Appeals from the Superior Court of the District of Columbia; (Hon. Michael L. Rankin, Trial Judge)
Before Steadman and Schwelb, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: In the early morning hours of Sunday, June 26, 1989, in the aftermath of a domestic dispute with his girlfriend, Barrie (Bambi) Kerns, Garcia L. Etheredge was shot in the back by Officer Brian Paige of the Metropolitan Police Department (MPD) at the home of Ms. Kerns' mother, Claudette Kerns, in northeast Washington, D.C. Etheredge suffered serious injuries, including partial paralysis. He brought suit against the District, alleging assault and battery, negligence, and false arrest. The case was tried to a jury beginning on April 27, 1990.
At the Conclusion of the plaintiff's case and again at the close of all the evidence, the District moved for a directed verdict. The Judge denied each motion, *fn1 and the jury subsequently awarded Etheredge $1,514,444.44 on the assault and negligence counts and an additional $10,000 on the false arrest claim.
The District filed a motion for judgment notwithstanding the verdict (n.o.v.) and, on September 2, 1992, the trial Judge issued a twenty-two page memorandum opinion and order in which he granted the motion. Etheredge v. District of Columbia, 120 Daily Wash. L. Rptr. 2225 (Super. Ct. D.C. 1992). On appeal, Etheredge contends that the evidence, viewed as it must be in the light most favorable to him, was sufficient to support the verdict and that judgment n.o.v. was improperly entered. We agree with Etheredge and vacate the judgment n.o.v. on each of the three counts.
We do not, however, reinstate the verdict, but instead remand the case for a new trial. We do so because, as the District contends in its conditional cross-appeal, the trial Judge committed reversible error prejudicial to the District by suggesting, in an unrecorded ex parte conversation in the jury room with the foreman of the jury, that the jurors might wish to participate in a protest against the verdict in the California state court trial of officers charged with beating motorist Rodney King.
A. The Antecedent Events. On the late evening of Saturday, June 24, 1989, Etheredge and Bambi Kerns became embroiled in a domestic altercation. During the course of the argument, Etheredge struck Bambi in the face and bruised her cheek. Claudette Kerns, hearing her daughter screaming, intervened and directed Etheredge to stop. Bambi Kerns went to her mother's room and spent the night there, leaving the couple's nine-month-old son, Vaughn, in his parents' bedroom with his father.
On the following evening, Claudette Kerns told Etheredge that she was not going to allow anyone to argue with or strike her child in her house, and that Etheredge was going to have to move out. Between 11:30 p.m. and midnight, apparently apprehending that Etheredge would try to take Vaughn with him if he did leave, *fn2 Claudette Kerns dialed 911. She reported to the police that there has been a domestic disturbance at her home between her daughter and her daughter's boyfriend. She explained that she thought she would need help in inducing the boyfriend to leave her house. In response to a question from the dispatcher, Claudette Kerns stated that Etheredge was not dangerous. Bambi Kerns' adult brother, Barrett Kerns, also told Etheredge to leave, and he made an independent call to the police.
While Claudette Kerns and Barrett Kerns were awaiting the police, Bambi Kerns and Etheredge were giving Vaughn a bath on the second floor of the Kerns residence. Bambi told Etheredge that the people in the house were upset with him, and that it would be best for him to go somewhere else until things cooled down. She suggested that Etheredge "come back tomorrow and see what's up." Etheredge agreed and, on his way downstairs, he saw Officers Brian Paige and Denise Calhoun. Seconds later, under circumstances which were disputed by the parties at trial, there was a bullet in his back.
B. The Plaintiff's Version
Counsel for the plaintiff presented testimony which, if credited, suggested that Garcia Etheredge was shot without justification. Etheredge testified that, as he was coming down the stairs, he saw the two police officers with their pistols drawn. The male officer ordered him to "drop the gun or I will shoot." Etheredge immediately turned around, so that he was facing Bambi and Vaughn, who had remained on the second floor landing. Attempting to comply as best he could with a police command to drop a handgun which he did not have, Etheredge reached into his left pants pocket with his left hand *fn3 and threw a closed switchblade knife over the banister. Etheredge described the ensuing sequence of events as follows:
Q. After you took the knife out of your pocket and threw it in the manner that was shown to the Court and jury, what did you do next? What did you do with your left hand?
A. Then I brought my hand down. Then the Officer told me to stop and then he shot me.
Q. That was the second time that you had been told to stop?
A. No. I had not been told to stop at first. I was told to drop a gun at first.
Q. So, that was the second remark by the Officer?
Q. When you were shot, Mr. Etheredge, which direction were you facing?
A. I was facing towards going up the steps.
Q. That would be with your back directly to the officers?
A. Yes, with my back, yes, with my back towards the officer.
Q. Where were you shot, sir?
A. I was shot in the back, almost in the center of my back.
Q. Did you at any time turn your body either to the right or to the left after throwing the knife over the banister?
Q. Did you at any time turn your body to the right or to the left after you started back up the steps and had gone facing in that direction?
Etheredge denied as "not correct" a suggestion by counsel for the District that the knife left his hand after he was shot. He testified that while he was lying on the ground, wounded, the male officer frisked him. Etheredge demanded "why the fuck did you shoot me" and spat in the officer's face. Etheredge was placed under arrest for assault on a police officer with a deadly weapon. He was taken to the hospital, where he was handcuffed to his bed. He remained a prisoner until the charges against him were dismissed in August 1989.
Bambi Kerns testified that at the time of the shooting, she was on the landing at the top of the steps, three to six feet from Etheredge. She was holding Vaughn in her arms. She stated that when the police came in, the male officer told Etheredge to stop or halt. *fn4 Etheredge turned around and started to walk up the steps. She saw Etheredge throw something over the banister with his left hand and place his hand back at his side. Ms. Kerns then heard a shot, which struck Etheredge in the back; she did not witness the shooting itself. Ms. Kerns testified that Etheredge was not turning at the time he was shot.
C. The District's Version.
Officer Denise Calhoun had joined the MPD on October 24, 1988, eight months before Garcia Etheredge was shot. She testified that she and her partner, Officer Brian Paige, had received a "Code 1" (without delay) assignment, directing them to respond immediately to the Kerns residence regarding a "man with a gun." Before she and Paige entered the home, Barrett Kerns, who was on the street outside the home, told them that his sister and her boyfriend had had an argument and that the boyfriend had a gun on him. *fn5 He described the weapon as a small Derringer handgun. Recognizing that they were on a dangerous mission, *fn6 the two officers entered the front door of the house, which was slightly ajar. Officer Calhoun placed her weapon behind her thigh. As she and Officer Paige approached the stairwell, she observed Etheredge on the steps and Bambi Kerns and the baby at the top level.
As Etheredge began to walk down the stairs, Officer Calhoun ordered him to "freeze." Officer Paige yelled something to the same effect. Etheredge whirled around as if to go upstairs and reached into his pocket with his right hand. Officer Calhoun could not see what was in Etheredge's hand. As Etheredge was pulling his arm up and starting to turn, Officer Calhoun heard a round go off. She realized soon thereafter that Etheredge had been shot in the back.
Officer Paige testified that when he and Officer Calhoun arrived in the area of the Kerns residence, Barrett Kerns told them not only that he had seen Etheredge inside with a gun, but also that
this person with the gun was acting crazy, and that the person had kicked in the door, forced his way in. *fn7 He told us to be careful because this person might shoot us.
Officer Paige continued that when he and his partner approached the front door of the home, he noticed that the lock had been broken. Cautiously, the officers entered. A man who matched the lookout which the officers had received for a man with a gun -- a light-skinned black male with a red shirt and black pants -- was beginning to walk down the stairs. According to Officer Paige, both he and his partner, who had their police weapons drawn, immediately yelled at Etheredge -- obviously, he was the man -- to "freeze." Instead of "freezing," Etheredge whirled around, reached ...