# Cretacci v. Hare

> District Court, E.D. Tennessee · April 6, 2021

URL: https://www.frixlaw.com/law-library/cases/10434324

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** April 6, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER

BLAKE CRETACCI, )
)
Plaintiff ) No. 4:19-cv-00055-SKL
)
v. )
)
MATTHEW HARE, et al., )
)
Defendants. )

MEMORANDUM AND ORDER

This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff Blake Cretacci
alleges that, on August 18, 2018, he was assaulted by five guards (Defendants Matthew Hare,
Tristan Collins, Steven Qualls, Joshua Thomas, and Cody Duke; collectively, “Defendants”) while
he was a pretrial detainee at the Coffee County Jail. He claims Defendants used excessive force
in violation of his rights under the Fourteenth Amendment to the United States Constitution.
Currently before the Court is Plaintiff’s motion in limine [Doc. 61], seeking to exclude proof
concerning certain criminal convictions and other jail incidents. Defendants filed a response [Doc.
62], and Plaintiff filed a reply [Doc. 68]. This matter is now ripe.
I. CRIMINAL CONVICTIONS
Plaintiff first moves to exclude evidence of his past criminal convictions in Tennessee and
Arizona. He has three felony convictions from Arizona state court: two for possession of
marijuana, and one for solicitation to commit forgery. He has two felony convictions from Arizona
federal court: use of a firearm during a crime of violence, and money laundering. He has two
misdemeanor convictions from a Tennessee state court: reckless endangerment and violation of
the implied consent law.
Defendants do not object to the exclusion of evidence relating to Plaintiff’s convictions for
possession of marijuana, use of a firearm, reckless endangerment, and violation of the implied
consent law. Accordingly, Plaintiff’s motion in limine is GRANTED to the extent he seeks to
exclude evidence of these convictions.
Defendants do object to the exclusion of evidence concerning Plaintiff’s convictions for

solicitation to commit forgery and money laundering. The solicitation to commit forgery
conviction was entered on August 10, 1989, and Plaintiff was sentenced to three years of probation.
The money laundering conviction was entered on August 28, 1995. Plaintiff was sentenced to 60
months for the money laundering conviction. According to Plaintiff, he was granted supervised
release at some point, which was then revoked on December 8, 2003, at which time Plaintiff was
sentenced to serve eight additional months in custody [Doc. 61 at Page ID # 831].
Federal Rule of Evidence 609 provides in relevant part:
(a) In General. The following rules apply to attacking a witness's
character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was
punishable by death or by imprisonment for more than
one year, the evidence:

(A) must be admitted, subject to Rule 403, in a
civil case or in a criminal case in which the witness
is not a defendant; and

(B) must be admitted in a criminal case in which the
witness is a defendant, if the probative value of the
evidence outweighs its prejudicial effect to that
defendant; and

(2) for any crime regardless of the punishment, the evidence
must be admitted if the court can readily determine that
establishing the elements of the crime required proving--or
the witness’s admitting--a dishonest act or false statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision
(b) applies if more than 10 years have passed since the witness’s
conviction or release from confinement for it, whichever is later.
Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial
effect; and

(2) the proponent gives an adverse party reasonable written
notice of the intent to use it so that the party has a fair
opportunity to contest its use.

(Emphasis added).
Over thirty years have passed since Plaintiff’s conviction for solicitation of forgery.
Approximately 15 years have passed since Plaintiff’s last period of confinement ended related to
the money laundering conviction. Accordingly, evidence of these convictions is admissible only
if there are “specific facts and circumstances” demonstrating that the probative value of these
convictions “substantially outweighs” their prejudicial effect. Fed. R. Evid. 609(b).1 “Rule 609(b)
creates, in effect, a rebuttable presumption that convictions over ten years old are more prejudicial
than helpful and should be excluded.” United States v. Rodriguez, 409 F. App’x 866, 869-70 (6th
Cir. 2011) (citation omitted) (affirming exclusion of 14-year-old conviction for theft).
In United States v. Sims, the Sixth Circuit explained that “[w]hen stale convictions are
offered for the purpose of impeaching a witness, they often shed little light on the present tendency

1 Without any supporting evidence, Defendants suggest the record is not clear regarding whether
these convictions/confinement periods are more than ten years old. The Court disagrees. The
solicitation of forgery conviction was clearly entered on August 10, 1989, with Plaintiff ordered
to serve a three-year suspended sentence [Doc. 61-1 at Page ID # 841]. The record also reflects
Plaintiff was sentenced to 60 months for the money laundering charge [Doc. 61-2 at Page ID #
872]. The record does not reflect when he was put on supervised release, but it does show he was
ordered to serve eight months for violating the terms of his supervised release on December 8,
2003 [id. at Page ID # 906], meaning his confinement related to this felony ended in August 2004.
Defendant does not appear to challenge the authenticity of these records.
of the witness toward truthfulness and veracity.” 588 F.2d 1145, 1148 (6th Cir.1978). The court
concluded that evidence of convictions more than ten years old will “very rarely and only in
exceptional circumstances” be admitted. Id. Rule 609(b) requires the Court to make an “on-the-
record finding based on specific facts and circumstances that the probative value of the evidence
substantially outweighs the danger of unfair prejudice.”2 Sims, 588 F.2d at 1149 (citation omitted).

The court identified the following factors “which the judge should take into account”:
(1) The impeachment value of the prior crime.
(2) The point in time of the conviction and the witness’ subsequent history.
(3) The similarity between the past crime and the charged crime.
(4) The importance of the defendant’s testimony.
(5) The centrality of the credibility issue.
Id. (citation omitted); see also Lovett v. Cole, No. 1:11-cv-277, 2014 WL 5802666, at *1 (S.D.
Ohio Nov. 7, 2014) (applying factors in civil case; excluding evidence of “nearly twenty-year-old
criminal convictions”).

The Court finds that both convictions have some impeachment value. Plaintiff does not
contest that money laundering and forgery are both crimes of dishonesty. He briefly argues that
solicitation of forgery is not a crime of dishonesty. Solicitation of forgery requires proof that a
person commanded, encouraged, or requested another person to engage in specific conduct that
constitutes forgery, and that he acted with specific intent to do so. Ariz. Rev. Stat. Ann. § 13-
1002. This is sufficient to show the conviction is relevant to Plaintiff’s honesty and therefore has
some impeachment value. Furthermore, Plaintiff’s credibility will be a significant issue in this

2 In Sims, the Sixth Circuit urged “trial judges to make such determinations after a hearing on the
record.” 588 F.2d at 1149. In this case, neither party has asked for a hearing, and the Court finds
a hearing is not necessary for the Court to issue this ruling.
case. As both parties acknowledge, the proof regarding the alleged assault will largely boil down
to Plaintiff’s word against Defendants’ word.
The remaining factors do not weigh in favor of admitting evidence of these convictions on
the current record. The conviction for solicitation of forgery is particularly stale. Plaintiff’s
subsequent history does appear to contain several additional felonies. In addition to the two felony

convictions for marijuana possession (1991 and 1992) and one for use of a firearm during a crime
of violence (1995, with confinement ending 2004), mentioned above, Plaintiff states in his brief
that he has “some more recent drug felonies that he is not moving to exclude.” [Doc. 61 at Page
ID # 835]. He also has the misdemeanor convictions from 2013 [Doc. 61-3]. However, none of
these convictions would seem to involve conduct similar to forgery or money laundering, and there
appears to be a significant gap in Plaintiff’s criminal activity, from 2004 until 2013 when he
received the misdemeanor convictions referenced above [id.]. Defendants also do not rely on the
“more recent drug felonies” to argue that Plaintiff’s subsequent criminal history makes the older
convictions more probative. Further, there is no suggestion of any factual similarities between the

old convictions and the relevant events in this case.
Defendants have failed to present specific facts to show that this is the exceptional case
where such stale convictions are so probative that they outweigh the inevitable prejudice they will
cause. Defendants’ current arguments boil down to the fact that the convictions involve
dishonesty, and that credibility will be a significant issue at trial. But Rule 609 contemplates that
even crimes of dishonesty more than ten years old are only admissible if there are specific facts
showing the probative value of the convictions substantially outweighs their prejudicial effect.
This leaves the significance of Plaintiff’s credibility as the only specific fact. And it cuts both
ways—on the one hand, facts related to credibility are highly relevant, but on the hand, there is a
heightened danger of prejudice because the convictions are so stale.
Unless Defendants come forward with more specific facts as to why Plaintiff’s convictions
for solicitation of forgery and for money laundering are probative to the issues in this case, proof
of these convictions is excluded from trial. If Defendants wish to attempt to introduce said

evidence at trial for a reason not addressed herein, they are ORDERED to first raise the issue with
the Court outside the presence of the jury.
II. OTHER JAIL INCIDENTS
Plaintiff also moves to exclude evidence concerning “jail incidents” Plaintiff was involved
in other than the August 18, 2018 incident at issue in this lawsuit. Plaintiff lists a number of
incidents occurring between October 15, 2015, and June 28, 2019 [Doc. 61 at Page ID # 832-33].
Plaintiff argues the incidents are not admissible to prove his character, and further, that they “do
not appear relevant for any other purpose.” [Id. at Page ID # 835].
Federal Rule of Evidence 404 provides in relevant part:

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or
character trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character
or trait.

. . . .

(3) Exceptions for a Witness. Evidence of a witness’s
character may be admitted under Rules 607, 608, and 609.

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or
act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.

District courts use a three-step process to determine whether potential character evidence
is admissible under Rule 404(b):
First, the district court must decide whether there is sufficient
evidence that the other act in question actually occurred. Second, if
so, the district court must decide whether the evidence of the other
act is probative of a material issue other than character. Third, if the
evidence is probative of a material issue other than character, the
district court must decide whether the probative value of the
evidence is substantially outweighed by its potential prejudicial
effect.

United States v. Dunnican, 961 F.3d 859, 874 (6th Cir. 2020) (emphasis in original) (quoting
United States v. Yu Qin, 688 F.3d 257, 262 (6th Cir. 2012)).
The parties do not appear to contest that there is sufficient evidence the other acts in
question actually occurred. The parties do disagree over the second and third steps: whether the
evidence is probative of a material issue other than character, and whether the probative value of
the evidence is substantially outweighed by the potential prejudice it would cause to Plaintiff.
Defendants argue Plaintiff’s “misconduct record and his prior altercations with inmates
and officers are probative of, and are offered to prove . . . the state of mind of each of the defendant
officers during the subject incident.” [Doc. 62 at Page ID # 980]. They contend that Defendants’
state of mind/knowledge is relevant to Plaintiff’s excessive force claim because it goes to show
the reasonableness of their conduct:
If the defendant officers were aware of plaintiff’s misconduct
record and prior altercations while incarcerated, and this
information helped to form a basis to assess the threat level that
plaintiff presented, then knowledge of such history is certainly
relevant to the inquiry as to whether the forced used against
plaintiff was reasonable under the circumstances. Thus,
evidence of plaintiff’s misconduct record and prior altercations in
his jail incident reports are probative of material issues other than
character and are admissible under Federal Rule of Evidence 404(b).

[Id. (emphasis added)].
As for the third step, Defendants argue the “misconduct record” is “highly probative” of
their state of mind during the incident, substantially outweighing any prejudice toward Plaintiff.
Plaintiff argues that Defendants’ position is that he attacked them first, and that they were
responding essentially in self-defense. Under those circumstances, he argues, his prior conduct is
irrelevant: either Defendants were acting in self-defense and therefore their actions are “morally
righteous,” or they are lying about self-defense and “it was wrong for them to assault him.” [Doc.
68 at Page ID # 1054].
To establish a claim for the use of excessive force, a pretrial detainee “must only show that
the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v.
Hendrickson, 576 U.S. 389, 396-97 (2015). In determining whether Defendants’ use of force was
objectively reasonable, the jury must consider all of the relevant facts and circumstances known
to them at the time of the encounter. Hanson v. Madison Cnty. Det. Ctr., 736 F. App’x 521, 528
(6th Cir. 2018) (Whether force used was excessive must be determined “from the perspective of a
reasonable officer on the scene, including what the officer knew at the time, not with the 20/20
vision of hindsight.” (citation omitted)). The jury “must also account for the legitimate interests
that stem from [the government’s] need to manage the facility in which the individual is detained,
appropriately deferring to policies and practices that in th[e] judgment of jail officials are needed
to preserve internal order and discipline and to maintain institutional security.” Kingsley, 576 U.S.
at 397 (internal quotation marks and citation omitted).
The “threat reasonably perceived by the officer” is only one consideration “that may bear
on the reasonableness or unreasonableness of the force used.” Id. at 397 (citing Graham v. Connor,
490 U.S. 386, 396 (1989)). There are several additional considerations, including “the relationship
between the need for the use of force and the amount of force used; the extent of the plaintiff's
injury; any effort made by the officer to temper or to limit the amount of force; the severity of the
security problem at issue; . . . and whether the plaintiff was actively resisting.” Id. (citation

omitted).
Considering the foregoing, Defendants’ claim of self-defense does not negate the relevance
of other information the officers were aware of when the altercation with Plaintiff took place as
argued by Plaintiff. The Court finds, however, that any incidents occurring after the August 18,
2018, incident cannot be relevant to Defendants’ state of mind during the incident. As Defendants
do not suggest there is any other non-character reason why these incidents might be relevant, the
Court will GRANT Plaintiff’s motion in limine as to any incidents occurring after August 18,
2018.
Likewise, any incidents of which Defendants were not aware could not have affected

Defendants’ states of mind during the August 18, 2018 altercation. The parties do not address this
issue in their briefing. Plaintiff does attach a 61-page exhibit documenting the incidents listed in
his brief. Of the incidents listed in Plaintiff’s brief that occurred prior to August 18, 2018, only
four appear to have involved Defendants.3 The remaining incidents4 appear not to have involved

3 These include (1) the November 11, 2017 incident, which involved Defendants Collins and Hare
[Doc. 61-4 at Page ID # 934]; (2) the June 24, 2017 incident, which involved Defendant Collins
[id. at Page ID # 940]; (3) the February 10, 2017 incident, which involved Defendant Collins [id.
at Page ID # 944]; and (4) the February 8, 2017 incident, which involved Defendants Collins and
Duke [id. at Page ID # 946-47].

4 These include the January 8, 2018 incident [Doc. 61-4 at Page ID # 920 & 930]; the September
9, 2017 incident [id. at Page ID # 936]; the July 10, 2017 incident [id. at Page ID # 938]; the April
30, 2017 incident [id. at Page ID # 942]; the January 14, 2017 incident [id. at Page ID # 949-57];
any of the Defendants, and Defendants do not address whether they were otherwise aware of the
remaining incidents at the time of the August 18, 2018 altercation. The current record contains no
proof whatsoever about whether and how Defendants were aware of these other incidents.
Accordingly, because Defendants indicate they only plan to offer proof of these incidents to show
their states of mind on August 18, 2018, the Court will HOLD IN ABEYANCE Plaintiff’s motion

as to the incidents not involving Defendants. See Freeman v. Collins, No. 2:08-cv-71, 2014 WL
325631, at *12 (S.D. Ohio Jan. 29, 2014) (excluding evidence of incidents which the defendant
officer was unaware at the time of the alleged prisoner assault, where defendant officer sought to
introduce this evidence “to demonstrate the reasonableness of the threat” the defendant officer
perceived).
The Court will now address the four incidents that involved at least some of the Defendants.
The Court finds the November 11, 2017 incident is probative of at some of the Defendants’ states
of mind at the time of the August 18, 2018 altercation. The incident report indicates officers
searched Plaintiff’s cell and discovered “contraband that resembled a shiv/shank.” [Doc. 61-4 at

Page ID # 934]. The report states the item was “a toothbrush with an inch long metal rod
p[ro]truding from the handle of the toothbrush.” [Id.]. Officers also discovered batteries. It
certainly could be reasonable for Defendants Hare and Collins to be more wary of Plaintiff if they
reasonably believed Plaintiff had previously possessed/concealed an item like the one described.
It seems natural that a guard would think such an inmate could be more dangerous or difficult to
subdue. Bronzino v. Dunn, 558 F. App’x 613, 615 (6th Cir. 2014) (“One relevant consideration is

the July 21, 2016 incident [id. at Page ID # 958]; the May 21, 2016 incident [id. at Page ID # 960];
the December 25, 2015 incident [id. at Page ID # 962]; the November 29, 2015 incident [id. at
Page ID # 964]; the November 3, 2015 incident [id. at Page ID # 965]; the October 11, 2015
incident [id. at Page ID # 969].
the extent of the immediate threat posed by the defendant in light of the totality of the
circumstances confronting the officer. . . . Bronzino’s prior offenses were relevant to the officers’
determination of how much force would be necessary to subdue Bronzino.”); Hubbard v. Gross,
199 F. App’x. 433, 444 (6th Cir. 2006) (“Ruvalcaba stands for the point of law that officers can
introduce evidence of previous encounters with a detainee if previous encounters would be relevant

to show how much force is reasonable in a subsequent arrest.” (citing Ruvalcaba v. City of Los
Angeles, 64 F.3d 1323, 1328 (9th Cir. 1995))). The Court further finds the probative value
outweighs any potential prejudice.
The other three incidents are not obviously relevant for establishing Defendants’ states of
mind in reasonably perceiving Plaintiff as a threat. The June 24, 2017 incident report states
Plaintiff had a verbal altercation with Defendant Collins when Defendant Collins informed
Plaintiff that Plaintiff was getting a cell mate [Doc. 61-4]. Plaintiff “cuss[ed]” Defendant Collins,
but there is no indication whether Plaintiff acted violently. See Freeman, 2014 WL 325631, at
*12 (“Defendant Kaut’s awareness of Plaintiff’s reputation for violence is therefore relevant to the

inquiry regarding the reasonableness of the threat he perceived and, in turn, to the evaluation of
the reasonableness of the force he employed.” (emphasis added) (citing White v. Johnson, No. 90-
1008, 1991 WL 16014, at *1 (6th Cir. Feb. 8, 1991)).
The February 10, 2017 incident report states that Plaintiff was one of a number of inmates
who had written on the walls of their prison cells and failed to clean the writing up despite being
asked to do so. Those inmates were “sent to D Board for refusing to clean it up after asked [sic]
by D Shift.” [Doc. 61-4 at Page ID # 944]. The February 8 incident also may not show any violent
or threatening behavior from Plaintiff. Officers (including Defendants Collins and Duke)
discovered that Plaintiff was in possession of tobacco and “several pieces of brown cable with
copper wiring in the middle of each strand.” [Id. at Page ID # 946]. Defendants have not explained
how the cable may indicate violent or threatening behavior from Plaintiff.
The Court finds these incidents appear to be of limited relevance as far as establishing
Defendants’ states of mind and whether their actions were objectively reasonable during the
August 18, 2018 altercation. There is a risk the jury could interpret the events as showing Plaintiff

had the character of a troublemaker, and that Plaintiff was acting in conformity with that character
trait during the incident with Defendants. Accordingly, the Court finds that proof of these incidents
is more prejudicial than probative, and should be excluded on the current record.
III. CONCLUSION
Plaintiff’s motion in limine [Doc. 61] is GRANTED IN PART, DENIED IN PART,
AND HELD IN ABEYANCE IN PART to the extent set forth herein. If Defendants intend to
offer proof of any conviction or jail incident that the Court has determined should be excluded or
held in abeyance on the current record, Defendants are instructed to first bring the proof to the
Court’s attention outside the presence of the jury.

SO ORDERED.
ENTER:
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10434324. Public record. Not legal advice.