                            _____________

                             No. 95-1084
                            _____________

Edward McKeel,                       *
                                     *
          Plaintiff-Appellant,       *
                                     *
A. A. McKeel; Agatha McKeel,         *
                                     *
          Plaintiffs,                *
                                     *
     v.                              *
                                     *
City of Pine Bluff,              *       Appeal from the United States
                                *        District Court for the
          Defendants-Appellees, *        Eastern District of Arkansas.
                                *
Lieutenant J. Seamans,          *
individually and in his official*
capacity; Officer C. Cash,      *
individually and in his official*
capacity; Officer Johnny Irvin, *
individually and in his official*
capacity; Captain Kenny Heroman,*
individually and in his official*
capacity;                       *
                                *
          Defendants,           *
                                *
Southeast Arkansas Mental Health*
Center, Inc., a non-profit      *
corporation,                    *
                                *
          Defendants-Appellees. *


                            _____________

                  Submitted:    September 11, 1995

                        Filed: January 8, 1996
                             _____________

Before HANSEN, HEANEY, and MURPHY, Circuit Judges.
                          _____________


HANSEN, Circuit Judge.
     Edward McKeel appeals the final judgment of the district
court1 after entry of a jury verdict in favor of the City of Pine
Bluff and Southeast Arkansas Mental Health Center (SAMHC)
(collectively "defendants") on his 42 U.S.C. § 1983 and medical
malpractice claims.    McKeel challenges the defendants' use of
peremptory strikes, the district court's rulings with respect to
several evidentiary issues, and the sufficiency of the evidence to
support the jury's verdict in favor of the defendants. We affirm.


     Edward McKeel is a diagnosed paranoid schizophrenic who was
purportedly suffering an episode of paranoia on November 4, 1991,
when he was involved in an incident at the McKeel family residence
with Pine Bluff, Arkansas, police officers. Employees of SAMHC
were also on hand that day at the McKeel family residence to assist
the officers by rendering mental health services to McKeel, who was
allegedly in an extremely agitated state. The incident culminated
when McKeel was shot several times as he exited his bedroom while
allegedly advancing toward a police officer with a hatchet raised.


     McKeel filed this 42 U.S.C. § 1983 claim against the City of
Pine Bluff and certain Pine Bluff police officers involved in the
incident. He claimed that the officers used excessive force during
their encounter with him and that the City of Pine Bluff
inadequately trained its officers to deal with individuals
suffering from mental illnesses.      He also brought a medical
malpractice claim against SAMHC, contending that SAMHC sent
personnel to his residence who were not qualified to offer
emergency services to individuals suffering from mental illnesses.
The case proceeded to trial only against the City of Pine Bluff and
SAMHC, and a jury rendered a verdict in favor of those defendants
on all claims. McKeel appeals.


     1
      The Honorable Henry Woods, United States District Judge for
the Eastern District of Arkansas.

                               -2-
     McKeel first argues that the defendants improperly used
peremptory challenges to strike two black jurors because of their
race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
Under Batson,

     once the opponent of a peremptory challenge has made out
     a prima facie case of discrimination (step 1), the burden
     of production shifts to the proponent of the strike to
     come forward with a race-neutral explanation (step 2).
     If a race-neutral explanation is tendered, the trial
     court must then decide (step 3) whether the opponent of
     the strike has proved purposeful racial discrimination.

Purkett v. Elem, 115 S. Ct. 1769, 1770-71 (1995). At step 3 of the
Batson framework, the opponent of the strike may demonstrate that
the proffered reasons offered by the proponent of the strike are
pretextual.   United States v. Carr, 67 F.3d 171, 175 (8th Cir.
1995); see also United States v. Logan, 49 F.3d 352, 357 (8th Cir.
1995) (opponent of strike "may, but is not required to, show that
the government's offered reason is pretextual."). "The ultimate
burden of persuasion rests with, and never shifts from, the
opponent of the strike." Elem v. Purkett, 64 F.3d 1195, 1198 (8th
Cir. 1995).   We review the district court's factual finding of
whether peremptory challenges were impermissibly based on race
under the clearly erroneous standard. Carr, 67 F.3d at 175.


     In the instant case, the original venire panel included two
black jurors. After defense counsel used peremptory challenges to
strike both black jurors, McKeel objected, arguing that the jurors
were struck on the basis of race.2 Defense counsel responded that
one black juror was struck because she worked with mental health
patients, while the other black juror was struck because her facial
expressions and body language indicated a hostility to the


     2
      Before objecting, McKeel's counsel had pronounced the jury
as it was comprised after the exercise of all peremptory
challenges as acceptable to McKeel.

                               -3-
defendants.  The district court accepted these explanations and
specifically found that the defendants' stated reasons for
exercising the strikes were permissible. The record shows that
McKeel's counsel at no time offered or attempted to offer any
argument or make any record that the proffered reasons were
pretextual.


     Although the opponent of a strike is not required to make any
argument or offer any proof on the issue of pretext, such a failure
may impact on whether that party has carried its burden of
persuasion to show purposeful discrimination. In fact, we have
previously upheld findings by trial courts that opponents of
peremptory strikes who made no objection or record with respect to
pretext failed to carry their burden of persuasion to prove
purposeful discrimination in the peremptory process. See Carr, 67
F.3d at 176 (district court did not clearly err in finding that
proffered reasons for strike were not pretextual where opponent did
not argue pretext); Elem, 64 F.3d at 1201 (trial court's finding of
no racial motive in making strike enjoyed fair support of record
where opponent of strike did not argue pretext); Jones v. Jones,
938 F.2d 838, 844 (8th Cir. 1991) (trial court was not required to
consider pretext when issue was not raised). Without any showing
by McKeel that the proffered reasons in this case were a mere
pretext for racial discrimination, given the reasons and their
context, we conclude that McKeel failed to establish purposeful
discrimination in the use of his opponents' peremptory challenges.
Accordingly, we conclude that the district court's factual finding
that the defendants' peremptory strikes were not impermissibly
based upon race is not clearly erroneous.


     McKeel next contends that the district court erred by refusing
to admit into evidence certified documents from the Jefferson
County Circuit Court Clerk's office that indicated the number of
involuntary commitment petitions that had been filed over a period

                               -4-
of approximately three years. McKeel claims that these documents
were vital to establishing the frequency with which the Pine Bluff
Police   Department   was involved    in   involuntary   commitment
proceedings, specifically to show how often the police encountered,
or were involved in, situations in which individuals suffering from
mental illnesses needed to be involuntarily committed.          The
evidence, according to McKeel, was relevant to his failure-to-train
claim against the City of Pine Bluff. The district court excluded
this evidence on the basis that it was irrelevant to the issues in
the case.   We review this decision for an abuse of discretion.
Laubach v. Otis Elevator Co., 37 F.3d 427, 428-29 (8th Cir. 1994).

     After reviewing McKeel's offer of proof at trial with respect
to these documents,3 we conclude that the district court committed
no abuse of discretion in excluding this evidence. The documents
apparently show only the number of involuntary commitment petitions
that were filed over the course of an approximate three-year
period.    The documents do not, however, delineate in which
involuntary commitment proceedings, if any, the Pine Bluff Police
Department played a role. Thus, the documents do not make a fact
of consequence more or less probable and are irrelevant. See Fed.
R. Evid. 401. The district court committed no abuse of discretion
by refusing to admit these documents.


     McKeel also argues that the district court erred by permitting
defendant SAMHC to introduce medical records from his prior
hospitalization in the Alton Mental Health Center in Illinois.
McKeel contends that these documents were irrelevant because SAMHC
was not aware of this prior hospitalization when its employees went
to the McKeel residence, and thus any information contained in the


     3
      These documents are not contained in the record on appeal
and we are therefore reduced to determining from the trial
transcript the nature and information contained in these
documents.

                               -5-
records played no role in the employees' decisions concerning how
to treat him.


     However, in order to preserve this issue for appeal, McKeel
was required to lodge an objection at trial. See Fed. R. Evid.
103(a)(1). At trial, when SAMHC offered the medical records into
evidence, McKeel's counsel stated that he had "no objection."
(Trial Tr. at 512.) McKeel's failure to object allows us to review
the admission of the medical records only for plain error. See
Fed. R. Evid. 103(d); Kostelec v. State Farm Fire and Cas. Co., 64
F.3d 1220, 1229 (8th Cir. 1995). After carefully reviewing the
record, we are satisfied that no error, plain or otherwise,
resulted from the admission of these documents.


     McKeel next argues that the district court erred by first
interrupting his counsel during closing argument and thereafter
forbidding counsel to refer to a previous order of the district
court. In that order, the district court had ruled that a policy
pursuant to which SAMHC had the Pine Bluff Police Department pick
up mentally ill persons and take them into custody without
obtaining prior judicial approval ("pick up policy"), irrespective
of whether the situation was an emergency, was unconstitutional.
McKeel's counsel mentioned the district court's order in opening
statements, and the order itself was later admitted into evidence.
However, during closing arguments, when McKeel's counsel referred
to this order, the district court interrupted and stated, "I don't
think that's an issue in this case." (Trial Tr. at 554.) The
court set forth its belief that the only issues in the case were
excessive force and failure to train. McKeel's counsel responded,
"Thank you, your Honor," and continued with his closing argument
without further interruption from the court and without making any
contemporaneous objection or later record with respect to the
court's comments or its refusal to permit further reference to the
court's previous order. (Id. at 555.)

                               -6-
     The district judge had held an on-the-record instruction
conference with the attorneys prior to closing arguments. In that
conference, the court submitted its proposed instructions which
framed the issues succinctly, together with special interrogatories
to assist the jury to determine the two issues submitted with
respect to the City of Pine Bluff: (1) use of excessive force by
its police officers, and (2) failure to train. McKeel's counsel
made no objection to these instructions or to the interrogatories,
nor did he object to the court's failure to give any instruction
McKeel may have tendered. The district court instructed the jury
before argument in this case and went over the interrogatories and
the issues with the jury. Consequently, when the jury heard the
closing arguments their attention had already been focused on the
issues submitted for their consideration, and those issues did not
include either the unconstitutionality of, or damages allegedly
caused by, the "pick up policy."            The question of the
constitutionality of the "pick up policy" had been part of the
prior class action portion of the case which was settled before
McKeel's personal injury claims came on for trial.


     Again, to preserve error on this issue, McKeel was required to
object or in some manner indicate to the court that he disputed the
court's ruling on this issue. See Fed. R. Evid. 103(a). By simply
continuing with closing argument, without an objection in the
record, we are left to review this issue for plain error. See Fed.
R. Evid. 103(d). Because no issue concerning the policy was going
to be presented to the jury for its determination by the agreed-
upon instructions, we conclude that no plain error occurred when
the court kept counsel's argument confined to the issues properly
before the jury.4


     4
      McKeel also appears to argue, although it is not stated
explicitly or with complete clarity in his brief, that the
district court, by first interrupting counsel and then by its
subsequent statements, improperly commented on the evidence, and

                               -7-
     Finally, McKeel argues that the jury verdict was contrary to
the substantial evidence in the case which, he alleges, clearly
establishes liability on the part of each defendant. He asks us to
direct a verdict in his favor against the defendants and to remand
this case for a hearing in order to determine the appropriate
measure of damages. Alternatively, should we decline to find this
argument persuasive, McKeel requests that we grant a new trial on
all issues.


     We cannot grant McKeel such relief, because he did not move
for a new trial or judgment as a matter of law (JAML) at any
juncture in the proceedings.    See Catlett v. Local 7370 of the
United Paper Workers Int'l Union, 69 F.3d 254, 258-59 (8th Cir.
1995) (JAML); Boone v. Moore, 980 F.2d 539, 542 n.3 (8th Cir. 1992)
(JAML and new trial); Gopher Oil Co. v. Union Oil Co., 955 F.2d
519, 526 (8th Cir. 1992) (JAML). See also Fed. R. Civ. P. 50(b)
and 59.    Although we have noted the potential harshness of
requiring such motions, see Catlett, 69 F.3d at 259, we have
repeatedly held that these prerequisites must be satisfied before
we can entertain claims for judgment as a matter of law or for a
new trial. See id. (citing cases); Boone, 980 F.2d at 542 n.3.
Finally, we have reviewed the record to see if the manifest
injustice exception to Rule 50(b) applies, see Karjala v. Johns-
Manville Prod. Corp., 523 F.2d 155, 157 (8th Cir. 1975), and have
determined that it does not.      Therefore McKeel's request for
judgment as a matter of law or, alternatively, for a new trial,
must fail.


     Accordingly, we affirm the judgment of the district court.




in doing so, poisoned the jury against him. We disagree.    The
court's statements were brief and in no manner could be
reasonably construed as impugning McKeel or his counsel.

                               -8-
A true copy.


     Attest:


          CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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