Player v. Reese , 300 F. App'x 310 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 24, 2008
No. 07-10390
Summary Calendar Charles R. Fulbruge III
Clerk
WARWICK PLAYER
Plaintiff-Appellant
v.
OFFICER LESLIE REESE
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CV-1918
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Warwick Player, Texas prisoner # 07065669, proceeding pro se, appeals an
adverse jury verdict, which resulted in the dismissal of Player’s civil rights
action under 42 U.S.C. § 1983. (Player’s motion to file a supplemental brief is
GRANTED.)
Player asserts his trial counsel rendered ineffective assistance for failing
to: (1) object during jury selection; (2) request a jury shuffle; and (3) inform the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-10390
jury that his drug charge was dismissed. This contention is without merit
because the constitutional right to effective assistance of counsel does not apply
in a civil context. Sanchez v. United States Postal Serv., 785 F.2d 1236, 1237
(5th Cir. 1986).
Player also contends the jury was selected unconstitutionally because
jurors were not shuffled and there were no minorities on the jury. Because
Player failed to object to the selection of the jury in the district court before the
dismissal of the venire, the claim is untimely and must be rejected. See Garcia
v. Excel Corp., 102 F.3d 758, 759 (5th Cir. 1997).
Player asserts the district court erred in admitting evidence of a prior
conviction that did not exist. However, he does not point to a particular
conviction or how it was introduced. We presume he refers to the reading of his
signed judicial confession, wherein he admitted to possessing drugs on 6
September 2003. The events of 6 September 2003, were the subject of the
instant § 1983 action (Player claims that, on that day, he was arrested without
probable cause and excessive force was used). Player never objected to the
reading of his confession at trial.
We review a district court’s evidentiary rulings for abuse of discretion. See
Valdez v. Cockrell, 274 F.3d 941, 957 (5th Cir. 2001). “An erroneous evidentiary
ruling merits the reversal of judgment only where the challenged ruling affects
a substantial right of a party.” Id. (internal citation and quotation marks
omitted). Moreover, if the complaining party does not properly object at trial to
the admission of the evidence, we review the evidentiary challenge on appeal
only for plain error. See Fed. R. Evid 103(d); United States ex rel. Small Bus.
Admin. v. Commercial Tech., Inc., 354 F.3d 378, 389. Under this standard, we
generally reverse only for “obvious and substantial errors that seriously affect
the fairness, integrity, or public reputation of judicial proceedings”. Reddin v.
Robinson Prop. Group, Ltd. P’ship, 239 F.3d 756, 760 (5th Cir. 2001).
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No. 07-10390
The record reveals the defense never introduced evidence of a conviction
in connection with the facts surrounding the instant action. The signed judicial
confession was read aloud to the jury during the cross-examination of Player,
after he had testified on direct examination that he was not in possession of
drugs on 6 September 2003. The judicial confession was admissible to impeach
that testimony. See FED. R. EVID. 607; United States v. Opager, 589 F.2d 799,
801-02 (5th Cir. 1979) (holding that Federal Rule of Evidence 608(b), which bars
the introduction of extrinsic evidence of specific conduct to attack or support a
witness’ character for truthfulness, is “inapplicable in determining the
admissibility of relevant evidence introduced to contradict a witness’s testimony
as to a material issue”). In sum, there was no reversible plain error.
Player maintains the defense mischaracterized certain facts. This issue
is inadequately briefed and is therefore waived. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
AFFIRMED; MOTION GRANTED.
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