* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 7 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

LIBERATO OLIVAS,

Plaintiff - Appellant,

v. CITY OF HOBBS; STAN DURHAM; DAVE GARTMAN; TONY KNOTT; RODNEY PORTER; ORIN TUBBS,

Defendants - Appellees. No. 01-2266 D.C. No. CIV-99-1304 BB/RLP (D. New Mexico)

ORDER AND JUDGMENT *

Before KELLY and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff-Appellant Liberato Olivas brought this ac tion against the City of Hobbs, New Mexico, and certain police officers purs uant to 42 U.S.C. § 1983. Olivas alleges that he was denied his constitutiona l rights when police arrested him for possession of marijuana after a traffic sto p. After a trial in March 2001, the jury awarded Olivas damages against police offi cer Stanley Durham for unlawfully “planting” evidence on Olivas and wrongf ully arresting him. The district court then granted defendants’ motion for a new trial based on the jury’s apparent misunderstanding of the case and its use o f an improper definition of a term crucial to Olivas’s claim. A second jury retu rned a verdict in favor of Officer Durham. Olivas has appealed, arguing the d istrict court erred in granting the motion for new trial. We have jurisdiction pur suant to 28 U.S.C. § 1291, and we affirm.

I. Olivas was riding in the front passenger seat of a car driven by Jose Pena, when Officer Durham stopped the car for erratic dri ving. Suspecting that Pena had been drinking, Officer Durham had all of the oc cupants step out of the car and waited for a backup officer before beginning ro adside sobriety tests. After backup arrived, Durham performed the tests, which P ena failed. Pena was arrested for driving under the influence and search ed before being placed into a-3-

patrol unit. After finding drug paraphernalia in P ena’s pockets, Officer Durham obtained Pena’s consent to search the car. According to Officer Durham, he searched the car on ly once and found, among other things, a matchbox containing a small q uantity of marijuana on the floor near the front passenger seat. According to Olivas, however, Officer Durham searched the car twice, the second time plan ting the incriminating evidence in order to arrest Olivas. Olivas was arr ested for possession of marijuana, but was acquitted and subsequently filedthis action under § 1983 for deprivation of his constitutional rights. At trial, Olivas laid out the factual predicate forhis claim against Officer Durham. Olivas testified: And then he searched the car one time, didn’t found [ sic ] nothing in there. Then I told [another passenger], “You bette r watch them, watch their hands, see what they are doing, because they might frame you or set you up.” Mr. Stan Durham heard that and he went over to his patrol car, extended his hand, his right hand and got something from the car, and then came back to where I was sitting. I was o n the outside of the vehicle. And he stuck his hands inside of ther e. And he said, “Look what I found.” And then he came over to wher e I was, me and Officer Morales, and he opened that box. Aplt. App. at 3, 4. Later, Olivas answered the fol lowing questions in order to clarify his claim: Q. Your testimony before was that he took that boxout of his squad car and put it in there?-4-

A. Yes. Q. So he planted that evidence? A. He planted it in there. Id. at 6. During trial, jurors submitted the following four q uestions for the court to ask the Hobb’s Chief of Police: (1) “If it was Pen a’s car, why wasn’t he charged with marijuana possession?”; (2) “Was any drug paraphernalia found on Mr. Olivas?”; (3) “Is it standard procedure to char ge with possession whoever sat closest in the car to an illegal substance”; and (4 ) “Was the driver of the car charged with anything other than driving under the influence of alcohol?” Id. at 17-18. Answering these questions, the chief explai ned that Pena was charged with DUI and possession of drug paraphernalia. He was not charged with possession of marijuana because there were no drugs found within his reach. Further, the chief testified that no drug paraphern alia was found on Mr. Olivas, but that generally, without additional evidence inc riminating another, the police will charge the person who is known to have been cl osest to the illegal substance. During closing argument, Olivas’s counsel summarize d the illegal stop and arrest claim. Counsel argued that, as a result of the stop, [Olivas] was charged with possession of marijuana based upon the actions of Officer Durham, who planted evidence in the vehicle. The testimony was that Mr . Olivas had warned [another passenger] that he might be set up by the officer.-5-

Mr. Olivas then testified that he witnessed a match box being placed in the vehicle that had not been in the vehicle pri or to the stop. Aplee. Supp. App. at 22-23. After hearing the evidence, the jury was given its instructions, which were read without objection. The court cautioned the ju ry not to question the wisdom or correctness of any rule of law supplied by the c ourt and to base the verdict “solely upon the evidence in the case.” Id. at 19. The court summarized Olivas’s wrongful arrest claim, stating “Plaintiff alleges t hat defendants planted evidence in order to arrest him, even though no probable cau se existed for such an arrest.” Id. The court then instructed the jury that Olivas cou ld prevail on his § 1983 claim if he proved, by a preponderance of the evide nce, that defendants deprived Olivas of his constitutional rights by “planting ev idence in order to arrest [Olivas] without having probable cause to do so, . . . and/o r subjecting [Olivas] to malicious prosecution.” Id. at 21. In explaining the offense of malicious prosecution, the court instructed the jury that forOlivas to prevail, he must prove, among other things, “that defendants initiated crim inal proceedings by filing charges against [Olivas] without probable cause, an d planted evidence in order to do so.” Aplt. App. at 23. The court further instr ucted, “[p]robable cause means that the facts and circumstances within the arresti ng officer’s knowledge and of which he has reasonably trustworthy information, ar e sufficient to lead a prudent person to believe that the arrestee has committed o r is committing a criminal-6-

offense.” Id. at 21-22. Significantly, the terms “planting evide nce” and “planted evidence” were not defined. During its deliberations, the jury sent the court the following question: Does “planting the evidence on him,” for purposes o f question one, include the situation where Durham actually finds the marijuana in the car, but charges Olivas with possession, even though a reasonably prudent person would have believed Pena was in poss ession of the marijuana, not Olivas, or does moving marijuana fro m one car to another essential to the planting definition? Id. at 24-25. The question sparked a debate over the m eaning of the question and the appropriate court response. Counsel for Olivas commented, “I never had thought of that, to be honest with you,” and stated , “I think that the question is sufficiently ambiguous that we shouldn’t answer it.” Id. at 24, 28. Counsel for Officer Durham argued that the jury was obviously c onfused and, concerned that the jury was considering a legal theory of liability not pled in the case, urged the court to answer the question in order to provide gu idance. Concluding that the jury was confused, but unable to adequately determi ne the precise meaning of the jury’s question, the court sent a reply stating onl y that the term “planting evidence” is not defined by law, and that the jury should rely on the other instructions and common sense to come to a decision. See Aplee. Supp. App. at 24; Aplt. App. at 28-29. The next day, the jury reached a verdict against Of ficer Durham, specifically finding “by a preponderance of the evi dence that Defendant Stanley1 The note was read to the parties after the jury was dismissed and

unavailable for further deliberations or questionin g for possible clarification. -7- Durham violated [Olivas’s] Fourth Amendment rights by planting evidence on him and then wrongfully arresting him.” Aplee. Sup p. App. at 26. Along with the verdict the jury returned a note which read: The Court instructed that “planting evidence on him ” is not defined in the law. We define “planting evidence on him” t o mean assigning possession of the Marijuana to Mr. Olivas rather th an Jose Pena without probable cause. We do not find that Ofc. D urham or any other officer placed, or introduced marijuana into the car driven by Mr. Pena. Aplt. App. at 31. 1 Defendants moved for a new trial based on the langu age in the note accompanying the jury’s verdict. The district court granted the motion, stating that “[t]he verdict, augmented by the jury’s note, demonstrates the jury misunderstood both the factual basis of [Olivas’s] claim and the controlling law.” Id. at 35. The court found that the jury relied on an incorrect definition of “planted evidence” and that the verdict, with the n ote, made it unclear as to whether the jury followed the proper law. At the second trial on the claims against Officer D urham, the jury was instructed that in order to find Officer Durham planted the evidence, it must find that Durham “did not find the marijuana in the vehi cle [Olivas] was riding in.” Aplee. Supp. App. at 32. That jury returned a verd ict for Officer Durham.-8- II. The only issue raised by this appeal is whether the district court erred by granting the motion for a new trial. Appellees con tend that Olivas failed to preserve this particular issue for appeal because h e: (1) did not object to the instructions in the first or second trial; (2) did not clarify the instructions when the jury appeared confused through their note; and (3) failed to move for a new trial or judgment as a matter of law after conclusi on of the second trial. We find no merit to this argument. While the parties and t he court suspected juror confusion during deliberations concerning the term “planting evidence,” until the court disclosed the jurors’ note defining that term , neither party knew of any particular error in the jury’s verdict. Olivas tim ely objected to defendants’ motion for new trial based on the jury’s constructi on of the term, and when that motion was granted Olivas properly waited until aft er final judgment in the second trial to seek review of the district court’s decision. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980) (noting the general rule that orders granting motions for new trials are not final and therefore not immediately appealable); Delano v. Kitch, 663 F.2d. 990, 1001 (10th Cir. 1981) (same); see also Kanatser v. Chrysler Corp., 195 F.2d 104, 105-06 (10th Cir. 1952) (stating that the grant of a new trial, while not immediatel y appealable, is reviewable after final judgment in the second trial). While Olivas’ s failure to object to the-9-

relevant instructions throughout his two trials has undoubtedly precluded appellate review on a number of issues, we conclude that Olivas has preserved for review the question of whether the trial court erre d in granting the motion for a new trial.

III. We review the district court’s decision to grant a motion for new trial for abuse of discretion. Weese v. Schukman, 98 F.3d 542, 549 (10th Cir. 1996). “[We] will reverse the court’s decision only if we have a definite and firm conviction that the [district court] made a clear e rror of judgment or exceeded the bounds of permissible choice in the circumstances.” Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 922 (10th Cir. 1992) (quotations omitted). Mindful of the deference generally afforded a distr ict court in managing its trials, we give the trial judge wide latitude with respect to a motion for a new trial, as that judge is uniquely able to assess the merits of the motion. See id. at 922. This latitude extends to the trial judge’s singularability to evaluate the prejudicial effect of a jury’s reliance on improperdefinitions of essential terms in the instructions. In Mayhue, we affirmed the district court’s decision to grant a new trial because there was credible evidence to support the court’s conclusion that the jury relied on its own, uninstructed defin itions of terms crucial to the cause of action, and because its reliance on those definitions was prejudicial. In2 After the verdict was returned in Mayhue, the court’s staff discovered a

handwritten note in the jury room that contained de finitions of key words used in the jury instructions. The Mayhue court was careful to note that, while the definitions used by the jury in that case were assu med to have come from an actual dictionary, the origin of the defined terms was immaterial to its decision because, “regardless of the private source of the h andwritten definitions, it remain[ed] clear that the jury was presented with e xtraneous prejudicial information.” Mayhue, 969 F.2d at 921 n.4 (further quotation omitted). -10- that case, we stated “[t]he trial judge presided ov er the proceedings from start to finish; thus, he knows better than we how the defin itions might have diverted the jurors’ attention away from the theories presented at trial and the instructions that were to govern their deliberations.” Id.
In Mayhue and cases like it, the jury’s use of uninstructed “ dictionary definitions” increased the possibility of infecting a trial with “extraneous prejudicial” information. 2 Unlike Mayhue, the jury in the present case was not provided with extraneous material. Here the jurors ’ note appears only to evidence their collective reasoning behind the verdict by articulating their own definition of “planting evidence.” Nevertheless, the rationale of Mayhue instructs us in a case, such as this, where the jury attaches its ownmeaning to a term undefined in the instructions and expresses that meaning to the court as the basis for the verdict. The trial court may not ignore it, and if the meaning is incorrect or demonstrates obvious confusion over a term crucial to the resolution of the case, the court may, in its discretion, order a new trial

.-11-

In granting the new trial in the present case, the district court found that the jury note accompanying the verdict in the first tri al evidenced jury confusion and demonstrated that the jury rejected Olivas’s own th eory presented at trial that Officer Durham took incriminating evidence from ano ther location and placed it inside the car. Additionally, the court found the note left the jury’s verdict unclear as to whether the jury followed instruction s on the proper law to be applied to the case. The district court concluded a new trial was requir ed, and there is credible evidence in the record to support the court’s decis ion. We agree with the district court that the jury’s adopted definition, which tra nscended Olivas’s own theory of liability as well as the evidence presented at tria l, demonstrated at least that the jury misunderstood the factual predicate of Olivas’ s claim, and left the verdict unclear as to whether the jury followed the proper law as instructed by the court. Under these circumstances, and given our very narro w standard of review, we conclude that the district court did not abuse its discretion in granting the motion for new trial.-12-

We have carefully considered Olivas’s remaining arg uments on appeal and conclude that they are without merit. The judgmentof the United States District Court for the District of New Mexico is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge