Case: 11-15320 Date Filed: 07/13/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15320
Non-Argument Calendar
________________________
D.C. Docket No. 2:09-cv-01709-AKK
MARTEZ GULLEY,
Plaintiff-Appellee,
versus
BIRMINGHAM, CITY OF,
as a person under U.S.C. 1983, et. al.,
Defendants,
COREY HOOPER, Individually and in his
official capacity,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 13, 2012)
Before EDMONDSON, JORDAN and HILL, Circuit Judges:
Case: 11-15320 Date Filed: 07/13/2012 Page: 2 of 4
PER CURIAM:
Corey Hooper appeals the denial of his motion for a new trial, or, in the
alternative, for judgment notwithstanding the verdict, and asserts as error several
evidentiary rulings and also improper jury instructions by the district court. For
the following reasons, we find no merit in his assertions of error and shall affirm
the judgment of the district court.
First, Hooper complains that he was “compelled” to testify in this action in
violation of his Fifth and Fourteenth Amendment right not to incriminate himself.
This contention is without merit. When called to the stand in this civil action
against him, Hooper was free to invoke his Fifth Amendment privilege against
self-incrimination, but chose not to do so. Instead, he voluntarily answered the
questions put to him by plaintiff’s counsel. Had he chosen to invoke his right to
remain silent, the district court would have been compelled to decide whether the
invocation was warranted – evaluating Hooper’s claim that his fear of criminal
conviction based upon his testimony was reasonable, real and appreciable. United
States v. Gecas, 120 F.3d 1419, 1424 (11th Cir. 1997) (privilege does not protect
against remote and speculative possibilities). Hooper, however, never invoked his
privilege while he was on the stand. Thus, there is no merit to this assertion of
error.
2
Case: 11-15320 Date Filed: 07/13/2012 Page: 3 of 4
As to the admission into evidence of Hooper’s prior statement to an Internal
Affairs investigator, the district court recited in its order denying a new trial that
Hooper himself asked that portions of an audio recording of the statement be
played during trial and that he asked the jury to listen to the entire recording
during their deliberations. In his brief on appeal, Hooper does not dispute the
district court’s statement. This deliberate choice does not result in trial error. See
Edwards v. Warden, 676 F.2d 254, 257 (7th Cir. 1982) (no error where evidence
now objected to by defendant was used by him at trial).1
Finally, the other evidentiary errors asserted by Hooper are all the product
of his failure to abide the court’s pre-trial order deadlines. Furthermore, his
objection to the admission of plaintiff’s evidence of damage is unfounded as
plaintiff did timely file a list of such damages pursuant to the pre-trial order. It
was Hooper’s attempt to object to that filing that was untimely.
Similarly, Hooper’s objection to the jury instructions was not timely filed
pursuant to the court’s pre-trial order. The district court refused to consider the
objection since Hooper offered no justification for the failure to timely file. We
find no fault with this exercise of the district court’s discretion.
1
Furthermore, the record reflects that Hooper did not renew his objection to the admission
of this statement when it was offered at trial by plaintiff’s counsel. This constitutes waiver. See
Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1286 (11th Cir. 2000).
3
Case: 11-15320 Date Filed: 07/13/2012 Page: 4 of 4
Hooper requests, in the alternative, for judgment notwithstanding the
verdict. The district court denied this motion as Hooper did not refute the
sufficiency of the evidence but rested his argument upon the court’s alleged
evidentiary errors. The district court correctly denied the motion. See Allstate Ins.
Co. v. Jaguar Cars, Inc., 915 F.2d 641, 644 (11th Cir. 1990).
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
4