Alicea v. Ralston , 279 F. App'x 179 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-19-2008
Alicea v. Ralston
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4521
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Alicea v. Ralston" (2008). 2008 Decisions. Paper 1214.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1214
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 06-4521
MONSERRATA ALICEA, IN HER OWN RIGHT,
AND AS PLENARY GUARDIAN OF THE PERSON AND
ESTATE OF JOSEPH MOTT, AN INCAPACITATED PERSON,
Appellant
v.
OFFICER ROBERT RALSTON; BADGE NO. 7062,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS
A PHILADELPHIA POLICE OFFICER; CITY OF PHILADELPHIA
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 03-cv-03698)
District Judge: Hon. Eduardo C. Robreno
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 9, 2008
BEFORE: SMITH, HARDIMAN and COWEN, Circuit Judges
(Filed: May 19, 2008 )
OPINION
COWEN, Circuit Judge.
In June 2003, Appellant Monserrata Alicea, as guardian of Joseph Mott (an
incapacitated person), filed a complaint under 42 U.S.C. § 1983 against Police Officer
Robert Ralston and the City of Philadelphia for excessive force. The excessive force
claim arose from an incident which occurred on July 14, 2001. While on car duty patrol,
Ralston heard gunshots. He pursued the suspected shooter on foot down an alley. While
in pursuit of the suspected shooter, Ralston fired his gun, which seriously wounded Mott.
After this incident, Sergeant Collins Miles arrived at the scene and briefly spoke to
Ralston before Ralston was transported to Internal Affairs. Subsequently, Miles was
interviewed by Sergeant John Prendergast of Internal Affairs about what Ralston had told
him when he had arrived at the scene. Prendergast prepared a written report detailing this
interview, which Miles signed.
The excessive force claim against Ralston went to trial in September 2005. Miles
testified at trial. During his testimony, Appellant’s counsel showed Miles the Prendergast
report and asked him several questions regarding the statements Ralston made to him that
were encompassed within the report. The District Court eventually admitted the
Prendergast report into evidence.
During the jury charge conference, the Appellant asked the District Court to
charge the jury that Ralston’s statements in the Prendergast report should be considered
substantive evidence pursuant to Federal Rule of Evidence 803(5). Specifically,
Appellant requested that the jury charge include the following instruction:
Earlier statements of a witness [who is not a party] were not
admitted in evidence to prove the contents of those statements
2
are true. You may consider the earlier statements only to
determine whether you think they are consistent or
inconsistent with the trial testimony of the witness and
therefore whether they affect the credibility of that witness.
There are two important exceptions to that rule. First, the
statement of Officer Ralston may be considered by you as
substantive evidence, because he is a party in this case.
Second, any statement that was used to refresh a witnesses
recollection or which was adopted by a witness as a recording
of his past recollection may be considered by you as
substantive evidence.
(App. 31.) The District Court declined this proposed instruction. Instead, it explained to
the jury that:
Earlier statements of a witness who was not a party . . . were
not admitted into evidence to prove that the contents of those
statements are true. You may consider the earlier statements
in such a case only to determine whether you think they are
consistent or inconsistent with the trial testimony of the
witness and therefore whether they affect the credibility of
that witness. One relevant and important exception to the rule
is of that of the testimony of a party. Therefore the statement
of Officer Ralston may be considered by you as substantive
evidence because he is a party in this case.
(App. 661-62.) In instructing the jury on the excessive force claim, the District Court also
included the term “arrest” within the charge. The jury returned a verdict in favor of
Ralston. The District Court denied Appellant’s request for a new trial. Appellant timely
filed a notice of appeal.
I. APPELLATE JURISDICTION AND STANDARD OF REVIEW
This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise
plenary review in determining ‘whether the jury instructions stated the proper legal
3
standard.” United States v. Leahy, 445 F.3d 634, 642 (3d Cir. 2006) (quoting United
States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995)). The refusal to give a particular
instruction or the wording of a particular instruction is reviewed for abuse of discretion.
See id. In reviewing jury instructions, “we consider the totality of the instructions and not
a particular sentence or paragraph in isolation.” Id.
II. DISCUSSION
Appellant asserts that the District Court erred by failing to include its proposed
jury instruction on past recollection recorded pursuant to Federal Rule of Evidence
803(5). Additionally, Appellant asserts that the District Court’s inclusion of the word
“arrest” in the jury instructions improperly confused and misled the jury. We consider
each of these arguments in turn.
A. Past Recollection Recorded
First, Appellant contends that the District Court erred by refusing to instruct the
jury that the prior recorded recollection of Miles (which included statements made by
Ralston to Miles) could be considered substantive evidence. Appellant asserts that the
jury was precluded from considering Ralston’s statements to Miles for their substance
because the Court failed to instruct the jury that Miles’ statements to Prendergast - a
second level of hearsay requiring its own exception - could be considered substantively.
For the following reasons, while Appellant may be correct, any error was harmless.
Federal Rule of Evidence 803(5) is an exception to the hearsay rule and states that:
4
A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and
accurately, shown to have been made or adopted by the
witness when the matter was fresh in the witness’ memory
and to reflect that knowledge correctly. If admitted, the
memorandum or record may be read into evidence but may
not itself be received as an exhibit unless offered by an
adverse party.
Rule 803(5) “requires the witness to have either made the record herself, or to have
reviewed and adopted the statement, at a time when the matter it concerned was fresh in
her memory.” United States v. Mornan, 413 F.3d 372, 377 (3d Cir. 2005). In this case,
Prendergast interviewed Miles soon after Miles spoke to Ralston. Furthermore, Miles
signed and adopted the Prendergast report as his own, and had insufficient recollection at
trial to testify fully and accurately. The Prendergast report fell within the past
recollection recorded exception to hearsay with respect to Miles’ statements to
Prendergast. Nevertheless, the District Court explicitly refused to instruct the jury on past
recollection recorded. Instead, it only instructed the jury that Ralston’s statements could
be considered as substantive evidence because they were admissions by a party-opponent.
See Fed. R. Evid. 801(d)(2)(A). Certainly, we agree that Ralston’s statements to Miles
found within the Prendergast report were admissions by a party-opponent. However,
without including the requested past recollection recorded instruction regarding Miles’
statements to Prendergast as requested by the Appellant, the jury was not able to
substantively consider Ralston’s statements to Miles found within the Prendergast report
5
itself. Ralston’s statements to Miles found in the Prendergast report were hearsay within
hearsay. Under Federal Rule of Evidence 805, both levels of hearsay needed to fall
within an exception for the hearsay to be admissible. Here, both levels of hearsay were
admissible, yet the District Court failed to instruct the jury on the exception applicable to
the second level of hearsay (past recollection recorded).
Nevertheless, any error in the jury instructions with respect to this issue was
harmless. See Hill v. Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 420 (3d Cir.
2006) (“For purposes of harmless error analysis . . . we ask whether it is highly probable
that the error did not affect the result.”). The jury was allowed to use Miles’ testimony
for impeachment purposes against Ralston. The statements at issue in the Prendergast
report were primarily useful as impeachment material to the extent they differed from
Ralston’s testimony at trial. Thus, Appellant received the primary benefit sought out
through Miles’ testimony.
B. Use of the Term “Arrest”
Appellant asserts that the District Court’s use of the term “arrest” in its excessive
force jury instruction warrants a new trial because there was no false arrest claim.
Appellant argues that the central issue of the case was the reasonableness of Ralston’s use
of force, and that this had nothing to do with the concept of “arrest.” (Appellant’s Br.
18.)
With respect to reviewing the jury instructions, “[i]f looking at the charge as a
6
whole, the instructions were capable of confusing and thereby misleading the jury, we
must reverse.” Mosley v. Wilson, 102 F.3d 85, 94 (3d Cir. 1996) (internal quotation
marks and citations omitted). A trial court has substantial discretion with respect to
specific wording of jury instructions and need not give a proposed instruction so long as
the essential points are covered by the instructions that are given. See Douglas v. Owens,
50 F.3d 1226, 1233 (3d Cir. 1995) (“No litigant has a right to a jury instruction of his
choice or in the manner and words of its own preference.”).
With respect to a claim that a law enforcement officer used excessive force, the
claim should be analyzed under the Fourth Amendment and its reasonableness standard.
See Graham v. Connor, 490 U.S. 386, 395 (1989). “[T]he reasonableness inquiry in an
excessive force case is an objective one: the question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Id. at 397 (citations omitted). Upon
reviewing the District Court’s jury instructions with respect to the excessive force claim,
the District Court did not abuse its discretion by including the word “arrest.” The
instructions, as a whole, stated the correct legal standard. They were not capable of being
confusing or misleading to the jury. See Mosley, 102 F.3d at 94. We will affirm.
7