UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF MICHIGAN 

 SOUTHERN DIVISION 

 

MARK CHOMOS, 

Plaintiff, 

 

v. Case No. 15-10103 

WOODHAVEN POLICE DEPARTMENT, 

et al., 

 Defendants. 

 / 

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 

MOTION TO EXCLUDE AUDIO EXHIBITS 

After receiving notification that there were some evidentiary disputes between the 

parties in advance of trial, the court conducted an on the record telephone conference in 

this matter on August 13, 2018. During the conference, Plaintiff orally moved to exclude 

audio recordings on Defendants’ exhibit list. (Dkt. #207.) Specifically, Plaintiff moved to 

exclude recordings of two telephone calls made to the Woodhaven Police Department; 

each relates to Plaintiff’s presence at Millie’s Family Diner and the subsequent dispatch 

of Woodhaven Police Officers. Defendants have submitted the recordings to the court 

for in camera review. Having listened to the recordings, the court will grant in part and 

deny in part Plaintiff’s motion. 

In the first recording, a caller inquires of the answering Lieutenant whether it is 

safe to leave his house—the caller explains that an officer driving through the caller’s 

neighborhood told residents to stay inside because the police were pursuing someone. 

He asks whether the Lieutenant knows whether they now have the “all clear” to go 
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outside. The Lieutenant responds that the officers “caught him about two minutes ago in 

a different area,” so the caller can safely leave his house. 

The court will exclude this recording as irrelevant. The recording does not tend to 

make any fact at issue in this case more or less likely to be true—it explains nothing 

about the officer’s pursuit of Plaintiff or his capture. It is, in other words, both 

unimportant and uninformative, and it will be excluded. 

 In the second recording (which temporally occurred before the first), an employee 

at Millie’s Family Diner informs the answering Lieutenant that there is a man (Plaintiff) 

who will not leave the restaurant. She says that the waitresses have asked the man 

“numerous times” not to come to the restaurant, that the man just got out of prison, and 

that she does not trust him. After the caller gives a physical description of Plaintiff, the 

Lieutenant tells her that he will send officers “right away.” Defendants have submitted 

an edited version of the phone call that omits the reference to Plaintiff’s recent release 

from prison. 

 Plaintiff says this recording is inadmissible hearsay. The court disagrees. The 

recording is not being used to prove the truth of the matter asserted—it is not being 

used to prove that there was a man at Millie’s Family Restaurant that would not leave. 

Rather, the recording is offered for its effect on the listeners: the answering Lieutenant 

and the officers to whom the information was eventually conveyed. Their understanding 

of the situation is undoubtedly relevant to whether their use of force was objectively 

reasonable. See Graham v. Connor, 490 U.S. 386, 389 (1989). The information that 

was conveyed to them—whether truth or falsehood—bears on that understanding. 
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 True, Defendants will need to offer evidence that the information was, indeed, 

relayed to the officers that were dispatched to Plaintiff’s location; if the information was 

never relayed, it could not have informed the officers’ understanding of reasonable 

force. But the court may provisionally admit the phone call on the condition that 

Defendants introduce evidence that the answering Lieutenant conveyed the substance 

of the call to the individual officers. See Fed. R. Evid. 104(b). 

 The court will order that the edited version of the phone call—the one that omits 

reference to Plaintiff’s recent release from prison—be the one presented at trial. The 

court has already determined that Plaintiff’s conviction for retail fraud (the conviction for 

which he was released prior to this incident) is inadmissible unless Plaintiff opens the 

door to its introduction. (See Dkt. #205.) Reference to that conviction is thus properly 

excluded from this phone call as well. Accordingly, 

 IT IS ORDERED that Plaintiff’s Oral Motion to Exclude Audio Exhibits (Dkt. #207) 

is GRANTED IN PART and DENIED IN PART. It is GRANTED in that the first phone 

call (of a man asking whether it is safe to leave his house) will be excluded. It is 

DENIED in that the second, edited phone call (of the Millie’s employee) is admissible 

pending adequate foundation. 

s/Robert H. Cleland / 

ROBERT H. CLELAND 

UNITED STATES DISTRICT JUDGE 

Dated: August 15, 2018

I hereby certify that a copy of the foregoing document was mailed to counsel of record 

and/or pro se parties on this date, August 15, 2018, by electronic and/or ordinary mail. 

s/Lisa Wagner / 

Case Manager and Deputy Clerk 

(810) 292-6522