Jackie Wilson v. James K. Williams

DIANE P. WOOD, Circuit Judge,

with whom RIPPLE, Circuit Judge, joins, dissenting in part.

While I agree with the en banc majority on the larger issues of law that this case presents, I am unable to concur with its finding that the errors that infected this trial do not require reversal. I therefore dissent from the disposition of Wilson’s appeal.

At the outset, I wish to make clear the points on which I am entirely in agreement with the majority. First, I agree that in a case where the district judge has ruled on a motion in limine, further objection at trial is necessary if the ruling was in any sense conditional, but it is not necessary to the extent the ruling was definitive. Ante at 565-66. Second, I also agree that, in applying this rule to definitive rulings, it is important to respect the limits of the ruling. Ante at 567. If there is an expansion, modification, or other alteration in the predicate upon which the district court based its earlier definitive ruling, counsel must make a separate objection at trial to the altered use in order to preserve that new point on appeal. The boundary between what has been decided definitively and what is new will sometimes be difficult to discern, as Wilson’s case illustrates. The court holds today that his lawyer’s motion in limine preserved his right to appeal the district court’s decision to allow into evidence the fact that his victim was a Chicago police officer, but it did not preserve his right to appeal defense counsel’s incessant harping on that fact. In some cases, it may be difficult for counsel to know when permissible use is transformed into abusive misuse. Only case-by-ease development will throw light on where that line lies, and prudent counsel should certainly err on the side of renewing objections at trial, lest the affected party forfeit valid arguments for appeal.

I also agree with the majority that a party faced with a definitive ruling on a motion in limine does not forfeit the right to object to evidence when she tries to make the best of a bad situation. Ante at 566-67. Wilson’s lawyer therefore had the right to introduce the fact that he was not only a convicted murderer, but a convicted murderer of a Chicago police officer. This also justified Wilson’s effort to make strategic use of that damning information, by suggesting that the identity of his victim might have inspired Williams’s allegedly unprovoked attack on him.

The place where I part company with the majority is in its application of these rules. To begin with, it is important to *577remember that there are two separate potential sources of reversible error in this case: the introduction of evidence concerning the victims of Wilson’s crimes and the misuse of this evidence. With respect to the latter, because Wilson’s failure to object to the improper use of the victim identity evidence led him to forfeit this point, ante at 568, the question is how his appeal fares under the plain error standard of review of Fed.R.Evid. 103(d). A review of this transcript leaves no doubt that the error is clear in retrospect, and I do not understand the majority to assert otherwise. That leaves the question whether this was an error that “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings,” and thereby caused a miscarriage of justice. See United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotations deleted). In a brisk paragraph, the majority concludes that it did not, based solely on the fact that Wilson succeeded in finding a strategic use for the offensive information. Ante at 568. But this conclusion loses sight of the very point that lies behind the finding of forfeiture: far more was going on here than the simple act of making sure the jury knew what Wilson had done. Instead, defense counsel openly, repeatedly, and blatantly urged the jury to find against Wilson because of what lay in his past. The misuse of the evidence was so extreme and so pervasive that, even though Wilson forfeited his objection, I would find plain error and reverse on this ground.

Even if the misuse of the victim identity evidence did not rise to the level of plain error, there would remain the question whether the district court committed reversible error in permitting defense counsel to use the evidence at all. Here too, I agree with the majority at the beginning of its analysis, but not at the end. The district court abused its discretion in denying the motion in limine outright, because as the majority points out, any legitimate use of the conviction would have been served by informing the jury that Wilson had been convicted of murder and sentenced to life imprisonment. Ante at 568. Nevertheless, according to the majority, the fact that Wilson’s lawyer at oral argument was not urging us to find that the judge should have barred Officer Cavallone from testifying that Wilson had proclaimed “I already killed two Chicago police officers,” means that the district court’s error was harmless. Ante at 568. In my view, however, this misunderstands the scope of counsel’s comment at oral argument. The question we must ask is whether counsel would have objected to that part of Officer Caval-lone’s account if the judge had granted the motion in limine at the outset. To do otherwise would undermine the central holding of the majority opinion, that an objection at trial is unnecessary to preserve for appeal an issue addressed in a definitive in limine ruling. Given the wording of the in limine motion, I believe that the damaging statement would have been improper. Wilson’s lawyers asked that “all evidence of Wilson’s criminal conviction for Murder, together with all reference to those criminal proceedings and to any of the underlying conduct” be excluded from the trial. Accordingly, if the motion in limine had been granted (even if it had been limited to references to victim identity), as it should have been, Wilson’s lawyer would have had a ground on which to object to Officer Cavallone’s statement and likely would have done so. There is no question that Wilson’s lawyer would have preferred to have tried this case without any mention at all, through Officer Cavallone or anyone else, about the identity of Wilson’s victim. Under the proper perspective, I do not regard the error as harmless. Furthermore, again harking back to the theme of most of the majority’s opinion, there is an important distinction between a single mention of the identity of the victim and an incessant mantra. From that perspective as well, the error that opened the door to the mantra cannot be regarded as harmless.

*578Despite my agreement with the broad principles concerning motions in limine that the majority announces, I would therefore reverse the judgment and remand for a new trial, and I respectfully dissent from the outcome here.