FILED
NOT FOR PUBLICATION MAR 27 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STACY DRAYTON,
No. 15-55458
Plaintiff-Appellant,
v. DC No. 2:13-cv-05041-SJO-DFM
STEPHEN SCALLON, et al., MEMORANDUM
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California.
S. James Otero, District Judge, Presiding
Argued and Submitted March 9, 2017
Pasadena, California
BEFORE: REINHARDT and NGUYEN, Circuit Judges, and MARBLEY, District
Judge.
This disposition is not appropriate for publication and is not precedent except as provided by
9th Circuit Rule 36-3.
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.
Stacy Drayton appeals a jury verdict and judgment in favor of Officers
Scallon, Dudas, Hui, Nunez, and Tourtellote (the “officers”) on his excessive force
claim. We have jurisdiction under 28 U.S.C § 1291, and affirm.
On July 15, 2011, Drayton was arrested after Officer Scallon found him
driving the wrong way down a one-way street in a vehicle that he did not have
permission to drive. Drayton claimed that he repeatedly was hit and kicked by the
officers from the time he was stopped until after he was placed in a cell at the
Metropolitan Detention Center. The officers denied hitting or kicking Drayton.
Drayton was photographed in connection with his booking, and the
photographs, which show a lack of visible injury to Drayton’s head, were admitted
at trial.
Because Drayton reported having been subject to excessive force at the hands
of the officers, an investigator, Sergeant Ruben Lopez, interviewed him on the
evening of July 15. A photographer also took pictures of Drayton at that time. These
photographs showed a lack of visible injury to Drayton’s face, arms, and torso. The
transcript of this interview, Sergeant Lopez’s observations, and these photographs
were admitted into evidence at trial. A few days later, Drayton was examined by a
nurse practitioner, whose notes were introduced into evidence. These notes
indicated a “[s]light bump” on Drayton’s head, a “potential head injury,” crack
cocaine use (both before and on July 15, 2011), and schizophrenia, for which
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Drayton was not taking medication. The officers also introduced evidence of
Drayton’s extensive criminal history.
Drayton’s case-in-chief consisted primarily of his own account of the events
in question—an account which deviated in certain respects from accounts he gave
to Lopez and the examining nurse, and the account he gave during his deposition.
The jury returned a verdict in favor of the officers.
Drayton appeals the admission of evidence that he was: (a) schizophrenic and
unmedicated; and (b) previously a crack cocaine user. He also appeals the admission
of his rap sheet, which includes numerous arrests and several misdemeanor
convictions (in addition to ten felony convictions), for purposes of impeachment.
Finally, Drayton appeals allegedly inflammatory references to this evidence in the
officers’ opening statement and closing argument. Drayton’s counsel did not object
to this evidence and argument at trial, with the exception of a relevancy objection to
evidence that he was diagnosed with a mental illness.
We review for plain error the admission of evidence at trial to which an
appellant: (a) failed to object; or (b) makes a different objection on appeal. Fed. R.
Evid. 103(e); Williams v. Union Pac. R.R., 286 F.2d 50, 55 (9th Cir. 1960). We also
review alleged attorney misconduct, “absent a contemporaneous objection[,]” for
plain error. Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1193 (9th Cir. 2002)
(internal quotations omitted).
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The district court commits plain error “where the integrity or fundamental
fairness of the proceedings in the trial court is called into serious question.” Bird v.
Glacier Elec. Coop., Inc., 255 F.3d 1136, 1148 (9th Cir. 2001). We may not reverse
unless the evidence is “highly prejudicial and affected . . . substantial rights.”
Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1016 (9th Cir. 1999). Even if the
district court commits error, “[i]f the jury more probably than not would have
reached the same result absent the error, the error is harmless and the party’s
substantial rights have not been affected.” Id.
1. Although the district court should not have admitted the evidence that
Drayton suffered from schizophrenia without any indication that his diagnosis
affected his ability to perceive the events in question, the court did not commit plain
error in so doing. Evidence of a severe illness that bears on a witness’s ability to
perceive events is admissible to cast doubt on that witness’s ability to perceive
events. Gonzalez v. Wong, 667 F.3d 965, 983-84 (9th Cir. 2011). There was no
evidence in this case, however, that Drayton’s schizophrenia diagnosis bore on his
ability to perceive events. Therefore, without more, the prejudicial effect of
Drayton’s schizophrenia diagnosis substantially outweighed its probative value
under Federal Rule of Evidence 403, and the district court erred in admitting this
evidence.
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Nevertheless, the jury more probably than not would have reached the same
result absent the error. Drayton’s case, which was based solely on his own
testimony, was not strong. Due to his inconsistent statements, the photographic
evidence, his drug use during the events in question, and his prior felony convictions,
the jury “more probably than not would have reached the same result absent the
error.” Beachy, 191 F.3d at 1016. Therefore, the district court did not plainly err in
admitting this evidence.
2. The district court erred in admitting Drayton’s rap sheet, but that error,
too, did not rise to the level of plain error. Drayton’s rap sheet contained entries
relating to his ten felony convictions, numerous arrests (one of which was for
murder), and several misdemeanor convictions. The felony convictions were
admissible under Federal Rules of Evidence 609(a)(1)(A) and 403, but not in the
form of a rap sheet. United States v. Barry, 814 F.2d 1400, 1404 & n.7 (9th Cir.
1987) (“Rap sheets have never been allowed as evidence of a conviction . . . .”
(internal quotation mark omitted)). The misdemeanor convictions and arrests were
not admissible, especially not in the form of a rap sheet. Id.; see also Fed. R. Evid.
403; Nelson v. City of Chicago, 810 F.3d 1061, 1067 (7th Cir. 2016) (“It’s well
established that in general, a witness’s arrest record will not be admissible.”
(brackets and internal quotation marks omitted)).
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Again, however, these errors did not rise to the level of plain error because
“the jury more probably than not would have reached the same result absent the
error.” Beachy, 191 F.3d at 1016. In addition to the rap sheet, the jury had before it
admissible evidence of eight felony convictions. The arrests and misdemeanors, at
their most prejudicial, go to show Drayton’s lengthy criminal history, which had
already been demonstrated by admissible evidence of his felony convictions.
Drayton has not shown that evidence of additional contact with law enforcement
affected his substantial rights.
3. The district court did not err in admitting evidence of Drayton’s prior
drug use. Drayton had told the nurse practitioner that he had used cocaine on the
night of July 15, 2011, but testified during his deposition and at trial that he had been
under the influence of marijuana and beer. Drayton’s drug use that night was
squarely at issue—both for his credibility and for his ability to perceive the events
in question. When the officers questioned Drayton about his drug use on July 15,
Drayton volunteered evidence of his prior drug use. Then, the officers introduced
additional evidence of this prior drug use. The district court did not plainly err in
admitting it.
4. Even if the officers’ counsel made isolated inflammatory statements
during her opening statement and closing argument, these statements did not
constitute plain error because we cannot find that they “so permeate[d] the trial as to
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show that the jury was necessarily prejudiced” or “offended fundamental fairness
and deprived [Drayton] of our Constitution’s guarantee of due process.” Bird, 255
F.3d at 1145, 1148 (internal quotations omitted). Considering, as we must, “the
totality of circumstances, including the nature of the comments, their frequency,
their possible relevancy to the real issues before the jury, the manner in which the
parties and the court treated the comments, the strength of the case, and the verdict
itself,” we find that Drayton has not reached the “‘high threshold’ [erected by the
federal courts] to claims of improper closing arguments in civil cases raised for the
first time after trial.” Hemmings, 285 F.3d at 1193 (internal quotations omitted).
The officers’ counsel made isolated, arguably inflammatory statements over
a three-day trial. The comments themselves include two references to Drayton’s
felony convictions, one of which (calling him a “multiple felon”) could be
considered inflammatory. They also include two references to his mental health,
one of which (calling him a “psychiatric patient”) could be considered inflammatory.
Finally, they include three references to Drayton’s drug use, none of which was
inflammatory.
Unlike the extensive comments made in Bird, the inflammatory comments
made by the officers’ counsel were isolated rather than pervasive. Compare
Hemmings, 285 F.3d at 1194 (finding a short comment in a sixty-six-page closing
statement not pervasive), with Bird, 255 F.3d at 1149-51 (discussing numerous,
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racially charged comments and imagery likening a contract dispute to a “massacre”
of members of the Blackfeet tribe). And they were relevant to real issues before the
jury—impeaching Drayton’s credibility by contradiction and by questioning his
memory and perception. Cf. Hemmings, 285 F.3d at 1193 (finding comment
regarding counsel’s prior lawsuit irrelevant to issues before jury); Bird, 255 F.3d at
1152 (finding racist imagery irrelevant to contract dispute before the jury). The
parties and the court did not react contemporaneously to the comments,
“support[ing] an inference that the misconduct was not prejudicial or fundamentally
unfair.” Hemmings, 285 F.3d at 1195. The court also instructed the jury that the
statements or argument of counsel is not evidence, an admonition that we presume
the jury followed. Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1270-71
(9th Cir. 2000).
The errors alleged in this case have not met the plain error threshold required
for reversal.
AFFIRMED.
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