Opinion
Case No. 1:96-CV-662.
DATED: February 10, 2000.
ORDER
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Defendant's Motion for a New Trial or to Amend the Judgment and for a Stay of Proceedings (Dkt. No. 137) is DENIED.
OPINION
INTRODUCTION
Plaintiff Richard Johnson, a prisoner, sued two prison guards, Eric Howard and Brad Martyn, for an alleged beating which Plaintiff received while in prison. On October 4, 1999, a trial commenced. On October 8, 1999, the jury returned a verdict. The jury awarded Plaintiff $15,000 in actual or nominal damages, and $300,000 in punitive damages, against Defendant Howard on Plaintiff's Eighth Amendment claim (brought pursuant to 42 U.S.C. § 1983). The jury also awarded Plaintiff $15,000 in compensatory damages against Defendant Howard on Plaintiff's state law assault and battery claim. The jury did not find Defendant Martyn liable for any damages.
This matter is before the Court on Defendant Howard's Motion for a New Trial or to Amend the Judgment and for a Stay or Proceedings. Although Defendant Howard's Motion is not particularly clear, he appears to make three principal arguments. First, that the punitive damage award violated his Due Process rights and that a new trial should be ordered. Second, that the Court should order Plaintiff to remit some portion of the damage award. Third, that judicial errors, and resulting prejudice, require these arguments and denies Defendant's Motion.
I. DUE PROCESS
The Due Process Clause of the Fourteenth and Fifth Amendments prohibit the imposition of "grossly excessive" damage awards. See BMW of North Alabama v. Gore, 517 U.S. 5 59 (1996); TKO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993). Defendant Howard ("Defendant") argues that the punitive damage award in this case, $300,000, was "grossly excessive." The Supreme Court has identified three factors which courts should analyze to determine if a punitive damage award is "grossly excessive." See BMW of North Alabama v. Gore, 517 U.S. at 575. These factors are: (1) the degree of reprehensibility; (2) the ratio of punitive damages to actual, or potential, harm inflicted; and (3) other possible sanctions for comparable misconduct. Id.
The parties assume, without citation, that the "grossly excessive" standard applies to damage awards based upon federal law in the same way that it applies to awards under state law. The Court agrees because the due process clauses of both the Fourteenth and Fifth Amendment embody the same central principle. See Lee v. Edwards, 101 F.3d 805, 809 n. 2 (2d Cir. 1996) ("Although Gore examined the excessiveness of punitive damages awarded in a state court, the universal premise of Supreme Court's due process reasoning suggests that the same conclusions apply equally to the review of punitive damages awarded in federal court."); Florez v. Delbovo, 939 F. Supp. 1341, 1347 (N.D.Ill. 1996) ("[I]f a verdict would be unconstitutionally excessive if returned by a state court, it is difficult to see how the verdict would be permissible simply because it was returned by a federal jury."); Iannone v. Harris, 941 F. Supp. 403, 414 (S.D.N.Y. 1996).
The first factor identified by the Supreme Court as indicative of reasonableness is the degree of reprehensibility of defendant's conduct. BMW, 517 U.S. at 575. In BMW, the Supreme Court explained that some wrongs are inherently more blameworthy than others. Id. For example, "nonviolent crimes are less serious than crimes marked by violence or the threat of violence." Id. at 575-76. In addition, the Supreme Court explained that deliberate false statements, acts of affirmative misconduct, or concealment of evidence are indicators of reprehensible conduct. Id. at 576-80.
In BMW, the Supreme Court concluded that the failure of a luxury automobile manufacturer to inform a purchaser that the automobile had been repainted was not particularly reprehensible because there was no violence associated with defendant's conduct, and there were no affirmative efforts on the part of the defendant to deceive. Id.
By contrast, in this case all the indicators of reprehensible behavior identified in BMW are present. To begin with, Defendant's conduct was extremely violent. According to the evidence adduced at trial, Defendant punched Plaintiff in the head, kicked him in the chest, pushed him over a toilet, and held him up by his feet so that his neck and head were lodged between the toilet and the floor. This beating took place without provocation, in the face of repeated protests and calls for help by Plaintiff, and while Plaintiff was handcuffed and unable to defend himself. Additionally, there was evidence that Defendant, and others, attempted to cover-up the beating by altering prison records including door cards and log books.
With these considerations in mind, the Court believes that Defendant's conduct was highly reprehensible. In this case, the evidence indicates that Defendant beat a defenseless man whose only offense appears to have been that he was a prisoner and he had somehow offended the Defendant. The jury concluded that this beating deprived Plaintiff of his constitutional right to be free from cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. Given Defendant's position as a prison guard, and the trust and responsibility inherent in that position, Defendant's conduct was especially reprehensible.
The second method identified by the Supreme Court as useful in determining whether a punitive damage award is reasonable is an examination of the ratio between that award and the actual or potential harm inflicted. BMW, 517 U.S. at 580. In BMW, the Supreme Court explained that although there needs to be a "reasonable relationship" between punitive damages and compensatory damages, there was no formula or ratio that defined reasonableness. Id. at 582. The Supreme Court did note, however, that the crucial inquiry was not a comparison of the punitive damage award to the actual damages, but a comparison of the punitive damage award to the actual damages suffered plus " the harm likely to result from defendant's conduct." Id. at 581 (emphasis in original). Finally, the Supreme Court observed that "low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages." Id. at 582.
In BMW, the actual damages, $4,000, were extremely small in comparison to the punitive damage award, $2 million, and created a ratio of 500 to 1. There was no difference between the actual harm and the potential harm because the "tortuous plan," to the extent one existed, was fully implemented. Id. Finally, because the defendant's conduct in BMW was not particularly reprehensible (see above), the Supreme Court concluded that it was not an especially egregious act justifying a large punitive damage award. Id.
In the instant case, the actual damages resulting from the Eighth Amendment violation were $15,000 and the punitive damage award was $300,000. This creates a ratio of 20 to 1. While Defendant describes this ratio as unreasonable, application of the Supreme Court's reasoning in BMW undercuts Defendant's assertion. First this case appears to be precisely the type of case referred to in BMW where an egregious act results in only small compensatory damages but warrants a significant punitive damage award. While Defendant's beating may not have caused significant physical injury to Plaintiff, the malicious and wanton nature of Defendant's conduct makes it especially abhorrent. See Cooper v. Casey, 97 F.3d 914 (7th Cir. 1996) (upholding punitive damage award of $60,000 and noting that "an award of punitive damages proportioned to the low compensatory damages that were awarded would have a very meager deterrent effect, would fail to signal to the prison authorities that savage treatment of prisoners would not be tolerated, and would not be commensurate with the moral gravity of the defendants' actions.). Second, the trial testimony indicated that Defendant only stopped beating Plaintiff when he heard his supervisor nearing the prison cell. This fact indicates that the beating might well have continued had Defendant's supervisor not serendipitously arrived on the scene. As a result, the potential for injury was much more serious than the limited physical harms actually suffered. While the Court cannot know precisely what type of harm Defendant intended to inflict, and it is impossible to determine what kind of damage Defendant would have done had his supervisor not arrived, it seems certain that Plaintiff's injuries would have been more significant if Defendant's "tortuous plan" had continued. Therefore, because the proper inquiry is a comparison of the punitive damage award to the harm likely to result, the 20 to 1 ratio cited by Defendant is overstated.
In light of these considerations, the Court concludes that a comparison of the punitive award to the potential harm inflicted does not indicate that the punitive damage award in this case was grossly excessive. While Plaintiff's actual physical damages may have been small in comparison to the punitive damage award, the Court believes that it is reasonable in light of the Supreme Court's teachings in BMW.
The third method identified by the Supreme Court as useful in determining whether a punitive damage award is reasonable is to examine the severity of other possible sanctions which the defendant's conduct might invite. BMW, 517 U.S. at 583. This inquiry focuses on the extent to which other possible sanctions indicate that the underlying conduct is, or is not, serious enough to warrant a large punitive damage award. Importantly, the Supreme Court noted in BMW that the possibility of imprisonment indicated that the underlying conduct was serious and that a large punitive damage award might be justified. See generally Id.; Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23 (1991). In BMW, the most serious civil or criminal penalty for conduct similar to that engaged in by the defendant was a $2,000 fine. As such, the Supreme Court concluded that the underlying conduct was not so serious or problematic that a $2 million punitive damage award was justified. BMW, 517 U.S. at 583-84.
This figure refers to the maximum civil penalty in Alabama, the state in which the BMW case originated. Id. at 584.
In this Court's view, analyzing this third factor in relation to the instant case is inconclusive. On the one hand, in Michigan, a conviction for simple assault and battery carries with it the potential for ninety days incarceration and a small fine. See M.P.C. § 750.81. On the other hand, a conviction for Assault with Intent to do Great Bodily Harm Less than Murder carries with it a penalty of imprisonment for not more than ten years and a fine of $5,000. Id. at § 750-84. While the existence of even a small period of incarceration might, by itself, justify a substantial punitive damage award, this conclusion seems problematic because the appropriate sanction to use as a point of comparison is unclear. Therefore, the Court concludes that this third factor is inconclusive.
Based upon the foregoing analysis, the Court does not believe that the punitive damage award in the instant case violated Defendant Howard's due process rights.
II. REMITTITUR
Defendant argues that the Court should order remittitur because: (1) Defendant only makes $39,964 per year, (2) the compensatory damage award constituted double recovery; (3) there was no medical evidence of injury to sustain the compensatory damage awards; and (4) the punitive damage award was excessive. A court should grant remittitur only if "the award clearly exceeds the amount which, under the evidence in the case was the maximum that a jury could reasonably find to be compensatory for the plaintiff's loss." Bickel v. Korean Air Lines Co., 96 F.3d 151, 156 (6th Cir. 1996). Therefore, "[u]nless the award is (1) beyond the range supportable by proof or (2) so excessive as to shock the conscience, . . . or (3) the result of a mistake," a court must let the award stand. Id. Each of Defendant's arguments will be addressed in turn.
First, Defendant argues that because he only earns $39,964 per year, a $300,000 punitive damage award is excessive. Defendant waived this argument. Defendant had every opportunity to raise this point during trial and failed to do so. He failed to offer any evidence of his yearly income, he never asked the jury to take his financial condition into account when determining damages, and he never asked the Court to include a jury instruction that would have made it clear that a defendant's financial status could be considered when calculating punitive damages. The burden to take each of these steps lay with Defendant, not with the Court on a request for remittitur. See Morgan v. Woessner, 975 F.2d 629, 641 (9th Cir. 1992) ("It is well-settled that under federal law, defendants bear the burden of presenting evidence and proving financial worth."). Therefore, Defendant's first argument is without merit.
The Court's conclusion here is bolstered by the knowledge that Defendant may well be indemnified for any damages he is forced to pay to Plaintiff. See generally M.C.L.A. § 691.1408 (1999).
Second, Defendant argues that the compensatory damage awards were excessive because they constituted double recovery. The jury awarded $15,000 in compensatory damages for the Eighth Amendment violation and $15,000 in compensatory damages for the state law Assault and Battery violation. While the jury verdict form utilized in this case (which was jointly submitted by Plaintiff and Defendant (Dkt. No. 114)) is capable of a construction that double recovery was awarded, the Court specifically asked the jury whether the compensatory damages awarded on the separate counts were in fact separate damages or recovery for the same harm. The jury indicated that the awards were intended to be separate. (Transcript at 537-39). In light of this inquiry, and the jury's response, any defect in the jury form was cured and the possibility of double recovery avoided.
Third, Defendant Howard argues that the compensatory damage award was excessive because there was no medical evidence of injury. The evidence presented at trial, uncontradicted by Defendant, indicated that Plaintiff was kicked, punched, and pushed. This beating caused bruises and persistent pain in Plaintiff's shoulder and neck. Furthermore, according to the testimony, Plaintiff was extremely frightened during the beating and suffered emotional distress. This evidence is more than sufficient to support the award of $30,000 in total compensatory damages.
Defendant appears to argue that compensatory damages in this case should only include Plaintiff's medical expenses associated with Defendant's tortuous activity. This proposition is inconsistent with clearly established law. The Sixth Circuit has made it clear that when plaintiffs bring § 1983 claims asserting that their substantive rights have been violated, they may be compensated for tangible physical or economic injury, as well as a "wide array" of intangible "dignitary interests." See Brandon v. Allen, 719 F.2d 151, 154-55 (6th Cir. 1983) ( citing D. Dobbs, Law of Remedies § 7.3, at 528 (1973)), rev'd on other grounds Brandon v. Holt, 469 U.S. 464 (1985). Here, Plaintiff was beaten to the ground, suffered some small temporary injuries, persistent pain in his shoulder and neck, emotional harm, and endured the indignity of being beaten without any recourse or means of protection. In the Court's estimation, $30,000 did not excessively compensate these injuries.
Fourth, Defendant argues that the punitive damage award was excessive. The Court does not agree. Punitive damages are appropriate in section 1983 suits where there is evidence that the defendant's conduct was motivated by evil motive or intent, or when that conduct involved reckless or callous indifference to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 51 (1983). The primary purposes of punitive damages is to deter future conduct in violation of constitutional rights and to punish wrongdoers. See generally City of Newport v. Fact Concerts Inc., 453 U.S. 247, 267 (1991); Vetters v. Berry, 575 F.2d 90, 96 (6th Cir. 1978).
In the proceeding analysis, the Court has explained why Defendant's conduct was especially reprehensible. Defendant violently attacked an innocent and defenseless prisoner and then attempted to cover-up his conduct. In this Court's view, these facts demonstrate such a high degree of blameworthiness that a large punitive award was justified. See generally, Thorne v. Wise, 1995 WL 56652 (4th Cir. 1995) (upholding punitive damage awards in § 1983 excessive force case of $450,000); Ismail v. Cohen, 899 F.2d 183 (2d Cir. 1990) (upholding $150,000 punitive damage awards in § 1983 case); Gutierrez-Rodriguez v. Soto, 882 F.2d 553 (1st Cir. 1989) (upholding $600,000 in punitive damage awards in § 1983 excessive force case); Hughes v. Patrolmen's Benevolent Ass'n, 850 F.2d 876 (2d Cir. 1988) ($350,000 in punitive damage awards in § 1983 case); O'Neillv. Krzeminski, 839 F.2d 9, (2d Cir. 1988) (upholding $185,000 punitive damage awards in § 1983 case).
III. NEW TRIAL
Defendant also argues that he is entitled to a new trial because of various judicial errors. A new trial should be granted when "a jury has reached a `seriously erroneous result' as evidenced by: (1) the verdict being against the weight of the evidence; (2) the damages being excessive; or (3) the trial being unfair to the moving party in some fashion, i.e., the proceedings being influenced by prejudice or bias." Holmes v. Massillon, 78 F.3d 1041, 1045-46 (6th Cir. 1996). A district court need not grant a motion for a new trial based on a theory not raised at or before trial "unless the error was so fundamental that gross injustice would result." United States v. Walton, 909 F.2d 915, 924 (6th Cir. 1990). A jury's verdict should be set aside as unfair "only if the record discloses the judge was actually biased or the judge's remarks projected the appearance of advocacy or partiality." Mitchell v. Kirk, 20 F.3d 936, 937 (8th Cir. 1994). The court must determine whether the alleged bias "was so prejudicial that it denied [the litigant] a fair, as opposed to a perfect trial." United States v. Edmond, 52 F.3d 1080, 1099 (D.C. Cir. 1995). Generally, a finding of judicial bias warranting a new trial must be based on "an abiding impression left from a reading of the entire record" rather than on the basis of a "a few improper comments." United States v. Twomey, 806 F.2d 1136, 1140 (1st Cir. 1986). In the instant Motion, Defendant appears to assert three broadly defined groups of judicial errors which justify a new trial.
Defendant's first argument in support of a new trial is that the Court committed several errors relating to the Final Pretrial Order and the admissibility of Plaintiff's medical records (Exhibit G). Defendant argues that these errors were so prejudicial that a new trial is warranted. According to Defendant, the parties agreed at the final pretrial conference that there would be no objections to the admissibility of Exhibit G. This alleged agreement was reduced to writing in the Final Pretrial Order and submitted to the Court. Defendant argues, however, that the Court never entered the Final Pretrial Order. Furthermore, Defendant argues that because there was no Final Pretrial Order, Plaintiff was allowed to file a motion in limine after trial began, regarding Exhibit G. Finally, Defendant alleges that the Court prevented Exhibit G from being admitted into evidence.
Defendant asserts that these events prejudiced Defendant because he had assumed that Exhibit G would be admitted, in toto, into evidence and therefore he was not prepared to call witnesses to testify about Plaintiff's medical condition. Defendant also asserts the he was prejudiced because he was not able to present crucial evidence concerning Plaintiff's medical condition at trial. Furthermore, Defendant asserts that he was prejudiced when the Court reprimanded him, in front of the jury, regarding specific comments he made regarding Exhibit G.
In order to assess Defendant's argument, the Court begins by reviewing the record. On March 30, 1999 a Case Management Order was issued in this case. (Dkt. No. 84). This Order stated that Motions in Limine were to be filed no later than the date for filing the proposed Final Pretrial Order. In an Order dated May 27, 1999, the parties were given until September 9, 1999 to file a proposed Final Pretrial Order. (Dkt. No. 93). On September 24, 1999 the docket indicates that a proposed Final Pretrial Order was transmitted to Magistrate Judge Hugh Brenneman, Jr. The proposed Final Pretrial Order states that the Defendants intended to "offer . . . MDOC Medical Record for Plaintiff." There is no indication in the proposed Final Pretrial Order that the parties agreed that this evidence was admissible or that Plaintiff waived any right to object at trial. A Final Pretrial Conference was held on September 29, 1999 before Magistrate Judge Brenneman. On September 30, 1999, Magistrate Judge Brenneman issued an Order which "modified" the "Final Pretrial Order." (Dkt. No. 113). There is no record of the "Final Pretrial Order" being entered, although it is clear from the language, context and implication of Magistrate Judge Brenneman's September 30, 1999 Order that the Court intended to adopt the proposed Final Pretrial Order with the exception of those modifications mentioned. On October 4, 1999, a day before trial began, Plaintiff filed a Motion in Limine seeking to exclude "certain irrelevant medical records" contained in Exhibit G. (Dkt. No. 125). There is no order from the Court resolving this Motion. The trial transcript indicates, however, that on October 5, 1999 the Court explained that Motions in Limine had been filed the previous day and that the Court was taking them under consideration. (Transcript at 136-37).
According to the transcript, the Court appeared to confuse Plaintiff's Motions in Limine, filed on October 4, 1999, with earlier Motions in Limine filed by Defendants.
With this as the procedural backdrop, Defendant's arguments as to the Pretrial Order and Exhibit G are not persuasive. First, with the exception of the Court's decision not to admit Exhibit G, in toto, into evidence, Defendant never brought any of these other alleged errors (the failure to issue a Final Pretrial Order and the decision to allow Plaintiff to file a Motion in Limine regarding Exhibit G) to the Court's attention during trial. Therefore, these alleged errors cannot be used to justify a new trial absent a showing of gross injustice. See United States v. Walton, 909 F.2d 915, 924 (6th Cir. 1990). In this case, Defendant offers no evidence of gross injustice. Second, Defendant could not have been seriously prejudiced by the Court's alleged failure to enter the Final Pretrial Order because the Court implicitly adopted the contents of that Order on September 30, 1999. Third, Defendant was not prejudiced by the Court's handling of Plaintiff's Motion in Limine regarding Exhibit G because the Court did not rule on the Motion.
Fourth, Defendant's argument that he was prejudiced by the Court's refusal to admit Exhibit G, in toto, assumes that the Court was obligated to admit that exhibit even if it violated the Federal Rules of Evidence. This position is misguided. To begin with, the Final Pretrial Order did not contain an agreement between the parties that Exhibit G was admissible or that the Plaintiff had waived any right to object to its admission. More importantly, even if the parties had reached such an agreement, and even if that agreement was later codified by an order of the Court, the Court remained obligated to follow the Federal Rules of Evidence. See Federal Rule of Evidence 101. If it comes to the Court's attention that an exhibit is inadmissible, and violates the Federal Rules of Evidence, it is the Court's obligation to deny its admission. In this case, the Court was made aware by Plaintiff's counsel that portions of Exhibit G might be inadmissible. Therefore, the Court explained that only those portions of Exhibit G that were relevant, and admissible pursuant to Federal Rule of Evidence 403, would be admitted into evidence. (Transcript at 263). As a result, because the parties cannot agree to ignore the Federal Rules of Evidence, and because the Court remains forever bound by those rules, Defendant's assertion of prejudice in relation to the Court's treatment of Exhibit G is without merit.
Fifth, the Court's criticism of defense counsel, triggered by counsel's statement, in the presence of the jury, that Exhibit G contained information relating to Plaintiff's psychiatric condition, was warranted by the circumstances and did not prejudice the Defendant. As discussed earlier, Plaintiff filed a Motion in Limine regarding Exhibit G which argued that portions of that exhibit should be excluded because Plaintiff's mental health was not relevant. The Court took this Motion under consideration. Under these circumstances, it was entirely inappropriate for defense counsel to inform the jury that Exhibit G contained evidence of Plaintiff's mental condition. After defense counsel made the statement, Plaintiff objected and the Court stated simply, "I agree. I'm sorry he said that in front of you, Jury. He shouldn't have, he knows that. We will take an adjournment and see what we can do about this. Take the jury out." (Transcript at 257-58). Not only was the Court's displeasure justified, the Court's critical comments were far from being so harsh or derogatory that the Defendant was unfairly prejudiced. Therefore, the Court's handling of the Final Pretrial Order and Exhibit G does not justify a new trial.
Defendant's second argument in support of a new trial is that the Court committed prejudicial error when it informed Plaintiff and the jury that deposition transcripts might not accurately reflect what a witness said during a deposition. Defendant asserts that these comments were so prejudicial as to warrant a new trial. This argument fails for two reasons. First, the Court is given broad discretion to comment on the evidence and ask questions. See generally Federal Rule of Evidence 614(b); Quercia v. United States, 289 U.S. 466 (1933) (explaining that district court judges have die authority to comment of evidence); United States v. Carabbia, 381 F.2d 133, 139 (6th Cir. 1967) ( citing Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir. 1956) (`The trial judge in the federal court is more than a mere arbitrator to rule upon objections and to instruct the jury. It is his function to conduct the trial in an orderly way with a view to eliciting the truth and to attaining justice between the parties. It is his duty to see that the issues are not obscured and that the testimony is not misunderstood. He has the right to interrogate witnesses for this purpose.")). Second, the trial transcript indicates that the Court recognized that its comments may have been out of place and took immediate action to remedy any harm to the Defendant or defense counsel. The Court sustained defense counsel's objection to the Court's comments, explained the situation to the jury, and apologized to defense counsel, all in the jury's presence, for any impropriety. (Transcript at 291-301). Furthermore, the Court instructed the jury after both sides rested that the comments of the Court should be disregarded. (Transcript at 475). These efforts surely cured any prejudice that the Defendant suffered. See generally Clarksville-Montgomery County Sch. Sys. v. United States Gypsum Co., 925 F.2d 993,1002 (6th Cir. 1991) United States v. Nashawaty, 571 F.2d 71, 76 (1st Cir. 1978) (instruction to the jury that it is free to ignore court's comments is curative of possible prejudice). As a result, the Court's comments regarding the accuracy of deposition transcripts does not justify a new trial.
Defendant's third and final argument is that the Court committed prejudicial error because it failed to rule on Defendants' Motion in Limine regarding previous criminal convictions.
Defendant argues that the failure to rule on this Motion prejudiced the Defendant because it somehow prevented or dissuaded defense counsel from calling Defendant as a witness.
On May 16, 1999, Defendants filed a Motion in Limine. (Dkt. No. 86). The Motion asked the Court to prohibit Plaintiff from questioning Defendant "about any misdemeanor conviction that does not involve `dishonesty or false statements'. . . ." The Motion did not specify the number of misdemeanor convictions which Defendant sought to exclude, the specific types of convictions, or the dates of those convictions. In order to aid the Court, however, Defendant provided the Court with a copy of his personnel file for an in-camera review. On September 24, 1999, the Court issued an Order stating that the information which it had been provided (i.e. the personnel file) was insufficient to resolve the Motion. (Dkt. No. 109). The personnel file did not contain a list of Defendant's previous convictions or copies of the relevant judgments of sentence. Instead, the file contained pages of application materials and personnel reports some of which included brief handwritten comments by the Defendant about his criminal history. These comments were difficult to understand and lacked specificity. In particular, it was unclear from the personnel file what crimes Defendant had been convicted of violating, when those convictions occurred, or the facts surrounding those convictions. Due to the uncertainty surrounding Defendant's criminal history, the Court instructed Defendant to provide "additional information, including but not limited to copies of the judgment of sentence, for any crime which the Defendants seek to exclude from trial." (Dkt. No. 109). On October 5, 1999, the second day of trial, defense counsel provided the Court with a judgment of sentence for Defendant's 1980 conviction for malicious destruction of property. Defense counsel also informed the Court that Defendant had convictions for larceny in a building and "shining after 11:00" but that judgments of sentence for these crimes had not been obtained. The Court responded that "my current feeling about that for both of you is that won't be used in cross." (Transcript at 147). Defense counsel never again mentioned the Motion in Limine, or the admissibility of Defendant Howard's misdemeanor convictions.
This is but one illustration of the lack of clarity of the information provided in the personnel file.
This summary of events makes three things clear. First, the Court declined to rule on Defendants' Motion in Limine because it contained insufficient information. Second, Defendant's failure to bring this alleged error to the Court's attention, during trial, prohibits him from using it to justify anew trial at this juncture. See Walton, 909 F.2d at 924. Third, Defendant cannot possibly show any prejudice flowing from the decision not to rule on the Motion in Limine because the Court orally indicated to the parties that Defendant's misdemeanor convictions would not be admissible. Therefore, because Defendant is unable to show any prejudice from the Court's handling of Defendant's criminal convictions, and in particular Defendants' Motion in Limine, Defendant is not entitled to a new trial on this basis.
Taken together, Defendant's arguments in support of a new trial based upon judicial error and resulting prejudice are groundless. After reviewing the trial transcript, the Court finds little evidence that it committed any significant errors and even less evidence that Defendant was prejudiced such that the trial was unfair. In the face of uncontradicted evidence that Defendant brutally beat the Plaintiff, and then tried to cover-up his actions, Defendant and his counsel remained largely silent throughout the trial. They made few legal objections, failed to raise — and thereby waived — a variety of legal and factual arguments, and offered no evidence or testimony to rebut Plaintiff's allegations. As such, Defendant's assertion of judicial error and claimed right to a new trial appears to be nothing more than an attempt to remedy the effects of a failed trial strategy.
CONCLUSION
Therefore, because the Court concludes that Defendant's due process rights were not violated, that a remittitur is not warranted, and that judicial errors do not necessitate a new trial, Defendant's Motion for a New Trial is denied.