David Ayers v. City of Cleveland

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0285p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

DAVID AYERS, ┐
Plaintiff-Appellee, │
│
│ No. 13-3413
v. │
>
│
CITY OF CLEVELAND, │
Defendant, │
│
│
MICHAEL CIPO and DENISE KOVACH, Cleveland │
Police Detectives, │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:12-cv-00753—James S. Gwin, District Judge.
Decided and Filed: December 2, 2014

Before: BATCHELDER, GILMAN, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Joseph F. Scott, Jennifer Meyer, CITY OF CLEVELAND, Cleveland, Ohio, for
Appellants. Jonathan Loevy, Russell Ainsworth, LOEVY & LOEVY, Chicago, Illinois, for
Appellee.

_________________

OPINION
_________________

RONALD LEE GILMAN, Circuit Judge. David Ayers spent 12 years in prison based on
a state-court murder conviction that was later overturned. He was freed in 2011 after this court

1
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granted his petition for a writ of habeas corpus, finding that the detectives leading the murder
investigation—Michael Cipo and Denise Kovach—had violated Ayers’s Sixth Amendment right
to counsel by using a fellow inmate to induce Ayers to make allegedly incriminating statements
without the assistance of counsel.

In 2012, Ayers filed a § 1983 suit against Cipo, Kovach, and other defendants. Ayers
alleged, among other things, a Brady violation and malicious prosecution. The district court
denied Cipo and Kovach’s motion for summary judgment on qualified-immunity grounds, and
the case proceeded to trial. A jury found in favor of Ayers and awarded him more than
$13 million in damages. On appeal, Cipo and Kovach challenge the district court’s denial of
summary judgment, its denial of their preverdict motion for judgment as a matter of law, the
sufficiency of the evidence at trial, and the court’s denial of their motion in limine to exclude
certain expert testimony.

For the reasons set forth below, we DECLINE to address the merits of the qualified-
immunity defense, the denial of the preverdict motion for judgment as a matter of law, and the
challenge to the sufficiency of the evidence at trial because those arguments have been
procedurally forfeited, and we otherwise AFFIRM the judgment of the district court.

I. BACKGROUND
A. Factual background

1. The murder of Dorothy Brown

At approximately 2:45 p.m. on December 17, 1999, 76-year-old Dorothy Brown was
found murdered in her apartment in the LaRonde apartment complex in Cleveland, Ohio. Brown
had suffered blunt-trauma injuries to the head. She was found partially clothed, and foreign
human pubic hairs were later collected from her mouth. Sarah Harris, a fellow LaRonde
resident, discovered Brown’s body when she went to check on Brown that afternoon.

The LaRonde apartment complex, owned and managed by the Cuyahoga Metropolitan
Housing Authority (CMHA), primarily serves elderly and disabled residents. Ayers, although
neither elderly nor disabled, was a resident of the complex due to his employment by CMHA to
provide security as a special police officer.
No. 13-3413 Ayers v. City of Cleveland, et al. Page 3

When the investigating officers arrived at the scene of the murder, Ayers was observed
outside of Brown’s apartment on the fifth floor of the complex. Ayers recounted for the officers
the details of his interactions with Brown and Harris that had occurred approximately 13 hours
earlier. He said that he and Harris had gone to Brown’s apartment to help Brown off of the floor,
where she had fallen and had been unable to get up. Both Ayers and Harris later reported that
Brown had called them for help.

2. Cipo and Kovach target Ayers

Over the next few months, Cleveland police detectives Cipo and Kovach investigated
Brown’s murder. They first focused their attention on a suspect who had previously been
arrested for a sex offense, in part because Brown had been found with no pants on. In the weeks
following the murder, however, this suspect could not be found.

At the same time, Cipo and Kovach began focusing on Ayers. A member of the CMHA
police performed a “voice stress test” on Ayers in January 2000 and reported to Cipo and
Kovach that Ayers “exhibited deception during the test.” In February, Cipo and Kovach
interrogated Ayers. They also interviewed Ayers’s friend, Ken Smith, whom Ayers had spoken
to over the phone on the afternoon of the murder. In a statement that he signed in March, Smith
said that Ayers called him around 2:00 p.m. on the day of the murder—before Brown’s body was
discovered—and told him that a resident had just died. Cipo and Kovach similarly wrote in a
report that Ayers called Smith at 1:54 p.m. and told him about Brown’s death before the body
was discovered.

But phone records show that Smith was actually the one who called Ayers, not the other
way around. Moreover, at trial, “Smith recanted portions of his written statement and testified
that Detectives Cipo and Kovach pressured him into stating that Ayers phoned him regarding
Brown’s death prior to the discovery of her body.” Ayers v. Hudson, 623 F.3d 301, 306 (6th Cir.
2010).

Cipo and Kovach also obtained Brown’s phone records from the evening and early
morning preceding her murder, which apparently show no outgoing calls from her phone number
during that time. These records directly conflict with Ayers’s statement that Brown had called
No. 13-3413 Ayers v. City of Cleveland, et al. Page 4

him at around 2:00 a.m. that morning to request assistance. But they also conflict with
statements from five other persons who independently stated that they had received calls from
Brown during that same time period. Notwithstanding these witness statements corroborating
Ayers’s account, Cipo and Kovach believed that Ayers was “lying.”

In another report, Kovach wrote that Ayers was “lying again.” A CMHA officer had
informed Kovach that, contrary to Ayers’s account that he went to the lobby to get keys to lock
Brown’s door after helping her get up from the floor, Ayers did not appear on the lobby’s
security tape during that time period. Cipo later signed an affidavit for a search warrant
swearing that he reviewed the lobby security tape and that “Ayers does not appear at the time
stated or thereafter.” But Cipo never actually reviewed the tape, which does, in fact, show Ayers
in the lobby at the stated time.

Ayers was arrested on March 14, 2000 after being interrogated by Cipo and Kovach that
same day. Both detectives later testified that, during the interrogation, Ayers said, “if I say I hit
[Brown], can I go home?” Kovach’s notes from that day, however, stated only that “[w]e
interviewed AYRES [sic] and upon completion, he was booked for this homicide and conveyed
to City Jail.” The detectives interrogated Ayers yet again two days later. Although Kovach took
extensive notes this time, she once again did not mention Ayers’s alleged statement from March
14, 2000. A grand jury indicted Ayers on March 27, 2000.

3. Ayers’s criminal trial and conviction

A jury was empaneled on November 22, 2000 after discovery delays caused in significant
part by the government’s untimely disclosure of evidence. Five days later, the prosecution
disclosed for the first time that it intended to call Donald Hutchinson, an inmate who had been
assigned to the same jail pod as Ayers. Hutchinson told Cipo and Kovach on November 25,
2000 that Ayers had recently confessed to the murder, and indicated Hutchinson’s willingness to
testify at Ayers’s trial. But Cipo and Kovach’s report of the meeting specifically noted
Hutchinson’s failure to include details about the murder weapon and the amount of money taken
from Brown’s apartment. They informed Hutchinson that the prosecutor would likely contact
him shortly, after which they returned Hutchinson to his jail pod. A short time later, Hutchinson
directly questioned Ayers about both details, at which point Ayers allegedly confessed to using a
No. 13-3413 Ayers v. City of Cleveland, et al. Page 5

small, black iron to kill Brown and to stealing $700 from her. The next day, Hutchinson called
his wife to ask her to contact the police on his behalf, after which he was placed into protective
custody.

The state trial court denied Ayers’s motion to suppress Hutchinson’s testimony regarding
the purported confession. The jury, after initially being deadlocked, eventually returned a guilty
verdict against Ayers on all counts. According to this court’s subsequent habeas decision,
Ayers’s conviction was “[b]ased largely on Hutchinson’s testimony and Smith’s written
statement.” Ayers v. Hudson, 623 F.3d 301, 306 (6th Cir. 2010). The Ohio Court of Appeals, on
direct appeal, issued a divided decision to affirm Ayers’s convictions but to remand for
resentencing. On remand, Ayers was again sentenced to life in prison. The Ohio Supreme Court
denied leave to appeal.

4. This court grants Ayers’s habeas petition

In January 2004, Ayers filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on four distinct grounds. The district court denied his petition. This court then issued a
certificate of appealability on Ayers’s claim that the government had violated his Sixth
Amendment right to counsel. It found that the government “intentionally created a situation
likely to induce Ayers to make incriminating statements without the assistance of counsel when
it returned Hutchinson to Ayers’ jail pod and he thereafter deliberately elicited information from
Ayers.” Id. at 310 (internal quotation marks, citation, and alterations omitted). On October 5,
2010, the district court was instructed to grant Ayers a conditional writ of habeas corpus, and this
court further ordered the state of Ohio to provide Ayers with a new trial within 180 days or to
release him. The State elected not to retry Ayers, and he was released from prison on September
12, 2011.

B. Procedural background

In March 2012, Ayers filed a complaint in the United States District Court for the
Northern District of Ohio against Cipo, Kovach, and several other defendants pursuant to 42
U.S.C. § 1983, alleging violations of the United States Constitution and Ohio state law. The
complaint contended, among other things, that Cipo and Kovach withheld exculpatory evidence
No. 13-3413 Ayers v. City of Cleveland, et al. Page 6

and fabricated false reports, testimony, and other evidence in violation of Ayers’s due-process
rights; participated in the malicious prosecution of Ayers; conspired to deprive Ayers of his
constitutional rights; and intentionally inflicted emotional distress on Ayers. Ayers filed an
amended complaint in July 2012, adding his Sixth Amendment claim.

Cipo and Kovach, along with the City of Cleveland, moved to dismiss the amended
complaint in August 2012 for failure to state a claim. With that motion still pending, Cipo and
Kovach moved for summary judgment in November 2012 on qualified-immunity grounds. In
February 2013, the district court denied Cipo and Kovach’s motion to dismiss, and denied in part
and granted in part their motion for summary judgment. The court found that Ayers raised
genuine issues of material fact with respect to the following claims against Cipo and Kovach:
due process, malicious prosecution (both federal and state), Sixth Amendment, conspiracy, and
intentional infliction of emotional distress (IIED). Cipo and Kovach did not seek an
interlocutory appeal of the district court’s denial of their motion for summary judgment.

On March 1, 2013, Cipo and Kovach filed a motion in limine to exclude the testimony
and report of Ayers’s expert, Karl Reich, who was prepared to testify about DNA testing on trace
evidence (i.e., small pieces of evidence left at a crime scene that may be used to identify a
suspect). They argued that any testimony regarding trace evidence—and in particular, testimony
about tests conducted in 2013—was irrelevant to Ayers’s Brady claims. Ayers countered that
the expert testimony was relevant to prove Ayers’s innocence, to demonstrate that the charges
were terminated in his favor (which is a necessary element of a malicious-prosecution claim),
and to support his claim for damages. The district court subsequently denied the motion in
limine and allowed Reich to testify.

A trial on the merits commenced in March 2013. During the trial, the district court
granted Ayers’s oral motions to dismiss his state-law malicious-prosecution claim, as well as his
conspiracy and Sixth Amendment claims. Before the close of evidence, Cipo and Kovach
moved for a directed verdict on the federal malicious-prosecution and Brady claims without
specifying any particular rule of procedure. The district court denied the oral motion, which did
not mention qualified immunity. After four days of trial, the jury returned a verdict for Ayers
and against Cipo and Kovach on the remaining § 1983 and IIED claims. The jury awarded
No. 13-3413 Ayers v. City of Cleveland, et al. Page 7

Ayers $13,210,000 in compensatory damages. Post-verdict, the district court granted Cipo and
Kovach’s unopposed motion under Rule 59(e) of the Federal Rules of Civil Procedure to alter or
amend the jury’s verdict by vacating the judgment as to the IIED claim. The jury award
remained unchanged. Cipo and Kovach did not make a post-verdict motion under either Rule
50(b) or Rule 59 on any other grounds.

On April 5, 2013, Cipo and Kovach filed their notice of appeal from the district court’s
February 25, 2013 order denying summary judgment and its March 8, 2013 order adopting the
jury’s verdict. They make four arguments on appeal: (1) the district court erred in denying
summary judgment based on qualified immunity, (2) the district court erred in denying judgment
as a matter of law for Cipo and Kovach on the § 1983 malicious-prosecution and Brady claims,
(3) there was insufficient evidence presented at trial to support the jury verdict, and (4) the
district court abused its discretion in denying the motion in limine to exclude Reich’s testimony.

II. ANALYSIS

A. Cipo and Kovach have forfeited their qualified-immunity defense on appeal

In appealing the district court’s denial of their motion for summary judgment, Cipo and
Kovach argue that the court “incorrectly denied . . . their right to qualified immunity.” But their
procedural failures prevent us from considering the qualified-immunity defense.

The Supreme Court has held that a party cannot appeal an order denying summary
judgment after a full trial on the merits. Ortiz v. Jordan, 131 S. Ct. 884, 888-89 (2011). A
summary-judgment order “retains its interlocutory character as simply a step along the route to
final judgment. Once the case proceeds to trial, the full record developed in court supersedes the
record existing at the time of the summary judgment motion.” Id. at 889 (citation omitted).
Because of its interlocutory nature, a summary-judgment order ordinarily fails to qualify as a
“final decision” subject to appeal. Id. at 891.

There is, however, a narrow exception to the general rule that denials of summary
judgment are nonappealable orders: an immediate appeal may be pursued when it presents a
purely legal issue. In re Amtrust Fin. Corp., 694 F.3d 741, 750-51 (6th Cir. 2012) (allowing
appellate review of the district court’s denial of summary judgment because it was a “pure
No. 13-3413 Ayers v. City of Cleveland, et al. Page 8

question of law”). In the qualified-immunity context, an example of a purely legal issue is the
determination of “what law was clearly established” at the time of the officials’ conduct. Ortiz,
131 S. Ct. at 891 (quoting Johnson v. Jones, 515 U.S. 304, 313 (1995)) (internal quotation marks
omitted). But immediate appeal is unavailable “when the district court determines that factual
issues genuinely in dispute preclude summary adjudication.” Id.

That is exactly what the district court determined here. It found that Ayers presented
sufficient evidence to raise genuine disputes of material fact relating to the Brady and malicious-
prosecution claims, thereby precluding summary judgment on Cipo and Kovach’s qualified-
immunity defense. Moreover, Cipo and Kovach did not challenge whether the law on Brady or
malicious prosecution was clearly established. In any event, even if the denial of summary
judgment had turned on a purely legal issue, thus allowing for an immediate appeal, Cipo and
Kovach did not seek such an appeal in a timely manner. The district court denied Cipo and
Kovach’s motion for summary judgment on February 25, 2013, but they did not file their notice
of appeal until April 5, 2013 (39 days later). See Fed. R. App. P. 4(a)(1)(A) (allowing a
maximum of 30 days to appeal).

Nor can Cipo and Kovach otherwise raise their qualified-immunity defense at this point.
“A qualified immunity defense, of course, does not vanish when a district court declines to rule
on the plea summarily.” Ortiz, 131 S. Ct. at 889. Rather, after summary judgment is denied, the
question becomes whether the evidence presented at trial is sufficient to overcome the defense—
specifically, whether judgment for Cipo and Kovach may be granted as a matter of law. See id.
(citing Fed. R. Civ. P. 50(a), (b)). But a party seeking a qualified-immunity defense must
continue to urge it during and after trial in order to avoid forfeiting the argument on appeal. See
id. (holding that the officials’ failure to renew their motion for judgment as a matter of law under
Rule 50(b) on qualified-immunity grounds “left the appellate forum with no warrant to reject the
appraisal of the evidence” by the district judge).

Because Cipo and Kovach failed to raise their qualified-immunity defense in either a
Rule 50(a) or Rule 50(b) motion, they have forfeited the defense on appeal. This court held that
the qualified-immunity defense was forfeited when faced with a similar procedural posture in
Sykes v. Anderson, 625 F.3d 294, 304 (6th Cir. 2010). Like the defendants in Sykes, Cipo and
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Kovach made an oral Rule 50(a) motion, but that motion “failed to provide the required notice”
to the court of the qualified-immunity defense. See id. The Sykes court found dispositive the
fact that the Rule 50(a) motion never mentioned “qualified immunity” or other terms associated
with that defense (e.g., “clearly established law” or “objectively unreasonable actions”) that
might have put the court and the plaintiffs on notice as to that particular issue. Id.

Raising the defense in a later Rule 50(b) motion—which Cipo and Kovach failed to do
here—did not save the defendants in Sykes. See id. Neither did resting on the argument made at
the summary-judgment stage. Id. (“[E]ven if a defendant raises qualified immunity at summary
judgment, the issue is waived on appeal if not pressed in a Rule 50(a) motion.” (quoting Parker
v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008))). We therefore decline to consider Cipo and Kovach’s
qualified-immunity defense on appeal.

B. Challenges to the district court’s denial of judgment as a matter of law and the
sufficiency of evidence at trial are also forfeited

Cipo and Kovach’s next arguments—that there was insufficient evidence presented at
trial to support the jury’s verdict and that the district court erred in denying judgment as a matter
of law on the Brady and malicious-prosecution claims—also fail for procedural reasons. Here,
Cipo and Kovach at least moved for judgment as a matter of law on the Brady and malicious-
prosecution claims before the close of evidence. The motion was presumably made under Rule
50(a), although their counsel never so stated. They did not, however, make a renewed motion
pursuant to Rule 50(b) after the jury returned its verdict, as required by the Federal Rules of Civil
Procedure. See Maxwell v. Dodd, 662 F.3d 418, 421 (6th Cir. 2011) (noting that parties must
“speak up at two times if they want the court to resolve the claim as a matter of law”: before the
claim goes to the jury, and after the jury issues its verdict (citing Fed. R. Civ. P. 50(a), (b))).

Without a district court Rule 50(b) ruling to review, we again decline to hear Cipo and
Kovach’s arguments. See id. at 420 (“Generally speaking, appellate courts do not directly
review the actions of juries; they review a trial judge’s assessment of the work of the jury . . . ,
allowing the trial judge who had a ring-side view of the witnesses to make a first cut.”); see also
Unitherm Food Sys. v. Swift-Eckrich, 546 U.S. 394, 400-401 (2006) (holding that a party’s
failure to file a post-verdict motion under Rule 50(b) leaves an appellate court “without power to
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direct the District Court to enter judgment contrary to the one it had permitted to stand” (quoting
Cone v. W. Va. Pulp & Paper Co., 330 U.S. 212, 218 (1947))).

Analogous reasoning also dictates our conclusion that Cipo and Kovach have forfeited
their argument that the evidence presented at trial was insufficient to sustain the jury’s verdict.
On appeal, a party may not challenge the sufficiency of evidence based on the district court’s
denial of a Rule 50(a) motion alone. Unitherm Food Sys., 546 U.S. at 405. As the Supreme
Court has explained, although a district court may enter judgment as a matter of law preverdict
when it concludes that the evidence is legally insufficient, it is not required to do so. Id.
Denying a Rule 50(a) motion is thus not error in and of itself, but “merely an exercise of the
District Court’s discretion, in accordance with the text of the Rule and the accepted practice of
permitting the jury to make an initial judgment about the sufficiency of the evidence. The only
error here was [Cipo and Kovach’s] failure to file a postverdict motion pursuant to Rule 50(b).”
Id. at 406.

C. The district court did not abuse its discretion in denying the motion to exclude
Reich’s testimony

Although Cipo and Kovach have forfeited most of their arguments on appeal, they did
timely and properly appeal from the district court’s denial of their motion to exclude the expert
report and testimony of Reich. They moved to exclude Reich’s testimony on relevance and
prejudice grounds, not on the basis that he lacked expertise.

We review a district court’s evidentiary rulings under the abuse-of-discretion standard.
United States v. Ashraf, 628 F.3d 813, 826 (6th Cir. 2011). An abuse of discretion exists only if
we are “firmly convinced that a mistake has been made.” United States v. Whittington, 455 F.3d
736, 738 (6th Cir. 2006). The deferential abuse-of-discretion standard “applies to a district
court’s determinations of the relevance of evidence under Rule 401 [of the Federal Rules of
Evidence], as well as determinations under Rule 403 that the prejudicial value of evidence
outweighs its probative value.” Id. (quoting United States v. Hart, 70 F.3d 854, 858 (6th Cir.
1995)).

Cipo and Kovach argue that Reich’s testimony on trace evidence was irrelevant to any
Brady claim, and that his testimony about DNA testing methods that were unavailable in 2000
No. 13-3413 Ayers v. City of Cleveland, et al. Page 11

was also irrelevant. But the standard for relevancy under Rule 401 is “extremely liberal.”
Dortch v. Fowler, 588 F.3d 396, 400 (6th Cir. 2009). Evidence is relevant if it has “any
tendency” to make a fact that is of consequence in determining the action more or less probable
than it would be without the evidence. Id. (quoting Fed. R. Evid. 401). Under this standard,
Reich’s testimony that the DNA evidence showed no linkage between Ayers and the crime scene
was relevant. Reich’s testimony tended to prove that Ayers did not kill Brown, which bears on
Ayers’s malicious-prosecution claim by rebutting Hutchinson’s testimony that Ayers confessed
to the murder and increasing the likelihood that Cipo and Kovach instead fed Hutchinson details
about the case.

Evidence concerning Ayers’s innocence is also relevant to the issue of damages. See
Parish v. City of Elkhart, 702 F.3d 997, 999 (7th Cir. 2012) (“A jury that believed the plaintiff
was guilty of the crime would award lower damages because the imprisonment is attributable to
the person’s own actions as well as the civil defendants’ misbehavior and even a fair prosecution
and trial may well have resulted in the person’s imprisonment.”).

Relevant evidence may nevertheless be excluded “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. Cipo and Kovach argued below that Reich’s testimony was cumulative,
would confuse and mislead the jury, and was unduly prejudicial. The district court disagreed.
We again owe considerable deference to the district court’s determination. Whittington,
455 F.3d at 739 (“In reviewing the trial court’s decision for an abuse of discretion, the appellate
court must view the evidence in the light most favorable to its proponent, giving the evidence its
maximum reasonable probative force and its minimum reasonable prejudicial value.” (internal
quotation marks omitted)).

Cipo and Kovach specifically contend that Reich’s testimony was needlessly cumulative
of the testimony of Curtiss Jones, one of Cipo and Kovach’s witnesses, that the trace evidence
collected from the crime scene did not implicate Ayers. But “[t]he mere fact that one other
witness . . . has testified to a particular fact . . . does not render other testimony on that point
‘cumulative.’” Vasquez v. Jones, 496 F.3d 564, 576 (6th Cir. 2007). Moreover, even assuming,
No. 13-3413 Ayers v. City of Cleveland, et al. Page 12

arguendo, that Reich’s testimony was cumulative, Cipo and Kovach “ha[ve] offered no
explanation as to how the cumulative aspects of [Reich’s] testimony adversely affected [their]
case.” See Illinois Union Ins. Co. v. Heineman & Lovett, Inc., No. 88-1537, 1989 WL 99040, at
*5 (6th Cir. 1989) (unpublished). Nor have they offered any explanation as to how the same
testimony supposedly confused and misled the jury. We thus decline to hold that Reich’s
testimony caused any unfair prejudice to Cipo and Kovach, and instead conclude that the
probative value of his testimony was not substantially outweighed by the factors set forth in Rule
403.

III. CONCLUSION

For all of the reasons set forth above, we DECLINE to hear the appeal with respect to
the qualified-immunity defense, the denial of the preverdict motion for judgment as a matter of
law, and the challenge to the sufficiency of the evidence at trial because those arguments have
been procedurally forfeited, and we otherwise AFFIRM the judgment of the district court.