Devaris Perry v. City of Chicago , 733 F.3d 248 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3979
DEVARIS PERRY,
Plaintiff-Appellant,
v.
CITY OF CHICAGO AND BARTELL
KEITHLEY,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:08-cv-4730 — Sidney I. Schenkier, Magistrate Judge.
ARGUED SEPTEMBER 16, 2013 — DECIDED OCTOBER 23, 2013
Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Bartell Keithley, a Chicago police
officer, shot Devaris Perry twice during an encounter that
ended in Perry’s arrest. Perry was acquitted of the related
criminal charges and filed suit against Officer Keithley and the
City of Chicago, alleging violations of both federal and Illinois
civil rights laws, and seeking indemnification from the City.
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The jury rejected Perry’s claims. Perry now appeals, asserting
that the district court made several evidentiary errors that
infected the jury’s deliberations. For the reasons detailed
below, we affirm the decision of the district court.
I. BACKGROUND
This case arises from appellant Devaris Perry’s arrest and
shooting on September 14, 2007. On that morning, Chicago
police officers Bartell Keithley and Stephen Watts responded
to reports of gunfire at 527 East Browning, a high rise in the Ida
B. Wells housing complex on the south side of Chicago. Upon
arriving at the scene, two people told the officers that
“gangbangers” were running guns and drugs into the building.
They also pointed the officers to apartment 501. Keithley and
Watts entered the building and knocked on the door of unit
501. No one answered, so Keithley and Watts entered the
apartment with their guns drawn. They found Perry inside the
apartment and ordered him to get down against the wall. Perry
complied after a brief protest. Watts then searched the
apartment, finding chunks of crack cocaine, clear Ziploc bags,
and razor blades in a bedroom.
When Watts returned from the search, Perry ran for the
door, knocking Keithley over in his haste to escape. Perry
maintained that he fled because the officers started punching
him after he asked what was going on. The officers both
testified that they did not punch Perry, but did acknowledge
that when Perry rushed into Keithley, Watts struck him with
his gun and punched him. Perry successfully escaped and ran
down to the third floor. Keithley followed him, gun drawn,
while Watts stayed behind to secure apartment 501.
No. 10-3979 3
Keithley testified that Perry popped out from behind a
corner, rushed toward him, grabbed his shoulders, and tried to
grab his gun. Keithley said he tried to punch Perry in the face
but instead hit him in the shoulder; at this point his gun went
off, striking Keithley in the arm. Perry then attempted to
escape behind Keithley, knocking Keithley off-balance in the
process. Keithley shot at Perry while falling to the floor. One
bullet struck Perry in the thigh, and another struck him in the
back.
Perry denied reaching for Keithley’s gun, instead
contending that Keithley yelled, “Freeze, mother fucker, or I’m
going to shoot.” Perry said he kept running and felt a bullet rip
through his thigh shortly thereafter. He was still able to run,
and kept doing so until a second bullet hit his back and
brought him to the ground. Perry said he did not know how
Keithley was shot, but suggested in a written statement that
Keithley had either shot himself or had Watts shoot him.
Watts called an ambulance, which took Perry to Cook
County Hospital. A few days later, Perry was transferred to
Cermak Health Services in the Cook County Jail. When he
arrived at Cermak, he was admitted under the name “Ricky
Johnson”; previously, when in Illinois Department of
Corrections custody, Perry had provided this alias.
Perry was charged with attempted murder, aggravated
battery with a firearm, and disarming a peace officer. A jury
found him not guilty of these charges on July 24, 2009.
While the charges against him were pending, Perry filed
suit against Officers Keithley and Watts, and against the City
of Chicago, claiming violations of both federal and Illinois civil
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rights laws. Specifically, Perry’s second amended complaint
asserted claims under 42 U.S.C. § 1983 against both officers
(alleging excessive force, failure to intervene to prevent
excessive force, false arrest, and malicious prosecution) and an
Illinois malicious prosecution claim. It also sought
indemnification of the officers by the City. The claims against
Watts were dismissed prior to trial.
Before Perry’s civil trial, he filed motions in limine seeking
to bar reference to his criminal background, his
contemporaneous incarceration on unrelated criminal charges,
and his gang membership. The magistrate granted the motions
concerning Perry’s present incarceration and his gang
membership without objection. The court granted in part and
denied in part the motion concerning Perry’s criminal
background, allowing evidence only that Perry was convicted
of a crime in 2004 for which he was on parole at the time he
was shot.
When trial began on the afternoon of November 8, 2010,
Perry asserts that uniformed guards from the Cook County
Department of Corrections attended the trial to keep watch
over Perry. At the end of that first day, the magistrate
remarked, “civilian clothing tomorrow.” Perry did not object
to the guards’ presence, nor to the comment about civilian
clothing.
During a sidebar before Perry took the stand, he sought
clarification regarding testimony about the name Ricky
Johnson. Perry expressed concern that bringing up Ricky
Johnson would open the door to other, prior arrests during
which he had also used the name. The magistrate ruled that
No. 10-3979 5
questioning concerning the use of the alias in other arrests
would violate his ruling on the motion in limine to bar
evidence of Perry’s criminal background. But, he further
explained that questioning about the use of an alias during the
2004 arrest was “fair game.” Perry then testified on direct
examination that he gave the name Ricky Johnson during the
2004 arrest. During cross-examination, counsel for Keithley
and the city asked Perry a few additional questions, probing
whether Perry gave a fake name during his 2007 arrest
following the shooting and how the name Ricky Johnson
appeared on Perry’s medical records.
Later, Watts testified on direct examination that the people
who pointed him to apartment 501 also mentioned that
“gangbangers” were running drugs and guns into 527 East
Browning. Perry objected, citing the court’s ruling on his
motion in limine to bar reference to Perry’s gang membership.
The magistrate permitted the testimony but warned counsel
that she was “traipsing into areas of gang activity” and that she
was “really operating very close to the edge.”
The morning of the final day of trial, one of the jurors
(“Mrs. A”), saw the marshals lead Perry from the freight
elevator and into the courtroom. At the time, Perry was
wearing a suit and tie but was handcuffed in front. He held his
hands in such a way that it was not obvious he was
handcuffed. The magistrate discussed the matter with both
parties, and all agreed that the magistrate should discuss the
encounter with Mrs. A. The magistrate asked Mrs. A about the
encounter outside the presence of the other jurors, and she
acknowledged that she had seen Perry that morning. When the
magistrate asked if she had noticed anything in particular
6 No. 10-3979
about Perry, Mrs. A responded that she looked down, did not
pay attention to Perry or make eye contact, and did not recall
anything in particular. She did mention that there were several
other people in the hallway with Perry, but also said she did
not think anything of it. She had not discussed the incident
with the other jurors.
After speaking with Mrs. A, the magistrate discussed the
incident with the attorneys. All agreed that nothing further
needed to be done, except that the magistrate should instruct
Mrs. A not to discuss the incident with the other jurors. The
magistrate did so, and closing arguments proceeded as
scheduled.
The jury found in favor of defendants Keithley and the
City, rejecting Perry’s claims. Perry now appeals that verdict.
II. ANALYSIS
Perry claims that the district court erred in three ways: (1)
permitting questioning as to whether he used an alias during
the arrest that gave rise to his civil suit, (2) permitting
testimony that “gangbangers” were present in the apartment
where Perry was found, and (3) allowing Perry to appear
surrounded by uniformed guards on the first day of trial, and
permitting a juror to see Perry in handcuffs on his way to
court.
A. Questioning about Perry’s Alias and Testimony about
“Gangbangers”
Perry first argues the court erred by permitting questioning
about Perry’s alias and testimony about the presence of
“gangbangers” in apartment 501, given its prior in limine
No. 10-3979 7
rulings. Perry does not challenge the motions in limine
themselves, but rather asserts that the court violated its own
rulings by admitting the alias and gangbangers testimony.
Trial courts issue rulings on motions in limine to guide the
parties on what evidence it will admit later in trial. As a trial
progresses, the presiding judge remains free to alter earlier
rulings. Luce v. United States, 469 U.S. 38, 41–42 (1984); Farfaras
v. Citizens Bank & Trust of Chi., 433 F.3d 558, 565 (7th Cir. 2006).
This court reviews a district court’s evidentiary rulings for
abuse of discretion. Common v. City of Chicago, 661 F.3d 940, 946
(7th Cir. 2011). We will reverse only if no reasonable person
would agree with the trial court’s ruling and the error likely
affected the outcome of the trial. Farfaras, 433 F.3d at 564
(citations omitted). Thus, a court’s determination that a piece
of evidence falls within (or outside) a motion in limine will be
reversed only if that determination constituted such an abuse.
If evidence did not violate the ruling in limine, the court’s
decision to admit it cannot be an abuse of discretion. Willis v.
Lepine, 687 F.3d 826, 839 (7th Cir. 2012).
1. The Alias
Before trial, the magistrate issued a motion in limine
ruling with regard to Perry’s criminal background that
permitted “only evidence that plaintiff was convicted of a
crime in 2004, served a sentence of 17 months incarceration,
and was on parole for that offense at the time of the incident
at issue in this trial.” It was directed only to Perry’s
“criminal background” and thus did not bar evidence of the
arrest that gave rise to Perry’s claim. At trial during a
sidebar discussing this ruling, the court additionally barred
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testimony concerning the use of an alias in any prior arrests,
while noting that counsel could still elicit testimony about
Perry’s use of the Ricky Johnson alias in connection with the
2004 conviction. Later, the magistrate overruled Perry’s
objection to questioning about whether he used the alias.
Perry argues that the discussion during the sidebar
barred any testimony concerning the use of Ricky Johnson
during the 2007 encounter with Keithley and Watts because
the magistrate prohibited testimony about the use of the
alias “in other arrests.” (Appellant’s Br. at 9–10.) This
argument, however, ignores the context of the sidebar
discussion. The magistrate was considering his ruling on
Perry’s criminal background, not the use of an alias during the
events that led to Perry’s civil suit. Perry’s counsel himself
phrased his concerns in terms of Perry’s past arrests. Given
this context, we cannot say that the magistrate abused his
discretion by later permitting questioning as to whether
Perry used an alias during his 2007 arrest.
2. “Gangbangers”
In the same pre-trial ruling, the magistrate granted Perry’s
motion to bar reference to Perry’s gang membership without
objection. Perry argues that Watts’s testimony that a bystander
told him “gangbangers were running the guns and the drugs
up into 527 East Browning” violated this motion in limine and
thus the failure to correct it constituted an abuse of discretion
by the trial court.
The motion in limine, however, specifically barred
reference to Perry’s gang membership. It did not address
evidence of gang activity in 527 East Browning or apartment
No. 10-3979 9
501. Watts’s gangbangers statement did not explicitly refer to
Perry’s own gang membership, and thus did not fall within the
prior motion in limine ruling. Although it could be argued that
the testimony would have allowed the jury to infer that Perry
was also a gangbanger, we reverse for abuse of discretion only
where “no reasonable person would agree with the trial court’s
ruling.” Aldridge v. Forest River, Inc., 635 F.3d 870, 875 (7th Cir.
2011).
B. The Uniformed Guards and Handcuffs
Perry also argues that the court failed to shield his
incarceration from the jury, as the magistrate indicated he
would do in a pretrial ruling. Perry asserts that the uniformed
guards in the courtroom on the first day of trial and Mrs. A’s
glimpse of him surrounded by marshals prejudiced him before
the jury.
Perry did not object to either event at trial. Thus, at most,
we can review his claim for plain error. Stringel v. Methodist
Hosp. of Indiana, Inc., 89 F.3d 415, 421 (7th Cir. 1996). In most
civil cases, plain error review is unavailable; if a party fails to
object at trial, the issue cannot be raised on appeal. Id. A
narrow exception to this general rule permits review where a
party can demonstrate that (1) exceptional circumstances exist,
(2) substantial rights are affected, and (3) a miscarriage of
justice will result if the doctrine is not applied. Estate of
Moreland v. Dieter, 395 F.3d 747, 756 (7th Cir. 2005).
Perry attempts to make this showing, but fails on the first
and third elements. He suggests that exceptional circumstances
existed because he was incarcerated at the time of the hearing,
but the magistrate barred all reference to the fact that he was
10 No. 10-3979
incarcerated. (Appellant’s Br. at 16.) But this “exceptional
circumstance” does not provide any explanation for why Perry
failed to object at trial. See Kafka v. Truck Ins. Exchange, 19 F.3d
383, 386 (7th Cir. 1994) (“[The plaintiff] does not direct us to
any exceptional circumstances which caused his failure to
object to the questions propounded to him during cross-
examination.”). Perry does point to a substantial right that may
have been affected by the trial court’s ruling—his right to a fair
trial—but that alone does not necessitate plain error review. See
Stringel, 89 F.3d at 421–22. As for the third element, Perry does
not demonstrate that a miscarriage of justice will occur if the
district court’s actions are not deemed clearly erroneous. The
only evidence that uniformed guards were present on the first
day is the magistrate’s statement, “civilian clothes tomorrow.”
Additionally, the magistrate took several steps to guarantee
that Mrs. A’s sighting of Perry did not infect the jury
deliberations. Even though Mrs. A apparently did not notice
Perry’s handcuffs or the marshals accompanying him, the
magistrate clearly instructed her not to discuss the incident
with any of the other jurors. Because Perry cannot make the
necessary showing, we will not excuse his failure to timely
object and will not perform plain error review.
III. CONCLUSION
For the above reasons, we AFFIRM the decision of the district
court.