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Hampton v. City of Chicago

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

July 13, 2017

PATRICK HAMPTON, Plaintiff,
v.
CITY OF CHICAGO, MICHAEL DUFFIN, and THOMAS PTAK, Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and Illinois state law for alleged violations of his civil rights stemming from his 1982 criminal conviction. This matter is before the Court on Defendants' motion for summary judgment [104]. For the reasons explained below, the Court grants in part and denies in part Defendants' motion [104]. The Court enters summary judgment in favor of Defendants and against Plaintiff on Plaintiff's Monell claim against the City of Chicago for violation of his right to Due Process (Count I) and on Plaintiff's claims for Failure to Intervene (Count II), Malicious Prosecution (Count IV), Intentional Infliction of Emotional Distress (Count V), Civil Conspiracy (Count VI), and Respondeat Superior (Count VII). Defendants' motion for summary judgment is denied as to Plaintiff's Section 1983 claim against Defendant Duffin for violation of Plaintiff's right to Due Process (Count I), Plaintiff's Section 1983 claim for Conspiracy (Count III), and Plaintiff's claim for Indemnification (Count VIII). This case is set for status hearing on July 26, 2017 at 9:30 a.m.

         I. Background

         The Court takes the relevant facts primarily from the parties' Local Rule 56.1 statements and exhibits thereto, [106], [107], [108], [122], [124], [125], [126], [142], and [148]. In addition, the Court held an oral argument on the summary judgment issues and accepted supplemental briefing [157], [158] on various issues arising out of the briefs and discussed further during the oral argument. The following facts are undisputed except where otherwise noted. The parties' evidentiary objections are discussed and ruled upon where relevant throughout this section of the opinion.

         A. The Events of December 29, 1981

         This case begins with events that occurred more than thirty years ago, on December 29, 1981. At that time, Plaintiff Patrick Hampton (“Plaintiff”) was 18 years old and living in Chicago at 4429 South Federal in the Robert Taylor Homes. Defendants Michael Duffin (“Duffin”) and Thomas Ptak (“Ptak”)[1] were employed by Defendant the City of Chicago (“City”) as Detectives in the Chicago Police Department (“CPD”). They were both assigned to Area 3 violent crimes.

         On December 29, 1981, Plaintiff attended the “Holiday Jam” concert at the Chicago International Amphitheater (“Amphitheater”). Denise M. (“Denise”), her then-boyfriend Hugo N. (“Hugo”), his younger sister Martha N. (“Martha”), and her boyfriend Scott S. (“Scott”) also attended the concert. They were seated in the fifth row close to the stage. During the concert, a large numbers of concertgoers-around 40 or 50 total, and all or mostly African-American men-moved down the aisle toward the stage. Some of these individuals were chanting or shouting gang slogans and making motions with their hands in support of the “Black Gangster Disciples” gang. While trying to leave the venue, Denise, Hugo, and Martha were attacked by members of this group and struck with fists, chairs, and other objects.

         Denise's clothes were ripped off by the attackers. Men pushed their penises into her face while she was being beaten and held down on the floor. All of her jewelry was ripped from her body and stolen. Hugo was also stripped of his clothing and jewelry, kicked in his back, and punched in his face and all over his body. He was hit with chairs while he attempted to shield Denise from the violence. Martha's hair was pulled and her clothing was partially removed. She described her attackers as hitting her and trying to get her to the ground while tearing off her pants and underwear. Her necklace was stolen and she was knocked unconscious, before regaining consciousness, getting up, and running away.[2] Following the attack, Denise, Hugo, and Martha were taken to Mercy Hospital.

         The record includes a medical report that was prepared concerning Martha. See [124-10]. The “history” section reports that Martha stated “she was in ampi. and attacked by unknown [men] and past out [sic] for about 5 minutes, she is not sure if there was sexual assault.” [124-10] at 3.

         B. The Police Investigation

         Detectives Duffin and Ptak were assigned to investigate the Amphitheater attacks. Duffin and Ptak went to Mercy Hospital and attempted to interview Denise. They were unable to conduct the interview because Denise was too emotionally upset. They were able to interview Hugo, who had been released from the hospital but was there visiting Denise. According to the police report, Hugo told Duffin and Ptak that he and his girlfriend were jumped by approximately twenty black males who were yelling “Disciples” and “get her.” [122-1] at 5. Hugo also told the detectives that the black males who jumped him and his girlfriend tore their clothes off their bodies and took their jewelry and money. Hugo further stated that approximately ten of the men had their penises out and were attempting to insert them into his girlfriend's mouth and vagina. In an attempt to prevent the men from doing this, Hugo laid himself on top of Denise to shield her body; however, numerous men were still able to put their hands inside Denise's vagina.

         On December 31, 1981, Keith Powell (“Powell”), who at the time was fourteen years old, contacted Officer Praski (“Praski”) of the Fifth District with information regarding the incident at the Amphitheater. Praski reported that Powell stated that he was at the concert at the Amphitheater on December 29, 1981 and that the individual responsible for the attack of the girl was Ricky Knight (“Knight”). Knight was a local gang leader in the Black Disciples. Knight was the only individual who Powell identified to Praski.

         Praski contacted Duffin and Ptak with the information that Powell had provided. Duffin and Ptak interviewed Powell at the Fifth District. They took him to the Gang Crimes office to review gang photographs. Duffin took notes during the interview with Powell. Duffin subsequently wrote a report regarding his interview with Powell, and destroyed his notes. The report that the detectives prepared following their interview with Powell states:

“Keith Powell stated in essence but not verbatim the following. He attended the rock concert at the international amphitheater the night of the incident. Further that their [sic] were numerous people in attendance that he knew from his old neighborhood at 44th & Federal. He stated that the people that he knew there were members of the third world black gangster disciple street gang. As the concert was in progress he observed the people he knew from this gang attack a white girl and boy who were watching the concert. He saw them tear the clothes off this couple and observed the couple break loose a short time thereafter and run away. After leaving the consert [sic] he rode the 43rd Street bus east with the people he knew while on the bus he heard them bragging about sticking their penis's [sic] in the girls mouth and putting their hands in her vagina. He also hear [sic] them say that they robbed the couple of their jewelry money and clothing. He then gave r/d's the names and addresses of these offenders. He stated that the offenders were Pat Hampton of 4429 S. Federal, Ezra Garner and his brother Ron Garner of 4429 S. Federal, Ricky knight [sic] ¶ 4410 S. State, Ron Mallory of 4429 S. Federal, Bird of 4500 S. State apt. 909 and Sandel Pool. He went on to relate that the leader of this gang was Rickt [sic] Knight. R/d”s brought Keith Powell into A/1 Gang Suppression unit and showed him photos from the various gang books. He identified the Photo of Ricky Knight as the leader of the gang and one of the offenders.”

[125] at 8 (emphasis added).

         Following the interview with Powell, Martha and the other victims signed complaints against Plaintiff and swore to the facts alleged in the complaints. Duffin also signed the complaints in the capacity of “Clerk, ” stating that the complaints were “subscribed to and sworn to before” him. [137] at 20-21. Duffin, Ptak, and other police officers arrested Plaintiff, Ezra Garner (“Ezra”), Robbie Garner (“Robbie”[3]), and Bobby Brooks (“Brooks”) at the Robert Taylor Homes. Following those arrests, other suspects, including Knight, Ronald Mallory (“Mallory”), “Bird, ” and Sandel Pool (“Pool”) were still wanted by the CPD.

         Ptak and Duffin spoke with Plaintiff following his arrest. The detectives included the following statement about that conversation in their report:

He [Plaintiff] later stated that he was at the Amphitheater during the assault and robberies of the victims. He went onto relate that [he] was sitting in the back of the Concert area when he saw a large group fighting near the stage and then later heard that some people were talking about a girl getting raped. [Plaintiff] went onto relate that he got on an Eastbound CTA bus to go home and while on the bus he overheard a subject by the nickname “Spoon” whose real name is Ronald Mallory state that he had kicked the white broad in her shit. He was asked what Spoon had meant when he said shit and he replied her vagina, he also added that Spoon was talking with Bud, Ezra Garner and Ronnie Garner. He related that Bud is also known as Budline and that he lives at 4429 So. Federal, Apt #1405. Hampton further stated that Spoon kept on bragging about what he did to the white broad and her boyfriend while he was apparently attempting to rape the girl.

[125] at 9-10.

         Plaintiff denies the accuracy of several aspects of the report. Specifically, Plaintiff denies that he told the detectives that he was “sitting in the back of the Concert area when he saw a large group fighting near the stage and then later heard that some people were talking about a girl getting raped.” [125] at 10. Plaintiff also denies that he told the detectives that he overheard Mallory talking with Ezra or Ronnie, but admits the accuracy of the remainder of the paragraph quoted above. [125] at 10.

         On December 31, 1981 at approximately 9:10 p.m., Hugo and Martha viewed a line-up at Area 3 Violent Crimes. The line-up consisted of four suspects (Plaintiff, Brooks, Ronnie, and Ezra) and four “fillers.” Hugo viewed the line-up and made no identifications. Martha then viewed the line-up and identified Plaintiff, Brooks, and Garner as the offenders who pulled her clothing off, Brooks as the person who stole her necklace, and Garner as the man who put his hand in her vagina. Martha also identified Donnell Howard as one of her attackers, but he was subsequently released from custody without charge. The detectives prepared a report stating that, following her viewing of the line-up, Martha stated the following “in essence but not verbatim”: “[A]fter her boyfriend [Scott] was hit over the head with a crowbar and left the amphitheater she returned to where the[ir] seats were to tell her brother [Hugo] and his girlfriend [Denise] that they should leave. Upon returning to their seats she was attacked by approximately 20 m/b's who tore her clothes off and beat her and attempted to rape her she managed to break loose and ran to a security guard. . . . After receiving no help from [the first security guard she spoke with] she managed to run to another security guard who escorted her to the first aid station.” [122-1] at 7-8.

         Plaintiff objects to the Court considering this report on the basis that “[t]here is no statement in the supplementary reports of what Martha told the Detectives, other than the purported line-up identifications.” [125-1] at 11. However, the statement quoted above does appear in the report that Defendants filed in the record, see [122-1] at 7-8, and addresses more than just Martha's identification of Plaintiff at the line-up. Plaintiff also objects to the use of contents of the report as hearsay on the basis that the detectives' reports are inaccurate and therefore not subject to the Rule 803(6) hearsay exception for business records. See Fed.R.Evid. 803(6). Plaintiff argues that he has demonstrated pursuant to Rule 803(6)(E) that the “method or circumstances of preparation” of the report “indicate a lack of trustworthiness.” Fed.R.Evid. 803(6)(E). The Court concludes that it would be premature to exclude the supplemental report from the record on the basis on Rule 803(6)(E) at the summary judgment stage. First, Plaintiff has not met his burden to show that “the evidence is inadmissible on all potential grounds” under the Federal Rules of Evidence. Euroholdings Capital & Inv. Corp. v. Harris Trust & Sav. Bank, 602 F.Supp.2d 928, 934 (N.D. Ill. 2009). Second, while Plaintiff has raised legitimate questions concerning the trustworthiness of the report's description of the interview with Powell-including by pointing to Powell's recent deposition testimony denying that he identified Plaintiff as an assailant-Plaintiff has not raised any specific concerns about the accuracy of the report's description of the detectives' interview with Martha. Although the report does not specifically mention that Martha lost consciousness for some time during the attack, it is not inconsistent with Martha's medical report or subsequent testimony and therefore does not indicate that the report is untrustworthy. Third, Plaintiff has not demonstrated that Martha would be unavailable to testify at trial. Cf. United States v. Anderson, 450 F.3d 294, 302 (7th Cir. 2006) (police officer's testimony about statements made to him during his investigation by three of the informants who testified at the trial was not hearsay where statements were consistent with informants' testimony, all three informants were subjected to cross-examination, and their credibility was attacked).

         On January 1, 1982, just after she was discharged from the hospital, Denise met with Ptak alone and viewed a stack of approximately ten to twenty photographs. After reviewing the photographs, Denise identified Plaintiff and Knight as two of her assailants. Subsequently, Denise viewed a line-up at Area 3 Headquarters and identified Plaintiff and Knight as two of her assailants. It is disputed whether Denise identified Plaintiff based on her own observation of Plaintiff during the attack or instead based on Ptak's use of suggestive techniques during the photo array, in particular re-inserting Plaintiff's photo multiple times into the stack of photos (as discussed below).

         Felony Review Assistant States Attorneys (“ASAs”) Kershner and Hyman reviewed the evidence and approved charging Plaintiff, Ezra, Robbie, and Brooks each with three counts of robbery, one count of deviate sexual assault, and one count of attempted rape. They also approved warrants for the arrest of Knight and Mallory. Plaintiff disputes these facts to the extent that they are based on Duffin's and Ptak's supplemental report and claims that they are hearsay. The Court is not persuaded by this argument because Plaintiff has not identified any out-of-court statements in the supplemental report that Defendants are using to prove the truth of the matter asserted, i.e., that the prosecutors decided to charge Plaintiff and his co-defendants with certain crimes.

         On January 3, 1982, the Chicago Sun Times reported in an article that a women from Cicero had reported to CPD on January 2 that she had been assaulted at the Amphitheater on December 29, 1981, as well, and that she identified as her assailant one of the four men who had already been arrested. The woman from Cicero is not referenced in any police reports relating to the attacks on Denise, Martha, and Hugo. The Sun Times also reported that other witnesses told Duffin and Ptak that they would have intervened in the attack but were too scared.

         Within the next few days additional persons were arrested, line-ups were held, and felony review ASAs approved charges against Mallory, Kevin Tyler (“Tyler”), Michael Neal (“Neal”), and Kenneth Ford (“Ford”). On January 8, 1982, Knight was also arrested.

         Following the arrests, Duffin and Ptak learned the names of the four security guards who were working around the main stage area of the Amphitheater during the incident. One of the guards was William Henrichs (“Henrichs”), who was also a Cook County Sheriff's deputy. Henrichs did not come forward as a witness until Detectives Duffin and Ptak contacted him. They interviewed Henrichs around January 8, 1982 and prepared a supplemental report reflecting the following:

Williams Henrichs stated in essence but not verbatim the following: When the doors first opened I was standing by the Halstead street south entrance. I was searching people coming through the doors. At one point about fifty to one hundred people broke through and gained entrance by crashing the gate and not paying to get in. As the band came onto the stage I was transferred to a stationary assignment approximately ten feet south of the stage. Somewhere around midnight a female latino [sic] came up to me she was crying hysterically stating that members of the audience tried to rape her. I observed that her shirt and her pants had been torn and her pants zipper was torn. I recognized her as a girl I had admitted through the gate. I told her to come with me to first aid she told me no they still have my brother and his girlfriend. I left her with the back stage security officer I don't know his name. I then proceeded north across the front of the stage and got Larry and three other security people to help me. We entered the disturbance and observed thirty to forty m/b's creating a disturbance. We pushed our way through and pulled numerous people off a pile. We then observed several m/b's holding down and beating a m/L and also a f/L being pinned to the floor with one m/b pulling at her breasts as if to be attempting to pull them off and another m/b on his knees jamming an object in and out of the girls vagina. The girl was curled up in a ball. Both latinos [sic] were nude. Larry pulled them back stage away from the crowd. We were unable to apprehend any of the m/b's as we were outnumbered six to one and further we were mainly concerned about getting the victims to safty [sic]. After arriving at the first aid station I observed that the girl had numerous bruises and contusions on her face, back, neck and legs and that the boy had a black eye and a cut on his cheek and bruises on his back. The girl was bleeding profusely. The nurse called for an ambulance and the police. Also some of the security called the police and the fire dept. A few days after the incident I was watching television and I saw the first four people who were arrested on television in custody. I recognized all of them as being in attendance at the concert the night of the incident. Further I recognized one of them as the person I saw jamming something into the girls vagina.

[125] at 13 (quoting [107-19] at 3). The supplemental report also states that Henrichs was shown “numerous photos” and “identified the photo of [Plaintiff] as the person he observed jamming a foreign object into the girls vagina.” [107-19] at 3. It further states that Henrichs identified Brooks, Ezra, and Ronnie “as people he saw enter through the gate he was watching, ” but that he did not recall Plaintiff passing through his gate. Id.

         Plaintiff objects to Defendants' use of this supplemental report on the basis that it is “inherently unreliable and therefore is hearsay” under Federal Rule of Evidence 803(6)(E). [125] at 14. As evidence, he points to Hugo's 2013 deposition testimony, which is discussed in more detail below. When Hugo was asked whether “any security guards [came] to [his] aid while [he was] being punched and kicked, ” he testified: “No. After . . . the crowd had-the only way I could describe it is like they had backed off to see what they had done to us. Only then is when I actually remember seeing a man in a yellow coat that was security.” [124-11] at 3-4. When asked, “[d]id you ever see any security ripping people away from you or the scene, ” he responded: “No. Nobody came to help us, nobody.” Id. at 4. The Court concludes that it will not exclude the supplemental report from the record on the basis on Rule 803(6)(E). The fact that Hugo did not (more than thirty years after the fact) recall seeing security guards pulling people off of him does not demonstrate that the supplemental report is inherently unreliable. Further, Hugo and Denise both testified at the time of the trial in 1982 that security guards pulled people off of them. [122-4] at 77, 103-04.

         On January 24, 1982, Duffin and Ptak interviewed Garnett Dubose (“Dubose”), who was also in attendance at the Amphitheater on the evening of the incident. Dubose was under arrest on an unrelated charge at the time of the interview. The report that the detectives prepared stated that Dubose “stated in essence but not verbatim” that he was at the concert with Francine Harris (“Francine”) and “observed between twenty to thirty m/b's attack a young white couple who were seated in front of him.” [122-10] at 3. The report states further that Dubose and Francine were seated “about nine rows back from the incident” and that ‘Francine probably got a good look at the offenders as she was watching the incident through a pair of binoculars.” Id. According to the report, the detectives showed Dubose “numerous photos and he identified the photos of [Plaintiff] and Ricky Knight as two of the m/b's who were attacking the young white couple” and stated that “he saw these two going in and out of the pile that was on top of the aforementioned couple.” Id. At the subsequent suppression hearing, Dubose testified that he was shown a pile of photographs and picked out two photos and told the detectives, “These are the two people I'm sure I saw at the Amphitheater.” [123-13] at 30.

         Plaintiff objects to the portion of the police report concerning Dubose as hearsay under Rule 803(6)(E). The Court is not persuaded because Plaintiff does not cite to any evidence in the record showing a lack of trustworthiness with the part of the report that recounts Dubose's testimony. The Court will not discount the entire report as hearsay simply because Plaintiff questions the accuracy of other parts of the report, such as its description of Powell's statement to police.

         C. Pre-Trial Proceedings

         On January 4, 1982, Duffin testified before the grand jury on charges against Plaintiff and seven other suspects. He testified that his investigation revealed that Plaintiff was a gang member; that Plaintiff and the other suspects approached the three victims as a group and attacked them; that they stole from the victims; that members of the group sexually assaulted Denise and Martha; that members of the group including Plaintiff were overheard admitting their participation in the attack; and that “a witness or all of the victims” identified each participant. [137] at 27.

         The Grand Jury returned an indictment against Plaintiff for: 1) attempted rape, deviate sexual assault, three counts of aggravated battery, robbery, conspiracy to commit rape, and conspiracy to commit deviate sexual assault of Denise; 2) aggravated battery and robbery of Hugo; and 3) attempted rape, aggravated battery, robbery, and conspiracy to commit rape of Martha. Judge Strayhorn was the presiding judge.

         Plaintiff retained Jack Rodgon (“Rodgon”) as his defense attorney. Shortly after Hampton was indicted, Rodgon issued a subpoena duces tecum to CPD's keeper of records requesting “any and all police reports.” [125] at 15. On April 22, 1982, while discovery was ongoing, Rodgon issued a subpoena duces tecum to the Commander of Area 3, Stibich, and to Lt. Joseph Curtin at Area 3 Violent Crimes requesting “any and all reports, records, memorandums, statements and any other documents you may have involving the investigation …. including but not limited to any and all street files that may have been prepared by officers in area 3.” [125] at 16. On April 23, 1982, Judge Strayhorn entered an order instructing the Cook County State's Attorney and Superintendent of CPD to preserve all handwritten notes, memoranda, tape recordings, and other records prepared in connection with the case by arresting officers and investigative personnel, commonly known as a “street file.” [125] at 16.

         On May 7, 1982, the deadline for returning the subpoenas, ASA O'Connor represented to the Court that he “had a conversation with the detective that worked on this case” and “[t]here is no street file.” [125] at 16. He further clarified that, “to our knowledge, there is no street file, now or ever, ” and that “[t]o our knowledge, . . . we are giving [the defense] what we have.” Id. Stibich and Curtin failed to appear at the scheduled hearing concerning the subpoenas. Four days later, on May 11, 1982, Rodgon filed petitions for rule to show cause against Stibich and Curtin for their failure to appear. The same day, Judge Strayhorn issued orders requiring Stibich and Curtin to appear on May 26, 1982 “to show cause why they should not be held in contempt of court.” Id. at 17. The record does not reflect how the order to show cause was resolved.

         During pre-trial proceedings, Plaintiff's attorney Rodgon made an oral motion to quash Plaintiff's arrest and the subsequent identifications by the state's witnesses. Rodgon followed this up on June 11, 1982, by filing a motion to suppress testimony concerning the line-up Plaintiff participated in and the in-court identification of Plaintiff by the state's witnesses. See [107-33]. He offered the following points in support of his motion to suppress: 1) prior to being placed in the line-up, Plaintiff was handcuffed and was presented to certain identification witnesses of the state, and police officials indicated to the identification witnesses that he was the perpetrator of the crime; 2) Plaintiff believed that the identification was induced by the activities of the police at the police headquarters; and 3) “the witness, prior to any corporal identification of [Plaintiff], observed photographs in a manner that was unnecessarily suggestive.” [125] at 17-18 (quoting [107-33] at 3).

         While these motions were pending, six of Plaintiff's eight co-defendants pled guilty and received sentences of six months with credit for time served. [125] at 18. On July 30, 1982, Plaintiff's oral motion to quash Plaintiff's identification was heard. Plaintiff's counsel and Knight's counsel questioned Ptak. Ptak testified that Duffin had taken notes during his initial interview with Powell, that the notes were reduced to a written report, and that the notes were then destroyed. According to Ptak, he watched Duffin rip up the notes and throw them in the waste basket. Id. at 19. The Court denied Plaintiff's motion to quash.

         On September 1, 1982, Judge Strayhorn heard argument on Plaintiff's written motion to suppress. Hugo, Denise, Martha, Powell, and Ptak also testified at the suppression hearing. Upon questioning by Knight's attorney, Gary Brownfield (“Brownfield”), Hugo testified that he went to the police station on December 31, 1981 and viewed a line-up, and that no police officer said anything to him prior to viewing the line-up. [136-1] at 105, 111. He further testified that after the line-up, he looked through a stack of about twenty color photographs and recognized one person from the photos. Id. at 106-108. Officers Duffin and Ptak handed him the photographs and told him to look at them, but did not tell him what he was looking for, who the photographs were of, or whether there was a suspect among the photos. Id. at 109. Hugo picked out one photo from the stack (Knight's) and handed it the officers. Id. at 110. Hugo testified that he viewed a second line-up at the police station on January 8, 1982, and identified the same person who he had identified in the photographs he viewed on December 31. Id. at 112, 116. According to Hugo, the officers did not tell him anything when he viewed the line-up. Id. at 116. Hugo further testified that he never identified Plaintiff in a line-up and that no one ever identified Plaintiff to him. Id. at 117.

         At the suppression hearing, Rodgon and Brownfield also cross-examined Denise at length about the photographs that she viewed and the identifications that she made. Denise testified that she and Ptak did not have any conversation before she viewed the photo array. Brownfield examined Denise first. Specifically, Denise testified:

Q: And do you remember how many photographs they showed you?
A: It was about ten to twenty.
Q: Do you remember who showed you these photographs?
A: Detective Ptak.
Q: And where was this?
A: It was close to the lobby in a little square room near the lobby.
Q: And what date was this on again?
A: January 1st.
Q: And about what time was that?
A: It was in the morning?
Q: Prior to Officer Ptak showing you these pictures, what, if anything, did he say to you?
A: Nothing, he just said to look at the pictures and see if I recognized anybody.
Q: Did he tell you that any of the offenders were in the photographs?
A: No.

         [125] at 20; see also [136] at 8; [136-1] at 6-53. Denise further testified that when she looked at the photos, they were not spread out on a table, but “they were by hand, I was looking at them one at a time.” [136-1] at 12. She then made in-court identifications of Plaintiff as one of the two people she recognized in the photographs. Id. at 13. Rodgon then questioned Denise. He asked her, “while you were looking at the pictures, was there any other conversation between yourself or Officer Ptak, ” and she responded, “No.” [136-1] at 23-24. At the close of the testimony, the motion to suppress was denied on the basis that Plaintiff had not presented any evidence indicating that any illegal police activity lead to the witness identifications.

         On October 7, 1982, Rodgon issued a subpoena duces tecum to Officer Barberio and Officer Garmon of the CPD requesting any and all police records, reports, memoranda, and street files related to Plaintiff and involving the December 29, 1981 incident.

         D. Plaintiff's Criminal Trial and Direct Appeal

         On October 12, 1982, Plaintiff's trial began. His case was tried simultaneously with the cases against Knight and Mallory, with three separate juries. Powell was called as a witness by the prosecution. He testified that, at the end of the concert, he saw a group of men coming down the aisle toward the stage making gang signs and chanting gang slogans. He identified Plaintiff, Knight, and Mallory as members of the group. [137] at 18. However, he did not testify that he saw Plaintiff do anything. Powell also testified that Plaintiff was in the group that got on the bus with Knight following the concert and that the group were heard “bragging about what they did to that girl” and talking about taking jewelry. [137] at 18. However, Powell did not testify about who specifically said what.

         Henrichs testified at trial that he saw Plaintiff enter the concert gate and searched him. Henrichs stated that just after midnight, a woman with torn clothes approached him and told him that others were being attacked. He testified that he approached the stage with other guards and saw a large crowd of black men in a circle. Henrichs further testified that he saw Plaintiff thrusting his arm toward a woman's vaginal area and that on January 6, 1982, he identified Plaintiff and three other participants in a photo array. According to Henrichs, another security guard pulled Plaintiff off of Denise.

         Hugo testified at trial that when he, Martha, and Denise saw the men move toward the front of the stage, they attempted to leave but had their path blocked and then were attacked. Hugo further testified that he was hit, kicked, and punched and had his wallet, keys, and jewelry stolen. Hugo identified Knight in court as one of his and Denise's attackers and testified that he had identified Knight from a photo array and a line-up. Hugo testified that a “black guy in a yellow coat” (a security guard) came and pulled him out of the crowd and that “another guy in a yellow coat was taking Denise out.” [122-4] at 103-04.

         Martha testified at trial that she ducked when she saw Knight about to hit her with a chair and that a number of men then starting hitting and kicking her. She testified that there were as many as thirty or thirty-five men around her, grabbing at her clothes and jewelry. Martha further testified that Plaintiff was the man who tore her pants and “tried to put his hand in her vagina.” [125] at 24. She also testified that she managed to get away, heard someone yell “get her, ” and saw Knight behind her. Id. at 24.

         Denise testified at trial that she was beaten, sexually brutalized, and robbed of her clothing and jewelry. She testified specifically that Knight put his penis in her mouth and that Plaintiff attempted to put a cold, hard object in her vagina. [122-4] at 76. She further testified that a man in a yellow coat eventually pulled the men off of her and they scattered. Id. at 77. She also confirmed her earlier identifications of Plaintiff from the photo array and in the first line-up she viewed at the police station. Rodgon cross-examined Denise regarding her identification of Plaintiff.

         At the conclusion of trial, the jury was provided with instructions. One of the instructions informed the jury on a theory of accountability: “A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees ...


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