I'm
there
that
are
immaterial
to
this
this
case.
Findings
that
are
MR. KELLEY:
Of course.
THE
COURT:
an identification
so I
am
making
this
finding
issue in
to
This
even
is
reputation
that
an
issue
worse
evidence
that's
to, then
whether it's
this case or
immaterial
was
or
related
instead is
in
this case.
than
receiving
something
generalized
like
statement
So,
that are
The
in this case.
It
aspects
concerned
with
whether
to be
materiality
factual
to the
finding that
issues in
the
It
has
this case
-1919
(1) precisely
affect the
likelihood
an inference in this
case on
to be decided by the
MR. KELLEY:
Under subsection
(C),
report
official who is
and report.
on
the
required to
part of
an
investigate
THE
COURT:
If
the official
were
that
would
involved in
this
be
an
issue that
case, but
that's
is
not
MR.
Honor.
KELLEY:
No,
it
THE COURT:
isn't, your
for it
to
I don't
of any
an issue in this
be admissible
in
receive evidence
kind, witnesses,
this
in this
direct or
There's
official here
issue
here.
that
has made a
will
be
for
that the
finding on
the
no
jury
an
to
MR.
KELLEY:
your Honor:
The next
paragraph,
necessary
to
and civilian
proving
the
Commonwealth's
case
are
directly
submit,
your
Honor, that's
the
THE
COURT:
Well,
wait a
minute.
is -- in
If I
receiving
-2020
there are
I
tell this
resolve,
jury:
"That's for
else.
you to
Not for
We affirm
Attorney's
the court's
exclusion
of the
District
colloquy.
We
sanctions.
We deny it.
The judgment
of
the district
court is
affirmed.
affirmed.
________
-2121