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Moore v. Novark9/28/1995
d Constable Moore and asked him for information about the incident. Constable Moore told him his office records were available to the FBI and had his office provide copies of the contents of his files to Trethewey. Trethewey attempted to interview Bossert, who was on probation for the burglary, but Bossert was unwilling to cooperate. Bossert told Trethewey he would talk to his attorney and get back to him if he decided to discuss the matter, but he never called Trethewey back. Trethewey closed his file. In 1984, Trethewey re-opened the case at the request of the U.S. Attorney's office. Trethewey took Bossert's statement in August 1984, during which Bossert indicated it was the arresting officer who pointed the gun at him. The physical description Bossert gave also more accurately described Schelsteder, who was reported to have had a moustache at the time of the incident. In December, Tretheway showed Bossert a photo spread of six deputy constables, all in uniform. The photographs were furnished by Constable Moore's office. Bossert identified Novark as the officer who pointed the gun, but also identified another officer who was not present the night of the incident. The photo of Novark supplied for the photo spread showed Novark with a moustache, even though he was clean shaven at the time of the incident. Bossert failed to identify either Schelsteder or Van Shoubrouek. Because of Bossert's apparent confusion, Trethewey again closed his file.
In 1985, Trethewey was again asked by Assistant U.S. Attorney Denise Ferguson-Southard to re-open his investigation. Ferguson-Southard contacted Constable Moore and told him that she wanted to prosecute Novark for violating Bossert's civil rights. Constable Moore responded that he thought it would be a mistake since it had been two years since the incident. Constable Moore also attended a meeting with Ferguson-Southard and Agent Trethewey.
On May 21, 1985, Novark was indicted by a federal grand jury for violating Bossert's civil rights. Assistant U.S. Attorney Ferguson-Southard prosecuted Novark's criminal trial in August 1985. Schelsteder and Van Shoubrouek were subpoenaed and testified before the grand jury and at trial, but Constable Moore did not testify in either proceeding. At trial, Bossert failed to identify Novark as the officer who had pointed the gun at him, but instead said that it was the arresting officer who played Russian roulette. Deputy Haines testified at trial and admitted that he had lied in his statement given to Constable Moore when he said he had not seen anything because he covered his eyes when he realized what was about to happen. He conceded that "most" of his statement was a lie. The jury returned a not guilty verdict.
Following his acquittal, Novark brought this suit against appellants. The jury rendered a verdict against Constable Moore, Van Shoubrouek and Schelsteder on Novark's claims for malicious prosecution and intentional infliction of emotional distress. The jury found in favor of Constable Moore on the conspiracy claims, but against Van Shoubrouek and Schelsteder. The jury found compensatory damages in the amount of $110,000, and awarded exemplary damages of $15,000 against Constable Moore and $5,000 against each of the deputies. The trial court entered judgement based on the verdict and additionally assessed attorney's fees in the amount of $151,104 against Van Shoubrouek and Schelsteder, based on the conspiracy verdict. This appeal resulted.
SANCTIONS
In their first two points, the deputies complain that the trial court erred in imposing sanctions against their attorney, Assistant County Attorney Barbara Burnett, for violation of the court's order on Novark's motion in limine. T
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