Miller v. Arbogast , 445 F. App'x 116 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 25, 2011
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
WILLIAM MILLER,
Plaintiff - Appellant, No. 11-2010
v. D. New Mexico
DONNA ARBOGAST, MICHAEL (D.C. No. 6:05-CV-00577-BB-LAM)
FOX, and PAUL SPIERS,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before MURPHY, BRORBY, and GORSUCH, Circuit Judges.
I. Introduction
Plaintiff-Appellant, William Miller, appeals from the entry of summary
judgment in favor of Defendants Donna Arbogast, Michael Fox, and Paul Spiers
in this 42 U.S.C. § 1983 malicious prosecution action. Miller’s claims arise from
the investigation of the 1999 murder of Girly Hossencofft in Albuquerque, New
Mexico. The district court granted summary judgment to all defendants because
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Miller failed to produce sufficient evidence from which a reasonable juror could
find in his favor on each element of his claim. Exercising jurisdiction pursuant to
28 U.S.C. § 1291, this court affirms.
II. Background
Girly Hossencofft disappeared sometime between September 9 and
September 10, 1999. On September 8, she called the Albuquerque FBI and told
them she was afraid her husband, Diazien Hossencofft, was about to kill her.
When she did not report to work on September 10, officers entered Girly’s
apartment to check on her safety. They discovered stains with a reddish tint on
the carpet and a strong odor of bleach. The next day, New Mexico State Police
Department officers discovered a tarp along U.S. Highway 60 near Magdalena,
New Mexico (“the Magdalena tarp”). The tarp contained bloody clothing, cloth,
duct tape, and gauze, as well as other trace evidence such as human hairs and both
dyed and natural animal hairs. Girly’s DNA was found on the tarp. Diazien
Hossencofft, Girly’s husband, and his girlfriend, Linda Henning, were eventually
convicted of the murder and kidnaping of Girly, whose body was never found.
Early in the investigation, however, Miller was also a suspect. Michael Fox was a
detective at the Albuquerque Police Department and the lead investigator into
Girly’s disappearance and murder. Donna Arbogast was an Albuquerque Police
Department forensic scientist involved in the investigation. Paul Spiers was an
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assistant district attorney who presented evidence to the grand jury and who
Miller alleges directed the investigation targeting him.
In 1999, Spiers sought a murder and kidnaping indictment against Miller in
connection with Girly’s disappearance. The 1999 grand jury did not return an
indictment. On February 12, 2001, Fox attested to an arrest warrant for Miller.
Spiers again sought an indictment, this time presenting testimony from Arbogast
linking certain trace evidence found on the Magdalena tarp and in Girly’s
apartment, such as dyed and natural animal hair, with trace evidence found in
Miller’s residence. The 2001 grand jury did not return an indictment for first or
second degree murder, but did return an indictment for conspiracy to commit first
degree murder, kidnaping, conspiracy to commit kidnaping, and several evidence
tampering charges. As a result of his 2001 arrest and indictment, Miller was
incarcerated for approximately seven weeks. On May 24, 2002, a nolle prosequi
was filed dismissing the 2001 indictment. In May of 2002, Spiers sought an
indictment for a third time. The grand jury returned an indictment for five counts
of evidence tampering against Miller, but did not return an indictment on any of
the murder, conspiracy, or kidnaping charges. Miller pleaded no contest to three
of the tampering charges. He then brought suit against Arbogast, Fox, and Spiers
in the Federal District Court for the District of New Mexico under 42 U.S.C.
§ 1983.
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This is the second appeal in this case. In Miller v. Spiers, 339 F. App’x
862, 867 (10th Cir. 2009), this court held Miller’s claims were properly
characterized as alleging a single malicious prosecution conspiracy by the
defendants. The court therefore vacated the decision of the district court, which
had granted summary judgment to the defendants by treating Miller’s complaint
as alleging multiple Fourth and Fourteenth Amendment violations. Id. at 864.
On remand, the district court was instructed to analyze Miller’s allegations as a
single § 1983 claim resembling the common law tort of malicious prosecution.
Id. This court also instructed the district court to address whether all or part of
Miller’s claim was precluded by lack of favorable termination or by Heck v.
Humphrey, 512 U.S. 477 (1994). Id. at 868–69.
On remand, the district court concluded Miller could not base his malicious
prosecution claim on any of the evidence tampering charges due to lack of
favorable termination. However, the court resolved the Heck/favorable
termination issues in Miller’s favor with respect to the conspiracy to commit
murder and kidnaping charges. It nonetheless granted summary judgment to each
defendant. As to Arbogast, the district court concluded there was no evidence
from which a reasonable jury could conclude she fabricated evidence or conspired
to fabricate evidence. As to defendants Fox and Spiers, the district court
determined Miller’s arrest was supported by probable cause, and hence no
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reasonable juror could find in his favor on a malicious prosecution claim. Miller
appeals. 1
III. Discussion
A. Standard of Review
“We review a district court’s grant of summary judgment de novo, using
the same standards applied by the district court.” Baca v. Sklar, 398 F.3d 1210,
1216 (10th Cir. 2005). Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “To avoid
summary judgment, the nonmovant must make a showing sufficient to establish
an inference of the existence of each element essential to the case.” Hulsey v.
Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)). “The nonmovant ‘may not rest upon mere
1
The court rejects Miller’s arguments that disputed issues of material fact
were already established during the previous round of summary judgment
motions. In Miller v. Spiers, 339 F. App’x 862, 869 (10th Cir. 2009), this court
instructed the district court to: “determine the particular confines of Miller’s
malicious prosecution claim.” The district court was also instructed to “inquire
into (1) whether Miller’s attempted tampering by destroying the business cards
bore upon the prosecutor’s ultimate decision to dismiss the murder, conspiracy,
and kidnaping charges, or (2) whether the tampering charges are integral to the
alleged conspiracy by the Defendants such that his § 1983 claim would impugn
the validity of his tampering convictions.” Id. After addressing these issues, it
remained for the district court to determine whether Miller could produce
sufficient evidence to withstand a motion for summary judgment on the merits.
The district court’s conclusions on that issue are therefore properly before this
court in this second appeal.
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allegation or denials of his pleadings, but must set forth specific facts showing
that there is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986)). Reasonable inferences from the evidence must
be drawn in favor of the non-moving party. See Matsushita Electric Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B. District Court’s Decision
To state a claim for malicious prosecution, a plaintiff must show: “(1) the
defendant caused the plaintiff’s continued confinement or prosecution; (2) the
original action terminated in favor of the plaintiff; (3) there was no probable
cause to support the original arrest, continued confinement, or prosecution; (4)
the defendant acted with malice; and (5) the plaintiff sustained damages.”
Novitsky v. City of Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007). With respect to
defendants Spiers and Fox, the district court concluded Miller failed to produce
sufficient evidence to establish a genuine dispute of material fact as to the third
element of his malicious prosecution claim: lack of probable cause. With respect
to defendant Arbogast, the district court did not engage in a probable cause
inquiry because it determined Miller failed to raise a genuine dispute of material
fact as to whether she intentionally fabricated any evidence. The court therefore
granted her motion for summary judgment on that basis.
This court concludes there was probable cause to support Miller’s 2001
arrest and confinement. Miller therefore cannot make a showing sufficient to
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establish a genuine dispute of material fact as to each element of his malicious
prosecution claim against any defendant, including Arbogast. It is therefore
unnecessary to consider separately the district court’s analysis of Miller’s claims
against Arbogast. See Richison v. Ernest Group, Inc., 634 F.3d 1123, 1130 (10th
Cir. 2011) (“We have long said that we may affirm on any basis supported by the
record, even if it requires ruling on arguments not reached by the district court or
even presented to us on appeal.”). It is also unnecessary to determine whether or
to what extent Spiers’s involvement in the investigation and subsequent
indictment of Miller exceeded the scope of his prosecutorial immunity. Even
assuming that Arbogast and Fox acted at Spiers’s specific direction at all relevant
times, Miller failed to raise a genuine dispute of material fact as to the probable
cause element of his claim against any defendant.
C. Probable Cause
A malicious prosecution claim is only actionable if it results in seizure or
confinement. See Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1164–65
(10th Cir. 2009). This court therefore agrees with the district court’s conclusion
that the scope of Miller’s claims against Arbogast, Spiers, and Fox is limited to
allegations connected with his 2001 arrest and indictment because he was not
seized or confined as a result of the 1999 or 2002 indictment attempts. Miller
accepts this characterization of his claim on appeal. Thus, for Miller to withstand
a motion for summary judgment, there must exist a disputed issue of material fact
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as to whether probable cause supported his 2001 arrest. “Probable cause for an
arrest warrant is established by demonstrating a substantial probability that a
crime has been committed and that a specific individual committed the crime.”
Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996). In a malicious prosecution
action, “[t]he question of probable cause is a mixed question of law and fact.
Whether the circumstances alleged to show it probable or true, and existed, is a
matter of fact; but whether, supposing them to be true, they amount to probable
cause, is a question of law.” Rouse v. Burnham, 51 F.2d 709, 712 (10th Cir.
1931); see also Smith v. Lamz, 321 F.3d 680, 684 (7th Cir. 2003).
To determine whether probable cause supported the arrest and continued
confinement of Miller in this malicious prosecution case, the court undertakes a
five-step inquiry. First, the court determines if there is a question of fact as to
whether particular items of evidence were fabricated; second, the court eliminates
those items from consideration in its probable cause analysis; third, the court
determines whether exculpatory evidence was improperly excluded from
consideration; fourth, the court includes any such evidence in its analysis; fifth,
the court determines whether probable cause still exists after factoring in all
excisions and additions. See Grubbs v. Bailes, 445 F.3d 1275, 1278 (10th Cir.
2006); Taylor, 82 F.3d at 1562.
In undertaking this inquiry, the district court excluded the following pieces
of evidence: testimony from Arbogast that hair found on the Magdalena tarp was
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“consistent” with samples of Miller’s hair, trace evidence found in a steam
cleaner which was allegedly used to clean Girly’s apartment, all evidence related
to business cards except for evidence indicating Miller possessed one of Linda
Henning’s business cards, and evidence related to the source of a Taurus handgun.
The court included in its analysis that none of Miller’s blood was found on
Girly’s carpet or on the Magdalena tarp, and that no hairs were tested which could
be matched to him. The court also considered Miller’s alibi evidence, which
covered significant portions of September 9, 1999, and September 10, 1999.
Those inclusions and exclusions notwithstanding, the district court included
sixteen pieces of evidence in its probable cause analysis, which it delineated as
follows:
(1) Plaintiff told Rick Carlson 2 to shut up when Carlson asked about
Girly on September 14, 1999; a few days later he told Carlson he
knew much more about what was going on in the case than was in the
news;
(2) Carlson was in constant fear of Plaintiff during this time period;
(3) Plaintiff sold a handgun to Diazien, gave a shotgun to Linda
Henning, and sold her a handgun as well;
2
Rick Carlson was an acquaintance of Miller who knew Miller, Diazien,
and Henning through a weekly lunch group.
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(4) Mr. Wilkin 3 and Ms. Staehlin 4 both informed Fox that Plaintiff
told them Diazien wanted Plaintiff to kill Girly;
(5) Plaintiff was friends with both Diazien and Henning, and had
taken them target-shooting;
(6) Plaintiff knows the Magdalena area well, from hunting trips
there; he has friends in the area, and took Henning to that area in the
month or two before Girly was murdered;
(7) the tarp and clothes containing Girly’s DNA, as well as other
trace evidence, were found in the Magdalena area;
(8) Plaintiff went to a bank on September 9, 1999 to open a safety
deposit box; however, when he saw a uniformed APD officer enter
the bank, he became extremely nervous and left suddenly without
depositing anything into the box; a few days later, he returned and
placed coins and currency into the box;
(9) Plaintiff owned two cats in September 1999;
(10) Linda Henning told her cellmate that Plaintiff was with “us” and
did most of the work, and the duct tape used in the incident came
from Plaintiff’s truck;
(11) Diazien Hossencofft told his cellmate that he killed Girly and
disposed of her body while “someone else” drove in the opposite
direction with her clothes;
(12) before Girly went missing, Plaintiff called Ms. Staehlin and
asked her to go out of town with him the weekend of September 10,
1999;
3
Ron Wilkin met Miller at a lunch group approximately three months before
the murder.
4
Gail Staehlin was interviewed by Fox and another detective on September
13, 2000. She knew Miller through a weekly UFO lunch group. Staehlin told
Fox that Miller told her he believed Diazien was an alien. When asked why he
did not just walk away from it all, Miller told Staehlin that Diazien’s “got him in
a trance.”
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(13) the following items of trace evidence were found in Plaintiff’s
home during various searches: natural and dyed deer hair, including
pink deer hair; natural and dyed rabbit hairs; natural and dyed
feathers; and natural cat hairs;
(14) trace evidence collected from the tarp included two dyed rabbit
hairs, two dyed green feathers, and one hundred and one cat hairs;
(15) trace evidence collected from Girly’s carpet included sixty cat
hairs, eighteen natural deer hairs, six dyed deer hairs, one natural
rabbit hair, five dyed rabbit hairs, eleven natural feathers, and one
pink feather; and
(16) the pink dyed deer hair located in Girly’s carpet appeared to be
consistent with the pink dyed deer hair collected from Plaintiff’s
residence.
Mem. Op. & Order, Doc. 253 at 34–35.
On appeal, Miller raises no specific challenges to items 1–12. In particular,
he does not challenge item 10: Henning’s statement to her cellmate inculpating
Miller in Girly’s kidnaping and murder. The district court noted the statements of
a co-participant alone can be sufficient to establish probable cause as a matter of
law. In United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 n.5 (10th Cir.
1998), this court stated “the finding of probable cause to support an arrest may be
based on a co-defendant’s hearsay statement, in whole or part.” In particular,
self-inculpatory statements of a co-participant in a crime have been held
sufficient to supply probable cause for arrest. See, e.g., United States v.
Patterson, 150 F.3d 382, 386 (4th Cir. 1998); Craig v. Singletary, 127 F.3d 1030,
1045–46 (11th Cir. 1997) (“Ordinarily, unless it is incredible or contradicts
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known facts to such an extent no reasonable officer would believe it, a
co-defendant’s confession that he and the suspect committed the crime can supply
probable cause to arrest the suspect.”). The court therefore need not address
Miller’s arguments concerning the possible contamination and reliability of the
trace evidence used to indict him. Henning’s statement alone is sufficient to
establish probable cause for his arrest.
Miller, however, makes several broad-based attacks on the sufficiency of
the evidence used to support the 2001 arrest warrant and indictment which could
conceivably call into question Henning’s statement. On closer examination, these
arguments are insufficient to vitiate probable cause.
1. Alibi Evidence
Miller contends he had a verified alibi for the time period stretching from
the afternoon of September 9, 1999, through September 10, 1999, which “trumps
all of Defendants’ claims of probable cause.” Miller presented evidence, largely
verified by the investigation of Detective Lescenski of the Albuquerque Police
Department, which a reasonable fact-finder could conclude generally accounted
for his whereabouts from the late afternoon to early evening hours of September
9, 1999, and for some portions of September 10, 1999. If Miller’s alibi were truly
comprehensive, it could conceivably render Henning’s statement to her cellmate
so contradictory to known facts that no reasonable officer could believe it.
According to the arrest warrant, however, police were not certain of the time of
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Girly’s death, and were only able to determine that it occurred sometime between
September 9 and September 10. Miller’s alibi does not account for his
whereabouts during the late evening hours of September 9 through the early
morning hours of September 10. In considering the status of the evidence in the
light most favorable to Miller, the district court properly concluded Miller’s alibi
does not account for all of the periods of time in which Girly could have been
murdered.
Additionally, in the 2001 arrest warrant Miller was charged not only with
murder and kidnaping but also with conspiracy. Physical presence at the crime
scene is not required to sustain a conviction for conspiracy under New Mexico
Law. State v. Ochoa, 72 P.2d 609, 616 (N.M. 1937); UJI 14-2811 NMRA,
committee cmt. Thus, even if a jury concluded Miller’s alibi covered the entire
period during which Girly could have been killed, Henning’s statement is still
sufficient to establish probable cause.
2. Fox’s Credibility
Miller next argues that Fox’s credibility as a whole is at issue, creating a
triable issue of material fact as to the truth of every statement in the arrest
warrant affidavit, including Henning’s statement. The district court concluded
there was evidence suggesting Fox may have testified falsely about his knowledge
of one of Henning’s business cards at a suppression hearing in the criminal case
against Miller. Specifically, the court concluded sufficient evidence existed from
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which a reasonable jury could find that, during a suppression hearing in 2003,
Fox attempted under oath to correct prior statements in which he said he was not
present when the card was found in Miller’s home and that he did not see it near
the fireplace that day. The detective who found the card and was expected to lay
the foundation for its admission at trial died, and the suppression hearing
followed his death. The district court therefore concluded a reasonable jury could
believe Fox lied about his involvement in the search in order to preserve the
business card as evidence against Miller in the tampering case.
The district court properly rejected the argument that because Fox may
have lied once, none of the factual recitations in the arrest warrant, including his
account of Henning’s statement, can be considered in a probable cause inquiry. 5
A contrary conclusion, if accepted, would effectively dispense with the Grubbs
extractive-additive framework altogether. Under Grubbs, if evidence exists from
5
Miller also alleges Fox “lied about more than one thing, more than one
time.” He alleges that Fox also “lied about . . . the destroyed notebook, the hand
gun purchase, the Magdalena cat and, Ms. LaFlamme’s verification of Miller’s
alibi.” In support of this statement, Miller cites to portions of his response to a
motion for summary judgment in the district court, which in turn includes
citations to various exhibits filed in support of the response. Miller has not
articulated precisely what “lies” Fox told about the above listed items, either in
his briefs before this court or in the portions of the pleading he now references.
Further, the court’s review of the record does not uncover any evidence from
which a reasonable fact finder could infer Fox lied about all of the above listed
items. The court therefore need not decide whether a sufficiently thorough
showing that an affiant lied about numerous items in an arrest warrant affidavit
can create a triable issue of fact as to the truth of all of the statements in the
affidavit.
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which a reasonable jury could conclude a particular item in a search warrant was
fabricated, the court excludes that evidence and considers whether probable cause
would still exist without it. 445 F.3d at 1278. The court finds no authority
supporting the additional inference that because an officer who attested to a
warrant may have lied once, he wholly lacks credibility and therefore the veracity
of every statement he made in the affidavit is put in issue. The court finds the
analysis of the Sixth Circuit persuasive on this question. See United States v.
Robinson, 272 F. App’x 421, 428 n.1 (6th Cir. 2007).
3. Missing Gold Coins
Miller argues the sequence of events surrounding the disappearance of 51
of his gold coins from the Albuquerque Police Department evidence room creates
an inference that the defendants had a motive to frame him and casts a cloud on
the credibility of the investigation as a whole. This argument would run as
follows: the defendants had a motive to lie, therefore any of the statements in the
affidavit could be lies, and therefore none of the statements in the affidavit can be
considered under the extractive-additive framework. The district court rejected
Miller’s argument concerning the disappearance of the gold coins as lacking any
evidentiary support and founded on “sheer and impermissible speculation.” Such
speculation is insufficient to withstand a motion for summary judgment. See
Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1061 (2009). On appeal,
Miller points to no additional evidence in the record to substantiate his theory.
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The court therefore declines to discount the statements made in the warrant
affidavit on this basis.
4. Effect of Failure to Return Indictment
Miller argues the failure of the 1999 and 2002 grand juries to return an
indictment necessarily establishes a genuine issue of material fact as to the issue
of probable cause. The court rejects that argument. First, the failure of the grand
jury to return an indictment in 1999 does not vitiate probable cause because that
grand jury was not presented with any of the trace evidence collected from
Girly’s apartment, the Magdalena tarp, and Miller’s residence. Regarding the
2002 grand jury proceeding, as discussed in part III.C, supra, the scope of
Miller’s claim is limited to the actions which preceded his seven week
confinement, including the 2001 arrest warrant and indictment. In connection
with that indictment, the district court concluded, and this court agrees, sufficient
uncontroverted evidence existed to establish probable cause as a matter of law
even after excluding certain inculpatory pieces of evidence and including certain
exculpatory pieces of evidence in the analysis.
In a malicious prosecution action, whether a given set of facts, “supposing
them to be true . . . amount[s] to probable cause, is a question of law” for the
court, not a question of fact for the jury. Rouse, 51 F.2d at 712. 6 The failure of a
6
The court’s application of Rouse in this malicious prosecution action is
consistent with the approach of other courts faced with the same question:
(continued...)
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subsequent grand jury to return an indictment, therefore, does not change the
court’s conclusion that the evidence which resulted in Miller’s seven-week
confinement was sufficient to establish probable cause justifying that confinement
as a matter of law. Miller cites no authority, and the court is unable to find any,
stating that the failure of a grand jury to return an indictment has any kind of
preclusive effect in a subsequent civil action on the issue of probable cause. He
is therefore not relieved of his duty to “set forth specific facts showing that there
is a genuine issue for trial.” Anderson, 477 U.S. at 256.
6
(...continued)
The rule that the question of probable cause in an action for
malicious prosecution is for the court, and not for the jury, although
undoubtedly anomalous in that it substitutes the judgment of the
court for that of the jury as to the reasonableness of the defendant's
conduct in the light of the admitted or established facts and beliefs,
is nevertheless . . . established . . . by the overwhelming weight of
authority.
C.C. Marvel, Annotation, Probable Cause or Want Thereof, in Malicious
Prosecution Action, as Question of Law for Court or of Fact for Jury, 87 A.L.R.
2d 183, § 2 (1963). This approach is also consistent with the Restatement’s
formulation of the tort of malicious prosecution. See Restatement (Second) of
Torts § 673 (1977).
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IV. Conclusion
For the foregoing reasons, the court AFFIRMS the decision of the district
court.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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