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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wasserman v. Bartholomew (9/17/99) sp-5179

Wasserman v. Bartholomew (9/17/99) sp-5179

Notice:  This opinion is subject to correction before publication in 
the Pacific Reporter.  Readers are requested to bring errors to the 
attention of the Clerk of the Appellate Courts, 303 K Street, 
Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.



	THE SUPREME COURT OF THE STATE OF ALASKA
	

KEITH WASSERMAN and			)
KRISTI WASSERMAN,			)	Supreme Court No. S-8238
)
   Appellants,		)	Superior Court No.
)	4FA-91-151 CI
v.					)
)	O P I N I O N
HAYDEN BARTHOLOMEW, KEN		)
STEINNERD, CITY OF FAIRBANKS,	)	[No. 5179 - September 17, 1999]
JOHN ROBERTS, and STATE OF	)
ALASKA,					)
)
   Appellees.		)
______________________________)




Appeal from the Superior Court of the State of 
Alaska, Fourth Judicial District, Fairbanks,
	Ralph R. Beistline, Judge.


Appearances: William R. Satterberg, Jr. and 
James E. McLain, Law Offices of William R. 
Satterberg, Jr., Fairbanks, for Appellants.  
Daniel E. Winfree, Winfree Law Office, 
Fairbanks, for Appellees Hayden Bartholomew, 
Ken Steinnerd, and City of Fairbanks.  Randy 
M. Olsen, Assistant Attorney General, 
Fairbanks, and Bruce M. Botelho, Attorney 
General, Juneau, for Appellees John Roberts 
and State of Alaska.


Before:  Matthews, Chief Justice, Eastaugh, 
Fabe, Bryner, and Carpeneti, Justices.  


FABE, Justice.



I.	INTRODUCTION
Keith Wasserman sued the City of Fairbanks, the State of 
Alaska, and three peace officers, claiming that the officers used 
excessive force when they mistakenly apprehended him and wrestled 
him to the ground in a grocery store.  Following a bench trial, the 
superior court ruled for the defendants.  After we remanded the 
case to allow testimony from an additional witness, the superior 
court reaffirmed its findings.  Wasserman appeals, claiming that 
the superior court erred by prohibiting him from calling two 
officers as corroborative witnesses.  Because we conclude that the 
officers' testimony was highly material and not cumulative and that 
Wasserman made a sufficient offer of proof, we vacate the judgment 
against Wasserman and remand to allow the officers to testify.
II.	FACTS AND PROCEEDINGS
On October 19, 1990, law enforcement officials in 
Fairbanks were pursuing a fleeing convicted felon, John Palmer. 
Various members of the Fairbanks Police Department, Alaska State 
Troopers, and Fairbanks International Airport Security were 
assisting in the pursuit.  The officers had reason to believe that 
Palmer had exited a taxicab and fled into a nearby Safeway store. 
 State Trooper John Roberts, accompanied by a trainee, Jeffrey 
Manns, entered the store.  Fairbanks police officers Hayden 
Bartholomew and Ken Steinnerd also entered the store after speaking 
with a witness outside.

Meanwhile, Keith Wasserman was shopping at the Safeway 
store.  At the check-out stand, he asked a Safeway employee about 
the location of a sale item.  Wasserman left his son Levi at the 
cash register and headed toward the appropriate section of the 
store.  Wasserman's physical appearance was apparently similar to 
the rough description of Palmer provided to the officers.
At this point Wasserman's account of the facts diverges 
somewhat from the defendants' version.  Wasserman testified to 
hearing someone yell "Stop!"and seeing "dark clad men"come toward 
him.  He claimed that the police did not initially identify 
themselves or explain their purpose in detaining him and that he 
did not recognize them as officers.  He said someone grabbed him by 
the jacket and told him to put his hands behind his back.  He 
jerked away and asked "What for?" The officer told him to "shut 
up"and to put his hands behind his back; Wasserman again refused, 
exclaiming, "Wait a minute, I've got rights." At that moment, 
someone -- later identified as State Trooper John Roberts -- 
wrapped an arm around Wasserman's neck in what several of 
plaintiffs' witnesses described as a choke hold.  One of the 
officers then kicked Wasserman's feet out from under him; 
Wasserman, along with several officers, fell to the floor. 
Wasserman stated that he could not breathe and that someone told 
him, "Put your hands behind your back and we'll let you breathe."
 After Wasserman complied, an officer handcuffed him and pulled him 
up to his feet.  Shortly afterward, the police discovered that they 
had the wrong man and released Wasserman.

In contrast, Trooper Roberts testified that the men were 
in full uniform and unmistakably police officers.  The defense 
offered the deposition testimony of Roger Hanson, the Safeway 
produce manager, who claimed that the officers had immediately 
asked Wasserman for identification.  According to Trooper Roberts, 
Wasserman neither produced identification nor said that he was not 
the man the officers were seeking.  Both Roberts and Hanson denied 
that Roberts had used a "choke hold"on Wasserman; instead, they 
testified that Roberts approached Wasserman from behind and threw 
his arms around Wasserman's shoulders or chest.  Roberts lost his 
balance, and next remembers the officers and Wasserman "all going 
to the floor." Because Wasserman continued to struggle, an officer 
handcuffed him.  The officers then pulled Wasserman to his feet, 
learned that he was not the fugitive, and released him.
Wasserman sued the City of Fairbanks, two Fairbanks 
police officers, the State of Alaska, and two state troopers,  
claiming that the officers' actions constituted assault, battery, 
negligent infliction of harm, and unreasonable use of force.  
Wasserman's wife Kristi sued for loss of consortium and "emotional 
distress."

To support his claims, Wasserman sought the testimony of 
Delores Delacruz, an eyewitness to the incident.  Delacruz stated 
in a pre-trial deposition that she would not answer questions 
without a protective order precluding the police from contacting 
her and her children.  The trial court refused to issue the order, 
and Delacruz refused to be deposed.  Later, at trial, the court 
refused to allow Wasserman to call Delacruz to testify.  Instead, 
it requested that Wasserman's attorney file a sealed affidavit from 
Delacruz detailing her version of events "for purposes of the 
record." Delacruz stated in the affidavit that an officer did 
place Wasserman in a neck hold; that the officers' attire did not 
identify them as police; and that the officers never asked 
Wasserman for identification.
On January 26, 1993, after a bench trial, the trial court 
entered judgment in favor of the defendants, concluding that their 
actions were reasonable.  Ten days later, the Wassermans moved for 
a new trial based on the material found in Delacruz's affidavit. 
 The trial court denied the motion, stating that the material in 
the affidavit was merely cumulative.  Wasserman appealed.

In September 1996, in Wasserman v. Bartholomew (Wasserman 
I),  we remanded the case to allow the trial court to hear 
Delacruz's testimony.   The superior court conducted supplemental 
proceedings in May 1997.  Delacruz's testimony essentially mirrored 
her sealed statement.  The court denied Wasserman's request to call 
Officer Bartholomew and Trooper Manns as witnesses after Delacruz's 
testimony in an effort to bolster her credibility.  To rebut 
Delacruz's testimony, the State again presented the testimony of 
Roger Hanson.  Hanson's account corroborated Officer Roberts's 
version of events. 
After hearing Delacruz and Hanson's testimony, Judge 
Beistline again concluded that Wasserman had not proven by a 
preponderance of the evidence that the officers' actions were 
negligent.  Wasserman appeals the superior court's exclusion of 
Bartholomew and Manns's testimony.
III.	DISCUSSION
A.	Standard of Review

We review a trial court's exclusion of testimony, along 
with other such evidentiary decisions, for an abuse of discretion.  
 We also apply an abuse of discretion standard to trial court 
rulings on whether evidence is legitimate rebuttal evidence.   We 
will find an abuse of discretion only when we are left with a 
definite and firm conviction after reviewing the whole record that 
the trial court erred in its ruling. 

B.	The Trial Court Erred by Excluding the Testimony of 
Officer Bartholomew and Trooper Manns from the 
Supplemental Proceedings. 
1.	Once the trial court allowed Delacruz to be 
impeached, it should have allowed Wasserman to call 
corroborating witnesses.

In Wasserman I we noted that "[t]he determination of the 
context in which the improperly excluded evidence should be heard 
will be left, in the first instance, to the trial court."  We 
essentially gave the superior court its choice among three options:
After giving the parties the opportunity to be 
heard, the trial court should decide whether 
to reopen the evidence solely to entertain the 
testimony of Delores Delacruz, to reopen to 
entertain her testimony and any other evidence 
within the ambit of her testimony, (allowing, 
for example, impeachment and rebuttal 
evidence), or to hold a new trial.[ ]

On remand, the trial judge chose the second option; it allowed the 
State to call Roger Hanson, the Safeway produce manager, as a 
witness to impeach Delacruz's account of events.  Hanson's account 
corroborated Officer Roberts's version of events.   The State also 
insinuated during Delacruz's cross-examination that she was biased 
against the police.  Notwithstanding the attacks on Delacruz's 
credibility in rebuttal and cross-examination, the superior court 
denied Wasserman's request to call eyewitnesses who could 
corroborate Delacruz's story.
One could reasonably read our decision in Wasserman I as 
giving the superior court the discretion to limit the post-remand 
proceedings to Delacruz's testimony.   But once the court allowed 
the State to attack Delacruz's credibility both through cross-
examination questions about bias and through the "impeachment-type 
rebuttal" testimony of Roger Hanson, it was an abuse of discretion 
to disallow admissible evidence supporting Delacruz's testimony. 
 McCormick on Evidence describes as a "truism"the rule that "when 
there has been evidence of impeaching facts the proponent may bring 
contradictory evidence asserting the untruth of the alleged 
impeaching facts.  Such a denial is always relevant and generally 
allowable."  Similarly, Alaska Rule of Evidence 607(b) provides 
that "[e]vidence proffered by any party to support the credibility 
of a witness may be admitted to meet an attack on the witness' 
credibility." By admitting such impeachment evidence, the court 
was obligated to allow Wasserman to support Delacruz's credibility 
through the testimony of eyewitnesses who could corroborate 
Delacruz's account.

2.	The officers' testimony was not cumulative and would 
have corroborated Delacruz's account.

The trial court excluded the officers' testimony on the 
ground that it was cumulative.  We disagree.  As we explained in 
Wasserman I, evidence properly excludable as "cumulative"falls 
into two categories: evidence supporting an uncontested or 
established fact and evidence repeating a point made by previous 
evidence.   Given that the trial court ultimately did not believe 
Delacruz's account, her testimony was hardly uncontested.  Thus, 
any testimony that would corroborate her account would not fall 
into the first category of cumulative evidence.  
The officers' testimony also does not fall into the  
category of evidence repeating a point made by previous testimony. 
 In Wasserman I, we warned that courts should be wary of excluding 
otherwise relevant evidence on this ground:
[R]epetition of the same evidence on a 
disputed point by several witnesses is often 
persuasive in establishing the truth of that 
evidence.  Evidence should only be excluded on 
a disputed point as cumulative if the evidence 
on the point "is already so full that more 
witnesses to the same point could not be 
reasonably expected to be additionally 
persuasive."[ ]


Here, the trial court found Delacruz's testimony to be unpersuasive 
for two reasons.  First, the court found that it was "inconsistent 
with much of the other evidence presented"and was "contradicted by 
that of Roger Hans[o]n and others." Second, the court concluded 
that Delacruz's probable bias against the police had colored her 
testimony.  Logically, then, if the testimony of either Trooper 
Manns or Officer Bartholomew would have provided support for 
Delacruz's account that was not clouded by anti-police bias, it 
would have been "additionally persuasive"and not cumulative.
An examination of the record and of the officers' 
depositions reveals that the testimony of Manns and Bartholomew 
would indeed have been consistent with Delacruz's account of 
events.  We identified several disputed issues in Wasserman I on 
 which Delacruz's testimony would be relevant; specifically, 
"whether the police officers were identifiable as peace officers, 
whether an officer held Keith Wasserman in a choke hold, and what 
the officers told Wasserman before they seized him."  Delacruz 
testified in the post-remand proceeding that the officers were 
wearing black clothes that were not obviously police uniforms, that 
the officers did not identify themselves to Wasserman, and that 
Trooper Roberts had Wasserman in a neck hold.

Both Officer Bartholomew and Trooper Manns's descriptions 
of the incident in their depositions do corroborate certain aspects 
of Delacruz's version of events.  For example, Bartholomew stated 
that, instead of a full police uniform, he was wearing a black 
sweater with a "little emblem badge sewn on it." He also stated 
that none of the officers indicated to Wasserman that he was under 
arrest and that Trooper Roberts did indeed put his hands around 
Wasserman's neck.  Manns similarly testified in his deposition that 
no one told Wasserman he was under arrest and that Trooper Roberts 
grabbed Wasserman from behind and put his arms "between the chin 
and the shoulders." Manns's testimony is particularly crucial 
given that, with the exceptions of Hanson and Delacruz, he was the 
closest non-party eyewitness to the scene. 
The officers' testimony directly contradicts Roger 
Hanson's testimony in the post-remand trial that "[t]he police came 
and asked for identification, and said that they were placing 
[Wasserman] under arrest." Given that the trial court relied on 
Hanson's testimony in discounting Delacruz's version of events, the 
officers' testimony would not have been merely cumulative.
The City of Fairbanks argues that Wasserman failed to 
prove that the exclusion of the officers' testimony was not 
harmless.  Alaska Civil Rule 61 precludes disturbing a judgment 
because of an erroneous evidentiary ruling unless the ruling 
"appears to the court inconsistent with substantial justice." 
Here, the trial court based its dismissal of Delacruz's testimony 
in part on her anti-police bias and on inconsistencies between her 
testimony and that of Roger Hanson and other witnesses.  Given that 
the officers' testimony would have contradicted Hanson's account 
and would have been free of bias against the police, the admission 
of the testimony could very well have affected the trial court's 
findings.  We therefore conclude that the trial court's error in 
excluding the testimony was not harmless.

3.	Wasserman made a sufficient offer of proof with 
respect to Officer Bartholomew's and Trooper Mann's 
testimony.

The City of Fairbanks argues in its supplemental briefing 
that Wasserman failed to make a sufficient offer of proof that 
Officer Bartholomew and Trooper Manns's testimony would corroborate 
Delacruz's testimony.  We disagree.  A party must generally make an 
offer of proof to preserve error based on a trial court's ruling 
excluding evidence.   The party must show that "the substance of 
the evidence was made known to the court by offer or was apparent 
from the context within which questions were asked."  We believe 
Wasserman made this showing with respect to the officers' 
testimony.
Wasserman made the substance of Bartholomew and Manns's 
proposed testimony known to the court on several occasions.  At the 
original trial, Wasserman's expert on police tactics referred in 
his testimony to portions of both officers' depositions in which 
they described Trooper Roberts's alleged neck hold on Wasserman. 
Specifically, the expert noted Bartholomew's statement that Roberts 
"used a choke hold" and explained his reliance on Manns's 
deposition in forming his professional opinion:

Trooper Manns, who was with Trooper Roberts, 
says that [Roberts's] arm was between 
[Wasserman's] shoulders and his chin, and the 
only thing that's there is a neck, so . . . 
That's the conclusion I reached: that he'd -- 
was using a choke hold.

And in the post-remand proceedings, Wasserman's attorney requested 
that the court allow the officers to testify after Ms. Delacruz:
[T]he offer I would make, would be to call 
both Manns and Bartholomew . . . to testify, 
because if there is any implication that Mrs. 
Delacruz has been less than honest or biased, 
I would, by way of offer of proof, [state] 
that Mr. Manns and Mr. Bartholomew will 
testify the same thing happened . . . that 
they saw.
(Emphasis added.)  The fact that the superior court knew enough 
about the content of the officers' testimony to label it cumulative 
suggests that the court understood the substance of the testimony.
Additionally, with respect to Trooper Manns, the State 
actually called Manns as a witness at trial.  Manns stated that he 
was about six feet from the officers and that he could hear what 
was being said and see the altercation.  This testimony, albeit 
limited, alerted the court to the substance of Manns's testimony 
concerning Wasserman's interactions with the officers.  And after 
notifying the court in the first trial that he might want to call 
Manns as a rebuttal witness, Wasserman's attorney, William 
Satterberg, explained the relevance of Manns's testimony:
Satterberg: I may want to call Trooper Manns 
as my witness on rebuttal, [since] I have been 
so limited by the scope [of] his testimony by 
the court and Mr. Olsen.  So, I may have to 
call him and ask some questions.

Court: Well, I don't -- let's address that 
specifically.  Because you were not limited to 
the extent you didn't get to make your points.


Satterberg: The only point that I would've 
brought out as well, Your Honor, which has 
been brought out in testimony previously in 
the case, was how Manns saw Trooper Roberts 
take down -- take down Mr. Wasserman. . . . 
[R]ecognizing that they're apparently 
call[ing] Mr. Hanson and Mr. 
McCormick[,] . . . I may have to ask Trooper 
Manns[,] . . . "What did you see happen?"
The court asked Satterberg whether Manns's deposition addressed new 
facts and advised him to offer only portions of Manns's deposition. 
 But Satterberg insisted that Manns's testimony "does address, 
again, the issue of the neck hold and . . . goes to counter what 
was testified to by Trooper Roberts." The court denied the request 
as cumulative.  The court noted to Satterberg that "[W]e know your 
offer of proof, because it's pages 42, 43 and 44 of Trooper 
Manns'[s] deposition." That portion of Manns's deposition 
discusses Roberts's grabbing Wasserman.
After reviewing the record, we conclude that Wasserman's 
representations as to the content of the officers' testimony were 
more than sufficient to constitute a proper offer of proof for both 
Office Bartholomew and Trooper Manns's testimony.
IV.	CONCLUSION

Because we conclude that the officers' testimony would 
have corroborated Delacruz's account of events, that the officers' 
testimony would not have been cumulative, and that Wasserman made 
a sufficient offer of proof, we VACATE the superior court's 
judgment against Wasserman and REMAND to allow the court to hear 
the testimony of Officer Bartholomew and Trooper Manns.  Although 
the court has discretion to determine the scope of the proceedings, 
the court should admit whatever impeachment, rebuttal, or 
supporting evidence is appropriate or necessary based on the 
officers' testimony.
      	In the original complaint, Fairbanks police officer 
Jeffrey Manns was a named defendant.  Wasserman later stipulated to 
dismissal of the claims against Manns.
      	923 P.2d 806 (Alaska 1996).
      	See id. at 814, 817.
      	See id. at 809.
      	See Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994); 
Osborne v. State, 623 P.2d 784, 789 (Alaska 1981).
      	See Sirotiak v. H.C. Price Co., 758 P.2d 1271, 1277 
(Alaska 1988).
      	See Wright v. Shorten, 964 P.2d 441, 443 (Alaska 1998). 
      	Wasserman also claims that the trial court's post-remand 
findings were clearly erroneous and that the court "essentially 
discarded"Delacruz's testimony.  Because we are remanding the case 
for further testimony and factual findings, we do not address this 
argument.
      	923 P.2d at 814.
      	Id. at 814-15. 
      	See id. at 809.
      	See id. at 814-15.
      	See Van Horn Lodge, Inc. v. Ahearn, 596 P.2d 1159, 1163 
(Alaska 1979).
      	I McCormick on Evidence  47 (John W. Strong ed., 5th ed. 
1992).
      	See Wasserman I, 923 P.2d at 813.
      	Id. at 813 n.22 (quoting 6 John Wigmore, Evidence  1908 
(Chadbourne Rev. 1976)).
      	Id. at 813.
      	See id.
      	See Landers v. Municipality of Anchorage, 915 P.2d 614, 
616 (Alaska 1996).
      	Alaska R. Evid. 103(a)(2).
      	The superior court eventually admitted into evidence the 
portion of Bartholomew's deposition in which he describes the so-
called "choke hold."

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