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Wasserman v. Bartholomew (9/17/99) sp-5179
Wasserman v. Bartholomew (9/17/99) sp-5179
Notice: This opinion is subject to 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, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
KEITH WASSERMAN and )
KRISTI WASSERMAN, ) Supreme Court No. S-8238
)
Appellants, ) Superior Court No.
) 4FA-91-151 CI
v. )
) O P I N I O N
HAYDEN BARTHOLOMEW, KEN )
STEINNERD, CITY OF FAIRBANKS, ) [No. 5179 - September 17, 1999]
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. and
James E. McLain, Law Offices of William R.
Satterberg, Jr., Fairbanks, for Appellants.
Daniel E. Winfree, Winfree Law Office,
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: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
Keith Wasserman sued the City of Fairbanks, the State of
Alaska, and three peace officers, claiming that the officers used
excessive force when they mistakenly apprehended him and wrestled
him to the ground in a grocery store. Following a bench trial, the
superior court ruled for the defendants. After we remanded the
case to allow testimony from an additional witness, the superior
court reaffirmed its findings. Wasserman appeals, claiming that
the superior court erred by prohibiting him from calling two
officers as corroborative witnesses. Because we conclude that the
officers' testimony was highly material and not cumulative and that
Wasserman made a sufficient offer of proof, we vacate the judgment
against Wasserman and remand to allow the officers to testify.
II. FACTS AND PROCEEDINGS
On October 19, 1990, law enforcement officials in
Fairbanks were pursuing a fleeing convicted felon, John Palmer.
Various members of the Fairbanks Police Department, Alaska State
Troopers, and Fairbanks International Airport Security were
assisting in the pursuit. The officers had reason to believe that
Palmer had exited a taxicab and fled into a nearby Safeway store.
State Trooper John Roberts, accompanied by a trainee, Jeffrey
Manns, entered the store. Fairbanks police officers Hayden
Bartholomew and Ken Steinnerd also entered the store after speaking
with a witness outside.
Meanwhile, Keith Wasserman was shopping at the Safeway
store. At the check-out stand, he asked a Safeway employee about
the location of a sale item. Wasserman left his son Levi at the
cash register and headed toward the appropriate section of the
store. Wasserman's physical appearance was apparently similar to
the rough description of Palmer provided to the officers.
At this point Wasserman's account of the facts diverges
somewhat from the defendants' version. Wasserman testified to
hearing someone yell "Stop!"and seeing "dark clad men"come toward
him. He claimed that the police did not initially identify
themselves or explain their purpose in detaining him and that he
did not recognize them as officers. He said someone grabbed him by
the jacket and told him to put his hands behind his back. He
jerked away and asked "What for?" The officer told him to "shut
up"and to put his hands behind his back; Wasserman again refused,
exclaiming, "Wait a minute, I've got rights." At that moment,
someone -- later identified as State Trooper John Roberts --
wrapped an arm around Wasserman's neck in what several of
plaintiffs' witnesses described as a choke hold. One of the
officers then kicked Wasserman's feet out from under him;
Wasserman, along with several officers, fell to the floor.
Wasserman stated that he could not breathe and that someone told
him, "Put your hands behind your back and we'll let you breathe."
After Wasserman complied, an officer handcuffed him and pulled him
up to his feet. Shortly afterward, the police discovered that they
had the wrong man and released Wasserman.
In contrast, Trooper Roberts testified that the men were
in full uniform and unmistakably police officers. The defense
offered the deposition testimony of Roger Hanson, the Safeway
produce manager, who claimed that the officers had immediately
asked Wasserman for identification. According to Trooper Roberts,
Wasserman neither produced identification nor said that he was not
the man the officers were seeking. Both Roberts and Hanson denied
that Roberts had used a "choke hold"on Wasserman; instead, they
testified that Roberts approached Wasserman from behind and threw
his arms around Wasserman's shoulders or chest. Roberts lost his
balance, and next remembers the officers and Wasserman "all going
to the floor." Because Wasserman continued to struggle, an officer
handcuffed him. The officers then pulled Wasserman to his feet,
learned that he was not the fugitive, and released him.
Wasserman sued the City of Fairbanks, two Fairbanks
police officers, the State of Alaska, and two state troopers,
claiming that the officers' actions constituted assault, battery,
negligent infliction of harm, and unreasonable use of force.
Wasserman's wife Kristi sued for loss of consortium and "emotional
distress."
To support his claims, Wasserman sought the testimony of
Delores Delacruz, an eyewitness to the incident. Delacruz stated
in a pre-trial deposition that she would not answer questions
without a protective order precluding the police from contacting
her and her children. The trial court refused to issue the order,
and Delacruz refused to be deposed. Later, at trial, the court
refused to allow Wasserman to call Delacruz to testify. Instead,
it requested that Wasserman's attorney file a sealed affidavit from
Delacruz detailing her version of events "for purposes of the
record." Delacruz stated in the affidavit that an officer did
place Wasserman in a neck hold; that the officers' attire did not
identify them as police; and that the officers never asked
Wasserman for identification.
On January 26, 1993, after a bench trial, the trial court
entered judgment in favor of the defendants, concluding that their
actions were reasonable. Ten days later, the Wassermans moved for
a new trial based on the material found in Delacruz's affidavit.
The trial court denied the motion, stating that the material in
the affidavit was merely cumulative. Wasserman appealed.
In September 1996, in Wasserman v. Bartholomew (Wasserman
I), we remanded the case to allow the trial court to hear
Delacruz's testimony. The superior court conducted supplemental
proceedings in May 1997. Delacruz's testimony essentially mirrored
her sealed statement. The court denied Wasserman's request to call
Officer Bartholomew and Trooper Manns as witnesses after Delacruz's
testimony in an effort to bolster her credibility. To rebut
Delacruz's testimony, the State again presented the testimony of
Roger Hanson. Hanson's account corroborated Officer Roberts's
version of events.
After hearing Delacruz and Hanson's testimony, Judge
Beistline again concluded that Wasserman had not proven by a
preponderance of the evidence that the officers' actions were
negligent. Wasserman appeals the superior court's exclusion of
Bartholomew and Manns's testimony.
III. DISCUSSION
A. Standard of Review
We review a trial court's exclusion of testimony, along
with other such evidentiary decisions, for an abuse of discretion.
We also apply an abuse of discretion standard to trial court
rulings on whether evidence is legitimate rebuttal evidence. We
will find an abuse of discretion only when we are left with a
definite and firm conviction after reviewing the whole record that
the trial court erred in its ruling.
B. The Trial Court Erred by Excluding the Testimony of
Officer Bartholomew and Trooper Manns from the
Supplemental Proceedings.
1. Once the trial court allowed Delacruz to be
impeached, it should have allowed Wasserman to call
corroborating witnesses.
In Wasserman I we noted that "[t]he determination of the
context in which the improperly excluded evidence should be heard
will be left, in the first instance, to the trial court." We
essentially gave the superior court its choice among three options:
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.[ ]
On remand, the trial judge chose the second option; it allowed the
State to call Roger Hanson, the Safeway produce manager, as a
witness to impeach Delacruz's account of events. Hanson's account
corroborated Officer Roberts's version of events. The State also
insinuated during Delacruz's cross-examination that she was biased
against the police. Notwithstanding the attacks on Delacruz's
credibility in rebuttal and cross-examination, the superior court
denied Wasserman's request to call eyewitnesses who could
corroborate Delacruz's story.
One could reasonably read our decision in Wasserman I as
giving the superior court the discretion to limit the post-remand
proceedings to Delacruz's testimony. But once the court allowed
the State to attack Delacruz's credibility both through cross-
examination questions about bias and through the "impeachment-type
rebuttal" testimony of Roger Hanson, it was an abuse of discretion
to disallow admissible evidence supporting Delacruz's testimony.
McCormick on Evidence describes as a "truism"the rule that "when
there has been evidence of impeaching facts the proponent may bring
contradictory evidence asserting the untruth of the alleged
impeaching facts. Such a denial is always relevant and generally
allowable." Similarly, Alaska Rule of Evidence 607(b) provides
that "[e]vidence proffered by any party to support the credibility
of a witness may be admitted to meet an attack on the witness'
credibility." By admitting such impeachment evidence, the court
was obligated to allow Wasserman to support Delacruz's credibility
through the testimony of eyewitnesses who could corroborate
Delacruz's account.
2. The officers' testimony was not cumulative and would
have corroborated Delacruz's account.
The trial court excluded the officers' testimony on the
ground that it was cumulative. We disagree. As we explained in
Wasserman I, evidence properly excludable as "cumulative"falls
into two categories: evidence supporting an uncontested or
established fact and evidence repeating a point made by previous
evidence. Given that the trial court ultimately did not believe
Delacruz's account, her testimony was hardly uncontested. Thus,
any testimony that would corroborate her account would not fall
into the first category of cumulative evidence.
The officers' testimony also does not fall into the
category of evidence repeating a point made by previous testimony.
In Wasserman I, we warned that courts should be wary of excluding
otherwise relevant evidence on this ground:
[R]epetition 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."[ ]
Here, the trial court found Delacruz's testimony to be unpersuasive
for two reasons. First, the court found that it was "inconsistent
with much of the other evidence presented"and was "contradicted by
that of Roger Hans[o]n and others." Second, the court concluded
that Delacruz's probable bias against the police had colored her
testimony. Logically, then, if the testimony of either Trooper
Manns or Officer Bartholomew would have provided support for
Delacruz's account that was not clouded by anti-police bias, it
would have been "additionally persuasive"and not cumulative.
An examination of the record and of the officers'
depositions reveals that the testimony of Manns and Bartholomew
would indeed have been consistent with Delacruz's account of
events. We identified several disputed issues in Wasserman I on
which Delacruz's testimony would be relevant; specifically,
"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." Delacruz
testified in the post-remand proceeding that the officers were
wearing black clothes that were not obviously police uniforms, that
the officers did not identify themselves to Wasserman, and that
Trooper Roberts had Wasserman in a neck hold.
Both Officer Bartholomew and Trooper Manns's descriptions
of the incident in their depositions do corroborate certain aspects
of Delacruz's version of events. For example, Bartholomew stated
that, instead of a full police uniform, he was wearing a black
sweater with a "little emblem badge sewn on it." He also stated
that none of the officers indicated to Wasserman that he was under
arrest and that Trooper Roberts did indeed put his hands around
Wasserman's neck. Manns similarly testified in his deposition that
no one told Wasserman he was under arrest and that Trooper Roberts
grabbed Wasserman from behind and put his arms "between the chin
and the shoulders." Manns's testimony is particularly crucial
given that, with the exceptions of Hanson and Delacruz, he was the
closest non-party eyewitness to the scene.
The officers' testimony directly contradicts Roger
Hanson's testimony in the post-remand trial that "[t]he police came
and asked for identification, and said that they were placing
[Wasserman] under arrest." Given that the trial court relied on
Hanson's testimony in discounting Delacruz's version of events, the
officers' testimony would not have been merely cumulative.
The City of Fairbanks argues that Wasserman failed to
prove that the exclusion of the officers' testimony was not
harmless. Alaska Civil Rule 61 precludes disturbing a judgment
because of an erroneous evidentiary ruling unless the ruling
"appears to the court inconsistent with substantial justice."
Here, the trial court based its dismissal of Delacruz's testimony
in part on her anti-police bias and on inconsistencies between her
testimony and that of Roger Hanson and other witnesses. Given that
the officers' testimony would have contradicted Hanson's account
and would have been free of bias against the police, the admission
of the testimony could very well have affected the trial court's
findings. We therefore conclude that the trial court's error in
excluding the testimony was not harmless.
3. Wasserman made a sufficient offer of proof with
respect to Officer Bartholomew's and Trooper Mann's
testimony.
The City of Fairbanks argues in its supplemental briefing
that Wasserman failed to make a sufficient offer of proof that
Officer Bartholomew and Trooper Manns's testimony would corroborate
Delacruz's testimony. We disagree. A party must generally make an
offer of proof to preserve error based on a trial court's ruling
excluding evidence. The party must show that "the substance of
the evidence was made known to the court by offer or was apparent
from the context within which questions were asked." We believe
Wasserman made this showing with respect to the officers'
testimony.
Wasserman made the substance of Bartholomew and Manns's
proposed testimony known to the court on several occasions. At the
original trial, Wasserman's expert on police tactics referred in
his testimony to portions of both officers' depositions in which
they described Trooper Roberts's alleged neck hold on Wasserman.
Specifically, the expert noted Bartholomew's statement that Roberts
"used a choke hold" and explained his reliance on Manns's
deposition in forming his professional opinion:
Trooper Manns, who was with Trooper Roberts,
says that [Roberts's] arm was between
[Wasserman's] shoulders and his chin, and the
only thing that's there is a neck, so . . .
That's the conclusion I reached: that he'd --
was using a choke hold.
And in the post-remand proceedings, Wasserman's attorney requested
that the court allow the officers to testify after Ms. Delacruz:
[T]he offer I would make, would be to call
both Manns and Bartholomew . . . to testify,
because if there is any implication that Mrs.
Delacruz has been less than honest or biased,
I would, by way of offer of proof, [state]
that Mr. Manns and Mr. Bartholomew will
testify the same thing happened . . . that
they saw.
(Emphasis added.) The fact that the superior court knew enough
about the content of the officers' testimony to label it cumulative
suggests that the court understood the substance of the testimony.
Additionally, with respect to Trooper Manns, the State
actually called Manns as a witness at trial. Manns stated that he
was about six feet from the officers and that he could hear what
was being said and see the altercation. This testimony, albeit
limited, alerted the court to the substance of Manns's testimony
concerning Wasserman's interactions with the officers. And after
notifying the court in the first trial that he might want to call
Manns as a rebuttal witness, Wasserman's attorney, William
Satterberg, explained the relevance of Manns's testimony:
Satterberg: I may want to call Trooper Manns
as my witness on rebuttal, [since] I have been
so limited by the scope [of] his testimony by
the court and Mr. Olsen. So, I may have to
call him and ask some questions.
Court: Well, I don't -- let's address that
specifically. Because you were not limited to
the extent you didn't get to make your points.
Satterberg: The only point that I would've
brought out as well, Your Honor, which has
been brought out in testimony previously in
the case, was how Manns saw Trooper Roberts
take down -- take down Mr. Wasserman. . . .
[R]ecognizing that they're apparently
call[ing] Mr. Hanson and Mr.
McCormick[,] . . . I may have to ask Trooper
Manns[,] . . . "What did you see happen?"
The court asked Satterberg whether Manns's deposition addressed new
facts and advised him to offer only portions of Manns's deposition.
But Satterberg insisted that Manns's testimony "does address,
again, the issue of the neck hold and . . . goes to counter what
was testified to by Trooper Roberts." The court denied the request
as cumulative. The court noted to Satterberg that "[W]e know your
offer of proof, because it's pages 42, 43 and 44 of Trooper
Manns'[s] deposition." That portion of Manns's deposition
discusses Roberts's grabbing Wasserman.
After reviewing the record, we conclude that Wasserman's
representations as to the content of the officers' testimony were
more than sufficient to constitute a proper offer of proof for both
Office Bartholomew and Trooper Manns's testimony.
IV. CONCLUSION
Because we conclude that the officers' testimony would
have corroborated Delacruz's account of events, that the officers'
testimony would not have been cumulative, and that Wasserman made
a sufficient offer of proof, we VACATE the superior court's
judgment against Wasserman and REMAND to allow the court to hear
the testimony of Officer Bartholomew and Trooper Manns. Although
the court has discretion to determine the scope of the proceedings,
the court should admit whatever impeachment, rebuttal, or
supporting evidence is appropriate or necessary based on the
officers' testimony.
In the original complaint, Fairbanks police officer
Jeffrey Manns was a named defendant. Wasserman later stipulated to
dismissal of the claims against Manns.
923 P.2d 806 (Alaska 1996).
See id. at 814, 817.
See id. at 809.
See Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994);
Osborne v. State, 623 P.2d 784, 789 (Alaska 1981).
See Sirotiak v. H.C. Price Co., 758 P.2d 1271, 1277
(Alaska 1988).
See Wright v. Shorten, 964 P.2d 441, 443 (Alaska 1998).
Wasserman also claims that the trial court's post-remand
findings were clearly erroneous and that the court "essentially
discarded"Delacruz's testimony. Because we are remanding the case
for further testimony and factual findings, we do not address this
argument.
923 P.2d at 814.
Id. at 814-15.
See id. at 809.
See id. at 814-15.
See Van Horn Lodge, Inc. v. Ahearn, 596 P.2d 1159, 1163
(Alaska 1979).
I McCormick on Evidence 47 (John W. Strong ed., 5th ed.
1992).
See Wasserman I, 923 P.2d at 813.
Id. at 813 n.22 (quoting 6 John Wigmore, Evidence 1908
(Chadbourne Rev. 1976)).
Id. at 813.
See id.
See Landers v. Municipality of Anchorage, 915 P.2d 614,
616 (Alaska 1996).
Alaska R. Evid. 103(a)(2).
The superior court eventually admitted into evidence the
portion of Bartholomew's deposition in which he describes the so-
called "choke hold."
-16- 5179
