This appeal is brought by plaintiff, Candi Ryder, from an adverse jury verdict finding that her constitutional rights were not violated when defendant, Topeka Police Detective Michael Meyer, shot her while she fled from the scene of a felony. Ryder raises three basic issues on appeal: first, whether the district court erred when it denied her motion for judgment notwithstanding the verdict; second, whether the misconduct of defendants' counsel in failing to timely produce a statement of Detective Meyer warrants reversal and remand for a new trial; and third, whether the district court improperly instructed the jury on the standard of probable cause.

For the reasons set forth below, we find that the trial court did not commit reversible error when it denied Ryder's motion for judgment notwithstanding the verdict. We further hold that the district court did not abuse its discretion when it concluded that counsel's failure to produce Detective Meyer's statement did not so prejudice Ryder as to justify a new trial. We do, however, remand this case to the district court to determine whether counsel's failure to produce the statement warrants disciplinary action. Finally, we do not reach the merits of whether the trial court improperly instructed the jury on the definition of probable cause since Ryder failed to preserve that issue by timely objection at trial. Therefore, we affirm the jury verdict in all respects but remand to the district court for a factual finding on whether sanctions or disciplinary action should be instigated against defendants' counsel for failure to comply with discovery rules.

This action arises from the shooting of Ryder while she was fleeing from the commission of a felony. The crux of this case is whether Detective Meyer had probable cause to assume that Ryder had been involved in the commission of a crime involving the infliction or threatened infliction of serious bodily injury, or that she posed a threat of serious physical harm, either to Detective Meyer or others, and that the use of deadly force was necessary to prevent her escape. Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985).

The facts in this case are involved and in dispute. During March of 1979, Candi Ryder, a fourteen year old runaway, and a man named Jim Callender discussed the idea of stealing money from the Pizza Hut restaurant where Callender worked.1 At that time, both Ryder and Callender were living in a half-way house located approximately two blocks from the Pizza Hut. R.Vol. VIII at 1496. Sometime thereafter, Callender told another employee of the Pizza Hut, Frank Bently, that he had been involved in a plan to steal money from the Pizza Hut but now wanted to back out. The two approached the Pizza Hut area supervisor and informed him of Callender's involvement with the plan. R.Vol. VI at 596-97. The area supervisor visited the Topeka Police Department and informed Detectives Meyer and Brooks that there was to be a "robbery" of his Pizza Hut on West Sixth. Id. at 466-68, 605. The detectives requested that he have Callender and Bently come to the station. Id. at 469.

On March 15, 1979, Callender went to the police station and informed Detectives Meyer and Brooks of his discussions with Ryder. Id. at 337-38. The parties dispute what Callender actually told the police about Ryder and the other individuals who were involved in the scheme. Defendants suggest that Callender only informed the detectives that a person "by the name of 'Candi' had approached him to work as the inside man on a robbery." Id. at 471. They suggest that Callender produced neither information regarding Ryder's name, address and age, id. at 476, nor information about any other people who were to be involved in the commission of the crime,2 id. at 142, 338-39, 471-75.

Ryder paints a different picture of events.3 She suggests that Callender informed the detectives of her last name, her address, and the fact that she was a juvenile. Statement of Detective Meyer, Brief of Plaintiff/Appellant at app. A-6 to A-7. Ryder further suggests that Detective Meyer was aware of the names of two males in Ryder's group and that one of these was a juvenile. Id. at A-12.

It is undisputed that Callender informed the detectives that the group would be armed with knives and guns. R.Vol. VI at 338-39, 479; R.Vol. II at 34.

Sometime later Callender told the police that the "robbery" would take place Sunday, March 25, 1979, at 11:30 p.m. R.Vol. VI at 154.4 On that date, several Topeka Police officers, three members of the tactical squad, and Detectives Meyer, Brooks, and Starr met to set up the stake-out. Callender and Bently were present at the Pizza Hut and were to carry out the plan as established between Ryder and Callender. Detectives Brooks, Starr and Meyer positioned themselves in the garage directly south of the Pizza Hut. Id. at 157, 347. Officer Beach was stationed in the restroom of the Pizza Hut. Id. at 155, 350. Officer Sandberg was stationed to the east of the Pizza Hut, Officer Lemon to the north, Officer Weidner was in an unmarked car to the west, Officers Schwerdt and Reed were positioned in unmarked cars to the east and south, and a helicopter unit was made available. Id. at 156-57.

At approximately 10:00 p.m., after the stake-out had been set-up, two girls, Leslie Jester and Ann Martin, stopped by the Pizza Hut and informed Callender that they had decided to "break off" from "Candi's group," and rob the restaurant before her. At 11:00 p.m., the two girls phoned Callender, informing him that they were on their way. Officer Beach radioed the other officers that two girls were on their way and that a second group would come around 11:30 p.m. R.Vol. VII at 768-69. Shortly thereafter, the two girls walked by the garage in the alley where the three detectives were stationed and went into the Pizza Hut through the back door. R. Vol. VI at 496 to 97-a. After they went inside, the three detectives moved up behind some dumpsters. Id. at 497-a.

As the girls exited the Pizza Hut, the detectives observed a knife in the hands of one of the suspects.5 Id. at 359. The three detectives yelled, "Halt, police," and approached the suspects with their guns drawn. While the officers were apprehending the suspects, one of the suspects "took a swipe with a knife." Id. at 359-60; R.Vol. VIII at 1687. Ryder claims that, while being handcuffed, Leslie Jester saw Callender come to the back door of the Pizza Hut and tell the officers to "hurry up and get them out of here. Candi Ryder is on her way." R.Vol. VIII at 1691. The two girls were transported to police headquarters in a marked police vehicle driven by Officer Reed. Id. at 1653-54.6 The stake-out was then set up again. R.Vol. VI at 362-63.

At approximately 11:20 p.m., Callender received another telephone call informing him that a second group was on its way to the Pizza Hut and that its members would be armed. R.Vol. VII at 783-84. Callender relayed this information to Officer Beach who was still stationed inside the Pizza Hut.

At approximately 11:30 p.m., three people walked across the parking lot to the rear door of the Pizza Hut. The detectives could not tell whether or not they were armed. R.Vol. VI at 368; R.Vol. VII at 1388. Two of the individuals went inside the Pizza Hut and the taller of the three remained outside. Because of the lookout, the detectives could not move closer to the Pizza Hut as they had done previously. At one point after the suspects had entered the restaurant, the back door was opened and something was handed out to the lookout. R.Vol. VI at 369, 514-15.

A short time later the two suspects who had been inside the restaurant came out the back door. At that moment, the detectives ran out from behind the garage with their handguns drawn and yelled, "Halt, police." Id. at 370, 518. Two of the suspects commenced running north, immediately pursued by Detectives Brooks and Starr. The third suspect, Ryder, ran east and was pursued by Detective Meyer. Id. at 370-71, 518-19. As he began his pursuit, Detective Meyer was unaware of the suspect's name, sex, or age. Id. at 370-71. After chasing the suspect for a short time, Detective Meyer fired a warning shot. The suspect continued to run. She was over fifty feet from Detective Meyer, and about to run around a building into a darkened residential area, when Detective Meyer fired a second shot. Id. at 236, 373, 375-76. The second shot struck the suspect and she fell to the ground. Detective Meyer approached the fallen suspect,7 noticed that she was a young girl, and called for an ambulance.8

Ryder subsequently filed this action against the City of Topeka, Kansas, and Detective Meyer, claiming her Fourth Amendment right to be free from unlawful search and seizure had been violated by Detective Meyer's use of deadly force.9 The trial began on April 13, 1985, and lasted four weeks. During the trial, Ryder became aware of the existence of a statement previously given by Detective Meyer to police investigator Sergeant Dave McClimans. The statement, which Ryder contends contradicts defendants' version of events, was not discovered by Ryder's counsel until near the end of trial during cross-examination of an expert witness to whom the defendants had given the documents. At the behest of the trial court, the defendants produced the statement on May 6, 1985, some five years after discovery, twenty-two days after trial had commenced, and after Ryder had rested her case. Ryder's counsel introduced the statement into evidence, cross-examined one of the defendants' experts for over one and one-half days and argued the statement's contents to the jury. Ryder's counsel did not, however, recall Detective Meyer to the stand to confront him with his conflicting statements.

The trial was completed on May 9, 1985, and on May 13, 1985, the jury returned a verdict for defendants, finding that Ryder's constitutional rights were not violated when she was shot by Detective Meyer. Thereafter, Ryder filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The district court denied both motions and Ryder timely appealed.

The Fourth Amendment protects citizens from unreasonable search and seizure.10 "While it is not always clear just when minimal police interference becomes a seizure ... there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment."11 Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 1699, 85 L. Ed. 2d 1 (1985) (citations omitted).12 Whether a particular "seizure was reasonable and therefore permitted by the Fourth Amendment requires a careful balancing of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual." Id. at 25-26, 105 S.Ct. at 1708 (O'Connor, J., dissenting) (citing United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983)). "[I]t is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out." Id. at 8, 105 S.Ct. at 1699 (citing United States v. Ortiz, 422 U.S. 891, 895, 95 S. Ct. 2585, 2588, 45 L. Ed. 2d 623 (1975); Terry v. Ohio, 392 U.S. 1, 28-29, 88 S. Ct. 1868, 1883-84, 20 L. Ed. 2d 889 (1968)).

In reviewing Detective Meyer's actions, we start with the premise that the "use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.... Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so."13 Id. at 11, 105 S.Ct. at 1701. "A police officer may not seize an unarmed, nondangerous suspect by shooting him dead." Id.

In limited circumstances, however, the use of deadly force to apprehend a fleeing felon is constitutionally permissible.14 As the Supreme Court in Garner has pronounced:

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

Id.

B. Judgment N.O.V.

Ryder first alleges that the district court committed reversible error when it denied her motion for judgment n.o.v. We note that in reviewing that decision, we employ the same standard of review as does the trial court. Brown v. McGraw-Edison Co., 736 F.2d 609, 613 (10th Cir.1984); Joyce v. Atlantic Richfield Co., 651 F.2d 676, 680 (10th Cir.1981). "Judgment n.o.v. is proper only when the evidence so strongly supports an issue that reasonable minds could not differ." Delano v. Kitch, 663 F.2d 990, 1002 (10th Cir.1981) (citing Symons v. Mueller Co., 493 F.2d 972, 976 (10th Cir.1974); Swearngin v. Sears Roebuck & Co., 376 F.2d 637, 639 (10th Cir.1967)); see also Carter v. City of Chattanooga, 803 F.2d 217 (6th Cir.1986). We must view the evidence in the light most favorable to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence. Brown, 736 F.2d at 613; see also Martin v. Unit Rig & Equip. Co., 715 F.2d 1434, 1438 (10th Cir.1983). A reviewing court "is not permitted to consider the credibility of witnesses in reaching its decision ... nor may a court weigh the evidence or determine where the preponderance of the evidence lies." Martin, 715 F.2d at 1438 (citing Brady v. Southern Ry. Co., 320 U.S. 476, 479-80, 64 S. Ct. 232, 234, 88 L. Ed. 239 (1943); Wylie v. Ford Motor Co., 502 F.2d 1292, 1294 (10th Cir.1974)). Moreover, if there is conflicting or insufficient evidence to warrant a "one-way conclusion," a directed verdict or judgment n.o.v. is inappropriate. Id. Generally, a directed verdict or a motion for a judgment n.o.v. "should be cautiously and sparingly granted." Id. (quoting Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabricating, Inc., 584 F.2d 946, 951 (10th Cir.1978)); see also Selle v. Gibb, 741 F.2d 896 (7th Cir.1984).

We now examine whether, under the above standard, the district court abused its discretion in denying Ryder's motion for judgment n.o.v. To do so, we must examine whether there is evidence in the record to support the jury's conclusion on the three basic elements of Garner: (1) whether Detective Meyer had probable cause to believe that the suspect he was pursuing posed a threat of serious physical harm to himself or others; (2) whether the deadly force employed by Detective Meyer was necessary to prevent the suspect's escape; and (3) whether Detective Meyer gave some warning, if feasible, to the suspect.15 Garner, 471 U.S. at 11, 105 S. Ct. at 1701; see also Pruitt v. City of Montgomery, 771 F.2d 1475, 1482-83 (11th Cir.1985); Acoff v. Abston, 762 F.2d 1543, 1547 (11th Cir.1985).

We first discuss whether Detective Meyer had probable cause to believe that the suspect posed a threat of serious physical harm to himself or others. The Supreme Court has suggested that probable cause of this sort exists where "the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm ...." Garner, 471 U.S. at 11, 105 S. Ct. at 1701. Thus, there are two basic situations that would justify an officer's belief that a fleeing suspect poses a threat of serious physical harm: (1) where the suspect has placed the officer in a dangerous, life threatening situation;16 or (2) where the suspect is fleeing from the commission of an inherently violent crime. This latter situation does not require that the officer's life actually be threatened by the suspect. Rather, the officer is allowed to infer that the suspect is inherently dangerous by the violent nature of the crime.

a. Crime involving the infliction of serious physical harm.

We will first examine defendants' contention that Detective Meyer had probable cause to believe that Ryder was fleeing from the commission of a crime that involved the infliction or threatened infliction of serious bodily harm. Throughout their briefs, defendants attempt to frame the incidents occurring at the Pizza Hut on March 25, 1979, as an armed robbery. They argue that Detective Meyer was "provided information by Rick Gledhill, James Callender, and Frank Bently that an armed robbery of the Pizza Hut on West 6th Street in Topeka was planned." Joint Brief of Defendants/Appellees at 15 (emphasis added). They allege that the "stake-out was planned on the premise that an armed robbery would occur" and that "after the stake-out was in place, the police officers were informed two robberies would occur instead of one." Id. Defendants thus claim that Detective Meyer had probable cause to believe that Ryder was involved in an armed robbery,17 or other violent felony. We disagree.

Contrary to defendants' argument, the evidence strongly points to Detective Meyer's awareness of the non-violent, consensual nature of the crime. At their first meeting, Callender informed Detective Meyer that he had agreed with Ryder to act as an inside man. R.Vol. VI at 471. Callender was to leave the door open for Ryder, hand her the money, and at a later date, meet her to divide the stolen money. Id. at 479, 597; R.Vol. VIII at 1500-03. At no time was Detective Meyer, or any of the other officers, led to believe that force or violence would be used to obtain the money from Callender. At most, Detective Meyer had reasonable grounds to believe that Ryder and other members of her group were participating in a fraudulent theft.18 Theft, however, unlike robbery, is a crime against property. State v. Gomes, 234 Kan. 447, 673 P.2d 1160, 1163 (1983). As such, theft lacks the threat of bodily harm or force that makes robbery such an inherently dangerous and violent crime.19 Under the circumstances, there is simply insufficient evidence to support a jury finding that such a consensual, non-violent crime involved "the infliction or threatened infliction of serious physical harm." Garner, 471 U.S. at 11, 105 S. Ct. at 1701.

Moreover, we are unpersuaded by the argument that simply because Detective Meyer had probable cause to assume that the suspects might be armed, he could reasonably infer that the crime involved the infliction or threatened infliction of serious bodily injury. Certainly, a police officer's knowledge that a suspect is in possession of a dangerous weapon is a relevant and persuasive factor in determining whether the crime involved force or violence. In this case, however, we feel that Detective Meyer's knowledge that the suspects might be armed was insufficient, by itself, to overcome the overwhelming evidence that the crime was intended to be, and was, a non-violent one. Detective Meyer, and the other officers, were presented with no demonstrable evidence that would justify the belief that Ryder, or other members of her group, used, or would have used, force to facilitate the commission of the crime.

b. Evidence to support the jury's verdict that Detective Meyer had probable cause to believe that the suspect he was pursuing posed a threat of serious physical harm.

Our inquiry does not, however, end with the question of whether the crime at issue was violent or non-violent. Although a crime may not be so inherently dangerous as to automatically justify an officer's use of deadly force in apprehending a fleeing suspect, there may nonetheless be other facts that would provide the officer with probable cause to believe that a fleeing suspect presents a danger to himself or the community. This brings us to our second inquiry: whether, based on the totality of the circumstances, Detective Meyer was reasonably justified in believing that the suspect he was chasing down the alley posed a threat of serious physical harm to himself or others.

After carefully reviewing the record, we cannot say with certainty that the jury was not justified in finding that Detective Meyer had probable cause to believe that Ryder posed a threat of physical violence to himself or others. We note that the evidence is conflicting, and that the credibility of nearly every witness has been placed in issue. However, "[j]ury findings on sharply conflicting evidence are conclusively binding on appeal inasmuch as jurors are charged with the exclusive duty of assessing the credibility of witnesses and determining the weight to be given to their testimony." White v. Conoco, Inc., 710 F.2d 1442, 1443 (10th Cir.1983) (citing Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144 (10th Cir.), cert. denied, 439 U.S. 862, 99 S. Ct. 183, 58 L. Ed. 2d 171 (1978)).

The overwhelming evidence presented at trial was that the suspects would be armed. Detective Meyer and Detective Brooks both testified that at their first meeting with Callender, he informed them that the group would be armed with guns and knives. R.Vol. VI at 338, 479.20 Callender also received a phone call just minutes before the second group of suspects arrived at the Pizza Hut, informing him that they would be armed. Callender relayed this information to Officer Beach who was stationed in the Pizza Hut restroom.21 R.Vol. VII at 783-84. There was even evidence that one of the girls in the first group, Leslie Jester, and one of the men in Ryder's group, Scott Wertzberger, thought that a gun and knife might be involved in the commission of the crime. R.Vol. VIII 1672-74, 1720-21. Moreover, it is undisputed that when the detectives were apprehending Leslie Jester and Ann Martin after they fled the Pizza Hut, one of them "took a swipe with the knife". R.Vol. VI at 359-60; R.Vol. VIII at 1687.22

From this information, a jury could infer that Detective Meyer had probable cause to believe that the suspect he was chasing down the darkened alley was both armed and prone to violence. Moreover, at the time he fired the second shot, the suspect's hands were in her pockets, R.Vol. VI at 399-400, and she was about to run around a building into a darkened residential area. Id. at 375-76. At that moment, the jury reasonably could infer that an ambush situation was created in which Detective Meyer's life was in danger. Detective Meyer testified to this effect at trial. He testified that he believed the suspect posed a threat of physical harm to himself, and that if he continued to pursue the suspect around the side of the building, his life would be in danger. Id. at 376, 379. Two expert witnesses, Donald O. Shultz and Dr. Erik Beckman, also testified that, at the time of the shooting, Detective Meyer had probable cause to believe that the suspect he was chasing posed a threat of serious injury if he continued his pursuit. We therefore conclude that there was sufficient evidence from which the jury could infer that the suspect Detective Meyer was pursuing down the darkened alley posed a threat of physical violence to himself, or a threat to others. Garner, 471 U.S. at 11, 105 S. Ct. at 1701. Accordingly, we cannot conclude that the district court abused its discretion when it denied Ryder's motion for judgment n.o.v.

Ryder contends, however, that Detective Meyer knew Ryder was a fourteen year old girl and therefore should have known that she presented him no danger. We are unpersuaded by this argument. Even assuming that Detective Meyer knew Ryder was a juvenile, there is no causal link suggesting that he should have known that the suspect he was pursuing down the alley was, in fact, Ryder. To the contrary, the evidence suggests that Detective Meyer was unaware of the name, age or sex of the suspect he was pursuing. R.Vol. VI at 371, 378; Statement of Detective Meyer, Brief of Plaintiff/Appellant at app. A-14. Indeed, there is evidence suggesting that Detective Meyer believed that Ryder was one of the girls already taken into custody. Statement of Detective Meyer, Brief of Plaintiff/Appellant at app. A-14.

Finally, we note that Garner23 is distinguishable from the present situation.24 Similarly, both cases involved minors fleeing from non-inherently dangerous felonies. In Garner, however, the defendant police officer clearly saw that the suspect had no gun and he was "reasonably sure" and "figured" that the suspect was unarmed. Garner, 471 U.S. at 3, 105 S.Ct. at 1697. Nor was the officer presented with any evidence suggesting the suspect was violent. In the present situation, however, there was evidence to justify Detective Meyer's belief that the suspect he was pursuing down the darkened alley was indeed armed and dangerous, and that at the time of the shooting, he was in immediate fear of bodily injury.

2. Necessity of Deadly Force to Prevent Escape

We now turn to the question of whether there was evidence to support the jury's finding that, absent the use of deadly force, the suspect would have escaped. Once again, the evidence is conflicting. Ryder claims that there were several alternative methods of apprehending her other than by the use of deadly force. Ryder suggests that Detective Meyer could have continued to try and catch her on foot or enlisted the assistance of other officers in the area.

Detective Meyer, however, testified that it was unreasonable to continue to pursue the suspect around the side of the building into a darkened area because he believed the suspect was armed and his life would be in danger. R.Vol. VI at 379, 412-13. He testified that once he lost sight of the suspect, who was heading into a darkened residential area, escape was likely. Id. at 375-76. Detective Meyer also testified that it was not reasonable to rely on other officers who were stationed in the vicinity, but approximately two blocks away, to capture the suspect since he did not know which way the suspect would run after rounding the building. Id. at 379-80.

Moreover, defendants' two expert witnesses supported the reasonableness of Detective Meyer's assumptions. Donald Schultz testified:

Q. Was it reasonable in this instance, Mr. Schultz, to allow the suspect to escape with the thought that other officers in the area in vehicles might capture that person?

A. It is not reasonable in that vehicles are there to catch vehicles. An officer pulling up to an individual running that would have to stop his vehicle, get out, usually make radio contact. By the time all this is done, their chance of catching the subject on foot is pretty minute.

R.Vol. VIII at 1791. Mr. Schultz also testified that there was no way for Detective Meyer to be aware of the location of the other officers or to know whether they would be available to assist in apprehending the suspect. Id. at 2081-82. Dr. Beckman testified as follows:

Q. In your opinion, Doctor Beckman, did Detective Meyer have any reasonable--any other reasonable alternatives at the time he fired the shot that struck Candi Ryder other than firing that shot?

A. I didn't see any other reasonable alternative at that moment when Candi Ryder was going around the building and out of his view. If Detective Meyer was going to perform his one duty as a police officer, I personally don't know what else he could have done other than fire that shot, taking into consideration his obligation to the community and public safety and sworn duty.

R.Vol. IX at 29.

Based on a careful review of the evidence presented at trial, we conclude that there was sufficient evidence to support the jury's verdict that the use of deadly force was necessary to prevent Ryder's escape.

Finally, we are unpersuaded by Ryder's assertion that Detective Meyer was aware of her last name and address and therefore did not need to employ deadly force to arrest her. As we have already stated there is no evidence suggesting that at the time he began his pursuit, Detective Meyer knew, or should have known, that the suspect he was chasing was, in fact, Ryder. Therefore, the jury could have found Detective Meyer's knowledge of Ryder's address irrelevant to the question of the necessity of deadly force.

Ryder next alleges that the trial court erred in denying her a new trial based on the misconduct of defendants' counsel.25 "The decison whether to grant a new trial is committed to the informed discretion of the district court." Mid-West Underground Storage, Inc. v. Porter, 717 F.2d 493, 502 (10th Cir.1983); see also Brownlow v. Aman, 740 F.2d 1476 (10th Cir.1984); Trotter v. Todd, 719 F.2d 346 (10th Cir.1983); Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152 (10th Cir.1981), cert. denied, 464 U.S. 824, 104 S. Ct. 92, 78 L. Ed. 2d 99 (1983); Howard D. Jury, Inc. v. R & G Sloane Mfg. Co., 666 F.2d 1348 (10th Cir.1981); Bickford v. John E. Mitchell Co., 595 F.2d 540 (10th Cir.1979). A trial court's decision to deny a motion for a new trial will be reversed only on a showing of "clear abuse of discretion." United States v. Latimer, 780 F.2d 868 (10th Cir.1985); United States v. Ramsey, 726 F.2d 601 (10th Cir.1984), cert. denied, --- U.S. ----, 106 S. Ct. 851, 88 L. Ed. 2d 892 (1986); Rodgers v. Hyatt, 697 F.2d 899, 901 (10th Cir.1983); Thompson v. Kerr-McGee Refining Corp., 660 F.2d 1380 (10th Cir.1981), cert. denied, 455 U.S. 1019, 102 S. Ct. 1716, 72 L. Ed. 2d 137 (1982); see generally 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2803 (1973).

Ryder's underlying contention is that the trial was unfair because an unsworn statement made by Detective Meyer to a police investigator was not produced prior to trial. The statement was given by Detective Meyer to police investigator Sergeant Dave McClimans on May 5, 1981. The statement, which Ryder contends contradicts defendants' version of events, was not discovered by Ryder's counsel until near the end of trial during cross-examination of an expert witness who had been given the documents by the defendants in order to prepare his testimony.

As Ryder's counsel correctly notes, "[t]he misconduct of counsel or a party justifies a new trial where that misconduct prejudiced the adverse party." Wiedemann v. Galiano, 722 F.2d 335, 337 (7th Cir.1983); Rodgers v. Hyatt, 697 F.2d 899, 902 (10th Cir.1983); Maricopa County v. Maberry, 555 F.2d 207, 219 (9th Cir.1977); see generally 6A J. Moore, Moore's Federal Practice p 59.08 (2nd ed. 1986). A showing of prejudice, however, is essential. Wiedemann, 722 F.2d at 337; Rodgers, 697 F.2d at 902; Maricopa County, 555 F.2d at 219. A new trial is not to be granted simply as a punitive measure to punish the misconduct of counsel. See Maricopa County, 555 F.2d at 219.

We now examine the record to determine whether the district court abused its discretion when it found that Ryder was not sufficiently prejudiced to warrant the granting of a new trial. We agree with Ryder's contention that the statements made by Detective Meyer on May 5, 1981, were both material and damaging.26 If not suggesting that Detective Meyer perjured himself at trial,27 the statement was sufficiently inconsistent with Detective Meyer's trial testimony to place the issue of his credibility before the jury. Throughout discovery and trial, Detective Meyer steadfastly maintained that prior to March 25, 1979, he was never made aware of Ryder's last name, her age, or her address. In his statement on May 5, 1981, however, he explicitly stated that he knew Ryder's last name,28 and that she and most of the other suspects were juveniles.29 He also informed Sargeant McClimans that he was approximately aware of Ryder's address.30 Finally, Detective Meyer stated that at the time of the shooting he was not in immediate fear of his own life or that of other bystanders.31

Although we are in total agreement with Ryder regarding the materiality of Detective Meyer's statement, we note that Ryder was not denied the use of the statement during trial. Nor can we determine that Ryder was prejudiced by its late production. To the contrary, we concur with the district court's conclusion that "plaintiff's counsel had sufficient opportunity to employ the statements in question to plaintiff's full advantage." R.Vol. I at 266, p. 3.

After the statement was finally produced on May 6, 1985, Ryder's counsel used the statement during cross-examination of the defendants' expert witness, Dr. Beckman, for a period of over one and one-half days. Ryder's counsel also utilized the statement extensively during closing argument, pointing out the conflicts between Detective Meyer's statement and his testimony at trial, and suggesting that Detective Meyer had perjured himself. The statement was also admitted as evidence for the jury's consideration. The jury therefore had a full opportunity to review what Detective Meyer said in his statement of May 5, 1981, and to compare that statement with his trial testimony. Moreover, the trial court specifically instructed the jury that it could disregard the whole or any part of a witness's testimony if it believed the witness willfully gave false testimony. Accordingly, we must concur in the conclusion of the district court that "[f]rom the jury's verdict it is apparent that the jury either chose to believe defendant Meyer's testimony or determined that the discrepancies between Meyer's testimony and the statement in question were not material or dispositive to the issues affecting their verdict." R.Vol I at 266, p. 4.

Ryder's counsel suggests that by not having the statements in his possession prior to trial, he was prevented from adequately cross-examining witnesses, denied adequate time to prepare Ryder's case for presentation to the jury, and was prohibited from impeaching the credibility of Detective Meyer. Brief of Plaintiff/Appellant at 24-25. We note, however, that Ryder's counsel could have recalled Detective Meyer to the stand to confront him with his statement. He could also have recalled any other witness who had testified at trial. Instead, counsel chose not to do so. We find it persuasive that counsel admitted at oral argument that his decision not to recall Detective Meyer or any other witnesses was tactical, and not based on any unfair surprise caused by the late discovery of the statement. A "court should not grant a new trial merely because the losing party can probably present a better case on another trial." 6A J. Moore, Moore's Federal Practice p 59.08, pp. 59-96 (2nd ed. 1986). As we have already stated, actual prejudice is a prerequisite for granting a new trial based on the misconduct of counsel. Wiedemann v. Galiano, 722 F.2d at 337; Rodgers v. Hyatt, 697 F.2d at 902; Maricopa County v. Maberry, 555 F.2d at 219. Ryder has not made such a showing. Therefore, we can not say that the trial court abused its discretion in denying Ryder's motion for a new trial.

Ryder cites Greyhound Lines Inc. v. Miller, 402 F.2d 134 (8th Cir.1968), in support of the contention that the district court erred in denying Ryder's motion for a new trial. Though similar in several respects, Greyhound is distinguishable on the issue of prejudice.32 Unlike the present case, in Greyhound the documents were never produced until the trial was completed. Accordingly, in that case, the withheld documents were never argued at trial nor submitted into evidence for the jury's consideration. There is simply no such showing of prejudice here.

Although we cannot find that defendants' counsel's conduct so prejudiced Ryder as to warrant a new trial, we are deeply concerned with the ethical implications of their failure to produce Detective Meyer's statement. "Courts need not tolerate flagrant abuses of the discovery process." Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir.1980). The obligation of the judiciary to discipline lawyers for misconduct or to report the misconduct to the appropriate agency is codified in the ABA Code of Judicial Conduct (1984). Canon 3(B)(3) of the Code of Judicial Conduct provides that "[a] judge should take or initiate appropriate disciplinary measures against ... a lawyer for unprofessional conduct of which the judge may become aware." See generally "The Judicial Response to Lawyer Misconduct," ABA Comm. on Professional Discipline, IV.4 (May 1984). In the present case, we feel that counsel's conduct may warrant such a response. However, consideration of possible disciplinary action or sanctions against counsel should be made in the first instance by the district court, and the case is remanded for that purpose.

Finally, Ryder suggests that "reversible error can be found in the district court's definition of the term probable cause." Brief of Plaintiff/Appellant at 27. Instruction No. 7 defined probable cause as follows: "Probable cause is reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious or prudent person to act upon such suspicion." Ryder suggests that the trial court erred in using the word "suspicion" instead of "belief" and the "error mislead [sic] the jurors into believing that to establish a constitutional violation, plaintiff had to prove that Defendant Meyer shot Candi Ryder without even a suspicion that she posed a threat either to defendant or others in the vicinity." Id.

At trial, however, Ryder's counsel made no objection to instruction No. 7. To the contrary, counsel specifically stated that he had no objection with the instruction as written.33 R.Vol. XI at 176. Fed.R.Civ.P. 51 specifically requires a party to object to an instruction before its submission to a jury.34 A court of appeals will not review the propriety of a jury instruction unless counsel has timely objected to the instruction at trial. Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509 (10th Cir.1984), cert. denied, 472 U.S. 585, 105 S. Ct. 2847, 86 L. Ed. 2d 467 (1985); Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917 (10th Cir.), cert. denied, 469 U.S. 853, 105 S. Ct. 176, 83 L. Ed. 2d 110 (1984); Hidalgo Properties, Inc. v. Wachovia Mortgage Co., 617 F.2d 196 (10th Cir.1980). Only in the event of plain error could objections to instructions warrant reversal where such objections were raised for the first time on appeal. EEOC v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166, 1174 n. 5 (10th Cir.), cert. denied, --- U.S. ----, 106 S. Ct. 312, 88 L. Ed. 2d 289 (1985); Aspen Highlands, 738 F.2d at 1516; Moe, 727 F.2d at 924; Joyce v. Atlantic Richfield Co., 651 F.2d 676, 685 (10th Cir.1981); Fiedler v. McKea Corp., 605 F.2d 542, 548 (10th Cir.1979); see generally 9 C. Wright & A. Miller, Federal Practice and Procedure Secs. 2553, 2558 (1971). No such error appears on this record.

We hold that the district court did not commit reversible error when it denied Ryder's motion for judgment notwithstanding the verdict, or in the alternative, a new trial. We therefore affirm the jury verdict in all respects. However, we remand this case to the district court for a determination of whether sanctions should be imposed or disciplinary action commenced against defendants' counsel for failure to comply with federal discovery rules.