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No. 95-1084

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Edward McKeel, *

*

Plaintiff-Appellant, *

*

A. A. McKeel; Agatha McKeel, *

*

Plaintiffs, *

*

v. *

*

City of Pine Bluff, * Appeal from the United States

* District Court for the 

Defendants-Appellees, * Eastern District of Arkansas.

*

Lieutenant J. Seamans, *

individually and in his official*

capacity; Officer C. Cash, *

individually and in his official*

capacity; Officer Johnny Irvin, *

individually and in his official*

capacity; Captain Kenny Heroman,*

individually and in his official*

capacity; *

*

Defendants, *

*

Southeast Arkansas Mental Health*

Center, Inc., a non-profit *

corporation, *

*

Defendants-Appellees. *

_____________

Submitted: September 11, 1995

 Filed: January 8, 1996

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Before HANSEN, HEANEY, and MURPHY, Circuit Judges.

_____________

HANSEN, Circuit Judge.
 1

The Honorable Henry Woods, United States District Judge for

the Eastern District of Arkansas.

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Edward McKeel appeals the final judgment of the district

court1 after entry of a jury verdict in favor of the City of Pine

Bluff and Southeast Arkansas Mental Health Center (SAMHC)

(collectively "defendants") on his 42 U.S.C. § 1983 and medical

malpractice claims. McKeel challenges the defendants' use of

peremptory strikes, the district court's rulings with respect to

several evidentiary issues, and the sufficiency of the evidence to

support the jury's verdict in favor of the defendants. We affirm.

Edward McKeel is a diagnosed paranoid schizophrenic who was

purportedly suffering an episode of paranoia on November 4, 1991,

when he was involved in an incident at the McKeel family residence

with Pine Bluff, Arkansas, police officers. Employees of SAMHC

were also on hand that day at the McKeel family residence to assist

the officers by rendering mental health services to McKeel, who was

allegedly in an extremely agitated state. The incident culminated

when McKeel was shot several times as he exited his bedroom while

allegedly advancing toward a police officer with a hatchet raised.

McKeel filed this 42 U.S.C. § 1983 claim against the City of

Pine Bluff and certain Pine Bluff police officers involved in the

incident. He claimed that the officers used excessive force during

their encounter with him and that the City of Pine Bluff

inadequately trained its officers to deal with individuals

suffering from mental illnesses. He also brought a medical

malpractice claim against SAMHC, contending that SAMHC sent

personnel to his residence who were not qualified to offer

emergency services to individuals suffering from mental illnesses.

The case proceeded to trial only against the City of Pine Bluff and

SAMHC, and a jury rendered a verdict in favor of those defendants

on all claims. McKeel appeals.
 2

Before objecting, McKeel's counsel had pronounced the jury

as it was comprised after the exercise of all peremptory

challenges as acceptable to McKeel.

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McKeel first argues that the defendants improperly used

peremptory challenges to strike two black jurors because of their

race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

Under Batson, 

once the opponent of a peremptory challenge has made out

a prima facie case of discrimination (step 1), the burden

of production shifts to the proponent of the strike to

come forward with a race-neutral explanation (step 2).

If a race-neutral explanation is tendered, the trial

court must then decide (step 3) whether the opponent of

the strike has proved purposeful racial discrimination.

Purkett v. Elem, 115 S. Ct. 1769, 1770-71 (1995). At step 3 of the

Batson framework, the opponent of the strike may demonstrate that

the proffered reasons offered by the proponent of the strike are

pretextual. United States v. Carr, 67 F.3d 171, 175 (8th Cir.

1995); see also United States v. Logan, 49 F.3d 352, 357 (8th Cir.

1995) (opponent of strike "may, but is not required to, show that

the government's offered reason is pretextual."). "The ultimate

burden of persuasion rests with, and never shifts from, the

opponent of the strike." Elem v. Purkett, 64 F.3d 1195, 1198 (8th

Cir. 1995). We review the district court's factual finding of

whether peremptory challenges were impermissibly based on race

under the clearly erroneous standard. Carr, 67 F.3d at 175.

In the instant case, the original venire panel included two

black jurors. After defense counsel used peremptory challenges to

strike both black jurors, McKeel objected, arguing that the jurors

were struck on the basis of race.2 Defense counsel responded that

one black juror was struck because she worked with mental health

patients, while the other black juror was struck because her facial

expressions and body language indicated a hostility to the
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defendants. The district court accepted these explanations and

specifically found that the defendants' stated reasons for

exercising the strikes were permissible. The record shows that

McKeel's counsel at no time offered or attempted to offer any

argument or make any record that the proffered reasons were

pretextual. 

Although the opponent of a strike is not required to make any

argument or offer any proof on the issue of pretext, such a failure

may impact on whether that party has carried its burden of

persuasion to show purposeful discrimination. In fact, we have

previously upheld findings by trial courts that opponents of

peremptory strikes who made no objection or record with respect to

pretext failed to carry their burden of persuasion to prove

purposeful discrimination in the peremptory process. See Carr, 67

F.3d at 176 (district court did not clearly err in finding that

proffered reasons for strike were not pretextual where opponent did

not argue pretext); Elem, 64 F.3d at 1201 (trial court's finding of

no racial motive in making strike enjoyed fair support of record

where opponent of strike did not argue pretext); Jones v. Jones,

938 F.2d 838, 844 (8th Cir. 1991) (trial court was not required to

consider pretext when issue was not raised). Without any showing

by McKeel that the proffered reasons in this case were a mere

pretext for racial discrimination, given the reasons and their

context, we conclude that McKeel failed to establish purposeful

discrimination in the use of his opponents' peremptory challenges.

Accordingly, we conclude that the district court's factual finding

that the defendants' peremptory strikes were not impermissibly

based upon race is not clearly erroneous.

McKeel next contends that the district court erred by refusing

to admit into evidence certified documents from the Jefferson

County Circuit Court Clerk's office that indicated the number of

involuntary commitment petitions that had been filed over a period
 3

These documents are not contained in the record on appeal

and we are therefore reduced to determining from the trial

transcript the nature and information contained in these

documents.

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of approximately three years. McKeel claims that these documents

were vital to establishing the frequency with which the Pine Bluff

Police Department was involved in involuntary commitment

proceedings, specifically to show how often the police encountered,

or were involved in, situations in which individuals suffering from

mental illnesses needed to be involuntarily committed. The

evidence, according to McKeel, was relevant to his failure-to-train

claim against the City of Pine Bluff. The district court excluded

this evidence on the basis that it was irrelevant to the issues in

the case. We review this decision for an abuse of discretion.

Laubach v. Otis Elevator Co., 37 F.3d 427, 428-29 (8th Cir. 1994).

After reviewing McKeel's offer of proof at trial with respect

to these documents,3

 we conclude that the district court committed

no abuse of discretion in excluding this evidence. The documents

apparently show only the number of involuntary commitment petitions

that were filed over the course of an approximate three-year

period. The documents do not, however, delineate in which

involuntary commitment proceedings, if any, the Pine Bluff Police

Department played a role. Thus, the documents do not make a fact

of consequence more or less probable and are irrelevant. See Fed.

R. Evid. 401. The district court committed no abuse of discretion

by refusing to admit these documents.

McKeel also argues that the district court erred by permitting

defendant SAMHC to introduce medical records from his prior

hospitalization in the Alton Mental Health Center in Illinois.

McKeel contends that these documents were irrelevant because SAMHC

was not aware of this prior hospitalization when its employees went

to the McKeel residence, and thus any information contained in the
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records played no role in the employees' decisions concerning how

to treat him.

However, in order to preserve this issue for appeal, McKeel

was required to lodge an objection at trial. See Fed. R. Evid.

103(a)(1). At trial, when SAMHC offered the medical records into

evidence, McKeel's counsel stated that he had "no objection."

(Trial Tr. at 512.) McKeel's failure to object allows us to review

the admission of the medical records only for plain error. See

Fed. R. Evid. 103(d); Kostelec v. State Farm Fire and Cas. Co., 64

F.3d 1220, 1229 (8th Cir. 1995). After carefully reviewing the

record, we are satisfied that no error, plain or otherwise,

resulted from the admission of these documents.

McKeel next argues that the district court erred by first

interrupting his counsel during closing argument and thereafter

forbidding counsel to refer to a previous order of the district

court. In that order, the district court had ruled that a policy

pursuant to which SAMHC had the Pine Bluff Police Department pick

up mentally ill persons and take them into custody without

obtaining prior judicial approval ("pick up policy"), irrespective

of whether the situation was an emergency, was unconstitutional.

McKeel's counsel mentioned the district court's order in opening

statements, and the order itself was later admitted into evidence.

However, during closing arguments, when McKeel's counsel referred

to this order, the district court interrupted and stated, "I don't

think that's an issue in this case." (Trial Tr. at 554.) The

court set forth its belief that the only issues in the case were

excessive force and failure to train. McKeel's counsel responded,

"Thank you, your Honor," and continued with his closing argument

without further interruption from the court and without making any

contemporaneous objection or later record with respect to the

court's comments or its refusal to permit further reference to the

court's previous order. (Id. at 555.)
 4

McKeel also appears to argue, although it is not stated

explicitly or with complete clarity in his brief, that the

district court, by first interrupting counsel and then by its

subsequent statements, improperly commented on the evidence, and

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The district judge had held an on-the-record instruction

conference with the attorneys prior to closing arguments. In that

conference, the court submitted its proposed instructions which

framed the issues succinctly, together with special interrogatories

to assist the jury to determine the two issues submitted with

respect to the City of Pine Bluff: (1) use of excessive force by

its police officers, and (2) failure to train. McKeel's counsel

made no objection to these instructions or to the interrogatories,

nor did he object to the court's failure to give any instruction

McKeel may have tendered. The district court instructed the jury

before argument in this case and went over the interrogatories and

the issues with the jury. Consequently, when the jury heard the

closing arguments their attention had already been focused on the

issues submitted for their consideration, and those issues did not

include either the unconstitutionality of, or damages allegedly

caused by, the "pick up policy." The question of the

constitutionality of the "pick up policy" had been part of the

prior class action portion of the case which was settled before

McKeel's personal injury claims came on for trial.

Again, to preserve error on this issue, McKeel was required to

object or in some manner indicate to the court that he disputed the

court's ruling on this issue. See Fed. R. Evid. 103(a). By simply

continuing with closing argument, without an objection in the

record, we are left to review this issue for plain error. See Fed.

R. Evid. 103(d). Because no issue concerning the policy was going

to be presented to the jury for its determination by the agreedupon instructions, we conclude that no plain error occurred when

the court kept counsel's argument confined to the issues properly

before the jury.4
in doing so, poisoned the jury against him. We disagree. The

court's statements were brief and in no manner could be

reasonably construed as impugning McKeel or his counsel.

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Finally, McKeel argues that the jury verdict was contrary to

the substantial evidence in the case which, he alleges, clearly

establishes liability on the part of each defendant. He asks us to

direct a verdict in his favor against the defendants and to remand

this case for a hearing in order to determine the appropriate

measure of damages. Alternatively, should we decline to find this

argument persuasive, McKeel requests that we grant a new trial on

all issues.

We cannot grant McKeel such relief, because he did not move

for a new trial or judgment as a matter of law (JAML) at any

juncture in the proceedings. See Catlett v. Local 7370 of the

United Paper Workers Int'l Union, 69 F.3d 254, 258-59 (8th Cir.

1995) (JAML); Boone v. Moore, 980 F.2d 539, 542 n.3 (8th Cir. 1992)

(JAML and new trial); Gopher Oil Co. v. Union Oil Co., 955 F.2d

519, 526 (8th Cir. 1992) (JAML). See also Fed. R. Civ. P. 50(b)

and 59. Although we have noted the potential harshness of

requiring such motions, see Catlett, 69 F.3d at 259, we have

repeatedly held that these prerequisites must be satisfied before

we can entertain claims for judgment as a matter of law or for a

new trial. See id. (citing cases); Boone, 980 F.2d at 542 n.3.

Finally, we have reviewed the record to see if the manifest

injustice exception to Rule 50(b) applies, see Karjala v. JohnsManville Prod. Corp., 523 F.2d 155, 157 (8th Cir. 1975), and have

determined that it does not. Therefore McKeel's request for

judgment as a matter of law or, alternatively, for a new trial,

must fail. 

Accordingly, we affirm the judgment of the district court.
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.