Gill v. Thomas

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-2303

MICHAEL GILL,

Plaintiff, Appellant,

v.

SCOT THOMAS, ETC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. David M. Cohen, U.S. Magistrate Judge]

Before

Selya, Stahl and Lynch,
Circuit Judges.

Cynthia A. Dill for appellant.

Edward R. Benjamin with whom Anne Skopp and Preti, Flaherty,

Beliveau & Pachios were on brief for appellees.

May 15, 1996

STAHL, Circuit Judge. Plaintiff-appellant Michael
STAHL, Circuit Judge.

Gill sought redress under 42 U.S.C. 1983 in Maine's federal

district court for a police officer's alleged use of

excessive force in arresting him following a routine traffic

stop. After a two-day trial before a magistrate judge,1 the

jury returned a verdict for the police officer. Gill appeals

the magistrate judge's denial of his in limine motion to

preclude evidence of his prior misdemeanor convictions.

Because we find that Gill waived his right to appeal the in

limine ruling, we affirm.

I.
I.

Background
Background

A. The Incident

On the night of November 27, 1993, Officer Scot

Thomas of the South Berwick, Maine, Police Department stopped

Michael Gill for driving with defective taillights. After

obtaining Gill's driver's license and registration, Officer

Thomas contacted the police dispatcher from his cruiser and

learned that Gill's privilege to operate a motor vehicle in

Maine had been suspended. Back at Gill's truck, Officer

Thomas notified Gill of the suspension and the resulting need

to arrest him.

1. Under Fed. R. Civ. P. 73, the parties consented to the
magistrate judge, rather than the district judge, conducting
the jury trial.

-2-
2

Gill and Officer Thomas both agree that the

following sequence of events occurred thereafter: (1) Gill

claimed that the suspension was a mistake, (2) Gill initially

refused Thomas's request to place his hands on the cruiser,

(3) Thomas's police dog bit Gill's arm, (4) Gill threatened

to sue Thomas, and (5) Thomas sprayed Gill's face with mace.

Predictably, however, Gill's and Thomas's stories diverge on

the question of their respective roles in the foregoing

events. While Gill maintains that he offered no physical

resistance to Thomas and therefore the dog's attack and the

mace were an excessive use of force, Officer Thomas contends

that Gill physically resisted his attempts to effect the

arrest and therefore the amount of force was justified.

B. The In Limine Motion and Ruling

Cognizant that his credibility would be the

decisive factor at the impending jury trial, Gill filed a

motion in limine seeking to preclude Thomas from inquiring

about five of Gill's seven misdemeanor convictions.2 In

particular, Gill sought to exclude evidence of his two

convictions for simple assault as well as his convictions for

resisting arrest, criminal mischief, and willful concealment.

Gill argued that because none of the five misdemeanors

involved dishonesty or false statement or was punishable "by

2. Gill conceded that his prior convictions for filing a
false report and theft by deception were admissible under
Fed. R. Evid. 609(a)(2).

-3-
3

death or imprisonment in excess of one year," they could not

be admitted under Rule 609 of the Federal Rules of Evidence.

Thomas responded that while four3 of the five misdemeanors

were outside the parameters of Rule 609, each was nonetheless

admissible to impeach Gill's answer to interrogatory #7.

Interrogatory #7 asked:

If you have been convicted of a crime
involving potential punishment of one

year or more or involving dishonesty or

moral turpitude, please set forth the
nature of the crime, the date of each
conviction, the name of each court where
the conviction took place, and a full
description of any and all sentences
imposed.

(Emphasis added). Gill replied "No." Thomas argued that

Gill's failure to list the five misdemeanors (each of which

involved terms of imprisonment of "up to one year") as well

as the convictions for filing a false report and theft by

deception (both of which patently involved dishonesty)

constituted a false statement under oath, and Thomas should

be permitted to impeach Gill with this falsity at trial.

After a hearing, the magistrate judge denied the in

limine motion and stated that he would permit Thomas to

question Gill about his convictions for the limited purpose

of illustrating the inconsistency between Gill's

3. Thomas argued that Gill's conviction for willful
concealment may have involved dishonesty or false statement
and requested that the magistrate judge question Gill about
the facts surrounding his commission of this offense in order
to facilitate that determination.

-4-
4

interrogatory answer and "the apparent fact that he has been

convicted for a number of crimes which would have required

him to answer that interrogatory differently." The

magistrate judge also indicated that he would give a limiting

instruction to the jury if and when such testimony was

elicited.

C. Presentation of the Misdemeanor Evidence at Trial

After opening arguments, Gill took the stand as his

own first witness. In response to his attorney's questions,

Gill described the events surrounding his arrest and then

proceeded to enumerate each of his criminal convictions and

describe the circumstances surrounding them (to the extent he

could remember). For instance, after testifying that he had

been convicted of simple assault on June 10, 1985, Gill

recalled the circumstances of that crime by stating, "I think

that was involved again with the DWI." Gill was alluding to

his previous testimony about a driving-while-intoxicated

incident following which he was convicted for resisting

arrest.

Gill then addressed his answer to interrogatory #7.

Admitting that his answer was inaccurate, Gill explained that

he had mistakenly read the interrogatory to be asking about

felonies and believed that his convictions for filing a false

report and theft by deception did not involve dishonesty.

Finally, Gill squarely addressed his credibility in light of

-5-
5

his checkered criminal past and erroneous answer to

interrogatory #7, testifying as follows:

Q: Mr. Gill, in light of this long
criminal history that we've just gone
through, including some crimes which
involved some kind of dishonesty, how do
you expect the jury to believe the story
you've just told us about what happened
with Officer Thomas?

A: . . . I quit drinking in 1989 with
the help of a friend and have been trying
since then to turn my life around. . . .
Things that I can change about myself and
I have been changing, and I have since
1989 is I'm not a liar, and I'm not a
thief.

On cross-examination, Officer Thomas also

questioned Gill about his answer to interrogatory #7. For

each of Gill's convictions, Thomas asked whether Gill had

listed that particular conviction in his answer to

interrogatory #7, to which Gill repeatedly answered that he

had not. In the course of inquiring about Gill's January

1983 conviction for resisting arrest and his June 10, 1985,

conviction for assault, Thomas highlighted what had already

been brought out on direct, i.e., that both convictions

involved a police officer who was trying to place Gill in

custody.

Having offered the evidence of his criminal record

himself, Gill neither requested a jury instruction limiting

the purpose for which this evidence could be used nor

objected to Thomas's questions regarding these convictions on

-6-
6

cross-examination. The jury subsequently returned a verdict

for Officer Thomas, and this appeal ensued.

II.
II.

Analysis
Analysis

Gill appeals the magistrate judge's denial of his

in limine motion, arguing that the five misdemeanor

convictions were inadmissible under Rule 609 of the Federal

Rules of Evidence. Gill maintains that but for the

magistrate judge having indicated that he would permit Thomas

to raise them on cross-examination, Gill never would have

revealed his misdemeanor convictions on direct examination.

Our case law instructs us, however, that Gill chose to

introduce his convictions on direct examination at his peril

and cannot be heard to complain on appeal of the admission of

such evidence.

In Fusco v. General Motors Corp., 11 F.3d 259, 262

(1st Cir. 1993), we held that when a party's in limine motion

to exclude evidence is denied, she cannot rely on her

objection to the in limine ruling to preserve the right to

appeal the admission of the contested evidence. She must

renew her objection at trial "when the evidence is actually

offered."4 Id.; see also Adams v. Fuqua Indus., Inc., 820

4. Fusco also held, however, that where the in limine motion

to exclude is granted and the proponent of the evidence is
unconditionally precluded from presenting the evidence at
trial, the proponent has preserved the issue for appeal and
need not renew the offer at trial. 11 F.3d at 262-63. See

-7-
7

F.2d 271, 274 (8th Cir. 1987) ("[M]otion in limine does not

preserve error [in subsequent admission of evidence] for

appellate review."); Petty v. Ideco, Div. of Dresser Indus.,

Inc., 761 F.2d 1146, 1150 (5th Cir. 1985) ("[A] party whose

motion in limine is overruled must renew his objection when

the error he sought to prevent is about to occur at trial.").

We require this renewal in order to give the

district court an opportunity to "reconsider the ruling with

the concrete evidence presented in the actual context of the

trial." Fusco, 11 F.3d at 262; see also United States v.

Griffin, 818 F.2d 97, 105 (1st Cir.) (holding that "to raise

and preserve for review the claim of [evidentiary error], a

party must obtain the order admitting or excluding the

controversial evidence in the actual setting of the trial"),

cert. denied, 484 U.S. 844 (1987). Without such a

requirement, the reviewing court would be forced to speculate

whether the party who proposed to offer the evidence would

have done so at trial and whether, if she had offered the

evidence, the district court would have changed its in limine

ruling "in the give-and-take of live testimony." United

States v. Nivica, 887 F.2d 1110, 1115-16 (1st Cir. 1989),

also United States v. Holmquist, 36 F.3d 154, 166 n.12 (1st

Cir. 1994) (discussing situations in which the proponent of
evidence excluded by a pretrial in limine ruling will be

deemed to have preserved the issue for appeal without
proffering the excluded evidence during the trial), cert.

denied, 115 S. Ct. 1797 (1995).

-8-
8

cert. denied, 494 U.S. 1005 (1990). Thus, Gill cannot rely

solely on his in limine objection to preserve the evidentiary

issue for appeal.

At trial, rather than waiting for Thomas to

introduce the misdemeanors, objecting, and allowing the

magistrate judge to reconsider his in limine ruling, Gill

opted to introduce the misdemeanors preemptively to "remove

the sting" from Thomas's anticipated impeachment. While this

may have been a wise tactical decision, as a consequence,

Gill "opened the door" to Thomas's cross-examination on the

misdemeanors and thereby eliminated any potential evidentiary

error. Moreover, having offered the misdemeanors himself and

having received the strategic benefit therefrom, Gill cannot

now be heard to complain that his own offer of such evidence

was reversible error. See United States v. Williams, 939

F.2d 721, 723-25 (9th Cir. 1991) (holding that by introducing

evidence of conviction himself defendant waived right to

appeal in limine ruling that evidence of prior conviction was

admissible for impeachment); United States v. Bryan, 534 F.2d

205, 206 (9th Cir. 1976) (refusing to allow defendant to

complain about the admission of evidence about a prior

conviction when defendant introduced the offending fact in

the first instance); Shorter v. United States, 412 F.2d 428,

431 (9th Cir.) (same), cert. denied, 396 U.S. 970 (1969).

-9-
9

To preserve his in limine objection to the

admissibility of the misdemeanor convictions for this appeal,

Gill should have refrained from offering the evidence

himself, waited to see if Thomas introduced them on cross-

examination, and if so, objected then. In sum, Gill's own

action of offering the misdemeanor evidence himself rendered

it admissible. Or stated differently, by offering the

misdemeanor evidence himself, Gill waived his opportunity to

object and thus did not preserve the issue for appeal.

Affirmed.
Affirmed

-10-
10