                                                                                         FILED
                                 NOT FOR PUBLICATION                                     MAR 27 2017
                                                                                     MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                                 U.S. COURT OF APPEALS



                                 FOR THE NINTH CIRCUIT


STACY DRAYTON,
                                                            No. 15-55458
                 Plaintiff-Appellant,

    v.                                                      DC No. 2:13-cv-05041-SJO-DFM

STEPHEN SCALLON, et al.,                                    MEMORANDUM

                 Defendants-Appellees.


                        Appeal from the United States District Court
                           for the Central District of California.
                         S. James Otero, District Judge, Presiding

                            Argued and Submitted March 9, 2017
                                   Pasadena, California

BEFORE: REINHARDT and NGUYEN, Circuit Judges, and MARBLEY, District

Judge.




         
          This disposition is not appropriate for publication and is not precedent except as provided by
9th Circuit Rule 36-3.

         
           The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.
        Stacy Drayton appeals a jury verdict and judgment in favor of Officers

Scallon, Dudas, Hui, Nunez, and Tourtellote (the “officers”) on his excessive force

claim. We have jurisdiction under 28 U.S.C § 1291, and affirm.

        On July 15, 2011, Drayton was arrested after Officer Scallon found him

driving the wrong way down a one-way street in a vehicle that he did not have

permission to drive. Drayton claimed that he repeatedly was hit and kicked by the

officers from the time he was stopped until after he was placed in a cell at the

Metropolitan Detention Center. The officers denied hitting or kicking Drayton.

        Drayton was photographed in connection with his booking, and the

photographs, which show a lack of visible injury to Drayton’s head, were admitted

at trial.

        Because Drayton reported having been subject to excessive force at the hands

of the officers, an investigator, Sergeant Ruben Lopez, interviewed him on the

evening of July 15. A photographer also took pictures of Drayton at that time. These

photographs showed a lack of visible injury to Drayton’s face, arms, and torso. The

transcript of this interview, Sergeant Lopez’s observations, and these photographs

were admitted into evidence at trial. A few days later, Drayton was examined by a

nurse practitioner, whose notes were introduced into evidence.         These notes

indicated a “[s]light bump” on Drayton’s head, a “potential head injury,” crack

cocaine use (both before and on July 15, 2011), and schizophrenia, for which


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Drayton was not taking medication. The officers also introduced evidence of

Drayton’s extensive criminal history.

      Drayton’s case-in-chief consisted primarily of his own account of the events

in question—an account which deviated in certain respects from accounts he gave

to Lopez and the examining nurse, and the account he gave during his deposition.

The jury returned a verdict in favor of the officers.

      Drayton appeals the admission of evidence that he was: (a) schizophrenic and

unmedicated; and (b) previously a crack cocaine user. He also appeals the admission

of his rap sheet, which includes numerous arrests and several misdemeanor

convictions (in addition to ten felony convictions), for purposes of impeachment.

Finally, Drayton appeals allegedly inflammatory references to this evidence in the

officers’ opening statement and closing argument. Drayton’s counsel did not object

to this evidence and argument at trial, with the exception of a relevancy objection to

evidence that he was diagnosed with a mental illness.

      We review for plain error the admission of evidence at trial to which an

appellant: (a) failed to object; or (b) makes a different objection on appeal. Fed. R.

Evid. 103(e); Williams v. Union Pac. R.R., 286 F.2d 50, 55 (9th Cir. 1960). We also

review alleged attorney misconduct, “absent a contemporaneous objection[,]” for

plain error. Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1193 (9th Cir. 2002)

(internal quotations omitted).


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      The district court commits plain error “where the integrity or fundamental

fairness of the proceedings in the trial court is called into serious question.” Bird v.

Glacier Elec. Coop., Inc., 255 F.3d 1136, 1148 (9th Cir. 2001). We may not reverse

unless the evidence is “highly prejudicial and affected . . . substantial rights.”

Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1016 (9th Cir. 1999). Even if the

district court commits error, “[i]f the jury more probably than not would have

reached the same result absent the error, the error is harmless and the party’s

substantial rights have not been affected.” Id.

      1.     Although the district court should not have admitted the evidence that

Drayton suffered from schizophrenia without any indication that his diagnosis

affected his ability to perceive the events in question, the court did not commit plain

error in so doing. Evidence of a severe illness that bears on a witness’s ability to

perceive events is admissible to cast doubt on that witness’s ability to perceive

events. Gonzalez v. Wong, 667 F.3d 965, 983-84 (9th Cir. 2011). There was no

evidence in this case, however, that Drayton’s schizophrenia diagnosis bore on his

ability to perceive events.    Therefore, without more, the prejudicial effect of

Drayton’s schizophrenia diagnosis substantially outweighed its probative value

under Federal Rule of Evidence 403, and the district court erred in admitting this

evidence.




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      Nevertheless, the jury more probably than not would have reached the same

result absent the error.    Drayton’s case, which was based solely on his own

testimony, was not strong. Due to his inconsistent statements, the photographic

evidence, his drug use during the events in question, and his prior felony convictions,

the jury “more probably than not would have reached the same result absent the

error.” Beachy, 191 F.3d at 1016. Therefore, the district court did not plainly err in

admitting this evidence.

      2.     The district court erred in admitting Drayton’s rap sheet, but that error,

too, did not rise to the level of plain error. Drayton’s rap sheet contained entries

relating to his ten felony convictions, numerous arrests (one of which was for

murder), and several misdemeanor convictions.          The felony convictions were

admissible under Federal Rules of Evidence 609(a)(1)(A) and 403, but not in the

form of a rap sheet. United States v. Barry, 814 F.2d 1400, 1404 & n.7 (9th Cir.

1987) (“Rap sheets have never been allowed as evidence of a conviction . . . .”

(internal quotation mark omitted)). The misdemeanor convictions and arrests were

not admissible, especially not in the form of a rap sheet. Id.; see also Fed. R. Evid.

403; Nelson v. City of Chicago, 810 F.3d 1061, 1067 (7th Cir. 2016) (“It’s well

established that in general, a witness’s arrest record will not be admissible.”

(brackets and internal quotation marks omitted)).




                                          5
      Again, however, these errors did not rise to the level of plain error because

“the jury more probably than not would have reached the same result absent the

error.” Beachy, 191 F.3d at 1016. In addition to the rap sheet, the jury had before it

admissible evidence of eight felony convictions. The arrests and misdemeanors, at

their most prejudicial, go to show Drayton’s lengthy criminal history, which had

already been demonstrated by admissible evidence of his felony convictions.

Drayton has not shown that evidence of additional contact with law enforcement

affected his substantial rights.

      3.        The district court did not err in admitting evidence of Drayton’s prior

drug use. Drayton had told the nurse practitioner that he had used cocaine on the

night of July 15, 2011, but testified during his deposition and at trial that he had been

under the influence of marijuana and beer. Drayton’s drug use that night was

squarely at issue—both for his credibility and for his ability to perceive the events

in question. When the officers questioned Drayton about his drug use on July 15,

Drayton volunteered evidence of his prior drug use. Then, the officers introduced

additional evidence of this prior drug use. The district court did not plainly err in

admitting it.

      4.        Even if the officers’ counsel made isolated inflammatory statements

during her opening statement and closing argument, these statements did not

constitute plain error because we cannot find that they “so permeate[d] the trial as to


                                            6
show that the jury was necessarily prejudiced” or “offended fundamental fairness

and deprived [Drayton] of our Constitution’s guarantee of due process.” Bird, 255

F.3d at 1145, 1148 (internal quotations omitted). Considering, as we must, “the

totality of circumstances, including the nature of the comments, their frequency,

their possible relevancy to the real issues before the jury, the manner in which the

parties and the court treated the comments, the strength of the case, and the verdict

itself,” we find that Drayton has not reached the “‘high threshold’ [erected by the

federal courts] to claims of improper closing arguments in civil cases raised for the

first time after trial.” Hemmings, 285 F.3d at 1193 (internal quotations omitted).

      The officers’ counsel made isolated, arguably inflammatory statements over

a three-day trial. The comments themselves include two references to Drayton’s

felony convictions, one of which (calling him a “multiple felon”) could be

considered inflammatory. They also include two references to his mental health,

one of which (calling him a “psychiatric patient”) could be considered inflammatory.

Finally, they include three references to Drayton’s drug use, none of which was

inflammatory.

      Unlike the extensive comments made in Bird, the inflammatory comments

made by the officers’ counsel were isolated rather than pervasive.         Compare

Hemmings, 285 F.3d at 1194 (finding a short comment in a sixty-six-page closing

statement not pervasive), with Bird, 255 F.3d at 1149-51 (discussing numerous,


                                          7
racially charged comments and imagery likening a contract dispute to a “massacre”

of members of the Blackfeet tribe). And they were relevant to real issues before the

jury—impeaching Drayton’s credibility by contradiction and by questioning his

memory and perception. Cf. Hemmings, 285 F.3d at 1193 (finding comment

regarding counsel’s prior lawsuit irrelevant to issues before jury); Bird, 255 F.3d at

1152 (finding racist imagery irrelevant to contract dispute before the jury). The

parties and the court did not react contemporaneously to the comments,

“support[ing] an inference that the misconduct was not prejudicial or fundamentally

unfair.” Hemmings, 285 F.3d at 1195. The court also instructed the jury that the

statements or argument of counsel is not evidence, an admonition that we presume

the jury followed. Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1270-71

(9th Cir. 2000).

      The errors alleged in this case have not met the plain error threshold required

for reversal.

      AFFIRMED.




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