Stockwell v. Sweeney

February 9, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1438

KAREN STOCKWELL, ET AL.,

Plaintiffs, Appellants,

v.

MICHAEL SWEENEY, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Selya, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Cyr, Circuit Judge.

Neil P. Philbin with whom Kirshenbaum & Kirshenbaum was on brief

for appellants.
Joseph F. Penza, Jr. with whom Olenn & Penza, and Kevin F.

McHugh, Assistant City Solicitor, were on brief for appellees.

ALDRICH, Senior Circuit Judge. Plaintiff

appellants are the widow and administratrix of the estate of

George Stockwell (Stockwell) and the Stockwells' minor

daughter. Defendants are Michael Sweeney and the City of

Providence, Rhode Island. On May 6, 1993, while acting as a

traffic officer of the City, Sweeney shot and killed

Stockwell, a driver of an automobile. Plaintiffs sue under

42 U.S.C. 1983 and Rhode Island's wrongful death statute

(concededly raising the same issue), alleging that the

officer's use of deadly force was an unreasonable,

unjustified violation of Stockwell's Fourth Amendment rights.

Plaintiffs' appeal, following a jury verdict in favor of

defendants, advances three principal claims: (1) the

evidence warranted judgment as a matter of law in their

favor, (2) the court's instructions regarding deadly force

were too favorable to defendants, and (3) the court

erroneously admitted testimony concerning Stockwell's alleged

belligerent behavior shortly before the encounter. They

further appeal denial of post trial motions on the same

grounds. We affirm.

Directed Finding

Plaintiffs introduced eight eyewitnesses, no two of

whom fully agreed with each other. All, in one way or

another, disagreed with Sweeney, although some partially

supported him. Plaintiffs' conclusion that their testimony

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was "unequivocal, uncontradicted and unimpeached" and that

the finding in favor of defendants was so "nonsensical" that

it should have been directed for plaintiffs could be answered

in one sentence: We fully agree with the district court's

statement that the evidence presented a "classic question of

fact." It is a rare case where a verdict can be ordered in

favor of the party having the burden of proof, and this is

far from such. However, as the evidence bears also upon the

question whether plaintiffs' case was prejudiced by a less

than perfect charge, we will recount it to some extent.

First, it was tacitly or expressly accepted that

Sabin Street, Providence, runs, one way, east to west, and

intersects with Mathewson; that Sweeney, in uniform, was on

duty at this intersection to direct cars bound west on Sabin

Street to turn left onto Mathewson because of a children's

affair ahead on Sabin, and that Stockwell wished to continue

on. At some point the officer drew his service revolver and

shot Stockwell in the groin, the bullet "moving from right to

left, and from front to back." (Surgeon). Stockwell,

hospitalized, died in a few hours.

Concededly this is an unusual case. According to

Officer Sweeney, Stockwell, who was approaching fast, slowed

down at his signal, ultimately to a pace, but continued on

into the officer, pushing him backward a couple of feet.

Sweeney yelled repeatedly for Stockwell to stop, but

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Stockwell, shouting, "Get out of my way or I'll f'n run you

over," hit him again, this time causing his torso to collapse

over the hood and his right leg to rise into the air. Within

seconds Sweeney, in fear, reached for his gun and fired a

single shot at Stockwell, aiming through the windshield. At

this time the car began turning to the left, in effect moving

Sweeney to the right. (Cf. Carlson, post.) Although he

insisted that he aimed through the windshield, the bullet

came through the open window on the passenger side. On this

discrepancy, though physically understandable on the basis of

the car's movement, plaintiffs hang their as-matter-of-law

claim.

First, plaintiffs' witnesses, briefly. (Stockwell

will be referred to as the "car," and Sweeney as the

"officer.")

Joanna Johnson (school bus passenger)

Officer stepped away from in front of the car,

pushing his hand against the right front fender. Car

proceeded and, after it had passed officer by "a few steps,"

stopped, at which point officer drew his gun and "ran up to

the passenger side of the car . . . [and] put his gun in the

window . . . and I heard a noise which I assumed was a

gunshot."

Susan Winsor (bus passenger)

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First saw officer chasing car, trying to grab onto

it and yelling "Stop!" "The car had turned onto the side

street, and the officer was on the passenger side. He got up

to about midway, maybe like at the cross pieces between the

two windows. And he looked like he was trying to hold on at

one point with both hands. And then he slipped away from the

car and that's when I heard a shot."

Kenneth Carlson (driver of car directly behind

Stockwell)

Saw officer gesture to car to detour but "car

accelerated really quickly, threw the policeman up onto the

hood." Car turned to the left, throwing officer around to

the passenger side of the car, when Carlson saw officer,

previously empty-handed, holding a gun. On contemporary

statement to police Carlson had stated that officer had run

six feet along the side of the car before pulling his gun and

firing into the car; and by deposition that he ran after the

car two or three feet.

Melissa Iannotti (automobile driver)

Stated on direct examination she saw officer make

slow run after the car, "about a few car lengths." "I

remember his hands on the car and I heard pop." On cross

stated she saw the car turn to the right towards the officer.

Saw him place his hands on the hood. Thought maybe his feet

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were run over, and that the gun was inside the passenger

window of the car when officer fired.

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Richard Heines (children's bus driver)

Saw officer with his back against the back window

of the car, pivot and fire through "the passenger side

window" and then rotate back again. (Obviously car not

moving.)

David Mello (automobile driver)

Had passed into Mathewson Street ahead of car, saw

officer, through side-view mirror, bumped, hands onto the

hood, dead center. Officer moved towards passenger side, at

headlight was "bumped again, a little harder this time,

causing him to come down onto the hood this way and then he

stepped around the side of the car." The car was moving

slowly and while standing at fender, passenger side, officer

drew his gun and, after car moved a couple of feet more,

fired. Entire incident took about 30 seconds.

Kim Maddalena (passenger in school bus)

After car took slow left-hand turn onto Mathewson,

officer chased car from behind. Then, "I saw him take a

stance, spread his legs apart, and take his gun out of his

holster and hold it like this and he shot into the passenger

side front window."

Debra Lusignan (passenger in school bus)

After officer gestured, car stopped. Saw some kind

of argument between car and officer that lasted a few

minutes. Then made tight left turn, brushing past officer,

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and officer pushed himself away. As car proceeded officer

banged on rear window and yelled stop, and when car did not

stop officer ran after it for two or three car lengths,

drawing his gun. He then stuck gun inside front passenger

window and fired.

Comment

So much for what plaintiffs consider "minor

inconsistencies on trivial matters." Testimony that placed

Sweeney as coming from behind would seem clearly inconsistent

with a bullet entering the front of the groin and out the

back; indeed that point of entry might be thought odd for

anyone on foot at the car's side. Plaintiffs' only reference

to the path of the bullet is to say that "the absence of

exactitude in identifying the specific locations of the

parties and vehicle is . . . insubstantial on the issue of

whether Sweeney had to shoot Stockwell in order to defend his

life." Seemingly there is no difference between shooting

from the hood when one has been picked up on a moving car,

and shooting from the side, after coming from behind in a

chase, or standing alongside, legs spread, and both hands on

the gun. Again, there is no difference between being hit,

center hood, by an oncoming car, (two witnesses, one said

once, one twice)1, and chasing a car that had disobeyed a

1. Plaintiffs' brief characterizes inescapable testimony as
"brushes," a word never used by a witness, and fails to
mention Sweeney's (inescapable) medical records, which show

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traffic order. The correctness of the denial of plaintiffs'

motion for judgment is manifest.

Jury Instructions

It is conceded that the court correctly instructed

the jury that, in order to establish that the officer's

decision to shoot was an unlawful or unreasonable seizure in

violation of Stockwell's Fourth Amendment rights, the

plaintiffs had to prove, first, that "that Officer Sweeney

intentionally shot Mr. Stockwell," and second, "that in

shooting [him] Officer Sweeney acted in a way that was not

objectively reasonable under the circumstances." The

establishment of the first element was uncontested; the

second received the following amplification by the court

(contested portions emphasized):

The standard for determining whether
the use of deadly force by a police
officer was objectively reasonable is
whether under the circumstances
confronting that officer a reasonable
police officer would have used such
force.

The law permits a police officer to
use deadly force to the extent necessary
to protect himself or others from death
or serious bodily injury.

The law also permits a police

officer to use deadly force when it is

necessary to prevent the escape of a

suspected felon if the officer has

reasonable cause to believe that the

suspect poses a significant threat of

him work disabled for three months.

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death or serious bodily injury to the

officer or to other persons.

Assault with a dangerous weapon is a

felony. Intentionally striking someone

or attempting to strike someone with a

motor vehicle constitutes an assault with

a dangerous weapon.

In determining whether a reasonable
police officer would have considered it
necessary to use deadly force, you must
focus on the circumstances confronting
that officer at the time the deadly force
was used, rather than on how those
circumstances may appear given the
benefit of hindsight which, of course, is
always twenty-twenty. Allowances must be
made to the extent that a police officer
is forced to make split-second decisions
under circumstances that may be tense or
uncertain or rapidly changing.

The court's mentioning the law as to preventing

escape was irrelevant, but, by the same token, we cannot

believe a jury, addressing itself to Sweeney's asserted fear

of serious bodily injury would be led astray. Of more

possible concern is that the court's definition of an

automobile used for an intentional striking (passing what may

be implicit in that strong word) was an incomplete statement

of Rhode Island criminal law. In State v. Mercier, 415 A.2d

465, 467 (R.I. 1980), the court said,

An automobile in and of itself is not
considered a dangerous weapon, but it may
become so if it is employed in such a
manner to render it capable of inflicting
death or serious bodily injury.

We do not, however, have a criminal case. The jury was not

concerned with legalese, but with substance -- was Sweeney, a

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traffic officer assigned to protect children from oncoming

cars, faced with a driver so determined that he ran into him

twice, the second time harder (Sweeney and Mello), reasonable

in fearing for his safety? We cannot think that judicial

definitions were in the jurors' minds, or affected the

essential fairness of the trial. Elwood v. Pina, 815 F.2d

173, 177 (1st Cir. 1987).

Evidence of Prior Conduct

Anthony Sajowski, a security guard in a nearby

building, had encountered Stockwell shortly before the

shooting incident. A conversation took place that

defendants, before trial, gave notice they intended to

introduce. Plaintiffs filed a motion in limine contending

that its substance was, in effect, character evidence,

Fed.R.Evid. 404(b), and, further, that it should be excluded

because the danger of unfair prejudice substantially

outweighed any probative value. Fed.R.Evid. 403. The court

denied the motion "without prejudice" to the right to object

at trial, noting that "everyone is aware of what the

potential problems are and we will just have to deal with

that based on the evidence as it is presented." At trial

Sajowski testified, over periodic objections on other

grounds, that Stockwell had disregarded his authority,

rebuffed his assistance, was "aggravated" and had several

times "towered over" and confronted him in a provocative and

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belligerent manner, and that he had felt sufficiently

threatened to request local police assistance. No objections

for any of the reasons put forth in the motion in limine were

made. Plaintiffs regard the motion as preserving the issues

raised therein for appeal.

Our rule is that the filing and denial of a motion

in limine, without subsequent contemporaneous objection at

trial, will normally not preserve an evidentiary ruling for

appeal. Clausen v. Sea-3, Inc., 21 F.3d 1181, 1189-1190 (1st

Cir. 1994) (citing cases). Here the court very plainly

indicated that plaintiffs should renew their objections as

the evidence came in. Undo prejudice, Fed.R.Evid. 403, in

particular is a highly subjective matter, and plaintiffs'

failure to object -- it is not for the court to remember --

deprived the court of its requested opportunity to rule on

the precise record. See Freeman v. Package Machinery Co.,

865 F.2d 1331, 1337-38 (1st Cir. 1988).

Plaintiffs invoke the doctrine of plain error that

permits late raising. See Arrieta-Agressot v. United States,

3 F.3d 525, 528 (1st Cir. 1993); Clausen, 21 F.3d at 1190-

1191. The first question is whether it was error at all.

Plaintiffs have had a four day trial, with many witnesses.

We are especially hesitant to say from our poor vantage

point, see Reagan v. Brock, 628 F.2d 721, 723 (1st Cir.

1980), that plaintiffs should have a new trial because it

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would have been an abuse of discretion for the court not to

have found that the prejudicial effect of this testimony

substantially exceeded its possible relevance. Instead, it

is at least arguable that this was not a case where

defendants were offering to show that Stockwell was of a

belligerent character as permitting an inference that he was

in character on this occasion. Rather, it would be open here

to find that actual belligerence of a few moments ago does

not evaporate instanter, particularly when faced with further

opposition and conflict. The evidence could be thought

direct, rather than inferential. On such a basis there was

no error.

Alternatively, if it be thought we are mistaken,

and there was error, the term "plain error" means what it

says, "clear," "obvious," United States v. Olano, 507 U.S.

725, , (1993); 113 S.Ct. 1770, 1777 (1993); "particularly

egregious:" Clausen, 21 F.3d at 1191. This it was not.

Affirmed.

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