United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION IN LIMINE (DOC. NO.
41)
Robert
M. Spector United States Magistrate Judge.
The
plaintiff, Paul Brodeur, filed this motion in limine
to preclude the defendants[1] from introducing evidence at trial
concerning the plaintiff's criminal convictions and
prison disciplinary record. (Doc. No. 41). The plaintiff
argues that evidence concerning his disciplinary history at
the Department of Correction [“DOC”], including
adjudications and punishments resulting from the altercation
at issue in this case, and his criminal record, other than
the fact that he has been convicted of a felony, is highly
prejudicial and must be excluded in order to ensure a fair
trial. (Doc. No. 41; see Doc. No.
41-1).[2]
For the
reasons detailed below, the plaintiff's Motion in
Limine (Doc. No. 41) is GRANTED in part and DENIED in
part.
I.
BACKGROUND
The
plaintiff filed this action pursuant to 42 U.S.C. §
1983, alleging that the defendants Lieutenant Champion,
Correctional Officer Terranova, Correctional Officer Plante,
and Correctional Officer Bragdon, used excessive and
unjustified force against him on November 18, 2014 at the
Corrigan Correctional Institution, where he was housed as an
inmate, in violation of the Eighth Amendment of the United
States Constitution. (Doc. No. 1). The plaintiff alleges that
he suffered physical injuries, emotional distress including
fear, humiliation, embarrassment, stress, anxiety, and
depression, and pain and suffering. (Id.).
II.
DISCUSSION
“A
motion in limine to preclude evidence calls on the
[C]ourt to make a preliminary determination on the
admissibility of evidence under Rule 104 of the Federal Rules
of Evidence.” Highland Capital Mgmt., L.P. v.
Schneider, 379 F.Supp.2d 461 (S.D.N.Y. 2005) (internal
quotation marks omitted). “The purpose of a motion
in limine is to allow the trial court to rule in
advance of trial on the admissibility and relevance of
certain forecasted evidence.” Dougherty v. County
of Suffolk, No. CV 13-6493 (AKT), 2018 WL 1902336, at *1
(E.D.N.Y. Apr. 20, 2018) (internal quotation marks omitted);
Highland Capital Mgmt., 379 F.Supp.2d at 467.
“[O]nly when the evidence is clearly inadmissible on
all potential grounds should such evidence be excluded on a
motion in limine.” Dougherty, 2018 WL
1902336, at *1 (internal quotation marks omitted). “A
district court's in limine ruling ‘is
subject to change when the case unfolds, particularly if the
actual testimony differs from what was contained in the . . .
proffer.'” Highland Capital Mgmt., 379
F.Supp.2d at 467 (citing Luce v. United States, 469
U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984)); see
Dougherty, 2018 WL 1902336, at *1.
A.
THE PLAINTIFF'S CONVICTIONS AND RULES 609 AND
403
The
plaintiff contends that Fed.R.Evid. 609 bars admission of his
criminal history, as “[a]lthough Mr. Brodeur has
convictions falling within the ten-year period set forth in
Rule 609(a)(1)(A), the convictions should be excluded under
Rule 403 because they are not probative of [his] character
for truthfulness and their admission would be unduly
prejudicial.” (Doc. No. 41-1 at 1-2). Specifically, the
plaintiff argues that his convictions in May 2013 for
third-degree robbery and third-degree burglary, his
conviction in September 2014 for third-degree robbery again,
and his June 2015 conviction for second-degree assault,
should be excluded under Rule 403 because they are not
probative of the plaintiff's character for truthfulness,
and “there is a substantial risk that the jury will
improperly consider the evidence as indicating a likelihood
that Mr. Brodeur instigated the incident with the
officers.” (Doc. No. 41-1 at 3 & n.1). In response,
the defendants argue that “the [C]ourt should permit
the defendant to offer the ‘essential facts' of
[the plaintiff's] conviction[s].”[3] (Doc. No. 45 at
7).
Both
Rule 609(a)(1) and (a)(2) of the Federal Rules of Evidence
“contemplate admitting ‘evidence' of a
witness's convictions for impeachment purposes.”
United States v. Estrada, 430 F.3d 606, 615 (2d Cir.
2005). The first prong of Rule 609 of the Federal Rules of
Evidence applies to “attacking a witness's
character for truthfulness” by evidence of a felony
conviction, subject to the balancing test set forth in Rule
403 of the Federal Rules of Evidence. Fed.R.Evid. 609(a)(1).
The court, therefore, may exclude evidence of a felony
conviction less than ten years old “if its probative
value is substantially outweighed” by, inter
alia, unfair prejudice. Fed.R.Evid. 609(a)(1)(A);
Fed.R.Evid. 403. Under the second prong of Rule 609, the
evidence of the criminal conviction “must be admitted
if the court can readily determine that establishing the
elements of the crime required proving-or the witness's
admitting-a dishonest act or false statement.”
Fed.R.Evid. 609(a)(2).
The
Second Circuit has explained that, under the second prong of
Rule 609(a), “evidence of conviction of a certain type
of crime involving ‘dishonesty or false statement'
must be admitted, with the trial court having no discretion,
regardless of the seriousness of the offense or its prejudice
to the defendant.” United States v. Hayes, 553
F.2d 824, 827 (2d Cir. 1977) (footnotes omitted). “The
use of the second prong of Rule 609(a) is thus restricted to
convictions that bear directly on the likelihood that the
defendant will testify truthfully (and not merely on whether
he has a propensity to commit crimes.)” Id.;
see Fed. R. Evid. 609 Advisory Committee's Note
(1974) (“The admission of prior convictions involving
dishonesty and false statement is not within the discretion
of the court. Such convictions are peculiarly probative of
credibility and, under this rule, are always to be
admitted.”). Convictions for crimes like burglary and
robbery, “do not come within this clause.”
Id.; see United States v. Sellers, 906 F.2d
597, 603 (11th Cir. 1990) (“[C]rimes such as theft,
robbery, or shoplifting do not involve ‘dishonesty or
false statement' within the meaning of Rule
609(a)(2).”)
Although
evidence of the plaintiff's convictions for robbery and
burglary do not fall within Rule 609(a)(2), the court must
embark on an “individualized balancing analysis under
Rule 609(a)(1)[, ]” which includes an examination of
“the relative probative worth of a witness's
specific offenses of conviction, . . . in light of the
factors listed under Rule 403[.]” Estrada, 430
F.3d at 616-17. When proceeding through the Rule 403
analysis, courts consider the following factors: “(1)
the impeachment value of the crime, (2) the remoteness of the
prior conviction, (3) the similarity between the past crimes
and the conduct at issue, and (4) the importance of the
credibility of the witness.” Daniels v.
Loizzo, 986 F.Supp. 245, 250 (S.D.N.Y. 1997); see
also Ramos v. Trifone, No. 3:11-CV-679 (SALM), 2015 WL
6509114, at *4 (D. Conn. Oct. 28, 2015).
Robbery
in the third-degree under Connecticut law involves the use of
physical force in the commission of the crime. Conn. Gen.
Stat. § 53a-136. Because “robbery requires the use
of force . . ., [it] is a crime of violence, rather than a
theft offense[.]” United States v. Crumble,
18-CR-32 (ARR), 2018 WL 2016852, at *8 (E.D.N.Y. May 1,
2018). Burglary in the third-degree is when a person
“enters or remains unlawfully with intent to commit a
crime therein.” Conn. Gen. Stat. § 53a-103(a).
Additionally, assault in the second-degree involves
intentionally causing injury to another person. Conn. Gen.
Stat. § 53a-60.
In this
case, the plaintiff's claim for excessive force involves
acts of violence and bears similarity to the plaintiff's
history of convictions for robbery, burglary, and assault.
“As a general rule of thumb, crimes of violence and
assaultive behavior have limited probative value concerning a
witness's credibility.” Dougherty v. Cty of
Suffolk, CV 13-6493 (AKT), 2018 WL 1902336, at *4
(E.D.N.Y. Apr. 20, 2018) (citations and internal quotations
omitted). Moreover, the plaintiff is correct that
“given the nature of [the plaintiff's] prior felony
convictions, there is a great risk that the jury will
consider them improperly” as evidence of a propensity
towards violent behavior. (Doc. No. 41-1 at 4). Accordingly,
the Court concludes that all the details of the
plaintiff's convictions are not admissible under
Fed.R.Evid. 609(a)(1). In their Joint Trial Memorandum, the
parties have stipulated to the following: “At the time
of the events giving rise to this lawsuit, Mr. Brodeur was a
convicted felon imprisoned at Corrigan Correctional
Institution.” (Doc. No. 40 at 3). Balancing the factors
...