United States Court of Appeals

For the Eighth Circuit

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No. 16-1806

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Henry M. Davis

lllllllllllllllllllll Plaintiff - Appellant

v.

Michael White, in his individual capacity; City of Ferguson, Missouri; John

Beaird; Kim Tihen

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: January 11, 2017

 Filed: June 9, 2017

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Before RILEY, Chief Judge , LOKEN, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

The Honorable William Jay Riley stepped down as Chief Judge of the United

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States Court of Appeals for the Eighth Circuit at the close of business on March 10,

2017. He has been succeeded by the Honorable Lavenski R. Smith.
Henry M. Davis sued the City of Ferguson and three police officers, alleging

they beat him while he was handcuffed. See Davis v. White, 794 F.3d 1008 (8th Cir.

2015). His claims were tried to a jury after the district court denied his Batson

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challenge to the officers’ peremptory strike of the only remaining African-American

venireperson, refused to give an adverse inference jury instruction for spoliation of

evidence, admitted hospital records from the night of the incident, and excluded

emails sent by an officer not sued. The jury found for the officers. Davis appeals the

pretrial rulings. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Between 3:00 and 4:00 am on September 20, 2009, Davis was arrested for

driving while intoxicated and taken to the Ferguson jail. An altercation occurred as

he was being taken to a cell. Additional officers arrived as backup.

Davis claimed Officer Michael White pushed him into the cell and slammed

him against the back wall. After complying with instructions to lie down and put his

hands behind his back, he was handcuffed and beaten.

According to the officers, Davis was aggressive and resisted. White tried to

control the situation, using surprise, by pushing Davis into the cell. Davis grabbed

White, punched him in the face, broke his nose, then held on as White pushed him

against the back wall of the cell, yelling at Davisto let go and using defensive strikes. 

Davis and White fell to the ground, along with Officer John J. Beaird, on top of

Officer Kim R. Tihen. Tihen hit Davis on the back of his head with her handcuffs

from the bottom of the pile. The officers eventually placed Davis in handcuffs.

The Honorable Nanette A. Baker, United States Magistrate Judge for the

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Eastern District of Missouri, to whom the case was referred for final disposition by

consent of the parties pursuant to 28 U.S.C. § 636(c)(3).

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Davis suffered a concussion and scalp laceration. When the EMTs arrived,

Davis was uncooperative and belligerent toward them, so they could not thoroughly

assess him. Davis wastaken to a hospital for treatment. He refused to be treated until

hospital staff took photos of his injuries. According to Beaird, Davis continued to be

belligerent toward the hospital staff, “cussing and screaming” at them and refusing

treatment. He returned to the Ferguson jail without being treated.

The cells at the jail are under video surveillance. In September 2009 the

system used video tapes to record each 24-hour period starting at 7:00 am. The tapes

were marked with the day the recording began. Because the incident occurred before

7:00 am, it was on the tape marked “9/19/09” rather than the one marked “9/20/09.”

When the officer in charge of the video system, Sergeant William J. Mudd, was told

to preserve the recording of the incident, he preserved only the tape marked

“9/20/09,” so the tape containing video of the incident was not preserved and most

likely was recorded over. Mudd testified it did not occur to him to preserve the

September 19 tape in order to get the video from the early morning of September 20.

During jury selection, the officers used a peremptory strike on the only

remaining African-American venireperson. Davis made a Batson challenge, which

the district court denied.

At trial, the court admitted hospital records over Davis’s objections. The

district court also excluded racist emails sent and received by Mudd, which Davis

offered as proof of Mudd’s bias against African-Americans.

Davis moved to sanction the officers for spoliation of evidence, requesting an

adverse inference instruction based on the failure to preserve the correct tapes. The

district court denied the request.

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The jury returned a verdict for the officers. Davis appeals the district court’s

ruling on his Batson challenge, the admission of the hospital records, the exclusion

of Mudd’s emails, and the denial of an adverse inference instruction.

II.

This court reviews a Batson challenge ruling for clear error, deferring to the

trial court’s ruling “in the absence of exceptional circumstances.” Kahle v. Leonard,

563 F.3d 736, 739 (8th Cir. 2009), quoting Snyder v. Louisiana, 552 U.S. 472, 477

(2008). A Batson challenge is evaluated in three steps:

First, the [challenger] must make a prima facie case that the [ ] strike

was motivated by race; second, the [striking party] must offer a

race-neutral reason for the strike; and third, taking into account all the

evidence, the trial court must find whether or not the [striking party] was

motivated by purposeful discrimination.

Id. “[T]he ultimate burden of persuasion . . . rests with” the challenger. See Rice v.

Collins, 546 U.S. 333, 338 (2006) (internal quotation marks omitted).

The third step “involves an evaluation of the [striking party]’s credibility, and

the best evidence of discriminatory intent often will be the demeanor of the attorney

who exercises the challenge.” Snyder, 552 U.S. at 477 (internal quotation marks and

alterations omitted). The trial court plays a pivotal role in determining the credibility

and demeanor of the striking party, which are “peculiarly within a trial judge’s

province.” Id. (internal quotation marks omitted).

Davis challenged the officers’ strike of the only remaining African-American

venireperson. He made a prima facie showing that this strike was racially motivated

because he is African-American and all of the officers are Caucasian. The officers

offered a race-neutral rationale that the district court found credible: the venireperson

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worked as a security officer in a nursing home and the officers’ attorney stated that

he was concerned “she would confuse or compare her use of force with the use of

force that’s appropriate in this case.” Attempting to overcome this explanation, Davis

argues that the officers’ attorney questioned the African-American venireperson

differently fromother venirepersons with law enforcement orsecurity experience and

that officers generally want jurors with law enforcement experience—both

demonstrating the stated race-neutral reason was pretextual.

The district court found the race-neutral explanation credible. This

determination is “peculiarly within a trial judge’s province.” Id. (internal quotation

marks omitted). The district court did not clearly err in finding that Davis failed to

sustain his burden of persuasion.

III.

The admission or exclusion of evidence is reviewed for abuse of discretion;

evidentiary rulings are reversed only for “a clear and prejudicial abuse of discretion.”

Quigley v. Winter, 598 F.3d 938, 946 (8th Cir. 2010).

A.

Davis argues that the hospital records were improperly admitted because they

are improper character evidence and impermissible hearsay. He claims that evidence

containing statements by hospital staff that Davis was belligerent and noncompliant

wasimproper character evidence—submitted to show that because he acted that way

at the hospital, he acted similarly when pushed into the cell. He also argues the

statements are impermissible double hearsay because they are records of hospitalstaff

recounting statements he made.

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Similar evidence—that Davis was belligerent and did not cooperate with

medical treatment—was admitted at trial through Beaird’s testimony and EMT

records. Although Davis states that “[t]he improper material . . . was extremely

prejudicial to [Davis] and affected the jury’s verdict,” he offers no explanation why

this particular account of his behavior was prejudicial in light of the other similar,

cumulative, evidence.

Where evidence does not have a substantial influence on the verdict because

it is cumulative, there is no prejudice. See McDowell v. Blankenship, 759 F.3d 847,

852 (8th Cir. 2014). “Improper admission of evidence which is cumulative of matters

shown by admissible evidence is harmless error.” Wilson v. City of Des Moines, 442

F.3d 637, 644 (8th Cir. 2006). “[I]n the context of the whole trial, the admission of”

the hospital records “did not have a substantial influence on the verdict,” and any

error by the district court in admitting them was harmless. See McDowell, 759 F.3d

at 853 (internal quotation marks omitted).

B.

Federal Rule of Evidence 403 allows a district court to exclude evidence “if its

probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” This court “give[s]

great deference to the district court’s Rule 403 determinations” and “will not

substitute its judgment for the judgment of the district court” absent an abuse of

discretion. United States v. Battle, 774 F.3d 504, 512-14 (8th Cir. 2014).

Davis argues the district court erred in excluding evidence of racist emailssent

and received by Mudd. The district court addressed the relevance and risk of

prejudice posed by admitting the emails. It questioned their relevance because Mudd

was not present for the alleged use of excessive force—his only involvement was the

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failure to preserve the video recording of the altercation after the fact. Though

Mudd’s bias might be relevant to the credibility of his excuse for not preserving the

correct video, the district court noted that the excessive force, not the retention of

potential evidence, was the central trial issue. The district court also determined that

the evidence would be unfairly prejudicial, and that even a limiting instruction would

be ineffective. Given the minimal probative value of Mudd’s bias and the potential

unfair prejudice to the defendant officers—who were not associated with the

emails—the district court did not abuse its discretion in excluding the emails.

IV.

A district court’s “decision on whether to impose sanctions,” and its “decision

to give a particular instruction” are reviewed for abuse of discretion. Acciona

Windpower N. Am., LLC v. City of W. Branch, Iowa, 847 F.3d 963, 969 (8th Cir.

2017); Burris v. Gulf Underwriters Ins. Co., 787 F.3d 875, 879 (8th Cir. 2015).

An adverse inference instruction for spoliation of evidence requires “a finding

of intentional destruction indicating a desire to suppress the truth.” Burris, 787 F.3d

at 879. This is a high bar because “[a]n adverse inference instruction is a powerful

tool”; it “brands one party as a bad actor” and “necessarily opens the door to a certain

degree of speculation by the jury, which is admonished that it may infer the presence

of damaging information.” Morris v. Union Pac. R.R., 373 F.3d 896, 900 (8th Cir.

2004). The district court “has substantial leeway to determine intent through

consideration of circumstantial evidence,witness credibility, motives ofthe witnesses

in a particular case, and other factors.” Id. at 901.

Davis argues:

Despite receiving a written request from Sergeant Ballard and a verbal

request from Officer Beaird to preserve the September 20, 2009 video

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from the jail surveillance cameras, it is inconceivable that Sergeant

Mudd, who was the Communications Supervisor, would only preserve

the video tape thatstarted at 7:00 a.m. on September 20, 2009. Sergeant

Mudd completely failed to preserve 7 of the 24 hours of September 20,

2009. This can be no mistake.

The district court heard testimony from Mudd about his failure to preserve the correct

tape. It found credible his testimony that “[i]t never crossed my mind to save the

earlier tape.” The district court determined that the failure to preserve the proper tape

was a negligent, not malicious, error. The district court’s refusal to sanction the

officers with an adverse inference instruction was not an abuse of discretion.

* * * * * * *

The judgment is affirmed.

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