Sanders v. Buchanan
Decision Date | 10 March 1969 |
Docket Number | No. 9826.,9826. |
Citation | 407 F.2d 161 |
Parties | James W. SANDERS, Appellant, v. Horace BUCHANAN, Appellee. |
Court | U.S. Court of Appeals — Tenth Circuit |
Walter L. Gerash, Denver, Colo. (Herbert W. DeLaney, Jr., Denver, Colo., with him on the brief), for appellant.
Wesley H. Doan, Denver, Colo. (William F. Dressel and Joseph N. Lilly, Denver, Colo., with him on the brief), for appellee.
Before PHILLIPS, HILL and HICKEY, Circuit Judges.
This appeal is from a jury verdict denying plaintiff-appellant's claim. Appellant, Sanders, a negro, sued defendant, appellee Buchanan, a policeman, for damages incurred when he was deprived of civil rights guaranteed by 42 U.S.C. § 1983. Jurisdiction is conferred by 28 U.S.C. § 1343.
Sanders contends the trial court erred in permitting the introduction of collateral evidence to impeach his testimony; that the trial court erred by making remarks during the closing argument relative to Sanders' vagrancy conviction; that the court should have given an instruction to the jury advising them that a police officer may not shoot a fleeing misdemeanant; that it was error for the trial judge to respond to an inquiry made by the jury, after it had been sequestered, without notifying counsel; that the trial court failed to instruct the jury on Denver Police Department standards of conduct.
Buchanan shot Sanders at night in an alley while Buchanan and other policemen were attempting to apprehend a suspected prowler or window-peeper. The evidence, that the jury apparently accepted, is that Sanders came from an area where the offense had been reported, leapt over an incinerator into an alleyway, where Buchanan was waiting. Sanders stopped in his flight and moved in a manner which lead Buchanan to believe he was drawing a weapon and Buchanan shot Sanders in self defense. The jury denied Sanders' claim and this appeal followed.
Sanders contends he was shot as a fleeing misdemeanant and that the law is clear that a fleeing misdemeanant may not be shot. Buchanan contends he heard several gunshots prior to Sanders' appearance in the alley, thought Sanders was armed, and did not know whether he was a fleeing felon or misdemeanant. Buchanan testified that Sanders stopped in his flight, turned, and appeared to be taking a weapon from concealment whereupon Buchanan fired in self defense.
The record reveals that during the trial the court commented upon the admissability of evidence that tended to impeach Sanders.
The accuracy of the trial judge's ruling is reflected in the record by strict limitations required during the introduction of the impeaching testimony.
1
The allegedly erroneous remarks of the trial court, concerning Sanders' vagrancy conviction, during the closing argument of Sanders' counsel must be considered in the context of the entire trial. The record reflects that the issues in the trial were defined after counsel made some admissions. It was stipulated that at the time of the injury there was probable cause to arrest Sanders on a trespassing or vagrancy charge.
The court's remarks seem to be an effort to restate the admission. The court said: We agree that it had nothing to do with the case. The issue was whether or not Buchanan, acting as a reasonable person, was justified under all the circumstances, as revealed by the evidence, in shooting Sanders in what he believed to be self defense. Both counsel in their arguments agreed this was the sole issue and the question whether or not Buchanan acted as a reasonable person would under all the circumstances determine the outcome of the lawsuit. We conclude the statement of the court was not error in view of the stipulations made before and during the trial. Assuming, arguendo, that the comment was error, the comment was provoked by argument of counsel which was objected to by defendant's counsel. An appellant may not complain on appeal of errors which he himself induced or invited.2
Sanders contends that the trial court erred by failing to give three proffered instructions; two dealing with fleeing misdemeanants and one concerning Denver Police Department standards of conduct. As Sanders' attorney accurately observed:
"The only issue in this case * * is whether or not the defendant acted in self defense under the circumstances. * * *"
The requested instructions were superfluous. They dealt with facts which were extraneous to the agreed issue in the case; they simply were not relevant.
3
In addition it does not appear from the record that timely objection was made by Sanders' counsel vis-a-vis the instruction concerning the Denver Police Department's standards of conduct as they applied to Buchanan. This failure to comply with Fed.R.Civ.P. 51 precludes consideration of reversible error at this stage of the litigation.4
Finally Sanders contends the trial judge erred when, without first communicating with counsel, he refused to send the Rules and Regulations of the Denver Police Department to the sequestered jury in compliance with the jury's request. In order to identify the applicable rule, we must determine whether or not the trial judge's reply to the note was an instruction to the jury or an administrative direction.
The note, in haec verba, was replied to in writing by the judge in the following manner:
The manual had not been offered or received in evidence, however, the underlined clauses had been read and acknowledged as correct by the defendant during his cross-examination and was part of his testimony. The jury wanted the manual to interpret the clauses on a collateral matter. The issue was: Did Buchanan act as a reasonable man in believing he was defending himself when he shot the plaintiff?"
The portions of the rules and duty manuals requested were:
The rule with...
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