Antonio Correia, et al v. Feeney, et al

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Michael Boudin, Appellate Judge and Kermit V. Lipez, Appellate Judge. [09-2004]

Case: 09-2004 Document: 00116108738 Page: 1

Date Filed: 09/09/2010

Entry ID: 5479475

United States Court of Appeals
For the First Circuit

No. 09-2004
ANTONIO CORREIA,
Plaintiff, Appellant,
v.
WILLIAM FEENEY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Leon A. Blais, with whom Blais & Parent was on brief, for
appellant.
Nicole Murati Ferrer, Assistant Corporation Counsel, City of
Boston Law Department, for appellee.

September 9, 2010

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LIPEZ,

Circuit

Judge.

Date Filed: 09/09/2010

Entry ID: 5479475

Plaintiff-appellant

Antonio

Correia sued defendant-appellee, Sergeant Detective William Feeney,
for violating his civil rights by means of false arrest and the use
of excessive force. Following a trial, the jury returned a verdict
for

Feeney.

Correia

appeals,

claiming

that

the

trial

court

committed reversible error in denying his motion for a new trial,
in its answer to a question from the jury, and in allowing certain
cross-examination.

After careful review of the trial record we

find no error in the district court's denial of Correia's motion or
its handling of the case.

Accordingly, we affirm.
I.

On June 14, 2004, Correia filed this suit against three
Boston

Police

officers,

including

Feeney, and the City of Boston.
July 5, 2001.

Sergeant

Detective

William

His claims relate to the events of

On that day, Officer Feeney was working a routine

road construction detail at the intersection of Brook Avenue and
West Cottage Street in Boston.
Feeney's

detail

duty,

At some point during the course of

Correia

drove

intersection with West Cottage Street.

up

Brook

Avenue

to

the

Correia was in a hurry to

deliver insulin to his diabetic mother, who was at a house he owned
on the far side of the intersection of Brook Avenue and West
Cottage Street.

Feeney turned Correia away from the intersection,

which meant that Correia could not get to his driveway.

Upon being

denied access to his driveway, Correia pulled across the street and

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Entry ID: 5479475

parked in one of two spaces that were empty on the left side of the
street.

Feeney went over to the car and he and Correia had a

physical altercation that ended in Correia's arrest.

Correia's

amended complaint alleged that three police officers assaulted,
battered,

and

falsely

arrested

him

without

provocation

or

justification in violation of his federal and state constitutional
rights.
On August 15, 2007, a motion for summary judgment was
filed on behalf of all defendants except Feeney.

The district

court granted summary judgment for those defendants.1
against Feeney proceeded to trial.

The suit

After a four day trial that

concluded on May 29, 2009, and slightly over three hours of
deliberation, the jury found for Feeney on all claims.

Correia

then filed a motion for judgment as a matter of law or, in the
alternative, for a new trial pursuant to Federal Rule of Civil
Procedure 59.
2009.

The district court denied the motion on June 24,

Correia now appeals.
II.
As noted, Correia argues on appeal that the district

court erred in: (1) denying his motion for a new trial because the

1

The district court entered an order purporting to grant
summary judgment for all the defendants, including Feeney. Correia
v. City of Boston, No. 04-11335 (D. Mass. Nov. 28, 2007).
On
appeal, we found that the dismissal of the claims against Feeney
must have been a clerical error and remanded the case for further
proceedings. Correia v. City of Boston, No. 08-1090 (1st Cir. Sept
23, 2008).
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weight of the evidence at trial was in his favor; (2) responding to
a

question

posed

by

the

jury

in

an

unfair,

confusing,

and

misleading fashion; and (3) permitting a prejudicial line of
questioning on cross-examination over Correia's objection.

We

consider these issues in turn.
A. Denial of Correia's motion for a new trial
The district court "should grant a motion for a new trial
only if 'the outcome is against the clear weight of the evidence
such that upholding the verdict will result in a miscarriage of
justice.'"

Goulet v. New Penn Motor Express, Inc., 512 F.3d 34, 44

(1st Cir. 2008) (quoting Ramos v. Davis & Geck, Inc., 167 F.3d 727,
731 (1st Cir. 1999)).

On appeal, we owe much deference to the

trial court's determination.

See Jennings v. Jones, 587 F.3d 430,

437 (1st Cir. 2009) ("'Circuit judges, reading the dry pages of the
record, do not experience the tenor of the testimony at trial.'"
(quoting United States v. Alston, 974 F.2d 1206, 1212 (9th Cir.
1992))).

Unlike our review of a motion for judgment as a matter of

law, we do not engage in de novo review and "we do not take the
evidence in the light most favorable to the verdict winner." Id. at
438.

We reverse only if we find that the trial court has abused

its discretion in making its assessment of the weight of the
evidence.

Id. at 436-37 & n.7.
In arguing that the jury's verdict for Feeney was so

against the weight of the evidence that he was entitled to a new

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trial, Correia cites testimony at trial corroborating his version
of events and purported contradictions in Feeney's testimony.

In

addition, he argues that the length of the jury deliberations
supports the conclusion that the verdict was "out of sync with the
evidence presented."

We disagree.

The material dispute at the core of Correia's excessive
force and unlawful arrest claims involves Feeney's interaction with
Correia when he first spoke to and then confronted him in his car
after he had parked.

In order to prevail on his excessive force

claim, Correia had to show that "the defendant employed force that
was unreasonable under all the circumstances." Morelli v. Webster,
552 F.3d 12, 23 (1st Cir. 2009).

His unlawful arrest claim

required a showing that Feeney lacked probable cause to arrest him.
See id. at 19.

In essence, both claims required the jury to find

that Feeney's behavior during the confrontation with Correia was
unwarranted and unreasonable.
Only Correia and Feeney were able to give accounts at
trial

of

what

they

said

and

did

during

their

confrontation.

Correia testified that after he refused to give Feeney his car
keys, Feeney, without warning and without asking Correia to produce
his license, grabbed and twisted Correia's arm through the car
window, opened the car door, and started punching him.
insisted that he did not punch or hit Feeney.

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Correia

At some point during

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the ensuing scuffle, however, when Feeney had Correia in a grip
that impeded his breathing, he bit Feeney to get him to let go.
Feeney testified that Correia refused to produce his
license when asked.

Feeney then tried to remove Correia from the

car, prompting Correia to bite him.
bite, Feeney hit him.

To get Correia to release his

No other witnesses at trial gave accounts of

that part of the altercation.

Thus, the jury had to decide whether

to accept Correia's account of the altercation or Feeney's.

That

they exercised their judgment in favor of Feeney is not grounds for
a

new

trial.

“It

is

axiomatic

that,

absent

exceptional

circumstances, issues of witness credibility are to be decided by
the jury."

United States v. Garcia, 978 F.2d 746, 748 (1st Cir.

1992) (internal quotation marks and citation omitted).
Correia

argues

that

his

witnesses

corroborated

his

version of events, while Feeney's witnesses gave contradictory
accounts of what transpired, harming Feeney's credibility.

That

argument overlooks inconsistencies in the evidence presented by
Correia's witnesses. For example, Correia and one of his witnesses
asserted that two other officers who had been working the detail
with Feeney came to the scene to assist him, helped him remove
Correia from the car, and then were "stomping him" with their feet
once

he

was

on

the

ground.

Correia's

other

four

witnesses

testified that he was not beaten once he was removed from the car.
Those inconsistencies were damaging to Correia's case.

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It was reasonable for the district court to conclude, in assessing
Correia's motion for a new trial, that the verdict was not clearly
against the weight of the evidence.

The district court did not

abuse its discretion when it denied the motion for a new trial.2
B. The answer to the jury's question
At the close of arguments, the district court instructed
the jury, inter alia, on the Fourth Amendment issues implicated by
Feeney's

entry

into

Correia's

vehicle.

After

a

period

of

deliberation, the court received a written question from the jury:
"Can Detective Feeney enter the car without violating the Fourth
Amendment after refusing to produce license and registration?"3
Prior to summoning the jury to respond to their question, the judge
told counsel that he planned to answer as follows: "The short
answer to the question is yes, but you should consider all of my
instructions, and, particularly, those that related to unlawful
arrest and excessive force . . . ."

Hearing this proposal, counsel

for Correia suggested that the judge simply reply, "that is for the

2

Although Correia also moved below for judgment as a matter
of law, he has not properly renewed that claim on appeal. In his
summary of the argument, he does not refer to his claim for
judgment as a matter of law, simply stating, "Antonio Correia
should receive a new trial because the clear weight of the evidence
was in his favor . . . ."
The argument presented after that
summary does not develop his claim for judgment as a matter of law.
Because of the lack of any briefing on this issue, it is waived.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). It
would fail in any event.
3

The jury was referring to Correia's alleged refusal to
produce his license and registration.
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jury to decide."

Date Filed: 09/09/2010

Entry ID: 5479475

If the court gave its answer as proposed,

Correia's counsel asked that the court "note our objection."
Correia did not renew his objection when the final answer was read
to the jury, which was as follows: "[T]he short answer to your
question is yes, but you should consider all of my instructions on
the law in deciding the issues before you."
On appeal, Correia argues that the court's answer was
flawed for three reasons: it assumed the validity of a disputed
fact, namely that Correia refused to produce his license and
registration; it emphasized the unlawful arrest claim over the
excessive force claim; and it decided Correia's unlawful arrest
claim when combined with the inference that Correia refused to
produce his license and registration.
A case could be made that Correia did not properly
preserve

these

reviewing

his

objections
objections

for
only

appeal
for

and

plain

that

we

error.

should
His

be

vague

objections were not adequate to make clear to the district judge
the arguments he now presses on appeal.

See Bos. Gas Co. v.

Century Indem. Co., 529 F.3d 8, 19 (1st Cir. 2008).

And the

judge's answer changed the instruction, which should have prompted
Correia to renew his objections with further explanation if he were
not satisfied, which he failed to do.

See Booker v. Mass. Dep't of

Pub. Health, No. 09-1082, 2010 WL 2776627, at *5 (1st Cir. July 15,
2010).

Regardless, even if reviewed as preserved objections,

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Davignon v. Hodgson, 524 F.3d 91, 108 (1st Cir. 2008), we find no
merit in any of Correia's claims of error.
The text of the exchange between the court and the jury
does not support Correia's assertion that the court's response of,
"Yes,"

to

the

jury's

question

somehow

affirmed

the

truth

of

Feeney's claim that Correia had refused to produce his license when
asked by Feeney.

The court's one-word response did not suggest to

the jury that the hypothetical it had posed was the only version of
the facts.
question.

Rather, it was a direct answer to the jury's legal
See Bollenbach v. United States, 326 U.S. 607, 612-13

(1946) ("When a jury makes explicit its difficulties a trial judge
should clear them away with concrete accuracy.").

By the same

token, simply by answering, "Yes," to the jury's question, the
court did not emphasize the unlawful arrest violation over the
excessive force violation.

The question concerned a fact related

to the unlawful arrest claim. Although the answer responded to the
question as framed, it did not, in so doing, diminish the excessive
force portion of Correia's case. Moreover, the court's reminder to
the jury that it should consider the entirety of the court's
instructions in deciding the issues before it avoided any problem
of undue emphasis.
Finally, there is no support for the argument that the
court's answer to the jury's question decided any of Correia's
claims.

Again, the court instructed the jury to consider the

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answer to its question in light of the jury instructions as a
whole.

In offering that instruction, the court did not make any

comment on disputed questions of fact, such as whether Correia was
asked for his license, whether he refused to produce it, and
whether

the

force

Feeney

used

to

deal

"unreasonable under all the circumstances."
23 (1st Cir. 2009).

with

Correia

was

Morelli, 552 F.3d at

In sum, the court's reply to the jury's

question was not "misleading, unduly complicating, or incorrect as
a

matter

of

law,"

nor

did

it

"adversely

affect[]"

Correia's

"substantial rights." United States v. Stark, 499 F.3d 72, 79 (1st
Cir. 2007) (internal quotation marks omitted).
C. Correia's testimony on cross-examination
Correia

contends

that

the

district

court

erred

in

permitting a line of questioning by Feeney's attorney during his
cross-examination of Correia.

He claims that the testimony was

admitted over his objection and served only to prejudice the
all-white

jury

against

him,

framing

him

as

a

minority,

an

immigrant, and an "interloper, a freeloader, a deadbeat, [and] an
opportunist."

Correia argues that the cross-examination testimony

carried so significant a potential for prejudice that the district
court should have excluded it under Federal Rule of Evidence 403.
Unfortunately for Correia, he himself "set the stage for
the admission of the evidence that he now seeks to challenge."
Udemba v. Nicoli, 237 F.3d 8, 14 (1st Cir. 2001).

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On direct

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examination, Correia answered several questions from his counsel
establishing

background

information

about

him.

The

line

of

questioning revealed that Correia is a native of Cape Verde; has
resided in the United States since 1978; has been a citizen since
1981; speaks little English; was injured in the workplace within
five years of residing in the United States; and now owns and
manages five multifamily properties that he rents to Section 8
housing recipients.
On cross-examination, Feeney's counsel pursued further
some of the background information disclosed by Correia:
Q. ([defense counsel]). You worked briefly
when you got [to the United States], about
five years?
A. (MR. CORREIA). Yes.
Q. You went out on disability. You've been on
disability since, correct?
A. Yes.
Q. So you've been claiming since 1982 that
you've been unable to work because of some
type of shoulder injury, as I understand it,
is that correct?
A. Yes . . . .
. . . .
Q. So you can do things with your right hand,
right? Write, drive, do everything you can
with your right hand, right?
A. Write? I don't write because I don't know
how to write. But I can drive.

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Q. Okay. So in your claim for your injury from
1982, you got money because you sued someone?
A. No, I didn't sue anyone. I got disability
but they didn't give me the money all at once.
They gave me pension.
Q. So you have been getting money every week
or every month since 1982?
A. Yes.
Q. . . . Through the amount of money that
you've been receiving, you've acquired five
pieces of property, multi-family houses,
right?
A. Not correct. I bought them with a bank,
with credit from the bank.
. . . .
Q. Okay. And you rent these to people . . .
who have a Section 8 certificate who get their
rent paid for by the government, right?
A. Yes.
Q. And that's a good thing because you can
count on regular payment of the rent through
the federal government, correct?
A. Not only that. . . .
Q. And the rent gets paid by the federal
government; is that not correct?
[COUNSEL FOR CORREIA]. Objection, your Honor,
to the line of questioning. It's irrelevant.
THE COURT. Overruled.
Defense counsel continued to press Correia on his English skills,
presumably seeking to counter Correia's claim that because of his

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limited English skills he had not understood Feeney's directions
when he pulled into the parking space by his house.
Before reaching the merits of Correia's claim, we must
determine what standard of review applies.

We have described as a

"bedrock rule" the principle that "a party who unsuccessfully
objects to the introduction of evidence on one ground cannot . . .
raise

an

entirely

new

ground

of

objection

forfeiting the usual standard of review."

on

appeal

without

Udemba, 237 F.3d at 14-

15; see also Fed. R. Evid. 103(a)(1) (establishing that a court's
error may not be predicated upon a ruling admitting evidence unless
"a timely objection or motion to strike appears of record, stating
the specific ground of objection, if the specific ground was not
apparent from the context . . .").
When Correia objected below to the line of questioning,
he argued that it was irrelevant.

In so objecting, he suggested

that the testimony had no probative value and thus was inadmissible
pursuant to Federal Rule of Evidence 402.

By contrast, Correia's

appeal is based on the testimony's prejudicial nature under Rule
403, which applies only to relevant evidence. Thus, he attempts to
appeal the district court's evidentiary ruling on a ground that the
court below had no opportunity to consider.
Where, as here, the grounds for appeal have not been
preserved, we review the district court's admission of evidence for
plain error.

See United States v. Mardirosian, 602 F.3d 1, 11 (1st

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Case: 09-2004 Document: 00116108738 Page: 14

Cir.

2010).

"Under

plain

Date Filed: 09/09/2010

error

review,

we

will

Entry ID: 5479475

consider

a

forfeited objection only if: (1) an error was committed; (2) the
error was 'plain' (i.e. obvious and clear under current law); (3)
the error was prejudicial (i.e. affected substantial rights); and
(4) review is needed to prevent a miscarriage of justice."
v. Kmart Corp., 177 F.3d 19, 26 (1st Cir. 1999).
reversal,

there

miscarried

or

compromised."

must
that

be
the

"a

demonstration

trial's

basic

that

Smith

To merit

justice

fairness

has

has
been

United States v. Hadfield, 918 F.2d 987, 995 (1st

Cir. 1990), cert. denied, 500 U.S. 936 (1991).
In

direct

examination,

Correia's

counsel

asked

him

questions about an injury that he experienced in the workplace,
properties that he owns, and his limited capacity to speak English.
Thus, Correia made such background information relevant through his
own testimony.

To the extent that the cross-examination raised

concerns of undue prejudice under Rule 403, Correia never lodged
such an objection.

Under these circumstances, he cannot establish

that any error in the allowance of the cross examination, or some
portions of it, was sufficiently grave to satisfy plain error
review.
Affirmed.

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