Rojas v. Richardson

• Decision Date: 21 April 1983
• Docket Number: No. 82-2149,82-2149
• Citation: 703 F.2d 186
• Parties: 13 Fed. R. Evid. Serv. 66 Paulino Izaguirre ROJAS, Plaintiff-Appellant, v. Robert RICHARDSON, Kenneth McGee and M and R Cattle Company, a partnership, Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 186

703 F.2d 186

13 Fed. R. Evid. Serv. 66

Paulino Izaguirre ROJAS, Plaintiff-Appellant, v. Robert RICHARDSON, Kenneth McGee and M and R Cattle Company a partnership, Defendants-Appellees.

No. 82-2149

Summary Calendar.

United States Court of Appeals Fifth Circuit.

April 21, 1983.

Rehearing Granted Aug. 29, 1983.

Gregory L. Ceshker, Julianne May Young, Dallas, Tex., for plaintiff-appellant.

Richard Grainger, Tyler, Tex., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

Paulino Izaguirre Rojas worked as a ranch hand for Robert Richardson, a partner in the M and R Cattle Company along with Kenneth McGee. On December 4, 1980, Rojas met with Richardson and another employee for the day's work. Richardson furnished Rojas with a horse named Jet. Rojas had ridden this horse a few times before. When Rojas mounted Jet, the horse began bucking and running. Rojas finally was thrown from the horse and severely injured. Rojas later filed this suit in federal district court against Richardson, McGee, and the partnership, invoking diversity jurisdiction, 28 U.S.C. Sec. 1332(a)(2). Rojas claimed negligence in furnishing an inadequately broken horse with a dangerous bridle. In addition, he claimed a failure to give reasonable warnings regarding the dangers of the horse or its bridle. In the alternative, he sought payment of his medical expenses under the terms of his oral employment contract. The defendants denied these claims and countered with a defense of contributory negligence. After a full trial, the jury returned a verdict for the defendants.

Rojas brings a timely appeal, primarily seeking a new trial based on irreparable jury prejudice from the defense counsel's reference during closing argument to Rojas as an illegal alien. He also claims as error certain evidentiary rulings and limits on cross-examination. We reverse and remand on the basis of defense counsel's incendiary remarks to the jury during closing argument.

I. Objections to Closing Argument

Rojas' major argument is that defense counsel tainted the propriety of the trial by reference to Rojas as an illegal alien. Rojas claims that identification as an illegal alien was unsupported in the evidence, completely irrelevant to the issues before the court, and inherently prejudicial to a full and fair hearing on the merits. Rojas asserts the emotional weight of the remark by pointing out that the public education for undocumented aliens case, Doe v. Plyler, 628 F.2d 448 (5th Cir.1980), aff'd, --- U.S. ----, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), dealt with the school district for Tyler, Texas, where the trial in this case was held. Doe v. Plyler was pending in the United States Supreme Court when the trial was held. Rojas urges that the improper argument was directed especially toward the jury foreman, an employee of the Tyler Independent School District. He urges that any general prejudice of the jurors toward undocumented workers likely would have operated against him in this civil trial.

The employers have no serious counter to the substance of these charges. Rather, they claim that this issue was not preserved for appeal because no objection was made in the district court to use of the term "illegal alien."

We have checked the trial record carefully, and indeed find no objection during trial to use of the term "illegal alien." Rojas directs our attention to his request for a motion in limine made before trial. Paragraphs 2 and 3 of this motion in limine would have barred the use of testimony concerning the status of Rojas as a "wetback" or illegal alien, and the presentation of any evidence that the witnesses in the case ever employed undocumented workers. ¹ These two paragraphs of the motion in limine were denied. ² Rojas claims, first, that the denial of the motion in limine is an appealable error in its own right, and, second, that the request for the motion in limine should be sufficient to preserve the error regarding defense counsel's use of the term illegal alien.

First, we conclude that the denial of the motion in limine is not a sufficient ground for reversal in this case. Denial of a motion in limine rarely imposes a serious hardship on the requesting party, since the affected party can make a subsequent objection if the evidence is ever offered at trial. That later objection is the better time to evaluate the possible exclusion of testimony because it is at that time that the claims of prejudice and irrelevance move out of the abstract context of a motion in limine into the real world of an actual speaker and a specific statement. In the case before us, there is no particular injury claimed from the denial of the motion in limine other than that connected with the admission of later statements referring to Rojas as an illegal alien. We find the issue better framed by the "actual--instead of hypothetical--circumstances at trial." Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir.1980). Consequently, we look to the error, if any, committed when the actual statements regarding alienage were admitted, rather than when the blanket hypothetical requests to limit such statements were denied during pretrial motions.

Rojas urges that the motion in limine itself was a sufficient presentation of his concerns to the district court to preserve the assignment of error on appeal. This Circuit, however, has held otherwise. In Collins v. Wayne Corp., supra, the defendant corporation in a products liability action had cross-examined the plaintiffs' expert witness regarding his fees in prior cases. No objection was made at trial, although the plaintiffs had tried to suppress such testimony through a pretrial motion in limine. Judge Johnson stated the general rule that an overruled motion in limine does not preserve error on appeal.

Plaintiffs' counsel never objected to cross-examination of Severy about fees he had earned in prior cases. Plaintiffs therefore cannot predicate error on this cross-examination. Fed.R.Evid. 103(a)(1). The overruling of a motion in limine is not reversible error; only a proper objection at trial can preserve error for appellate review. See Annot., 63 A.L.R.3d 311, 333 (1975) and cases cited therein. Motions in limine are frequently made in the abstract and in anticipation of some hypothetical circumstance that may not develop at trial. When a party files numerous motions in limine, the trial court may not pay close attention to each one, believing that many of them are purely hypothetical. Thus, a party whose motion in limine has been overruled must object when the error he sought to prevent with his motion is about to occur at trial. This will give the trial court an opportunity to reconsider the grounds of the motion in light of the actual--instead of hypothetical--circumstances at trial.

Id. at 784.

The general rule is that where "no good reason is shown for the failure of appellant's trial counsel to object to the admission of evidence, the objection is deemed to have been waived." Puryear v. United States, 378 F.2d 29, 30 (5th Cir.1967). See also Jenkins v. General Motors Corp., 446 F.2d 377 (5th Cir.1971), cert. denied, 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793 (1972) (a timely objection generally is required to preserve appealability); United States v. Rayborn, 310 F.2d 339 (6th Cir.1962), cert. denied, 373 U.S. 952, 83 S.Ct. 1683, 10 L.Ed.2d 707 (1963) (accord ) (prosecutor's statements at trial).

Rojas relies upon the case of Reyes v. Missouri Pac. R.R. Co., 589 F.2d 791 (5th Cir.1979) in an attempt to carve a broad exception out of Collins. In Reyes, the plaintiff brought negligence claims against a railroad after he was run over by a train. The railroad claimed that Reyes was drunk on the night in question and had fallen asleep on the tracks. During pretrial proceedings, Reyes made a motion in limine to exclude evidence relating to four prior convictions for public intoxication. The motion was denied. Reyes then presented that evidence himself to the jury and later appealed the use of that evidence at trial.

This Circuit allowed such an appeal, rejecting the railroad's suggestion that Reyes had waived error by volunteering the information rather than objecting at trial. "After the trial court refused to grant Reyes' motion in limine to exclude the evidence, he had no choice but to elicit this information on direct examination in an effort to ameliorate its prejudicial effect. Error was sufficiently preserved by making the motion in limine. See Fed.R.Evid. 103, 28 U.S.C.A." Id. at 793 n. 2.

Reyes, however, stands only as an example of the general rule, not as a departure. Objection must be made in the trial court unless a good reason exists not to do so. In Reyes, the good reason was a valid trial strategy to attempt to soften the blow of damaging information by delivering the impendent punch to the jury. An objection to one's own testimony is an absurdity. It is impossible. This Circuit consequently found the offensive use of damaging information to fall outside the general rule requiring a timely objection.

Rojas, however, offers no justification for his failure to object. He made no offensive use of his status within this country, whatever that status may be. He makes no other claim of good cause for not raising the objection at trial. In the absence of such a showing, we have no choice but to find that he cannot claim an objection was lodged to the use of the phrase "illegal alien." Fed.R.Evid. 103(a)(1). See Brown & Root, Inc. v. Big Rock Corp., 383 F.2d 662 (5th Cir.1967) ("improper" and "inexcusable" appeals to sympathy and sectional prejudices of the jury are not appealable absent a timely objection at trial). Rojas' only possible recourse is establishing "plain error". ³

II. Closing Argument as Plain Error

Even if Rojas has waived his right to...