Brodeur v. Champion

          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 ...