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USCA1 Opinion
February 9, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 95-1438
KAREN STOCKWELL, ET AL.,
Plaintiffs, Appellants,
v.
MICHAEL SWEENEY, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
____________________
Neil P. Philbin with whom Kirshenbaum & Kirshenbaum was on brief _______________ __________________________
for appellants.
Joseph F. Penza, Jr. with whom Olenn & Penza, and Kevin F. ______________________ _______________ _________
McHugh, Assistant City Solicitor, were on brief for appellees. ______
____________________
____________________
ALDRICH, Senior Circuit Judge. Plaintiff ________________________
appellants are the widow and administratrix of the estate of
George Stockwell (Stockwell) and the Stockwells' minor
daughter. Defendants are Michael Sweeney and the City of
Providence, Rhode Island. On May 6, 1993, while acting as a
traffic officer of the City, Sweeney shot and killed
Stockwell, a driver of an automobile. Plaintiffs sue under
42 U.S.C. 1983 and Rhode Island's wrongful death statute
(concededly raising the same issue), alleging that the
officer's use of deadly force was an unreasonable,
unjustified violation of Stockwell's Fourth Amendment rights.
Plaintiffs' appeal, following a jury verdict in favor of
defendants, advances three principal claims: (1) the
evidence warranted judgment as a matter of law in their
favor, (2) the court's instructions regarding deadly force
were too favorable to defendants, and (3) the court
erroneously admitted testimony concerning Stockwell's alleged
belligerent behavior shortly before the encounter. They
further appeal denial of post trial motions on the same
grounds. We affirm.
Directed Finding ________________
Plaintiffs introduced eight eyewitnesses, no two of
whom fully agreed with each other. All, in one way or
another, disagreed with Sweeney, although some partially
supported him. Plaintiffs' conclusion that their testimony
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was "unequivocal, uncontradicted and unimpeached" and that
the finding in favor of defendants was so "nonsensical" that
it should have been directed for plaintiffs could be answered
in one sentence: We fully agree with the district court's
statement that the evidence presented a "classic question of
fact." It is a rare case where a verdict can be ordered in
favor of the party having the burden of proof, and this is
far from such. However, as the evidence bears also upon the
question whether plaintiffs' case was prejudiced by a less
than perfect charge, we will recount it to some extent.
First, it was tacitly or expressly accepted that
Sabin Street, Providence, runs, one way, east to west, and
intersects with Mathewson; that Sweeney, in uniform, was on
duty at this intersection to direct cars bound west on Sabin
Street to turn left onto Mathewson because of a children's
affair ahead on Sabin, and that Stockwell wished to continue
on. At some point the officer drew his service revolver and
shot Stockwell in the groin, the bullet "moving from right to
left, and from front to back." (Surgeon). Stockwell,
hospitalized, died in a few hours.
Concededly this is an unusual case. According to
Officer Sweeney, Stockwell, who was approaching fast, slowed
down at his signal, ultimately to a pace, but continued on
into the officer, pushing him backward a couple of feet.
Sweeney yelled repeatedly for Stockwell to stop, but
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Stockwell, shouting, "Get out of my way or I'll f'n run you
over," hit him again, this time causing his torso to collapse
over the hood and his right leg to rise into the air. Within
seconds Sweeney, in fear, reached for his gun and fired a
single shot at Stockwell, aiming through the windshield. At
this time the car began turning to the left, in effect moving
Sweeney to the right. (Cf. Carlson, post.) Although he ___ ____
insisted that he aimed through the windshield, the bullet
came through the open window on the passenger side. On this
discrepancy, though physically understandable on the basis of
the car's movement, plaintiffs hang their as-matter-of-law
claim.
First, plaintiffs' witnesses, briefly. (Stockwell
will be referred to as the "car," and Sweeney as the
"officer.")
Joanna Johnson (school bus passenger) ______________
Officer stepped away from in front of the car,
pushing his hand against the right front fender. Car
proceeded and, after it had passed officer by "a few steps,"
stopped, at which point officer drew his gun and "ran up to
the passenger side of the car . . . [and] put his gun in the
window . . . and I heard a noise which I assumed was a
gunshot."
Susan Winsor (bus passenger) ____________
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First saw officer chasing car, trying to grab onto
it and yelling "Stop!" "The car had turned onto the side
street, and the officer was on the passenger side. He got up
to about midway, maybe like at the cross pieces between the
two windows. And he looked like he was trying to hold on at
one point with both hands. And then he slipped away from the
car and that's when I heard a shot."
Kenneth Carlson (driver of car directly behind ________________
Stockwell)
Saw officer gesture to car to detour but "car
accelerated really quickly, threw the policeman up onto the
hood." Car turned to the left, throwing officer around to
the passenger side of the car, when Carlson saw officer,
previously empty-handed, holding a gun. On contemporary
statement to police Carlson had stated that officer had run
six feet along the side of the car before pulling his gun and
firing into the car; and by deposition that he ran after the
car two or three feet.
Melissa Iannotti (automobile driver) ________________
Stated on direct examination she saw officer make
slow run after the car, "about a few car lengths." "I
remember his hands on the car and I heard pop." On cross
stated she saw the car turn to the right towards the officer.
Saw him place his hands on the hood. Thought maybe his feet
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were run over, and that the gun was inside the passenger
window of the car when officer fired.
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Richard Heines (children's bus driver) ______________
Saw officer with his back against the back window
of the car, pivot and fire through "the passenger side
window" and then rotate back again. (Obviously car not
moving.)
David Mello (automobile driver) ___________
Had passed into Mathewson Street ahead of car, saw
officer, through side-view mirror, bumped, hands onto the
hood, dead center. Officer moved towards passenger side, at
headlight was "bumped again, a little harder this time,
causing him to come down onto the hood this way and then he
stepped around the side of the car." The car was moving
slowly and while standing at fender, passenger side, officer
drew his gun and, after car moved a couple of feet more,
fired. Entire incident took about 30 seconds.
Kim Maddalena (passenger in school bus) _____________
After car took slow left-hand turn onto Mathewson,
officer chased car from behind. Then, "I saw him take a
stance, spread his legs apart, and take his gun out of his
holster and hold it like this and he shot into the passenger
side front window."
Debra Lusignan (passenger in school bus) ______________
After officer gestured, car stopped. Saw some kind
of argument between car and officer that lasted a few
minutes. Then made tight left turn, brushing past officer,
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and officer pushed himself away. As car proceeded officer
banged on rear window and yelled stop, and when car did not
stop officer ran after it for two or three car lengths,
drawing his gun. He then stuck gun inside front passenger
window and fired.
Comment _______
So much for what plaintiffs consider "minor
inconsistencies on trivial matters." Testimony that placed
Sweeney as coming from behind would seem clearly inconsistent
with a bullet entering the front of the groin and out the
back; indeed that point of entry might be thought odd for
anyone on foot at the car's side. Plaintiffs' only reference
to the path of the bullet is to say that "the absence of
exactitude in identifying the specific locations of the
parties and vehicle is . . . insubstantial on the issue of
whether Sweeney had to shoot Stockwell in order to defend his
life." Seemingly there is no difference between shooting
from the hood when one has been picked up on a moving car,
and shooting from the side, after coming from behind in a
chase, or standing alongside, legs spread, and both hands on
the gun. Again, there is no difference between being hit,
center hood, by an oncoming car, (two witnesses, one said
once, one twice)1, and chasing a car that had disobeyed a
____________________
1. Plaintiffs' brief characterizes inescapable testimony as
"brushes," a word never used by a witness, and fails to
mention Sweeney's (inescapable) medical records, which show
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traffic order. The correctness of the denial of plaintiffs'
motion for judgment is manifest.
Jury Instructions _________________
It is conceded that the court correctly instructed
the jury that, in order to establish that the officer's
decision to shoot was an unlawful or unreasonable seizure in
violation of Stockwell's Fourth Amendment rights, the
plaintiffs had to prove, first, that "that Officer Sweeney
intentionally shot Mr. Stockwell," and second, "that in
shooting [him] Officer Sweeney acted in a way that was not
objectively reasonable under the circumstances." The
establishment of the first element was uncontested; the
second received the following amplification by the court
(contested portions emphasized):
The standard for determining whether
the use of deadly force by a police
officer was objectively reasonable is
whether under the circumstances
confronting that officer a reasonable
police officer would have used such
force.
The law permits a police officer to
use deadly force to the extent necessary
to protect himself or others from death
or serious bodily injury.
The law also permits a police ____________________________________
officer to use deadly force when it is _________________________________________
necessary to prevent the escape of a _________________________________________
suspected felon if the officer has _________________________________________
reasonable cause to believe that the _________________________________________
suspect poses a significant threat of _________________________________________
____________________
him work disabled for three months.
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death or serious bodily injury to the _________________________________________
officer or to other persons. ____________________________
Assault with a dangerous weapon is a ____________________________________
felony. Intentionally striking someone _________________________________________
or attempting to strike someone with a _________________________________________
motor vehicle constitutes an assault with _________________________________________
a dangerous weapon. ___________________
In determining whether a reasonable
police officer would have considered it
necessary to use deadly force, you must
focus on the circumstances confronting
that officer at the time the deadly force
was used, rather than on how those
circumstances may appear given the
benefit of hindsight which, of course, is
always twenty-twenty. Allowances must be
made to the extent that a police officer
is forced to make split-second decisions
under circumstances that may be tense or
uncertain or rapidly changing.
The court's mentioning the law as to preventing
escape was irrelevant, but, by the same token, we cannot
believe a jury, addressing itself to Sweeney's asserted fear
of serious bodily injury would be led astray. Of more
possible concern is that the court's definition of an
automobile used for an intentional striking (passing what may
be implicit in that strong word) was an incomplete statement
of Rhode Island criminal law. In State v. Mercier, 415 A.2d _____ _______
465, 467 (R.I. 1980), the court said,
An automobile in and of itself is not
considered a dangerous weapon, but it may
become so if it is employed in such a
manner to render it capable of inflicting
death or serious bodily injury.
We do not, however, have a criminal case. The jury was not
concerned with legalese, but with substance -- was Sweeney, a
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traffic officer assigned to protect children from oncoming
cars, faced with a driver so determined that he ran into him
twice, the second time harder (Sweeney and Mello), reasonable
in fearing for his safety? We cannot think that judicial
definitions were in the jurors' minds, or affected the
essential fairness of the trial. Elwood v. Pina, 815 F.2d ______ ____
173, 177 (1st Cir. 1987).
Evidence of Prior Conduct _________________________
Anthony Sajowski, a security guard in a nearby
building, had encountered Stockwell shortly before the
shooting incident. A conversation took place that
defendants, before trial, gave notice they intended to
introduce. Plaintiffs filed a motion in limine contending __________
that its substance was, in effect, character evidence,
Fed.R.Evid. 404(b), and, further, that it should be excluded
because the danger of unfair prejudice substantially
outweighed any probative value. Fed.R.Evid. 403. The court
denied the motion "without prejudice" to the right to object
at trial, noting that "everyone is aware of what the
potential problems are and we will just have to deal with
that based on the evidence as it is presented." At trial
Sajowski testified, over periodic objections on other
grounds, that Stockwell had disregarded his authority,
rebuffed his assistance, was "aggravated" and had several
times "towered over" and confronted him in a provocative and
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belligerent manner, and that he had felt sufficiently
threatened to request local police assistance. No objections
for any of the reasons put forth in the motion in limine were _________
made. Plaintiffs regard the motion as preserving the issues
raised therein for appeal.
Our rule is that the filing and denial of a motion
in limine, without subsequent contemporaneous objection at __________
trial, will normally not preserve an evidentiary ruling for
appeal. Clausen v. Sea-3, Inc., 21 F.3d 1181, 1189-1190 (1st _______ ___________
Cir. 1994) (citing cases). Here the court very plainly
indicated that plaintiffs should renew their objections as
the evidence came in. Undo prejudice, Fed.R.Evid. 403, in
particular is a highly subjective matter, and plaintiffs'
failure to object -- it is not for the court to remember --
deprived the court of its requested opportunity to rule on
the precise record. See Freeman v. Package Machinery Co., ___ _______ ______________________
865 F.2d 1331, 1337-38 (1st Cir. 1988).
Plaintiffs invoke the doctrine of plain error that
permits late raising. See Arrieta-Agressot v. United States, ___ ________________ _____________
3 F.3d 525, 528 (1st Cir. 1993); Clausen, 21 F.3d at 1190- _______
1191. The first question is whether it was error at all.
Plaintiffs have had a four day trial, with many witnesses.
We are especially hesitant to say from our poor vantage
point, see Reagan v. Brock, 628 F.2d 721, 723 (1st Cir. ___ ______ _____
1980), that plaintiffs should have a new trial because it
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would have been an abuse of discretion for the court not to
have found that the prejudicial effect of this testimony
substantially exceeded its possible relevance. Instead, it
is at least arguable that this was not a case where
defendants were offering to show that Stockwell was of a
belligerent character as permitting an inference that he was
in character on this occasion. Rather, it would be open here
to find that actual belligerence of a few moments ago does
not evaporate instanter, particularly when faced with further
opposition and conflict. The evidence could be thought
direct, rather than inferential. On such a basis there was
no error.
Alternatively, if it be thought we are mistaken,
and there was error, the term "plain error" means what it
says, "clear," "obvious," United States v. Olano, 507 U.S. ______________ _____
725, ___, (1993); 113 S.Ct. 1770, 1777 (1993); "particularly
egregious:" Clausen, 21 F.3d at 1191. This it was not. _______
Affirmed. _________
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Document Info
Docket Number： 95-1438
Filed Date： 2/9/1996
Precedential Status： Precedential
Modified Date： 9/21/2015