*2 BAUER, Circuit Before SWYGERT EAST, Judge.* District Judges, and Senior BAUER, Judge. Circuit Plaintiff-appellant Larry R. in- rights stituted this civil action under 42 against defendant-appellee U.S.C. § Winkler, Sergeant Robert L. who was then Sheriff, deputy with the Office of Du- Page County, sought Illinois. Saladino damages injuries and other relief for alleged sustained as a result of Winkler’s disarming use of excessive force in plaintiff. Winkler on the dеfended imminent, that he was in fear of great bodily harm and was therefore enti- deadly tled to use force self-defense. * Judge East, Oregon, sitting District of District Honorable William G. Senior designation. on the front seat of the car. Winkler From entered defendant, loudspeaker: verdict in favor of the Saladino then over his “Do you said appeals. We affirm. shotgun They have a in the car?” did not up; look Kubacha then exited. He asked again if there was a *3 Saladino, April
On while she answered “No.” Kubacha, Joyce stopped his point opened At that Saladino the driv- Winfield, automobile on Mack Road near car; er’s side door and started to leave the DuPage County, got Illinois. He out of his partially he was hidden the doоr. Wink- shotgun discharged car with a it at a car, shotgun ler him if he had a in asked the stump, target practice. tree purportedly for said, “No, plaintiff we don’t have a He then returned to the car. shotgun.” Winkler testified that Saladino Black, Stephen teen-age boy who lived then reached into the car and Winkler back nearby, episode saw the and told his moth- shotgun said he heard the mech- sound DuPage County er. Mrs. Black called the being he heard a anism activated. Next complained. Sheriff’s Office and Defend- plastic empty like that of an hollow sound Winkler, sheriff, ant Robert deputy L. striking pavement. shotgun shell the was sent in squad a marked car to investi- Winkler, According to then Saladino gate. on, lights With his car siren car, рulled shotgun stepped the out of the scene, Winkler drove his stopping to the car door, raised the open from behind the car within ten feet of vehicle located Saladino’s position, pointed it shotgun firing to the diagonally across the street. said, directly at head and According evidence, to Winkler “Now, time you freeze!” It was at this get ordеred Saladino and Kubacha to out of that Winkler drew his service revolver obeyed their car. Kubacha the order and fired at Saladino. approach started to squad the car. Winkler shot, began After Kubacha Saladino was halt; told her to she did so. Saladino left said he going through purse; Winkler his car from the driver’s side. Winkler gun. At this might feared she too have a shotgun asked him if he had a and Saladino again reaching for the time Saladino was said “yes.” He went back into the car to stop. him to shotgun; Winkler ordered get it out presumed because he from the through her Again began going question that Winkler wanted him to do so. purse; plaintiff again tried to reach yet Plaintiff stated brought gun that he out forced gun. Warning that he would be pointed car with the barrel in the air. plaintiff advised again, to shoot Winkler He bringing admitted that in handcuff- shotgun alone. After leave the out of the car he pivoted toward defendant Kubacha, an ambu- Winkler called for ing and that his left hand was on the barrel and administering first aid to began lance and right his According hand on the stock. Saladino. testimony, in he was the act recall she did not Kubacha testified that of turning weapon deputy over to the anything when Winkler if said sheriff mag- when Winkler drew his .357 shotgun, and that him if he had a num caliber revolver and shot Saladino gun pointed in the air held the through the abdomen. The bullet shattered car. when he withdrew it from the cord, spinal his resulting paraplegia. in Saladino, Stephen Black tеstified Winkler’s version of the incident is differ- taking gun held it for a from ent. approached Winkler testified that he it toward period of and then lowered squad Saladino car in his marked car Winkler. lights with all flashing. and Ku- bacha complaint alleged sat in the car and did not acknowl- Plaintiff’s that Wink- edge presence. doing shooting in him They were some- ler’s use of excessivе force thing liberty deprivation which involved the area between constituted a two inconsistent statements she process of U.S.C.
due
of law violation
concerning
given
previously
Winkler defended on
§
imminent,
that,
The record
that Ms.
being reasonably in fear
the incident.
discloses
harm,
open
she
great bodily
justified
using
Kubacha admitted
prior
Trial was
inconsistеnt statements to
deadly
given
force in self-defense.
had had
solely
police,
on
and we therefore
liability,
the issue of
on Rule 613 of
in favor of
tiff’s reliance
the Federal
returned
unanimous verdict
misplaced.
court entered
the defendant. The district
Rules of Evidence
verdict,
challenged testimony
judgment on the
we find the
as relevant to the credi-
subsequently appealed
properly
from that
admissible
bility
of the witness.
Court.
II
*4
III
appeal,
In his
on
first
also
that the dis
Saladino
contends
deprived
contends that he was
of a
Saladino
permitting
trict court erred in
the defend
trial due
in evidence
fair
to the admission
in
prove
plaintiff
legally
ant
was
to
prejudicial testimony
irrelevant
elic
of
and
the time of the
The
toxicated at
incident.
by
defense
cross-exami
ited
counsel
plaintiff’s intoxication was introduced to
plaintiff’s witness, Joyce
of
nation
Kuba
judgment
impaired
show
was
when
that his
argues that
Specifically,
cha.
Saladino
the
was
the incident occurred. This evidence
improperly
court
allowed
counsel to
defense
the
relevant to
issue of the reasonableness
inquire
relationship
into
with Ms.
of
conduct at
the
Kubacha. We find this contention to be was
admissible
therefore
under Fed.R.Evid.
without merit.
partiality
witness
we
value
probative
401. Nor do
the
properly subject
trial,
exploration
to
at
outweighed
substantially
of this
as
evidence
credibility
relevant
to
of the
the
danger
by
prejudice.
the
of unfair
Fed.R.
weight
given
witness and the
to
make
Evid.
This evidence tends to
testimony
Alaska,
by
jury.
the
Davis v.
probable
plaintiff
more
that the
acted
308, 316,
U.S.
94 S.Ct.
shotgun on the defendant not to have objection overruled, The was wit- threatened the defendant’s We con life. “I wasn’t aware that ness answered: even clude district not court did abuse my The license was revoked at the time.” its admitting plaintiff’s discretion in testi transcript following: then refleсts mony as to his awareness of the unlawful Had it been? ness of his for the of purpose conduct show A. revocation I had was in The last ing plaintiff’s state of the time mind at of years prior, eight ten October of the incident. years prior time. There no that time.
revocation at V Q. Did have a license time? We have examined the other and, record,
argumеnts in view of the find moved My had to Miami. license them equally without merit. The had been at that and I had revoked appealed affirmed, gotten from is the Clerk of been Miami license. driv- There aspects are two other up until that time. And I this situa- on that York, just then I came tion detailed which bear discussion.
moved to New First, here, despite the going to transfer and was relevant, that a revocation would be over, and I was not aware that there was absurd to aiming infer that Saladino was any revocation. at defendant because he feared Object to the entire being driving arrested for without a license. Honor, questioning, your line of a revocation driver’s it, move move to strike for a mistrial. years than six license 1968—more before objection THE COURT: is over- shooting incident —was so remote in ruled. Motion denied. time that its irrelevance is obvious. The Thereafter, representation, despite his de question to the initial should have attempted prove fense counsel never been sustained. automobile Second, it is reversible error for an attor- At the without a drivеr’s license.* close of ney, laying after a foundation for an evidence, all asked that certain question impeaching answer to a and after evidence, including relating to his driv produce promising the court that he will revocation, er’s license be struck and for a evidence, impeaching good to fail to make responded: mistrial. Dеfense counsel Bohle, promise. on his United States v. Honor, Your admitted 1971). F.2d 54 revoked, that his license was so that has (2) The record quoted must be at some been established. length place in order to in context another In view of the feelings Court’s prejudicial requiring error reversal. On this matter it should not become cross-examination of Kubacha the рrejudicial, I go did not into the matters occurred: exhaustively or upon elaborate them. It I have WITNESS: come to know has been by competent established evi- well, yes. him dence that opened liquor there was *6 you Did [Defense counsel]: course, and of the Court will take time? judicial notice of the violation. No, A. not really. It has been establishеd that he was Q. you spend Didn’t as much as license, driving without a and that maybe 20 hours a week with him? plaintiff has I go admitted it. didn’t shooting hap- A. In the week that the back highlight on it and it because the that, no, pened, yes. In the weeks before Court didn’t feel we should do these occasionally. I’d see him things. It was admitted for that sole Q. you spend Where would this time? purpose, for a рurpose. limited Objection. Move [Plaintiff counsel]: The defense the record counsel misstated to strike. judge when he told the it had been THE COURT: Sustained. “established that driving After this occur- [Defense counsel]: license.” Plaintiff stated rence, police interrogate did the officers Illinois license had been revoked more than you? earlier, years six subsequently аnd that he Yes, they A. did. moved to Miami and obtained Florida Q. They questions about what driver’s license which driving you happened? saw and what at the time. Plaintiff testified that he did Yes, they A. did. not believe he on a revoked license. Q. You gave them a statement?
* brief, possession and in his defense counsel At oral admitted that he was in driving record. tiffs
1217 any point material talking, A. I wаs I didn’t know—I They issue. dealt happened couldn’t even recall the road it entirely with an collateral matter. Under right they on. It was after that took me circumstances, such impeachment is not brought station. I was into permitted. Battaglia, United States v. 394 room, people and there was a bunch of (7th 1968); F.2d Cir. Head v. Halli- there, just questions. answered Co., burton Cementing Oilwell 370 F.2d don’t know it was a statement. I didn’t 1966); contra Cir. United States v. know it was anything, any Barash, (2d 1966). 365 F.2d a, know, you kind of it would be per Credibility thing; improper se is one anything. just recorded or told them to impeachment credibility to affect is quite the best my knowledge hap- what another. pened, trying but I was protect some prejudice To the foregoing caused people, just аnd they wrote down whatev- errors was added the prej- reversible undue er I said. I don’t even recall what said. by plaintiff udice suffered because of the Q. And then you went back several improper conduct of defense counsel. days later? (1) opening In his statement counsel was Yes, I did. permitted over to tell Q. you gave And then them a differ- was married and hаd a child ent statement? day and that of the occurrence Objection and move Kubacha; Joyce he was with counsel stated to strike it for the my reasons stated in home, that when went to a friend’s motions in chambers. there; girls “there were two Mr. Kennedy’s goes This to credi- [Defense counsel]: another, girl Joyce They Kubacha. bility, your Honor. there, lunch, stayed they they drank THE COURT: Overruled. may She beer, P.M., they left about 6:00 or 6:30 answer. Joyce Kubacha.” you Did not? (2) During the cross-examination of Mrs. ****** Black, Beverly defense counsel asked well, Okay, yes; WITNESS: it whether she feared retaliation for testify- wasn’t a just different statement. It was ing. following: The record shows the discrepancies there were a few Q. This other conversation that Mr. where I day happened was the referring Kincaid was to was sometime during the day, just and I told them that Deputy after when Israel called Kevin’s, there, was at and Debbie was back? and that’s about it. *7 right. A. That’s And then I knew hap- what road it pened on happened, Q. afraid, because when it You were a frankly, little wasn’t even sure what road it was. I told time when Israel called back Schaftner, something, which is about testifying fear of retaliation by the other side of Mack Road. kids, you? weren’t It is apparent foregoing from the that when testifying, was concerned about she was questioned by first offi- yes. cer, attempted to hide her rela- Q. And it was retaliation from others? tionship plaintiff prior shooting. Objection, your [Plaintiff cоunsel]: Defendant that he did not seek to Honor. I move that be stricken. show extrinsic evidence an inconsistent Yes, THE COURT: sustained. statement, but discrepancies that the even I move for a mis- [Plaintiff counsel]: if not introduced to show whether defend- trial. ant acted reasonably day question, credibility. relevant to her It is obvious THE COURT: And the is in- the inconsistencies did not relate to disregard structed to it. objection question to which an only
sustained have been could asked in COMPANY, REYNOLDS METALS prejudice jury. order to Plaintiff-Appellee, (3) The record shows the occur- v. closing rence of de- AMERICA, ALUMINUM COMPANY OF fense counsel: Corporation, Corpo- and National Can Now, I don’t think Saladino set ration, Corporation, Defendants-Ap- out to intentionally. do this I think it pellants. was a combination of all of things, these 78-1909, Nos. 78-1910. knowing all of things, these not wanting things light,
these plus, come to unfor- Appeals, United States Court of tunately at the a little too much Seventh Circuit. changed beer. That personality. confession, Argued If I were to Jan. 1979. make a I would now, tell openly, and candidly, Decided Nov. if I drink, have too much to Rehearing Rehearing En Banc changes my personality. Denied Jan. object to what counsel, happens to your Honor. Well, Honor, your
would like to myself. join strike it
the motion. Yes, COURT:
sustained, and the jury is instructed to
disregard that remark. does, If anyone
[Defense if a counsel]: person does,
reasonable this occurs.
It is axiomatic that it improper for coun-
sel to talk personal experiences in
summation. He is not a witness and cannot
assume that role. The fact that the state-
ment was struck even at the instance of the
offending counsel is of little or no conse-
quence.
The foregoing prejudicial events which
occurred during the together trial with the
improper counsel, deprived conduct of
tiff of the fair trial to which he was enti-
tled. I would reverse and remand.