
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        February 9, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE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                                         -2-            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                                         -3-            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)                      ____________                                         -4-                      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                                         -5-            were  run over,  and that  the gun  was inside  the passenger            window of the car when officer fired.                                         -6-                      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,                                         -7-            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                                         -8-            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.                                         -9-                      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                                         -10-            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                                         -11-            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                                         -12-            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.                      _________                                         -13-
