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October 09, 2016 Practice Points

Appeals Court: That Was Not Improper “Character” Evidence

A look at an excessive force case.

by Michael R. Lied

Davies v. Benbenek, 2016 WL 4728036 (7th Cir. September 12, 2016) was an “excessive force” case.

On June 24, 2010, Dan Davies and his girlfriend Lucille Whitehead got into a fight in Davies’ bedroom. Whitehead managed to call 911 and reported that she and Davies got into an argument and that he had pulled a gun on her. Several Chicago police officers, including Officer Karlen Benbenek, responded to the call. The officers kicked down the door to Davies’ home because no one answered after they knocked and announced their presence. When the officers entered they saw Davies, who is paralyzed from the waist down, sitting in his wheelchair. Davies’ nephew was also there.

According to the police, Davies was very angry. He used profanity, yelled at them, told them to get out, and talked about suing them. The officers searched the house and discovered illegal items in Davies’ bedroom. Davies asked the police if his nephew could “take the rap” for the items, but the police declined. Davies then became increasingly agitated and again threatened to sue the officers and told them he had “sued before.” He also spat on Officer Benbenek and made a comment about a tongue-piercing she had at the time. When Officer Benbenek told Davies he would be charged for spitting on her, Davies threw himself from his wheelchair onto the floor, where he continued telling the officers that he would sue.

In turn, Davies testified that, once he commented on Benbenek’s tongue-piercing, she grabbed him by the hair and punched him in the face multiple times, and that he later woke up on the floor choking on his own blood.

After Davies ended up on the ground, the officers called for an ambulance and Davies was taken to the hospital. Davies had sustained a fractured femur that was consistent with a fall. The attending physician testified that Davies had severe osteoporosis which made his bones more susceptible to breaking through minor trauma.

Davies subsequently sued Officer Benbenek under 42 U.S.C. § 1983, alleging that she used excessive force during the disputed encounter of June 24, 2010. Before trial, the parties filed motions in limine seeking a ruling on whether Officer Benbenek could offer testimony that Davies, in the course of threatening to sue the responding officers, told them that he had sued before. The defense also sought to prevent testimony that certain unidentified “items” were recovered from Davies’ home and that Davies was distraught when the police declined his request to pin possession of the items on his nephew. Over Davies’ objection, the court ultimately admitted the proposed testimony at trial.

The jury rendered a verdict for Officer Benbenek.

On appeal, Davies argued that the district court erred by allowing the responding officers to testify (1) that he told them he had sued before, and (2) that he became upset when they refused to hold his nephew responsible for the items that were discovered in his home. Davies contended that this testimony should have been excluded as impermissible character evidence under Federal Rule of Evidence 404(b), and as unfairly prejudicial under Federal Rule of Evidence 403.

The appeals court observed that under Rule 404(b), evidence of a crime, wrong, or other act is not admissible to prove a person’s character or propensity to act a certain way. Fed. R. Evid. 404(b)(1). Such evidence may be admissible, however, for another purpose, such as proving motive, opportunity, or intent. Fed. R. Evid. 404(b)(2). Under Rule 403, the district court is allowed to exclude evidence whose probative value is substantially outweighed by a danger of unfair prejudice. Evidence is unfairly prejudicial only if it will induce the jury to decide the case on an improper basis, commonly an emotional one, rather than on the evidence presented.

Davies maintained that the responding officers’ testimony that he told them he had “sued before” was inadmissible under Rule 404(b) because it constituted other-act evidence that was used to tarnish his character. He also argued that the testimony should have been excluded under Rule 403 because it resulted in severe prejudice with no corresponding probative value.

The court found that Rule 404(b) did not apply because the challenged testimony was not other-act evidence that was used to prove Davies’ character. The responding officers testified only that Davies said he had sued before, not that he did sue before. In doing so, the officers simply related what was said and done in the critical moments surrounding Officer Benbenek’s alleged use of excessive force. Davies’ words and actions at that time were central to the disputed circumstances underlying his claim of excessive force; they were not “other acts” used to establish a propensity inference.

Davies also failed to make the required showing under Rule 403. Davies’ comments to the responding officers were highly probative in evaluating the disputed encounter with Officer Benbenek that lay at the heart of his claim for excessive force. On the other side of the scale, there was nothing “inherently emotional or incendiary” about the officers’ testimony that Davies said he had previously sued.

Davies next argued that the district court erred by permitting the police to testify that they found certain items in his home, and that he became increasingly frantic when they refused his request to hold his nephew accountable for the items.

The challenged testimony was not evidence of other acts within the parameters of Rule 404(b). The testimony centered on Davies’ interactions with the responding officers just before his contested exchange with Officer Benbenek. Because Davies’ remarks to the police at that time were an integral part of the facts and circumstances forming the basis of his case, Rule 404(b) did not apply.

Turning to Rule 403, the court concluded that the items-testimony was clearly relevant to the pivotal question of how Davies ultimately ended up on the floor (Davies’ escalating agitation when confronted with the items made it more likely that he threw himself from his wheelchair in the heat of the moment), while any resulting prejudice was mitigated by the fact that the items were not described to the jury in any way. The trial court did not err in admitting the challenged testimony. The takeaway is to be creative in justifying the reason for offering what might otherwise look like impermissible character evidence.

Michael R. Lied is an attorney with Howard & Howard Attorneys PLLC in Peoria, Illinois.

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