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Tenorio v. Pitzer

United States District Court, D. New Mexico

February 19, 2019

RUSSELL TENORIO, Plaintiff,
v.
BRIAN PITZER, and THE CITY OF ALBUQUERQUE, Defendants.

          OMNIBUS MEMORANDUM OPINION AND ORDER

         This matter comes before the Court on the following motions: (i) Plaintiff's Motion in Limine I to Limit Evidence or Testimony Regarding Plaintiff's Alleged Prior Alcohol or Drug Use and Prior Convictions (ECF No. 199); (ii) Plaintiff's Motion in Limine II to Preclude Evidence of Plaintiff's Prior Convictions (ECF No. 200); (iii) Plaintiff's Motion in Limine III to Exclude Testimony from Michelle Tenorio, Robert Torres and Hilda Valdez, Pursuant to Federal Rules of Evidence 801 through 807 (ECF No. 201); (iv) Defendants' Motion in Limine No. I: Motion to Exclude Introduction of Evidence from Other Cases or Claims or any Evidence of Allegations of Prior and Subsequent Bad Acts from Phase I of Trial (ECF No. 202); (v) Defendants' Motion in Limine No. II: Motion to Exclude any Evidence Regarding Alleged Violation of Police Standard Operating Procedures (ECF No. 203); (vi) Defendants' Motion in Limine No. III: Motion Requesting to Exclude Evidence of any Testimony, Opinions, Inferences, Exhibits, or Arguments that Officers Allegedly did not Follow Training and/or Should Have Used Less Intrusive Means (ECF No. 204); (vii) Defendants' Motion in Limine No. IV: Motion Requesting to Exclude Evidence of and Related to Plaintiff's Arrest, Detention in Jail, and Criminal Prosecution (ECF No. 205); (viii) Defendants' Motion in Limine No. V: Motion Requesting to Exclude Evidence of and Related to Claims Asserted in and Settlement of Witnesses' Lawsuits (ECF No. 206); (ix) Defendants' Motion in Limine No. VI: Motion Requesting to Exclude the 4/10/14 Department of Justice Letter and the Settlement Agreement between the Department of Justice and the City of Albuquerque from Evidence or any Reference or Questions of Witnesses Concerning these Reports (ECF No. 207); and (x) Defendants' Motion in Limine No. VII: Motion to Preclude Plaintiff's Treating Physicians from Giving Opinion Testimony (ECF No. 208). The Court, having considered the motions, briefs, applicable law, and otherwise being fully advised, issues the rulings contained herein.

         I. PROCEDURAL HISTORY

         Plaintiff filed suit against Defendants Brian Pitzer and the City of Albuquerque (“the City”) asserting claims arising from events that occurred on November 11, 2010, in which Albuquerque Police Officer Pitzer shot Russell Tenorio when responding to an emergency call. The case was consolidated with the related case of Russell Tenorio v. Andrea Ortiz, CIV 13-574. See Order, ECF No. 96. On June 14, 2016, the parties stipulated to the dismissal of all claims asserted against Defendants Robert Liccione, Raymond Schultz, and Andrea Ortiz. See Stipulated Dismissal, ECF No. 154. The claims that remain in the consolidated cases are an excessive force claim under 42 U.S.C. § 1983 for violation of the Fourth Amendment against Defendant Pitzer (Count I) and a municipal liability claim under 42 U.S.C. § 1983 against the City (Count II) in No. 12-cv-1295. See Mem. Op. and Order 2, ECF No. 178. There are two theories of liability applicable to Count I: (1) Defendant Pitzer lacked probable cause to believe Russell Tenorio presented a threat of serious physical harm to another person, and (2) he and his fellow officers recklessly and unreasonably created the situation resulting in the need to use deadly force. See Mem. Op. and Order 8-13, ECF No. 121. In a subsequent Memorandum Opinion and Order, this Court granted Defendants' motion to bifurcate in part, by bifurcating the one trial into two phases before the same jury: first, the jury will consider evidence relevant to whether Defendant Pitzer used excessive force (Count I); and second, the jury will consider evidence pertaining to the municipal liability claim (Count II), should it be necessary. Mem. Op. and Order 19, ECF No. 192.

         II. LAW

         Rule 401 states that evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed.R.Evid. 401. A court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice or confusion of the issues. Fed.R.Evid. 403. Rule 404(b) prohibits the admission of evidence of crimes, wrongs, or other acts to prove a person's character to show action that conforms to that character, but it allows evidence of other bad acts if admissible for other purposes, such as intent, knowledge, absence of mistake, or lack of accident. See Fed. R. Evid. 404(b).

         A party in a civil case may attack a witness's character for truthfulness by evidence of a criminal conviction punishable by imprisonment for more than one year. Fed.R.Evid. 609(a)(1). Such evidence “must be admitted, subject to Rule 403, in a civil case.” Fed.R.Evid. 609(a)(1)(A). For crimes punishable by less than a year imprisonment, evidence is admissible if the elements for the crime required proving a dishonest act or false statement. Fed.R.Evid. 609(a)(2). “[I]f more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later, ” the evidence of conviction is only admissible if “its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect” and the proponent gives written notice of an intent to use the evidence. Fed.R.Evid. 609(b).

         Rule 608(b) provides: “Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness.” Fed.R.Evid. 608(b). However, a court may allow a party to cross-examine a witness about specific instances of a witness's conduct if the incidents are probative of the character of the witness for truthfulness or untruthfulness. Id. Testimony brought under Rule 608(b) is subject to Rule 403 balancing to determine its admissibility. United States v. Atwell, 766 F.2d 416, 420 (10th Cir. 1985).

         III. LEGAL ANALYSIS

         A. Plaintiff's Motion in Limine I to Limit Evidence or Testimony Regarding Plaintiff's Alleged Prior Alcohol or Drug Use and Prior Convictions (ECF No. 199)

         Plaintiff seeks to exclude any witness from referring to Plaintiff as an “alcoholic, ” “addict, ” or “drug addict, ” from introducing evidence of Plaintiff's use of alcohol or drugs prior to November 11, 2010, and from introducing evidence of prior convictions of Plaintiff that were not known to the officers at the time. Plaintiff contends that the labels refer to medical diagnoses requiring expert opinion. As for Plaintiff's prior convictions, the Court will discuss the admission of the convictions in the next section as they were also the topic of Plaintiff's Motion in Limine II (ECF No. 200).

         Turning to Mr. Tenorio's prior alcohol and drug use, it appears undisputed that Ms. Valdez called 911 for assistance with Mr. Tenorio and “told APD dispatch that Plaintiff had been drinking; that he had a knife, which he had held to his throat; that he had threatened to kill himself; that no one at the house was injured; that Plaintiff had broken some windows; and that she was afraid he was going to hurt himself or his wife.” Pl.'s Mot. 3, ECF No. 199. When asked by dispatch whether he had done this before, Ms. Valdez replied “yes” that he had gotten intoxicated but could not drink because he was on anti-seizure medications. Id. According to Plaintiff, dispatch told the officers “that the subject was intoxicated, a possible suicide, with a history of seizures, was violent, and still had a knife.” Id. at 4-5. Consequently, information of Mr. Tenorio's past alcohol or drug use, unknown to Officer Pitzer and the other officers on November 11, 2010, would be irrelevant to the question of the reasonableness of Officer Pitzer's use of force, so the officers and the parties' excessive force expert witnesses should not introduce such evidence. Indeed, Defendants acknowledge that they will not be asking their expert about Plaintiff's alcoholism and past drug use, but they would ask about Plaintiff's alcohol use on November 11, 2010, because that information was known to the officers. Defs.' Resp. 2 n.1, ECF No. 223.

         Defendants, however, also argue that the evidence is relevant to rebut Plaintiff's assertion that his chronic kidney disease developed due to the gunshot wound and to the issue of Plaintiff's life expectancy for purposes of calculating damages. Defendants seeks to cross examine Plaintiff's treating physicians as to whether alcohol use and/or a family history of chronic kidney disease can cause the condition. Mr. Tenorio's history of alcohol and drug use may be relevant to his damages. Cf. Lewis v. District of Columbia, 793 F.2d 361, 363 (D.C. Cir. 1986) (holding that prior drug use was admissible under Rule 404(b) to allow jury to assess whether damages flowed from shooting or from drug withdrawal). The Court will therefore deny Plaintiff's request to exclude the evidence of Mr. Tenorio's past drug and alcohol use for the limited purpose of assessing damages, and the jury will be instructed as the limited purpose of the evidence. The Court, however, will prohibit a witness from referring to Plaintiff as an “alcoholic” or “addict” unless the foundation is first laid that the witness has adequate knowledge or expertise to provide the testimony.

         B. Plaintiff's Motion in Limine II to Preclude Evidence of Plaintiff's Prior Convictions (ECF No. 200)

         Plaintiff seeks to exclude evidence at trial of Mr. Tenorio's prior convictions for attempted larceny in 1994, commercial burglary in 1998, and two misdemeanor counts of attempted aggravated assault with a deadly weapon in March 2007. Plaintiff argues that the age of the convictions and the minimal probative value of the evidence compels their exclusion under Rules 609 and 403. Defendants argue the prior convictions are probative of Mr. Tenorio's intent and mental capacity to commit a crime; his prior knowledge that attempted aggravated assault with a deadly weapon was a crime; and to rebut Plaintiff's claim for damages. Defendants also seek to use evidence of Plaintiff's commercial burglary for purposes of impeachment.

         1. Attempted Aggravated Assault with a Deadly Weapon

         On March 9, 2007, Mr. Tenorio pled guilty to two misdemeanor counts of attempt to commit aggravated assault with a deadly weapon for events occurring on September 22, 2006. See Def.'s Ex. K, ECF No. 223-2; Def.'s Ex. L, ECF No. 223-4. According to the police report, the 2006 incident involved Plaintiff pulling out a knife, waving it in the direction of two persons as he was escorted out of a bar, stepping towards the men with the knife still in his hand, then walking away, and eventually dropping the knife. See Def.'s Ex. K1, ECF No. 223-2.

         Defendants assert that Plaintiff has made his intent an issue in this case by claiming in his summary judgment response that he never intentionally or unintentionally moved the paring knife at his side or made an action establishing aggressive intent towards the officers or other persons. Defendants therefore argue that the March 2007 plea of guilty to two counts of attempted aggravated assault with a knife is relevant to Mr. Tenorio's intent to commit a crime when he closed the distance on Officer Pitzer with a knife at his side. Rule 404(b), however, prohibits the admission of evidence of crimes, wrongs, or other acts to prove a person's character to show action that conforms to that character. See Fed. R. Evid. 404(b). The Court finds the evidence has insufficient probative value of Mr. Tenorio's intent on November 11, 2010 to overcome its prejudicial effect.

         Defendants additionally argue that evidence of the 2007 plea is admissible to show Mr. Tenorio understood that attempted assault with a knife is a criminal offense and had the ability to comply with a command to “drop the knife, ” rebutting any claim Plaintiff may make that his traumatic brain injury rendered him incapable of understanding or complying with Officer Pitzer's commands to put down the knife. Should evidence be introduced that Mr. Tenorio's traumatic brain injury rendered him incapable of understanding and/or complying with Officer Pitzer's commands, then perhaps the evidence could have impeachment value. At this stage, however, the Court finds the possible relevance of the evidence is outweighed by its prejudicial effect and will exclude evidence of the 2007 misdemeanor convictions. This ruling does not prevent Defendants from raising this issue again at trial if the impeachment value becomes apparent.

         2. Commercial Burglary

         Mr. Tenorio pled no contest on or around March 12, 1998, to the charge of commercial burglary, a 4th degree felony. See Def.'s Ex. J, ECF No. 223-1. Mr. Tenorio was placed on two years of probation and later received a conditional discharge. Pl.'s Ex. 3, ECF No. 200-3. Plaintiff contends that, because he received a conditional discharge, the charge does not constitute a conviction under Rule 609(c) and the evidence is not admissible under Rule 609. Additionally, Plaintiff argues that the age and facts of the crime make the probative value minimal and outweighed by the prejudicial effect.

         Federal Rule of Evidence 609(c)(1) provides that a conviction is not admissible if “the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year.” Under New Mexico law, a “conditional discharge entered without an adjudication of guilt is not considered a conviction.” State v. Lassiter, 2016-NMCA-078, ¶ 6, 382 P.3d 918. Plaintiff thus asserts that a conditional discharge is an “equivalent procedure based on a finding that the person has been rehabilitated.” Although Defendants argue the plea is admissible under Rule 609(a), they did not refute Plaintiff's argument that Rule 609(c)(1) bars the commercial burglary charge. Defendants have thus not met their burden to show the admissibility of the 1998 commercial burglary no-contest plea under Rule 609.

         In addition to the prohibition under Rule 609(c), Rule 609(b) provides a 10-year time limit, such that for felonies more than 10 years old, the evidence of conviction is only relevant if the proponent gives written notice and “its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.” Fed.R.Evid. 609(b). The Court is not convinced that the no-contest plea sheds light on Defendants' ability to understand Officer Pitzer's commands, and thus is more prejudicial than probative to issues regarding liability. Defendants also assert that the crime of burglary is an act of dishonesty and admissible under Rule 608(b). Again, Defendants have not persuaded the Court that the commercial burglary plea is sufficiently probative of Mr. Tenorio's honesty to outweigh its prejudicial effect. Accordingly, the Court will exclude evidence of Mr. Tenorio's 1998 commercial burglary under Rule 608 as well.

         3. Attempted larceny

         According to the police report, on November 4, 1994, Mr. Tenorio took without permission a wheelchair from Presbyterian Hospital. See Pl.'s Ex. 4, ECF No. 200-4. When the officer asked what he was doing, Mr. Tenorio reportedly responded, “I want to go to jail.” Id. Mr. Tenorio was convicted of misdemeanor larceny for which he was reportedly placed on 364 days of supervised probation. See Pl.'s Mot. 1-2, ECF No. 200. Given the age of the misdemeanor conviction and the facts surrounding it, the Court is not convinced it is sufficiently probative of Mr. Tenorio's truthfulness or to any fact at issue in this case to outweigh its prejudicial effect. The Court will therefore exclude the evidence of Mr. Tenorio's 1994 larceny conviction under Rules 403 and 609(b).

         4. Probative value to rebut damages

         Finally, Defendants contend the evidence of convictions is admissible to rebut Plaintiff's claims of damages and life expectancy. Based on the record before it, the Court is not persuaded that Mr. Tenorio's criminal history is sufficiently probative of Mr. Tenorio's lifestyle and life expectancy to outweigh its prejudicial effect. The Court, however, currently is unaware of all the evidence Plaintiff intends to present to support his damages claim. This ruling does not preclude Defendants from re-raising the issue at trial outside the presence of the jury should Plaintiff open the door to the probative value of the evidence to rebut his damages claim.

         C. Plaintiff's Motion in Limine III to Exclude Testimony from Michelle Tenorio, Robert Torres and Hilda Valdez, Pursuant to Federal ...


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