ALOK AHUJA, Judge.
Oren Gamble sued Respondents Larry McCoy, a police informant, and Jim Browning and Dan Cline, both now retired Kansas City, Missouri police officers, for malicious prosecution, based on Gamble's conviction for burglary in 1986.
In 1985, Oren Gamble was charged with burglary based on an incident in which he and McCoy were involved. He entered an Alford plea of guilty one year later, and was given a suspended imposition of sentence and placed on probation for three years. Gamble's probation was subsequently revoked, and he was sentenced to fifteen years in the Missouri Department of Corrections. After unsuccessful attempts at post-conviction relief in both state and federal court, Judge Kelly Moorhouse of the Circuit Court of Jackson County set aside Gamble's conviction and permitted him to withdraw his guilty plea under Supreme Court Rule 29.07(d) on June 26, 2001. Judge Moorhouse's order found that a manifest injustice had occurred. This conclusion was based in significant part on her finding that the police had failed to disclose, to either the defense or the prosecution, the relationship between
Gamble then filed this civil action. He alleged that he had been working as an informant for Browning and Cline in the early 1980's, providing information about criminal activity, including stolen property. In October 1985, Gamble informed one of the two officers that McCoy wanted to sell him some stolen guns. McCoy was arrested and taken to the East Patrol Station. McCoy's father, grandfather, and uncle were current or former Kansas City police officers. According to Gamble, shortly after McCoy's arrest his father met with Browning and found out that Oren Gamble was the informant against his son. A few days later, McCoy's uncle met with Browning and Cline to work out a deal. Gamble alleged that, in exchange for dismissal of the gun charges, McCoy agreed to fabricate charges against Gamble. Browning and Cline transferred McCoy to work with the Special Investigations Division, rather than the Property Crimes Division, to pursue Gamble.
In mid-November 1985, Gamble called Browning to tell him that McCoy wanted him to help with a burglary. Gamble claimed that Browning told him to go along with McCoy on the planned burglary, but to avoid taking any overt action, such as breaking a window. Gamble did not know of Browning and Cline's meetings with McCoy's relatives, or that McCoy was cooperating with Browning and Cline to implicate Gamble.
On November 18, 1985, Gamble was arrested at the scene of the burglary McCoy had instigated, of a Circle K convenience store in Kansas City. Browning did not tell the investigating officers about his relationship with Gamble. As noted above, Gamble was convicted of the burglary.
In the first trial of this civil case, the jury found in favor of the Respondents.
Oivens v. ContiGroup Cos., 344 S.W.3d 717, 726 (Mo.App. W.D.2011) (citations and internal quotation marks omitted).
Gamble's first three Points Relied On challenge the exclusion from evidence of Judge Moorhouse's June 2001 order, which set aside Gamble's conviction and ordered his release from custody. Judge Moorhouse's order found that a manifest injustice had occurred, justifying the setting aside of Gamble's conviction under Rule 29.07(d). In the course of reaching this conclusion, the order made numerous findings which would be helpful to Gamble's litigation of this civil action, including: that Gamble had "rendered valuable service" as an informant for the Kansas City Police Department in 1984 and 1985; that Browning told McCoy that he would not be charged for various offenses if he helped "set-up" Gamble; that Browning and Cline met with McCoy's uncle and father, during which this deal with McCoy was discussed and finalized; that Gamble repeatedly rebuffed McCoy's efforts to involve Gamble in various crimes; that "[o]n November 18, 1985, the night of the burglary, the policy gave Larry McCoy specific instructions to go out with [Gamble] and to find a location to commit a burglary, and to let [Gamble] do the actual break-in in order to set him up"; and that, following Gamble's arrest, Browning misrepresented "that he was not using [Gamble] as his agent the night of the `burglary' of the Circle K store."
Instead of providing the jury with Judge Moorhouse's order (or with the exhibit prepared by Gamble which recited certain of the order's factual findings), the trial court read to the jury the following "stipulation":
We begin with Gamble's third Point Relied On, which argues that Judge Moorhouse's order was admissible because Browning, Cline and McCoy were collaterally estopped from relitigating the facts found in the order.
Gamble cannot satisfy the third element necessary to invoke collateral estoppel, because the Respondents were not in privity with the State in the proceedings which resulted in Judge Moorhouse's order. Therefore, the Respondents were not collaterally estopped from relitigating the facts found in Judge Moorhouse's order.
Under Missouri law, "[p]rivity is not established between two people merely because they both have an interest in proving or disproving the same set of facts." Steinhoff v. Churchill Truck Lines, Inc., 875 S.W.2d 175, 177 (Mo.App. E.D.1994).
Mo. Mexican Prods., Inc. v. Dunafon, 873 S.W.2d 282, 286 (Mo.App. W.D.1994) (citations omitted).
We cannot say that the State represented the Respondents' legal rights in opposing Gamble's Rule 29.07(d) motion. While both the State and the Respondents had an interest in disproving Gamble's framing theory, this alone is not enough to establish privity. The State was representing the interest of the people of Missouri in upholding Gamble's felony conviction, while the Respondents now seek to vindicate their personal reputational and pecuniary interests.
In two decisions applying Missouri law, the United States Court of Appeals for the Eighth Circuit has reached this same result, holding that police officers sued personally for Fourth Amendment violations are not bound by earlier state-court suppression rulings which found that particular searches or seizures were unlawful. Moore v. City of Desloge, Mo., 647 F.3d 841, 847 (8th Cir.2011), following Duncan v. Clements, 744 F.2d 48, 51-53 (8th Cir. 1984).
Gamble cites State v. Robinson, 835 S.W.2d 303 (Mo. banc 1992), in which the Supreme Court stated that the "prosecutor, and the entire law enforcement community, represent the state." Id. at 306. This statement was not made in the context of issue preclusion, however, but instead to explain the prosecution's duty to disclose exculpatory evidence. In addition, Robinson stated only that, during a criminal proceeding, prosecutors and law enforcement officers both represent the interests of the State; it did not suggest that prosecutors represent the individual interests of the police officers who were involved in a particular criminal investigation.
Gamble also cites Smith v. Sinclair, 424 F.Supp. 1108 (W.D.Okla.1976), in which the court found that law enforcement officers who were seeking to use collateral estoppel defensively were in privity with the State in a prior criminal prosecution:
Id. at 1112 (quoting Moran v. Mitchell, 354 F.Supp. 86, 89 (E.D.Va.1973)).
The fact that collateral estoppel was invoked defensively in Smith and Moran, against the criminal defendant/civil plaintiff, is significant. In Smith and Moran, the party against whom collateral estoppel was being asserted was identical in the earlier and later actions. The only question was whether the party asserting collateral estoppel was sufficiently involved in the earlier action, under the "mutuality of estoppel" doctrine. Consistent with most other jurisdictions, however, Missouri abandoned the "mutuality of estoppel" rule with respect to the defensive use of collateral estoppel in Oates v. Safeco Insurance Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979). See also, e.g., James v. Paul, 49 S.W.3d 678, 685 (Mo. banc 2001). Indeed, although it quotes from Moran, Smith itself recognizes that "[t]he federal rule comports with the modern trend and thus it is clear that the requirements of mutuality need not be met for collateral estoppel to be applied in an action presenting a federal question in the courts of the United States." 424 F.Supp. at 1111. Thus, Smith's finding of privity was not necessary to that court's decision. Moreover, the standard applied to determine whether the party asserting estoppel was in privity with a party to the earlier action is fundamentally different than the test for determining whether the party against whom estoppel is asserted was adequately represented in the prior case. State v. Doherty, 167 P.3d at 72-73 (distinguishing situation where plaintiff seeks to collaterally estop government official, from prior cases where "government employees us[ed] collateral estoppel in a defensive manner to prevent plaintiffs from relitigating issues that had already been unsuccessfully litigated against ... the government entities themselves"); 18 A FEDERAL PRACTICE AND PROCEDURE § 4458, at 567, 570-71 (although courts generally do not apply collateral estoppel to government officials sued in their individual capacity based on earlier litigation involving the government entity itself, "a court may yield to the temptation to avoid a perceived mutuality requirement by finding `privity' for the advantage of an official when preclusion surely should not apply to the official's disadvantage").
The Respondents were not in privity with the prosecution in the Rule 29.07(d) proceedings. We accordingly reject Gamble's contention that Judge Moorhouse's order was admissible because the Respondents were collaterally estopped from contesting the facts found in that order.
In his first Point, Gamble argues that the court erred in excluding Judge Moorhouse's order because the order was logically and legally relevant. We disagree.
Gamble invokes the principle that, "`when the record in another case forms an essential element of a party's claim or defense, the record itself must be introduced in evidence, absent an admission of its contents by the opposing party.'" Chandler v. Hemeyer, 49 S.W.3d 786, 791-92 (Mo.App. W.D.2001) (citation omitted). Here, however, the trial court's "stipulation" already informed the jury that the criminal proceedings had been resolved in Gamble's favor, which was an essential
The Eastern District rejected a claim similar to Gamble's in Williams v. Trans States Airlines, Inc., 281 S.W.3d 854 (Mo. App. E.D.2009). In that retaliatory discharge case, the circuit court admitted evidence of alleged sexual harassment and retaliation claims asserted against the defendant-employer by one of the plaintiff's co-employees. Despite admitting evidence of the other employee's allegations, the trial court excluded the federal-court opinion which granted the employer summary judgment on the other employee's claims. Id. at 874. The Eastern District found no abuse of discretion in the exclusion of the federal-court opinion. It noted that, "while it was not permitted to introduce into evidence the federal court's written opinion, [the employer] was permitted, and did present evidence to the jury that [the other employee's] charge of retaliatory discharge was dismissed by the federal court." Id. The Court also noted the "serious implications of asking a lay jury to review and opine on the implications of a legal document containing conclusions of law based upon a shifting burden of proof that is not applicable to the case before them." Id.
As in Williams, the "stipulation" read by the trial court had already informed the jury that Gamble ultimately prevailed in the criminal proceeding. Given that the Respondents were not bound by the factual findings underlying Judge Moorhouse's order, and given that Judge Moorhouse's order applied legal concepts and standards inapplicable to this case (e.g., the State's discovery obligations in criminal proceedings, the existence of "manifest injustice"), admission of the order would have presented a significant risk of unfair prejudice to the Respondents, without any substantial probative value beyond the fact of Gamble's success in that proceeding (of which the jury was already aware). The trial court did not abuse its discretion in finding that the order was not legally relevant. See, e.g., Mengwasser v. Anthony Kempker Trucking, Inc., 312 S.W.3d 368, 372 (Mo.App. W.D.2010) ("Legal relevance involves a process through which the probative value of the evidence (its usefulness) is weighed against the dangers of unfair
We note that the consensus among courts is to exclude judicial opinions because of the risk of undue prejudice.
Cardinal v. Buchnoff, No. 06CV0072-MMA(BLM), 2010 WL 3339509, at *2 (S.D.Cal. Aug.23, 2010) (quoting Carter v. Burch, 34 F.3d 257, 265 (4th Cir.1994)); see also United States v. Sine, 493 F.3d 1021, 1034 (9th Cir.2007); CPC Int'l, Inc. v. Northbrook Excess and Surplus Ins. Co., 144 F.3d 35, 45 (1st Cir.1998); Johnson v. Ford Motor Co., 988 F.2d 573, 579-81 (5th Cir.1993); Mendenhall v. Cedarapids, Inc., 5 F.3d 1557, 1566-70 (Fed.Cir. 1993); Johnson v. Colt Indus. Operating Corp., 797 F.2d 1530, 1533-34 (10th Cir. 1986).
In U.S. Steel, LLC, v. Tieco, Inc., 261 F.3d 1275 (11th Cir.2001), Tieco alleged that U.S. Steel had cooperated with the Alabama Attorney General's Office to bring unfounded state-court criminal charges against Tieco. Id. at 1280-81. The state court dismissed the criminal charges, and issued a memorandum which recounted in detail the alleged misconduct of U.S. Steel and the Alabama Attorney General in initiating the criminal proceedings. The federal district court admitted the state-court opinion into evidence. As the Eleventh Circuit dryly noted, the opinion (which had been drafted by Tieco's counsel) "neatly conformed to [Tieco's] allegations, especially with respect to the malicious prosecution, abuse of process, and civil conspiracy counterclaims." Id. at 1286. After observing that the opinion was inadmissible hearsay (an issue we need not separately address), the Eleventh Circuit proceeded to find that admission of the opinion was unfairly prejudicial. Id. at 1286-88. "The district court abused its discretion in admitting Judge Garrett's opinion. The jury, not Judge Garrett, was charged with making factual findings on [Tieco's] allegations in this case." Id. at 1288. Similarly here, the malicious prosecution determination was for the jury to make; admission of Judge Moorhouse's order would have presented a significant danger that the jury would have abdicated its fact-finding role, instead deferring to the judge's findings in the earlier proceeding.
Therefore, even if we assume that Judge Moorhouse's order was not hearsay, and had some limited logical relevance, the trial court did not abuse its discretion in concluding that any limited probative value was substantially outweighed by the danger of unfair prejudice. We reject Gamble's relevance arguments.
In Point II, Gamble argues that Judge Moorhouse's order was admissible to respond to the Respondents' attacks on his credibility. Gamble invokes a family of related doctrines: the rule of completeness, curative admissibility, invited error, and opening the door. We find none of these arguments persuasive.
Gamble contends that the Respondents' introduced multiple post-conviction pleadings he filed, in which he made various allegations against the police, prosecutors, and his own defense counsel. Gamble argues that the effect of this testimony was
Even if Gamble accurately describes the Respondents' tactics, however, we fail to see how the admission of Judge Moorhouse's order could be considered responsive, and thus admissible under the doctrines he cites. As we have found in § I.A, above, the Respondents are not bound by Judge Moorhouse's factual findings, and those findings therefore cannot be employed to establish the "truth" of particular factual propositions. In addition, we do not follow how Judge Moorhouse's findings — that the Respondents' misconduct had contributed to Gamble's criminal prosecution — would assist Gamble in responding to the claim that he had charged various other people with misconduct over the years. Judge Moorhouse did not find anyone else to be culpable — indeed, her order specifically "finds no misconduct on the part of the Jackson County Prosecutor's office," and "finds that [Gamble's] counsel ... was not ineffective." Those findings are inconsistent with the allegations of Gamble's post-conviction pleadings with which he was being confronted; the order would thus seem to hurt, rather than help, his case.
In Point IV, Gamble claims that the circuit court erred in allowing the Respondents to elicit testimony concerning irrelevant prior misconduct in which he had engaged, and by allowing Respondents to refer to this testimony in opening statement and closing argument.
Our review of the trial transcript indicates that, in many of the instances about which Gamble complains, he failed to make timely objections to the testimony or statements he now challenges. We will not convict the trial court of reversible error
We are left with three specific instances in which Gamble made relevant, timely objections to evidence or statements regarding his own past misconduct. First, during opening statement, Gamble objected to the statement by Browning's lawyer that "Detective Browning will tell you that in mid-October of 1985 he interviewed a person who had been arrested, whose name was Anthony Petalino. Mr. Petalino disclosed to him information that suggested to Detective Browning that Mr. Gamble was actively involved in criminal acts." This statement (and the unobjected-to testimony of Browning which the statement promised) was an important part of the Respondents' theory of defense, however: they contended that, after initially showing promise as an informant, Gamble had become less cooperative, and by the Fall of 1985 the detectives were concerned that Gamble was using his relationship with the police to further his own criminal activities, which continued unabated. The trial court did not abuse its discretion by overruling Gamble's objection to this statement.
Second, Gamble timely objected to the reading of a portion of his deposition testimony, in which he acknowledged that, in 1983 when he first contacted Browning, he had moved with his wife and son out to Raytown. Gamble went on to testify that
Although in this deposition excerpt Gamble states that he was seeking to "distanc[e] [him]self from people that were doing illegal activities," and "straighten
Finally, Gamble objected to testimony concerning an incident in which he identified himself to a Wichita, Kansas law enforcement officer using a false name and identification, and continued to identify himself by the false name even after being convicted of a municipal ordinance violation. As an initial matter, we note that Gamble's counsel did not object when Gamble was asked whether "there was a period of time — maybe it still exists — that you had a fake ID in the name of Vernon Gibson." Further, "[w]hen a person, regardless of whether a party, is being questioned on the witness stand, then long-standing Missouri law holds that the person may be asked about specific instances of his or her own conduct that speak to his or her own character for truth or veracity, even where the issue inquired about is not material to the substantive issues in the case." Mitchell v. Kardesch, 313 S.W.3d 667, 677 (Mo. banc 2010). Gamble's use of false identification and a false identity is certainly relevant to his truthfulness.
We recognize that despite the general rule permitting the admission of evidence of prior conduct reflecting on a witness' veracity, "the admission of such evidence is subject to the trial court's discretion in limiting or excluding such evidence when its probative value is outweighed by its prejudicial effect." State v. Winfrey, 337 S.W.3d 1, 10 (Mo. banc 2011). Moreover, the Supreme Court has acknowledged that "the fact that a person has told a lie on an irrelevant issue that is remote in time or subject may make the... evidence of little value in determining the witness' character for truth and veracity." Mitchell, 313 S.W.3d at 681-82. Here, however, beyond arguing that the evidence was categorically inadmissible — a proposition we reject — Gamble makes no argument that the trial court abused its discretion in permitting the testimony in light of the timing or circumstances of the Wichita incident. Although an argument could potentially be constructed that the evidence was not legally relevant because its probative value was outweighed by the danger of unfair prejudice, we will not assert such an argument for Gamble, where he has failed to make one himself.
Finally, Gamble argues that he was unfairly surprised by Respondents' introduction of the evidence of misconduct. Our review of the record reveals, however, that Gamble made no objection during trial on this basis. This alone defeats his claim.
Keyte v. Parrish, 399 S.W.2d 601, 605 (Mo. App.1966); see also, e.g., Ark-Mo. Power Co. v. Haines, 592 S.W.2d 883, 885 (Mo. App. S.D.1980).
In Point V, Gamble argues that the circuit court erred in excluding the full versions of the two videotapes in which McCoy admitted his role in setting up Gamble on bogus charges.
The admissibility of these videotapes was an issue in the prior appeal. In the first trial, the court admitted portions of the first video, but had excluded the remainder, and all of the second tape. Gamble argued that it was an abuse of discretion to exclude three other portions of the first tape, in all of which McCoy referred to his involvement in setting up Gamble in cooperation with the police, as well as to exclude the entire second tape. Gamble v. Browning, 277 S.W.3d 723, 728 (Mo.App. W.D.2008). We held that it was an abuse of discretion not to admit an excerpt from the first tape where McCoy clearly admitted culpability, and that the evidence was admissible against all parties because Browning and Cline did not seek a limiting instruction. Id. We did not rule on the admissibility of two other excerpts from the first tape because they were vague as to the identity of the police officers with whom McCoy was working. Id.
As to the second tape, we found that the trial court had erred in excluding the entire tape on the basis that it contained hearsay and was self-serving. Id. at 728-29. While we observed that the general rule is that self-serving statements are hearsay, we noted that the trustworthiness of such statements is bolstered when the other party assents. Id. at 729. Because McCoy had assented to many of Gamble's self-serving statements, we found that it was error to exclude the whole tape, though we acknowledged that many parts of the tape were irrelevant and other parts might be hearsay. Id. Again, Browning and Cline failed to argue that these statements were only admissible against McCoy. Id. We concluded that the error in the exclusion of one excerpt in the first videotape, and in the exclusion of the entire second videotape, were prejudicial and required that Gamble be afforded a new trial. Id.
Unlike in the first trial, in the second trial the circuit court allowed certain portions of the second tape to be played for the jury. Furthermore, Gamble has not identified in his Brief the portions of the first videotape that he contends were erroneously excluded. Gamble also failed to make a specific offer of proof at trial detailing why the evidence was relevant and admissible. See Chamberlain v. Dir. of Revenue, 342 S.W.3d 334, 339 (Mo. App. S.D.2011) ("Generally, in order to preserve an issue of exclusion of evidence for appeal, a definite and specific offer of proof demonstrating why the evidence is relevant and admissible must be made at trial.") (emphasis added) (citation and quotation marks omitted). Because the excerpts Gamble contends were erroneously excluded have not been identified on appeal, or properly preserved at trial, we cannot say that the circuit court abused its discretion.
Lastly, Gamble argues that the entire videotapes should have been admitted to rebut Respondents' arguments that the videos were staged. Many of the excluded portions of the tapes apparently showed the participants engaged in everyday behavior, such as leaving the room to use the bathroom, smoking cigarettes, or discussing unrelated subjects. Gamble contends these excerpts would have shown that the persons depicted were acting naturally, and thus that the videotapes were not fabricated. Although we acknowledge that showing the entire videotapes may have had some limited tendency to rebut a contention that they were fabricated, we do not believe this tenuous connection required the trial court to play the entirety of the videotapes to the jury, given their length, and the fact that they included material which was plainly irrelevant. Gamble did not request more limited relief, such as having the court advise the jury that the tapes had been edited to exclude irrelevant matter. The circuit court did not abuse its discretion in proceeding as it did.
Finally, in Point VI Gamble argues that the trial court erred in denying his new-trial motion because of the cumulative prejudicial effect of the errors alleged in his other Points. Because we have not found error in any of the other Points, there was no prejudicial effect to be cumulated; Point VI is accordingly denied. Goltz v. Masten, 333 S.W.3d 522, 526 (Mo. App. W.D.2011) (citing Ziolkowski v. Heartland Reg'l Med. Ctr., 317 S.W.3d 212, 223-24 (Mo.App. W.D.2010)).
The circuit court's judgment is affirmed.
All concur.
Since this application of the doctrine of curative admissibility is based on the notion that the jury might be misled if contradictory evidence was excluded, the doctrine should not justify admission of that evidence when it is likely to do more harm in this respect than good. Thus, admissibility of evidence offered on the basis that defendant has opened the door should be evaluated under [Federal] Rule [of Evidence] 403 [, which codifies "legal relevance" principles].
27 C.A. Wright & V.J. Gold, FEDERAL PRACTICE AND PROCEDURE § 6096, at 667 n. 37 (2007); see also 21 C.A. Wright & K.W. Graham, Jr., FEDERAL PRACTICE AND PROCEDURE § 5039.1, at 837-38 (2d ed.2005) ("opening the door does not deprive the trial court of the power to exclude evidence coming through it by an exercise of the discretion conferred by Rule 403").