The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-451-BO
RAYMOND TARLTON, as guardian ad litem for )
HENRY LEE MCCOLLUM, et al., )
)
Plaintiffs, )
)
v. ) ORDER
)
KENNETH SEALEY, both individually and in his )
official capacity as Sheriff of Robeson County, )
et al., )
)
Defendants. )
This cause comes before the Court on defendants’ motion to sever the trials and claims of
plaintiffs Henry McCollum and Leon Brown and motion in limine to exclude criticism of pre-
seizure investigative steps. The time for responding to the motions has expired and they are ripe
for ruling. The Court considers each motion in turn.
I. Motion to sever the trials and claims of plaintiffs
Defendants request an order severing into two lawsuits the claims of Henry McCollum and
Leon Brown pursuant to Rules 20 and 21 of the Federal Rules of Civil Procedure. Alternatively,
defendants request that the claims of each plaintiff be severed for trial pursuant to Rule 42(b) of
the Federal Rules of Civil Procedure.
Under Rule 20,
Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
Fed. R. Civ. P. 20(a)(1). A court may also sever any claim against a party. Fed. R. Civ. P. 21.
A court may order separate trials of issues or claims “[fJor convenience, to avoid prejudice,
or to expedite and economize”. Fed. R. Civ. P. 42(b). A court may further order separate trials to
protect any party from embarrassment, delay, expense, or other prejudice. Fed. R. Civ. P. 20(b).
In deciding whether to order separate trials,
[t]he critical question for the [] court [is] whether the specific risks of prejudice and
possible confusion [are] overborne by the risk of inconsistent adjudications of
common factual and legal issues, the burden on parties, witnesses and available
judicial resources posed by multiple lawsuits, the length of time required to
conclude multiple suits as against a single one, and the relative expense to all
concerned of the single-trial, multiple-trial alternatives.
Arnold vy. E. Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982), on reh’g, 712 F.2d 899 (4th Cir.
1983).
Both of defendants’ requests are denied. Plaintiffs are properly joined in this matter as their
claims arise out of the same transaction, occurrence, or series of transactions or occurrences,
specifically the investigation of the murder of Sabrina Buie, and common questions of law and
fact have arisen, including an allegation of municipal liability. Fed. R. Civ. P. 20(a). In their
motion, defendants appear to contend that all that is at issue in this case is what happened in two
separate interrogation rooms on the night of September 28 and early morning of September 29,
1983. While what happened in their separate interview rooms may be at the heart of their claims,
Gilliam v. Sealey, 932 F.3d 216, 222 (4th Cir. 2019), plaintiffs’ claims do not end at the signing
of their alleged confessions. Plaintiffs also allege that “to cover up [their] wrongdoing,
[defendants] withheld in bad faith exculpatory evidence that demonstrated [plaintiffs’] innocence
and buried pieces of specific evidence indicating that Artis -- and not Appellees -- raped and
murdered Buie.” Jd. at 226. Plaintiffs are not two strangers whose claims arise from separate
incidents; they are half-brothers, both selected to be interviewed by law enforcement within hours
of each other for the rape and murder of Sabrina Buie. Both contend that law enforcement officers
coerced their confessions and later, acting in concert, violated their constitutional rights in order
to cover-up the fact that their confessions had been coerced.
Any risk of prejudice or confusion is not overborn by the risk of inconsistent factual and
legal determinations, and defendants have failed to demonstrate that, at this late stage of the
proceedings and on the eve of trial, severance of plaintiffs’ claims either under Rule 21 or for trial
is appropriate or necessary. This motion is denied.
II. Motion in limine to exclude criticism of pre-seizure investigative steps.
Defendants moved under Federal Rule of Evidence 403 for an order instructing plaintiffs
and their counsel, and through them their witnesses, not to opine or in any manner convey to the
jury, unless permission is first obtained from the Court outside the presence of the jury, that the
investigative steps which led investigators to question plaintiff McCollum violated standard police
procedure or otherwise violated McCollum’s rights.
Rule 403 of the Federal Rules of Evidence permits a court to exclude relevant evidence if
its probative value is substantially outweighed by a danger of unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence. Fed. R. Evid. 403. Defendants are concerned with the opinion of Gregg McCrary, a
retired FBI agent retained by plaintiffs, whose report states that defendants violated standard police
practice when they brought McCollum in for questioning prior to conducting additional
investigation into the case and the rumor that he was involved in the crime. Defendants contend
that because the Fourth Amendment is only concerned with the deprivation of liberty, what
happened prior to McCollum’s seizure is irrelevant.
The Court disagrees. The actions of law enforcement leading up to their decision to
question both McCollum and Brown are plainly relevant to understanding the circumstances
within which their seizures occurred. Any potential for confusion or prejudice can be addressed in
the Court’s instructions to the jury. This motion is denied.
CONCLUSION
For the foregoing reasons, defendants’ motion to sever [DE 359] and motion in limine [DE
357] are DENIED.
—
SO ORDERED, this. [4 day of April, 2021.
TERRENCE W. BOYLE /
UNITED STATES DISTRICT JUDGE