Summary
finding that an officer lacking personal knowledge to establish probable cause may rely on information provided by fellow officers
Summary of this case from Earle v. City of New YorkOpinion
06 Civ. 7637 (SAS).
May 28, 2008
For Plaintiff:, Michael Colihan, Esq., Brooklyn, New York.
For Defendants:, Prathyusha Reddy, Sumit Sud, Assistant Corporation Counsel, New York, New York.
OPINION AND ORDER
Plaintiff Kareem Annunziata brings suit against the City of New York ("City") and Detectives Patrick M. Henn, Edward Bowler, Kevin Gasser and Matthew Walker alleging false arrest, malicious prosecution, and negligent hiring, training and supervision under both federal and state law. Defendants move for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56(c), seeking to dismiss the Monell claim and state law negligent hiring claim against the City, the false arrest claim against Detectives Walker and Gasser, and the malicious prosecution claims against Detectives Walker and Gasser. For the following reasons, defendants' motion for partial summary judgment is granted.
Detective Edward Bowler has failed to appear in this action.
"The defendants, without a warrant and without probable cause, falsely arrested, falsely imprisoned, maliciously prosecuted violated the civil rights of the plaintiff." Complaint ¶ 1. Plaintiff's federal claims are brought pursuant to 42 U.S.C. § 1983 ("section 1983"). See id. ¶ 2.
Defendants separately move to dismiss the false arrest claim against Detective Gasser in a letter which attempts to correct an error in the deposition transcript of Detective Gasser's deposition. See 5/1/08 Letter from Assistant Corporation Counsel Prathyusha Reddy at 1 (stating that page 19 of Gasser's deposition transcript incorrectly states that Gasser was told that "Bruce is the shooter" where, in actuality, Gasser testified that he was told that "Boozer," a/k/a Kareem Annunziata, was the shooter). Plaintiff objects to this correction as "untimely, unexplained, and made without a sworn affirmation from Gasser." 5/5/08 Letter from Michael Colihan, plaintiff's counsel, at 2. Plaintiff also objects to defendants' request to make a further summary judgment motion on behalf of Detective Gasser. See 5/9/08 Letter from Colihan at 2. Because I agree with plaintiff, defendants' proposed correction to Detective Gasser's deposition transcript is hereby rejected. Moreover, Detective Gasser's request for leave to move for summary judgment with respect to plaintiff's false arrest claim is denied. Nonetheless, summary judgment is granted, sua sponte, in Detective Gasser's favor with regard to this claim. However, the Court does not grant summary judgment on the ground raised by defendants — the so-called "fellow officer" rule — but instead finds the qualified immunity argument raised by Detective Walker to be equally applicable to Detective Gasser. See infra Point III.A.2.
The claims that remain are federal and state law claims of false arrest and malicious prosecution against Detective Henn and respondeat superior claims against the City, should plaintiff prevail on his state law claims. See Memorandum of Law in Support of Defendants' Motion for Partial Summary Judgment ("Def. SJ Mem.") at 2, 6.
Defendants also move, in limine, to preclude plaintiff from introducing at trial the following three pieces of evidence: (1) Bruce Mitchell's testimony in plaintiff's criminal trial; (2) taped conversations between Mitchell and Jennifer Sandman, an attorney for a co-defendant in the criminal trial, from August 2005; and (3) Mitchell's handwritten and notarized statement dated October 19, 2005 (collectively, the "Mitchell Recant Statements"). In the alternative, if any of these items are admitted into evidence, defendants request that certain statements made by Mitchell to several Assistant District Attorneys ("ADAs") in the Kings County District Attorney's Office be deemed admissible. For the foregoing reasons, defendants' motion in limine is granted in part and denied in part.
In particular, defendants have identified ADA Daniel Blouin and ADA Joseph Tillman as potential witnesses. See 5/21/08 Letter from Assistant Corporation Counsel Prathyusha Reddy ("Reddy Ltr."). The sum and substance of the ADAs' proposed testimony is that prior to testifying at plaintiff's criminal trial, Mitchell told ADAs Tillman and Blouin that he was afraid to testify against plaintiff for fear of retaliation by plaintiff and/or plaintiff's associates. See id. Hereinafter, the statements made to the ADAs will be collectively referred to as the "Mitchell ADA Statements." Defendants argue that the Mitchell ADA Statements are admissible as prior inconsistent statements under Federal Rule of Evidence 806 "("Rule 806") to impeach those Mitchell Recant Statements that are admitted into evidence. See id. at 1-2. Alternatively, defendants argue that the Mitchell ADA Statements are admissible to show Mitchell's then existing state of mind ( i.e., his subjective fear of plaintiff) under Federal Rule of Evidence 803 ("Rule 803"). See id. at 2-3. Finally, defendants argue that the Mitchell ADA Statements are admissible under the catchall exception found in Federal Rule of Evidence 807 ("Rule 807") as they carry independent guarantees of trustworthiness. See id. at 3.
I. BACKGROUND
On August 29, 2005, at approximately 5:00 p.m., a shooting took place on East 51st Street, Brooklyn, New York. A stray bullet struck and wounded a fifteen year old girl, Monique Anderson (an innocent bystander who never saw the person who shot her). This shooting was investigated by Detectives Henn, Walker and Gasser of the 67th Precinct of the New York City Police Department ("NYPD"). After learning of the shooting, Detectives Gasser and Walker went to the scene of the crime to interview witnesses. Detective Henn remained at the 67th Precinct, where he interviewed a purported witness, Bruce Mitchell, who identified plaintiff as one of the shooters. Mitchell was allegedly pressured into repeating this false accusation before a grand jury in September 2005. The grand jury indicted plaintiff, charging him with various counts of assault, reckless endangerment, and criminal possession of a weapon. At plaintiff's criminal trial, in June 2006, Mitchell recanted his prior testimony identifying plaintiff as a shooter, which led to plaintiff's release from custody, approximately nine months after his arrest.
See Defendants' Local Civil Rule 56.1 Statement of Undisputed Facts ("Def. 56.1 Stmt") ¶ 1. Because plaintiff did not properly respond to Defendants' Rule 56.1 Statement, the facts contained therein are deemed admitted. See Berdugo v. City of New York, 03 Civ. 7319, 2004 1900357, at *1 n.l (S.D.N.Y. Aug. 24, 2004) ("Southern District of New York (`S.D.N.Y.') Local Rule 56.1(b) requires that a party opposing summary judgment include `a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.' If the non-movant fails to controvert any numbered paragraphs with `a correspondingly numbered paragraph,' those numbered paragraphs will be `deemed to be admitted.'" However, defendants' papers are not a model of clarity either. For example, Defendants' Rule 56.1 Statement references pages to Exhibit B which were not included as part of that Exhibit. See, e.g., Def. 56.1 Stmt ¶ 4 (referencing non-existent pages 20 and 22-23 of Exhibit B). Furthermore, the Declaration of Jordan M. Smith in support of defendants' motion for partial summary judgment ("Smith SJ Decl."), Assistant Corporation Counsel, misidentifies some of the exhibits attached thereto. See, e.g., Smith SJ Decl. ¶ 11 ("Attached as Exhibit I is a New York City Police Department document, Complaint Follow Up Informational"); id. ¶ 12 ("Attached as Exhibit J is a copy of Kings County Grand Jury Indictment 6463/2005"). In actuality, Exhibit I is the Grand Jury Indictment while Exhibit J is the Criminal Court Complaint signed by Detective Henn. Given the carelessness exhibited by both counsel, this Court will refer to the source documents and the parties' memoranda of law when necessary.
See Def. 56.1 Stmt ¶¶ 2-3.
See id. ¶ 4.
See id. ¶ 5.
Plaintiff claims that during this interrogation, Detective Henn coerced Mitchell into falsely accusing plaintiff as one of the shooters. See 8/30/05 Statement by Detective Henn, Smith SJ Decl., Ex. J ("The deponent is informed by Bruce Mitchell that, at the first above time and place, a public street, informant observed defendant Annunziata fire what appeared to be a black revolver at an unapprehended male. . . .").
See Mitchell's Grand Jury Testimony, First Declaration of Michae[l] Colihan Containing Confidential Material in opposition to defendants' motion for partial summary judgment ("Colihan SJ Decl."), plaintiff's attorney, Ex. 16 at 18 (Mitchell testifying that Annunziata pulled out a black revolver and opened fire toward Church Avenue); id. at 21 (Mitchell testifying that Annunziata went back to his house and placed a black revolver in the car that was in Mitchell's backyard).
See Kings County Grand Jury Indictment No. 6463/2005, Smith SJ Decl., Ex. I (charging two counts of Assault in the First Degree, three counts of Assault in the Second Degree, one count of Assault in the Third Degree, one count of Reckless Endangerment in the First Degree, one count of Reckless Endangerment in the Second Degree, two counts of Criminal Possession of a Weapon in the Second Degree, and two counts of Criminal Possession of a Weapon in the Third Degree).
See Plaintiff'[s] Memorandum of Law in Opposition to Defendants['] Motion for Partial Summary Judgment ("Pl. SJ Mem.") at 6 ("At the plaintiff's underlying criminal trial Bruce Mitchell, the sole witness against him, recanted under oath and in open court before a jury and stated the police had forced him to falsely testify against the plaintiff. The District Attorney made no effort to rehabilitate him with his grand jury testimony despite prompting from the Court. The matter was dismissed and the plaintiff was released."). Contrary to the statement by plaintiff's counsel that the "trial transcript is annexed . . . to the declaration of Jordan Smith as Exhibits `B' and `C,'" id., excerpts of the trial transcript are included as Exhibits B and C of the Smith Declaration in support of defendants' motion in limine, not the Smith Declaration in support of defendants' motion for partial summary judgment.
See Pl. SJ Mem. at 6 ("[P]laintiff was held in jail for a little over nine months.").
After interviewing Mitchell, Detective Henn called Detective Gasser on his cellular phone at the scene of the incident. It was Detective Walker's understanding that Detective Henn verbally informed Detective Gasser that plaintiff was a suspect in the investigation and should be apprehended. Following Detective Henn's instructions, Detectives Walker and Gasser arrested plaintiff at approximately 7:20 p.m. on August 29, 2005. Neither Detective Walker nor Detective Gasser testified at plaintiff's criminal trial. As noted above, the Criminal Court Complaint was signed by Detective Henn.
See Def. 56.1 Stmt ¶ 6.
See id. ¶ 7.
See id. ¶ 8.
See id. ¶¶ 9-10.
See id. ¶ 11. See also Criminal Court Complaint, Smith SJ Decl., Ex. J ("The deponent is informed by Bruce Mitchell that, at the first above time and place, a public street, informant observed defendant Annunziata fire what appeared to be a black revolver at an unapprehended male. . . .").
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." An issue of fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" A fact is material when it "`might affect the outcome of the suit under the governing law.'" "It is the movant's burden to show that no genuine factual dispute exists."
Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
McCarthy v. Dun Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (citing Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005)).
Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)).
In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, the non-moving party must do more than show that there is "`some metaphysical doubt as to the material facts.'" The non-moving party "`may not rely on conclusory allegations or unsubstantiated speculation.'" However, "`all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.'"
Higazy, 505 F.3d at 169 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
Jeffreys, 426 F.3d at 554 (quoting Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2002)).
McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)).
In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party's favor. However, "[i]t is a settled rule that `[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.'" Summary judgment is therefore inappropriate "`if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party.'"
See Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 456 (2d Cir. 2007) (citing Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997)).
McClellan, 439 F.3d at 144 (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)). Accord Anderson, 477 U.S. at 249.
American Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315 (2d Cir. 2006) (quoting Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002)).
III. DISCUSSION
1. Claims Against the City of New York
A. Defendants' Summary Judgment Motion a. Plaintiff's Monell Claim
Plaintiff's Complaint alleges that the "City was careless reckless and negligent in the selection, investigation, hiring, training, supervision and direction of their employees, and in particular, the individually named defendants." To the extent that this allegation seeks to impose municipal liability under section 1983, it is dismissed. A municipality may be held liable as a "person" under section 1983 if the municipality itself was somehow at fault. To establish municipal liability under section 1983, "the Second Circuit requires a plaintiff to prove: (1) `the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries;' and (2) `a causal connection — an affirmative link between the policy and the deprivation of his constitutional rights.'"
Complaint ¶ 26, Ex. A to the Smith SJ Decl.
See Monell v. Department of Soc. Servs., 436 U.S. 658, 690-91 (1978) ("[A]lthough the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 `person,' by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels.").
Mandal v. City of New York, No. 02 Civ. 1234, 2006 WL 3371795, at *1 (S.D.N.Y. Nov. 20, 2006) (quoting Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (alterations omitted)).
Plaintiff has offered no evidence of any policy, practice or custom that the City engages in with respect to the hiring, training, supervision or direction of its employees. Plaintiff cannot rely on a single incident of police misconduct, namely, the coercion of Bruce Mitchell by Detective Henn, to create a material issue of fact with regard to any of these theories of liability. An isolated incident will not suffice to establish a municipal policy or custom, especially where the incident did not involve municipal actors at the policy-making level. Accordingly, plaintiff's Monell claim against the City is dismissed.
Nor did plaintiff respond to defendants' arguments regarding the City in his opposition papers.
See Oklahoma v. Tuttle, 471 U.S. 808, 824 (1985).
b. Plaintiff's State Law Negligent Hiring Claim
The same paragraph in plaintiff's Complaint that arguably raises a Monell claim could be interpreted as raising state law claims against the City for negligently hiring, training, retaining, and/or supervising its NYPD officers. However, because all of the individual defendants were acting within the scope of their employment when plaintiff was arrested, plaintiff's claims of negligent hiring, training, retaining and supervision are barred.
See Def. SJ Mem. at 6.
A claim for negligent hiring or supervision can only proceed against an employer for an employee acting outside the scope of her employment. Where an employee acts within the scope of his or her employment, the employer generally is held liable for all the employees' torts under the doctrine of respondeat superior. Accordingly, under the theory of respondeat superior an employer is liable for any damages caused by an employee's negligence, and no claim may proceed against the employer for negligent hiring or retention.
Rowley v. City of New York, No. 00 Civ. 1793, 2005 WL 2429515, at *12 (S.D.N.Y. Sept. 30, 2005) (quotation marks and citations omitted).
Rowley v. City of New York, No. 00 Civ. 1793, 2005 WL 2429515, at *12 (S.D.N.Y. Sept. 30, 2005) (quotation marks and citations omitted).
Thus, if Detective Henn is found liable to plaintiff on his state law claims, the City will be derivatively liable for the acts of Detective Henn, not for its hiring, training, retaining or supervision of that Detective.
2. False Arrest Claim Against Detectives Walker and Gasser
"A section 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law." In order to state a claim for false arrest under New York law, a plaintiff must prove the following four elements: (1) defendant intended to confine plaintiff; (2) plaintiff was conscious of the confinement; (3) plaintiff did not consent to such confinement; and (4) the confinement was otherwise not privileged. Probable cause is, however, a complete defense to a claim of false arrest.
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
See Savino v. City of New York, 331 F.3d 63 (2d Cir. 2003).
See Beck v. Ohio, 379 U.S. 89, 93 (1964).
Detectives Walker and Gasser argue that they had probable cause to arrest plaintiff based on New York's "fellow officer" rule. "The `fellow officer' rule provides that even if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer acts upon the direction of or as a result of communication with a superior or [fellow] officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest." The Appellate Division, Second Department has succinctly stated the rationale for this rule as follows:
People v. Ramirez-Portoreal, 88 N.Y.2d 99, 113 (1996) (quotation marks and citation omitted, alteration in original).
In recognition of the realities of modern-day law enforcement, the Supreme Court has stressed that law enforcement officers called upon to assist other officers are reasonably entitled to assume that the officers who requested the assistance possessed the requisite information to support the requested action. Therefore, it is unnecessary that the receiving officer possess the requisite information if the action is taken upon the direction of a brother officer who does possess information sufficient to justify the action.
People v. Lopez, 95 A.D.2d 241, 245 (2d Dep't 1983).
People v. Lopez, 95 A.D.2d 241, 245 (2d Dep't 1983).
Plaintiff argues against the application of the fellow officer rule on the ground that the police, as a whole, did not have probable cause to arrest him given the coercion exerted by Detective Henn on Mitchell. Plaintiff is correct. Because Detective Henn did not have probable cause to arrest plaintiff, he could not confer the requisite probable cause to Detectives Walker or Gasser. A contrary finding would effectively permit the NYPD to insulate itself from false arrest claims by sending uninformed officers to make arrests while the more knowledgeable officers remain at the precinct house.
But this does not mean that Detectives Walker and Gasser can be penalized for making what they believed to be a proper arrest.
[A] police officer is entitled to qualified immunity if it was objectively reasonable for him to believe that his actions did not violate plaintiff's clearly established rights. A police officer is entitled to rely on the contents of a fellow officer's radio report and to presume that a statement alleging criminality is justified by probable cause. Therefore, while an arrest may be found unconstitutional if probable cause was in fact lacking, an officer who participates in the arrest is nonetheless immune from suit in his or her individual capacity under the doctrine of qualified immunity if it was objectively reasonable for him to rely on a fellow officer's report indicating the existence of probable cause.
Micalizzi v. Ciammara, 206 F. Supp. 2d 564, 577 (S.D.N.Y. 2002) (citations omitted).
Because Detective Gasser stands in the same shoes as Detective Walker, this Court will consider, sua sponte, whether summary judgment should be granted to Detective Gasser, as well as Detective Walker, with respect to plaintiff's false arrest claims.
Micalizzi v. Ciammara, 206 F. Supp. 2d 564, 577 (S.D.N.Y. 2002) (citations omitted).
Here, Detective Henn called Detective Gasser, who informed Detective Walker that Mitchell identified plaintiff as a shooter. Plaintiff's opposition to the instant motion, based on Detective Gasser's deposition testimony at page nineteen, is of no avail. On that page, Detective Gasser testified as follows: "He [Henn] told me um — he called me on my cell phone um — um — we were on a shooting scene and told me um — Bruce Mitchell — I have Bruce Mitchell here. He said, Bruce is the shooter." As transcribed, this testimony does not make any sense. If the "He" referred to in the last sentence is Mitchell, it would mean that Mitchell confessed to the crime, which he obviously did not. Nor does the testimony make sense if the "He" is Detective Henn. If that were the case, Detective Henn would be informing Detective Gasser that Mitchell, who Henn had in custody, was the shooter while at the same time instructing Detective Gasser to arrest Annunziata. Thus, this excerpt from the deposition testimony cannot create a genuine issue of material fact. Moreover, this excerpt must be contrasted with Detective Gasser's later testimony, where he stated:
Colihan SJ Decl., Ex. 12, at 19. As noted above, defendants seek to correct this testimony by changing the last sentence to: "He said, Boozer is the shooter."
A. He [Henn] said um — are you familiar with Boozer? I told him, yes. From what I remember, he said, Bruce Mitchell is saying he [Boozer] is the other shooter.
Q. And did you have any other conversation with him?
A. Basically um — just reassured — you know, I said, is he [Boozer] good to go? Meaning, is he [Boozer] good, if I see him, to bring him in. He [Henn] said, yes.
Smith SJ Decl., Ex. C, at 50.
Smith SJ Decl., Ex. C, at 50.
Accordingly, plaintiff has offered no evidence to prove that either Detective Walker or Detective Gasser had any reason to disbelieve Detective Henn's statement that Annunziata was the shooter or disobey Detective Henn's command to arrest Annunziata.
Thus, it was objectively reasonable for Detectives Walker and Gasser to believe that probable cause to arrest plaintiff existed even if, in actuality, it did not. "Plausible instructions from a superior or fellow officer support qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for his actions exists ( e.g. a warrant, probable cause, exigent circumstances)." Accordingly, Detectives Walker and Gasser are entitled to qualified immunity, under both federal and state law, from plaintiff's false arrest claims.
Anthony v. City of New York, 339 F.3d 129, 138 (2d Cir. 2003).
3. Malicious Prosecution Claims Against Detective Walker and Gasser
"To state a claim under New York law for the tort of malicious prosecution, a plaintiff must show: (1) that the defendant commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in the plaintiff's favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice." With regard to the first element, "plaintiffs have demonstrated that [police] officers initiated criminal proceedings by having the plaintiff arraigned, by filling out complaining and corroborating affidavits, and by signing felony complaints." However, where a police officer's involvement is limited to making the initial arrest, it is
Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003).
Mitchell v. Victoria Home, 434 F. Supp. 2d 219, 227 (S.D.N.Y. 2006).
well settled that the chain of causation between a police officer's unlawful arrest and a subsequent conviction and incarceration is broken by the intervening exercise of independent judgment. At least that is so in the absence of evidence that the police officer misled or pressured the official who could be expected to exercise independent judgment.
Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999).
Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999).
Here, it was Detective Henn who signed the allegedly false Criminal Complaint against plaintiff, which contains the allegedly coerced statement from Mitchell. Detectives Walker and Gasser merely arrested plaintiff, and took no part in the subsequent criminal proceedings. Nor has there been any showing of malice on their part in arresting plaintiff. Thus, neither can be held liable for malicious prosecution. Accordingly, plaintiff's malicious prosecution claims against Detectives Walker and Gassser are dismissed.
Plaintiff states that Walker is mentioned by name in the Mitchell audiotape as one of the officers who coerced Mitchell into falsely accusing plaintiff. See Pl. SJ Mem. at 17. However, upon review of this audiotape transcript, Mitchell merely states that Walker and Henn were the two detectives who interrogated him. See Colihan SJ Decl., Ex. 8, at 11. When Mitchell delves into the details of the statement he gave to a detective, he speaks in the singular, thus implying that only one detective (Detective Henn) coerced him. See id. ("After the first time when he was interrogating me, he got tired so he left me and went to interrogate the rest of the people, so he took me out of there and put me in a cell and he interrogated everybody else. And then when he came up the next time he was like, oh one of your friends confessed already to the gun and all this blah, blah, blah. . . .").
B. Defendants' Motion in Limine
1. The Mitchell Recant Statements
The core of plaintiff's case is that Mitchell recanted his earlier statements identifying Annunziata as one of the shooters because he was coerced by the police into giving those statements. Mitchell's recantation consists of the following three items: (1) testimony at Annunziata's criminal trial; (2) audio-taped conversations; and (3) a handwritten and notarized statement. At trial, Mitchell testified as follows on direct examination by the prosecutor:
Q. I want — after you were arrested, did you give a statement to the police?
A. Yes, sir.
Q. What did you tell the police?
A. I told them I had nothing to do with it.
Q. Did you give them any other statements?
A. Yes, sir.
Q. What else did you tell them?
A. That what happened [sic]. I told them what they wanted to hear, sir.
Q. What was that?
A. That I had nothing to do with it.
Q. What did you — what did they want to hear?
A. That somebody was shooting.
Q. Who was that somebody?
A. Kirk Lapaiz, Desty Ephraim and Kareem Annunziata.
Q. You told them you saw Kareem Annunziata shooting?
A. Yes, sir.
Smith Declaration in Support of Defendants' Motion in Limine ("Smith MIL Decl."), Ex. B at 137-38.
Smith Declaration in Support of Defendants' Motion in Limine ("Smith MIL Decl."), Ex. B at 137-38.
Mitchell further testified, with regard to coercion, as follows:
Q. Did you ever testify that you saw the defendant holding one of those guns?
A. Yes, sir.
Q. Why did you testify to that?
A. Because I was forced under pressure, sir.
Q. Were you lying then?
A. Yes, sir.
Id. at 140-41.
Id. at 140-41.
On cross-examination by Annunziata's counsel, the following colloquy ensued:
Q. Is it your testimony here in Court under oath —
A. Yes, sir.
Q. — that you did not see Mr. Annunziata with a gun; is that correct?
A. Yes, sir.
Q. Is it your testimony here under oath that you did not see Mr. Annunziata place a gun in the car; is that correct?
A. I didn't see him do nothing like that.
Q. But did you ever tell that to the police?
A. Yes, sir.
Q. Did the police tell that to you, sir?
A. They told that to me, sir.
Q. When you were questioned by the police, did you feel pressured by the police?
A. Yes, sir.
Q. Tell us how you felt pressured by the police?
A. Because they said my mom's house could get —
Id., Ex. C at 143. The prosecutor objected at this point, cutting short Mitchell's explanation of how the police coerced him into testifying against plaintiff.
Id., Ex. C at 143. The prosecutor objected at this point, cutting short Mitchell's explanation of how the police coerced him into testifying against plaintiff.
The judge then excused the jury. The prosecutor made no attempt to rehabilitate Mitchell, his main witness. The prosecutor rested his case, which was then dismissed by the Court.
The second category of Mitchell Recant Statements consists of audio taped conversations between Mitchell and Jennifer Sandman, an attorney who represented one of plaintiff's co-defendants in the criminal trial. On August 30, 2005, one day after the shooting, Mitchell left the following voice mail message for Sandman:
During the course of plaintiff's criminal trial, the People stipulated to the accuracy of these recordings. See Colihan MIL Decl., Ex. 2 at 121 (when asked whether there is any evidentiary issue regarding the tape, ADA Joseph Tillman responded: "The transcript that was provided to the People is an accurate transcription of the audio-taped conversations in question except for the omission of a telephone conversation between Mr. Mitchell's mother and I believe Ms. Salman [sic]. Other than that, it's accurate.").
Um, yesterday we was arrested and the police officers took down the wrong story, that I told them and they trying to testify, they trying to use my story against my friend and it's not true. So I just wanna correct my story cause the police told it wrong and can you call me back please, thank you, at . . . Thank you.
Id., Ex. 8 at 1.
Id., Ex. 8 at 1.
When Sandman returned Mitchell's call, they spoke of the circumstances surrounding the shooting.
JS: Good. And what about Ephraim or Kareem, did you seem them fire a gun?
BM: They were in my backyard, and I don't even know where Boozer came from.
JS: Who's Boozer?
BM: Kareem
JS: What do you mean you don't know where he came from?
BM: I never even seen him, I never seen him, I couldn't even see him down the block, even if he was down the block.
JS: Now I'm confused, you didn't see who?
BM: Um, Kareem.
JS: He wasn't in the backyard?
BM: Nah.
***
JS: Did you ever see him [Annunziata] fire a shot?
BM: No.
Id. at 7.
Id. at 7.
Later in the conversation, Mitchell explained how he was coerced by the police.
JS: OK, just so I make sure that there's nothing bad going on, are you being threatened by anybody, is anyone telling you to say something?
BM: Yes ma'am.
JS: Tell me about that.
BM: The detective, ma'am.
JS: What did the detective say?
BM: He said oh I know what happened, blah, blah, blah, telling me you better start talking, blah, blah, blah, and he slapped me miss.
JS: Really?
BM: Yeah.
* * *
JS: OK. Are you being threatened at all, I just have to ask you this, by Kirk Lapaix?
BM: Are you what?
JS: Are you being threatened by Kirk Lapaix?
BM: No ma'am, that's a good friend of mine. Ma'am I know his mother, I know the whole family, ma'am.
JS: OK, what about by Ephraim or by Kareem?
BM: I know them too ma'am.
JS: OK, I just have to ask that to make sure.
BM: Yeah.
Id. at 9.
Id. at 9.
The last Mitchell Recant Statement is a three-page, handwritten statement, dated October 19, 2005, and notarized. An attorney for one of Annunziata's co-defendants in the criminal trial requested the statement. In that statement, which does not specifically mention Annunziata, Mitchell writes: "I heard what sounded like a shooting but did not see anyone fire a gun." a. Federal Rule of Evidence 804(b)(1)
See Smith MIL Decl., Ex. H.
See Plaintiff'[s] Memorandum of Law in Opposition to Defendants['] Motion in Limine at 6.
Id. at 3.
In their moving papers, defendants argue that the testimony given by Mitchell in plaintiff's criminal trial is inadmissible as former testimony under Federal Rule of Evidence 804(b)(1) ("Rule 804(b)(1)"). "In order to admit prior testimony under Rule 804(b)(1), the proponent has the burden to show by the preponderance of the evidence that (1) the witness is unavailable; (2) the party against whom the testimony is offered is the same as in the prior proceeding; and (3) that that party had the same motive and opportunity to examine the witness." Defendants contend that the latter two requirements are not met here and, therefore, object to admission of Mitchell's former trial testimony under Rule 804(b)(1).
Rule 804(b)(1) excludes from the hearsay rule former testimony if the declarant is unavailable as a witness.
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Fed.R.Evid. 804(b)(1). It is undisputed that Mitchell is not available as a witness as he has failed to appear for a deposition after an Order Directing a Non Party Witness [Mitchell] to Appear at a Deposition ("Deposition Order") was served on Mitchell's mother at the home where she and Mitchell reside. See Memorandum of Law in Support of Defendants' Motions in Limine ("Def. MIL Mem.") at 5. Plaintiff seeks to hold Mitchell in contempt of Court for not complying with the Deposition Order but is uncertain as to the appropriate remedy.
United States v. Amato, 03-CR-1382, 2006 WL 1891119, at *2 (E.D.N.Y. June 27, 2006) (citing United States v. Salerno, 505 U.S. 317, 321 (1992)).
Defendants also object to admission of the audio taped and written statements on the ground that such statements are classic hearsay to which none of the hearsay exceptions apply. See Def. MIL Mem. at 4 ("[T]he audiotaped statements are classic hearsay because they are out of court statements offered for the truth asserted therein. These statements are subject to no hearsay exceptions and should not be admitted into evidence.").
With regard to the same party or predecessor in interest requirement, defendants cite several cases that discuss privity within the context of collateral estoppel. For example, defendants cite Brown v. City of New York, where the New York Court of Appeals held that
[i]t was error for the Appellate Division to have applied issue preclusion against defendant City of New York in this civil action for false arrest, false imprisonment and assault based on the dismissal of a criminal charge against defendant for resisting arrest which was prosecuted by the Queens County District Attorney. Identity of parties, an essential element for application of the doctrine of issue preclusion or collateral estoppel, was lacking here so that the determination made in the criminal case on the issue of the unlawfulness of plaintiff's arrest could not be held to bar the city from contesting the issue in the civil action. The city and the District Attorney are separate entities and . . . do not stand in sufficient relationship to apply the doctrine.
Brown was cited by the Second Circuit in Jenkins v. City of New York, where the plaintiff "filed a claim for damages under 42 U.S.C. § 1983 and New York law against the City of New York, the NYPD, and Detectives Mack, Parrino, Hunter and Schulman, asserting federal and state law false arrest claims, and various other claims." In Jenkins, during the course of state criminal proceedings, the state court found that the police did not have probable cause to arrest plaintiff at a co-defendant's apartment. In Jenkins' section 1983 action, the district court gave that state-court finding preclusive effect, thereby precluding the defendants from arguing that they had probable cause to arrest Jenkins. The Second Circuit disagreed, stating:
60 N.Y.2d 897, 898-99 (1983).
60 N.Y.2d 897, 898-99 (1983).
478 F.3d 76, 83 (2d Cir. 2007).
See id. at 85.
Detectives Mack, Shulman, Hunter and Parrino were witnesses in, but not parties to, Jenkins' criminal proceeding. The detectives are no more in privity with the State than the City was in Brown. For if the City is not in privity with the State, neither are the City's employees. It was therefore error for the district court to preclude defendants from asserting that they had probable cause to arrest Jenkins.
Id. at 85-86.
Id. at 85-86.
Notwithstanding the fact that Brown and Jenkins are collateral estoppel cases, I must agree with defendants that the prosecutor in plaintiff's criminal trial (the Kings County District Attorney's Office) and the defendants in the instant action (the City of New York and Detective Henn) are not the same parties, nor are they in privity with each other.
Moreover, even if the Kings County District Attorney's Office ("DA") can be considered a predecessor in interest of the present defendants, plaintiff cannot satisfy the motive and opportunity requirement of Rule 804(b)(1). In a section 1983 action alleging, inter alia, false arrest against a municipal police department and individual police officers, the plaintiff sought to introduce statements made by two witnesses, both of whom were deposed by the plaintiff in connection with the capital murder prosecution against him. During their depositions, both witnesses stated that they felt "pressured" and "threatened" by the police to implicate the plaintiff in the murder under investigation. The district court's decision to exclude the deposition testimony of these unavailable witnesses was affirmed on appeal.
See Hannah v. City of Overland, Missouri, 795 F.2d 1385, 1386-87, 1390 (8th Cir. 1986).
Id. at 1390-91. An assistant St. Louis County prosecutor, representing the State of Missouri, was present at those depositions. See id. at 1390.
As noted above, an attorney from the St. Louis County prosecutor's office represented the State of Missouri at the depositions. There were no representatives on behalf of any of the defendants herein present. Assuming arguendo that the State was a "predecessor in interest" of the defendants in the present action — a proposition that is by no means clear — the prosecutor did have an "opportunity" to develop the testimony of [the witnesses]. However, we do not believe that he had a "similar motive" to develop their testimony.
When the depositions were taken on May 21, 1982, [plaintiff] already had been indicted by a grand jury for capital murder, and was awaiting trial in the criminal prosecution. The State's case rested in large part on the testimony of Danny Beede, as well as on the corroborating statements of other witnesses, including [plaintiff]. The fact that two friends of [plaintiff] testified they were "threatened" and "pressured" by the police to implicate [plaintiff] in the murder was of little, if any, concern to the State at that time. The State apparently thought it had sufficient credible evidence to prove [plaintiff's] guilt beyond a reasonable doubt. The testimony of [the two witnesses] posed little danger, if any, to the State's case against [plaintiff]. We do not believe that the State had any significant motive, much less a "similar" motive, to develop the testimony of [the two witnesses] regarding threats by the police. It follows that the deposition testimony of [the two witnesses] would not have been admissible under Rule 804(b)(1). Accordingly, we hold that the District Court did not abuse its discretion in excluding the deposition testimony of [the two witnesses].
Id. at 1390-91.
Id. at 1390-91.
Here, as in Hannah, the DA had no motive to inquire about the alleged coercion exerted upon Mitchell by the police. Although the DA could have tried to rehabilitate Mitchell by introducing his grand jury testimony, the DA apparently made a strategic decision not to do so, perhaps to avoid eliciting damaging facts that could expose the City of New York to civil liability. Thus, once Mitchell recanted, for whatever reason, the DA had little motive to question him further. "If a fact is critical to a cause of action at a second proceeding but the same fact was only peripherally related to a different cause of action at a first proceeding, no one would claim that the questioner had a similar motive at both proceedings to show that the fact had been established (or disproved)." Given the disparities in motive in plaintiff's criminal trial and the instant action, Mitchell's former trial testimony is not admissible under Rule 804(b)(1).
United States v. DiNapoli, 8 F.3d 909, 912 (2d Cir. 1993).
But see Wright v. Kelly, No. 95-CV-0688H, 1998 WL 912026 (W.D.N.Y. Oct. 16, 1998), where the court found prior trial testimony from plaintiff's criminal case admissible in his section 1983 lawsuit. In admitting the testimony, the court distinguished Hannah.
Here, plaintiff seeks introduction of testimony taken at his criminal trial. The testimony directly concerns the December 12, 1994 incident at issue. In his prior testimony, plaintiff sought to show that his use of force against the officers, particularly Officer Backus, was justified as self-defense. The State sought to show that plaintiff threw the first blow and assaulted Officer Backus. In this case, plaintiff seeks to show that the defendants used excessive force against him and that his own use of force in response was justified. The issues are two sides of the same coin. I find defendants' attempt to isolate one blow from all the others to be artificial.
Plaintiff testified at a criminal trial where he took the stand in his own defense and was subjected to vigorous cross-examination. Because it was a criminal trial, the stakes were as high if not higher than the civil case, and the prosecutor had a very strong motive to develop the testimony. The prosecutor in the criminal case, and the defendants here, each seek to show that plaintiff, not the officers, initiated the use of force. I find that the motivations of the prosecutor in the criminal trial and the defendants here are similar, and that the prosecutor can be viewed as a "predecessor in interest." The testimony is therefore admissible.Id. at *6 (footnote omitted). I find the instant case to be more like Hannah than Wright.
b. Federal Rule of Evidence 804(b)(3)
In his opposition to defendants' motion in limine, plaintiff seeks to admit the Mitchell Recant Statements as statements against interest under Federal Rule of Evidence 804(b)(3) ("Rule 804(b)(3)"). In short, by recanting his identification of plaintiff as one of the shooters, Mitchell admitted that he committed perjury before the grand jury. This admission subjects him to criminal liability for perjury. Thus, according to plaintiff, Rule 804(b)(3) applies.Defendants argue that plaintiff has ignored the last sentence of Rule 804(b)(3), which requires corroborating circumstances for statements that: (1) expose the unavailable declarant to criminal liability; and (2) are being offered to exculpate the accused. Defendants point out that the Second Circuit has held that "the burden is put upon the accused to justify admission of the exculpatory statement by showing `corroborating circumstances' that indicate `the trustworthiness' of the statement [and that] corroboration must `clearly' indicate such trustworthiness."
United States v. Salvador, 820 F.2d 558, 561 (2d Cir. 1987).
The corroboration requirement appears to apply only in criminal proceedings, where the statements are "offered to exculpate the accused." Here, Mitchell's handwritten statement and trial testimony were not offered to exculpate Annunziata. Rather, these statements are now offered to prove that Mitchell's earlier statements were coerced which, in turn, supports plaintiff's false arrest and malicious prosecution claims. Thus, Rule 804(b)(3) applies without any corroboration requirement. Because Mitchell's sworn statements after he gave his grand jury testimony on September 1, 2005, could have exposed him to criminal liability for perjury, those statements are admissible under Rule 804(b)(3) as statements against interest.
c. Federal Rule of Evidence 807
Federal Rule of Evidence 807 ("Rule 807") is the residual exception to the rule against hearsay, previously contained in Federal Rule of Evidence 803(24). "To be admissible under Rule 807, the evidence must be (1) trustworthy, (2) material, (3) more probative than other available evidence, and must fulfill (4) the interests of justice and (5) notice."
See Silverstein v. Chase, 260 F.3d 142, 148-49 (2d Cir. 2001).
Id. at 149. See also United States v. Bryce, 208 F.3d 346, 350 (2d Cir. 2000) (stating that Rule 807 "permits admission of hearsay if (i) it is particularly trustworthy; (ii) it bears on a material fact; (iii) it is the most probative evidence addressing that fact; (iv) its admission is consistent with the rules of evidence and advances the interests of justice; and (v) its proffer follows adequate notice to the adverse party."); United States v. James, No. 02 CR 0778, 2007 WL 1579977, at *3 (E.D.N.Y. May 31, 2007) (same).
In United States v. Bryce, the Second Circuit upheld the prosecution's offer of an intercepted telephone conversation between a co-defendant, Darren Johnson, and a third party, Edwin Gomez (the "Johnson-Gomez tape") under the catchall hearsay exception found in Rule 807. On the Johnson-Gomez tape, Johnson repeats the defendant's claim that he has cocaine for sale and that he has already distributed some to others. Bryce challenged his conviction on the ground that the district court erred in admitting the Johnson-Gomez tape in violation of his rights under the Sixth Amendment's Confrontation Clause.
Bryce does not dispute that the statements in the Johnson-Gomez tape were material, that the declarants were unable to testify, or that the government complied with the Rule's notice requirement. Bryce's objection is that admission of the Johnson-Gomez tape violated the Sixth Amendment's Confrontation Clause and therefore could not be deemed to have advanced the interests of justice. The resolution of this argument is linked to an evaluation of trustworthiness. See Idaho v. Wright, 497 U.S. 805, 813-21 (1990) (indicating that under the Confrontation Clause, as under the hearsay rules, courts must evaluate the totality of the circumstances to determine whether a statement contains particular guarantees of trustworthiness that make the declaration especially worthy of belief[.]
Id. (parallel citations omitted).
See Bryce, 208 F.3d at 350.
See id.
See id. at 351. Here, there are no Confrontation Clause concerns as the Clause only applies in criminal proceedings. See Crawford v. Washington, 541 U.S. 36, 42 (2004) ("The Sixth Amendment's Confrontation Clause provides that, `[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'") (quoting U.S. Const. amend. VI). Even post- Crawford, these statements would be admissible as they are clearly not testimonial.
Id. (parallel citations omitted).
The court found that the statements made in the Johnson-Gomez tape had a high degree of trustworthiness based on the following factors: "i) the statements were obtained via a covert wiretap of which neither Johnson nor Gomez was aware; (ii) the statements were made during the same time period that Johnson was conversing with Bryce; (iii) Johnson's statements implicated both himself and Bryce as participants in a narcotics conspiracy; and (iv) Gomez was Johnson's colleague in the narcotics trade."
Id.
Unlike the Johnson-Gomez tape, the audio taped conversations between Mitchell and Jennifer Sandman do not reveal a high degree of trustworthiness for several reasons. First, the conversations were initiated by Mitchell by leaving several voice mail messages for Sandman, the attorney representing Kirk Lapaix, his friend and a co-defendant in the criminal trial. Sandman then returned his calls. Thus, Mitchell had an opportunity to rehearse his conversation with Sandman which he may have suspected was being taped. Second, Mitchell had a motive to lie about what he told the police. Rather than appear as a "snitch" or a "rat," Mitchell may have concocted his claims of coercion so that Sandman would relay them to her client. In this manner, Mitchell would appear to be "setting the record straight" with a person of authority, an attorney, on his own accord. Finally, there is a sense of urgency given the timing of the first call to Sandman, which was made the day after the shooting and before Mitchell testified before the grand jury. Thus, I find that the audio taped conversations between Mitchell and Sandman do not contain sufficient guarantees of trustworthiness to be admissible under Rule 807.
At the very least, Mitchell knew that Sandman was taking notes of their conversation. See Colihan MIL Decl., Ex. 8 at 2 ("Hang on Mr. Mitchell, I'm going to put you on speaker so that I can take notes better, ok?").
The situation is far different, however, with respect to Mitchell's written statement and trial testimony. In addition to being statements against interest, these statements are also admissible under Rule 807. With regard to the written statement, Mitchell initialed each page and signed the last page, after writing: "I have read this three page report and it is true." Furthermore, the statement was notarized by a public notary and is dated October 19, 2005, after Mitchell gave his grand jury testimony. Finally, the factual allegations contained in the statement are relatively neutral and matter of fact. Annunziata is not mentioned anywhere in the statement which merely avers that Mitchell "did not see anyone fire a gun." Thus, I find sufficient guarantees of trustworthiness to deem this statement admissible, in the alternative, under Rule 807.
Smith MIL Decl., Ex. H at 3.
So, too, do I find sufficient guarantees of trustworthiness with respect to Mitchell's trial testimony. Mitchell testified before a judge while under oath in a criminal proceeding. I find that the formalities of a trial, including the oath given to witnesses, the presence of a judge, and the transcription of testimony by a court reporter, provide sufficient guarantees of trustworthiness. Thus, in addition to being a statement against interest, Mitchell's trial testimony is admissible under Rule 807.
But see United States v. Hsia, 87 F. Supp. 2d 10, 19 (D.D.C. 2000) ("The oath taken by the declarants here is the only thing that raises the [grand jury] testimony of [the two witnesses] above the level of ordinary inadmissible hearsay, and that oath is not enough to allow the admission of the testimony in light of the other indicators undermining the truthfulness of these witnesses.").
2. The Mitchell ADA Statements
The Mitchell ADA Statements consist of statements Mitchell allegedly made to ADA Tillman and ADA Blouin. According to defendants, Mitchell told these ADAs that he was afraid to testify against Annunziata for fear of retaliation by Annunziata's associates. In particular, ADA Tillman declares, under oath, that "Mitchell stated, in sum and substance, that, on [August] 29, 2005, Mitchell personally observed the Plaintiff, acting-in-concert with others named in Indictment No. 6463/2005, commit the offenses charged therein." However, Mitchell "expressed an unwillingness to testify" to ADA Tillman. In the presence of ADA Blouin, ADA Tillman asked Mitchell why he was reluctant to testify. According to ADA Tillman, "Mitchell stated, in sum and substance, that Mitchell was concerned about testifying against Plaintiff because Mitchell feared that the Plaintiff's associates would personally harm Mitchell and Mitchell's family." In particular, ADA Tillman recalls that on June 9, 2006, the day Mitchell was scheduled to testify, Mitchell stated that he would refuse to testify because the night before, unnamed associates of plaintiff visited Mitchell's home and threatened to burn it down if he testified.
In addition, Mitchell allegedly made several statements to ADA Michael Vista to the effect that he saw plaintiff shooting a gun. See Reddy Ltr. at 2 n. 1. However, ADA Vista is out on military leave with no known certain date to return. See id. Because the trial is scheduled to begin in approximately three weeks, I am constrained to deny defendants' request to reserve the right to call ADA Vista as a trial witness.
5/21/08 Declaration of Assistant District Attorney Joseph Tillman ("Tillman Decl.") ¶ 9. The referenced Indictment charged Kareem Annunziata, Ephraim Desty and Kirk Lapaix with various counts of assault, reckless endangerment, and criminal possession of a weapon. See Indictment No. 6463/2005, 5/22/08 Letter from Michael Colihan, plaintiff's attorney, Ex. A.
Tillman Decl. ¶ 10
See id. ¶ 11.
Id.
See id. ¶ 12.
ADA Blouin corroborates ADA Tillman's recollection of Mitchell's statements. ADA Blouin declares, under oath, that Mitchell "informed [him] that he had personally witnessed Kareem Annunziata shooting a gun on a block of East 51st Street in Brooklyn on August 29, 2005." On June 9, 2006, in ADA Blouin's office, Mitchell stated that unnamed associates of plaintiff stopped by Mitchell's home and "threatened to burn his mother's house down." Furthermore, on June 8, 2006, the day before Mitchell was scheduled to testify and in the presence of both ADA Blouin and ADA Tillman, Mitchell allegedly "expressed concern for his safety out of fear of Annunziata." "Specifically, Bruce Mitchell indicated that he was concerned that the government could only maintain his safety while the criminal trial was pending, but not after the criminal trial was completed."
5/21/08 Declaration of Assistant District Attorney Daniel Blouin ¶ 6.
Id. ¶ 12.
Id. ¶ 10.
Id.
a. Federal Rule of Evidence 806
Defendants argue that if plaintiff is permitted to enter Mitchell's hearsay statements into evidence, then they are permitted to impeach such statements. According to defendants, the Mitchell ADA statements are prior inconsistent statements which are admissible under Federal Rule of Evidence 806 ("Rule 806"), which states as follows:
When a hearsay statement . . . has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain.
The evidence that plaintiff seeks to proffer, and which has been deemed admissible by this Court, consists of Mitchell's written statement that he did not see anyone firing a gun and Mitchell's former trial testimony that he had been coerced by the police into testifying against plaintiff. The evidence that defendants proffer are statements made by Mitchell to ADAs that were assigned to prosecute Annunziata's criminal case. Defendants' evidence directly contradicts the statements that plaintiff will introduce into testimony. Specifically, the Mitchell ADA Statements provide that Mitchell saw three people, including Annunziata, shooting guns; that Mitchell feared testifying against Annunziata; and that plaintiff's associates threatened to burn Mitchell's house down if he testified. Accordingly, the Mitchell ADA Statements are prior inconsistent statements that may be introduced to impeach the admissible Mitchell Recant Statements.
b. Federal Rule of Evidence 807
Defendants finally argue that the Mitchell ADA Statements are admissible under the catchall exception found in Rule 807. Defendants point out that the source of the Mitchell ADA Statements are two Assistant District Attorneys, both of whom are duty bound to uphold the law as officers of the Court. Moreover, the statements made to ADA Tillman bolster the statements made to ADA Blouin, and vice versa, given the consistency of their subject matter. Finally, the Mitchell ADA Statements are highly probative to the defense in this action; without such Statements, there would only be one-sided testimony of an unavailable declarant who is not subject to cross-examination. For the sake of completeness, and in the interest of justice, the Mitchell ADA Statements must be deemed admissible. Rule 807 provides an alternative ground to achieve this result.
Defendants argue, in the alternative, that the Mitchell ADA Statements are admissible under Federal Rule of Evidence 803(3). I need not address this argument given that I have found these statements to be otherwise admissible.
IV. CONCLUSION
For the foregoing reasons, defendants' motion for partial summary judgment is granted in full. Plaintiff's false arrest and malicious prosecution claims against Detectives Walker and Gasser are hereby dismissed. Plaintiff's Monell claim and state law negligent hiring claim against the City are also dismissed. Furthermore, defendants' motion in limine is granted in part and denied in part. Accordingly, Mitchell's handwritten statement and former trial testimony are admissible as are the Mitchell ADA Statements. The Clerk of the Court is directed to close these motions [Documents # 30 33]. The trial has been scheduled for June 23, 2008.
Detectives Walker and Gasser are therefore dismissed from this lawsuit.
The City may still be liable, under respondeat superior, should plaintiff prevail on his state law claims against Detective Henn for false arrest and/or malicious prosecution. See Def. SJ Mem. at 6 (stating that "[u]nder the theory of respondeat superior, an employer is liable for any damages caused by an employee's negligence").
SO ORDERED: