Hinkle v. City of Clarksburg

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GEUNITA M. HINKLE, Administratrix

of the Estate of Bea Wilson,

deceased, as Administratrix, and on

her own behalf; PATRICIA L. WILSON,

individually and for John Wilson

and Adam Wilson, minor children,

who sue by their mother and best

friend; BEA WILSON, JR.; HAROLD W.

WILSON; MILDRED J. WILSON;

HAROLD R. WILSON; GLORIA J.

NORMAN,

Plaintiffs-Appellants,

v.

THE CITY OF CLARKSBURG, WEST

No. 94-1925

VIRGINIA; DAN BOROFF, individually

and as The City Manager of the

City of Clarksburg; CITY OF

CLARKSBURG POLICE DEPARTMENT;

THOMAS C. DURRETT, individually,

and as Chief of Clarksburg Police

Department; L. L. LAKE, a/k/a

Lanny Lake, individually and as a

Clarksburg City Police Officer;

JOHN WALKER, individually and as a

Clarksburg Police Officer and

Supervisory Officer; RONALD

ALONSO, individually and as a

Clarksburg City Police Officer;

CLIFFORD FLOYD, individually and as

a Clarksburg City Police Officer

and Supervisory Officer; GRANT

SMITH, individually and as a

Clarksburg City Police Officer;

MARK WAGGAMON, individually and

as a Clarksburg City Police Officer;

GARY LOWTHER, individually and as

a Clarksburg City Police Officer,

Supervisory Officer and Training

Officer; ROBERT STARKEY,

individually and as a Clarksburg

City Police Officer and Training

Officer; LARRY ROBEY, individually

and as a Clarksburg City Police

Officer and Training Officer;

RAYMOND MAZZA, individually and

as a Clarksburg City Police Officer

and Training Officer; CHARLES

REICH, individually and as a

Clarksburg City Police Officer and

Training Officer; JAMES WATKINS,

individually and as a Clarksburg

City Police Officer and Training

Officer; MICHAEL BROWN,

individually and as a Clarksburg

City Police Officer and Police

Firearms Instructor; JOSEPH K.

LUZADER, individually and as a

Clarksburg City Police Officer and

Firearms Instructor;

2

JOHN DOE; RICHARD ROE; DONALD

DOE; ROBERT ROE, Police Officers,

Police Supervisory Officers, Police

Training Officers and Police

Firearms Instructors of the City of

Clarksburg Police Department, the

identity and number of whom is

presently unknown to the plaintiffs,

individually and in their official

capacities; IRVIN SOPHER, M.D.,

individually and as The Chief

Medical Examiner of The State of

West Virginia Office of Medical

Examinations; JAMES L.

FROST, M.D., individually and as

the Deputy Chief Medical Examiner

of the State of West Virginia Office

of Medical Examinations,

Defendants-Appellees.

Appeal from the United States District Court

for the District of West Virginia, at Clarksburg.

Frederick P. Stamp, Jr., District Judge.

(CA-91-64-C(S))

Argued: December 7, 1995

Decided: April 17, 1996

Before WILKINSON, Chief Judge, and RUSSELL and

NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Russell wrote the opinion, in

which Chief Judge Wilkinson and Judge Niemeyer joined.

_________________________________________________________________

3

COUNSEL

ARGUED: Rocco E. Mazzei, Clarksburg, West Virginia, for Appel-

lants. Daniel C. Cooper, STEPTOE & JOHNSON, Clarksburg, West

Virginia, for Appellees. ON BRIEF: Amy M. Smith, Timothy R.

Miley, STEPTOE & JOHNSON, Clarksburg, West Virginia, for

Appellees.

_________________________________________________________________

OPINION

RUSSELL, Circuit Judge:

Bea Wilson was shot and killed by Clarksburg, West Virginia

Police Officer Lake after a ten-minute standoff during which Wilson,

who was intoxicated and armed with a shotgun, locked himself in his

apartment and threatened to kill anyone who came through the door.

Wilson's estate and family filed this civil rights suit against the City

of Clarksburg and numerous police officers and government officials

contending, inter alia, that Officer Lake used excessive force when

he killed Wilson, and that the police officers subsequently conspired

with government officials to cover-up the wrongdoing.

Appellants, Wilson's estate and family, filed this appeal from the

district court's order entering judgment against them upon a partial

grant of summary judgment and a jury verdict in their civil action.

Finding no reversible error, we affirm the judgment of the district

court.

I.

In the early morning hours of January 25, 1990, Clarksburg police

officers responded to a domestic violence call at Bea Wilson's apart-

ment. Wilson was intoxicated and inside his apartment with his young

son, Adam. Wilson armed himself with a shotgun and ammunition

and threatened to kill anyone who came through the door. The offi-

cers took up position outside the apartment: Officer Alonso stood just

outside the closed apartment door, while Officer Lake manned the

stairs leading upstairs and Officer Smith covered the stair-landing

4

near the front door of the building. Officer Floyd arrived at the scene

and remained on the porch of the building. Officer Alonso attempted

to negotiate with Wilson, who responded by allowing Adam to leave

the apartment.

Because the apartment door remained partially open after Adam

exited, Officer Lake could see Wilson in the apartment with the shot-

gun. When Wilson requested to speak with his wife, Officer Alonso

told him that his wife was near the front door and would speak to him.

The dispute over what happened next forms the basis for this

appeal. Appellants contend that Officer Lake unjustifiably fired a fatal

bullet into Wilson's back. The police officers offer a different version,

contending that Wilson began moving toward the open door with his

right hand extended on the barrel of the shotgun holding several

shells, while his left hand was on the trigger. As Wilson reached the

threshold with his gun, Officer Lake ordered Wilson to stop and drop

the gun. Wilson stopped walking toward the door, but he failed to

drop his gun. Officer Lake again commanded Wilson to drop the gun;

Wilson raised the shotgun as if to shoot, at which point Officer Lake

fired one shot that grazed Wilson's arm, entered his chest, and exited

his back. Wilson spun around from the force of the blow, and he fired

his shotgun into a stuffed chair in the back of the room. Wilson fell

face first away from the door; he was pronounced dead at the scene.

When Dr. Saoud, the County Coroner, arrived at the apartment, he

initially noted that Wilson died from a bullet wound to the back. Doc-

tor Saoud based this conclusion on the relative sizes of the wounds.

He noted the chest wound was larger than the back wound, which

normally indicates that the chest wound is an exit wound. Doctor

Frost, the Deputy Chief Medical Examiner, performed an autopsy and

concluded that Wilson was shot in the chest. Doctor Frost based his

conclusion, in part, on an examination of the fibers from Wilson's

sweatshirt. Fibers surrounding the bullet hole on the front of the shirt

were facing inward, while those on the back faced outward. Accord-

ing to Dr. Frost, the chest wound was relatively larger than the back

wound because the bullet first grazed Wilson's arm, which interrupted

its angle such that it did not hit Wilson's chest straight on.

Six days after the shooting, Officer Walker, the chief investigating

officer for this shooting, removed Wilson's sweatshirt from the prop-

5

erty room and threw it away in the city dumpster. Officer Walker con-

tends the sweatshirt was covered with blood and was beginning to

emit a foul-smelling odor. Although the sweatshirt was evidence of

whether Wilson was shot in the chest or back, Officer Walker saw no

reason to keep it.

Approximately seven months later, Appellants obtained a court

order to exhume Wilson's body. Appellants hired Dr. Wecht, an inde-

pendent medical examiner, to conduct a second autopsy and reach a

conclusion about whether Wilson was shot in the chest or back. Doc-

tor Wecht was unable to examine the chest wound, however, because

the entire wound had been excised. Doctor Wecht testified that the

chest wound was "obliterated by a puckered incision, . . . , closed

tightly by thick, white string." Nonetheless, Dr. Wecht opined that

Wilson was shot in the back.

Appellants' lawsuit alleged a state claim for wrongful death, and

various complaints of civil rights deprivations under 42 U.S.C.

§§ 1983, 1985 & 1986 (1988). Appellants contended that Officer

Lake used excessive force against Wilson, that city, county, and state

officials subsequently conspired to cover-up the truth and prevent

Appellants from seeking redress in a court of law, and that the state

medical examiner violated Appellants' due process rights by dispos-

ing of Wilson's internal organs without first notifying the family.

Appellants also contended Officer Floyd was directly liable for the

shooting under a theory of supervisory liability, that the non-shooting

scene officers were liable, and that the City of Clarksburg ("the City")

was independently liable for providing its officers inadequate train-

ing.

The district court dismissed most of Appellants' claims at summary

judgment, concluding that Appellants failed to establish a genuine

dispute of material fact concerning the existence of a conspiracy to

obstruct justice, potential supervisor liability, or the inadequacy of the

departmental training program. Appellants' claims of excessive force

and wrongful death proceeded to trial. The jury returned a verdict

against Appellants on both counts; this appeal followed.

II.

We first consider Appellants' claims that the district court incor-

rectly granted summary judgment on their claims of non-shooting

6

officer liability, supervisory liability, inadequate training, conspiracy

and denial of due process.

A. Non-shooting officer liability, supervisory liability and

inadequate training

Appellants contend the non-shooting officers at the scene were

independently liable for failing to prevent Officer Lake's use of

excessive force. Complementary to this claim were Appellants' con-

tentions that the City was liable for providing its officers with inade-

quate training to handle the type of domestic situation they

encountered at Wilson's apartment, and that Officer Floyd was liable

as an acting supervisor at the scene.

We see no need to address the merits of these claims because all

are derivative of Appellants' claim that Officer Lake used excessive

force against Wilson, which was rejected by a jury. In the absence of

any underlying use of excessive force against Wilson, liability cannot

be placed on either the non-shooting officers, a supervisor, or the

City. See McLenagan v. Karnes, 27 F.3d 1002, 1008 (4th Cir.) (no

general right to be protected from violence, but even if non-shooting

officer's action or failure to act contributed to use of force, issue of

liability mooted by finding that shooting officer did not use constitu-

tionally excessive force), cert. denied, 115 S. Ct. 581 (1994); Temkin

v. Frederick County Comm'rs, 945 F.2d 716, 724 (4th Cir. 1991)

(holding that a claim of inadequate training cannot be established

under § 1983 absent a finding of a constitutional violation by the per-

son being supervised), cert. denied, 502 U.S. 1095 (1992). We, there-

fore, hold that the propriety of the district court's grant of summary

judgment on these claims was mooted by the jury's verdict in favor

of Officer Lake.

B. Civil conspiracy

Appellants contend the district court erred in dismissing their claim

of civil conspiracy. Appellants claim the police and other government

officials participated in a conspiracy to deny their access to the courts

under 42 U.S.C. §§ 1983, 1985 & 1986. Unlike the above claims dis-

missed at summary judgment, this claim is not mooted by the mere

fact Officer Lake was found not liable for using excessive force

7

against Wilson; Appellees could have conspired to deny Appellants

access to the courts even though Wilson was not the victim of exces-

sive force.

We review the district court's grant of summary judgment de novo.

Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc),

cert. denied, 498 U.S. 1109 (1991). To prevail on a motion for sum-

mary judgment, the moving party must demonstrate the absence of a

genuine issue of any material fact such that the party is entitled to

judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). To determine whether a genuine issue of mate-

rial fact exists, we construe all facts and reasonable inferences drawn

therefrom in favor of the non-moving party. The non-moving party

may not rest on their pleadings alone, but must show that specific,

material facts exist that give rise to a genuine triable issue. See

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving

party may not "create a genuine issue of material fact through mere

speculation or the building of one inference upon another." Beale v.

Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (citing Barwick v. Celotex

Corp., 736 F.2d 946, 963 (4th Cir. 1984)). Thus, summary judgment

is appropriate where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, such as where

the non-moving party has failed to make a sufficient showing on an

essential element of the case that the non-moving party has the burden

to prove. See Celotex Corp. v. Catrett, 477 U.S. at 322.

To establish a civil conspiracy under § 1983, Appellants must pres-

ent evidence that the Appellees acted jointly in concert and that some

overt act was done in furtherance of the conspiracy which resulted in

Appellants' deprivation of a constitutional right (in this case the right

to access the courts). See Hafner v. Brown, 983 F.2d 570, 577 (4th

Cir. 1992).

To satisfy their burden of proof, Appellants contend the Appellees

disposed of evidence probative on the issue of whether Wilson was

shot in the chest or the back. For instance, Appellants point to the fact

that Officer Walker inexplicably disposed of Wilson's sweatshirt and

that Wilson's chest wound was mysteriously excised from his body.

Add to this other facts, such as Dr. Saoud's initial conclusion at the

scene that Wilson was shot in the back, and Appellants contend the

8

only reasonable inference is that the Appellees have conspired to

cover up Officer Lake's use of excessive force.

We disagree with the inferences Appellants ask this court to draw.

Appellants have a weighty burden to establish a civil rights conspir-

acy. While they need not produce direct evidence of a meeting of the

minds, Appellants must come forward with specific circumstantial

evidence that each member of the alleged conspiracy shared the same

conspiratorial objective. See Hafner v. Brown , 983 F.2d at 576-77;

Abercrombie v. City of Catoosa, Okl, 896 F.2d 1228, 1230-31 (10th

Cir. 1990); Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). In other

words, to survive a properly supported summary judgment motion,

Appellants' evidence must, at least, reasonably lead to the inference

that Appellees positively or tacitly came to a mutual understanding to

try to accomplish a common and unlawful plan.

Appellants' evidence failed in this regard. Appellants did not pro-

duce any evidence, either direct or circumstantial, that Appellees

acted in concert to obstruct Appellants' access to the courts. Appel-

lants' evidence did not disclose any communication between Officer

Walker, Officer Lake, Dr. Saoud, Dr. Frost or others that might give

rise to an inference of an agreement to commit any acts, wrongful, or

otherwise. Nor does Appellants' evidence give rise to an inference

that each alleged conspirator shared the same conspiratorial objective.

The problem with Appellants' evidence is not merely that each act

alleged is capable of an innocent interpretation. Rather, the problem

is that Appellants' evidence amounts to nothing more than rank spec-

ulation and conjecture. It does not reveal that any member of this

alleged conspiracy possessed an intent to commit an unlawful objec-

tive.

For instance, Appellants speculate that Officer Walker disposed of

Wilson's sweatshirt in furtherance of this conspiracy. Yet, Appellants

offer no evidence, other than the act itself, that Officer Walker

intended to further a conspiratorial objective. Rather, the undisputed

evidence before the district court was that Officer Walker disposed of

the sweatshirt because it was bloody and beginning to emit a foul-

smelling odor and he thought the investigation over the shooting had

concluded.1 Similarly, the fact that Dr. Saoud initially thought Wilson

_________________________________________________________________

1 While we do not find Officer Walker's conduct probative of his par-

ticipation in a conspiracy, we do not sanction his disposal of highly pro-

bative evidence.

9

was shot in the back when he examined the body at the scene, while

Dr. Frost later confirmed the officers' version of the events after per-

forming an autopsy, is not probative of the existence of a conspiracy

or their participation therein. Again, the undisputed evidence was that

Dr. Saoud initially thought Wilson was shot in the back because of

the relative size of the wounds--the chest wound was larger than the

back wound, a fact consistent with the back wound being the entrance

wound. Upon conducting an autopsy, however, it was clear that the

bullet first grazed Wilson's arm, thereby altering the trajectory and

spin of the bullet, causing it to do more physical damage when it

entered Wilson's chest than would have occurred under normal cir-

cumstances. Additionally, the chest wound was located higher than

the back wound, a fact indisputably consistent with the police offi-

cers' account of Officer Lake's position in relation to Wilson: Officer

Lake was on the stairs outside Wilson's apartment aiming downward

towards Wilson when he fired the fatal shot.2

Appellants next contend that when Wilson's body was exhumed,

the chest wound had been excised and sewn shut. From this, Appel-

lants speculate that Dr. Frost must have removed the tissue surround-

ing the wound in anticipation that Appellants might one day exhume

the body to conduct an independent examination. We find this fact

wholly insufficient to raise a reasonable inference of a conspiracy.

Appellants did not produce any evidence that Dr. Frost was responsi-

ble for this excision. Nor did Appellants produce any evidence, other

than the excision itself, that it was done for some nefarious purpose.

Finally, Appellants argue that the police officers' account of the

shooting is implausible because under that account, Wilson's left

hand was on the trigger, while the undisputed evidence is that Wilson

was right-handed. Again, we do not believe it reasonable to permit an

inference from this fact that Appellees have conspired to cover up

Officer Lake's use of excessive force. In fact, because the undisputed

evidence also established Wilson was holding several shotgun shells

_________________________________________________________________

2 Because of the undisputed evidence of the bullet's trajectory, as con-

firmed by its resting place in the lower part of the back wall of the room,

we accept counsel for Appellees' representation at oral argument that the

only way the physical evidence could be consistent with Officer Lake

shooting Wilson in the back was if Wilson was hanging upside down

from the ceiling with his back to Officer Lake.

10

in his right hand, the reasonable inference is that Wilson had his left

hand on the trigger to expedite any necessary reloading of the gun

with his free right hand.3

While we recognize that direct evidence of a conspiracy is not

always available, we cannot use this fact as an excuse to forgive

Appellants' failure to prove their case. There is a reason why we do

not allow this level of conjecture to determine lawsuits: such adven-

tures of the mind tend to be unreliable. Appellants' conspiracy claim

was ripe for an adverse summary judgment determination; it was

based upon a theory without proof. Appellants' circumstantial evi-

dence was probative of a conspiracy only through speculation and the

piling of inferences; hence, the district court properly dismissed this

claim.4 See Beale v. Hardy , 769 F.2d at 214.

C. Due process

After concluding Wilson's autopsy, Dr. Frost ordered the incinera-

tion of Wilson's internal organs. This order was consistent with an

informal policy of State Medical Examiner Sopher. Appellants con-

tend that the district court erred in granting summary judgment to Drs.

_________________________________________________________________

3 Appellants also contend as further evidence of a conspiracy, that a

burglary was reported at Wilson's apartment on the day after the shoot-

ing. The police incident report makes reference to two white males in

blue jackets entering through the side of the apartment. Appellants spec-

ulate that these might have been police officers entering the apartment

to destroy or alter evidence tending to establish the trajectory of the bul-

let fired from Officer Lake's gun. Appellants' mere speculation about

this incident, however, is not competent evidence of a conspiracy.

4 Our holding that Appellants failed to establish a § 1983 conspiracy to

deny them court access also disposes of their separate claim of conspir-

acy under §§ 1985 & 1986. Appellants contended Appellees conspired to

obstruct the due course of justice with intent to deny to Appellants the

equal protection of the laws. See 42 U.S.C.§ 1985(2). The same evi-

dence Appellants proffered to support their claim of conspiracy to deny

them court access also served as the basis for their claim that Appellees

conspired to obstruct justice. And, our holding renders moot Appellants'

contention that the district court erred in interpreting Bell v. City of

Milwaukee, 746 F.2d 1205 (7th Cir. 1984), as precluding Wilson's sib-

lings from recovery against Appellees for conspiracy to obstruct justice.

11

Frost and Sopher on their claim that their disposal of Wilson's inter-

nal organs after the autopsy without first notifying Wilson's family

members and providing them an opportunity to be heard violated the

Due Process Clause. We reject this claim, finding that to the extent

it is cognizable under § 1983,5 Drs. Frost and Sopher were entitled to

qualified immunity.

The Due Process Clause of the Fourteenth Amendment protects

against deprivations of property without constitutionally adequate

procedures. The Constitution does not enumerate these property

rights, but allows state law to define and establish them. Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). If, however, the

property right asserted is not clearly established such that a reasonable

person would have known of the right, the doctrine of qualified

immunity shields public officials from liability. See Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982) (citing Procunier v. Navarette,

434 U.S. 555, 565 (1978)).

_________________________________________________________________

5 As noted by the district court, deprivations of rights protected by the

Due Process Clause are not recoverable under § 1983 if the state pro-

vides a post-deprivation tort remedy and the state actor was not acting

pursuant to a procedure established by state law. Hudson v. Palmer, 468

U.S. 517, 533 (1984); cf. Brotherton v. Cleveland, 923 F.2d 477, 482

(6th Cir. 1991) (holding that relatives' claim for disposal of decedent's

corneas without due process was cognizable under§ 1983 where defen-

dants acted pursuant to a procedure established by state statute). Dr.

Frost was not acting pursuant to established state law when he disposed

of Wilson's organs; rather, he acted pursuant to a local informal policy.

Hence, as long as West Virginia provides an adequate post-deprivation

remedy, no § 1983 action will lie.

Under West Virginia law, Appellants can file a claim for the mishan-

dling of Wilson's body. See Whitehair v. Highland Memory Gardens,

Inc., 327 S.E.2d 438, 441 (W.Va. 1985). This post-deprivation remedy

is likely sufficient to adequately protect Appellants' property rights such

that their § 1983 claim must fail. See Arnaud v. Odom, 870 F.2d 304, 309

(5th Cir.) (holding that due process claim against doctor for performing

unauthorized experiments on decedent during autopsy was not cogniza-

ble under § 1983 where state law provided a cause of action for tamper-

ing with a corpse), cert. denied, 493 U.S. 855 (1989). However, we do

not dispose of Appellants' due process claim on this ground.

12

Appellants cite Whitehair v. Highland Memory Gardens, Inc., 327

S.E.2d 438 (W.Va. 1985), for the proposition that they have a state-

created property right in Wilson's organs. In Whitehair, the West Vir-

ginia Supreme Court recognized that family members have a quasi-

property right to the body of their decedent "to receive it in the condi-

tion in which it was left, without mutilation; to have the body treated

with decent respect, without outrage or indignity thereto; and to bury

or otherwise dispose of the body without interference." Id. at 441. The

court did not, however, define the exact parameters of this property

right. That case itself, like the cases cited in support of its holding,

involved the mishandling of bodies in relation to the interment pro-

cess. No cases from West Virginia have held that this property right

prevents a medical examiner from disposing of a decedent's organs

after performing an autopsy.

In light of the lack of any West Virginia law extending this right

to circumstances similar to those presented here, we hold that Drs.

Sopher and Frost are entitled to qualified immunity. See Simmons v.

Poe, 47 F.3d 1370, 1385 (4th Cir. 1995) (holding that to determine

whether a right is clearly established, a court should not focus on the

right at its most general level, but rather at the level of its application

to the specific conduct being challenged) (citation omitted). "Officials

are not liable for bad guesses in gray areas; they are liable for trans-

gressing bright lines." Maciariello v. Sumner , 973 F.2d 295, 298 (4th

Cir. 1992), cert. denied, 506 U.S. 1080 (1993). A reasonable person

would not have concluded that the doctors' conduct violated the law;

hence, Appellants' claim was properly dismissed at summary judg-

ment.

III.

Next we examine Appellants' claims that various trial errors preju-

diced their ability to establish their case of excessive force against

Officer Lake. Specifically, Appellants contend the district court erro-

neously admitted a computer-animated videotaped demonstration of

the Appellees' theory of the case; and that the court erroneously

excluded testimony that Officer Walker disposed of Wilson's

sweatshirt, testimony that Wilson's chest wound was excised, and

microscopic slides of tissue taken from Wilson's body during the sec-

ond autopsy.

13

We review a district court's decisions whether to admit or exclude

evidence for abuse of discretion. Hottle v. Beech Aircraft Corp., 47

F.3d 106, 111 (4th Cir. 1995).

A. Videotaped simulation

At trial, Alexander Jason, a Forensic Animation Technologist, tes-

tified for the Appellees to a version of the shooting that was based on

his interpretation of the evidence and was consistent with the police

officers' testimony. To illustrate Jason's testimony, Appellees intro-

duced a computer-animated videotape. The videotape depicted Wil-

son's apartment complex, the officers' position in relation to the open

door to Wilson's apartment, and a step-by-step account of the inci-

dent. It showed an animated version of Officer Lake on the stairwell

outside the apartment aiming his gun toward Wilson, who was mov-

ing toward the open door. It depicted Wilson raising his shotgun

toward the doorway, Officer Lake firing the fatal shot, Wilson's body

spinning around from the force of the shot, and his shotgun discharg-

ing into the stuffed chair in the back of the room. It then showed how

the officers' version of the event was consistent with the physical evi-

dence by concluding with a depiction of the trajectory of Officer

Lake's bullet in-line with the wounds to Wilson's forearm, chest,

back, and the bullet hole in the wall of the room.

Appellants assign as error the district court's denial of their motion

in limine to suppress this evidence. Appellants contend the videotape

was inadmissible because it was experimental evidence that attempted

to recreate the events but failed to reflect conditions substantially sim-

ilar to those existing at the time of the shooting.

Typically, demonstrations of experiments used to illustrate princi-

ples forming an expert's opinion are not required to reflect conditions

substantially similar to those at issue in the trial. Gladhill v. General

Motors Corp., 743 F.2d 1049, 1051 (4th Cir. 1984). We have, how-

ever, recognized the unique problems presented by the introduction of

videotapes purporting to recreate events at the focus of a trial. In

Gladhill, we noted the potential prejudicial effect of such evidence

because the jury viewing a recreation might be so persuaded by its

life-like nature that it becomes unable to visualize an opposing view-

point of those events. Hence, we established a requirement that video-

14

taped evidence purporting to recreate events at issue must be

substantially similar to the actual events to be admissible.

Obviously, the requirement of similarity is moderated by the sim-

ple fact that the "actual events" are often the issue disputed by the par-

ties. Nonetheless, to the extent the conditions are not a genuine trial

issue, they should be reflected in any videotaped recreation. In

Gladhill, for instance, the plaintiff crashed his car into a utility pole.

He sued General Motors in a products liability action, contending that

the brakes were faulty. The parties agreed that at the time of the acci-

dent it was night, and plaintiff was driving down a hill at a sharp

curve in the road when he struck the utility pole. General Motors

introduced a videotaped recreation of the accident that was conducted

at a test facility on a flat, straight, asphalt surface in daylight by an

experienced driver. We rejected the use of this videotape, holding that

"when the demonstration is a physical representation of how an auto-

mobile behaves under given conditions, those conditions must be suf-

ficiently close to those involved in the accident at issue to make the

probative value of the demonstration outweigh its prejudicial effect."

Id. at 1052; see also Chase v. General Motors Corp., 856 F.2d 17, 19-

20 (4th Cir. 1988).

We have not previously applied the requirement of"substantial

similarity" to computer-animated videotapes that purport to recreate

events at issue in trial. We fail to see a practical distinction, however,

between a real-life recreation and one generated through computer

animation; both can be a particularly powerful recreation of the

events. Nonetheless, we need not explicitly decide this issue because

we are satisfied the jury here fully understood this animation was

designed merely to illustrate Appellees' version of the shooting and

to demonstrate how that version was consistent with the physical evi-

dence. The district court carefully instructed the jury on this point:

[t]his animation is not meant to be a recreation of the events,

but rather it consists of a computer picture to help you

understand Mr. Jason's opinion which he will, I understand,

be giving later in the trial. And to reenforce the point, the

video is not meant to be an exact recreation of what hap-

pened during the shooting, but rather it represents Mr.

Jason's evaluation of the evidence presented.

15

Although there is a fine line between a recreation and an illustration,

the practical distinction "is the difference between a jury believing

that they are seeing a repeat of the actual event and a jury understand-

ing that they are seeing an illustration of someone else's opinion of

what happened." Datskow v. Teledyne Continental Motors Aircraft

Prods., 826 F. Supp. 677, 686 (W.D.N.Y. 1993). The jury understood

that the very thing disputed in this trial was the condition under which

the shooting occurred. In light of this fact and the court's cautionary

instruction, there was no reason for the jury "to credit the illustration

any more than they credit the underlying opinion." Id.

We are convinced Appellants suffered no undue prejudice as a

result of this computer animation, and we will not disturb the broad

discretion afforded trial judges in this area. In reaching this holding,

however, we are not unmindful of the dramatic power of this type of

evidence; hence, we encourage trial judges to first examine proposed

videotaped simulation evidence outside the presence of the jury to

assess its foundation, relevance, and potential for undue prejudice.

B. Wilson's sweatshirt and chest wound

At trial, Appellants sought to introduce evidence that Officer

Walker inexplicably disposed of Wilson's sweatshirt within days of

the shooting. Appellants also sought to introduce evidence that when

they exhumed Wilson's body to perform a second autopsy, the chest

wound appeared to have been completely excised. The district court

granted Appellees' motions in limine to exclude this evidence, hold-

ing that it was no longer relevant in light of the dismissal of Appel-

lants' conspiracy claims and that its admission would likely result in

unfair prejudice.

Appellants contend the district court abused its discretion in this

regard because the evidence was relevant to their claims of wrongful

death and excessive force. According to Appellants, the fact the

sweatshirt was disposed of was probative on whether Wilson was shot

in the back because the fibers around the bullet holes served as a par-

tial basis for Dr. Frost's opinion that Wilson was shot in the chest.

Hence, Officer Walker's destruction of this evidence raises an infer-

ence that the sweatshirt did not actually support Dr. Frost's conclu-

sion. Similarly, Appellants contend Wilson's excised chest wound

16

was relevant to the excessive force and wrongful death claims

because it impaired Appellants' ability to conduct an adequate inde-

pendent second autopsy on the body. Appellants infer that Appellees

excised the chest wound before interment so that Appellants would be

unable to disprove the finding that Wilson was shot in the chest.

We find no abuse of discretion with respect to either of these evi-

dentiary rulings. In fact, both items of evidence were properly

excluded for the same reason Appellants' civil conspiracy claim was

properly dismissed--the fact Appellants would like to have proved

through admission of the evidence could be reached only through

speculation and the piling of inferences. Appellants offer no evidence

that Officer Walker was attempting to hide evidence when he dis-

posed of the sweatshirt, that he had any idea the shooting was an

issue, or that he was aware Dr. Frost had partially relied on the

sweatshirt in reaching the conclusion that Wilson was shot in the

chest. Similarly, evidence that the chest wound was excised was pro-

bative only of whether Wilson was shot in the back through pure

speculation. Appellants offered no evidence that Dr. Frost was

responsible for this act, or that it was done to hide evidence. We

accordingly find no error in the district court's exclusion of this spec-

ulative evidence.

C. Tissue slides

Appellants contend the district court abused its discretion in disal-

lowing introduction of tissue slides prepared by Dr. Wecht in con-

junction with the second autopsy. We disagree. The district court had

previously ordered discovery to be completed by July 31, 1993. By

this date, Appellants were obligated to turn over any tissue samples

taken by Dr. Wecht during the second autopsy. During his deposition

on June 22, 1992, Dr. Wecht testified that he had taken tissue samples

from Wilson's body, but that they were accidently thrown away dur-

ing a cleaning of the laboratory. Doctor Wecht testified further that

it was his opinion Wilson was shot in the back. Doctor Wecht did not

state that the tissue samples formed the basis for his opinion. After the

deposition, but prior to the discovery deadline, Appellees were

advised that Dr. Wecht had located the slides containing the tissue

samples. Appellees conducted a second deposition of Dr. Wecht. This

time Dr. Wecht testified that the slides were an important basis for his

17

opinion that Wilson was shot in the back. It took Appellants nearly

three more weeks, which was approximately one month prior to trial,

to turn the slides over to Appellees.

The district court suppressed this evidence because it was "late-

discovered" and not turned over until after the discovery deadline.

Appellees contend this ruling was proper because they were not given

enough time to conduct their own testing on the tissue samples.

Appellants argue that Appellees had ample time to test the slides, but

merely chose not to. District courts enjoy nearly unfettered discretion

to control the timing and scope of discovery and impose sanctions for

failures to comply with its discovery orders. Mutual Federal Sav. &

Loan Ass'n v. Richards & Associates, Inc., 872 F.2d 88, 92 (4th Cir.

1989). We refuse to interfere with this discretion; Appellants had

ample opportunity to disclose this evidence to Appellees before the

July 31, 1993 deadline.

IV.

We last turn to Appellants' contention that the accidental admis-

sion of evidence at trial concerning the missing sweatshirt prejudiced

their case such that their motion for a new trial should have been

granted. Because Wilson's sweatshirt was thrown away by Officer

Walker, the district court disallowed any evidence at trial relating to

the sweatshirt. Hence, the Appellees were unable to introduce testi-

mony concerning the direction of the fibers surrounding the front and

back bullet holes, and Appellants could not comment on the fact Offi-

cer Walker had disposed of this potentially important piece of evi-

dence.

At the close of trial, prior to the jury's deliberation, both sides were

given an opportunity to examine the evidence before it was submitted

to the jury. Appellants apparently missed a portion of Dr. Frost's

autopsy reports in which the doctor referenced the sweatshirt. It

should have been redacted in accordance with the district court's pre-

vious order. In the report, Dr. Frost described the fibers surrounding

the bullet hole in the back of the sweatshirt as everted. After the jury

received the evidence, it sent one question to the court asking for a

definition of the word "everted." The district court subsequently pre-

pared a curative instruction to the effect that the jury was not to con-

18

sider any evidence relating to the sweatshirt. Neither party objected

to this solution, and the instruction was presented to the jury. Appel-

lants thereafter raised this issue as part of their motion for a new trial.

Appellants contend they were entitled to a new trial because of the

prejudice caused by the jury's improper consideration of the unredac-

ted portion of Dr. Frost's report. Appellees respond that Appellants

waived any complaint about submission of the sweatshirt because

they equally shared the responsibility to see that unadmitted exhibits

were not sent to the jury deliberation room. See United States v.

Strassman, 241 F.2d 784, 786 (2d Cir. 1957). Even assuming this

issue was properly preserved for review,6 we reject it as meritless.

Where a jury is exposed to unadmitted evidence, a presumption of

prejudice arises. United States v. Brooks, 957 F.2d 1138, 1142 (4th

Cir.), cert. denied, 505 U.S. 1228 (1992); United States v. Greene,

834 F.2d 86, 88 (4th Cir. 1987); United States v. Barnes, 747 F.2d

246, 250 (4th Cir. 1984). The burden falls upon the government to

demonstrate the absence of prejudice. Brooks, 957 F.2d at 1142. The

district court's decision to deny a motion for a new trial on this basis

is reviewed for abuse of discretion. Greene, 834 F.2d at 88.

We find no abuse of discretion here because it is evident the district

court took reasonable steps to alleviate any potential prejudice to

Appellants. The court took suggestions from both parties concerning

the proper course to mitigate the impact of admission of this evidence,

and ultimately gave a curative instruction that was agreed to by attor-

neys for both parties. The instruction specifically told the jury it was

not to consider any evidence relating to the sweatshirt. Juries are pre-

sumed to follow instructions provided them, United States v. Thorton,

1 F.3d 149, 156 (3d Cir.), cert. denied, 114 S. Ct. 483 (1993), and the

_________________________________________________________________

6 Apart from the fact Appellants were given an opportunity to inspect

the exhibits before they were submitted to the jury, Appellants likely for-

feited review of this issue by failing to seek a mistrial during delibera-

tions when the mistake was discovered. Cf. United States v. Greene, 834

F.2d 86, 88 (4th Cir. 1987) (motion for a new trial appropriate mode to

preserve issue where mistake of sending unadmitted evidence to jury

deliberation room was not discovered until after jury returned its ver-

dict).

19

mere fact the jury found for Appellees is not evidence that it ignored

this curative instruction. We, therefore, reject Appellants' claim.

V.

Accordingly, the order of the district court granting summary judg-

ment in part, and the entering of judgment for the Appellees after a

jury trial on Appellants' remaining claims is

AFFIRMED.

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