Powell v. Burns, 763 F.2d 337 (8th Cir. 1985). · Go Syfert
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Powell v. Burns, 763 F.2d 337 (8th Cir. 1985). Cases Citing This Book View Copy Cite
20 citation events (5 in the last 25 years) across 4 distinct courts.
Strongest positive: Rose Marie Day, Personal Representative Of The Estate Of Jason David Day, Deceased v. Gerald Toman (ca8, 2001-09-17)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (rule) Rose Marie Day, Personal Representative Of The Estate Of Jason David Day, Deceased v. Gerald Toman
8th Cir. · 2001 · confidence medium
Toman's failure to object to Lessert's testimony "'at the first available opportunity served to waive any ground of complaint against its admission, absent plain error.'" Powell v. Burns, 763 F.2d 337, 338 (8th Cir. 1985) (quoting United States v. Vesich, 724 F.2d 451, 462 (5th Cir. 1984)).
discussed Cited as authority (rule) Rose Marie Day v. Gerald Toman
8th Cir. · 2001 · confidence medium
To-man’s failure to object to Lessert’s testimony ‘“at the first available opportunity served to waive any ground of complaint against its admission, absent plain error.’ ” Powell v. Burns, 763 F.2d 337, 338 (8th Cir.1985) (quoting United States v.. Vesich, 724 F.2d 451, 462 (5th Cir.1984)).
discussed Cited as authority (rule) James McLennan v. Kenneth McKee
8th Cir. · 1999 · confidence medium
First, we find that the district court did not abuse its discretion in denying subpoenas for some of Mr. McLennan’s inmate witnesses because the court found the witnesses’ testimony would be duplicative, see Williams v. Carter, 10 F.3d 563, 566 (8th Cir. 1993) (standard of review); second, the district court told Mr. McLennan his girlfriend could testify and it was his responsibility to notify her when the hearing was scheduled; and third, Mr. McLennan failed to object at the hearing to the additional defense witnesses, and allowing them to testify was not plain error, cf. Powell v. Burns,…
cited Cited as authority (rule) Terry Gee v. Detective James Pride David Robbins James Conway Nesby Moore Rita Krapf and Vincent Schoemehl
8th Cir. · 1993 · confidence medium
Baxley-DeLamar Monuments, Inc. v. American Cemetery Ass’n, 938 F.2d 846 , 854 (8th Cir.1991); Powell v. Burns, 763 F.2d 337, 338-39 (8th Cir.1985).
discussed Cited as authority (rule) Baxley-DeLamar Monuments, Inc. v. American Cemetery Ass'n
8th Cir. · 1991 · confidence medium
Since Baxley failed to object at trial to the evidence about the Pine Crest case (despite the district court’s admonition before trial to do so), it has not preserved the matter for appeal, see Powell v. Burns, 763 F.2d 337, 339 (8th Cir.1985), and we do not consider the admission plain error.
discussed Cited as authority (rule) Baxley-D v. American Cemetery Association
8th Cir. · 1991 · confidence medium
III. 26 Baxley next argues that the district court erred in permitting evidence and argument regarding the decision of Pine Crest Memorial Park v. Burton, 229 Ark. 1 , 312 S.W.2d 919 (1958), an Arkansas case dealing with cemetery rules, including an exclusive installation rule. 27 Since Baxley failed to object at trial to the evidence about the Pine Crest case (despite the district court's admonition before trial to do so), it has not preserved the matter for appeal, see Powell v. Burns, 763 F.2d 337, 339 (8th Cir.1985), and we do not consider the admission plain error.
discussed Cited "see" State v. Neswood
N.M. Ct. App. · 2002 · signal: see · confidence high
See Powell v. Burns, 763 F.2d 337, 338 (8th Cir.1985) (holding objection on grounds of relevance and materiality was untimely where plaintiff failed to object until after officer had already answered a number of questions on the subject); cf. George M.
discussed Cited "see" United States v. J. (a Juvenile)
10th Cir. · 1997 · signal: see · confidence high
See Powell v. Burns, 763 F.2d 337, 338 (8th Cir. 1985) (concluding that defendant’s failure to object at first opportunity rendered objection untimely); United States v. Gibbs, 739 F.2d 838, 849 (3d Cir. 1984) (en banc) (finding objection untimely because the defendant made it “not when the evidence was offered, but during a motion to strike made after the Government rested”); United States v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983) (“‘Timeliness of objection under the Rule requires that it be made at the time the evidence is offered . . . .’” (quoting DiPaola v. Riddle, 581 F.…
discussed Cited "see" United States v. Nathan J. (A Juvenile)
10th Cir. · 1997 · signal: see · confidence high
See Powell v. Burns, 763 F.2d 337, 338 (8th Cir.1985) (concluding that defendant's failure to object at first opportunity rendered objection untimely); United States v. Gibbs, 739 F.2d 838, 849 (3d Cir.1984) (en banc) (finding objection untimely because the defendant made it "not when the evidence was offered, but during a motion to strike made after the Government rested"); United States v. Parodi, 703 F.2d 768, 783 (4th Cir.1983) (" 'Timeliness of objection under the Rule requires that it be made at the time the evidence is offered ....' " (quoting DiPaola v. Riddle, 581 F.2d 1111, 1113 (4th…
cited Cited "see" Eddie Risdal v. David Waldebach, Individually and as a Guard at the Iowa Men's Reformatory
8th Cir. · 1994 · signal: see · confidence high
See Powell v. Burns, 763 F.2d 337, 338 (8th Cir. 1985).
cited Cited "see" Patrick G. McALINNEY, Appellant, v. MARION MERRELL DOW, INC., Appellee
8th Cir. · 1993 · signal: see · confidence high
See Powell v. Burns, 763 F.2d 337, 339 (8th Cir.1985).
cited Cited "see" Bill Barton and Tom Barton, D/B/A Barton Brothers Farm v. Columbia Mutual Casualty Insurance Company v. Virgil Moore Marlene Moore, First National Bank of Fayetteville, Arkansas, Intervening
1st Cir. · 1991 · signal: see · confidence high
See Powell v. Burns, 763 F.2d 337, 339 (8th Cir.1985).
cited Cited "see" Barton v. Columbia Mutual Casualty Insurance
8th Cir. · 1991 · signal: see · confidence high
See Powell v. Burns, 763 F.2d 337, 339 (8th Cir.1985).
cited Cited "see, e.g." United States v. James Shaw
8th Cir. · 1987 · signal: see, e.g. · confidence medium
See, e.g., Powell v. Burns, 763 F.2d 337, 338-39 (8th Cir.1985). 7 .
Retrieving the full opinion text from the archive…
Pauline
v.
Powell, Administratrix for the Estate of James E. Powell, Deceased v. Jimmy Burns, Individually and as a State Highway Patrolman of the State of Nebraska, Emil Kohmetscher, Individually and as the Colonel of the State of Nebraska Highway Patrol
84-2019.
Court of Appeals for the Eighth Circuit.
May 31, 1985.
763 F.2d 337
Cited by 4 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 68%
Citer courts: E.D. Missouri (1)

763 F.2d 337

18 Fed. R. Evid. Serv. 389

Pauline V. POWELL, Administratrix for the Estate of James E.
Powell, Deceased, Appellant,
v.
Jimmy BURNS, Individually and as a State Highway Patrolman
of the State of Nebraska, Appellee.
Emil Kohmetscher, Individually and as the Colonel of the
State of Nebraska Highway Patrol.

No. 84-2019.

United States Court of Appeals,
Eighth Circuit.

Submitted Feb. 12, 1985.
Decided May 31, 1985.

William T. Ginsburg, Omaha, Neb., for appellant.

L. Jay Bartel, Lincoln, Neb., for appellee.

Before LAY, Chief Judge, and HEANEY and FAGG, Circuit Judges.

FAGG, Circuit Judge.

1

Pauline Powell brought suit in district court under federal and state laws for damages resulting from the shooting death of her son, James Powell, at the hand of Nebraska Highway Patrolman Jimmy Burns. The district court entered judgment on a jury verdict in favor of Burns, and Powell appeals. We affirm.

2

On November 23, 1980, Burns stopped James Powell for traffic violations on an interstate highway near Omaha, Nebraska, after a lengthy, high speed chase. Burns approached Powell's car with his gun drawn, and Powell attempted to pull away. Burns grabbed the door handle of Powell's car. There is conflicting evidence as to whether Burns deliberately aimed at Powell and fired or whether Burns' gun accidentally discharged as he lost his balance and fell. Powell was killed by a single bullet wound to the head.

3

Pauline Powell, as administratrix of her son's estate, filed suit, claiming principally that Burns' action constituted a summary execution in violation of her son's rights to due process, equal protection, and freedom from cruel and unusual punishment. The jury returned a verdict in favor of Burns and, consequently, must have concluded that the shooting was an accident.

4

Powell initially contends that the trial court erroneously admitted testimony from Burns as to his mental state following the shooting incident. Burns testified as to his mental state immediately after the shooting and to his mental state up to and including the day of trial.

5

Powell failed to object to Burns' testimony respecting his mental state immediately following the shooting until after Burns had already answered a number of questions on the subject. Powell's objection to this "whole line of questioning" on grounds of relevance and materiality was therefore untimely, and his failure to object to the evidence "at the first available opportunity served to waive any ground of complaint against its admission, absent plain error." United States v. Vesich, 724 F.2d 451, 462 (5th Cir.1984). See Terrell v. Poland, 744 F.2d 637, 638-39 (8th Cir.1984); Star Realty v. Strahl, 261 Iowa 362, 154 N.W.2d 143, 145 (1967). We cannot say that admission of this testimony was plain error.

6

After Burns answered questions about his mental state immediately following the shooting, the questioning shifted to Burns' mental state in the period up to and including the day of trial. Powell also failed to make a timely objection to this testimony. Counsel's objection to "this whole line of questioning" did not extend beyond the subject matter immediately before the court--that is, Burns' mental state immediately after the shooting. When the line of questioning changed to Burns' mental state in the period up to and including trial, counsel was obliged to object anew. Absent objection at trial to this new line of questioning, Powell has failed to preserve any error for review. United States v. Wilson, 690 F.2d 1267, 1273-74 (9th Cir.1982); Northwestern Flyers, Inc. v. Olson Bros. Mfg. Co., 679 F.2d 1264, 1275 n. 27 (8th Cir.1982); Fed.R.Evid. 103(a)(1). We do not consider the admission of this testimony plain error.

7

Powell also claims the trial court committed error by denying her motion for a new trial because the jury's verdict was against the weight of the evidence. The issues presented to the jury were not complicated. The critical issue was whether to credit Burns' testimony that the shooting was an accident, or to credit other witnesses' testimony that they saw Burns deliberately aim his gun and shoot at James Powell's car. We will not disturb the jury's resolution of that issue in Burns' favor on appeal. See McGee v. South Pemiscot School District R-V, 712 F.2d 339, 344-45 (8th Cir.1983).

8

The judgment of the district court is affirmed.