Terry Eugene Sears v. Vernia Roberts, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13668
____________________
TERRY EUGENE SEARS,
Plaintiff-Appellant,
versus
EQUARDO RIVERO, et al.,
Defendants,
VERNIA ROBERTS,
F. DEXTER,
J. HART,
DAVID PRINCE,
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2 Opinion of the Court 19-13668
D. SMITH, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:12-cv-00288-VMC-TGW
____________________
Before W ILLIAM PRYOR , Chief Judge, L UCK , and E D C ARNES, Circuit
Judges.
PER CURIAM:
Terry Sears is a Florida inmate who brought 42 U.S.C.
§ 1983 claims against several Florida correctional officers for exces-
sive force and deliberate indifference. After the district court
granted summary judgment to the officers, we vacated and re-
manded, noting that Sears’ and the officers’ dueling stories about
the underlying incident presented “a classic swearing match, which
is the stuff of which jury trials are made.”
Sears v. Roberts, 922
F.3d 1199, 1208 (11th Cir. 2019).
On remand, a jury trial lasting three days was made of the
swearing match. Finding the officers’ swearing more believable,
the jury returned a verdict for them. In this appeal from that
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19-13668 Opinion of the Court 3
verdict, Sears contends that several errors deprived him of a fair
trial. Because the parties are familiar with the record facts, we will
move straight to the issues and arguments.
I.
Before trial, Sears moved for an adverse inference jury in-
struction based on spoliation of a videotape that contained footage
of a post-force medical examination and pepper spray decontami-
nation that the prison staff conducted on him. Sergeant Scott
Voorhees had recorded those events and given the videotape to
one of the defendant officers, Felishia Dexter. The videotape was
later viewed by the prison warden, who then sent it to be reviewed
by an Inspector General’s Office employee. After that employee
viewed the videotape, he sent it back to the prison.
When Sears asked for the videotape during pretrial proceed-
ings, defense counsel responded that it no longer existed, leading
Sears to argue the officers had “either destroyed the video evidence
or failed to preserve [it] as required.” Sears contended that the de-
fendants had been so reckless with the videotape that it amounted
to bad faith and entitled him to an adverse inference instruction.
At a pretrial conference, the district court determined that
the loss of the videotape was “just negligence” and not the result of
bad faith. It denied Sears’ request for an evidentiary hearing, but
agreed to let Sears’ counsel talk informally to defendant Dexter
with her lawyer present. After his counsel’s conversation with
Dexter, Sears filed a motion asking for a jury instruction about the
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4 Opinion of the Court 19-13668
videotape. Ultimately, the parties agreed to have this joint stipula-
tion read to the jury: “The video taken by Sergeant Scott Voorhees
on March 18th, 2010, involving Mr. Sears, would have been re-
turned from the Office of the Inspector General to the Polk Cor-
rectional Institution. The video no longer exists.”
Sears argues to us that the district court should have held an
evidentiary hearing about whether the officers acted in bad faith in
spoliating the videotape. We review the district court’s decisions
about spoliation only for an abuse of discretion.
Mann v. Taser
Int’l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009). “In some circum-
stances, a
party’s spoliation of critical evidence may warrant the
imposition of sanctions,” including “a jury instruction on spoliation
of evidence which raises a presumption
against the spoliator.”
Tesoriero v. Carnival Corp., 965 F.3d 1170, 1184 (11th Cir. 2020)
(quotation marks omitted and emphasis added). The problem for
Sears’ spoliation argument is that no evidence was presented or
proffered to show who was the last person to have the videotape.
There was nothing to show that any of the parties destroyed it or
acted in bad faith regarding it. The district court did not abuse its
discretion in denying Sears’ motion for a spoilation instruction
without an evidentiary hearing.
II.
On the morning of the trial but before the proceedings be-
gan, Sears’ counsel pointed out that three uniformed corrections
officers were “sitting directly behind” Sears, which counsel argued
was “highly prejudicial.” The court responded that it was the
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19-13668 Opinion of the Court 5
guards’ “job to make certain that nothing bad happens,” and there
was “no way” the court was “going to tell them not to be here.”
Sears’ counsel then asked if the officers “could sit in the row behind
instead of right behind” him. The court replied that if the guards
“think they need to sit there, I’m going to let them sit there,” and
that it was “not about to tell a law enforcement officer how to do
his or her job when they think they need to be right behind the
person.” After confirming with the guards that they thought they
needed to sit where they were, the court stated: “That’s it. I’m not
going to tell them differently.”
The court also permitted the additional security measure of
having Sears wear shackles. Sears’ counsel asked that the jury be
excused whenever Sears walked to the witness stand unless the
guards would take the shackles off during his walk. The court de-
clined to allow the temporary removal of the shackles but did agree
to excuse the jury for Sears’ walks to the stand.
Sears challenges the district court’s decision to allow him to
be shackled and to allow uniformed guards to sit behind him dur-
ing the trial. “[W]e review the district court’s shackling determina-
tion for abuse of discretion.”
United States v. Baker, 432 F.3d 1189,
1245 (11th Cir. 2005),
abrogated on other grounds by Davis v.
Washington, 547 U.S. 813 (2006). We use the same standard to
evaluate a district court’s decision about what “measures are nec-
essary to ensure the security of the courtroom,”
United States v.
Durham, 287 F.3d 1297, 1304 (11th Cir. 2002), such as the court’s
decision to allow the uniformed guards to sit behind Sears.
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The Supreme Court has recognized that shackling a defend-
ant during a criminal trial is an extreme and inherently prejudicial
measure that must be justified by an essential state interest.
Deck
v. Missouri, 544 U.S. 622, 635 (2005). A less demanding form of
scrutiny applies to practices such as allowing uniformed guards or
officers to sit behind a criminal defendant. As the Court has ex-
plained, a conspicuous courtroom security presence is not inher-
ently prejudicial like shackles are, but the practice should still be
evaluated on a case-by-case basis.
Holbrook v. Flynn, 475 U.S. 560,
568–69 (1986). The Court went on to hold that four uniformed and
armed policemen “quietly sitting in the first row of a courtroom's
spectator section” did not create an “unacceptable risk of preju-
dice” to the criminal defendant.
Id. at 571. The officers were “un-
likely to have been taken as a sign of anything other than a normal
official concern for the safety and order of the proceedings.”
Id.
Deck and
Holbrook were criminal cases, and we have never
extended their holdings to civil cases. Which makes sense. The
Court’s reasoning in those decisions focused primarily on the fact
that a criminal defendant is entitled to a presumption of innocence,
which may be threatened by the government taking steps like hav-
ing him shackled.
See Deck, 544 U.S. at 630;
Holbrook, 475 U.S. at
569. Those concerns are not present in civil cases, and certainly not
in civil cases where the jury already knows that the plaintiff has
been convicted of a crime. The jury knew Sears was a convicted
criminal who was incarcerated at the time of the events that
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19-13668 Opinion of the Court 7
resulted in his lawsuit against correctional officers. He was not be-
ing tried for another criminal charge.
But we need not definitively decide whether
Deck and
Holbrook are applicable to civil cases. Even if they are, and even if
the district court abused its discretion in allowing Sears to be shack-
led or guards to sit directly behind him, any error was harmless.
The jury knew that Sears was a prisoner who had already been con-
victed and was serving time in prison. No reasonable juror would
expect a prisoner not to be accompanied by guards when outside
prison walls. The presence of guards was “unlikely to have been
taken as a sign of anything other than a normal official concern for
the safety and order of the proceedings.”
Holbrook, 475 U.S. at
571.
As for the shackles, there is no indication in the record that
the jury saw them or knew about them. The court excused the
jury from the courtroom while Sears walked to the stand and the
record has nothing to show that the shackles were ever visible to
the jury.
Cf. United States v. Moore, 954 F.3d 1322, 1330 (11th Cir.
2020) (holding no prejudice under the plain error standard where
there was “no indication in the record that the jury was aware of
the shackles”).
III.
Sears also contends that the district court abused its discre-
tion in allowing certain trial testimony from Samuel Pacchioli. He
was an employee in the “use of force unit” in the Inspector
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8 Opinion of the Court 19-13668
General’s Office who had reviewed and “approved” after the fact
the use of force in the incident involving Sears. Pacchioli testified
about the steps he took to review the use of force incident. He
recounted how he had reviewed a “packet” about the incident,
which included the use of force report and the videotape. He had
compared that material to a checklist or a set of procedures estab-
lished by the Inspector General’s office. The reason he had “ap-
proved” the use of force incident was that he did not “find anything
in the use of force checklist that did not comply with the proce-
dures that would have been — [that] reflect an appropriate use of
force.” Sears’ counsel did not object to any of that testimony.
Sears’ counsel did object to a series of blatantly leading ques-
tions that defense counsel had asked Pacchioli about the conclusion
he had reached in his review. The court sustained the objection.
It told defense counsel: “[M]ost of your questions are leading ques-
tions. And it’s absolutely inappropriate.” The court struck the
questions and answers from the record and instructed defense
counsel to stop leading his own witness.
Immediately after that, defense counsel asked Pacchioli, “did
you find anything inappropriate according to your checklist that
had occurred during the use of force?” Pacchioli said he didn’t. De-
fense counsel then asked him “had there been times during your
duties as the use of force reviewer that you did find other reports
without talking about specifics, where you disapproved?” Sears’
counsel objected that defense counsel was again asking a leading
question.
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19-13668 Opinion of the Court 9
The court sustained the objection, stating: “First of all, sus-
tained. Number two, it’s eliciting expert testimony. These ques-
tions are inappropriate. The answers are stricken from the record.”
Sears’ counsel asked the court to instruct the jury that it could not
consider testimony that is stricken, and the court did so. It told the
jury: “When testimony is stricken, you’re not to consider it in any
way. It’s as if it did not occur. This is expert testimony, [defense
counsel]. The jury is not to consider this testimony. . . . For the last
five or six questions, you’re not allowed to consider that.”
On cross-examination, Sears’ counsel elicited from Pacchioli
that he had not personally observed the use of force, that he had
not spoken with Sears about it, and that his approval was based on
the officers’ statements in the use of force report. Counsel also elic-
ited from Pacchioli that the warden had noted in the report that
Sears was ordered to put on contaminated clothes after he had been
pepper sprayed and that the order to do so, according to Pacchioli,
was not proper.
At the conclusion of Pacchioli’s testimony the jury was al-
lowed to submit written questions to potentially be asked to Pac-
chioli by the court. One of the questions was: “What was your final
finding, recommendation or outcome about use of force?” Sears’
counsel objected to the question, arguing that the jury would sub-
stitute Pacchioli’s opinion about the ultimate issue in the case for
its own independent determination. But the court rejected that ar-
gument, reasoning that the jury had “every right” to “find differ-
ently” and that any “credibility bolstering” was not
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10 Opinion of the Court 19-13668
“overwhelming.” The court told Sears’ counsel she could “deal
with [it] in closing argument” and “tell the jury they’re here to de-
cide whether it was right or wrong” regardless of “what the agency
says.” The court itself later instructed the jury that it was required
to decide on its own whether to believe or disbelieve the witnesses.
After Pacchioli was asked the question about his final find-
ing, he responded that his “approval of the use of force approved
the type and amount, and that was the end of the review.” Sears’
counsel had another chance to cross-examine Pacchioli, and elic-
ited from him that at the time he approved the use of force report
he was an employee of the state and was paid by the state.
Sears argues that the court erred in permitting Pacchioli’s
testimony. He contends that Pacchioli, despite being presented as
a lay witness, actually testified as an expert witness, which was im-
proper because the court had ruled that expert testimony was not
allowed in the case. And he argues that Pacchioli’s testimony in-
vaded the province of the jury by being about the ultimate issue in
the case: whether the use of force was reasonable. In a credibility
contest, Sears asserts, Pacchioli’s testimony supporting the defend-
ants was an insurmountably prejudicial hurdle.
We review only for an abuse of discretion the court’s admis-
sion of witness testimony under Federal Rule of Evidence 701.
United States v. Moran, 778 F.3d 942, 958–59 (11th Cir. 2015). The
discretion is broad: a court has considerable leeway when deciding
whether to allow witness testimony.
See, e.g.,
Maiz v. Virani, 253
F.3d 641, 662 (11th Cir. 2001).
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Federal Rule of Evidence 701 allows a lay witness to testify
about his opinions if the testimony is “(a) rationally based on the
witness’s perception; (b) helpful to clearly understanding the wit-
ness’s testimony or to determining a fact in issue; and (c) not based
on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Fed. R. Evid. 701. We’ve held that the
firsthand knowledge requirement, or the requirement that the tes-
timony be “rationally based on the witness’s perception,” Fed. R.
Evid. 701(a), can sometimes be satisfied where a lay witness has
“base[d] his opinion testimony on his examination of documents[,]
even when the witness was not involved in the activity,”
United
States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir. 2011). For exam-
ple, law enforcement agents who have reviewed financial records
can testify as lay witnesses about those records,
United States v.
Hamaker, 455 F.3d 1316, 1331–32 (11th Cir. 2006), and law enforce-
ment agents who have examined documents to decipher code lan-
guage can testify about a defendant’s use of that code language,
even without having been party to a defendant’s conversations,
Jayyousi, 657 F.3d at 1103.
Those witnesses in those circumstances would not be testi-
fying as experts even if their experience makes them “more effi-
cient” at reviewing the records,
Hamaker, 455 F.3d at 1331, and
even if the testimony is aided by “their particularized knowledge
garnered from years of experience within the field,”
Tampa Bay
Shipbuilding & Repair Co. v. Cedar Shipping Co., Ltd., 320 F.3d
1213, 1223 (11th Cir. 2003). The testimony remains lay testimony
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12 Opinion of the Court 19-13668
at least when it is “limited . . . to what [the witness] learned during
this particular investigation,”
Jayyousi, 657 F.3d at 1104, and when
the “review itself was within the capacity of any reasonable lay per-
son,”
Hamaker, 455 F.3d at 1331–32.
Pacchioli testified as a lay witness, not as an expert witness.
His testimony was about his review of the use of force report,
which is similar to an agent’s testimony about an investigation or
a review of financial records. He testified that he compared the use
of force incident to a checklist or a set of procedures established by
the Inspector General and that based on the comparison he ap-
proved the use of force. That is not the use of “scientific, technical,
or other specialized knowledge” that goes into expert testimony.
Fed. R. Evid. 702. It is closer to bureaucratic box checking. And it
is the kind of review that is “within the capacity of any reasonable
lay person,” even if Pacchioli’s background made him “more effi-
cient at reviewing [the] records,”
Hamaker, 455 F.3d at 1331–32,
and even if his review and testimony were aided by his “particular-
ized knowledge garnered from years of experience within the
field,”
Tampa Bay Shipbuilding & Repair Co., 320 F.3d at 1223.
The testimony was also limited to what he had “learned during this
particular investigation.”
Jayyousi, 657 F.3d at 1104.
Sears’ argument that Pacchioli’s testimony invaded the
province of the jury because it was about the ultimate issue in the
case also fails. The ultimate issue was whether the use of force was
excessive or reasonable. Pacchioli’s testimony was not about
that — his testimony was that, based on the use of force report and
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19-13668 Opinion of the Court 13
the videotape, the use of force had complied with the Inspector
General’s standards. He testified “[n]o” when defense counsel
asked him if he had found “anything in the use of force checklist
that did not comply with the procedures that . . . reflect an appro-
priate use of force” or if he had found “anything inappropriate ac-
cording to [his] checklist that had occurred during the use of
force[.]” That was the context that had been established when Pac-
chioli later answered the jury’s question that he had approved the
“type and amount” of the use of force. It was all about the Inspec-
tor General’s standards.
There is a difference between whether something complies
with the Inspector General’s standards and whether it complies
with the law. The Inspector General does not get to write the law,
and its standards do not determine the outcome of § 1983 cases.
The jury was not asked to decide whether the defendants complied
with the Inspector General’s standards, but whether they complied
with the law. It was free to reject the Inspector General’s standards
as unreasonable, even if it found Pacchioli credible in his testimony
and his review of the report. That was in addition to being in-
structed that it could disbelieve his testimony.
Our decision in
United States v. Myers, 972 F.2d 1566 (11th
Cir. 1992), shows why the distinction matters. We addressed a lay
witness who was challenged as having “offer[ed] a legal conclusion
on the ultimate issue in the case.”
Id. at 1577. His testimony was
that, based on his experience and knowledge of police standards, a
police officer had not used reasonable force.
Id. The earlier
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14 Opinion of the Court 19-13668
questioning of the witness had elicited his training and how the po-
lice academy teaches officers to respond to certain provocations;
only after that questioning was the witness asked whether the use
of force in that case had been reasonable.
Id. at 1577 n.9. We ap-
plied to the lay witness a standard we had stated in an expert wit-
ness case: that the witness does not invade the province of the jury
when his testimony addresses “whether force was ‘reasonable’ or
‘justified’” if that testimony is about “prevailing standards in the
field of law enforcement.”
Id. at 1577 (citing
Samples v. City of
Atlanta, 916 F.2d 1548, 1551 (11th Cir. 1990)).
We held that because the witness had “properly framed his
opinion in accordance with prevailing police standards” the court
had not abused its discretion in allowing him to testify that the use
of force was unreasonable.
See id. at 1577–78. In further support
of that holding, we favorably cited an Eighth Circuit decision and
described it as holding that a question “as to whether ‘defendant’s
conduct violated a constitutional norm,’ was permissible because
the ‘jury had the right to be informed concerning prison policy’ in
assessing whether a correctional officer had violated a prisoner’s
civil rights.”
Id. at 1578 (quoting
Wade v. Haynes, 663 F.2d 778,
784 (8th Cir. 1981)). Similar to how the witness in
Myers “properly
framed his opinion in accordance with prevailing police standards,”
see 972 F.2d at 1578, Pacchioli’s testimony was properly framed in
accordance with the Inspector General’s standards for use of force
incidents.
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19-13668 Opinion of the Court 15
Not only that, but Pacchioli’s testimony was much more
limited than the testimony we held was properly permitted in
My-
ers. He was not permitted, as the lay witness in
Myers had been,
to testify extensively about the details of the standards.
See id. at
1577 n.9. Nor was he permitted, as the lay witness in
Myers had
been, to testify directly about whether in his view the force used
was “reasonable.”
See id. Pacchioli instead was permitted to testify
only that the use of force described in the report and shown in the
videotape complied with the Inspector General’s standards. And
as the
Wade decision, which we quoted in
Myers, said, the “jury
had the right to be informed concerning prison policy” about uses
of force when “assessing whether a correctional officer had vio-
lated a prisoner’s civil rights.”
Id. at 1578 (quotation marks omit-
ted).
And, of course, Sears had the opportunity to cross-examine
Pacchioli and did so thoroughly.
Cf. Agro Air Assocs., Inc. v. Hou-
ston Cas. Co., 128 F.3d 1452, 1456 (11th Cir. 1997) (holding that lay
witness testimony about causation was admissible “[b]ecause [the
defendant] had the opportunity to cross-examine the witnesses,”
meaning “any objection to the testimony went to the weight of the
evidence, not to its admissibility”). The district court instructed the
jury that it had to decide whether to believe or disbelieve any wit-
nesses and that it was the jury’s job to decide whether a witness
was credible and truthful.
Cf. Myers, 972 F.2d at 1578 (holding that
error in allowing a lay witness to testify about the reasonableness
of force without a foundation was harmless because the court
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16 Opinion of the Court 19-13668
instructed the jury that “it was their duty to decide the specific facts
and whether to accept and rely upon an expert witness”) (cleaned
up). We generally presume the jury followed its instructions.
See,
e.g.,
United States v. Hill, 643 F.3d 807, 829 (11th Cir. 2011).
All of those reasons support our conclusion that the district
court did not abuse its considerable leeway and discretion in allow-
ing Pacchioli’s testimony.
IV.
Sears contends that defense counsel made a number of im-
proper statements during trial and closing argument. None of the
statements defense counsel made during trial resulted in rulings
that amount to an abuse of discretion and justify reversal.
Sears argues that the jury’s verdict should be reversed be-
cause defense counsel at one point in the trial called Sears a “diffi-
cult witness.” That’s a fairly mild remark. And, in any event, Sears
counsel’s objection prompted the court to describe that comment
as “improper” and strike it. We presume the jury follows instruc-
tions when statements are stricken from the record.
See, e.g.,
Hill,
643 F.3d at 829.
There were other remarks defense counsel made during
trial, including some during his closing argument, that Sears did
not object to but now contends were reversible error. “When no
objections are raised to the allegedly improper comments, how-
ever, we review for plain error, but a finding of plain error is sel-
dom justified in reviewing argument of counsel in a civil case.”
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19-13668 Opinion of the Court 17
Ruiz v. Wing, 991 F.3d 1130, 1141 (11th Cir. 2021) (quotation marks
omitted). Even when objected to, “inappropriate statements made
by counsel will not justify a new trial unless the remarks were such
as to impair gravely the calm and dispassionate consideration of the
case by the jury.”
Id. (quotation marks omitted). None of defense
counsel’s remarks rose (or sunk) to that level.
V.
Sears contends that all of what he identifies as errors had the
combined effect of depriving him of a fair trial. “The cumulative
error doctrine provides that an aggregation of non-reversible errors
(i.e., plain errors failing to necessitate reversal and harmless errors)
can yield a denial of the constitutional right to a fair trial, which
calls for reversal.”
Baker, 432 F.3d at 1223 (quotation marks omit-
ted). But that seldom happens, and it didn’t happen here. Sears
was not deprived of a fair trial.
AFFIRMED.
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