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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"Alicea v. Ralston" (2008). 2008 Decisions. Paper 1214.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1214


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                                                    NOT PRECEDENTIAL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

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                 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

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standard.” United States v. Leahy, 

, 642 (3d Cir. 2006) (quoting United

States v. Coyle, 

, 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 

jury instructions, “we consider the totality of the instructions and not

a particular sentence or paragraph in isolation.” 

       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:



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              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, 

, 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



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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, 

, 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, 

, 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,

, 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, 

, 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.” 

(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 

. We will affirm.




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