Appeal from a judgment for the defendants entered after a jury verdict in the District Court for the Eastern District of New York (Mark Costantino, Judge) in an action for damages for false arrest and police brutality brought pursuant to 42 U.S.C. § 1983 (1976), the appellant challenging the exclusion from evidence of an admission allegedly made by one of the defendants that they "beat up" the appellant's decedent. Judgment reversed and new trial ordered.
Before Oakes and Newman, Circuit Judges, and Coffrin,*fn* District Judge.
This is an appeal from a judgment for the defendants-appellees entered after a jury verdict in the District Court for the Eastern District of New York (Mark Costantino, Judge) in an action for damages brought pursuant to 42 U.S.C. § 1983 (1976). The plaintiff-appellant's complaint alleged that the defendants, New York City police officers, violated the civil rights of her deceased husband,*fn1 Tyrone O'Neal, by falsely arresting him, beating him, and failing to provide him with prompt and adequate medical care. The principal issue on appeal is whether the District Court erred in excluding testimony concerning an admission allegedly made by one of the defendants that they "beat up" O'Neal. Concluding that this exclusion of evidence going to the heart of the case was error, we reverse and remand for a new trial.
The bulk of the plaintiff's direct case consisted of two pretrial depositions of her husband. He testified that prior to the events giving rise to the complaint he had assisted several officers of the Narcotics Division of the New York City Police Department in an investigation of narcotics trafficking in Jamaica, Queens and that he had applied to become a paid informer. On March 4, 1978, the date of the events in question, at approximately 10:00 p.m., he entered a vacant building in Jamaica, which he knew to be a "drug shooting gallery," in an effort to obtain information. After being admitted to the second floor, he saw two hypodermic needles abandoned on the floor and a person who appeared to be receiving a drug injection from the operator of the "shooting gallery." Moments later, a contingent of police officers arrived, causing the other people at the scene to flee the premises. O'Neal testified that the officers seized the hypodermic needles and arrested and handcuffed him in a nearby room. He stated that he was then placed in an unmarked car with the four appellees. He recalled that Officer Esty, the arresting officer, sat to his right in the rear seat of the vehicle; that Sergeant Williams sat to his left; that Detective Morgan, Esty's partner, occupied the passenger side of the front seat while Officer Garbus, their other partner, drove. He claimed that he advised the officers that he was doing undercover work and that, if allowed to make a telephone call, he could clear up the misunderstanding. He testified that Esty reacted by punching him in the face with his fist and that Williams then struck him in the face repeatedly with a hand-held police radio. He stated that he tried to avoid further blows by ducking his head between his knees but that Morgan and Garbus were able to raise him by the collar and deliver additional blows from their positions in the front seat. The beating continued in flurries, he claimed, until he lost consciousness, bleeding from his mouth, the left side of his face, and his left ear. At the precinct house, he was booked on charges of burglary in the second degree, unlawful possession of a hypodermic needle, resisting arrest, and criminal impersonation.
The plaintiff also offered the testimony of New York City Detective Wayne Carrington, who had worked with O'Neal prior to the incident. Carrington testified that he had asked O'Neal to gather information concerning drug trafficking in the City. He also stated that, at the time of the arrest, he was processing O'Neal's application to become a paid informer.
The defense consisted of the testimony of the four defendants. Their version of the events inside the building agreed with the version given by O'Neal. They stated that after they got in the car, O'Neal told them "I'm just like you," but that his answers to questions posed in "police jargon" convinced them he was not a police informer. All denied using excessive force to effect the arrest or at any time during the drive to the precinct house.
At the close of the plaintiff's case, the District Court granted the defendants' motion for a directed verdict on the claim of false arrest,*fn2 and submitted the remaining claims to the jury, which returned a defendants' verdict.
The Exclusion of Evidence
The plaintiff unsuccessfully attempted on two occasions to elicit testimony concerning an admission allegedly made by one of the defendants during a telephone conversation with Detective Carrington. The plaintiff offered to prove that the officer with whom Carrington had spoken had admitted that the group of officers at the arrest scene "beat up" O'Neal.
1. The plaintiff first attempted to elicit testimony concerning the admission during the direct examination of Detective Carrington. Carrington testified that when he learned of O'Neal's arrest, he visited O'Neal in the detention center and was told by O'Neal that the defendants had beaten him after placing him under arrest. Carrington stated that he then contacted the Assistant District Attorney handling the case to ask if he could check the records "to see exactly what the officers said compared to what Mr. O'Neal (said)." The plaintiff did not pursue this line of inquiry. Instead, the examination, set out in the margin,*fn3 sought to establish the identity of the person who had spoken to Carrington and the content of the conversation. The plaintiff elicited testimony that Carrington had spoken by telephone to a person who identified himself as one of the partners of the arresting officer. Objection to the content of that conversation was sustained.
The defendants contend that the District Court's exclusion of the conversation was proper because the plaintiff failed to satisfy the authentication or identification requirement of Rule 901(a) of the Federal Rules of Evidence. Rule 901(a) provides that "the requirement of authentication or identification is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The Advisory Committee Note to the Rule explains that "authentication and identification represent a special aspect of relevancy (citation omitted). Thus a telephone conversation may be irrelevant because on an unrelated topic or because the speaker is not identified. The latter aspect is the one here involved." The Advisory Committee Note further explains that "this requirement of showing authenticity or identity falls in the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b)."*fn4
The allegation of fact on which the relevancy of the admission depended in this case was that the person who made the admission to Carrington was one of the defendants. If this allegation was supported by sufficient evidence, the admission was clearly relevant to the claim of police brutality. Carrington could not identify the voice of the person with whom he spoke as that of one of the defendants, but voice recognition is not required. Under Rule 901(b)(6), circumstantial evidence, including self-identification, may be sufficient to identify the person who answers a telephone call. In this Circuit, self-identification of the person called at a place where he reasonably could be expected to be has long been regarded as sufficient. See United States v. Markis, 352 F.2d 860, 864 (2d Cir. 1965); Van Riper v. United States, 13 F.2d 961, 968 (2d Cir.), cert. denied sub nom. Ackerson v. United States, 273 U.S. 702, 47 S. Ct. 102, 71 L. Ed. 848 (1926). Carrington's testimony showed that he called the arresting officer at the Street Crime Unit, the place where all the defendants could be expected to be; that the call was referred to one of the arresting officer's partners; and that the person to whom the call was referred identified himself as the arresting officer's partner. These circumstances were sufficient to support a finding that the person who made the admission was one of the arresting officer's partners, Garbus or Morgan. See United States v. Fassoulis, 445 F.2d 13, 17 (2d Cir.), cert. denied, 404 U.S. 858, 92 S. Ct. 110, 30 L. Ed. 2d 100 (1971); United States v. LoBue, 180 F. Supp. 955, 956 (S.D.N.Y.1960), aff'd sub nom. United States v. Agueci, 310 F.2d 817 (2d Cir. 1962).
The defendants contend that even if the plaintiff succeeded in showing that the admission was made by either Garbus or Morgan, exclusion of the admission was proper because Rule 901(a) required the plaintiff to identify which of these two defendants made the admission. Although the defendants ground their argument on Rule 901(a), they could perhaps more plausibly base it on Rule 801(d)(2), which provides that a statement is not hearsay if it is "offered against a party" and is "his own statement." (Emphasis added). Here the plaintiff presented a sufficient basis ...