Morgan v. Gertz

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
February 10, 1999
TO: ALL RECIPIENTS OF THE OPINION
RE: 97-1427, Morgan v. Gertz
Filed on February 8, 1999, by Judge Briscoe.
The slip opinion filed February 8, 1999, contains typographical errors.
A corrected opinion is attached for your convenience. Please discard the
opinion issued previously.
Very truly yours,
Patrick Fisher, Clerk
Trish Lane
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
FEB 8 1999
PUBLISH
UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT
ALBERT LANE MORGAN,
Plaintiff-Appellant,
v. No. 97-1427
AMY GERTZ; KAREN WORDEN,
Defendants-Appellees.
Appeal from United States District Court
for the District of Colorado
(D.C. No. 95-Z-1344)
John M. Case, of John Case, P.C., Englewood, Colorado, for the appellant.
Brad D. Bailey, Clear Creek County Attorney, Georgetown, Colorado, and David
R. Brougham, of Hall & Evans, L.L.C., Denver, Colorado, for the appellees.
Before EBEL, BRISCOE, and LUCERO, Circuit Judges.
BRISCOE, Circuit Judge.
Plaintiff Albert Morgan appeals the district court’s entry of summary
judgment in favor of defendants in this 42 U.S.C. § 1983 action. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I.
This § 1983 action arose out of the investigation and subsequent criminal
prosecution of Morgan for sexual assault of his minor stepdaughter. On April 12,
1993, the natural father of a seven-year-old girl phoned Amy Gertz, a case worker
with the Department of Social Services in Clear Creek, Colorado, to report
possible sexual abuse of the girl by Morgan, the girl’s stepfather. Gertz and
Karen Worden, a police detective, interviewed the girl on April 13 and the
conversation was recorded. During the interview, the girl gave no indication she
had been the victim of sexual abuse. As a result, Gertz closed the case, placed
the interview tape in her desk, and advised the natural father to take the girl to a
therapist.
Approximately six and one-half weeks later, the natural father contacted
Worden and explained the girl had disclosed specific details of sexual abuse.
Worden notified Gertz and they arranged a second interview of the girl on June 1.
Prior to the interview, Gertz reviewed her notes from the earlier interview. After
the girl arrived for the second interview, Gertz searched for a blank tape but was
unable to locate one. She believed the “distraught” girl needed to be immediately
interviewed and decided to tape over the recording of the earlier interview. In the
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second interview, the girl alleged she had been sexually assaulted by her
stepfather on two occasions during the previous Christmas season. During
subsequent examinations by various doctors, the girl elaborated on her allegations
of sexual abuse and she underwent physical examinations that revealed injuries
consistent with sexual abuse. Worden prepared an affidavit requesting issuance
of an arrest warrant for Morgan.
Based on the physical evidence and the girl’s statements in the second
interview, the county prosecutor charged Morgan with aggravated incest and
sexual assault on a child by a person in a position of trust. The prosecutor was
fully aware the girl had denied sexual abuse in her first interview, but that did not
deter him from charging Morgan.
On a number of occasions during pretrial discovery in the criminal case, the
prosecutor disclosed that the girl had denied any sexual abuse during her first
interview. In addition, the prosecutor presented the tape of the second interview
which, unknown to him, contained remnants of the first interview. After
concluding the prosecutor’s summary of the first interview was an inadequate
substitution for the actual tape, Morgan filed a motion to dismiss all charges
based on intentional destruction of exculpatory evidence. At a subsequent
motions hearing, Gertz and Worden testified as to the girl’s statements at the first
interview. At the conclusion of the hearing, the court denied Morgan’s motion to
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dismiss. The court sanctioned the prosecution, however, by barring it from
calling Gertz or Worden as witnesses in its case-in-chief.
The criminal trial commenced on March 28, 1994, and Morgan called Gertz
and Worden as witnesses. Both were subjected to intense direct examination
regarding the handling of the first interview tape. At the close of all evidence,
Morgan moved for judgment of acquittal based in part on intentional destruction
of exculpatory evidence. The court reserved ruling on the motion pending the
jury verdict. The jury returned a guilty verdict on April 4, but the court did not
enter a judgment of conviction. On April 21, after concluding the prosecution
had contravened the dictates of Brady v. Maryland , 373 U.S. 83 (1963), the court
entered a judgment of acquittal, noting:
Caseworker Gertz and Detective Worden taped over the first
interview, knowing at the time that that evidence which they were
altering was exculpatory. The Court further finds that at the Motions
Hearing on December 15, 1993, both Detective Worden and
Caseworker Gertz gave testimony to the Court which was false and
inaccurate concerning what happened during the initial interview. . . .
....
The Court finds that the government misconduct in this case
was willful and egregious. . . .
It is impossible to reconstruct what happened during the
crucial initial interview. In the absence of such evidence, the
defendant cannot have a fair trial.
App. I at 9-10.
Morgan filed this action in May 1995, seeking damages for the mishandling
of exculpatory evidence prior to trial. Both sides moved for summary judgment.
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Morgan argued the doctrines of res judicata and collateral estoppel barred
defendants from relitigating the constitutional violations found by the state court.
Defendants maintain Morgan’s constitutional rights were not violated and, in any
event, defendants are shielded from liability by qualified immunity. The district
court denied Morgan’s motion for summary judgment in a minute order. At a
subsequent hearing, the court granted defendants’ motion in part after concluding
entry of the judgment of acquittal provided Morgan all the remedy to which he
was entitled. The court then granted the remainder of defendants’ motion in a
written opinion, concluding Morgan had demonstrated no “evil intent” on the part
of defendants, thus negating any entitlement to punitive damages.
II.
This court reviews a grant of summary judgment de novo, applying the
same legal standard used by the district court. Sundance Assocs., Inc. v. Reno ,
139 F.3d 804, 807 (10th Cir. 1998). Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). “When applying this standard, we examine the
factual record and reasonable inferences therefrom in the light most favorable to
the party opposing summary judgment. If there is no genuine issue of material
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fact in dispute, then we next determine if the substantive law was correctly
applied by the district court.” Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th
Cir. 1995) (internal citation and quotations omitted).
III.
The issue presented is whether Morgan has a right to recover any damages,
nominal or otherwise, pursuant to 42 U.S.C. § 1983 for the alleged intentional
destruction of exculpatory evidence before his criminal trial. Although the parties
argued at length in their appellate briefs regarding the question of whether
defendants violated Brady v. Maryland in failing to preserve exculpatory
evidence, the real question is whether Morgan’s constitutional rights were
violated as a result of defendants’ actions.
Before addressing the issue on its merits, we note two preliminary points.
First, Brady v. Maryland , which focuses on the duty to disclose exculpatory
evidence, was not implicated in the state court proceedings. The state did not fail
to disclose the fact that the girl did not inculpate Morgan in the first interview;
the state provided Morgan with a written summary of the first interview. The
case of Arizona v. Youngblood , 488 U.S. 51 (1988), which sets forth standards
governing the duty to preserve exculpatory evidence, is controlling here. Second,
the state court’s determination in Morgan’s criminal trial that defendants
committed constitutional violations is not binding in this civil action as there is
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no privity between the parties. See Kinslow v. Ratzlaff , 158 F.3d 1104, 1105-07
& n.3 (10th Cir. 1998); Maryland Cas. Co. v. Messina , 874 P.2d 1058, 1061
(Colo. 1994) (en banc) (describing elements of collateral estoppel under Colorado
law).
“Section 1983 is not itself a source of substantive rights, but merely
provides a method for vindicating federal rights elsewhere conferred. The first
step in any such claim is to identify the specific constitutional right allegedly
infringed.” Albright v. Oliver , 510 U.S. 266, 271 (1994) (citations and internal
quotations omitted). Morgan alleges defendants violated his Fourteenth
Amendment substantive due process rights by destroying exculpatory evidence.
In recent years, the Supreme Court has consistently emphasized its reluctance to
broaden the concept of substantive due process out of a concern that “the
guideposts for responsible decisionmaking [by potential defendants] in this
unchartered area are scarce and open-ended.” Id. at 271-72 (quoting Collins v.
Harker Heights , 503 U.S. 115, 125 (1992)).
The duties to disclose and preserve impeachment/exculpatory evidence are
grounded in the due process right to a fair trial . Kyles v. Whitley , 514 U.S. 419,
434 (1995); United States v. Bagley , 473 U.S. 667, 678 (1985); United States v.
Agurs , 427 U.S. 97, 104 (1976); Brady , 373 U.S. at 87. Thus, the withholding or
destruction of evidence violates a criminal defendant’s constitutional rights only
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if, as a result of the withholding or destruction of evidence, the criminal
defendant is denied a fair trial. Bagley , 473 U.S. at 678. The question here is
whether defendants’ actions deprived Morgan of his right to a fair trial.
Cases involving § 1983 actions brought by individuals alleging violations
of constitutional rights arising out of lack of disclosure or preservation of
exculpatory evidence in criminal prosecutions fall into two distinct categories. In
the first group of cases, all criminal charges were dismissed prior to trial. Under
such circumstances, courts have held universally that the right to a fair trial is not
implicated and, therefore, no cause of action exists under § 1983. See Rogala v.
District of Columbia , 161 F.3d 44, 55-56 (D.C. Cir. 1998) (per curiam); Taylor v.
Waters , 81 F.3d 429, 435-36 & n.5 (4th Cir. 1996); McCune v. City of Grand
Rapids , 842 F.2d 903, 907 (6th Cir. 1988); Nygren v. Predovich , 637 F. Supp.
1083, 1087 (D. Colo. 1986). In the second group of cases, convictions were
obtained and affirmed on direct appeal, but were subsequently overturned by way
of collateral proceedings. In these cases, courts have permitted the exonerated
defendant to pursue § 1983 claims based on the denial of a fair trial. See
McMillian v. Johnson , 88 F.3d 1554, 1566-69 & n.12 (11th Cir. 1996); McDonald
v. Illinois , 557 F.2d 596, 603 (7th Cir. 1977).
The present case fits within the first group of cases. Although the jury
returned a guilty verdict against Morgan, a judgment of conviction was never
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entered. A conviction is effective only upon entry of judgment by the trial court.
Hellman v. Rhodes , 741 P.2d 1258, 1259 (Colo. 1987) (en banc) (citing Colo. R.
Crim. P. 32(c)).
Pursuant to Crim. P. 32(c), a judgment of conviction is composed of
a recital of the results of several procedural steps, not all of which
necessarily occur simultaneously. It is not until the last step has been
completed, whether it be sentencing or the imposition of costs, and a
judgment has been entered reciting “the plea, the verdict or findings,
the sentence, the finding of the amount of presentence confinement
and costs, if any are assessed against the defendant,” that the
[conviction becomes final].
Id. at 1259-60. 1
The only judgment the court entered was a judgment of acquittal.
Regardless of any misconduct by government agents before or during trial, a
defendant who is acquitted cannot be said to have been deprived of the right to a
fair trial.
The judgment of the district court is AFFIRMED.
1
The same is true under the federal rules. See Howard v. United States,
135 F.3d 506, 509 (7th Cir. 1998) (citing Fed. R. Crim. P. 32(d)(1)).
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