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Myvett v. Heerdt

United States District Court, N.D. Illinois, Eastern Division

January 9, 2017

PAUL MYVETT, Plaintiff


          John J. Tharp, Jr. United States District Judge.

         In the early morning hours of November 27, 2010, Plaintiff Paul Myvett was arrested for allegedly shooting Reginald Allen during a late night fracas at a White Castle restaurant on the north side of Chicago. The charges levied against Myvett based on that shooting, however, were unfounded; Allen told police within hours of the shooting, and before Myvett was charged, that Myvett was not the shooter. At trial, Myvett was acquitted of the charges; the state court trial judge granted Myvett's motion for a directed verdict at the close of the prosecution's case in chief. But that was only after Myvett had been detained for thirteen months, a deprivation of liberty he attributed to the false information provided by investigating officers to the prosecutor before his bond hearing.

         After his acquittal, Myvett filed claims under 42 U.S.C. § 1983 against Chicago Police Detectives Edward Heerdt, Lloyd Almdale, and Chicago Police Sergeant Patrick Barker, alleging that they denied him due process of law by fabricating witness statements that implicated him in the shooting of Reginald Allen.[1] Myvett also alleged the defendants engaged in a malicious prosecution in violation of Illinois state law.

         After a two-week jury trial, the jury returned a verdict in favor of Sergeant Barker on all counts. They found against both Detective Heerdt and Detective Almdale on the malicious prosecution claim and found against Detective Almdale on the fabrication of evidence due process claim. The jury awarded Myvett a total of $300, 000 in compensatory damages ($100, 000 as to Heerdt on the malicious prosecution count; $100, 000 on each of the two claims against Almdale). Almdale and Heerdt now move pursuant to Federal Rule of Civil Procedure 50(b) for judgment as a matter of law on their respective counts of liability. For the reasons stated below, the defendants' motion is denied.


         During the evening of November 26, 2010, after eating dinner with his longtime girlfriend and two daughters, Myvett went out to a party in the Uptown neighborhood where he had grown up. After socializing for a while, Myvett decided to head home. On his way out, he encountered a childhood friend, Wilbur Jackson, arriving at the party. The two had not seen each other in a long time. Myvett told Jackson he was heading to a White Castle for a bite to eat and Jackson asked if he could come along. The pair got into Myvett's car (which he had borrowed from his girlfriend) and drove to a nearby White Castle restaurant located at 5940 North Ridge Avenue in Chicago.

         When they arrived at the White Castle, Myvett walked inside to place his order while Jackson remained outside to take a phone call. Myvett parsed through the menu and placed his order. Myvett did not see Jackson enter the restaurant but, as he was waiting for his order to be delivered to the pickup counter, Myvett looked towards the other (east) side of the restaurant and observed Jackson trying to get to the counter through a late night crowd of rowdy patrons.

         While Myvett waited for his meal, a fight broke out inside the restaurant. During the melee, someone struck Myvett (this individual was later identified as Brian Smothers). After the two struggled for a few moments, Myvett and Smothers separated. Video from two surveillance cameras in the restaurant established that Myvett remained on the restaurant's west side during these events. Then, thinking that Jackson had left the restaurant, Myvett proceeded outside the White Castle to look for him.

         Martin Corbello was another customer in the restaurant when the fight broke out. Corbello testified that in the early morning hours of November 27, 2010, he joined a couple of friends-Demetrius Barry and Carla Huffman-at the White Castle for a post-bar bite to eat. After ordering some food, Corbello and friends took seats at a counter running along the windows on the east side of the restaurant. Shortly thereafter, Corbello testified, the entire restaurant seemed to erupt into a brawl. Three individuals in the brawl moved toward the east side of the restaurant, past a soda machine, and toward the counter where Corbello and his friends were eating, and actually fell onto the counter. One of the individuals (later identified as Wilbur Jackson) involved in the brawl-who was wearing a torn brown puffy coat and was bleeding from the side of his mouth-pulled out a gun and the trio began fighting for control of the gun. Seeing the gun, Corbello and his friends managed to slip past the brawlers and then fled out the front door along with just about everyone else who had been inside the restaurant. Corbello and friends retreated to their car that was parked on the west side of the restaurant.

         Surveillance video established that by the time the altercation at the soda machine was taking place on the east side of the restaurant and the gun allegedly had been brandished (the gun cannot be seen on the video, but testimony of Corbello and others established that the appearance of the gun triggered the exodus from the restaurant), Myvett had already left the White Castle. Myvett testified, consistent with the video, that he left the restaurant to look for Jackson and that, unable to locate Jackson outside, he went back into the restaurant to look for him. He then, for the first time that night, walked toward the east side of the restaurant (where the soda machine is located) and found Jackson and an individual later identified as Reginald Allen wrestling in the northeast corner of the restaurant. Myvett bent down towards Jackson, at which time a gunshot can be heard on the video recording. Myvett then helped Jackson up, thinking he may have been wounded, and the two quickly left the restaurant. A number of witnesses testified that a second shot was fired, but others, including Myvett and Corbello, did not recall hearing a second shot.

         As Myvett and Jackson were leaving, they walked directly in front of the parked car to which Martin Corbello and his friends had retreated. As they passed in front of the car, Corbello saw the man who had pulled the gun out during the fight (that is, Jackson) wearing the torn, puffy jacket. Corbello heard Myvett tell Jackson “to be cool” as the pair entered the car parked next to them (Myvett on the driver's side, Jackson on the passenger's side). Myvett explained on his direct examination that he made this comment because Jackson had a deep laceration on the corner of his mouth and appeared disoriented. Once Myvett and Jackson drove off, Corbello tried to call 911 but was unable to connect until police had already arrived on the scene.

         Thinking that Jackson could have been shot, Myvett drove Jackson towards Weiss Memorial Hospital, located on Marine Drive in Chicago. On the way, he ran a traffic light and a police patrol vehicle promptly pulled him over. Because their license plate matched the number Corbello had provided, the police officers who stopped the car took Myvett and Jackson into custody and searched them; they did not find any weapons on their persons or inside the car.[3]The patrol officers then drove them back to the White Castle. Jackson was wearing, among other items, a torn brown puffy jacket and sneakers with red shoe laces.

         In the meantime, police had arrived at the White Castle. Officers Bryant Garcia and Scott White were the first to arrive. Garcia spoke to Corbello, as well as Cameron Thompson and Brian Smothers, who were assisting Allen when the officers arrived. Based on the information they provided, Garcia issued the following radio flash message:

2054 for an update. . . . There's a few witnesses that are stating that, uh, it was a 4-door light grey color, uh, sedan, with the license plate of King 731322, uh fled in an unknown direction. The driver, uh, the shooter is a male black, light, er, or dark-skinned. 5'9”, approximately 190 lbs. Dreads, shoulder-length, full beard and mustache. And his coat is all shredded up from the fight. And he's armed with a revolver, black.

         Def. Ex. 10.1g.wav. This description is the pivotal fact of this case because it combined characteristics of the two men Corbello observed: Myvett indisputably wore shoulder-length dreadlocks at the time and Jackson indisputably was wearing a shredded brown coat when he was arrested.[4] All of the subsequent errors in the investigation and prosecution of Myvett arose from this initial conflation of characteristics of Myvett and Jackson that evening.

         Once Myvett and Jackson arrived back at the restaurant, the senior officer at the scene, Sergeant Barker, directed Corbello and his friends back inside the White Castle. Jackson and Myvett were removed from the patrol car and stood facing the east windows of the restaurant at some distance (estimates varied). Barker asked Corbello if he recognized the men. Corbello identified both Myvett and Jackson as having been involved in the fight that originated near the soda machine and ultimately moved to the location where Corbello and friends had been eating.[5]On direct examination, Corbello testified that during this procedure he specifically identified the man wearing a torn puffy jacket and bleeding from the mouth-that is, Wilbur Jackson-as the individual who brandished the firearm inside the restaurant. On cross-examination, however, Corbello acknowledged that he believed that during the showup procedure he had “picked the guy with the dreadlocks as the guy that pulled the gun, ” but was also certain he had identified the man wearing the torn coat as having pulled out the gun. After the show up, Myvett and Jackson were taken to the police station and processed. Police recovered from Jackson a torn, brown puffy coat and a pair of black sneakers with red shoe laces. (Photographs of these items were presented to the jury.) After the show-up at the White Castle, Corbello and Barry, among other witnesses, were then asked to proceed to the local precinct for further interviews.

         Detectives Almdale and Heerdt were assigned to investigate the White Castle shooting. Almdale testified that he received the White Castle assignment at approximately 3:30 a.m. on November 27, 2010 and headed directly to the scene. Sergeant Barker told him that a number of witnesses had been taken down to the local Chicago precinct station for processing and that no shooter had been identified. Almdale could not recall receiving any other information about the results of the show up before he left the White Castle and headed back to the station to interview the witnesses. Detective Heerdt remained at the White Castle for a period of time and then joined Almdale at the station. While at the station, Heerdt spoke to officer Sage Allenson, who had spoken to the victim at the scene; Allenson related that the victim had indicated that the shooter was wearing black gym shoes with red laces. Heerdt saw Jackson in the lockup at the station wearing black shoes with red laces and inventoried the shoes. Heerdt also knew that Jackson had been wearing a torn, brown coat and had visible injuries to his face resulting from the fight.

         Detective Almdale acknowledged during his testimony that none of the witnesses interviewed had identified Myvett by name as the shooter in the White Castle incident. Among the individuals Almdale interviewed were Martin Corbello and Demetrius Barry. According to Almdale, as Corbello provided his account of events, Corbello never referred to the individual who brandished the firearm by name. Instead, Corbello simply referred to the shooter as the individual with “dreads.” Almdale testified, contrary to Corbello's testimony, that Corbello never identified the shooter as wearing a torn brown puffy coat, which Almdale conceded would have been a clear indicator that Jackson, not Myvett, was the shooter. Corbello also testified that, while he used the term “dreads” in describing the individual who pulled the gun out, the reports of his interview by Almdale “just didn't jive with what I recall saying” about the two individuals involved in the fight and insisted that he identified the shooter as having worn a torn, puffy coat.

         Later that day, Almdale and Heerdt interviewed Allen in the hospital, first by themselves, and then accompanied by Assistant State's Attorney Maher Fakhoury, the felony review ASA, after his wound had been treated. Allen positively identified Wilbur Jackson from a photo spread as the shooter and added that Jackson was wearing black shoes with red shoe laces. According to Almdale, Allen also identified Myvett from the same photo spread as the other man who had been involved in the struggle for the gun, though he never identified Myvett as having produced the gun. According to Heerdt, Allen's friend, Cameron Thompson, corroborated Allen's identification when he stated that he was present at the White Castle and was positive that the shooter was not Myvett and was “50 percent sure” the guy with the gun was Jackson. Thompson's statement that Myvett was not the shooter, however, was not included in the supplemental report written by Almdale and Heerdt, an omission Heerdt characterized as an oversight.

         Both Almdale and Heerdt agreed, moreover, that the White Castle surveillance video shows that Myvett was already outside the White Castle at the time Corbello and friends fled from the restaurant-i.e., when the gun appeared. Nevertheless, Almdale and Heerdt testified that they watched the video a number of times the morning of the shooting-and at other points during the course of the prosecution-but found that it contained “few usable images” and discounted its contents because they were looking to see whether the video showed someone with a gun-which the White Castle video does not. On cross-examination, however, Heerdt conceded that-although grainy-the video was useful in establishing a timeline of events and in establishing Myvett's location in relation to those events, and that timeline contradicts the statements about Myvett's involvement in the fight that Almdale attributed to Corbello and Barry in his report. “In retrospect, ” Detective Heerdt acknowledged, “it probably would have been a good idea” to go through the video with the witnesses.

         The initial arrest reports and Case Incident Report were completed by Officers Kalfas and White by approximately 7:00 a.m. on November 27, 2010. The arrest reports state that Myvett “was positively identified as the offender, who . . . pulled out a handgun and fired it at victim Reginald Allen.” The Case Incident Report is similar. The Felony Review Form 101, completed by Detective Almdale after Allen had been interviewed at the hospital (and after Allen had definitively told them that Jackson, not Myvett, had been the shooter), stated that Corbello and Barry had observed Myvett pull the gun out, that a struggle for the gun ensued, and that Jackson gained control of the gun and shot Allen in the leg. The Felony 101 report did not detail Allen's identification of Jackson as the shooter, Thompson's corroboration of that fact, the match between Jackson's attire (torn puffy coat and red shoelaces) and that of the shooter, or the fact that the video footage showed that Myvett was not in the restaurant when the gun was pulled out. A felony review packet, which included the Felony 101 report as well as the arrest reports and other reports generated by other officers, was submitted to ASA Fakhoury (who had also interviewed the witnesses who went to the 20th District early that morning, including Corbello and Barry), who approved, at about 3:00 p.m. that day, felony charges against both Myvett and Jackson for aggravated battery with a firearm. The complaints filed against Myvett and Jackson, which Detective Heerdt Dated: Allen's behalf (since Allen was still in the hospital), were identical; neither specifically identified the shooter; both alleged that the battery occurred while each defendant “was armed with a firearm.” Detective Heerdt testified, however, that by the time he completed the complaints, the theory was that Jackson was the shooter and that Myvett was responsible as an accomplice because he had been involved in the struggle for the gun.

         On November 28, the day after their arrests, Myvett and Jackson proceeded to bond court. During the bond hearing, the Assistant State's Attorney (not ASA Fakhoury) represented to the court that it was Myvett who got into an argument with, and shot, Reginald Allen. Oddly and inexplicably (because the bond court ASA did not testify at trial[6]), he also told the court that Myvett and Jackson had gone to Allen's home and shot him there; no such information was included in the felony review packet. The ASA also disclosed that, at the time of the shooting, Myvett had three prior felonies including a conviction for unlawful use of a firearm by a felon in 2000 (when he was 17 years old).[7] Ultimately, Myvett's bond was set for $250, 000, while Jackson's bond was set for $150, 000.[8] No evidence was presented at trial as to what factors the judge specifically considered in setting the bond, why the bond was set at that level, why Myvett's bond was higher than Jackson's, or whether Myvett would have been able to post bond if bail had been set at a lower amount.[9]

         Myvett and Jackson were indicted on or about December 14, 2010, on charges of attempt murder and aggravated battery. Although the indictment is not in the record, it was undisputed at trial that the indictment charged Jackson as the shooter and charged Myvett under an accountability theory. Prior to indictment, detectives Almdale and Heerdt completed their Case Supplementary Report (submitted by Detective Almdale) on December 12, 2010. That report included summaries of interviews of Corbello and Barry indicating that they had identified Myvett as the individual who first pulled out the gun and of Allen's statements that Jackson, not Myvett, was the shooter and that Myvett was the other individual involved in the struggle for the gun. The detectives' Supplementary Report also indicated that Allen told Officer Sage Allenson at the scene (i.e., before he was taken to the hospital) that the shooter had been wearing black gym shoes with red laces. It contains no reference to statements reflecting that the shooter was wearing a torn brown coat.

         The ASA assigned to the case, Joy Repella, testified at trial. On direct examination, she testified that she reviewed all of the reports that had been generated by investigating police officers and detectives in the case and understood before the case was indicted that Jackson, not Myvett, was the shooter and that, accordingly, Jackson had been indicted as the person who was responsible for actually discharging the firearm. ASA Repella testified that Myvett had been indicted on an accountability theory, because he had been identified as having been involved in the struggle that resulted in Allen's shooting. She also confirmed that from the time of indictment, the decision whether to continue the prosecution was her decision and that she could have terminated the prosecution at any time she believed it was not justified. Repella opposed Myvett's motion for a directed verdict at trial because she believed that the evidence supported guilty verdicts for Myvett on an accountability theory.

         Some eight months after the indictment, in July 2011, Myvett's attorney in the criminal case (Jeff Neslund, who also represented Myvett in this case), brought a motion to reduce bond. As Repella acknowledged on cross-examination, notwithstanding the fact that Jackson had been indicted as the shooter, she also told the trial judge hearing the bond reduction motion that two witnesses had identified Myvett as the shooter.[10] Following the hearing on the motion, the judge denied the motion and Myvett remained in custody.

         In December 2011, Myvett was tried on the attempted murder and aggravated battery charges. During the trial, no witness testified that Myvett shot Allen or that he struggled with Allen for control over the firearm. To the contrary, Corbello testified that it was Jackson who shot Allen-not Myvett. At the close of the state's presentation of evidence, the trial judge granted the defense motion for a directed verdict and dismissed the charges against Myvett.


         Judgment as a matter of law is proper if “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed.R.Civ.P. 50(a)(1). Rule 50(b) allows a party to renew a motion for judgment as a matter of law within 28 days of an adverse jury verdict. Fed.R.Civ.P. 50(b). In considering a Rule 50(b) motion, the court “construes the evidence strictly in favor of the party who prevailed before the jury and examines the evidence only to determine whether the jury's verdict could reasonably be based on that evidence.” Passananti v. Cook Cty., 689 F.3d 655, 659 (7th Cir. 2012). Although the court “must determine that more than a mere scintilla of evidence supports the verdict, ” it must not “make credibility determinations or weigh the evidence.” May v. Chrysler Grp., LLC, 716 F.3d 963, 971 (7th Cir. 2013) (citations and internal ...

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