USCA1 Opinion

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit
For the First Circuit

____________________

No. 96-1223

ADALBERTO LIO a/k/a ALBERTO LIO,

Plaintiff, Appellant,

v.

WALTER F. ROBINSON, JR., ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

___________________

____________________

Before

Lynch, Circuit Judge,

_____________

Aldrich and Bownes, Senior Circuit Judges.

_____________________

____________________

Edgar L. Kelley for appellant.

_______________
Mary Jo Harris,
______________

Special Assistant Corporation Counsel, with

Merita A. Hopkins, Corporation Counsel, and

__________________
were on brief for appellees.

Kopelman and Paige, P

_____________________

____________________

April 29, 1997

____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.

Plaintiff-appellant

____________________

Adalberto

his

42

Lio appeals from a jury finding of no liability in

U.S.C.

action, and

1983

action,

Massachusetts tort

police officers and

Massachusetts Civil

claim

against seven

the City of Boston.1

appeal

concern

evidentiary

court.

We affirm the rulings.

rulings made

Rights

Boston

The only issues on

by

the

district

I.
I.

THE EVIDENCE
THE EVIDENCE
____________

We rehearse so much of the evidence as is necessary

to understand the evidentiary rulings that are the subject of

this appeal.

in

Our review of the evidence is

the light most favorable

made, of course,

to the verdicts.

Newell P.R.,
____________

Ltd. v. Rubbermaid, Inc., 20

_________________________

Plaintiff

F.3d 15, 18

was patrolman.

Starting in 1982,

began exercising to build up his body.

Boston area.

gym in Dedham,

Detective

In the

Marquardt

In

selling drugs

was using a

April of 1991,

(one of

officer of the Dedham

-- steroids

he

He used various gyms

spring of 1991, he

Massachusetts.

Leonard

informed by an

Lio was

1994).

Lio had been a Boston police officer since June of

1979; his designation

in the

(1st Cir.

the

Sergeant-

defendants)

was

Police Department that

-- at

a gym

in Dedham.

____________________

1.

The original

Massachusetts,
judgments

defendants
and

two of

were granted

included the
its

in favor

police
of

Town

of

officers.

Dedham,
Summary

these defendants.

appeal has been taken from those judgments.

No

-22

Marquardt

contacted

Saia (also a

motion.

supervisor, Superintendent

defendant), and

a sting operation

Joseph

was set

in

There was to be a "buy-bust."

John

Marquardt

his

and

defendant) for

Antoniou, who had been arrested previously by

Detective

Walter F.

Robinson,

selling drugs, agreed to

Jr. (another

purchase a quantity

of steroids from Lio.

the gym.

Police

in

He was

Antoniou knew Lio from meeting him

one of

the persons from

Department received information

steroids.

Antoniou was

whom the

at

Dedham

that Lio was dealing

given $650 by

Marquardt to make

the "buy."

On

May 23,

1991,

Marquardt was

Dedham Police Department that

to make the "buy" at

Pantry

informed by

Antoniou had arranged with Lio

11:30 p.m. that night at the

(a convenience store) on Hyde

informed Detectives

Robinson

and

(another

defendant), who were

on duty,

to be

prior

the "buy."

to the "buy."

Marquardt

Kenneth

Beers

available to

met with Antoniou

He emphasized

White Hen

Park Avenue in Boston.

Marquardt

observe

the

in Dedham

that the "buy" had to be

visible

officers.

so

it could

be

observed

by

the watching

police

Antoniou was told to signal that the "buy" was in

progress by running his fingers through his hair.

The "buy"

Lio, who

was not

was in police

before entering and

made at

the White

Hen Pantry.

uniform, talked briefly

to Antoniou

after leaving the store.

-33

Antoniou's car

followed

police

Lio's

car down

officers

kept

situation by radio.

parked

about

observing

twenty

officers,

Hyde Park

their

Avenue.

superiors

Lio's cars.

meet in

he and

feet

from

Detectives

the

Beers

Robinson could see

of

Street and

intersection.

and

Robinson,

Beers

the

The

were

parked his

both Antoniou's

and

They saw both men get out of their vehicles and

the middle

Antoniou's

apprised

The two proceeded to Austin

following in Detective Beers' private car.

car so that

The observing

of the

chest, which

street.

Antoniou

Lio

thrust a

threw into

bag onto

the passenger

side of his automobile, a white Corvette convertible with the

roof back.

When the

bag was subsequently

examined by

the

police, it

was found

to

contain packages

of steroids

and

hypodermic needles.

After the "buy" had been made, Beers drove

to

Austin Street,

angle

which was

across the street so

forward.

Beers then

one-way, and

as to block

approached Lio.

Beers kicked and punched him.

he could get back into his

Lio

hit him

hard in

parked it

a difference

According to Lio,

He pushed Beers away so

car and leave.

the midsection

at an

vehicles from going

There is

in the testimony as to what happened next.

his car

that

Beers claims that

and knocked

him down.

Beers claims that he put Lio under arrest for assaulting him.

Things then happened quickly. Lio got into his car,

a blue

Toyota coupe, and began

to back up at

a high speed.

-44

Beers

hung onto

the

side of

suddenly and he was thrown off.

at Detective Robinson.

at

Lio.

His shot

car until

it

stopped

Lio started forward straight

Robinson jumped to the side and fired

blew out

driver's side of the car.

in reverse.

Lio's

the front

side window

Lio then stopped and put

on the

the car

Both Beers and Robinson fired at the rear end of

Lio's car.

the

Two bullet holes were found in the rear bumper of

car.

Lio managed to back

of Austin and West Streets.

his car into the intersection

He turned into West Street.

Superintendent Robert

night

He

Faherty (another defendant),

commander of the Boston Police Force, was in the area.

heard a

radio

transmission by

"Austin toward West."

gunshots and saw

dark sports car

state

approaching at

Faherty, thinking that there had

drive-by shooting, gave chase.

Parkway.

police officer

As he turned onto West Street he heard

a small

high rate of speed.

been a

He followed Lio onto Enneking

Shortly thereafter Faherty heard a

crash.

Faherty

saw Lio get out of his car and run into a patch of woods.

In

a short

time,

back-up police

units began

to

arrive at the scene.

Cornell

where

Patterson (another

the suspect had gone

Patterson took

Lio.

to

One of the first arrivals was

Officer

defendant).

He asked

and was told,

"into the woods."

Faherty's flashlight

and began a

He found him, and Lio surrendered.

Faherty

search for

Patterson took him

Superintendent Faherty, who told Lio that he was going to

-55

be

charged with attempted murder.

Miranda warnings.
_______

Lio was

house for booking.

Sergeant

into

the

then taken to

Superintendent

Edward

defendant) to

O'Donnell

(the

conduct a "use of

shots

Faherty then gave Lio the

fired at

Lio

the area

Saia

seventh

station

commanded

police-officer

deadly force" investigation

and

his

car by

Detectives

Robinson and Beers.

Lio was charged with assault with intent to murder,

assault and battery by

means of a dangerous weapon

assault

dangerous weapon (a

by means of a

(a car),

car), driving to

endanger, speeding, leaving the scene of an accident, failure

to

stop

for a

police officer,

distribution

of a

Class E

controlled

substance,

needles, and unlawful

unlawful

possession

of

possession of syringes.

hypodermic

In May 1994,

the District Attorney issued a nolle prosequi, dismissing the

_____ ________

charges against Lio.

Plaintiff's

U.S.C.

1983

prosecution,

(false

and

This lawsuit followed.

complaint

alleged

arrest,

excessive

conspiracy

to

violations of the Massachusetts

Laws ch. 12,

violations

of

force,

malicious

civil

rights),

violate

Civil Rights Act, Mass. Gen.

11I, and assault and battery,

arising out of

an investigation which culminated in Lio's arrest on May

1991.

had a

42

23,

The plaintiff further alleged that the City of Boston

practice, custom or policy

of allowing constitutional

violations, such as alleged in his complaint, to occur.

-66

The district

the trial

severed

prior to the

start of

that the case against the City of Boston should be

from

immediately

officers

court decided

that

of

thereafter

the

if

were found liable.

police

any

of

officers

the

and

defendant

Because the jury

tried

police

did not find

any of the individual defendants liable, the case against the

City of Boston was dismissed.

II.
II.

THE ISSUES
THE ISSUES
__________

Appellant has

as they are

for

abuse of

raised three issues,

set forth at page

discretion.

which we state

one of his brief.

We review

See Blinzler v. Marriott Int'l,

___ ____________________________

Inc., 81 F.3d 1148, 1158 (1st Cir. 1996).

____

The first issue is stated as follows:

I.

Whether the trial judge erred in

allowing Defendant's Motion In

Exclude

Evidence

of

Reputation Pursuant to
Evidence

404(b),

exclusion of evidence

Limine To

Character

Federal Rules

resulting
of racial

in

or
of
the

animus,

to

prove

motive,

preparation,

opportunity,

plan,

intent,

knowledge,

and

identity within Rule 404(b).

There

was

hearing

on

defendants'

motion

in
__

limine.
______

Plaintiff wanted to prove through the deposition testimony of

Gregory

Matthews,

Jose Alfonso,

Latson

-- all of whom

Police

Force, and all of whom,

defendant

Marquardt

Marilyn Hinton,

were minority officers

--

on the Boston

except Alfonso, served under

that Marquardt

-77

and Brian

harbored a

racial

animus toward minorities.

stated the

acting

At the

hearing the district judge

question as he understood

in a

motivated

supervisory

by racial

agreed that

it: whether Marquardt,

capacity, did

animus.

that was the

Counsel

question.

something that

for Lio,

The

Mr. Kelley,

following colloquy

then ensued:

THE COURT:

All right.

Now, then it

seems to me that since that is the issue,

the existence

of

racial animus

itself an

element of

question

becomes

admissible

is

not

any claim and

the

what

to show that

evidence

question.

is

the officer did

something with racial animus.

And that brings

was

That's the
us directly,

then,

to Rule 404, that says evidence of

a person's character that he has a racial

animus is not
of

proving

therewith

admissible for the purpose

that

action

occurred

occasion.

on

in

conformity

particular

404(a) is directly in point.

MR. KELLEY:
the purpose of

It would be in point if
the offer were restricted

to proving propensity or proclivity.

THE COURT:

But

what is the purpose

of the offer?

MR.

KELLEY:

The purposes -- one of

the defendants here, Superintendent Saia,

a long and experienced officer who was in
charge

of

the

operations

of

these

particular defendants, knowing in advance

of -- sufficient
bias and
given

to question the

animus of

station,

racial

given officers

did

nothing,

took

in a
no

action, as a matter of fact in testimony,

endorsed their actions.

THE
doesn't

COURT:
at all

Well,
support

you

see,

an argument

that
of

opinion or reputation

in the

community.

That would be an argument that would only

permit

evidence

that Saia

himself knew

-88

about

this

characteristic of

the other

person, so that's what you have to offer.

You can't offer --

MR. KELLEY:

That's what I'm saying

we will offer and we will prove.

THE COURT:
right.

Well, that's

not -- all

Then show me the proffer.

Then followed an extensive colloquy (ten transcript

pages) between the

ruled

that the

court and plaintiff's counsel.

deposition

testimony of

police officers could not be used.

Now, that's

a proffer

trial.

Of

course,

about

my

complain
you're

It then stated:

not going to

making

going to

stop you

during

made

at that

from

the course

if

you

ruling

have to

want

on

to

And

more detail,

arguments that may

time just

of

appeal,

do that.

when I hear that proffer in

I'll consider any

the four

in case

be

it may

persuade me to a different view.

But the view

time is

I hold at the

present

that what you're aiming for here

is to show that Saia is liable personally

and

that the

only way

I can

determine

that that is correct is to determine that

Saia

acted with

racial animus

and that

The court

minority

what

you're

cover

some

proffering
gaps

officer's

between

personal

experiences

to

and,

me
a

view

first,

doesn't

particular
about

the

his

inference

that that means that Marquardt has racial

animus

and

secondly,
third,

has
that

that

that
Saia

when

reputation,
knows

Saia

that

and,

making

his

decisions

he's not

executive

decision,

but he's

animus

because of

with racial

racial animus.

just

is

and,

making

bad

making it
his

own

There are several missing

steps in the proffer of evidence.

No proffers were made during trial.

-99

On

November

23, 1995,

the day

after defendants'

motion in limine had been granted, plaintiff filed a "Proffer

__ ______

of Evidence" to which were attached extensive excerpts of the

deposition

testimony

Matthews, Alfonso,

of

minority

Boston

Hinton, and Latson.

Police

The purpose

proffer is stated as follows:

In

respect

testimony

of

is

replete

experiences that
the

service
horrific

as

officer.

She

personal

Leonard Marquardt

racial
in

with

her

prove conclusively that

defendant,

rampant

Marilyn Hinton

animus

which

had a

made

her
and

Area

humiliating

black

female

extended his

police

paradigmatic

Officers

of the

racism

as

illustrative

of the

rule that police like him

cynical

are "easier to

tolerate than to correct," as a pervasive

policy in Area E.

The gist of

Gregory Matthews

[sic]

testimony as excerpted is that he was the

object of direct

racial slurs stated

by

the defendant, Leonard Marquardt, that he

heard the defendant
and blacks a[sic]

refer to

minorities

"chincs and spics"

at

page 52, and "Leroy(s)" at page 72.

In

the

case of

Brian

Latson, his

testimony is probative

on the issue that

the defendant, Leonard

Marquardt, had

propensity
division

to usurp the functions of the

of

defendant,

Internal

Affairs.

Leonard Marquardt,

The

arrogated

to himself an excessive personal industry

in supervising minority officers.

In

the case

testimony is

of

Jose

and

his

probative on the issue of a

defense that the plaintiff

an animus

Alfonso

as a

defense to

administrative

invented such
the criminal

charges against

him

resulting from the

generated

by

"buy bust"

Area

operation

personnel

(all

-1010

defendants

except

Saia) for

a spurious

execution in Dedham.

We

have read

We point out, first of

the deposition

testimony carefully.

all, that a portion of the

testimony

of all the

deponents is

would not be

hearsay and for

admissible.

information about

Lio) from Lio.

Area E

partners for

a year

areas

of Boston.

Because

told him.

Alfonso obtained all

(the home base

for Marquardt

Lio was Alfonso's training officer

were

work in Area

Officer

that reason

E.

He did

and a

half, assigned

of Lio's advice,

He only knew about

alone

his

and

and they

to Spanish

Alfonso did not

Marquardt from what Lio

not know Superintendent

Faherty at

all.

Insofar as the proffer

suggests that Alfonso had information

that

sting

the

motivated

testimony,

"buy-bust"

by Marquardt's

operation

racial

was

animus, there

spurious

and

is no

such

either direct or implied, in his deposition.

is there in any of the other depositions.

Nor

Officers

Marquardt,

Matthews

apparently

Marquardt

as a

and

worked

times.

Both described

who treated

minorities with

at different

bigoted racist

scorn and derision.

Hinton

under

According to Hinton, Marquardt was foul-

mouthed with minority women and verbally assaulted them.

Officer Brian Latson worked under Marquardt in Area

E.

He testified

that either

minority

that he never observed

Marquardt or

officers.

anything suggesting

Detective Robinson

He testified

-1111

were targeting

further that

he did

not

think

the racial

enjoyed

climate at Area

working

questioning

by

there.

Lio's

Latson

counsel

Marquardt and "fearful" of him.

would

be

grounds:

clearly

inadmissible

Latson's commanding

African-American), called

that he had

denied

heard that

it, and said that

since he was twelve

E was

also

that

Lio

bad at

all and he

testified

was

under

upset

with

Then followed testimony that

on

relevancy

officer, Deputy

him into

and

Clayburn (an

his office and

Latson was using

he had been

hearsay

steroids.

told him

Latson

a Christian Scientist

and never even took an

aspirin.

Latson

further

said that he was willing to submit to whatever tests

that Clayburn wanted to

this inquiry

were

give.

It was Latson's

was prompted by the

opinion that

fact that both

into body building and lifting weights.

he and Lio

About the same

time, he was approached by a known drug dealer and

a "street

source" for Latson, who told him that two detectives had been

inquiring

about

Marquardt

was

him.

asking

Latson testified

about

him

because

that

of

he

his

thought

close

relationship with Lio.

As we discern it, Lio's theory for the admission of

the

deposition testimony is that it tended to prove that the

"buy-bust"

racial

sting

operation

animus against Lio.

had a strong racial

was

motivated

by

Marquardt's

Even if we assume that Marquardt

animus against minority police officers,

of

which

the

depositions

of

Hinton

and

Matthews

are

-1212

probative, and

that Superintendent Saia knew

have known it,

we fail

depositions.

There

to comprehend the

was

no

direct,

this or should

relevancy of

the

circumstantial,

or

inferential evidence that

Marquardt's

racial

Lio was

animus

"set up" as

toward minority

a result

officers.

of

The

sting operation originated with the Dedham Police Department.

That police

department informed Marquardt that

dealing in steroids.

John Antoniou

to make

It was the Dedham Police

the "buy."

He got

permission

proceed with the "buy-bust"

from

sting.

who selected

Marquardt had

information than an officer under his

drugs.

Lio had been

reliable

command was dealing in

his

superior officer

There is nothing

to

in the

deposition testimony to suggest

that he would have proceeded

differently had the implicated

officer been white instead of

Hispanic.

We think the deposition testimony could

have been

excluded on the grounds of relevancy alone.

The district court was surely correct in

excluding

the deposition

testimony on the

grounds of Federal

Evidence 404(a):

Rule
Rule

404.
404.

Character
Character

Admissible To
Admissible To

Evidence
Evidence

Not
Not

Prove Conduct; Exceptions;

Prove Conduct; Exceptions;

Other Crimes
Other Crimes

(a)
(a)
Evidence

Character
Character
of a

evidence generally.
evidence generally.

person's

character or

trait of character is not

the

purpose

conformity

admissible for

of

proving

therewith

on

action
a

in

particular

occasion, except: . . .

Nor does it fall within the ambit of exception (b):

-1313

Rule of

(b) Other crimes,

(b) Other crimes,

wrongs, or
wrongs, or

acts.
acts.

Evidence of other crimes, wrongs, or acts

is not admissible to prove
of a

person in

the character

order to show

conformity therewith.

action in

It may,

however,

be admissible for other purposes, such as

proof

of

motive,

preparation,
or

absence

provided
accused,

opportunity,

plan, knowledge,
of

mistake

that
the

upon

advance of trial, or
excuses

request

prosecution in

case shall provide

court

or

intent,
identity,
accident,
by

the

a criminal

reasonable notice

in

during trial if the

pretrial

notice on

good

cause shown, of the general nature of any

such
trial.

evidence it intends to introduce at

Clearly, the purpose of plaintiff's proffer was "to

prove the character" of Marquardt "in order to show action in

conformity therewith."

within any

And since the proffer

of the exceptions in the

there

is no evidence in

other

purposes,

does not come

second sentence because

the depositions showing

the district

court correctly

any of the

excluded the

deposition testimony.

Appellant

Cartagena,
_________

882 F.2d

admitting the

a 42 U.S.C.

officers

argues

of

unwarranted

that

553 (1st

Gutierrez-Rodriguez
v.
________________________

Cir. 1989), is

depositions into evidence.

precedent for

Gutierrez involved
_________

1983 civil rights action brought against police

the

Commonwealth

shooting

of

the

of

Puerto

plaintiff,

Rico

rendering

for

him

the

paraplegic.

In

that

case the

district

court allowed

evidence under Rule 404(b) thirteen case files of

in

the police

-1414

officer who shot the

plaintiff.

We affirmed

the admission,

stating:

The complaint files were relevant to

prove

the

Cartagena

supervisory
and

liability

Alvarez.

They

of

were not

introduced to show that based upon Soto's

past

conduct

participated
The

it

was

in the

evidence

period.

stressed

by

evidence

could

Cartagena

and

the

that

he

Gutierrez shooting.

was

conduct,

likely

not

used

As

was

district
only

lapses in the supervision

prove

repeatedly
court,

be

Alvarez

to

used
to

the

against

show gross

and discipline

of Soto.

Id.
___

at 572.

This

depositions in this

cases

cited

by

not

case.

appellant

depositions are even

could be

is

precedent

admitting

Quite the contrary!

in

support

more attenuated.

made that the

for

of

The

admitting

Even if an

statements provide proof

the

other

the

argument

of motive,

the evidence was extremely weak for the reason already given.

The sting was orchestrated by the Dedham Police.

The second issue as stated by appellant is:

II.

Whether the

denying

trial

judge erred

in

Plaintiff-Appellant's Motion

In

Limine to Permit The Introduction of John

Antoniou's Criminal
and as

Record after hearing

renewed during the course

of the

trial.

This

issue does

Antoniou was not a

not require

witness at the trial.

that he fled the jurisdiction.

Lio's

extended discussion.

Appellant alleges

His deposition was not taken.

attorney injected Antoniou into the case on his direct

examination of Marquardt:

-1515

Q:

(By
any

Mr. Kelley):
other

Antoniou at

Did you have

words

with

John

that meeting other

than what you've said here?

A:

(By Marquardt):

Q:

Did

any

of

No.
the

other

participants in this discussion

have
John

any

words directly

Antoniou

that

with
you

overheard?
. . .
A:

I don't remember any.

Q:

Did John Antoniou say anything?

A:

Yes.

Q:

What did he say?

Ms. Harris:
__________

Objection.

Hearsay, your

Honor.
The Court:
_________
A:

Overruled.

He said that he could buy drugs

from

(indicating)

Adalberto

Lio.
Q:

He said he could buy drugs?

A:

Yes sir, he did.

Q:

Did

he then move

on from that

and say, "I will attempt to buy

drugs from Adalberto Lio?"
A:

That's what I thought he was there for.

. . .

Q:

And Antoniou at Area E told you

that

he was willing

to try to

arrange a sale of steroids from

(indicating) Adalberto

Lio, is

that correct?
A:

Yes, sir.

The court instructed the jury, after the statements

of Antoniou had been admitted, as follows:

THE COURT:
give

the

Now, I

limiting

think I

instruction

should
that

[statements
received

of
to

Antoniou are]
prove

statements made,

the

but it

truth

charge of

without
people

information

.
.

hearsay, it's still

if
is

in

or acting

cause against
even

the

bears upon

probable cause

probable

of

has to come

because it's information that

any

not being

some

various
of

hearsay

the

within

information that

is

-1616

being

passed along

and

is

taken

into

account in the whole array of information

that the officers who are
they

defendants, if

have that information, it's part of

the information they take into account in

determining

whether

action

is

appropriate.

MR. KELLEY:

I guess,

then,

Honor, what I would request the

do

is,

as

specifically

as

your

Court to
possible,

emphasize that this is not being received

for the purpose of the truth of any --

THE COURT:

Lio

did not

I'll do that.

object

to this

instruction; to

the

contrary, he acquiesced in it.

Finally, the record makes

officers who dealt with

and

Antoniou, including Marquardt,

acknowledged that he had

the circumstances

it clear that the police

here, it

a criminal record.

was not

error for

knew

Under all

the district

court to

exclude the specifics of

Antoniou's prior criminal

record.

The third

and final

issue raised by

appellant is

stated:

III.

Whether the trial Judge erred

in denying Plaintiff's
to

Permit

the

Massachusetts
Prosequi"

Motion In
Introduction

Superior

and

related

"Nolle

papers

under

applying the so

"Bad Acts" restriction

of

Court

Federal Rules of Evidence, Rules

803(8)(C) and in

Limine

201 and
called

of Rule 404(b) to

that evidence.

Some explanation

allowed Lio to

read to

is in order.

the jury the

-1717

The district court

nolle prosequi
_____ ________

docket

entries.

The

jury was

then instructed

that these

entries

were terminations in favor of the plaintiff and satisfied one

element of the malicious prosecution claim.

The district court did not allow in evidence a

and one

half page statement

Attorney giving

statement

was

by the Suffolk

the reasons for

clearly

hearsay;

the nolle
_____

it

was

two

County District

prosequi.
________

an

This

out-of-court

statement

therein.

at

offered

And as

for

the

truth

of

what

was

the court explained fully to

contained

Lio's counsel

the pretrial hearing on the motions in limine, it did not

__ ______

fall within the hearsay exception of Federal Rule of Evidence

803(8)(C), which permits the introduction into evidence of

records,

reports,

compilations,
offices

or

in

statements,
any

form,

agencies,

. . . . in civil actions
and

against

or

data

of

public

setting

forth,

and proceedings

the Government

in criminal

cases, factual findings resulting from an

investigation made
granted

by law,

information

or

pursuant to authority
unless
other

the sources

of

circumstances

indicate lack of trustworthiness.

The following colloquy took place:

THE COURT:
finding
here?

that

Now, what is the factual

you're proposing

to offer

MR. KELLEY:
recited
evidence

in

the
was

The finding that, as is

nolle

prose

compromised

by

itself,
police

officers, internal contradictions between

--

THE COURT:
minute.

Where is

Wait a minute.

Wait a

that finding?

Read me

the language that you say constitutes --

-1818

MR.

KELLEY:

deficiencies

in

officers

"Because

the

way Boston

controlled

and

of
Police

handled

the

informant as well as physical evidence in

this

case"

--

determination
"a

that's

-- "there

substantial

Commonwealth

is," therefore,

likelihood

cannot

factual

that

establish

the
prima

facie case . . . ."

THE
trying to

COURT:
look

All right.
for some

Now,

finding

I'm
there

that is related to an issue in this case.

Findings

that

are

immaterial

to

this

case, of course, don't come into evidence

in

this

case.

Findings

that

are

immaterial to this case, of course, don't

come into evidence in this case.

MR. KELLEY:

Of course.

THE

It's only findings that

COURT:

are material to this case.

Now, there is not

of what

an identification

the deficiencies were,

so I

am

not able to tell whatever the person, the

official

making

this

referring to, and

finding

unless I can determine

what the official was referring

I cannot determine
to an

issue in
to

This

even

is

reputation
that

an

issue
worse

evidence

that's

to, then

whether it's

this case or

immaterial

was

or

related

instead is

in

this case.

than

receiving

something

generalized

like

statement

that's not in point for this case.

So,

you see the

problem I'm having

is with the notion that there are, quote,

factual findings, unquote, here

that are

material to the issues in this case.

The

mere fact that there are factual findings

in the report

doesn't make it admissible

in this case.

It

aspects

covers only one of the

concerned

with

whether

evidence is admissible in this case.

has

to be

materiality

factual
to the

and I am not able

finding that

issues in

the
It
has

this case

to tell from this form

-1919

of factual findings either

(1) precisely

what the deficiencies are or (2) how they

affected or would
of drawing

affect the

likelihood

an inference in this

some issue that has

case on

to be decided by the

factfinder in this case.

MR. KELLEY:

Under subsection

(C),

as I understand it, that's the purpose of

allowing

report

official who is
and report.

on

the

required to

part of

an

investigate

THE

COURT:

If

the official

were

required to investigate and make a report

on whether Saia acted with racial animus,
then

that

would

involved in

this

be

an

issue that

case, but

that's

is
not

what this finding is about.

MR.
Honor.

KELLEY:

No,

it

It isn't offered for that.

THE COURT:

So the finding has to be

about something that is

case
case.
case

isn't, your

for it

to

I don't
of any

an issue in this

be admissible

in

receive evidence
kind, witnesses,

this

in this
direct or

findings of an official, unless it's on a

matter that

is material to this case and

that's what's missing

basis on

There's

which I can determine

official here
issue

here.

that

has made a
will

be

for

that the

finding on
the

no

jury

an
to

consider in this case.

MR.

KELLEY:

your Honor:

The next

"Prior statements and sworn

testimony of certain police

witnesses

paragraph,

necessary

to

and civilian
proving

the

Commonwealth's

case

are

directly

contradictory in material aspects."

submit,

your

Honor, that's

the

province of the District Attorney.

THE

COURT:

Well,

wait a

minute.

No, it's the province of this jury.

determine that there
evidence on

is -- in

If I

receiving

admissibility determine that

-2020

there are
I

contradictory statements, then

tell this

resolve,

jury:

"That's for

not for anybody

else.

you to
Not for

me, certainly not for some official other

than an official of this court."

We affirm

Attorney's

the court's

exclusion

of the

District

report for the reasons stated by the court in the

colloquy.

We

sanctions.

have considered carefully appellees' motion for

We deny it.

The judgment

of

the district

Costs on appeal awarded to appellees.

Costs on appeal awarded to appellees.
____________________________________

court is

affirmed.
affirmed.
________

-2121