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Faria v. McCarrick

United States District Court, E.D. Missouri, Eastern Division

September 26, 2019

RUSSELL SCOTT FARIA, Plaintiff,
v.
RYAN J. McCARRICK, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Motions for Summary Judgment filed by Defendants Lincoln County Prosecuting Attorney Leah Askey-Chaney (“Chaney”[1]) (Doc. 78), Lincoln County, Missouri (Doc. 82), and Lincoln County Sheriff’s Department Sergeant Ryan McCarrick, Detective Michael Merkel, and Detective Patrick Harney (collectively, “the Police Defendants”) (Doc. 84). All three motions have been extensively briefed. (Docs. 79, 83, 85, 87, 105-107, 108-110, 127-131, 133, 139, 140, 143.) Because all of these motions involve similar legal issues and intertwined facts, the Court will address them together.

         Also before the Court are Defendants’ Joint Motions to Exclude the Expert Testimony of Judge Glenn Norton, (Doc. 80), and Jeffrey J. Noble (Doc. 88). Plaintiff has responded in opposition to both motions (Docs. 104, 112), and Defendants have replied (Docs. 126, 142).

         Background[2]

         On Tuesday, December 27, 2011, Elizabeth “Betsy” Faria was stabbed approximately fifty-five times and left to die on the floor of her home, the knife still lodged in her neck. At the time, Betsy was receiving regular chemotherapy. Throughout that day, Betsy and her husband, Plaintiff Russell “Russ” Faria, traded messages and phone calls regarding their evening plans. Russ, who worked from home, told Betsy that he intended to go to his friend Michael Corbin’s house, where Corbin had for many years hosted a regular Tuesday game night for Russ and four others. Betsy and Russ decided that Betsy would leave her afternoon chemotherapy appointment and head to her mother’s house, which was near Corbin’s, and that Russ would pick her up on his way home from game night.

         Russ finished work and left the Faria home around 5:00 p.m. On his way to Corbin’s, he made four stops: from 5:16 to 5:20, he stopped to get gas at a Conoco station in Troy, Missouri; from 5:31 to 5:32, he stopped to buy cigarettes at a U-Gas in Wentzville; at 5:52 he bought a bag of dog food at Green’s Country Store in Lake St. Louis; and from 5:56 to 5:58 he was in an O’Fallon, Missouri Quicktrip buying two bottles of iced tea. His first, second, and fourth stops were recorded on camera and he had a timestamped receipt from Green’s.

         Russ got to Corbin’s around 6:00 p.m. Regular game night participant Richard May was stuck at work, leaving the group without the six players necessary for their usual game. Nevertheless, the other five met, smoked marijuana, and watched movies.

         At around 9:00 p.m., part-way through their second film, the group split up. At some point during the day, Betsy had told Russ that her friend Pamela “Pam” Hupp would be picking her up from her mother’s house, so Russ headed home. On the way, he stopped at the Arby’s on Raymond Drive in Lake St. Louis. His receipt shows that he ordered two junior cheddar melts at 9:09 p.m. Russ then made the twenty-five-mile trip home-which officers would later clock at twenty-six minutes and thirty seconds-grabbed the dog food from the back seat of his car, and walked inside. He set the dog food down just inside the door, took off his coat, and saw Betsy lying on the floor.

         At 9:40:10 p.m., he was connected with a 911 operator. Throughout the call, Russ was sobbing. He told the dispatcher that he believed his wife had followed through on her previously stated intention to commit suicide and mentioned that he could see the knife sticking out of her neck. The call lasted exactly ten minutes; shortly before Russ hung up, Lincoln County Sheriff’s Deputy Christopher Hollingsworth arrived on the scene. Recognizing that Betsy’s wounds were inconsistent with a suicide, Hollingsworth took Russ out of the house. The house was cleared and medical and fire personnel went inside. The family dog was in the back yard on a chain and a second knife was found under the pillow Betsy had been using on the couch.

         Fire Captain Robert Shramek noted that Betsy’s body was cold and so stiff that her entire body moved when he tried to manipulate her arm and shoulder. Based on his significant experience with dead bodies, Shramek concluded that Betsy had been dead for at least two hours. Fire Lieutenant Martin Czarnecki believed Betsy had been dead for at least 30 minutes. Ambulance team supervisor Michael Quatrocchi entered the Faria home shortly after the fire fighters. He noted that that the skin on Betsy’s arm was not pliable and concluded that she had rigor mortis consistent with someone who had been dead for some time. Paramedic Kevin Altman was also at the scene and described the blood around Betsy’s body in his written report as dark, consistent with having sat for a significant period of time.

         While first responders were at the scene, the Lincoln County Sheriff initiated a “Major Case Squad (“MCS”) call-out, ” which is designed to pool the resources of local law enforcement organizations to respond to cases of serious crimes. St. Peters Police Lieutenant Mark Shimweg was placed in charge and McCarrick was assigned to be the “report writer” and second in command.

         Around 11:00 p.m., Hollingsworth drove Russ to the Lincoln County Sheriff’s Office. Over the next ten and one half hours, Merkel and City of Troy Police Major Raymond Floyd interrogated Russ. Russ told a consistent story about his whereabouts that night, including the multiple stops to and from Corbin’s house. Russ’s clothes were clean and fingernail clippings taken during the interrogation contained no relevant evidence. Later analysis would confirm that there was no DNA from Betsy on Russ’s clothes, feet, or hands.

         Other MCS officers were simultaneously verifying Russ’s alibi, and all of those present at game night confirmed Russ’s timeline and admitted that they had smoked marijuana. At some point, the MCS obtained a warrant to search the Faria house. At the Faria house, there were no bloody footprints, no bloody or wet towels, no indications of wiping in the blood, and dust and dog treats on the floor, leading crime scene investigators (“CSIs”) to conclude that there had been no clean up. The only visible instances of blood found during the search were on a light switch plate in the bedroom and on a pair of Russ’s slippers in the bedroom closet. Russ’s car was swabbed and eventually determined to be negative for blood.

         While assessing the scene, CSIs noticed a dark mark on Betsy’s pants that resembled a paw print. It was thought that this might be relevant because the dog was unfriendly to most people and only someone she knew would have been able to get her from the murder scene to the backyard chain. CSI Tiffany Fischer asked Defendant Detective Patrick Harney, the MCS officer working with the CSIs, for authorization to swab the Farias’ dog’s paw for DNA analysis. According to fellow CSI Amy Buettner, Harney spoke to Chaney, who by then was routinely participating in MCS briefings, and was told to forego the swab and instead take a print of the dog’s paw. No. forensic conclusion as to whether the print matched the mark was ever reached.

         At approximately 2 p.m. the day after the murder, Russ was taken to the Lake St. Louis Police Department for a polygraph.[3] The test indicated deception when he was asked whether he killed Betsy or knew who did. Following the polygraph, Russ was handcuffed and placed under arrest for the murder of his wife.

         Meanwhile, two MCS officers were sent to interview Pam Hupp. They arrived at her home at 6:40 a.m., the morning after Betsy was killed. Hupp answered the door with wet hair and informed the officers that she had just finished showering. She also told the officers that she had showered the night before, after returning home from dropping off Betsy. Throughout her interview, Hupp said a number of suspicious things. For instance, she initially told the officers that she had not gone into the Faria home when she dropped off Betsy but later stated twice that she had. Likewise, she told the officers that she and Betsy were very close friends who saw each other on a near-daily basis but that she was not sure about the route to or from Betsy’s home. The officers asked Hupp about the fact that Betsy had recently named Hupp as beneficiary on a $150, 000 life insurance policy, replacing Russ. Hupp told officers that Betsy wanted her daughters to have the money but did not trust them to manage it responsibly, and that she didn’t trust Russ. Hupp also told the officers that the Farias’ marriage was on the rocks and that Russ had been physically abusive, on one occasion holding a pillow over Betsy’s face when she was sleeping, though none of those allegations could be corroborated by Betsy’s other friends or family. Hupp also told officers about a document on Betsy’s computer that indicated that Betsy was afraid of Russ. Despite stating that she had never seen the document, Hupp described the substance of the document in detail.

         The officers also examined Hupp’s phone. There were numerous text messages between Hupp and Betsy on the day of the murder, including several in which Hupp insisted on picking up Betsy from her chemotherapy appointment and taking her home, despite the fact that Betsy’s mother’s house was an hour-long round trip for Hupp compared to a short detour for Russ on the way home from game night. When officers asked Hupp about a missed 7:27 p.m. call from Hupp’s phone to Betsy’s, she told them that she was calling to inform Betsey that she had reached the part of the drive where she knew the rest of the way home. She later offered two slightly different reasons for calling.

         On the afternoon of December 29, as Russ was approaching twenty-four hours in custody following his arrest at the Lake St. Louis Police Department, McCarrick submitted to Chaney a probable cause statement, seeking an arrest warrant and formal charge against Russ. Chaney refused, and Russ was released. As she was leaving the building that evening, Chaney was asked for comment by a local news reporter. The reporter later wrote that Chaney was hopeful that they could find sufficient evidence to charge Russ with Betsy’s murder.

         The MCS continued to investigate after Russ was released. On Thursday, December 29, two days after Betsy’s murder, MCS officers re-interviewed Pam and Mark Hupp. Meanwhile, officers were discussing the propriety of conducting a luminescence test at the Faria home to identify any invisible traces of blood at the scene. Ultimately, the MCS started releasing officers and, on December 31, 2014, it formally disbanded.

         Medical Examiner Kamal Sabharwal, M.D., performed an autopsy with McCarrick and Officer Brett Mitchell present. Dr. Sabharwal later testified that the first responders’ descriptions of Betsy’s body at 9:50 p.m. on the night of her death were consistent with rigor mortis two to four hours after death. However, evidence showed that Betsy died sometime after 7:00 p.m. Around 7:00, Betsy had called her friend Laurel Moran to cancel a scheduled tennis game due to Betsy’s blood results. In addition, Betsy’s daughter, Leah Day, told police that she also spoke to her mother on the phone around 7:00 p.m. on the night of her murder. Day was headed to the cell phone store to get a new phone and needed Betsy to speak to the store representative as the account holder to authorize the upgrade. Betsy assured Day that she would be sitting on the couch with her phone next to her, awaiting Day’s call, but when Day called from the store at 7:21, Betsy didn’t answer. Betsy failed to pick up Day’s subsequent calls at 7:26 and 7:30. Betsy also had a missed call from Hupp at 7:27 p.m.

         The last evidence that Betsy was alive was her participation in a 7:04 p.m. voicemail made from Hupp’s phone to Hupp’s husband Mark. Russ called 911 at 9:40 p.m., creating a time-of-death window of 7:04 p.m. to 9:40 p.m. When asked by investigators whether Betsy could have been killed shortly before Russ called 911, Dr. Sabharwal admitted that there was a controversial medical theory that, in extraordinarily rare instances, a body could exhibit the signs of advanced rigor mortis immediately after death.

         On Tuesday, January 3, 2018, one week after Betsy was murdered, McCarrick and Chaney presented a signed affidavit in support of a search warrant to conduct a “BlueStar” luminescence test of the Faria home to look for invisible blood residue that might indicate a clean-up. The warrant was issued and Merkel, McCarrick, Evidence Technician Tabitha Rene Wilson, and Lincoln County Sheriff’s Department employee Rebecca Mueller[4] were present for the test.

         The home had been released some days prior, such that the investigators could not be certain that any evidence they found was present on the night of the murder. Nevertheless, the investigators sprayed the living room and kitchen. Luminescence was observed on the handle of the towel drawer in the kitchen but nowhere else, suggesting that the drawer had been used by someone with bloody hands who knew where to find towels in the Faria home. In addition, the investigators reported luminescence on the vinyl floor between where Betsy was found and the back door. Together with the supposedly bloody paw print, it was surmised that the test was reacting to drops of blood left by someone while putting the dog in the back yard.

         Whether the test was reacting to evidence of the murder was not universally agreed upon. Mueller testified that she saw luminescence but did not see any pattern that might suggest blood splatter. Similarly, Wilson remembered no pattern. Merkel, however, testified that he remembered a path of luminescence leading in a “general direction.” Some of the photographs of the luminescence were of extremely poor quality owing to an improper setting or camera malfunction, but others were clear and showed no path or pattern. In any event, McCarrick presented Chaney with a new probable cause statement that added the results of the BlueStar test and Cheney submitted charges against Russ for first-degree murder and armed criminal action and a grand jury indicted him.

         During the BlueStar test, investigators had removed parts of tile and cabinetry that showed luminescence and transported them to a forensic lab for testing; while a BlueStar test illuminates the presence of human blood, it also illuminates other substances and therefore any positive result must be tested to determine whether human DNA is present. Lab tests conducted after Russ had been charged later revealed that the tile and cabinetry were negative for human blood. A report detailing the results of the BlueStar test was signed by Merkel fifteen months after the test was done. The investigating officers eventually concluded that the negative result must have been due to dilution or other corruption of the samples.

         In November 2013, a jury convicted Russ and he was sentenced to life in prison. On direct appeal, the Missouri Court of Appeals found that the trial court had erred by granting the prosecution’s motion to exclude evidence of an alternative suspect-Pamela Hupp-and remanded the case for a new trial. In November 2015, Russ waived his right to a jury and was found not guilty following a bench trial.

         I. Defendant’s Motions for Summary Judgment

         On July 19, 2016, Russ filed this suit under 28 U.S.C. § 1983, naming McCarrick, Merkel, Harney, Chaney, and Lincoln County, Missouri as defendants and advancing the following counts:

Counts I and II – Unconstitutional seizure (McCarrick);
Count III – Unconstitutional seizure (Chaney);
Count IV – Conspiracy to violate constitutional rights;
Count V – Malicious prosecution (McCarrick and Merkel); and
Count VI - Liability under Monell v. Dep’t of Soc. Servs. of City of New York (Lincoln County);

(Doc. 7.) Since then, Count I was voluntarily dismissed with prejudice (Doc. 95), and Count V was voluntarily dismissed without prejudice (Doc. 39). Defendants now move for summary judgment on the remaining counts, arguing that they did not violate Russ’s constitutional rights and that they are entitled to immunity.

         Legal Standards

         Summary Judgment

         Pursuant to Federal Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment only if “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir. 1988). In ruling on a motion for summary judgment, all reasonable inferences must be drawn in a light most favorable to the non-moving party. Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The evidence is not weighed and no credibility determinations are made. Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008).

         Once the moving party demonstrates that there is no genuine issue of material fact, the nonmovant must do more than show there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth affirmative evidence and specific facts by affidavit and other evidence showing a genuine factual dispute that must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex, 477 U.S. at 324. “A dispute about a material fact is ‘genuine’ only ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir. 2000) (quoting Anderson, 477 U.S. at 248). On the other hand, judgment as a matter of law is appropriate only when there is no legally sufficient evidentiary basis on which a reasonable jury could find for the nonmoving party. Fed.R.Civ.P. 50(a).

         § 1983 Claims

         “The essential elements of a § 1983 claim are (1) that the defendant(s) acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right.” Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009) (citing DuBose v. Kelly, 187 F.3d 999, 1002 (8th Cir. 1999)). “A public official ‘acts under color of law when he misuses power possessed by virtue of . . . law and made possible only because he was clothed with the authority of . . . law.’” Ramirez-Peyro v. Holder, 574 F.3d 893, 900 (8th Cir. 2009) (quoting United States v. Colbert, 172 F.3d 594, 596 (8th Cir. 1999)). ...


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