Byron Christmas v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3679
B YRON C HRISTMAS, et al.,
Plaintiffs-Appellants,
v.
C ITY OF C HICAGO, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 4675—Blanche M. Manning, Judge.
A RGUED D ECEMBER 1, 2011 —D ECIDED JUNE 4, 2012
Before E ASTERBROOK, Chief Judge, C UDAHY, Circuit Judge,
and P RATT, District Judge.Œ
P RATT, District Judge. On August 27, 2007, Byron Christ-
mas and Tiffany Banks were arrested by Chicago police
Œ
The Honorable Tanya Walton Pratt, District Judge for the
United States District Court for the Southern District of Indiana,
is sitting by designation.
2 No. 10-3679
officers and charged with felony drug possession. Follow-
ing a bench trial, Christmas and Banks were acquitted of
all criminal charges. On August 17, 2008, Christmas,
Banks, and Banks on behalf of her infant daughter (“Plain-
tiffs”), sued the City of Chicago and several of its
police officers asserting violations of the Fourth Amend-
ment pursuant to 42 U.S.C. § 1983 and state law claims.
The Defendant officers include: (1) Marcos Bocanegra
(“Officer Bocanegra”); (2) Arletta Kubik (“Officer Kubik”);
(3) Luis Loaiza (“Officer Loaiza”); (4) Peter Medina
(“Officer Medina”); (5) Arnoldo Rendon (“Officer
Rendon”); and (6) Carlos Rojas (“Officer Rojas”) (collec-
tively, the “Defendants”). On February 22, 2010, a civil jury
trial commenced on Plaintiffs’ § 1983 claims and claims for
false arrest, unlawful search, conspiracy, malicious prose-
cution, battery, and intentional infliction of emotional
distress. After seven days of trial, the jury returned a
verdict in favor of the Defendants on each of the Plaintiffs’
claims.
During trial, Plaintiffs moved for a mistrial and at the
conclusion of the trial Plaintiffs filed a motion for a new
trial. In both motions, Plaintiffs argued that they
were denied a fair trial due to the Defendants’ counsel’s
repeated violations of the district court’s evidentiary
rulings and counsel’s improper comments to the jury.
The district court denied both motions. On appeal, Plain-
tiffs argue that the district court abused its discretion
by denying their motions for a mistrial as well as
their motion for a new trial. For the reasons that follow,
we affirm on both issues.
No. 10-3679 3
I. Factual Background
A. Pre-Arrest Factual History
The parties presented divergent testimony concerning
the events which occurred on August 27, 2007. Officer
Loaiza testified that while on patrol with Officer Rendon,
he received an assignment that “narcotics––or drug sales
were occurring on the 3400 block of West Douglas in
the alley by a 500-pound male black who was inside a gold-
colored vehicle parked there in the alley.” According
to Officer Loaiza, the 3400 block of West Douglas was
a “high narcotic area” that involved “[a] lot of drug sales,
robberies, rapes, [and] shootings.” In addition, Officer
Loaiza testified that he had received previous assign-
ments based on 911 calls placed to the police department
on August 25 and 26, 2007 about drug sales occurring
at that same location. However, when the officers drove
by the area to investigate, they found no one there.
After receiving the August 27th assignment, both Officer
Loaiza and Officer Rendon proceeded to the 3400 block
of West Douglas to set up surveillance.
As the surveillance leader, Officer Loaiza selected a
surveillance position with a clear line of sight to the
alley. During his surveillance, Officer Loaiza testified
that he observed a gold colored vehicle in the alley with
a heavy-set black man seated in the driver seat, which
he later learned was Christmas. In a span of approximately
fifteen minutes, Officer Loaiza observed what appeared
to be four separate drug transactions between Christmas
and four individuals. After the fourth alleged drug transac-
tion occurred, Officer Loaiza immediately alerted
4 No. 10-3679
his partner, Officer Rendon, to notify additional
law enforcement officers to come to the alley.
Officers Medina, Bocanegra, Kubik, and Rojas arrived
at the alley at approximately 1:00 p.m., and the officers
approached Christmas’s vehicle. While walking toward
the vehicle, Officer Medina observed Christmas swipe
something from the central console of his vehicle. Suspect-
ing Christmas of dealing drugs, Officer Bocanegra
ordered him to exit the vehicle, and proceeded to conduct
a pat-down search of Christmas. At the same time,
Officer Medina conducted a search of the vehicle
and found a bag which contained 32 smaller bags
filled with what officers suspected to be heroin. Immedi-
ately after Officer Medina’s discovery, Officer Bocanegra
handcuffed Christmas and placed him under arrest.
After being placed under arrest, Officer Loaiza testified
that Christmas began “bragging” and stated, “I’ve got
about 20 grams of blow coming to my crib right now by
my girl.” Officer Loaiza testified that Christmas’s state-
ment led him to believe that another drug transaction
may be occurring soon. As a result, Officer Loaiza ordered
the other officers to leave the alley and set up a
second surveillance of the area. When Banks appeared
in the alley, Officer Kubik confronted her and identified
herself as a police officer. Immediately, Banks dropped
a package she was carrying on the ground, which the
officers suspected contained narcotics. At that time, Officer
Kubik proceeded to conduct a pat-down search of
Banks; and subsequently, Banks was taken into custody.
All the officers denied strip searching either of the Plain-
tiffs.
No. 10-3679 5
Both Christmas and Banks testified that on August 27,
2007, they went to the 3400 block of West Douglas
in Chicago to meet with a friend who lived in the neighbor-
hood. Christmas was driving Banks’s gold Dodge
Intrepid on that day. Upon reaching the 3400 block of West
Douglas, Christmas drove the Dodge Intrepid into the
alley behind a multi-unit apartment building and stopped
the vehicle. Banks testified that at this time she needed
to use the bathroom and decided to ask Christmas’s friend
if she could use his bathroom in his apartment.
Banks testified that she took her four-week old daughter
and the car seat carrier with her to the friend’s apartment.
Christmas testified that Officer Loaiza approached
and ordered him to exit the vehicle when he was in
the alley. Upon exiting, Christmas alleged that Officer
Loaiza ordered him to submit to a strip search. Christmas
testified that he took off his clothes, at which point Officer
Loaiza conducted a search of his person including an
anal cavity search. At trial, Officer Loaiza denied ordering
and conducting a strip search or anal cavity search
on Christmas.
Additionally, Banks testified that she was ordered
to submit to a strip search in the alley and that after
she removed her clothes, Officer Kubik conducted a
search of her person. Officer Kubik denied that she
ever ordered Banks to submit to a strip search. Banks
further testified that after the Defendants brought Christ-
mas and herself to the police station, they left their
baby behind at the scene. At trial, the Defendants denied
Plaintiffs’ allegations concerning leaving the baby
and testified that they never saw a baby at the scene.
6 No. 10-3679
Christmas and Banks were both charged with felony
drug offenses. At their criminal trial, Christmas and Banks
were acquitted of all charges following a bench trial.
B. Christmas and Banks File a Civil Suit
On August 17, 2008, Christmas and Banks filed a civil
suit against the City and six police officers in the Federal
District Court for the Northern District of Illinois. In
their eight count Complaint, Christmas and Banks asserted
Fourth Amendment claims, a due process claim, a Monell
claim, conspiracy, intentional infliction of emotional
distress, battery, false imprisonment, and malicious
prosecution.
Prior to trial, Plaintiffs filed a number of pretrial motions
including a motion in limine to bar testimony from
the anonymous 911 caller and any “related recordings
and transcripts, and other hearsay OEMC records and
audio.” In particular, Plaintiffs moved to bar the August
27, 2007 911 call and its corresponding dispatch in
which a dispatcher informed officers that a 911 caller
stated the officers “[had] the right guy.” Plaintiffs argued
that the evidence from the 911 calls was hearsay or other-
wise misleading. Defendants countered by arguing that
the 911 evidence was relevant and not inadmissible
hearsay because it would be offered to establish whether
the officers had probable cause for Christmas’s arrest.
On February 11, 2010, the district judge initially
stated that the 911 evidence was not inadmissible hearsay,
but she reserved ruling on its admissibility until the
No. 10-3679 7
record was more developed regarding which officers
actually heard the dispatches. Later, the district judge
barred the August 26 and 27, 2007 recordings of the
911 dispatches in a written ruling, but concluded
that officers could testify to information received from
the dispatcher: (1) before the time of the Plaintiffs’ arrests;
or (2) before the time the Plaintiffs were charged.
In addition, the district judge limited testimony relating
to the August 27, 2007 dispatch only to those defendants
in the malicious prosecution claim. During trial, Plaintiffs
dropped their malicious prosecution claim against
Officers Bocanegra, Rendon and Rojas. Afterward, Plain-
tiffs renewed their motion to exclude the August 27,
2007 dispatch evidence. The district judge, in denying
their renewed motion, ruled that the August 27, 2007
dispatch was relevant if any of the remaining defendants
to the malicious prosecution claim learned of the
contents before the Plaintiffs were charged.
C. The Trial
The jury trial commenced on February 22, 2010. At
the conclusion of the Plaintiffs’ opening statement, Defen-
dants’ counsel requested a sidebar discussion with
the district judge to inquire about referencing certain 911
calls in their opening statement. During the sidebar
discussion, one of Defendants’ attorneys spoke loudly
when she informed the district judge that an anonymous
911 caller stated she was “scared to death” of Christmas,
adding “thank the Lord she is not in this courtroom.”
After this sidebar discussion, Defendants delivered their
8 No. 10-3679
opening statements and made reference to an August
25, 2007 911 call and commented on the details of the
August 27, 2007 assignment heard by Officer Loaiza.
Immediately, Plaintiffs’ counsel objected to Defendants’
counsel’s references to both 911 calls. The district judge
sustained both objections and during the subsequent
sidebar conference admonished Defendants’ counsel
that those specific 911 calls were barred pursuant to
the court’s previous ruling on the Plaintiffs’ motions in
limine.
Following this sidebar discussion, Plaintiffs moved for
a mistrial on two issues. First, Plaintiffs argued that their
clients, sitting at counsel table, overheard the
sidebar comments made by Defendants’ attorney relating
to Christmas and, therefore, the jury must have also
heard the comments as well. Thus, Plaintiffs argued
they were denied a fair trial because the anonymous
911 caller was not going to be a witness in the case, and
they would have no opportunity to cross-examine
the caller. Second, Plaintiffs argued that a mistrial was
appropriate because the jury heard the references to 911
calls in violation of the court’s previous rulings. The court
denied the Plaintiffs’ motion for a mistrial.
Next, during the course of trial Defendants called, among
other witnesses, Officer Loaiza, Laura Dunaj (“Dunaj”),
and Officer Rendon to testify in their case-in-chief.
Before Officer Loaiza testified, the district court reiterated
its expanded ruling as it related to evidence associated
with the 911 calls from August 26 and 27, 2007. Officer
Loaiza, despite being present during the court’s reminder,
No. 10-3679 9
proceeded to testify about the August 27, 2007 assignment
he received regarding the sale of drugs at the 3400 block
of West Douglas by a 500 pound black male in a gold
car. Additionally, after just hearing the nature of
the court’s ruling, Officer Rendon testified in detail about
the August 26, 2007 calls stating the following: “[I]t was
like three or four previous assignments which we received
of narcotic sales occurring at that location with the
same description.”
Defendants also called Laura Dunaj, a call taker from
Chicago’s 911 call center. After being sworn-in by
the court, Dunaj began to answer preliminary questions
about how 911 calls are logged into the center’s system.
Shortly after Dunaj began to testify, Plaintiffs objected
to her testimony on the grounds that the Defendants
were attempting to lay a foundation for 911 calls that
the district court has previously excluded. The district
court then excused the witness from the stand before
she could testify further on substantive matters involving
911 calls to the call center.
One of the last witnesses called by the Defendants at
trial was Officer Rendon. While Officer Rendon was
testifying about the events that unfolded on August 27,
2007 at the 3400 block of West Douglas, he voluntarily
gave testimony that after Christmas’s arrest he heard
a dispatch stating that the officers “[had] the right guy.”
Plaintiffs immediately objected to Officer Rendon’s testi-
mony and the district court sustained the objection
and gave the jury the following instruction: “The last
question and answer is to be totally disregarded. It will
be stricken from the record.”
10 No. 10-3679
During closing argument, Defendants’ counsel argued to
the jury that opposing counsel did not believe in their
clients. To get her point across to the jury, Defendants’
counsel stated “They didn’t even ask these officers:
Did you or did you not do this? Why? They (opposing
counsel) don’t believe it themselves.” Plaintiffs’ counsel
objected to this statement, and the district court sustained
the objection. In addition to these comments, at times
during her closing argument, Defendants’ counsel ap-
peared to impose her own views on the jury and engage
in vouching.
While giving jury instructions, the district judge in-
structed the jury that attorneys’ comments are not evi-
dence. The judge further instructed the jury that the
burden of proof on each claim was preponderance of
the evidence, in which they must be persuaded that it
is more probably true than not. In addition, the judge
instructed the jury not to consider as evidence any testi-
mony or exhibit that was struck by her at trial.
After deliberations, the jury returned a verdict in favor
of the Defendants on all of Plaintiffs’ claims. Plaintiffs
then made a motion for a new trial based on: (1) the Defen-
dants’ witnesses violating the district court’s evidentiary
rulings; (2) the cumulative effect of the Defendants’
conduct in violation of the district court’s evidentiary
rulings; and (3) the comments of Defendants’ counsel
during their opening and closing statements in the pres-
ence of the jury. The district court denied the Plaintiffs’
motion. The Plaintiffs now appeal the district court’s
denial of its motion for a mistrial and its motion for a new
trial.
No. 10-3679 11
II. Analysis
On appeal, Christmas and Banks challenge the district
court’s denial of their motion for a mistrial based on the
Defendants’ counsel’s comments during opening state-
ments. They further challenge the district court’s denial
of their motion for a new trial after Defendants’ witnesses
violated the district court’s evidentiary rulings, while
testifying in court and when Defendants’ counsel
made improper comments in the presence of the jury.
A. Plaintiffs’ Motion for a Mistrial
We review the district court’s denial of a motion for
a mistrial for an abuse of discretion. United States v. Lauder-
dale, 571 F.3d 657, 660 (7th Cir. 2009). A district court
abuses its discretion when it commits an error of law
or makes a clearly erroneous finding of fact. Shakman v.
City of Chicago, 426 F.3d 925, 932 (7th Cir. 2005). In addition,
we utilize a highly deferential standard of review because,
“the trial judge is in the best position to determine
the seriousness of the incident in question, particularly
as it relates to what has transpired in the course of
the trial.” United States v. Danford, 435 F.3d 682, 686 (7th
Cir. 2006). Nevertheless, when reviewing the denial of
a mistrial in this context, we must ultimately determine
whether the plaintiffs were deprived of a fair trial.
United States v. Clarke, 227 F.3d 874, 871 (7th Cir. 2000).
12 No. 10-3679
1. Defendants’ Counsel’s Comments During Opening
Statements
Plaintiffs argue they were denied a fair trial when Defen-
dants’ counsel stated in his opening statement that the
officers received 911 calls which indicated drug sales
were taking place at the 3400 block of West Douglas.
Specifically, they contend that any references to the 911
calls were barred by the district court’s motion in limine
ruling. Plaintiffs argue that Defendants’ counsel’s state-
ments improperly prejudiced the jury. We disagree.
The references to the August 25 and 27, 2007 911
calls made by the Defendants’ counsel during opening
statements were proper. The district court’s February
11, 2010 ruling on Plaintiffs’ motion in limine did not
bar references to the August 25, 2007 911 call. Further,
the district court reserved ruling on the admissibility
of the August 27, 2007 dispatch statement that officers
“[had] the right guy”. Subsequently, the district court
ruled that the August 27, 2007 911 call was admissible
with respect to Plaintiffs’ malicious prosecution claim.
Because the district court’s rulings, at the time opening
statement were made, did not bar either of the two
911 calls, Defendants’ counsel’s references were proper.
See Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008)
(concluding that defense counsel’s statements during
closing arguments did not warrant a new trial because
the statements were not improper). Thus, the references
made by Defendants’ counsel did not deny the Plaintiffs
a fair trial.
Even if the admissibility of the August 27, 2007 911 call
was questionable after the district court’s February 11, 2010
No. 10-3679 13
ruling, Plaintiffs would still not be deprived of a fair trial
because the district court found the August 27, 2007 911
call was admissible in a subsequent written ruling.
See United States v. Schimmel, 943 F.2d 802, 806 (7th Cir.
1991) (“[W]e refuse to hold that the district court abused
its discretion by denying the defendant’s motion
for mistrial because the record fails to convince us that
the defendant suffered any prejudice from the reference
in the opening statement to evidence which the court
subsequently found to be admissible.”). Moreover, any
potential harm caused by the initial references to the
911 calls made by Defendants’ counsel in his opening
statement was ameliorated by the district court’s instruc-
tion to the jury that statements by counsel are not evidence.
“As a general rule, we assume that the jury obeys
the judge’s instructions.” Lopez v. Thurmer, 573 F.3d 484,
496 (7th Cir. 2009) (internal quotations and citation omit-
ted). Here, the district judge initially sustained Plaintiffs’
objection and gave a curative instruction to the jury.
Thus, the record fails to convince us that the Plaintiffs
suffered any prejudice from the references to the 911
calls during opening statements.
B. Plaintiffs’ Motion for a New Trial
Next, Plaintiffs argue that the district court abused its
discretion in denying their motion for a new trial
under Federal Rule of Civil Procedure 59(a). On appeal,
Plaintiffs contend that three witnesses violated the district
court’s evidentiary rulings. According to Plaintiffs, these
violations establish a sufficient basis for a new trial.
14 No. 10-3679
Our review of the district court’s denial of a motion for
a new trial is, once again, for abuse of discretion. Pickett
v. Sheridan Health Care Ctr., 610 F.3d 434, 440 (7th Cir. 2010).
In reviewing a denial of a motion for a new trial, we
reverse only if “the verdict is against the weight of
the evidence, the damages are excessive, or if for
other reasons the trial was not fair to the moving party.”
Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 636 (7th
Cir. 1996). Only the latter concern is implicated here.
1. Officer Loaiza’s Testimony
First, Plaintiffs contend they were denied a fair trial
when Officer Loaiza described in detail the previous
assignments he received before August 27, 2007, despite
the court’s ruling prohibiting such an explanation.
As discussed previously, Officer Loaiza initially testified
to receiving a dispatch on August 27, 2007 informing him
to look for a 500 pound man selling drugs from a gold-
colored car. While Officer Loaiza was allowed to testify
in detail about this dispatch, the district court barred
him from testifying about previous dispatches which
included a similar description of the suspect. Nonethe-
less, Officer Loaiza proceeded to testify, in violation of
the court’s ruling, that prior to August 27, 2007 he received
previous dispatch notices that included the same descrip-
tion of the suspect in the August 27, 2007 dispatch. At
trial, Plaintiffs did not immediately object to Officer
Loaiza’s testimony, but instead, waited until the conclusion
of his examination before asking the court to admonish
the witness to adhere to the court’s rulings. In denying
No. 10-3679 15
the Plaintiffs’ motion for a new trial, the district court
found that Plaintiffs failed to properly and timely raise an
objection.
To preserve an issue for appellate review, Federal Rule
of Evidence 103(a) provides that a party seeking to object
to the admission of evidence must make a “timely objection
or motion to strike” before the district court. Fed. R. Evid.
103(a). “When a party fails to timely and properly object
at trial to the admission of evidence, the party is deemed
to have waived the issue on appeal.” Jones v. Lincoln
Elec. Co., 188 F.3d 709, 727 (7th Cir. 1999). In Jones, we
found that an objection at the end of a witness’s testimony
was “sufficiently contemporaneous” to avoid waiver.
Id. But Jones is readily distinguishable.
Unlike in Jones, Plaintiffs did not object to the officer’s
specific testimony at trial, but instead asked the
district judge to admonish the witness to adhere to
the court’s rulings. By failing to object, Plaintiffs may
not raise the issue for the first time in a motion for a
new trial or on appeal. See Naeem v. McKesson Drug Co.,
444 F.3d 593, 610 (7th Cir. 2006) (“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.”).
Plaintiffs’ failure to timely and properly object constitutes
waiver. See Griffin v. Foley, 542 F.3d 209, 218-19 (7th
Cir. 2008). Thus, the district court did not abuse its discre-
tion in denying Plaintiffs’ motion for a new trial.
16 No. 10-3679
2. Chicago’s 911 Call Center Witness
Next, Plaintiffs argue that Dunaj’s testimony deprived
them of a fair trial because it gave the jurors an impression
that 911 calls were being withheld. As such, Plaintiffs
contend that Dunaj’s testimony substantially influenced
the jury, depriving them of a fair trial. We disagree.
To reiterate, in determining whether to grant a new
trial under Rule 59 of the Federal Rules of Civil Procedure,
“[a] court should only grant a new trial if the improperly
admitted evidence had a ‘substantial influence over
the jury,’ and the result reached was ‘inconsistent
with substantial justice.’ ” Schick v. Ill. Dep’t of Human Servs.,
307 F.3d 605, 611 (7th Cir. 2002) (quoting Agushi v.
Duerr, 196 F.3d 754, 759 (7th Cir. 1999)). Here, Dunaj
testified briefly on the procedures taken at the call
center when a 911 call is received. Subsequently, Plaintiffs
objected to Defendants’ counsel’s attempt to lay a founda-
tion with Dunaj relating to 911 calls received on August
26, 2007. After sustaining the objection, the district
court excused Dunaj from the witness stand and empha-
sized the court’s previous ruling on the admissibility of
the August 26, 2007 assignments.
After reviewing the record, we are not persuaded
by Plaintiffs’ arguments that the jury was substantially
influenced by Dunaj’s testimony. N otably, the
district judge, in denying Plaintiffs’ request to cross exam-
ine her, said “she has not testified to anything.” Further-
more, Dunaj was only on the witness stand for a very
brief period. Given the unique circumstances surrounding
this witness and the district court’s broad discretion
No. 10-3679 17
in ruling on evidentiary questions during trial, see Jenkins v.
Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002),
we find no indication that the district court abused
its discretion in denying Plaintiffs’ motion for a new trial.
3. Officer Rendon’s Testimony
Plaintiffs further argue that a new trial is warranted
because Officer Rendon’s testimony about hearing we
“[had] the right guy” over the dispatch, violated the district
court’s evidentiary ruling. Defendants argue that any harm
caused by Officer Rendon’s comment was quickly and
adequately addressed by the district court with a curative
jury instruction. We agree.
Immediately following Officer Rendon’s improper
comment, the district court sustained Plaintiffs’ objection
and gave the following jury instruction: “The last
question and answer is to be totally disregarded. It will
be stricken from the record . . . .” Again, we presume
that juries follow instructions given to them by the
court. See Pickett, 610 F.3d at 446; Thomas v. Cook Cnty.
Sheriff’s Dep’t, 604 F.3d 293, 311 (7th Cir. 2010); Chlopek
v. Fed. Ins. Co., 499 F.3d 692, 702 (7th Cir. 2007). Here,
the district court quickly informed the jury to disregard
Officer Rendon’s previous statement. Officer Rendon’s
isolated comment was made during the course of a week-
long trial and was adequately addressed by the
district court through a curative instruction. See
United States v. Humphrey, 34 F.3d 551, 557 (7th Cir.
1994) (when considering whether a curative instruction
18 No. 10-3679
cured improper testimony, “the court should evaluate the
timeliness and effectiveness of the curative instruction as
well as the record as a whole . . . .”). Moreover, Plaintiffs’
claim that Defendants poisoned the jury’s perception
of Christmas is weakened by the fact that the jury was
also aware that Christmas had been acquitted of all
drug charges in his criminal case. Given the timeliness
of the district court’s curative instruction in response to
the isolated comment made by Officer Rendon, we find
that the district court did not abuse its discretion in denying
Plaintiffs’ motion for a new trial.
C. Defendants’ Counsel’s Comments During Trial
Plaintiffs also argue that a new trial is warranted because
Defendants’ counsel made improper comments during
trial and closing arguments. We disagree. Plaintiffs pre-
sented this issue in their Rule 59(a) motion to no
avail, so we review their appeal under the abuse of discre-
tion standard. Pickett, 610 F.3d at 445.
1. Comments During Sidebar Discussion
First, Plaintiffs argue that certain comments made
by Defendants’ counsel during a sidebar discussion were
overheard by the jury; therefore, a mistrial or a new trial
is warranted. We find Plaintiffs’ arguments unpersuasive
on both fronts. Plaintiffs contend that Defendants’
counsel “shouted” that the 911 caller was “scared to death”
of Christmas and stated “thank the Lord she is not in
this courtroom” loud enough for the jury to overhear
No. 10-3679 19
her comments. The district judge had turned on the
white noise machine to prevent the jurors from hearing the
particular sidebar discussion. Because the trial judge is
in the best position to determine whether an incident
was so serious as to warrant a mistrial, this court will
not overturn the district court’s decision when it was
“satisfied” that the statements “were not so loud that
jurors could have heard them over the white noise . . . .”
See United States v. Mealy, 851 F.2d 890, 902 (7th Cir.
1988); see also United States v. Van Eyl, 468 F.3d 428, 436
(7th Cir. 2006) (“The district court judge is always in
a better position than appellate judges to assess the proba-
ble reactions of jurors in a case over which that
district judge has presided.”). Because we are confined
to reading the trial court’s transcript and cannot duplicate
the district judge’s experience of the trial, we defer to
the district judge and find no abuse of discretion occurred.
2. Defendants’ Counsel’s Other Comments During
Trial and Closing Arguments
Next, Plaintiffs contend that Defendants’ counsel made
other improper comments to the jury during the course
of the trial. To obtain a new trial based on attorney miscon-
duct, Plaintiffs must show both that the mis-
conduct occurred and that it prejudiced their case.
Whiting v. Westray, 294 F.3d 943, 944 (7th Cir. 2002). As
we have stated earlier, we defer to the district court
because of its unique position to view the evidence and
the course of trial. See id. (given a district judge’s familiarity
with the parties, the litigation, and the credibility of
20 No. 10-3679
the evidence at trial, the question of whether a party was
prejudiced is necessarily deferential to the district court);
see also Miksis v. Howard, 106 F.3d 754, 757 (7th Cir.
1997). Here, the district court noted that the comments
made by the Defendants’ counsel during trial were
kept “from becoming over zealous through effective
objections”; thus, a new trial was not warranted.
Moreover, the district court instructed the jury that state-
ments by the attorneys should not be considered as evi-
dence. Furthermore, Plaintiffs are not very precise on
how Defendants’ counsel’s conduct prejudiced the jury.
It appears the district judge gave both parties latitude
in presenting their cases to the jury. See Whiting, 294 F.3d
at 946 (denying defendant’s motion for a new trial when
defense counsel was not impeded from presenting his case
to the jury despite plaintiff’s counsel’s conduct). Accord-
ingly, we find that Defendants’ counsel’s allegedly im-
proper comments at trial do not present grounds
for reversal.
Next, Plaintiffs argue that the following comments
made by Defendants’ counsel were improper and consti-
tuted reversible error.
“They [opposing counsel] didn’t even ask these officers:
Did you or did you not do this? Why? They don’t
believe it themselves.”
“Hit me, yell at me, do anything, but ultimately this is
the time I finally get to speak as a complete and total
advocate to say that they did not do this, that they
are absolutely innocent.”
No. 10-3679 21
“Are they perfect? No, but that’s not the standard. They
are not guilty.”
Relying on Spicer v. Rossetti, 150 F.3d 642 (7th Cir.
1998), Plaintiffs contend that these comments made
by Defendants’ counsel warrant a new trial. In Spicer,
the defense counsel made repeated comments during
closing argument that plaintiff’s counsel did not believe
the plaintiff. Id. at 643. When plaintiff’s counsel objected
to these comments, the district court overruled his objec-
tions stating that the comments were proper argument.
Id. at 644. This court subsequently ruled that the district
court erred in overruling plaintiff’s objections and
found that a new trial was warranted because counsel
may not express his beliefs regarding opposing counsel’s
opinions of honesty. Id. However, this case is distinguish-
able from Spicer.
Unlike in Spicer, here, the district court immediately
sustained Plaintiffs’ objection during Defendants’ closing
argument. In addition, Defendants’ counsel only made
one brief comment regarding opposing counsel’s belief
in his client, instead of repeated comments as occurred
in Spicer. In addition, we find that the other comments
identified by Plaintiffs as being improper did not prejudice
the Plaintiffs’ case because the district court gave a curative
instruction and informed the jury of the proper burden
of proof. See Valbert v. Pass, 866 F.2d 237, 241 (7th Cir.
1989) (“[A]n instruction to the jury stating that the argu-
ments of counsel are not evidence can mitigate the
harm potentially caused by improper statements made
by counsel during closing argument.”). As we have repeat-
22 No. 10-3679
edly recognized, “improper comments during closing
arguments rarely rise to the level of reversible error,”
id. (citations omitted), and we conclude that Defendants’
counsel’s comments do not rise to such a level to warrant
a reversal. Accordingly, we find that the district court
did not abuse its discretion in denying Plaintiffs’ Rule 59(a)
motion as it relates to Defendants’ counsel’s comments
during trial and closing arguments.
D. Cumulative Effect
Lastly, Plaintiffs argue that the cumulative effect
of Defendants’ alleged violations of the district court’s
evidentiary rulings along with their conduct at trial de-
prived them of a fair trial, and thus the district court
abused its discretion when it denied their motion for a
new trial. To prevail on their cumulative effect argument,
Plaintiffs must show: “(1) that multiple errors occurred
at trial; and (2) those errors, in the context of the entire
trial, were so severe as to have rendered [their] trial funda-
mentally unfair.” United States v. Powell, 652 F.3d 702,
706 (7th Cir. 2011) (citing Alvarez v. Boyd, 225 F.3d 820,
824 (7th Cir. 2000)). “In conducting this analysis,
we examin[e] . . . the entire record, paying particular
attention to the nature and number of alleged
errors committed; their interrelationship, if any, and
their combined effect; how the trial court dealt with
the errors, including the efficacy of any remedial measures;
and the strength of the prosecution’s case.” Id.Having reviewed the record and analyzed the Defen-
dants’ counsel’s conduct with respect to its cumulative
No. 10-3679 23
effect upon the jurors, we find that the conduct did
not deprive the Plaintiffs of a fair trial, for the reasons
we have given above. When improper references were
made by Defendants’ witnesses or counsel during
the course of the trial, the district judge immediately
sustained Plaintiffs’ objections and offered curative instruc-
tions to the jury. Accordingly, we cannot conclude that
the Defendants’ conduct had a substantial influence
over the jury that would require a new trial. See Humphrey,
34 F.3d at 557; see also United States v. Allen, 269 F.3d
842, 847 (7th Cir. 2001) (“If there are no errors or a single
error, there can be no cumulative error.”). We
therefore conclude the district court did not abuse its
discretion in denying Plaintiffs’ motion for a new trial.
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
denial of Plaintiffs’ motion for a mistrial as well as the
denial of Plaintiffs’ motion for a new trial.
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