Jackie Wilson v. James K. Williams

182 F.3d 562, 1999 U.S. App. LEXIS 19686

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 17, 1999
• Docket: 97-2637
• Status: Published

Opinions

EASTERBROOK, Circuit Judge.

We heard this case en banc to decide whether an objection at trial always is necessary after a pretrial ruling that evidence will be admitted. We conclude that a definitive ruling in limine preserves an issue for appellate review, without the need for later objection — but this is just a presumption, subject to variation by the trial judge, who may indicate that further consideration is in order. Moreover, issues about how the evidence is used, as opposed to yes-or-no questions about admissibility, frequently require attention at trial, so that failure to object means forfeiture. This latter principle determines the outcome of today’s case.

Jackie Wilson alleges in this suit under 42 U.S.C. § 1983 that James Williams, a guard at the Cook County Jail, attacked him without provocation and inflicted serious injuries. Williams contends that Wilson was the aggressor and that the force used in defense was reasonable under the circumstances. The district court granted summary judgment to Williams, but we reversed and held that the conflicting stories must be presented to a jury. 997 F.2d 348 (1993). After a trial ended in a verdict for Williams, we reversed because of errors in the jury instructions. 83 F.3d 870 (1996). The second jury likewise sided with Williams, and this time the panel affirmed. 161 F.3d 1078 (1998).

Two police officers stopped the car in which Jackie and his brother Andrew were riding. Andrew grabbed one officer’s service revolver and shot both with it, killing them; Jackie, who stole the second officer’s gun, is culpable as an accomplice under the felony-murder doctrine because the deaths occurred during the commission of another felony (not only the thefts of the guns but also a plan to use the guns in helping a friend break out of prison). Andrew was convicted of both murders, People v. Andrew Wilson, 254 Ill.App.3d 1020, 193 Ill.Dec. 731, 626 N.E.2d 1282 (1st Dist.1993), and Jackie of one, People v. Jackie Wilson, 257 Ill.App.3d 670, 195 Ill.Dec. 8, 628 N.E.2d 472 (1st Dist.1993). Both Wilsons are serving terms of life imprisonment without possibility of parole, and both filed § 1983 suits contending that they were beaten (in separate incidents) while in custody before their convictions. Andrew recovered a substantial judgment, Wilson v. Chicago, 120 F.3d 681 (7th Cir.1997), though he had trouble receiving a fair trial because the defendants harped on the nature of the crime he had committed. See Wilson v. Chicago, 6 F.3d 1233 (7th Cir.1993) (reversing an initial jury verdict in defendants’ favor because the district judge failed to control inappropriate use of Andrew’s criminal history).

Before the second trial of his civil suit began, Jackie Wilson asked the district judge to prevent Williams from informing the jury that he had been convicted of killing a police officer. Wilson recognized that his criminal history could be used to impeach him. Although the convictions could not be used automatically under Fed. R.Evid. 609(a)(1), he remained subject to impeachment if application of Fed.R.Evid. 403 made it appropriate. Cf. Fed.R.Evid. 609(a)(2); Green v. Bock Laundry Machine Co., 490 U.S. 504, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989). Wilson’s crimes called into question his willingness to be an honest witness. His life sentence meant that the threat of a perjury prosecution could not deter him from lying, and his lack of assets meant that malicious-prosecution or abuse-of-process litigation likewise held no terror for him. But Wilson sought to keep the identity of his crime from the jury’s knowledge, lest the “cop killer” label inflame the jury against him. Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), shows that Wilson’s was a reasonable request. Nonetheless, the judge denied the motion in li-mine, and when the trial began Wilson tried to make the best of his situation. His lawyer told the jury during his opening statement why Wilson was in custody and tried to use this to Wilson’s advantage by arguing that Williams attacked Wilson because of the nature of Wilson’s crime. Although Wilson’s lawyer used the nature of the crime circumspectly, Williams’s counsel had no reservations about the subject and invited the jury to rule against Wilson on emotional grounds. Practically the first words of counsel’s opening statement were:

I’d like to reintroduce the litigant, Jackie Wilson, cop killer, murdered a Chicago police officer who was on duty, Officer O’Brien. He also robbed Officer O’Brien. He was convicted of that. He also robbed Officer O’Brien’s partner, Officer Fahey. He was also convicted of that. And, yes, that is the crime he was waiting trial on back in 1988 in the Cook County Jail.

Throughout the trial, Williams’s lawyer did not miss an opportunity to remind the jury that Wilson had committed a despicable offense, and therefore must be a despicable person who should not collect a dime. Defense counsel was not satisfied with a suggestion that the jury should consider the conviction in connection with Wilson’s credibility as a witness. The nature of the crime colored the trial. “Cop killer” was the refrain; defense counsel was inflammatory throughout; neutral language such as “criminally accountable because he participated in a robbery during which his brother Andrew shot two men” did not pass counsel’s lips.

Wilson did not object to defendant’s telling the jury that he had been convicted of killing a police officer; by the time defense counsel stood up Wilson was hardly in a position to object, having provided that information himself. But he did argue on appeal that the judge should have granted the motion in limine and put the subject off limits to both sides. The majority of the panel concluded that failure to object at trial forfeited any opportunity to raise the issue on appeal; that the anticipatory use of the information affirmatively waived any entitlement to its exclusion; and that any error was harmless. The dissenting judge concluded that objection at trial was unnecessary, given the ruling in limine, and that the error was prejudicial. Although this may seem impossible, the court en banc concludes that both the majority and the dissent were fundamentally correct, and we affirm for a combination of the reasons given by both the majority and the dissent.

First in sequence is the question whether an objection at trial was necessary, given the district court’s pretrial ruling that Williams would be allowed to inform the jury that Wilson had been convicted, not simply of murder, but of killing a police officer. As the panel recognized, this court’s precedents are in conflict. On the one hand, United States v. York, 933 F.2d 1343, 1360 (7th Cir.1991), holds that an objection at trial is necessary no matter how definitive the pretrial ruling may be. On the other hand, United States v. Madoch, 149 F.3d 596, 600 (7th Cir.1998), holds that although conditional rulings require further action at trial, definitive ones do not. Most cases in this circuit reach a conclusion similar to that of Madoch. E.g., Favala v. Cumberland Engineering Co., 17 F.3d 987, 991 (7th Cir.1994); Stutzman v. CRST, Inc., 997 F.2d 291, 298 (7th Cir.1993); Allison v. Ticor Title Insurance Co., 979 F.2d 1187, 1200 (7th Cir.1992); Cook v. Hoppin, 783 F.2d 684, 691 n. 2 (7th Cir.1986). An amendment to Fed. R.Evid. 103 that would resolve this disagreement, and provide that objection at trial is not necessary if the pretrial ruling is definitive, is wending its way through the long process under the Rules Enabling Act. See 181 F.R.D. 133 (1998). As it stands, however, Rule 103 is silent on the subject; we must formulate our own approach rather than appeal to authority or decide whether the pending amendment is the best solution.

One good example of a conditional ruling is a judge’s statement that, if a litigant testifies, then the adverse party will be entitled to cross-examine in such- and-such a way. Until the condition has been satisfied by the testimony, the ruling has no effect. It is impossible to determine on appeal whether the ruling made a difference unless the witness does testify and the unfavorable evidence is admitted; what is more, there is a risk that the witness did not plan to testify even if the ruling had been favorable, but sought only to create an issue for appeal. In circumstances like this, the litigant must satisfy the condition in order to present the claim on appeal. Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Similarly, if the judge’s pretrial ruling is tentative — if, for example, the judge says that certain evidence will be admitted unless it would be unduly prejudicial given the way the trial develops — then later events may lead to reconsideration, and the litigant adversely affected by the ruling must raise the subject later so that the judge may decide whether intervening events affect the ruling. An appeal in such a case without an objection at trial would bushwhack both the judge and the opponent. Objections alert the judge at critical junctures so that errors may be averted. When a judge has made a conditional, contingent, or tentative ruling, it remains possible to avert error by revisiting the subject.

Definitive rulings, however, do not invite reconsideration. When the judge makes a decision that does not depend on how the trial proceeds, then an objection will not serve the function of ensuring focused consideration at the time when decision is best made. A judge who rules definitively before trial sends the message that the right time has come and gone. An objection is unnecessary to prevent error, and it may do little other than slow down the trial. Sometimes an objection or offer of proof will alert the jury to the very thing that should be concealed. Suppose the judge had ruled that the identity of Wilson’s victim was not to be brought out at trial. Would Williams have been required to do so anyway, letting the cat out of the bag, in order to preserve the claim of error for appeal? Motions in limine are designed to avoid the delay and occasional prejudice caused by objections and offers of proof at trial; they are more useful if they can serve these purposes, which they do only if objections (and offers of proof) can be foregone safely.

Treating a definitive ruling as sufficient to preserve the litigant’s position for appeal also avoids laying a trap for unwary counselors. Many lawyers suppose that it is enough to raise an issue once and receive a definitive ruling. They may believe that raising the question again may annoy the judge. Rules of procedure should be as tolerant as is practical of lawyers’ suppositions and omissions. When the function of an objection has been served via a motion and ruling before trial, requiring repetition at trial does little to advance the goals of vindicating rights and avoiding errors, but may create an opportunity for rights to be lost by inadvertence. Instead of laying snares, we adopt an approach that tolerates human failings. Lawyers can concentrate their mental energies on subjects that are more pressing or have yet to be dealt with, without the need to harp on issues that have been resolved.

Conclusive pretrial rulings on evidence serve another useful end: they permit the parties to adjust their trial strategy in light of the court’s decisions. Wilson wanted to keep the occupation of his victim out of the case, but if this could not be accomplished he wanted to introduce the evidence himself, if only to draw its sting. Sensible adaptations could not be accomplished if Wilson had to wait until Williams offered the evidence, and then raise an objection, acting in the jury’s eyes as if he had something to hide. Waiting, objecting, and only then trying to make something of the subject not only would divest Wilson of the initiative but also would deprive him of an alternative theory of the case.

Trial-time adaptations are benefits of pretrial rulings on evidence, so it follows that adaptations do not waive positions already staked out. Wilson did not surrender his objection by making the best he could of his situation after the judge’s adverse ruling. See Judd v. Rodman, 105 F.3d 1339 (11th Cir.1997). Although some courts have held that a litigant who loses an evidentiary ruling and then offers the evidence himself has waived any opportunity to complain about the decision in limine, see United States v. Williams, 939 F.2d 721, 723 (9th Cir.1991); Gill v. Thomas, 83 F.3d 537, 540 (1st Cir.1996), this approach gives up one of the principal benefits of the pretrial-ruling procedure, and we therefore do not follow it. Our conclusion that preemptive use of evidence does not waive an established objection is compatible with United States v. DePriest, 6 F.3d 1201, 1209 (7th Cir.1993), which held that a defendant gives up his objection by making use of the evidence before the district judge renders a definitive ruling. Until a conditional or tentative decision has been made definitive, it is subject to reconsideration, and the party must preserve his position at trial. But once the ruling is definitive, the function of the objection requirement has been served, and both parties are entitled to formulate trial strategies that make the best use of the evidence that the judge has decided to admit or exclude. We overrule York to the extent it holds that an objection at trial is invariably required to preserve for appeal arguments that were fully presented to the district court before trial.

A vital qualification is implicit in this way of putting the conclusion. Only arguments that were actually presented to the district court before trial are preserved for appeal — and then only if the district judge came to a definitive conclusion. A judge who expresses a tentative or conditional ruling can by that step require the parties to raise the issue again at trial. District judges thus are fully in charge of the process; they can require or excuse further exchanges on a subject by the way they express their rulings. A judge would do well to explain in the decision proper (or in the final pretrial conference) whether the conclusion is definitive, and whether consideration at trial is required, appropriate, or forbidden; the majority of the panel sensibly pointed out advantages to such a procedure; but if the judge does not elaborate, then we assume that an apparently unconditional ruling is conclusive.

Even if the ruling is unconditional, however, it resolves only the arguments actually presented. That much is clear from Fed.R.Evid. 103(a)(1), which requires a litigant to state a specific ground for an objection to evidence; grounds not presented cannot be raised later, else both judge and adversary are sandbagged (and preventable errors occur). There’s a corollary to this point: a pretrial objection to and ruling on a particular use of evidence does not preserve an objection to a different and inappropriate use. Thus if the judge decides before trial that particular evidence can be used for impeachment, then there is no need to object at trial to this use; but a completely different use of the evidence is not covered by the ruling, and therefore fresh attention at trial (prompted by an objection) is essential if the error-prevention function of the contemporaneous-objection rule is to be achieved.

This is where Wilson’s appeal founders. The district judge, asked before trial to forbid all reference to th'e occupation of the murder victims, said no. This meant at a minimum that Wilson could be cross-examined about the conviction when he testified on his own behalf. It also implied that Williams could present the testimony of another guard, Officer Cavallone, that Wilson stated during a trip to the infirmary after the altercation: “[Y]ou should have killed me when you had the chance. I already killed two Chicago police officers. My attorney is going to have a field day with this. I have no respect for the law. And the next thing we are going to do is take care of the blue shirts [guards] inside the jail.” Williams offered this statement to corroborate his view that Wilson had a hostile and aggressive attitude, and either initiated the altercation or planned to invent a story for his attorney to have a “field day” with. Wilson denies saying any such thing to Cavallone, and he wanted the line “I already killed two Chicago police officers” redacted. The judge did not require this step. But beyond permitting Cavallone to testify to the full version of the statement, and permitting the use of the conviction to call Wilson’s credibility as a witness into question, the ruling in limine did not sanction any particular use of evidence. In particular, the judge did not give Williams’s counsel permission to introduce Wilson as a “cop killer,” to describe the details of the crime, to seek sympathy for Wilson’s victims, or to imply that people who commit heinous offenses are fair game in prison — all of which Williams’s lawyer did, and without objection. The pretrial ruling did not say or imply that such uses (or misuses) of the evidence would be allowed. We reversed the verdict for defendants in the first trial of Andrew Wilson’s § 1983 action precisely because defense counsel harped on the details of the murders and sought an emotional rather than reasoned evaluation of the facts. The defense strategy in Jackie Wilson’s second trial was similar to that in Andrew Wilson’s first — but the big difference is that Andrew Wilson’s lawyers objected, and Jackie Wilson’s did not. Misuse of evidence that has a proper use cannot be argued on appeal without a specific objection. See Fed.R.Evid. 103(a)(1).

A pretrial ruling is definitive only with respect to subjects it covers. Details of usage were not raised or resolved before trial. If the only problem were that Williams’s counsel once said “cop killer” rather than a more neutral formulation, or repeated the statement when using the conviction for impeachment, we would be reluctant to say that objection has been forfeited. Misuse of evidence is a matter of degree, and litigants receive the benefit of the doubt in grey areas. But defense counsel strummed on “cop killer” as if it were á guitar rather than a bit of evidence; whatever line there was between proper and improper use was overstepped; objection never came, so forfeiture occurred and the plain-error standard governs. Fed. R.Evid. 103(d).

Plain error means an error that not only is clear in retrospect but also causes a miscarriage of justice. United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Wilson has not persuaded us that justice miscarried in his trial because' of the way Williams used Wilson’s crime. Blatant efforts to manipulate jurors’ emotions and persuade them to ignore the facts and instructions often backfire. Wilson may have withheld objection in the hope that jurors would deem that Williams had overplayed his hand. Moreover, Wilson might have thought that Williams’s efforts to hammer away on the cop-killer theme showed animus, and thus made Wilson’s accusation against Williams more credible. Wilson had a weak case on damages, and success on liability depended on the resolution of a credibility contest. How the balance of advantage from the overuse of the cop-killer theme plays out in such a trial is difficult to say. The effects are not so inevitably baleful to the truth-finding function of trial that the problem must be deemed “plain error.”

At last, in what must appear to be an afterthought, we tackle the issue that has been preserved: whether the district judge should have ruled before trial that the nature of Wilson’s crime is inadmissible. As the Supreme Court observed in Old Chief, the precise identity of a crime often creates a potential for prejudice that overwhelms its constructive value. Any legitimate use of the conviction by the defense would have been served by informing the jury that Wilson has been convicted of murder and sentenced to life imprisonment. The judge thus abused his discretion in denying the motion outright. But at oral argument before the court en banc, Wilson’s lawyer disclaimed any contention that the district judge should have barred Cavallone from testifying that Wilson said “I already killed two Chicago police officers.” With this statement in evidence, the district judge’s error with respect to the Old Chief issue is harmless. Williams’s harping on the subject, and his implication that “cop killers” are not entitled to damages when guards behave as vigilantes, could not be thought harmless, but the lack of objection means that the misuse of the evidence has not been preserved for appellate review. As a result, the judgment is

Affirmed.