Stockwell v. Sweeney

Opinion

USCA1 Opinion

February 9, 1996        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 95-1438



                               KAREN STOCKWELL, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                               MICHAEL SWEENEY, ET AL.,



                                Defendants, Appellees.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                     [Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________



                                 ____________________


Before



                                 Selya, Circuit Judge,
                                        _____________



                            Aldrich, Senior Circuit Judge,
                                     ____________________



                               and Cyr, Circuit Judge.
                                        _____________



                                 ____________________


Neil P. Philbin with whom Kirshenbaum  & Kirshenbaum was on  brief
            _______________           __________________________

        for appellants.

            Joseph F.  Penza,  Jr. with  whom  Olenn  &  Penza, and  Kevin  F.
            ______________________             _______________       _________

        McHugh, Assistant City Solicitor, were on brief for appellees.
        ______



                                 ____________________


____________________



ALDRICH,   Senior   Circuit   Judge.      Plaintiff
                                 ________________________



            appellants  are the widow and administratrix of the estate of



            George  Stockwell  (Stockwell)   and  the  Stockwells'  minor



            daughter.   Defendants  are Michael Sweeney  and the  City of



            Providence, Rhode Island.   On May 6, 1993, while acting as a



            traffic  officer  of  the   City,  Sweeney  shot  and  killed



            Stockwell,  a driver of an  automobile.  Plaintiffs sue under



            42 U.S.C.    1983 and  Rhode Island's wrongful  death statute



            (concededly  raising  the  same  issue),  alleging  that  the



            officer's   use  of   deadly   force  was   an  unreasonable,



            unjustified violation of Stockwell's Fourth Amendment rights.



            Plaintiffs'  appeal, following  a  jury verdict  in favor  of



            defendants,  advances  three  principal   claims:    (1)  the



            evidence  warranted judgment  as  a matter  of  law in  their



            favor, (2) the  court's instructions  regarding deadly  force



            were  too   favorable  to  defendants,  and   (3)  the  court



            erroneously admitted testimony concerning Stockwell's alleged



            belligerent  behavior  shortly before  the  encounter.   They



            further  appeal  denial of  post  trial motions  on  the same



            grounds.  We affirm.



                                   Directed Finding
                                   ________________



                      Plaintiffs introduced eight eyewitnesses, no two of



            whom  fully agreed  with  each other.    All, in  one way  or



            another,  disagreed  with  Sweeney, although  some  partially



            supported him.   Plaintiffs' conclusion that  their testimony


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was  "unequivocal, uncontradicted  and unimpeached"  and that



            the  finding in favor of defendants was so "nonsensical" that



            it should have been directed for plaintiffs could be answered



            in  one sentence:  We  fully agree with  the district court's



            statement that the evidence  presented a "classic question of



            fact."  It is a  rare case where a verdict can  be ordered in



            favor of the party  having the burden  of proof, and this  is



            far from such.   However, as the evidence bears also upon the



            question whether  plaintiffs' case  was prejudiced by  a less



            than perfect charge, we will recount it to some extent.



                      First,  it was  tacitly or expressly  accepted that



            Sabin Street,  Providence, runs, one  way, east to  west, and



            intersects with  Mathewson; that Sweeney, in  uniform, was on



            duty  at this intersection to direct cars bound west on Sabin



            Street to  turn left onto  Mathewson because of  a children's



            affair ahead on  Sabin, and that Stockwell wished to continue



            on.  At some point the officer  drew his service revolver and



            shot Stockwell in the groin, the bullet "moving from right to



            left,  and  from  front to  back."    (Surgeon).   Stockwell,



            hospitalized, died in a few hours.



                      Concededly this  is an unusual case.   According to



            Officer Sweeney, Stockwell, who was  approaching fast, slowed



            down  at his signal, ultimately  to a pace,  but continued on



            into  the officer,  pushing  him backward  a couple  of feet.



            Sweeney  yelled  repeatedly   for  Stockwell  to   stop,  but


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Stockwell,  shouting, "Get out of my  way or I'll f'n run you



            over," hit him again, this time causing his torso to collapse



            over the hood and his right leg to rise into the air.  Within



            seconds Sweeney, in  fear, reached  for his gun  and fired  a



            single shot at Stockwell, aiming  through the windshield.  At



            this time the car began turning to the left, in effect moving



            Sweeney  to the  right.   (Cf. Carlson,  post.)   Although he
                                       ___           ____



            insisted  that he  aimed through  the windshield,  the bullet



            came through the open window on the passenger  side.  On this



            discrepancy, though physically understandable on the basis of



            the  car's movement,  plaintiffs hang  their as-matter-of-law



            claim.



                      First, plaintiffs' witnesses, briefly.   (Stockwell



            will  be referred  to  as  the  "car,"  and  Sweeney  as  the



            "officer.")



                      Joanna Johnson (school bus passenger)
                      ______________



                      Officer  stepped away  from  in front  of the  car,



            pushing  his hand  against  the  right  front  fender.    Car



            proceeded  and, after it had passed officer by "a few steps,"



            stopped, at which point officer  drew his gun and "ran up  to



            the passenger side of the car  . . . [and] put his gun in the



            window  . . . and  I  heard a  noise which  I  assumed was  a



            gunshot."



                      Susan Winsor (bus passenger)
                      ____________


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First saw officer chasing  car, trying to grab onto



            it  and yelling  "Stop!"  "The  car had turned  onto the side



            street, and the officer was on the passenger side.  He got up



            to about midway, maybe  like at the cross pieces  between the



            two windows.  And he looked like he was trying to  hold on at



            one point with both hands.  And then he slipped away from the



            car and that's when I heard a shot."



                      Kenneth  Carlson  (driver  of  car  directly behind
                      ________________



            Stockwell)



                      Saw  officer  gesture to  car  to  detour but  "car



            accelerated really  quickly, threw the policeman  up onto the



            hood."   Car turned to  the left, throwing  officer around to



            the passenger  side of  the  car, when  Carlson saw  officer,



            previously  empty-handed, holding  a  gun.   On  contemporary



            statement  to police Carlson had stated  that officer had run



            six feet along the side of the car before pulling his gun and



            firing into the car; and by deposition  that he ran after the



            car two or three feet.



                      Melissa Iannotti (automobile driver)
                      ________________



                      Stated on  direct examination she saw  officer make



            slow  run after  the  car, "about  a  few car  lengths."   "I



            remember his hands  on the car  and I heard  pop."  On  cross



            stated she saw the car turn to the right towards the officer.



            Saw him place his hands on  the hood.  Thought maybe his feet


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were  run over,  and that  the gun  was inside  the passenger



            window of the car when officer fired.


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Richard Heines (children's bus driver)
                      ______________



                      Saw officer  with his back against  the back window



            of  the  car, pivot  and  fire  through "the  passenger  side



            window"  and  then rotate  back  again.   (Obviously  car not



            moving.)



                      David Mello (automobile driver)
                      ___________



                      Had passed into Mathewson  Street ahead of car, saw



            officer,  through  side-view mirror,  bumped, hands  onto the



            hood, dead  center.  Officer moved towards passenger side, at



            headlight  was  "bumped again,  a  little  harder this  time,



            causing him to come down  onto the hood this way and  then he



            stepped around  the side of  the car."   The  car was  moving



            slowly and while standing  at fender, passenger side, officer



            drew his  gun and,  after car  moved a  couple of  feet more,



            fired.  Entire incident took about 30 seconds.



                      Kim Maddalena (passenger in school bus)
                      _____________



                      After car took slow left-hand turn onto  Mathewson,



            officer chased  car from  behind.  Then,  "I saw  him take  a



            stance, spread his legs  apart, and take his  gun out of  his



            holster and hold it like this and he  shot into the passenger



            side front window."



                      Debra Lusignan (passenger in school bus)
                      ______________



                      After officer gestured, car stopped.  Saw some kind



            of  argument  between  car  and  officer  that  lasted a  few



            minutes.   Then made tight  left turn, brushing past officer,


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and officer pushed  himself away.   As car proceeded  officer



            banged on rear window and  yelled stop, and when car  did not



            stop  officer  ran after  it for  two  or three  car lengths,



            drawing  his gun.  He  then stuck gun  inside front passenger



            window and fired.



                                       Comment
                                       _______



                      So  much  for   what  plaintiffs  consider   "minor



            inconsistencies on trivial  matters."  Testimony that  placed



            Sweeney as coming from behind would seem clearly inconsistent



            with a  bullet entering the  front of the  groin and out  the



            back; indeed that  point of  entry might be  thought odd  for



            anyone on foot at the car's side.  Plaintiffs' only reference



            to  the path  of the bullet  is to  say that  "the absence of



            exactitude  in  identifying  the specific  locations  of  the



            parties and  vehicle is . . .  insubstantial on the  issue of



            whether Sweeney had to shoot Stockwell in order to defend his



            life."   Seemingly  there is  no difference  between shooting



            from the  hood when one has  been picked up on  a moving car,



            and shooting from  the side,  after coming from  behind in  a



            chase,  or standing alongside, legs spread, and both hands on



            the  gun.  Again, there  is no difference  between being hit,



            center  hood, by  an oncoming car,  (two witnesses,  one said



            once, one twice)1,  and chasing  a car that  had disobeyed  a



                                
            ____________________



            1.  Plaintiffs' brief characterizes inescapable  testimony as

            "brushes,"  a  word never  used by  a  witness, and  fails to

            mention Sweeney's (inescapable)  medical records, which  show



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traffic order.  The correctness of  the denial of plaintiffs'



            motion for judgment is manifest.



                                  Jury Instructions
                                  _________________



                      It  is conceded that the court correctly instructed



            the  jury that,  in  order to  establish  that the  officer's



            decision to shoot was an unlawful or unreasonable  seizure in



            violation  of  Stockwell's   Fourth  Amendment  rights,   the



            plaintiffs had  to prove,  first, that "that  Officer Sweeney



            intentionally  shot  Mr.  Stockwell,"  and  second, "that  in



            shooting  [him] Officer Sweeney acted  in a way  that was not



            objectively   reasonable  under  the   circumstances."    The



            establishment  of the  first  element  was  uncontested;  the



            second  received the  following  amplification  by the  court



            (contested portions emphasized):



                           The standard for determining whether

                      the  use of  deadly  force  by  a  police

                      officer  was  objectively  reasonable  is

                      whether    under     the    circumstances

                      confronting  that  officer  a  reasonable

                      police  officer  would  have   used  such

                      force.



                           The  law permits a police officer to

                      use deadly force  to the extent necessary

                      to  protect himself or  others from death

                      or serious bodily injury.



                           The  law  also   permits  a   police
                           ____________________________________

                      officer to use  deadly force  when it  is
                      _________________________________________

                      necessary  to  prevent  the escape  of  a
                      _________________________________________

                      suspected  felon  if   the  officer   has
                      _________________________________________

                      reasonable  cause  to  believe  that  the
                      _________________________________________

                      suspect  poses  a  significant threat  of
                      _________________________________________



                                
            ____________________



            him work disabled for three months.



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death  or  serious bodily  injury  to the
                      _________________________________________

                      officer or to other persons.
                      ____________________________



                           Assault with a dangerous weapon is a
                           ____________________________________

                      felony.   Intentionally  striking someone
                      _________________________________________

                      or  attempting to  strike someone  with a
                      _________________________________________

                      motor vehicle constitutes an assault with
                      _________________________________________

                      a dangerous weapon.
                      ___________________



                           In determining  whether a reasonable

                      police officer would  have considered  it

                      necessary  to use deadly  force, you must

                      focus  on  the circumstances  confronting

                      that officer at the time the deadly force

                      was  used,  rather  than  on   how  those

                      circumstances   may   appear  given   the

                      benefit of hindsight which, of course, is

                      always twenty-twenty.  Allowances must be

                      made to the extent that a police  officer

                      is forced to make  split-second decisions

                      under circumstances that may be  tense or

                      uncertain or rapidly changing.



                      The court's  mentioning  the law  as to  preventing



            escape was  irrelevant, but,  by the  same  token, we  cannot



            believe a jury, addressing  itself to Sweeney's asserted fear



            of  serious bodily  injury  would be  led  astray.   Of  more



            possible  concern  is  that  the  court's  definition  of  an



            automobile used for an intentional striking (passing what may



            be implicit in that strong  word) was an incomplete statement



            of Rhode Island criminal law.   In State v. Mercier, 415 A.2d
                                               _____    _______



            465, 467 (R.I. 1980), the court said,



                      An automobile  in and  of  itself is  not

                      considered a dangerous weapon, but it may

                      become  so if  it is  employed in  such a

                      manner to render it capable of inflicting

                      death or serious bodily injury.



            We do not, however, have  a criminal case.  The jury  was not



            concerned with legalese, but with substance -- was Sweeney, a


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traffic officer assigned  to protect  children from  oncoming



            cars, faced  with a driver so determined that he ran into him



            twice, the second time harder (Sweeney and Mello), reasonable



            in fearing for  his safety?   We cannot  think that  judicial



            definitions  were  in  the  jurors' minds,  or  affected  the



            essential  fairness of the trial.   Elwood v.  Pina, 815 F.2d
                                                ______     ____



            173, 177 (1st Cir. 1987).



                              Evidence of Prior Conduct
                              _________________________



                      Anthony Sajowski,  a  security guard  in  a  nearby



            building,   had  encountered  Stockwell  shortly  before  the



            shooting  incident.     A   conversation   took  place   that



            defendants,  before  trial,  gave  notice  they  intended  to



            introduce.   Plaintiffs filed  a motion in  limine contending
                                                    __________



            that  its  substance  was,  in  effect,  character  evidence,



            Fed.R.Evid. 404(b), and, further,  that it should be excluded



            because   the  danger   of  unfair   prejudice  substantially



            outweighed any probative value.  Fed.R.Evid. 403.   The court



            denied the  motion "without prejudice" to the right to object



            at  trial,  noting  that  "everyone  is  aware  of  what  the



            potential problems are  and we  will just have  to deal  with



            that based  on the evidence  as it is  presented."  At  trial



            Sajowski  testified,  over   periodic  objections  on   other



            grounds,  that  Stockwell  had  disregarded   his  authority,



            rebuffed  his assistance,  was  "aggravated" and  had several



            times "towered over"  and confronted him in a provocative and


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belligerent  manner,  and  that  he   had  felt  sufficiently



            threatened to request local police assistance.  No objections



            for any of the reasons put forth in the motion in limine were
                                                           _________



            made.  Plaintiffs regard the motion as preserving the  issues



            raised therein for appeal.



                      Our  rule is that the filing and denial of a motion



            in  limine, without  subsequent contemporaneous  objection at
            __________



            trial, will  normally not preserve an  evidentiary ruling for



            appeal.  Clausen v. Sea-3, Inc., 21 F.3d 1181, 1189-1190 (1st
                     _______    ___________



            Cir.  1994)  (citing cases).    Here the  court  very plainly



            indicated  that plaintiffs  should renew their  objections as



            the evidence  came in.   Undo prejudice, Fed.R.Evid.  403, in



            particular  is a  highly subjective  matter, and  plaintiffs'



            failure to object -- it  is not for the court to  remember --



            deprived the  court of its  requested opportunity to  rule on



            the precise record.   See Freeman  v. Package Machinery  Co.,
                                  ___ _______     ______________________



            865 F.2d 1331, 1337-38 (1st Cir. 1988).



                      Plaintiffs  invoke the doctrine of plain error that



            permits late raising.  See Arrieta-Agressot v. United States,
                                   ___ ________________    _____________



            3  F.3d 525, 528  (1st Cir. 1993); Clausen,  21 F.3d at 1190-
                                               _______



            1191.   The first question  is whether it  was error at  all.



            Plaintiffs have had  a four day  trial, with many  witnesses.



            We  are especially  hesitant  to say  from  our poor  vantage



            point,  see  Reagan v.  Brock, 628  F.2d  721, 723  (1st Cir.
                    ___  ______     _____



            1980), that  plaintiffs should  have a  new trial because  it


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would  have been an abuse of  discretion for the court not to



            have  found that  the  prejudicial effect  of this  testimony



            substantially exceeded  its possible relevance.   Instead, it



            is  at  least  arguable  that  this  was  not  a  case  where



            defendants  were offering  to show  that Stockwell  was of  a



            belligerent character as permitting  an inference that he was



            in character on this occasion.  Rather, it would be open here



            to  find that actual belligerence  of a few  moments ago does



            not evaporate instanter, particularly when faced with further



            opposition  and  conflict.   The  evidence  could be  thought



            direct, rather than inferential.   On such a basis  there was



            no error.



                      Alternatively, if  it be  thought we  are mistaken,



            and there was  error, the  term "plain error"  means what  it



            says, "clear,"  "obvious," United  States v. Olano,  507 U.S.
                                       ______________    _____



            725, ___, (1993); 113  S.Ct. 1770, 1777 (1993); "particularly



            egregious:" Clausen, 21 F.3d at 1191.  This it was not.
                        _______



                      Affirmed.
                      _________


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