Wilson v. Williams

• Decision Date: 17 August 1999
• Docket Number: No. 97-2637,97-2637
• Citation: 182 F.3d 562
• Parties: (7th Cir. 1999) Jackie Wilson, Plaintiff-Appellant, v. James K. Williams, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 562

182 F.3d 562 (7th Cir. 1999)

Jackie Wilson, Plaintiff-Appellant, v. James K. Williams, Defendant-Appellee.

No. 97-2637

United States Court of Appeals, Seventh Circuit

Argued April 22, 1999

Decided June 29, 1999

Rehearing Denied August 17, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 90 C 3642--Bernard A. Friedman, Judge.

Before Posner, Chief Judge, and Harlington Wood, Jr., Coffey, Easterbrook, Ripple, Manion, Kanne, Diane P. Wood, and Evans, Circuit Judges.^*

Easterbrook, Circuit Judge.

We heard this case en banc to decide whether an objection at trial always is necessary after a pretrial ruling that evidence will be admitted. We conclude that a definitive ruling in limine preserves an issue for appellate review, without the need for later objection--but this is just a presumption, subject to variation by the trial judge, who may indicate that further consideration is in order. Moreover, issues about how the evidence is used, as opposed to yes-or-no questions about admissibility, frequently require attention at trial, so that failure to object means forfeiture. This latter principle determines the outcome of today's case.

Jackie Wilson alleges in this suit under 42 U.S.C. sec.1983 that James Williams, a guard at the Cook County Jail, attacked him without provocation and inflicted serious injuries. Williams contends that Wilson was the aggressor and that the force used in defense was reasonable under the circumstances. The district court granted summary judgment to Williams, but we reversed and held that the conflicting stories must be presented to a jury. 997 F.2d 348 (1993). After a trial ended in a verdict for Williams, we reversed because of errors in the jury instructions. 83 F.3d 870 (1996). The second jury likewise sided with Williams, and this time the panel affirmed. 161 F.3d 1078 (1998).

Two police officers stopped the car in which Jackie and his brother Andrew were riding. Andrew grabbed one officer's service revolver and shot both with it, killing them; Jackie, who stole the second officer's gun, is culpable as an accomplice under the felony-murder doctrine because the deaths occurred during the commission of another felony (not only the thefts of the guns but also a plan to use the guns in helping a friend break out of prison). Andrew was convicted of both murders, People v. Andrew Wilson, 254 Ill. App. 3d 1020, 626 N.E.2d 1282 (1st Dist. 1993), and Jackie of one, People v. Jackie Wilson, 257 Ill. App. 3d 670, 628 N.E.2d 472 (1st Dist. 1993). Both Wilsons are serving terms of life imprisonment without possibility of parole, and both filed sec.1983 suits contending that they were beaten (in separate incidents) while in custody before their convictions. Andrew recovered a substantial judgment, Wilson v. Chicago, 120 F.3d 681 (7th Cir. 1997), though he had trouble receiving a fair trial because the defendants harped on the nature of the crime he had committed. See Wilson v. Chicago, 6 F.3d 1233 (7th Cir. 1993) (reversing an initial jury verdict in defendants' favor because the district judge failed to control inappropriate use of Andrew's criminal history).

Before the second trial of his civil suit began, Jackie Wilson asked the district judge to prevent Williams from informing the jury that he had been convicted of killing a police officer. Wilson recognized that his criminal history could be used to impeach him. Although the convictions could not be used automatically under Fed. R. Evid. 609(a)(1), he remained subject to impeachment if application of Fed. R. Evid. 403 made it appropriate. Cf. Fed. R. Evid. 609(a)(2); Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989). Wilson's crimes called into question his willingness to be an honest witness. His life sentence meant that the threat of a perjury prosecution could not deter him from lying, and his lack of assets meant that malicious- prosecution or abuse-of-process litigation likewise held no terror for him. But Wilson sought to keep the identity of his crime from the jury's knowledge, lest the "cop killer" label inflame the jury against him. Old Chief v. United States, 519 U.S. 172 (1997), shows that Wilson's was a reasonable request. Nonetheless, the judge denied the motion in limine, and when the trial began Wilson tried to make the best of his situation. His lawyer told the jury during his opening statement why Wilson was in custody and tried to use this to Wilson's advantage by arguing that Williams attacked Wilson because of the nature of Wilson's crime. Although Wilson's lawyer used the nature of the crime circumspectly, Williams's counsel had no reservations about the subject and invited the jury to rule against Wilson on emotional grounds. Practically the first words of counsel's opening statement were:

I'd like to reintroduce the litigant, Jackie Wilson, cop killer, murdered a Chicago police officer who was on duty, Officer O'Brien. He also robbed Officer O'Brien. He was convicted of that. He also robbed Officer O'Brien's partner, Officer Fahey. He was also convicted of that. And, yes, that is the crime he was waiting trial on back in 1988 in the Cook County Jail.

Throughout the trial, Williams's lawyer did not miss an opportunity to remind the jury that Wilson had committed a despicable offense, and therefore must be a despicable person who should not collect a dime. Defense counsel was not satisfied with a suggestion that the jury should consider the conviction in connection with Wilson's credibility as a witness. The nature of the crime colored the trial. "Cop killer" was the refrain; defense counsel was inflammatory throughout; neutral language such as "criminally accountable because he participated in a robbery during which his brother Andrew shot two men" did not pass counsel's lips.

Wilson did not object to defendant's telling the jury that he had been convicted of killing a police officer; by the time defense counsel stood up Wilson was hardly in a position to object, having provided that information himself. But he did argue on appeal that the judge should have granted the motion in limine and put the subject off limits to both sides. The majority of the panel concluded that failure to object at trial forfeited any opportunity to raise the issue on appeal; that the anticipatory use of the information affirmatively waived any entitlement to its exclusion; and that any error was harmless. The dissenting judge concluded that objection at trial was unnecessary, given the ruling in limine, and that the error was prejudicial. Although this may seem impossible, the court en banc concludes that both the majority and the dissent were fundamentally correct, and we affirm for a combination of the reasons given by both the majority and the dissent.

First in sequence is the question whether an objection at trial was necessary, given the district court's pretrial ruling that Williams would be allowed to inform the jury that Wilson had been convicted, not simply of murder, but of killing a police officer. As the panel recognized, this court's precedents are in conflict. On the one hand, United States v. York, 933 F.2d 1343, 1360 (7th Cir. 1991), holds that an objection at trial is necessary no matter how definitive the pretrial ruling may be. On the other hand, United States v. Madoch, 149 F.3d 596, 600 (7th Cir. 1998), holds that although conditional rulings require further action at trial, definitive ones do not. Most cases in this circuit reach a conclusion similar to that of Madoch. E.g., Favala v. Cumberland Engineering Co., 17 F.3d 987, 991 (7th Cir. 1994); Stutzman v. CRST, Inc., 997 F.2d 291, 298 (7th Cir. 1993); Allison v. Ticor Title Insurance Co., 979 F.2d 1187, 1200 (7th Cir. 1992); Cook v. Hoppin, 783 F.2d 684, 691 n.2 (7th Cir. 1986). An amendment to Fed. R. Evid. 103 that would resolve this disagreement, and provide that objection at trial is not necessary if the pretrial ruling is definitive, is wending its way through the long process under the Rules Enabling Act. See 181 F.R.D. 133 (1998). As it stands, however, Rule 103 is silent on the subject; we must formulate our own approach rather than appeal to authority or decide whether the pending amendment is the best solution.

One good example of a conditional ruling is a judge's statement that, if a litigant testifies, then the adverse party will be entitled to cross- examine in such-and-such a way. Until the condition has been satisfied by the testimony, the ruling has no effect. It is impossible to determine on appeal whether the ruling made a difference unless the witness does testify and the unfavorable evidence is admitted; what is more, there is a risk that the witness did not plan to testify even if the ruling had been favorable, but sought only to create an issue for appeal. In circumstances like this, the litigant must satisfy the condition in order to present the claim on appeal. Luce v. United States, 469 U.S. 38 (1984). Similarly, if the judge's pretrial ruling is tentative--if, for example, the judge says that certain evidence will be admitted unless it would be unduly prejudicial given the way the trial develops--then later events may lead to reconsideration, and the litigant adversely affected by the ruling must raise the subject later so that the judge may decide whether intervening events affect the ruling. An appeal in such a case without an objection at trial would bushwhack both the judge and the opponent. Objections alert the judge at critical junctures so that errors may be averted. When a judge has made a conditional, contingent, or tentative ruling, it remains possible to avert error by revisiting the subject.

Definitive rulings, however, do not invite reconsideration. When the judge makes a decision that does not depend on how the trial proceeds, then an objection will not serve the function of ensuring focused consideration at the time when decision is best...