United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 16, 2001 Decided May 1, 2001
No. 00-7149
Robert Louis Stevenson,
Appellant
v.
District of Columbia Metropolitan
Police Department, et al.,
Appellees
United States of America,
Intervenor
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00093)
Daryl L. Joseffer argued the cause for the appellant.
Elizabeth Petrela was on brief.
Edward E. Schwab, Assistant Corporation Counsel, the
District of Columbia, argued the cause for the appellees.
Robert R. Rigsby, Corporation Counsel, Charles L. Reischel,
Deputy Corporation Counsel, Lutz Alexander Prager, Assis-
tant Deputy Corporation Counsel, and Thomas L. Koger,
Assistant Corporation Counsel, were on brief.
Lisa Wilson Edwards, Attorney, United States Depart-
ment of Justice, argued the cause for the intervenor. Wil-
liam R. Yeomans, Acting Assistant Attorney General, was on
brief.
Before: Edwards, Chief Judge, Williams and Henderson,
Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: The appellant,
Robert L. Stevenson, brought a section 1983 action, 42 U.S.C.
s 1983, against the District of Columbia Metropolitan Police
Department (MPD); Sergeant Albert Gonzalez; Officers
Demetrius Cole, Alan Hill and Lewis Hagler; Reserve Officer
Johnny Gay; and the District of Columbia (collectively, the
District) alleging violations of his rights under the Fourth,
Fifth and Fourteenth Amendments of the United States
Constitution as well as several state law claims. After the
district court granted partial summary judgment to the de-
fendants on some of the claims,1 the case was tried to a jury
which found in favor of the defendants on all remaining
counts. The district court entered judgment on the jury
verdict.
Stevenson contends the district court erred during the trial
by (1) revealing its view of the facts to the jury, (2) admitting
irrelevant and highly prejudicial evidence and (3) excluding
important impeachment evidence.2 For the reasons set forth
below, we affirm.
__________
1 Stevenson does not challenge the district court's summary judg-
ment ruling.
2 In his opening brief, Stevenson also challenged the district
court's denial of discovery of certain sealed documents prepared by
I. BACKGROUND
The case arises from events that occurred on March 7,
1996. According to Stevenson's trial testimony, he and his
friend Larry Wallace borrowed a Chrysler New Yorker from
a friend and, after running some errands, stopped at the
McDonald's restaurant located at 4301 Nannie Helen Bur-
roughs Avenue, N.E., Washington, D.C., to pick up something
to eat before returning the borrowed car. After waiting in
the drive-through line, they obtained their food and were
about to drive away. Before they could, however, they found
themselves surrounded by police officers who, with guns
drawn, were "hollering" at them. Joint Appendix (JA) 206.
Instead of stopping, Stevenson became scared, put the car in
reverse, backed up until he bumped into the car behind him,
drove forward, backed up again and finally managed to turn
the car around heading back toward the entry of the drive-
through lane. At this point, he heard a police officer yell
"shoot, shoot, shoot," JA 207, and the Chrysler he was driving
became the target of 63 gun shots. Stevenson and Wallace
were wounded. Stevenson spent one month in the hospital
having been hit in the chest, left arm, right hand and left leg.
He now suffers permanent nerve damage, loss of mobility in
his left arm and other physical disabilities.
The police officers testifying at trial told a different story.
On March 7 Officer Demetrius Cole was working (off-duty
but in uniform) as a security officer at the McDonald's
restaurant. He observed Stevenson's vehicle enter the drive-
through line and suspected it might be stolen because the
passenger side window was broken. Cole placed a call to the
MPD to check the license plates. After learning the plates
__________
the United States Department of Justice (DOJ). See Brief for
Appellant at 33-36. After the DOJ filed its intervenor brief,
Stevenson modified his position, conceding that if, as the DOJ
represented, the documents at issue consisted only of factual mate-
rial provided by the District or comments by DOJ experts, the
district court's decision was proper and "there is no dispute here."
Reply Brief at 26. On review, we conclude the DOJ's representa-
tions were accurate and therefore need not address the discovery
issue further.
had been reported stolen, he requested back-up and instruct-
ed the McDonald's clerk who was processing Stevenson's
order to stall him. Within minutes, Officers Alan Hill and
Lewis Hagler arrived at the restaurant with their sirens on.
They pulled into the exit of the drive-through lane to prevent
the car from leaving. Sergeant Albert Gonzalez and Reserve
Officer Johnny Gay approached from the back of the line in
an attempt to cut off the suspect's means of escape. The
officers, who were wearing their police uniforms, ordered
Stevenson and his friend to stop the car and show their
hands. Instead of complying, Stevenson drove first in re-
verse and then forward, hitting Officer Hill. Hill landed on
the hood but was thrown back when the car went in reverse
the second time. Then, the car moved forward in the di-
rection of Cole. Considering themselves and each other in
danger, the officers began shooting until the car had come to
a stop.
In January 1997 Stevenson brought this action. He now
appeals the district court's entry of judgment in favor of the
District.
II. DISCUSSION
Stevenson raises three arguments on appeal. We address
each in turn.
A. The District Court's Revelation of Its View of the
Facts to the Jury
Stevenson's first challenge arises from a hypothetical ques-
tion the district court asked a defense expert witness. After
defense counsel had asked the witness several hypothetical
questions, the district court interjected its own hypothetical.
At a bench conference, Stevenson objected, claiming the
court's hypothetical assumed as true the defendants' version
of the facts. He requested that the court "issue some sort of
instruction to the jury [that] they're not to assume that's your
opinion of the facts or those are the facts," JA 386, and also
asked the court to ask the expert a hypothetical using Steven-
son's version of the facts. The district court agreed to the
first request and to consider a counter-hypothetical but in-
structed Stevenson to provide in writing the question he
wanted asked. Immediately after the bench conference, the
court charged the jury that hypotheticals assumed facts that
"may or may not be the facts of this case," that deciding the
facts was the jury's task and "what the lawyers say are the
facts, what [the judge says] are the facts, is immaterial to
your decision." JA 387-88. At the end of the expert's cross-
examination, Stevenson failed to provide the court with any
hypothetical questions. In fact, when the court inquired
whether he wanted the court to give an additional instruction,
Stevenson replied "Your jury instructions were fine." JA
398. Now Stevenson contends the district court's questioning
of the expert witness was reversible error.
We review the judicial questioning of a witness for abuse of
discretion. United States v. Tilghman, 134 F.3d 414, 417
(D.C. Cir. 1998). Rule 614(b) of the Federal Rules of Evi-
dence expressly permits judges to question witnesses.3
Tilghman, 134 F.3d at 416. "Judges may do so repeatedly
and aggressively to clear up confusion and manage trials or
where testimony is inarticulately or reluctantly given." Id.
(citations and internal quotation marks omitted). Moreover,
" '[t]he precepts of fair trial and judicial objectivity do not
require a judge to be inert. The trial judge is properly
governed by the interest of justice and truth[ ] and is not
compelled to act as if he were merely presiding at a sporting
match.' " United States v. Norris, 873 F.2d 1519, 1526 (D.C.
Cir.) (quoting United States v. Liddy, 509 F.2d 428, 438 (D.C.
Cir. 1974) (en banc), cert. denied, 420 U.S. 911 (1975)), cert.
denied, 493 U.S. 835 (1989).
Although, as we have noted before, "[d]istrict court authori-
ty to question witnesses and manage trials ... has limits,"
Tilghman, 134 F.3d at 416 (citing United States v. Wyatt, 442
F.2d 858, 859-61 (D.C. Cir. 1971)), our review of the record
here convinces us the district court acted well within its
discretion. Stevenson received the jury instruction he re-
quested. Moreover, despite the district court's willingness to
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3 Rule 614 provides: "The court may interrogate witnesses,
whether called by itself or by a party." Fed. R. Evid. 614(b).
consider asking a hypothetical question on Stevenson's behalf,
Stevenson failed to provide the court with such a question.
Under these circumstances, we find no fault with the district
court's action.
B. Admissibility of the Gun
Stevenson's second claim involves the district court's ruling
on the admissibility of a Cobray MAC 11 semiautomatic
weapon taken from Wallace when he was arrested. In a
motion in limine Stevenson argued the gun was irrelevant
because the police officers did not know before the shooting
that Wallace was armed and therefore the reasonableness vel
non of their actions was not dependent on the gun's existence.
Moreover, Stevenson argued that admitting the gun would be
unfairly prejudicial because it would inflame the jury against
him. The District countered that the MAC 11 was relevant
to show "plaintiff's motivations and intent to escape at all
costs," JA 57, and to contradict his assertion that he tried to
flee only because "he panicked when he saw the police." JA
63. The district court concluded Wallace's possession of the
gun was "more probative than prejudicial as evidence of the
plaintiff's desperation, as a convicted felon on parole ... in
the presence of a firearm, to avoid arrest and his intention to
use his vehicle as a weapon." JA 114.
Stevenson presses before us the same arguments he ad-
vanced before the district court. Reviewing the district
court's evidentiary rulings for abuse of discretion, United
States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994), we
conclude the district court did not abuse its discretion.
The Federal Rules of Evidence define "relevant evidence"
as "evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the
action more probable or less probable than it would be
without the evidence." Fed. R. Evid. 401. Under this defini-
tion, the gun is relevant because, as the District argued
below, it tends to support the proposition that Stevenson was
intent on escaping at all costs and in so doing placed the
officers at risk. Moreover, there is no evidence in the record
that the district court "gravely" abused its discretion in
declining to exclude the gun under Rule 403. See Clarke, 24
F.3d at 265 ("We review the district court's Rule 403 determi-
nations 'with great deference, reversing only for "grave
abuse" of discretion.' " (quoting United States v. Johnson, 970
F.2d 907, 912 (D.C. Cir. 1992) (quoting United States v.
Payne, 805 F.2d 1062, 1066 (D.C. Cir. 1986)))). Although
admission of the gun no doubt worked against Stevenson's
interest, the risk of undue prejudice to Stevenson, we con-
clude, did not substantially outweigh the evidence's probative
value. Finally, Stevenson's reliance on Carter v. District of
Columbia, 795 F.2d 116 (D.C. Cir. 1986), is misplaced. There
the court held that the district court abused its discretion in
allowing counsel to read lengthy and detailed allegations of
police misconduct contained in administrative complaints,
pleadings in lawsuits and newspaper articles when the sole
purpose of the exercise was to test whether the witnesses
were familiar with the allegations. The same result, the
court noted, could have been achieved in a less prejudicial
manner. The facts here are far different. The allegedly
prejudicial evidence introduced was not extensive, as it was in
Carter. See id. at 126-28. Moreover, unlike the challenged
evidence in Carter, the gun was probative of an important
issue in the case, namely which version of events-Stevenson's
or the officers'-was true. Accordingly, Carter does not win
the day for Stevenson.
C. Exclusion of Impeachment Testimony
Stevenson's third argument involves another evidentiary
ruling. At the conclusion of Officer Hill's testimony, Steven-
son's counsel sought to cross-examine Hill about an incident
in which Hill "submitted a false report and was subsequently
suspended from the D.C. Police Department for 20 days."
JA 375. The District objected, asserting that the incident
had to do with Hill's failure to comply with a superior's orders
and was irrelevant. The District requested that the court
examine the report and determine its admissibility. After
doing so, the court sustained the District's objection. Steven-
son's counsel did not renew any attempt to cross-examine Hill
about the incident. Stevenson contends the court's ruling
was error.
Although the transcript reflects the exchange described
above, the challenged report was not proffered into evidence.
Nor does the record manifest that Stevenson was improperly
barred from pursuing cross-examination and therefore we
cannot say that the district court abused its discretion in
sustaining the District's objection. See Palmer v. Hoffman,
318 U.S. 109, 116 (1943) ("Mere 'technical errors' which do not
'affect the substantial rights of the parties' are not sufficient
to set aside a jury verdict in an appellate court. 40 Stat.
1181, 28 U.S.C. s 391. He who seeks to have a judgment set
aside because of an erroneous ruling carries the burden of
showing that prejudice resulted."). Accordingly, the district
court's decision on this point stands.
For the foregoing reasons, the district court's judgment is
Affirmed.