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Wasserman v. Bartholomew (9/20/96), 923 P 2d 806
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NOTICE: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
KEITH WASSERMAN and KRISTI )
WASSERMAN, ) Supreme Court No. S-5584
)
Appellants. ) Superior Court No.
) 4FA-91-151 CI
v. )
) O P I N I O N
HAYDEN BARTHOLOMEW, KEN )
STEINNERD, CITY OF FAIRBANKS, ) [No. 4404 - September 20, 1996]
JOHN ROBERTS, and STATE OF )
ALASKA, )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: William R. Satterberg, Jr.,
Fairbanks, for Appellants. James R. Blair,
Winfree & Hompesch, Fairbanks, for Appellees
Hayden Bartholomew, Ken Steinnerd, and City of
Fairbanks. Randy M. Olsen, Assistant Attorney
General, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellees John
Roberts and State of Alaska.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices, and
Carpeneti, Justice pro tem. [Moore, Justice,
not participating.]
CARPENETI, Justice pro tem.
I. INTRODUCTION
Keith Wasserman was mistakenly apprehended by police, who
incorrectly believed he was a fleeing felon, as he shopped for
groceries. Wasserman and his wife, Kristi Wasserman, sued local
police and state troopers, the City of Fairbanks (the City) and the
State of Alaska for the acts of the peace officers. The trial
court, sitting without a jury, returned a verdict in favor of the
defendants. The Wassermans appeal. They claim that the superior
court erred in a number of evidentiary rulings, in denying their
post-trial motion to disqualify the judge, and in evaluating the
evidence.
We affirm the trial court with respect to all of its
rulings but one. As to its exclusion of one witness's testimony,
we reverse and remand for appropriate disposition.
II. FACTS AND PROCEEDINGS
A. The Facts
In October 1990 Wasserman was shopping at University
Center Safeway in Fairbanks. Upon reaching the check-out stand, he
asked a Safeway employee about the location of an item that had
been advertised as on sale but which he was unable to find. He was
directed to the appropriate section and, leaving his young son
momentarily at the cash register, began jogging toward that part of
the store. About that time, a group of Fairbanks police officers
and state troopers entered Safeway looking for John Palmer, a
fleeing felon. Wasserman had the misfortune to match several
characteristics of the rough description of Palmer possessed by the
officers.
At this point Wasserman's account of the facts diverged
from the defendants' version. He testified to hearing someone yell
"Stop!"and seeing dark-clad men running after him. He said he was
then grabbed by the jacket and told to put his hands behind his
back. He pulled away and asked, "What for?" The command was
repeated, and Wasserman again refused, exclaiming, "Wait a minute,
I've got my rights." According to Wasserman, someone (later
identified as State Trooper John Roberts) then wrapped an arm
around his neck. Then Trooper Roberts either lost his balance or
someone knocked Wasserman's feet out from under him, and everyone
fell to the floor. Wasserman stated that he could not breathe at
this point, and that someone told him, "Put your hands behind your
back and we'll let you breathe." Wasserman put his hands behind
his back, was handcuffed, and was pulled up to his feet. Shortly
afterward, the police discovered that they had the wrong man.
Wasserman was released, and the officers left to pursue Palmer,
although a lieutenant remained behind to discuss the matter.
Wasserman also testified that during this incident the
police did not initially identify themselves and that he did not
recognize them as officers of the law. In addition, he claimed
that the officers never explained their purpose in stopping him,
never asked him for identification, and never told him he was under
arrest. He sued the City of Fairbanks and two individual Fairbanks
officers, as well as the State of Alaska and two troopers, (EN1)
claiming that the officers' actions constituted "assault, battery,
a negligent infliction of harm, and unreasonable use of force"
causing him a number of serious injuries. (EN2) Wasserman's wife
Kristi sued for loss of consortium and emotional distress. (EN3)
The accounts of the incident provided by the police
officers and several bystanders differed significantly from
Wasserman's description. According to the officers' testimony,
they were in full uniform and unmistakable as police officers. The
defense contended that Fairbanks police officer Bartholomew entered
the store and made eye contact with Wasserman, and then raised his
hand and called out, at which point Wasserman turned and began to
run. According to Officer Bartholomew, when Wasserman stopped,
Bartholomew informed him that he resembled a federal fugitive and
requested identification. Officer Steinnerd and Trooper Manns also
contended that Wasserman was advised that he resembled a federal
fugitive. (EN4)
Wasserman did not produce identification, nor did he say
that he was not the man the officers were seeking. State Trooper
Roberts reached the group as the city officers were attempting to
grab Wasserman's arms. Roberts testified that he approached
Wasserman from behind and threw his arms around Wasserman's
shoulders or arms. Roberts lost his balance, and next remembers
"us all going to the floor." Because Wasserman continued to
struggle, a Fairbanks officer handcuffed him. The officers then
pulled Wasserman to his feet, learned that he was not the fugitive,
and released him.
Roger Hanson, the produce manager at Safeway, essentially
corroborated the officers' account. Hanson heard Wasserman being
asked to produce identification, and said that Wasserman did not
comply and began to resist. Hanson testified that an officer
grasped Wasserman by the shoulder, and Wasserman pulled away. He
testified that the officers were "str[iving] to keep [Wasserman]
from moving his arms"and Hanson had the impression that "they
wanted him to keep his hands in sight." He explained that "[a]s
[Wasserman] was pulling more away from [the police] they grabbed
him more forcefully." Hanson then saw an officer (Trooper Roberts)
grab Wasserman around the chest from behind. Hanson then saw
Wasserman "[w]restl[ed] down"to the floor. (EN5)
B. Motions Before and During the Trial
Shortly before trial, the case was reassigned to Superior
Court Judge Ralph Beistline, who had recently been appointed to the
bench. Approximately one month later, the Wassermans invited the
defendants to stipulate to a bench trial. The defendants accepted,
so long as the case was tried before Judge Beistline.
During discovery one of the Wassermans' witnesses,
Delores Delacruz, stated at her deposition that she would not
answer questions without first obtaining immunity from future
contacts with police agencies. The Wassermans said that they
intended to call Delacruz as a witness at trial, and moved for a
protective order. (EN6) This motion was denied. On the fourth day
of trial, when the Wassermans stated that they would call Delacruz
as a witness, the defendants expressed surprise and moved to strike
her from the witness list. The court granted the motion to strike.
(EN7) The court's rationale for excluding her testimony was that
the defense had been denied discovery of her testimony, and that it
would merely be cumulative. The Wassermans later attempted to call
Delacruz as a rebuttal witness. The court denied this request for
similar reasons.
C. The Trial Court's Judgment
The trial court found that the law enforcement officers
had a justified belief that a federal fugitive, armed and
dangerous, was in the Safeway store and that Keith Wasserman
resembled that fugitive. It found that "[t]he police officers were
in full uniform,"that Mr. Wasserman should have known they were
officers, that they requested identification, and that they told
Wasserman that he resembled a fugitive. In the ensuing struggle,
the court found that Roberts held Wasserman by the shoulders, did
not use a choke hold and did not use deadly or excessive force, and
that their contact was of short duration. The court described the
incident as "an unfortunate combination of mistaken identities and
misunderstandings."
As a matter of law, the court found that the defendants
were peace officers whose use of force was nondeadly and justified
as reasonable under the circumstances. The defendants' use of
force, it held, was statutorily privileged and did not constitute
negligence. It denied the Wassermans' claims and dismissed them
with prejudice.
D. The Post-trial Attempt to Disqualify the Judge
Three months after the trial court entered its findings
and conclusions, the Wassermans filed a motion for a new trial.
The motion was essentially a motion to disqualify Judge Beistline
for cause pursuant to AS 22.20.020. Before his elevation to the
bench, Judge Beistline worked in Fairbanks for the law firm of
Hughes, Thorsness, Gantz, Powell & Brundin. The Wassermans stated
in their motion that they had learned only after trial that Hughes,
Thorsness had represented the City of Fairbanks in a high profile
case involving the City's police and fire departments. According
to the Wassermans, their subsequent research indicated that the
City had paid "several hundreds of thousands of dollars"in legal
fees to Hughes, Thorsness. The Wassermans argued that because
Judge Beistline failed to disclose in their case that his firm had
previously represented the City of Fairbanks, a defendant in their
case, and to recuse himself "if appropriate,"a new trial was
warranted.
Judge Beistline denied the motion for a new trial because
it was both untimely and "factually and legally unsupported."
Regarding timeliness, Judge Beistline noted that the motion was
brought three months after trial. He took judicial notice that
counsel for the Wassermans, William Satterberg, knew at the time of
the trial that Judge Beistline had formerly represented the City of
Fairbanks. Judge Beistline's reason for taking judicial notice was
that he and Satterberg had been opposing counsel (with Beistline
representing the City of Fairbanks) in a 1989 case. Furthermore,
Judge Beistline said, in the recent high profile case that
allegedly brought Hughes, Thorsness's representation of Fairbanks
to the Wassermans' attention, Judge Beistline had performed only
insignificant legal work for the City. (EN8) Judge Beistline's
decision also rested on the facts that Satterberg had supported
Judge Beistline's appointment to judicial office, that Satterberg
had told a television interviewer that Judge Beistline was fair,
that "[i]t is unlikely that an attorney of Mr. Satterberg's stature
. . . would be unaware of"Hughes, Thorsness's representation of
the City of Fairbanks, and that Satterberg "was associated at the
time with two former associates of Hughes, Thorsness."
After Judge Beistline denied the Wassermans' motion, the
Wassermans applied to this court to disqualify Judge Beistline for
cause. The issue was assigned to Judge Hodges for review pursuant
to AS 22.20.020(c).
Judge Hodges affirmed Judge Beistline's conclusion that
AS 22.20.020 did not require Judge Beistline to recuse himself or
to disclose his former firm's representation of the City. On the
related issue whether Judge Beistline's presiding created an
appearance of impropriety, Judge Hodges remanded to Judge Beistline
for determination. Briefing on the issue ensued. Judge Beistline
found that there was no appearance of impropriety, and after
hearing oral argument Judge Hodges affirmed that ruling.
On appeal, the Wassermans challenge the exclusion of
Delacruz's testimony, the denial of their motions to disqualify
Judge Beistline for cause, and several other issues.
III. DISCUSSION (EN9)
A. The Testimony of Delores Delacruz Was Erroneously
Excluded.
The Wassermans' first point on appeal claims that the
trial court erred in refusing to allow the testimony of Delores
Delacruz, whom the Wassermans describe as the non-party witness
with the closest view of the Safeway incident. The Wassermans
characterize the court's exclusion of her testimony as a Civil Rule
37 sanction for her refusal to testify at a deposition. The court
stated an additional reason for excluding Delacruz's testimony:
that it would be cumulative under Evidence Rule 403. We conclude
that neither of these reasons was sufficient to bar the testimony,
and that the court erred in excluding Delacruz's testimony.
1. Civil Rule 37 (EN10)
The court's first rationale for excluding Delacruz's
testimony was as a sanction for her non-responsiveness at
discovery. Although the court did not explicitly cite Civil Rule
37 in its ruling, the principal source of sanctions for inadequate
discovery responses is Civil Rule 37. (EN11) We conclude, however,
that Civil Rule 37 cannot be the basis for excluding the testimony.
First, exclusion of testimony is not an appropriate or
effective sanction under Civil Rule 37 where the recalcitrant
witness is not a party. (EN12) (The appropriate sanction in these
circumstances is an award of "reasonable expenses"under Civil Rule
37(a)(4)(A).) Second, there is no indication that the appellants,
allegedly harmed by the exclusion, encouraged or caused the refusal
of the non-party to answer questions at the deposition. In these
circumstances, it would not be just to impose a sanction against a
party that had done nothing wrong.
Because Delacruz was not a party, and because the
defendants did not seek an order to compel her deposition
testimony, (EN13) we conclude that the trial court abused its
discretion in prohibiting her testimony as a Civil Rule 37 sanction
for her refusal to cooperate at the deposition.
We do not mean to suggest that the trial court was
without power to address the situation confronting it on the fourth
day of trial when counsel for the plaintiffs announced his intent
to call the previously recalcitrant witness. (EN14) Trial courts
have the power to regulate the manner in which evidence is
discovered and disclosed at trial. In extreme circumstances, a
trial court may properly conclude that only exclusion of a non-
party witness's testimony can redress the unfairness of the
situation. (EN15)
In the instant case, however, there is no showing that
exclusion is justifiable on these grounds. It was not established
that the witness's initial non-cooperation was secured at the
plaintiffs' urging. It appeared clear from the record that a mid-
trial deposition was entirely feasible. In these circumstances,
exclusion of Delacruz's testimony on the ground that it was
necessary to avoid prejudice was error.
2. Evidence Rule 403 (EN16)
The court's reasons for excluding Delacruz's testimony
included these statements: "[I]t's potentially cumulative,"
"[w]e've got many, many fact witnesses,"and "there are so many
witnesses on the subject." These statements suggest exclusion
under Evidence Rule 403 for "undue delay, waste of time, or
needless presentation of cumulative evidence."
The court made its ruling without knowledge of the
contents of Delacruz's sealed statement. Our knowledge of that
statement is the most important basis for the following analysis
and our consequent determination that Delacruz's testimony should
have been admitted.
Although the trial court stated that Delacruz was "not
the key witness,"her statement reveals that she could be the most
important non-party witness. Seven non-party fact witnesses who
were in or near the Safeway testified: Martha Roth, Arlene
Abalahin, Renee Dewberry, Joy Morrison, Tammy Pruitt, Vincent James
Valenza and Roger Hanson. Most of the non-party witnesses were
quite distant from the scuffle and stated that their perceptions of
it were limited. (EN17) In comparison, Delacruz states that she
was 10-15 feet away. With the possible exception of Roger Hanson,
this would make her the closest non-party witness and would lend
significance to what she observed.
While the trial court said that there was "not that large
of a diversity"between the parties' accounts of the facts, several
important facts are disputed: whether the police officers were
identifiable as peace officers, whether an officer held Keith
Wasserman in a choke hold, and what the officers told Wasserman
before they seized him.
On each of these points, Delacruz had testimony to offer
that was highly favorable to plaintiffs. Delacruz stated that the
officers were not identifiable as peace officers, (EN18) that one
of them held Wasserman in what was apparently a choke hold, (EN19)
and that none of them asked Wasserman for identification (EN20) or
told him why they were detaining him. (EN21) Her testimony, if
believed, would strongly have supported the plaintiffs' theory of
the case.
Evidence properly excludable as "cumulative"falls into
two categories. One is evidence supporting an uncontested or
established fact. United States v. Hearst, 563 F.2d 1331, 1350
(9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978); Sloan v.
Atlantic Richfield Co., 541 P.2d 717, 722 n.7 (Alaska 1975),
modified on other grounds, 552 P.2d 157 (Alaska 1976). The second
is evidence repeating a point made by previous evidence. (EN22)
United States v. Stirling, 571 F.2d 708, 736 (2d Cir. 1978), cert.
denied, 439 U.S. 824 (1978); Williams v. Utility Equip., Inc., 837
P.2d 1112, 1115-16 (Alaska 1992); Schneider v. Cessna Aircraft Co.,
722 P.2d 321, 331 (Ariz. Ct. App. 1985).
Delacruz's testimony is clearly not cumulative evidence
of the first sort; the Safeway events are disputed. It is not the
second, repetitious, sort of cumulative evidence; Delacruz is the
only non-party witness who states that the police were not
identifiable as police officers, and did not disclose the reason
they stopped Keith Wasserman. Moreover, her status as perhaps the
closest non-party witness makes exclusion of her testimony
questionable. See Zaken v. Boerer, 964 F.2d 1319, 1323 (2d Cir.
1992) (rejecting exclusion of testimony as cumulative where all
other comparable witnesses were parties or had also sued
defendant), cert. denied, 113 S. Ct. 467 (1992); see also Kobos by
and through Kobos v. Everts, 768 P.2d 534, 545-46 (Wyo. 1989).
While the defense could identify reasons to discredit
Delacruz's testimony, (EN23) her credibility should not affect
whether her testimony is inadmissible as cumulative. The
Wassermans' counsel came close to inviting this ruling, by calling
on Delacruz after several fact witnesses who provided little or no
support for their account and by describing her testimony at one
point as "more of the same, perhaps." However, a witness's account
of disputed facts cannot be considered cumulative on the basis that
the court has heard several versions of the facts that differ
substantially from the excluded witness's version.
The court's opinion could be read to suggest other Rule
403 rationales: "undue delay"and "waste of time." They do not
apply. These rationales generally serve to contain a peripheral
but potentially time-consuming issue. See Fairbanks N. Star
Borough v. Kandik Const., 795 P.2d 793, 801 (Alaska 1990) ("It was
not necessary for the court to suffer a trial within a trial on
this minor issue."); Alaska N. Dev., Inc. v. Alyeska Pipeline Serv.
Co., 666 P.2d 33, 42 (Alaska 1983) ("to prevent the þsideshow
[from] swallow[ing] up the circusþ") (alterations in original),
cert. denied, 464 U.S. 1041 (1984). Exclusion on these grounds of
evidence pertaining to the central issue at trial is rarely within
the trial court's discretion. See Shad v. Dean Witter Reynolds,
Inc., 799 F.2d 525, 530 (9th Cir. 1986) (rejecting exclusion of
expert testimony essential to plaintiffs' case); Denison v.
Anchorage, 630 P.2d 1001, 1003 (Alaska App. 1981) (rejecting
exclusion as "undue delay or waste of time"of circumstantial
evidence of defendant's sobriety in drunk driving trial); 29 Am.
Jur. 2d Evidence sec. 353 at 386 (1994) ("[E]vidence should not be
excluded on the ground of delay or waste of time when the proffered
evidence is of central importance to the case."). Because
Delacruz's testimony goes to the central issue of the case, it is
not excludable for reasons of undue delay or waste of time.
As the rationales of cumulative evidence, undue delay, or
waste of time are all inapplicable, we find that the trial court
abused its discretion in excluding Delacruz's evidence under
Evidence Rule 403.
3. Remedies
Although it was error to exclude the testimony of Delores
Delacruz on grounds of either Civil Rule 37 or Evidence Rule 403,
it does not necessarily follow that a new trial must be granted.
The determination of the context in which the improperly excluded
evidence should be heard will be left, in the first instance, to
the trial court. After giving the parties the opportunity to be
heard, the trial court should decide whether to reopen the evidence
solely to entertain the testimony of Delores Delacruz, to reopen to
entertain her testimony and any other evidence within the ambit of
her testimony, (allowing, for example, impeachment and rebuttal
evidence), or to hold a new trial. (EN24)
B. The Trial Court Correctly Denied the Wassermans' Request
for Disqualification. (EN25)
The Wassermans' second and third points on appeal concern
their attempt to disqualify Judge Beistline. They argue that Judge
Beistline should have granted their motion for a new trial because
his presiding over their case and his non-disclosure of his prior
legal work for the defendant City of Fairbanks created an
"appearance of partiality." They also claim that Judge Beistline
erred by considering information that was not in evidence when he
denied the motion for a new trial.
Judge Beistline denied the Wassermans' disqualification
motion because he found that it was both untimely and lacked merit.
Judge Hodges affirmed the ruling on its merits. We affirm the
lower court's rulings on the merits as being soundly within the
scope of judicial discretion. (EN26)
Two bodies of law provide standards for disqualification
of a judge for cause: AS 22.20.020(a) and the Alaska Code of
Judicial Conduct, Canon 3.C. (EN27) The two bodies of law are
"related, but somewhat different." Alaska Trams Corp. v. Alaska
Elec. Light & Power, 743 P.2d 350, 353 n.7 (Alaska 1987), cert.
denied, 485 U.S. 905 (1988). The canon and the statute set
different standards and apply in different situations. See
Feichtinger v. State, 779 P.2d 344, 347 n.4 (Alaska App. 1989)
(distinguishing Canon 3 and AS 22.20.020 by noting that a judge may
recuse himself or herself under the canon, but only the statute
allows one judge to disqualify another judge). However, we have
relied upon the canon to interpret the statute, in particular
finding that because of the canon, AS 22.20.020(a)(9) includes an
"appearance of impartiality." Perotti v. State, 806 P.2d 325, 327
(Alaska 1991); Amidon v. State, 604 P.2d 575, 577-78 (Alaska 1979).
Prior representation by a judge of the state or a
municipality is not enumerated among grounds for disqualification
in the statute or the canon. Alaska Statute 22.20.020 compels
disqualification of a judge who counseled one party as an attorney
within the last two years, as Judge Beistline did for the City of
Fairbanks, but not where the former client is "the state or a
municipality of the state." AS 22.20.020(a)(5). Reasons for this
exception are that representing the state or a municipality, unlike
representation of private clients, does not lead to a disqualifying
loyalty, Mustafoski v. State, 867 P.2d 824, 835 (Alaska 1994), and
that many new judges, including all former district attorneys,
assistant attorneys general, and municipal attorneys, would have to
recuse themselves from "a wide range of proceedings both criminal
and civil." Keel v. State, 552 P.2d 155, 157 (Alaska 1976).
This leaves the more vague "appearance of partiality"
claim based on AS 22.20.020(a)(9) and Canon 3.C(1). Judge
Beistline rejected that claim, and Judge Hodges found his decision
not to be an abuse of discretion. This court is deferential to
judges' decisions regarding the "appearance of partiality."
Amidon, 604 P.2d at 577. Although the language of AS
22.20.020(a)(9) relies on a judge's subjective decision, review
applies an objective standard based on a fair-minded person.
Mustafoski, 867 P.2d 824, 831 n.3.
A fair-minded party would rationally conclude that Judge
Beistline did not breach the appearance of impartiality, either by
presiding over the case or by failing to disclose his prior
representation. Two principal reasons support this conclusion:
remaining on this case after working for the municipality was
allowed by an explicit statutory exception, and the governmental
interests he had represented differ from the interests held by the
parties in this suit. We therefore affirm the superior court's
ruling that Judge Beistline did not need to disqualify himself or
to disclose his prior legal work on behalf of the City of
Fairbanks.
C. The Trial Court Did Not Err in Admitting Keith
Wasserman's Psychiatric Records into Evidence.
The Wassermans' next argument contends that the court
should have excluded Wasserman's psychiatric records. Their
argument on this subject cites no authority and fails to provide a
legal theory under which the records should have been excluded.
This argument is therefore considered waived. (EN28)
D. The Trial Court Did Not Err in Excluding the Deposition
Testimony of Officers Steinnerd and Bartholomew.
The Wassermans contend that the trial court excluded the
deposition testimony of Officers Steinnerd and Bartholomew, which
the Wassermans wanted to introduce on rebuttal. The Wassermans do
not provide a record citation for the court's alleged exclusion of
this testimony, however, and the transcript demonstrates that the
court in fact admitted the pages of the Bartholomew transcript that
the Wassermans offered. The transcript does not indicate that the
Wassermans' counsel requested the admission of transcript testimony
from Officer Steinnerd.
The Wassermans did offer deposition testimony of Trooper
Manns, who was originally a defendant but was later dropped from
the case. The trial court excluded this testimony as cumulative.
The Wassermans do not appeal the exclusion of Trooper Manns'
deposition testimony. Assuming that the Wassermans meant to appeal
the exclusion of Manns' testimony, their claim lacks merit. Their
arguments attempt to demonstrate that the proffered deposition
testimony was relevant and not hearsay. The court excluded Manns'
testimony not because it was irrelevant or hearsay, but because, in
the court's view, it was cumulative. The Wassermans have made no
argument in opposition to that ruling, and there is no basis to
conclude that it was an abuse of discretion. For these reasons, we
reject the Wassermans' arguments regarding the admissibility of
deposition testimony.
E. The Trial Court's Decision Was Not "Against the
Substantial Weight of the Evidence."(EN29)
Finally, the Wassermans claim that "[w]ith the exception
of Trooper Roberts, and Officer Steinnerd, everyone at the scene
saw Trooper Roberts's arm go around Keith Wasserman's neck." From
this premise the Wassermans argue that the evidence did not allow
the trial court to make the following findings of fact:
[Trooper] Roberts grasped Wasserman around the
upper shoulders to obtain control. He did not
apply a "choke hold,"although Wasserman's
neck was likely impacted by Roberts' arms in
the scuffle. Roberts' contact with Wasserman
cannot be classified as deadly force.
The Wassermans ask this court to find liability "on the part of
Trooper Roberts if no one else." They claim that since the other
officers were "part and parcel to the attack on Wasserman,"they
should also be held liable by this court.
The flaw in this argument is that it rests on a false
premise. It is simply not true that with the exception of two
officers, "everyone at the scene saw Trooper Roberts's arm go
around Keith Wasserman's neck." Roger Hanson's testimony
corroborated the testimony of Trooper Roberts, who said that he did
not apply a choke hold to Wasserman. Hanson, the produce manager
at Safeway, testified that Roberts wrapped his arms around
Wasserman's chest. Doctor Eric Stirling, who examined Wasserman in
the Fairbanks Memorial Hospital emergency room on the morning after
the Safeway incident, also contradicted Wasserman's choke hold
allegation. Dr. Stirling had experience with injuries suffered
during arrest struggles, and was familiar with the medical symptoms
that would result from a choke hold. His notes indicate no
evidence of several of these symptoms.
This testimony provides evidentiary support for the trial
court's factual finding that
[t]here was conflicting testimony as to
whether Roberts' arm or arms were around
Wasserman's neck or shoulders. Several
witnesses saw arms near Wasserman's neck while
others believed them to be around his
shoulders or upper body. Medical evaluation
did not substantiate a choke hold . . . .
In sum, it is not true, as the Wassermans imply, that
there was nearly unanimous testimony that Trooper Roberts grabbed
Wasserman around the neck. In fact, no percipient witness besides
Wasserman clearly testified to the existence of a choke hold. The
Wassermans fail to cite any passage of the record in support of
their assertion that "everyone at the scene"saw Roberts put his
arm around Wasserman's neck. Given the conflicting testimony on
this issue, it cannot be said that the trial court's factual
findings regarding Trooper Roberts' actions were clearly erroneous.
We therefore reject the Wassermans' final argument on appeal.
(EN30)
IV. CONCLUSION
The trial court correctly denied the Wassermans' request
for disqualification, correctly decided questions concerning the
admission of deposition testimony and psychiatric records, and
rendered a decision that was not against the weight of the
evidence. The trial court did err in refusing to admit the
testimony of Delores Delacruz. On remand, after briefing by the
parties, the trial court should determine the most appropriate
procedural remedy.
We therefore AFFIRM the lower court's ruling in part,
REVERSE in part, and REMAND for further proceedings consistent with
this opinion.
ENDNOTES:
1. The individuals the Wassermans sued were Fairbanks Officers
Hayden Bartholomew and Ken Steinnerd and State Troopers John
Roberts and Jeffrey Manns. The claims against Manns were later
dismissed by stipulation.
2. Wasserman contends that Trooper Roberts' hold on him was
"effectively a choke hold,"which "placed [him] in serious danger
of being choked to death." He also claims he was injured in the
fall to the floor, and again when one of the officers dug a knee
into his back as he lay face-down on the floor. Finally, he claims
that his wrists were injured by improperly-applied handcuffs.
3. Wasserman's son Levi sued for emotional distress, but Levi
Wasserman's case was later dismissed by agreement between the
parties.
4. Wasserman acknowledged on cross-examination that there was a
"good possibility"that Officer Bartholomew told him, "You resemble
a person we're looking for, a felon."
5. Hanson's account of the incident was the most detailed of any
third-party witness. Other fact witnesses were called to the stand
by Wasserman and partially corroborated each side's stories.
6. Alleging a series of past abuses on the part of the Fairbanks
Police Department directed against Delacruz and her family and
alleging that she feared future harassment were she to testify, the
Wassermans sought a protective order "precluding the police
department from contacting [Delacruz] except in the context of
actively attempting to stop a crime in progress, or in the event
she contacts them for assistance."
7. In order to meet the argument that the defendants had been
denied discovery by Delacruz's earlier statement that she would not
answer questions without immunity, the Wassermans suggested that
the defendants could depose Delacruz over a three-day weekend,
which was about to occur. The defense continued to object, and the
court excluded her testimony, stating that "it's not necessary to
put the parties through having to conduct discovery over the
weekend."
8. Subsequent testimony showed that the amount of work he had
performed was one-half hour.
9. The State is no longer a party. At trial, the State sought
summary judgment on the basis of statutory immunity from the
Wassermans' vicarious liability/respondeat superior claim. The
Wassermans acknowledged at the trial that they were not pursuing a
vicarious liability theory against the State. They alleged active
negligence based on the State's purported failure to train and
supervise troopers adequately. The court granted summary judgment
on the vicarious liability claim, leaving the issue of training for
trial. The State received a directed verdict on the training
issue, and the Wassermans do not appeal it.
10. "Trial courts are vested 'with broad discretion as to the
choice of sanction in a given situation.'" Rohweder v. Fleetwood
Homes of Or., Inc., 767 P.2d 187, 190 (Alaska 1989) (quoting Hawes
Firearms Co. v. Edwards, 634 P.2d 377, 378 (Alaska 1981) (imposing
Rule 37 sanctions for discovery abuse)). "[S]anctions imposed
under Civil Rule 37(b) are set aside only if the trial court has
abused its discretion." Rohweder, 767 P.2d at 190 (citing Honda
Motor Co. v. Salzman, 751 P.2d 489, 492 n.7 (Alaska 1988), cert.
dismissed, 487 U.S. 1260 (1988)).
11. Rule 37 allows a wide variety of sanctions. Glover v. Sager,
667 P.2d 1198, 1203-04 (Alaska 1983). One appropriate sanction is
to preclude or strike a party witness's trial testimony. Alaska R.
Civ. P. 37(b)(2)(B); State v. Guinn, 555 P.2d 530, 542 (Alaska
1976) (striking trial testimony of representative party witness for
failure to comply with discovery order); Waicis v. Superior Court
(Schwartz), 276 Cal. Rptr. 45, 48 (Cal. App. 1990) (precluding
trial testimony of a noncooperative deponent).
12. Civil Rule 37(b)(2) sanctions, such as an order precluding
testimony, are not available against non-party witnesses. The
sanction available against a non-party witness is contempt, under
Civil Rule 37(b)(1). Moreover, sanctions under Rule 37(b) apply
only after a witness has violated a court order compelling
discovery. See Underwriters at Lloyd's London v. The Narrows, 846
P.2d 118, 120-22 (Alaska 1993); Bachner v. Pearson, 432 P.2d 525,
528, 532 (Alaska 1967) (Rabinowitz, J., dissenting) ("[T]he
sanctions there provided do not come into play unless a party has
refused to obey an order made under Rule 37(a)."). Because the
defendants did not seek a court order under Rule 37(a)(2)(B)
compelling Delacruz to respond, the court could not impose any Rule
37(b) sanctions.
The rationale for requiring a prior court order is that Rule
37(b) sanctions may be harsh. A court must afford a witness
sufficient opportunity to consider whether he or she will respond,
and to realize the seriousness of failure to respond, before it
imposes sanctions. Also, a court must determine whether a witness
has sound basis, such as privilege or the Fifth Amendment, for
refusal to respond to a discovery request before it can impose Rule
37 sanctions. Societe Internationale v. Rogers, 357 U.S. 197, 210-
12 (1958). The most appropriate time for that determination is
before trial, at a hearing on a motion to compel discovery.
13. When she stated at her deposition that she would not answer
questions without a protective order, the defendants could have
sought to compel Delacruz to testify by filing a motion under Rule
37(a)(2)(B). They could have also brought a motion in limine to
exclude Delacruz's testimony at trial. They did neither.
14. The Wassermans attempted to depose Delacruz. She declined to
testify absent a protective order. The Wassermans shortly
thereafter moved for a protective order. The court denied the
motion. Trial commenced not long thereafter. On the fourth day of
trial, plaintiffs' counsel announced that Delacruz had changed her
mind and was now prepared to testify. One could conclude from
these circumstances that the trial court correctly found that there
had not been "equal access"to Delacruz.
15. For example, where the record is clear that a party has
induced the non-party witness's non-cooperation with discovery, and
the exigencies of the trial schedule would not permit a mid-trial
deposition, exclusion may well be appropriate. Exclusion in these
circumstances would be imposed not to sanction the witness nor
pursuant to Civil Rule 37, but to prevent undue prejudice to the
party against whom the testimony was offered and who had no
opportunity to prepare for the testimony.
16. Rule 403 gives a trial court discretion to exclude evidence.
Fairbanks N. Star Borough v. Kandik Constr., Inc. & Assoc., 795
P.2d 793, 801 (Alaska 1990), vacated in part on other grounds, 823
P.2d 632 (Alaska 1991). This court reviews Rule 403 decisions
under the abuse of discretion standard. Williams v. Utility
Equip., Inc., 837 P.2d 1112, 1116 (Alaska 1992).
17. Roth "wasn't in a position to hear anything"other than
shouting, and didn't see most of what transpired. Abalahin implied
that she was a substantial distance from the events when she said
she could hear Keith Wasserman yelling "all the way from the
checkstand." Dewberry said she was about 70 feet away. Morrison
was roughly 100 feet away. Pruitt's testimony was accepted by
stipulation, so she did not testify on the disputed facts.
18. Delacruz's statement that the officers wore "dark clothing"
and that she noticed no badges or other identifying marks is the
only non-party witness's statement supporting the Wassermans' claim
that the officers did not identify themselves to the Wassermans as
peace officers.
19. There was substantial dispute at the trial over whether
Roberts applied a choke hold to Wasserman. One witness strongly
corroborated Roberts' account that he held Wasserman around the
chest. Four witnesses, including two police officers, testified
that Wasserman was held around his neck or between his chin and
shoulders, though some said the hold was not a choke hold. The
Fairbanks Police Department's internal affairs control officer
concluded that Wasserman was not held in a choke hold. The
examining physician at the hospital found that Wasserman's neck
abrasions were consistent with the conclusion that he was held in
a choke hold, but that several other typical indications of a choke
hold were not present.
Delacruz's affidavit, on the other hand, says that a police
officer lifted Wasserman off the floor while holding him by his
neck, in what appears to have been a choke hold.
20. Wasserman stated that the police did not ask him for
identification at the initial apprehension. The defendants
disagreed. Delacruz supported Wasserman: "at no time in my
hearing, did [any officer] ask Mr. Wasserman for his
identification."
21. Wasserman stated that the police did not initially tell him
why they stopped him. The officers stated that Wasserman was
initially told that he resembled a federal fugitive. The few
statements of non-party witnesses on these issues support the
defendants weakly, at best. On the other hand, Delacruz's
statement that "at no time in my hearing, did [any officer] . . .
explain to Mr. Wasserman why they were detaining him"is
potentially very important to the plaintiff.
22. Evidence falling within this second category should be
excluded with caution, for repetition of the same evidence on a
disputed point by several witnesses is often persuasive in
establishing the truth of that evidence. Evidence should only be
excluded on a disputed point as cumulative if the evidence on the
point "is already so full that more witnesses to the same point
could not be reasonably expected to be additionally persuasive."
6 John H. Wigmore, Evidence sec. 1908, at 760 (Chadbourne Rev.
1976).
23. These include that Delacruz and her family had a history of
substantial contacts with the Fairbanks Police Department, and she
believed she had been subject to harassment by the department. This
evidence could support a finding that she is biased against the
Fairbanks Police Department. Moreover, Delacruz had a strong
emotional reaction to the Safeway scuffle which left her "shaken,"
and it could have been argued that she was a less reliable witness
than others. Finally, her testimony disagreed with that of nearly
every other non-party witness with regard to whether the officers
were in uniform.
24. In the event that the trial court decides that a new trial
should be granted, it need not revisit the question of bench or
jury trial. That issue was resolved by the stipulation of the
parties before the first trial.
25. The Wassermans moved for Judge Beistline to disqualify himself
after the trial in the form of a "motion for new trial." Rejection
of a motion to disqualify is reviewed under the abuse of discretion
standard. Mustafoski v. State, 867 P.2d 824, 832 (Alaska 1994).
A motion for new trial is also reviewed under the abuse of
discretion standard. Richey v. Oen, 824 P.2d 1371, 1375 (Alaska
1992); Babinec v. Yabuki, 799 P.2d 1325, 1327 (Alaska 1990).
26. On the question of timeliness, present Alaska law applies no
timeliness requirement on motions to disqualify a judge for cause.
Alaska case law concerning a comparable arbitration situation,
convincing rulings from other jurisdictions, and common sense all
suggest that a motion to disqualify a judge for cause could be
rejected as untimely where allegations of bias are not raised until
after an unfavorable decision. Alaska State Hous. Auth. v. Riley
Pleas, Inc., 586 P.2d 1244, 1248-49 (Alaska 1978); State v. McCall,
770 P.2d 1165, 1176 (Ariz. 1989), cert. denied, 497 U.S. 1031
(1990).
However, we decline to rely on the superior court's finding of
untimeliness. This finding was based upon judicial notice of facts
(such as the knowledge of the Wassermans' attorney, William
Satterberg, based on his community involvement and association with
former Hughes, Thorsness associates) that were not generally known
but were within Judge Beistline's personal knowledge or belief. A
fact subject to judicial notice is one "not subject to reasonable
dispute"because it is either "generally known within this state"
or "capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned." Alaska R.
Evid. 201. See also State v. Grogan, 628 P.2d 570, 573 n.4 (Alaska
1981) (trial court judge "may have improperly taken judicial notice
of facts within his personal knowledge").
27. The Wassermans raised their initial claim under the canons,
not under AS 22.20.020. However, they later stated their claims in
terms of the statute, and the defendants and judges responded in
terms of both sets of law. We analyze this issue with regard to
both the statute and the canons.
28. This court has long held that "where a point is given only a
cursory statement in the argument portion of a brief, the point
will not be considered on appeal." See, e.g., Adamson v.
University of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991); see also
Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411 n.8 (Alaska
1990) (holding that argument was waived where appellant mentioned
argument in main brief but failed to "advance any legal argument as
to why the court erred").
29. This court reviews the superior court's factual findings under
the clearly erroneous standard. Barber v. Barber, 837 P.2d 714,
716 n.2 (Alaska 1992).
30. This ruling addresses the evidence which was actually admitted
at the trial. It does not address the proposed testimony of
Delores Delacruz, which we have found was erroneously excluded.
Upon remand, of course, the trial court will consider the Delacruz
testimony in deciding this matter.
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