*1 mistake, faulty memory.” sion, United 87, 94, 113 Dunnigan, 507 U.S.
States
(1993);
United
S.Ct. case, listening to In this after
Dunnigan). reviewing all sentencing and
arguments at evidence, Swanquist the court found that fact that the various aware of the
was well and that his contradic were unsecured
loans instance, al For
tory was false. Swanquist that he did not
though testified $63,000 with First National loan
disclose it was secured
Bank of Plaines because Des loan, equity
by negotiations for a home establishing
court saw and heard September until
that the loan was unsecured Swanquist Similarly, although testi-
of 1991. National that his loans with Merchants
fied secured, court heard
Bank were testimo- Dickes, contrary
ny from Peter Swanquist’s
stated as October court’s unsecured. district
loans were permissible view of the
findings constitute clearly thus cannot be errone-
evidence and
ous.
Swanquist’s conviction and sentence are
Affirmed. WILSON, Plaintiff-Appellant,
Jackie WILLIAMS, K. Defendant-
James
Appellee.
No. 97-2637. Appeals,
United States Court Circuit.
Seventh
Submitted Dec. 1997.1
Decided Nov. unnecessary. Accordingly, appel- appeal ment is has submitted to 1. This successive been 6(b). argument request is denied and the panel Operating lant's for oral same under Procedure appeal parties' on the briefs and the record. briefs and is submitted After an examination of the 34(a); 34(f). record, argu- R.App. P. Cir. See Fed. R. we have concluded that oral *2 (submitted), Craig Steven H. Hoeft H. Zimmerman, McDermott, Emery, & Will IL, Chicago, Plaintiff-Appellant. (submitted), Richard A. Devine D. Michael Jacobs, Meyerson, David S. Office of the Attorney County, Chicago, State’s of Cook IL, Defendant-Appellee. WOOD, JR.,
Before COFFEY RIPPLE, Judges. Circuit COFFEY, Judge. Circuit Wilson, plaintiff, The inmate Jackie filed § claiming this 42 1983 civil suit U.S.C. officer, he was assaulted a corrections Williams, James while he was confined and awaiting charges trial on for murder and robbery Chicago police armed of two officers. trial, Before this civil suit went to Wilson was Chicago robbery two officers. officers armed of one of the the murder convicted of other, altercation, and was found Wilson was acquitted The afternoon robberies. committing both armed guilty “dayroom” watching television with a in the filed a murder (“Bivens”). Prior to the inmate, Aryules Bivens fellow *3 reception limine to bar the motion (“Red”) Johnny was Inmate Walker Red occupation murder victim’s of the evidence to the area from a court scheduled to return by judge. the trial denied and the motion was way, pass- his would be proceeding. On Red statement, plaintiff Wil- During his dayroom through to return to his cell. the they jurors that attorney told the son’s According testimony at Red was to the had been con- that his client hear evidence loud, obnoxious, he was and not well liked as Wilson, officer. murdering police victed of people.” “aggravated counsel, by defense during cross-examination officers, Nona Cam- One of the corrections of mur- that he had been convicted admitted eron, shortly passed before Red testified that officer, without ob- dering Chicago police dayroom, told her that if through the Wilson attorney. Nor did Wilson’s jection from his room, “they to enter the Red occasion object wit- when one of Williams’ [presumably meaning Wilson and Bivens] nesses, Thomas Caval- Officer Corrections lone, alleged they were shortly after the to kick his ass” because testified was Williams, and night altercation between Wilson being disrupted long.” all tired “of loudly to several corrections Wilson boasted enough threat raised concern for Cam- This Chicago po- he had “killed two officers that superior to ask her offi- prompt eron to her closing argument, During his lice officers.” another corrections officer to cer to send emphasized occupation the counsel Williams, to his cell.3 James escort Red victim, using the term of his client’s murder officer, assigned to defendant corrections “cop no less than seven times. The killer” Although knew the escort Red. Williams jury for the defendant Williams. On found facing at charges Bivens and Wilson were although it was appeal,2 claims Wilson time, personally acquainted he was not with that he had proper for the to be advised them, he have either one of nor did knowl- murder, the court commit- been convicted of against edge of threats Wilson made allowing the introduction of evi- ted error Red. Williams was of the belief Officer victim was a officer. dence nothing prisoner trans- this was routine hold that Wilson waived his We fer, engaged kind he had in hundreds of regarding introduction of evidence times before. by failing to re- occupation victim’s murder dayroom, escorted Red into the Williams limine at trial and new his motion security and the door was closed behind timely object disputed when the failing to them at this time. Officer Williams testified Furthermore, evidence was introduced. Wil- yell, that he then heard someone his side objection by preemptively in- son waived his the MFer.” He turned and observed “Get forming very that he running him and and Bivens toward Wilson exclude, making repeated and ref- wanted to explained that Red. Officer Williams Bivens evidence, using including it for erence to such shirt, grabbed front of his and at the strategic purposes closing his own Wilson, run time who had behind same objec- argument. Because Wilson waived his Williams, right on the side of struck Williams evidence, tion to this we affirm. point, head. At that Red darted out
I. BACKGROUND dayroom and into the corridor. Bivens followed, dayroom slamming heavy steel herein, On June frame, During time Wilson door shut. this (“Wilson”), being held in Jackie Wilson (Illi- assault Officer Williams. continued to County pretrial in the Cook detention nois) struggled Jail, reached for Wilson and awaiting trial for the murder and Williams case; Apparently, appeal previ Corrections Officer Cameron was 2. This is the third Williams, post appeals obligated designated ous two are Wilson at her in the to remain Williams, Cir.1993) (7th and Wilson v. reassigned. jail until she was relieved 1996). F.3d 870 Cir. stairs, him, floor, injuring charge rolling to the further himself. This and the two fell around, exchanging punches. tussling was denied who him. officers escorted help, whereupon Officer called for Williams They preceded testified that one officer Wil- radioed for Several of Cameron assistance. son while stairwell another followed hearing the prison guards, “officer down” him, and that neither fell nor was call, emergency responded radio to the scene pushed alleges down the stairs. Wilson also dayroom up entered the break stairs, pushed after he was down the altercation Officer Williams. The assist “security post” was taken ato where Officer Long, to arrive first was Corrections Officer beating Williams resumed him. observed on his back with Williams Wil- parties agree that Wilson was taken straddling continuing him to rain son jail’s security post medical Long, upon him. in assist- punches Officer *4 facility, care Cermak Health One Williams, Services. pulled ing his fellow Officer Wilson officers, Cavallone, time, escorting his Thomas off him. At this Williams rolled to Wilson, wall, against side the way and sat exhausted testified that while on his the to breath, out center, and as several corrections offi- talking very loudly health and was attempted Wilson. cers to restrain stated, already Chicago “I killed two Wilson, trip officers.” on his first trial, gave At inmate a different Wilson center, health medical and refused treatment surrounding account events his alter- report the doctor noted on that Wilson with Officer He stated that cation Williams. watching angry.” and Bivens had been television was “hostile re- he and Wilson was dayroom, carrying when Red entered the block, turned to the requested cell later belongings, steps some with several Williams again medical and was treatment escorted Bivens, him. testified behind that he facility. the medical Offi- According care out of’ wanted to “scare the hell Red because Cavallone, during trip cer this second Wilson pigeon,” stepped was a he “stool between proclaimed, should have me “[Y]ou killed away and Officer Red walked Red Williams. you already had chance. I killed past gate from Bivens and walked lead- Chicago police My attorney two officers. followed, to the corridor. Bivens slam- going day with no have a field this. have ming leaving the door him and closed behind respect thing for the And the next law. and Officer locked in the Wilson Williams are to do is take care of the blue shirts dayroom alone. Wilson testified that Red jail.” inside the “spooked” by looked the sound of the slam- officer, Long (Wilson) Another corrections Officer door, ming laughed and that he (the this, Williams, pulled off whereupon unpro- corrections officer who Officer Wilson voked, Williams), threw him to floor and assaulted of Officer testified about a state- him. Wilson he asked Wilson, stated that Williams occurring in ment made this one was, problem and what received no re- 28,1988, is, dayroom July that about sponse. He further testified that the two of Long explained month after the altercation. fought for minutes them several before the at trial that kicked over a chair and at Wilson scene other officers came to the and broke for the same time hollered about his hatred Wilson, fight. although up According (“DOC”) Department of Corrections restrained, enraged was he now Officer general, for and his hatred Officer Williams him, kicking Williams continued to assault particular, interfering for his assault (prisoner him several times in the head Bi- on another inmate: vens testified that he Officer Williams saw hated, you discussing A: He he was how kicking other corrections officers know, and, know, you Depart- DOC Wilson, and further testified Wilson was everything, ment of Corrections and times). forty fifty kicked Wilson stated every- everything it stood for and thereafter, from the tier he was escorted body department, you know. stairs, and, down while escorted some Q: specific Did he make statements pushed by an from behind unknown officer, balance, lost his and fell down to Officer Williams? James prison guards. 4. The term "blue shirts” refers nature, was no chance “superficial” in there
A: Yes.
of the melee with
account
that Wilson’s
say specifically
relation
Q:
he
What did
reversed
could be true. We
Williams
James Williams?
to Officer
grounds
genuine
issues
on the
decision
that he hated Officer
Basically he said
A:
as to whether Wilson
of material fact existed
attack on
stopping
Williams
officers,
fight with
time,
know,
initiated the
you
inmate at the
another
for trial. See Wilson
earlier,
remanded the case
a month before
like a month
(7th Cir.1993).
Williams,
At
know,
at the earlier time.
points in closing argument: hit, You heard about a another word in opening
Now Cop killer, statement hit, thrown in opening. *6 for Mr. Williams used a lot of words that Nothing inmate lotto. to do with the facts nothing to do with this case but were in prey your this case. All meant upon to cop killer, you, meant to incite inmate lot- client, to you my emotion convince to, protecting people, outnumbered. is, because of what he get should never All those words were meant to inflame anything no happens matter what to him. you, man; you to tell this man is a bad good man, man you is a so must vote in his You have heard this Red’s fault for favor. being obnoxious. You heard Bi- this is you questioned When were on voir dire vens’s fault instigator. for an You brought up, you and these facts were said have heard this is Williams’s fault for not you could impartial you be fair and even acting properly. You have heard about a my guilty found out that client was cop killer. You have heard about inmate killing Chicago police officer____ And lotto. you you impartial, said could fair I you and am to hold to that. added). (emphasis returned a ver- prospective jurors Now one of the said it defendant, Williams, dict for the Officer put would be difficult to that out of [his] appeals Wilson for the third time. I you put mind. don’t want that out of your mind. want II. remember that ANALYSIS prison Jackie [Wilson] is for A. Standard of Review. life, spends this is where he the rest of his spite In the fact parties that the behind bars. agreement are in the district court’s But that pun- doesn’t mean he can be deny decision to Wilson’s motion in limine to again ished at the whim of an regarding occupations officer. And it exclude evidence doesn’t mean whenever he is, charge well, makes a robbery that the answer of his murder and armed victims cop killer, officer, you is a he’s must should be reviewed under the abuse of dis believe the officer. standard, cretion disagree. Although, we
generally speaking, the
abuse
discretion
1084
at
sought
prevent is
to occur
reviewing
party
evi-
about
appropriate
standard is
”
added)
courts,
(quot
see
of the trial
trial.’
Id.
1360
dentiary decisions
(7th
581,
809,
Groaning,
Roenigk,
25 F.3d
585
810 F.2d
v.
States v.
United
Cir.1994) (“Whether
(8th Cir.1987)).
hand,
court commits
a district
the other
815
On
admitting
excluding
Co.,
reversible error
17
Eng’g
v.
F.3d
Favala
Cumberland
by the abuse of dis
evidence is determined
(7th Cir.1994),
panel of this court
987
“
standard.”) (citation omitted), a dif
cretion
just
‘an unsuccess
opined
opposite,
ap
if and when the
applies
ferent standard
preserve
in limine does
the issue
ful motion
timely
specific
make a
pellant fails to
(quoting Allison
appeal____’” Id. at 991
disputed
objection
to the admission
Co.,
1187,
F.2d
1200
Ticor Title Ins.
979
v.
situations,
review a
we
evidence.
those
(7th Cir.1992))
cases);
(citing
see Stutzman
evidentiary rulings
plain
er
trial court’s
(7th
Inc.,
291,
CRST,
298
Cir.
v.
997 F.2d
Hosp.
Stringel v. The Methodist
ror. See
1993);
2
F.2d
691 n.
Hoppin,
783
Cook
(7th Cir.1996)
Ind., Inc.,
415, 421
89 F.3d
(7th Cir.1986).
that, although typically our Circuit
(holding
that York is the better
We are convinced
cases,
recognize plain errors
civil
does not
alone,
are not
Apparently
rule of law.
may be available
plain error doctrine
“[t]he
followed
six
the rule
York has been
evidentiary rulings
no
to which
to review
See, e.g.,
circuits.
United States v.
other
----”)
(citing
at trial
was made
(1st Cir.1998)
Joost,
Tripp,
F.2d
Deppe v.
(“Merely making an unsuccessful motion
Cir.1988));
v. Truck Ins. Ex
see also Kafka
to exclude evidence is insufficient
limine
(7th Cir.1994).
This
change, 19 F.3d
error;
protesting
a claim of
preserve
is one of those situations.
ordinarily
revivify
opposition
party
must
Wilson,
argu-
appeal, has waived his
offered.”) (cita
time the evidence is
error in de-
ment that the
committed
omitted);
Birbal,
tion
United States
by failing
in limine
nying his motion
—
(2d Cir.1995),
denied,
cert.
including
during the trial
renew the motion
-,
433,
victed of death of an individual to [the evidence of timely object during trial when the failing to heroin], thereby he sold it did not whom In addi- disputed evidence was introduced. obligation object tion, relieve ... counsel of the counsel contributed to *7 by informing problem preemptively specific inflammatory waiver statements whenever that his trial.”); in his statement City at McEwen v. were made officer, (10th murder victim was a client’s Norman, Okl., 1539, 926 F.2d 1544 by repeatedly referring to and and thereafter Cir.1991) (“A party whose motion in limine own using cop reference for his killer object nevertheless has been overruled must at the strategic purposes the trial and sought prevent by to when the error he closing argument. time of the trial.”); Raybes Hendrix v. motion occurs at tos-Manhattan, Inc., 1492, 776 F.2d 1504 Argument His B. Wilson Has Waived (11th Cir.1985) (“[A] party whose motion in In Limine the District Court’s object limine has been overruled must when Ruling was Erroneous. sought prevent with his mo the error he trial”) object (quoting when at failure tion is about to occur testimony Collins, infra); elicited that Wilson Tire & Williams Hale v. Firestone Chicago police (8th Co., 1322, murdered a officer. 1333 Cir. Rubber 756 1985) (“A pre in limine does not motion York, In v. 933 F.2d United States appellate party review. A serve error for (7th denied, Cir.1991), 502 U.S. cert. 1343 in limine has been overruled whose motion (1991), 916, 321, L.Ed.2d 262 112 S.Ct. 116 object party sought the error the must when must be that the in limine motion we held is about to occur prevent with the motion objection waived: at trial or the is renewed “ trial.”) (citations omitted); Collins party in limine has been whose motion ‘[A] (5th 777, Wayne Corp., 621 F.2d 785 Cir. object the error the must when overruled
1085
1980) (“[A]n
discretion,
objection
required
pre
judicial
previ-
is
sound
to alter a
ruling.
ous in limine
testimony
serve error
the admission of
the allowance of cross-examination even Id.,
41-42, 105
469 U.S. at
S.Ct. at 463.
party
unsuccessfully
moved
when
has
request
guid-
A motion in limine is a
for
suppress
limine to
or cross-
by
regarding
ance
the court
an eviden-
examination.”).
fact,
the York rule exem
tiary question.
may,
The trial court
majority
plifies
general.
view of courts in
discretion, provide
guid-
within its
such
Weinstein,
by making
preliminary
ruling
See Jack B.
Weinstein’s Federal
ance
(1997 ed.)
respect
admissibility.
par-
§
Evidence
at 103-16
The
103.11[2][b]
ruling
ties
then consider the court’s
(“If
party
objection
has
an
raised
before
formulating
strategy.
their
trial
means
motion in limine that
However,
why
we see no reason
the trial
denied,
the court has
most courts hold that
change
ruling,
court could not
its
for
objection
be
must
renewed at trial for
reason,
whatever
when the evidence is
objection
preserved
appeal.”)
to be
for
actually
objected
offered and
tri-
to at
added);
Graham,
(emphasis
Michael H.
ruling
al.... A
on a motion in limine is
(4th ed.1996)
Handbook
Federal Evidence
essentially
advisory opinion
therefore
(“To
I, §
preserve
103.8 at 50
Vol.
error for
by the trial court.
appeal,
required
counsel most
will
often
Luce,
1236,
United States v.
713 F.2d
1239
to and thus to be
should either renew
safe
(6th Cir.1983) (citations omitted) (emphasis
proof
or make an
offer of
added);6
also,
Yannott,
see
United States v.
trial.”)
added).
(6th
999,
Cir.1994),
denied,
42 F.3d
1007
cert.
dissent,
rejecting
support
our
513 U.S.
115 S.Ct.
130 L.Ed.2d
(1995) (cited
York,
Stotts,
requires
party
the rule in
which
Jones v.
Cir.1995));
Moore v. General
objection prior
his in
restate
limine
to the
Div.,
Corp.,
Remy
F.Supp.
Motors
Delco
introduction of the evidence at
dis-
(S.D.Ind.1988);
Sales
State Farm
agrees with and states that York creates an
Co.,
F.Supp.
Fire & Cas.
prac-
“inflexible and unrealistic rule of trial
(N.D.Ga.1986).
may very
For the court
well
provides
reasoning
tice.” The dissent
no
frequently
does reconsider the denial of
claim;
any support
it without
is
whatso-
ruling if
its
in limine
in fact other
requirement
ever. The
that an
re-
material evidence is received later in the trial
objection prior
state his in limine
and causes the trier of fact to reconsider his
introduction of evidence at trial
no
more
ruling.
earlier
lawyer
difficult for the trial
other
than
misapprehends
Favala
the nature of
procedure. Furthermore,
rule of
as the Su-
ruling
pretends
the in limine
that it has
clear,
preme Court has made
an in limine
binding
apart
an existence and
force
ruling merely speculative
effect,
com-
unlikely
trial. “District Courts
[would be]
*8
pletely dependent upon
happens
what
at tri-
give advisory
rulings
continue to
[in limine]
States,
38,
al. See Luce v. United
469 U.S.
which increase the risk of retrial. The valu
(1984).
460, 463,
105 S.Ct.
with an unwarranted willingness prelimi- judge’s make a Q: continuously ... And have been ruling, rulings nary were review- if such charges killing incarcerated on the able, defendants to would also enable basically Feb- officer since challenge have convictions that would correct, ruary sir? impeachment resulted even A: Yes. been ruled inadmissible. This results reviewing inability court’s from the object failed to on this the defendant would determine whether time occasion. The second actually whether that have testified or examination of Officer Cavallone. Cavallone in an ac- would have resulted Wilson, testified that while escorted quittal. Services, Medical the first time Cermak added). Thus, Fa- Id. the rule Chicago police stated that he had killed two vala gives all a sec- improperly defendants officers: York, apple. at the on the other ond bite very talking He loud. He stated —he hand, properly the firm is more anchored on myself made one statement that and Offi- ruling final after the foundation of a Sergeant Clay Crosby cer of Cermak hear the opportunity has had the court stated, for, present I have Hospital was Therefore, regardless of what evidence. already already Chicago po- killed two —-I wording *9 might judge’s counsel infer from officers, just talking was out lice and —he an in limine ruling, when he or she makes loud. only preliminary. See Cour that decision is Co., Inc., sen v. A.H. Robins F.2d 764 objection Again, there was no to Officer Ca- (“In Cir.1985) (9th limine rulings are objec- testimony, was vallone’s nor there very preliminary.”). their nature testimony that further tion to Cavallone’s comments when he was Wilson made similar requiring an in limine Granted, ob time: for the second jection result in returned to Cermak to be renewed at trial does Q: York, holding Was there in incident Court’s where we held that a you
Post 78 or elsewhere as
were motion in limine must be raised when “the
escorting him back the
time?
second
party sought
error the
prevent
is about to
A:
in
go-
While we were
the tunnel area
occur at
plaintiffs objection
trial.” The
in
Hospital
back to Cermak
a second
prior
this case was made
even to the com-
time,
talking
Inmate Wilson was
out mencement of opening statements. Such an
couple
loud and made
of statements.
objection
hardly
timely
light
in
of our
Q:
say?
What did
holding
only
York.
plain-
Not
again,
you
A: He stated
should have
tiffs counsel went on to raise the
I—
killed me when
had the chance. I
question
during
himself
opening
his
state-
already
Chicago police
killed two
offi- ment.
My attorney
going
cers.
to have a
The fact that Wilson failed to renew the
day
respect
field
with this.
I have no
object
properly
motion and
when the evi-
thing
for the law. And the next
we
just
dence was received was
one factor that
going
are
to do is take care of the blue
contributed
right
to the waiver of his
jail.
shirts inside the
appeal the admission of this evidence. Let
The dissent comments that Wilson’s “sec
us consider the other factors.
objection
trial,
during
just
ond
raised
opening
before
statements.” The dissent
preemptively
2. The fact that Wilson
in-
again interrupted
notes that
counsel
“[h]ad
jury
formed the
that the murder victim
trial
to make the same
a third
police
repeatedly
was a
officer and
re-
time,
judge
justified
would have been
ferred to that
circumstance
asking plaintiffs
many
counsel how
times
closing argument also contributed to
deny plaintiffs
was he
to have to
mo
right
appeal.
waiver of his
plaintiff got
message.”
tion before
We
only
Not
challenge
did Wilson waive his
disagree with the dissent’s comment refer
ruling by
district court’s in limine
failing
counsel,
encing
plaintiffs
for the clear
timely object
to renew his motion and
unambiguous language
holding
of our
disputed
evidence was
elicited at
provides
the Warner case
that an
by preemptively
but also
duty
informing the
objection,
has
to state an
and “even
incuiring
that his murder
displeasure
at the risk of
victim was a
court,
upon
objec
making repeated
officer as well
insist
reference
added).
(emphasis
tion.” 855
during closing arguments.
to that fact
Further,
Supreme
the United States
Court
During
opening
state-
has held
merely
that a motion in limine is
ment,
jurors, “you
his counsel stated to the
effect,
speculative and “a district
is will hear the evidence that he
[Wilson]
free, in
judicial
the exercise of sound
discre
killing Chicago police
convicted of
officer.”
tion,
previous
to alter a
ruling.”
in limine
Thus, before Williams’ counsel even
Luce,
41-42, 105
469 U.S. at
S.Ct. 460.
statement,
chance to deliver his
Wil-
judge’s possible rep
answer to the trial
upon
son took it
himself to advise the
to,
plaintiff-
rimand
dissent alludes
very alleged objectionable
information
appellant’s
only
counsel need
have asked the
(in limine)
exclude,
sought
that he
which
grant
trial court to
leave to enter a “continu
very
is the
same information
now
ing objection” specific enough to reach the
irremediably
claims
infected his trial.
dispute
purposes
evidence in
possible
DePriest,
In United States v.
F.2d defendant (1st Cir.1996), Thomas, tiff-appellant F.3d 537 in our to com- case] v. 83 Gill rights and a civil action plaintiff the filed evidence about plain about the admission of arrested alleged process that in the when intro prior conviction defendant license, driving with a revoked for in offending duced first fact him. to restrain excessive force officer used States, stance); 412 F.2d v. United Shorter plaintiffs denied After the (9th Cir.1969), denied, 428, cert. 396 U.S. 431 limine, introduced motion (1969); 454, 24 436 90 L.Ed.2d S.Ct. in an prior misdemeanors evidence of several Layton, 1227 v. 747 F.2d Nicholson sting” the ar- attempt to “remove Cir.1984). (8th anticipated impeachment tes- resting officer’s DePriest, although a defen- As we noted plaintiff later timony. See id. at 541. preemptively insert evi- dant’s decision to contending prior misde- appealed, upon party’s impinge dence somewhat excluded from should have been meanors ability anticipated effect of “to ameliorate testimony. The First held: Circuit by bringing it out on prior conviction attempt plaintiffs “remove [the While examination, decision direct the defendant’s tactical sting”] may have been a wise prosecution of deprive[s] the court and the decision, plaintiff] consequence, [the opportunity reconsider their stated “opened [the defendant’s] the door” to (cit- F.3d at 1209 positions on the issue.” 6 the misdemeanors cross-examination on Williams, 723); F.2d at see also ing any thereby potential evi- eliminated (“When Nicholson, par- at 1227 747 F.2d Moreover, having dentiary error. offered ty prior introduces the conviction on direct having re- the misdemeanors himself examination, party other he denies the strategic therefrom, [the ceived the benefit introducing ability forego such evidence complain plaintiff! cannot now be heard to ability to and denies the district court the such evidence was that his own offer preserve prior probity error.... To his in review the conviction reversible trial”). objection admissibility of the specific developed limine light of the facts appeal, for this misdemeanor convictions case, present that the argues The dissent plaintiff] should have refrained from [the disput- introduced the wherein the defendant himself, waited to see offering the evidence closing testimony during ed if introduced them on [the defendant] statement, distinguishable from our deci- cross-examination, so, objected then. DePriest, in which we held sion sum, plaintiffs] In own action of offer- [the right appeal a trial “defendant waives ing himself ren- the misdemeanor evidence ruling prior pretrial that a conviction court’s differently, dered it admissible. Or stated purposes impeachment ... can be used by offering the misdemeanor brought the defendant himself out when opportu- himself, plaintiff! waived his [the prior in his direct testi- fact of the conviction nity object preserve the and thus did not However, mony.” F.3d at 1209. courts appeal. issue for previously have held that circumstances (citations omitted) added); (emphasis Id. see parties where to a suit “invite error” Smiley, v. 997 F.2d also United States referring prior during open- to their crimes Cir.1993) (“An (8th objection to the ad- statements, party opponents are free to prior pre- conviction is not mission of regarding pri- those later introduce evidence appeal [the served defendant Segal, or crimes. See United States plaintiff-appellant case] Wilson in our intro- Cir.1988). (9th Segal, duces the evidence his direct exami- [djefense opening statement counsel’s omitted) nation.”) (citation added); explicit included several references (where Coursen, at 1340 trial court 764 F.2d for] conviction use [the defendant’s admissible, previously has 'ruled evidence government’s opening cocaine. The party plaintiff-appellant Wilson] [the no reference to co- statement included sting” to “take the evidence herself offers purchases, by evidence); caine use or to cocaine out waives United party From defendant’s Bryan, or witness. Cir. States *11 statement, opening government could sought exactly to be excluded. That is what reasonably anticipated have further evi- happened in this case. appellant’s dence of involvement with closing argument, At Wilson’s attorney examination, cocaine. direct On again emphasized jurors to they government stepped through “open very should “remember” the evidence that government inquired [a door” of wit- and now Wilson claims should have been exclud- previously] he had ... ness whether ed: bought from ... [the defendant]. cocaine you questioned When were on voir dire added). (emphasis Id. Segal court went brought up, you and these were said facts on to hold: you impartial could be and even fair evidence, A ruling admissibility on the of you my guilty out that client was found of objection, timely absent a will not result Chicago officer____ a killing police And alleged a mistrial unless error serious- you you impartial, said could be and fair fairness, ly integrity public affect[s] the or you and I am to to hold that. Now reputation judicial proceedings. of prospective jurors one said it would of view opening state- counsel’s of defense be put that out [his] mind. I difficult ... ment we conclude that no unfairness you put don’t want your out of jttdicial integrity adverse on reflection I want mind. to remember that Jack- affirming appel- results denial prison [Wilson] ie is in that this for lant’s motion mistrial. spends is where he life, the rest his (citation Id. at quotation internal bars. behind omitted) added). Thus, (emphasis it does not added). attorney Wilson’s re- make difference that the Wilson peatedly (or, “cop called his client a killer” during opening introduced the evidence alternatively, cop”), that he a “killed and on during statement instead direct appeared arguing one occasion
because, event, in either “opened “cop status precip- Wilson’s as killer” was a door” effectively as as if he had introduced itating factor in his beaten: during evidence direct examination. Wil- [Sjuddenly many other officers up come son not invite Williams to introduce the to the tier. What do these officers see? disputed by “opening evidence the door” and They know problem going there is a on referring specifically during opening to it n with man they know to be accused as statement, and then make an issue killing cop, they don’t know who disputed introduction of the evidence they fight, started know he is during defendant Williams direct examina- in____ they rushing involved and come tion. Suddenly they all control.... lost It Wilson’s comments the fact that he many doesn’t take that officers much Chicago murdered a officer not were down, time to hold one man they unless statement, limited to however. doing just holding are more than him repeated He went on make reference to they taking a down. Unless are shot at fact, and, question imp- the evidence in they, per- him he is a because believe bad remember, lored the delib- its son. erations, prison killing he was law enforcement It official. is not unusual they They had in control what said al- that, if party’s motion in limine to exclude they ready cop thought was a killer unsuccessful, evidence is will at- movant I think they had attacked officer. tempt impact to minimize the conten- pushed they him down the stairs. think trial by referring tious evidence at again. They opportunity. hit him had the damaging it evidence before is introduced They had the motive. , However, the opposing party. the movant using go cannot Wilson’s sta- overboard he did this case “cop strategic as a killer” own certainly jury eight tus for his cannot stress during opening closing purposes, times an effort statements to convince it very impli- should on the client. find for his This tack also has focus *12 i.e., criterion, the Wilson the third evidence question the of whether cations on clearly miscarriage justice.7 In explore a of those caused error” and himself “invited fact, summary judg- in granting upon It the Williams’ implications also bears below. suit, making ment motion Wilson’s initial the dis- By repeatedly question of waiver. ruled trict court that because Wilson’s exam- police a murder to Wilson’s of offi- reference ining injuries physician noted that his cer, voluntarily had the made Wilson’s nature, “superficial” in only were there was integral murder victim an occupation of of the no chance that Wilson’s account melee turn, Gill, and, in as under part his case of true. with Williams could be As discussed already cre- the waiver which reinforced greater detail the section on harmless during evidence ated he introduced the error, in favor the evidence of defendant now ar- Wilson cannot statement. case, disputed in this even without the evi- evidence, re- gue which he same dence, strongly supports verdict eight occasions ferred to different Williams, rendered in favor of the defendant. case, used a for his undermined as foundation Therefore, of of inclusion the evidence the fairness of his trial. Had Wilson wished occupation prior clearly victim’s did Wilson’s preserve “to the in limine justice. miscarriage not a of cause admissibility [prior] conviction[ ] of the appeal, this should have refrained from [he] noting It is also im worth himself, if offering the to see waited peachment purposes, under the law this of ..., so, and if ob- introduced [Williams] [it] Circuit, may in party-witness’ a examination sum, jected then. In own action of [Wilson’s] previously clude “whether the [witness] offering the ... evidence himself it rendered felony, of ... been convicted a what Gill, 83 at 541. admissible.” F.3d felony was and ... when the conviction was Robinson, obtained,” United F.3d States Standard, Applying C. the Plain Error (7th Cir.1993), eigh and in at least Err Admit- the Trial Did Not Court states, teen other as well as the District of ting Regarding Pri- Evidence Columbia, officer,” police “murder of or or Victims. officer, battery police assault of a is and/or objec felony part Because Wilson waived his be the name of of See, disputed e.g., tion to the admission of the evi the witness’ examination. D.C.Code (“Murder § of tri Ann. 22-2406 law enforcement dence on numerous occasions (“First officer”); § al, plain It Colo.Rev.Stat. 18-3-107 our review for error. is obvious is degree peace firefight or murder officer does meet from the record that Wilson not er”); (“Peace § Cal.Penal Code 190.26 offi standard, stringent error” “plain which murder; degree cers as victims of second life applicable “only in civil cases in the narrow imprisonment parole; special without circums way....” est v. Truck Ins. Ex Kafka tances”).8 Thus, in each of these (7th Cir.1994). change, 19 A jurisdic-^ tions, very fact that title and identifi plain permissible based on reversal error permitted cation of the witness’ conviction is only when three elements are there met: into evidence alerts circumstances; exceptional must exist sub police crime involved a officer. affected; rights mis stantial must be and a justice if carriage of will the doctrine is result Disputed D. Admission Evidence Stringel, 421. applied. not 89 F.3d at See Was Harmless. case, there has no been demonstra Lastly, extraordinary tion of circumstances. if one even were assume Nor inmate meet that there was no our fell does waiver and review homa, Island, Utah, Vermont, "[djecision "miscarriage justice” is a or West A Rhode legal proceeding Virginia. separate prejudi [a] outcome of that is taken care to enact stat- —have rights any battery [a] or substantial utes cial inconsistent with that criminalize assault and/or and, Dictionary party.” upon Law Black’s a law official committed enforcement ed.1990). headings specifically again, once have title which battery refer the victim of the as assault and/or Hawaii, officer, Connecticut, 8. Sixteen and thus would be mentioned other states— Louisiana, Iowa, Kansas, Mexico, reading or information at New Nebras- indictment ka, York, Maine, Missouri, Montana, New Okla- trial. was ings for abuse of victim is ted), States v. find ings see subject error was *13 garding (7th Cir.1995) (“We Cir.1991) (“[E]ven many those trials lead ments. Where a lishes interest have harmless-error tried conduct strong presumption [I]f United States error, harmless.”) (citations omitted); error, will not be reversal judgment the the record by repeatedly guilt the constitutional rules harmless. harmless.”). Farmer, in an the abuse defendant we will not reverse if that error occupation have occurred are criminal trials is to ensure that fairness has been satisfied and beyond impartial any, should be affirmed. As we overturned analysis. discretion.”) (citation erroneous developed stated, reviewing Saulter, 924 F.2d review a reasonable still not See admitting had fair that adjudicator, of Wilson’s murder discretion id. and correct counsel and was The thrust of the the Constitution any evidentiary evidentiary rul at trial estab- governing court (“Even any other errors evidence re proper, subject doubt, standard, there is a resulting 654 can United if we judg- omit find (7th rul the the to inson impeachment purposes, “we the prior crime victim are introduced trial.” the ed deprive “fair trial” garding Fed.R.Civ.P. added). missible to elicit the name and residence of conduct was harmless In that proceeding which take such action appears to the vacating, modifying, or otherwise disturb- simply must ing judgment stantial consistent court at whatever prejudice elicitation defendant’s demonstrates, The or for case, Robinson, disregard Robinson the We cited four factors which overwhelming. rights evidence of Robinson’s even when every identity after harm might 61 (emphasis resulting setting attempted the information: deciding any error or [the substantial stage of the proceeding 8 the does a defendant-witness’ of order, F.3d aside parties. litigant defendant] of improper have resulted from not [2] murder that it was did at 411 (emphasis added). unless refusal to conclude[d] the prosecutor’s Not affect verdict or for not justice. can receive a defect details re- only operate victim guilt court As the sub- mitigat- imper- in 'the trial.9 were Rob- fair was for in- limiting given, two instructions but the dis entitles criminal to a defendant fair
trial, trict judge told the perfect disregard not a one. Rose v. and internal Clark, 92 quotation 478 L.Ed.2d U.S. 460 omitted) 570, 579, (1986) (citation 106 S.Ct. improper them stricken. addition, questions [3] prosecutor answers never added). prior mentioned Robinson’s convic- tion successfully pursuing after im-
No in error either the admission proper questioning Finally, .... we note exclusion of evidence and no error or de- fect in any ruling or order or in anything [4] improper material takes up by by approximately done any pages or omitted court or three in a tran- parties ground granting 2,400 script for a new pages. which exceeds Although cross-examination, 9. only was Robinson our decision to sought the Government "amplify" consider whether perfunctory of a defen- question identification nature of the prior properly dant’s victim could admitted asked on direct examination and elicited testimo- 609, very recently, ny under illegal Rule in United Fawley States v. as to the names of the aliens. (7th Cir.1998), Fawley, eventually appealed. F.3d 458 this Court was convicted and de- analogous argued addressed issue of it whether was fendant cited to Robinson and that "elic- Government, aliens, iting error for the on cross-examination the names of the ... the Government trial, perjury of a unfairly witness the defendant’s was allowed to delve into the details of illegal by elicit the names of aliens Fawley, harbored Klehm's earlier conviction.” F.3d defendant, Fawley, charged witness. The was at 472. noted We that the cross-examination perjury, might § improper, with violation of 18 U.S.C. have been but went on to con- having grand jury proceed- prejudice lied resulting pros- an earlier clude that "the from the ing harmless,” against employer, questioning his Klehm. Klehm had ecutor’s of Klehm was multiple harboring likening Fawley's been on indicted counts of circumstance to that in Robin- son, illegal Fawley’s ques- aliens. At prejudice Klehm was which held that might tioned direct prosecutor's improper the defendant’s as to evolve from the he, Klehm, questioning whether had ever regarding been convicted of a defendant felony. responded Klehm had. that he conviction On was harmless. Id. omitted); complaint (internal if he made a such as also some citations see Id. (7th areas? Greer, struck in those Campbell Cir.1987) though there (holding that even significant A: blow If he had received areas, counsel ask no for defense one would reason or trauma those rape § action where trau- plaintiff expect to see some evidence of previously convicted oc degree. matic which plaintiff as a “con refer to the curred or to changed story Additionally, Wilson sev- statements, during opening rapist” victed eral times about how his altercation ... these excesses stand “we do not believe alleged He place. took Officer Williams trial.”); a new themselves warrant day- he was complaint Costa, 1325, 1332 Cir. Gora room, fighting noticed inmates in the two 1992) (notwithstanding fact that the de corridor, only began watching after *14 not admissible incarceration was fendant’s fight that did he aware of Officer become impeachment purposes, reference to such Williams, standing “right who was behind of “did not rise level incarceration story During changed. trial this [him].” error.”). reversible any in- that he never saw Wilson testified corridor, alike two are and al- that Although fight no cases mate in the and his alter- though may present factors have been some cation with Officer commenced Williams gate, present in when Bivens Red looked in Robinson which are not Wil- slammed (and versa), examining “spooked,” laughed at ex- vice after and Wilson Red’s son’s case fact, pression. In when asked on cross-ex- weighing comparing and factors and we’re amination whether left “[w]hat raised in to the evidence this Robinson here several different versions how this ruling, we that case court’s conclude and the correct, sir?”, began. Is that Wilson admitting incident ques- the evidence in error answered, First, “Yeah.” the evidence which tion harmless. attempt in an adduced trial Wilson testimony by corroborating offered The § both inconsis- establish his 1983 claim was fellow Bivens does not fare inmate compared to facts tent when those and weak that much Bivens claims Wilson was better. For supporting Officer Williams’ defense. many fifty times, forty as or kicked as example, that he was kicked Wilson claimed by independent a claim that is contradicted times, while his inmate in the head several changed evidence. Bivens also his medical (Wilson) was witness that he kicked testified story fight about how well he could see the Obviously forty fifty times. state- these In the between Officer Williams and Wilson. with each ments are at best inconsistent trials, § Bivens first of Wilson’s 1983 inmate are inconsistent with other. Both statements able how testified that he not been to see doctor examined on fight started because was the other Wilson, dispute, who party facing neutral in this gate By side of the and was Red. (i.e., opined “being contrast, ... would involve that lacked trial in the second injuries judgment [was] more than what now appealing), extensive whose Wilson is if present,” were kicked that and Wilson testified he saw Officer Williams Bivens times, fight. Additionally, be ... more numerous “there would start the whereas Wilson also bruising.” doctor testified testified Officer Williams was behind obvious that, gate, complained him Bivens slammed the corridor although of be- when Wilson had stated, back, head, groin affidavit which and Bivens submitted struck “over door, part, “After I shut the Mr. Wilson was rectum,” injuries superficial in were na- several feet behind Officer Williams.” ture not with such a and consistent were claim: hand, other the evidence which On the penis groin, A: and rec- examined support adduced at trial to his de- Williams tum, noted, I am quoting and I stronger fense was than Wilson’s evidence. here, that no bruises or there were altei-cation, example, after For Williams The— n of trauma. evidence physician who testified examined injuries as
Q: your were best described experience a doctor Based thus consistent with you expect there “blunt trauma” were would identity the incident. It victim’s as a Williams’ characterization of marshal was harm- interesting ample told less error in of other is also note Wilson view evidence guilt. Furthermore, one that he intend- the defendant’s of the corrections officers ass,” certainly Campbell, ed to demon- rights [Red’s] “kick a civil strating thinking inciting alleging that he was about action punishment cruel unusual arrived, officials, prison violence Red which turn Court held that al- though affirm support prosecution tends to Williams’ recita- introduced Finally, tion.10 Officer Cavallone testified details of statements the defendant’s way conviction, evidence, Hospital, rape that on to Cermak standing such by itself, having “already killed two boasted about Chi- did not warrant a In new trial. consideration, cago police thing “the next point officers” and that case under we wish that, Laymon, we are to do is take care of the blue out inas introduction jail.” Long shirts inside the Officer previously And evidence that Wilson had mur- incident, a month testified after dered a law enforcement officer was harm- Wilson, display volatility, light of his threw a less error in overwhelming evi- chair plaintiffs and stated that he hated Officer dence of guilt. stopped
Williams his assault on because The dissent likewise comments “under inmate a month another earlier. Federal Rule of Evidence 403 relevant even addition, there are other Robinson fac- be excluded the trial *15 lead to that probative tors which the conclusion the determines its that value is ‘sub- dispute stantially by evidence in was harmless. For in- outweighed the of unfair danger stance, Robinson, by prejudice____’ influenced Similarly, permits were FRE 609 impeachment the the disputed up by fact that evidence took evidence of the conviction of trial, very comprehensive crime, in a little time ob- a but the court is cautioned to serving improper weigh that “the up against takes the evidence prejudicial its material approximately pages three in a trial exactly tran- effect.” This is what occurred in this 2,400 script pages.” which exceeds 8 F.3d at case—in making ruling, his in limine the Similarly, carefully 411. the judge prejudi- defense counsel’s refer- trial considered the disputed ence to the evidence the case at cial effect plaintiffs of the introduction of the approximately page prior killing officer, hand totaled out police weighed one of crime of a against probative this the value of the evi- dence, ultimately and the determina- made addressing possible In the error of intro- tion to allow the evidence into trial. Al- the victim, ducing of evidence Wilson’s murder though may agree the dissent not with the the unsupported dissent makes the assertion decision, by experi- court’s it was made by that majority none “of the cases cited the enced, competent judge. fair trial and Even anything prejudicial ‘cop involve so as the if the dissent not have made the same description.” contention, unsup- killer’ This decision, it not does rise to the level of dissent, ported in the flies in the face of the prejudicial error. our sister have conclusions circuits reached considering introducing safeguards the error diligent of The the dis- taken grisly trial the of other trict details defendants’ court case dire were this voir example, crimes. For in United similar to used the States those to alleviate same (10th Laymon, problem Cir. In Robin- arose Robinson. 1980), case, possession son, the limiting firearms Tenth the court issued instructions police Circuit that a helped jury properly held officer’s statement which that the insure evidence; previously at trial the weigh defendant had in the instant case the murdering been of magistrate judge presided thorough convicted town mar- over a require grant fact, shal did proceeding. not the trial court to voir dire In it would be a mistrial because the reference to thorough to envision a more and difficult making agreed 10. At Wilson denied such a threat to with Cameron that Wilson indeed Officer However, perhaps surprising- threat, Officer Cameron. merely dismissing made the the threat as ly, ment, attorney, closing argu- own in his (“He say, "idle chatter” wouldn’t I’m stressed truthfulness of Officer Camer- it.”). kick his ass if he meant ("Officer is.”) like Cameron tells it it sworn, every potential prior to After each dire. voir Just prejudice-mitigating court, asked, among questions, magis- juror into was other calling jury venire impartially be consider the judge counsel to discuss “will able to met with trate express as well and render a ver- proposed, he this case questions fair insuring upon a fair and shown principal objective of based the evidence it is dict verdict, stating: mur- plaintiff has been convicted impartial of (emphasis a Chicago der agree, and I suggested, The also officer.” of added). their deci- jurors Two stated that fact that this evidence in view of the evidence, might be such prior vic- sions identity of Wilson’s to the [as influenced immediately also, they discharged in, were coming that the tims] jurors, queried whether service. as to potential ver- impartial a fair and they could render imperative forth believe it is to set We in this case the evidence dict and consider particularity voir dire conducted plaintiff has if it even is shown “meticulous, thorough, clear because Chicago murder of a convicted of been jurors questioning potential of about concise police officer. prejudices,” ... beliefs and United their Hoffman, 806 F.2d States My getting Cir.1986), denied, interest cert. U.S. possible, render a verdict. (1987), extent will can S.Ct. 95 L.Ed.2d reduce fair perfect that the might It not be a possible error to a an otherwise reversible get a trial And that’s defendant, Hoffman, harmless one. fair defendant time. interest Court Moon, Myung follower Reverend Sun threatening added). convicted President magistrate States, allegedly out United of his dissatisfac nothing in address- short meticulous imprisonment tion over Reverend Moon’s questioning the venire to ensure ing and appeal, argued tax evasion. On Initially, spoke prospec- trial. fair *16 “many their fel- emphasizing Americans look askance on jury group, a tive members as join style in citizens such cult Eastern importance impartiality fairness and low who therefore, duty: religions,” “the of his the exercise of their prior with Moon affiliation Reverend would striving with our we will be for What likely jury cause a to treat a defendant it the liti- questions you to is to obtain for much knew to be a Reverend Moon follower jury a who will gants of men women unfairly more than it a defendant would impar- they can to fair and do the best be religion jury whose was not or known reaching tial in them decision. We seek religion whose was known to be a mainline any sympathies jury who is without bias or omitted). (internal quotations one....” If one Id. party or the other. towards one manner This Court that the meticulous impartial that cannot an held feels he or she be mitigat- in which the dire was conducted juror, he or should so indicate to voir she attorneys to at the ed the deleterious effect of that or one of Court you. questions posed to the defendant was affiliated with Reverend time when the are And held to Moon. the factors that we be you your in it Now once are sworn is certainly present are in curative duty honestly questions to answer all the Hoffman Specifically, instant the trial case. posed you that we can assure our- so jurors poten- expressed dismissed two who jury qualified that have a who selves against prejudice Reverend tial bias impartial ques- will render a fair and id. at 710 Moon’s Unification Church. See posed you so we can assure tions added). (emphasis as the voir dire in qualified jury have a who Just ourselves that we trial, helped a fair so did the impartial decision insure will render a fair and Hoffman dire in case before case. voir us.11 this fraught prejudice.” prejudice against may not be communities be McCormick, intense 11. The murderers religious (1954) experienced by § dissimilar to that some Evidence explained, groups. added); As one notable commentator Wigmore, § see Evidence also ... with some "the disclosure of affiliation (Chadbourn Rev.1970). enacting Congress, in sect, many strange unpopular will often ” Furthermore, right killing Chicago police officer, has a “[t]he even be- any ... under law to hear witness opportuni- counsel Williams had an fore for felony that is or can be consid ty added). has a record jury (emphasis address It impeaching.” ered to United States v. attorney was Wilson’s who elicited testi- first (7th Cir.1994) Toney, 27 F.3d mony regarding Wilson’s convictions (citation omitted). probable is more than It robbery murder and armed on direct for jury, having not that a after been advised Furthermore, examination. it was Wilson’s previously a witness convicted of- who, during closing argument and murder, regard the assailant very at the last minutes of the referred light. Campbell, unfavorable 831 F.2d at See to the occupation of the murder victim an (the predominant assumption underlying effort to convince the that it was more per Fed.R.Evid. 609 felons is convicted likely than not that Wilson was beaten be- jure frequently than themselves more law- “cop cause he a killer”: citizens). society abiding But since is in you put [Wilson’s don’t want convic- every person intentionally clined to view murdering Chicago tion police officer] life of takes the an innocent human as your out of mind. I want to remem- unlikely reprehensible, jury’s it is that the ber that in prison [Wilson] Jackie disapproval of Wilson would have been ele spends this where he rest significant degree vated when it life, of his behind bars. gained knowledge police that his victim was a seem, police Sad as it officer. officers [S]uddenly many up other officers come frequently too are all killed in the line of to the tier. What do these see? officers fact, duty. In 1994 to most They problem going know there is a available, year are more recent records than they with a man know be accused police feloniously officers killed in were cop, killing they don’t know who light the United States. of the fact that fight, they started this know he is sadly the murder of officers has risen in____ they involved and rushing come occurrence, level of not an uncommon Suddenly they all lost control.... It unlikely jury’s disapproval it is that the many doesn’t take that officers that much particularly Wilson was This is increased. down, they time to hold one man unless instance, jurors true since just doing holding are more than him questioning, their voir dire assured court they taking down. Unless are a shot their decision would not be affected *17 they per- him because believe he is a bad they hear that the victim should murder was son. (Wilson’s attorney police officer did not object questioning). to the voir dire And why Laymon
this is the Tenth Circuit in held They al- they had control what said jury was that it “harmless error” for the ready thought cop they was a killer previ hear evidence that the defendant had they had attacked an I think officer. ously shooting been convicted of law en pushed they him down the stairs. I think official, forcement a “town marshal.” 621 They hit him again. opportunity. had the F.2d 1053. They had the motive. “A party ... cold’ cannot blow ‘hot and considering When whether the evi during par litigation. the course of aWhen regarding dence victim Wilson’s murder ty pro position legal assumes a certain error, forget not that caused should Wil ceeding maintaining and succeeds in attorney any potential son’s own escalated may earlier, position, not thereafter assume error. As noted it was Wilson’s who, statements, contrary Envirodyne position.” Lumpkin v. opening Indus., Inc., initially jury made the aivare it 933 F.2d 460 Cir. “will 1991) (citations quotations hear evidence that he [Wilson] was convicted and internal omit- Evidence, recognized religion purpose showing Federal Rules of ... for the nothing much said about law enforcement credibility of their nature the witness’ reason prohibited "[e]vidence officials when it the use of impaired or enhanced.” Fed.R.Evid. 610. opinions of the beliefs or of a on witness matters 1096
ted). ground ad- obtaining a reversal on introducing the By evidence waived And if had not jury by attempting to vances. even Wilson prior crime to dis- right appeal and we assumed the “cop a substan- as a killer” make status incorrect, ruling (as judge’s above, trict in limine was arewe part tial of the case noted not entitle such error is harmless does in his that Wilson succeeded not convinced ato new trial. Wilson effort), argue cannot now Wilson error. evidence caused Af- the district court The decision of object Lastly, not firmed. likewise did Wilson testified Wilson WOOD, JR., when Officer Cavallone Circuit HARLINGTON having Chicago po- bragged killed two about Judge, dissenting. (on ap- not appeal, does lice officers very sympathetic case This is not a Officer Cavallone’s peal admission of might appear it to be which to dissent since testimony). jury heard properly thus cop If this of a “convicted killer.” behalf he had murdered Chica- Wilson’s boast that sympathy, matter I not be were a likely that the go police It seems officers. dissenting. It an to what is instead with the
jury could have matched this boast
rule
regard as an
and unrealistic
inflexible
(properly)
that Wil-
that it
heard
practice being imposed
trial law-
of trial
on
convicted
murder. Al-
son had been
yers who
face similar difficult circum-
statement,
though
making the
Wilson denied
in the
stances
future.
jury
obviously
probable that a
it is
more
making this
diffi-
Another reason
dissent
and not Wil-
would have believed Cavallone
majority has
for its
support
cult is that the
underly-
predominant assumption
son:
motion in limine is
view that
unsuccessful
felons
609 is that convicted
Fed.R.Evid.
appeal
preserve
an issue for
insufficient
than
perjure
frequently
more
themselves
though
general
this
issue
even
in this circuit
law-abiding
Campbell,
See
831
citizens.
My
partially
view
has been uncertain.
Thus,
likely
it
F.2d
seems
Hoppin,
783 F.2d
set out Cook v.
regarding
the convic-
even
the evidence
(7th Cir.1986),
held
n. 2
which
that once
admitted,
still
tions
not been
limine,
determined,
a motion in
court
aware that
convic-
would have been
Wilson’s
admissible,
certain
evidence
pertained
Chicago po-
tion for murder
to a
seeking
party
exclusion was free to treat
its
lice officer.
ruling
as the law of
and could
case
far as
admission of the evi-
go so
to seek
III. CONCLUSION
waiving
himself without
his earlier ob-
dence
during plaintiff-appellant
Because
jection to
See
v.
its admission.
also Favala
statement,
introduced
Co.,
Engineering
17 F.3d
Cumberland
fact that he had been convict-
(7th Cir.1994);
v.
Title
Allison
Ticor
murdering
ed of
officer even before
(7th Cir.1992);
Ins.,
1187, 1200
979 F.2d
it,
mention of
and because
Williams made
Costa,
(7th Cir.
Gora
object at
of the two
Wilson failed to
either
Davis,
1992);
n.
Harris
disputed
was elic-
instances that the
(7th Cir.1989). Additionally,
not
I do
be
*18
by
defendant-appellee’s
at
ited
the
witnesses
by
majority
of the cases cited
the
lieve
trial, and
Wilson
the dis-
because
referenced
“cop
prejudicial
the
anything
involve
so
as
closing
in his
puted
seven times
evidence
description.
description
I view that
killer”
it
the
argument
to make
the focus of
totally unnecessary
impeachment pur
so as
for
closing argument,
has waived
it
admitted.
poses,
Wilson
the reason for which was
right
in limine
had
appeal
plaintiff
the district court’s
fact that
been convicted
The
that
im
opinion
enough
are also of the
have been
for
decision. We
murder should
the
satisfy
plain
going
error
without
into
peachment purposes
failed
the
Wilson has
to.
such,
“cop
standard,
the murder.1 The
precluded
prejudicial
details of
and as
is
See,
Fawley,
disposition.
e.g.,
consistently
when a
United States v.
1. This
has
held that
circuit
(7th Cir.1998) (citing
prior
impeachment
F.3d
473-74
Unit
is introduced
conviction
Robinson,
8 F.3d
Cir.
purposes
ed States v.
under Federal
of Evidence
Rule
Gora,
1330;
1993));
Campbell
only
properly
that is
admissible
the
information
(7th Cir.1987).
offense,
Greer,
date,
It is
the
title of
is tire
only
jury
killer” evidence could
inflame the
counsel renewed
his motion
exclude the
nothing
adding
impeachment
already
while
“cop killer” evidence
ruled on ad-
felony
quality
by
of the
conviction.
versely
judge just
day
the trial
before
began.
trial
It
again
was
denied. Wilson’s
impeachment purposes,
gener-
For
there is
then
counsel
stated to the court that as a
ally
allowing
no
error
evidence that
result of
court’s continued adverse evi-
However,
is a
felon.
witness
convicted
under
dentiary ruling,
“I’m
to need to ad-
Federal Rule of Evidence
relevant
even
my opening.”
it,
dress that issue in
As I see
judge
evidence
be excluded
the trial
good
except
had no
counsel
choice
to mention
probative
determines that its
is “sub-
value
it
first to
in an effort to minimize the
stantially
by
outweighed
danger
unfair
impact
“cop
adverse
killer” evidence
prejudice....”
Similarly, FRE
permits
Otherwise,
when it was admitted.
impeachment by evidence of the conviction of
might reasonably think
that very
ad-
crime,
but
the court is cautioned to
something
verse
plaintiffs
evidence was
weigh
against
prejudicial
evidence
its
intending
had
counsel
been
to hide. Plain-
problem
effect. The
arises where the nature
consequently
subject
tiffs counsel
raised the
I
particularly
put
crime is
offensive.
opening
in his
as he had advised the trial
“cop killer”
category.
evidence
To
do,
judge he would
stating,
have to
“[Y]ou
plaintiffs felony
describe
conviction to
will hear evidence that [Wilson] was convict-
unnecessarily
substituting
that extent
risks
killing Chicago
ed of
police officer.” That
prejudice
legitimate impeachment.
generally accepted
is a
trial
tactic when
rights
by
This
brought
civil
suit
plaintiff knows there
unavoidable
adverse
plaintiff
against
inmate
a corrections officer
certainly
evidence ahead and is
not “over-
plaintiff
in the institution
where
was
purpose.
board” or excessive for the
In con-
charge.
alleged
held
his murder
Wilson
trast,
exploited
defendant’s counsel
the reve-
the defendant attacked
without
him
very beginning
lation at the
of his opening
provocation.
“cop
Even a
killer” is entitled
argument by stating:
to a fair
could not
receive
respect
[opposing counsel],
all due
With
permitted
the trial
court
than the
more
things
he left a
believe
few
out.
I’d like
fact of conviction of murder
to be used
Wilson,
litigant,
to reintroduce the
Jackie
describing plaintiffs
majority
conduct. The
cop-killer,
Chicago
murdered a
officer who
objection
views the
plaintiffs
the details of
duty,
was on
Officer
He
O’Brien.
also
having
by
crime as
been waived
plaintiffs
robbed Officer
He
O’Brien.
was convicted
objection
counsel’s failure make an
at the
of that. He also
Officer
robbed
O’Brien’s
challenged
time
was offered
partner,
Fahey.
Officer
He was also con-
trial and
because
was the one who
And, yes,
of that.
victed
is the crime
brought
first
jury’s
the evidence to the
atten-
waiting
he was
trial on
1988 in
back
case,
tion.
the circumstances of this
how-
County
Cook
Jail....
ever, I do not
believe
this constitutes
it
regard
waiver. To
as a waiver when the
was the
testify
first witness to
already
plain-
ruled twice on
immediately following
called
ar-
tiffs
legitimate
encroaches on the
guments.
On direct examination
tactical choices counsel should have available
counsel,
Wilson testified to his
convic-
in those circumstances. That can
illus-
tion,
date,
giving
offense,
title
trated with an
happened
outline what
disposition. He did not introduce the identi-
this case.
evidence;
ty
brought
information
day
out
plaintiffs
after
defense counsel on cross-examination.
written motion
*19
denied,
3, majority
limine was
June
trial While the
United
the
relies on
States v.
DePriest,
began
Cir.1993),
following
selection.
into the extremely details of the conviction. While the error in case is type subject prejudicial error of this to a harmlessness and cannot be as dismissed harmless. opens the a witness error. Even when ... less can be used prior conviction that a prior of his con- slight amplification door to when the defen- impeachment purposes of victions, not allowed defense counsel is prior the fact of brought out himself dant crime, parade it lov- “harp witness’s on the testimony,” id. at 1209 in his direct conviction gruesome in all its ingly before Williams, 939 F.2d (citing States United details, thereby the focus of atten- shift (9th Cir.1991)), present case is events at issue to the witness’s tion from the While Wilson distinguishable from DePriest. Robinson, 8 F.3d prior in a case.” conviction on di- his conviction to the fact of testified 707). (citing Campbell, 831 F.2d at 410 brought rect, out identity evidence case, coun- only did defense present not coun- defense only on cross-examination impermissible evidence elicit the sel only challenges appeal, Wilson sel. On cross-examination, argued it to detail, he does additional of this admission closing opening and jury in both admissibility of the evi- challenge the not emo- way designed in to arouse statements direct. brought out on dence which he plaintiffs counsel Additionally, while tion. closing in his counsel Then defendant’s identity several times evidence addressed “cop killer” exploited further argument a reason- closing argument, this was in his im- beyond any legitimate far information damaging evi- attempt mitigate the able in the fol- as can be seen peachment needs already been point that dence which at closing counsel’s lowing portion of defense by the defendant. On introduced at trial effort was made show argument. The objec- after the the trial concluded June murder convic- Wilson’s similarities between evidence had been admitted. tionable suing which he was the fracas for tion and oc- majority claims a second waiver The officer: the corrections again did not plaintiffs counsel curred when in talking the evidence But about let’s start was ac- object prejudicial case, 23, 1988. have a June the case. We That would have been tually offered at trial. jail pending in trial on a Mr. Wilson objected plaintiffs time counsel had the third charged with the charge. He is serious days and the second period in a of a few My police officer. co-counsel murder of a During that objection within a few hours. up. Mr. Wilson brought ... Called nothing new that devel- trial there was short absolutely true. Mr. Wil- cop killer. It is way any in as oped have been seen that could what, deny know we it. You son didn’t judge’s Nor changing the mind. possibly play your pas- bring up didn’t very judge’s memory have to be would sions, brought up for one motion plaintiffs renewed long to remember reason, right your know and simple your again affirmed his in which he had limine on with, dealing we’re right to know who just a few hours before.2 denial a vio- somebody here who has committed cited and the other cases York authority, a against person lent act majority ruling that the on the motion hold uniform, much like Officer figure, a man appeal to is not sufficient on limine alone 23rd, in uniform on June Williams was objection the same preserve the authority. He’ll This man dislikes 1988. during trial objection raised must be given the chance violent acts commit In this to be admitted. when the evidence is time. case, objection was raised the second impeachment argu- just an That was not trial, just opening statements. Wil- before ment, plaintiff make effort to blatant open- testimony immediately followed son’s man because of out to be a bad again inter- Had counsel ing statements. conduct, commit further vio- that he would make the same rupted the trial to authority time, justi- when- against those have been lent crimes would third Therefore, many it asking plaintiffs chance. counsel how got fied ever deny plaintiffs prevail not to have to should times he was follow message. plaintiff got the prejudicial motion before against an officer. This civil case such a plaintiff to renew the motion merely need for harm- cannot be excused situation p.m. concluded 1:40 in limine soon 2. Plaintiff renewed his motion day. began proceedings a.m. on June same at 11:00 after *20 short time after its denied should be superfluous requirement as a
viewed and the
failure to do so should not constitute waiver. circumstances,
To find my waiver these
judgment, raises artificial barriers to a rea- accepted practice,
sonable and creating trap good without reason. I would follow majority cases this circuit which
hold that an unsuccessful motion in limine is preserve
sufficient to appeal an issue for
without contemporaneous the need for a ob-
jection, when, particularly case, inas this it happened
all couple days within a
nothing happened had might be a basis possibly for the change ruling.
See,
Favala,
e.g.,
(citations
omitted); Harris,
I only prejudice. see no The error admitting identity evidence cannot be viewing
considered harmless when the trial
as a whole. The had an adequate and, issue given similarity between inflammatory
the incidents and the nature of evidence, its admission have jury’s
substantial effect on the decision. It is
not the fault of this court that the ease has fairly
not heretofore been go tried. It should give
back “cop convicted killer” fair trial on rights his civil violation claim. must, therefore, respectfully dissent. America,
UNITED STATES
Plaintiff-Appellee, (Ted) BERKEY,
Theodore
Defendant-Appellant.
No. 98-1221. Appeals,
United States Court of
Seventh Circuit. * Sept.
Submitted 1998.
Decided Dec. * September On Defendant-Appellant quently, this case was decided on the briefs of argument. filed motion to parties. waive oral Conse-