*1 request, pursuant defendant’s to Fed. 31(d), judge
R.Crim.P. when the trial con- poll unanimity
tinues the after lack of is
revealed, objection by an absent the defen-
dant, error occurs when it “reversible apparent judge coerced the
jurors prematurely rendering into a deci-
sion, merely judge and not because the Gambino, jury.” poll
continued to
F.2d at Accordingly, 501. we find the
district continued polling court’s
jury in this was not error. case reversible
VI. reasons,
For foregoing affirm we
Penniegraft’s convictions.
AFFIRMED Raymond NOEL; Ralph
Charles Jacob
Noel, Individually and as Personal
Representative of the Estate of
Lynn Noel; Schweiger, Ramona To Noel,
The Use of Matthew Plaintiffs-
Appellants, ARTSON, Officer, Badge
Carlos No.
3836; Sweren, Officer, Badge David 3794;
# Giddings, Officer, Michael
Badge 3305; Crump, # Mark Ser
geant, Badge #3389; Robert M. Gib
bons, Sergeant, Badge 3904; # Balti County, Maryland,
more Defendants-
Appellees.
No. 09-1562.
United States Court of Appeals,
Fourth Circuit.
Argued: March 2011.
Decided: June 2011. *4 variety
that a of instructional and other errors taint that But the charge verdict. provided complete and accurate state- plaintiffs ment of the law and afforded ample argue latitude to their case. Find- reversal, ing no other reason for we affirm judgment of the district court. I.
The unfortunate events that led to this began County lawsuit when a Baltimore police officer a plastic bag noticed white dust the car of Matthew Noel during an October 2004 traffic stop. Mat- *5 thew, an eighteen-year-old who lived at parents Cheryl home with his and Charles Noel, having admitted to a Percocet abuse months, problem. In the following Balti- Roberts, ARGUED: Terrell Roberts & County Sergeant Gibbons, more Robert a Wood, Riverdale, Maryland, Appel- for narcotics investigator, examined the trash Mayhew, lants. Paul M. Baltimore Coun- left for pickup outside at the Noel resi- Law, Towson, ty Maryland, Office of for drugs dence and discovered additional and Appellees. ON BRIEF: John E. Bever- 19, 2005, drug paraphernalia. January On ungen, County Attorney, Adam M. Ro- senblatt, County Sgt. successfully applied Gibbons Attorney, Assistant Bal- for a Law, Towson, County timore Office of search warrant for the Noel home. Maryland, Appellees. for Sgt. supervi- Gibbons consulted with the County sors of the Baltimore SWAT Team TRAXLER,
Before Judge, Chief and and decided that a entry no-knock was WYNN, WILKINSON and Judges. Circuit appropriate. Gibbons testified that he was by published opinion. Judge Affirmed safety concerned for the of the SWAT wrote opinion, WILKINSON which executing warrant, officers and Judge joined. Chief TRAXLER Judge thought that knocking announcing and WYNN opinion concurring wrote an in the presence their might put them in danger judgment. (1) for three reasons: Charles Noel had thirty-year-old conviction for second-de- OPINION (2) murder; gree 18, 2004, on December WILKINSON, Judge: Circuit shortly before the search of the Noel house, charged Matthew was with attempt- trial, nine-day After a a jury found that first-degree shooting ed murder for a man police officers carrying out a search war- store, in the foot at a though convenience rant for narcotics did not violate the eventually Fourth reduced to they performed Amendment when first- (3) assault; degree entry guns no-knock into a and there were residence and fa- tally shot a gun registered Cheryl woman with a therein. and her other son family woman’s and estate allege now Jacob at the Noels’ address.
585 1983, a.m., § 42 claiming team under U.S.C. January 21 around 4:30 On approached the of fifteen officers that the officers violated her Fourth team The officers breached rights by failing Noels’ residence. Amendment to knock and battering ram and door with a presence, by executing the front announce their flash-bang grenade out- deployed a unreasonably, by then using search warrant occupants side of the house distract excessive force. The officers moved for momentarily. The officers testified as 6, summary judgment. September On house, one officer they as entered the soon the district court denied the officers’ Warrant” and announced “Police—Search appeal motion. dismissed the officers’ We proceed- continued to do so as the officers holding they had waived the approached Charles and upstairs ed qualified immunity by failing defense of Cheryl’s neigh- Charles and his bedroom. summary judg- raise it their motion for bors, however, they heard testified that Artson, Fed.Appx. ment. Noel v. See grenade from the but never explosion Cir.2008). (4th any announcements. police heard trial, nine-day After a the district court after the Less than five seconds SWAT instructed the as follows: house, Officer Carlos team entered plaintiffs claim that the defen- [T]he Cheryl Noel’s Artson entered Charles and unreasonably, dants acted viola- There, he testified that he bedroom. tion of Noel’s constitutional holding him Cheryl spinning found toward rights, in the manner of the execution of Officer Artson then immedi- revolver. by deliberately the warrant. And that is shots, ately hitting Cheryl fired two avoiding the knock-and-announce rule or *6 right and the breast. She left shoulder residence, procedure entering before the the floor near the foot of slumped then to by subjecting and Ms. Noel to unreason- Cheryl drop Artson ordered to the bed. ably deadly excessive force after and/or times, gun several but even when Che- you they entered.... So should consid- it, gun ryl eventually released re- in presented er all the evidence relation only right from her eight mained inches executing method in to the used arm. reaching warrant in a decision as search agree that Officer Artson parties a plaintiff proven to whether the has Cheryl then ordered to move her hand of the Fourth Amendment violation happened what away gun, from the but rights. hotly Art- after that order was contested. regard plaintiffs’ to the And Cheryl testified that looked “like she’s son damages resulting claims of loss and choice, decision,” make a make a trying to alleged deadly from the excessive and/or her hand towards and she moved back Noel, against Cheryl you’re force used Charles, however, insisted that gun. that a law officer instructed enforcement Cheryl any never made movement toward may only employ that amount of force point, At that Officer Artson gun. reasonably necessary which is under the her in the chest. The coroner testi- shot particular surrounding circumstances might fied that have survived of the search warrant. the execution shots, but not have recov-
first two
could
Therefore,
determining
in
whether the
shot,
pierced
the third
which
ered from
proven
deprivation
have
of
plaintiffs
her heart.
rights,
Fourth Amendment
Ms. Noel’s
resulting
damages under
Cheryl’s family brought
against
this suit
and a
loss or
theory, you must determine whether
Artson and the rest of the SWAT
this
Officer
case, however,
against Ms.
In this
the trial was con-
the amount of force used
capably
provided
ducted more than
that which a reasonable
Noel exceeded
ample
appellate
reason for an
court
employed
officer would have
execut-
party.
a verdict on
of either
sustain
behalf
ing a warrant under similar circum-
stances.
challenges
The first set of
relates
regard, you
In this
consider all of the
instructions,
jury
to the
which we review
attending
surrounding
circum- holistically
through
prism
including the nature and severi-
stances
abuse of
standard. The
discretion
Su
issue,
ty of the crime at
whether Ms. preme
single
Court has instructed that “a
an
posed
Noel
immediate threat
to the
jury may
judged
instruction to a
not be
others,
safety
any of the
or
officers
isolation,
artificial
but must be viewed in
actively resisting
and whether she was
charge.”
context of
the overall
or
with a
attempting
interfere
lawful
Kibbe,
145,
n.
Henderson v.
431 U.S.
execution of the search warrant. The
(1977).
97 S.Ct.
Reasonableness anof officer’s conduct warrant, undergirding and the instructions that col executing including a search lightly lective effort should not succumb judged the use of foi'ce ... must be fencing. Accordingly, simply semantic we perspective from the of a reasonable determine “whether the con scene, instructions officer on the and not with the whole, light strued as a and in of the whole hindsight. vision of The test of 20/20 record, adequately informed the reasonableness must allow for the fact controlling legal principles without that police officers are often forced to misleading or confusing the to the split-second judgments make circum- *7 prejudice objecting party.” Bailey tense, stances that are uncertain and 152, Cnty. Georgetown, v. 94 F.3d 156 rapidly evolving respect to the (4th Cir.1996) McDaniel, (quoting Spell v. means and amount of force that is rea- (4th Cir.1987)). 1380, 1395 824 F.2d necessary any particular sonable and in situation. party challenging jury the 30, jury On March the returned a verdict burden, heavy instructions faces a for “we counts, for the officers on all and the dis- accord the district court much discretion” trict court later the denied Noels’ motion Bakker, charge. Teague to fashion the for a new trial. The appeal. Noels now (4th Cir.1994). 978, 35 F.3d 985 A district court will be declining give reversed for
II. proposed by party only an instruction a “(1) presents The case before us requested numerous when the instruction (2) correct; assignments of error. No litigants substantially doubt was not covered (3) in hotly contested trial in- by charge jury; become the court’s to the vested in their case point and losers often leave dealt with some trial impor the so only tant, convinced that give serious errors on the that failure to the part of the trial court would have seriously impaired” party’s allowed instruction that ability to return the verdict that it did. to make its case. United States v.
587
Cir.2010)
(4th
Connor,
386, 395,
1865,
490 U.S.
109
S.Ct.
Lighty, 616 F.3d
(1989).
omitted).
B. projected path. fleeing car’s When the officers, argue despite that vehicle accelerated toward the The Noels court’s instruction they opened approached breadth of the district fire as the car ability argue theory passed and their own them. Even after the vehicle case, them, of their the district court neverthe- the officers continued to fire from giving an less erred not instruction despite the side and from behind the car Batton, based Waterman on 393 F.3d longer the fact that it was no a threat (4th Cir.2005). view, 471, 481 In their run them over. Id. at 474-75. It was “failure to instruction justified that that context we held “force at seriously impaired” ability per- their beginning justi- of an encounter is not Lighty, jury, at suade the justification if fied even seconds later from Waterman language because the for the initial force has been eliminated.” coming have had from would more force Id. cry That a far 481. is from the judge. the trial Artson, by situation confronted Officer for very the threat he faced remained in the it fun argument This fails because same room with firearm still close at damentally appel misconceives the role of hand. Waterman. Such opinions like opin late instructions, not they ions are nor are appear recognized Noels to have Rather, meant to be. they gen articulate case, Waterman is inapposite to this principles eral of law that decide cases. Of instruction, proposed jury they for their appellate may course opinions guide a dis language altered the borrowed from that trict judge’s formulating discretion when Waterman holding case. Our instructions, upon or even bear “eliminated;” premised being on the threat pattern formation of instructions. But this term reflected the fact that in Water- they by are no means to preempt intended man, the car that posed the threat to the judge’s a district discretion to formulate a them, already past officers had driven thus trial, suitable for specific for ending the officers’ need to defend them- flexibility “courts must have the in instruc deadly in- selves with force. The Noels’ confusing prejudicial tions to avoid or struction, contrast, by stated force is might statements that arise from a discus longer justified justification no “if the for specific sion of the contentions in a case.” the initial force has abated.” This word Venture, Inc., Hardin v. Ski certainly in keeping choice more (4th Cir.1995). 1294-95 Accordingly, we case, theory the Noels’ for at the require parse do not district our courts shot, by time of the third posed threat *9 opinions every possible for instructional Cheryl certainly Noel had not been “elimi- command. and, in nated:” she was still the room Indeed, Noels, why appel- according this case illustrates to the still alive and near opinions mechanically late cannot supply her firearm. But it was not an abuse of instructions, for Waterman dealt with jury judge discretion for the district to decline completely different factual adopt language inap- scenario. to the actual from an case, certainly there is no error the posite jury court then instructed the that it declining massage language presented that to “should consider all the evidence in relation to party. make it friendlier to one the method used in executing
the search warrant.” The court then stat-
IV.
ed that
of an offi-
“Reasonableness
in executing
cer’s conduct
a search war-
The Noels’ second claim relates to a
rant, including the use of
...
force
must
governing
instructions
series
judged
be
from
perspective
of a rea-
manner in which the officers executed
scene,
sonable officer on the
and not with
the search warrant.
hindsight.”
vision of
Reviewed
20/20
entirety,
jury
A.
their
instructions
made clear that
the reasonableness re-
The first manner-of-execution in
whole,
quirement governed the
search as
requested by
struction
the Noels indicated
just
not
segment
one
of it.
that the
should consider “whether the
manner
which the officer executed the
Again, the district court provided here a
search warrant was reasonable.” The re
complete and accurate framework within
quested instruction then set forth a list of which counsel could argue their view of the
account,
factors for the
to take into
facts.
approach
particularly
This
appro-
Noel’s
including
[in]
“Ms.
interests
securi
priate
respect
to the Fourth Amend-
ty,
right
to bear arms for her own
standard,
ment’s reasonableness
which re-
protection,
right
and the
not to be killed quires a
analysis
careful
of the “facts and
simply defending
family.”
for
her
The
particular
circumstances of each
case.”
contend that such an
Noels
instruction was Graham,
This contention is without merit.
argument
their
that “the officers failed to
adjust
district court’s instructions discussed at
entry
their method of
to account for
length
entry
right
the need for both the
itself
the fact that she had a
to bear arms
post-entry
gun
and the officers’
conduct to be
and use a
for
protection,”
her
Brief of
addressing
Appellants
reasonable. After
reasonable-
we find this contention
entry,
unconvincing.
ness
the context of the no-knock
*10
Graham,
its ‘reasonableness’ standard.”
hardly be maintained
It can
“[P]roper
in
“point
a
vised not to.” 1294. present specific able to fail- perfectly above, As discussed the district court argument jury by ure-to-warn to the them- this case to the properly submitted selves. general under the rubric of reasonable (and ness, argue to and counsel were free V. argue) that the officers failed to indeed did next contend that the Noels district perfectly legal gun pos take Noel’s Rose, by allowing court erred Dan a Balti- executing session into account when officer, County training more tactical to “[w]here, here, But as search warrant. Rose, testify at trial. Officer who was accurately the instructions all the covered County’s designated Baltimore witness for case, issues in the the failure to reference personally training, the SWAT Team’s specific aspects party’s of a contentions trial, At trained Officer Artson. he testi- finding ... cannot as a for a of serve basis training provided fied to the he Artson error.” at 1295. Id. provided scenarios” and “shoot/no-shoot training demonstration used Artson’s C. meant to illustrate the so-called “reaction- Finally, challenge the Noels ary gap” objected effect. The Noels district court’s failure to instruct the testimony in general Officer Rose’s officer, deadly “police using that a before presentation particular to his of the reac- force, feasible, if give warning, must demonstration, tionary gap but the district provide person recog opportunity objections. court overruled both comply nize that it is an officer any may give.” commands that officer A. But this claim falls short for the reasons First, claim that Noels rejection led to the of the Noels’ by allowing district court erred Officer assignments earlier error. opinion regarding Rose to his claims, propriety Excessive-force like other of Officer Artson’s use of force claims, despite having personal knowledge manner-of-execution “should be an not alyzed in question being under the Fourth Amendment and the events and not dis-
591
expert
required by
closed as an
witness as
testimony
voluminous
offered during
26(a)(2)(A). But
Moreover,
Fed.R.Civ.P.
this claim the course of the entire trial.
it
faces several difficulties.
was on cross-examination that the Noels’
own counsel “invited the error and there-
all,
party
First of
challenging
fore it provides no basis for reversal.”
ruling
the district court’s
on the admissi
Neal,
901,
United States v.
904
bility of evidence
heavy
faces another
bur
(4th Cir.1996).
thusWe
cannot hold that
Evidentiary rulings
den.
are
un
reviewed
the district court’s decision to admit this
der the well-known abuse of discretion
testimony
“arbitrary
and irrational.”
standard,
and “we will
overturn an
Cole,
F.3d B. omitted). here, And the district court did Next, the Noels assert that the district not abuse its discretion. Officer Rose had court abused its discretion by allowing Of- personal knowledge of Officer Artson’s ficer Rose to demonstrate the reactionary training in this sort of scenario because gap effect with the jury. In this demon- actually Rose had Officer trained him. In stration, Rose asked the members of the deed, acknowledge the Noels that on direct jury to hold their hands six apart inches examination, “Officer Rose’s testimony while he held his even apart, farther and scenarios,” provided only training broad clap then asked them to their hands to- Appellants scenarios that Brief of gether before he could clap his. Rose actually were used Officer Artson’s explained after the demonstration that training. The district court also repeated “you can’t, because of reactionary ly questioning scrutinized the of Officer gap.” He explained further that in SWAT Rose to provided only ensure that he fac training, “this is Iwhat teach these folks testimony tual regarding Officer Artson’s ... if we come across someone who has training. weapon that’s in a ready position, low The Noels nevertheless seize on a by the time the flick of a wrist occurs and response given by Officer Rose on cross- fired, that round is it’s too late.” examination to show that he offered imper opinion testimony. First, missible In response to the Noels contend that Offi a question about whether Officer Artson cer Rose’s demonstration imper was an grabbed Cheryl could have gun fails, Noel’s af missible lay opinion. This claim how twice, ever, ter she had been shot Officer Rose because the demonstration was a explained that training even shot to the heart actually exercise that was used in incapacitate person would not until thir Officer training. Assuming, Artson’s how ty-to-sixty ever, seconds later. He then stated that the method of presentation its that Officer Artson “went above and through be active participation was er yond stopped during ror, a lethal confron we hold that it was harmless. The try tation and continued to get precise point her to could have been demonstrat go gun. not for that So he went above and ed in ways a number of other that in fact beyond training, our sir.” if Even this one would preferable have been to one involv response were impermissible lay opinion ing themselves, participation by jurors testimony, grounded not in Officer Rose’s but the demonstration was a brief and personal knowledge of part Moreover, Officer Artson’s minor of the overall trial. training, it was harmless in the context of there was no risk that would
592 VI. demonstra clapping
confuse Officer Rose’s deadly to recreate the attempt an tion with Noels contend that Finally, To the con in the bedroom. confrontation by failing to voir court erred the district “a mere dem trary, Rose offered Officer subject of jurors on the potential dire which physical principle,” a onstration of conviction thirty-year-old Noel’s Charles unproblematic. See recognized have as we view, In their second-degree murder. for 743 F.2d Corp., v. Motors Gladhill General conviction, one of which was the murder (4th Cir.1984). 1049, 1051 by offered the offi justifications the three arguendo Finally, assuming entry, strong “had a cers for the no-knock jury’s participation the demon that the juror and “was an es potential for bias” error, not think that trial,” we do Appel stration part of the sential Brief of posed a substan 51, the demonstration itself refusal and the district court’s lants prejudice under Fed. tial risk of unfair topic de questions on this thus to ask on the plaintiffs R.Evid. 403 to the right impar of their to an prived the Noels by effort grounds that it “was deliberate jury. tial on
a witness and comrade of the officer
jury.”
gain
trial
favor with the
persuaded.
are not
Su
We
Brief of
at 47. All evidence introduced
that “the trial
Appellants
preme
has made clear
Court
attempts
way
gain
deciding
at trial
in some
great
court retains
latitude
favor;
jury’s
party
otherwise a
would not
should be asked on voir
questions
what
sure,
415,
Rule 403 is concerned
Virginia,
offer it. To be
Mu’Min v.
500 U.S.
dire.”
424,
1899,
that the evidence will
possibility
with “the
tion
there was no indica
We
dire,
thirty-
for
Noel’s
tion that
Rose’s demonstration of on voir
Charles
Officer
second-degree
for
mur
purpose
year-old
his
exercise had the
or
conviction
training
role in this
played
of the
der
at most a minor
influencing
effect of
the emotions
jury to
case. The trial court is not bound to ask
encouraging
or otherwise
questions about
an
For all members of the venire
impermissible
decide on
basis.
see,
by-way,
reasons,
any every evidentiary tangent or
we find that
above
Carolina,
524,
Ham v. South
409 U.S.
allowing
participate
e.g.,
error in
(1973)
527-28,
93
Id. In appeal, this the challenge, Noels VII. among things, aspects other of the district evening at the Noel home on the Events jury court’s instructions. “Both the deci question deeply regrettable in took a turn. (or give give) jury sion to not to a instruc jury weighing But the tasked with these tion content of an instruction are * happenings sad was not left the dark. for reviewed abuse of discretion.” Unit trial, nine-day capable Over the course of a Russell, 1098, v. ed States 971 F.2d 1107 attorneys on each side thrashed out the (4th Cir.1992). Through this deferential of the officers’ actions before the propriety lens, we look to “whether the district them, body duly constituted to assess instructions, whole, court’s construed as a court instructed that properly the district properly informed jury of the control body applicable terms standard of ling legal principles misleading without or these circum- reasonableness. Under confusing jury.” Duplex Hartsell v. stances, upset we see no reason to the Prods., (4th Cir.1997). 766, 123 F.3d 775 jury’s conclusions. Because neither in- differently, long Stated as charge “[s]o any nor un- structional defects other error is accurate on the law and does not confuse verdict, judg- dermines the we affirm the jury, or mislead the it is not erroneous.” ment of the trial court. Venture, Inc., 1291, Hardin v. Ski (4th Cir.1995). simple 1294 inquiry This is
AFFIRMED the heart of our review on an instruction WYNN, appeal. Judge, concurring Circuit in the
judgment: our inquiry, Given nature of it is not jury surprising
This Court’s review of instructions that courts “[district are neces- relatively simple inquiry: sarily great entails a wheth- vested with a deal discretion instructions, constructing specific er the district court’s con- form and con- whole, accurately strued as a informed the tent of instructions.” at 1293. Id. jurors controlling Accordingly, of the law without mis- a district court “is not re- case, leading confusing quired or them. In this to comment on specific evidence the district court was free to—and perhaps giving the course of instruc- ” “Similarly, should have—instructed the to the tion .... Id. at 1294. courts beginning flexibility effect that force used at the of must have the in instructions to * refusing point important, A district court will be reversed for in the trial so that failure to give requested requested seriously instruction when the instruction im- "(1) correct; (2) paired” party's ability instruction to make its case. (4th substantially by Lighty, was not covered the court’s United v. States 366 (3) (internal Cir.2010) omitted). jury; quotation to the dealt with some marks plaintiffs have determining whether statements confusing prejudicial or
avoid
deprivation
of Ms. Noel’s
proven
from a discussion
might
arise
in a case.” Id. at
and a result-
rights,
Amendment
specific contentions
Fourth
court,
theory,
in its broad
And a district
under this
ing
damages
1294-95.
loss or
discretion,
by-
craft
free to
instructions
amount
determine whether the
you must
long as
looking
opinions
to this Court’s
against
used
Ms. Noel exceeded
of force
—so
faithful to
in a manner that is
it does so
officer would
that which a reasonable
and accu
language
opinions
of those
executing
a warrant
employed
have
law.
rately
applicable
characterizes
Cf.
circumstances.
under similar
Dennis,
F.2d
576-78
Justice
all of the
regard, you
In
consider
this
(4th Cir.1986),
grounds,
other
vacated on
*14
surrounding
circum-
attending
L.Ed.2d
109 S.Ct.
104
490 U.S.
including the nature and severi-
stances
(1989).
982
issue,
ty
the crime at
whether Ms.
of
the
posed an immediate threat
Noel
II.
others,
safety
any of the officers or
of
argue
Noels first
the district
actively resisting
and whether she was
in-
refusing
specifically
court erred
to interfere with a lawful
attempting
or
of Officer
on the reasonableness
struct
warrant. The
execution of the search
light
fatal
of
Artson’s third and
shot
defendant,
officer
particular
or
the
(4th
Batton,
district court refusing will be reversed for instruction, alia, III. proffered inter when the instruction was “cor At the of day, end this issue turns on rect”). neither the skill of the attorney Noels’ nor course, court, Of the district in its broad people the number of who put effort into discretion, could have altered the Noels’ trying Instead, Noels’ case. proposed instruction accurately reflect inquiry relevant is whether the in- holding. Giving the Waterman an such Here, pass they structions muster. do. certainly instruction would not have consti And while the district court was free to— tuted an of may abuse discretion —and well perhaps given should have— Indeed, have been desirable. as this charge based on Waterman v. Batton to recently stated in a Court Section 1983 the effect that force used at the beginning case, excessive force “precedent suggests may justified of an not be later encounter that it possible parse sequence justification if the for the use of force has occur; they events as a totality while eliminated, been it was not an abuse of analysis good circumstances still remains discretion for the district court to decline law, if they may events occur in a series be reason, to do so. For this and because I analyzed as such.” Brockington Boy agree my colleagues’ analysis on the kins, (4th Cir.2011) (cit issues, other I concur in affirming the 477). Waterman, ing district judgment. court’s my colleagues’ As noted in opinion, the place
events issue this case took in a
sequence sequence if that occurred —even span
over a short of time. Officer Artson