Roberto Arce v. Michael Carmody , 405 F. App'x 105 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 24 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOANA ARCE, individually, and as heir No. 09-17057
and Special Administratrix of the Estate of
Roberto Arce, Deceased; et al., D.C. No. 2:04-cv-00425-JCM-
GWF
Plaintiffs - Appellants,
v. MEMORANDUM*
MICHAEL CARMODY, individually, and
in his official capacity; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 5, 2010
San Francisco, California
Before: ALARCÓN and RYMER, Circuit Judges, and KENNELLY, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
The plaintiffs appeal from an adverse jury verdict in their action under 42
U.S.C. § 1983 against the City of North Las Vegas, the North Las Vegas Police
Department, and various police officers arising from Roberto Arce’s death while in
police custody. The plaintiffs challenge three evidentiary rulings by the district
court. To reverse based on an evidentiary error, we must conclude not only that
the district court abused its discretion, but also that the error was prejudicial. Boyd
v. City & County of San Francisco, 576 F.3d 938, 943 (9th Cir. 2009). An error is
prejudicial when it more probably than not affected the verdict. Id.The district court properly excluded evidence of the North Las Vegas police
department’s involvement in the death of Gloria Parker. This Court previously
held that the force applied in that case was not excessive. See Carter v. Denison,
110 Fed. App’x 6, 8 (9th Cir. 2004) (unpublished). The district court reasonably
determined that this evidence was inadmissible in Arce’s case under Federal Rule
of Evidence 403.
The district court abused its discretion, however, in permitting the
defendants to introduce the coroner’s inquest jury verdict at trial. The evidence
was inadmissible hearsay, and it was not properly admitted to impeach the
plaintiffs’ expert, Dr. Smith. See United States v. Bao, 189 F.3d 860, 866 (9th Cir.
1999) (an out-of-court statement offered to impeach is non-hearsay only when used
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to show the declarant’s own lack of consistency). In any event, the unfairly
prejudicial effect of this evidence substantially outweighed its probative value.
The erroneous admission of the coroner’s inquest jury verdict was prejudicial,
because the cause of Arce’s death was the central issue at trial and the plaintiffs
were unable to impeach the verdict or cross-examine the inquest jurors. We
conclude that the error more likely than not affected the outcome of the trial and
accordingly reverse.
We decline to address whether the district court erred in allowing the
defendants to introduce evidence regarding prior police visits to Arce’s residence.
On remand, however, the district court should reconsider whether there is a proper
basis to introduce this evidence as well as whether its admission would run afoul of
Rule 403.
For the foregoing reasons, we REVERSE the judgment of the district court
and REMAND for a new trial.
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