Gill v. Thomas

• Court: Court of Appeals for the First Circuit
• Decided: May 15, 1996
• Docket: 95-2303
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals

                                For the First Circuit
                                For the First Circuit

                                 ____________________



        No. 95-2303



                                    MICHAEL GILL,



                                Plaintiff, Appellant,



                                          v.



                              SCOT THOMAS, ETC., ET AL.,



                                Defendants, Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. David M. Cohen, U.S. Magistrate Judge]
                                           _____________________



                                 ____________________



                                        Before



                                Selya, Stahl and Lynch,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            Cynthia A. Dill for appellant.
            _______________

            Edward R.  Benjamin  with whom  Anne  Skopp  and Preti,  Flaherty,
            ___________________             ___________      _________________

        Beliveau & Pachios were on brief for appellees.
        __________________


____________________



                                     May 15, 1996

                                 ____________________



STAHL, Circuit Judge.   Plaintiff-appellant Michael
                      STAHL, Circuit Judge.
                             _____________



            Gill sought redress under 42 U.S.C.   1983 in Maine's federal



            district  court  for  a   police  officer's  alleged  use  of



            excessive force in arresting  him following a routine traffic



            stop.   After a two-day trial before a magistrate judge,1 the



            jury returned a verdict for the police officer.  Gill appeals



            the  magistrate judge's  denial of  his in  limine  motion to
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            preclude  evidence  of  his  prior  misdemeanor  convictions.



            Because we find that Gill  waived his right to appeal the  in
                                                                       __



            limine ruling, we affirm.  
            ______



                                          I.
                                          I.
                                          __



                                      Background
                                      Background
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            A.  The Incident
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                      On the night of November 27, 1993, Officer Scot



            Thomas of the South Berwick, Maine, Police Department stopped



            Michael Gill for driving with defective taillights.  After



            obtaining Gill's driver's license and registration, Officer



            Thomas contacted the police dispatcher from his cruiser and



            learned that Gill's privilege to operate a motor vehicle in



            Maine had been suspended.  Back at Gill's truck, Officer



            Thomas notified Gill of the suspension and the resulting need



            to arrest him.  


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            1.  Under  Fed. R. Civ. P.  73, the parties  consented to the

            magistrate judge, rather than the district judge,  conducting

            the jury trial.



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Gill and Officer Thomas both agree that the



            following sequence of events occurred thereafter:  (1) Gill



            claimed that the suspension was a mistake, (2) Gill initially



            refused Thomas's request to place his hands on the cruiser,



            (3) Thomas's police dog bit Gill's arm, (4) Gill threatened



            to sue Thomas, and (5) Thomas sprayed Gill's face with mace. 



            Predictably, however, Gill's and Thomas's stories diverge on



            the question of their respective roles in the foregoing



            events.  While Gill maintains that he offered no physical



            resistance to Thomas and therefore the dog's attack and the



            mace were an excessive use of force, Officer Thomas contends



            that Gill physically resisted his attempts to effect the



            arrest and therefore the amount of force was justified.



            B.  The In Limine Motion and Ruling
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                      Cognizant that his credibility would be the



            decisive factor at the impending jury trial, Gill filed a



            motion in limine seeking to preclude Thomas from inquiring
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            about five of Gill's seven misdemeanor convictions.2  In



            particular, Gill sought to exclude evidence of his two



            convictions for simple assault as well as his convictions for



            resisting arrest, criminal mischief, and willful concealment. 



            Gill argued that because none of the five misdemeanors



            involved dishonesty or false statement or was punishable "by



                                
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            2.  Gill  conceded that  his prior  convictions for  filing a

            false  report and  theft by  deception were  admissible under

            Fed. R. Evid. 609(a)(2).



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death or imprisonment in excess of one year," they could not



            be admitted under Rule 609 of the Federal Rules of Evidence. 



            Thomas responded that while four3 of the five misdemeanors



            were outside the parameters of Rule 609, each was nonetheless



            admissible to impeach Gill's answer to interrogatory #7.



                      Interrogatory #7 asked:



                      If you have been convicted of a crime

                      involving potential punishment of one
                                                        ___

                      year or more or involving dishonesty or
                      ____________

                      moral turpitude, please set forth the

                      nature of the crime, the date of each

                      conviction, the name of each court where

                      the conviction took place, and a full

                      description of any and all sentences

                      imposed.



            (Emphasis added).  Gill replied "No."  Thomas argued that



            Gill's failure to list the five misdemeanors (each of which



            involved terms of imprisonment of "up to one year") as well



            as the convictions for filing a false report and theft by



            deception (both of which patently involved dishonesty)



            constituted a false statement under oath, and Thomas should



            be permitted to impeach Gill with this falsity at trial.



                      After a hearing, the magistrate judge denied the in
                                                                       __



            limine motion and stated that he would permit Thomas to
            ______



            question Gill about his convictions for the limited purpose



            of illustrating the inconsistency between Gill's



                                
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            3.  Thomas   argued  that   Gill's  conviction   for  willful

            concealment  may have involved  dishonesty or false statement

            and requested  that the magistrate judge  question Gill about

            the facts surrounding his commission of this offense in order

            to facilitate that determination.



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interrogatory answer and "the apparent fact that he has been



            convicted for a number of crimes which would have required



            him to answer that interrogatory differently."  The



            magistrate judge also indicated that he would give a limiting



            instruction to the jury if and when such testimony was



            elicited.      



            C.  Presentation of the Misdemeanor Evidence at Trial
            _____________________________________________________



                      After opening arguments, Gill took the stand as his



            own first witness.  In response to his attorney's questions,



            Gill described the events surrounding his arrest and then



            proceeded to enumerate each of his criminal convictions and



            describe the circumstances surrounding them (to the extent he



            could remember).  For instance, after testifying that he had



            been convicted of simple assault on June 10, 1985, Gill



            recalled the circumstances of that crime by stating, "I think



            that was involved again with the DWI."  Gill was alluding to



            his previous testimony about a driving-while-intoxicated



            incident following which he was convicted for resisting



            arrest.



                      Gill then addressed his answer to interrogatory #7. 



            Admitting that his answer was inaccurate, Gill explained that



            he had mistakenly read the interrogatory to be asking about



            felonies and believed that his convictions for filing a false



            report and theft by deception did not involve dishonesty. 



            Finally, Gill squarely addressed his credibility in light of


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his checkered criminal past and erroneous answer to



            interrogatory #7, testifying as follows:



                      Q:  Mr. Gill, in light of this long

                      criminal history that we've just gone

                      through, including some crimes which

                      involved some kind of dishonesty, how do

                      you expect the jury to believe the story

                      you've just told us about what happened

                      with Officer Thomas?



                      A:  . . . I quit drinking in 1989 with

                      the help of a friend and have been trying

                      since then to turn my life around. . . .

                      Things that I can change about myself and

                      I have been changing, and I have since

                      1989 is I'm not a liar, and I'm not a

                      thief.

                       

                      On cross-examination, Officer Thomas also



            questioned Gill about his answer to interrogatory #7.  For



            each of Gill's convictions, Thomas asked whether Gill had



            listed that particular conviction in his answer to



            interrogatory #7, to which Gill repeatedly answered that he



            had not.  In the course of inquiring about Gill's January



            1983 conviction for resisting arrest and his June 10, 1985,



            conviction for assault, Thomas highlighted what had already



            been brought out on direct, i.e., that both convictions
                                        ____



            involved a police officer who was trying to place Gill in



            custody.



                      Having offered the evidence of his criminal record



            himself, Gill neither requested a jury instruction limiting



            the purpose for which this evidence could be used nor



            objected to Thomas's questions regarding these convictions on


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cross-examination.  The jury subsequently returned a verdict



            for Officer Thomas, and this appeal ensued.



                                         II.
                                         II.
                                         ___



                                       Analysis
                                       Analysis
                                       ________



                      Gill appeals the magistrate judge's denial of his



            in limine motion, arguing that the five misdemeanor
            __ ______



            convictions were inadmissible under Rule 609 of the Federal



            Rules of Evidence.  Gill maintains that but for the



            magistrate judge having indicated that he would permit Thomas



            to raise them on cross-examination, Gill never would have



            revealed his misdemeanor convictions on direct examination. 



            Our case law instructs us, however, that Gill chose to



            introduce his convictions on direct examination at his peril



            and cannot be heard to complain on appeal of the admission of



            such evidence.



                      In Fusco v. General Motors Corp., 11 F.3d 259, 262
                         _____    ____________________



            (1st Cir. 1993), we held that when a party's in limine motion
                                                         __ ______



            to exclude evidence is denied, she cannot rely on her



            objection to the in limine ruling to preserve the right to
                             __ ______



            appeal the admission of the contested evidence.  She must



            renew her objection at trial "when the evidence is actually



            offered."4  Id.; see also Adams v. Fuqua Indus., Inc., 820
                        ___  ___ ____ _____    __________________



                                
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            4.  Fusco also held, however, that where the in limine motion
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            to  exclude is granted and  the proponent of  the evidence is

            unconditionally  precluded from  presenting  the evidence  at

            trial, the proponent  has preserved the issue for  appeal and

            need not  renew the offer at trial.  11  F.3d at 262-63.  See
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F.2d 271, 274 (8th Cir. 1987) ("[M]otion in limine does not
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            preserve error [in subsequent admission of evidence] for



            appellate review."); Petty v. Ideco, Div. of Dresser Indus.,
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            Inc., 761 F.2d 1146, 1150 (5th Cir. 1985) ("[A] party whose
            ____



            motion in limine is overruled must renew his objection when
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            the error he sought to prevent is about to occur at trial.").



                      We require this renewal in order to give the



            district court an opportunity to "reconsider the ruling with



            the concrete evidence presented in the actual context of the



            trial."  Fusco, 11 F.3d at 262; see also United States v.
                     _____                  ___ ____ _____________



            Griffin, 818 F.2d 97, 105 (1st Cir.) (holding that "to raise
            _______



            and preserve for review the claim of [evidentiary error], a



            party must obtain the order admitting or excluding the



            controversial evidence in the actual setting of the trial"),



            cert. denied, 484 U.S. 844 (1987).  Without such a
            _____ ______



            requirement, the reviewing court would be forced to speculate



            whether the party who proposed to offer the evidence would



            have done so at trial and whether, if she had offered the



            evidence, the district court would have changed its in limine
                                                                __ ______



            ruling "in the give-and-take of live testimony."  United
                                                              ______



            States v. Nivica, 887 F.2d 1110, 1115-16 (1st Cir. 1989),
            ______    ______


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            also United States v.  Holmquist, 36 F.3d 154, 166  n.12 (1st
            ____ _____________     _________

            Cir. 1994)  (discussing situations in which  the proponent of

            evidence  excluded  by a  pretrial in  limine ruling  will be
                                               __  ______

            deemed  to  have  preserved  the  issue  for  appeal  without

            proffering  the excluded  evidence  during the  trial), cert.
                                                                    _____

            denied, 115 S. Ct. 1797 (1995).
            ______



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cert. denied, 494 U.S. 1005 (1990).  Thus, Gill cannot rely
            _____ ______



            solely on his in limine objection to preserve the evidentiary
                          __ ______



            issue for appeal.   



                      At trial, rather than waiting for Thomas to



            introduce the misdemeanors, objecting, and allowing the



            magistrate judge to reconsider his in limine ruling, Gill
                                               __ ______



            opted to introduce the misdemeanors preemptively to "remove



            the sting" from Thomas's anticipated impeachment.  While this



            may have been a wise tactical decision, as a consequence,



            Gill "opened the door" to Thomas's cross-examination on the



            misdemeanors and thereby eliminated any potential evidentiary



            error.  Moreover, having offered the misdemeanors himself and



            having received the strategic benefit therefrom, Gill cannot



            now be heard to complain that his own offer of such evidence



            was reversible error.  See United States v. Williams, 939
                                   ___ _____________    ________



            F.2d 721, 723-25 (9th Cir. 1991) (holding that by introducing



            evidence of conviction himself defendant waived right to



            appeal in limine ruling that evidence of prior conviction was
                   __ ______



            admissible for impeachment); United States v. Bryan, 534 F.2d
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            205, 206 (9th Cir. 1976) (refusing to allow defendant to



            complain about the admission of evidence about a prior



            conviction when defendant introduced the offending fact in



            the first instance); Shorter v. United States, 412 F.2d 428,
                                 _______    _____________



            431 (9th Cir.) (same), cert. denied, 396 U.S. 970 (1969).
                                   _____ ______


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To preserve his in limine objection to the
                                      __ ______



            admissibility of the misdemeanor convictions for this appeal,



            Gill should have refrained from offering the evidence



            himself, waited to see if Thomas introduced them on cross-



            examination, and if so, objected then.  In sum, Gill's own



            action of offering the misdemeanor evidence himself rendered



            it admissible.  Or stated differently, by offering the



            misdemeanor evidence himself, Gill waived his opportunity to



            object and thus did not preserve the issue for appeal. 



                      Affirmed.
                      Affirmed
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