USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1703
WALTER DEARY, ET AL.,
Plaintiffs, Appellees,
v.
CITY OF GLOUCESTER, ET AL.,
Defendants, Appellees,
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JOHN BICHAO,
Defendant, Appellant.
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No. 92-1777
WALTER DEARY, ET AL.,
Plaintiffs, Appellants,
v.
CITY OF GLOUCESTER, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Boudin and Stahl, Circuit Judges,
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and Fuste,* District Judge.
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Leonard H. Kesten with whom Thomas M. Elcock and Morrison,
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Mahoney & Miller were on brief for John Bichao, City of Gloucester,
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David A. Reardon, Howard Maki, John Beaudette, Harold Reardon, James
Hubbard and Chief Earland Whortley.
Edmund M. Pitts with whom Edmund R. Pitts and Pitts & Pitts were
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on brief for Walter Deary.
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November 17, 1993
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*Of the District of Puerto Rico, sitting by designation.
FUSTE, District Judge. This appeal arises from a
FUSTE, District Judge.
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police misconduct action brought under 42 U.S.C. 1983 and
Massachusetts law. Defendant John Bichao appeals contending that
(1) bias on the part of the trial judge denied him a fair trial;
(2) evidence regarding a prior disciplinary action against one of
the witnesses was incorrectly admitted; and (3) attorneys' fees
were erroneously granted to plaintiffs' attorneys. We affirm on
all grounds.
I.
I.
Background
Background
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Walter Deary and his brother Robert brought suit
against six Gloucester police officers, the Mayor, the Chief of
Police, and the City of Gloucester, based on an incident which
occurred on March 29, 1986.1 The Dearys alleged that the
defendant police officers physically assaulted them and engaged
in a cover-up regarding the incident. After the plaintiffs'
case, the court directed verdicts for each of the police
officers, except Officer Bichao.2 The main issue in the case
was an allegation that Officer Bichao kicked Walter Deary twice
in the head. The jury awarded Walter Deary $25,000 in
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1The claims against the city, the Mayor, and the Chief of
Police were bifurcated from those against the individual
officers.
2Plaintiffs filed a cross-appeal requesting that if a new
trial were granted to Defendant Bichao, then this court should
also reverse the directed verdicts granted to defendants Earland
Whortley, David Reardon, Howard Maki, John Beaudette, Harold
Reardon, and James Hubbard, the other Gloucester police officers.
Because we affirm, we do not reach plaintiffs' alternative
request.
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compensatory damages and $75,000 in punitive damages, and found
for Bichao on the claims brought by Robert Deary. The court
granted $112,295 in attorneys' fees and $8,977.50 in costs to the
plaintiffs' attorneys under 42 U.S.C. 1988.
II.
II.
Discussion
Discussion
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A. Allegations of Bias of Trial Judge
A. Allegations of Bias of Trial Judge
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Officer Bichao requests a new trial, alleging that the
trial judge was so biased towards the plaintiffs as to deprive
the defendant of a fair trial. Bichao lists numerous incidents
during the trial which he contends were indicative of the bias of
the judge. These events may be divided into three types: (1)
claims that the judge made comments indicating that defendant's
counsel was proceeding too slowly; (2) claims that the judge's
questioning of witnesses reflected bias and partiality for the
plaintiffs; (3) allegations regarding disputes between
defendant's counsel and the judge, which Bichao claims created a
prejudicial effect against the defendant.
Bias and improper conduct by a trial judge may be
grounds for a new trial if a party is so seriously prejudiced as
to be deprived of a fair trial. Aggarwal v. Ponce School of
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Medicine, 837 F.2d 17, 21-22 (1st Cir. 1988). However, mere
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active participation by the judge does not create prejudice nor
deprive the party of a fair trial. Id. On appeal, we must
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"consider isolated incidents in light of the entire transcript so
as to 'guard against magnification on appeal of instances which
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were of little importance in their setting'." Aggarwal at 22
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(quoting Glasser v. United States, 315 U.S. 60 (1984)).
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Bichao cites several instances during the trial where
Judge Tauro encouraged defense counsel to advance the pace of
questioning, or was unsatisfied with counsel's utilization of
time. The trial judge has discretion to maintain the pace of
trial, and indeed "has the responsibility to oversee the conduct
of a trial so that it moves expeditiously". Desjardins v. Van
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Buren Community Hosp., 969 F.2d 1280, 1281 (1st Cir. 1992)
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(noting that requests by the judge that counsel not be repetitive
are "routine"). Therefore, encouraging counsel to move forward,
forbidding counsel from eliciting duplicative testimony, or
halting what the court perceived to be a waste of time, was
firmly within the discretion of the trial judge.
Next, Bichao alleges that the trial judge exhibited
bias towards the plaintiffs by interjecting questions during
defense counsel's direct and cross-examination of several
witnesses, including Bichao himself. The court has the
prerogative to interrogate witnesses, and the duty to do so where
necessary to clarify testimony, but the judge must maintain an
air of impartiality. United States v. Paz Uribe, 891 F.2d 396,
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400 (1st Cir. 1989), cert. denied, 495 U.S. 951 (1990). "Trial
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judges are constantly making judgments about . . . the need to
clarify witness answers, and similar matters of trial management.
In this realm, the widest possible latitude is given to the judge
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on the scene." Rodr guez v. Banco Cent. Corp., 990 F.2d 7, 13
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(1st Cir. 1993).
Bichao argues that the judge's questioning of the
plaintiff's medical expert, Dr. Starr, undermined defense
counsel's credibility, and reflected bias by the judge. A review
of the transcript reveals that the judge's questions were meant
to clarify the testimony of the witness. During cross-
examination, Dr. Starr had discussed a number of documents which
the jury did not have in front of them. The court asked some
questions in order to elucidate which document the questions
referred to, and which section of the report counsel was
discussing. These questions were clearly within the discretion
of the trial court.
Bichao also contends that the court was overzealous in
its questioning of Officers Maki and Beaudette during direct
examination, and as a result destroyed the credibility of the two
witnesses. Officer Maki was the person who was closest in
physical proximity to Walter Deary when the alleged kicks by
Bichao were administered. The judge questioned him in order to
clarify Maki's statement about his lack of memory of the kicking.
This issue was central to the case, and the judge was acting
within his discretion to ensure that Maki's testimony was clear.
Similarly, the court's questioning of Officer Beaudette was
unbiased and aimed at illuminating his testimony.
Bichao claims that when he was being cross-examined by
plaintiff's counsel, the judge made uncivil remarks and asked
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hostile questions of him. A close examination of the transcript
reveals that the judge occasionally instructed the witness to
answer the questions which were presented to him, and asked
questions to elucidate Bichao's testimony. These directions and
questions did not rise to the level of partiality, but rather
were made with the purpose of obtaining answers to the questions
posed and clarifying the answers given.
Finally, Bichao identifies several exchanges in the
transcript which he claims reflect a certain amount of animosity
between the judge and defense counsel. Some of these incidents
occurred outside of the hearing of the jury, where they could not
have influenced the jury decision. However, Bichao points to a
sidebar conference during which the judge stated that he found
defense counsel's cross-examination of the medical expert to be
"very devious". At the time, the judge asked the jury whether
they could hear the sidebar conference and one juror stated that
he was able to hear "a little bit". This episode, taken in the
context of a nine-day trial, does not warrant appellate
intervention. When the judge questioned the jury about this
incident, only one of the eight members stated that he could hear
a little bit of the conference. It is unclear whether the
"devious" comment itself was overheard by that one juror. Even
assuming that the one juror did hear the statement, we find that,
viewing the trial transcript as a whole, the comment is
insufficient to sustain a finding of bias on the part of the
trial judge, or prejudicial impact on the trial. T r i a l
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judges need to maintain strict control over judicial proceedings
and as a result it would be unrealistic to suggest that trials
should always be models of harmony. Although any display by the
trial judge of unwarranted irritation or displeasure directed
towards counsel ought to be avoided, friction between the court
and counsel does not constitute pervasive bias. See Arthur
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Pierson & Co. v. Provimi Veal Corp., 887 F.2d 837, 839 (7th Cir.
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1989); Hamm v. Board of Regents, 708 F.2d 647, 650 (11th Cir.
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1983).
Bichao contends that the judge failed to give the jury
general or specific curative instructions regarding any of these
incidents. But defendant failed to request any specific curative
instructions during the course of the trial. Furthermore, the
jury charge instructed the jurors that they were the "sole judges
of the weight and effect of all of the evidence" and that the
evidence in the case did not include statements of the judge or
counsel. The defendant was not prejudiced by any conduct of the
trial judge, and a new trial is not warranted.
B. Evidence of Disciplinary Action
B. Evidence of Disciplinary Action
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During the cross-examination of Officer Reardon, who
was the commander on duty on the night of the alleged assault,
the plaintiffs' attorney questioned Reardon about the reputation
for truthfulness of Officer Maki. When Reardon responded that he
had never known Maki to be untruthful, counsel asked whether
Reardon was aware of an incident in which Maki was disciplined
after he was untruthful when filing an overtime report. Reardon
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denied knowledge of the event. Plaintiffs' counsel then called
Officer Maki back to the stand for rebuttal testimony and
questioned him about the incident. Maki admitted that it had
happened, and documents regarding the event were then allowed
into evidence. Maki explained his version of the incident on
cross-examination by defense counsel. Bichao contends that
allowing evidence of this event was erroneous for a number of
reasons.
First, Bichao argues that it was improper to question
Reardon about his opinion of Maki's reputation for truthfulness
because Maki's character had not been put into issue by the
defense. Under Fed. R. Evid. 608, evidence of the truthful
character of a witness is only admissible after the witness'
character has been attacked, but there is no corresponding
limitation on introducing evidence about the untruthfulness of a
witness.3 Officer Maki was the officer who was located closest
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3Federal Rule of Evidence 608 provides:
(a) The credibility of a witness may be
attacked or supported by evidence in the form
of opinion or reputation, but subject to
these limitations: (1) the evidence may refer
only to character for truthfulness or
untruthfulness, and (2) evidence of truthful
character is admissible only after the
character of the witness for truthfulness has
been attacked by opinion or reputation
evidence or otherwise.
(b) Specific instances of the conduct of a
witness, for the purpose of attacking or
supporting the witness' credibility, other
than conviction of crime as provided in rule
609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the
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to Officer Bichao when the alleged kicks to Walter Deary's head
took place. His testimony about the arrest was crucial to the
trial. By testifying to the events of the night in question, he
put his credibility into issue. Questions to his supervisor
regarding the supervisor's opinion of Officer Maki's truthfulness
were clearly proper.
Bichao also contends that the disciplinary event was
too remote in time to allow cross-examination regarding the
suspension. When a witness has testified as to the character of
another witness, Fed. R. Evid. 608(b) allows inquiry about
specific instances of conduct concerning the truthfulness of the
principal witness. Although the time which has elapsed since the
prior bad act is a consideration for the judge to take into
account when determining whether to admit such character
evidence, close proximity in time is not required under Fed. R.
Evid. 608(b). United States v. McClintic, 570 F.2d 685 (8th Cir.
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1978). The incident involving Maki occurred ten years prior to
the trial. The discipline resulted from the fact that Officer
Maki was untruthful in filing an overtime report. It was within
the discretion of the trial judge to allow plaintiffs' counsel to
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court, if probative of truthfulness or
untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the
witness' character for truthfulness or
untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness
of another witness as to which character the
witness being cross-examined has testified.
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question Officer Reardon about his knowledge of this event, since
the incident was relevant to Officer Maki's credibility.
Next, Bichao argues that the admission of the rebuttal
testimony of Maki and the documents regarding the event was an
error because each constituted extrinsic evidence used to
controvert Officer Reardon's denial of knowledge regarding the
disciplinary incident, in violation of Fed. R. Evid. 608(b).
While we agree that the rebuttal testimony of Maki and the
documents should not have been admitted, we find the error to be
harmless for the reasons enumerated below.
Fed. R. Evid. 608 prohibits the introduction of
extrinsic evidence to prove specific instances of the conduct of
a witness for the purpose of attacking or supporting the witness'
credibility. Therefore, although a witness can be questioned
about particular events, once the witness has denied or admitted
knowledge of the occurrence on cross-examination, the examiner
must accept the answer given by the witness. U.S. v. Tejada, 886
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F.2d 483, 488 (1st Cir. 1989). The purpose of the ban on
extrinsic evidence is "to avoid holding mini-trials on irrelevant
or collateral matters". United States v. Beauchamp, 986 F.2d 1,
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3 n.1 (1st Cir. 1993). Here, plaintiffs' recall of Officer Maki
on rebuttal was an unnecessary foray, resulting in a waste of the
court's time. Officer Reardon stated on cross-examination that
he had no knowledge of the disciplinary action involving Officer
Maki. Questioning about the event should have been stopped at
that juncture. Under Fed. R. Evid. 608(b), plaintiffs could have
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questioned Maki about the disciplinary suspension during his
original testimony, since it was probative of Maki's character
for truthfulness or untruthfulness. However, such questioning
would not have involved the time expended in recalling Maki to
the stand, and therefore the original admissibility does not
render the rebuttal questioning acceptable. The documents
regarding the disciplinary event provided further extrinsic
evidence of the suspension. As such, they would not even have
been admissible during Maki's original testimony, and should not
have been allowed during rebuttal.
Although Maki's rebuttal testimony and the documents
regarding the suspension should not have been admitted under Fed.
R. Evid. 608, we find that the error was harmless. "In
determining whether or not the error was harmless, a reviewing
court must assess the record as a whole to determine the probable
impact of the improper evidence upon the jury. United States v.
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Mateos-Sanchez, 864 F.2d 232, 237 (1st Cir. 1988) (citing United
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States v. Currier, 821 F.2d 52, 56 (1st Cir. 1987). In
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determining whether evidence erroneously admitted in
contravention of Fed. R. Evid. 608 was harmful, this court has
examined such factors as whether the admission allowed completely
new evidence before the jury, and whether the disputed evidence
was likely to arouse undue passion or prejudice to the jury. Id.
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In this case, during the cross-examination of Officer Reardon,
plaintiffs' counsel raised the possibility in front of the jury
that Officer Maki may have been involved in an incident on the
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police force where his truthfulness was questioned. The
information about the event, while probative of untruthfulness of
one of the witnesses, was not likely to unduly inflame the jury
against the defense. Furthermore, but for counsel's omission,
the disciplinary action would have been brought out when Officer
Maki was initially testifying in the case. In addition, Officer
Maki had an opportunity to explain the incident on cross-
examination during rebuttal. The error is insufficient to merit
reversal.
C. Attorneys' fees
C. Attorneys' fees
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Finally, appellant challenges the award of attorneys'
fees to plaintiffs' attorneys granted under 42 U.S.C. 1988.
Bichao claims that the records submitted by the lawyers were not
contemporaneous and that the billing rate requested was inflated,
and seeks a reduction of the fee award to reflect the fact that
only one of the plaintiffs prevailed on one of the claims.
District courts have discretion in awarding fees and costs in
civil rights cases, but must carry out more than a conclusory
examination of the hours and rates requested. Grendel's Den,
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Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984). Normally,
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appellate courts should "defer to any thoughtful rationale and
decision developed by a trial court and . . . avoid extensive
second guessing." Id.
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In order to recover fees, attorneys must submit a full
and precise accounting of their time, including specific
information about number of hours, dates, and the nature of the
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work performed. Calhoun v. Acme Cleveland Corp., 801 F.2d 558,
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560 (1st Cir. 1986). If such documentation is not submitted,
fees should be reduced or even denied altogether. Grendel's Den,
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749 F.2d at 952. Here, Judge Tauro noted that the attorneys
submitted all of this information, and found that the records
were "essentially contemporaneous and . . . reliable". Deary v.
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Gloucester, 789 F. Supp. 61, 64 (D.Mass 1992). The attorneys
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submitted affidavits, as well as the actual time slips.
Following the admonition in Grendel's Den, the district court
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deducted hours from the total requested where the records were
not sufficiently precise or were not in chronological order, and
where the time slips failed to correspond with the attorney's
affidavit. The court denied seventy-eight hours out of the 699.4
hours requested.
The district court must also make a finding as to the
prevailing market rate, based on evidence other than the
attorneys' affidavits. Bordanaro v. McLeod, 871 F.2d 1151, 1168
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(1st Cir. 1989), cert. denied, 493 U.S. 820 (1989). The judge
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here noted that counsel submitted affidavits from other Boston
attorneys regarding fees in similar cases, as well as information
about billing rates for Massachusetts law firms. The court
examined this information, as well as the attorneys' experience
levels in assessing the correct hourly billing rate. In
addition, the court awarded lower hourly rates than those
requested for pretrial work performed by counsel. Finally, the
court detailed its reasoning for refusing a reduction in fees due
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to the fact that only one of the plaintiffs was successful
against one defendant and for refusing a request by plaintiffs'
counsel for a risk factor enhancement of fees. We find that the
district court more than adequately analyzed the issue of
attorneys' fees, and explained its reasoning for the amount of
fees granted.
III.
III.
Conclusion
Conclusion
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In sum, we affirm the holding below. The judge did not
display actionable bias against the defendant. Although the
evidence regarding Officer Maki's suspension was incorrectly
admitted under Fed. R. Evid. 608 through the rebuttal testimony
of Officer Maki, the error was harmless. The district court
appropriately detailed its reasoning in granting the attorneys'
fees and costs, and the award will not be disturbed on appeal.
Affirmed.
Affirmed.
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