Jerrell Johnson v. Stephen Rankin , 547 F. App'x 263 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1414
JERRELL R. JOHNSON, Administrator of the Estate of Kirill
Denyakin, Deceased,
Plaintiff - Appellant,
v.
STEPHEN D. RANKIN, Individually and in his Official Capacity
as a Police Officer for the City of Portsmouth, Virginia,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
United States District Judge. (2:11-cv-00415-RBS-TEM)
Argued: September 18, 2013 Decided: December 2, 2013
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Fletcher C. Alford, DENTONS US LLP, San Francisco,
California, for Appellant. Richard J. Cromwell, MCGUIREWOODS
LLP, Norfolk, Virginia, for Appellee. ON BRIEF: James R.
Reilly, GORDON & REES, LLP, San Francisco, California, for
Appellant. Kenneth W. Abrams, MCGUIREWOODS LLP, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerrell R. Johnson, the administrator of Kirill Denyakin’s
estate, brought this action against City of Portsmouth Police
Officer Stephen D. Rankin, alleging that Rankin was liable for
excessive force in violation of the Fourth Amendment under 42
U.S.C. § 1983 and battery and gross negligence under Virginia
law. A jury ruled in favor of Rankin on all counts. Johnson
now appeals, arguing that the district court erred in making
certain evidentiary determinations. For the reasons that
follow, we affirm.
I.
On the night of April 23, 2011, Rankin received a “Priority
One” emergency call from City of Portsmouth, Virginia, Dispatch
reporting a “burglary in progress” at an apartment building.
Priority One calls are reserved for situations in which someone
is in physical danger. Rankin testified that the dispatcher
told him that a man was trying to break down a door. According
to Rankin, when he arrived, he saw a man matching the suspect’s
description violently banging on a glass door with both hands
over his head, apparently trying to gain entry into the
building.
Rankin testified that he positioned himself about thirty-
five feet away from the suspect—Denyakin, an immigrant from
2
Kazakhstan. Rankin stated that he drew his weapon, identified
himself as a police officer, and repeatedly told Denyakin to
stop, show his hands, and get down on the ground. According to
Rankin, Denyakin stopped banging on the door when Rankin issued
his commands. Denyakin then lowered his hands to his sides and
shoved his right hand in his pants, a place where Rankin knew
that suspects can hide weapons. Rankin testified that Denyakin
appeared to be “digging for an object.” At this time, Rankin
called “clear the air” into his radio, which is a signal that
lets other officers know that an emergency situation is
unfolding. Rankin testified that Denyakin then charged at him
and did not stop when Rankin ordered him to do so.
Rankin further testified that, although he did not see a
weapon, Denyakin’s behavior led him to believe that he was in
serious physical danger. He fired his weapon eleven times over
the course of about three seconds, and each shot struck
Denyakin, killing him. Rankin may have fired the last one or
two shots as Denyakin fell to the ground. Although Rankin
testified that Denyakin had his right hand inside his pants when
he started the charge, he is unsure when Denyakin removed his
hand because his focus shifted to Denyakin’s “center mass” when
he began charging. A search later revealed that Denyakin was
not carrying a weapon.
3
Johnson brought this action against Rankin, both
individually and in his official capacity, alleging a claim of
excessive force in violation of the Fourth Amendment under
§ 1983 and state law claims for battery and gross negligence. 1 A
jury trial commenced on February 28, 2012. This appeal concerns
three evidentiary determinations that the district court made.
First, Johnson challenges the district court’s decision to allow
“prior bad act” evidence regarding Denyakin’s alcoholism and his
behavior during an earlier encounter with police. At trial,
Johnson contended that Denyakin could not have charged at Rankin
due to his high blood alcohol content (BAC)—0.28%—at the time of
the incident. In support of this theory, Johnson presented lay
witness testimony about Denyakin’s heavy drinking and
inappropriate behavior the day of the shooting. He also offered
the expert testimony of toxicologist Alphonse Polkis, who
believed that Denyakin was too drunk to charge at Rankin. In
response, Rankin presented lay witness testimony that Denyakin
appeared coherent and coordinated before his encounter with
Rankin and that he smoked a cigarette, walked along the street,
and went up and down steps. Rankin also offered expert
1
Johnson also alleged cruel and unusual punishment in
violation of the Eighth Amendment under § 1983. Johnson
consented to the dismissal of this count on August 30, 2011, and
it is not at issue on appeal.
4
testimony that Denyakin was a chronic alcoholic who had
developed a tolerance for alcohol and could charge at Rankin
despite his high BAC. Finally, Rankin presented lay and expert
testimony regarding a confrontation Denyakin had with police on
February 21, 2011, when he had a BAC of 0.22%. During that
encounter, Denyakin walked without stumbling, and a police
officer told him that he could shoot him if he failed to show
his hands. The testimony also revealed that Denyakin threatened
to beat his girlfriend, punched her apartment window, and drew a
bloody symbol on her door.
Second, Johnson challenges the district court’s decision to
exclude two of Rankin’s Facebook postings from the liability
phase of trial. Johnson sought to introduce the postings as
evidence of Rankin’s motivation for shooting Denyakin. One
posting included a photograph of an ethnic lynching with the
caption, “LOVE IS . . . Doing whatever is necessary.” Another
posting showed guns and gun-cleaning equipment with the caption
“Rankin’s box of vengeance” and the comment that it would be
better if Rankin were “dirtying” the guns. The district court
concluded that the postings were “inflammatory” and decided to
bifurcate the issue of punitive damages from the rest of the
trial, allowing the Facebook evidence only at the punitive
damages stage.
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Third, Johnson contests the district court’s decision to
exclude an autopsy photograph. At trial, Johnson called
Virginia Assistant Chief Medical Examiner Elizabeth Kinnison—the
doctor who performed the autopsy on Denyakin—as an expert
witness. Kinnison testified regarding a gunshot wound on
Denyakin’s right hand. According to Kinnison, “[t]he way that
the edges of [the wound] tore made me favor that [the bullet]
went from the palm of his hand to the back of his hand, but I’m
not absolutely certain that it couldn’t have gone from back to
front.” Johnson sought to admit a photograph of the wound,
claiming that it showed that Denyakin’s hand could not have been
in his pants at the time of the shooting because people
typically insert their hands into their pants with the palm
facing the body. The court declined to admit the photograph
following this exchange with Kinnison:
THE COURT: The issue was if this would help her
opinion or help her be more sure.
. . .
THE COURT: Does that photograph, Dr. Kinnison,
assist you in making any different
conclusion?
THE WITNESS: No, ma’am.
The court held that the photograph’s “prejudicial value clearly
outweighs any probative value on [Kinnison’s] testimony.”
On March 1, 2012, the jury returned a verdict in favor of
Rankin on all counts. Johnson filed this timely appeal,
6
challenging the aforesaid evidentiary decisions. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Johnson contends that the district court erred in admitting
prior bad act evidence that “portrayed Denyakin as . . . an
alcoholic, an abuser of women, and that he had previously been
arrested by a different police officer.” 2 Most of this evidence
stemmed from Denyakin’s February 21, 2011, encounter with
police, during which a police officer informed him that the
2
Johnson also challenges evidence “portray[ing] Denyakin as
a ‘foreigner’ and an illegal alien.” The evidence showed that
Denyakin was from Kazakhstan and went by the nickname “KGB,”
which were simply facts of the case that Johnson’s own witnesses
discussed. Rankin presented minimal evidence of Denyakin’s
immigration status through Denyakin’s brother’s deposition.
When Rankin asked Denyakin’s brother whether Denyakin had been
“arrested at any time before” the day of his death, his brother
answered “yes” and explained that “[t]he arrest was connected
with immigration policy.” The deposition does not include any
further discussion of this arrest. This isolated comment hardly
“paint[s] Denyakin as a dangerous person of bad character” as
Johnson contends. Furthermore, this evidence did not pervade
the trial to the extent that evidence of immigration status did
in the cases Johnson cited in the memorandum he references in
his reply brief. See, e.g., TXI Transp. Co. v. Hughes, 306
S.W.3d 230, 245 (Tex. 2010) (noting that the plaintiff “sought
to hedge his theory by calling attention to [the defendant’s]
illegal immigration status whenever he could”); Maldonado v.
Allstate Ins. Co., 789 So. 2d 464, 466, 470 (Fla. Ct. App. 2001)
(deciding that the prejudicial effect of the defendant’s
immigration status outweighed its probative value when that
status was “a central feature” at trial). We therefore do not
further consider this portion of Johnson’s argument.
7
police could shoot him if he did not comply with their
instructions. Although he was highly intoxicated, Denyakin was
able to walk without stumbling and behave violently toward his
girlfriend.
We review the district court’s rulings regarding the
admissibility of evidence for abuse of discretion. United
States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011). A district
court abuses its discretion when it acts arbitrarily, see id.,or applies “erroneous legal principles to the case,” United
States v. Mason, 52 F.3d 1286, 1290 (4th Cir. 1995). This Court
has established a four-part test for determining the
admissibility of prior act evidence under Federal Rule of
Evidence 404(b):
(1) The evidence must be relevant to an issue, such as
an element of an offense, and must not be offered to
establish the general character of the defendant. In
this regard, the more similar the prior act is (in
terms of physical similarity or mental state) to the
act being proved, the more relevant it becomes. (2)
The act must be necessary in the sense that it is
probative of an essential claim or an element of the
offense. (3) The evidence must be reliable. And (4)
the evidence’s probative value must not be
substantially outweighed by confusion or unfair
prejudice in the sense that it tends to subordinate
reason to emotion in the factfinding process.
Cole, 631 F.3d at 154 (quoting United States v. Johnson, 617
F.3d 286, 296-97 (4th Cir. 2010)).
With respect to the first step of this inquiry, Rankin
contends that the evidence is relevant for two reasons that are
8
unrelated to Denyakin’s general character. First, the evidence
demonstrates that Denyakin was capable of charging at Rankin
while extremely intoxicated, which Johnson disputed. Second,
the evidence shows that Denyakin was on notice that he would be
shot if he did not comply with Rankin’s instructions, which is
relevant to Rankin’s assumption of the risk and contributory
negligence defenses.
Johnson questions both of Rankin’s arguments in favor of
the relevance of this evidence. First, Johnson argues that the
evidence merely shows Denyakin’s past experience with alcohol,
which is unrelated to the true issue in this case: Denyakin’s
ability to attack a police officer. We disagree. The events of
February 21, 2011, demonstrate that Denyakin could walk, respond
lucidly to a police officer, and behave violently while drunk.
The testimony regarding Denyakin’s alcoholism further
illustrates his heightened ability to act while intoxicated.
Specifically, the testimony shows that Denyakin had developed a
tolerance to alcohol that allowed him to function with a high
BAC. We therefore find that the evidence in question speaks to
Denyakin’s ability to function while intoxicated, which bears on
whether Denyakin could have charged at Rankin while drunk.
Second, Johnson contends that the contributory negligence
defense involves an objective inquiry, rendering irrelevant the
question of whether Denyakin was on notice that he could be
9
shot. However, pursuant to Virginia law, contributory
negligence has a subjective component: it “requires sufficient
evidence of knowledge on the part of [the] plaintiff of the
danger to be guarded against.” Philip Morris, Inc. v. Emerson,
368 S.E.2d 268, 280 (Va. 1988); see also Arndt v. Russillo, 343
S.E.2d 84, 88 (Va. 1986) (“To establish th[e] [contributory
negligence] defense, [the defendant] was required to prove that
[the plaintiff] knew or should have known that [the plaintiff]
would drive recklessly . . . .”). Furthermore, Virginia’s
assumption of the risk defense requires the defendant to prove
that the plaintiff “fully appreciated” “the nature and extent of
the risk” and “voluntarily incurred” that risk. Monk v. Hess,
191 S.E.2d 229, 230 (Va. 1972) (quoting Leslie v. Nitz, 184
S.E.2d 755, 757 (Va. 1971)) (internal quotation marks omitted).
This certainly is a subjective inquiry. Accordingly, the
district court did not err in determining that the evidence
regarding Denyakin’s alcohol abuse and actions on February 21,
2011, was relevant.
The evidence in question also survives the second step of
the above test because “it is probative of an essential claim.”
Cole, 631 F.3d at 154. Each of Johnson’s claims turns on
whether Rankin was justified in using lethal force, and evidence
that illustrates Denyakin’s ability to charge while intoxicated—
such as the February 21, 2011, incident and Denyakin’s
10
alcoholism—speaks to whether Rankin was so justified. The third
step of the above test—the reliability of the evidence—is not at
issue in this appeal.
Regarding the fourth step, the district court engaged in a
limited inquiry regarding whether the prior act evidence’s
probative value outweighed its prejudicial effect under Federal
Rule of Evidence 403. After the district court overruled
Johnson’s objection that the evidence constituted hearsay, the
district court noted that the evidence was “highly relevant to
contributory negligence, because . . . a person has for a second
time knowingly put themselves in the same path of danger.” The
court also gave a cautionary instruction to combat any
prejudice. In this way, the district court implicitly
recognized that the evidence’s probative value outweighed its
prejudicial effect. This Court has explained that, “[a]s long
as the record as a whole indicates appropriate judicial
weighing, we will not reverse for failure to recite mechanically
the appropriate balancing test.” United States v. Lewis, 780
F.2d 1140, 1142 (4th Cir. 1986). We therefore determine that
the district court did not abuse its discretion in concluding
that the evidence in question satisfies Rule 403. Because the
evidence regarding Denyakin’s alcoholism and prior encounter
with police complies with this Court’s four-part test, we hold
11
that the district court did not err in admitting this evidence
pursuant to Rule 404(b).
III.
Next, Johnson contends that the district court erred in
excluding Rankin’s Facebook postings from the liability phase of
the trial. At the time of trial, Johnson contended that the
postings were “particularly relevant to [Rankin’s] motive,
intent, and state of mind as it relates to [Johnson’s] punitive
damages claims under § 1983 and the state tort claims” and “go
towards the issue of reckless or callousness under the Supreme
Court’s test [for punitive damages in Smith v. Wade, 461 U.S.
30, 56 (1983)].” Johnson now contends that the Facebook
postings speak to Rankin’s credibility, implying that they show
Rankin was motivated to intentionally engage in ethnic violence—
such as shooting an immigrant—and lie about why he did it.
Because Johnson failed to preserve his objection on credibility
grounds, we review the district court’s ruling only for plain
error. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 174
(1988) (to preserve an objection to the exclusion of evidence,
its proponent must “mak[e] known . . . the party’s objection
. . . and the grounds therefor”). To reverse, there must be (1)
an error, (2) which is plain, (3) which affects substantial
rights, and (4) which seriously affects “the fairness,
12
integrity, or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732-37 (1993).
The trial court excluded the Facebook postings on the
grounds that they were (1) “inflammatory” and (2) irrelevant due
to the standard that the Supreme Court set forth in Graham v.
O’Connor, 490 U.S. 386 (1989). In Graham, the Supreme Court
held that the plaintiff in a § 1983 excessive force case does
not bear the burden of proving that the officer acted with
“subjective motivations” that were “malicious and sadistic.”
490 U.S. at 397. The Supreme Court also explained, however,
that evidence of the officer’s “ill-will” can come into play in
“assessing the credibility of an officer’s account of the
circumstances that prompted the use of force.” Id. at 399 n.12.
Therefore, contrary to Rankin’s assertions, Graham does not
indicate that evidence of motive—such as the Facebook postings—
is irrelevant to the § 1983 calculus.
Rankin’s motive and credibility could also weigh on
Johnson’s gross negligence and battery claims. In Virginia,
“‘[g]ross negligence’ is that degree of negligence which shows
an utter disregard of prudence amounting to complete neglect of
the safety of another,” Frazier v. City of Norfolk, 362 S.E.2d
688, 691 (Va. 1987), and battery is the “unwanted touching which
is neither consented to, excused, nor justified,” Koffman v.
Garnett, 574 S.E.2d 258, 261 (Va. 2003). If Rankin was
13
untruthful about whether Denyakin charged at him, it could
affect both of these claims by showing the unreasonableness of,
and lack of justification for, his actions. The district court
therefore erred in concluding that the evidence was irrelevant
per se because it spoke to Rankin’s motivation.
But the error was not plain. Apart from the credibility
issue, the Facebook postings are irrelevant to Rankin’s
liability in this case. As we explained above, Rankin’s
motivation does not affect his liability under § 1983 due to the
Supreme Court’s Graham decision. Rankin does not dispute that
he intended to shoot Denyakin, and his motive is irrelevant to
the battery inquiry apart from his justification for doing so.
See id. Finally, because the tort of negligence is governed by
an objective standard, see Sturman v. Johnson, 163 S.E.2d 170,
176 (Va. 1968); see also Va. Elec. & Power Co. v. Dungee, 520
S.E.2d 164, 174 (Va. 1999), Rankin’s Facebook postings are not
pertinent to this claim beyond their bearing on Rankin’s
credibility. In sum, although the Facebook postings are
relevant to Rankin’s liability, they are relevant in such a
limited way that we cannot say that their exclusion affected
Johnson’s “substantial rights” or contravened the fairness and
integrity of the trial. See Olano, 507 U.S. at 734.
This is especially so given that, in addition to excluding
the evidence for lack of relevance, the district court also
14
found that it was inadmissible under Federal Rule of Evidence
403. The court agreed with Johnson’s assessment that the
postings were particularly probative with respect to punitive
damages. However, the court explained that the postings had
limited probative value with respect to Rankin’s liability under
the Graham objective reasonableness test. The court also found
the postings “inflammatory” and opined that they could “take[]
everything off the track of what the jury should be deciding”
and “could skew a trial.” In light of the postings’ limited
relevance to Rankin’s liability and their high prejudicial
value, we determine that the district court did not err by
excluding these postings from the liability phase of the trial
pursuant to Rule 403.
IV.
Finally, Johnson argues that the district court erred in
excluding an autopsy photograph showing a gunshot wound to
Denyakin’s hand. Johnson contends that the photograph is
especially probative of Rankin’s credibility because it shows
that the bullet entered Denyakin’s hand through the palm, making
it unlikely that Denyakin’s hand was in his pants at the time of
the shooting. The court found that the photograph’s prejudicial
effect outweighed its probative value after Kinnison—the doctor
who conducted the autopsy—testified that the photograph did not
15
make her any more sure of whether Denyakin’s hand was palm-
forward when the bullet entered it. Kinnison testified that she
“favored” the theory that the bullet entered through Denyakin’s
palm based on the skin “tags”—or tears—on his hand. She then
illustrated how she believed the bullet entered Denyakin’s hand
using her own hand. However, Kinnison emphasized that she was
“not entirely certain” about how the bullet hit Denyakin’s hand
or what position he was in when he received the injury.
Johnson contends that the district court erred in hinging
the photograph’s admissibility on whether it would aid Kinnison
in illustrating her testimony. However, the court simply used
the photograph’s usefulness to Kinnison to gauge its probative
value for the Rule 403 balancing test. This Court has
recognized that autopsy photographs are highly prejudicial, 3 and
it will not disturb a district court’s decision regarding their
admissibility “absent a clear abuse of discretion.” United
States v. Analla, 975 F.2d 119, 126 (4th Cir. 1992). In light
3
Johnson recognizes that photographs of dead bodies are
highly prejudicial, arguing that the district court’s ruling
regarding the autopsy photograph was arbitrary and capricious
because it admitted a more graphic photograph from the scene of
the shooting. However, Johnson simply cites the photograph
itself as support for his argument and does not explain why the
district court’s decision was arbitrary or capricious. We
therefore see no reason to conclude that the district court
abused its discretion by disallowing the autopsy photograph but
admitting the scene photograph.
16
of the abuse of discretion standard and the prejudicial effect
of autopsy photographs, we determine that the district court did
not err in excluding the photograph, even if it had some
probative value.
V.
For the foregoing reasons, we hold that the district court
did not abuse its discretion in (1) allowing evidence of
Denyakin’s alcoholism and prior encounter with police under
Federal Rule of Evidence 404(b), (2) excluding Rankin’s Facebook
postings from the liability phase of the trial, and
(3) excluding the autopsy photograph showing Denyakin’s hand.
We therefore affirm the district court’s evidentiary
determinations.
AFFIRMED
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