              Case: 11-15320     Date Filed: 07/13/2012   Page: 1 of 4

                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 11-15320
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 2:09-cv-01709-AKK


MARTEZ GULLEY,


                                                          Plaintiff-Appellee,
                                          versus

BIRMINGHAM, CITY OF,
as a person under U.S.C. 1983, et. al.,

                                                          Defendants,
COREY HOOPER, Individually and in his
official capacity,
                                                          Defendant-Appellant.

                          __________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                         _________________________

                                   (July 13, 2012)

Before EDMONDSON, JORDAN and HILL, Circuit Judges:
                Case: 11-15320     Date Filed: 07/13/2012   Page: 2 of 4

PER CURIAM:

         Corey Hooper appeals the denial of his motion for a new trial, or, in the

alternative, for judgment notwithstanding the verdict, and asserts as error several

evidentiary rulings and also improper jury instructions by the district court. For

the following reasons, we find no merit in his assertions of error and shall affirm

the judgment of the district court.

         First, Hooper complains that he was “compelled” to testify in this action in

violation of his Fifth and Fourteenth Amendment right not to incriminate himself.

This contention is without merit. When called to the stand in this civil action

against him, Hooper was free to invoke his Fifth Amendment privilege against

self-incrimination, but chose not to do so. Instead, he voluntarily answered the

questions put to him by plaintiff’s counsel. Had he chosen to invoke his right to

remain silent, the district court would have been compelled to decide whether the

invocation was warranted – evaluating Hooper’s claim that his fear of criminal

conviction based upon his testimony was reasonable, real and appreciable. United

States v. Gecas, 120 F.3d 1419, 1424 (11th Cir. 1997) (privilege does not protect

against remote and speculative possibilities). Hooper, however, never invoked his

privilege while he was on the stand. Thus, there is no merit to this assertion of

error.


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       As to the admission into evidence of Hooper’s prior statement to an Internal

Affairs investigator, the district court recited in its order denying a new trial that

Hooper himself asked that portions of an audio recording of the statement be

played during trial and that he asked the jury to listen to the entire recording

during their deliberations. In his brief on appeal, Hooper does not dispute the

district court’s statement. This deliberate choice does not result in trial error. See

Edwards v. Warden, 676 F.2d 254, 257 (7th Cir. 1982) (no error where evidence

now objected to by defendant was used by him at trial).1

       Finally, the other evidentiary errors asserted by Hooper are all the product

of his failure to abide the court’s pre-trial order deadlines. Furthermore, his

objection to the admission of plaintiff’s evidence of damage is unfounded as

plaintiff did timely file a list of such damages pursuant to the pre-trial order. It

was Hooper’s attempt to object to that filing that was untimely.

       Similarly, Hooper’s objection to the jury instructions was not timely filed

pursuant to the court’s pre-trial order. The district court refused to consider the

objection since Hooper offered no justification for the failure to timely file. We

find no fault with this exercise of the district court’s discretion.




       1
         Furthermore, the record reflects that Hooper did not renew his objection to the admission
of this statement when it was offered at trial by plaintiff’s counsel. This constitutes waiver. See
Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1286 (11th Cir. 2000).

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      Hooper requests, in the alternative, for judgment notwithstanding the

verdict. The district court denied this motion as Hooper did not refute the

sufficiency of the evidence but rested his argument upon the court’s alleged

evidentiary errors. The district court correctly denied the motion. See Allstate Ins.

Co. v. Jaguar Cars, Inc., 915 F.2d 641, 644 (11th Cir. 1990).

      For the foregoing reasons, the judgment of the district court is

AFFIRMED.




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