Christovich v. Pierce , 59 F. App'x 543 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL M. CHRISTOVICH; LINDA H. 
CHRISTOVICH,
Plaintiffs-Appellants,
v.
DEREK PIERCE,
Defendant-Appellee,
BOSTON OLD COLONY INSURANCE  No. 02-1363
COMPANY,
Respondent-Appellee,
and
CLAYTON HOMES OF DELAWARE,
INCORPORATED,
Defendant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(CA-98-487)
Argued: January 22, 2003
Decided: March 10, 2003
Before WILLIAMS and MICHAEL, Circuit Judges, and
Morton I. GREENBERG, Senior Circuit Judge of the United States
Court of Appeals for the Third Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
2 CHRISTOVICH v. PIERCE
COUNSEL
ARGUED: Richard James Serpe, GLASSER & GLASSER, P.L.C.,
Norfolk, Virginia, for Appellants. Melody Gunter Foster, KAL-
BAUGH, PFUND & MESSSERSMITH, P.C., Roanoke, Virginia, for
Appellee. ON BRIEF: Harvey J. Lewis, LEWIS, KULLMAN &
STERBCOW, New Orleans, Louisiana, for Appellants. John Weber,
III, KALBAUGH, PFUND & MESSSERSMITH, P.C., Roanoke, Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael and Linda Christovich invoked diversity jurisdiction to sue
Derek Pierce and his employer, Clayton Homes, Inc., in federal court.
The Christoviches alleged that Pierce injured them by running them
off the road in a vehicle mishap. The Christoviches settled their claim
against Clayton Homes prior to trial. They now appeal the jury verdict
and judgment entered in favor of Pierce, alleging various trial errors.
For the reasons that follow, we affirm.
I.
On the day of the accident, September 19, 1998, Michael Chris-
tovich and his wife, Linda, left The Greenbrier, a resort in White Sul-
phur Springs, West Virginia. They were driving to Roanoke, Virginia,
to catch a flight back to their home in New Orleans. Michael Chris-
tovich was driving a rental car; Linda was in the passenger seat.
According to the Christoviches, they left The Greenbrier at approxi-
mately 8 a.m. in order to catch their 10:40 a.m. flight. At the time of
the accident, the Christoviches were traveling on U.S. Highway 220,
a two-lane road that runs north and south. At approximately 9 a.m.,
CHRISTOVICH v. PIERCE 3
the Christoviches were traveling south, within the 55-mph speed
limit, and approaching a hill. According to the Christoviches, as they
approached the hill, they saw a dark sedan, traveling north, come over
the hill and into the southbound lane. Michael Christovich swerved
to his right to avoid a collision and lost control of his car. The road
at the site of the accident has almost no shoulder, and the roadbed
drops off sharply on both sides. The Christovich car spun around,
crossed the northbound lane, flew across a ditch, and landed upside
down with the engine still running. Linda Christovich was flung from
the car; Michael Christovich was stuck in the car, hanging upside
down by his seatbelt and shoulder harness. Linda Christovich, who
was relatively unscathed, returned to the car and turned off the igni-
tion but was not able to extricate her husband. According to the Chris-
toviches, two never-identified good Samaritans arrived and helped get
Michael Christovich out of the car. Virginia State Trooper Malcolm
Austin arrived on the scene as did an ambulance. It was later deter-
mined that Michael Christovich had a broken shoulder, which
required surgery and a lengthy recovery.
The trial essentially boiled down to a credibility contest between
the Christoviches and Pierce, who maintained that his vehicle never
entered the Christoviches’ lane. Rather, according to Pierce, the
Christoviches’ vehicle veered over into Pierce’s lane but Pierce man-
aged to avoid a collision. When Pierce saw in his rearview mirror that
something had happened to the car he had just passed, he turned
around and drove back to the scene. Pierce testified that he was the
one who helped Michael Christovich out of the car, and he testified
to details of a conversation he allegedly had with Michael Christovich
while waiting for the ambulance. The Christoviches denied ever see-
ing Pierce at the scene. Trooper Austin testified, however, that Pierce
was on the scene, that Pierce acknowledged that he was a witness to
the accident, and that Pierce gave the officer his name. At the time
Pierce could not remember his address because he had just moved to
a new home in North Carolina. There was disputed testimony as to
whether Pierce showed the officer his driver’s license or whether he
gave the officer a business card. In any event, enough information
was provided so that the Christoviches could eventually identify
Pierce and serve him with process. Trooper Austin testified that he
asked Pierce not to leave the scene but that when he went to interview
Pierce further, he discovered that Pierce had left. Trooper Austin said
4 CHRISTOVICH v. PIERCE
it "never crossed [his] mind" that Pierce had been the cause of the
accident, and no charges were filed against Pierce. There was an
inconsistency in Linda Christovich’s account of the accident. She
originally told Trooper Austin that she was asleep at the time of the
accident; later that morning, after sitting alone with her husband in the
ambulance, she told Austin that a dark sedan had swerved into their
lane. At trial she attributed the inconsistency to her shocked state dur-
ing the first interview. There was also some confusion about when the
Christoviches checked out of The Greenbrier. They testified that it
was at 8 a.m., but hotel records showed that a long distance phone call
was made from their room at 8:37 a.m. The jury returned a verdict in
favor of Pierce, and the Christoviches appeal from the judgment.
II.
The Christoviches first challenge several of the district court’s evi-
dentiary rulings. We review these rulings for abuse of discretion,
Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 194 (4th Cir.
2000), and prejudice. Fed. R. Evid. 103(a). We will set out all of the
contested rulings and then evaluate them in turn.
The Christoviches requested, through a motion in limine, a pretrial
ruling on two evidentiary issues. First, they sought to admit, under
Fed. R. Evid. 609(a)(2), Pierce’s two prior felony convictions, one for
bank fraud and one for filing a false financial statement. Second, the
Christoviches also sought, under Fed. R. Evid. 608(b), to cross-
examine Pierce about specific instances of prior untruthfulness, spe-
cifically, that he was fired by his former employer for, among other
things, forging a signature to receive a sales commission, fabricating
stories, and stealing lumber and carpeting from his employer. The dis-
trict court did not rule on the motion prior to trial.
At trial when Pierce was questioned about his prior convictions, he
responded that he had pled guilty to felony bank fraud. The district
court prevented the Christoviches’ lawyer from eliciting from Pierce
the name of the offense for which he received a second felony convic-
tion, though the jury clearly heard that there had been a second con-
viction. The district court also barred the Christoviches’ lawyer from
inquiring into the details of either of the two felony convictions. The
court further informed the jury that the convictions should be consid-
CHRISTOVICH v. PIERCE 5
ered only to assess Pierce’s credibility. The Christoviches’ lawyer
emphasized Pierce’s felony bank fraud conviction in his closing argu-
ment. Among other things, the lawyer asked the jury to consider
whether it would believe "a lawyer who has a great deal personally
at stake in telling the truth . . . or, this convicted bank fraud felon."
The Christoviches were also able to attack Pierce’s credibility through
the testimony of Jim Lunsford, a witness from Pierce’s prior place of
employment. Lunsford testified that Pierce had a poor reputation for
truthfulness. The district court did not, however, permit the Christovi-
ches to cross-examine Pierce about the specific instances of his prior
untruthfulness.
The Christoviches also sought to introduce evidence at trial of
Michael Christovich’s reputation for truthfulness. The district court
permitted Michael Christovich to testify about his academic achieve-
ments, but prevented him from testifying about his obligation as a
lawyer to abide by ethical rules. Linda Christovich testified about her
husband’s civic activities in the community, and even told the jury
that "Michael’s looked up to in the community." The district court
prevented Linda Christovich, however, from answering her lawyer’s
question about her "husband’s reputation for truth and veracity."
A.
The Christoviches contend that the district court erred in prevent-
ing their lawyer from inquiring into the nature of Pierce’s second fel-
ony conviction. We agree that the district court erred in this regard,
but we conclude that the error was harmless. Fed. R. Evid. 609(b)
provides that "evidence that any witness has been convicted of a
crime shall be admitted if it involved dishonesty or false statement,
regardless of the punishment." (emphasis added). It is well established
that convictions falling under Rule 609(b) are automatically admissi-
ble for purposes of attacking a witness’s credibility and that a district
court has no discretion to exclude them. United States v. Cunning-
ham, 638 F.2d 696, 698-99 (4th Cir. 1981). Pierce’s felony convic-
tions for bank fraud and for filing a false financial statement clearly
fall under Rule 609(b). As a result, the district court was required to
admit evidence that Pierce had been convicted not only for bank
fraud, but also for filing a false financial statement. Thus, the district
court erred in preventing the Christoviches from eliciting from Pierce
6 CHRISTOVICH v. PIERCE
that his second conviction was for filing a false statement. We con-
clude, however, that this error was harmless because the Christovi-
ches cannot show prejudice. The jury was clearly made aware that
Pierce had two felony convictions on his record, at least one of which
was for a crime involving dishonesty. The jury also heard a witness
from Pierce’s former place of employment testify that Pierce had a
bad reputation for truthfulness. The jury further heard some of
Pierce’s testimony contradicted by that of Michael and Linda Chris-
tovich and by Trooper Austin. And finally, the jury heard Pierce’s fel-
ony bank fraud conviction emphasized in the Christoviches’ closing
argument. In light of the foregoing, we conclude that the district
court’s failure to require Pierce to name the second felony offense
does not constitute reversible error.
To the extent that the district court precluded the Christoviches
from inquiring into the details of either felony conviction, no error
was committed. We have said that while counsel may impeach a wit-
ness by informing the jury of the date, offense, and punishment
related to a conviction, counsel is "not permitted to probe in depth the
nature of the felonies, when they occurred, and their details." United
States v. Samuel, 431 F.2d 610, 613 (4th Cir. 1970). See also 2 Hand-
book of Federal Evidence § 609.6 (5th ed.).
The Christoviches further argue that the district court erred when
it informed the jury that Pierce’s felony convictions could only be
used to assess Pierce’s credibility. The district court was right. Rule
609 explicitly provides that prior convictions may be admitted "[f]or
the purpose of attacking the credibility of a witness." Fed. R. Evid.
609. See also United States v. Weil, 561 F.2d 1109, 1111 (4th Cir.
1977) (noting that the "sole purpose" for admitting prior convictions
is to assess the credibility of the witness). Thus, the district court’s
explanation to the jury that the felony convictions were admitted for
assessing "the credibility of [Pierce’s] testimony" was correct. The
district court further instructed the jury that when considering the
truthfulness of Pierce’s testimony, the jury "can consider the fact that
he’s previously been convicted of a felony. That’s all that comes in
for." Again, that instruction was entirely appropriate. "When convic-
tions are introduced for impeachment, it is appropriate to instruct the
jury that a witness’s prior conviction should be considered only to
CHRISTOVICH v. PIERCE 7
assess the credibility of the witness." 4 Weinstein’s Federal Evidence
§ 609.25, at 609-72 (2d ed. 2002).
To the extent that the Christoviches suggest that the district court
improperly commented on the convictions to the jury, we disagree.
The record reflects that the district court’s comment did not compro-
mise the appearance or reality of justice. See Sit-Set, A.G. v. Universal
Jet Exchange, Inc., 747 F.2d 921, 925 (4th Cir. 1984).
B.
The Christoviches also allege that the district court erred in prohib-
iting them from cross-examining Pierce about specific instances of
prior untruthfulness. Fed. R. Evid. 608(b) provides that specific
instances of conduct may "in the discretion of the court, if probative
of truthfulness or untruthfulness, be inquired into on cross-
examination of the witness . . . concerning the witness’ character for
truthfulness or untruthfulness." In determining whether to admit testi-
mony under Rule 608(b), a district court must still conduct a Rule 403
balancing test and must exclude the testimony if its probative value
is substantially outweighed by dangers of prejudice. United States v.
Leake, 642 F.2d 715, 718 (4th Cir. 1981). The district court has broad
discretion in this regard, but should weigh factors such as the impor-
tance of the witness’s testimony, the relevance of the conduct to the
witness’s truthfulness, and the danger of prejudice, confusion, or
delay. Id. at 719. A district court’s Rule 608(b) ruling will be reversed
only if "it is probable that the error could have affected the verdict
reached by the particular jury in the particular circumstances." United
States v. Simpson, 910 F.2d 154, 158 (4th Cir. 1990) (quotation omit-
ted).
The Christoviches contend that it was prejudicial error not to allow
inquiry into specific instances of Pierce’s prior untruthfulness because
the case centered largely on a credibility determination. We disagree.
As the district court was well aware, the jury knew of Pierce’s prior
convictions, his bad reputation for truthfulness, and the discrepancies
between his testimony and that of other witnesses. The district court’s
decision to exclude what would have been cumulative and unsubstan-
tiated evidence of untruthfulness was a rational one. The Christovi-
ches argue nonetheless that if the jury had been aware of these prior
8 CHRISTOVICH v. PIERCE
instances of untruthfulness, the jury "might have disbelieved Pierce
and reached a different verdict." Appellant’s Br. at 24. Again, how-
ever, because the jury had before it other evidence attacking Pierce’s
credibility, we cannot say that if the jury had been aware of the
excluded allegations of Pierce’s prior untruthfulness, it is probable
that the verdict could have been affected. Leake, 642 F.2d at 719.
Accordingly, we conclude that the district court did not abuse its dis-
cretion in excluding evidence of the specific instances of prior
Pierce’s untruthfulness.
C.
Finally, the Christoviches argue that the district court erred when
it failed to permit inquiry into Michael Christovich’s reputation for
truthfulness. Specifically, the Christoviches’ lawyer sought to ques-
tion Michael Christovich about the ethical rules he is required to fol-
low as a member of the bar. The lawyer also sought to question Linda
Christovich regarding her husband’s reputation for truthfulness. For
the reasons that follow, we conclude that the district court did not err
in excluding this evidence.
Under Fed. R. Evid. 608(a), evidence of a witness’s reputation for
truthfulness may be introduced only after the witness’s credibility has
been attacked. "As a general rule a witness’s credibility may not be
rehabilitated unless it first has been challenged." United States v.
Henderson, 717 F.2d 135, 137 (4th Cir. 1983). At the time the Chris-
toviches sought to bolster Michael Christovich’s credibility, his credi-
bility had not been attacked. In fact, to the extent that his credibility
was directly attacked at all, it was only when, during his cross-
examination, he was questioned regarding the time he checked out of
the hotel. Pierce’s lawyer presented evidence that Christovich’s state-
ment that he left at 8 a.m. might have been incorrect because hotel
records showed a phone call made from the room at 8:37. We doubt
that such cross-examination qualifies as an attack on credibility that
is sufficient to permit rehabilitation through character evidence. Cf. 4
Weinstein’s Federal Evidence § 608.12[4][a], at 608-22 (5th ed.
2002) ("Most courts do not view contradiction of one witness’s testi-
mony by other witnesses as an attack on character."); see also Advi-
sory Comm. Notes to Rule 608 (noting that opinion or reputation
evidence regarding witness’s untruthfulness or evidence of miscon-
CHRISTOVICH v. PIERCE 9
duct qualify as an attack, while evidence in the form of contradiction
does not necessarily qualify). Moreover, even if it was sufficient to
permit rehabilitation and even if the district court erred in preventing
the testimony, the Christoviches cannot demonstrate prejudice.
Michael Christovich was permitted to testify on direct examination to
various academic achievements, including service on Washington &
Lee University’s Honor Court, membership on the Tulane Law
Review, and various other law school honors. He also testified that he
was at The Greenbrier to be inducted into the International Academy
of Trial Lawyers. Similarly, Linda Christovich testified about her hus-
band’s various civic activities. She testified that "Michael’s looked up
to in the community." Thus, the jury was certainly aware of Michael
Christovich’s general academic and professional success and his
standing in the community. We cannot say that exclusion of any fur-
ther evidence of a reputation for truthfulness constituted reversible
error.
III.
The Christoviches also argue on appeal that the district court erred
when it added a jury instruction that had not been requested by either
party and that was not disclosed to the parties before closing argu-
ments. The Christoviches further contend that the instruction itself
reflected the district court’s bias in favor of the defendant. Challenges
to jury instructions are reviewed for abuse of discretion. Chaudry v.
Gallerizzo, 174 F.3d 394, 408 (4th Cir. 1999). "A judgment will be
reversed for error in jury instructions only if the error is determined
to have been prejudicial, based on a review of the record as a whole."
Abraham v. County of Greenville, 237 F.3d 386, 393 (4th Cir. 2001)
(internal quotation omitted).
Our case law does not say whether a district court is required to
inform counsel of a sua sponte instruction prior to closing arguments.
Fed. R. Civ. P. 51, which deals with jury instructions, is silent on this
score. Rule 51 provides that parties may file written requests for
instructions and that "[t]he court shall inform counsel of its proposed
action upon the requests prior to their arguments to the jury." Nothing
is said about the court’s obligations to inform counsel of non-
requested instructions. Thus, it does not appear that the district court
here erred in failing to inform counsel of its "innocent misrecollec-
10 CHRISTOVICH v. PIERCE
tion" instruction. Even if such disclosure was required, the failure to
disclose would be reversible only upon a showing of prejudice, cf.
United States v. Burgess, 691 F.2d 1146, 1156 (4th Cir. 1982), which
the Christoviches cannot demonstrate. The Christoviches’ argument
that the instruction is somehow biased against them is not persuasive.
The full jury instruction was as follows:
Inconsistencies or discrepancies in the testimony of a wit-
ness or between the testimony of different witnesses may or
may not cause the jury to discredit such testimony. I would
remind you that two (2) or more persons witnessing an inci-
dent or transaction may see and hear it different. An inno-
cent misrecollection, just like the failure of recollection, is
not an uncommon human experience. In weighing the effect
of any discrepancy, always consider whether it pertains to
a matter of importance or an unimportant detail and whether
the discrepancy results from innocent error or intentional
falsehood.
The instruction pertains equally to both parties and makes sense in
a case where the jury’s determination essentially boils down to credi-
bility determinations. In this case, there were discrepancies between
the testimony of the Christoviches and Pierce, between Pierce and
Trooper Austin, between Trooper Austin and Linda Christovich, and
between the Christoviches and some hotel records. For instance, as
the district court noted in response to the Christoviches’ objection to
this instruction, "there was evidence to the effect that [Linda Chris-
tovich] made one statement to the trooper and then later changed it.
. . . I think there was—I think there is sufficient evidence to charge
them on that point." If the Christoviches’ argument is that the jury
instruction suggested that Pierce innocently failed to recollect details,
for example the documents he gave to Trooper Austin, then that argu-
ment applies equally to the Christoviches. The instruction could have
suggested that Linda Christovich’s inconsistent statements to Trooper
Austin or Michael Christovich’s possible misrecollection about the
check-out time were the result of innocent error rather than intentional
falsehood. Given the benign nature of the instruction, the Christovi-
ches can hardly show prejudice. Accordingly, we conclude that the
district court did not abuse its discretion in including the instruction.
CHRISTOVICH v. PIERCE 11
IV.
For all of the foregoing reasons, the judgment is
AFFIRMED.