
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre><br><br><br><br><br><br>                                             <br><br><br>No. 91-1588<br><br>                    UNITED STATES OF AMERICA,<br><br>                      Plaintiff, Appellee,<br><br>                               v.<br><br>                         STEVEN McGILL,<br><br>                      Defendant, Appellant.<br><br>                                             <br><br><br>          APPEAL FROM THE UNITED STATES DISTRICT COURT<br><br>                FOR THE DISTRICT OF RHODE ISLAND<br><br>     [Hon. Raymond J. Pettine, Senior U. S. District Judge]<br><br>                                             <br><br>                             Before<br><br>                      Breyer, Chief Judge,<br><br>                 Selya and Cyr, Circuit Judges.<br>                                             <br><br><br>     David N. Cicilline for appellant.<br>     Marie K. McElderry, Attorney, United States Department of<br>Justice, with whom John R. Dunne, Assistant Attorney General, David<br>K. Flynn, Attorney, United States Department of Justice, Lincoln C.<br>Almond, United States Attorney, and Anthony DiGioia, Assistant<br>United States Attorney, were on brief for appellee.<br><br>                                             <br><br><br><br><br>                                             

          SELYA, Circuit Judge.  Defendant-appellant Steven McGill<br>was indicted by a federal grand jury on a charged violation of 18<br>U.S.C.  242 (1982).  The government alleged in substance that<br>McGill was a correctional officer at a state prison in Rhode<br>Island; that on July 10, 1984, while on duty, he subjected an<br>inmate, Roger Alessio, to a simulated version of "Russian<br>Roulette"; that, in the course of this perilous fandangle, McGill<br>aimed a firearm at Alessio's head and pulled the trigger; and that<br>the gun discharged, sending a bullet into Alessio's skull, killing<br>him and thus violating his civil rights.  Following trial in the<br>United States District Court for the District of Rhode Island, a<br>jury found McGill guilty as charged.  The district court sentenced<br>him to a twelve-year prison term.  McGill appeals.  We affirm.<br>          We need not linger long over this appeal.  We discuss the<br>assigned errors in decurtate fashion, indicating the general basis<br>for our rulings.  In our view, no more is merited.<br>                               A.<br>          The first two assignments of error relate to the district<br>court's jury instructions.  In fine, McGill alleges that the court<br>erred both in defining "willfulness" and in describing section<br>242's "under color of . . . law" requirement.  The short,<br>conclusive response to these importunings is that no contempo-<br>raneous objection was lodged in either respect when the district<br>court delivered its jury instructions.  Hence, the objections were<br>waived.  <br>          To be sure, an appellate court can vacate a defendant's<br>conviction on the basis of instructional error, even in the absence<br>of a contemporaneous objection, if the error is "plain."  See<br>United States v. Natanel, 938 F.2d 302, 311 (1st Cir. 1991); United<br>States v. Mejia-Lozano, 829 F.2d 268, 272 (1st Cir. 1987); United<br>States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert. denied, 484<br>U.S. 844 (1987).  But, although the possibility is often discussed,<br>the actuality is seldom seen.  When all is said and done, "[t]he<br>plain error hurdle is high."  United States v. Hunnewell, 891 F.2d<br>955, 956 (1st Cir. 1989).  <br>          In this instance, the hurdle is insurmountable.  While<br>the appellant's points appear to possess a patina of plausibility<br>when bits and pieces of the district court's charge are wrested out<br>of context, the patina dissolves completely when the charge, as<br>needs must, is "taken in its entirety."  Griffin, 818 F.2d at 100. <br>The judge's instructions, as a whole, spelled out the elements of<br>the offense and the government's burden of proof.  They also<br>adequately communicated the theory of McGill's defense and the<br>workings of the presumption of innocence.  In the last analysis, we<br>are hard pressed to discern instructional error to any degree  a cry imitative of conduct<br>occurring in the film.  The prosecution sought to show the Russian<br>Roulette scene at McGill's trial.  Defense counsel endeavored to<br>avoid an excerpted rendition.  In what seems to have been a<br>compromise, both sides agreed to let the jury see the entire film,<br>rather than just the single scene.  Recognizing that his<br>acquiescence in the admission of the evidence at trial constitutes<br>a waiver, see Fed. R. Evid. 103(a)(1) (requiring timely objection<br>to admission of evidence), McGill attempts to resurrect the point<br>on appeal by a claim that allowing the jury to view the motion<br>picture constituted plain error.  See Fed. R. Evid. 103(d) (with<br>respect to admission of evidence, appellate court may notice "plain<br>errors affecting substantial rights" even if such errors were not<br>brought to the trial court's attention); Fed. R. Crim. P. 52(b)<br>(similar).<br>          This claim sounds a particularly dissonant chord. <br>Counsel jointly presented the trial judge with a stipulation that<br>a certain piece of evidence  should be received<br>into evidence.  Given the stipulation and the attendant<br>circumstances, any error in admitting the film could not possibly<br>have been apparent to the trial judge when the proffer was made. <br>It is, therefore, not surprising that, in cases like this one,<br>where a party has stipulated to the admission of particular<br>evidence, courts have been especially slow to find plain error when<br>the party belatedly decides that the stipulation was improvident. <br>See, e.g., United States v. Vogt, 910 F.2d 1184, 1192 (4th Cir.<br>1990), cert. denied, 111 S. Ct. 955 (1991); United States v. Sisto,<br>534 F.2d 616, 624 n.9 (5th Cir. 1976) (warning against dangers of<br>"sandbagging").<br>          We do not go so far today as to hold that where evidence<br>is received pursuant to stipulation, plain error can never be<br>found.  In the end, our focus must be on whether the "fundamental<br>fairness of the trial" has been undermined, see United States v.<br>Young, 470 U.S. 1, 16 (1985); or, put another way, whether, apart<br>from deploying plain error, "a miscarriage of justice would<br>otherwise result."  United States v. Frady, 456 U.S. 152, 163 n.14<br>(1982).  We are convinced that, in the case at hand, these rubrics<br>cannot conceivably apply.  We explain briefly.<br>          The movie was clearly relevant.  See Fed. R. Evid. 401<br>(evidence is relevant if it has "any tendency to make the existence<br>of any fact that is of consequence to the determination of the<br>action more probable or less probable than it would be without the<br>evidence").  So long as evidence is relevant, it is hen's-teeth<br>rare that we, from the vista of a cold appellate record, can<br>justifiably say, particularly in the absence of a contemporaneous<br>objection, that the evidence's probative value was so outweighed by<br>the specter of unfair prejudice that its introduction constituted<br>reversible error.  Indeed, the cases are legion in which we, and<br>other courts, have refused to overturn verdicts notwithstanding the<br>trial judge's allowance of evidence which, though relevant, was<br>grisly, sensational, or otherwise daunting.  See, e.g., Foley v.<br>Lowell, ___ F.2d ___, ___ (1st Cir. 1991) [No. 91-1016, slip op. at<br>9-11] (approving lower court's admission of evidence anent<br>particularly vile incident of police brutality); Real v. Hogan, 828<br>F.2d 58, 61 (1st Cir. 1987) (evidence of plaintiff's bloodstained<br>hands); United States v. Cintolo, 818 F.2d 980, 997-98 (1st Cir.)<br>(evidence of order to commit murder), cert. denied, 484 U.S. 913<br>(1987); United States v. Moreno Morales, 815 F.2d 725, 739-40 (1st<br>Cir.) (evidence of murder), cert. denied, 484 U.S. 966 (1987);<br>Kealohapauole v. Shimoda, 800 F.2d 1463, 1466 (9th Cir. 1986)<br>(habeas court upholds admission of autopsy film into evidence),<br>cert. denied, 479 U.S. 1068 (1987).   We think it crystal clear<br>that the district court did not commit plain error in accepting<br>counsels' agreement and permitting the jury to see "The Deerhunter"<br>from start to finish.<br>                               C.<br>          The appellant's final assignment of error piggybacks on<br>the contentions previously discussed.  He claims to have been<br>deprived of proficient representation because his trial attorney<br>failed to object to the jury instructions and stipulated to the<br>cinematic display.  Whatever the merits of this claim  it is not ripe for review.<br>          We do not ordinarily consider complaints of ineffective<br>assistance on direct appeal.  See, e.g., United States v. Costa,<br>890 F.2d 480, 482-83 (1st Cir. 1989); United States v. Kobrosky,<br>711 F.2d 449, 457 (1st Cir. 1983).  To the contrary, "[t]he rule in<br>this circuit is that a fact-specific claim of ineffective legal<br>assistance cannot be raised initially on direct review of a<br>criminal conviction, but must originally be presented to the<br>district court."  Hunnewell, 891 F.2d at 956.  While we have made<br>an occasional exception where, for example, "the critical facts are<br>not genuinely in dispute and the record is sufficiently developed<br>to allow reasoned consideration of an ineffective assistance<br>claim," Natanel, 938 F.2d at 309 (citing representative cases),<br>McGill's case falls squarely within the general rule, not the<br>exotic exception to it.  The relevant facts, especially those<br>concerning the reasons behind trial counsel's adoption of certain<br>strategies, are unclear.  Moreover, the trial judge, who is <br>obviously in the best position to evaluate what was done and why,<br>has never passed upon the adequacy of the defendant's<br>representation.  In a nutshell, McGill is jumping the gun by<br>attempting to raise the issue on direct appeal.<br><br>Affirmed.</pre>

</body>

</html>

