Barbara Powell v. W & W Hauling, Inc. , 226 F. App'x 950 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12531 April 5, 2007
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 03-00195-CV-AAA-2
BARBARA POWELL,
as legal guardian of Jeffrey A. Powell,
Plaintiff-Appellant,
versus
W&W HAULING, INC.,
A Georgia Corporation,
RICHARD D. LITTLE,
JOHNNY WHELLIS,
d.b.a.W&W Hauling,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Georgia
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(April 5, 2007)
Before EDMONDSON, Chief Judge, ANDERSON and BARKETT, Circuit
Judges.
PER CURIAM:
Barbara A. Powell (“Plaintiff”) appeals the district court’s order denying her
motion for new trial after a jury verdict in favor of W & W Hauling, Inc., Johnny
Wheelis, and Richard D. Little (“Defendants”). No reversible error has been
shown; we affirm.
This case arises from an automobile accident between a vehicle driven by
Plaintiff’s son, Jeffrey A. Powell (“Mr. Powell”), and a tractor trailer driven by
Richard D. Little (“Little”), a truck driver employed by W & W Hauling, Inc. The
accident resulted in serious permanent injury to Mr. Powell. Plaintiff alleged that
Little operated the tractor trailer in a negligent and reckless manner in excess of
the speed limit and that Defendants were negligent in maintaining the tractor
trailer. At trial, Defendants presented evidence that Mr. Powell was operating his
vehicle while under the influence of alcohol and drifted into oncoming lanes,
causing the accident. The jury returned a verdict in favor of Defendants, and the
district court entered judgment upon the jury’s verdict.
Plaintiff then filed a motion for new trial, claiming (1) defense counsel’s use
of peremptory strikes during jury selection was a violation of Batson v. Kentucky,
106 S. Ct. 1712 (1986); (2) defense counsel’s mention of Mr. Powell’s bankruptcy
and a restraining order against him was unfairly prejudicial; and (3) Defendants’
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accident reconstruction expert gave an improper toxicology opinion at trial that he
was not qualified to give. The district court denied Plaintiff’s motion, and this
appeal ensued.
We review a district court’s denial of a motion for new trial for abuse of
discretion. Bianchi v. Roadway Exp., Inc., 441 F.3d 1278, 1282 (2006). A district
court’s resolution of a Batson challenge is reviewed for clear error. Cent. Ala.
Fair Hous. Ctr. v. Lowder Realty, 236 F.3d 629, 635 (11th Cir. 2000). Also, we
review a district court’s evidentiary rulings for abuse of discretion. Tran v. Toyota
Motor Corp., 420 F.3d 1310, 1315 (11th Cir. 2005).
First, Plaintiff argues that defense counsel’s use of peremptory challenges to
strike three potential black jurors was a violation of Batson.1 Under the three-step
Batson analysis, (1) the objecting party must make a prima facie showing that the
exercise of a peremptory challenge discriminates on the basis of race; (2) the
challenging party then must articulate a race-neutral reason for striking the juror in
question; and (3) the court then must determine whether the objecting party has
met its burden of proving the existence of purposeful discrimination. United
States v. Novation, 271 F.3d 968, 1002 (11th Cir. 2000).
1
The Supreme Court has extended Batson to apply in civil cases. Edmonson v. Leesvill Concrete
Co., 111 S. Ct. 2077 (1991).
3
In this case, the final venire consisted of fourteen potential jurors, six of
which were black.2 During voir dire, the magistrate judge presiding over jury
selection asked the panel whether any of them would excuse the behavior of a
party shown to have consumed alcohol in excess of the legal limit. One juror, Ms.
Fisher, asked what the legal limit was. The court responded that such information
may or may not be offered at trial. Defense counsel then asked for a show of
hands for which jurors would not excuse such behavior. All of the panel
members, except Ms. Fisher, raised their hands. Plaintiff’s counsel then asked
whether the jurors could put aside the fact that someone had alcohol in his or her
blood if the evidence showed alcohol was not a factor in the accident. Defense
counsel claims Ms. Fisher nodded her head in agreement to this question, saying
“yes, yes, I understand.” According to defense counsel, another juror, Mr. Davis,
looked to Ms. Fisher before responding affirmatively to the question from
Plaintiff’s counsel.
A third juror, Ms. Jackson, was a replacement juror who answered a
different question about alcohol and causation than that posed to the other panel
members. When asked whether that someone had consumed alcohol before the
2
Plaintiff and her son who was injured in the accident are black. Defendants Wheelis and Little
are white men.
4
accident would influence Ms. Jackson’s decision in any way, she responded that it
would not. Defense counsel then exercised three peremptory challenges to strike
Ms. Fisher, Mr. Davis, and Ms. Jackson, all of whom were black.
For Ms. Fisher and Mr. Davis, the district court determined Plaintiff had not
made out a prima facie case of discrimination for these two strikes.3 We agree.4
The record does not indicate that defense counsel either said or did anything that
would create “a reasonable inference of an improper motive or purpose” for these
first two strikes. Johnson v. California, 125 S.Ct. 2410, 2415 n.3 (2005). “[A]
showing that a party used its authorized peremptory strikes against jurors of one
race does not, standing alone, establish a prima facie case of discrimination.”
Cent. Ala., 236 F.3d at 637.5 Here, Plaintiff alleges no more than “the bare fact of
the removal of certain venire persons and the absence of an obvious reason for the
3
The magistrate judge failed to address the first step in the Batson analysis. Nonetheless, we
afford “great deference to the district court’s finding as to the existence of a prima facie case.” Cent.
Ala., 236 F.3d at 635 (quoting United States v. Stewart, 65 F.3d 918, 923 (11th Cir. 1995)).
4
Unless we conclude that a prima facie showing was made, we will not reverse a trial court’s
refusal to disallow challenged strikes. Cent. Ala., 236 F.3d at 636. No party is entitled to an
explanation for a peremptory strike unless and until a prima facie case is made. Id.
5
We have said that “the number of jurors of one race struck by the challenged party may be
sufficient by itself to establish a prima facie case where a party strikes all or nearly all of the
members of one race on a venire.” Cent. Ala., 236 F.3d at 637. However, this case presents no such
facts.
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removal,” which is insufficient to make out a prima facie case of discrimination.
Id. (quotation marks and citation omitted).
For the third peremptory strike of Ms. Jackson, Defendants concede that
Plaintiff did make out a prima facie case of discrimination. In step two of the
Batson analysis, defense counsel offered race-neutral reasons for the strike, which
included Ms. Jackson’s response that a person’s alcohol consumption before the
accident would not affect Ms. Jackson’s decision in any way. In step three, the
district court determined that Ms. Jackson’s response was a credible basis for
removing her from the jury because her answer suggested that she might not
consider Defendants’ claim that Mr. Powell’s intoxication -- not Defendants’
negligence -- caused the accident. We cannot say that this factual determination
by the district court was clearly erroneous. We conclude, therefore, that
Defendants’ use of peremptory strikes against these three black jurors was no
equal protection violation under Batson.
Next, Plaintiff argues that a new trial is warranted because defense counsel
unfairly prejudiced Plaintiff by mentioning certain character evidence. During
cross-examination of Plaintiff, defense counsel asked about Mr. Powell’s
bankruptcy in violation of a previous in limine order. After Plaintiff’s counsel
objected, the district court instructed the jury that this “questioning was not
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appropriate at this time.” Defense counsel then asked Plaintiff about a restraining
order obtained against Mr. Powell by his ex-wife. Again, counsel for Plaintiff
objected, and the court sustained the objection.
We cannot say that the district court’s handling of these evidentiary
questions was an abuse of discretion or that these questions resulted in unfair
prejudice that was “inconsistent with substantial justice.” Fed. R. Civ. P. 61. We
conclude that brief mention of these collateral issues -- which the district court
appropriately excluded and were never mentioned again at trial -- did not have a
substantial likelihood of affecting the jury’s verdict.6
Plaintiff claims that the trial court committed reversible error by allowing
Defendants’ accident reconstruction expert, James Burke (“Burke”), to offer a
toxicology opinion that he was not qualified to give. After Burke expressed his
opinion that the likely cause of the accident was that Powell fell asleep, defense
counsel asked Burke the basis of his opinion. Burke cited (1) the lack of any
evasive action; (2) that the accident occurred late at night; and (3) his belief that
the accident involved “an alcohol-impaired, intoxicated driver.” Plaintiff’s
6
Plaintiff’s assertion in her brief that these questions “falsely painted Mr. Powell as a violent
individual who did not accept responsibility for his bills” is speculative at best.
7
counsel objected, and the district court responded that Burke could “testify that he
is making that assumption.”
Under Fed. R. Evid. 705, “[t]he facts or data in the particular case upon
which an expert bases an opinion or inference may be those perceived by or made
known to the expert at or before the hearing.” Because Defendants already had
introduced evidence of Powell’s intoxication at trial, Burke could use that
evidence as part of the basis of his own expert opinion. The district court,
therefore, did not abuse its discretion in allowing this testimony.
AFFIRMED.
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