Free USCA Mandate - District Court of Connecticut - Connecticut

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1 · ‘ ‘ vi-? -._.-~.. I-*= : T 6-JCH Document 58 Filed 10/20/2003 Page 1 014
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11 UNITED STATES APPEALS 1
2 FOR THE SEGO RCUIT _
31 [11:128 1110111111 W13 A
41 SQl@ARÂ¥ ORDER
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61 THIS SUM ARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL ·
7 REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO
8 1 THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE
91 ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE 1
10 OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR
11 PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
12 1
13, At a stated term of the United States Court of
141 Appeals for the Second Circuit, held at the Thurgood 1
15 Marshall United States Courthouse, Foley Square, in the 1
161 City of New York, on the 21H* day of J°“€ , two 2
17 thousand and three. '
18 1
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20 1 PRESENT: HON. ROGER J. MINER, •§q$ \L_ ‘ , 0£‘€¥}° 1
211 HON. DENNIS JACOBS,’ - {F A QA.
221 1-10111. J0sE A. CABRANES, S, JUN 2411 2005 _ "’
231 Circuit Judges. r —;, _.“
241 ’A ·‘ .`.c"i
351 ...--·--------.-*- X 1
26 GARY SESSIONS, ·
271
281 Plaintiff—Appellant,
291 A.
301 -v.- I 02-7337
311 2
321 QUINCY D. FREEMAN, STEVEN TEAGUE, 1
331 Ofcx, RAYMOND BRIGHT, Ofcr, KENNETH 1
341 BLANCHARDS,. Ofcr, LEE—ANN ROHMER, =
351 Ofcr, EDUARDO DIAZ, Ofcr, MARK 1
361 FOSTER, Ofcr, JOSEPH STREETO, Sgt., 1
371 Defendants-Appellees.
381 `'`"`" a,TQ “'“''“''"'“ X
401
41 APPEARING FOR APPELLANT: GARY SESSIONS, PIO Se,.West
42. Haven, CT.
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` ' _ · Case 3:00-cv-00046-JCH Document 58 Filed 10/20/2003 Page 2 of 4
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1* APPEARING FOR APPELLEES: MARTIN S. Echter, Deputy
2, Corporation Counsel, New ‘ I
3i Haven, CT.
4(
5( Appeal from the United States District Court for the (
6( District of Connecticut (Hall, gp). *
7
J UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, (
9, ADJUDGED AND DECREED that the judgment of the district ;
I0, court be AFFIRMED. (
I1
IQ. Plaintiff Gary Sessions, pro se, appeals from a final (
13( judgment entered in the District of Connecticut (Hall, ?
I4( Qi). dismissing his federal constitutional and state law (
15( claims after a jury returned a verdict in favor of (
16( defendant New Haven Police Officers Quincy Freeman, Lee- E
I7( Ann Rohmer, Eduardo Diaz, Mark Foster, and Sergeant (
IB, Joseph Streeto. Sessions alleges that defendants (
12 violated his rights when they (inter alia) stopped and (
2Q searched him in reliance upon an anonymous tip that (
2E Sessions was driving with a murder suspect in his car. (
22; ·
23% (I) Sessions first argues that the jury instructions (
24, were erroneous because the district court: (a) failed to 5
25 adequately convey that it had directed a verdict against (
Zal three defendants with regard to the initial stop and (
.2] search, and (b) unduly prejudiced the jury by stating
2S) that, with regard to “whether [Officer Freeman] had _
29 reasonable suspicion to believe that the murder suspect
3 was Mr. Session's passenger .... , it does not matter Q
3 that Mr. Session was stopped in West Haven by New Haven Q
3 gfficers.” Sgg Tr. at 560-61 (emphasis added), E
33
34( We see no reversible error. The court adequately
35 instructed the jury as to the directed verdict, sg; Tr.
33 at 567, and while the location of the stop might have (
3,. been relevant to qualified immunity, the challenged ;
38 statement was part of an explication of the concept of (
3 I reasonable suspicion. Viewed in the context of the (
4 record as a whole, the statement did not unduly prejudice E
41 Sessions. Sp; United States v. Tocco, 135 F.3d 116, 129
42( (2d Cir. 1998) (“When a judge's conduct is challenged as (
43 displaying bias against [a party], the entire record must (
4`( be examined to determine whether the jurors have been so
4g impressed by the judge's partiality that it affected their
4( deliberations.”). , (
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` 'i ” · ‘ Case 3:00-cv—0OO46-JCH Document 58 Filed 10/20/2003 Page 3 of 4 E
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% (2) Sessions contends that the district court erred
3 in submitting the affirmative defense of qualified -
# immunity to the jury. Since the facts relating to the
3 defense were disputed, and the court may decide the issue [
Q1 of qualified immunity only on the basis of undisputed (
it facts, the issue was properly submitted to the jury. See '
S. Oliveira v. Mayer, 23 F.3d 642, 650 (2d Cir. 1994) (“The (
9. District Court should have let the jury (a) resolve the[] 9
10) factual disputes and (b) based on its findings, decide i
lji whether it was objectively reasonable for the defendants i
12 to believe that they were acting within the bounds of the E
ljq law when they detained the plaintiffs.”). - 1
1 1
lg (3) Sessions next claims that the district court .1
ld abused its discretion in admitting testimony regarding _
11 the purportedly anonymous tipster. Sessions did not .i
ld object to admission of this evidence, and we see no I
1%, reversible error in admitting it absent any objection.‘ I
201 See United States v. Gelzer, 50 F.3d 1133, 1141 (2d Cir.
mi 1995) . i
22% i
2j (4) According to Sessions, the district court should
_2Q have directed a verdict against defendant Diaz with
25 respect to the initial stop and search, since the court §
28 directed a verdict against three similarly—situated $
2% defendants. While the record on appeal is unclear as to i
2Q. whether Sessions even moved for a directed verdict `
2§“ against Diaz, something Sessions has the burden of I
Bd showing, see Fed. R. App. P. 10(b), whether he did so is {
3h immaterial. Even if he moved for a directed verdict and Q
32 the district court erred in denying the motion, the _ g
33, jury's explicit finding that the initial stop and search (
3 y did not proximately cause any cognizable damages would
32 make any such error harmless. See Tr. at 602-04. E
3.
37 (5) Finally, Sessions claims that it was reversible
3Q error to allow defense counsel to argue at closing that ‘ (
3Qy Sessions had not established proximate cause. This
4d, argument did not exceed the wide latitude granted counsel
4% with regard to closing arguments. See United States v.
42, Myerson, 18 F.3d 153, 163 (2d Cir. 1994) (stating that
43§ counsel “are entitled to broad latitude" in their closing
4% arguments, “provided they do not misstate the evidence") g
4 Y (quoting United States v. Smith, 778 F.2d 925, 929 (2d Q
42 cir. 1985))). j (
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R ’ I .' ‘ Case 3:00-cv-00046-JCH Document 58 Filed 10/20/2003 Page40f4
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For the reasons set forth above, the judgment of the
2f district court is AFFIRMED. I
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4g FOR THE COURT:
EE l ROSEANN B. MACKECHNIE, CLERK
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l0§ . Lucille Carr, Deputy Clerk l
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