Lynette Wilson v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1279
LYNETTE WILSON, individually
and as Administratrix of the
Estate of Raul Adan Barriera,
deceased,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 07 C 1682 — Joan Humphrey Lefkow, Judge.
____________________
ARGUED APRIL 10, 2014 — DECIDED JULY 14, 2014
____________________
Before CUDAHY and EASTERBROOK, Circuit Judges, and
LAWRENCE, District Judge. *
* Of the Southern District of Indiana, sitting by designation.
2 No. 13-1279
LAWRENCE, District Judge. This case arises out of the fatal
shooting of Raul Barriera by a Chicago police officer. Barri-
era’s mother, Lynette Wilson, filed suit on behalf of herself
and Barriera’s estate against the City of Chicago and the of-
ficers who were present at the scene: Andrew Hurman, Da-
vid Cummens, and Donald Jerome. Wilson ultimately as-
serted the following claims at trial: (1) a claim against the po-
lice officers pursuant to § 1983 for excessive force in viola-
tion of the Fourth Amendment; (2) a claim for wrongful
death against the police officers pursuant to Illinois law; (3) a
claim under the Illinois Survival Statute against the police
officers; and (4) a claim that the City was liable for the torts
of the officers under the theory of respondeat superior. The ju-
ry found in favor of the defendants on each of Wilson’s
claims, and the district court denied Wilson’s motions for a
new trial and for judgment as a matter of law. 1 Wilson now
appeals, asserting that the trial court made several incorrect
evidentiary rulings and erred in various respects regarding
the manner in which it instructed the jury. We affirm.
I. BACKGROUND
On the morning of February 28, 2007, Barriera barricaded
himself in his bedroom. Barriera, who had been diagnosed
with schizophrenia three years earlier, had not been taking
his medicine regularly, and his mother feared he might harm
himself. When the efforts of his mother, grandmother, and
brother to convince him to leave his room were unsuccess-
ful, Wilson called 911 for assistance.
1
The trial was conducted by Judge William Hibbler. After his death, the
case was reassigned to Judge Joan Lefkow, who denied the post-trial mo-
tions.
No. 13-1279 3
When paramedics and firefighters arrived, Wilson ex-
plained her fear that Barriera might be suicidal because he
was not taking his medication. After unsuccessfully trying to
coax Barriera out of his room, a firefighter attempted to open
the bedroom door and found that something was blocking it;
with some effort he was able to open it enough to observe
Barriera holding a hunting knife and moving around the
room. The firefighter called for police assistance and held the
door closed until officers arrived.
Defendants Hurman and Cummens arrived a few
minutes later. The parties disagree regarding how events un-
folded next, but we must view the evidence in the light that
supports the jury’s verdict. Common v. City of Chicago, 661
F.3d 940, 942 (7th Cir. 2011) (citing Matthews v. Wisconsin En-
ergy Corp., Inc., 642 F.3d 565, 567 (7th Cir. 2011)). The officers
worked for several minutes to persuade Barriera to leave his
room, but were unsuccessful. A short time later, Jerome ar-
rived. He deployed his taser through the partially open bed-
room door, hitting Barriera as he stood about seven feet
from the door. Barriera removed the taser prongs from his
chest. About thirty seconds later, he lunged at the officers
with the knife in his hand. Fearing for their lives, Jerome de-
ployed the taser and Hurman fired two shots from his
weapon. Barriera was struck by the taser prongs and both
bullets. The officers entered the bedroom, knocked the knife
from Barriera’s hand, and handcuffed him so he could be
transported to the hospital. Barriera later died from the inju-
ries he sustained.
II. DISCUSSION
Wilson raises four enumerated issues on appeal. Three of
them relate to the district court’s jury instructions regarding
4 No. 13-1279
her wrongful death claim; the fourth addresses several evi-
dentiary rulings that Wilson argues were erroneous and
prejudicial to her. We address each argument, in turn, be-
low.
A. Wrongful Death Instructions
When reviewing errors relating to jury instructions,
“[w]e consider the instructions as a whole, analyzing them
deferentially to determine whether they accurately state the
law and do not confuse the jury.” Rapold v. Baxter Int’l, Inc.,
718 F.3d 602, 609 (7th Cir. 2013). “The standard of review is a
liberal one: we look at jury instructions only to determine if
taken as a whole they were sufficient correctly to inform the
jury of the applicable law. Even if the instruction contains
errors or misguides the jury, the error is reversible only if a
litigant is prejudiced.” Id. (citations and internal quotation
marks omitted). While the parties approach the issues from
several angles—discussing at length, for example, whether
certain arguments were waived and whether the district
court should have applied Rule 16(e)’s “manifest injustice”
standard—the question before us boils down to whether the
court’s instructions properly set out the law with regard to
Wilson’s wrongful death claim.
We begin, then, with what the applicable law is. The Illi-
nois Wrongful Death Act provides a mechanism for suit to
be brought by the personal representative of a decedent
whose death was “caused by wrongful act, neglect, or de-
fault, and the act, neglect or default is such as would, if
death had not ensued, have entitled the party injured to
maintain an action and recover damages in respect thereof.”
740 ILCS 180/1. In this case, the “wrongful act” at issue was
the shooting of Barriera by Hurman; if Hurman would have
No. 13-1279 5
been liable to Barriera for the tort of battery had Barriera
survived the shooting, he would be liable to Wilson under
the wrongful death statute. Thus, Wilson had the burden of
proving the elements of the civil tort of battery, which, in its
simplest terms, is defined as “the unauthorized touching of
the person of another.” Curtis v. Jaskey, 759 N.E.2d 962, 964
(Ill. App. Ct. 2001). In addition, the Defendants asserted the
affirmative defense of immunity under § 2-202 of the Illinois
Local Governmental and Governmental Employees Tort
Immunity Act (“Immunity Act”), which provides that “[a]
public employee is not liable for his act or omission in the
execution or enforcement of any law unless such act or
omission constitutes willful and wanton conduct.” 745 ILCS
10/2–202. Wilson does not dispute that she had the burden of
proving that Hurman acted willfully and wantonly.
With the applicable law in mind, we turn to the district
court’s instructions. The jury was first instructed that Wilson
had the burden of proving that Barriera was injured as a re-
sult of Hurman’s willful and wanton conduct. The following
instructions were then given:
The Plaintiff, Lynette Wilson, as Administrator of the
estate of Raul Barriera, deceased, claims that she was
injured and sustained damage and that the conduct of
defendant Officer Hurman was willful and wanton in
the following respect:
1. Shot the decedent, Raul Barriera, without
justification in that he lacked a reasonable
belief that such force was necessary to pre-
vent imminent death or great bodily harm
to himself or to others.
6 No. 13-1279
…
When I use the expression willful and wanton, I mean
a course of action which shows an utter indifference
to or conscious disregard for the safety of others.
Wilson argues that these instructions were erroneous in sev-
eral respects.
Wilson first argues that the district court improperly
shifted the burden of proof to her to disprove the affirmative
defense of justification. The question of which party bears
the burden of proof on that issue in a case in which immuni-
ty under the Immunity Act is asserted is, of course, one of
Illinois law. Because the Illinois Supreme Court has not ad-
dressed the issue, “we are called upon to predict how that
court would decide if presented with the same question.”
Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005).
In the absence of guiding decisions by the state’s
highest court, we consult and follow the decisions of
intermediate appellate courts unless there is a con-
vincing reason to predict the state’s highest court
would disagree. See Fidelity Union Trust Co. v. Field,
311 U.S. 169, 177–78 (1940) (“An intermediate state
court in declaring and applying the state law is acting
as an organ of the State and its determination, in the
absence of more convincing evidence of what the
state law is, should be followed by a federal court in
deciding a state question.”); Klunk v. County of St. Jo-
seph, 170 F.3d 772, 777 (7th Cir. 1999) (“To the extent
that the state’s highest court has not addressed an is-
sue, we examine the decisions of the lower state
courts.”).
No. 13-1279 7
ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Protection Dist.,
672 F.3d 492, 498 (7th Cir. 2012).
The Illinois Court of Appeals recently addressed the pre-
cise issue raised by Wilson in Davis v. City of Chicago, 8
N.E.3d 120 (Ill. Ct. App. 2014), reh’g denied, another case in-
volving a wrongful death claim arising out of a fatal police
shooting. There, as here, the defendants asserted immunity
under 745 ILCS 10/2-202 and the plaintiff argued that it was
error for the trial court to instruct the jury that the plaintiff
had the burden of proving that the officer acted “without
legal justification.” 2 The Illinois Court of Appeals rejected
that argument, holding that requiring the plaintiff to prove
that the officer acted without legal justification “harmonized
[the] plaintiff’s burden of proof on her battery claim to prove
the contact was unauthorized, the affirmative defense of
immunity … and the plaintiff’s burden to prove willful and
wanton conduct, while accounting for self-defense or legal
justification as a legally authorized contact.” Davis, 8 N.E.3d
at 148. We see no convincing reason to believe the Illinois
Supreme Court would disagree with this holding. To hold
otherwise would ignore the requirement that a plaintiff as-
serting a battery claim—whether directly or as the basis of a
wrongful death claim—must prove all of the elements of
that claim, including that an unauthorized touching oc-
curred. Accordingly, the district court did not err by requir-
2
In Davis, the court included the “without legal justification” language in
the definition of “willful and wanton” rather than in the description of
the alleged willful and wanton act, but the effect was the same—the bur-
den was placed on the plaintiff to prove that the officer acted without
justification, rather than on the defendants to prove that the shooting
was legally justified.
8 No. 13-1279
ing Wilson to prove that Officer Hurman lacked justification
to shoot Barriera.
Given this analysis, the resolution of the second issue
raised by Wilson is a foregone conclusion. Wilson argues
that the district court should not have instructed the jury on
justification at all because the defendants did not plead it as
an affirmative defense. In the absence of a properly raised
affirmative defense, Wilson argues, the defendants should
not have been permitted to avoid liability for wrongful
death based upon the presence of a legal justification for the
shooting. While justification, or self-defense, can be an af-
firmative defense, in this case lack of justification was part of
what Wilson was required to prove in order to demonstrate
that Officer Hurman willfully and wantonly committed bat-
tery rather than a legally authorized touching; therefore, the
fact that the defendants did not assert the affirmative de-
fense of justification is of no moment. See Davis, 8 N.E.3d at
144 (rejecting the same argument and noting that the de-
fendants “presented evidence that Officer Garza's intention-
al shooting of Hamilton was not ‘willful and wanton’ be-
cause he acted in self-defense”).
Finally, Wilson argues that the definition of “willful and
wanton” used by the district court was erroneous. The Im-
munity Act provides as follows:
“Willful and wanton conduct” as used in this Act
means a course of action which shows an actual or de-
liberate intention to cause harm or which, if not inten-
tional, shows an utter indifference to or conscious dis-
regard for the safety of others or their property.
No. 13-1279 9
745 ILCS 10/1-210. Wilson argues that, given the definition of
willful and wanton, “[i]f a defendant admits that [he] in-
tended to harm someone, then [he has] conceded that [his]
conduct was willful and wanton. In fact, because Defendant
Herman [sic] admitted that he intentionally shot the dece-
dent, then there was no need to instruct on willful and wan-
ton at all.” Appellant’s Br. at 41. This argument also is fore-
closed by the holding of Davis; indeed, the court in that case
specifically rejected the plaintiff’s proposed instruction be-
cause it “would have incorrectly made defendants automati-
cally liable for the intentional shooting without accounting
for the affirmative defense of tort immunity.” Davis, 8
N.E.3d at 148.
Wilson also objects to the fact that the district court’s in-
struction defining “willful and wanton conduct” omitted the
reference to “actual or deliberate intention to cause harm”
found in the statutory definition which, she argues, required
her to “argue to the jury that it should look into Defendant’s
Herman [sic] head and determine if he was consciously dis-
regarding the safety of ‘others’ instead of simply pointing
out that Defendant Herman [sic] admitted he intentionally
harmed the decedent.” Appellant’s Br. at 41–42. Any error in
the instruction used by the district court is harmless. With
regard to Wilson’s excessive force claim, the jury was in-
structed that “[a]n officer may use deadly force when a rea-
sonable officer, under the same circumstances, would be-
lieve that the suspect’s actions placed him or others in the
immediate vicinity in imminent danger of death or serious
bodily harm.” In finding against Wilson on that claim, the
jury necessarily found that Wilson did not prove that the
shooting was without legal justification. Because Wilson was
required to make the same showing in order to prevail on
10 No. 13-1279
her wrongful death claim, that claim was doomed regardless
of how the district court defined willful and wanton.
B. Evidentiary Rulings
Wilson also argues that the district court made several
erroneous evidentiary rulings. We review the trial court’s
evidentiary rulings for an abuse of discretion. Estate of Es-
cobedo v. Martin, 702 F.3d 388, 399 (7th Cir. 2012). “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.” Perry v. City of Chicago, 733 F.3d 248, 252 (7th
Cir. 2013).
1. Allowing testimony regarding Barriera’s drug and alcohol
use
Wilson called Dr. Sheldon Greenberg, a psychiatrist who
treated Barriera for several years, to testify during the trial.
Just before Dr. Greenberg took the stand, Wilson orally
moved in limine to preclude him from being asked about
Barriera’s marijuana and alcohol use. In making the motion,
Wilson’s counsel represented that the only mention of sub-
stance abuse by Barriera in Dr. Greenberg’s notes was a sin-
gle progress note from July 2003; she argued that this isolat-
ed incident was irrelevant to the issues in the case in light of
the lack of evidence that Barriera had drugs or alcohol in his
system at the time of the shooting. Defense counsel repre-
sented (correctly) to the district court that the psychiatrist’s
notes indicated that Barriera’s marijuana and alcohol use
was not limited to only one instance. The district court de-
nied Wilson’s motion in limine, finding that it was “only
proper that the jury gets an entire picture of the decedent in
this case.” Trial Tr. at 148.
No. 13-1279 11
Given the court’s ruling, Wilson’s counsel decided to ad-
dress the issue of Barriera’s drug and alcohol use with Dr.
Greenberg on direct examination. Dr. Greenberg testified
that when he first met with Barriera in July 2003, he reported
using a relatively small amount of marijuana on occasion
and using alcohol to “numb the voices” in his head. Id. at
159. Dr. Greenberg opined that Barriera’s marijuana use was
not heavy enough to have aggravated his psychotic symp-
toms. Nonetheless, Dr. Greenberg’s treatment recommenda-
tion included eliminating all marijuana and alcohol use. Dr.
Greenberg testified that there was no indication that mariju-
ana or alcohol use had ever made Barriera violent, but ex-
plained that it could “have a disinhibiting effect where he
might become more upset or easily irritated with others.” Id.
at 173. In April 2005, Barriera reported to Dr. Greenberg that
he had gotten into a fight after drinking “two or three vod-
kas”; typically at that time he drank an average of only one
beer per week. Id. at 171–72, 183. On cross-examination, Dr.
Greenberg explained that he did not believe that Barriera’s
substance abuse “led to a significant exacerbation of symp-
toms … [b]ut there is a risk of [sic] with significant binge
drinking of alcohol or severe marijuana intoxication that it
could be an exacerbation of symptoms.” Id. at 181. He also
testified that in June 2006 Barriera reported that he had
blacked out from drinking alcohol on his birthday. On his
final visit with Dr. Greenberg, in August 2006, Barriera re-
ported that he continued to drink beer and occasionally
binged on alcohol.
The only ground Wilson gave for her motion in limine re-
garding Dr. Greenberg was that “what drugs or alcohol he
may have self-reported four years before this incident hap-
pened” was irrelevant given the fact that there was no evi-
12 No. 13-1279
dence that he had drugs or alcohol in his system at the time
of the shooting. Id. at 145. Given Dr. Greenberg’s testimony,
the basis for Wilson’s objection was factually inaccurate.
Wilson made no argument at trial regarding the relevance of
the evidence of more recent alcohol use. Even if she had
made the proper argument, the standard for relevance under
the Federal Rules of Evidence is a liberal one; pursuant to
Rule 401, “testimony is relevant as long as it ‘has any ten-
dency to make a fact more or less probable’ than it would
otherwise be.” Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 768
(7th Cir. 2013) (quoting Fed. R. Evid. 401). Given this liberal
standard, we cannot say that the district court abused its dis-
cretion in finding evidence regarding Barriera’s past drug
and alcohol use relevant. The jury was instructed that, if it
found in favor of Wilson on her wrongful death claim, it was
to assess damages for the loss of society suffered by Barri-
era’s mother and brother, which the court properly defined
as the loss of “the mutual benefit that each family member
receives from the other’s continued existence, including love,
affection, care, attention, companionship, comfort, guidance
and protection.” The fact that Barriera—if only occasional-
ly—used drugs and alcohol against the advice of his psychi-
atrist, when doing so had the potential to exacerbate the
symptoms of his schizophrenia, was relevant to the jury’s
loss of society assessment; it was, as the district court said,
part of the “entire picture” of who Barriera was.
On appeal, Wilson’s primary argument is that permitting
this testimony was “overly prejudicial” and that “[a]s a gen-
eral rule probative value from evidence that a Plaintiff or
Decedent may engage in alcohol or drug use is substantially
outweighed by its prejudicial effect.” Appellant’s Br. at 44
(citing Mankey v. Bennett, 38 F.3d 353, 360 (7th Cir. 1994)).
No. 13-1279 13
Wilson did not make this argument at trial and therefore has
waived it.
To preserve an issue for appellate review, a party
must make a proper objection at trial that alerts the
court and opposing party to the specific grounds for
the objection. An objection is proper when a timely
objection or motion to strike appears of record, stating
the specific ground of objection, if the specific ground
was not apparent from the context. Neither a general
objection to the evidence nor a specific objection on
other grounds will preserve the issue for review.
When a defendant does not object to the admission of
evidence during the trial, the objection is waived and
cannot be raised for the first time in a motion for new
trial or on appeal.
Naeem v. McKesson Drug Co., 444 F.3d 593, 610 (7th Cir. 2006)
(internal citations and quotation marks omitted) (holding
that when the only basis for objection at trial was relevance,
additional basis raised for the first time in a post-trial motion
was waived).
In any event, Mankey does not stand for the “general
rule” for which Wilson cites it; in that case, the court noted
that “the only rationale for admitting the evidence was to
enable the expert witness to offer an opinion about how
Mankey’s drug and alcohol abuse would affect his life ex-
pectancy and future earning capacity.” Mankey, 38 F.3d at
360. However, the trial court excluded the defendant’s ex-
pert because he was not disclosed in a timely manner. Ac-
cordingly, the rationale for admitting the evidence no longer
existed and, “[u]nder [those] circumstances, any probative
value of that substance abuse evidence was substantially
14 No. 13-1279
outweighed by the danger of unfair prejudice.” Id. A differ-
ent rationale for admitting the evidence existed here, and
Wilson has failed to articulate how its probative value was
outweighed by its potential prejudice in this case.
Wilson also argues that the trial court erred in overruling
her objection to a question the Defendants asked medical ex-
aminer Ponni Arunkumar, M.D. During Wilson’s direct ex-
amination, Dr. Arunkumar testified that the toxicology re-
ports performed as part of the autopsy of Barriera found no
drugs or alcohol in his system. The defendants asked Dr.
Arunkumar on cross-examination whether the blood trans-
fusions Barriera received in the hospital could have affected
“any alcohol level that had been in his blood if there was al-
cohol in it.” Trial Tr. at 221. Dr. Arunkumar responded that
“it would dilute any substance that was in the body.” Id. We
see no error in permitting this testimony; it was not prejudi-
cial to permit the defendants to question the significance of
the negative toxicology report after Wilson elicited testimo-
ny about it.
2. Allowing evidence that Barriera had a knife strapped to his
thigh
Wilson filed a motion in limine seeking to bar evidence
that Barriera had a six-inch throwing knife taped to his thigh
when he was shot, arguing that it was irrelevant and preju-
dicial because Hurman did not know about it when the
shooting occurred. The district court denied the motion and
admitted the evidence.
Wilson, citing Palmquist v. Selvik, 111 F.3d 1332, 1339 (7th
Cir. 1997), argues that the district court’s ruling was errone-
ous because the determination of whether Hurman acted
No. 13-1279 15
reasonably when he shot Barriera depends entirely on what
Hurman knew at the time he made the decision to shoot.
This is a true statement of the law. See, e.g., id. (“[W]hen con-
sidering a charge of excessive force under the Fourth
Amendment, evidence outside the time frame of the shoot-
ing is irrelevant and prejudicial.”). However, where, as here,
the actions of the plaintiff (or decedent) immediately prior to
the shooting are disputed, evidence that tends to make one
side or the other’s version of the events more likely to be ac-
curate is admissible for that purpose. For example, in Com-
mon, this court held that evidence that the decedent had
packets of drugs in his mouth at the time he was shot by a
police officer was admissible because
the packets of drugs in Smith’s mouth made it more
likely that Smith acted in the way that Officer Nelson
contended he acted as opposed to the way that other
witnesses contended he did. The fact that Smith pos-
sessed illegal drugs gave him a motive to avoid their
discovery—by hiding them in his mouth, for example.
This made it more likely that he would initially turn
from the officer and hide his hands as he took the
drugs from his pockets and placed them in his mouth.
It also made it more likely that Smith might engage in
a flight or fight response—either turning away from
the police, as he seemed to have done initially, or
turning toward the officer and grabbing for his gun.
Common, 661 F.3d at 945; see also Saladino v. Winkler, 609 F.2d
1211, 1214 (1979) (evidence of plaintiff’s intoxication at time
of shooting was admissible because it “tends to make more
probable that the plaintiff acted as the defendant contended
he did or that plaintiff otherwise conducted himself in such
16 No. 13-1279
a manner as to place the defendant reasonably in fear of his
life”) (quoted in Palmquist, 111 F.3d at 1342).
Barriera’s actions leading up to the shooting were highly
contested. The officers testified that he lunged at them with a
knife in his hand, causing them to fear for their lives. Wilson
argued that the bullet trajectory and blood evidence com-
pelled the conclusion that Barriera was sitting on his bed
when he was shot. The fact that Barriera had a knife taped to
his thigh makes it more likely that the officers’ version is
correct; it suggests that Barriera was prepared for battle and
more likely to act aggressively. Wilson concedes as much,
acknowledging that “[i]t is both reasonable and probable
that jurors inferred that Barriera intended to resist or other-
wise act out in violence against the officers by strapping a
knife to his leg prior to the officers’ arrival.” Appellant’s Br.
at 47–48. Wilson argues that the evidence was highly preju-
dicial because it is likely that the jury considered it when as-
sessing whether the decision to shoot Barriera was reasona-
ble. We disagree. “We presume that juries follow the instruc-
tions given them by the court,” Soltys v. Costello, 520 F.3d
737, 744 (7th Cir. 2008), and here the jury was instructed
with regard to the issue of reasonable force as follows: “You
must make this decision based on what the officer knew at
the time of the use of force, not based on what you now
know.” Trial Tr. at 1140. Given the testimony about the knife
being found in the ambulance hidden under Barriera’s cloth-
ing, the jury was aware that Hurman did not know about
that knife when he shot Barriera and therefore its existence
was not relevant to whether his actions were reasonable.
No. 13-1279 17
There was no error in admitting evidence regarding the
knife. 3
3. Barring certain questions of Defendant Jerome
Finally, Wilson objects to the fact that the district court
sustained the defendants’ objections to questions she posed
to Jerome about the possible disciplinary ramifications to
him if the jury found in favor of Wilson and about certain
reports that were completed by the officers after the shoot-
ing. Even assuming those rulings were an abuse of discre-
tion, Wilson forfeited any challenge to them because her
counsel made no offer of proof as required to preserve such
an error for appeal. See U.S. v. Muoghalu, 662 F.3d 908, 913
(7th Cir. 2011) (by giving “no indication of what he thought
such questioning would produce that would be material” at
trial, party forfeited a challenge to exclusion of evidence)
(citing Fed. R. Evid. 103(a)(2)). The requirement that an offer
of proof be made is essential in two ways. First, it gives the
trial judge the information he or she needs to make an in-
formed ruling. Judges are not mind readers, and even the
most prepared judge cannot possibly know as much about a
party’s case (and strategy) as the lawyer who is trying it.
When the relevance of a particular line of questioning is not
self-evident, an explanation of what the anticipated answers
will be and how those answers advance the party’s theory of
the case is critical. Second, without that explanation there is
no way for a reviewing court to determine whether exclud-
3 Wilson also raises the fact that the district court denied her motion to
bar testimony that after the shooting Barriera gave Officer Cummens the
finger. Assuming this evidence was improperly admitted, we cannot im-
agine how it was prejudicial; few people would be the model of civility
having just been hit by a taser and shot twice.
18 No. 13-1279
ing the evidence was prejudicial. Peals v. Terre Haute Police
Dept., 535 F.3d 621, 630 (7th Cir. 2008) (“If the party objecting
to the exclusion of the evidence fails to make a proper offer
of proof, there is no basis for a finding of prejudice.”) (cita-
tion and quotation marks omitted). Because in this case we
do not know what testimony the disallowed lines of ques-
tioning would have elicited, we cannot find an abuse of dis-
cretion by the trial court. 4
III. CONCLUSION
We AFFIRM the judgment of the district court.
We recognize that these issues apparently were discussed at a pretrial
4
conference that was not on the record, and therefore the trial court may
have had an understanding of Wilson’s position with regard to the pre-
cluded lines of questioning that is not made clear in the record. The fact
remains that Wilson did not make an offer to prove what Jerome’s testi-
mony would have been had the questioning been permitted.