Frederick Grossmith v. Richard Noonan, in his capacity as Sergeant of the Foxborough Police Department

United States Court of Appeals
For the First Circuit
No. 09-1900
FREDERICK GROSSMITH,
Plaintiff, Appellant,
v.
RICHARD NOONAN, in his capacity as Sergeant of the Foxborough
Police Department and individually; JOSEPH MCDONALD, in his
capacity as Police Officer of the Foxborough Police Department
and individually,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Theodore H. Goguen, Jr. on brief for appellant.
Leonard Kesten, Thomas Donohue, Deidre Brennan Regan, and
Brody, Hardoon, Perkins & Kesten, LLP on brief for appellees.
June 9, 2010

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LYNCH, Chief Judge. A jury rejected all of Frederick
Grossmith's civil rights claims against two Foxborough Police
officers arising out of his April 2006 arrest for shooting his
neighbor's pet dog, a Siberian husky named Kato. Grossmith's 2007
federal suit against the police officers asserted, under 42 U.S.C.
§ 1983 and Mass. Gen. Laws ch. 12, §§ 11H, 11I, claims of unlawful
seizure and deprivation of liberty in violation of Grossmith's
Fourth and Fourteenth Amendment rights and the corollary
Massachusetts constitutional rights, as well as claims of assault,
battery, false arrest, malicious prosecution, and intentional
infliction of emotional distress. Grossmith now appeals two
evidentiary rulings by the district court, seeking a new trial.
Grossmith's version at trial was that Kato had earlier
harassed livestock on Grossmith's property and was on his property
again on the day of the shooting. When Grossmith approached Kato
to see the dog's tags, Kato bit him and got into a fight with
Grossmith's own dog. In response, Grossmith walked over to his
car, got his rifle, and loaded it. When Kato began walking toward
Grossmith in a threatening way, Grossmith took aim and shot Kato in
the head.
According to evidence the defense presented at trial,
however, Grossmith had given a rather different account to the
police that day. According to the transcript of the 911 call
Grossmith made immediately after the incident, Grossmith only told

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the operator that he shot Kato after the dog bit him; Grossmith
made no mention of the fight between his own dog and Kato and also
did not say that he had shot Kato only after the dog began walking
toward Grossmith.
Further, police officers testified that when they arrived
on the scene following the incident, Grossmith said he was bitten
after he attempted to check the dog's tags, and that he eventually
shook the dog free. When asked by the officers, Grossmith said
Kato had not further threatened him, nor tried to attack Grossmith
after Grossmith was bitten. Grossmith made no mention at the time
of a fight between Kato and Grossmith's own dog. Rather,
Grossmith's account was that Kato was just standing and watching
when Grossmith went for his gun. The officers did not believe they
had any evidence the dog put either livestock or Grossmith and his
dog at immediate threat of danger when Grossmith shot Kato. The
officers also denied Grossmith's claim that he had been mishandled
during his arrest. Grossmith did not complain about any pain and
declined any further treatment other than for the dog bite.
The state charges against Grossmith, for which he was
arrested, were cruelty to animals, unlawful killing of an animal,
and discharge of a firearm near a highway. He was later acquitted
of those charges. This lawsuit against the police officers who
arrested Grossmith followed.

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Grossmith presents two arguments on appeal, asserting
that the court erred in allowing the defendants to introduce two
pieces of evidence--a photograph of Kato and testimony regarding
Kato's character--and that the errors caused so much prejudice to
him that he is entitled to a new trial. There was no error in
either ruling, and we affirm.
Grossmith's attack on evidentiary rulings is an uphill
battle because the appellate standard of review, assuming an
appropriate objection was made at trial, is to ask whether there
was an abuse of discretion by the trial judge. United States v.
Morales-Machuca, 546 F.3d 13, 22 (1st Cir. 2008). Relevant
evidence may be excluded by the district judge if "its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury." Fed.
R. Evid. 403. Trial judges are given deference in ruling on the
admission of evidence. See United States v. Salimonu, 182 F.3d 63,
72 (1st Cir. 1999). It is rare for a party on appeal to upset a
jury verdict on this basis.
Grossmith first complains that a photograph of Kato,
taken within the last year before the shooting, should not have
been admitted into evidence because it was irrelevant, its
probative value was substantially outweighed by its prejudicial
effect, and it distracted the jury from the main issues. While it

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We reject Grossmith's argument that the district court's 1
admission of the photograph following authentication by a witness
somehow vouched for that witness's credibility over Grossmith's.
Grossmith never challenged the authenticity of the photograph and
so the argument is waived.
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is doubtful this objection to the photograph was preserved at
trial, we will assume in Grossmith's favor that it was.
Grossmith's evidence and his testimony at the federal
trial made the photograph relevant. Grossmith asserted that the
defendants did not have probable cause to arrest him because he had
shot Kato to protect himself, his dog, and his livestock. He
testified to the events surrounding the shooting itself and
characterized the dog as "vicious," "bloodthirsty," and looking
like a wolf or a coyote. Grossmith also admitted on cross-
examination that he had previously said Kato was "malnourished,
flea-bitten, unkempt and that his owner should be prosecuted for
animal cruelty." Grossmith further introduced other witnesses who
testified to Kato's appearance, including a neighbor who compared
Kato's appearance to that of a wolf or coyote and described an
incident in which he drove Kato off his property because the
witness was concerned for his children's safety.
The photograph, properly authenticated, was useful to 1
the jury in evaluating the credibility of Grossmith's testimony and
that of others. The district court did not abuse its discretion in
finding that both parties had made Kato's appearance relevant to
the case and admitting the photograph. The image was inconsistent

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with much of Grossmith's description of the dog, but was consistent
with one of the defendant police officer's descriptions. The
photograph thus was useful to the jury in evaluating the
credibility of Grossmith and other witnesses.
The court could readily conclude there was nothing
unfairly prejudicial, Fed. R. Evid. 403, about this evidence.
Moreover, the district judge properly and repeatedly instructed the
jury that sympathy could not be a basis for the verdict and,
further, that the question before them was not whether Grossmith
had committed a crime by shooting Kato, but rather whether a
reasonable officer would have had probable cause to believe that
Grossmith had committed a crime.
Grossmith also complains that the district court erred in
admitting testimony about the dog's characteristic behavior and its
physical appearance. The testimony came from a family member who
had frequent contact with the dog because it lived with the
witness's mother. Since the mother ran a daycare center at the
home, the dog was in constant contact with children playing with
him and was described as "a great dog" and a "nice dog." The
family member also testified that Kato was well-fed and well-
groomed.
Assuming Grossmith's appeal on this issue is not waived,
the district court did not abuse its discretion by admitting this
evidence for the same reasons described above. Grossmith's own

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testimony, as well as the testimony of other witnesses that he
called, made Kato's character and appearance relevant to this case.
The judgment is affirmed. Costs are awarded to the
defendants.

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