Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, December 2, 1993 TAG: 9312020133
SECTION: VIRGINIA PAGE: C-6 EDITION: METRO
SOURCE: By LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Medium
Federal Judge Jackson Kiser denied a motion Wednesday seeking a new civil trial for Carl Simmons.
Simmons was shot in the face by Officer R.J. Scott in February 1992 after an automobile chase through a Southwest Roanoke neighborhood.
Claiming excessive force, Simmons sued for $13 million. But after hearing Scott testify that his gun went off accidentally during a struggle, a jury ruled in September that he did not use excessive force.
In their motion for a new trial, Simmons' attorneys said they had discovered new evidence - testimony from a woman about Scott's alleged history of excessive force.
Teresa McGhee claimed in an affidavit that she had heard Scott say that if anyone failed to stop for him, they would go to the hospital before they went to jail.
Simmons testified during the four-day trial in U.S. District Court in Roanoke that Scott became angry after Simmons failed to stop immediately for a traffic violation.
McGhee also said Scott made comments in her presence about pulling his gun without justification and picking fights with motorists he stopped on cold nights.
Simmons' attorneys admitted they learned of McGhee's allegations while the trial was still in progress but did not follow up on them.
"These alleged statements are not newly discovered evidence that would require a new trial . . ." Kiser wrote in an opinion denying the motion.
"Had plaintiff's counsel exercised due diligence in investigating McGhee's statement," Kiser wrote, the could have raised it during cross-examination of Scott.
Scott testified that on the night of Feb. 3, 1992, he tried to stop Simmons in the Wasena neighborhood for driving with his lights off, but that the man cursed him and sped away.
After finally stopping Simmons at an intersection, Scott said, he drew his revolver after seeing Simmons reach for what he thought was a weapon.
Scott maintained his gun went off accidentally after Simmons grabbed it during a struggle; Simmons said it discharged as the angry officer tapped it on Simmons' rolled-down car window.
by CNB