                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 19a0176n.06

                                          No. 18-3566

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 WILLIAM T. LEMMON, SR., Co-Administrator of )                                  FILED
 the Estate of William R. Lemmon,              )                            Apr 04, 2019
                                               )                       DEBORAH S. HUNT, Clerk
         Plaintiff-Appellant,                  )
                                               )
                                                              ON APPEAL FROM THE
 v.                                            )
                                                              UNITED STATES DISTRICT
                                               )
                                                              COURT FOR THE NORTHERN
 CITY OF AKRON, OHIO; JAMES NICE, Chief of )
                                                              DISTRICT OF OHIO
 Akron Police, in his official capacity; BRIAN )
 ARMSTEAD, #1154,                              )

        Defendant-Appellees.

BEFORE: KEITH, MERRITT, and LARSEN, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. William T. Lemmon Sr. brought a 42 U.S.C. § 1983

action against Sergeant Brian Armstead for excessive force, and relatedly a Monell v. Department

of Social Services of New York, 436 U.S. 658 (1978) action against the City of Akron and its chief

of police for the officer-involved shooting death of his son William R. Lemmon. At the close of

discovery, when counsel for Lemmon Sr. chose not to conduct discovery in this case, Defendants

moved for summary judgment on all counts. The district court granted summary judgment on all

counts, finding that Sergeant Armstead is entitled to qualified immunity because his use of deadly

force was reasonable under the circumstances, and as such, dismissed the Monell action. Lemmon

Sr. now appeals the granting of summary judgment only on the section 1983 claim for excessive

force. For the foregoing reasons, we affirm.

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Case No. 18-3566, Lemmon v. City of Akron, et al.

                                             BACKGROUND
Factual Background

        On the afternoon of September 25, 2015, William R. Lemmon (“William”) became a

suspect in an armed robbery of an individual inside of a grocery store located in Akron, Ohio.

During the robbery, he worked with a partner who wore a black ski mask and black tee-shirt and

was described as a black male. William is white and was described as 5’8” to 5’9” and possibly

wearing a green tee-shirt. The store owner told the police dispatcher that “he” pointed a gun at

him, but did not state whether it was William or his partner who pointed the gun. Both men fled

the grocery store in a southbound direction after stealing a wallet from one of the store’s patrons.

        The dispatcher reported the aggravated robbery over the radio, providing the description

provided by the store owner, and officers in the area began searching for the two suspects. Sergeant

Brian Armstead (“Sergeant Armstead”) of the City of Akron Police Department responded to the

call. Sergeant Armstead heard an officer report over the radio that one of the suspects continued

to head southbound and was seen jumping over a fence and leaving the area on a bicycle. While

driving in the area, Sergeant Armstead saw a white male on a bicycle, and noted that he “had the

same physical description as the suspect, except now he had a blue coat on and a little beanie on

his head.” Simultaneously, he called out over the radio to update the suspect’s description,

location, and which direction he traveled. It is undisputed that the suspect on the bicycle was

William.

        Officer Dawn Forney (“Officer Forney”) also responded to the aggravated robbery report.

She heard the updated description of William over the radio and proceeded to search for him, at

which time William crossed an intersection on the bicycle directly in front of her. Officer Forney

radioed in to verify William’s description and then followed William in her car while she waited

for confirmation. Sergeant Armstead also saw William riding away on a bicycle with “his hand

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Case No. 18-3566, Lemmon v. City of Akron, et al.

holding something at the side of his coat, almost like he was concealing something under his coat.”

When Officer Forney confirmed that the person she was following matched the description of the

suspect in the armed robbery, she proceeded to pull William over in a nearby parking lot.

        Once stopped, William stood in front of her straddling the bike. Officer Forney exited her

vehicle, took cover behind her front car door, and drew her service weapon, pointing it at William.

Sergeant Armstead watched Officer Forney pull William over, and parked next to her vehicle. He

then exited his vehicle and stood in front of his car with his weapon drawn, about ten to fifteen

feet away from William. Officer Raffaele Spano (“Officer Spano”) and Officer Robert Patrick

(“Officer Patrick”) arrived soon thereafter to find Officer Forney and Sergeant Armstead with their

weapons drawn and pointed at William in the parking lot. All four officers formed a half circle

around William with their firearms drawn, except for Officer Patrick who had his taser drawn and

pointed at William.

        The officers commanded William to show his hands, which were at the time located on the

handlebars of the bike. William exclaimed “no” and immediately placed his right hand in his front

waistband. He continued to refuse the officers’ orders, and shouted statements such as “shoot me,”

“f*ck you b**ch,” “you’re going to have to shoot me,” and “you’re going to have to kill me.” In

the heat of this tense standoff, William suddenly dropped his bike. Upon dropping his bike, he

made a quick movement towards Sergeant Armstead, who subsequently shot William four times

in rapid succession. Simultaneously, Officer Patrick fired his taser at William.

        William fell to the ground, and officers moved in to secure William by removing his hand

from his waistband and placing him in handcuffs. An officer on the scene performed CPR on

William while an ambulance was en route to take William to the hospital. Upon securing William

on the ground and removing his hand from his waistband, officers discovered William did not have

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Case No. 18-3566, Lemmon v. City of Akron, et al.

a weapon on his person. William later succumbed to his injuries. The City of Akron Police

Department opened a criminal investigation into the officer-involved shooting, and submitted all

evidence to the Summit County Prosecuting Attorney. Finding the shooting justified, the

prosecuting attorney declined to prosecute.

Procedural Background

         Lemmon Sr. filed this action on September 23, 2016 in the United States District Court for

the Northern District of Ohio. The court filed a case management plan, which outlined various

procedural deadlines, including a November 13, 2017 deadline for identifying expert witnesses.

During the court’s telephonic status conference held on November 1, 2017, the court noted that

“[c]ounsel reported that the case is moving along in accordance with the Court’s case management

plan and trial order.” Two days after the deadline to identify expert witnesses passed, Lemmon Sr.

moved to extend the deadline to submit expert reports.1 The court denied the motion, finding that

Lemmon Sr. did not demonstrate that he exercised due diligence in attempting to meet the court’s

deadlines.

         Defendants moved for summary judgment, and the district court granted Defendants’

motion for summary judgment on all counts. Lemmon Sr. timely filed this appeal, which only

challenges the denial of his excessive force claim against Officer Armstead.

                                                 DISCUSSION
         A.       Qualified Immunity

         A district court’s grant of summary judgment is reviewed de novo. Ciminillo v. Streicher,

434 F.3d 461, 464 (6th Cir. 2006). Summary judgment is appropriate where the evidence in the

record, viewed in its entirety, shows that there is no genuine issue as to any material fact and that

         1
            At the time Lemmon Sr. filed the motion, he possessed no expert reports to submit. Instead, in the body of
the motion he “respectfully move[d] [the] Court for a thirty (30) day extension of time in which to identify
experts . . . .” R. 20 at 1, Page ID 109 (emphasis added).

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Case No. 18-3566, Lemmon v. City of Akron, et al.

the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(a). “The court

must assume the truth of the non-moving party’s evidence, drawing all inferences in a light most

favorable to that party.” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015). “If, in doing so,

there is sufficient evidence for a trier of fact to find for the non-moving party, a genuine dispute

of material fact exists.” Id. However, our “duty to view the facts in a light most favorable to the

nonmovant does not require or permit [us] to accept mere allegations that are not supported by

factual evidence.” Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009). “To make out

a genuine issue of material fact, [the] plaintiff must present significant probative evidence tending

to support her version of the facts, evidence on which a reasonable jury could return a verdict for

her.” Id. at 913.

        Lemmon Sr. contends that Sergeant Armstead is not entitled to qualified immunity. He

alleges that Sergeant Armstead’s use of deadly force against William was not objectively

reasonable under the Fourth Amendment because William never brandished any weapon or

removed his hand from his waistband during the standoff.

        The doctrine of qualified immunity insulates state actors from liability in close-call

situations. See Saucier v. Katz, 533 U.S. 194, 206 (2001) (finding that qualified immunity is

intended to protect state actors who must operate along the “hazy border” that divides acceptable

from excessive force). However, qualified immunity only protects government actors performing

discretionary functions from liability for civil damages when their conduct does “not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

        Once the qualified immunity defense is raised, “the plaintiff must show that (1) the

defendant violated a constitutional right and (2) that right was clearly established.” McDonald v.

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Case No. 18-3566, Lemmon v. City of Akron, et al.

Flake, 814 F.3d 804, 812 (6th Cir. 2016) (citing Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680

(6th Cir. 2013)). When it is raised in a motion for summary judgment, as here, courts must weave

the summary judgment standard into each step of the qualified immunity analysis. Scott v. Harris,

550 U.S. 372, 378 (2007).

        The Supreme Court has held that the use of deadly force is proper in instances where the

officer has probable cause to believe the suspect poses a threat of serious physical harm, either to

the officer or to others. Tennessee v. Garner, 471 U.S. 1, 11 (1985). This court evaluates an

officer’s use of force under an “objective reasonableness” standard. Simmonds v. Genesee Cty.,

682 F.3d 438, 444 (6th Cir. 2012). We look at whether the officers’ actions were objectively

reasonable in light of the facts and circumstances confronting them, without regard to their

underlying intent or motivation. Id. Reasonableness is determined at the moment of the use of

force, as “judged from the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989).

        Our first inquiry, viewing the facts in the light most favorable to Lemmon Sr., is whether

Sergeant Armstead’s use of deadly force violated the Fourth Amendment’s requirement of

reasonableness. Mullins, 805 F.3d at 765 (citing Plumhoff v. Rickard, 572 U.S. 765, 774 (2014)).

        While the ultimate determination of reasonableness must be based on the totality of the

circumstances, this court has repeatedly found three factors to be helpful in excessive force cases:

“(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the

safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting

to evade arrest by flight.” Mitchell v. Schlabach, 864 F.3d 416, 421 (6th Cir. 2017). We are

cautioned not to assess those factors from a distance, but rather to consider that “police officers

are often forced to make split-second judgments—in circumstances that are tense, uncertain, and

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Case No. 18-3566, Lemmon v. City of Akron, et al.

rapidly evolving—about the amount of force that is necessary in a particular situation.” Mullins,

805 F.3d at 765–66 (quoting Graham, 490 U.S. at 396–97). Therefore, we measure the

reasonableness of the use of deadly force at a particular time based on an “objective assessment of

the danger a suspect poses at that moment.” Bouggess v. Mattingly, 482 F.3d 886, 889 (6th Cir.

2007) (emphasis added).

        Turning to the reasonableness factors, the severity-of-the-crime inquiry weighs in favor of

Sergeant Armstead because William’s crimes were severe under Ohio law. He was first reported

aiding in the execution of an armed robbery. He then fled the scene of the crime, where he

participated in a heated standoff with four officers. At that point, he placed his hand in his

waistband in a manner that would lead a reasonable person to believe danger existed and refused

to remove his hand, daring officers to shoot him. Any one of these actions can be charged under

an Ohio criminal statute, and William’s actions involving the robbery—whether attempted or

completed, and conspiracy thereto—at minimum are third degree felonies and at maximum are

first degree felonies under Ohio law. See Ohio Rev. Code Chapter 2911.01(C) (aggravated

robbery); Ohio Rev. Code Chapter 2911.02(B) (attempted robbery); Ohio Rev. Code Chapter

2923.01(A), (J)(2) (conspiracy).

        Second, William posed an immediate threat to the safety of the officers or others at the

moment of the standoff. Bouggess, 482 F.3d at 889. Lemmon Sr. alleges the following course of

events during the standoff:

        21. As [William] was straddling his bicycle, the four Akron police officers, who
        were positioned in a semi-circle at a distance of ten (10) to twenty (20) feet from
        him, shouted multiple times and varied orders at him to raise his hands, show his
        hands or take his hands out of his waist band, to which [William] defiantly replied
        multiple expletives and said that he hadn’t done anything, that he wasn’t going
        anywhere and that the officers would have to shoot him.
        22. While still straddling his bicycle, [William] put his right hand half way into the
        waist band of the blue jeans which he was wearing. As other officers were shouting

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Case No. 18-3566, Lemmon v. City of Akron, et al.

         orders at [William], Defendant Armstead twice screamed at [William], “show your
         hands or I’ll light you up.”
         23. Officer Patrick holstered his service weapon and drew his Taser. As [William],
         stepped off of his bicycle and allowed it to drop, Officer Patrick discharged his taser
         which struck [William], causing him to lurch.

R. 1, ¶¶ 21-2, Page ID at 6.

         From the facts alleged by Lemmon Sr., it is clear that William did not intend to resolve the

dispute peacefully. He refused to listen to officers when both of his hands were on the handlebars

of the bicycle and escalated the situation when he consciously removed one hand from the

handlebars and placed it in his front waistband, all while exclaiming that the officers would have

to shoot him. Although officers were anywhere between ten and twenty feet away from William,

Sergeant Armstead did not shoot at this point. It was not until William dropped his bicycle and

stepped toward Sergeant Armstead that any force was utilized. And because William’s actions

suggested he possessed a firearm in his hand, William’s sudden movement toward Sergeant

Armstead put Sergeant Armstead in reasonable fear for the safety of himself, the surrounding

officers, and bystanders.2

         Taken together, these facts indicate that Sergeant Armstead possessed “probable cause to

believe that [William] pose[d] a significant threat of death or serious physical injury” when he

utilized deadly force. Tennessee, 471 U.S. at 3. Sergeant Armstead stated:

         I thought [William] was going to run, but then he took an aggressive quick step in
         my direction with his hand still down at his waist, and I fired my weapon at him. . . .
         I feared I had to do something because [William’s] behavior was way too

         2
           Sergeant Armstead would likely still be protected by qualified immunity if we determine that he mistakenly
interpreted William’s step toward him as aggressive. Mullins, 805 F.3d at 765 (holding that “[q]ualified immunity
provides police officers breathing room to make reasonable but mistaken judgments and protects all but the plainly
incompetent who knowingly violate the law.”) (internal quotations marks omitted). Additionally, the fact that Officer
Patrick utilized his taser and not his firearm does not show that Sergeant Armstead acted unreasonably. Officer Patrick
arrived to the scene after Sergeant Armstead and Officer Forney, and also stood further away from William.
Alternatively, this difference shows that reasonable officers can disagree on how to approach the same situation. Id.
(“In a civil suit arising from the use of deadly force, immunity should be recognized ‘if officers of reasonable
competence would disagree on the issue.’”) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

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Case No. 18-3566, Lemmon v. City of Akron, et al.

         aggressive and I was not going to allow him to draw a weapon and shoot at me or
         another officer.

R. 24-2, Page ID 157-58. This is the epitome of a split-second decision. William could have been

attempting to flee the scene (ironically in the direction toward officers), or he could have been

attempting to escalate the situation further in a myriad of harmful ways.3 Because we will not

“second-guess[] [Sergeant Armstead’s] assessment, made on the scene, of the danger presented

by” William, Ryburn v. Huff, 565 U.S. 469, 477 (2012) (per curiam), we find that the immediacy-

of-the-threat factor also weighs in favor of a finding of reasonableness.

         Third, it is undisputed that William was resisting arrest when he was ultimately shot. See

Ewolski v. City of Brunswick, 287 F.3d 492, 506 (6th Cir. 2002) (“A Fourth Amendment seizure

occurs when a police officer restrains the liberty of a citizen in such a way that a reasonable citizen

would reasonably believe under the circumstances that he or she was not free to leave.”); see also

Compl. at ¶ 14, Page ID 5 (“At this point, [William] had been seized, as a reasonable person would

no longer feel that he was free to leave.”). Accordingly, the resisting arrest factor weighs in favor

of a finding of reasonableness.

         Each of the above factors support a finding of reasonableness. However, the ultimate

question under the first prong of the qualified immunity analysis is whether Sergeant Armstead’s

use of deadly force against William was reasonable under the totality of the circumstances.

         3
           The gravity of the situation is confirmed by the other officers on the scene. See Forney Affidavit at ¶ 7,
Page ID 161 (“The suspect suddenly dropped his bike, and at that moment, I heard a gunshot or gunshots
simultaneously with a taser. At the moment the suspect dropped his bike, I believed that he was going to pull a gun
out, or run.”); Patrick Affidavit at ¶¶ 9-10, Page ID 166 (“The suspect was holding his right hand as if he was trying
to grip a pistol out of his waistband. . . . The suspect made a quick move forward towards [Sergeant] Armstead, like
he was going to get off the bike. At the moment he moved forward, I fired my taser . . . .”); Spano Affidavit at ¶ 8,
Page ID 164 (“I believed that the suspect may be concealing a gun because a gun was used in the robbery and this was
the suspect who matched the description, and because of the suspect’s refusal to obey our commands. The suspect
made a motion like he was about to pull something out, and lunged towards us.”).

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Case No. 18-3566, Lemmon v. City of Akron, et al.

Mullins, 805 F.3d at 765. We find that it was. Lemmon Sr. raises a number of concerns that we

will address here.4

         Lemmon Sr.’s main argument is that Sergeant Armstead’s use of force was unreasonable

because William “placed his hand in his waistband and never removed it or attempted to do so

prior to being shot.” Appellant Br. at 28. Although this fact is undisputed by both parties, Sergeant

Armstead does not claim that he utilized deadly force against William solely because William’s

hand was in his waistband and William was being defiant. Instead, he claims that the totality of

the circumstances, which include William being a suspect in an armed robbery, daring officers to

shoot him, dropping the bike, and suddenly moving in Sergeant Armstead’s direction while

possibly being armed, are what ultimately caused him to fear for his life. Accordingly, Lemmon

Sr. has not come forward with any evidence that rebuts the evidence in the record and has not

made any showing that there is a genuine issue for trial regarding the reasonableness of Sergeant

Armstead’s use of force. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586–87 (1986).

         Instead, Lemmon Sr.’s briefs in both the district court and this court extensively focus on

whether Sergeant Armstead possessed probable cause to stop William. Regardless of whether the

Terry stop was proper, Terry v. Ohio, 392 U.S. 1 (1968), the events leading up to William being

stopped in the parking lot are immaterial to the issue of whether Sergeant Armstead reasonably

utilized deadly force during the standoff. Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 406–

         4
           In addition to the concerns discussed below, Lemmon Sr. alleges facts in his briefing that are not supported
by his complaint or by any evidence in the record. For instance, Lemmon claims that William was an “obviously
disturbed” individual. Appellant Reply Br. at 10. He does not make this allegation in his complaint and does not attach
any supporting documentation to corroborate this allegation. He also claims that William “stepped off his bike which
he was instructed to do.” Appellant Reply Br. at 11. Again, this fact is not included in his complaint, and is not
corroborated by the record. Regardless, Sergeant Armstead interpreted William’s movements as hostile and potentially
deadly given the totality of the circumstances, and Lemmon Sr. admits William was defiant and not following officers’
orders. As such, we disregard these statements as they are not properly included in the record or supported by evidence
in the record.

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Case No. 18-3566, Lemmon v. City of Akron, et al.

07 (6th Cir. 2007) (holding that evidence of recklessness by one officer in events leading up to

shooting was immaterial in evaluating objective reasonableness of the shooting officer’s decision

to use deadly force in the situation he faced at time of shooting); Claybrook v. Birchwell, 274 F.3d

1098, 1104–05 (6th Cir. 2001) (applying temporally segmented analysis to possibly erroneous

actions taken by officers and finding error that preceded shooting segment to be immaterial); Boyd

v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000) (applying segmented analysis to excessive force

claim in determining which facts were material).

        Lemmon Sr. claims that Pollard v. City of Columbus, 780 F.3d 395 (6th Cir. 2015) and

Livermore ex rel Rohm, 476 F.3d 397 are distinguishable cases that are inappropriate to rely upon.

We disagree.

        In Pollard, Abram Bynum’s (“Abram”) mother brought suit under 42 U.S.C. § 1983

alleging excessive force after he was fatally shot during a standoff with police officers. Id. at 397.

Abram was a suspect in several rape investigations, and when police officers went to Abram’s

home to arrest him, he fled in a car. Id. at 399. He led officers on a high-speed chase that eventually

ended in Abram crashing his car head-on with a semi-trailer truck. Id. During the chase, Abram

was suspected to be armed, as police officers radioed that he possessed a concealed-carry permit.

Id. Unbeknownst to officers at the time, this radio information turned out to be incorrect, as the

permit belonged to Abram’s brother, who lived at the same residence. Id. Immediately after the

crash, officers surrounded Abram’s vehicle where he was momentarily unconscious. Id. at 400.

Upon regaining consciousness, he immediately reached toward the floor as if he were searching

for something. Id. Although officers commanded to see Abram’s hands, when Abram raised his

hands, he did so in a clasped position and pointed them at the officers in a “shooting posture”. Id.

At that point, officers utilized deadly force against him. Id. It turned out that Abram did not have

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Case No. 18-3566, Lemmon v. City of Akron, et al.

a weapon in the vehicle, and just gestured as if he had a gun. Id. The district court denied the

officers qualified immunity, and this court reversed, finding that “the totality of the circumstances

clearly gave the officers probable cause to believe [Abram] threatened their safety.” Id. at 403.

        In this case, Lemmon Sr. claims “Pollard isn’t remotely similar to the present matter”

because Abram clasped his hands in a shooting position and pointed them at officers, whereas

William did not remove his hand from his waistband. However, the key similarity between Pollard

and this case is the existence of probable cause to believe the felony suspects were a threat to

officer and civilian safety at the time the officers utilized deadly force. Both Abram and William

were suspects in felony crimes and were suspected to be armed before the fatal standoff. In

William’s case, he was involved in an armed robbery and officers did not know which of the two

suspects possessed the gun. While riding his bike away from the scene, Sergeant Armstead spotted

William holding something on his side.

        Most importantly, both Abram and William participated in a standoff and defied officer

commands to show their hands. Instead of following orders, they both mimicked hand positions

that would lead a reasonable officer to believe they were reaching for a firearm. In both cases,

officers did not use force to counter the reaching movement. William did more than reach for the

imaginary weapon; he took an additional step. While potentially armed, William dropped his bike

and moved in the direction of Sergeant Armstead, who was already in close proximity and not

behind any protective cover. Similarly, although Abram did not get out of the car, he nonetheless

raised his imaginary weapon and aimed it at officers who were not behind any protective cover. In

both cases, officers were faced with a split-second threat of bodily harm by defiant felony suspects

who gestured that they had a weapon. Accordingly, Pollard is analogous to the circumstances at

hand.

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Case No. 18-3566, Lemmon v. City of Akron, et al.

        Lemmon Sr. also seems to claim that the segmented approach that this court applied in

Livermore ex rel Rohm v. Lubelan prohibits the court from considering the fact that William was

an armed robbery suspect in our deadly force analysis. However, Lemmon Sr. conflates the court’s

“totality of the circumstances” analysis with his allegation that the officers created the risk of harm

when they allegedly misidentified William as the robbery suspect. The court in Livermore ex rel

Rohm, relying upon Dickerson v. McClellan, 101 F.3d 1151 (6th Cir. 1996), addresses Lemmon

Sr.’s conflation:

        The proper approach under Sixth Circuit precedent is to view excessive force
        claims in segments. That is, the court should first identify the “seizure” at issue here
        and then examine “whether the force used to effect that seizure was reasonable in
        the totality of the circumstances, not whether it was reasonable for the police to
        create the circumstances.”

Livermore ex rel Rohm, 476 F.3d at 406–07 (internal citations omitted). Furthermore, the

Dickerson court reasoned:

        The time-frame is a crucial aspect of excessive force cases. Other than random
        attacks, all such cases begin with the decision of a police officer to do something,
        to help, to arrest, to inquire. If the officer had decided to do nothing, then no force
        would have been used. In this sense, the police officer always causes the trouble.
        But it is trouble which the police officer is sworn to cause, which society pays him
        to cause and which, if kept within constitutional limits, society praises the officer
        for causing.

Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143 (7th Cir.), cert. denied, 513

U.S. 820 (1994)). Accordingly, it is proper to attribute Sergeant Armstead’s knowledge that

William was a suspect in an armed robbery, and that he personally witnessed William holding

something on his side, to the overall risk of bodily harm that William presented during the standoff

with officers.

        Next, Lemmon Sr.’s response to summary judgment relies heavily on statements taken of

the officers on the scene five days following the shooting. He attempts to bring light to

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Case No. 18-3566, Lemmon v. City of Akron, et al.

discrepancies between their statements and affidavits. The parties disagree as to whether hearsay

is admissible in a motion for summary judgment, and whether an exception to hearsay applies in

this case. Our circuit has held that “evidence submitted in opposition to a motion for summary

judgment must be admissible.” Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007) (quoting

U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189 (6th Cir. 1997)). While it is

debatable whether the statements here are admissible as an exception to hearsay, the admissibility

of the witness statements would not affect the outcome of Sergeant Armstead’s motion for

summary judgment. Even if we recognized an exception to hearsay that would allow these

statements into evidence, the statements would not create a genuine issue of material fact. The

officers’ statements corroborate Sergeant Armstead’s probable cause calculus. The conveniently

abbreviated statements taken from bystanders, which Lemmon Sr. has submitted, also corroborate

the officers’ accounts.5 The statements are not the smoking gun Lemmon Sr. would lead the court

to believe they are.

         Based on the facts entered into evidence, Sergeant Armstead’s use of deadly force against

William during the standoff was objectively reasonable under the totality of the circumstances.

Once a motion for summary judgment is supported as required under Rule 56, the non-moving

party—in this case Lemmon Sr.—cannot rest solely on the allegations made in [his] pleadings but

instead “must set forth by affidavits or otherwise specific facts showing that there is a genuine

issue for trial.” Skousen v. Brighton High Sch., 305 F.3d 520, 527 (6th Cir. 2002).

         Lemmon Sr. does not show that there is any issue for trial. Most of the evidence in this

case is undisputed, including Lemmon Sr.’s main contention that William never removed his hand

         5
          Lemmon Sr. attached witness statements of two bystanders that state William was behaving erratically and
defying officers’ orders during the standoff. He does not provide the pages of the statements that discuss the actual
shooting.

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Case No. 18-3566, Lemmon v. City of Akron, et al.

from his waistband. In his complaint, Lemmon Sr. concedes that William partially matched the

description of an armed robbery suspect, participated in a standoff with police officers, took a step

off of the bike, ignored officer commands, and dared officers to shoot him, all while leading

officers to believe he had something in his pants that potentially could have been a firearm. In

response to Sergeant Armstead’s motion for summary judgment, Lemmon Sr. attached the

unsworn statements of the officers and witnesses present during William’s standoff. Despite the

debate as to whether they are admissible through an exception to hearsay, those statements

corroborate the officers’ affidavits and show that William was behaving in a manner that

threatened the safety of everyone around him. So even if admitted, the statements would not create

a genuine issue of material fact on Sergeant Armstead’s use of force. The sole affidavit attached

to Lemmon Sr.’s summary judgment response is an affidavit from the attorney for William’s

estate, who merely memorialized his transfer of the investigative file in this case over to Lemmon

Sr.’s trial counsel. The evidence Lemmon Sr. relies upon is insufficient to overcome his burden on

a motion for summary judgment.

        Importantly, Lemmon Sr. never rebuts the declaration of Sergeant Armstead’s forensic

ballistics expert. Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009) (“The failure to present any

evidence to counter a well-supported motion for summary judgment alone is grounds for granting

the motion.”). Richard Ernest (“Ernest”) is a third party professional forensic ballistics consultant,

who was hired by the City of Akron (“the City”) to perform a review of the evidence in the case

and compose a report of findings. His report, which analyzes topics such as bullet trajectory and

distance of shots fired, the autopsy report, officer and witness statements, inter alia, states that in

his professional opinion “[t]he physical evidence in this case is consistent with the officer’s

accounts of this shooting incident.” Lemmon Sr. produced no counter-evidence or counter-

                                                    15
Case No. 18-3566, Lemmon v. City of Akron, et al.

arguments, and to the extent he argues that he was denied the opportunity to, the district court

denied his untimely motion to retain an expert he sought “for the purposes of proof of damages.”
6

        Therefore, because the undisputed record shows Sergeant Armstead had probable cause to

believe that William posed a threat of serious harm, his use of deadly force was objectively

reasonable under the circumstances and thus constitutionally permissible.

        As for the second prong of the qualified immunity analysis, because there is no

constitutional violation, we have no need to evaluate whether the law was clearly established. See

Hoover v. Walsh, 682 F.3d 481, 501, n.57 (6th Cir. 2012) (“Because we resolve the issue of

qualified immunity by concluding that there was no constitutional violation, we need not address

the second prong of the analysis to determine whether Mr. Hoover’s rights were clearly

established.”).

        B.        Spoliation Sanctions

        Lemmon Sr. alleges that the City failed to preserve the only objective evidence available—

Sergeant Spano’s dashboard camera (“dashcam”). Lemmon Sr. argues that the district court erred

as a matter of law when it denied his spoliation claim against the City in light of the fact that

Sergeant Spano allegedly admitted that his dashcam was working at the time; the district court, he

argues, therefore should have made a negative inference from the absence of the dashcam

recording in favor of Lemmon Sr.

        We review the district court’s decision not to impose a spoliation sanction for abuse of

discretion, giving “great deference to the district court’s credibility determinations and findings of

        6
          R. 22, Memorandum Opinion, Page ID 117 (“The Court finds that plaintiff has failed to demonstrate that
he exercised diligence in attempting to meet the Court’s dates and deadlines in the [Case Management Plan and
Trial Order].”)

                                                       16
Case No. 18-3566, Lemmon v. City of Akron, et al.

fact.” Adkins v. Wolever, 692 F.3d 499, 503 (6th Cir. 2012) (quoting Beaven v. United States Dep’t

of Justice, 622 F.3d 540, 553 (6th Cir. 2010)). “A court abuses its discretion when it commits a

clear error of judgment, such as applying the incorrect legal standard, misapplying the correct legal

standard, or relying upon clearly erroneous findings of fact.” Id. (quoting Jones v. Ill. Cent. R. Co.,

617 F.3d 843, 850 (6th Cir. 2010)). This court in Beaven outlined the elements to consider when

evaluating whether to grant a spoliation sanction:

        A party seeking an adverse inference instruction based on the destruction of
        evidence must establish (1) that the party having control over the evidence had an
        obligation to preserve it at the time it was destroyed; (2) that the records were
        destroyed “with a culpable state of mind”; and (3) that the destroyed evidence was
        “relevant” to the party’s claim or defense such that a reasonable trier of fact could
        find that it would support that claim or defense. Thus, an adverse inference for
        evidence spoliation is appropriate if the Defendants “knew the evidence was
        relevant to some issue at trial and . . . [their culpable] conduct resulted in its loss or
        destruction.” This depends on the alleged spoliator’s mental state regarding any
        obligation to preserve evidence and the subsequent destruction.

Beaven, 622 F.3d at 553-54 (alterations in original) (quoting Residential Funding Corp. v.

DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) and Hodge v. Wal-Mart Store, Inc.,360

F.3d 446, 450 (4th Cir. 2004)).

        Upon review of the evidence in the record, the district court concluded that Lemmon Sr.’s

spoliation claim failed because “he [could] not establish that any evidence was ever destroyed, let

alone establish that any destroyed evidence was relevant to his claims.” The district court stated

that “Defendants have come forward with undisputed evidence that the hard drive recovered from

Sergeant Spano’s police vehicle, which has been preserved, did not contain any recordings or video

footage of the shooting on September 25, 2015.”

        Lemmon Sr. reasserted his argument that Sergeant Spano explicitly mentioned the

existence of a working dashcam in his initial witness statement, but that the comment is missing

from his sworn affidavit. The district court held that it is possible that some of the interviews could

                                                    17
Case No. 18-3566, Lemmon v. City of Akron, et al.

fall under an exception to hearsay and be deemed admissible, but it is unnecessary to reach that

issue because even if the statements were to be considered, they would not create a genuine issue

of material fact that would defeat summary judgment. Although Lemmon Sr. uses the issue of

spoliation in an attempt to raise doubt, under the facts of this case, it would not create an issue for

trial because Sergeant Armstead provided undisputed evidence that his use of force was objectively

reasonable under the circumstances. An adverse inference here would not change our holding in

that regard.

        We note that the district court made no mention of any evidence that Sergeant Armstead

had control over the allegedly destroyed dashcam. However, Lemmon Sr. never alleges that

Sergeant Armstead had any access to Officer Spano’s dashcam and also makes no argument that

Sergeant Armstead would still be liable if it were established that the City destroyed the alleged

video without his knowledge. See Adkins, 692 F.3d at 505 (affirming district court’s denial of

spoliation sanctions for officer when the prison lost the evidence, and the officer had no control

over the evidence). There is sufficient evidence in this record to rebut Lemmon Sr.’s allegations

of spoliation against both Sergeant Armstead and the City, and as noted by the district court, no

evidence that any evidence was destroyed. As such, the district court’s conclusion was not an abuse

of discretion, and its reliance on the factual record before it was not clearly erroneous. Accordingly,

we affirm its decision.

                                              CONCLUSION

        For the foregoing reasons, we affirm the district court’s grant of summary judgment against

Lemmon Sr. on his § 1983 excessive force claim.

                                                    18


291 F.2d 302
LINCOLN RESTAURANT CORP. and Collins Restaurant Corp., doing business as a joint venture under the firm name and style of "Wolfies," and Wolfies Twenty-first Street Restaurant, Inc., Plaintiffs-Appellees,v.WOLFIES REST. INC., Defendant-Appellant.
No. 160.
Docket 26567.
United States Court of Appeals Second Circuit.
Argued February 21, 1961.
Decided June 5, 1961.

Theodore R. Kupferman, New York City (Schnur, Kupferman & Price, Sidney O. Raphael, and Robert Price, New York City, on the brief), for defendant-appellant.
Joseph G. Gubman, New York City (Shapiro, Gubman & Sitomer, New York City, on the brief), for plaintiffs-appellees.
Before HINCKS and MOORE, Circuit Judges, and BRENNAN, District Judge.*
HINCKS, Circuit Judge.

1
Plaintiffs are the proprietors of two well known restaurants and sandwich shops, both called "Wolfies," in Miami Beach, Florida. Defendant, with knowledge of plaintiffs' prior use, opened a restaurant called "Wolfies" in Brooklyn, New York. Plaintiffs brought suit to protect their common law right to their trade name. Judge Byers below enjoined defendant's use of the name, the plaintiffs having waived all claim to damages, and defendant appeals.

2
Defendant's principal argument here is that there was no proof that plaintiffs had established a secondary meaning or likelihood of confusion in the Brooklyn area and that therefore plaintiffs failed to present a case. It is true that Judge Byers made no express finding on secondary meaning. This does not, however, require reversal. Plaintiffs' restaurants are exceedingly well known in the Miami Beach area. They are each of approximately the same size and each display an enormous electric sign. There was evidence that prior to the complaint they did an aggregate gross business of $2,500,000 per annum, paid rent of upwards of $95,000 per annum, and spent about $25,000 annually for advertising on buses, taxicabs, and in several newspapers mostly in the Miami area. They had a combined payroll of $10,000 weekly. Together, in the tourist season they served 11,000 persons a day. It was conceded that at least 5,000 Brooklynites visit Miami Beach every year. The president of one of the plaintiffs testified that periodic polls at the door of his restaurant showed that 50 to 60 per cent of his daily patronage was from Brooklyn.1 A popular television personality, on a national program emanating from New York and seen in many cities, mentioned that "many prominent theatrical people and sports people usually go to Wolfies after their show and entertainment" when in Miami Beach. This was not a paid-for commercial message, but a spontaneous remark apparently connected with a factual description of Miami Beach life. There was also testimony that Wolfies had been mentioned by a New York night club entertainer and another television personality. The president of one of the plaintiffs testified that when he attended a meeting of the National Boxing Association in New York, most of those present knew of and spoke of the plaintiffs' restaurants, although they came from all parts of the nation. From evidence such as this, the inference seems proper that "Wolfies" means the Florida restaurants, even to residents of Brooklyn.

3
But even if we assume that a secondary meaning was not established, the order still should be affirmed. Although after plaintiffs objected to defendant's use of the name defendant added a legend — "not connected with any other establishment" — to its menu, it did little if anything else to dispel the possible belief of its customers that they were eating in a Brooklyn branch of plaintiffs' enterprises. Indeed, such a belief was apparently encouraged, by a menu similar in color and format to that of plaintiffs', which featured such items as "Wolfie's Floridian Style French Toast," "Wolfie's Floridian Style Fountain Creations," and "Wolfie's Floridian Style Sundae Delights." All this evidence lends solid support to Judge Byers' finding that defendant's adoption of the name "Wolfies" is compatible with nothing but "a purpose to capitalize in Brooklyn upon the trade name `Wolfies' first adopted by the plaintiffs in Miami Beach." Thus intent to trade on plaintiffs' reputation and plaintiffs' name was specifically found, and we see no distinction between this and ordinary "palming off" in a products case. As this court has recently recognized, "a court of equity will restrain such practices as constitute palming off, actual deception or appropriation of another's property" even absent proof of secondary meaning. Norwich Pharmacal Co. v. Sterling Drug, Inc., 2 Cir., 271 F.2d 569, 571, certiorari denied 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739. See Santa's Workshop, Inc. v. Sterling, 3rd Dep't, 2 A.D.2d 262, 153 N.Y.S.2d 839; Upjohn Co. v. Schwartz, 2 Cir., 246 F.2d 254. Cf. Yale Elec. Corp. v. Robertson, 2 Cir., 26 F.2d 972. That plaintiffs' and defendant's restaurants are far apart is not necessarily a decisive fact. See, e. g., Ambassador East, Inc. v. Orsatti, Inc., 3 Cir., 257 F.2d 79 (Chicago "Pump Room" obtains injunction against Philadelphia restaurant); Stork Restaurant, Inc. v. Sahati, 9 Cir., 166 F.2d 348 (New York "Stork Club" obtains injunction against San Francisco tavern); Vaudable v. Montmartre, Inc., 20 Misc.2d 757, 193 N.Y.S.2d 332 (Paris "Maxim's" obtains injunction against New York restaurant).

4
Appellant also claims that the dismissal of an application by appellees for an injunction pursuant to New York Penal Law McKinney's Consol.Laws, c. 40, § 964, which makes it a misdemeanor for one with intent to deceive the public to assume the corporate, assumed, or trade name of another and provides for injunctive relief, is res judicata here. There is no substance to this contention. Section 964 requires proof by affidavit and such absence of a factual issue that the case would be appropriate for summary judgment under New York practice. An unsuccessful § 964 petitioner, "of course, may be entitled to the relief it seeks in a plenary action * * * The two remedies are not to be confused." Industrial Plants Corp. v. Industrial Liquidating Co., 1st Dep't, 286 App.Div. 568, 146 N.Y.S.2d 2, 7.

5
Appellant's other contentions are similarly without merit.

6
Affirmed.

Notes:

*
 Sitting by designation

1
 On a previous occasion he had testified that this percentage of his patronage derived from the City of New York

7
MOORE, Circuit Judge (dissenting).

8
Here is another example of the anomalous situation created by the courts' endeavors to grant a non-statutory monopoly through the medium of the "unfair competition" doctrine, which monopoly goes far beyond that bestowed by legislative enactment.1 Plaintiffs operate restaurants in Miami Beach, Florida, under the name "Wolfies." Apparently, "Wolfie" was the nickname of a gentleman by the name of Wilfred Cohen. Had he been named Edward Cohen, Samuel Cohen, Gerald Cohen or Joseph Cohen, he, if nickname minded, would doubtless have considered such distinctive names as "Eddie's," "Sam's," "Jerry's," and "Joe's" for his restaurant.2 If endowed with the not too uncommon name "Smith," he would have used "Smitty's"3 and, for some reason, every "Moore" in the restaurant business must be a "Dinty."

9
The restaurant, apparently of the glorified sandwich and ice cream type, achieved popularity with certain elements. Subsequently some 1,400 miles away in Brooklyn, New York, opposite the campus of Brooklyn College (some 25,000 students) appeared a similar type restaurant also using the name "Wolfies." It not only took the name "Wolfies" but imitated the menu format and presumed to confuse the international situation by offering in Brooklyn Floridian French Toast. Upon the trial instead of saying, "I copied Wolfies of Miami; what's wrong with that?", defendant indulged in a series of fantastic explanations. First, the father of a friend was named Wolf Pollack. Second, an officer of defendant, was a "wolf," meaning thereby a person whose vaunted attraction for the opposite sex met with a fair degree of success and reciprocity. Third, the electric sign which had borne the previous name "Jackies" could be easily and cheaply altered by substituting "Wolf" for "Jack."

10
Were the underlying principles of the law of unfair competition not of paramount importance here, defendant's explanatory efforts could well merit the award of affirmance. But the case is not thus easily to be disposed of. A restaurateur in the southeastern part of the country takes unto himself a not too unique nickname for a restaurant and straightway obtains without statutory sanction a permanent monopoly to the exclusion of every other inhabitant of our fifty states. This result will not withstand analysis. To the trial court, "This is an unfair competition case * * *" yet he finds "that the parties are not in direct competition." This circumstance is considered "unusual" as indeed it is. On appeal the suit is "to protect their [plaintiffs'] common law right to their trade name." Plaintiffs advance the theory that the trade name "Wolfies" is a valuable asset and that priority of use gives to the prior user the exclusive right to it.

11
I cannot but believe that unfair competition should mean (1) competition and (2) that it is unfair. Obviously, there is no competition between Wolfies (Miami) and Wolfies (Brooklyn). If the Brooklyn College student who seeks physical rehabilitation from his mental debilitation caused by a two-hour examination believes that he is walking across the street into Wolfies of Miami, he would truly be in a state of post-examination shock. Nor is it possible that a family from the midwest, anxious to visit Wolfies, would find itself in Brooklyn instead of Miami. Everyone gets lost in Brooklyn — but not that lost. The trial court itself has found "that the plaintiffs do not claim to have suffered any financial loss to be traced to the use of the name `Wolfies,' which eliminates any such aspect of the controversy." 185 F.Supp. 454, 456. The court, however, was greatly influenced by defendant's flagrant appropriation of the name. But intent is not controlling. A trade name implies trade. If trade is not affected, there is no loss.4 There is no "chance that this [the use of the name "Wolfies"] will deflect buyers who would otherwise buy of the putative other source * * * [which would cancel] the second comer's privilege of reproducing the original, which he has in common with the public at large (Judge Learned Hand in American-Marietta Co. v. Krigsman, 2 Cir., 1960, 275 F.2d 287). Furthermore, there is no proof or even claim that plaintiffs' name, credit, reputation for quality, or kindred assets are being tarnished by defendant.

12
Recognition must be given to the many cases in which the restaurant name is quite unique such as the "Stork Club,"5 the "Pump Room,"6 "Cock 'N Bull"7 and "Ruby Foo."8 All these cases can be put into the deception category because of the unusual name. The courts, unfortunately, can never avoid the task of making distinctions or drawing border lines. If the courts are to look for legislative guidance as to national policy relating to monopoly, the statutes (buttressed by Supreme Court decisions) disclose a tendency to grant monopolies in a most restrictive manner limited in time and bestowed only upon a showing of merit. It may well be that a "Stork Club" or a "Pump Room" should qualify for exclusionary protection as against an ordinary citizen named "Joe" but quaere whether a restaurant operator using a soubriquet in its familiar or diminutive form "Wolfie" can in this day and age claim such uniqueness whether it emanates from a name or from a characteristic. In my opinion, such a holding disregards the principles of unfair competition recently declared in this Circuit.9

13
I therefore would reverse and dismiss the complaint.

Notes:

1
 See the comment of Judge Clark in his dissent in American Safety Table Company, Inc. v. Schreiber v. Goldberg, 2 Cir., 1959, 269 F.2d 255, 277, certiorari denied 1959, 361 U.S. 915, 80 S.Ct. 259, 4 L.Ed.2d 185, "The all but wholly obscured truth is that the well-known concept of unfair competition is being employed to fashion and shelter a monopoly * * *". The dangers to which Judge Clark adverted were heeded in the second opinion, 287 F.2d 417, 419 (decided February 28, 1961), wherein the court said, referring to a perpetual monopoly established via unfair competition, "We certainly never intended any such result. On the contrary, as indicated in the opinion again and again, we intended no departure from the basic principles of the law of unfair competition as stated in this Circuit."

2
 With respect to the service of food, in the New York Manhattan 1961 telephone book, "Eddie's" is found 7 times, "Jerry's" 5 times, "Joe's" 13 times, even "Wolfies" once. In the Brooklyn book, "Eddie's" 4 times, "Jerry's" 8 times and "Joe's" 27 times. Other cosmopolitan centers would probably contribute a proportionately equal number of similarities

3
 In New York and Brooklyn, "Smitty's" is found 3 times

4
 A leading English case describes the principle upon which the courts act in protecting a trade name as being the protection of a plaintiff from a loss of business caused by confusion as well as the protection of the public from being misled by misrepresentations. Levy v. Walker, 1879, 10 Ch.D. 447

5
 Stork Restaurant, Inc. v. Sahati, 9 Cir., 1948, 166 F.2d 348

6
 Ambassador East, Inc. v. Shelton Corners, Inc. et al., D.C.S.D.N.Y.1954, 120 F.Supp. 551

7
 Nagrom Corporation v. Cock 'N Bull, Inc., D.C.D.C.1957, 149 F.Supp. 217

8
 Pike v. Ruby Foo's Den, Inc., 1956, 98 U.S.App.D.C. 126, 232 F.2d 683

9
 American-Marietta Co. v. Krigsman, 2 Cir., 1960, 275 F.2d 287; Speedry Products, Inc. v. Dri Mark Products, Inc., 2 Cir., 1959, 271 F.2d 646; Norwich Pharmacal Company v. Sterling Drug, Inc., 2 Cir., 1959, 271 F.2d 569


56 Cal.App.3d 505 (1976)
128 Cal. Rptr. 481
THE PEOPLE, Plaintiff and Respondent,
v.
RODNEY EDGAR GATCH, Defendant and Appellant.
Docket No. 7595.
Court of Appeals of California, Fourth District, Division Two.
March 24, 1976.
*506 COUNSEL
Weldon Ray Reeves, under appointment by the Court of Appeal, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, A. Wells Petersen and Jay M. Bloom, Deputy Attorneys General, for Plaintiff and Respondent.
*507 OPINION
THE COURT.
Defendant was found guilty by a jury of attempted burglary and sentenced to state prison for the term prescribed by law, pursuant to Penal Code section 1168. Probation in another case was revoked and state prison sentence imposed pursuant to Penal Code section 1168. The sentences were to be served concurrently.
Defendant argues that the recent case of People v. Harris, 15 Cal.3d 384 [124 Cal. Rptr. 536, 540 P.2d 632], should be given retroactive application and then applied herein. We conclude that under Harris the judgment must be affirmed and therefore do not address the issue of retroactivity.

FACTS
At approximately 10:10 a.m. on February 28, 1975, Thomas Myers heard the burglar alarm sounding at the Mishak residence some quarter to half mile away. The area is not densely populated. The police were contacted and Myers went to investigate. He arrived after the lapse of approximately two minutes.
He noted an open screen door and rear gate. He observed defendant and another person about 200 yards from the house hitchhiking. Thereafter he saw a woman sitting in an old Dodge or Plymouth. He took down the vehicle license number. Defendant and the other man were walking and Myers saw them split up and go in opposite directions.
Shortly thereafter Detective Anton was responding to the call and saw defendant walking some half mile from the Mishak residence. Upon the officer's arrival Myers disclosed his observations. Anton recognized that the man he had seen walking matched the description Myers gave. Upon Anton's request, Deputy Bacon (the backup officer on his way to the scene) detained defendant and transported him to the Mishak residence where Myers identified him.
Defendant was arrested and his shoes seized at the jail. A heel print found at the Mishak residence could have been made by one of defendant's shoes. Mildred Davis, the driver of the old car, was granted immunity and testified that defendant and another went to the Mishak residence to burglarize it. She parked around the corner for the purpose of picking up the men. She heard the alarm and successfully picked up *508 defendant's companion. She was unable to pick up defendant because he had been taken into police custody.

DISCUSSION
Defendant's instant notice of appeal from the judgment was filed on August 28, 1975. Thereafter, on October 7, 1975, the Supreme Court filed its opinion in Harris.
Factually Harris involved police detention of two suspects shortly after a burglary had occurred. At the time the police had sufficient cause for detention but the circumstances fell short of probable cause for arrest. The police transported the suspects a few blocks to the crime scene for the purpose of an in-the-field identification. While the identification could not be made, it turned out that one of the detainee's shoes matched a shoe print at the scene. This led to an arrest which disclosed additional incriminating evidence on the person of the arrestee.
In brief, the court held that in-the-field transportation in the absence of consent, other unusual circumstances or probable cause to arrest is an impermissible intrusion into the individual's constitutional liberties and any evidence discovered as the result thereof must be suppressed as the fruit of an unlawful detention. (1) In concluding its discussion of the holding the case recites, "Similarly, the surrounding circumstances may reasonably indicate that it would be less of an intrusion upon the suspect's rights to convey him speedily a few blocks to the crime scene, permitting the suspect's early release rather than prolonging unduly the field detention." (At p. 391.)
Harris goes on to say that "Ordinarily there exist less intrusive and more reasonable alternatives to pre-arrest transportation. The officers may call or escort the witness to the detention scene for an immediate viewing of the suspect, or if they are able to procure satisfactory identification from the suspect, arrangements may be made for a subsequent confrontation with the witness. In addition, the consent of the suspect may be sought." (Id.)
In order to effect a permissible in-the-field identification, it is not reasonable to require the police to (1) abandon a crime scene before proper investigation is completed; (2) intentionally pass up the opportunity to detain a suspect; (3) endanger a citizen-witness by attempting to initially effect a detention at some location with the witness as a *509 passenger; or (4) send an unescorted witness to a detention scene when the investigation is just commencing and the possibility also exists that the witness will be needed elsewhere for other identifications. Control and thoroughness are an essential ingredient in the process of investigation and apprehension. In order to properly carry out their duties, the police must be given the opportunity to secure the crime scene, investigate thoroughly, detain suspects at the first opportunity and keep in direct contact with witnesses until the initial necessity of their presence passes.
At the time of detention-transportation, Anton had just arrived at the crime scene and Bacon was moving toward it on the same road on which defendant was walking. Anton immediately received the information of the two men walking in opposite directions as well as the license number of the old car. According to Myers' testimony, Anton and Bacon were the only officers that responded to the crime scene.
Here it would have been unreasonable to require Anton to immediately abandon the crime scene or Bacon to drive on past defendant to reach the crime scene. The only real alternative the two officers had here was to use the services of a third officer. The record before us discloses that only two officers were involved. In Harris there were a number of available officers thereby eliminating any need for consideration of what the police should do in a case like the one before us.
To here say that the least intrusive means available to the police was to call in a second backup unit so that the witness could be transported to the defendant is no more than a game of speculation. The conclusion would be predicated on the assumption another officer was then available and nearby. No such facts appear here. Instead, the facts demonstrate the location was sparsely populated, another suspect was presumably moving on foot in another direction and a suspect vehicle was on the move in the vicinity. There are limits on the number of immediately available backup units and presumably outside major metropolitan areas this number is substantially diminished. If additional units were involved in a search for the other suspects, it can hardly be said the police should have abandoned this effort in favor of dealing exclusively with defendant. In any event, the time involved in defendant's detention-transportation was so brief that it is extremely doubtful that calling in additional units would have accomplished a less intrusive means of handling the situation.
*510 Looking to the degree of intrusion here upon defendant we find it slight. In time, the span between initial detention and identification at the scene was a maximum of 10 minutes and a minimum of 5 minutes. Unlike Harris, there is no evidence that defendant was initially subjected to a search. Unlike Harris, defendant was not handcuffed by the police. When the transporting unit arrived at the crime scene, the unhandcuffed defendant was allowed to immediately exit the police vehicle.
Another major difference between Harris and the instant case is the degree of certainty that the correct persons were detained. In Harris one man was seen in a car. There was the "possibility" of another suspect on foot but no second person was seen. The man in the car drove off. Thirty to 45 minutes later the police detained two men walking about three blocks from the crime scene. The occurrence was in metropolitan Los Angeles. In contrast here the specifically described defendant was known to be walking on the only through passage road in a remote area. He was seen by the witness starting his walk, seen by Anton a half mile down the road and finally seen by Bacon a mile down the road. There is little question  the right man was detained and only after the lapse of some 10 minutes from the time the witness last saw him.
Weighing the alternatives available to the police and the degree of intrusion to defendant as a result of the transportation, we conclude this case is one in which it was less of an intrusion to convey the defendant speedily the short distance to the crime scene so that an unduly prolonged detention would be avoided and defendant provided the opportunity for a very early release. On this record there was not a less intrusive and more reasonable alternative to pre-arrest transportation.[1]
*511 Even were we to assume that the instant transportation was impermissible, a reversal of the instant case is far from a compelling conclusion. In Harris the court required suppression of the physical evidence that resulted from the unlawful detention. Factually Harris did not involve a positive identification by a witness and consequently was not faced with the intricacies of how this should be handled. In other areas of identification where a tainted identification procedure exists, an in-court identification will be permitted where it is shown that the witness identification is based upon an independent source rather than the tainted procedure. Such an approach should be applied where an identification results from an impermissible transportation. Here, all the facts support the conclusion that the in-court identification of defendant by the witness was based upon observation of the defendant at the crime scene prior to the initial arrival of Anton.[2]
If suppression was here ordered, it would only be as to the physical evidence of defendant's shoes. This evidence as presented at trial was of minimal evidentiary value. Defendant's conviction rested on a complete testimonial disclosure by an accomplice which was corroborated by the testimony of circumstances and identification by the citizen-witness. We are convinced beyond a reasonable doubt that any error in admitting the shoe evidence was harmless.
Judgment affirmed.
A petition for a rehearing was denied April 22, 1976.
NOTES
[1]  Defendant produced a driver's license with a Fontana address, said he lived in Highland, had just applied for a job in Mentone and was walking to a friend's home in Yucaipa. Thus defendant was unemployed and with an uncertain home address. This was not a situation where arrangements should have been made for defendant to later voluntarily appear for identification purposes.

As to whether defendant consented to the transportation or such a request was made, the record is silent. It is interesting that during the hearing at issue defense counsel twice began a factual comment as to what happened between defendant and Deputy Bacon and both times made an otherwise unusual pause and regrouping. ("... once Deputy Bacon asked him  well, had him get into that patrol car"; "... Deputy Bacon asked him to  well, to get in that police car....") In any case, if there was consent here there is no problem under Harris. If instead consent was refused, our above disposition controls. Whether or not consent was requested, given or refused, the result in this case remains the same.
[2]  The record contains no pretrial motion by defendant to exclude evidence of his identification by Myers. Similarly no such motion was made at trial nor was an objection made to the in-court identification. On appeal it is only by a weak inference suggested that the in-court identification should have been excluded.


995 F.2d 1064
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Andrew Scott TARANTOLE, Plaintiff-Appellant,v.R. M. MUNCY, Warden (V.S.P.);  Glen Harris, Assistant Warden(V.S.P.);  Eugene W. Murray, Director of Corrections;Unknown Correctional Officer(s), (V.S.P.);  Nurse Streeter;R. Brown, Doctor (V.S.P.), Defendants-Appellees.
No. 92-7207.
United States Court of Appeals,Fourth Circuit.
Submitted:  March 10, 1993.Decided:  June 17, 1993.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk.  Rebecca B. Smith, District Judge.  (CA-91-108-N)
Andrew Scott Tarantole, Appellant Pro Se.
Mark Ralph Davis, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees.
E.D.Va.
AFFIRMED.
Before MURNAGHAN and WILKINS, Circuit Judges, and SPROUSE, Senior Circuit Judge.
PER CURIAM:

OPINION

1
Andrew Scott Tarantole appeals from the district court's order denying relief under 42 U.S.C. § 1983 (1988).  Our review of the record and the district court's opinion discloses that this appeal is without merit.  Accordingly, we affirm on the reasoning of the district court.  Tarantole v. Muncy, No. CA-91-108-N (E.D. Va.  Nov. 10, 1992).  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED


633 F.2d 219
U. S.v.Grenanco
80-5064
UNITED STATES COURT OF APPEALS Sixth Circuit
9/19/80

1
E.D.Mich.

APPEAL DISMISSED


610 S.W.2d 382 (1980)
STATE of Missouri, Plaintiff-Respondent,
v.
Lorenzo MURPHY, Defendant-Appellant.
No. 41873.
Missouri Court of Appeals, Eastern District, Division Three.
December 16, 1980.
*383 Karl F. Lang, St. Louis, for defendant-appellant.
John Ashcroft, Atty. Gen., S. Francis Baldwin, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
SNYDER, Judge.
Appellant was found guilty by a jury of the offense of carrying a concealed weapon, § 564.610, RSMo 1969, and sentenced to three years' imprisonment. He appeals from his conviction, arguing: (1) the evidence does not sustain his conviction; (2) irrelevant and prejudicial evidence was admitted at trial; and (3) one of the jurors should have been stricken for cause due to the juror's bias and prejudice. There was no error. The judgment is affirmed.
Appellant was arrested by an off-duty policeman performing security duties in the Cochran Garden Apartments, a St. Louis Housing Authority building project. While the policeman was checking a building sometime after 2:40 a. m., he entered a stairwell to check the upper floors. As he went up the stairs, the police officer saw appellant and his brother standing on the third floor landing watching him. The policeman noticed both appellant and his brother were wearing jackets and had their right hands in or near their right front jacket pockets. The officer testified he saw no weapons but was wary because of the hour and the circumstances.
The officer passed the appellant and his brother, careful to watch their right arms, and proceeded to the fourth floor. After he assured himself the men on the third floor landing had not followed, the policeman moved his service revolver, badge, and identification to more readily accessible positions and went down the stairs to approach and question appellant and his brother. *384 Appellant and his brother had proceeded down the stairs, and the officer followed them down to the lobby level.
As appellant and his brother reached the lobby level, the policeman called to them to stop, and identified himself as a police officer. Appellant was closer to the officer than appellant's brother. When the officer called, appellant made a quarter turn and looked back toward the officer. The officer, who was watching appellant's right hand which was still in his pocket, saw the brown handle of an as yet unidentified firearm. He testified that this was the first time he had seen the weapon.
The policeman immediately exhibited his revolver and police identification and ordered appellant to raise his arms. The officer removed a .357-magnum pistol from appellant's right jacket pocket. The police officer then approached appellant's brother. The officer removed a .38-caliber revolver from the right jacket pocket of appellant's brother. Further search of appellant and his brother produced ammunition and a flak jacket worn by appellant's brother under his jacket.
Appellant's first point relied on is that the trial court erred in denying appellant's motion for judgment of acquittal because insufficient evidence was adduced at trial to prove the gun carried by appellant was concealed. Although appellant's point relied on does not so specify, appellant's brief notes the evidence disproved that the .357-magnum pistol seized from appellant was concealed upon his person because the pistol was too large to be concealed inside appellant's jacket pocket and because the police officer who arrested appellant saw and immediately recognized the pistol protruding from appellant's pocket and did not have to search appellant to discover the pistol. Appellant's contention is not meritorious.
Whether a weapon is concealed within the prohibition of § 564.610, RSMo 1969, is determined by whether the weapon is discernible by ordinary observation. A weapon is not concealed simply because it is not discernible from a single vantage point if it is clearly discernible from other positions. The weapon may be concealed, however, if it is discernible only from one particular vantage point. State v. Wood, 562 S.W.2d 699, 701[1-3] (Mo.App.1978); State v. Cavin, 555 S.W.2d 653, 654[1, 2] (Mo.App. 1977). Appellant's motion for acquittal was grounded upon the allegation that the state failed to prove the essential element of concealment. The scope of appellate review of the trial court's denial of that motion extends only to a determination of whether there is sufficient substantial evidence to support the verdict. In testing the sufficiency of the evidence, the evidence and reasonable inferences therefrom must be considered in the light most favorable to the state, and all contrary evidence and inferences must be disregarded. State v. Achter, 514 S.W.2d 825, 826[1,2] (Mo.App. 1974).
Sufficient substantial evidence does support the verdict against appellant. The off-duty police officer who arrested appellant testified he did not see appellant's weapon except for a brief moment as appellant turned back toward him, although the officer had the opportunity to see the appellant from several other angles and had been particularly observant of appellant's right arm and hand. A police officer's testimony that he did not see a pistol despite the opportunity to view the accused under conditions likely to cause a police officer to be particularly observant for weapons is entitled to some consideration both at the trial and appellate levels. State v. Cavin, supra, 654[3]; State v. Odzark, 532 S.W.2d 45, 49[4-7] (Mo.App.1976); State v. Jones, 523 S.W.2d 152, 154[3] (Mo.App.1975). Appellant has urged that the .357-magnum revolver which he carried was too large to be concealed in his jacket pocket. However, if the revolver were partially concealed by the jacket pocket and partially concealed by appellant's arm and hand, that would be sufficient. State v. Miles, 124 Mo.App. 283, 101 S.W. 671 (1907) cited with approval in State v. Gibbs, 600 S.W.2d 594, 597 (Mo. App.1980). See State v. Achter, supra, 828. At trial, appellant put on his jacket and demonstrated how the .357-magnum revolver *385 would appear when in his jacket pocket and how his arms would be held. The jury evidently believed it was possible for the appellant's revolver to be concealed.
Appellant's second point relied on is that the trial court erred in admitting evidence of a bullet-proof, or flak, jacket worn by appellant's brother at the time of the arrest. Appellant argues the jacket was irrelevant, immaterial, prejudicial, inflammatory, and its admission deprived him of a fair trial. Appellant's contention is ruled against him.
Demonstrative evidence which tends to establish any fact in issue or throw light on the controversy and aid the jury in any way in arriving at a correct verdict is admissible although the evidence tends to arouse the prejudice of the jury. State v. Murphy, 592 S.W.2d, 727, 730[1,2] (Mo.banc 1979); State v. Swenson, 551 S.W.2d 917, 921[14,15] (Mo.App.1977). The only discretion a trial court has to deny admission of demonstrative evidence is if the evidence is both irrelevant to a material issue and also inflammatory or prejudicial. State v. Swenson, supra. Appellant argues the flak jacket was irrelevant because the jacket was neither worn by appellant nor pertinent to the question whether appellant carried a concealed weapon and argues the admission of the jacket was prejudicial because it "could raise all sorts of speculation and questions in the mind of the jury."
Weapons and objects not connected with the defendant or the crime are not admissible unless they possess some probative value. State v. Hughes, 596 S.W.2d 723, 727-728[7-9] (Mo.banc 1980); State v. Duncan, 540 S.W.2d 130, 136[12-16] (Mo. App.1976); State v. Johnson, 539 S.W.2d 493, 515[45,46] (Mo.App.1976), cert. denied 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977). The connection of demonstrative evidence to the accused or the crime charged may be so remote as to make the evidence inadmissible. State v. Richards, 334 Mo. 485, 67 S.W.2d 58, 60[1] (1933). Analysis of the case law suggests evidentiary remoteness consists of seizure of evidence not connected with the defendant or the crime at a time remote from the date of the crime and the defendant's non-presence at the time of seizure. State v. Richards, supra; State v. Davis, 530 S.W.2d 709 (Mo. App.1975).
Nevertheless, demonstrative evidence may be relevant and admissible although the evidence was neither possessed by the accused nor strictly pertinent to the crime charged if the evidence is part of a continuous occurrence intimately connected with the crime. State v. Swenson, supra, 921[16].
Factors such as proximity of the time of seizure of the challenged evidence to the time the crime is committed, proximity of the challenged evidence to other admissible evidence seized with the evidence challenged, and proximity of the accused to the evidence at the time of seizure are pertinent to the decision whether evidence not seized from the accused, nor utilized in the crime charged, has sufficient connection with the crime to permit admission. See State v. Johnson, supra, 515-516[47-49].
The evidence challenged by appellant is not so remote as to prohibit admission of the evidence. The evidence was seized in appellant's presence and at the time of the commission of the crime and appellant's arrest.
The flak jacket also has probative value. Articles tending to show the accused's motive, malice, intent, knowledge, or preparation may be received in evidence if shown to be sufficiently connected with the crime or the accused. State v. Johnson, supra, 516[50]. The state has argued before both the trial and appellate courts that the flak jacket tends to show appellant's intent to conceal, an issue energetically contested by appellant. The state reasons that the fact appellant's brother was wearing a flak jacket is part of a scenario not indicative of appellant's innocent intent.
Even if the probative value of demonstrative evidence is questionable, the evidence should be admitted and presented to the trier of fact for evaluation. State v. Pruitt, 556 S.W.2d 63, 66 n. 1 (Mo.App. *386 1977). The trial court has broad discretion to determine the relevancy and admissibility of demonstrative evidence. State v. Johnson, supra, 515[45,46]. The trial court was within its discretion in finding the challenged evidence of the flak jacket relevant to appellant's intent and admissible. State v. Pruitt, supra, 66[8-12]; See State v. Williams, 542 S.W.2d 3, 5[1,2] (Mo.App.1976); State v. Williams, 539 S.W.2d 530 (Mo.App. 1976).[1]
Of the cases cited by appellant in support of his position that the flak jacket was inadmissible, the case most favorable to appellant's position is State v. Holbert, 416 S.W.2d 129 (Mo.1967). It held the admission of two weapons,[2] other than the weapon which the defendant was charged with concealing, constituted reversible error. State v. Holbert, supra. The court rejected the state's contention the evidence tended to prove the defendant's intent to conceal the weapon in the crime charged. State v. Holbert, supra, 132-133[7].
Another case which would lend support to appellant's argument but not cited by appellant is State v. Williams, 543 S.W.2d 563 (Mo.App.1976). That decision held a weapon concealed under the front seat of an automobile was not admissible in the defendant's prosecution for carrying a concealed weapon seized from appellant as he sat in the rear seat of the automobile. The court noted the state had advanced no particular ground of relevance of the disputed evidence but had merely contended the weapon was evidence concerning the circumstances of the offense charged and the defendant's arrest. State v. Williams, supra, 564.
Although State v. Holbert, 416 S.W.2d 129 (Mo.1967) and State v. Williams, 543 S.W.2d 563 (Mo.App.1976) appear to lend some support to appellant's argument, they are distinguishable from appellant's case in two important respects. First, unlike the cited cases, appellant challenges the admission of evidence which is not a deadly weapon.[3] Admission of demonstrative evidence not consisting of a deadly weapon does not have the same propensity to engender prejudice as admission of a deadly weapon. State v. Johnson, supra.[4] Second, unlike State v. Holbert, supra, and State v. Williams, 543 S.W.2d 563 (Mo.App.1976), appellant has strenuously contested the issue of his concealment of the weapon seized from him both at the trial and appellate levels. The question of defendant's concealment of the weapon forming the basis of charges in State v. Holbert, supra, and State v. Williams, supra, was not a viable issue. The court noted that the intent to conceal is presumed from the fact of concealment in rejecting the state's argument that the disputed evidence was admissible to prove the defendant's intent to conceal in State v. Holbert, supra; and the court noted the *387 state had advanced no specific theory of relevancy of the challenged evidence in State v. Williams, supra. However, in the case to be decided, the issue of appellant's concealment of the weapon was very much a contested and viable issue. State v. Richardson, 515 S.W.2d 571 (Mo.1974). Certainly in such a posture, and given the state's burden of proving its case beyond a reasonable doubt, the state should not be unduly limited in the quantum of its proof of concealment. State v. Burks, 484 S.W.2d 302, 306[5] (Mo.1972); State v. Pruitt, supra, 66[8-12].
Appellant's third and final point relied on is that the trial court erred by not striking a venireman from the jury panel for cause. Appellant argues the venireman's responses to voir dire questions revealed the venireman's bias and prejudice. Appellant's contention is ruled against him.
Appellant argues the venireman's bias and prejudice can be derived from the following questioning:
"MR. LANG [Appellant's attorney]: Have any of you had any close friends or relatives or maybe even yourselves at one time served as a police officer? Maybe not as a police reserve officer as Mr. Swiderski, but maybe you've had some connection with law enforcement and that would apply to any of you ladies and gentlemen of the jury box or somebody close to you is a police officer and see how relevant it is because only one witness for the State is with this case and he's a police officer.
Mrs. Sauer?
VENIREMEN [Sic] SAUER: Yes? Several friends.
MR. LANG: All right. Were any of them in the Third District?
VENIREMEN [Sic] SAUER: I don't believe so.
MR. LANG: Okay. Would you give more weight to the testimony of the police officer in this case because of your friendship and
VENIREMEN [Sic] SAUER: I don't think so.
MR. LANG: Would you judge the testimony of this officer as the testimony of any other witness?
VENIREMEN [Sic] SAUER: Yes.
MR. LANG: In light of your ownIn light of your own experience and intelligence you could do that?
VENIREMEN [Sic] SAUER: (The veniremen [sic] nodded her head.)
MR. LANG: Incidentally, you manage a tavern. Where is that tavern?
VENIREMEN [Sic] SAUER: On South Broadway.
MR. LANG: Okay. Have you ever been the victim of a crime down there where you had to call
VENIREMEN [Sic] SAUER: We were robbed but not held-up like you said with a gun. We have been robbed several times.
MR. LANG: You mean burglarized?
VENIREMEN [Sic] SAUER: Burglarized.
MR. LANG: Robbery is someone taking
VENIREMEN [Sic] SAUER: Okay.
MR. LANG: by force either with a gun or knife or with a gesture that threatens you.
VENIREMEN [Sic] SAUER: Not like that.
MR. LANG: You haven't been the victim of any robbery but while you were gone?
VENIREMEN [Sic] SAUER: Yes.
MR. LANG: While you were gone. Are you apprehensive about being the victim of a robbery?
VENIREMEN [Sic] SAUER: Very unhappy.
MR. LANG: Would that feeling that you have and you have to have a feeling if you're open late at night in a tavern because taverns are an easy target for the people that want to rob
VENIREMEN [Sic] SAUER: Very apprehensive.
MR. LANG: would that apprehension tend to effect [sic] you at all in deliberation of this case where this man is *388 charged with carrying a concealed weapon?
VENIREMEN [Sic] SAUER: I hope not.
MR. LANG: Pardon?
VENIREMEN [Sic] SAUER: I hope not.
MR. LANG: Hope not either, that's
VENIREMEN [Sic] SAUER: I don't know.
MR. LANG: That's why I'm asking the question.
VENIREMEN [Sic] SAUER: I don't think so.
MR. LANG: Because I have to be sure. I have to be sure that you have no reservations about it, you see, and can you tell me unqualified, without reservation that your apprehension wouldn't effect [sic] you at all in this case? Maybe you don't know, maybe if you're not sure
VENIREMEN [Sic] SAUER: I guess I can't answer that because I don't really know.
MR. LANG: Well, you can't say then look at it the other way and I don't want people to think I'm picking on you because I know that someone who's working late nights, say at a filling station or any of them if they read the papers they have to figure they may in the future be a target and may be apprehensive and particularly women like yourself managing this.
Would it be fair to say that you can't positively say that it wouldn't effect [sic] you and
VENIREMEN [Sic] SAUER: It would be very safe."
Appellant's attorney then requested the trial court to strike the venireman for cause during a conference at the bench. The court indicated it did not believe it was necessary to strike the venireman for cause, but continued to question the venireman as follows:
"THE COURT: Mrs. Sauer, I'm asking you in view of the fact that you do operate a tavern at night and you've indicated the fact that you have had some burglaries there that have occurred whether or not you could be fair to the State and the defendant and you were asked questions by Mr. Lang about how you felt.
No-one knows exactly how you're going to respond to anything but do you have any reservations in your own mind, any reluctance to feel that you could be fair to the State and to the defendant?
VENIREMEN [Sic] SAUER: It's reluctance, yes.
THE COURT: That you couldn't be fair to one side or the other?
VENIREMEN [Sic] SAUER: Yes.
THE COURT: Could you follow the Court's instructions?
VENIREMEN [Sic] SAUER: I could do that, yes, sir.
THE COURT: And could you then judge the case on the basis of what is said here in the courtroom and not what happened at your tavern and not what happened to anybody else but only and solely on what happens in the courtroom?
VENIREMEN [Sic] SAUER: Yes, I guess I could.
THE COURT: And doing that then could you be fair to both sides, putting aside anything at all what happened in your own life and what happened to other people or what happens outside of the courtroom? We want the jury to make the decision whatever it is based on the evidence that's received in the courtroom because that's the basis on which you return a verdict, not on what happened to you in the years gone by or what you do or what happened to your family but what happened here in this case as evidence [sic] by the testimony and the exhibits?
VENIREMEN [Sic] SAUER: Yes, I could.
THE COURT: Could you do that now?
VENIREMEN [Sic] SAUER: Yes, I could.
THE COURT: All right. You can join me again unless either one of you want to ask a question.
MR. LANG: Well, you indicated that you felt that your apprehension, what *389 would happen to you would effect [sic] your ability to listen to the facts. I thought you mentioned this, it might you couldn't be sure whether it would effect [sic] you in your deliberations?
VENIREMEN [Sic] SAUER: Well, he just said I'd have to block that out. I could do that.
MR. LANG: Well, you think you can block it out?
VENIREMEN [Sic] SAUER: Yes.
MR. LANG: No question about it?
VENIREMEN [Sic] SAUER: No.
THE COURT: All right, your objection will stand but I'll overrule it."
The defendant in a criminal jury trial is entitled to a full panel of qualified impartial veniremen before he is required to exercise his peremptory challenges. State v. Roberts, 604 S.W.2d 765, 767[1-3] (Mo.App.1980). The trial court determines, in the first instance, whether a prospective juror is qualified; and, in making this determination, the trial court has broad discretion which will not be disturbed on appeal unless the trial court's determination is clearly against the evidence and constitutes a clear abuse of discretion. State v. Thomas, 596 S.W.2d 409, 412-413[6,7] (Mo. banc 1980); State v. Treadway, 558 S.W.2d 646, 649[1,2] (Mo.banc 1977), disapproved on other grounds in Sours v. State, 593 S.W.2d 208 (Mo.banc 1980); State v. Goodrich, 603 S.W.2d 81, 83[1] (Mo.App.1980). In making the determination whether the venireman is qualified, the court must consider the facts stated by the venireman and not the venireman's conclusions that he could be fair and impartial, State v. Roberts, supra, 767[6,7], and must consider, not a part, but the whole of what the venireman says during the examination. State v. Treadway, supra, 649[3,4]; State v. Stewart, 596 S.W.2d 758, 760[8-10] (Mo.App. 1980).
In arguing venireman Sauer was biased and prejudiced, appellant points to venireman Sauer's uncertainty about whether she would be able to disregard her apprehension of being the victim of crime as she worked in her tavern late at night. When venireman Sauer's testimony is considered in its entirety, her equivocation merely indicates her initial reluctance to guarantee her personal experiences would not influence her decision, that she could not definitely know whether they would influence her. When defense counsel began questioning venireman Sauer, she stated she did not believe her apprehension would affect her deliberation in appellant's case. Only upon defense counsel's continued questioning did the venireman equivocate, stating that she could not answer because she did not really know whether or not she would be affected. In response to the court's questioning, venireman Sauer assured the court she could follow the court's instructions and could base her decision upon the evidence received in court and not her experiences. The venireman also assured defense counsel she could unquestionably block out her personal apprehension from her deliberations upon the trial court's instruction.
All doubt concerning the determination of a venireman's qualifications should be resolved in favor of the trial court's ruling because the trial judge is in a far better position to observe the demeanor of the venireman and to evaluate and interpret the venireman's answers as they relate to whether the venireman could be fair and impartial if chosen as a juror. State v. Thomas, supra; State v. Treadway, supra, 649[1,2]; State v. Goodrich, supra; State v. Stewart, supra, 760[8-10]. When considered in their entirety, venireman Sauer's responses to voir dire questions do not indicate any disqualifying bias or prejudice. See State v. Treadway, supra, 648-650. Further, any equivocation by venireman Sauer would have been cured by the venireman's rehabilitation when asked clarifying questions. State v. Treadway, supra, 649-650[3-4]; State v. Goodrich, supra, 83[2].
Appellant has placed reliance upon State v. Lovell, 506 S.W.2d 441, 443-444[1-4] (Mo. banc 1974). The case cited by appellant and State v. Watson, 595 S.W.2d 754, 756-758[1-4] (Mo.App.1980), hold that a venireman's *390 opinion he could render a fair and impartial verdict would not rehabilitate a venireman who had clearly expressed doubt he could be a fair and impartial juror. Appellant's reliance on such reasoning is misplaced. Venireman Sauer did not clearly express her doubt she could be fair and impartial but equivocated under pressure by defense counsel. Additionally, the trial court's examination of venireman Sauer after defense counsel's challenge was more detailed than in State v. Watson, supra, and the venireman's rehabilitating responses more positive than in State v. Lovell, supra. The trial court's discretion was not abused.
The judgment is affirmed.
CRIST, P. J., and REINHARD, J., concur.
NOTES
[1]  The appellate court concluded admission of marijuana and marijuana paraphernalia (a pipe) into evidence was relevant to prove the accused's intent in a prosecution for possession of heroin. State v. Williams, 539 S.W.2d 530 (Mo.App.1976). Similarly, the admission of heroin and syringes is relevant to prove intent in a prosecution for possession of marijuana. State v. Williams, 542 S.W.2d 3, 5[1,2] (Mo. App.1976).
[2]  One weapon was concealed near the defendant in his automobile. The other weapon was on the defendant's person. State v. Holbert, 416 S.W.2d 129 (Mo.1967).
[3]  State v. Merritt, 460 S.W.2d 591 (Mo.1970) and State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944), also cited by appellant involved admissions of deadly weapons. State v. Merritt and State v. Wynne are also distinguishable from appellant's case in that the erroneously admitted evidence was not seized in the proximity of defendant or close in time to the charged criminal activity. State v. Merritt (weapon allegedly found day after charged assault outside tavern which was the scene of the charged assault); State v. Wynne (weapon recovered from murder scene lost and state substituted allegedly similar weapon for demonstrative purposes).
[4]  Admission of three black berets and a black hat found inside drawers and seized from house which was not defendant's residence was not error because, although defendant was not identified as having worn such a hat during the murders, assaults, and robberies charged, at least one of the participants in the robbery wore a beret-like hat. State v. Johnson, 539 S.W.2d 493 (Mo.App.1976), cert. denied 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977).


917 F.2d 560
Middletonv.Wal-Mart Stores, Inc.*
NO. 90-4340
United States Court of Appeals,Fifth Circuit.
SEP 27, 1990

1
Appeal From:  W.D.La.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3