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https://www.courtlistener.com/api/rest/v3/opinions/1816173/
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987 So. 2d 90 (2008)
FAISON
v.
STATE.
No. 5D08-1516.
District Court of Appeal of Florida, Fifth District.
July 22, 2008.
Decision without published opinion. Affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1824849/
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266 Minn. 426 (1963)
123 N.W. (2d) 793
INDEPENDENT SCHOOL DISTRICT NO. 877
v.
LOBERG PLUMBING & HEATING COMPANY.
No. 38,735.
Supreme Court of Minnesota.
October 11, 1963.
Robins, Davis & Lyons, S. Robins, Harding A. Orren, and Lawrence Zelle, for appellant.
*427 Meagher, Geer, Markham & Anderson, M.J. Coyne, and O.C. Adamson II, for respondent Loberg.
Arthur H. Lindeman, for respondent Kerntile.
ROGOSHESKE, JUSTICE.
Plaintiff, upon dismissal of its action as to certain defendants, appeals from an order denying its motion for a new trial.
The problem presented concerns the interpretation of a building construction contract to ascertain the intention of the parties with respect to the contractor's liability for alleged negligence in causing a fire which extensively damaged a school building after the construction was substantially completed and the building was accepted and in use by plaintiff.
In the spring of 1956, plaintiff entered into a contract with Patch and Erickson, architects, relating to the construction of a new elementary school in the city of Buffalo, Minnesota. Under this contract, plans and specifications were drafted by Robert D. Hanson, an employee of Patch and Erickson. After approval of such plans by the school board of plaintiff, bids were solicited and accepted. Thereafter, in November 1956, pursuant to the contract with the architects, construction contracts incorporating the plans and specifications were similarly drafted and executed by the plaintiff and the successful bidders. Defendant Loberg Plumbing & Heating Company (hereinafter Loberg) contracted for the plumbing and heating work. Defendants Edward S. Kern and Frank Persons, doing business as The Kerntile Company, furnished the acoustical tile used in the construction as a subcontractor.
In September 1957, the building was occupied for school purposes although construction was not completed. On November 13, 1957, plaintiff, by its school board, inspected the new building and accepted it as completed, subject to "punch lists" of certain items which inspection revealed were to be corrected by various contractors, including Loberg, before final payment. On December 27, 1958, Loberg's "punch list" items were certified as completed, and final payment was authorized and made to Loberg shortly after January 20, *428 1958. Sometime after payment, on January 30, 1958, a leak developed in the plumbing. Plaintiff called upon Loberg to make repairs in accordance with § 2.30 of the construction contract under which the contractors guaranteed all workmanship and material for a period of one year after acceptance of the work. (The guarantee required the contractors, upon notice, to immediately proceed to repair any defects or replace any faulty material during the guarantee period.) Sometime after completion of the repairs, a fire occurred which damaged the building to the extent of $173,366.92.
At the time of the fire, plaintiff was insured against loss by fire and other named perils under several policies of insurance in which it alone was named as insured. After the insurers had made full payment for all damages claimed, plaintiff commenced this action against Loberg, one of it employees, several other contractors, and the architect, alleging that the fire was caused by negligence in repairing the defect in the plumbing and in specifying and installing nonfireproof acoustical tile. Defendants denied liability and interposed various defenses, including the defense that the terms of the construction contract exonerated them from liability to plaintiff for damage or destruction of the property by fire, however caused. The two defendants involved in this appeal also counterclaimed for damages claimed to result from plaintiff's breach of the construction contract by failing to maintain fire insurance in which they were named as joint insureds with the plaintiff.[1] As the matter comes before us, we are concerned solely with reviewing the trial court's decision that the contract exonerated the defendants from liability for negligently causing the fire. The court, with the parties' acquiescence, declined at this time to rule on the merits of defendants' counterclaim.
From the evidence submitted at trial, the court determined that Loberg's repair of the leaking pipe, although after completion, acceptance, *429 and payment, was in the performance of a contractual obligation; that the parties to the contract intended to impose upon plaintiff the obligation to maintain fire insurance, with the contractors named as joint insureds; and that they also intended to exonerate the contracting parties from any liability for damages by fire resulting from any party's negligence. The court thus concluded to dismiss plaintiff's action on the merits without prejudice to defendants' counterclaims.[2] The pertinent provisions of the contract are as follows:
"2.8 OWNER
"The term `Owner' as used in this specification refers to Independent School District No. 23, Buffalo, Minnesota.
* * * * *
"2.21 TERMS OF PAYMENT
"On or after the first day of each month during the progress of the work, each Prime Contractor shall submit to the Architect an Application for Payment (AIA Form 702) and a Certificate for Payment (AIA Form 703). Both forms are available from the Architect and will be submitted in quadruplicate. The Application for Payment will be based on the Contractor's Cost Breakdown and will include all labor accomplished and materials incorporated in the work or delivered to the site since the previous Application for Payment was made.
"Upon approval by the Architect, the Application and Certificate for Payment will be forwarded to the Owner, who will pay 90% of the amount of the Application and will retain 10%. The 10% retained will be paid within 30 days after the substantial completion of the work, provided the work be then completed and accepted by Owner and the contract fully performed.
* * * * *
*430 "2.30 ONE YEAR GUARANTEE
"For a period of one year after acceptance of the work, each Prime Contractor shall guarantee all workmanship and materials included in his contract and if, during guarantee period, any defects or faulty materials are found, he shall immediately upon notification from Architect, proceed to replace and repair same without cost to Owner, together with any damage to finish, fixtures, equipment or furnishings that may be damaged due to defective work or materials. Considerations will be allowed for natural use of building during this time.
"2.31 CONTRACTORS LIABILITY INSURANCE
"Each Prime Contractor shall maintain such insurance as will protect him from claims under the Workmen's Compensation Acts and from claims for damages because of bodily injury, including death, which may arise both out of and during operations under this contract, whether such operations be by himself or by any subcontractor or anyone directly or indirectly employed by either of them. This insurance shall be written for not less than the limits of liability as specified as follows:
"1. Contractors Public Liability Insurance $100-300 thousand.
"2. Contractors Contingent Liability Insurance $100-300 thousand.
"3. Property Damage Insurance $50-100 thousand.
"4. Automotive Insurance.
"A. Public Liability $100-300 thousand.
"B. Property Damage $50-50 thousand.
"This insurance need not cover any liability imposed by Article 31 of Section 1. Certificates of such insurance shall be filed with Owner and Architect. The contractor also shall maintain insurance required under any other Employee Benefits Acts in force at the place of building. Property Damage, Liability, including claims due to automobiles, shall be issued with Bodily Injury Claims under General Liability policy.
"All Liability insurance required herein shall be under Comprehensive General and Automobile Bodily Injury, and Property Damage form policy. Certificates of such aforementioned insurance shall be filed with the Owner and the Architect.
*431 "2.32 OWNERS LIABILITY INSURANCE
"The Owner shall be responsible for and at his option may maintain such insurance as will protect him from his contingent liability to others for damages because of bodily injury, including death, which may arise from operations under this contract, and any other liability for damages which the Contractor is required to insure under any provision of this contract.
"2.33 BUILDERS RISK INSURANCE (FIRE INSURANCE)
"The Owner shall effect and maintain fire insurance, including as minimum coverage fire, extended coverage, and vandalism and malicious mischief insurance on a completed value form, upon the entire structure on which the work of this contract is to be done to one hundred percent of the insurable value thereof, including items of labor and materials connected therewith whether in or adjacent to the structure insured, materials in place, or to be used as part of the permanent construction including surplus materials, shanties, protective fences, bridges or temporary structures, miscellaneous materials and supplies incident to the work, and such scaffoldings, stagings, towers, forms and equipment as are not owned or rented by the contractor, the cost of which is included in the cost of the work. Exclusions: This insurance does not cover any tools owned by mechanics, any tools, equipment, scaffolding, staging, towers, and forms owned or rented by contractors, the capital value of which is not included in cost of work, or any cook shanties, bunk houses or other structures erected for housing the workman. The loss, if any, is to be made adjustable with and payable to the Owner as Trustee for the insureds as their interests may appear, except in such cases as may require payment of all or a portion of said insurance to be made to a mortgagee as his interests may appear.
"All contractors, subcontractors, architects and engineers shall be named or designated in such capacity as insured jointly with the Owner in all policies, all of which shall be open to the Contractor's inspection. The Owner shall accomplish this by having an appropriate rider added to all policies as follows:
"The (Name of Insurance Company) does insure (Names of Owner, *432 Contractor, Architect, Engineers) and all other contractors and subcontractors with them at the described premises. Certificates of such insurance shall be filed with the contractor, architect and engineer and if any of them so requires, certified copies of all policies shall be filed with them. If the Owner fails to effect or maintain insurance as above and so notifies the Contractor, the Contractor may insure his own interest and that of the subcontractors and charge the cost thereof to the Owner. If the Contractor is damaged by failure of the Owner to maintain such insurance or to so notify the Contractor, he may recover as stipulated in the contract for recovery of damages. If extended coverage or other special insurance not herein provided for is required by the Contractor, the Owner shall effect such insurance at the Contractor's expense by appropriate riders to his fire insurance policy.
"If required in writing by any party in interest, the Owner as Trustee shall, upon the occurrence of loss, give bond for the proper performance of his duties. He shall deposit any money received from insurance in an account separate from all his other funds and he shall distribute it in accordance with such agreement as the parties in interest may reach, or under an award of arbitrators appointed, one by the Owner, another by joint action of the other parties in interest, all other procedure being as provided elsewhere in the contracts for arbitration. If after loss, no special agreement is made, replacement of injured work shall be ordered and executed as provided for changes in the work.
"The Trustee shall have power to adjust and settle any loss with the insurers unless one of the Contractors interested shall object in writing within three working days of the occurrence of loss, and thereupon arbitrators shall be chosen as above. The Trustee shall in that case, make settlement with the insurers in accordance of the directions of such arbitrators, who shall also, if distribution by arbitration is required, direct such distribution.
"Subrogation Clause: It is hereby stipulated that this insurance shall not be invalidated should the insured waive in writing prior to a loss, *433 any or all rights of recovery against any party for loss occurring to the property described herein.
"2.34 DAMAGES
"If either party to this contract should suffer damage in any manner other than fire or extended coverage perils, or Vandalism or Malicious Mischief because of any wrongful act or neglect of the other party, or of anyone employed by him, then he shall be reimbursed by the other party for such damage, provided, the Owner shall be responsible for and at his option insure against loss of use of any of his existing property, due to Fire or otherwise, however caused.
"Claims under this clause shall be made in writing to the party liable within a reasonable time of the first observance of such damage and not later than the time of final payment, except as expressly stipulated otherwise in the case of faulty work or materials, and shall be adjusted by agreement or arbitration.
"The Contractor is relieved of responsibility for damages to the work due to causes beyond the control of and without fault or negligence of the Contractor."
Plaintiff contends in its initial brief that defendant failed to sustain the burden of proof to establish that § 2.34 or § 2.33, or any provision of the contract viewed in its entirety, disclosed a clear and unambiguous intention to exonerate the contractors from liability for negligence in causing the fire; that § 2.34 deals only with the procedure for the assertion of damage claims and that it omitted claims for loss resulting from fire, however caused, because § 2.33, requiring the maintenance of "builders risk insurance," provides for the procedure to adjust such a loss; that the insurance required by § 2.33 is a particular type of insurance which can be maintained only during the course of construction; and that the fire occurred after the building was completed and accepted, at a time when plaintiff's obligation to maintain insurance to protect against the risk of fire had lapsed and when the pertinent provisions concerning exoneration, however interpreted, were no longer in effect.
Loberg contends that §§ 2.34 and 2.33 separately, and in the context of the entire contract, clearly express an intention that each party *434 release the other from liability for damages from fire, however caused, and an agreement that plaintiff would maintain fire insurance for the benefit of the contractors, and that these contractual rights and duties were in effect at the time of the fire. Loberg argues also that the findings of the court with respect to the intention of the parties were justified whether the court proceeded on the theory that the contract was unambiguous, and therefore its construction is a matter of law, or that it was ambiguous and required a construction based also on extrinsic evidence.
1. It is well established that the parties could, by contract, without violation of public policy, protect themselves against liability resulting from their own negligence.[3] Such a contractual provision is held not to contravene public policy where the negligence claimed, as here, is only an "undesired possibility" in the performance of the contract and is not induced by the contract.[4] Plaintiff argues that an exculpating provision must clearly express the intention of the parties and that the language used is subject to strict construction, requiring any doubts to be resolved against effecting exoneration from liability for negligence. We are referred to no decisions of this court supporting such a rule. On the contrary, where such a contractual provision is within the range of permissible agreement and the parties' intention to exonerate reasonably appears, public policy dictates that they be bound by the agreement made. As was said in N.P. Ry. Co. v. Thornton Bros. Co. 206 Minn. 193, 196, 288 N.W. 226, 227:
"If a contract transgresses the law or contravenes public policy, it is void. If it does neither, the parties are within their rights and the contract should not have an arbitrary, that is, an unduly liberal or harshly strict, construction, but a fair construction that will accomplish its stated purpose. That is the rule we apply to statutes * * * and we see no reason why it should not apply also in the field of contract *435 law. Our duty is the same in both domains to effectuate the declared purpose of the statute, if within constitutional power, and of the contract, if within the scope of lawful contractual objectives."
2. No reasons appear justifying any departure from the rule of fair construction in this case. Applying this rule, we shall be obliged to affirm the decision of the trial court unless its interpretation of the pertinent provisions of the contract is unreasonable and contrary to the manifest intention of the parties, as disclosed by the language used and the inferences to be drawn therefrom, and is, therefore, without reasonable support in the written or extrinsic evidence.[5]
We have no difficulty in agreeing with the trial court that the parties clearly intended that, during the period of construction, each party was to be exonerated from liability for fire damage caused by any party's negligence. Contrary to plaintiff's contention, § 2.34 appears susceptible of no other construction if we are to give effect to the language recognizing the parties' common-law liability for damages suffered in any manner because of any wrongful act or neglect in all instances "other than fire or extended coverage perils, or Vandalism or Malicious Mischief." Furthermore, the last part of the first paragraph of this provision, emphasizing that the owner will be responsible for loss of use due to fire, which he may insure against, can have meaning only because of the preceding language exempting liability for damages suffered from fire. The last paragraph of § 2.34 is also significant and consonant with an intention to exclude liability for fire damage caused by negligence. As plaintiff urges, it was evidently inserted to abrogate the common-law rule that a builder is not relieved of his contractual obligation to build where the building is destroyed or damaged by fire before completion, whether or not the fire was occasioned *436 by the negligence of the builder. This provision limits the contractor's obligation to rebuild to instances where the loss is due to his fault or negligence. Obviously, the exception concerning fire damage in the first paragraph of § 2.34 must include fire caused by negligence or the language of the last paragraph would be meaningless and a nullity. Such a conclusion squares with the cardinal rule of construction that any interpretation which would render a provision meaningless should be avoided on the assumption that the parties intended the language used by them to have some effect.[6]
Of greatest significance in revealing this intention of the parties are the stipulations in § 2.33 pertaining to the plaintiff's obligation to effect and maintain fire insurance upon the building on which the work called for by the contract was to be done. In searching for contractual intention, we must, of course, read the contract in its entirety, considering it in the light of the subject matter, the object and purposes of the parties, and the natural meaning of the language used, to the end that the various provisions may be "made to harmonize and unite in a consistent agreement in consonance with the intention of the parties."[7] Section 2.33 unmistakably discloses an intention of the parties to place the risk of loss by fire upon insurance companies. That it was intended that such insurance was to be for the mutual benefit of the owner and the contractors could hardly be more clearly revealed than by the stipulations requiring that the contractors be designated as insureds in all policies procured and subjecting such policies to their inspection, requiring minimum coverage, designating specific properties to be included, calling for the filing of certificates of insurance with the contractors, and providing for payment of any loss to the owner as trustee. Moreover, these provisions when read in conjunction with the other provisions requiring insurance of various types, disclose a studied plan for using insurance to protect against the risks inherent in the performance of the contractual obligations *437 of the parties. Such provisions are surely not unusual in a business sense, for exposures to the risks enumerated in this contract are important factors in determining anticipated costs of construction and are reflected in the bids submitted.[8] There are cases involving leases where the lessee was exonerated from liability for his negligence and where similar contractual provisions, although set out in broader terms and with less particularity, were construed to provide insurance protection for the benefit of the parties and held exculpatory in effect. These provisions are regarded as agreements such as would normally be expected of intelligent men of affairs.[9] Viewed in this perspective, we hold it would be unreasonable to conclude otherwise than that the language of § 2.34, when viewed with § 2.33 and the entire contract, was designed to express the intent that the responsibility of loss by fire, however caused, was placed upon insurance companies, and that the contractors were relieved from any liability for damages thus resulting.
It should be noted that during the period of construction the effect of these provisions is not only to afford to the contractor protection against loss of a property interest in the materials and labor furnished, but also to use fire insurance as a means of affording protection against the contractor's own negligence. The latter effect does mean that a fire insurance policy is used to cover risks more appropriately covered, under insurance concepts, by casualty insurance. However, this circumstance certainly should not be used to thwart the intention of the contracting parties. That such effect was within the contemplation of the parties seems apparent from the last paragraph of § 2.33 wherein the parties express the caveat, presumably to advise *438 the underwriters through plaintiff, that the insurance to be procured "shall not be invalidated should the insured waive in writing prior to a loss, any or all rights of recovery against any party for loss occurring to the property described herein."
Plaintiff relied most heavily, both at trial and in its brief, upon the argument that, regardless of the interpretation of the pertinent provisions, no protection against liability for damages resulting from fire was intended to be given the contractors after acceptance and final payment. We regard this as the most difficult aspect of the case. The exoneration created by § 2.34, viewed in conjunction with § 2.33, is not expressly stated to continue during the 1-year guarantee period provided by § 2.30. Nor is it expressly limited to the period of construction. The parties' intention in this respect must be ascertained by reasonable implication from the language used and by resort to extrinsic evidence, which may not be used to vary or contradict the natural meaning of the language of any provision of the contract.
The trial court found that both the obligation to maintain fire insurance and the contractor's freedom from liability continued until all contractual obligations, including those imposed by § 2.30, were completed. We believe there is reasonable support for finding that the parties so intended. It is undisputed that plaintiff, in recognition of its obligation, did procure and maintain fire insurance policies from November 20, 1956, until November 20, 1957, naming all required contractors as insureds. Upon expiration of the policies, they were replaced by policies in which plaintiff alone was named as the insured. This occurred when the building had been in use for almost 2 months and 1 week after the building was accepted as substantially complete. At the time of replacement, Loberg and other contractors continued to be obligated to perform work under the contract by way of completing items specified in the "punch list" and under the 1-year guarantee provision. The record also discloses that at the time of the loss on January 30, not all of the contractors or subcontractors had completed their work and received final payment, as had Loberg. Clearly, the plaintiff must be held to have violated the benefit-of-insurance *439 provision as to such contractors at the time it replaced the policies without designating such contractors as joint insureds. That action also overlooked the release from liability for fire damage in § 2.34. While the parties set the time limit for making claims for damage against each other to "not later than the time of final payment," they expressly excepted claims arising "in the case of faulty work or materials." This language could only contemplate claims arising during the 1-year guarantee period; and as the trial court reasonably inferred, the whole of this provision was intended to govern the parties' liability to each other, including liability for damage from fire, during the 1-year guarantee period as well as during the period of construction.
Plaintiff in a reply brief (emphasized with persuasive vigor on oral argument) places the greatest weight of its argument on the facts that § 2.33 required "builders risk insurance" and that this "type" of insurance by its very terms can be maintained only during the period of construction, facts which plaintiff insists directly conflict with any inferred intention that the plaintiff was required to maintain insurance after the building was completed and final payment made, because the fulfillment of such an obligation was clearly impossible. This argument is buttressed by the assertion that upon completion, acceptance, and final payment the contractors no longer had an insurable interest in the building; and to afford them any benefit from a fire insurance policy amounts to converting such a policy into a liability policy.
An examination of the record demonstrates that the court in denying plaintiff's motion for amended findings found that § 2.33 did not require plaintiff to effect and maintain "builders risk insurance" in accordance with plaintiff's interpretation of that term. The evidence offered as an aid to understanding the terms used, concerning which the parties were in dispute, clearly supports such a finding. What is imprecisely called "builders risk insurance" is nothing more than a standard fire insurance policy to which a Form 17 C, the Uniform Standard Minnesota Builders Risk Completed Value Form, is attached. This rider is not the insurance policy but simply an endorsement appended to a standard fire policy. It does not designate those named *440 as insureds but provides for coverage for a provisional amount on a building while in the course of construction and unoccupied by the owner. The coverage at any given period of construction is such portion of the provisional amount specified as the actual value of the building at that time bears to the value on completion. Thereby, the premium rate is reduced to less than half the ordinary premium rate on a completed structure. Upon completion of the building, this endorsement is obviously as unavailable to the owner as is the reduced premium it justifies. Perhaps this is a partial explanation of plaintiff's action in replacing the policy when the building was occupied and accepted as substantially complete. Although the contract permitted taking advantage of such reduction in premium by effecting minimum coverage with a Builders Risk Completed Value Form endorsement when available, the interpretation of the language of § 2.33 that plaintiff was required to effect and maintain fire insurance in which the contractors were named as insureds upon the building on which the work of the contract was done including the materials and equipment of the contractors for the duration of the contractors' obligation, as found by the trial court, is consistent, reasonable, and justified by the evidence. Furthermore, § 2.30 imposed an express obligation on the contractors regarding their work under the contract, which bound them as fully as their obligation to furnish specified materials and labor prior to acceptance of the building. The consequence of a breach of either obligation would be an action for damages based on the contract. The parties imposed obligations which extended beyond acceptance and final payment. Acceptance started the period of guarantee running, and the contract was not fully performed by its terms until that period had run. Although the parties' exposure to the risks inherent in the project remained essentially the same, the exposure to the hazards of fire increased. A contractor's potential loss by fire for replacement materials and equipment may not have been as substantial during the guarantee period as during construction; but his potential liability to other parties to the contract for fire caused by his negligence was greatly increased. Thus, the whole plan of protecting against the risks inherent in the work to be performed *441 becomes most significant in revealing the intention of the parties. Since nothing in the contract expressly or by implication limits the benefit-of-insurance provision, both as to fire and casualty insurance, we are unable to see how the trial court's conclusion that the parties intended the protection to continue for the duration of the contract is unreasonable. Nor are we persuaded that the result should be different because Loberg, at the time of the loss, is claimed to have had no insurable interest in the building. The record does not show what materials or equipment it may have had in the building at the time of the loss. The fact that coverage of such was contemplated is, we believe, sufficient to answer the argument. But more important, what share of the proceeds from the fire policy it may be entitled to is not, as pointed out above, the only effect of the benefit-of-insurance provision. It was intended as well to provide indemnity against a claim for negligence. In the cases cited above, agreements to indemnify a lessee from negligence by the use of a fire policy were held binding, notwithstanding the absence of any insurable interest in the lessee. The existence of an insurable interest would undoubtedly be a decisive factor in agreements between an insurance company and its insureds, both in the issuance of a policy and the payment of a loss. Its relevance in contracts where the insurance company is not a party is only one factor bearing on the intention of the parties with respect to a benefit-of-insurance provision. Where there is no proof that the parties contracted with the concept of insurable interest in mind, the absence of an insurable interest in the building covered provides an insufficient basis under the facts of this case to infer an intention to limit or negative an agreement to exonerate from liability for negligence when such intention otherwise reasonably appears. We hold that the trial court correctly interpreted the contract to effect exoneration and to require the maintenance of insurance until the contract was fully performed. We further find no error in the court's rulings or in its considering the extrinsic evidence submitted.
Affirmed.
MR. JUSTICE SHERAN took no part in the consideration or decision of this case.
NOTES
[1] Prior to trial, the action was dismissed as to the architect and general contractor by stipulation. At the close of the trial, it was dismissed as to Loberg and Edward S. Kern and Frank Persons, d.b.a. The Kerntile Company, which resulted in this appeal. It has not been dismissed as to other defendants.
[2] It was stipulated at trial that the facts claimed to support Loberg's defense applied with equal force to the defense of The Kerntile Company; the latter, therefore, offered no testimony, relying entirely on the testimony offered by Loberg.
[3] Commercial Union Assur. Co. Ltd. v. Foley Brothers, 141 Minn. 258, 169 N.W. 793; N.P. Ry. Co. v. Thornton Bros. Co. 206 Minn. 193, 288 N.W. 226; James Quirk Milling Co. v. Minneapolis & St. L.R. Co. 98 Minn. 22, 107 N.W. 742.
[4] Restatement, Contracts, § 572.
[5] Village of Minneota v. Fairbanks, Morse & Co. 226 Minn. 1, 31 N.W. (2d) 920; Sommers v. City of St. Paul, 183 Minn. 545, 237 N.W. 427.
The trial court did not reveal whether the findings were arrived at upon the basis that the contract was regarded as unambiguous and therefore its construction was a matter of law, or as ambiguous and requiring resort to the extrinsic evidence offered in aid of interpretation. Sufficient support in the evidence must, therefore, be found for both approaches.
[6] Casey v. Brotherhood, 197 Minn. 189, 266 N.W. 737; Commercial Union Assur. Co. Ltd. v. Foley Brothers, supra.
[7] Lawton v. Joesting, 96 Minn. 163, 167, 104 N.W. 830, 832; 4 Dunnell, Dig. (3 ed.) §§ 1823 and 1827.
[8] Newport News Shipbuilding & Dry Dock Co. v. United States (4 Cir.) 34 F. (2d) 100, certiorari denied, 280 U.S. 599, 50 S. Ct. 69, 74 L. ed. 645.
[9] Buckey v. Indianhead Truck Line, Inc. 234 Minn. 379, 48 N.W. (2d) 534; General Mills, Inc. v. Goldman (8 Cir.) 184 F. (2d) 359, certiorari denied, 340 U.S. 947, 71 S. Ct. 532, 95 L. ed. 683; N.P. Ry. Co. v. Thornton Bros. Co. supra; Cerny-Pickas & Co. v. C.R. Jahn Co. 7 Ill. (2d) 393, 131 N.E. (2d) 100; United States Fire Ins. Co. v. Phil-Mar Corp. 102 Ohio App. 561, 131 N.E. (2d) 444, affirmed, 166 Ohio St. 85, 139 N.E. (2d) 330. See, also, Weirick v. Hamm Realty Co. 179 Minn. 25, 228 N.W. 175.
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/3071964/
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11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Ruben Rios Esparza, * From the 350th District
Court of Taylor County,
Trial Court No. 10870-D.
Vs. No. 11-14-00118-CR, * October 23, 2014
The State of Texas, * Per Curiam Memorandum Opinion
(Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that the
appeal should be dismissed. Therefore, in accordance with this court’s
opinion, the appeal is dismissed.
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01-03-2023
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10-16-2015
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https://www.courtlistener.com/api/rest/v3/opinions/2549399/
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83 So.3d 720 (2011)
FERNANDEZ
v.
FERNANDEZ.
No. 2D11-4233.
District Court of Appeal of Florida, Second District.
October 19, 2011.
DECISION WITHOUT PUBLISHED OPINION
Appeal dismissed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1816178/
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987 So. 2d 657 (2006)
KAREN STURGEON, AS PERS. REPRESENTATIVE OF THE ESTATE OF CHARLES E. STURGEON, DECEASED; ET AL.
v.
FRANK TIMOTHY McABEE.
No. 2040831.
Court of Civil Appeals of Alabama.
April 14, 2006.
Decision without opinion. Affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2549434/
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81 So.3d 1013 (2011)
MANSHACK
v.
KERSHAW.
No. CA 11 00820.
Court of Appeal of Louisiana, Third Circuit.
December 7, 2011.
THIBODEAUX, J.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
PETERS, J. and EZELL, J.
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2549895/
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20 A.3d 838 (2011)
199 Md. App. 163
SALISBURY UNIVERSITY
v.
JOSEPH M. ZIMMER, INC.
No. 462, September Term, 2010.
Court of Special Appeals of Maryland.
May 27, 2011.
*839 Dana A. Reed (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellant.
Kenneth K. Sorteberg (Huddles, Jones, Sorteberg & Dachille PC, on the brief) Columbia, MD, for appellee.
EYLER, JAMES R., KEHOE, IRMA S. RAKER, (Retired, specially assigned), JJ.
EYLER, JAMES R., J.
The primary question presented by this case is whether COMAR 21.11.03.14, a regulation issued by the Board of Public Works ("BPW") is ultra vires because it conflicts with Maryland Code (2009 Repl. Vol.), §§ 15-215 and 15-217 of the State Finance & Procurement Article ("F.P."). We shall answer the question in the affirmative.
Facts and Proceedings
The conflict in this case arises out of a bid solicitation by Salisbury University, appellant, for a contractor to replace a chiller at the University. Joseph M. Zimmer, Inc., appellee, was one of several contractors to submit a bid. Appellee submitted the apparent low bid. Appellant later rejected the bid, however, because the bid requirements set a minority business entity ("MBE") participation goal of 10%, and after reviewing appellee's bid, *840 appellant's procurement officer determined that the subcontractor that appellee proposed to use to meet the MBE goals was not certified as a minority business. Thus, appellant concluded that appellee's bid was not responsive to the bid requirements.
Believing it had met the MBE goal, appellee filed a bid protest with appellant on April 1, 2009. By letter dated May 13, 2009, appellant responded to appellee's bid protest, reiterating in detail its reasons for deeming the bid non-responsive. Appellant refused to issue a final decision, however, taking the position in its May 13, 2009 letter that, under COMAR 21.11.03.14, appellee had no right to protest the rejection of its bid.
Appellee appealed appellant's rejection of the protest to the Maryland State Board of Contract Appeals ("MSBCA" or "Board"). Appellant moved to dismiss the appeal on the ground that, under COMAR 21.11.03.14, a protest could not be filed to challenge MBE issues, consequently, the Board lacked jurisdiction to consider the protest. The Board agreed with appellant and dismissed the appeal. Appellant then awarded the contract at issue to another contractor, who completed the work.
Appellee filed a petition for judicial review in the Circuit Court for Baltimore County, which reversed the Board. Appellant then noted an appeal to this Court. Like the circuit court, we hold that the regulation is invalid.
Standard of Review
In reviewing administrative decisions, we bypass the judgment of the circuit court and look directly at the administrative decision. White v. Workers' Comp. Comm'n, 161 Md.App. 483, 487, 870 A.2d 1241 (2005); see, e.g., Gigeous v. E. Corr. Inst., 363 Md. 481, 495-96, 769 A.2d 912 (2001) (On appeal, "we reevaluate the decision of the agency, not the decision of the lower court.").
In this case, we review the Board's legal decision concerning the regulation at issue. "In contrast to the deferential review accorded to an agency's factual findings, questions of law receive no deference on review; we are not bound by the agency's interpretation of law." Mayer v. Montgomery County, 143 Md.App. 261, 794 A.2d 704 (2002) (citations omitted). In fact, "a reviewing court is under no constraints in reversing an administrative decision which is premised solely upon an erroneous conclusion of law." Id. (citations omitted).
Discussion
There are essentially two issues on appeal: (1) whether this case should be dismissed as moot, and (2) whether COMAR 21.11.03.14 is valid. Before addressing these issues, and ultimately answering each in the negative, we engage in a background discussion of the relevant legal framework surrounding state procurement contracts, followed by a summary of the parties' contentions.
1. Background Discussion
Title 11 of the State Finance & Procurement Article, F.P. §§ 11-101 to 11-306, deals with general procurement law. Section 11-101(m) and (n) define "procurement" and "procurement contract," respectively, very broadly:
(m) Procurement.(1) "Procurement" means the process of:
(i) leasing real or personal property as lessee; or
(ii) buying or otherwise obtaining supplies, services, construction, construction related services, architectural services, engineering services, or services provided *841 under an energy performance contract.
(n) Procurement contract.(1) "Procurement contract" means an agreement in any form entered into by a unit for procurement. . . . .
Title 12, Subtitle 1, F.P. §§ 12-101 to 12-109, deals specifically with "State Procurement Organization." The BPW has general control over procurement, including the authority to adopt regulations. See § 12-101(b)(ii). Title 13, F.P. §§ 13-101 to 13-402, deals with source selection and the formation of procurement contracts, neither of which is relevant to our analysis in this case.
Procurement preferences, including the MBE program, are discussed in Title 14, F.P. §§ 14-101 to 14-505. The MBE program in particular is discussed in Subtitle 3, F.P. §§ 14-301 to 14-309. Notably, subject to one irrelevant exception,[1] Title 14 does not include dispute resolution procedures for MBE-related conflicts.
Section 14-301(f) defines an MBE as follows:
(f) Minority business enterprise.(1) "Minority business enterprise" means any legal entity, except a joint venture, that is:
(i) organized to engage in commercial transactions;
(ii) at least 51% owned and controlled by 1 or more individuals who are socially and economically disadvantaged; and
(iii) managed by, and the daily business operations of which are controlled by, one or more of the socially and economically disadvantaged individuals who own it.
A "socially and economically disadvantaged individual" is defined in § 14-301 as "a citizen or lawfully admitted permanent resident of the United States" who either (1) falls into one of the following minority groups: African American, American Indian/Native American, Asian, Hispanic, the physically or mentally disabled, or women; or (2) is "otherwise found by the certification agency to be a socially and economically disadvantaged individual." § 14-301(i)-(ii).
Subsection (a) of F.P. 14-303 gives the BPW authority to, inter alia, adopt regulations implementing Subtitle 3:
(a) In general.(1)(i) In accordance with Title 10, Subtitle 1 of the State Government Article, the Board shall adopt regulations consistent with the purposes of this Division II to carry out the requirements of this subtitle.
F.P. § 14-303(a)(i). Pursuant to its authority under F.P. 14-303(a), the BPW adopted COMAR 21.11.03.14, which provides as follows:
.14 Protests.
A protest under COMAR 21.10.02 may not be filed:
A. To challenge a decision whether an entity is or is not a certified MBE; or
B. Concerning any act or omission by a procurement agency under this chapter.
Subsection (b) of F.P. 14-303 then sets forth "required regulations," i.e., regulations that BPW must promulgate. F.P. §§ 14-303(b)(1)-(15). Regulations concerning MBE procurement dispute resolution are not among those required under subsection (b).
*842 Title 15, F.P. §§ 15-101 to 15-226, dedicates an entire subtitle, Subtitle 2, to dispute resolution for procurement contracts generally (i.e., not MBE-specific contracts). See F.P. §§ 15-201 to 15-226. Section 15-210 directs the MSBCA to "adopt regulations that provide for informal, expeditious, and inexpensive resolution of appeals before the Appeals Board."[2]
Part III of Subtitle 2, F.P. §§ 15-215 to 15-225 is dedicated to "Procedures for Dispute Resolution." The following sections of that Part are relevant to our analysis below:
§ 15-215. Definitions.
(A) In general.In this Part III of this subtitle the following words have the meanings indicated.
. . .
(c) Protest.(1) "Protest" means a complaint that relates to the formation of a procurement contract.
(2) "Protest" includes a complaint about:
(i) the qualifications of a bidder or offeror; or
(ii) the determination of the successful bidder or offeror.
§ 15-217. Initiation of protest or contract claim.
(a) In general.(1) A prospective bidder or offeror, a bidder, or an offeror may submit a protest to the procurement officer.
(2) A unit or a person who has been awarded a procurement contract may submit a contract claim to the procurement officer.
Notably, F.P. § 15-202 expressly exempts "contract[s] for architectural services or engineering services" from the ambit of Subtitle 2. Those are the only exemptions mentioned. Thus, except where expressly exempted, Subtitle 2 of Title 15 covers all procurement contracts, including MBEs.
2. Parties' Contentions
Appellee argues primarily that COMAR 21.11.03.14 (providing that, if the bidder is denied a contract because its MBE program does not pass muster, the bidder cannot file a bid protest) is ultra vires because it is in direct and irreconcilable conflict with F.P. §§ 15-215 and 15-217 (providing conjointly that a bidder may file a bid protest to complain about the qualifications of the bidder or the determination of the successful bidder).
Appellant essentially makes four arguments in response to appellee's ultra vires argument. First, appellant highlights the preamble to Maryland's first MBE law, which was enacted in 1978 and codified in Md. Ann.Code Art. 41 § 483 (1978 Repl. Vol.), titled "Governor-Exec. and Admin. Depts." The preamble notes that the MBE law does not create a private right of action with respect to the State's implementation of the law, but rather is a "policy direction to the Executive which is enforceable merely through the oversight function of the General Assembly." 1978 Laws of Md. ch. 575 at 1830. The law was re-enacted in 1983 Law of Md. Ch. 193 at 847, and the General Assembly re-incorporated the 1978 preamble. Appellant implies that this preamble supports the regulation's prohibition on filing MBE-related protests.
Second, appellant argues that "[t]he MSBCA has applied COMAR 21.11.03.14 to determine that it does not have jurisdiction *843 to review agency decisions on MBE matters," and, following the first such decision in 2004, the General Assembly, in 2006, re-enacted the MBE law. Thus, appellant contends the fact that the General Assembly re-enacted the MBE statute after the MSBCA decision applying the regulation is evidence that the regulation conforms to the legislative intent behind the MBE statute.
Next, appellant suggests that COMAR 21.11.03.14 is not inconsistent with F.P. §§ 15-215 and 15-217 because the General Assembly could give the Board jurisdiction to hear Title 15 disputes (procurement disputes generally) but not give it jurisdiction to hear Title 14 disputes (MBE-related procurement disputes in specific). Appellant reasons that "COMAR 21.11.03.14 was not enacted pursuant to the general procurement dispute resolution statutes [of Title 15], but pursuant to the separate authority given to the BPW in Title 14 to enact regulations implementing the MBE laws."
Last, appellant argues that COMAR 21.11.03.14 does not leave bidders who have been rejected by agencies without a remedy. Rather, appellant argues, "[a]gency actions implementing the MBE laws, like all government actions, are subject to review by a court to determine if they are arbitrary, capricious or illegal, via a request for a writ of administrative mandamus." In other words, contractors aggrieved by an agency's MBE-related decision have a sufficient remedy in the circuit courts.[3]
Appellant also makes a separate argument on appeal: the case is moot because the contract that appellee sought was awarded to another contractor, and the work has already been completed. Appellee counters that the contract is not moot because appellee has a statutory right to recover its reasonable costs of filing and pursuing the bid protest in the event that the protest is sustained. Alternatively, appellee argues that this case falls under exceptions to the mootness doctrine. Specifically, appellee contends (1) that there is an urgent need to establish a rule of future conduct in a matter of important public concern; and (2) that the improper action is capable of being repeated while evading judicial review.
3. Mootness
We need not address appellant's argument that the case is not moot because of a claim for costs because we agree with appellee that, even if the case were otherwise moot, it falls under an important exception to the mootness doctrine.
"A case is moot when there is no longer any existing controversy between the parties at the time that the case is before the court, or when the court can no longer fashion an effective remedy." Green v. Nassif, 401 Md. 649, 654, 934 A.2d 22 (2007) (citing In re Kaela C., 394 Md. 432, 452, 906 A.2d 915 (2006)). Nevertheless, "[a] limited exception to the mootness doctrine will be found, even if no controversy exists at the moment of review, if the controversy between the parties is capable *844 of repetition, yet evading review." Hamot v. Telos Corp., 185 Md.App. 352, 364, 970 A.2d 942 (2009) (citing State v. Parker, 334 Md. 576, 584, 640 A.2d 1104 (1994)).
We hold that this is an important problem which, absent resolution, will reoccur and may evade judicial review. Appellee claims that it will continue to submit bids on future University procurements. It is thus reasonable to expect that appellee will be involved in other MBE-related bid protests, which will be appealed to the Board. Perhaps more important, however, repetition and evasion of this issue will occur in the context of other bidders and other State agencies involved in MBE-related bid disputes. Between 2004 and 2008, the Board dismissed three MBE-related bid protest appeals (other than the one at issue here) for lack of jurisdiction under COMAR 21.11.03.14. See Knott Constr. Co., 6 MSBCA ¶ 555 (2004); Snake River Land Co., Inc., MSBCA 2539, ___ MSBCA ¶ ___ (Sept. 12, 2006); Waynesboro Constr. Co., Inc., 2600 & 2605, ___ MSBCA ¶ ___ (Nov. 7, 2008). Accordingly, we shall not dismiss this appeal as moot.
4. Validity of COMAR 21.11.03.14
We hold that the plain language of F.P. §§ 15-215 and 15-217 invalidates COMAR 21.11.03.14. The statutory provisions grant contractors aggrieved by agency MBE decisions the right to submit bid protests; the regulation prohibits them from doing so. The statutory provisions trump the regulation. See Univ. of Md. v. MFE, 345 Md. 86, 104, 691 A.2d 676 (1997) (stating that BPW may not "adopt regulations that would be inconsistent with the procurement statute or the legislative intent behind it"). The regulation is thus ultra vires.
Appellant's arguments to the contrary are either irrelevant or meritless. Appellant's first point of contention (concerning the preamble to the MBE law) is unpersuasive. The preamble to the MBE law is of little consequence in interpreting the language in Titles 14 and 15 of the State Finance & Procurement Article as that language relates to the issue in question. The MBE law and the State Finance & Procurement Article are two separate statutes. Under F.P. §§ 15-215 and 15-217, bidders have the unlimited right to file a bid protest concerning the determination of the successful bidder. That right could not be compromised by the preamble to the separate MBE law. We note further that, in considering the preamble to the MBE law, the fact that the General Assembly retained oversight is of no moment. The General Assembly, when enacting legislation with a policy objective frequently retains oversight in order to monitor whether its policy determinations are being implemented and with what effect. By retaining oversight, the General Assembly does not purport to effectively establish itself as an administrative body to decide specific disputes.
Equally unpersuasive is appellant's second argumentthat the General Assembly amended the MBE law in 2006 after the MSBCA's 2004 Knott decision applying COMAR 21.11.03.14, without addressing the issue in this case, thus suggesting that the regulation conforms to the legislative intent of the MBE statute. In re-enacting the statute, the General Assembly was not reviewing specific contracts or issues; it was reviewing policy objectives and determining whether to keep the MBE program in existence or to modify it. Moreover, the fact of renewal without express attention to the issue in this case does not override the relevant statutory language. If we conclude, as we have, that the language of F.P. §§ 15-215 and 15-217 invalidates the *845 regulation, the General Assembly's re-enactment of the MBE law does not trump that language.
We turn next to appellant's third argumentthat the regulation is not inconsistent with F.P. §§ 15-215 and 15-217 because the General Assembly could give the Board jurisdiction to hear Title 15 disputes but not give it jurisdiction to hear Title 14 disputes. The problem with that argument is that, unless expressly exempted, Title 15 covers all procurement contracts. Thus, Title 15 gives the Board jurisdiction to hear all disputes, including MBE disputes, and Title 14 does not purport to take that jurisdiction away.
Appellant's last argument, that contractors aggrieved by an agency's MBE-related decision have sufficient remedy in the circuit courts via administrative mandamus, is beside the point. The question in this case is whether aggrieved MBE bidders have a statutory right to submit bid protests in the administrative context, and the answer is yes.
JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT.
NOTES
[1] The one exception to the statement that Title 14 includes no discussion of MBE-related dispute resolution is found in F.P. § 14-304, which contains provisions addressing the procedure that applies when an MBE is decertified. See F.P. § 14-304(b). That procedure is limited to MBE certification and does not address the award or failure to award a specific procurement contract.
[2] For purposes of our discussion below, we note in passing that the authority granted by the General Assembly to adopt regulations under Title 15 is granted to the MSBCA, while the authority under Title 14 is granted to the BPW. This is of no import to our analysis.
[3] Appellant references, in a footnote, David A. Bramble, Inc. v. Maryland Department of General Services, No. 51, Sept. Term 2009, an unreported opinion out of this Court in which we stated that COMAR 21.11.03.14 validly denies the MSBCA jurisdiction over MBE matters. As both parties in the case before us recognize, Bramble has no precedential value because it was unreported. Moreover, both parties in Bramble espoused a common position that the Board lacked jurisdiction over MBE-related bid protests pursuant to COMAR 21.11.03.14. Neither party in Bramble argued, either in lower court or on appeal, that the Board had jurisdiction. Thus, the ultra vires argument made in the case sub judice was not made in Bramble.
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85 So.3d 340 (2012)
Glen PICARD, Appellant,
v.
Paula PICARD, Appellee.
No. 2009-CA-01557-COA.
Court of Appeals of Mississippi.
April 3, 2012.
*341 Calvin D. Taylor, attorney for appellant.
William E. Tisdale, attorney for appellee.
Before IRVING, P.J., ISHEE and RUSSELL, JJ.
ISHEE, J., for the Court:
¶ 1. In 2007, Glen Picard filed for divorce from his wife, Paula Picard, in the Jackson County Chancery Court. A trial commenced in 2008, after which the chancellor issued a lengthy ruling of the court and entered a judgment of divorce. Two years later, Glen moved to alter or amend the judgment and alternatively requested a new trial. The chancellor denied Glen's request, and Glen filed the instant appeal. Glen requests that the chancery court's judgment be reversed as to the division of equity in the marital home, the alimony award, and the allocation of federal and state tax exemptions and tax refunds for the years 2005 through 2007. Finding no reversible error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶ 2. Glen and Paula were married for fifteen years, during which time they had *342 four daughters. Glen served on active duty with the United States military for approximately fifteen years while married to Paula. At the time Glen filed his complaint for divorce, he had been in service with the military for approximately twenty years. Glen had also worked in Louisiana for the New Orleans Police Department for approximately fourteen years.
¶ 3. While serving in the military, Glen and his family were transferred to Keesler Air Force Base in Biloxi, Mississippi. The couple purchased a home in Ocean Springs, Mississippi, where they lived until Hurricane Katrina destroyed much of the Mississippi Gulf Coast in 2005. The couple's marital home was severely damaged by Hurricane Katrina, and Glen agreed to remain in Ocean Springs while Paula and the children evacuated until the home was repaired enough for Paula and the children to live in it again. It was during this time that the couple claims their marriage became severely strained.
¶ 4. After the home was partially repaired, Paula and the children moved back home. At some point thereafter, Glen began a romantic affair with a woman named Tracey Fuette. Glen's extramarital affair caused significant tension on the marriage, and Glen filed for divorce from Paula on February 16, 2007. Paula then filed an answer and counterclaim, which began a year-long contentious battle between the parties.
¶ 5. In February 2008, a two-day trial was conducted, after which the chancery court issued its findings and judgment. The couple's divorce was granted on the basis of irreconcilable differences, and custody of the four children was given to Paula with Glen having substantial visitation rights. Glen and Paula's financial condition was "a financial mess," according to the chancellor. Specifically, in summarizing the parties' financial distress, the chancellor analogized: "This [c]ourt is asked to cut off one end of a blanket and sew it to the opposite end and somehow make a longer blanket." After reviewing the parties' financial documents, the chancellor's calculations showed Paula as having a loss of approximately $188.59 after her potential monthly income and debts were tallied. Glen was shown to be deficient approximately $1,053.60 after his monthly income and expenses were tallied.
¶ 6. The couple's assets included the marital home, the equity of which totaled approximately $51,633.22 after repairs were made using Hurricane Katrina grant money. The chancellor ordered that final repairs be made to the home and that the home be sold upon the children reaching the age of majority. The home's equity was to be distributed equally between the parties.
¶ 7. Despite Glen's monthly debt, he was ordered to pay for COBRA health insurance for Paula for as long as the policy would allow and to pay $250 per month in alimony to Paula once the policy's maximum time allowance was reached. The chancery court also ordered that Paula would receive the state and federal income tax dependent exemptions for two of the couple's daughters and Glen would receive the exemptions for the parties' other two daughters. Finally, the parties were ordered to equally divide their tax refunds for the years 2005 through 2007.
¶ 8. Aggrieved by the chancery court's decision, Glen moved the court to reconsider. The chancery court denied Glen's motion, from which he now appeals. On appeal, Glen claims the chancellor erred in the division of the equity in the marital home, allocation of alimony, and division of the tax exemptions and refunds. Finding no manifest error, we affirm.
*343 DISCUSSION
I. Division of the Equity in the Marital Home
¶ 9. In domestic relations cases, we employ a limited standard of review. Carrow v. Carrow, 741 So.2d 200, 202 (¶ 9) (Miss.1999). Specifically, "[w]e will not disturb the findings of a [c]hancellor unless the [c]hancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Id. (citation omitted). With regard to division and distribution of property, we maintain the objective of "a fair division based upon the facts of the case[.]" Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997) (citing Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994)).
¶ 10. In general, when dividing and distributing property, courts employ the following factors, which were laid out in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994):
(1) Substantial contribution to the accumulation of the property . . .[;]
(2) The degree to which each spouse has expended, withdrawn[,] or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree[,] or otherwise[;]
(3) The market value and the emotional value of the assets subject to distribution[;]
(4) The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
(6) The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
(7) The needs of the parties for financial security with due regard to the combination of assets, income[,] and earning capacity; and,
(8) Any other factor which in equity should be considered.
"In reviewing a chancellor's judgment, [the appellate court] does not conduct a Ferguson analysis anew, but reviews the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion." Phillips v. Phillips, 904 So.2d 999, 1001 (¶ 8) (Miss.2004).
¶ 11. Glen's first assignment of error challenges the distribution of equity and costs of the marital home. In analyzing his claim, we look to the chancery court's ruling and order to determine whether an appropriate analysis was conducted by the chancellor. In the chancellor's ruling, he reviewed the appraisal of the home and determined the home was valued at $127,000 in its then-current condition, without the completion of repairs needed after Hurricane Katrina. An analysis of the home's mortgage debt resulted in the chancellor subtracting the property's principal balance of $83,674.56, leaving a net equity of the home of $43,325.44.
¶ 12. Paula was awarded the remaining Hurricane Katrina grant money, which totaled $8,307.78. However, Paula was charged with using the funds only for repairs to the marital home and was ordered to provide proof to Glen that she had expended the grant money to repair the marital home. After doing so, the chancellor assigned the net equity in the home a value of $51,633.22. Upon the parties' children reaching the age of majority, the *344 chancery court ordered that the house should be sold and the profits equally divided between Glen and Paula. Furthermore, while Paula was granted possession of the home in which to reside with the four children, the chancellor ordered Glen and Paula to equally divide the home's monthly mortgage payment, taxes, insurance, costs of reasonable repairs, and costs of general upkeep.
¶ 13. As such, the debt and equity of the home were divided fairly between Glen and Paula, with both sharing equally all monetary matters relating to the home. The only advantage Paula was given with regard to the marital home was the ability to live in the home. However, since Paula was granted custody of the four children, we do not find this advantage was an abuse of the chancellor's discretion.
¶ 14. We have long held that Mississippi is an equitable-distribution state and that we look to the Ferguson factors to determine if property is divided equitably. Owen v. Owen, 798 So.2d 394, 399 (¶ 14) (Miss.2001). The chancellor's lengthy ruling included a review of the market value of the home both prior to the needed repairs and after the completion of the repairs, an analysis of the equity available to both parties, as well as the needs of both parties in relation to the home, including Paula's custody of the four children. Having reviewed the chancellor's extensive analysis, we determine the Ferguson factors were properly considered with regard to the marital home. This issue is meritless.
II. Alimony
¶ 15. Glen next asks us to review the chancellor's allocation of alimony to Paula. The chancellor ordered that Glen pay the cost of COBRA health-insurance coverage for Paula up to the maximum amount of time allowed under the policy. Once the COBRA coverage expires, Glen must pay $250 a month in periodic alimony until Paula remarries, cohabitates, or begins receiving a portion of Glen's military retirement, whichever occurs first.
¶ 16. In the chancellor's ruling, he correctly acknowledged that an award of alimony is statutorily within the discretion of the trial judge under Mississippi Code Annotated section 93-5-23 (Rev.2009), which allows the trial court to "make all orders. . . touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him." The chancellor specifically noted the following factors laid out in Brabham v. Brabham, 226 Miss. 165, 176, 84 So.2d 147, 153 (1955), and later refined in Hemsley v. Hemsley, 639 So.2d 909, 912-13 (Miss.1994) with regard to alimony:
(1) the health of the husband and his earning capacity;
(2) the health of the wife and her earning capacity;
(3) the entire sources of income of both parties;
(4) the reasonable needs of the wife;
(5) the reasonable needs of the child[ren];
(6) the necessary living expenses of the husband;
(7) the estimated amount of income taxes the respective parties must pay on their incomes;
(8) the fact that the wife has the free use of the home, furnishings[,] and automobile; and
(9) such other facts and circumstances bearing on the subject that might be shown by the evidence.
One year prior to Hemsley, the Mississippi Supreme Court enumerated the following factors in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), which must *345 be considered when reviewing cases involving spousal support:
(1) The income and expenses of the parties;
(2) The health and earning capacities of the parties;
(3) The needs of each party;
(4) The obligations and assets of each party;
(5) The length of the marriage;
(6) The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
(7) The age of the parties;
(8) The standard of living of the parties, both during the marriage and at the time of the support determination;
(9) The tax consequences of the spousal support order;
(10) Fault or misconduct;
(11) Wasteful dissipation of assets by either party; or,
(12) Any other factor deemed by the court to be "just and equitable" in connection with the setting of spousal support.
While the chancery court did not specifically list the Armstrong factors in its order, the court's analysis nonetheless included consideration of each Armstrong factor, albeit in somewhat of an indirect fashion.
¶ 17. A thorough review of both parties' financial conditions reveals that Paula's net monthly pay totaled $2,321 and that her expenses, including the entire house note and other debts assigned to her, totaled $3,369.19. As such, Paula lacked approximately $1,048.19 per month in income to meet her expenses. However, her expenses were decreased by half the value of the house note since the chancellor ordered the note to be paid equally by Glen and Paula. Additionally, Paula testified she could increase her net monthly pay by approximately $268. As such, the chancellor determined Paula would lack approximately $188.59 per month to meet her necessary monthly expenses.
¶ 18. The chancellor then reviewed Glen's financial condition. Glen's net monthly income was $3,659, and his combined total expenses were $4,712.60, including his payment of one-half of the mortgage note. He lacked $1,053.60 per month to pay for his monthly expenses. However, the chancellor later noted Glen's overstatement of his expenses by approximately $217.50. Nonetheless, both parties lacked sufficient funds to meet their monthly expenses. The chancellor noted their financial quandary, stating: "These parties are in a financial mess. Even without a divorce, which results in the necessity of two households, these parties are in financial disarray."
¶ 19. The chancellor went on to acknowledge that Glen's extramarital affair weighed heavily against him with regard to the marital fault of the parties. Directly before ordering Glen to pay periodic alimony, the chancery court stated: "It is without question that Mr. Picard's income earning potential is higher than Ms. Picard's. This is also a lengthy marriage and, in my opinion, this divorce is due to Mr. Picard's fault or misconduct." As such, it is evident the chancellor appropriately reviewed the applicable factors in granting Paula periodic alimony. We cannot find error in the chancellor's alimony award. This issue is without merit.
III. Division of Tax Exemptions and Tax Refunds
¶ 20. Glen next asserts the chancery court improperly divided the state and federal income tax dependent exemptions *346 for the children and the parties' state and federal tax refunds. In his order, the chancellor assigned the state and federal income tax dependent exemptions for two of the children to Glen and the exemptions for the remaining two children to Paula. Additionally, Glen and Paula were ordered to agree to hire one accountant "to maximize the tax benefit of the Hurricane Katrina losses between the parties considering the separate income[s] of the parties." Glen and Paula were then ordered to equally divide all tax refunds for the years 2005, 2006, and 2007.
¶ 21. The equal division of both the income tax dependent exemptions and the tax refunds reflects the chancellor's attempt to divide the benefits fairly between the parties. The chancellor thoroughly analyzed the parties' contributions during the marriage and the needs of the parties following the divorce in his ruling and order. The chancellor did not abuse his discretion in his analysis or his decision to split the exemptions and refunds equally. This issue is meritless.
¶ 22. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.
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987 S.W.2d 597 (1999)
Kenneth TAYLOR, Appellant,
v.
The STATE of Texas, Appellee.
No. 06-98-00068-CR.
Court of Appeals of Texas, Texarkana.
Submitted January 28, 1999.
Decided January 29, 1999.
Discretionary Review Refused May 19, 1999.
*598 James E. Davis, Texarkana, AR, for appellant.
Randal Lee, Crim. Dist. Atty., Linden, for appellee.
Before CORNELIUS, C.J., and GRANT and ROSS, JJ.
OPINION
Justice, GRANT.
Kenneth Taylor appeals from his conviction in a jury trial for aggravated sexual assault. He was sentenced to life imprisonment.
Taylor contends on appeal that a portion of the State's closing argument during the punishment phase of trial was improper and requires reversal. Closing arguments must be confined to the following four areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) response to the argument of opposing counsel; and (4) a plea for law enforcement.[1]
Taylor complains of this portion of the prosecutor's argument.
I want to remind you what this little girl has gone through. She was raped by her stepfather, the one she has grown to love, who had raised her from 5 or 6. Effectively in her mind, she was raped again in the examination room, going through that. I don't think there is any question that it was verbally, and emotionally, she was raped here again on the stand.
(Emphasis added.). Defense counsel objected to the argument on the basis that the defendant had the right to exercise the constitutional right to a trial. The objection was overruled.
In Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), the United States Supreme Court held that the Eighth Amendment to the United States Constitution does not erect a per se bar to the introduction of victim impact evidence. A state may therefore conclude that for the jury to meaningfully assess a proper punishment for a given defendant, during the punishment phase of the trial the jury should be provided with evidence of the specific harm caused by the defendant.
The State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the [jury] that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.
Payne, 501 U.S. at 825, 111 S. Ct. 2597, (quoting Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987)).
Victim impact evidence is admissible if it meets the following criteria: (1) the evidence must be relevant to a special issue during punishment or offered to rebut a defensive punishment theory,[2] (2) the probative value cannot be outweighed by the danger of undue prejudice,[3] (3) the testimony may come from either a surviving victim of the crime itself, or from a family member or legal guardian of a victim of the crime,[4] (4) the testimony must regard the impact the crime has had on that individual's life,[5] (5) that testimony cannot create a comparative judgment situation, i.e., it must show the uniqueness of the loss of the victim as an *599 individual only as it pertains to the immediate family, guardian, or surviving victim,[6] and (6) the evidence may not pertain to the character of the victim unless it is introduced in rebuttal of a defensive theory offered during punishment.[7]
Figures of speech have been recognized as a basic part of expression since ancient times, and figures of speech have long been accepted in oral arguments in the courtroom. The argument in the present case was clearly a metaphor. Counsel did not contend that the victim was actually raped again in the examining room and in the courtroom, but as he stated in his argument "effectively in her mind," she was suffering emotionally by having to relive the experience. Our civil law has long recognized the suffering of mental anguish in personal injuries. To consider the full impact of a crime upon the victim, the mental suffering that was inflicted as a result of the defendant's criminal acts should be considered. Whether mentioned by the prosecutor or not, the jury was fully aware of the humiliation suffered by a rape victim after the occurrence. The mental and emotional trauma in the aftermath of a sexual assault are a part of the damages to the victim.
In the present case, the jury heard evidence about the child victim undergoing a medical examination of her genitalia because of the rape. The jury witnessed the child testifying about the details of the crime during the trial and observed her mental and emotional state, demonstrated by the fact that at one point the judge halted the proceedings to allow her to go to her mother and attempt to regain her composure and the fact that this eleven-year-old child found it necessary to hold a stuffed animal during her testimony. We find that the impact of the crime upon the victim was relevant during punishment, that its probative value outweighed the danger of undue influence, that the jury had before it evidence upon which to consider the factors made by the prosecutor's argument, and that it pertained to the eleven-year-old victim as an individual.
Thus, we find that the trial court did not err in overruling the objection to this argument.
We recognize that the Waco Court of Appeals in the Villarreal case[8] has held that a similar argument on the victim's court appearance was improper and that the level of harm from such an argument cannot be corrected by an instruction by the trial judge. However, we do not find in the present case that the prosecutor's argument was asking the jury to punish Taylor for exercising his right to a jury trial. In the Villarreal case, the prosecutor told the jury that the defendant had forced the victim to come in the courtroom in front of a "bunch of strangers." In the present case, the prosecutor is demonstrating the continual damaging effect caused by the crime and uses the examples of the hospital examination and her testimony to show that effect. The prosecutor did not argue that Taylor's exercising his constitutional right to a trial should subject Taylor to additional punishment. The argument did not suggest that if Taylor had pleaded guilty, this would have avoided the necessity of the victim's testimony. Instead, the prosecutor suggests that if the criminal act of rape had not occurred, the victim would not be subject *600 to reliving that event when the memories of that occasion were triggered in her mind. We agree that, if the prosecutor had made reference to the defendant's exercising his right to a jury trial in a way calculated to place blame upon the defendant for compelling the victim to testify, such would constitute error. It is legal fiction to pretend that the jury is not aware that the victim has been subjected to the judicial process, but the prosecutor should never approach this as a way to suggest that the jury should punish the defendant for the workings of the judicial process. This, however, does not mean that the jury cannot consider the aftereffects of the criminal act itself as a part of the impact of the criminal act upon the victim. We distinguish the present case from the Villarreal case, and this point of error is overruled.
The judgment is affirmed.
NOTES
[1] Wilson v. State, 938 S.W.2d 57 (Tex.Crim.App. 1996); Smith v. State, 898 S.W.2d 838, 845 (Tex. Crim.App.1995 ).
[2] Ford v. State, 919 S.W.2d 107 (Tex.Crim.App. 1996).
[3] Goff v. State, 931 S.W.2d 537 (Tex.Crim.App. 1996) (plurality opinion).
[4] Ford, 919 S.W.2d at 114; Smith v. State, 919 S.W.2d 96 (Tex.Crim.App.1996) (plurality opinion); Goff, 931 S.W.2d at 556; and Janecka v. State, 937 S.W.2d 456 (Tex.Crim.App.1996).
[5] Ford, 919 S.W.2d at 112.
[6] Smith, 919 S.W.2d at 102.
[7] See Goff, 931 S.W.2d at 555; Janecka, 937 S.W.2d at 472-74.
[8] In a split decision, the Waco Court of Appeals reversed and remanded for a new trial on punishment because of impermissible argument by the prosecutor. Villarreal v. State, 860 S.W.2d 647, 649 (Tex.App.Waco 1993, no pet.). In that case, the prosecutor argued: "But he didn't do it just once. He forced her to have to come into this courtroom in front of a bunch of strangers." The Waco court recognized that the right to a jury trial is guaranteed under the Sixth and Fourteenth Amendments and that the defendant therefore had every right to invoke his Sixth Amendment right to jury trial and his right to confront the witnesses against him.
The court concluded that the prosecutor's argument constituted the impermissible imposition of a penalty upon the defendant for exercising a constitutional right. Citing Spevack v. Klein, 385 U.S. 511, 515, 87 S. Ct. 625, 628, 17 L. Ed. 2d 574 (1967). Therefore, the court concluded the comments made by the prosecutor to the effect that the defendant had forced the victim to relive her rape in the presence of the jury were not permissible under Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973).
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11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Ruben Rios Esparza, * From the 350th District
Court of Taylor County,
Trial Court No. 10868-D.
Vs. No. 11-14-00104-CR, * October 23, 2014
The State of Texas, * Per Curiam Memorandum Opinion
(Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that the
appeal should be dismissed. Therefore, in accordance with this court’s
opinion, the appeal is dismissed.
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78 P.3d 136 (2003)
190 Or. App. 185
STATE of Oregon, Respondent,
v.
Richard Abe LINVILLE, Appellant.
01CR0188; A116335.
Court of Appeals of Oregon.
Argued and Submitted June 30, 2003.
Decided October 22, 2003.
*137 Rankin Johnson IV, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, Acting Executive Director, Office of Public Defense Services.
Kaye Ellen McDonald, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before EDMONDS, Presiding Judge, and DEITS, Chief Judge,[*] and SCHUMAN, Judges.
EDMONDS, P.J.
Defendant appeals from a conviction for possession of a controlled substance. ORS 475.992(4). He assigns as error the denial of his motion to suppress evidence seized from his cigarette pack. After the motion was denied, he entered into a stipulated facts trial that resulted in his conviction. We affirm.
Defendant was a passenger in an automobile that had been lawfully stopped because of a defective tail light. After contacting the driver of the vehicle, the officer became concerned that the vehicle might be stolen. Because the driver had no identification with him, the officer asked defendant for his identification so that he would have a potential witness in the event that the traffic citation for the defective light was challenged. Defendant provided the officer with his driver's license, and the officer returned to his patrol car in an effort to ascertain whether the car was stolen. Because of his suspicion about the car, he asked for a backup officer.
When the backup officer arrived at the scene, the officer approached the car again. He intended to ask the driver for permission to search the car, but he wanted defendant, who remained seated in the car, to get out first. He walked up to the passenger side of the car and asked defendant "if he had anything in his pockets that he shouldn't have, * * * drugs or anything like that. Weapons was my concern for officer safety. [Defendant] said that he didn't." The officer asked if defendant would consent to a search of his pockets, and defendant agreed. After conducting a search of defendant's pockets, the officer asked defendant to step back to the front of the patrol car. Before defendant complied, the officer asked, "[I]s there anything else in the vehicle that belongs to you[?]" The officer testified at the suppression hearing that in response to his question, "[Defendant] said, `[N]o, he did not have anything in the vehicle'."
The officer obtained consent to search the car from the driver. On the floorboard of the car, he found a pack of Camel cigarettes. The officer asked the driver if the pack of cigarettes was his, and the driver replied in the negative. The officer saw that the driver was carrying a different brand of cigarettes. The officer then opened the *138 cigarette pack and found marijuana and methamphetamine. Defendant subsequently admitted that the cigarette pack and the methamphetamine belonged to him. Defendant's motion to suppress in the trial court sought to exclude the above evidence, in part, on the ground that the officer conducted an unlawful search of the cigarette pack in violation of defendant's rights under Article I, section 9, of the Oregon Constitution.[1] On appeal, defendant reasserts that argument. He claims that he had a privacy interest in the cigarette pack before the stop occurred that he never abandoned. He relies primarily on State v. Cook, 332 Or. 601, 34 P.3d 156 (2001) in support of his position.
In Cook, two officers went to an apartment complex after they were told that two persons were possibly trying to commit thefts from vehicles. While looking for the suspects in the parking area of the complex, the officers observed the defendant, bent down next to a garbage dumpster, sorting clothing into a duffel bag. They approached the defendant and asked him to step back, believing that his behavior was consistent with someone who had committed theft from a vehicle. The defendant complied, leaving the bag and some clothing on the ground. One of the officers testified that the defendant said that "he discovered a pile of clothing there and he thought he may be able to use some of the clothing, and so he was going through the clothing to find items which he may be able [to] use." Cook, 332 Or. at 604, 34 P.3d 156 (brackets in original). The other officer also testified that the defendant said he "was going through [the duffel bag] to see what he wanted to take home." Id. When asked, the defendant repeatedly denied that the clothing or the bag belonged to him. The ensuing search of the bag resulted in the seizure of evidence of controlled substances, and the defendant eventually admitted that the bag was his.
The trial court and this court upheld the officers' search in Cook on the basis that the defendant's disclaimer of ownership sufficed to constitute an abandonment of any privacy or possessory interest in the bag and its contents and to make the search of it reasonable under the circumstances. The Supreme Court disagreed. It explained,
"Defendant's only statements before the seizure and search occurred were that he discovered the pile of clothing, that the items, with the exception of an army jacket, were not his and that he was going through the clothing to find items that he might have been able to use. The statements were responsive to Officer Petermen's inquiry as to what defendant was doing with the bag and clothes, and permitted the officers reasonably to conclude that defendant did not own the bag and clothing.
"The fact that defendant told the officers that he not own the bag and clothes did not, however, permit the officers to conclude that defendant intended to relinquish all his constitutionally protected interests in those items. Although defendant had relinquished his immediate physical possession of the bag and clothing by leaving them on the ground, undisputedly, he did so only after Officer Petermen instructed him to `step out' of the area near the dumpster where defendant was sorting the clothes into the bag. Leaving the items on the ground in compliance with the officer's request to `step out' is not conduct demonstrating an intent permanently to relinquish possession of the items or the privacy interests that accompanied the right to possess them. Under those circumstances, the officers could not have reasonably concluded that defendant intended to relinquish his possessory and privacy interests in the clothing and the bag. Thus, the seizure of the clothing and bag followed by the immediate search of those items violated defendant's possessory and accompanying privacy interests protected by Article I, section 9."
332 Or. at 608-09, 34 P.3d 156 (emphasis in original).
*139 In response to defendant's argument that Cook controls the outcome of this case, the state counters,
"The point of Cook thus is not that a person cannot intentionally relinquish his privacy interest in an object, simply by disclaiming ownership of it. It is that a person does not do so, when he has asserted a privacy interest in an item other than ownership and the only basis for concluding that he intended to relinquish that interest was that he complied with an officer's request to step away from it. In this case, defendant was given an opportunity to assert an interest in the cigarette pack in circumstances where it would have been reasonable to expect him to do so, if he wanted to retain a privacy interest in it. Because he abandoned that interest before [the officer's] search, no violation of Article I, section 9, of the Oregon Constitution, or the Fourth Amendment, occurred."
(Emphasis in original.)
Article I, section 9, of the Oregon Constitution, provides, in relevant part:
"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure."
The cigarette pack is an "effect" protected from unreasonable search and seizure under Article I, section 9, and defendant held possessory and privacy interests in it. The determination of whether a defendant has relinquished a constitutionally protected interest in an "effect" involves both factual and legal questions. The trial court found that "defendant specifically stated that nothing in the car belonged to him" and that "the police had no reason to doubt that" defendant abandoned any property he may have left in the vehicle.[2] Findings of fact supported by the evidence are binding on us. State v. Bea, 318 Or. 220, 230, 864 P.2d 854 (1993). However, the legal consequences of those facts is a question of law, i.e., whether the seizure and search of the pack was reasonable under the circumstances. State v. Morton, 326 Or. 466, 953 P.2d 374 (1998).
The holding in Cook is predicated on the court's view that the defendant, by his conduct, did not intend to relinquish all his constitutionally protected possessory and privacy interests. 332 Or. at 608, 34 P.3d 156. At first blush, what occurred here appears to be a similar manifestation of intent by defendant. In Cook, the defendant disclaimed ownership. Here, defendant told the officer "No" when asked if anything else in the car belonged to him. However, the circumstances surrounding the exchange between the defendant and the officers in that case and the exchange between defendant and the officer in this case are different. In Cook, the Supreme Court apparently discerned that the defendant asserted some interest in retaining the clothing, although he denied ownership of the clothing and the bag. The defendant was sorting through the clothing, putting some of it in a duffel bag, when the officers first approached him. At a minimum, that conduct manifested an intent to exercise some kind of possessory interest in the bag. Significantly, the Cook court focused on the defendant's conduct rather than his repeated verbal denial of ownership of the bag. The court observed, "Leaving the items on the ground in compliance with the officer's request to `step out' is not conduct demonstrating an intent permanently to relinquish possession of the items or the privacy interests that accompanied the right to possess them." Cook, 332 Or. at 609, 34 P.3d 156.
The ruling in Cook was preceded by a discussion by the court of cases all of which involved conduct. For instance, in Morton the Supreme Court rejected the state's argument that the defendant's dropping a container as she was being arrested constituted an "abandonment" of her interests in the container. 326 Or. at 470, 953 P.2d 374. In contrast, the court held in State v. Purvis, 249 Or. 404, 410-11, 438 P.2d 1002 (1968), that the defendant had abandoned any privacy interest in items that he discarded in ash *140 trays and waste baskets because, by placing the items there, he had impliedly authorized them to be hauled away. In State v. Belcher, 306 Or. 343, 759 P.2d 1096 (1988), the defendant left behind a backpack after engaging in a fight in a tavern. The court agreed with the state's argument that the defendant had abandoned the backpack. 306 Or. at 345-46, 759 P.2d 1096. Finally, in State v. Pidcock, 306 Or. 335, 759 P.2d 1092 (1988), cert. den., 489 U.S. 1011, 109 S. Ct. 1120, 103 L. Ed. 2d 183 (1989), a briefcase was found along the side of a road and turned over to police who searched it for identification. At the time, the defendant was still actively attempting to recover the briefcase, leading the court to reject the state's argument that the defendant had abandoned the property in a constitutional sense. 306 Or. at 339, 759 P.2d 1092. In each of the above cases, at issue was whether an act or conduct by the defendant manifested an intent permanently to relinquish possessory and privacy interests in a personal effect.
This case differs from the above cases and from Cook in several ways. First, defendant's intent was manifested by his words rather than his conduct. Pursuant to an investigation focused on the driver of the vehicle, defendant, a passenger in the vehicle, was directly asked whether any of his belongings remained in the car. Second, while in the view of the officer, defendant never exercised any kind of possessory interest in the cigarette pack. Consequently, it is defendant's response to the officer's inquiry that is determinative of his intent, unlike the defendant in Cook, where the court focused on whether the defendant's conduct of "stepping away" demonstrated an intent to relinquish what it found to be his asserted possessory and privacy interests. Here, defendant's verbal response, understood in the context of the circumstances, was not unlike a person who fails to assert his constitutional right to remain silent or to request an attorney after being given a Miranda warning. A direct implication of his negative answer to the officer's direct inquiry was that he chose at the time not to assert any possessory or privacy interest in the cigarette pack.
In State v. Ray, 164 Or.App. 145, 990 P.2d 365 (1999), vac'd and rem'd on other grounds, 332 Or. 628, 34 P.3d 168 (2001), we confronted a similar issue. In that case, the defendant was a passenger in a car that had been stopped because it had expired registration stickers. The officer asked the occupants to step outside of the car. While talking with the defendant, he noticed a black gym bag on the floor in front of the right passenger seat where the defendant had been seated. The officer asked the driver if he could search the car, and the driver agreed. He then asked the defendant if he had any personal property in the car, and the defendant said, "No." A search of the bag resulted in the discovery of controlled substances. At a hearing on the defendant's motion to suppress, the defendant testified that the bag belonged to him. We framed the issue as whether the defendant had abandoned his privacy interest in the bag under Article I, section 9, when he told the officer that he did not have any property in the car. Ray, 164 Or.App. at 151, 990 P.2d 365. We reasoned that, because the officer gave the defendant the opportunity to declare that the gym bag was his before the search occurred, defendant abandoned his interest before the search occurred. Id. at 153, 990 P.2d 365.
That reasoning applies in this case. An "abandonment" of Article I, section 9, interests in personal property occurs when there is a voluntary relinquishment of those interests. State v. Knox, 160 Or.App. 668, 675, 984 P.2d 294, rev. den., 329 Or. 527, 994 P.2d 128 (1999). We hold on these facts that, through his reply to the officer's inquiry disclaiming that any of his possessions were in the car, defendant manifested his intent to voluntarily relinquish his privacy and possessory interests in the cigarette pack. We find no evidence in the record or in his response to the officer to suggesting that defendant did not intend to relinquish all of his interests. Moreover, defendant's response appears to have been completely voluntary and not made under the coercive effect of a police command to a criminal suspect, unlike in Cook. Under these circumstances, the subsequent *141 seizure and the search of the cigarette pack by the police officer was reasonable.
Affirmed.
NOTES
[*] Deits, C.J., vice Kistler, J., resigned.
[1] Although defendant appears to have raised a similar issue under the Fourth Amendment to the United States Constitution in his memorandum of authorities to the trial court, he makes no argument under that provision on appeal.
[2] The officer was asked at the hearing, "And at the point in time given the conversation you'd had with [defendant] about having anything else, when you searched did you, did you believe [defendant] had anything in that vehicle?" The officer answered, "No, I didn't." He was then asked, "So you took him at his word?" The officer answered, "Yes."
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78 P.3d 756 (2003)
103 Hawai`i 1
Clarence P. CABATBAT, Claimant-Appellant,
v.
COUNTY OF HAWAI'I, DEPARTMENT OF WATER SUPPLY, Employer-Appellee, Self-Insured.
No. 23836.
Supreme Court of Hawai'i.
November 4, 2003.
As Corrected December 8, 2003.
*757 Nelson H. Kinoshita, on the briefs, for claimant-appellant.
Joseph K. Kamelamela, Deputy Corporation Counsel, County of Hawai'i, on the briefs, for employer-appellee, self-insured.
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.
Opinion of the Court by ACOBA, J.
We hold that the Labor and Industrial Relations Appeals Board (the Board) erred in relying exclusively on a part of the American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed., AMA 1993) [hereinafter AMA Guides] in affirming a Hawai'i Department of Labor and Industrial Relations Disability Compensation Division (DCD) decision determining that Claimant-Appellant Clarence Cabatbat (Cabatbat) suffered a permanent partial disability (PPD) of eight percent as a result of a work-related injury to his temporomandibular joint (TMJ).[1] We hold further that Hawai`i Administrative Rule (HAR) § 12-10-21 permitted the use of other guides, and the Board's decision was against the reliable, probative, and substantial evidence on the record.
I.
On January 25, 1994, while driving a County of Hawai`i van in the course of his employment as a pipefitter with Employer-Appellee County of Hawai`i, Department of Water Supply (the County), Cabatbat was rear-ended by another vehicle. Cabatbat sustained injuries to his left foot, neck, and mandible near the TMJ as a result of this accident.
Immediately after the accident, Cabatbat sought treatment with Roy Koga, M.D. In May of 1994, Dr. Koga referred Cabatbat to Dentist Neal Nakashima to begin extensive treatment for his TMJ condition.[2] On August 29, 1995, Dr. Nakashima submitted a report to the County detailing Cabatbat's progress during Phase I, the pain management phase of the treatment plan. The report indicated that Cabatbat's TMJ injury had improved by ninety percent. By November 2, 1995, Dr. Nakashima listed Cabatbat's status as "nearly stable." On April 3, 1996, Dr. Nakashima submitted an update which placed Cabatbat's progress in Phase II of the treatment plan at sixty to seventy percent, and rated Cabatbat's status as "stable." By August 9, 1996, Dr. Nakashima's updated treatment plan report noted that Cabatbat had achieved ninety percent progress in Phase II.
On September 25, 1996, the DCD filed a stipulation and settlement agreement between Cabatbat and the County concerning the injuries to Cabatbat's neck and left foot. The parties agreed that Cabatbat suffered eight percent PPD for the neck injury, and twelve-point-five percent PPD for the injury to the left foot. Cabatbat's PPD rating in regard to his TMJ was not determined at this time.
*758 On or around February 12, 1997, Dr. Nakashima submitted a PPD rating for Cabatbat's TMJ injury.[3] Dr. Nakashima rated Cabatbat's permanent impairment for his TMJ condition at twenty-three percent of the whole person. In reaching his rating, Dr. Nakashima relied upon the "Recommended Guide to the Evaluation of Permanent Impairment of the Temporomandibular Joint"[4] [hereinafter, Recommended Guide], and the AMA Guides.[5]
On June 4, 1997, the County made a PPD rating examination appointment for Cabatbat with Dentist Henry Hammer. Dr. Hammer concluded that it would be premature to determine Cabatbat's PPD at that time. Cabatbat continued to receive treatment from Dr. Nakashima. On November 12, 1997, Dr. Nakashima's second TMJ rating report was filed with the DCD. See supra note 5. Again, Dr. Nakashima determined that Cabatbat's TMJ injury resulted in a twenty-three percent PPD rating.[6]
Thereafter, the County requested that Cabatbat undergo an independent medical examination by Dentist Todd Tasaki for the TMJ condition. In his report dated June 1, 1998, Dr. Tasaki rendered a rating of eighteen percent PPD. Dr. Tasaki's rating was based on Cabatbat's TMJ range of motion restriction as well as dietary restrictions such as the avoidance of "hard" foods.
The County subsequently requested a clarification of the rating provided by Dr. Tasaki, asking that he limit his consideration to the guidelines set forth by the AMA Guides, Fourth Edition (1993). The DCD County specifically requested that Dr. Tasaki limit his rating evaluation to the guidelines indicated on page 231, § 9.3, Mastication and Deglutition Table 6 of the AMA Guides (Fourth Edition). Table 6 of § 9.3 allows for an impairment rating of between five and nineteen percent for a diet limited to semisolid or soft foods.
On September 30, 1998, Dr. Tasaki provided an impairment rating of between six and eight percent of the whole person for Cabatbat's TMJ injury based on the AMA Guides, as designated by the County. However, Dr. Tasaki indicated that the AMA Guides alone did not provide an adequate basis for assessing Cabatbat's impairment[7]:
*759 The AMA Guides inappropriately restrict[] impairment rating with regard to temporomandibular disorders (TMD) solely to consistency of food one is able to chew. In many cases, this is an inaccurate assessment of a patient's TMD impairment. In fact, in the AMA Guides, the [TMJ] and [TMD] in general are not rated in the same manner as other major joints of the body even though the same criteria for rating can be applied to the [TMJ]. For this reason, I do not recommend sole use of the AMA Guides. Throughout the AMA Guides, for any other joint in the body, one [can] find criteria for rating such as limitation of range of motion, changes to the osseous or soft tissues within the joint, improper meniscus or disc relationship.... Again, these are all criteria which can be applied to impairment related to TMD. This kind of inequity and inconsistency makes pure reliance on the AMA Guides inappropriate in a large number of TMD cases.... In conclusion, while there are times that the AMA Guides provide[ ] a fair assessment for rating a[TMD], in Mr. Cabatbat's case, the condition within the joint (left TMJ) and jaw muscles and the long term impact on his life is not adequately assessed using the AMA Guides. I stand by my previous impairment rating of [eighteen] percent of the whole person for the TMD condition.
(Emphases added.)
On October 2, 1998, Dr. Nakashima submitted a letter which stated that his rating of Cabatbat's TMJ injury was determined using the "guide for permanent impairment established by the American Academy of Head Neck Facial Pain and Orthopedics. It also takes into consideration the AMA Guide[s] for permanent impairment. This is the most widely used method in dentistry for determining jaw joint permanent impairment."[8] (Emphasis added.)
On October 2, 1998, a hearing was held before the DCD to determine Cabatbat's temporary total disability (TTD) and PPD. On December 4, 1998, the DCD awarded Cabatbat $394.21 in TTD and $12,005.76 in PPD. The DCD determined Cabatbat's PPD rating to be eight percent of the whole person, based upon the AMA Guides.[9] On December 8, 1998, Cabatbat filed a request for reconsideration by the DCD and, alternatively, an appeal and notice of appeal of the December 4, 1998 DCD decision to the Board.
Reconsideration of the decision was denied. Cabatbat's sole issue on appeal to the Board was whether the DCD erred by relying on the AMA Guides rather than the Recommended Guide to determine Cabatbat's PPD rating. Cabatbat argued that the DCD should have found his PPD rating to be eighteen percent. Both parties agreed to waive an evidentiary hearing and to submit the matter on the record and on position memoranda.
On July 2, 1999, Dr. Nakashima dispatched a letter to Cabatbat's attorney, who in turn transmitted it to the Board, stating that he did not disagree with Dr. Tasaki's PPD rating of eighteen percent. Before the Board issued a decision and order, Cabatbat's attorney arranged to have Dentist Armand Kainoa Chong review the record. On September 13, 1999, Dr. Chong concluded that he *760 agreed with both of the PPD rating percentages arrived at by Dr. Tasaki and Dr. Nakashima.[10] Dr. Chong further noted that "[t]hese percentages were determined by using the guide for permanent impairment established by the American Academy of Head Neck Facial Pain and Orthopedics, which is the most widely used method for determining permanent impairment for the TMJ. The [AMA] Guides for Permanent Impairment were also taken into consideration." Dr. Chong went on to discuss the inadequacy of the AMA Guides by commenting that
there are a couple of important things to note, regarding the [AMA] Guides. The [AMA] Guides ... make[ ] clear that [they] have limitations.... The Guides also state that [they are] not the sole basis for a PPD rating. ... The methodology using the Guide for permanent impairment established by the American Academy of Head Neck Facial Pain and Orthopedics is much more defined and practical.
(Emphasis added.) Cabatbat provided Dr. Chong's opinion to the Board on September 16, 1999.
On October 4, 2000, the Board issued its decision and order affirming the DCD rating of eight percent PPD. The Board's only conclusion of law was that "[Cabatbat] sustained an eight percent permanent disability of the whole person for the TMJ condition sustained on January 25, 1994." The Board stated that it based its "conclusion on the rating by Dr. Tasaki using the AMA Guides."
II.
On October 24, 2000, Cabatbat appealed the Board's October 4, 2000 decision and order to this court. He contends (1) that the Board erred in its determination that Cabatbat's impairment rating for the TMJ injury be limited to the AMA Guides and (2) that the Board erred in its determination that Cabatbat sustained an eight percent permanent disability of the whole person for his TMJ injury.
We review agency decisions based on the standards set forth in Hawai'i Revised Statutes (HRS) § 91-14(g) (1993).[11] This court applies a clearly erroneous standard of review to the Board's findings. "[A]ppeals taken from findings set forth in decisions of the Board are reviewed under the clearly erroneous standard. Thus, the court considers whether such a finding is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." Bocalbos, 93 Hawai`i at 124, 997 P.2d at 50 (citations, internal quotation marks, brackets, ellipses, and emphasis omitted). "A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is left with the definite and firm conviction that a mistake has been made." Id. (citation and internal quotation marks omitted). Additionally, the Board's "conclusions of law ... are freely reviewable to determine if the agency's decision was in violation of constitutional or statutory provisions, in excess of statutory authority or jurisdiction of agency, or affected by other error of law." Poe v. Hawai`i Labor Relations Bd., 87 Hawai`i 191, 195, 953 P.2d 569, 573 (1998).
III.
In connection with Cabatbat's first point, HAR Title 12, Subtitle 3, Chapter 10, *761 Subchapter 2, § 12-10-21, entitled "Disabilities," states, in relevant part that "[i]mpairment rating guides issued by the American Medical Association, American Academy of Orthopedic Surgeons, and any other such guides which the director deems appropriate and proper may be used as a reference or guide in measuring a disability."[12] (Emphasis added.) "The general principles of construction which apply to statutes also apply to administrative rules. As in statutory construction, courts look first at an administrative rule's language." Int'l Bhd. of Elec. Workers, Local 1357 v. Hawaiian Tel. Co., 68 Haw. 316, 323, 713 P.2d 943, 950 (1986) (citing 1A Sutherland Statutory Construction §§ 31.06 at 532 (4th ed. 1985 Rev.); Kaiama v. Aguilar, 67 Haw. 549, 553, 696 P.2d 839, 842 (1985)); see also Brown v. Thompson, 91 Hawai`i 1, 9, 979 P.2d 586, 594 (1999). Thus, because an "interpretation of a statute is ... a question of law reviewable de novo, under the right/wrong standard," Bank of Hawai`i v. DeYoung, 92 Hawai`i 347, 351, 992 P.2d 42, 46 (2000), the interpretation of a rule presents a question of law. We review the Board's interpretation of HAR § 12-10-21, then, under the right/wrong standard.
HAR § 12-10-21, by its terms, provides that the AMA Guides may be used to determine impairment ratings. HAR § 12-10-21 goes on to state that "an employee shall be deemed totally disabled" if the employee is unable to complete a regular daily shift due to an injury.[13] (Emphasis added.) In this context,
this court has subscribed to the proposition that where the verbs "shall" and "may" are used in the same statute, especially where they are used in close juxtaposition, we should infer that the legislature realized the difference in meaning and intended that the verbs used should carry with them their ordinary meanings.
Gray v. Admin. Dir. of the Court, State of Hawai`i, 84 Hawai'i 138, 149, 931 P.2d 580, 591 (1997) (citation, internal quotation marks, and brackets omitted) (emphases added); see also Krystoff v. Kalama Land Co., 88 Hawai`i 209, 214, 965 P.2d 142, 147 (1998). Thus, "the close proximity of the contrasting verbs `may' and `shall' requires a non-mandatory, i.e. a discretionary, construction of the term `may,'" Gray, 84 Hawai`i at 149, 931 P.2d at 591. Therefore, HAR § 12-10-21, which states that the AMA Guides may be used as a reference, permits reliance on the AMA Guides, but does not mandate their use to the exclusion of other appropriate guides.
The Board, however, construed HAR § 12-10-21 to require the use of the AMA Guides only. In rejecting the ratings determined pursuant to the Recommended Guide, the Board gave weight only to the AMA Guides, to the exclusion of all other guides. See discussion supra Part I. But, correctly construed, HAR § 12-10-21 does not preclude the use of guides other than the AMA Guides. Thus, the Board's construction of HAR § 12-10-21 was wrong.
IV.
Moreover, a restrictive interpretation of HAR § 12-10-21 runs afoul of the liberal construction to be afforded the provisions of HRS chapter 386 (1993 & Supp.2002).[14] In Respicio v. Waialua Sugar Co., 67 Haw. 16, 675 P.2d 770 (1984), this court observed that "Hawai`i's workers' compensation statute is to be accorded beneficent and liberal construction in favor of the employee, to fulfill the humanitarian purposes for which it was enacted." Id. at 18, 675 P.2d at 772. Such a policy has been in effect since the early twentieth century. See Davenport v. City & County of Honolulu, 100 Hawai`i 481, 491, 60 P.3d 882, 892 (2002) ("It is well-established in *762 Hawai`i that chapter 386 is social legislation that is to be interpreted broadly."); Shipley v. Ala Moana Hotel, 83 Hawai`i 361, 365, 926 P.2d 1284, 1288 (1996) ("[W]orkers' compensation laws should be liberally construed in order to accomplish the intended beneficial purposes of the statute."); Silva v. Kaiwiki Milling Co., 24 Haw. 324, 329 (Terr.1918) ("Compensation acts being highly remedial in character, though in derogation of the common law, should generally be liberally and broadly construed to effectuate their beneficent purposes.").
HAR § 12-10-21 is promulgated pursuant to HRS § 386-72 (1993). HRS § 386-72 authorizes the director of the department of labor and industrial relations (director) to adopt rules and provides that, "[i]n conformity with and subject to chapter 91, the [director] shall make rules, not inconsistent with this chapter, which the director deems necessary for or conducive to its proper application and enforcement." (Emphasis added.) Hence, HAR § 12-10-21 may not conflict with the provisions of HRS chapter 386.
In that regard, HRS § 386-3 (1993 & Supp.2002) provides that, "[i]f an employee suffers personal injury ... in the course of the employment, ... the employee's employer... shall pay compensation to the employee[.]" (Emphasis added.) Pursuant to HRS § 386-32 (1993 & Supp.2002), "[w]here a work injury causes permanent partial disability, the employer shall pay the injured worker compensation in an amount" computed under HRS § 386-32. (Emphasis added.) Under HRS § 386-71 (1993), the director must "take all measures necessary for[ ] the prompt and proper payment of compensation." (Emphasis added.)
Under the foregoing provisions, payment of benefits which fails to properly compensate an injured worker would be antithetical to a liberal and broad construction which was meant to effectuate the law's beneficent purposes. Under the circumstances of this case as discussed herein, a restrictive application of HAR § 12-10-21 would result in inadequate compensation and render HAR § 12-10-21 inconsistent with HRS chapter 386.
V.
Given a proper reading of HAR § 12-10-21, the Board's decision to rely solely upon a part of the AMA Guides for the disability rating was clearly erroneous in view of the reliable, probative, and substantial evidence on the record. See HRS § 91-14(g)(5).
The Board made the following relevant findings of fact (findings):
6. The record contains two undated TMJ impairment ratings by Dr. Nakashima. Both of these ratings placed [Cabatbat's] permanent impairment for his TMJ condition at twenty-three percent of the whole person. Dr. Nakashima used two guides, the Recommended Guide to the Evaluation of Permanent Impairment of the Temporomandibular Joint ("Recommended Guide") and the American Academy of Head, Facial, Neck Pain and TMJ Orthopedics, to rate [Cabatbat's] permanent impairment.[15]
7. [Cabatbat] was also rated by Dr. Todd Tasaki, a dentist, on June 1, 1998. Dr. Tasaki rated [Cabatbat's] permanent impairment for his TMJ disorder at eighteen percent of the whole person. Dr. Tasaki based his June 1 rating on range of motion restriction, as well as, diet restricted to avoidance of hard foods.
8. When asked by [the] Employer in September 1998, to rate [Cabatbat's] permanent impairment using the AMA Guides, Dr. Tasaki rated [Cabatbat's] impairment at six to eight percent of the whole person based on dietary restrictions. This section of the AMA Guides allows a range of five percent to nineteen percent impairment of the whole person when diet is limited to semisolid or soft foods. Under the AMA Guides, dietary restrictions are considered to be the most objective criteria by which to evaluate permanent impairment. The AMA Guides further allow other effects of the TMJ *763 condition to be considered in conjunction with parts of the AMA Guides that deal with the nervous system or pain. We credit Dr. Tasaki's rating done under the AMA Guides.
(Emphasis added.)
VI.
Initially, we note that Drs. Nakashima and Tasaki did consider the AMA Guides in their evaluation of Cabatbat's impairment. In contrast to the Board's findings, the evidence on the record demonstrates that Dr. Nakashima did rely in part on the AMA Guides in evaluating Cabatbat's impairment. Dr. Nakashima related that his rating of Cabatbat's TMJ injury was determined using the "guide for permanent impairment established by the American Academy of Head Neck Facial Pain and Orthopedics. It also takes into consideration the AMA Guide[s] for permanent impairment." (Emphasis added.)
Dr. Tasaki asserted that the AMA Guides do not rate TMJ disorders in the same manner that other joint disorders are rated. Dr. Tasaki reasoned that TMJ disorders could be rated by applying the same criteria used within the AMA Guides to rate other joint disorders. Thus, Dr. Tasaki also relied in part upon the AMA Guides' standards for rating impairments caused by joint disorders. See supra note 7.
Additionally, Dr. Chong concluded that Cabatbat's impairment rating was "determined by using the guide for permanent impairment established by the American Academy of Head Neck Facial Pain and Orthopedics[.]... The [AMA] Guides for Permanent Impairment were also taken into consideration." (Emphasis added.)
VII.
The Board also erred in relying solely on the AMA Guides because the AMA Guides themselves instruct that they should not be the only factor considered in assessing impairments. The AMA Guides state that
[i]t should be understood that the Guides do[ ] not and cannot provide answers about every type and degree of impairment.... The physician's judgment and his or her experience, training, skill, and thoroughness in examining the patient and applying the findings to Guides' criteria will be factors in estimating the degree of the patient's impairment.
AMA Guides at 3 (emphases added). Thus, the AMA Guides direct that the physician's judgment is a factor to be considered when determining an impairment rating. The County's independent expert, Dr. Tasaki, specifically declared that the AMA Guides inadequately addressed impairments that resulted from TMJ disorders. See discussion supra Part I. Dr. Chong pointed out the limiting language in the AMA Guides. See discussion supra Part I. All three dentists judged the AMA Guides to be inadequate in evaluating TMJ impairments; yet, the Board failed to consider their judgments as factors in determining Cabatbat's PPD rating.
The AMA Guides further emphasize that "impairment percentages derived according to Guides criteria should not be used to make direct financial awards or direct estimates of disabilities." AMA Guides at 5.[16] The AMA Guides caution that disability determinations should not be based solely on the Guides; however, the Board relied exclusively upon an impairment rating "derived according to the Guides criteria," despite this limiting language. Id.
In In re Wal-Mart Stores, 145 N.H. 635, 765 A.2d 168 (2000), the Supreme Court of New Hampshire held that the compensation appeals board properly deviated from the AMA Guides to accurately evaluate the respondent's impairment. Id. at 172. In that case, the court observed that New Hampshire's workers' compensation statute specified *764 that the AMA Guides were to be used in determining permanent impairment. Id. However, the court explained that "[t]he AMA Guides expressly allow[ ] a physician to deviate from the guidelines if the physician finds it necessary to produce an impairment rating more accurate than the recommended formula can achieve." Id. (quoting Appeal of Rainville, 143 N.H. 624, 732 A.2d 406, 412 (1999) ("[the AMA Guides] do[ ] not and cannot provide answers about every type and degree of impairment because of the infinite variety of human disease, and the constantly evolving field of medicine, and the complex process of human functioning" (quoting the AMA Guides, Fourth Edition (1993), at 3)).
Similarly, in Slover Masonry, Inc. v. Indus. Comm'n of Arizona, 158 Ariz. 131, 761 P.2d 1035 (1988), the Arizona Supreme Court held that an administrative law judge (ALJ) is not bound to follow the AMA Guides as the sole measure of impairment. Id. at 1036. The court reasoned that the "ALJ must consider all competent and relevant evidence in establishing an accurate rating of functional impairment, even if a medical expert asserts that the AMA Guides are perfectly adequate to measure loss of motion." Id. at 1040 (emphasis added). The court acknowledged that
[t]he AMA Guides are only a tool adopted by administrative regulation to assist in ascertaining an injured worker's percentage of disability. Thus, where the AMA Guides do not truly reflect a claimant's loss, the ALJ must use his discretion to hear additional evidence and, from the whole record, establish a rating independent of the AMA recommendations.
Id. (emphasis added).
According to the AMA Guides and Drs. Nakashima, Tasaki, and Chong, the Board should not have relied solely upon the AMA Guides to evaluate Cabatbat's TMJ injury. Under the circumstances, the AMA Guides would "not truly reflect" Cabatbat's TMJ impairment. Id.
VIII.
The Board stated in its findings that "[t]he authors [of the Recommended Guide] sought to have the Recommended Guide endorsed by the AMA and to have it included in the Fourth Edition of the AMA Guides. It was not included as the most objective criteria to evaluate permanent impairment." The Board cites no source or authority for this statement, and none is evident in the record. Hence there is no reliable, probative, or substantial evidence in the record to support this statement.
The Board also found that "[t]he AMA Guides further allow other effects of the TMJ condition to be considered in conjunction with parts of the AMA Guides that deal with the nervous system or pain." In the same vein, the County argues that Drs. Nakashima, Tasaki, and Chong failed to consider "the effects of the TMJ condition with parts of the AMA Guides that deal with the nervous system or pain." However, the DCD restricted Dr. Tasaki's analysis to § 9.3, Table 6 of the AMA Guides. See supra page 5. As previously mentioned, this table allows for an impairment rating of TMJ disorders based only on dietary restrictions. Thus, it is incongruous for the Board to suggest or the County to argue that the dentists could have provided ratings that took into consideration the nervous system or pain, when the DCD specifically limited the impairment rating analysis to § 9.3, Table 6 of the AMA Guides.
IX.
On the other hand, all three dentists believed that Cabatbat's TMJ injury should have been assessed according to criteria such as those found in the Recommended Guide. As Drs. Nakashima and Chong noted, the Recommended Guide is "the most widely used method in dentistry for determining jaw joint permanent impairment."[17] The Board *765 therefore erred when it disregarded the reports applying the criteria found in the Recommended Guide.
X.
In conclusion, neither HAR § 12-10-21, nor the AMA Guides mandate that impairment ratings be determined solely based upon the AMA Guides. The Board's interpretation of HAR § 12-10-21 was wrong. The requirement to use a part of the AMA Guides, to the exclusion of the Recommended Guide, under the circumstances of this case, would violate HRS chapter 386. Finally, there is reliable, probative, and substantial evidence on the record that the Recommended Guide appropriately addressed Cabatbat's TMJ impairment. For the foregoing reasons, the October 4, 2000 decision and order of the Board is vacated, and the case remanded for a redetermination of Cabatbat's PPD rating.
NOTES
[1] The temporomandibular joint pertains to "the temporal bone and the mandible." Richard Sloane, The Sloane-Dorland Annotated Medical-Legal Dictionary 518 (West Supp.1992). The temporal bone is "one of two irregular bones forming part of the lateral surfaces and base of the skill, and containing the organs of hearing," and the mandible is "the bone of the lower jaw." Richard Sloane, The Sloane-Dorland Annotated Medical-Legal Dictionary 515 (West 1987).
[2] Temporomandibular Joint Syndrome is
[a] dysfunction of the temporomandibular joint marked by a clicking or grinding sensation in the joint and often by pain in or about the ears, muscle tiredness and slight soreness upon waking, and stiffness of the jaw or actual trismus; it results from mandibular overclosure, condylar displacement, or stress, with deforming arthritis an occasional factor.
Bocalbos v. Kapiolani Med. Center for Women & Children, 93 Hawai`i 116, 118, 997 P.2d 42, 44 (2000) (quoting Richard Sloane, The Sloane-Dorland Annotated Medical-Legal Dictionary 696 (West 1987)).
[3] Dr. Nakashima's TMJ rating report does not contain a date; however, Cabatbat's attorney transmitted this report to the DCD on February 14, 1997. On the fax cover sheet, the date of the TMJ rating report is stated as February 12, 1997.
[4] Douglas J. Phillips, Jr. D.D.S., at al., 7 Journal of Craniomandibular Practice 13 (1989).
[5] Both Cabatbat and the County indicate in their opening and answering briefs that Dr. Nakashima relied upon the Recommended Guide and the "American Academy of Head, Facial, Neck Pain and TMJ Orthopedics." However, in a letter dated March 10, 1997 addressed to the DCD, Dr. Nakashima wrote that he relied upon the Recommended Guide and the AMA Guides. In a second TMJ rating report dated November 12, 1997, Dr. Nakashima again determined that Cabatbat's permanent impairment for his TMJ injury was twenty-three percent of the whole person. In this second report, Dr. Nakashima indicated that he based his conclusions upon the Recommended Guide and the "American Academy of Head, Facial, Neck Pain and TMJ Orthopedics" [hereinafter, American Academy].
Cabatbat's opening brief refers to the American Academy as a guide; the County's answering brief does not use the term "guide." It is unclear from the record whether the American Academy title refers to a guide; also, it is unclear whether it differs from the Recommended Guide, which was written by the American Academy committee on permanent impairment. The Recommended Guide and the guide for permanent impairment established by the American Academy appear to be one and the same. In any event, for the purposes of this opinion, we refer to the Recommended Guide.
[6] In Dr. Nakashima's February 12, 1997 TMJ rating report, he indicated a six percent rating for Cabatbat's inability to eat hard foods. In the November 12, 1997 TMJ rating report, Dr. Nakashima indicated a five percent rating for the effect the TMJ had on Cabatbat's diet.
[7] Dr. Tasaki did not identify the use of any guide when he determined Cabatbat's impairment rating to be eighteen percent; however, Dr. Tasaki did note that TMJ disorders can be rated using the same criteria the AMA Guides use for other joint disorders.
In this connection, the preface to the Recommended Guide states that it "used the same values [that the AMA Guides] use[ ] ... for other disk-protected and functional joints." It is apparent that the Recommended Guide uses the same criteria that the AMA Guides use to rate other joint disorders. Thus, it appears that Dr. Tasaki determined Cabatbat's impairment rating to be eighteen percent by relying on the same or similar criteria that the AMA Guides employ to evaluate all joint disorders except for TMJ disorders.
[8] As noted, Dr. Nakashima states that the guide established by the American Academy takes the AMA Guides into consideration. The Recommended Guide states in its preface that it uses the same values that the AMA Guides use to rate joint impairments. See supra note 5.
[9] In a letter dated August 8, 1998, the DCD wrote to Cabatbat's attorney to discuss the use of the AMA Guides. The letter indicated some apparent inconsistency in the use of guides:
[W]e discussed the ratings received from Dr. Nakashima and Dr. Tasaki and we could not agree on whether the American Academy of Head, Facial, Neck Pain and TMJ Orthopedic guide was accepted by the Department of Labor to determine TMJ PPD.... You ... indicated that the Department of Labor does accept this guide and you previously sent our office a copy of a decision on a 1986 claim wherein other guides were considered. As a reminder, I advised you that to my knowledge the Department of Labor only recognizes the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition and Dr. Nakashima's rating is not valid since he considered another guide as a basis for his rating. Secondly, I advised you that I will be sending Dr. Tasaki a letter for further clarification as to how he arrived at his rating utilizing only the AMA Guides, 4th Edition.
(Emphasis added.)
[10] Dr. Tasaki determined Cabatbat's PPD rating to be eighteen percent. Dr. Nakashima determined Cabatbat's PPD rating to be twenty three percent. Dr. Nakashima noted that Dr. Tasaki's PPD rating was "pretty close" to his own; thus, Dr. Nakashima did not disagree with Dr. Tasaki's PPD rating of eighteen percent.
[11] HRS § 91-14, entitled "Judicial review of contested cases," provides in part as follows:
(g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or order are:
(1) In violation of constitution or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
[12] HAR § 12-10-21, entitled "Disabilities," states in its entirety:
(a) Impairment rating guides issued by the American Medical Association, American Academy of Orthopedic Surgeons, and any other such guides which the director deems appropriate and proper may be used as a reference or guide in measuring a disability.
(b) If an employee is unable to complete a regular daily work shift on account of a work injury, the employee shall be deemed totally disabled for that day.
(Emphases added.)
[13] See supra note 12.
[14] HRS Chapter 386 is Hawai'i's Workers' Compensation Law.
[15] See supra note 5.
[16] The DCD and the Board relied upon the Fourth edition of the AMA Guides in this case. See supra note 9. The fifth edition of the AMA Guides was not in effect at the time of this case; however, the fifth edition does reiterate that "the Guides [are] not to be used for direct financial awards nor as the sole measure of disability. The Guides provide[ ] a standard medical assessment for impairment determination and may be used as a component in disability assessment." American Medical Association, Guides to the Evaluation of Permanent Impairment 12 (5th ed., AMA 2001) (emphases added).
[17] To reiterate, Dr. Nakashima stated that
[t]he rating percentage for [Cabatbat] was determined using the guide for permanent impairment established by the American Academy of Head Neck Facial Pain and Orthopedics. It also takes into consideration the AMA Guide for permanent impairment. This is the most widely used method in dentistry for determining jaw joint permanent impairment.
As previously noted, Dr. Chong agreed with the rating percentages arrived at by Drs. Tasaki and Nakashima, and noted that "[t]hese percentages were determined by using the guide for permanent impairment established by the American Academy of Head Neck Facial Pain and Orthopedics, which is the most widely used method for determining permanent impairment for the TMJ."
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2549611/
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78 P.3d 280 (2003)
206 Ariz. 311
Bruno AVILA and Cresencia Avila, husband and wife, Plaintiffs-Appellants,
v.
Phyllis BIEDESS, Director of the Arizona Health Care Cost Containment System, Defendants-Appellees,
Falk Kurti; Sequine Kurti, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees,
v.
Phyllis Biedess, Director of the Arizona Health Care Cost Containment System, Defendant-Appellant.
Nos. 1 CA-CV 02-0648, 1 CA-CV 02-0741.
Court of Appeals of Arizona, Division 1, Department D.
October 28, 2003.
*282 William E. Morris Institute for Justice By Thomas Berning and Southern Arizona Legal Aid, Inc. By Lydia Glasson, Tucson, Attorneys for Plaintiffs-Appellants Avila.
Anthony B. Ching, Tempe, Attorney for Plaintiffs-Appellees Kurti.
Johnston & Kelly, P.L.C. By Logan T. Johnston, Phoenix, Attorneys for Defendants-Appellees AHCCCS and Biedess.
Arizona Civil Liberties Union By Laura Carroll, Cooperating Counsel, Pamela K. Sutherland, Legal Director and James E. Rogers College of Law, University of Arizona By Andrew Silverman, Joseph M. Livermore, Professor and Director, Clinical Programs, Tucson, Amicus Curiae for Plaintiffs-Appellants Avila.
OPINION
IRVINE, Judge.
¶ 1 This appeal addresses whether Arizona's Title XIX Medicaid program and state-funded Premium Sharing Program violate the United States and Arizona Constitutions by denying benefits to aliens who have not been legal residents of this country for at least five years. We conclude that they do not.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 2 This appeal consolidates two superior court actions against the same defendant, the *283 Arizona Health Care Cost Containment System ("AHCCCS"). Both cases challenged the constitutionality of a state law limiting eligibility for Arizona's Title XIX Medicaid program, which is jointly funded by the federal government and the state.[1] Arizona Revised Statutes ("A.R.S.") section 36-2903.01(B)(5). Both cases also raised a challenge to the limitation as applied to a wholly state-funded health care program, the Premium Sharing Program.[2]
¶ 3 Section 36-2903.03(B), A.R.S., allows qualified aliens[3] to apply for Title XIX benefits if they entered the country prior to August 21, 1996, and were continuously present in the United States since that date. Qualified aliens who entered this country after August 21, 1996, are eligible only for emergency medical services until they have lawfully resided in the United States for five years. A.R.S. § 36-2903.03(B), (D). Arizona enacted this limitation on eligibility after Congress passed the Welfare Reform Act of 1996.[4] 8 U.S.C. §§ 1601-44. In the Act, Congress restricted public benefits in numerous ways. Specifically, federal law now provides that qualified aliens are not eligible for any federal means-tested public benefit, including Medicaid, unless they have lived in this country since before August 21, 1996, or have been a qualified alien for at least five years. 8 U.S.C. § 1613.
¶ 4 The plaintiffs in the first case are Faik and Sequine Kurti ("Kurtis"), citizens of Albania who came to the United States on September 24, 1998. They are qualified aliens who are indigent and claim they would be eligible for health care funded by AHCCCS or by Maricopa County but for the requirements in the Arizona statute limiting aliens who entered the United States after August 21, 1996 to emergency services until they have resided in this country for five years. The Kurtis sued AHCCCS, raising an equal protection challenge to the state statute and arguing that they should be eligible for AHCCCS benefits under either the Title XIX program or the state-funded Premium Sharing Program.[5] AHCCCS moved to dismiss the complaint for failure to state a claim, or for lack of standing on the grounds that the Kurtis had not applied for or were ineligible for the Premium Sharing Program. The superior court did not rule on the motion to dismiss, but granted a temporary restraining order determining that A.R.S. § 36-2903.03 is an unconstitutional violation of *284 equal protection as to Mr. Kurti.[6] The court later entered final judgment in the Kurtis' favor on this issue, pursuant to Rule 54(b), Arizona Rules of Civil Procedure ("A.R.C.P."), and AHCCCS timely filed this appeal.
¶ 5 The second case involves Bruno and Cresencia Avila ("Avilas"),[7] Mexican citizens who have been lawful permanent residents of the United States since April 16, 1999. Like the Kurtis, they are qualified aliens who are indigent and claim they would be eligible for health care funded by AHCCCS but for the requirements found in A.R.S. § 36-2903.03(B). The Avilas sued AHCCCS, raising an equal protection challenge to the state statute and arguing that they should be eligible for AHCCCS under the basic Title XIX program.[8] The parties cross-moved for partial summary judgment on, among other issues, equal protection. The superior court granted AHCCCS's motion for partial summary judgment, finding the statute constitutional, and entered a final judgment pursuant to Rule 54(b), A.R.C.P., in its favor. The Avilas timely filed this appeal.
¶ 6 Pursuant to Plaintiffs'[9] motion, the court consolidated the two appeals. The court also accepted an amicus curiae brief filed by the Arizona Civil Liberties Union ("AzCLU") in support of Plaintiffs.
ISSUES
1. Whether the federally-funded Title XIX AHCCCS program violates Plaintiffs' equal protection rights by utilizing federal eligibility standards that are based upon alien status?
2. Whether the wholly state-funded Premium Sharing Program violates Plaintiffs' equal protection rights by adopting the same standards?
DISCUSSION
I. GENERAL PRINCIPLES.
¶ 7 Plaintiffs challenge the constitutionality of A.R.S. § 36-2903.03(B), arguing that it violates their equal protection rights under both the federal and state constitutions. This Court reviews de novo the constitutionality of a statute. Little v. All Phoenix S. Community Mental Health Center, Inc., 186 Ariz. 97, 101, 919 P.2d 1368, 1372 (App.1995). We presume that a statute is constitutional and must construe it, if possible, to give it a constitutional meaning. State v. Bonnewell, 196 Ariz. 592, 594, ¶ 5, 2 P.3d 682, 684 (App.1999) (citing State Comp. Fund v. Symington, 174 Ariz. 188, 193, 848 P.2d 273, 278 (1993)). Ordinarily, the party challenging the constitutionality of a statute has the burden of proving it unconstitutional. Tucson Electric Power Co. v. Apache County, 185 Ariz. 5, 11, 912 P.2d 9, 15 (App.1995).
¶ 8 The Fourteenth Amendment to the United States Constitution provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws."[10] U.S. Const. amend. XIV, § 1. The word "person" in this context includes "both lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside." Graham v. Richardson, 403 U.S. 365, 371, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971).
*285 ¶ 9 Plaintiffs argue that the Arizona statute in question is subject to strict scrutiny review and that AHCCCS cannot demonstrate a compelling governmental interest justifying the disparate treatment of qualified aliens and United States citizens. Generally, a state law that discriminates against legal immigrants in the distribution of economic benefits is subject to strict scrutiny. See Graham, 403 U.S. at 375-76, 91 S. Ct. 1848. In some circumstances, however, this rule does not apply to state laws that adopt uniform federal guidelines regarding the eligibility of aliens for benefits. See, e.g., Sudomir v. McMahon, 767 F.2d 1456, 1466 (9th Cir.1985). In those instances, courts apply a rational basis standard of review, determining whether there is a rational relationship between the disparate treatment of citizens and aliens and some legitimate governmental purpose. Id. at 1465-66.
¶ 10 Courts follow a rational basis standard in such circumstances because the United States Constitution gives Congress plenary authority to legislate on immigration and alienage issues. U.S. Const. art. I, § 8, cl. 4; see Mathews v. Diaz, 426 U.S. 67, 81-85, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976) (finding that congressional restrictions on welfare benefits for aliens are subject to a rational basis analysis). Therefore, Congress "may distinguish and discriminate between citizens and aliens in ways that a state may not do on its own, and it may establish uniform national guidelines and policies dictating how States are to regulate and legislate issues relating to aliens." Doe, 773 N.E.2d at 409 (citations omitted).
¶ 11 In contrast, because the Fourteenth Amendment explicitly restricts state power, courts routinely strictly scrutinize state laws that create alienage classifications for distribution of economic benefits. See Cabell v. Chavez-Salido, 454 U.S. 432, 439, 102 S. Ct. 735, 70 L. Ed. 2d 677 (1982). As noted, an exception to this rule arises when the state law simply adopts national policies and guidelines. Doe v. Comm'r of Transitional Assistance, 773 N.E.2d 404, 409 (Mass. 2002).
II. FEDERALLY-FUNDED TITLE XIX PROGRAM.
¶ 12 AHCCCS asserts that Arizona has merely adopted the alienage restrictions on Medicaid benefits adopted by Congress in the Welfare Reform Act. Accordingly, it claims that Arizona law is consistent with and implements national immigration policy and, as a result, is subject only to rational basis review. See League of United Latin American Citizens v. Wilson, 997 F. Supp. 1244, 1254-55 (C.D.Cal.1997) (stating that the Welfare Reform Act "demarcate[s] a field of comprehensive federal regulation within which states may not legislate, and define[s] federal objectives with which states may not interfere."). The five-year eligibility restriction contained in the Welfare Reform Act (and incorporated into A.R.S. § 36-2903.03(B)) has been uniformly upheld by federal courts applying the rational basis standard. See, e.g., Lewis v. Thompson, 252 F.3d 567, 583-84 (2d Cir.2001) (Medicaid coverage for pregnant women); Aleman v. Glickman, 217 F.3d 1191, 1198-99 (9th Cir. 2000) (food stamps); Chicago v. Shalala, 189 F.3d 598, 605 (7th Cir.1999) (welfare benefits); Rodriguez v. United States, 169 F.3d 1342, 1347-48 (11th Cir.1999) (supplemental security income and food stamps).
¶ 13 Plaintiffs counter that Arizona has not adopted a "uniform" standard because the Welfare Reform Act does not create a uniform standard. While the Welfare Reform Act mandates the five-year eligibility standard for federal means-tested public benefits that Arizona has adopted in A.R.S. § 36-2903.03(B) (see 8 U.S.C. § 1613(a)), it also authorizes states to extend the period of ineligibility beyond five years (8 U.S.C. § 1612(b)(1)) or, conversely, permits states to provide state-funded Medicaid services to qualified aliens with less than five years' residence. 8 U.S.C. § 1622(a). In response to the Welfare Reform Act, states have adopted a wide variety of approaches (both more lenient and more restrictive than the federal approach) to providing non-emergency medical services to qualified aliens. See Zimmerman and Tumlin, Patchwork Policies: State Assistance for Immigrants Under Welfare Reform (The Urban Institute 1999), 30 *286 & Table 4.[11] Accordingly, Plaintiffs argue that there is no uniform federal law in this area and that Arizona's statute is subject to strict scrutiny review. We disagree.
¶ 14 The Title XIX portion of AHCCCS is a federally-funded means-tested public benefit and is subject to the mandatory five year legal residency restriction contained in federal law. States that opt to participate in Medicaid are required to accept federal standards under Title XIX in exchange for federal funding. Harris v. McRae, 448 U.S. 297, 301, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980). By adopting the alienage eligibility standards for its Title XIX program that the federal government requires for federally-funded benefits and joint federal/state programs, Arizona has followed federal immigration policy and furthered that national policy. See Cid v. South Dakota Dep't of Social Services, 598 N.W.2d 887, 892 n. 10 (S.D.1999) (finding that state has not only legitimate, but "compelling interest in implementing the national immigration policy and in implementing uniform rules regarding alien eligibility for certain welfare benefits").
¶ 15 We conclude that whether the state could have chosen to apply a more generous, or more restrictive, standard is irrelevant when Arizona has opted to use the federal criteria that are mandatory for federally-funded programs. The contention that a state law might be subject to strict (or perhaps "intermediate") scrutiny regarding equal protection because the state had the option to be more liberal with its public benefits than the federal government was rejected by the Ninth Circuit in Sudomir. In that case, the plaintiffs argued that whenever states may adopt more liberal eligibility standards than the federal government, as a matter of state policy, a refusal to do so should be subject to a higher level of scrutiny than the rational basis test. 767 F.2d at 1465-66. The court rejected this argument, ruling that "[t]o so hold would amount to compelling the states to adopt each and every more generous classification which, on its face, is not irrational." Id. at 1466. We agree.
¶ 16 This case is distinguishable from Graham and its progeny, which hold that states may not act inconsistently with federal immigration laws by enacting laws that differ from or conflict with federal immigration policy. See Graham, 403 U.S. at 378, 91 S. Ct. 1848. Arizona has done neither. It has followed the federal immigration guidelines. As the Massachusetts Supreme Court noted in Doe, it would "make no sense to say that Congress has plenary power to legislate national immigration policies and guidelines subject to a deferential (rational basis) standard of review, and then to hold that the equal protection clause of the Constitution restrains States from adhering to or adopting those national policies and guidelines because their actions are subject to a higher (strict scrutiny) standard of review." 773 N.E.2d at 409.
¶ 17 Plaintiffs rely upon Aliessa v. Novello, 96 N.Y.2d 418, 730 N.Y.S.2d 1, 754 N.E.2d 1085 (2001), as support for their position that strict scrutiny is required. In that case, the New York Court of Appeals applied a strict scrutiny analysis to conclude that New York's Medicaid statute terminating benefits for non-qualified aliens was unconstitutional. Id. at 1098-99. We find this case distinguishable. The New York statute differs from those in the Welfare Reform Act by being more generous to some sub-groups of aliens than others. Id. As the state statute differed from the federal law, the court properly held it to a strict scrutiny analysis. See Kurti I, 201 Ariz. at 170-71, ¶¶ 15-21, 33 P.3d at 504-05. The Arizona statute mirrors the federal Act, so a rational basis review is appropriate. See 8 U.S.C. § 1613(a); A.R.S. § 36-2903.03(B); Sudomir, 767 F.2d at 1464-66. To the extent that Aliessa concluded that even state laws mirroring the provisions of the Welfare Reform Act do not reflect a uniform national policy (see Aliessa, 730 N.Y.S.2d 1, 754 N.E.2d at 1098), we disagree with that portion of the analysis.
¶ 18 Plaintiffs argue that even in matters related to immigration policy (where Congress has broad authority), Congress cannot authorize the states to violate any lawful permanent resident alien's right to equal protection *287 of the law. Plaintiffs assert that Congress has done precisely that by authorizing Arizona, and the other states, to enact the five-year residency requirement for legal aliens, thereby creating disparate treatment between legal aliens and United States citizens. Amicus Curiae further asserts that this discriminatory treatment cannot pass even the rational basis test.
¶ 19 Because Arizona has adopted the eligibility requirements mandated by Congress for federal and joint federal and state programs, we review the Arizona statute under a rational basis standard, not a strict scrutiny one. Sudomir, 767 F.2d at 1464-66. Arizona's interests in complying with national immigration policy and allocating scarce public resources meet this test. See 8 U.S.C. § 1601 (in adopting alienage classifications in the Welfare Reform Act, Congress noted national interest in encouraging aliens to become self-reliant and in preventing availability of public benefits from acting as incentive for immigration); see also Cid, 598 N.W.2d at 892-93 (explaining that state agency has legitimate interest in implementing nation's immigration policy). Therefore, we hold that the application of the five-year limitation to the Title XIX AHCCCS program does not violate equal protection.
III. STATE-FUNDED PREMIUM SHARING PROGRAM.
¶ 20 The Premium Sharing Program requires separate analysis because it is wholly state-funded. Congress has not mandated that states adopt any particular eligibility criteria for their own state-funded programs. 8 U.S.C. § 1622(a). Therefore, there is no uniform federal policy regarding eligibility for such benefits and an eligibility standard based on alien status would ordinarily be subject to strict scrutiny.
¶ 21 AHCCCS argues that strict scrutiny should not apply because Arizona's eligibility criteria mirror the federal government's. This is true in part. Arizona's criteria do contain the identical restriction contained in federal law. Nevertheless, Arizona has expanded the scope of the restriction beyond the congressional mandate. Congress has not required states to limit the eligibility of qualified aliens for state-funded programs in the same way that it has limited eligibility for federally funded programs. States are expressly allowed to develop their own criteria.[12] Under these circumstances we cannot say that Congress has adopted a uniform federal policy regarding eligibility for state-funded benefits.
¶ 22 AHCCCS also argues that Congress may delegate authority to states to determine eligibility in their own way even when the criteria are based on alien status. In the absence of a uniform federal policy, however, state actions must still be measured against Constitutional standards because the Supreme Court has "consistently held that Congress may not authorize the States to violate the Fourteenth Amendment." Saenz v. Roe, 526 U.S. 489, 508 & n. 21, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (1999). As the Court concluded in Saenz:
Congress has no affirmative power to authorize the States to violate the Fourteenth Amendment and is implicitly prohibited from passing legislation that purports to validate any such violation.
Id. at 508, 119 S. Ct. 1518. Because Arizona has adopted eligibility criteria based on alien status that are not mandated by federal law, we conclude that strict scrutiny analysis is required.
¶ 23 "Under the strict scrutiny standard, the state must `demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.'" Kurti I, 201 Ariz. at 171, ¶ 22, 33 P.3d at 505. AHCCCS argues that applying a national policy on immigration is sufficient to satisfy strict scrutiny. As noted above, however, Congress has not imposed a national policy on states regarding state-funded benefits for qualified aliens. A state cannot impose disabilities on aliens for its own programs merely because Congress has chosen to impose a similar disability for federal programs.
*288 ¶ 24 The distinctive aspect of this case, however, is that the Premium Sharing Program is essentially a state-funded extension of the federally-funded Title XIX program. Arizona has chosen to use the Premium Sharing Program to extend AHCCCS coverage to people who would not qualify for the Title XIX program. Except for income levels, the eligibility criteria for both programs are essentially the same, and persons who qualify for the Title XIX program are expressly excluded from coverage under the Premium Sharing Program. A.R.S. § 36-2923.01(B)(8). For most purposes the programs are not separate programs, but a single program.
¶ 25 As discussed above, the state must impose certain federal eligibility criteria on its Title XIX program. Plaintiffs' essential argument is that even if those criteria are valid because they are adopted by Congress, extension of the same criteria to the state-funded extension of the program is invalid. In other words, even though the Premium Sharing Program is intended to be an extension of the Title XIX program available to persons whose incomes exceed the Title XIX limits, eligibility for the program must also be expanded for reasons other than income-namely, alien status. Given the Constitution's strong policy disfavoring discrimination against aliens by states, this argument has some appeal. Nevertheless, we believe it would be an impractical and strained application of the Equal Protection Clause to bar a state from using federal eligibility criteria for a state program when a mandatory federal policy applies to one portion of a program and the state merely acts to implement uniform rules of alien eligibility for another part of the same program.[13] We believe it furthers an important governmental interest for the state to have uniform eligibility criteria for both parts of the program, so that the significant difference between the two programs is income level. When combined with the mandatory criteria imposed by federal law on the Title XIX program, we believe uniform eligibility criteria for different portions of a state program constitutes a compelling governmental interest.
¶ 26 A state may not, of course, always apply federal criteria to services or programs that are distinct from programs subject to the applicable federal law. Such a broad application of general federal policies was rejected in Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982), a case invalidating a state law that denied free public education to the children of illegal aliens. Plyler involved a state statute independent of any federal program, and the court's decision "rested substantially on the fact that the state had employed the federal classification `for its own discriminatory policy.'" Sudomir, 767 F.2d at 1466 (quoting Plyler, 457 U.S. at 226, 102 S. Ct. 2382) (emphasis added). In contrast, the statute in this case corresponds to an expressed congressional policy regarding immigration and operates consistently with the overall federal approach to immigration.
¶ 27 Congress has established a uniform federal policy for certain federally-funded benefits. Arizona has extended these benefits at its own expense to persons whose income levels are too high to meet federal financial eligibility criteria, but who still need assistance. The combination of the federal policy and the benefits of uniform eligibility criteria for different parts of the state's program create the rare circumstance when a state classification based on alien status satisfies strict scrutiny.
*289 CONCLUSION
¶ 28 For the reasons discussed, we find that Arizona's standards regarding alien eligibility for the Title XIX and Premium Sharing portions of AHCCCS do not violate equal protection. Accordingly, we affirm the judgment in the Avila matter in favor of AHCCCS. We reverse the judgment in Kurti, and remand to the superior court for entry of judgment for AHCCCS.
CONCURRING: WILLIAM F. GARBARINO, Judge and CECIL B. PATTERSON, JR., Judge (Ret.).
NOTES
[1] See A.R.S. §§ 36-2901 to -2998. AHCCCS provides health care to indigent individuals and families through the Medicaid program pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396a. See A.R.S. § 36-2901(6).
[2] See A.R.S. §§ 36-2923 to -2923.03. The Premium Sharing Program is governed by the same citizenship criteria as AHCCCS, but allows some persons with greater financial resources than are allowed under Title XIX to receive benefits. See A.R.S. §§ 36-2901(6); 36-2901.01; 36-2901.03(A) and (B); and 36-2923.01(A) and (B). It is financed via the tobacco tax and health care fund. A.R.S. §§ 36-2901.02(C); 36-2923(A). The Premium Sharing Program was repealed by Ariz. Sess. Laws 2003, ch. 265, § 32, eff. september 18, 2003. Because Plaintiff's eligibility prior to that date is at issue in this case, and the questions raised may arise again, we do not consider the issue moot.
[3] "Qualified aliens" include "alien[s] who [are] lawfully admitted for permanent residence under the Immigration and Nationality Act [8 U.S.C. § 1101 et seq.]." See 8 U.S.C. § 1641(b)(1), referenced in A.R.S. § 36-2903.03(G)(1). The plaintiffs in this case are all lawful, permanent residents and, therefore, qualified aliens.
[4] This Act is also often referred to as the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA").
[5] When the Kurtis first initiated this lawsuit, A.R.S. § 36-2903.03(B) did not contain the five-year rule, but rather limited full AHCCCS coverage to qualified aliens who had entered the United States prior to August 21, 1996. After the superior court dismissed the Kurtis' complaint for failure to state a claim, this Court held that the state statute was unconstitutional. Kurti v. Maricopa County, 201 Ariz. 165, 168, ¶ 9, 33 P.3d 499, 502 (App.2001)("Kurti I"). This court found that the lack of the five-year provision in the Arizona statute rendered it inconsistent with federal immigration laws (i.e., the Welfare Reform Act), and, therefore, it was subject to a strict scrutiny analysis and AHCCCS had failed to show the statute served any compelling governmental interest. Id. During the pendency of that (Continued ...) appeal, the Arizona Legislature amended A.R.S. § 36-2903.03(B) to include the five-year provision set forth in the federal law. Accordingly, upon remand, the Kurtis amended their complaint to allege that the new statute was similarly unconstitutional under the equal protection clause.
[6] Mr. Kurti has been diagnosed with advanced metastatic prostate cancer and, at the time of the lower court proceedings, was receiving hormonal treatment. He may need chemotherapy if that treatment stops working.
[7] Mr. Avila's ailments include end-stage renal disease, necessitating regular kidney dialysis.
[8] The Avilas did not specifically assert they were eligible for the Premium Sharing Program in their complaint, but did raise this assertion in their Motion for Preliminary Injunction and Partial Summary Judgment.
[9] We refer to the Kurtis and the Avilas collectively as "Plaintiffs."
[10] The Arizona Constitution also contains an equal protection clause. Ariz. Const. art. 2, § 13. Its reach is co-extensive with that of the federal guarantee, Westin Tucson Hotel Co. v. State Dep't of Revenue, 188 Ariz. 360, 366, 936 P.2d 183, 189 (App.1997), so we do not separately address it.
[11] This report can be accessed at http://www.urban.org/ UploadedPDF/occ24.pdf.
[12] This may be contrasted to 8 U.S.C. § 1621(a), where Congress specifically prohibited illegal aliens from receiving state or local public benefits.
[13] Congress plainly wished to encourage states to provide benefits at their own expense, even to qualified aliens who would not qualify for federally-funded benefits. See 8 U.S.C. § 1622. Congress also stated its intention that to the extent a state adopts the federal classification, the state "shall be considered to have chosen the least restrictive means available for achieving the compelling government interest of assuring that aliens be self-reliant in accordance with national immigration policy." 8 U.S.C. § 1601. Plaintiffs argue that to the extent this provision is interpreted as an attempt to legislate a constitutional standard, it is unconstitutional under City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997). Because we find the Arizona statute meets a compelling governmental interest without considering the federal statute, we do not address this separate constitutional issue.
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78 P.3d 612 (2003)
2003 UT 40
UTAH DEPARTMENT OF TRANSPORTATION, Plaintiff and Appellee,
v.
G. KAY, INC., Defendant and Appellant.
No. 20020063.
Supreme Court of Utah.
September 26, 2003.
*613 Mark L. Shurtleff, Att'y Gen., Edward O. Ogilvie, Asst. Att'y Gen., Salt Lake City, for plaintiff.
George K. Fadel, Bountiful, for defendant.
PARRISH, Justice:
¶ 1 In this interlocutory appeal, we are called upon to examine whether Utah law authorizes condemnation of private property for the purpose of mitigating the environmental impacts of highway construction. Specifically, we are asked to decide whether the Utah Department of Transportation ("UDOT") was authorized to condemn property in order to create a nature preserve in connection with the construction of the Legacy Parkway Project, also known as the Legacy Highway. The trial court held that UDOT had such authority. We affirm.
FACTUAL BACKGROUND
¶ 2 The proposed Legacy Parkway Project consists of a fourteen-mile highway linking Interstate 215 and the Interstate 15/U.S. Highway 89 interchange in Farmington, Utah. Because construction of the highway would necessitate filling wetlands subject to federal regulation, UDOT was required to obtain a permit from the United States Army Corps of Engineers ("COE") under section 404 of the Clean Water Act. See 33 U.S.C. § 1344 (2003). In order to obtain the required permit, UDOT proposed the creation of the Legacy Nature Preserve, a 2,100-acre area set aside for the purpose of mitigating the environmental impacts of the proposed highway.
¶ 3 UDOT brought an action to condemn property owned by G. Kay, Inc. ("G.Kay"), for use in constructing the highway and nature preserve. G. Kay moved to dismiss UDOT's complaint, asserting that UDOT had no authority to condemn its property for the purpose of environmental mitigation. The trial court denied G. Kay's motion and entered an order of immediate occupancy in favor of UDOT. G. Kay filed an interlocutory appeal to this court.[1] This court has jurisdiction *614 pursuant to Utah Code Ann. section 78-2-2(3)(j).
DISCUSSION
¶ 4 G. Kay mounts a multi-pronged attack on UDOT's authority to condemn property for creation of the preserve. First, G. Kay contends that creation of a large scale nature preserve is not a purpose authorized by the governing statute, Utah Code Ann. section 72-5-102. Alternatively, if the governing statute is interpreted to authorize condemnation for creation of the preserve, G. Kay asserts that the statute constitutes an impermissible delegation of legislative authority. G. Kay also argues that the statute does not authorize UDOT to condemn water rights.
¶ 5 Before addressing each of G. Kay's arguments, we note the applicable standard of review. We apply a deferential standard of review to the district court's findings of fact, repudiating them only if they are clearly erroneous. Utah R. Civ. P. 52(a). We do not defer to the district court's conclusions of law, but review them for correctness. State v. Pena, 869 P.2d 932, 935 (Utah 1994).
¶ 6 The starting point for assessing whether UDOT is authorized to condemn property for creation of a nature preserve is the language of the governing statute. UDOT relies on Utah Code Ann. section 72-5-103(1) for authority to condemn G. Kay's property. That statute permits UDOT to "acquire any real property or interests in real property necessary for temporary, present, or reasonable future state transportation purposes by gift, agreement, exchange, purchase, condemnation, or otherwise." Utah Code Ann. section 72-5-102 defines "state transportation purposes" to include, among other things, "the construction, reconstruction, relocation, improvement, maintenance, and mitigation from the effects of these activities on state highways and other transportation facilities under the control of the department" and "the mitigation of impacts from public transportation projects." Utah Code Ann. § 72-5-102(2), (12) (2001) (emphasis added).
¶ 7 The statutory provisions specifically including mitigation of impacts as a "state transportation purpose" were added by amendment effective March 9, 2001. UDOT brought its action to condemn G. Kay's property on June 20, 2001. UDOT argues that the plain language of the amended statute clearly authorizes condemnation of G. Kay's property for use in creating the Legacy Nature Preserve. We agree.
¶ 8 G. Kay urges us to consider the legislative history of the 2001 amendment, which suggests, according to G. Kay, that the provisions permitting condemnation for mitigation purposes are not broad enough to include a project such as the preserve. We find, however, that the clear statutory language unambiguously authorizes condemnation for projects dedicated to the mitigation of impacts from highway construction. Thus, we need not consider evidence of the legislature's intent beyond that reflected on the face of the statute. See Day v. Meek, 1999 UT 28, ¶ 6, 976 P.2d 1202; Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1112 (Utah 1991).
¶ 9 G. Kay next challenges UDOT's condemnation authority by asserting that UDOT was not pursuing transportation purposes when it condemned property for creation of the preserve. In so arguing, G. Kay relies on evidence that UDOT had planned to *615 create the nature preserve prior to the time that the COE required it as a prerequisite to issuance of the section 404 permit. We find this argument unpersuasive in light of the fact that UDOT did not actually seek to condemn G. Kay's property until after the COE required environmental mitigation in connection with the issuance of the permit and after the legislature had amended the statute to allow condemnation for the purpose of mitigating the environmental impacts of highway construction.[2] Neither the statute as it existed prior to amendment nor UDOT's intent prior to the commencement of the condemnation action is relevant to the question of UDOT's statutory authority at the time of the condemnation.
¶ 10 G. Kay next complains of the COE's involvement in UDOT's decision to create and expand the size of the preserve. Specifically, G. Kay contends that the condemnation statute does not authorize UDOT to acquire land for the purpose of satisfying an agreement with federal agencies. We disagree. The fact that an agency of the federal government exerted some influence in UDOT's decision regarding the creation and scope of the preserve does not invalidate UDOT's decision. Federal influence in UDOT's decision-making process would call UDOT's action into question only if it showed that UDOT was attempting to do something other than mitigate impacts of a state transportation project when it brought the action to condemn G. Kay's property for the preserve. Here, however, UDOT's interaction with the COE actually demonstrates that the proposed preserve was motivated by UDOT's desire to obtain the permit required to proceed with the project. It therefore supports, rather than undermines, the conclusion that creation of the preserve was motivated by a "transportation purpose."
¶ 11 Any role played by federal agencies in selecting the particular land to be taken is likewise irrelevant. We do not review the internal processes of, or external influences on, UDOT in arriving at its decision to condemn particular properties for transportation purposes, except for indications of bad faith.
"It may be said to be a general rule that, unless a corporation exercising the power of eminent domain acts in bad faith or is guilty of oppression, its discretion in the selection of land will not be interfered with. With the degree of necessity or the extent [to] which the property will advance the public purpose, the courts have nothing to do. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance."
Utah Dep't of Transp. v. Fuller, 603 P.2d 814, 817 (Utah 1979) (quoting Postal Tel. Cable Co. of Utah v. Or. Short Line R.R. Co., 23 Utah 474, 484-85, 65 P. 735, 739 (1901)).
¶ 12 Because we hold that the statute is broad enough to authorize condemnation of property for a mitigation project such as the preserve, we turn to G. Kay's alternative argument that the statute is an impermissible delegation of legislative power. G. Kay maintains that the statute, as we have just interpreted it, grants UDOT unfettered discretion to determine what types of projects are needed for mitigation and which lands must be condemned for mitigation purposes.
¶ 13 G. Kay cites Great Salt Lake Authority v. Island Ranching Co., 18 Utah 2d 276, 421 P.2d 504 (1966), for the proposition that the statute impermissibly delegates legislative power. In that case, this court struck down a legislative grant of authority to an agency because there was "uncertainty" regarding the "area over which [the agency] was to exercise its functions" and the "objectives and purposes" to be served by the agency were undefined. Id. at 277, 421 P.2d at 505. Moreover, the court found no "limitation on the power granted," and the "powers, duties and responsibilities" of the agency were not identified. Id. at 278, 421 P.2d at 505.
¶ 14 In contrast to the situation in Island Ranching, the authority granted to UDOT *616 under Utah Code Ann. sections 72-5-101 to -115 is limited to specifically defined transportation purposes statewide. To include mitigation of impacts within those transportation purposes, as the legislature did in 2001, is not to unleash UDOT from all reasonable limitations. Rather, "mitigation," as defined in the statute, is a purpose logically linked to the construction, operation, and maintenance of roads and highways. This link is a sufficient "limitation on the power granted." Accordingly, we hold that the legislature did not make an unlawful delegation of authority to UDOT when it included the mitigation of impacts as a defined transportation purpose in section 72-5-102 of the Utah Code.
¶ 15 Finally, we address G. Kay's assertion that UDOT had no authority to acquire water rights by eminent domain. We find this argument to be without basis. The condemnation statute provides that UDOT "may acquire any real property or interests in real property necessary for temporary, present, or reasonable future state transportation purposes." Utah Code Ann. § 72-5-103(1) (2001) (emphasis added). Water rights are a type of interest in real property and thus may be condemned by UDOT for state transportation purposes. See Spears v. Warr, 2002 UT 24, ¶¶ 21-22, 44 P.3d 742 (recognizing that water rights constitute a real property interest).
¶ 16 We find no error in the district court's findings of fact, and its conclusions of law were correct. We therefore affirm the district court's denial of G. Kay's motion to dismiss and its issuance of an order of immediate occupancy in favor of UDOT.
¶ 17 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Judge NEHRING concur in Justice PARRISH's opinion.
¶ 18 Justice RUSSON did not participate herein; District Judge RONALD E. NEHRING sat.
NOTES
[1] Subsequent to the entry of the order of immediate occupancy by the trial court, a panel of the United States Court of Appeals for the Tenth Circuit enjoined any further construction activities, holding that the required environmental impact statement was defective on several grounds. Utahns for Better Transp. v. United States Dep't of Transp., 305 F.3d 1152 (10th Cir.2002). While the injunction has resulted in delay and may conceivably result in the modification, or even termination, of the Legacy Parkway Project, we review the propriety of the district court's order of immediate occupancy based on the facts existing at the time of the district court's decision.
Utah Code Ann. section 72-5-103(1) provides that UDOT "may acquire any real property or interests in real property necessary for temporary, present, or reasonable future state transportation purposes." There is no evidence in the record, and no argument is made on appeal, to contradict the district court's findings that the Legacy Parkway Project was, at the relevant time, proceeding in a timely manner in accordance with a set schedule or timetable and that G. Kay's property was needed by or about the end of the year 2001. Moreover, we are aware of no authority suggesting that a properly issued order of occupancy may be set aside because of a change in circumstances occurring after entry of the order.
[2] Indeed, the evidence on which G. Kay relies suggests that UDOT intended to acquire the land for the preserve through negotiation and purchase, rather than by condemnation. Thereafter, UDOT expanded the scope of the proposed preserve, and the legislature amended the statute to include authorization to condemn property for mitigation purposes.
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78 P.3d 603 (2003)
2003 UT 39
Richard K. SPRATLEY and Brett G. Pearce, Plaintiffs and Appellants,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Michael Arnold, Craig Kingman, Scott D. Kotter, and Harold E. Nixon, Defendants and Appellees.
Nos. 20011002, 20011003.
Supreme Court of Utah.
September 23, 2003.
Rehearing Denied September 19, 2003.
*605 Richard K. Spratley, Brett G. Pearce, L. Rich Humpherys, Karra J. Porter, Salt Lake City, for plaintiffs.
Alan L. Sullivan, Scott C. Sandberg, Salt Lake City, for defendants.
AMENDED OPINION
WILKINS, Justice:
¶ 1 We granted this interlocutory appeal by plaintiffs Richard Spratley and Brett Pearce to review the trial court's December 7, 2001 order requiring Spratley and Pearce, attorneys who formerly represented State Farm Mutual Automobile Insurance Company ("State Farm") and its insureds, to "refrain from disclosing" certain communications and facts relating to that representation, to return to State Farm documents that Spratley and Pearce retained from the representation, and disqualifying Spratley and Pearce's chosen legal counsel, L. Rich Humpherys, and his law firm, Christensen & Jensen, from further representation of Spratley and Pearce. We affirm in part, reverse in part, and remand to the trial court for further proceedings.
FACTUAL BACKGROUND
¶ 2 The complex relationship between the parties to this case spans a number of years. Spratley began his relationship with State Farm in 1987, working as State Farm's sole in-house lawyer in Salt Lake City before transferring temporarily to State Farm's headquarters in Illinois. Beginning in the early 1990s, Spratley and Pearce worked together as Claims Litigation Counsel (CLC) *606 for State Farm in the Salt Lake City CLC office. In this capacity Spratley and Pearce represented both State Farm and its insureds. During that representation, Spratley and Pearce allege that State Farm required them to violate many of their ethical duties as attorneys and punished them when they did not. Concluding that they could not meet their ethical duties as attorneys and comply with allegedly unlawful and unethical demands placed on them by State Farm, Spratley and Pearce resigned their employment with State Farm in June 2000. Upon their departure, Spratley and Pearce retained copies of many allegedly confidential documents and materials, some of which State Farm contends were improperly appended to the complaint.
PROCEDURAL BACKGROUND
¶ 3 Spratley and Pearce ultimately sued State Farm for (1) misrepresentation and nondisclosure; (2) tortious interference with business relations; (3) retaliation and termination in violation of public policy; (4) breach of the covenant of good faith and fair dealing; (5) breach of the employment contract; (6) wrongful discharge and employment termination; and (7) intentional infliction of emotional distress. The trial court's later dismissal of the second and sixth causes of action is not challenged on appeal. As noted above, the complaint contained appendices, some of which State Farm argues were confidential documents. Pursuant to a separate trial court order, affidavits subsequently submitted by Spratley and Pearce were filed under seal, as were the briefs to this court.
¶ 4 At all times during the prosecution of Spratley and Pearce's claims, they have been represented by attorney L. Rich Humpherys and his firm, Christensen & Jensen. Numerous other litigants have employed Humpherys and his firm for representation against State Farm in their separate cases.
¶ 5 Fearing further disclosure of what it viewed as confidential communications and information, State Farm filed a motion for a preliminary injunction and protective order concurrent with a separate motion to disqualify Humpherys and his firm from representing Spratley and Pearce. The trial court's response to those motions is the subject of this appeal.
¶ 6 After briefing and oral argument by the parties, the trial court entered an order[1] requiring Spratley and Pearce to:
(1) Refrain from disclosing (in this litigation or otherwise) confidential communications and information exchanged between Spratley or Pearce on one hand, and State Farm and/or its insureds on the other hand, relating to the provision of legal services by Spratley, Pearce or other lawyers for State Farm, or made for the purpose of facilitating such legal services;
(2) Refrain from disclosing any facts relating to Spratley or Pearce's representation of State Farm's insureds, absent express consent to disclosure by the insureds; and
(3) Return to State Farm all confidential documents[,] materials, and information that Spratley and Pearce created, maintained, or acquired as part of their employment with State Farm, and that are currently in their possession.
¶ 7 Finding that Spratley and Pearce had divulged confidential information to Humpherys and his firm and that the disclosure would taint further proceedings in the case, the court also granted State Farm's motion to disqualify. Spratley, Pearce, and Humpherys all filed petitions for interlocutory review, which were ultimately granted by this court along with a stay of certain portions of the trial court's order.
STANDARD OF REVIEW
¶ 8 Both the trial court's grant of a protective order under Rule 26 of the Utah Rules of Civil Procedure and the order of disqualification are reviewed for an abuse of discretion. In re Discipline of Pendleton, 2000 UT 77, ¶ 38, 11 P.3d 284 (protective order); Houghton v. Dep't of Health, 962 *607 P.2d 58, 61 (Utah 1998) (disqualification). This court, however, has a special interest in the administration of the Rules of Professional Conduct and the discretion granted to the trial court in matters of disqualification is quite limited when there are no factual disputes. Houghton, 962 P.2d at 61.
ANALYSIS
¶ 9 Our treatment of the trial court's order hinges, in large measure, on the nature of Spratley and Pearce's duties to their former clients, State Farm and its insureds. If the order merely restates Spratley and Pearce's existing duties toward those clients, it is readily sustainable. If, on the other hand, the order prohibits disclosures by Spratley and Pearce that would not otherwise violate their ethical duties as attorneys, it represents an abuse of the trial court's discretion. Accordingly, the exposition of Spratley and Pearce's ethical duties is an appropriate starting point for our analysis.
I. SPRATLEY AND PEARCE'S DUTIES OF CONFIDENTIALITY
A. Existence of Attorney-Client Relationship
¶ 10 The duties of confidentiality that control our resolution of the instant case depend upon an attorney-client relationship between Spratley and Pearce and State Farm. Of additional concern to this court are the duties that Spratley and Pearce may have toward State Farm's insureds, whom Spratley and Pearce were hired to defend. Our holding today recognizes that attorneys like Spratley and Pearce primarily represent the insureds they are hired to defend, but may also have an attorney-client relationship giving rise to duties of confidentiality with the insurance company which hires them.
¶ 11 In Paradigm Insurance Co. v. Langerman Law Offices, 200 Ariz. 146, 24 P.3d 593 (2001), the Arizona Supreme Court discussed the tripartite relationship between counsel, insureds, and insurers and followed the majority rule, concluding that in cases where "no question arises regarding the existence and adequacy of coverage, ... we see no reason why the lawyer cannot represent both insurer and insured." Id. at 598. This position merely recognizes the fact that the insurer has an interest in the litigation and a sufficiently strong relationship with the attorney to give rise to the duties that accompany that relationship. Recognizing the relationship is in the best interests of the insurer. This is neatly illustrated by the Paradigm case in which Paradigm was sued for non-payment of fees by a lawyer it hired to represent one of its insureds. Paradigm, arguing that the lawyer was negligent in representing its interests, counterclaimed for damages it incurred when it was forced to pay a claim with its own funds when another payment source existed of which the attorney should have been aware. Id. at 594-95. Paradigm, which had a significant stake in the litigation, rightly sought recompense for the failure of counsel to protect its interests. Recognizing an attorney-client relationship gives the insurer recourse against a negligent attorney who has caused the insurer to pay more than it otherwise might have on a claim. We follow Arizona in adopting the "dual-client" paradigm because it best protects all parties involved. Notwithstanding the propriety of this test, we recognize the potential for conflict that exists in this and any system for handling the tripartite relationship in insurance defense cases.
¶ 12 We find the Arizona court's resolution of the potential conflicts of interest appropriate to address the problem. "[I]n the unique situation in which the lawyer actually represents two clients, he must give primary allegiance to one (the insured) to whom the other (the insurer) owes a duty of providing not only protection, but of doing so fairly and in good faith." Id. (citing Zilisch v. State Farm Mut. Auto. Ins. Co., 196 Ariz. 234, 995 P.2d 276, 279-80 (2000)). Thus, where no actual conflict exists or is foreseeable, an attorney will ordinarily represent both the interests of the insured and the insurer. However, where actual conflict exists or is likely to arise, the attorney's allegiance is to the insured because of an insurer's duty to provide a defense in good faith.
¶ 13 Spratley and Pearce represented State Farm's insureds for many years. They undoubtedly participated in many cases *608 where State Farm was a dual client. Likewise, as Spratley and Pearce acknowledge in their complaint, they provided legal services for both State Farm directly and for its insureds. Thus, they owe an attorney's duties of confidentiality to State Farm and its insureds in connection with that long history of representation.
B. Duty of Confidentiality to Former Client
¶ 14 Rule 1.9 of the Utah Rules of Professional Conduct prohibits an attorney from using information relating to his prior representation of a client "to the disadvantage of the former client." Utah R. Prof'l Conduct 1.9(b). Exceptions exist to this rule for circumstances allowed in Rule 1.6 or when the information becomes "generally known." Id. Because the information at issue in this case is not generally known,[2] the exceptions in Rule 1.6 determine whether the disclosures were violations of Spratley and Pearce's duties of confidentiality toward State Farm and its insureds.
¶ 15 Of the exceptions found in Rule 1.6, only one has any potential application to the facts of this case. The applicable exception allows disclosure "to the extent the lawyer reasonably believes necessary ... [such as] ... [t]o establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." Utah R. Prof'l Conduct 1.6(b)(3). Thus, if Spratley and Pearce's suit represents a "claim" within the meaning of Rule 1.6, they may make disclosures if they are reasonably necessary to that claim.
¶ 16 The question of what matters qualify as claims under Rule 1.6 has not been answered by this court and has been only lightly treated by other authorities. The ABA Model Rules of Professional Conduct's comparable rule, now found therein at Rule 1.6(b)(3), is explained as follows:
With regard to paragraph (b)[(3)], [the old rule] provided that a lawyer may reveal "[c]onfidences or secrets necessary to establish or collect his fee...." Paragraph (b)[(3)] enlarges the exception to include disclosure of information relating to claims by the lawyer other than for the lawyer's fee; for example, recovery of property from the client.
ABA Annotated Model Rules of Prof'l Conduct 68 (5th ed.2003) (emphasis added). This language clearly indicates that the rule was designed as an expansion beyond the fee disputes and defensive matters that traditionally allowed disclosure of client confidences. The ABA confirmed this intention in a Formal Ethics Opinion, which found the Model Rules did not prohibit the use of confidential information in a suit brought by former in-house counsel. ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 01-424. A few other authorities have approved of an expansion of the scope of the "claim or defense" exception in cases involving wrongful discharge claims by former in-house counsel.
¶ 17 In a formal ethics opinion of its own, the Oregon State Bar ruled that the "claim or defense" exception to Rule 1.6 plainly permits "disclosure to establish a wrongful discharge claim." Oregon State Bar Legal Ethics Comm., Formal Op.1994-136 at 3. The plain language of our rule also supports such an interpretation, and representative cases from other jurisdictions illustrate that the policy embodied in Rule 1.6 is in harmony with that interpretation. Burkhart v. Semitool, Inc., 300 Mont. 480, 5 P.3d 1031 (2000); *609 Crews v. Buckman Labs. Int'l, Inc., 78 S.W.3d 852 (Tenn.2002).
¶ 18 In both Crews and Burkhart, the respective courts relied, at least in part, on the "claim or defense" exception to Rule 1.6 to justify the disclosure of confidential client information in wrongful discharge suits. 5 P.3d at 1040-42; 78 S.W.3d at 863-64. In Crews, the court noted that "[t]he very purpose of recognizing an employee's action for retaliatory discharge in violation of public policy is to encourage the employee to protect the public interest," 78 S.W.3d at 860, and concluded that "the `public interest is better served [when] in-house counsel's resolve to comply with ethical ... duties is strengthened by providing judicial recourse when an employer's demands are in direct and unequivocal conflict with those duties.'" Id. at 862 (quoting GTE Prods. Corp. v. Stewart, 421 Mass. 22, 653 N.E.2d 161, 166 (1995)). Burkhart relied on language from a related federal case in reaching the same conclusion as the Crews case: "`[a] lawyer... does not forfeit his rights simply because to prove them he must utilize confidential information. Nor does the client gain the right to cheat the lawyer by imparting confidences to him.'" 5 P.3d at 1041 (quoting Doe v. A Corp., 709 F.2d 1043, 1050 (5th Cir. 1983)).
¶ 19 Other courts have prevented suits by former in-house counsel where no rule comparable to our Rule 1.6 existed. The case which best embodies the line of reasoning that would prevent such suits is Balla v. Gambro, Inc., 145 Ill.2d 492, 164 Ill.Dec. 892, 584 N.E.2d 104 (1991). In that case, the defendant sold dialysis machines. It received a shipment of machines that failed to meet FDA requirements, which in-house counsel advised the company not to sell. The attorney later learned of the machines' impending sale and renewed his objections, threatening to disclose the sale to the FDA. After being terminated for his threatened disclosure, counsel notified the FDA and sued Gambro for retaliatory discharge.
¶ 20 Refusing to allow suit, the court spent much of its opinion discussing the need for trust and candid discussion in the attorney-client relationship. 164 Ill.Dec. 892, 584 N.E.2d at 108-11. The court opined that allowing former in-house counsel to sue an employer for employment related claims would cause the employer-client to be hesitant to turn to counsel for advice. Id. 164 Ill.Dec. 892, 584 N.E.2d at 109. However, the dissent argued, inter alia, that the refusal to allow such suits inappropriately placed the cost of an employer's wrongful conduct on the attorney who has chosen to obey strong ethical rules governing his conduct. Id. 164 Ill.Dec. 892, 584 N.E.2d at 113-15. Thus, the dissent's argument echoes the concerns raised in Crews and Burkhart that forbidding suit, as a practical matter, encourages unethical conduct. Despite the countervailing considerations outlined in the opinion of the court in Balla, the plain language of Rule 1.6 and the policy considerations outlined in other cases weigh in favor of allowing disclosure, in a limited fashion, of confidential client information in a suit by former in-house counsel for wrongful discharge.[3]
¶ 21 While adopting a literal interpretation of Rule 1.6 that permits revelations of confidential client information, we are careful to note that both former in-house counsel and trial courts must exercise great care in disclosing confidences. See e.g., Burkhart, 5 P.3d at 1041-42 (suggesting lawyer make all practicable efforts to limit disclosure, including protective orders); Crews, 78 S.W.3d at *610 864 (noting limited scope of disclosure and suggesting efforts to limit the disclosure, such as protective orders). The professional judgment of the former in-house attorney and the stringent limitations available to trial courts are of paramount importance in restricting disclosures within the bounds of Rule 1.6.
¶ 22 The trial court has numerous tools it must employ to prevent unwarranted disclosure of the confidential information, including "`the use of sealing and protective orders, limited admissibility of evidence, orders restricting the use of testimony in successive proceedings, and, where appropriate, in camera proceedings.'" Fox Searchlight Pictures, Inc. v. Paladino, 106 Cal.Rptr.2d 906, 921, 89 Cal.App.4th 294 (2001) (quoting Gen. Dynamics Corp. v. Superior Court, 7 Cal.4th 1164, 32 Cal.Rptr.2d 1, 876 P.2d 487, 504 (1994)). The liberal use of these tools, and others inherent in a trial court's authority to govern the conduct of proceedings, is a prudent and sufficient safeguard against overbroad disclosure. We note, however, that it remains the attorney's duty to minimize disclosures. While trial courts possess broad protective powers, any disclosures made by the attorney that are not reasonably necessary to the claim may still subject that attorney to professional discipline or litigation sanctions; a trial court's failure to prevent improper disclosure will not be a safe harbor for former in-house counsel who carelessly disclose more than is reasonably necessary to the claim.
II. THE TRIAL COURT'S ORDER
¶ 23 Having determined that Rule 1.9, by reference to Rule 1.6, allows limited disclosure of confidential material, we now examine the trial court's order in this case. It is evident that portions of the trial court's order cannot be sustained consonant with the provisions of Rules 1.6 and 1.9.
A. Trial Court's Prohibition on Disclosures
¶ 24 The first part of the trial court's order, prohibiting Spratley and Pearce "from disclosing (in this litigation or otherwise) confidential communications and information exchanged between Spratley or Pearce on one hand, and State Farm and/or its insureds on the other hand" cannot stand in its current form. Because we hold that Spratley and Pearce may disclose information reasonably necessary to establish their claim against State Farm, the trial court's order must be reversed, requiring, as it does, that Spratley and Pearce refrain from any disclosures, even within the litigation.
¶ 25 As noted in our discussion above, Spratley and Pearce may, consistent with their duties under the Rules of Professional Conduct, disclose matters relating to their representation of State Farm in a suit against State Farm, so long as those disclosures are reasonably necessary to that claim. Utah R. Prof'l Conduct 1.6(b)(3). Thus, within this litigation, Spratley and Pearce may disclose some material that would be precluded under the trial court's order. Disclosure, however, should proceed carefully and under the close supervision of the trial court. The trial court's utilization of the many tools at its disposal must carefully protect and limit disclosures so as to minimize the impact on the parties and the attorney-client relationship while still affording Spratley and Pearce the appropriate measure of justice.
¶ 26 Spratley and Pearce have made no claim against the insureds they represented during their employment in the CLC office and are not called upon to defend themselves against claims by those insureds. Accordingly, our pronouncements regarding the ability of Spratley and Pearce to disclose information reasonably necessary to their claim do not apply. However, information which neither discloses, nor from which is ascertainable the identities of former clients may be appropriate. Thus, statistical information or generic summaries of the alleged actions of State Farm in cases where Spratley and Pearce represented its insureds might be permissible. We affirm the portion of the trial court's order that prohibited disclosures of the insured clients' confidential information without the consent of those clients.
*611 B. Trial Court's Order to Return Documents
¶ 27 We must limit the trial court's order to Spratley and Pearce to return confidential documents and materials to State Farm to apply only to original documents and materials. Upon the termination of an attorney-client relationship, the client is entitled to possession of its original client file, but the attorney is permitted to retain copies at its own expense. Utah R. Prof'l Conduct 1.16(d). There is no indication in the record whether the documents retained by Spratley and Pearce are the originals from the client file, or whether Spratley and Pearce retained copies in accordance with Rule 1.16. We remand to the trial court for correct application of the order as modified.
C. Trial Court's Disqualification Order
¶ 28 The trial court, in making its determination on the disqualification issue, employed a standard utilized by our court of appeals in past cases. That standard, explained by the case of Cade v. Zions First National Bank, 956 P.2d 1073, 1081 (Utah Ct.App.1998), would lead to disqualification if Spratley and Pearce had privileged information involving State Farm's trial strategy that was disclosed to Humpherys, and that disclosure threatened to taint the remaining proceedings in the case. Clearly the Cade test was not fashioned to apply to a factual situation like the one now before us and we must reverse the trial court's order of disqualification. We do not disapprove of the test outlined in Cade, only its application to this case.
¶ 29 Given our resolution of the trial court's order preventing disclosures in this litigation, we cannot sustain an order of disqualification against Humpherys or his firm. Spratley and Pearce must be able to seek the advice of counsel to prosecute their claim against State Farm. If chosen counsel could be disqualified because of disclosures made by the plaintiffs for the purpose of legal advice and representation, the ability to retain counsel in such matters would be illusory. Under the facts of this case we cannot sanction a result that would deprive Spratley and Pearce of the opportunity to employ counsel.
¶ 30 State Farm argues that significant authority for the disqualification it seeks is found in similar cases. It cites cases such as Hull v. Celanese Corp., 513 F.2d 568 (2d Cir.1975), for the proposition that attorneys for former in-house counsel who receive privileged and confidential communications from their client should be disqualified from representing that client. However, State Farm ignores the fact that the attorneys in Hull and other similar cases were disqualified from representing other litigants, not the former in-house counsel. See, e.g., id. at 571-72.
¶ 31 Representing a former in-house attorney as a client and learning the substance of confidential communications does not disqualify an attorney from representing that client, but it may require disqualification of the attorney from representing other clients. State Farm has opposed other litigants represented by Humpherys and his firm, but those cases are not now before us. The disqualification in this case was inappropriate.
CONCLUSION
¶ 32 Spratley and Pearce represented State Farm and its insureds for many years and owe lawyers' duties of confidentiality to those former clients. Nevertheless, they may disclose State Farm's client confidences as reasonably necessary to make a claim against State Farm. We reverse the trial court's order insofar as it prohibits disclosures that would be reasonably necessary to Spratley and Pearce's claims against State Farm. We affirm the portion of the trial court's order that requires Spratley and Pearce to obtain the permission of any clients other than State Farm if Spratley and Pearce wish to use those clients' confidences in their suit against State Farm. Because Utah Rule of Professional Conduct 1.16(d) provides that lawyers may retain copies of a former client's file at their own expense after returning the original file to the client, we revise the trial court's order requiring return of confidential documents to State Farm to apply to original documents. We reverse the *612 trial court's order disqualifying Humpherys and Christensen & Jensen from representing Spratley and Pearce in this case because, although Humpherys may have become privy to State Farm's confidential communications with Spratley and Pearce, the remedy of disqualification is inappropriate. Former in-house counsel must be free to employ legal counsel in cases against their former employers and an order of disqualification in this case would prevent Spratley and Pearce from receiving effective legal counsel because any attorney they hired who received enough information to prosecute the suit would be similarly disqualified. Thus, we affirm in part and reverse in part, remanding for proceedings consistent with this opinion.
¶ 33 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Justice WILKINS' opinion.
NOTES
[1] The trial court's order does not appear to comply with the requirements of Rule 65A(d) and (e) of the Utah Rules of Civil Procedure for orders granting preliminary injunctions. Accordingly, we will treat the order as a protective order.
[2] Spratley and Pearce argue that State Farm waived its privilege for the communications at issue in this case. Part of that argument is that the information became known at the trial court's December 3, 2001 open hearing where some of those communications were discussed. A review of the transcript of that hearing reveals that the discussion of those communications was general in nature and insufficient to render the information either "generally known" or to waive privilege. Utah R. Evid. 507(a) (noting waiver occurs when disclosing a "significant part of the matter"). Additionally, the duties of confidentiality found in the Rules of Professional Conduct are not coextensive with the rules of privilege found in the Rules of Evidence. Utah R. Prof'l Conduct 1.6, cmt (noting that confidentiality is protected by privilege in the law of evidence, but by "the rule of confidentiality ... in professional ethics"). Thus, privilege might be waived allowing compelled disclosure by an attorney while the duty of confidentiality is still in full force.
[3] While we are not called upon to decide the application of the privilege rules to specific communications, we note that our interpretation of Rule 1.6(b)(3) is in harmony with Rule 504(d)(3) of the Utah Rules of Evidence, which exempts from privilege "communication[s] relevant to an issue of breach of duty ... by the client to the lawyer." See Utah R. Evid. 504 advisory committee's note (Rule 504 "is intended to be consistent with the ethical obligations of confidentiality set forth in Rule 1.6 of the Utah Rules of Professional Conduct."). Likewise, the determination of privilege for discovery purposes under Utah Rules of Civil Procedure 26(b)(1) should be made in harmony with Rule 504 of the Utah Rules of Evidence, which governs the attorney-client privilege. Neither Rule 504(d)(3), which supersedes the privilege rule found at Utah Code Ann. Section 78-24-8(2), nor Rule 1.6(b)(3) contains language limiting its application merely to defensive matters and fee collection, as State Farm urges, and we remain unpersuaded of the wisdom of such a construction.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2549557/
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78 P.3d 907 (2003)
134 N.M. 453
2003-NMSC-027
STATE of New Mexico, Plaintiff-Petitioner,
v.
Anthony Joseph SANDOVAL, Defendant-Respondent.
No. 27,881.
Supreme Court of New Mexico.
October 7, 2003.
Patricia A. Madrid, Attorney General, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Petitioner.
John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Respondent.
OPINION
SERNA, Justice.
{1} The district court sentenced Defendant Anthony Sandoval as a habitual offender based on three prior felony convictions. Defendant appealed his sentence to the Court of Appeals on the ground that it violated the requirement in Rule 5-604(B)(1) NMRA 2003 that the habitual criminal proceeding be commenced within six months of arraignment. The Court of Appeals reversed, holding that the district court lacked authority to grant a petition to extend the time for commencement of trial once the six month time period under Rule 5-604 expired. State v. Sandoval, 2003-NMCA-031, ¶ 16, 133 N.M. 399, 62 P.3d 1281, cert. granted, No. 27,881, 133 N.M. 413, 63 P.3d 516 (2003). On certiorari, we hold that Rule 5-604 allows the court a reasonable time to rule on timely-filed petitions to extend. We therefore reverse the Court of Appeals.
*908 I. Facts
{2} Defendant was arraigned on the State's supplemental information on August 4, 2000. As a result, the six-month rule was scheduled to run on February 4, 2001. See Rule 5-604(B)(1). On January 25, 2001, the State filed a motion in the district court to extend the date for commencement of trial to May 4, 2001. The State noted in its motion that a new trial date was necessary because the judge assigned to the case had been presiding over another trial on the previously set trial date of January 23, 2001. Defendant filed a motion to dismiss on February 21, 2001, based on the fact that the district court had not granted an extension before the expiration of the six months provided in Rule 5-604. At a hearing the following day, the district court denied Defendant's motion and granted the State's petition to extend. The district court then proceeded with Defendant's habitual offender proceeding on February 22, 2001. After being sentenced as a habitual offender, Defendant appealed.[1]
II. The District Court's Authority to Rule on a Timely Petition to Extend
{3} Under Rule 5-604, parties may petition either the district court or this Court to extend the time for commencement of trial for good cause shown. Rule 5-604(C)-(E). Absent exceptional circumstances beyond the control of the State or the trial court, "[t]he petition shall be filed within the applicable time limits prescribed by this rule." Rule 5-604(E). The State complied with this rule by filing its petition within the applicable time limits. However, Rule 5-604 does not provide a time within which the district court, this Court, or a justice of this Court must rule on a timely-filed motion. Rule 5-604 is effectively silent on this question.
{4} Defendant contends that, even though the State's petition was timely filed, the district court lacked authority to rule on the State's petition to extend the time for commencement of trial once the six-month rule expired on February 4, 2001. Defendant relies on Rule 5-604(F), which states: "In the event the trial of any person does not commence within the time specified in Paragraph B of this rule or within the period of any extension granted as provided in this rule, the information or indictment filed against such person shall be dismissed with prejudice." Defendant contends that the directive "shall be dismissed" creates a mandatory requirement that implicitly deprives this Court and the district court of authority to rule on any petition to extend after the six month period has expired, even if the petition was filed in a timely manner before the end of the applicable time limit.
{5} The State, in contrast, contends that Rule 5-604 must be construed according to other rules of criminal procedure because the rule is silent with respect to the time limit for ruling on a timely-filed petition. The State relies on Rule 5-601(F) NMRA 2003, which establishes a general rule that "[a]ll motions shall be disposed of within a reasonable time after filing," and Rule 5-104(B)(1) NMRA 2003, which recognizes the discretion of the district court to enlarge a time limitation contained in the Rules of Criminal Procedure if requested before the applicable time limitation expires. The State contends that, under these rules, the district court has a reasonable time after filing to rule on a timely-filed Rule 5-604(E) petition, regardless of the expiration of the six-month period under Rule 5-604(B)(1). We agree.
{6} We begin by addressing Rule 5-104(B). This rule currently provides:
When by these rules or by a notice given thereunder or by order of court, an act is *909 required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion:
(1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or
(2) upon motion made after the expiration of the specified period permit the act to be done; but it may not extend the time for making a motion for new trial, for taking an appeal, for making a motion for acquittal or for extending time for commencement of trial.
Rule 5-104(B).
{7} The Court of Appeals rejected the State's interpretation of Rule 5-104(B). Sandoval, 2003-NMCA-031, ¶¶ 6-12, 133 N.M. 399, 62 P.3d 1281. The Court noted that this rule was initially enacted as Rule 4 of the Rules of Criminal Procedure, N.M. Rule Crim. Proc. 4(b) (originally codified at NMSA 1953, § 41-23-4(b)), which became effective on July 1, 1972. Sandoval, 2003-NMCA-031, ¶ 8, 133 N.M. 399, 62 P.3d 1281. The Court of Appeals also noted that the original compilation of this rule differed from the currently published rule because parts one and two of Subsection B were originally separated by a comma rather than a semicolon and there were no paragraph breaks within Subsection B. Id. ¶ 9. The Court determined that this change first occurred in 1986 with a recompilation. Id. The Court of Appeals could not account for this change because, according to the Court, "[t]he Supreme Court has not amended the rule since its adoption in 1972." Id. ¶ 10. The Court of Appeals focused on the following language that appears in subpart two: "but [the court] may not extend the time for making a motion for new trial, for taking an appeal, for making a motion for acquittal or for extending time for commencement of trial." Rule 5-104(B)(2). The Court of Appeals relied on the use of a comma between the subparts, instead of a semicolon, in the original compilation to conclude that this phrase applies to both motions filed after the expiration of the specified period, as discussed in subpart two, and motions filed before the time period expires, as discussed in subpart one. Sandoval, 2003-NMCA-031, ¶ 11, 133 N.M. 399, 62 P.3d 1281. The Court of Appeals acknowledged that the interpretation of the rule would differ if the semicolon appearing in the published rule were accurate because the last clause of the rule would then grammatically apply only to subpart two, consistent with the State's argument. See id. ¶ 7. However, the Court attributed the changes in the rule to the compiler rather than this Court. Id. ¶ 10. By analogy to the proposition that footnote statements by the compiler are not controlling, see Treider v. Doherty & Co., 86 N.M. 735, 738, 527 P.2d 498, 501 (Ct.App. 1974), the Court determined that "[a] compiler's modification, without Supreme Court action, does not have substantive effect." Sandoval, 2003-NMCA-031, ¶ 10, 133 N.M. 399, 62 P.3d 1281. The Court of Appeals thus applied the rule as originally compiled in 1972 and concluded that the final phrase in Rule 5-104(B) excludes both timely and untimely petitions to extend the time for commencement of trial from the district court's discretionary power of enlargement. Sandoval, 2003-NMCA-031, ¶ 11, 133 N.M. 399, 62 P.3d 1281. For the reasons discussed below, we conclude that the Court of Appeals erred in its interpretation of Rule 5-104(B).
{8} The Court of Appeals' premise that the compiler modified Rule 5-104(B) is incorrect for two reasons. First, despite the Court of Appeals' statement to the contrary, this Court in fact amended Rule 5-104 on August 17, 1995, and we re-adopted the rule in full at that time. We further ordered that the rule be published in the Bar Bulletin and in Supreme Court Rules Annotated. The rule now appears in New Mexico Rules Annotated in the exact form adopted by this Court in 1995, and the amendment is reflected by the effective date, which is a part of the rule adopted by this Court, as well as in the compiler's annotation. Because the amended version of Rule 5-104 applies to all cases filed in district court on or after October 1, 1995, it governs the present matter. As a result, any modification of the rule in the 1986 recompilation is irrelevant for purposes of this case.
*910 {9} Second, this Court ordered the recompilation of court rules, instructions, and forms in 1986, which we entitled the 1986 Supreme Court Rules Annotated. We authorized the Compilation Commission to follow a set of drafting guidelines in the recompilation, and we approved the recompiled version of the rules, instructions, and forms. Thus, the version of Rule 5-104(B) appearing in the 1986 Supreme Court Rules Annotated was an official version approved by this Court. Additionally, compiled versions of statutes and court rules, certified by the Compilation Commission, are presumptively official. See NMSA 1978, § 12-1-3(B)-(C) (1979) (empowering the New Mexico Compilation Commission "to provide for official, annotated compilations of the New Mexico statutes" and "to determine whether such compilation contains the basic law and the general law of New Mexico"); NMSA 1978, § 12-1-7 (1977) (providing that a certified compilation by the Compilation Commission "shall be in force, and printed copies thereof shall be ... recognized ... in all the courts and in all departments and offices of the state as the official compilation of the statutory law of New Mexico"). For this reason, Treider is inapposite. We distinguish the issue of the effect to be given a compiler annotation from the question of whether a compiled version of a rule or statute should be considered official. We conclude that the Court of Appeals erred in determining that the 1986 recompilation was unofficial. Under the official version of Rule 5-104, as recompiled in 1986 and as amended and re-adopted in 1995, the final clause grammatically applies only to subpart two of Paragraph B because a semicolon separates it from subpart one.
{10} Moreover, apart from the differences between the current version of Rule 5-104(B) and the version of the rule appearing in the 1972 compilation, we believe that the Court of Appeals' construction of the final clause in Rule 5-104(B) is flawed. Under the Court of Appeals' interpretation, this clause would read in relevant part, omitting ellipses, that the court "may not extend the time for extending the time for commencement of trial." We believe that this interpretation, by including the phrase "extend the time for extending the time," makes little grammatical sense. The structure of the rule supports a more meaningful construction. Rule 5-104(B)(2) states that the court "may not extend the time for making a motion for new trial, for taking an appeal, for making a motion for acquittal or for extending time for commencement of trial." With respect to commencement of trial, we believe that the proper interpretation of this language requires that the phrase "for making a motion" apply to both "acquittal" and "for extending time for commencement of trial." With this interpretation, the rule states in relevant part that the court "may not extend the time... for making a motion ... for extending time for commencement of trial." We believe that the structure of the rule, whether as originally compiled, as recompiled in 1986, or as amended by this Court in 1995, reveals our intention to prevent courts from extending the time for a party to file a motion to extend the time for commencement of trial but not to prevent the court from ruling upon a motion that has been filed in a timely manner.
{11} The semicolon between the two subparts of Rule 5-104(B) merely clarifies the meaning of the final clause in subpart two; it does not alter the meaning of this provision. The final clause of Rule 5-104(B) restricts the court's power to extend the time for filing a motion. Because Rule 5-604(E) requires that a petition to extend be filed before the six months expires, the final clause of Rule 5-104(B) applies only to cases in which a petition has not been filed within this time limit. In other words, the final clause of Rule 5-104(B) applies only to motions for enlargement "made after the expiration of the specified period" as described in Rule 5-104(B)(2). The purpose of this clause is clear. The rule specifically governing the time for commencement of trial contains an express provision for filing petitions to extend after the six-month time limit has expired. Rule 5-604(E) (providing that petitions to extend may be filed up to ten days after the six-month rule has expired for exceptional circumstances beyond the control of the State or the trial court). The rules governing motions for new trial and filing a *911 notice of appeal, which are also listed in the final clause of Rule 5-104(B), similarly contain explicit language governing the extension of time limits for filing. See Rule 5-614(C) NMRA 2003 (providing that a motion for new trial must be made within ten days of the verdict unless the court extends the time before the ten days expires); Rule 12-201 NMRA 2003 (providing that a notice of appeal shall be filed within thirty days of judgment but that the district court can extend this time after the thirty days expires for excusable neglect). Therefore, the purpose of the final clause in Rule 5-104(B) is to prevent a conflict with these other rules. Because the rules specifically governing these procedural stages contain the criteria for filings after the expiration of the applicable time limit, this Court intended to prevent Rule 5-104(B)(2) from being construed as an exception to the requirements of those rules. Thus, the clause was not intended to apply to motions, such as the one in the present case, that are filed in a timely manner before the specified period expires. For timely-filed motions, including petitions to extend, Rule 5-104(B)(1) recognizes the district court's discretion to enlarge the period within which the act is required or allowed to be done.[2]
{12} Read in this manner, we believe that Rule 5-104(B) is consistent with Rule 5-604 and Rule 5-601(F). As noted previously, Rule 5-604 is silent with respect to the time the court has to rule on a timely-filed petition to extend. Defendant argues that Rule 5-604 is self-contained and that no reference should be made to other rules. However, under Rule 5-604, "[t]ime is computed pursuant to Paragraph A of Rule 5-104." Rule 5-604 committee cmt. We believe that Rule 5-604 should not be read in isolation and that it should be construed in harmony with Rule 5-104(B). Additionally, the plain language of the rule, standing alone, contradicts Defendant's position. Rule 5-604(E) allows parties to file a petition at any point prior to the end of the applicable six-month time limit. Rule 5-604(E) further provides that, "[w]ithin five (5) days after service of the petition, opposing counsel may file an objection to the extension setting forth the reasons for such objection." Filing the petition to extend at the end of the six months, as the rule allows, would necessarily cause the time for filing an objection to occur after the time limitation expires. We interpret Rule 5-604 in accordance with common sense and with the understanding that it is not designed to effect dismissals by overly technical applications. State v. Flores, 99 N.M. 44, 46, 653 P.2d 875, 877 (1982). Thus, we conclude that, consistent with Rule 5-104(B)(1) and Rule 5-601(F), Rule 5-604(E) inherently contemplates that the court will retain authority to rule on the timely-filed petition to extend beyond the initial six-month period.
{13} We have previously addressed the argument that a time limitation for filing a motion under a rule of criminal procedure should also serve to restrict the court's authority to rule on a timely-filed motion. In Hayes v. State, 106 N.M. 806, 751 P.2d 186 (1988), this Court interpreted a former version of Rule 5-801 NMRA 2003. At that time, Rule 5-801 provided that the district court could reduce a sentence within thirty days of the appellate court's order affirming a judgment of conviction. Hayes, 106 N.M. at 807, 751 P.2d at 187. As with Rule 5-604, Rule 5-801 was then silent on whether the district court was required to rule on the motion within the thirty-day time limit or whether the court could rule on a timely-filed motion after the time limit expired. See Hayes, 106 N.M. at 807, 751 P.2d at 187. Somewhat like the Court of Appeals' construction of Rule 5-604 in the present case, the Court of Appeals in Hayes interpreted Rule 5-801 to require the district court to rule on a motion to reduce sentence before the thirty days expired. Hayes, 106 N.M. at 807-08, 751 P.2d at 187-88. Because the district court had not ruled on the matter within thirty days, the Court of Appeals held that the district court lacked jurisdiction to enter a ruling, even though the defendant had filed the motion in a timely manner *912 within the thirty-day period. Id. at 807, 751 P.2d at 187. This Court reversed the Court of Appeals and held that the thirty-day period was jurisdictional only "insofar as the filing of motions under Rule 5-801 is concerned..., so that motions must be filed within thirty days of the entry of the appellate judgment. As to the disposition of the motion, however, the court possesses discretion to hear and decide motions after thirty days." Id. at 808, 751 P.2d at 188. This Court held that the district court had a reasonable time to rule on the motion, which we set as ninety days after the motion is filed. Id. The current version of Rule 5-801(B) reflects this latter holding in Hayes and provides that "[t]he court shall determine the motion within ninety (90) days after the date it is filed or the motion is deemed to be denied."
{14} In State v. Shirley, 103 N.M. 731, 732-33, 713 P.2d 1, 2-3 (Ct.App.1985), the Court of Appeals reviewed a former version of Rule 5-614, which governs motions for new trial. As with the rule at issue in Hayes and Rule 5-604 in the present case, the rule governing motions for new trial at issue in Shirley did not specify a time period within which the district court had to rule on a timely-filed motion. Shirley, 103 N.M. at 732, 713 P.2d at 2. As this Court held in Hayes, the Court of Appeals concluded that the district court had a reasonable time to rule on a timely-filed motion. Id. at 733, 713 P.2d at 3; accord In re Michael L., 2002-NMCA-076, ¶¶ 10-11, 132 N.M. 479, 50 P.3d 574 (concluding that, for motions to reconsider a child's disposition under Rule 10-230.1 NMRA 2003, motions invited by the court are not subject to the provision for automatic denial of a motion within ninety days of filing and may be ruled upon after the ninety days expires as long as the district court acts within a reasonable time of filing), cert. denied, No. 25,567, 132 N.M. 484, 51 P.3d 527 (2002).
{15} As these authorities demonstrate, the time limitation in Rule 5-604 that applies to the filing of a petition to extend the time for commencement of trial does not limit the district court's authority to rule on a timely-filed motion. Under Rule 5-601(F) and Rule 5-104(B)(1), as well as our case law interpreting other rules of criminal procedure, we hold that the district court retains authority to rule on a timely-filed motion for a reasonable time. This principle applies equally to petitions to extend filed in this Court.
{16} Defendant did not argue in the district court or on appeal that the district court failed to act within a reasonable time of the State's filing, and we therefore do not address this unpreserved issue. See Shirley, 103 N.M. at 733, 713 P.2d at 3. However, we note that the State filed its motion on January 25, 2001, and the district court ruled on the motion on February 22, 2001.[3] At the hearing on February 22, 2001, the district court judge indicated that, even though the State's motion appeared in the court file, he had not received a copy and was unaware that the motion had been filed until the day of the hearing. Given our amendment of Rule 5-601(F) in 1999 deleting the provision that all motions not ruled upon within thirty days of filing shall be deemed denied, we take this opportunity to emphasize that it is important for parties and court clerks to be vigilant in notifying judges of pending petitions to extend, particularly if a significant amount of time has elapsed since the time of filing. Rule 5-604 is designed to ensure the prompt disposition of cases, Flores, 99 N.M. at 46, 653 P.2d at 877, and Rule 5-604(C) provides that the trial judge may only extend the time for commencement of trial for an additional three months. This context will be considered when applying the requirement in Rule 5-601(F) that a ruling be made within a reasonable time after the petition is filed.[4]See United States v. Smith, 650 F.2d *913 206, 209 (9th Cir.1981) ("Reasonableness in this context must be evaluated in light of the policies supporting the time limitation and the reasons for the delay in each case.").
III. Conclusion
{17} Under the Rules of Criminal Procedure, the district court had a reasonable time after filing to rule on the State's petition to extend the time for commencement of the habitual offender proceeding. We therefore agree with the district court's determination that it had the authority to rule on the State's petition to extend after the six-month rule expired on February 4, 2001. Because the court had authority to grant the petition on February 22, 2001, Defendant's habitual offender proceeding properly commenced within the period of extension and was thus not subject to dismissal under Rule 5-604(F). We reverse the Court of Appeals and affirm the district court's granting of the State's petition to extend. We remand this case to the Court of Appeals for resolution of Defendant's remaining claims on appeal.
{18} IT IS SO ORDERED.
WE CONCUR: PETRA JIMENEZ MAES, Chief Justice, PAMELA B. MINZNER and EDWARD L. CHÁVEZ, Justices.
NOTES
[1] We recognize that Defendant also raised in the Court of Appeals issues other than the granting of the State's petition to extend. Defendant argued that he had a right to a jury and to the standard of proof of beyond a reasonable doubt in the habitual criminal proceeding and that there was insufficient evidence that one of his prior convictions was a felony. Defendant abandoned an additional argument that his habitual criminal proceeding violated his right to a speedy trial. See State v. Aragon, 109 N.M. 632, 634, 788 P.2d 932, 934 (Ct.App.1990) ("All issues raised in the docketing statement but not argued in the briefs have been abandoned."). The Court of Appeals did not address these other issues, and they are not before this Court on the State's petition for writ of certiorari to the Court of Appeals. See State v. Van Cleave, 2001-NMSC-031, ¶ 2, 131 N.M. 82, 33 P.3d 633.
[2] We suggest that the Supreme Court Committee for the Rules of Criminal Procedure review Rule 5-104(B) to determine whether the language in the final clause should be modified to more clearly reflect its intended purpose. We note that, under our interpretation of the final clause, the conjunction "or" should appear before the second use of "for making a motion."
[3] The Court of Appeals, and Defendant before this Court at oral argument, incorrectly identified the filing date as January 5, 2001. Sandoval, 2003-NMCA-031, ¶ 2, 133 N.M. 399, 62 P.3d 1281. The actual filing date is significant in that the district court was influenced by the fact that the motion was filed less than thirty days before the hearing.
[4] Based on the purpose of Rule 5-604, the Supreme Court Committee for the Rules of Criminal Procedure may wish to consider whether it would be appropriate to include an automatic denial provision in the rule, such as the one currently found in Rule 5-614(C) providing that, "[i]f a motion for new trial is not granted within thirty (30) days from the date it is filed, the motion is automatically denied."
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2549561/
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78 P.3d 725 (2003)
Cameron L. WINFREY, Appellant,
v.
STATE of Alaska, Appellee.
No. A-8332.
Court of Appeals of Alaska.
October 16, 2003.
*726 Geoffry B. Wildridge, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Kim S. Stone, Assistant District Attorney, Teresa Foster, District Attorney, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
OPINION
COATS, Chief Judge.
Cameron Winfrey was convicted of driving while intoxicated.[1] He appeals, claiming that the district court erred when it denied his motion to suppress the results of the breath test after finding that state troopers had interfered with his right to make a phone call under AS 12.25.150(b). He also claims that the district court erred when it excluded on relevancy grounds evidence that the troopers had decided to stop videotaping breath testing *727 procedures because the videotapes made prosecuting drunk drivers harder. On the first issue, we agree with the district court that suppression was not warranted because, as the district court found, neither of Winfrey's requests to make a phone call was related to the breath test. As for the second issue, we believe that the evidence Winfrey sought to admit was relevant; however, based on the inadequacy of Winfrey's offer of proof, and considering the strength of the State's case, we find that any possible error was harmless.
Facts and proceedings
On July 14, 2001, Alaska State Trooper Jeff Jones was driving on Chena Pump Road in Fairbanks near Cheyenne Court when an oncoming vehicle swerved in front of him, crossed completely over his lane of travel, and then left the road, coming to rest in the ditch. Jones activated his vehicle's emergency lights and turned around. As he did so, the driver of the vehicle, later identified as Winfrey, got out of the vehicle and ran into some nearby woods. Other troopers arrived to help Jones track Winfrey down.
At least twice, troopers spotted Winfrey, who continued to run from them. One of the troopers chasing Winfrey saw that as he ran, he was "having a hard time ... keeping himself balanced." Winfrey, because of his weaving, "was hitting trees. I mean, he was actually literally bouncing off trees." Approximately forty-five minutes after he had fled from his vehicle, Winfrey was apprehended and placed in Jones's vehicle. When they apprehended him, the troopers saw that Winfrey "could hardly stand, he swayed, staggered would be more correct. He had bloodshot watery eyes, [and] ... an odor of alcohol ... [that] was fairly strong." He also had slurred speech, and he failed the only two field sobriety tests the troopers gave himthe horizontal gaze nystagmus test, and a test that required him to count backwards. He was arrested for driving while intoxicated and transported to the Alaska State Trooper post in Fairbanks. When he was tested on a DataMaster, his breath alcohol content was .221 percent.
Before trial, Winfrey moved to suppress the results of the DataMaster test. He claimed that his right under AS 12.25.150(b) to make a telephone call had been violated. An evidentiary hearing was held, during which Jones, Winfrey, and Winfrey's wife testified.
Jones testified that Winfrey did not ask to use the phone. Winfrey, however, testified that he had asked Jones while being transported to the trooper post if he could use Jones's cell phone to call his wife to arrange bail, and that Jones responded that he could use a phone later when they got to jail. Winfrey also said that at the post, while Jones was attending to other business, he asked an unidentified female trooper if he could use the phone; although this trooper spoke with Winfrey, Winfrey said she did not respond to his request to use a phone. Winfrey's wife testified that when she picked Winfrey up at the jail, he complained that he had tried to use a phone earlier while in custody to arrange for bail.
After the hearing, District Court Judge Mark I. Wood denied Winfrey's motion to suppress. Judge Wood found that Winfrey had twice asked to use the phone, and that he had done so each time to arrange for bail. Based on these findings, Judge Wood ruled that the troopers had violated Winfrey's right under AS 12.25.150(b) to call his wife. However, Judge Wood held that suppression of the breath test result was not warranted because Winfrey's requests to use the phone were not related to the breath test.
Later, District Court Judge Jane F. Kauvar presided over Winfrey's jury trial. During this trial, Winfrey asked to call a trooper he claimed would testify that the troopers had made a deliberate decision to stop videotaping detainees during breath tests because "people look too good on the videotape" that is, because detainees appeared too sober. Judge Kauvar excluded this evidence, ruling that it was not relevant to Winfrey's case. The jury found Winfrey guilty of driving while intoxicated. He now appeals.
Did the violations of AS 12.25.150(b) require suppression of the DataMaster results?
Winfrey claims that Judge Wood erred when he refused to suppress the DataMaster *728 breath test results after finding that both troopers had violated his right to contact a relative or friend under AS 12.25.150(b).[2] Judge Wood based his suppression ruling on the supreme court's decision in Zsupnik v. State.[3]
In Zsupnik, the supreme court, expanding its holding in Copelin v. State[4] on the right of an arrestee to contact an attorney, ruled that drivers detained for drunk driving are also entitled to call a friend or relative before deciding whether to submit to a breath test.[5] The defendant in Zsupnik made "four separate requests to telephone her uncle. All were denied. Zsupnik's fourth request was specific: she wanted to call her uncle to ask for advice as to `what to do.'"[6] The supreme court ruled that the police had violated Zsupnik's right under AS 12.25.150(b) when they denied her request to call her uncle.[7] The court said that the right defined in AS 12.25.150(b) is clear: "Subsection (b) is intended to give the prisoner a right `to call both his relatives and a lawyer.' The legislature expressly disapproved the then prevalent practice of allowing a prisoner only one phone call to only an attorney."[8]
Having expanded the statutory right it recognized in Copelin, the court next addressed the appropriate remedy when police violated this limited statutory right. Noting that Zsupnik wanted to call her uncle in order to contact an attorney,[9] a majority of the court concluded that "[i]t is settled that the remedy for violations of AS 12.25.150(b) for purposes related to the defense process is exclusion of tainted evidence."[10] The majority reasoned that exclusion of the breath test result would deter future intentional police interference with an arrestee's right to make a phone call for defense purposes.[11]
The majority, however, added that it "need not reach the issue of whether the refusal of calls by an arrestee for purposes other than obtaining attorney assistance requires the exclusion of evidence."[12] On the other hand, the two dissenting justices opposed application of the exclusionary rule to cases where the arrested person was not attempting to contact an attorney, reasoning that reliable evidence of crimes should not be excluded "where there has been no serious interference with the defendant's ability to prepare her defense."[13]
Although Judge Wood found that both troopers had violated Winfrey's right under AS 12.25.150(b), he also found that Winfrey had told both troopers that he wanted to make the phone call to arrange for bail.
Applying Zsupnik in Winfrey's case, Judge Wood ruled that even though the state troopers had interfered with Winfrey's right under AS 12.25.150(b), this statutory violation did not warrant suppression of Winfrey's breath test result because Winfrey did not want to use the phone for a purpose related to the breath test. Judge Wood's decision is based on the distinction between police interference with a phone call requested for purposes related to a defense function and police interference with a phone call requested for other *729 purposes. We agree with Judge Wood's interpretation of Zsupnik.
Although a majority of the supreme court applied the exclusionary rule in Zsupnik, they did not mandate exclusion of evidence for all violations of AS 12.25.150(b). Instead, the majority held that "the remedy for violations of AS 12.25.150(b) for purposes related to the defense process is exclusion of tainted evidence."[14] As explained earlier, the supreme court did not decide whether the refusal of a call for a non-defense purpose required suppression of breath test evidence, and the dissenting justices argued for applying the exclusionary rule only in cases where the arrested person was obstructed in contacting an attorney.
Here, Judge Wood's decision is consistent with prior Alaska decisions discussing the application of the exclusionary rule when statutory rights have been violated.[15] For instance, in Nathan v. Anchorage,[16] which involved a violation of the Americans with Disabilities Act, we recognized the limited circumstances in which the exclusionary rule is applied when the police violate a statute rather than the constitution:
[W]hen the government has violated a statute (as opposed to the Constitution), suppression of evidence has generally been imposed only when the government's violation of the statute demonstrably prejudiced a defendant's ability to exercise related constitutional rights or to prepare or present a defense.[17]
Winfrey did not at argue at the evidentiary hearing (nor does he on appeal) that the government's violations of AS 12.25.150(b) demonstrably prejudiced his ability to exercise related constitutional rights or to prepare or present a defense. Hence, Judge Wood correctly concluded that there was no reason to suppress the breath test results, given that Winfrey wanted to use the phone only to arrange for bail and not for any discernible defense purpose. Stated another way, there was no connection between the right violated and the evidence Winfrey wanted excluded, hence there was no "tainted evidence."[18]
Although Winfrey argues that he never told the state troopers why he wanted to use the telephone, Judge Wood rejected this contention. He found that Winfrey told both troopers that the reason he wanted to use the telephone was to arrange for bail. While we acknowledge that at the evidentiary hearing Winfrey did not expressly say what he told the troopers, we conclude that Judge Wood's findings are based on reasonable inferences drawn from Winfrey's and his wife's testimony.[19] These findings are not clearly erroneous.[20] Additionally, while Winfrey *730 challenges Judge Wood's finding that Winfrey wanted to make a phone call to arrange for bail, he conceded in his argument at the hearing that this was indeed his purpose.
Winfrey now argues that an arrestee's ultimate reason for wanting to make a phone call is unimportant. He asserts that the supreme court in Zsupnik intended courts to apply the exclusionary rule regardless of an arrestee's underlying reason for wanting a phone call, to ensure that the police honor the arrestee's request. But as explained above, suppression of evidence for violations of a statutory right has generally been imposed only when the government's violation of the statute demonstrably prejudiced a defendant's ability to exercise related constitutional rights or to prepare or present a defense. Nothing in Zsupnik indicates that the supreme court intended to change this general rule. Moreover, Winfrey has advanced no evidence of a pattern of purposeful violations by police of AS 12.25.150(b).[21] Accordingly, we conclude that the exclusionary rule does not apply to violations of AS 12.25.150(b) that are unrelated to the breath test or some other defense purpose.
Did the trial court err when it ruled that evidence that the troopers had decided to no longer videotape the breath test procedures was not relevant?
During Winfrey's trial, Judge Kauvar excluded on relevancy grounds evidence that Winfrey claimed would show that the state troopers had made a policy decision to stop videotaping suspects during breath test processing because the suspects often did not look intoxicated, making prosecutions harder. To introduce this testimony, Winfrey wanted to call a state trooper who was not involved in his drunk driving arrest or processing. After the State objected, Winfrey made the following offer of proof: "Basically, what [the trooper] would say is that [the state troopers] decided that people look too good on the video and so they decided not to do it anymore."
Winfrey argued that this testimony was relevant to show two things: first, that the troopers, by not videotaping drunk driving suspects, were violating their duty "to do the best job they can to preserve evidence"; second, that the troopers were acting in bad faith because they had deliberately decided to prevent juries from reviewing evidence that contradicted troopers' claims that a suspect was acting intoxicated. But Judge Kauvar rejected these reasons, pointing out that the troopers had no duty to videotape drunk driving suspects. She then ruled that a decision made five years before Winfrey was arrested for drunk driving was not relevant to his case. Winfrey claims this was error.
On appeal, Winfrey argues that evidence that the troopers deliberately stopped collecting evidence because it often contradicted the breath test results or witnesses' testimony about how intoxicated a suspect looked or acted is relevant. We agree with Winfrey. While we recognize that the due process clause has "never required [police] officers to undertake a state-of-the-art investigation of all reported crimes,"[22] or to "track down every conceivable investigative lead and seize every scintilla of evidence regardless of its apparent importance or lack of importance at the time,"[23] we believe that it would be relevant if the troopers decided to stop collecting a particular type of evidence in drunk driving cases because the evidence tended to be favorable to defendants.
In this case, it is not clear from Winfrey's offer of proof that the trooper could have given admissible testimony on this issue. *731 But even if we assume that the trooper would have testified in accordance with Winfrey's proffer, and that Winfrey could have shown that the testimony was otherwise admissible, we conclude that any error in excluding this testimony was harmless.
Although the State has not argued harmless error, the State's case against Winfrey was overwhelming. Trooper Jones saw Winfrey driving dangerously; he watched as Winfrey's oncoming vehicle swerved in front of him, crossed completely over his lane of travel, and then landed in the ditch. While Jones was turning his vehicle around, Winfrey fled, running into nearby woods. As the troopers pursued Winfrey, they saw that he appeared to be intoxicated. A trooper chasing Winfrey noted that Winfrey had "a hard time ... keeping himself balanced." Winfrey, because of his intoxication, was "literally bouncing off trees." When Winfrey was finally caught, approximately forty-five minutes after he had fled from his vehicle, he "could hardly stand, he swayed, staggered would be more correct. He had bloodshot watery eyes, [and] ... an odor of alcohol ... [that] was fairly strong." Winfrey also had slurred speech, and he failed the field sobriety tests the troopers gave him. When Winfrey was later tested on a DataMaster, his breath alcohol content was .221 percent. We additionally note that during the cross-examination of Trooper Jones, Winfrey was able to introduce evidence that the troopers had stopped videotaping drunk drivers at least three years before Winfrey's arrest. Thus, he could have argued to the jury that the troopers had stopped videotaping arrestees during breath tests because the evidence was unfavorable to the prosecution.
Given all of these facts, we conclude that any potential error in excluding Winfrey's proffered evidence could not have affected the jury's verdict.
Conclusion
Winfrey's conviction is AFFIRMED.
NOTES
[1] Former AS 28.35.030(a) (2001).
[2] AS 12.25.150(b) provides in relevant part that "[i]mmediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with the prisoner's attorney and any relative or friend, and any attorney at law entitled to practice in the courts of Alaska shall, at the request of the prisoner or any relative or friend of the prisoner, have the right to immediately visit the person arrested."
[3] 789 P.2d 357 (Alaska 1990).
[4] 659 P.2d 1206, 1215 (Alaska 1983) (concluding that "when a person is arrested for operating a motor vehicle while intoxicated and asks to consult a lawyer, AS 12.25.150(b) and Criminal Rule 5(b) mandate that the arrestee be afforded the right to do so before being required to decide whether to submit to a breathalyzer test").
[5] Zsupnik, 789 P.2d at 360-61.
[6] Id. at 358.
[7] Id. at 360-61.
[8] Id. at 359 (citation omitted) (emphasis in Zsupnik).
[9] Id. at 361 n. 4.
[10] Id. at 361 (emphasis added).
[11] Id.
[12] Id. at 361 n. 4.
[13] Id. at 364 (Matthews, C.J., and Rabinowitz, J., dissenting).
[14] Id. at 361 (emphasis added).
[15] Compare Ward v. State, 758 P.2d 87, 90 (Alaska 1988) (exclusionary rule applied when the police deprived the defendant of his statutory right to an independent blood test, thereby impeding the defendant's ability to present a defense), with Burrece v. State, 976 P.2d 241, 244 (Alaska App.1999) (exclusionary rule not applied to suppress evidence obtained pursuant to a telephonic warrant where the judge did not follow statutory procedure in issuing the warrant, and where there was no bad faith); Nathan v. Anchorage, 955 P.2d 528, 533 (Alaska App.1998) (exclusionary rule not applied for violation of Americans with Disabilities Act); Harker v. State, 637 P.2d 716, 719-20 (Alaska App.1981) (exclusionary rule not applied to violation of Posse Comitatus Act); State v. Sundberg, 611 P.2d 44, 50-52 (Alaska 1980) (in the absence of a legislative directive, exclusionary rule not applied where arrests were accompanied by excessive force on the part of the police); see also Zsupnik, 789 P.2d at 361; Copelin, 659 P.2d at 1214-15.
[16] 955 P.2d 528.
[17] Id. at 533.
[18] See Zsupnik, 789 P.2d at 361; cf. Smith v. State, 948 P.2d 473, 477 (Alaska 1997) (quoting Erickson v. State, 507 P.2d 508, 516 (Alaska 1973)) ("Once a causal connection is established between the proffered evidence and the primary illegality, the evidence must be excluded unless if falls within [some exception].").
[19] See Stumbaugh v. State, 599 P.2d 166, 172 (Alaska 1979) (when reviewing a denial of a motion to suppress, appellate courts "view the record in the light most favorable to upholding the trial court's ruling").
[20] See Chilton v. State, 611 P.2d 53, 55 (Alaska 1980); see also Nathan, 955 P.2d at 531 (citation omitted) (A finding is clearly erroneous only when an appellate court is left with a "definite and firm conviction ... that a mistake has been made, even though there may be evidence to support the [trial court's] finding."); Wilburn v. State, 816 P.2d 907, 911 (Alaska App.1991) (citation omitted) ("We will reverse the trial court's factual findings only if they are clearly erroneous. Reversal is proper only where there is no substantial evidence supporting the trial court's findings.").
[21] Cf. Sundberg, 611 P.2d at 52 ("In the event a history of excessive force arrests is shown, demonstrating that existing deterrents are illusory, we will not hesitate to reexamine the question of whether an exclusionary deterrent should be fashioned...."); Nathan, 955 P.2d at 533 (noting, in declining to apply the exclusionary rule, the absence of evidence of persistent, purposeful violations of the statute).
[22] March v. State, 859 P.2d 714, 716 (Alaska App.1993).
[23] Id. (quoting Nicholson v. State, 570 P.2d 1058, 1064 (Alaska 1977)).
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241 Cal.App.2d 594 (1966)
THE PEOPLE, Plaintiff and Respondent,
v.
GEORGE EDWARD PARGO, Defendant and Appellant.
Crim. No. 2275.
California Court of Appeals. Fourth Dist., Div. One.
Apr. 19, 1966.
J. Perry Langford, under appointment by the District Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Robert P. Samoian, Deputy Attorney General, for Plaintiff and Respondent.
WHELAN, J.
Defendant appeals from a judgment on jury verdict finding him guilty of grand theft from the person, and of attempted robbery, in violation of Penal Code, section 487, subd. 2.
At about 5 a.m. of November 8, 1964, John Leonard Vogan and Charles Cleaver were offered a ride in a car whose driver thereafter forcibly removed from Vogan's wrist a 17-jewel Benrus watch and who, after Vogan and Cleaver alighted *596 from the car, armed himself with a tire iron with which he approached Vogan while demanding a diamond ring which the latter wore. His demand was refused; he then reentered the car and drove away.
A description of the car and driver was circulated by police. About 1:15 a.m. of November 14, defendant, who answered the description of the driver, was seen in a car that answered the description of the car. The car was then being driven by its owner, Mrs. Deweylene Lee. Defendant was arrested.
Vogan and Cleaver identified defendant as Vogan's assailant, and Mrs. Lee's car as appearing to be the car in which they had ridden.
On November 12, defendant pawned, for five dollars, a 17-jewel Benrus watch of the same type as the stolen watch. On November 14, following his arrest and release on bail, defendant redeemed the watch.
Defendant testified that on November 8 he was continuously at the home of Mrs. Moss, a sister of Deweylene Lee, from a time prior to midnight of the previous day until about 12 o'clock noon. He denied that he had committed either crime or that he had been in Mrs. Lee's car the morning of November 8, and declared that the Benrus watch he had pawned was his own.
Mrs. Moss corroborated defendant's testimony that he had been in her home during the relevant period.
Mrs. Lee, who lived with Mrs. Moss, testified that she had been away from home with the car from the night of November 7 until about noon of November 8; that defendant had not been in the car during that period. On cross- examination, Mrs. Lee, over objection, was asked about her use, and the availability for use by her, of a second automobile, a Thunderbird, which she said belonged to her fiance, and as to the periods during which it had been in her possession. She had been interviewed by an investigator from the district attorney's office concerning defendant's possible use of her car on November 8. On cross-examination, she was asked if she had made a statement as to the reason for her being at home on the day of the interview, which she denied. On rebuttal, a witness was called for the purpose of contradicting her testimony as to the period of time she had had possession of the Thunderbird car, another to contradict her testimony that she had not made the questioned statement as to her reason for being home when interviewed by the investigator.
On cross-examination, over objection that it was improper *597 cross-examination, defendant testified that he had, on August 3, 1964, pawned two women's wristwatches; without further objection, he was asked if, and stated that he had, on February 15, 1965, pawned a man's Elgin wristwatch. The defendant volunteered the further information that before August 3, 1964, he had also pawned another woman's watch and a ring.
Defendant was cross-examined, over objection, about a traffic citation issued to him on October 16, 1964, when he was driving Mrs. Lee's car. He had testified that he had never driven the car south of National City. He admitted having received the citation and said there were other people with him in the car at the time. On rebuttal, the officer who had issued the citation testified that defendant was alone in the car; that the incident occurred some 5 miles south of National City and 2 miles north of the Mexican border, and that defendant had said he was returning from Tijuana.
On cross-examination of defendant, he was asked if he had been using heroin during the period when the crime was committed. Objection was made. The district attorney explained his purpose of testing the witness' memory, ability to narrate and perception. He produced evidence that sufficiently showed a belief in good faith that defendant was a heroin user. The objection to the question was overruled; a negative answer was given by the witness.
The district attorney, over objection, obtained from defendant information that on May 7, 1965, defendant had registered under section 11850, Health and Safety Code, with the San Diego Police Department because his probation officer had told him to register, and a further denial that defendant was using narcotics on the date of the theft and attempted robbery; a denial that "as far back as February 1964, he was using narcotics"; an admission that during 1964 he had spent a period of time in local confinement for the use of narcotics; a statement that the period of confinement was for being in possession of an "outfit" in a residence where he was visiting; and a denial that he had been under the influence of a narcotic at any time in the year 1964, or was an addict.
In rebuttal, Dr. Williams, a medical doctor, testified that as police physician he had examined defendant on February 21, 1964, for the purpose of determining whether defendant was using or under the influence of or addicted to a drug or narcotic; that such examination produced the following: "... the eye pupils were constricted and reacted poorly to light, *598 and I noted the following marks on his arms: in the left elbow fold, in a scarred vein, there were fifteen needle marks; and in the right elbow fold, there was also a scarred vein, but there were no recent needle marks seen. I estimated the ages of these needle marks to vary from fresh; that is, within a few hours old, to about a week old"; that on questioning by Williams, defendant contended the needle marks were old marks; that in Williams' opinion defendant at the time of the examination was under the influence of a narcotic, probably heroin.
Following the testimony of Williams, the court admonished the jury as follows: "The jury is at this time admonished that as to the testimony given by this witness, you may not consider the testimony so given in determining the truthfulness or untruthfulness of the statements made by the defendant on the witness stand. You may consider them solely and only as to whether there has [been], as a result of the use of the drug, if there has been such a use, a dulling of perception and memory and ability to narrate, and that it is the only purpose and only basis on which you may consider the testimony as given by the doctor."
Among the instructions given to the jury before submission was this: "Evidence was offered in this case for the purpose of showing that the defendant committed another crime than the ones of which he is accused and for which he is on trial in this action, namely, that on February 21, 1964, the defendant was under the influence of a narcotic."
"Such evidence was received for a limited purpose only and not to prove distinct offenses or continual criminality. The original inquiry regarding defendant's use of narcotics was made solely in connection with defendant's perception, memory and ability to narrate, which are proper inquiries raised when the defendant becomes a witness. Having chosen to extend the scope of inquiry by a complete denial of use of narcotics, the defendant may properly be met by contrary proof if available." (CALJIC 33 Modified.)
At the time for pronouncement of judgment, the court sentenced defendant to prison for attempted robbery, and stated that imposition of the sentence on the grand theft conviction was suspended until completion of the attempted robbery sentence, when the stay would become permanent. The written minutes, dated June 3, 1965, however, recited that defendant was sentenced for both offenses for the term prescribed by law. On June 11, the minutes of the court were entered nunc pro tunc as of June 3, stating that defendant was sentenced as to *599 both counts, but that sentence be stayed as to the grand theft count.
Defendant's Contentions
Defendant contends that it was error to permit the cross-examination of defendant concerning his possible use of heroin and addiction, his registering under section 11850, Health and Safety Code and his conviction and incarceration for a narcotics violation; and to admit the testimony as to the police physician's examination of defendant and his opinion based thereon; that it was error to give the quoted instruction as to the purpose of such evidence because the instruction given assumed that defendant was a liar, and because there was no evidence as to the effect of narcotic use upon the perception, memory or ability to narrate.
Defendant contends further that the trial court erred (a) in permitting cross-examination of defendant as to his pawning of other watches because there was no attempt to show either a series of similar acts or a common scheme; (b) in permitting impeachment of defendant as to the circumstances under which he received a traffic citation on October 16, 1964, because the matter was collateral; (c) in permitting impeachment of Deweylene Lee as to collateral matters; and (d) in entering a judgment imposing sentence as to both counts of the information because such sentences violate Penal Code, section 654.
In giving the questioned instruction and the quoted earlier admonition to the jury, the trial court took judicial notice that addiction to narcotics or their use impairs the testimonial capacity with respect to ability to perceive, remember and narrate.
There is some respectable authority for that position. (See 3 Wigmore, Evidence (3d ed.) 934, pp. 481-482, and cases there cited.) [1] We think it may be safely said that a witness who is intoxicated by a narcotic at the time of the event as to which he is testifying or at the time of testifying will be subject to frailties as an observer and narrator equal to those suffered by one drunk from an alcoholic beverage.
Legislative recognition has been given in Vehicle Code, section 23105, to the possible impairment of the sensory mechanisms incident to being under the influence of a narcotic. Of section 23105, it is said in People v. O'Neil, 62 Cal.2d 748, at page 751 [44 Cal.Rptr. 320, 401 P.2d 928]: "No question arises as to the legality, or statutory purpose, of this prohibition, which obviously serves to protect the motoring public *600 from the potential danger of a person at the wheel who is 'under the influence of narcotic drugs.' "
Here there was no evidence or suggestion that at the time of testifying defendant was under the influence of a narcotic, and no evidence that he was under such influence on November 8. The evidence that he was under the influence of a narcotic on February 21, 1964, seems remote from any time as to which such condition could have been relevant.
Professor Wigmore said, concerning a habit of intemperance, as distinguished from actual intoxication at the relevant time: "... a general habit of intemperance tells us nothing of the witness' testimonial incapacity except as it indicates actual intoxication at the time of the event observed or the time of testifying ..." (3 Wigmore, Evidence, 934, p. 481.)
Testimony as to the habitual use of heroin by a witness for five months during the period concerning which she testified was permitted in People v. Bell, 138 Cal.App.2d 7 [291 P.2d 150]. There the witness was also asked as to the effect of the drug upon her powers of perception and memory. A medical witness gave his opinion as to the effect upon the mental condition of one who used heroin to the extent testified to by the witness sought to be impeached.
[2] We believe that in California the possible effect upon the testimonial capacity of a witness of present or past use of a narcotic may not be judicially noticed. We expressly do not hold that a court might not judicially notice the effect upon a witness of his being under the influence of a narcotic either when testifying or at the time of an event concerning which he testifies.
[3] We are compelled to reverse because of the lack of any expert evidence of the effect upon testimonial capacity of the use of or addiction to narcotics, especially as to the effect of having been under the influence of a narcotic at a time so seemingly remote from any relevant date as the time of Dr. Williams' examination.
It was error to have given the questioned instruction in the absence of such expert testimony.
While generally it is proper to permit a good-faith inquiry made relevant by proper expert testimony as to the effect of narcotic usage upon the testimonial capacity of a witness, there are hazards in permitting such inquiry as to a defendant in a criminal case who is a witness on his own behalf. Where, as in the present case, there is a complete denial of involvement *601 and a claim as to a clearly remembered alibi, evidence of narcotics usage by a defendant may leave the jury less able to distinguish between an attack upon the testimonial capacity of the witness and an attack upon his subjective intention to be a truthful witness.
Defendant's Other Contentions
On a retrial, questions may arise as to the admissibility of some of the other evidence to which defendant has taken exception.
The objection was not well taken that it was not proper cross-examination to ask defendant if he had pawned a man's wristwatch other than the Benrus. Defendant had specifically denied the crimes charged. He claimed to be the owner of the Benrus which he pawned and two days later, after his release from custody, redeemed it, although at the time of redemption he was the claimed owner of another watch. Those circumstances, under the prosecution's theory of the case, might have a bearing upon defendant's motive in redeeming the Benrus watch so shortly after pawning it. [4] The testimony as to the pawning of the watches before the date of the alleged crime indicates at least that defendant, at the time of the alleged offense, knew of a method of turning a watch into ready cash and is relevant to motive. There is nothing to indicate that any of the watches other than the Benrus was obtained by theft, so that the pawning of the other watches does not disclose a criminal plan or scheme. The probative effect of the evidence was not great. It would have been greater if the evidence had shown that the Benrus was the only pawned watch that had been redeemed.
The extent of the use by defendant of Mrs. Lee's car was relevant. In view of his claim to restricted use of the car, it was not improper to allow it to be shown that on an occasion shortly before the alleged crime he had been in possession of the car alone while returning from a foreign country.
[5] Mrs. Lee, who was employed, and Mrs. Moss lived together with four children. If, instead of only one car, there were two cars available for the use of the menage, there might have been greater opportunity for defendant to have used Mrs. Lee's car on the day of the theft and attempted robbery. Evidence of Mrs. Lee's possession and use of the Thunderbird was, therefore, not wholly irrelevant.
We need not discuss the other points raised on appeal.
The judgment is reversed.
Brown (Gerald), P. J., and Coughlin, J., concurred.
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20 A.3d 977 (2011)
161 N.H. 778
PROGRESSIVE NORTHERN INSURANCE COMPANY
v.
ARGONAUT INSURANCE COMPANY and another.
No. 2010-370.
Supreme Court of New Hampshire.
Argued: February 16, 2011.
Opinion Issued: April 26, 2011.
*979 Wiggin & Nourie, P.A., of Manchester (Gordon A. Rehnborg, Jr. and Mary Ann Dempsey on the brief, and Mr. Rehnborg orally), for Progressive Northern Insurance Company.
Primmer Piper Eggleston & Cramer, of Littleton (Gregory M. Eaton on the brief and orally), for Argonaut Insurance Company.
Mallory & Friedman, PLLC, of Concord (Mark L. Mallory on the brief and orally), for Craig Kelly.
A.W. Perkins Law Offices, PLLC, of Concord (Arthur W. Perkins on the memorandum of law), and Phillips Law Office, PLLC, of Concord (Roger B. Phillips on the memorandum of law), for Martin and Linda Morasse.
DALIANIS, C.J.
Argonaut Insurance Company (Argonaut) appeals a ruling of the Superior Court (Smukler, J.) denying its motion for summary judgment and granting summary judgment to Craig Kelly and partial summary judgment to Progressive Northern Insurance Company (Progressive). We affirm.
The following facts were either found by the trial court or are undisputed by the parties. On June 7, 2006, Kelly left his car for service at Tom's Auto Sales (Tom's), *980 which his parents own and operate. Tom's loaned Kelly a 1991 Honda Accord to use while his car was being serviced. The next day, Kelly was involved in a car accident with Martin Morasse. Subsequently, Morasse and his wife brought suit against Kelly alleging negligence and loss of consortium. At the time of the accident, Kelly had a personal automobile insurance policy issued by Progressive with liability limits of $100,000 per person; Tom's had a garage insurance policy issued by Argonaut with liability insurance limits of $25,000 and $750,000, depending upon the circumstances.
Argonaut investigated the accident and concluded that Kelly's use of the vehicle was personal and that he was not a scheduled driver on the policy. Accordingly, Argonaut concluded that it would only provide a defense to Kelly under the $25,000 limit set forth in the policy's "Additional Garage Limitations" endorsement (endorsement). Argonaut identified Progressive as the primary insurer and contended that Progressive was obligated to defend and indemnify Kelly in the Morasse lawsuit. Progressive then sued Argonaut, asserting that Argonaut must defend and indemnify Kelly under Argonaut's $750,000 policy limit. Both insurers moved for summary judgment. The trial court concluded that Argonaut was obligated to provide primary liability coverage up to $750,000 and that Progressive's policy provides excess coverage. The trial court also ruled that Progressive must pay its pro rata share of defense costs. This appeal followed.
In reviewing a trial court's summary judgment ruling, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Furbush v. McKittrick, 149 N.H. 426, 429, 821 A.2d 1126 (2003). Summary judgment may be granted only where no genuine issue of material fact is present, and the moving party is entitled to judgment as a matter of law. Id. We review the trial court's application of the law to the facts de novo. Id.
"In New Hampshire, an insurer's obligation to defend its insured is determined by whether the cause of action against the insured alleges sufficient facts in the pleadings to bring it within the express terms of the policy." Marikar v. Peerless Ins. Co., 151 N.H. 395, 397, 855 A.2d 1246 (2004) (quotation omitted). Thus, our analysis begins with an examination of the insurance policy language. Id. The interpretation of insurance policy language, like any contract language, is ultimately an issue of law for this court to decide. Id. We look to the plain and ordinary meaning of the policy's words in context. Id. Policy terms are construed objectively, and when the terms of a policy are clear and unambiguous, we accord the language its natural and ordinary meaning. Id. When an insurance policy's language is ambiguous, however, and one reasonable interpretation favors coverage, we construe the policy in the insured's favor and against the insurer. Id.
Argonaut's primary argument is that its liability in this case is limited to the financial responsibility law limit of $25,000, see RSA 259:61 (Supp.2010), pursuant to the endorsement. The endorsement states:
The limits for Liability Coverage applicable to "bodily injury", "property damage" or "loss" arising out of the use of covered "autos" owned by you and "furnished or available for regular use" of owners, partners, officers, employees, spouses, children or relatives of yours or any other person are reduced to the compulsory or financial responsibility law limits for any claim arising from an "accident" which occurs while a covered *981 "auto" is being driven by any driver who is not listed on this endorsement. "Furnished or available for regular use" means the right to frequent use of an "auto" for purposes that are not necessary or incidental to ["]garage operations[."] This limitation does not apply to the persons named in the Schedule of Drivers Furnished "Autos."
The parties agree that, pursuant to the endorsement, Argonaut's coverage is limited to $25,000 when the covered auto is: (1) owned by the named insured; (2) used by a driver not listed on the schedule; (3) used "for purposes that are not necessary or incidental to [`]garage operations[']"; and (4) used by a driver who has the "right to frequent use" of the covered auto. Because the parties agree on this construction, we will apply it. There is no dispute as to the first two elementsKelly was using a covered auto owned by the named insured and he was not a driver listed on the schedule. The parties dispute whether the third and fourth elements are also met.
We begin by addressing the third element: whether Kelly was using the covered auto "for purposes that are not necessary or incidental to [`]garage operations.[']" Argonaut suggests that we should not consider this element because Progressive did not previously make this argument before the trial court. We disagree. The issue of the interpretation of Argonaut's endorsement is properly preserved for our review and is a question of law, which we review de novo. Concord Gen. Mut. Ins. Co. v. Green & Co. Bldg. & Dev. Corp., 160 N.H. 690, 693 (2010).
The endorsement requires us to consider whether Kelly was using a covered vehicle for "purposes that are not necessary or incidental to [`]garage operations.[']" The policy defines "[g]arage operations" as
the ownership, maintenance or use of locations for garage business and that portion of the roads or other access that adjoin these locations. "Garage operations" includes the ownership, maintenance or use of the "autos" indicated in Section I of this Coverage Form as covered "autos". "Garage operations" also include all operations necessary or incidental to a garage business.
(Emphasis added.)
Progressive asserts that, based upon the second sentence of this definition, "garage operations" includes all use of the covered vehicles. Argonaut appears to argue that the definition should be read as a whole such that a person's use of a covered auto must be necessary or incidental to a garage business. There is support for both interpretations. Compare Spangle v. Farmers Ins. Exchange, 166 Cal. App. 4th 560, 82 Cal. Rptr. 3d 763, 769-70 (2008), with Lambert v. Northwestern Nat. Ins. Co., 115 Idaho 780, 769 P.2d 1152, 1155-56 (1989). However, adopting Progressive's construction would render the endorsement a nullity, which we will not do. See Weeks v. Co-Operative Ins. Cos., 149 N.H. 174, 177-78, 817 A.2d 292 (2003) (interpreting policy in manner that would render exclusion meaningless is not reasonable); Int'l Surplus Lines Ins. Co. v. Mfrs. & Merchants Mut. Ins. Co., 140 N.H. 15, 19, 661 A.2d 1192 (1995) (language in insurance policy not presumed to be mere surplusage). Accordingly, we accept Argonaut's construction that "garage operations" includes the use of a covered auto for operations that are necessary or incidental to a garage business. Even applying this definition, Tom's provided the accident vehicle, a "covered auto," to Kelly as a "loaner" while his car was being repaired at Tom's; thus, his use was incidental to Tom's garage business. See Henry ex rel. Weis v. General Cas. Co., 225 Wis. 2d 849, 593 N.W.2d 913, 919 (1999). *982 Therefore, Kelly's use of the "loaner" fits the definition of "garage operations."
Because Kelly's use of the accident vehicle fell within "garage operations," the third element of the endorsement is, therefore, not met. Accordingly, even if we assume that Kelly met the fourth element of the endorsement, in that he had a "right to frequent use" of the covered auto, the endorsement would still not apply because, by definition, Kelly was using the covered auto for garage operations.
Argonaut asserts that if Kelly did not have the right to frequent use of Tom's vehicles and was not using the accident vehicle for a purpose incidental to Tom's garage business, then Kelly must have been a customer of Tom's. The Argonaut policy contains a separate provision, which limits Argonaut's liability when a customer of Tom's drives a covered auto. The trial court concluded that the customer provision did not apply to Kelly because "he did not pay and did not intend to pay for the work" done on his car. We decline to address Argonaut's argument that Kelly was a customer of Tom's because Argonaut did not challenge the trial court's ruling in its notice of appeal. See LaMontagne Builders v. Bowman Brook Purchase Group, 150 N.H. 270, 276, 837 A.2d 301 (2003) (arguments not included in notice of appeal are deemed waived).
Argonaut next argues that Argonaut and Progressive should contribute to any settlement or judgment in favor of the Morasses on a pro rata basis. Progressive acknowledges that it must provide coverage to Kelly, but maintains that its coverage is excess over Argonaut's coverage.
Both the Argonaut and the Progressive policies contain "other insurance" clauses. The Argonaut clause states that, "[f]or any covered `auto' you own, this Coverage Form provides primary insurance." The clause further states, "When this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share." The Progressive clause provides that "any insurance we provide for a . . . vehicle, other than a covered vehicle . . . will be excess over any other collectible insurance."
Therefore, we consider whether Argonaut's coverage is, as Progressive asserts, primary coverage, or, as Argonaut maintains, pro rata coverage. The Argonaut clause provides that its coverage is primary for any auto "you" own. "[Y]ou" refers to the "Named Insured shown in the Declarations." "Tom's Auto Sales, Inc." is the "Named Insured" listed in the Declarations. It is undisputed that Tom's owned the accident vehicle. Therefore, the Argonaut policy provides primary coverage.
Argonaut attempts to convert its primary coverage into pro rata coverage by way of the second sentence of its "other insurance" clause, which states that, under certain circumstances, Argonaut will pay "only [its] share." However, the language upon which Argonaut relies is only triggered when there exists "any other Coverage form or policy" that covers "on the same basis." Here, the basis for Argonaut's coverage is that the accident vehicle was owned by its named insured. The basis for Progressive's coverage is that its insured was driving the accident vehicle. Thus, the Progressive policy does not cover on the same basis as the Argonaut policy. Accordingly, the pro rata provision of Argonaut's policy is not triggered. Argonaut's policy affords primary coverage for the accident and Progressive's policy affords excess coverage. Because Argonaut's pro rata provision does not apply, we need not address Argonaut's assertion that its pro rata provision and Progressive's *983 excess provision are mutually repugnant and, thus, both insurers must provide coverage on a pro rata basis.
Argonaut next asserts that the costs of defense in this case should be shared equally between Argonaut and Progressive. Progressive maintains that the issue of defense costs was not raised in the notice of appeal and thus was not properly preserved for our review. Argonaut contends that the issue of defense costs is a subsidiary question contained in its third issue raised on appeal that "the trial court err[ed] in finding that the Progressive policy. . . is excess to the Argonaut policy" and that "the `other insurance' clauses of the policies require Progressive and Argonaut to share any coverage on a pro-rata basis." "Appellate questions not presented in a notice of appeal are generally considered waived by this court." Lassonde v. Stanton, 157 N.H. 582, 587, 956 A.2d 332 (2008).
While the statement of a question need not be worded exactly as it was in the appeal document, the question presented shall be the same as the question previously set forth in the appeal document. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein.
Sup.Ct. R. 16(3)(b). The issue raised in Argonaut's notice of appeal is limited to the coverage afforded by each insurer; we do not find that defense costs are subsumed in that question. Therefore, we decline to address Argonaut's argument regarding defense costs. Lassonde, 157 N.H. at 587-88, 956 A.2d 332; Sup.Ct. R. 16(3)(b).
Argonaut contends that we may still consider the issue of defense costs under our plain error analysis. See Sup.Ct. R. 16-A. Even assuming that the trial court erroneously allocated defense costs, we do not find the error plain. For the plain error rule to apply: "(1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings." Clark & Lavey Benefits Solutions v. Educ. Dev. Ctr., 157 N.H. 220, 225, 949 A.2d 133 (2008) (quotation omitted). "An error is plain if it was or should have been `obvious' in the sense that the governing law was clearly settled to the contrary." Id. (quotation omitted). "Generally, when the law is not clear at the time of trial, and remains unsettled at the time of appeal, a decision by the trial court cannot be plain error." Id. (quotation omitted). As we have never addressed the precise issue of allocation of defense costs between a primary insurer and an excess insurer, and the trial court relied upon authority from other jurisdictions to support its ruling, we cannot say that the law in this area is settled. Accordingly, we decline to hold that the trial court committed plain error.
The remaining issues raised by Argonaut in its notice of appeal, but not briefed, are deemed waived. In re Estate of King, 149 N.H. 226, 230, 817 A.2d 297 (2003).
Affirmed.
DUGGAN and LYNN, JJ., concurred.
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412 F. Supp. 544 (1976)
Melvin MARTIN, Petitioner,
v.
Robert PARRATT, Warden, Nebraska Penal Complex, Respondent.
Civ. No. 73-L-265.
United States District Court, D. Nebraska.
May 6, 1976.
*545 Fredric H. Kauffman, Lincoln, Neb., for petitioner.
Bernard Packett, Asst. Atty. Gen., State of Neb., for respondent.
MEMORANDUM
DENNEY, District Judge.
This habeas corpus matter comes before the Court pursuant to 28 U.S.C. § 2254 subsequent to an evidentiary hearing and the submission of the State court record.[1] In accordance with Rule 52, F.R.Civ.P., the Court makes the following findings of fact and conclusions of law.
Petitioner, Melvin Martin, an inmate at the Nebraska Penal and Correctional Complex, was charged in the District Court of Adams County, Nebraska, with the offense of receiving stolen copper of the value of more than $100 and with being an habitual criminal. A jury found him guilty on August 1, 1972, and petitioner was sentenced to 17 years imprisonment as an habitual criminal. Petitioner appealed his conviction to the Supreme Court of Nebraska, which affirmed the lower court. State v. Martin, 190 Neb. 212, 206 N.W.2d 856 (1973).
Petitioner now seeks a writ of habeas corpus from this Court upon two grounds: (1) Prosecutorial suppression of favorable evidence; and (2) Unconstitutionality of the Nebraska habitual criminal statute.[2]
The transcript of the State court trial reflects that petitioner was originally charged in a two-count information. Count 1 charged the commission of the offense of burglary and Count 2 charged the offense of receiving stolen property and with being an habitual criminal. Martin was brought before the County Court of Adams County on March 3, 1972. Counsel was appointed and a preliminary hearing was held on March 29, 1972. Following the preliminary hearing, Count 1 was dismissed and Martin was bound over for trial. Although bond was set for Martin at $10,000.00, he remained in custody until his trial.
The prosecution's main witness was Ned Nelson, Martin's alleged accomplice. Nelson's testimony, which was denied by Martin, may be briefly summarized as follows. *546 On or about February 13, 1972, Nelson and Martin went to the Naval Ammunition Depot and found three or four tons of copper with large quantities of iron pipe and cinder block, located in a gutted building. They placed the copper away from the wall and departed without the copper during the early morning because of daylight and nearby factories. The two men returned about 10:45 P.M. with hammers, chisels and axes, stripped 1100 pounds of copper and transported it to the Glenville dump, where they unloaded it. The next morning, the men returned to the dump, loaded the copper, and transported it to Council Bluffs, Iowa, where it was sold to a scrap metal dealer for $400.00.
Martin disputed Nelson's testimony and testified that he did not participate in the original taking of the copper and was unaware that it was stolen.
SUPPRESSION OF FAVORABLE EVIDENCE
Petitioner bases his claim of suppression of favorable evidence upon the alleged failure of the State to disclose that Nelson had been promised immunity in exchange for his testimony. Petitioner relies on Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); and Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).
The State initially argues that Martin should be required to first exhaust his State remedies upon this issue, for the reason that this claim was not adjudicated by the Supreme Court of Nebraska. Martin raised this ground in his petition for habeas corpus and respondent's answer alleged that petitioner had raised all grounds being asserted before the Supreme Court of Nebraska. Respondent did not raise the exhaustion argument until the evidentiary hearing before this Court on October 30, 1975.
The exhaustion doctrine should not be applied inflexibly. Rice v. Wolff, 513 F.2d 1280, 1289-1291 (8th Cir.), cert. granted 422 U.S. 1055, 95 S. Ct. 2677, 45 L. Ed. 2d 707 (1975). The exhaustion of State remedies is not measured by the language of the court's opinion, but by the record before the reviewing court. Petitioner argued in his brief before the Supreme Court that it is inferable that Ned Nelson was made promises by the County Attorney for favorable testimony. The Court, therefore, concludes that Martin effectively presented this issue to the Nebraska courts.
Upon the merits of petitioner's claim, Martin has failed to prove any promises of immunity. Nelson testified before this Court that he conferred once with the County Attorney prior to Martin's trial and there was no discussion of his pending charges. Nelson repeatedly denied that a deal had been made, and stated that he wasn't prosecuted because there was a "shake-up" after the elections in the office of the County Attorney.
William Connolly, the County Attorney who prosecuted Martin, corroborated Nelson's denial of immunity. Connolly testified that he diligently prosecuted Martin first because, of the two defendants, he preferred to obtain a conviction of Martin whom he considered the more culpable participant.
Petitioner argues that there exists two bases for a finding that a promise of immunity had been made to Nelson. One is the fact that the charges against him were eventually dismissed. The second basis is that on three occasions Nelson worked for the County Attorney of Adams County and law enforcement officials as an informer in narcotic cases, and testified in one of the cases. Nelson never received payment for his services and following his testimony against Martin he performed no other services for the Adams County law enforcement officials.[3]
The Court is unwilling to infer from these facts and Nelson's ultimate treatment *547 that any prior promises of immunity or leniency had been made. See Weiland v. Parratt, 530 F.2d 1284 (1976). Nelson testified on cross-examination as follows:
Q. Did anyone tell you that it would be to your advantage to cooperate and testify here?
A. No, sir.
Q. Then why are you testifying, if I may ask?
A. Well, for a variety of reasons. It is sort of nice to be married again and settled down, and it goes back sort of a long ways, you might say. You take anybody that does not work for a great length of time and yet always has money has to get it some way, and nine out of ten times it is not legal. When I worked for Endco Manufacturing Company, I had my wife down there harassing me, and harassing the company. We had a lot of complaints about trailers being sabotaged, and I have had my own cars sabotaged, and when you come back with the convertible top sliced off or the seats sliced and after a while something has to be done, and the law enforcement people can only do so much, and I have had a great I have had a great many ideas where all of this has come from. I have had people sitting in the shop after hours on twenty-four hour shifts notice that there has been strange green '59 Buicks driving by, and after a fashion, you get some things that disappear, and after this sort of thing, it gets a guy's goat. (Bill of Exceptions 46:23-47.21).
Connolly credibly explained the reason that he prosecuted Martin first and Nelson's explanation of why his charges were eventually dismissed by the new County Attorney is also credible. The Court cannot properly infer promises of immunity or leniency from defendant's participation as an informer for the Adams County Attorney. It is equally plausible that Nelson's actions were motivated by repentance or perhaps self-interest, in the hope that leniency might emanate from his cooperation with the prosecution in this case and others.
Petitioner asserts that the prosecutor not only suppressed the promise of immunity but intentionally elicited perjured testimony. Nelson testified on direct examination by the State as follows:
Q. Or have you been charged with a crime along with Mr. Martin in this case?
A. Yes.
Q. And you have plead (sic) guilty, is that correct?
A. Yes.
Q. Have you been sentenced at this time?
A. No.
(Bill of Exceptions 22:17-23).
This testimony is repeated at the close of direct examination:
Q. And you were charged, is that correct?
A. Uh-huh.
Q. And you plead (sic) guilty?
A. Yes.
Nelson's testimony elicited at the evidentiary hearing before this Court proved that he had not in fact pleaded guilty to the pending charges, but had waived his right to a preliminary hearing. In response to questioning by the Court, Nelson explained that at the time he thought he had pleaded guilty. Petitioner did not offer any proof that the prosecution knew the testimony was false. See Holt v. United States, 303 F.2d 791 (8th Cir. 1962), cert. denied, 372 U.S. 970, 83 S. Ct. 1095, 10 L. Ed. 2d 132. Furthermore, the Court finds that any prejudice which Martin may have suffered was cured by the testimony of Nelson upon cross-examination as follows:
Q. And have you plead (sic) guilty to both counts?
A. Yes, sir.
Q. Was that plea in County Court or in the District Court?
A. I presume County. I am just not too sure now.
*548 Q. Were you before Judge Irons or Judge Chatterton or were you before Judge Haverly?
A. Judge Haverly.
Q. Did they inform you that that was your preliminary hearing?
A. Yes.
Q. So what you did then, you did not plead guilty, you just merely waived your preliminary hearing? Is that correct?
A. Yes, sir.
(Bill of Exceptions 45:20-46:12).
The credibility of witnesses is a question for the jury. The Court properly instructed the jury that "[the testimony of a claimed accomplice] should be closely scrutinized for any possible motives for falsification, and if you find that he has testified falsely in regard to any material matter, you should be hesitant to convict upon his testimony without corroboration . . .." [Instruction No. 8]. Presumably, "the jury was made up of people of judgment and common sense" and they must have known that Nelson at least hoped for some consideration of leniency on account of his testimony. Weiland v. Parratt, 530 F.2d at 1290.
HABITUAL CRIMINAL STATUTE
The basis for charging a defendant under the Nebraska habitual criminal statute is two prior convictions resulting in a conviction and sentence to prison for terms of not less than one year each. Upon conviction of a third felony, the defendant is deemed an habitual criminal and subject to a mandatorily enhanced sentence of ten to sixty years. Neb.Rev.Stat. § 29-2221 (Cum.Supp. 1974). Although the bringing of an habitual criminal charge, except in rare circumstances, is the factual equivalent of a conviction, the system is not automatic. The prosecutor must first file a supplementary information and this decision is fully within the discretion of the prosecutor.
Despite challenges to habitual criminal statutes, the courts have always upheld their constitutionality. See Spencer v. Texas, 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1966); Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962); Gryger v. Burke, 334 U.S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683 (1948); Graham v. West Virginia, 224 U.S. 616, 32 S. Ct. 583, 56 L. Ed. 917 (1912); McDonald v. Massachusetts, 180 U.S. 311, 21 S. Ct. 389, 45 L. Ed. 542 (1901); Moore v. Missouri, 159 U.S. 673, 16 S. Ct. 179, 40 L. Ed. 301 (1895). Petitioner attempts to distinguish the holdings in these and other cases by urging upon the Court a distinction overlooked by past challenges recidivist laws are not criminal laws but are sentencing laws.
Petitioner argues that sentencing power must be vested in the judge and jury, not in a prosecuting attorney. Berra v. United States, 351 U.S. 131, 139, 76 S. Ct. 685, 690, 100 L. Ed. 1013, 1020 (Black J., dissenting):
A judge and jury act under procedural rules carefully prescribed to protect the liberty of the individual. Their judgments and verdicts are reached after a public trial in which a defendant has the right to be represented by an attorney. No such protections are thrown around decisions by a prosecuting attorney. Id. at 140, 76 S. Ct. at 691, 100 L.Ed. at 1021.
Petitioner attacks the habitual criminal statute upon due process grounds, asserting that it improperly allows the prosecutor to control sentencing without sufficient guidelines or adequate procedural safeguards. In spite of this novel and ingenious argument, petitioner's premise is erroneous.
Nebraska's habitual criminal statute is mandatory in its terms, not discretionary:
Whoever has been twice convicted of crime, sentenced and committed to prison, in this or any other state, or by the United States, or once in this state and once at least in any other state, or by the United States, for terms of not less than one year, shall, upon conviction of a felony committed in this state, be deemed to be an habitual criminal. . . . Neb. Rev.Stat. § 29-2221 (Cum.Supp.1974). [Emphasis supplied].
It would therefore appear that the decision to enhance punishment of a recidivist is *549 the determination of the legislature, not the prosecutor. However, in State v. Martin, supra, the Supreme Court of Nebraska held that "[t]he prosecutor possesses a discretion whether to charge the facts referable to habitual criminality . . .." 206 N.W.2d at 858. The Nebraska court apparently so held on the basis of the discretion historically vested in the prosecution as to whether or not to file any charges at all.
Although the court's interpretation is binding upon this Court, the discretion of the prosecutor in Nebraska is not unbridled or without review, despite petitioner's assertions to the contrary. Neb.Rev.Stat. § 29-1606 (1964) provides in relevant part as follows:
It shall be the duty of the county attorney of the proper county to inquire into and make full examination of all the facts and circumstances connected with any case on preliminary examination . . .. If the prosecuting attorney shall determine in any such case that an information ought not to be filed, he shall make, subscribe, and file with the clerk of the court a statement in writing, containing his reasons, in fact and in law, for not filing an information in such case; . . .; Provided, in such case such court may examine the statement, together with the evidence filed in the case, and if, upon such examination, the court shall not be satisfied with the statement, the county attorney shall be directed by the court to file the proper information and bring the case to trial.
Moreover, petitioner's attempt to invoke the due process clause of the fourteenth amendment is misplaced. The guaranty of a hearing found in the due process clause has traditionally been limited to judicial and quasi-judicial proceedings. Cox v. United States, 473 F.2d 334 (4th Cir.), cert. denied 414 U.S. 869, 94 S. Ct. 183, 38 L. Ed. 2d 116 (1973). Therefore, the proper question is whether the state legislature might reasonably vest in the prosecutor rather than in a judge the responsibility of deciding whether or not to enhance the sentence of a recidivist. This Court's inquiry in the context text of habeas corpus proceedings is whether the statute is repugnant to the Constitution of the United States. The balance of powers embodied in our federal government is not one of the protections of the Bill of Rights applicable to the states. It is fundamental that state governments may be formed without regard to the tripartite form of government recognized under the Federal Constitution. Sweezy v. New Hampshire, 354 U.S. 234, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957).
Originally, petitioner sought to attack the statute upon grounds of unconstitutional application. Although this claim was subsequently abandoned, the Court feels constitutionally bound to comment upon the merits of an "as applied" attack in this habeas corpus proceeding.
Petitioner requested respondent to admit that between January 1, 1970 and January 1, 1975, forty-six men were sentenced to incarceration at the Nebraska Penal and Correctional Complex by the District Court of Adams County, Nebraska; that of these forty-six men, ten men were "habitual criminals," under the Nebraska definition; that of these ten men only one man, petitioner, was charged, convicted, and sentenced as an habitual criminal [Filing # 22]. Furthermore, County Attorney Connolly testified that although he could have used the habitual criminal statute often, he used it only once to its conclusion.
Although the Court recognizes that county attorneys have exercised selectivity when applying Nebraska's habitual criminal statute,
the conscious exercise of some selectivity is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Oyler v. Boles, 368 U.S. at 456, 82 S. Ct. at 506, 7 L.Ed.2d at 453.
Finally, petitioner, relying upon Robinson v. California, 370 U.S. 660, 82 *550 S.Ct. 1417, 8 L. Ed. 2d 758 (1962), argues that the habitual criminal statute constitutes cruel and unusual punishment in violation of the eighth and fourteenth amendments because it punishes a status, rather than an act. The argument ignores the fact that the habitual criminal statute is a sentencing statute imposed upon the conviction of a third felony. The police power justifies increased sentences imposed on persons dangerous to society, and the requirement of a third felony is a recent overt act which distinguishes the problem of "status" confronting the Supreme Court in Robinson v. California, supra.
An Order is filed contemporaneously herewith in accordance with this Memorandum.
NOTES
[1] Petitioner instituted this action on October 4, 1973. The inordinate delay in this case was at the request of petitioner. Petitioner sought to conduct extensive discovery and further requested in open Court that final decision be deferred pending resolution of a similar case, Brown v. Wolff, Civ. No. 74-L-36, (D.Neb. 1974). Petitioner's counsel withdrew this request on April 12, 1976.
[2] Petitioner also alleges in his petition that he was deprived of his sixth amendment right to counsel for the reason that the records of prior convictions used in sustaining the count of habitual criminality do not show on their face that counsel was present or waived. This point was neither argued nor briefed before this Court or the State courts. Petitioner's prior convictions occurred in the years 1938, 1941, 1947 and 1950, long before the Supreme Court ruled that the right to counsel was guaranteed by the sixth and fourteenth amendments. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).
[3] Although petitioner argues that the prosecution failed to inform the Court or Martin's counsel that Nelson was working as an informer in narcotic cases, the identity of informers is confidential and the release of this information may have endangered Nelson.
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16 A.3d 739 (2011)
127 Conn.App. 572
Scott BOULANGER et al.
v.
TOWN OF OLD LYME.
No. 31956.
Appellate Court of Connecticut.
Argued February 3, 2011.
Decided March 29, 2011.
Vincent F. Sabatini, Newington, for the appellants (plaintiffs).
Michael T. Ryan, with whom, on the brief, was Clarisse N. Thomas, Stamford, for the appellees (defendants).
BEACH, ALVORD and SCHALLER, Js.
PER CURIAM.
The plaintiffs, Scott Boulanger, Kathleen Boulanger and Eugene Gallo, appeal from the partial summary judgment[1] rendered by the trial court in favor of the defendants, the town of Old Lyme and Timothy C. Griswold, its first selectman. The plaintiffs claim that the court erred in granting the defendants' motion for summary judgment as to the count or counts of their complaint alleging (1) that they were entitled to a declaratory judgment, (2) multiple violations of title 42 of the United States Code, § 1983 (substantive due process, procedural due process and equal protection), and (3) violations of the due process and equal protection clauses of the Connecticut constitution. We affirm the judgment of the trial court.
The trial court's memorandum of decision sets forth the following facts and procedural history. "The plaintiffs . . . own a parcel of land located at 73 Portland Ave., in the Sound View section of Old Lyme, *740 Connecticut. Prior to 2002, the plaintiffs operated the lot as a private parking lot for their own use. In 2002, the plaintiffs filed an application for a Zoning Compliance Permit so that they could operate their lot as a privately owned public parking lot where the general public could park their cars, for a fee, and visit the Sound View area. This permit was denied with the notation that the requested use was `not permitted' per § 6.3.9 of the town zoning regulations. In 2003, the plaintiffs again filed for a Zoning Compliance Permit seeking to use their property as a public parking lot. This permit application was again denied with the notation that the use sought was prohibited by § 6.3.9 of the town zoning regulations. On April 7, 2004, the plaintiffs once more sought a Zoning Compliance Permit for their property; again, it was denied because of the prohibitions found in § 6.3.9 of the town zoning regulations.
"On April 7, 2004, the plaintiffs also filed an application for a variance with the Old Lyme Zoning Board of Appeals (Zoning Board) seeking permission from the board to use their lot as a public parking lot and claiming that because of the lot's small size, and the fact that it is surrounded by other parking lots, denying the variance would place an undue hardship on the plaintiffs. On June 8, 2004, the Zoning Board held a regular meeting where it discussed the plaintiffs' proposed variance. At that hearing, the plaintiffs were given the opportunity to discuss why they should be granted a zoning variance that would allow them to operate their property as a public parking lot. The Zoning Board declined to grant the plaintiffs' requested variance. The plaintiffs did not appeal the 2004 Zoning Board decision to the Superior Court, as was permissible under General Statutes § 8-8.
"On September 25, 2006, the plaintiffs' attorney sent Timothy Griswold, the First Selectman of Old Lyme, a letter indicating that the town's repeated refusal to allow the plaintiffs to use their property as a public parking lot violated their constitutional rights. By letter dated November 7, 2006, the plaintiffs, through their attorney, gave notice to the defendant [t]own of their claim that they had been injured by the denial of their use of their property and that their United States and Connecticut Constitutional Rights had been violated. By letter dated January 25, 2007, the plaintiffs, through their attorney, applied for a parking permit pursuant to § 161-10 of the town ordinances. No permit was issued. On July 26, 2007, the plaintiffs commenced the present action in the New London Superior Court by filing a summons and eight count complaint alleging violations of the plaintiffs' due process rights under 42 U.S.C. § 1983, takings clause violations under the United States Constitution, violations of the plaintiffs' rights under the Connecticut Constitution and violations of the takings clause of the Connecticut Constitution. The plaintiffs also seek a writ of mandamus ordering the town to provide them with a parking lot permit and declaratory relief stating that the plaintiffs have the right to use their property as a public parking lot." The defendants filed a motion for summary judgment, which the court granted in part. This appeal followed.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.. . . Our review of the court's decision to grant the defendants' motion for summary judgment is plenary." (Citation omitted; internal quotation marks omitted.) Lopes v. Farmer, *741 118 Conn.App. 355, 356, 984 A.2d 71 (2009).
After examining the record on appeal and considering the briefs and the arguments of the parties, we conclude that the judgment of the trial court should be affirmed. Because the court's memorandum of decision resolves properly the issues raised in this appeal, we adopt the court's well reasoned decision as a statement of the facts and the applicable law on the issue. See Boulanger v. Old Lyme, 51 Conn.Supp. 636, 16 A.3d 889 (2010). Any further discussion by this court would serve no useful purpose. See, e.g., Woodruff v. Hemingway, 297 Conn. 317, 321, 2 A.3d 857 (2010).
The judgment is affirmed.
NOTES
[1] Although the trial court's decision did not dispose of all of the counts of the complaint, the plaintiffs filed a motion for an immediate appeal pursuant to Practice Book § 61-4, which the trial court granted. Practice Book § 61-4(a) provides in relevant part that, in cases in which a trial court's judgment does not dispose of all of the counts against the party seeking to appeal, "[s]uch a judgment shall be considered an appealable final judgment only if the trial court makes a written determination that the issues resolved by the judgment are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified, and the chief justice or chief judge of the court having appellate jurisdiction concurs.. . ."
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83 So. 3d 974 (2012)
Luis E. REYES, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 2D10-5470.
District Court of Appeal of Florida, Second District.
March 21, 2012.
James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
*975 Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
BLACK, Judge.
In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), Luis Reyes, Jr., challenges his judgments and sentences in various cases. We affirm all of the convictions and sentences but write to address procedural issues with regard to Reyes' sentences in case number CRC09-020773CF.
In CRC09-020773CF, Reyes was charged with two counts of sexual battery, in violation of section 794.011(3), Florida Statutes (2009), life felonies; burglary with a battery, in violation of section 810.02(2)(a), Florida Statutes (2009), a first-degree felony punishable by life; and home invasion robbery, in violation of section 812.135(2)(c), Florida Statutes (2009), a first-degree felony. Reyes entered an open plea of no contest to all charges and was sentenced to thirty years in prison followed by ten years of sex offender probation on each count, to run concurrently.
Reyes timely filed his notice of appeal on October 29, 2010. On November 10, 2010, he filed a motion to reconsider his sentences in the trial court. The trial court granted the motion and reduced Reyes' sentences in case number CRC09-020773CF to twenty-five years in prison, concurrent on all counts. The court did not orally pronounce any probationary period, and it did not change the sentences on the other cases. The order modifying Reyes' sentences reflects twenty-five year prison terms with no probationary period. However, attached to that order, and also recorded, is an "order amending supervision order" which states that the Department of Corrections' sentences for Reyes have changed from thirty years to twenty-five years and that the probationary period and conditions as previously ordered remain in effect.
It appears that the trial court considered Reyes' motion to reconsider sentence as a motion to reduce or modify under Florida Rule of Criminal Procedure 3.800(c), which permits reduction or modification of legal sentences within certain timeframes. However, the trial court was without authority to rule upon the motion as the filing of Reyes' notice of appeal had divested it of jurisdiction. See Fla. R.Crim. P. 3.800(a); Fla. R.App. P. 9.600(b); Liranzo-Cruzata v. State, 6 So. 3d 114, 114 (Fla. 2d DCA 2009). But see Fla. R.Crim. P. 3.800(b)(2) (expressly providing for motions during the pendency of appeal); Fla. R.App. P. 9.020(h). Further, this court had not otherwise relinquished jurisdiction. Cf. Hammond v. State, 62 So. 3d 1152, 1154 (Fla. 2d DCA 2011). Thus, the trial court's "order amending supervision order," rendered March 9, 2011, and order modifying Reyes' sentences, rendered April 24, 2011, are void and unenforceable. See Stang v. State, 24 So. 3d 566, 568-70 (Fla. 2d DCA 2009). As a result, Reyes can only be held pursuant to the original sentences imposed-thirty years in prison followed by ten years' probation, to run concurrently, and it is that sentence that we affirm.
Accordingly, we affirm Reyes' judgments and sentences without prejudice to any right he may have to file a timely rule 3.800(c) motion following the issuance of a mandate in this appeal or any other appropriate postconviction motion.
Affirmed.
NORTHCUTT and CRENSHAW, JJ., Concur.
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18 A.3d 1213 (2011)
CLEARWATER CONCRETE & MASONRY, INC., Appellant
v.
WEST PHILADELPHIA FINANCIAL SERVICES INSTITUTION, Appellee.
No. 1606 EDA 2010.
Superior Court of Pennsylvania.
Argued February 9, 2011.
Filed March 29, 2011.
*1214 Robert R. Watson, Jr., Blue Bell, for appellant.
John A. Greenhall, Philadelphia, for appellee.
BEFORE: BENDER, LAZARUS, and STRASSBURGER[*], JJ.
OPINION BY STRASSBURGER, J.:
Appellant, Clearwater Concrete Masonry, Inc. (Clearwater) appeals from the order of the trial court granting summary judgment in favor of Appellee, West Philadelphia Financial Services Institution (WPFSI). Upon review, we affirm.[1]
The trial court ably summarized the relevant facts and procedural history as follows.
This case arises out of the construction of the Park West Town Center, a strip mall located at the intersection of 52nd Street and Jefferson Street in West Philadelphia. The strip mall consists of multiple lots. For purposes of this opinion, only three lots are important. Two of the lots are owned by [WPFSI] and the third, adjacent, lot is owned by Lowe's Home Centers, Inc. [Lowe's].
[WPFSI] entered into a contract with WesGold, LLC to develop its parcel. WesGold hired Bond Construction to serve as general contractor on the project. In turn, Bond Construction entered into a subcontract with [Clearwater], whereby Clearwater agreed to *1215 provide materials and perform labor to install concrete curbing in the amount of $467,233.00. Included in the $467,233.00 contract between Clearwater and Bond was $286,275.00 for paving that was to be done on the parcel owned by Lowe's. Although Clearwater performed under the subcontract, it was not paid in full.
On September 25, 2008, Clearwater filed a mechanics' lien against [WPFSI] in the amount of $389,000.00. Less than two months later, on November 12, 2008, Clearwater commenced this action to enforce its lien against [WPFSI]. [WPFSI] filed preliminary objections, which were overruled by this court on December 30, 2008. On January 6, 2009, Clearwater filed a mechanics' lien on the Lowe's parcel in the amount of $399,000.00. In discovery, Clearwater admitted that the amount claimed in the [WPFSI] lien represents all work done at the Park West Town Center, including the paving that was performed on the lot owned by Lowe's.
Trial Court Opinion, 4/21/2010, at 1-2 (footnote omitted).
On January 20, 2010, WPFSI filed a motion for summary judgment, and on April 22, 2010, the trial court granted summary judgment in favor of WPFSI "because Clearwater failed to comply with the Mechanics' Lien Law, 49 Pa.S.A. § 1306." Trial Court Opinion, supra at 2. This timely appeal followed.[2]
Clearwater presents two issues for our review:
A. Whether a mechanics' lien claimant who performed work on several improvements which form part of a single business plant is required to apportion its lien claim?
B. Whether the law of the case doctrine prohibits the trial court from reconsidering its prior decision denying preliminary objections in the form of a demurrer to mechanics' lien claim when there have been no new facts or law presented since those objections were overruled with prejudice?
Clearwater's Brief at 4.
"When an appellate court reviews the grant of a motion for summary judgment, our scope of review is well settled; the trial court will be overturned only if there has been an error of law or clear abuse of discretion. Our review of the record is, however, plenary." D'Errico v. DeFazio, 763 A.2d 424, 429 (Pa.Super.2000) (citations omitted).
Our standard of review in assessing the grant of a motion for summary judgment requires us to view the record in a light most favorable to the non-moving party. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.
Delmont Mech. Services, Inc. v. Kenver Corp., 450 Pa.Super. 666, 677 A.2d 1241, 1244 (1996) (citations omitted).
In conducting our review, we are also mindful that "[t]he Mechanics' Lien Law is a creature of statute in derogation of the common law," and "any questions of interpretation should be resolved in favor of a strict, narrow construction." Wentzel-Applewood Joint Venture v. 801 Mkt. St. Associates, LP, 878 A.2d 889, 892 (Pa.Super.2005). "To effectuate a valid lien claim, the contractor or subcontractor *1216 must be in strict compliance with the requirements of the Mechanics' Lien Law." Id.
Section 1306 of the Mechanics' Lien law provides, in relevant part:
§ 1306. Consolidation or apportionment of claims
(a) Consolidation of claims. Where a debt is incurred for labor or materials furnished continuously by the same claimant for work upon a single improvement but under more than one contract, the claimant may elect to file a single claim for the entire debt . . .
Apportionment of claims. Where a debt is incurred for labor or materials furnished by the same claimant for work upon several different improvements which do not form all or part of a single business or residential plant, the claimant shall file separate claims with respect to each such improvement, with the amount of each claim determined by apportionment of the total debt to the several improvements. . . .
49 P.S. § 1306.
Clearwater contends that its contract with Bond Construction for the Park West Town Center project constituted work upon a single business plant, and Clearwater elected to file a single claim for the entire debt, pursuant to section 1306(a). Clearwater's Brief at 9. In discovery, however, Clearwater admitted it filed a second claim for the same debt. Clearwater's Brief in Response to WPFSI's Motion for Summary Judgment, at 6. The trial court found that "[t]his conduct is not [in] strict compliance with the requirements of the Mechanics' Lien Law; therefore, the [WPFSI] lien must be stricken as invalid." Trial Court Opinion, 4/21/2010, at 4-5. We agreeClearwater was not entitled to file two liens for improvements to a single business plant.[3]
Clearwater also contends that the trial court essentially reversed itself by granting summary judgment on the same facts it had during the preliminary objections stage in contravention of the law of the case doctrine. Clearwater's Brief at 13. This contention is without merit.
[T]he law of the case doctrine refers to a family of rules which embody the concept that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in the earlier phases of the matter. Among the related but distinct rules which make up the law of the case doctrine is the rule that upon transfer of a matter between trial judges of coordinate jurisdiction, the transferee trial court may not alter the resolution of a legal question previously decided by the transferor trial court.
Commonwealth v. King, 999 A.2d 598, 600 (Pa.Super.2010) (citations and internal quotations omitted). A trial judge may always revisit his own prior pre-trial rulings in a case without running afoul of the law of the case doctrine; by its terms, the doctrine only prevents a second judge from revisiting the decision of a previous judge of coordinate jurisdiction or of an appellate court in the same case. Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1331 (1995). In this case, only one judge was involved in both decisions, so the law of the case doctrine does not apply.
Furthermore, a trial court exercises different types of review for preliminary objections and motions for summary judgment. "When reviewing preliminary *1217 objections the trial court looks to the pleadings, but, in considering a motion for summary judgment the trial court weighs the pleadings, depositions, answers to interrogatories, admissions and affidavits." Herczeg v. Hampton Twp. Mun. Auth., 766 A.2d 866, 870 (Pa.Super.2001). The trial court noted that "[WPFSI] has presented new facts [in its motion for summary judgment], specifically Clearwater filed the Lowe's lien and admitted that the [WPFSI] lien represents all work done at the Park West Town Center, including the paving that was performed on the lot owned by Lowe's." Trial Court Opinion, 4/21/2010, at 2 fn. 1.
Thus, the trial court's denial of WPFSI's preliminary objections had little bearing on the question of whether it could ultimately enter summary judgment in WPFSI's favor, taking into account the facts not developed until after the preliminary objections were heard. Accordingly, Clearwater's argument fails.
Order affirmed. Jurisdiction relinquished.
Judge BENDER concurs in the result.
NOTES
[*] Retired Senior Judge assigned to the Superior Court.
[1] In addition to the within action, there is a companion case, Clearwater Concrete & Masonry v. Lowe's Home Centers, Inc., 2060 EDA 2010, presently on appeal before this Court.
[2] The trial court did not order Clearwater to file a concise statement pursuant to Pa.R.A.P. 1925(b).
[3] Alternatively, Clearwater was not in strict compliance with 49 P.S. § 1306(b) either. In order for Clearwater to be in compliance with section 1306(b), Clearwater would have had to apportion. It did not.
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85 So. 3d 1225 (2012)
Raymond KONDLER, Individually and as Trustee of the Irving J. Bottner Revocable Trust and as Trustee of the Irving J. Bottner Charitable Remainder Unitrust, Appellant,
v.
Jeffrey BOTTNER and Barbara Bottner, Appellees.
No. 4D09-5249.
District Court of Appeal of Florida, Fourth District.
May 2, 2012.
*1226 Ryan D. Bailine and Stephen T. Maher of Shutts & Bowen, LLP, Miami, for appellant.
Robert P. Bissonnette of Robet P. Bissonnette, P.A., Fort Lauderdale, for appellees.
MAY, C.J.
A dispute over who pays attorney's fees brings this case to the court. The trustee appeals an order that required him to account for a reserve fund and expenses paid from that fund. He argues that the order disallowed the payment of attorney's fees and other expenses incurred in the administration of the trust from the reserve before distribution of the remainder to the beneficiaries. We find the order to be a non-final, non-appealable order and dismiss the appeal.
After some litigation, the trustee and beneficiaries entered into a mediated settlement agreement. The agreement provided for the collapse of the trust with each of three beneficiaries receiving a one-third share of the corpus, subject to the provisions set forth in Paragraph 2. It provided for the three beneficiaries to "be responsible for one-third of any expenses, fees, taxes and costs of the Trust from this time forward."
Paragraph 2 provided:
RESERVES: The parties agree that the sum of $150,000 shall be held in reserve, in trust, in an interest bearing Money Market account by [the trustee], pending receipt of a closing letter from the IRS approving the 706 Tax Return filed by the Trust/Estate. . . . Upon receipt of said closing letter, the funds remaining after payment of taxes, interest and expenses, shall be paid 1/3 each to: [each beneficiary]. The parties shall be responsible for any estate tax, and interest thereon, which may be due, in the same proportions as set forth in paragraph 1A-D, above. [One named beneficiary] shall be liable for any income tax on any income that she has received prior to the execution of the agreement.
(Emphasis supplied).
Paragraph 5 provided: "DEFAULT: In the event that any party to this Agreement defaults in his or her obligations hereunder, the party in default shall be liable to the non-defaulting party(ies) for all reasonable expenses incurred, including attorney's fees, in the enforcement of obligations created by this Agreement." Paragraph 6 provided for "[e]ach party [to] bear his or her own attorney's fees and costs incurred in arriving at this agreement. . . ."
The trial court entered an agreed order, which incorporated the agreement by reference and required the parties to comply with its terms. After receipt of the federal estate tax closing letter, the trustee paid expenses out of the reserve, including attorney's fees billed before and after the parties entered into the settlement agreement. The trustee then distributed the balance equally to the three beneficiaries, and collapsed the trust.
Two beneficiaries filed a Petition for Accounting and Motion for Enforcement of Settlement Agreement, seeking a breakdown *1227 of the expenses paid from the reserve. In particular, they claimed the trustee had used reserve funds to pay attorney's fees incurred both shortly before and after the parties had entered into the agreement. They argued that the agreement prohibited such deductions from the reserve.
The trial court entered the following order:
Within five (5) days of the entry of this Order, the Trustee . . . is to fully comply with the provisions of Paragraph 2 (Reserve) of the parties' Settlement Agreement herein. Specifically, the Trustee shall prepare and submit a clear statement to the Court and to the Trust beneficiaries . . . that sets forth the subject One Hundred Fifty Thousand Dollars ($150,000.00) reserve amount in an interest bearing Money Market account and which shows all taxes, interest, and expenses arising therefrom which is related to the Trust's 706 Tax Return and the resulting balance distributed to the Trust beneficiaries.
(Emphasis supplied). The order also indicated that the court would entertain civil and/or indirect criminal contempt against the trustee if he failed to comply. Further, the court found the trustee's arguments to be frivolous, and awarded attorney's fees, reserving jurisdiction to determine the amount. The trustee moved for rehearing, which the trial court denied. From this order, the trustee filed the present appeal.
The trustee argues the trial court incorrectly interpreted Paragraph 2 of the agreement as limiting the use of the reserve to matters concerning the 706 Tax Return, and preventing the payment of lawful expenses (i.e., attorney's fees) incurred from general administration of the trust. The beneficiaries respond that the trustee is seeking an advisory opinion concerning what expenses could be paid out of the reserve because the trial court ordered only an accounting and did not make a determination of what expenses could be paid from the reserve. Alternatively, the beneficiaries argue that Paragraphs 5 and 6 specifically address the payment of attorney's fees, and that attorney's fees and other general administrative expenses do not constitute "expenses" payable out of the reserve.
We pause to address jurisdiction. During the course of this appeal, the beneficiaries moved to strike the trustee's brief, indicating that he was arguing issues not yet presented to the trial court. We denied the motion to strike. In his brief, the trustee argues that the court's order actually determines what constitutes an "expense" under Paragraph 2 of the agreement by limiting the accounting to "all taxes, interest, and expenses arising therefrom which is related to the Trust's 706 Tax Return." The beneficiaries argue that the trial court did not reach the issue of what constitutes an "expense." We agree with the beneficiaries.
Upon review of the case on its merits, we find the appeal is premature. The trial court ordered an accounting. It has not made a final determination as to whether attorney's fees incurred in the administration of the estate prior to and subsequent to the settlement agreement can be paid from the reserve. Until such time as that decision is made, the judicial labor is not at an end. Further, an appeal from the trial court's determination to award fees is likewise premature as no amount has been determined. Winkelman v. Toll, 632 So. 2d 130, 131-32 (Fla. 4th DCA 1994).
Bottom line, we lack jurisdiction to consider the order at this time. Heritage Paper Co., Inc. v. Farah, 440 So. 2d 389, 391 (Fla. 1st DCA 1983) (dismissing an appeal from an order directing a full accounting because it was a non-final, non-appealable *1228 order). We dismiss the appeal without prejudice to the parties raising these issues upon rendition of a final, or non-final, appealable order.
Dismissed.
DAMOORGIAN and CONNER, JJ., concur.
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78 P.3d 703 (2003)
VIVIAN P., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF FAMILY & YOUTH SERVICES, Appellee.
No. S-10784.
Supreme Court of Alaska.
October 16, 2003.
*704 Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
OPINION
FABE, Justice.
I. INTRODUCTION
The superior court terminated Vivian P.'s parental rights. Vivian appeals the trial court's determination that Jason is a child in need of aid, that the Department of Health & Social Services, Division of Family & Youth Services (DFYS) made reasonable efforts to reunite the family, and that, in the alternative, DFYS was not required to make reasonable efforts because the child had been *705 subjected to mental and physical harm. Because the superior court did not err in terminating Vivian P.'s parental rights, we affirm its decision.
II. FACTS AND PROCEEDINGS
A. Factual History
Jason B. was born in December 1994 to Vivian P. and Jason B., Sr.[1] The couple had a previous child, Anne. Jason lived with his mother for about a year until she and Jason B., Sr. were both incarcerated in California. For the next four years, Jason lived with his paternal grandmother.
In 1999 Vivian was released on parole and regained custody of Jason. She married Mark P. and in 2000 moved the family to Kodiak, where she gave birth to another child.
Jason, who has attention deficit disorder and oppositional defiant disorder, began kindergarten at Main Elementary School in Kodiak. While Jason had some initial problems adjusting, he started to settle into a school routine. But on three separate occasions in a nine-month period from September 2000 to May 2001, Vivian withdrew Jason from school and voluntarily checked him into North Star Hospital in Anchorage for child psychiatric care.
After returning to school after his first hospital commitment, Jason's behavior regressed, and the school assigned a team of counselors and special educators to help him. Vivian claimed that Jason was having psychotic episodes, not eating, and repeatedly vomiting. Neither the school nor any hospital employees observed Jason exhibiting these problems.
After withdrawing Jason from school and checking him into the North Star Hospital a second time, Vivian told Dr. Lillibridge, a pediatric gastroenterologist, that Jason had lost twenty-five percent of his body weight and was having bouts of vomiting. Based on the mother's reports, Dr. Lillibridge decided to surgically place a feeding tube in Jason. Although Dr. Lillibridge instructed Vivian that the feeding tube was only to be used for home feedings, when Jason returned to school, Vivian showed off Jason's feeding tube to four school employees and told the school officials to use the feeding tube at school. During this meeting, Jason reportedly looked embarrassed and defeated, whereas Vivian reportedly seemed happy and excited. During Jason's third hospital stay, Dr. Lillibridge removed the feeding tube. Additionally, Jason reported numerous incidents of physical abuse at home, including being hit with a hanger and being forced to eat jalapeno peppers as punishment.
B. Procedural History
Due to Jason's repeated school absences, his reports of being abused, and the insertion of a feeding tube, the school filed a report of harm with DFYS. Subsequently, DFYS took emergency custody of Jason while he was at North Star Hospital for a third time. DFYS filed a petition asking for an adjudication that Jason was a child in need of aid. In August 2001 Superior Court Judge Donald D. Hopwood found Jason to be a child in need of aid, ruling that Vivian's conduct had inflicted serious physical and mental harm. Jason was placed in two successful foster homes, eventually being sent to his paternal grandmother who had raised him from the time of the mother's incarceration until her release.
DFYS filed a petition to terminate Vivian's parental rights in July 2002. After the adjudication that Jason was a child in need of aid, but before the termination hearing, Vivian returned to California without first saying goodbye to her son or informing DFYS of her plan to leave. Upon checking in with a parole officer in California, she was re-incarcerated for violating her parole, as she did not have the proper permission to travel back to California. Since being incarcerated, Vivian has not attempted to contact Jason through letters or phone calls.
The court held a termination hearing in August 2002 and terminated Vivian's parental rights, issuing written findings of fact and conclusions of law in support of that decision in November 2002. Vivian now appeals.
*706 III. STANDARD OF REVIEW
We apply the "clearly erroneous" standard of review when analyzing a trial court's findings of fact regarding the termination of parental rights.[2] "Clear error arises only when our review of the entire record leaves us with a definite and firm conviction that the superior court has made a mistake."[3] "Whether the superior court's factual findings satisfy applicable child in need of aid statutes and rules is a question of law that we review de novo."[4]
IV. DISCUSSION
In order to terminate a parent's rights and responsibilities in a child in need of aid (CINA) case, the state must show by clear and convincing evidence that:
(A) the child has been subjected to conduct or conditions described in AS 47.10.011; and
(B) the parent
(i) has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or
(ii) has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury.[5]
Moreover, the state must prove by a preponderance of the evidence that DFYS has made reasonable efforts to reunite the family or that reasonable efforts were not necessary because a parent had "subjected the child to circumstances that pose a substantial risk to the child's health or safety; these circumstances include abandonment, sexual abuse, torture, chronic mental injury, or chronic physical harm."[6]
Vivian appeals the trial court's determination that Jason is a child in need of aid, that DFYS made reasonable efforts to reunite the family, and that, in the alternative, DFYS was not required to make reasonable efforts because Vivian subjected Jason to chronic mental injury and physical harm.
A. Clear and Convincing Evidence Supports the Trial Court's Determination that Jason Is a Child In Need of Aid.
The trial court determined based on clear and convincing evidence that Jason was a child in need of aid. Laila Gonzales, Jason's second foster parent; Mary Gray, a DFYS social worker; and Dr. Welby Jensen, a psychiatrist in Kodiak, testified that Jason told them that he was hit with hangers and belts and that he was forced to eat jalapeno peppers as a form of punishment. Moreover, Ms. Gray, a sixteen-year employee of DFYS, testified that, in her expert opinion, Jason's reports of these incidents were consistent and not likely to be fabrications. Physical marks on Jason supported his claims. Dr. Daniel Mardones, a child and pre-teen psychiatrist at North Star Hospital in Anchorage, testified that Vivian probably suffered from Munchausen's Syndrome By Proxy, a mental health disease marked by a pattern of false reports that Jason showed signs of illness. Dr. Jensen stated that his observations of Vivian's and Jason's conduct were consistent with Dr. Mardones's diagnosis. Dr. Mardones also testified that Jason suffers from post-traumatic stress syndrome because of the alleged physical abuse and the feeding tube incident. No doctor disputed this testimony. Vivian's claims regarding Jason's psychotic behavior and eating problems were not verified by anyone, including her own witnesses, and were deemed by the superior court to be unreliable. On the contrary, many witnesses claimed that Jason was eating well and that his behavior had improved upon enrolling in school in Kodiak.
Joanna McFarlin, who works with students who have counseling issues at East and Main Elementary Schools in Kodiak; Jennifer Eubank, a special education teacher; and Patricia *707 Gibbs, a school administrator and Jason's initial foster parent, testified that Vivian was callous toward Jason's feelings when she showed a room of four school officials Jason's feeding tube and insisted, despite the doctor's orders to the contrary, that the feeding tube be used at school. During this meeting, testimony indicated that Vivian seemed happy and excited with the feeding tube and Jason looked stunned and defeated. In particular, Ms. McFarlin testified:
[Jason] ... walked in really like he was in pain and his lips were dry and kind of caked and [Vivian] lookedshe smiled at all of us and she looked happy and she explained thatshe had him sit down and she lifted up his shirt and she showed us that he had a feeding tube and she lookedI mean the only word that comes to my mind is gleeful and [Jason] looked like he was in pain and he looked embarrassed.
Lola Ann Lind, a case manager at Providence Kodiak Island Mental Health Center, testified that when she visited Vivian's home, Vivian seemed to show more affection for her cat than for Jason. Janet Brenteson, a DFYS social worker, also testified that Vivian seemed unattached to Jason, as Vivian did not react warmly when she saw Jason after he had been placed in a foster home.
In support of its ruling, the trial court found that Jason had suffered multiple incidents of being hit with hangers and belts, that Vivian force-fed him, and that he was forced by his stepfather to eat jalapeno peppers as a form of punishment. The court also found that Vivian likely suffers from Munchausen's Disorder by Proxy. According to the trial court, Vivian, as a result of this disorder, manufactured claims that Jason was suffering psychotic episodes, encountering serious bouts of vomiting, and losing up to twenty-five percent of his body weight. The court noted that no other person who observed Jason on a regular basis agreed with Vivian's assessment of Jason's lack of well-being. According to the superior court, a pediatrician, relying on Vivian's reports and assessment, inserted a feeding tube into Jason, which was later removed because it was deemed unnecessary. The superior court held that as a result of the physical abuse and the insertion of the feeding tube, Jason suffered from post-traumatic stress syndrome.
Moreover, the court found that Vivian withdrew Jason from school and checked him into a children's psychiatric hospital three times during a nine-month period. It also found that Vivian exhibited little attachment to Jason, seemed more interested in her cat, and seemed oblivious or indifferent to her son's feelings when she spoke to others about him in his presence and callously showed off his feeding tube. Vivian, the court found, left Alaska without saying goodbye to Jason when he was in foster care. The record supports the trial court's factual determinations.
The trial court concluded that Jason was a child in need of aid because of Vivian's incarceration, her failure to obtain necessary treatment for Jason, physical harm and threat of continued physical harm caused to Jason by Vivian, mental injury and the threat of continued mental injury caused to Jason by Vivian, and the risk that Jason would be harmed or injured due to Vivian's mental illness.[7] The trial court found the evidence to be so overwhelming that it determined beyond a reasonable doubt that Jason was a child in need of aid. We agree that these factual findings satisfied the CINA statutes.
B. DFYS Did Not Make Reasonable Efforts To Reunite Vivian and Jason.
Vivian argues that the court erred in determining that DFYS made reasonable efforts to reunite Vivian and Jason. The superior court found that the state had engaged in reasonable efforts to assist Vivian in being reunited with her child because before DFYS removed Jason from Vivian's home, "service providers normally involved by DFYS attempted to correct the situation and provide assistance" and Vivian "did not avail herself of those services." The superior court also found that "efforts to assist [Vivian] continued after DFYS became involved, and [Vivian] *708 still did not utilize the offered services or change her behavior."
In making this finding, the superior court implied that DFYS did not have to make reunification efforts because services were provided by school personnel before commencement of the CINA proceeding:
Before the DFYS folks became involved directly in this, there were huge efforts made by many other service providers, the same ones that the department would refer people to and utilize and in fact did after they became involved to correct the situation.... I can't require the department to simply cover the same ground that was done before and did not succeed although services were offered.
But under AS 47.10.086(a), DFYS must make reasonable efforts to reunite the family. Furthermore, in A.M. v. State, we noted that "[w]e have never suggested that the scope of the State's duty to make active remedial efforts should be affected by a parent's motivation or prognosis before remedial efforts have commenced."[8] And there is good reason to require that reasonable efforts be made after DFYS's intervention. Prior to DFYS's intervention, a parent is unaware that failure to take advantage of services provided could lead to the loss of parental rights. After DFYS intervention, that parent is aware of the consequences of non-compliance and may have more incentive to take advantage of services offered to improve the home.
Consequently, to the extent that it relied on services offered and refused prior to DFYS's involvement with the parent to reach its conclusion that reasonable efforts had been made, the trial court erred.[9]
C. While DFYS Needed the Court's Approval Before Ceasing Reasonable Efforts, the Court Did Not Err in Determining Reasonable Efforts To Be Unnecessary.
In the alternative, the superior court ruled that DFYS was excused from the requirement to make reasonable efforts. Alaska Statute 47.10.086(c)(1) provides that "reasonable efforts ... are not required if the court has found by a preponderance of the evidence that the parent ... has subjected the child to circumstances that pose a substantial risk to the child's health or safety." According to the statute, "these circumstances include abandonment, sexual abuse, torture, chronic mental injury, or chronic physical harm." Alaska Statute 47.10.086(c)(1) incorporates into Alaska law the federal Adoption and Safe Families Act of 1997 (ASFA), which is designed to eliminate remedial requirements in extreme circumstances.[10] At the termination hearing, Judge Hopwood determined that Vivian and Mark P. "continuously physically and mentally abused [Jason] during their nine months together in Kodiak." The superior court, therefore, concluded that "[Vivian] subjected [Jason] to ... chronic mental injury or chronic physical harm," making reasonable efforts unnecessary.
Vivian argues that the court's determination at the termination hearing that reasonable efforts were unnecessary was erroneous because AS 47.10.086 anticipates a hearing at which the court decides whether reasonable efforts are required. "The plain language of the statute requires notice and an opportunity to be heard before the state can stop making reasonable efforts." But Vivian never raised this objection at trial. At the beginning of the termination trial, the state argued that the "reasonable efforts requirement *709... can be dispensed with if we simply show that the parent has subjected the child to circumstances ... [that] include chronic mental injury or chronic physical harm," and "the court can see ... this requirement by reading 47.10.086(c)(1) and (c)(7)." Vivian's attorney did not object to this argument, instead responding, "I don't dispute the statutory outline that the state... [has] made today." Vivian's attorney acknowledged that "[t]he court did make findings last year that physical harm had in fact occurred at the hands of [Vivian]" and conceded that the court "may determine that reasonable efforts are not required but it also may determine that reasonable efforts were required." Despite conceding that the court could find reasonable efforts to be unnecessary, Vivian asked the court "to find that reasonable efforts were necessary and that they were not made." To which the court responded: "How would I do that if from the August 2001 findings and conclusions there's already been a determination that [Jason] suffered substantial physical harm as a result of abusive and neglectful conduct by the mother?" By conceding that the court could find reasonable efforts to be unnecessary, Vivian failed to preserve this issue for appeal. We will not address an issue on appeal that was not raised at trial.[11]
But we agree with Vivian's observation that the statutory framework prevents DFYS from deciding on its own, prior to a hearing or order by the court, that reasonable efforts are unnecessary and can be dispensed with pursuant to AS 47.10.086(c)(1). The statutory language instructs the court, and not DFYS, to make the determination regarding the need for reasonable efforts: "The court may determine that reasonable efforts ... are not required...."[12] The statute further requires a court to hold a permanency hearing thirty days after determining that reasonable efforts are not necessary: "If the court determines ... that reasonable efforts under (a) of this section are not required to be provided, the court shall hold a permanency hearing for the child within 30 days after the determination."[13] The cessation of reasonable efforts should only occur when a court determines those efforts to be unnecessary. Consequently, DFYS can not unilaterally determine that reasonable efforts are unnecessary, waiting until the termination proceedings to argue that they are excused.[14]
But the fact that DFYS is precluded from determining on its own that reasonable efforts are unnecessary under AS 47.10.086(c)(1) does not preclude the court from determining after commencement of a termination trial that the reasonable efforts requirement is excused. Indeed, we decided on appeal in J.S. v. State that unification efforts were excused. In that case, a sexually abusive father appealed the termination of his parental rights, claiming that the state did not meet the Indian Child Welfare Act's requirement for active remedial efforts.[15] The superior court had "found that it was uncontroverted that the state failed to offer any type of active remedial or rehabilitative services to Jack."[16] Consequently, "[t]he superior court held the record open for sixty days in order to allow the state to develop and offer a treatment plan to Jack."[17] In reviewing the superior court's ruling on remedial efforts, we concluded that remedial efforts were unnecessary because ASFA excused them due to sexual assault.[18] We reasoned that "the enactment of [ASFA] convinces us that it is the policy of Congress to not require remedial measures in situations where a court has determined that a parent *710 has subjected his or her child to sexual abuse."[19] We further explained that "[t]his provision of the federal act has been adopted in Alaska as AS 47.10.086(c)(1)," which eliminates the remedial requirements in cases involving chronic physical and mental abuse in addition to sexual abuse.[20] Thus, we concluded that the superior court did not err in terminating the father's parental rights because rehabilitative efforts are not necessary in AS 47.10.086(c)(1) cases.
At the adjudication hearing in this case, the superior court found beyond a reasonable doubt that Jason was a child in need of aid because, in part, the physical harm he suffered "is substantial and likely would continue to be substantial ... [and][t]he mental injury exists now, and he remains at an extraordinary risk of continuing mental injury." Had DFYS asked the superior court at the adjudication hearing to determine that reasonable efforts were not necessary because Jason had been subjected to chronic mental injury or physical harm, the court could have found reasonable efforts to be unnecessary. The evidence in the record supports the superior court's alternative conclusion at the termination hearing that reasonable efforts were unnecessary, and we affirm its decision.
V. CONCLUSION
Because the trial court did not err in finding Jason to be a child in need of aid, and because the trial court did not err in finding reasonable efforts to be unnecessary, we AFFIRM the decision to terminate Vivian P.'s parental rights.
NOTES
[1] Pseudonyms are used to protect the parties' privacy.
[2] S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002).
[3] Id.
[4] Id. at 1122-23.
[5] AS 47.10.088.
[6] AS 47.10.086(c)(1); AS 47.10.088(a)(2).
[7] AS 47.10.011(2), (4), (6), (8), (11).
[8] 891 P.2d 815, 827 (Alaska 1995), overruled on other grounds by In re S.A., 912 P.2d 1235, 1239 (Alaska 1996) (emphasis added).
[9] The only evidence which suggests that DFYS made reasonable efforts after its intervention comes from Mary Gray, a DFYS social worker, who testified that "prior to DFYS intervention those services werewere being made available and they were not taken advantage of at that time either. And certainly for the last 15 months they have been in a formal way [provided] by DFYS administratively as well as through the court." However, the trial court apparently did not rely on her testimony when making its findings of reasonable efforts, instead erroneously taking into account "all of the efforts that were done even before the state became involved." A preponderance of the evidence does not show that DFYS made reasonable efforts to reunite the family.
[10] J.S. v. State, 50 P.3d 388, 392 & n. 13 (Alaska 2002).
[11] Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001).
[12] AS 47.10.086(c).
[13] AS 47.10.086(d)(1).
[14] As a matter of policy, requiring DFYS to seek from the court a determination that reasonable efforts are excused will help to prevent post-hoc justifications for failing to provide reasonable efforts. DFYS must first ask a superior court for a reasonable efforts hearing before ceasing to make such efforts.
[15] 50 P.3d 388, 389, 391 (Alaska 2002).
[16] Id. at 390.
[17] Id.
[18] Id. at 391-92.
[19] Id. at 392.
[20] Id. at 392 n. 13; AS 47.10.086(c)(1).
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333 Mich. 108 (1952)
52 N.W.2d 620
LANG
v.
GINSTE.
Docket No. 70, Calendar No. 45,345.
Supreme Court of Michigan.
Decided April 7, 1952.
Rehearing denied May 16, 1952.
*109 Cozadd, Shangle, Cherry & Schmidt, for plaintiff.
Edward N. Barnard, for defendants.
BOYLES, J.
Plaintiff sued the defendants to recover damages resulting from being struck while crossing Grand River avenue in Detroit by a taxicab owned by defendant Ginste, operated by defendant Anastas. On trial heard by the circuit judge without a jury the plaintiff had judgment and the defendants appeal. The only question raised here is whether the court erred in finding as a matter of fact that the plaintiff was not guilty of contributory negligence. Under the circumstances, we do not reverse unless the evidence clearly preponderates in the opposite direction.
Plaintiff was walking northeasterly across Grand River avenue at Larchmont avenue about 9:30 p.m., June 10, 1947, when hit by the taxicab. At that point Grand River is 72 feet wide with streetcar tracks both ways in the center, and room on each side of the tracks for 3 or 4 lines of 1-way traffic. The intersection is protected by traffic lights. The plaintiff started to go across Grand River from Larchmont on the northerly crosswalk with the traffic light green in his favor. Three automobiles on his left had stopped at the intersection in obedience to the red light against them. The 3 automobiles occupied the space between the curb and the tracks. Plaintiff passed in front of the first 2 standing cars and as he came to the front of the third car standing next to the streetcar tracks the traffic light changed from green to amber. He looked to his left and saw the taxicab approaching about 3 car lengths back of the third car, nearest the tracks. He hastened his steps to get onto the streetcar tracks but when the taxicab was about 1 1/2 car lengths behind the third standing automobile it swung more to its left, onto the street-car *110 track, passed the automobile from the front of which the plaintiff had moved onto the track, and struck the plaintiff. It came onto the crosswalk without stopping.
The driver of the taxicab testified that he had been driving down Grand River about 15 blocks, approached the intersection at about 15 miles per hour straddling the west rail of the streetcar track, saw the standing cars and the traffic light red, knew when he was 5 or 6 car lengths from the crosswalk that the light was about to change to green, continued at the same speed, swerved left and tried to pass on its left the third car standing nearest the tracks, by traveling on the streetcar track. He saw the plaintiff crossing on the crosswalk, too late to stop without hitting him.
The plaintiff did what an ordinarily prudent pedestrian would try to do under the circumstances. When the traffic light changed from amber to green he did not remain in front of the third standing car, which would soon have the green light to start ahead. He went from there to a place of apparent safety, onto the streetcar tracks. He had no reason to anticipate that the defendants' taxicab would try to pass the standing third car on its left by going onto the track. The driver of the taxicab admitted to a police officer that he was "playing the light," knowing it was about to change to green.
The trial court found as a matter of fact that the plaintiff was not guilty of contributory negligence. The evidence does not clearly preponderate in the opposite direction. Plaintiff had the right to do what a prudent pedestrian would be expected to do, complete his crossing the standing traffic in order to reach the tracks and a place of safety. See Smarinsky v. Markowitz, 265 Mich 412; Guina v. Harrod, 275 Mich 393; Moore v. Noorthoek, 280 Mich 431; *111 Werker v. McGrain, 315 Mich 287; Heiman v. Kolle, 317 Mich 548.
Affirmed. Costs to appellee.
NORTH, C.J., and DETHMERS, BUTZEL, CARR, BUSHNELL, SHARPE, and REID, JJ., concurred.
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14 A.3d 1032 (2011)
127 Conn.App. 354
STATE of Connecticut
v.
Peter J. GOULD.
No. 31545.
Appellate Court of Connecticut.
Argued January 4, 2011.
Decided March 15, 2011.
*1033 Jeffrey P. Chartier, for the appellant (defendant).
Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Mitchell D. Rubin, senior assistant state's attorney, for the appellee (state).
BISHOP, LAVINE and SCHALLER, Js.
BISHOP, J.
The defendant, Peter J. Gould, appeals from the judgment of conviction, rendered following a jury trial, of two counts of reckless endangerment in the second degree in violation of General Statutes § 53a-64 (a). On appeal, the defendant claims that the trial court improperly (1) failed to instruct the jury regarding mistake of fact and (2) restricted his cross-examination of his then wife, Cynthia Gould. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. In 2007, the defendant and his wife, Cynthia Gould, were in the midst of divorce proceedings, which had commenced in 2005. In March, 2007, the defendant no longer resided with his wife and children in the marital home located at 429 Taconic Road in Greenwich but often visited the property to spend time with his children. On March 18, 2007, unbeknownst to the defendant, Cynthia Gould called George Christiansen, who previously had served process on the defendant,[1] to notify him that the defendant was at the marital home and available to be served.
When Christiansen and state marshal George Ritchie arrived, the defendant was backing his truck, which had a plow attached to it, into a garage. While Christiansen stayed in his vehicle, Ritchie approached the passenger side of the defendant's vehicle and displayed his badge in one hand and a subpoena and restraining order in the other against the truck window. Ritchie identified himself as a state marshal and told the defendant that he had papers for him and asked the defendant to lower his window. The defendant responded that he could not hear Ritchie and increased the volume on the radio. When Ritchie went around to the back of the defendant's truck, the defendant moved the truck in reverse, striking Ritchie, forcing him against the garage and causing him to fall on the ice. Christiansen then exited his vehicle and Ritchie told him to call the police. The defendant then struck Ritchie again with the truck, causing him to fall a second time. The defendant continued to drive forward and back a number of times. He struck Christiansen with the truck and then caught him between the plow and the hood of the truck, dragging him five to ten feet. Both Ritchie and Christiansen were treated for minor orthopedic injuries as a result of the incident.
As a result of the March 18, 2007 incident, the defendant was charged with assault of a peace officer in violation of General Statutes § 53a-167c (a), assault of an *1034 elderly person in the third degree in violation of General Statutes § 53a-61a (a)(1)[2] and two counts of reckless endangerment in the second degree in violation of § 53a-64 (a). The jury found the defendant guilty of the reckless endangerment counts and not guilty of the other charges. The court sentenced the defendant to a total effective term of one year of incarceration, execution suspended, and two years of probation. This appeal followed.
I
The defendant first claims that the court improperly declined to instruct the jury on mistake of fact regarding his contention that he did not know that Ritchie was a state marshal.[3] In seeking such an instruction, counsel for the defendant argued to the trial court that "whether [the defendant] knew ... [that] it was a marshal involved or not is specifically why this charge is so important. Count one states that the state accuses the defendant... with committing the crime of assault on a peace officer ... with intent to prevent a reasonable, identifiable peace officer... from performing his duties, and while such peace officer is acting in the performance of his duties, such person caused physical injury to such peace officer in violation of [the] Connecticut General Statutes." Defense counsel went on to indicate that he sought a mistake of fact instruction to "negate a mental state required for the commission of an offense. Here, [the offense] requires that [the defendant] intended to prevent a reasonably identifiable peace officer from performing his duties. If [the defendant] did not know he was a peace officer, he could not have been trying to prevent him from doing his duties. And that, therefore, would negate the mental element." The court declined to instruct the jury on mistake of fact as requested by the defendant.
The requested instruction pertained only to the offense of assault of a peace officer, of which the defendant was acquitted. Because the defendant's conviction did not stem from the court's decision not to instruct the jury regarding mistake of fact, his claim in this regard fails.
II
The defendant also claims that the court abused its discretion in limiting his cross-examination of Cynthia Gould.[4] Specifically, the defendant claims that the court improperly limited his ability to call into question his wife's ability to recall the events of that day and to impeach her credibility on the basis of the contested divorce proceeding in which the parties were involved at the time. We disagree.
"[I]n ... matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed.... The determination of whether a matter is relevant or collateral, and the scope and extent *1035 of cross-examination of a witness, generally rests within the sound discretion of the trial court.... Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." (Internal quotation marks omitted.) State v. Moore, 293 Conn. 781, 790, 981 A.2d 1030 (2009).
Cynthia Gould testified that she observed the incident on March 18, 2007, from her third floor office window. She indicated that she did not see Ritchie display a badge when he approached the defendant's truck. She testified that the defendant would not open the truck window when Ritchie approached him and that, instead, he drove the truck back and forth, trying to maneuver the truck so that he could avoid being served. In doing so, he struck both Ritchie and Christiansen with the truck before he fled. Her testimony was essentially cumulative of Christiansen's testimony except that her testimony supported the defendant's contention that Ritchie did not display his badge when he approached the defendant.[5]
On recross-examination, the defendant asked Cynthia Gould whether she was under the influence of alcohol on the day of the incident in question. The court sustained the state's objection to this question on the ground that the question was outside the scope of redirect examination. Nevertheless, despite the pendency of the state's objection, Cynthia Gould answered, "no," when asked whether she had been drinking on the day in question, and her response was not stricken from the record. The question, therefore, was asked and answered. Despite the fact that the witness had answered the question, defense counsel protested the court's ruling, arguing that the question went to the witness' "ability to recall events." The court explained to defense counsel that his recross-examination would be limited to what was brought out on redirect. Following this colloquy, defense counsel did not seek to make an offer of proof regarding this issue and, instead, indicated that he had no further questions.
The defendant claims on appeal that the question regarding whether Cynthia Gould had been drinking on the day in question was relevant to her ability to recall the events of that day.[6] Our review of the record reveals not only that the witness answered the question in the negative, an answer that remained unstricken before the jury, but that the court properly determined that the defendant's inquiry on this issue was beyond the scope of the state's redirect examination. Thus, the court did not abuse its discretion in disallowing that question.
The defendant also claims that the court improperly limited his cross-examination of Cynthia Gould relating to their divorce proceedings and that such testimony was relevant to her bias. In support of this claim, the defendant points to portions of Cynthia Gould's testimony on cross-examination in which defense counsel asked several questions regarding the parties' divorce proceedings, all of which were allowed and answered by her.[7] Thus, the *1036 portion of the transcript cited in the defendant's brief do not support his claim on appeal that he was prevented from asking Cynthia Gould questions regarding animus flowing from the divorce proceedings. To the contrary, the record reflects that counsel was able to delve into this area without objection. To the extent the defendant may now be claiming that there were other questions during recross-examination that he was not permitted to pose, he has not provided any pertinent transcript citation. It is an appellant's burden to support his claims on appeal by appropriate references to the page or pages of the transcript on which the party relies. See Practice Book § 67-4(c). Additionally, "it would be beyond the proper role of this court in resolving the issues raised on appeal to sift through the voluminous record before us and speculate as to the specific evidence at issue in the present claim." State v. Tocco, 120 Conn.App. 768, 786-87, 993 A.2d 989, cert. denied, 297 Conn. 917, 996 A.2d 279 (2010). Accordingly, because the defendant's claim is briefed inadequately, we decline to address it.
The judgment is affirmed.
In this opinion the other judges concurred.
NOTES
[1] Christiansen was not a state marshal but had served the defendant as an "indifferent person." See General Statutes § 52-50(a).
[2] Christiansen was sixty-two years old on the date of the incident.
[3] The defendant also contends that "[t]he jury could have determined that the defendant's actions were justifiable had [it] been instructed by the court as to the rights of property owners." Defense counsel conceded in oral argument to this court that, although he orally sought such an instruction in chambers, the record does not reflect that he made such a request. Because the defendant did not preserve this claim at trial and he is not asserting a constitutional claim for which he has sought an extraordinary level of review, we decline to afford it review.
[4] In setting forth the standard of review in his brief, the defendant makes a reference to the constitutional right of a defendant to confront witnesses as guaranteed by the sixth and fourteenth amendments to the United States constitution. He has not briefed a constitutional violation, however, nor did he raise such a claim in the trial court. He conceded at oral argument to this court that his claim is, therefore, limited to whether the court abused its discretion.
[5] We note that, at trial, the defendant did not claim that he did not operate his truck in the manner that the witnesses had testified, nor did he contest the allegations that he struck Ritchie and Christiansen with the truck. Rather, he testified that he acted in that manner because he did not know who the men were and that he feared them.
[6] The defendant also argues that he was seeking to impeach Cynthia Gould's credibility in asking her if she had been drinking on the day in question. Because this claim is made for the first time on appeal, we decline to address it.
[7] On cross-examination, defense counsel elicited testimony from Cynthia Gould that the divorce proceedings had been going on since 2005 and that a large estate was at issue. Earlier on direct examination, Cynthia Gould testified that the divorce had "droned on for too long," that there had been many court appearances and that the defendant had made it difficult for her to serve him. From our review of the record, it is clear that the contentious nature of the divorce litigation had been conveyed to the jury.
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85 So.3d 134 (2012)
STATE ex rel. Charles DUCKWORTH
v.
STATE of Louisiana.
No. 2011-KH-1462.
Supreme Court of Louisiana.
April 9, 2012.
Denied.
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ROYNES JOSEPH "ERIC" DURAL, II, Petitioner-Appellant
v.
STATE OF HAWAI`I, Respondent-Appellee
No. 28533
Intermediate Court of Appeals of Hawaii.
September 15, 2008.
On the briefs:
Roynes Joseph "Eric" Dural II, Pro Se Petitioner-Appellant, Incarcerated.
Peter B. Carlisle, Prosecuting Attorney, Loren J. Thomas Stephen K. Tsushima, Deputy Prosecuting Attorneys, for Respondent-Appellee.
SUMMARY DISPOSITION ORDER
RECKTENWALD, C.J., WATANABE and LEONARD, JJ.
Petitioner-Appellant Roynes Dural, aka, Roynes J. Dural, aka Roynes Joseph Dural, aka Roynes Joseph Eric Dural II, aka Eric Dural (Dural) appeals from the April 24, 2007 Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner Roynes Joseph "Eric" Dural II from Custody (Order Denying Rule 40 Petition) in the Circuit Court of the First Circuit (Circuit Court).[1]
I. RELEVANT FACTS
A. Cr. No. 02-1-2791
On December 19, 2002, Dural was charged with Sexual Assault in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(b) (1993) and four counts of Sexual Assault in the Third Degree, in violation of HRS § 707-732(1)(b) (1993). Dural was charged with offenses involving a minor less than fourteen years old. All of the charges were alleged to have been committed between November 28, 1998 to November 27, 2000, a period when the complaining witness (CW) was 12 to 13 years old.
On April 14, 2003, Dural gave notice of his intent to rely upon an alibi defense. On June 5, 2003, Dural filed a Motion for Bill of Particulars or in the Alternative Motion to Dismiss Indictment (Motion to Dismiss). Dural requested the dates, times, and locations in which the charges allegedly occurred. On July 8, 2003, the Circuit Court denied the Motion to Dismiss.
On July 10, 2003, Dural filed a Motion for Order Allowing Introduction of HRE 412 Evidence at Trial. Dural sought to introduce evidence of CW's past sexual activity with others to prove the source of any injuries or scarring, pursuant to Hawaii Rules of Evidence (HRE) Rule 412. On July 21, 2003, the Circuit Court denied Dural's motion to introduce CW's past sexual activity because a physician's report concluded that there were no injuries.
On July 21, 2003, the State filed a motion in limine to, inter alia, exclude evidence of CW's sexual history, pursuant to HRE Rule 412. Also on July 21, 2003, the State filed another motion in limine to exclude evidence relating to allegations by CW's mother (Mother) that Dural sexually assaulted her, allegedly between December 1999 to July 2001.
At the July 25, 2003 hearing on the motions in limine, defense counsel clarified that he was requesting that Dural not be referred to as "Bull," which apparently was one of his nicknames. The colloquy indicated that Dural strongly objected to the prejudicial sexual connotations associated with being called "Bull" in the context of a sexual assault case.
On July 29, 2003, jury selection began. The Circuit Court instructed the potential jurors as follows:
Now, the parties in this case are entitled to jurors who can be fair and impartial. This means that the parties are entitled to jurors who do not have preconceived beliefs which would cause the juror to be biased in favor of one side or against the other. We're all products of our experiences, and as we grow and develop, we sometimes acquire biases and prejudices. To be a fair and impartial juror, you must be able to set any biases and prejudices aside and not be influenced by them.
After reading the indictment, the Circuit Court asked "Now, have you or has any of your relatives or close friends ever been involved in the same type of circumstances or any other offense that might affect your being fair?" One potential juror, who responded that his girlfriend had been raped, was excused. A second potential juror was excused after he stated: "My ex-wife was-my ex-wife was raped by a black man when she was 13, and I'm not really too cool about this whole thing." Other potential jurors were excused due to having experience with cases involving the same type of offense. Finally, the Circuit Court asked: "Is there anyone who has any other reason why he or she cannot be a fair and impartial juror?" The record reflects that there was no response. The Circuit Court did not question the potential jurors specifically about racial bias. Both the prosecution and defense counsel were allowed to question the potential jurors. Neither inquired specifically about racial bias.
On July 29 and 30, 2003, the Circuit Court held a hearing, pursuant to HRE Rule 104, to determine whether certain witnesses would be allowed to testify and the extent of their testimony. Dural sought to introduce evidence that Mother falsely accused Dural's ex-wife of sexually assaulting Mother's son. Dural also sought to introduce evidence that Mother had falsely accused Dural of sexually assaulting her. Dural argued that both statements should be admitted to attack Mother's credibility. In the alternative, if the accusations by Mother regarding Dural's sexual assault of her were true, Dural sought to introduce those statements as evidence of bias. Dural wanted to argue that since Dural was not charged for sexually assaulting Mother, Mother had CW make an accusation of sexual assault by Dural. The Circuit Court ruled that the statements were substantially more prejudicial than probative and would be excluded at trial.
On November 3, 2003, Dural was convicted as charged on all counts.
B. The Direct Appeal
On the direct appeal from his conviction, Dural argued that: (1) evidence of Mother's attempted suicide was improperly excluded because it showed bias against Dural; (2) evidence of prior allegations by mother that Dural had sexually assaulted her and Dural's ex-wife had sexually assaulted Mother's son were improperly excluded because the evidence showed bias against Dural and Mother's untruthfulness; and (3) there was prosecutorial misconduct.
On June 29, 2005, this court affirmed Dural's conviction in No. 26265. This court, inter alia, held that the Circuit Court did not abuse its discretion by ruling on motions in limine and prohibiting Dural from impeaching Mother's credibility with allegations by Mother that Dural raped her several times.
C. The Rule 40 Petition
On July 31, 2006, Dural filed a Petition to Vacate, Set Aside or Correct Judgment or to Release Petitioner Roynes Joseph "Eric" Dural II from Custody (Rule 40 Petition), alleging four grounds for relief. The Rule 40 Petition alleged that Dural's conviction was illegally obtained for the following reasons:
(1) Dural's conviction was illegally obtained because the Circuit Court violated his right to confront witnesses under the Hawaii and United States Constitutions by admitting out-of-court statements of CW and Mother through third parties, including a police officer, and a prosecution expert (a doctor) rather than the out-of-court declarant;
(2) The Circuit Court violated his right to confront witnesses under the confrontation clauses of the Hawai`i and United States Constitutions by preventing him from impeaching and cross-examining key prosecution witnesses, CW and Mother, as to their bias and motive to fabricate the charges against him and testify falsely;
(3) The Circuit Court violated his right to due process and denied his right to effective assistance of counsel under the Hawai`i and United States Constitutions, by impairing trial counsel's ability to present an effective defense, including: (a) by not requiring the prosecution to narrow the two-year time frame during which Dural was accused of having one contact with CW, which made it "impossible" for Dural to present an alibi defense stemming from his deployment with the Navy for months at a time during those two years; and (b) limiting cross-examination of prosecution witnesses. With this ground, Dural stated that he has after-discovered evidence that supports his contention that he was not the person who committed this crime, including evidence that CW was "rewarded" for her testimony with new bedroom furniture and by being permitted to marry her "real lover" two weeks after Dural's conviction; and
(4) Dural was denied due process under the Hawaii and United States Constitutions because the Circuit Court did not control the injection of racial bias into this proceeding, which involved the accusation that Dural, an African-American man, committed inter-racial statutory rape against CW: (a) by allowing the prosecution to refer to him as "Bull," over defense objections; and (b) by not subjecting jurors to voir dire on racial bias.
On April 24, 2007, the Circuit Court issued the Order Denying Rule 40 Petition, without holding a hearing, on the basis that all four grounds were waived because Dural could have raised the issues on direct appeal, failed to do so, and did not show the existence of extraordinary circumstances which justified his failure to raise the issues.
II. POINTS OF ERROR RAISED ON THIS APPEAL
Dural identified the following five "points of error" on this appeal:
(1) Dural was denied his constitutional right to an effective defense. This point apparently relates to the third ground for relief stated in the Rule 40 Petition, i.e., that the Circuit Court's actions prevented his trial counsel from mounting an effective defense;
(2) Dural's right to confront witnesses was violated by: (a) admission of out-of-court statements by CW and Mother through third parties; and (b) the limiting of Dural's examination of CW and Mother for "motives to' fabricate the charges, as well as for bias, and the resulting inability to narrow the two-year period in which the offenses (encompassing a single event) allegedly occurred;"
(3) The Circuit Court erred in denying Dural an evidentiary hearing on the issue of after-discovered evidence before ruling on the Rule 40 Petition;
(4) Dural's due process rights were violated because: (a) the Circuit Court failed to voir dire potential jurors about racial bias; and (b) during Dural's trial, the prosecution used the term "Bull," which Dural now describes as racially-charged terminology; and
(5) Dural received the ineffective assistance of appellate counsel, who failed to raise points (1), (2) and (4) above, in Dural's direct appeal.
III. APPLICABLE STANDARDS AND AUTHORITIES
We review the Circuit Court's denial of Dural's Rule 40 Petition de novo under the right/wrong standard. State v. Ng, 105 Hawai`i 74, 76, 93 P.3d 1181 (App. 2004) (citations omitted). The Hawaii Supreme Court has articulated the general standard for granting a hearing on a Rule 40 Petition as follows:
As a general rule, a hearing should be held on a Rule 40 petition for post-conviction relief where the petition states a colorable claim. To establish a colorable claim, the allegations of the petition must show that if taken as true the facts alleged would change the verdict; however, a petitioner's conclusions need not be regarded as true. Where examination of the record of the trial court proceedings indicates that the petitioner's allegations show no colorable claim, it is not error to deny the petition without a hearing. The question on appeal of a denial of a Rule 40 petition without a hearing is whether the trial court record indicates that Petitioner's application for relief made such a showing of a colorable claim as to require a hearing before the lower court.
Stanley v. State, 76 Hawai`i 446, 449, 879 P.2d 551, 554 (1994) (citations omitted).
HRPP Rule 40(f) (2003) provided, in pertinent part:
If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held during the course of the proceedings which led to the judgment or custody which is the subject of the petition or at any later proceeding.
The petitioner shall have a full and fair evidentiary hearing on the petition. The court shall receive all evidence that is relevant and necessary to determine the petition, including affidavits, depositions, oral testimony, certificate of any judge who presided at any hearing during the course of the proceedings which led to the judgment or custody which is the subject of the petition, and relevant and necessary portions of transcripts of prior proceedings. The petitioner shall have a right to be present at any evidentiary hearing at which a material question of fact is litigated.
However, HRPP Rule 40(a)(3)(2003) provided:
Rule 40 proceedings shall not be available and relief thereunder shall not be granted where the issues sought to be raised have been previously ruled upon or were waived. An issue is waived if the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this rule, and the petitioner is unable to prove the existence of extraordinary circumstances to justify the petitioner's failure to raise the issue. There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.
IV. DISCUSSION
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Dural's points of error as follows:
(1) (Denial of Effective Defense) Dural does not argue that his trial counsel was ineffective. Instead, Dural argues that the trial court's actions rendered his defense ineffective. He further argues in his Opening Brief that "Mr. Dural did raise the substance of this issue [on his direct appeal], i.e., that the trial court in effect forced trial counsel to present an ineffective defense." We agree with Dural that he raised the substance of this defense, at least in part, in his direct appeal. Thus, those issues were previously ruled on and, pursuant to HRPP Rule 40(a)(3), relief is not available on a Rule 40 petition. To the extent that he did not fully raise all possible arguments relating to this issue in his direct appeal, we conclude that the Circuit Court did not err in finding that these arguments were waived because Dural failed to identify any extraordinary circumstances that would have justified the failure to raise the issue fully. See HRPP 40(a)(3). Even if we construe Dural's argument as a contention that his trial counsel was ineffective, which argument would not be waived because Dural was represented by the Public Defender's Office (albeit different attorneys) at trial and on appeal, any error in the finding that the argument was waived[2] was harmless because the underlying claim relating to Dural's inability to effectively cross-examine witnesses was either raised and ruled on or waived.
(2) (Confrontation of Witnesses) In his direct appeal, Dural alleged that the Circuit Court erred in excluding certain evidence he sought to use to confront the prosecution's witnesses. This court previously rejected Dural's arguments and affirmed his conviction. Thus, those issues were previously ruled on and, pursuant to HRPP Rule 40(a)(3), relief is not available on a Rule 40 petition.
In this appeal, Dural also argues that CW's and Mother's out-of-court statements were erroneously admitted, thereby violating his right to confront witnesses under the United States and Hawai`i Constitutions. The Circuit Court did not err in finding that Dural could have raised, but failed to raise, these issues on direct appeal. Dural has failed to identify any extraordinary circumstances that would justify the failure to raise these specific issues on direct appeal. See HRPP Rule 40(a)(3); see also Stanley, 76 Hawai`i at 450, 879 P.2d at 555[3]
Dural claims that he was not able to present an alibi defense because the time frame of the alleged sexual assaults spanned two years and he was prevented from adequately cross-examining Mother and CW. In his Petition, Dural stated that he could show that he was elsewhere for a large period of the two years during which he allegedly committed the crimes. Dural's claim that he was prevented from establishing an alibi is without merit. An alibi is "a defense based on the physical impossibility of a defendant's guilt by placing the defendant in a location other than the scene of the crime at the relevant time." BLACK'S LAW DICTIONARY, 8th Ed. During trial, Dural did not present an alibi defense. Instead, Dural stated that CW was like his shadow. At trial, Dural merely claimed that he was never alone with CW, implying that he would not have had sex with CW when there were other potential witnesses nearby. However, CW testified that they had sex while other people were in the house sleeping. A claim of physical impossibility is not the same as claiming it was difficult to have sex while other people were present in the area. Dural never contended at trial that he was at another location during the two-year period when the crimes were alleged to have happened. Therefore, Dural's right to present an alibi was not violated by any failure to narrow the time frame during which the assaults occurred.
(3) (New Evidence) The after-acquired evidence identifed by Dural includes assertions that: (1) CW was "rewarded" with new bedroom furniture for her testimony in this case; and (2) CW was allowed to marry her "real lover" two weeks after Dural's conviction. The Circuit Court did not err in finding that the proferred evidence was not material to the issues and was offered solely for impeachment purposes, and thus failed to meet the standard established for a new trial based on newly discovered evidence. See State v. McNulty, 60 Haw. 259, 267-68, 588 P.2d 438, 445 (1978). Additional references to statements appearing on CW's website were raised in the first instance on appeal, and not in Dural's Rule 40 Petition, and will not be considered.
(4) (Racial Bias) The Circuit Court did not err in finding that Dural failed to present any extraordinary circumstances which justified his failure to raise the issue of racial bias in his direct appeal. This issue is deemed to have been waived.
Moreover, Dural was not charged with a crime involving race. Nor was race raised in conjunction with Dural's defense. Dural stated that his defenses included an alibi and challenges to the witnesses' motivation for reporting that Dural had sex with CW. The record lacks any indication whatsoever that racial bias was an issue in the case. Therefore, the Circuit Court was not required to specifically voir dire potential jurors about racial bias. See State v. Altergott, 57 Haw. 492, 495, 559 P.2d 728, 731 (1977); Rosales-Lopez v. United States, 451 U.S. 182 (1981).
Finally, we note that Dural's objection to the prosecution's use of the word "Bull" was not based on any racial connotation. Before and during trial, Dural did not argue that the word "Bull" had any racial meaning. Rather, as noted above, it appears Dural claimed that the word was prejudicial because it was sexual in nature. Dural's alternative argument, that Bull was a racially-charged term, was raised for the first time in the Rule 40 Petition, Dural failed, however, to give any valid reason, or present any extenuating circumstances, for failing to raise the issue earlier. Thus, the issue is waived. Indeed, Dural has failed to raise a colorable claim based on the issue of alleged racial bias.
(5) (Ineffective Assistance of Appellate Counsel) Dural failed to raise ineffective assistance of appellate counsel as a ground for relief in the Rule 40 Petition. Generally, if a party does not raise an argument at the trial level, that argument will be deemed to have been waived on appeal; this rule applies in both criminal and civil cases. See State v. Ildefonso, 72 Haw. 573, 584, 827 P.2d 648, 655 (1992) ("Our review of the record reveals that [the defendant] did not raise this argument at trial, and thus it is deemed to have been waived."); State v. Hoglund, 71 Haw. 147, 150, 785 P.2d 1311, 1313 (1990)("Generally, the failure to properly raise an issue at the trial level precludes a party from raising that issue on appeal."). This rule seems particularly applicable in the context of an appeal from an HRPP Rule 40 petition, which seeks relief stemming from previously adjudicated matters.
Even assuming that the issue of ineffective assistance of appellate counsel is properly before this court, Dural's argument is meritless. In Briones v. State, 74 Haw. 442, 459, 848 P.2d 966, 975 (1993), the Hawai`i Supreme Court held that the standard for evaluating whether appellate counsel was ineffective is as follows:
If an appealable issue is omitted, then both the issues actually presented on appeal as well as those omitted are evaluated in light of the entire record, the status of the law and, most importantly, counsel's knowledge of both. Counsel's scope of review and knowledge of the law are assessed, in light of all the circumstances, as that information a reasonably competent, informed and diligent attorney in criminal cases in our community should possess. Counsel's informed decision as to which issues to present on appeal will not ordinarily be second-guessed. Counsel's performance need not be errorless. If, however, an appealable issue is omitted as a result of the performance of counsel whose competence fell below that required of attorneys in criminal cases then appellant's counsel is constitutionally ineffective.
74 Haw. at 466-67, 848 P.2d at 978 (footnotes omitted; emphasis in original). Counsel's failure to raise every conceivable legal theory on appeal does not render counsel's assistance to be ineffective. McNulty, 60 Haw. at 269, 588 P.2d at 446.
In this case, as Dural admits, his appellate counsel sought relief on direct appeal related to points (1) and (2) above. Counsel's failure to raise every permutation of these arguments did not appear to render legal assistance ineffective in this case. We cannot conclude, on the circumstances and record presented in this case, that appellate counsel's failure to raise racial bias as grounds for a new trial was below the standard expected of an informed and diligent criminal attorney in our community.
V. CONCULSION
For these reasons, the Order Denying Rule 40 Petition, filed on April 24, 2007, is affirmed.
NOTES
[1] The Honorable Richard W. Pollack presided in the proceeding below. The Honorable Karen Ahn presided over Dural's trial in Cr. No. 02-1-2791.
[2] In the Order Denying Rule 40 Petition, the circuit Court concluded that the issue of ineffective assistance of trial counsel was not raised in the Rule 40 Petition and that a claim of ineffective assistance of trial counsel was the only issue that could not have been raised on direct appeal as a result of Dural's representation by the Public Defender's Office at trial and on appeal.
[3] Indeed, Dural's right to confront witnesses was not violated by admitting a statement made by CW to the physician in this case because it was a statement given for purposes of medical diagnosis and therefore an exception to hearsay under HRE Rule 803(b)(3). See, e.q., State v. Sullivan, 931 P.2d 1109, 1112 (Ariz. Ct. App. 1996).
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JOHN ANTONIO EVANS, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-1629 (RMC)
)
WASHINGTON METROPOLITAN )
AREA TRANSIT AUTHORITY, )
)
Defendant. )
)
MEMORANDUM OPINION
John Antonio Evans seeks to hold the Washington Metropolitan Area Transit
Authority liable for injuries he received when he crashed his motorcycle into the back of an
automobile, was flipped off the bike into the street, and run over by a Metro bus. At the close of
discovery, WMATA filed a motion to dismiss and/or for summary judgment, which the Court
granted in part but denied otherwise without prejudice awaiting a Daubert1 hearing on Mr. Evans’
expert witness, David Stopper. That hearing having been held, the Court concludes that Mr.
Stopper’s testimony is admissible within appropriate limits. It also finds that Mr. Evans has alleged
a theory of negligence against WMATA and is not required to rely solely on the theory of “last clear
chance” but may introduce evidence to counter WMATA’s defense of contributory negligence.
I. FACTS
As described by Mr. Evans’ lawyer:
This case arises from a January 4, 2007 accident in which a WMATA
1
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
bus struck plaintiff John Antonio Evans. Prior to the accident, Evans
had been operating a motorcycle southbound in the 2700 block of
Martin Luther King Avenue, S.E., Washington, D.C. His motorcycle
struck a car which was making a left-hand turn from the left lane.
Plaintiff was thrown off his motorcycle into the roadway. A
WMATA bus in the right lane came along and ran over the plaintiff,
causing extensive de-gloving injuries to his left leg and buttocks.
Pl.’s Mem. on Admissibility of Expert Testimony (“Pl.’s Mem.”) [Dkt. # 43] at 1. See Compl. ¶ 2
(“Plaintiff struck a passenger car which was stopped to make a left turn.”). In its motion for
summary judgment, WMATA argued that the Court should put aside the testimony of Daysha Smith
and Niaya White, pedestrians at the site of the accident, because it is undermined by credible
evidence or physical impossibility. Def.’s Reply in Supp. of Mot. for Summ. J. (“Def.’s Reply”)
[Dkt. # 34] at 7. WMATA also argued that Mr. Stopper’s accident reconstruction is lacking in a
sufficient evidentiary basis to be accepted as expert testimony because he relied solely upon these
two witnesses’ accounts. Id. at 15-16.
II. LEGAL STANDARDS
Federal Rule of Evidence 702 governs expert testimony. It provides:
If scientific, technical or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion
or otherwise, if (1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.
Fed. R. Evid. 702. The presumption under the Federal Rules is that expert testimony is admissible.
Daubert, 509 U.S. at 588; Nimely v. City of New York, 414 F.3d 381, 395 (2d. Cir. 2005) (“It is a
well-accepted principle that Rule 702 embodies a liberal standard of admissibility for expert
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opinions, representing a departure from the previously widely followed, and more restrictive,
standard of Frye v. United States.”) (citing Daubert, 509 U.S. at 588); Fed. R. Evid. 702 Advisory
Committee Note (2000) (“A review of the caselaw after Daubert shows that the rejection of expert
testimony is the exception rather than the rule.”). Nonetheless, Federal Rule of Evidence 702
imposes a “special obligation upon a trial judge” to ensure that expert testimony is not only relevant,
but reliable. Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).
In Daubert, the Supreme Court established the trial court’s obligation to exercise a
“gatekeeping” function, 509 U.S. at 589, which is done in the first instance by “examining the
expert’s qualifications.” McReynolds v. Sodexho Marriott Servs., Inc., 349 F. Supp. 2d 30, 35
(D.D.C. 2004). Kumho Tire makes clear that this function extends to all expert testimony, not just
that from scientists. Mr. Stopper’s qualifications are not at issue here so the Court’s “gatekeeping”
function is to determine whether his methodology was both reliable and relevant. Daubert, 509 U.S.
at 597. Testimony from an expert is relevant if it would be helpful to the jury and aid the jury in
resolving a factual dispute. Daubert, 509 U.S. at 592-93. The method of determining reliability of
proffered expert testimony is within the discretion of the trial court. Kumho Tire, 526 U.S. at 152.
Trained experts commonly extrapolate from existing data, but the court will not admit “opinion
evidence which is connected to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997).
III. ANALYSIS
A. Nature of the Proffered Testimony
WMATA agrees that Mr. Stopper is an expert in accident reconstruction and does not
challenge his background, education or experience. Rather, it asserts that Mr. Stopper relied solely
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upon the two pedestrians whose versions of events could not be physically correct. At the Daubert
hearing, Mr. Stopper explained that the pedestrians gave a description of the motorcycle hitting the
automobile and projecting Mr. Evans into the roadway in much the same way as did a driver
immediately behind the motorcycle, who clearly saw it. From this, he deduced that the pedestrians
could actually see the event and that the bus was not blocking their view. He therefore concluded
that the bus driver had the opportunity to avoid running over Mr. Evans. Mr. Stopper said he
considered all the witnesses who gave statements or were deposed, but only the pedestrians place
the bus potentially far enough away from where Mr. Evans landed in the roadway for the bus driver
to have avoided the accident.
Mr. Stopper’s expert report contains his opinions that: (1) “it is most likely the bus
was still north of the collision site when Mr. Evans was ejected and came to rest in the traffic lanes;”
(2) the bus operator “would have first observed the collision of the motorcycle into the rear of the
Subaru Outback and the motorcycle operator’s ejection from the motorcycle over the top of the
automobile;” and the bus operator “should have observed the prone body of Mr. Evans lying in the
roadway next to the Subaru from his elevated position in the driver’s seat of the Metrobus.” Def.’s
Mot. for Discovery [Dkt. # 23], Ex. 2 (January 26, 2009 Report of David Stopper (“Stopper
Report”)) at 5-7. Further, Mr. Stopper opined that the bus operator “failed to keep a proper lookout
and failed in his duty to avoid hazards in the roadway ahead.” Id. at 7. Finally, he concluded that
“the accident where [the bus driver] in the WMATA bus ran over Mr. Evans was a preventable
accident . . . .” Id.
WMATA complains that Mr. Stopper’s report provided no analysis of the witnesses’
testimonies as they pertained to his conclusions and that he did not scientifically test or account for
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the bus driver’s perception-response times. Def.’s Mem. on Admissibility of Expert Testimony
(“Def.’s Mem.”) [Dkt. # 44] at 6-7. The only basis for Mr. Stopper’s opinions reflected in his report
is that the sequence of events — rear-end impact, Mr. Evans flung forward of the Subaru, and his
being in position for the bus to run over him — could not have happened in the 1.045 to 0.784
seconds it would take for the bus to travel 23 feet (the distance between its front and rear axles). Mr.
Stopper does not say how far Mr. Evans was in front of the bus, although he estimates that he was
thrown 17-18 feet before he came to rest (that being the length of the Subaru plus two feet). Stopper
Report at 5.
WMATA makes two essential complaints about relying on the pedestrian witnesses:
first, that one reports that they both walked into the street to aid Mr. Evans before the bus struck him,
although no one else observed that and they would have been hit by the bus had they actually gone
into the street at that time; and second, from the sidewalk neither witness could possibly have seen
the bus tires on the other side of the bus as it ran over Mr. Evans. WMATA argues that their
testimony is too incredible to be allowed before the jury and that Mr. Stopper’s reliance on it is fatal
to his report.
The questions the Court must consider are whether Mr. Stopper’s testimony is reliable
and relevant and whether it would assist the jury to determine one or more questions of fact. It has
long been the law in this Circuit that “where the jury is just as competent to consider and weigh the
evidence as is an expert witness and just as well qualified to draw the necessary conclusions
therefrom, it is improper to use opinion evidence for the purpose.” Henkel v. Varner, 138 F.2d 934,
935 (D.C. Cir. 1943). Mr. Stopper repeatedly explained that his conclusions were based on “a
preponderance of the evidence,” but that determination is clearly one for the jury to make.
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Certainly Mr. Stopper’s knowledge of the length, width, weight, and axle differences
on this kind of bus would be admissible as expert knowledge. However, Mr. Stopper’s conclusion
that the bus was farther away from the Subaru than the bus driver, Subaru driver, and following-car
driver said was based on the similarity between the pedestrians’ description of the motorcycle/Subaru
part of this accident and the description given by the driver of the following car, and their estimates
of how much time passed. In other words, he credited the pedestrians based upon the written record.
Weighing conflicting testimony after an accident may be a normal part of a reconstruction expert’s
duties but it is not scientific and, in this case, does not rely on Mr. Stopper’s expertise. No
“specialized knowledge” of Mr. Stopper’s contributed to his conclusion that if the pedestrians saw
the motorcycle strike the Subaru, the bus could not have been between them and the car, and the jury
is perfectly capable of resolving this factual issue without his opinion. Should the pedestrians testify,
Mr. Evans’ lawyer can make the argument that, based on their testimony, the bus must have been
in a particular location. Having Mr. Stopper testify to those facts would not be helpful to the jury
but would supplant it.
Similarly, Mr. Stopper may testify about how long it would take the bus to travel a
certain distance at a certain speed but he will not be permitted to opine whether that time-frame
would be “enough” for all events to have happened. That, too, is something for the jury to determine
and the lawyers to argue.
After the pedestrians testify, Mr. Stopper could respond to hypothetical questions
posed by Mr. Evans’ counsel, such as: “If the jury finds that the bus was at X, as the pedestrians
indicated, and it was going 15-20 miles per hour, how much time would the driver have had to
stop?” Counsel cannot assume the pedestrians will be credited by the jury as he frames his
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questions, because that would amount to argument which must be reserved until the end of the trial.
B. Adequacy of Stopper Report
WMATA contends that Mr. Stopper’s report does not satisfy the strictures of Federal
Rule of Civil Procedure 26 because he impermissibly expressed “the basis and reasons” for his
opinions in greater detail at the Daubert hearing than in his report. See Fed. R. Civ. P.
26(a)(2)(B)(i). WMATA argues that an expert report must be sufficiently complete that no
deposition of the expert should be needed to prepare to cross examine him. Mr. Evans retorts that
WMATA had the opportunity to depose Mr. Stopper to explore the bases for his conclusions and
chose to truncate it to less than one hour.
While Mr. Stopper’s report is brief, the Court would not limit his testimony as
WMATA desires. His opinions — some of which are the provenance of the jury — are all in the
report and WMATA had the opportunity to depose Mr. Stopper to examine more fully the bases for
his opinions. See Caldwell v. District of Columbia, 201 F. Supp. 2d 27, 39 (D.D.C. 2001); see also
Minebea Co. v. Papst, 231 F.R.D. 3, 8 (D.D.C. 2005) (noting that had plaintiff’s expert testified at
trial, he “would have been permitted a certain degree of latitude with respect to the areas in which
he has been accepted as an expert as permitted to expand upon and explain the opinions and
conclusions in his expert report and at deposition”). The amendments to Rule 26 do not state that
depositions should no longer be necessary; the closest mention to anything of that sort comes in the
1993 amendments to the Rule, which state: “Since depositions of experts required to prepare a
written report may be taken only after the report has been served, the length of the deposition of such
experts should be reduced, and in many cases the report may eliminate the need for a deposition.”
Fed. R. Civ. P. 26(a)(2), 1993 Amendments. A deposition would fill in any gaps to better understand
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an expert’s report, as it is intended to do.
C. Contributory Negligence
In his Complaint, Mr. Evans acknowledges that he was driving his motorcycle when
it struck the back of the Subaru. See Compl. ¶ 2 (“Plaintiff struck a passenger car which was stopped
to make a left turn.”). District of Columbia Municipal Regulations state: “In every event speed shall
be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance
on or entering the street or highway in compliance with legal requirements and the duty of all
persons to use due care,” D.C. Mun. Regs. tit. 18, § 2200.4, and “[t]he driver of a vehicle shall not
follow another vehicle more closely than is reasonable and prudent, having due regard for the speed
of the vehicles and the traffic upon and the condition of the roadway.” Id. § 2201.9. Additionally,
the D.C. Court of Appeals has found that “[w]here a lawfully stopped vehicle is struck by another
car from the rear, there is a rebuttable presumption that the approaching vehicle was negligently
operated.” Fisher v. Best, 661 A.2d 1095, 1099 (D.C. 1995).
WMATA argues that in acknowledging that his motorcycle struck the Subaru from
behind, Mr. Evans has conceded his negligence. In fact, he has done no such thing. Although Mr.
Evans admits that he ran into the stopped vehicle, the Complaint does not give any reasons for the
collision. Mr. Evans may not now argue that his collision with the Subaru was the result of any
negligence on the part of the WMATA bus driver, as the Complaint did not put WMATA on notice
of this theory of liability. He may, however, rebut the presumption of his own negligence resulting
from his rear-end collision with the Subaru by offering evidence that the actions of a third party —
specifically, the driver of the Subaru — led to the collision. Such evidence would not alter the
theory of the complaint — that is, that the bus driver was negligent in running over Mr. Evans,
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regardless of how the latter ended up in the street. See Compl. Count 1 (Negligence) ¶ 8.
WMATA further argues that Mr. Evans did not allege a theory of negligence against
it, but only a theory that WMATA had the “last clear chance” to avoid striking Mr. Evans. The
Complaint states:
WMATA’s bus driver committed by [sic] the following negligent acts
and omissions: the failure to keep a proper lookout for the Plaintiff at
a time that the bus driver became aware that an accident had
occurred; the failure to check the left side mirror to observe the
Plaintiff who was there to be seen; the failure to stop the bus and keep
it stopped until the Plaintiff was clear of the bus; the failure to remain
alert and observant for potential danger; the violation of WMATA
Standard Operating Procedures; and the violations of the standard of
care applicable to common carriers such as the WMATA.
Id. It then states “[t]hat as a direct and proximate result of the negligent acts and omissions of the
Defendant WMATA’s bus driver, Plaintiff sustained serious bodily injuries . . . .” Id. ¶ 9. Thus, Mr.
Evans has clearly alleged a cause of action for negligence, as well as elements upon which a jury
could find that, even if Mr. Evans were contributorily negligent, the WMATA bus driver had the
“last clear chance” to avoid the accident.2
2
The elements of the “last clear chance” doctrine under D.C. law are
(1) that plaintiff was in a position of danger caused by negligence of
both plaintiff and defendant; (2) that the plaintiff was oblivious of the
danger or unable to extricate himself from the position of danger; (3)
that defendant was aware, or by the exercise of reasonable care should
have been aware of the plaintiff’s danger and obliviousness or
inability to extricate himself from the danger; and (4) the defendant
with means available to him was by the exercise of reasonable care
able to avoid striking plaintiff after he became aware of the latter’s
danger and inability to extricate himself from danger, and failed to do
so.
Queen v. Wash. Metro. Area Transit Auth., 842 F.2d 476, 481 (D.C. Cir. 1988).
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IV. CONCLUSION
The Court will allow Mr. Stopper to testify within the limits described above.
Furthermore, the Court will allow Mr. Evans to present evidence to rebut the presumption of his
negligence resulting from his rear-end collision with the Subaru. A memorializing Order
accompanies this Memorandum Opinion.
Date: December 16, 2009 /s/
ROSEMARY M. COLLYER
United States District Judge
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819 N.E.2d 381 (2004)
Jeffrey WILLIAMS, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 49A05-0312-CR-606.
Court of Appeals of Indiana.
October 13, 2004.
Publication Ordered November 24, 2004.
*383 Joel M. Schumm, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
FRIEDLANDER, Judge.
Jeffrey Williams was charged with four counts of Criminal Deviate Conduct[1] and Rape,[2] all class A felonies. On interlocutory appeal, Williams presents a single issue for review: Did the trial court improperly deny his Motion for Specific Discovery requesting the alleged victim's mental health and prescription records?
We affirm in part, reverse in part, and remand.
On October 9, 2003, the State charged Williams with four counts of criminal deviate conduct and rape. The probable cause affidavit alleged that Williams and K.W.M. lived together, and on July 31, 2003, *384 K.W.M. awoke to find Williams forcing his hand into her vagina. Williams allegedly proceeded to insert a curling iron into her vagina, forced her to engage in sexual intercourse, placed a curling iron in her anus, and forced her to perform oral sex on him. The probable cause affidavit also alleged that K.W.M. informed police she was on medication to help her sleep the night of the attack and as a result was disoriented at the onset. Additionally, Williams's nephew, who was staying at the apartment the night of the alleged attack, informed police he had heard K.W.M. verbally resist Williams but that she "was all drugged up because her doctor has her on medication for her seizures, and that it seemed that she was not able to fight" him off. Appellant's Appendix at 22.
On October 20, 2003, Williams filed a Motion for Specific Discovery (Motion) seeking: (1) business records from a particular Walgreens indicating any prescriptions filled by K.W.M. in the past three years; (2) mental health records, both created and gathered from other health care institutions for the purpose of treatment, in the custody of St. Francis Behavioral Health where K.W.M. had been a patient; and (3) records generated in a CHINS action involving K.W.M. and Williams.[3] Williams alleged in the Motion that K.W.M. was addicted to pain medications and had been diagnosed with bipolar disorder and manic depression, which affected her credibility and provided motivation to fabricate the assault allegations. The court held a hearing on the Motion on October 28, 2003, after which the trial court issued a written order stating that Williams wanted to go on a "fishing expedition" and denying the Motion on the basis of the physician-patient privilege to the extent it sought mental health and prescription records. Id. at 50. Williams filed a petition to certify the order for interlocutory appeal on October 30, 2003, which the trial court granted the following day. This court accepted the interlocutory appeal on January 30, 2004.
On appeal, Williams claims that the trial court abused its discretion in denying his request for mental health and prescription records, as the information sought was specific, material, and the State made no showing of a paramount interest in non-disclosure. Williams also asserts that the trial court erroneously denied his Motion based on the physician-patient privilege because K.W.M., the owner of the privilege, never asserted it. Finally, Williams claims that even if he failed to make a sufficient showing to require release of the documents, an in camera review should be ordered because doubts remain about materiality and the assertion of privilege.
Our standard of review in discovery matters is abuse of discretion. Kristoff v. Glasson, 778 N.E.2d 465 (Ind.Ct.App.2002). Thus, we will reverse only where the trial court has reached an erroneous conclusion which is clearly against the logic and effect of the facts of the case. Id. This applies to requests for in camera review of items to determine if they are discoverable. In re WTHR-TV, 693 N.E.2d 1 (Ind.1998). Moreover, "`[d]ue to the fact-sensitive nature of discovery matters, the ruling of the trial court is cloaked in a strong presumption of correctness on appeal.'" Kristoff v. Glasson, 778 N.E.2d at 470-71 (quoting Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12, 15 (Ind.Ct.App.1996)). We may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though this was not the *385 reason enunciated by the trial court. See Benham v. State, 637 N.E.2d 133 (Ind.1994).
In criminal cases, to determine if information sought is properly discoverable:
(1) there must be a sufficient designation of the items sought to be discovered (particularity); (2) the items requested must be material to the defense (relevance); and (3) if the particularity and materiality requirements are met, the trial court must grant the request unless there is a showing of "paramount interest" in non-disclosure.
In re WTHR-TV, 693 N.E.2d at 6 (citing Kindred v. State, 540 N.E.2d 1161 (Ind.1989)). To demonstrate particularity, the request must enable the subpoenaed party to identify what is sought and allow the trial court to determine whether there has been sufficient compliance with the request. In re WTHR-TV, 693 N.E.2d 1. Regarding materiality/relevance:
An item is "material" if it appears that it might benefit the preparation of the defendant's case. The relevance of some information or items may be self-evident. Nonetheless, "[w]here the materiality of the information is not self-evident the [defendant] must indicate its potential materiality to the best of his ability...."
Id. at 7 (citations omitted). Evidence is "material" if it might reasonably affect the outcome of the trial. Hulett v. State, 552 N.E.2d 47 (Ind.Ct.App.1990).
Once a party demonstrates particularity and materiality, the trial court must grant the discovery request unless there is a showing of a paramount interest in non-disclosure. Lewis v. State, 726 N.E.2d 836 (Ind.Ct.App.2000).
The term [paramount interest] suggests that some fundamental and important stake is required to resist discovery. However, the depth of the interest in resisting may be no more than inconvenience if the need for it from a given source is minimal for example, because it is readily available elsewhere without need to drag third parties into court. Whether a sufficient interest has been shown to prevent discovery "will depend upon the type of interest put forth" and "the category of information sought." Dillard [v. State], 257 Ind. [282,] at 292, 274 N.E.2d [387,] at 392 [(1971)].
In re WTHR-TV, 693 N.E.2d at 7. Ultimately, the three-part test for discoverable information in a criminal proceeding involves balancing "the relevance of the material, its availability from other sources, the burden of compliance measured in terms of difficulty, and the nature and importance of the interests invaded." Id.
Regarding K.W.M.'s mental health records, Williams sought "medical records both created and gathered from other health care institutions for the purpose of treatment and held in the custody of St. Francis Behavioral Health." Appellant's Appendix at 38. He claimed these were necessary to establish that K.W.M. is "bipolar and suffers from manic depression, among other things" thereby providing motivation for her to fabricate the sexual assault charges. Id. at 38. We may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though this was not the reason enunciated by the trial court. See Benham v. State, 637 N.E.2d 133.
Discovery of mental health records are subject to the particularized requirements of Ind.Code Ann. § 16-39-3-3 (West 1998), which provides that a person "seeking access to a patient's mental health record without the patient's written consent... may file a petition in a circuit or superior court requesting a release of the *386 patient's mental health record." After a hearing on the issue, the trial court may order the release of the records based upon certain findings. I.C. § 16-39-3-7 (West 1998). A notice of the hearing must be served on both the patient and the provider maintaining the records at least fifteen days in advance of the hearing. I.C. § 16-39-3-4 (West 1998). The fifteen-day advance notice providing the patient and provider the opportunity to be heard on the issue of releasing records is "compulsory." Thompson v. State, 765 N.E.2d 1273, 1276 (Ind.2002). Further, the patient has the right to have an attorney present at the hearing, and the notice must inform the patient of this right. I.C. § 16-39-3-5 (West 1998).
Williams's Motion does not mention I.C. § 16-39-3 or its requirements and was served on the State and trial court not K.W.M. or St. Francis Behavioral Health (St. Francis). Moreover, there is no evidence that either K.W.M. or St. Francis were provided notice of the hearing or that either was present. The hearing was held eight days after Williams filed the Motion, and therefore did not comply with the compulsory fifteen-day notice period of I.C. § 16-39-3. Williams asserts that the trial court erred by setting the hearing date before the fifteen-day period had expired. Even if the fifteen-day period had passed, however, Williams did not serve his Motion on K.W.M. or St. Francis, provide notice of the hearing, or inform K.W.M. of her right to have an attorney present to protect her interests or contest release of the records. The onus does not rest with the trial court to ensure that a criminal defendant properly complies with statutory procedures in order to gain access to a victim's confidential mental health records. The trial court properly denied Williams's Motion to the extent it sought K.W.M.'s mental health records in St. Francis's custody.[4]
To make a sufficient showing that K.W.M.'s prescription drug records were discoverable, Williams must demonstrate that his request was particular and material. Williams's request for K.W.M.'s prescription drug records from an identified Walgreens store for the past three years satisfies the particularity requirement as it allows Walgreens to identify what Williams seeks and allows the trial court to determine whether there had been sufficient compliance with the request. See In re WTHR-TV, 693 N.E.2d 1. Regarding relevance, while generally evidence of drug use may be excluded at trial, evidence of drug use affecting a witness's ability to recall underlying events is admissible. Williams v. State, 681 N.E.2d 195 (Ind.1997). In his Motion, Williams asserted that K.W.M. is "drug addicted to pain medication, [and was] off of her prescription medication at the time these allegations were made, medicine that had in fact been prescribed by health care professionals ... all of which affects her credibility and her motive to fabricate these allegations." Appellant's Appendix at 38. At the Motion hearing, Williams additionally testified that K.W.M. used marijuana, Methadone, pain killers, and OxyContin, some of which was prescribed to her, and testified that he believed her drug abuse was a motivating factor for K.W.M.'s accusations. Williams further testified that when *387 K.W.M. failed to take her medication she "gets uncontrollable," becomes hostile, and has threatened to call the police on Williams. Transcript at 8. In the probable cause affidavit, K.W.M. informed police she was disoriented at the beginning of the alleged attack by virtue of a medication she was taking to help her sleep, and Williams's nephew informed police K.W.M. was "drugged up" due to a medication she took for seizures. Appellant's Appendix at 22.
K.W.M.'s prescription drug records would provide insight on the medication she may have ingested the night of the attack and relates to K.W.M.'s ability to accurately perceive and recount events.[5] While access to K.W.M.'s prescription records will not definitively establish the particular medication taken that night, the requested information does have a tendency to assist Williams's defense for purposes of cross-examination and potential impeachment. Especially in light of K.W.M.'s admission to police that she was disoriented when the attack began and Williams's nephew's testimony that K.W.M. was "drugged up," the information sought is material.
Since Williams has made a sufficient showing of particularity and materiality, the trial court must grant the request unless the State demonstrates a paramount interest in non-disclosure. The State asserts that maintaining the confidentiality of K.W.M.'s prescription drug records presents such a paramount interest. Prescriptions are considered confidential information in Indiana. Ind.Code Ann. § 25-26-13-15 (West 1998); see also Sharp v. State, 569 N.E.2d 962 (Ind.Ct.App.1991) (finding that prescriptions are privileged information). I.C. § 25-26-13-15 provides, in relevant part:
(a) A pharmacist shall hold in strictest confidence all prescriptions, drug orders, records, and patient information. He may divulge such information only when it is in the best interest of the patient or when requested by the [Board of Pharmacy] or its representatives or by a law enforcement officer charged with enforcement of law pertaining to drugs or devices or the practice of pharmacy.
(b) A person with knowledge by virtue of his office of any prescription drug order, record, or patient information may not divulge such information except in connection with a criminal prosecution or proceeding or proceeding before the board, to which the person to whom the information relates is a party.
Thus, in determining whether Williams's request was properly denied, we must balance K.W.M.'s right to maintain the confidentiality of her prescription drug records with Williams's right to adequately defend the instant charges. Keeping information confidential may suffice as a reason to deny discovery, In re WTHR-TV, 693 N.E.2d 1, and I.C. § 25-26-13-15 indicates our legislature's desire to protect the confidentiality of prescription drug records in certain circumstances.[6] Here, however, the underlying crimes are of special significance. *388 Williams is charged with rape and criminal deviate conduct based on K.W.M.'s graphic allegations of sexual assault. Williams and K.W.M. shared a prior intimate relationship before the incident in question. The record indicates that Williams will defend himself, in part, on grounds that the events were consensual based on the couple's past romantic relationship and their particular sexual proclivities. In sexual assault cases, perception of events and credibility are crucial factors with the potential to significantly influence a fact-finder's determination. Access to information that would call into question such perception could affect Williams's ability to adequately defend himself and is paramount to K.W.M.'s confidentiality concerns as asserted by the State.[7] We therefore reverse the trial court's denial of Williams's Motion to the extent it seeks access to K.W.M.'s prescription drug records.[8]
Judgment affirmed in part, reversed in part, and remanded.[9]
BAKER, J., and DARDEN, J., concur.
ORDER
This Court having heretofore handed down its opinion in this cause on October 13, 2004 marked Memorandum Decision, Not for Publication.
The Appellant, by counsel, has now filed a Motion to Publish, requesting said opinion be published for the reason that this Court's holding regarding mental health records clarifies discovery requirements generally and clarifies the specific requirements for seeking mental health records, which were not mentioned or followed by either counsel or the trial court in this case.
The Court having examined said Motion, having reviewed its opinion in this case and being duly advised, now finds that said Motion to Publish should be granted.
IT IS THEREFORE ORDERED that upon the above-recited Motion, this Court's opinion heretofore handed down in this cause on October 13, 2004, marked Memorandum Decision, Not for Publication, is now ordered published.
NOTES
[1] Ind.Code Ann. § 35-42-4-2 (West 1998).
[2] I.C. § 35-42-4-1 (West 1998).
[3] K.W.M. and Williams apparently have a child together. These records are not at issue in this appeal.
[4] Williams is free, within the parameters of discovery and evidentiary rules, to elicit deposition and trial testimony from K.W.M. on her alleged mental illnesses, as well as offering expert testimony on what impact, if any, these mental illnesses might have on an individual's veracity or motivation to fabricate allegations of sexual assault. Finally, to the extent Williams has actual knowledge of K.W.M.'s illnesses based on accompanying her to the doctor as stated at the Motion hearing, he may testify to this knowledge.
[5] We construe Williams's argument that K.W.M.'s use of prescription drugs impacts her "credibility" as equivalent to a claim that her perception and recollection of the events the night in question could be suspect based on such use.
[6] We decline the State's invitation to construe narrowly I.C. § 25-26-13-15(b)'s use of the word "party" so as to encompass only Williams and the State. The statute indicates an intent to allow discovery of prescription records in criminal proceedings and it is not clear that the legislature intended to exclude a complaining witness's prescription drug records from discovery especially where, as here, the use of a prescription drug has the real potential to impact Williams's ability to defend himself.
[7] The physician-patient privilege also does not prevent disclosure. It is telling that the State makes no attempt to rebut Williams's claims that the physician-patient privilege is inapplicable here as it is a privilege for the benefit of the patient and can only be asserted by the patient. See Thomas v. State, 656 N.E.2d 819, 822 (Ind.Ct.App.1995) ("[t]he privilege is held by the patient and only the patient, or his heirs or personal representatives after his death, may waive the privilege"); see also Goodwin v. State, 573 N.E.2d 895 (Ind.Ct.App.1991).
[8] This is not to say that any information gleaned from this discovery request is admissible at trial, especially as it pertains to one of Williams's stated reason for needing this information, i.e., to demonstrate K.W.M.'s motive to fabricate her allegations. We fail to see how K.W.M.'s use of prescribed medication could create a motive to manufacture sexual assault allegations; rather, the relevance of this information is limited to the narrow question of whether K.W.M.'s ingestion of medication on the evening in question affected her perception and recall of events. Our discovery rules cast a much wider net than do our admissibility rules, and we offer no opinion on what, if any, of this information would be admissible at trial.
[9] Since our holding permits discovery of K.W.M.'s prescription records but finds that Williams was not entitled to K.W.M.'s mental health records, we do not address Williams's argument pertaining to in camera review of the documents.
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20 A.3d 834 (2011)
199 Md. App. 155
Gary L. HEIT
v.
Kathryn STANSBURY.
No. 354, September Term, 2010.
Court of Special Appeals of Maryland.
May 27, 2011.
EYLER, DEBORAH S., ZARNOCH and TONI E. CLARKE (Specially Assigned), JJ.
ON MOTION TO STRIKE APPELLANT'S REPLY BRIEF
EYLER, DEBORAH S., J.
An appeal is pending before this Court from judgments entered in a divorce action *835 in the Circuit Court for Montgomery County between Gary Heit, the appellant, and Kathryn Stansbury, the appellee. On October 6, 2010, Heit filed his brief. On November 5, 2010, Stansbury filed her brief. The appeal then was docketed for argument to take place in May of 2011, and indeed oral argument eventually was scheduled for (and took place on) May 4, 2011.
On April 21, 2011, more than 10 days before the scheduled argument date but 5½ months after Stansbury filed her brief, Heit filed a reply brief. Stansbury then filed a motion to strike the reply brief, on the ground that it was not timely filed under Rule 8-502(a)(3). That Rule states:
(a) Duty to file; time. Unless otherwise ordered by the appellate court:
* * * * *
(3) Appellant's reply brief. The appellant may file a reply brief within 20 days after the filing of the appellee's brief, but in any event not later than ten days before the date of scheduled argument.
Stansbury argues that, under this Rule, Heit had 20 days after November 5, 2010, to file a reply brief; and, because that day fell on a court holiday, his filing deadline actually was November 29, 2010, which was the next court business day. See Md. Rule 1-203(a)(1).
Heit filed an opposition to the motion to strike, asserting that his reply brief was timely filed. He argues that Rule 8-502(a)(3) permits him to file a reply brief at anytime, so long as it is not within ten days of the scheduled oral argument. He asserts that, because April 21, 2011, was more than 10 days before May 4, 2011, the reply brief was timely filed.
We conclude that Stansbury's reading of Rule 8-502(a)(3) is correct.
We interpret the Maryland Rules using the same principles that apply to the interpretation of statutes. Barbre v. Pope, 402 Md. 157, 172, 935 A.2d 699 (2007); Goldston v. Karukas, 180 Md. 232, 235, 23 A.2d 691 (1942). As with statutory construction, our objective is to effectuate the intention of the drafters, and to do so we start with the words of the rule and from the premise that the words carry their ordinary and usual meanings. Barbre, 402 Md. at 172-73, 935 A.2d 699.
Heit's reading of the Rule in question focuses upon its use of the word "may," which connotes a discretionary act, i.e., one that is not required, in contrast to the word "shall," which in many contexts is mandatory, that is, connoting a required act. He points out that in subsection (a)(1) the Rule states that the brief of an appellant (other than a cross-appellant) "shall" be filed "[w]ithin 40 days after the filing of the record" but that in subsection (a)(3) the Rule states only that an appellant's reply brief "may" be filed "within 20 days after the filing of the appellee's brief," as long as it is not filed later than ten days before scheduled argument.[1] He reasons that, because the appellant's initial brief "shall" be filed within 40 days, etc., but the appellant's reply brief "may" be filed within *836 in 20 days, etc., it is only logical that an appellant is not required to file his reply brief within that 20-day period. Rather, he has until ten days before oral argument to do so.
The flaw in this argument is that it disregards that the words "shall" and "may" in those subsections of the Rule are used not only to designate the time for filing briefs but also to establish the obligation, if any, to file a brief. An appellant in a case before this Court must file a brief; and the time for doing so (absent an extension as permitted by section (b) of the Rule) is 40 days after the record of the circuit court has been filed. Thus, subsection (a)(1) states that the appellant "shall" file a brief "within [the 40-day period]." Pursuant to section (d) of the Rule, entitled "Default," an appellant's failure to timely file a brief may result in his appeal being dismissed. See also Md. Rule 8-602(a)(7) (stating that an appellant's failure to file a brief "within the time prescribed by Rule 8-502" is grounds for dismissal of his appeal).
Likewise, "shall" is used in the subsection of Rule 8-502 governing the appellee's brief, as the filing of an appellee's brief also is required. Pursuant to Rule 8-502(a)(2), "[w]ithin 30 days after the filing of the appellant's brief, the appellee shall file a brief. . . ." (Emphasis added.) For obvious reasons, the consequence of the appellee's not filing a brief, or a timely brief, is not dismissal of the appeal. There is a consequence for a failure to file, or for not timely filing, however. Under section (d) of the Rule, "[a]n appellee who fails to file a brief within the time prescribed by this Rule may not present argument except with permission of the Court."
In contrast to the duties that are imposed for filing the appellant's brief and the appellee's brief, there is no duty for an appellant to file a reply brief. Doing so is entirely a matter of choice; hence, the use of the word "may" in subsection (a)(3) of Rule 8-502. If the word "shall" were used instead of "may" in that subsection, the subsection would impose an obligation upon an appellant to file a reply brief. It is for that reason that subsection (a)(3) uses the word "may" when the two subsections preceding it use the word "shall."
We construe the meaning of the language of a statute or rule in context, and not in isolation. Schreyer v. Chaplain, 416 Md. 94, 101, 5 A.3d 1054 (2010). Thus, a reasonable interpretation of Rule 8-502(a)(3) must take into account that an appellant's and an appellee's briefs are required ("shall file") and a reply brief is not ("may file"). Read in that context, the phrase, "[t]he appellant may file a reply brief within 20 days after the filing of the appellee's brief," is not a mere suggestion that any reply brief that is filed be filed within 20 days after the appellee's brief is filed. Indeed, the "20 days" phrase in that subsection is meaningless under Heit's reading of the Rule. Rather, the "20 days" language directs the appellant that, if he is going to file a reply brief at all, the deadline for doing so is 20 days after the date on which the appellee's brief is filed. And, anticipating that there may be cases in which the appellee's brief properly is filed not long before the scheduled argument, it further directs, in the "but in any event not later than ten days before the date of scheduled argument" phrase that follows, that the appellant will not have the benefit of the full 20-day time period if that time period encroaches upon ten days of the scheduled argument date.
In this case, for example, if the brief filing times all had been shifted by stipulation or order, and Stansbury's brief had been filed timely on April 12, 2011, Heit would not have had until within 20 days from that date (May 2, 2011) to file a reply *837 brief (if he had chosen to file one), because that 20-day deadline would have fallen within ten days of the scheduled May 4, 2011 oral argument. Instead, any reply brief would have been due no later than April 24, 2011.
Heit asserts that Stansbury's (and our) reading of Rule 8-502(a)(3) rewrites the subsection as follows: "The appellant may file a reply brief within the earlier of 20 days after the filing of the appellee's brief or ten days before the date of schedule[d] argument." Opposition to Motion to Strike Reply Brief, at 2 (emphasis in original). He also asserts that Rule 8-502(a)(3) as actually written is "consistent with its federal counterpart, Fed. R.App. P. 31(a)." Id. That federal rule states:
(a) Time to Serve and File a Brief.
(1) The appellant must serve and file a brief within 40 days after the record is filed. The appellee must serve and file a brief within 30 days after the appellant's brief is served. The appellant may serve and file a reply brief within 14 days after service of the appellee's brief but a reply brief must be filed at least 7 days before argument, unless the court, for good cause, allows a later filing.
Taking the second assertion first, Heit is correct in that subsections (a)(1) through (3) of Rule 8-502 indeed are consistent with Fed. R.App. P. Rule 31(a). His point is not well made, however, because that rule has been interpreted to have the same meaning we read our parallel rule to have. In Meza v. Washington State Department of Social and Health Services, 683 F.2d 314 (9th Cir.1982), decided at a time when the "7 days before argument" period in Rule 31(a) only was 3 days, the court observed:
A few days before oral argument, the judges of the panel received unfiled copies of the state's reply brief [which then was filed]. Fed. R.App. P. 31(a) provides for filing of a reply brief within 14 days of the filing of the appellee's brief. The state's last brief was nearly 80 days late.
When questioned at oral argument about the delay in filing the brief, the state's attorney argued that the rule allowed filing up to 3 days before argument. It does not so provide,2 and we do not countenance the disregard of court rules, whether governing conduct and procedure in the trial court or this court.
2 Rule 31(a) permits the filing of a reply brief within 14 days. Even if timely, a reply brief may not be filed within 3 days of argument except upon a showing of good cause. These provisions are unambiguous.
Id. at 316 (footnote 1 omitted).
With regard to Heit's second assertion, it is well established that our function in construing statutes and rules is not to rewrite them so as to give them meanings not intended by their drafters. See, e.g., Della Ratta v. Dyas, 414 Md. 556, 566, 996 A.2d 382 (2010) (cardinal rule of statutory interpretation is to "ascertain and effectuate" meaning intended by drafters). And, to be sure, the relevant sections of Rule 8-502and subsection (a)(3) in particular are not models of clarity. Perhaps subsection (a)(3) would be most clearly worded if written as Heit is suggesting we are "rewriting" it. ("The appellant may file a reply brief within the earlier of 20 days after the filing of the appellee's brief or ten days before the date of scheduled argument.") There can be more than one way to say the same thing, however, and subsection (a)(3) says the same thing as the "rewrite," although not as clearly.
What is clear, however, is that we will not read a statute or rule so as to write out language that is not superfluous. W.M. Schlosser Co. v. Uninsured Employers' *838 Fund, 414 Md. 195, 204 (2010). Heit's suggested interpretation of Rule 8-502(a)(3) would violate this long-standing principle of statutory construction by writing out the phrases "within 20 days after the filing of the appellee's brief and `in any event.'" The plain meaning of the phrases Heit would have us write out of the subsection establish the deadline for an appellant to file a reply brief, if he chooses to file one, and an alternative deadline that applies when the first deadline is within ten days of the scheduled argument date. If the Court of Appeals had wished to give the subsection the meaning Heit ascribes to it, it would not have included those phrases at all. The subsection would have read, simply: "The appellant may file a reply brief, but not later than ten days before the date of scheduled argument."
Under a proper reading of Rule 8-502(a)(3), the last day for Heit to file a reply brief in this case was November 29, 2010.[2] When he filed a reply brief on April 21, 2011, it was significantly overdue. We therefore shall grant Stansbury's motion to strike.[3]
MOTION TO STRIKE REPLY BRIEF GRANTED. COSTS TO ABIDE THE RESULT OF THE APPEAL.
NOTES
[1] In some contexts, particularly when the word "shall" is found in a constitutional provision or enactment appearing to impose a duty on a court, it is viewed as directory, not mandatory. In re Abiagail C., 138 Md.App. 570, 581, 772 A.2d 1277 (2001). See, e.g., Md. State Bar Ass'n v. Hirsch, 274 Md. 368, 373-74, 335 A.2d 108 (1975) (holding that Article IV, Section 23 of the Maryland Constitution, stating that circuit courts "shall render" their decisions within two months of argument or submission, is directory, not mandatory, and that a litigant's due process rights were not violated when an opinion was not filed within the prescribed period of time). That is not the situation here; the word "shall" in subsections (a)(1) and (2) of Rule 8-502 is used in its mandatory sense.
[2] Rule 8-502(a)(6), which concerns the time by which a cross-appellant must file a reply brief, is worded similarly to Rule 8-502(a)(3) and has the same meaning.
[3] We note that Heit based his opposition to the motion to strike solely on the contention that, under the language of Rule 8-502(a)(3), his reply brief was timely filed. He did not ask this Court to exercise discretion to accept his late-filed reply brief.
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393 S.C. 65 (2011)
710 S.E.2d 90
Joseph S. MATSELL and Pamela A. Matsell, Respondents,
v.
CROWFIELD PLANTATION COMMUNITY SERVICES ASSOCIATION, INC., Appellant.
No. 4831.
Court of Appeals of South Carolina.
Submitted October 1, 2010.
Decided April 27, 2011.
Rehearing Denied June 23, 2011.
*67 D. Gary Lovell and Douglas W. MacKelcan, both of Charleston, for Appellant.
David B. Wheeler and Trudy H. Robertson, both of Charleston, for Respondents.
KONDUROS, J.
Crowfield Plantation Community Services Association (the Association) appeals the trial court's finding the Hamlets of Crowfield Covenants and Restrictions (the Covenants) do not allow the Association to approve fence construction applications for lots that abut the lake, lagoons, or golf course in the *68 Hamlets, except for stated limited circumstances and the Association violated such determination by approving the projects. We affirm.[1]
FACTS
The Hamlets is a subdivision within Crowfield Plantation. The Covenants were drafted by Westvaco Development Corporation and recorded in 1991. The Covenants created an Architectural Review Board (ARB), and the Association assumed full control of the ARB in 2003.
Article V, Section 5.01, of the Covenants, Architectural Control, provide in part:
No construction, reconstruction, remodeling, alteration, or addition to any structure, building, fence, wall, driveway or improvement of any nature shall be commenced without obtaining the prior written approval of the [ARB] as to location, plans and specifications. . . . In addition to the Architectural Guidelines, and not as any limitation thereof, the following restrictions shall apply to the lands subject to these Covenants:
. . . .
c. Fencing of Lots that abut the lake or the golf course is not authorized except as provided in paragraphs 5.01 d, e, and f. Fences may be erected on other than lake and golf lots. . . .
d. Dog kennel pens may be authorized with prior approval of the ARB as to location, size, and type of fencing. Fencing will usually be ornamental in nature and not exceed 6 feet in height. Kennel location will abut the house when possible and in every case will be as close to the rear of the house as practical; kennels/pens will not be visible from the street.
e. . . . . A wall or fence at least 4-feet high, with self-locking gates, shall completely enclose the pool or surrounding yard. For Lots that abut the lake or golf course, the pool fencing cannot extend more than 20 feet from the edge of the pool. . . .
*69 f. Residential tennis courts may be authorized for construction on a lot with prior approval of the ARB as to location, lighting, and fencing. . . . Fencing should be that customarily used with tennis courts and may exceed 6 feet in height depending upon the locations of the courts and the visibility from the street.
The Matsells live in the Hamlets, and their lot abuts the golf course. In 2005, the Matsells' next-door neighbors built a fence that covers the majority of the backyard and can be seen from the street. On November 30, 2007, the Matsells filed an amended complaint seeking a declaratory judgment ordering the Association to comply with, abide by, and enforce section 5.01 of the Covenants. Further, the Matsells sought an order that the Association's approval of the fence in their neighbors' yard violated the Covenants. The Matsells also sought an injunction requiring the removal of their neighbors' fence, along with other similarly approved fences in the Hamlets.
The Matsells and the Association both filed motions for summary judgment. Following a hearing on the matter, the trial court granted summary judgment to the Matsells. The trial court found:
The clear language of the Covenant provides that fences on lots that abut the lake, lagoons, or golf course are not allowed except when enclosing a dog kennel pen (or enclosing a swimming pool or tennis court as further stated in subsections (e) and (f)). When the dog kennel pen exception applies, the fence must be located as close to the rear of the house as is practical, and the fence will not be visible from the street.
The trial court found the Association could not dispute that the lot adjoining the Matsells' lot has a fence that can be seen from the street and covers most of the backyard. The court stated, "Section 5.01(c) through (f) is clear, unambiguous, and explicit. There is no genuine issue of fact as to its construction as it plainly provides that no fences are permitted on lots abutting a lake, lagoon, or golf course within The Hamlets except in limited circumstances." Accordingly, the court found "[a] declaratory judgment is appropriate in this instance as the relief sought is a declaration regarding the proper interpretation of this provision of the Covenants." The court *70 further found that injunctive relief was "fair, just, and effective." This appeal followed.
STANDARD OF REVIEW
The purpose of summary judgment is to expedite the disposition of cases not requiring the services of a fact finder. George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001). When reviewing the grant of a summary judgment motion, this court applies the same standard that governs the trial court under Rule 56(c), SCRCP; summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). In determining whether a genuine issue of fact exists, the evidence and all reasonable inferences drawn from it must be viewed in the light most favorable to the nonmoving party. Sauner v. Pub. Serv. Auth. of S.C., 354 S.C. 397, 404, 581 S.E.2d 161, 165 (2003).
LAW/ANALYSIS
The Association contends the trial court erred in ruling the Covenants do not allow it to approve fence construction applications for lots abutting a lake, lagoon, or golf course except for stated limited circumstances and the Association violated such determinations by approving the projects. It maintains the ARB has vast authority over all construction projects in the Hamlets and the language in 5.01(c) does not limit that authority. We disagree.[2]
"Restrictive covenants are construed like contracts and may give rise to actions for breach of contract." Queen's *71 Grant II Horizontal Prop. Regime v. Greenwood Dev. Corp., 368 S.C. 342, 361, 628 S.E.2d 902, 913 (Ct.App.2006). "Summary judgment is improper when there is an issue as to the construction of a written contract and the contract is ambiguous because the intent of the parties cannot be gathered from the four corners of the instrument." Wallace v. Day, 390 S.C. 69, 74, 700 S.E.2d 446, 449 (Ct.App.2010) (internal quotation marks omitted). "The court is without authority to consider parties' secret intentions, and therefore words cannot be read into a contract to impart an intent unexpressed when the contract was executed." Pee Dee Stores, Inc. v. Doyle, 381 S.C. 234, 241, 672 S.E.2d 799, 802 (Ct.App.2009). "Construction of an ambiguous contract is a question of fact to be decided by the trier of fact." Id.
"Words of a restrictive covenant will be given the common, ordinary meaning attributed to them at the time of their execution." Taylor v. Lindsey, 332 S.C. 1, 4, 498 S.E.2d 862, 863 (1998). "Restrictive covenants are contractual in nature, so that the paramount rule of construction is to ascertain and give effect to the intent of the parties as determined from the whole document." Id. at 4, 498 S.E.2d at 863-64 (internal quotation marks omitted). When "the language imposing restrictions upon the use of property is unambiguous, the restrictions will be enforced according to their obvious meaning." Shipyard Prop. Owners' Ass'n v. Mangiaracina, 307 S.C. 299, 308, 414 S.E.2d 795, 801 (Ct.App. 1992). "A restriction on the use of property must be created in express terms or by plain and unmistakable implication, and all such restrictions are to be strictly construed, with all doubts resolved in favor of the free use of property." Taylor, 332 S.C. at 5, 498 S.E.2d at 864.
An action seeking an injunction to enforce restrictive covenants sounds in equity. Santoro v. Schulthess, 384 S.C. 250, 261, 681 S.E.2d 897, 902 (Ct.App.2009). "[U]pon a finding that a restrictive covenant has been violated, a court may not enforce the restrictive covenant as a matter of law. Rather, the court must consider equitable doctrines asserted by a party when deciding whether to enforce the covenant." Buffington, 383 S.C. at 394, 680 S.E.2d at 292.
*72 The Covenants state that lots on a lake, lagoon, or golf course can only have fences that are either a dog kennel, around a pool, or around a tennis court. The first sentence of the Architectural Control Guidelines states that no construction of a fence can begin without approval of the ARB. These two sentences do not conflict. Nothing in this language supports the Association's assertion that the ARB can approve fences for lots on the lake and golf course that do not fall within the exceptions. The Association does have discretion in fences around other lots in the neighborhood, but the Covenants explicitly state for lots on the lake or golf course the only fences allowed are dog kennels or around a pool or tennis court. Accordingly, the Covenants do not create an ambiguity and the trial court properly granted summary judgment to the Matsells. Therefore, the trial court's decision is
AFFIRMED.
WILLIAMS and PIEPER, JJ., concur.
NOTES
[1] We decide this case without oral argument pursuant to Rule 215, SCACR.
[2] The Association filed a letter with this court pursuant to Rule 208(b)(7), SCACR, to bring to our attention the recently decided case of Buffington v. T.O.E. Enterprises, 383 S.C. 388, 680 S.E.2d 289 (2009), requiring the court to balance the equities before issuing an injunction once it determines a restrictive covenant has been violated. Rule 208(b)(7) provides, "There shall be a reference either to the page of the brief or to an issue to which the citations pertain, but the letter shall, without argument, state the reasons for the supplemental citations." At no point prior to this letter has the Association asserted the trial court failed to balance the equities before issuing the injunction. Accordingly, the Association cannot assert this issue on appeal.
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85 So. 3d 1240 (2012)
STATE ex rel. Michael LEBLANC
v.
STATE of Louisiana.
No. 2011-KH-1614.
Supreme Court of Louisiana.
April 13, 2012.
Denied.
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207 Mich. App. 472 (1994)
525 N.W.2d 487
LOCAL 312 OF THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO
v.
CITY OF DETROIT
Docket No. 158498.
Michigan Court of Appeals.
Submitted October 4, 1994, at Detroit.
Decided November 8, 1994, at 9:15 A.M.
Greenspon, Scheff & Washington, P.C. (by George B. Washington), for the plaintiff.
Donald Pailen, Corporation Counsel, Harnetha Jarrett, Supervising Assistant Corporation Counsel, and Dennis A. Mazurek, Assistant Corporation Counsel, for the defendant.
*473 Before: MICHAEL J. KELLY, P.J., and W.P. CYNAR[*] AND P.D. SCHAEFER,[**] JJ.
PER CURIAM.
Defendant appeals as of right from the circuit court order that denied its motion for summary disposition and instead granted to plaintiff partial summary disposition, costs, and attorneys fees under the Freedom of Information Act (FOIA), MCL 15.231 et seq.; MSA 4.1801(1) et seq. Plaintiff had sought production of documents relating to the subcontracting of bus repairs and rehabilitation work for the years 1990-91. Defendant initially failed to respond to the request in the belief that the parties' labor dispute was governed by the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., and that the documents were exempt from disclosure. We affirm.
The circuit court did not err in deciding plaintiff's action under the FOIA. The PERA and the FOIA are not conflicting statutes such that the PERA would prevail over the FOIA. See Local 1383, Int'l Ass'n of Fire Fighters, AFL-CIO v City of Warren, 411 Mich. 642; 311 NW2d 702 (1981). We decline defendant's invitation to create an FOIA exception based on the status of the person requesting public documents. The Legislature has clearly defined the class of "persons" entitled to seek disclosure of public records. MCL 15.232(a); MSA 4.1801(2)(a). There is no sound policy reason for distinguishing between persons who are involved in litigation-type proceedings and those who are not.
Furthermore, the specific language of § 13(1)(n) of the FOIA evinces not only the possibility that a labor organization would seek public records that *474 may relate to a labor dispute, but also demonstrates that the specific records requested by plaintiff were not exempt from disclosure under the FOIA. MCL 15.243(1)(n); MSA 4.1801(13)(1)(n). In any event, even if the documents requested by plaintiff fell within this exemption, defendant's failure to respond to the request within the statutorily prescribed period constituted a violation of the FOIA. Hartzell v Mayville Community School Dist, 183 Mich. App. 782, 786; 455 NW2d 411 (1990). The circuit court thus had jurisdiction to entertain plaintiff's request for attorney fees. MCL 15.240(4); MSA 4.1801(10)(4).
Because plaintiff prevailed in its FOIA action, the circuit court was required to award plaintiff attorney fees and costs. Michigan Tax Management Services Co v City of Warren, 437 Mich. 506, 508; 473 NW2d 263 (1991); Hartzell, supra. We are convinced that the court properly awarded plaintiff attorney fees and costs beyond the date the documents were made available because of defendant's position with respect to this issue.
Affirmed.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Administrative Order No. 1994-7.
[**] Circuit judge, sitting on the Court of Appeals by assignment.
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19 A.3d 209 (2011)
128 Conn.App. 818
Joseph SORACCO et al.
v.
WILLIAMS SCOTSMAN, INC., et al.
Nos. 31848, 31850.
Appellate Court of Connecticut.
Argued March 14, 2011.
Decided May 24, 2011.
*210 Thomas P. O'Dea, Jr., Westport, for the appellant in Docket No. AC 31848, appellee in Docket No. AC 31850 (named defendant).
William F. Gallagher, New Haven, for the appellees in Docket No. AC 31848, appellants in Docket No. AC 31850 (plaintiffs).
Ellen M. Aspell, Glastonbury, for the appellee in Docket Nos. AC 31848 and 31850 (intervening plaintiff Manafort Brothers, Inc.).
BISHOP, LAVINE and PETERS, Js.
LAVINE, J.
The plaintiffs, Joseph Soracco (Soracco) and his spouse, Cheryl Soracco, and the defendant Williams Scotsman, Inc.,[1] appeal from the decision of the trial court, entered in favor of the intervening plaintiff, Manafort Brothers, Inc. (Manafort), denying their joint motion for judgment to enforce a settlement agreement that they reached to resolve the action brought by the plaintiffs against the defendant. On appeal, the plaintiffs and the defendant claim that (1) the denial of their joint motion for judgment is a final judgment that can be immediately appealed and (2) the court improperly denied their joint motion because the settlement agreement was clear and unambiguous. We conclude that the court's denial of the joint motion for judgment is not a final judgment and, accordingly, dismiss the appeals.[2]
The following facts, many of which were set forth in an earlier appeal filed in this action in Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 971 A.2d 1 (2009), are necessary for the resolution of the plaintiffs' and the defendant's claims. "The plaintiffs brought an action against the defendant seeking to recover for injuries that ... Soracco ... had sustained on October 16, 2001, as a result of the alleged negligence of the defendant's agents. Soracco sustained his injuries when he fell from a construction trailer after an employee of the defendant allegedly removed the stairs leading from the trailer door to the ground without ensuring that the trailer was unoccupied. Soracco was an employee of Manafort at the time of the accident and was injured in the course of his employment. Manafort became obligated to and did pay Soracco workers' compensation benefits as a result of his injuries. Soracco's claim for damages was brought pursuant to General Statutes § 31-293 and his spouse's claim for loss of consortium was derivative of his claim.
"Manafort intervened in the plaintiffs' action, pursuant to General Statutes § 31-293(a), seeking to recover the workers' compensation benefits that it had paid and become obligated to pay to Soracco. Manafort also asserted a workers' compensation *211 lien in this action in the amount of $542,411.69....
"On October 16, 2006, with the assistance of the court, Holzberg, J., the parties attempted to mediate the various claims.... The parties were unable to reach a settlement during the mediation, and the controversy regarding the legitimate amount of Manafort's lien never was settled or adjudicated.
"On October 23, 2006, following the unsuccessful mediation attempt, the plaintiffs and the defendant reported to Judge Holzberg that they had reached a settlement agreement. The plaintiffs' counsel also informed the court that he had provided the defendant with a withdrawal and a formal release from liability. The substance of the settlement agreement was that, in exchange for the withdrawal and release, the defendant would pay the plaintiffs a total sum of $750,000. The plaintiffs' attorney indicated that each plaintiff would receive one half of that amount in satisfaction of their individual claims. Unsatisfied with this intended apportionment, Manafort requested a hearing to allow the court to determine whether the equal division of the settlement proceeds was reasonable. Apparently seeking the court's imprimatur for their settlement, the plaintiffs acquiesced to this procedure.
"Judge Holzberg agreed to make a finding regarding whether an equal division of the proceeds between the plaintiffs was reasonable.[3] After considering testimony from [Cheryl Soracco] as well as arguments from the plaintiffs and Manafort regarding the reasonableness of the settlement allocation, Judge Holzberg upheld the equal apportionment of the settlement proceeds between the plaintiffs. Manafort thereafter appealed"; id., at 88-90, 971 A.2d 1; claiming in part that Judge Holzberg improperly allowed the plaintiffs and the defendant to settle the matter without its consent. Id., at 87-88, 971 A.2d 1.
Our Supreme Court vacated Judge Holzberg's order, concluding that "§ 31-293(a) does not confer standing on an employer seeking to challenge the allocation of the proceeds of a settlement reached between its injured employee and the tortfeasor. Indeed, the statute protects employers from unilateral settlement agreements by preserving their rights in the face of such agreements and by providing that they cannot be bound by them absent their assent. Section 31-293 does not, however, allow an employer to interfere with a settlement reached between its employee and the tortfeasor, nor does it provide courts with the authority to dictate the appropriate terms of such a settlement." Id., at 96-97, 971 A.2d 1.
On August 10, 2009, the plaintiffs and the defendant filed a joint motion for judgment based on the settlement agreement. Specifically, they requested that the court render judgment on the settlement agreement allowing each plaintiff to recover $375,000 from the defendant. They also argued that the court had the authority to enforce the agreement as a judgment pursuant to Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993).[4]
*212 On December 14, 2009, the court, Silbert, J., denied the joint motion for judgment. The court concluded: "[O]n closer inspection, the `unambiguous agreement' on which the plaintiffs and the defendant rely is not so unambiguous after all. There is no dispute that the defendant's understanding and expectation in entering into an agreement to pay $750,000 to settle the claims against it were that it would be released from further liability concerning this incident by all other parties, including Manafort. When it agreed with the plaintiffs that Judge Holzberg could determine the `split' between the plaintiffs, it was with the implicit understanding that whatever Judge Holzberg determined, the defendant was not going to be required to pay any more than it had already offered. By making it clear that it was not committing itself to be bound by Judge Holzberg's determination, however, Manafort essentially put all parties on notice that it was not part, and would not become part, of any global settlement agreement until and unless it was satisfied with the amount of money that it would recover.... This court finds ... there is in fact no unambiguous settlement agreement on the part of all the parties to this litigation which the court may enforce in accordance with Audubon Parking Associates Ltd. Partnership...."
The defendant and the plaintiffs filed separate appeals from the court's decision denying their joint motion for judgment. This court placed the appeals on its own motion calendar to determine whether there was a final judgment and later marked the motion off. On April 14, 2010, however, this court ordered, sua sponte, that the parties "address in their briefs on the merits of the appeals whether the appeals were taken from a final judgment."[5]
In response to this court's order, the plaintiffs and the defendant claim that the trial court's decision denying their joint motion for judgment is a final judgment because the decision threatens the preservation of a right already secured to them and they will be irreparably harmed unless they may immediately appeal. Specifically, the plaintiffs and the defendant claim that they acquired the right to avoid a trial by entering into the settlement agreement and that this right will be irreparably lost once trial begins. We disagree and conclude that the court's decision denying the joint motion for judgment was not a final judgment.
The subject matter jurisdiction of this court is limited by statute. General Statutes § 52-263 provides in relevant part: "Upon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court...." (Emphasis added). "In both criminal and civil cases ... we have determined certain interlocutory orders and rulings of the Superior Court to be final judgments for purposes of appeal. An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect *213 them." State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).
The plaintiffs and the defendant claim that the court's denial of their joint motion for judgment is a final judgment pursuant to the second prong of Curcio. "[F]or an interlocutory ruling in either a criminal or a civil case to be immediately appealable under the second prong of Curcio, certain conditions must be present. There must be (1) a colorable claim, that is, one that is superficially well founded but that may ultimately be deemed invalid, (2) to a right that has both legal and practical value, (3) that is presently held by virtue of a statute or the state or federal constitution, (4) that is not dependent on the exercise of judicial discretion and (5) that would be irretrievably lost, causing irreparable harm to the appellants without immediate appellate review." Sharon Motor Lodge, Inc. v. Tai, 82 Conn. App. 148, 158-59, 842 A.2d 1140, cert. denied, 269 Conn. 908, 852 A.2d 738 (2004).
Our resolution of the plaintiffs' and the defendant's claims is guided by Sharon Motor Lodge, Inc. In Sharon Motor Lodge, Inc., the plaintiffs appealed the denial of their motion for judgment in which they claimed that they were entitled to judgment due to a mediation that allegedly resulted in a settlement of their underlying case. Id., at 149, 842 A.2d 1140. Specifically, the plaintiffs in Sharon Motor Lodge, Inc., claimed, on the basis of Audubon Parking Associates Ltd. Partnership, an entitlement to avoid trial due to the claimed settlement. Id., at 157-58, 842 A.2d 1140. This court dismissed the appeal in Sharon Motor Lodge, Inc., for lack of a final judgment and recognized that "although parties who have agreed to settlements may have a contractual right not to go to trial, that right is not of a constitutional or statutory nature. When parties agree to settle a case, they are effectively contracting for the right to avoid a trial. The asserted right not to go to trial can appropriately be based on a contract between the parties." (Emphasis in original; internal quotation marks omitted.) Id., at 158, 842 A.2d 1140. This court went on to conclude that "[t]he plaintiffs' right to immediate appellate review fails for the reason that it rests on a discretionary action of the trial court ... and does not involve a right that is presently held." Id., at 159, 842 A.2d 1140.
The plaintiffs' and the defendant's right to avoid trial in the present case is a contractual right arising from their settlement agreement. As in Sharon Motor Lodge, Inc., the plaintiffs' and the defendant's right to avoid trial, therefore, is not a right that "is presently held by virtue of a statute or the state or federal constitution...." Id., at 159, 842 A.2d 1140. We conclude, therefore, that the court's decision denying the joint motion was not a final judgment pursuant to the second prong of Curcio.
The plaintiffs and the defendant argue that, although a settlement is a creature of contract, our Supreme Court has, in some instances, concluded that a decision denying a party the right to avoid trial is an appealable final judgment. Specifically, they point to our Supreme Court decisions that have concluded that an order denying a defendant's motion to dismiss following the declaration of a mistrial due to jury deadlock is appealable as a double jeopardy claim; State v. Tate, 256 Conn. 262, 275, 773 A.2d 308 (2001); the denial of a motion for summary judgment based on a claim of collateral estoppel is immediately appealable; Clukey v. Sweeney, 112 Conn.App. 534, 537 n. 1, 963 A.2d 711 (2009); and the denial of a motion to dismiss based on a colorable claim of sovereign immunity is a final judgment for purposes of appeal. Shay v. Rossi, 253 *214 Conn. 134, 167, 749 A.2d 1147 (2000), overruled on other grounds, Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).
This court addressed a similar argument in Sharon Motor Lodge, Inc., and concluded that that case was "unlike the cases involving collateral estoppel ... or cases involving double jeopardy ... which establish the right not to go to trial at all. The principle of collateral estoppel in civil cases and double jeopardy in criminal cases is analogous because it invokes the right not to go to trial on the merits ever....[6] The plaintiffs in this case, on the basis of Audubon Parking Associates Ltd. Partnership... claim entitlement to avoid trial due to a claimed settlement during a mediation session." (Citations omitted; emphasis added.) Sharon Motor Lodge, Inc. v. Tai, supra, 82 Conn.App. at 157-58, 842 A.2d 1140.
Our case law has also distinguished the denial of a motion for summary judgment based on a claim of collateral estoppel from other rulings. "Under Connecticut law, [t]he denial of a motion for summary judgment ordinarily is an interlocutory ruling and, accordingly, not a final judgment for purposes of appeal.... Nevertheless, in Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 544 A.2d 604 (1988), our Supreme Court held that the denial of a claim for collateral estoppel was ripe for immediate appellate review.... The court explained that to postpone appellate review and to require further exhaustion of administrative remedies would defeat the very purpose that collateral estoppel is intended to serve. [T]he basic proposition... has always been essentially the same: A party should not be allowed to relitigate a matter that it already had opportunity to litigate.... [T]he defense of collateral estoppel is a civil law analogue to the criminal law's defense of double jeopardy, because both invoke the right not to have to go to trial on the merits. Like the case of a denial of a criminal defendant's colorable double jeopardy claim, where immediate appealability is well established ... [a] judgment denying [a] claim of collateral estoppel is a final judgment." (Citations omitted; internal quotation marks omitted.) Singhaviroj v. Board of Education, 124 Conn.App. 228, 232, 4 A.3d 851 (2010).
As our Supreme Court concluded, when collateral estoppel is invoked, a party is seeking to prevent relitigation of a matter. This is an entitlement that involves the right to never go to trial on the merits. Collateral estoppel, therefore, invokes a right that is distinguishable from the right held by the plaintiffs and the defendant in the present case. Here, at best, the parties only had a contractual agreement to avoid trial. Unlike the doctrine of collateral estoppel, their contractual right, therefore, is not founded on the judicial precept that once an issue is fully and fairly aired, it should not be subject to relitigation by the same parties.
We further conclude that the court's decision denying the joint motion for judgment does not satisfy the second prong of Curcio because the plaintiffs' and the defendant's right to avoid trial "would [not] be irretrievably lost ... without immediate appellate review." Sharon Motor Lodge, Inc. v. Tai, supra, 82 Conn.App. at 159, 842 A.2d 1140. The court stated in its memorandum of decision that "[t]he clerk is directed to schedule a pretrial conference with the [parties] at the earliest practical *215 date to determine whether a settlement is still possible and, if not, to select a firm trial date." The court also concluded that the plaintiffs and the defendant are still free to settle according to their own agreement but that the case against the defendant by Manafort would continue. The parties, therefore, are still capable of reaching a settlement, which will provide a resolution to this case, in lieu of a trial, without immediate relief from this court.
The appeals are dismissed.
In this opinion the other judges concurred.
NOTES
[1] On February 6, 2006, this action was withdrawn as against the defendant E & F/Walsh Building Company, LLC. We therefore refer to Williams Scotsman, Inc., as the defendant in this opinion.
[2] Because we conclude that the denial of the joint motion for judgment is not a final judgment, we do not address the plaintiffs' and the defendant's claim that the court improperly denied their joint motion.
[3] Manafort agreed to permit Judge Holzberg to find a mutually acceptable resolution, but it also announced that it was not agreeing to be bound by Judge Holzberg's decision and that it would appeal the decision if it did not find it satisfactory.
[4] "A hearing pursuant to Audubon Parking Associates Ltd. Partnership ... is conducted to decide whether the terms of a settlement agreement are sufficiently clear and unambiguous so as to be enforceable as a matter of law." Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 499 n. 5, 4 A.3d 288 (2010).
[5] Only the plaintiffs and Manafort submitted briefs in this appeal. In lieu of filing a separate brief and appendix, the defendant adopted the brief and appendix filed by the plaintiffs.
[6] We also note that a criminal defendant's right to be free of double jeopardy is a constitutional right, rather than a contractual right and, therefore, satisfies the second prong of Curcio. See State v. Jutras, 121 Conn.App. 756, 757, 996 A.2d 1212, cert. denied, 298 Conn. 917, 4 A.3d 1230 (2010).
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19 A.3d 1049 (2011)
COM.
v.
CLARK.
No. 576 EAL (2010).
Supreme Court of Pennsylvania.
March 30, 2011.
Disposition of Petition for Allowance of Appeal Denied.
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10 A.3d 184 (2010)
417 Md. 360
Ashanti COST
v.
STATE of Maryland.
No. 116, September Term, 2009.
Court of Appeals of Maryland.
December 17, 2010.
*186 Marc A. DeSimone, Jr., Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner.
Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.
Russell P. Butler, Matthew S. Ornstein, Upper Marlboro, brief of Amicus Curiae Maryland Crime Victims' Resource Center, Inc.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
ADKINS, J.
Petitioner Ashanti Cost was convicted of reckless endangerment for an alleged stabbing attack on Michael Brown, a fellow inmate at the Maryland Correctional Adjustment Center ("MCAC"). During the course of investigating the incident, the State sealed Brown's cell and took several items of physical evidence into custody. Apparently, these items were later disposed of by the State, rather than being preserved as evidence for use in Cost's trial. At trial, Cost sought a jury instruction regarding the destruction of this evidence, but his request was denied. Additionally, after his conviction, Cost received records indicating that Brown had a history of inflicting stab wounds upon himself. Cost unsuccessfully argued that this information should have been disclosed as material under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We granted certiorari to consider the following two questions:
1. Did the lower court err in holding that the trial court did not err in failing to instruct the jury on spoliation because such an instruction is never required in criminal cases?
*187 2. Did the State violate its obligation under [Brady], when it failed to disclose that the victim had a history of self-inflicted superficial stab wounds while in State custody?
We shall hold that the trial court erred by refusing Cost's proposed instruction, vacate Cost's conviction, and remand for a new trial. Because we so hold, we need not reach the second question presented.
FACTS AND LEGAL PROCEEDINGS
Petitioner Ashanti Cost is an inmate at the Maryland Correctional Adjustment Center, a so-called "Supermax" prison, located in Baltimore City. At the time of the events giving rise to this appeal, Cost had recently been transferred to MCAC from another facility in Hagerstown. Cost alleges that this transfer to the more restrictive facility was retaliation for Cost's testimony before a Senate committee investigating the death of a Hagerstown facility inmate at the hands of prison guards.
According to the State, Cost attacked another MCAC inmate, Michael Brown, on September 28, 2005. Brown was detained at MCAC as a material witness for the federal government in a separate case. Cost was charged with assault in the first degree, assault in the second degree, openly wearing and carrying a deadly weapon with intent to injure, and reckless endangerment. At the time of the alleged attack, both Cost and Brown were "locked down" in their cells for twenty-three hours per day, except for medical escorts and one hour of "outside activity." This is standard practice in many "Supermax" prisons such as MCAC.
At Cost's trial in the Circuit Court for Baltimore City, Brown testified that he had been a federal informant for approximately six years, and that Cost had previously threatened to kill Brown because he was an informant. According to Brown, Cost threw feces into Brown's cell through cracks in the cell door, and issued a vulgar threat against Brown. Brown further testified that Cost grabbed Brown's clothing through a food slot in the cell door, pulled him close to the door, and stabbed him in the abdomen with an approximately six-inch long metal weapon "like an ice pick." Brown claimed that the wound "was bleeding a lot . . . running like water." Brown testified that he was admitted to Johns Hopkins Hospital and treated for "internal bleeding, dizziness, a lot of things like that."
At trial, Cost pointed to a number of facts that he alleged cast doubt on Brown's version of events. To begin with, Cost had been searched before being allowed to leave his cell, and no weapons or other contraband were found on his person. After the attack, the entire unit area was searched for weapons, and none were recovered. Cost also challenged the alleged severity of Brown's injury, drawing support from Brown's hospital discharge forms. In particular, Cost relied on medical records stating that Brown's alleged ice pick wound was "approximately 1 inch long [and] only penetrated the skin" and was "approximately 3 millimeters in length. . . ." Brown's recommended course of treatment was "over-the-counter pain relief such as Tylenol or ibuprofen[,]" which Cost argued cast doubt on the severity of the injury.
More significantly, Cost focused on a series of unusual evidence and chain of custody issues that arose relating to the condition of Brown's cell. At trial, the State introduced as evidence photographs of Brown's cell taken the evening following the alleged attack. The photographs show significant red staining on the floor of the *188 cell, which Brown identified as his blood.[1] Brown also testified that the photographs showed a towel which he had used to try to stop his abdominal bleeding. Major Donna Hansen, who was MCAC's investigative officer at the time of the attack and who took the photographs, testified that when she entered Brown's cell she observed "a large amount of what appeared to be blood and smelled like blood on the floor and on the mattress[,]" as well what she believed to be several towels lying on the floor. She further testified that she did not collect any towels or bedding as evidence, as that would be the responsibility of the Department of Public Safety and Correctional Services's Internal Investigative Unit ("IIU"). Hansen testified that on the night of the attack, she placed a call to Detective Bob Fagen, the IIU duty officer on the day in question.
There is some uncertainty as to precisely what events followed Hansen's alleged call to Detective Fagen. According to Detective Karen Griffiths, a detective with the IIU at the time of these events, she received a call from Hansen on October 3, 2005, five days after the attack. Griffiths testified that Hansen said "that she had a cell sealed and wanted to know if [IIU] would release that cell. . . ." According to Griffiths, this was the first time she became aware of the attack. Griffiths further testified that when she queried her supervisor about the case, it was assigned to her.
After the assignment, Griffiths went to MCAC to pursue her investigation. She did not, however, examine Brown's cell, because it had been cleaned. In addition, no physical evidence had been preserved from the cell neither towels nor bedding had been stored for Griffiths's review. Griffiths testified that she did not tell Hansen to unseal the cell; those instructions apparently issued from Griffiths's supervisor. According to Griffiths, the case had actually initially been "referred back to Major Hansen, who is a trained investigator, and [IIU was] not going to handle that crime scene." Brown's clothing from the night of the alleged attack, which Hansen had collected, was not accepted by IIU's crime lab "because of the age and the lack of chain of custody."
The absence of the physical evidence from Brown's cell, the contents of which had apparently been disposed of by MCAC staff, led Cost to request a jury instruction regarding the destruction of evidence by the State. Specifically, Cost requested the following instruction:
You have heard the testimony that the Division of Correction, a State agency, has destroyed evidence in this case by failing to preserve a crime scene and failing to retain the bed linens that were seized at the scene.
If this evidence was peculiarly within the power of the State, but was not produced and the absence was not sufficiently accounted for or explained, then you may decide that the evidence would have been formable [sic][2] to the defense.
This proposed instruction appears to be adapted from the Maryland Criminal Pattern Jury Instruction ("MPJI-CR") on missing witnesses. See MPJI-CR 3:29.[3]*189 The State objected to Cost's proposed instruction on the grounds that there had been no direct testimony that the physical evidence from Brown's cell had been destroyed.[4] Cost responded that the State "had the duty to preserve that crime scene for [Griffiths] to get there to investigate it[,]" and that the cell "was certainly in control of the State and nobody else" when Griffiths's supervisor told Hansen that the cell could be unsealed. The trial court ultimately refused to give the requested instruction, "in the absence of any testimony to support that the State deliberately destroyed the evidence. . . ."
The jury ultimately acquitted Cost of assault in the first degree, assault in the second degree, and openly wearing and carrying a deadly weapon with intent to injure, but convicted him on the charge of reckless endangerment. Cost was sentenced to five years incarceration, to be served consecutive to his existing prison term.[5] On appeal, the Court of Special Appeals affirmed the judgment of the trial court with respect to refusing to instruct the jury on the missing evidence. In an unreported opinion, the intermediate appellate court held that "the State's failure to preserve evidence, or the actual destruction of evidence, may . . . . give rise to inferences against the State. . . ." It further held, however, that a defendant is not entitled "to an instruction where that instruction relates to permissible inferences of fact[,]" as opposed to an instruction on governing law, and affirmed Cost's conviction. We granted Cost's Petition for a Writ of Certiorari. Cost v. State, 411 Md. 355, 983 A.2d 431 (2009).
STANDARD OF REVIEW
We review whether a trial court abused its discretion in refusing to offer a jury instruction under well-defined standards. A trial court must give a requested jury instruction where "(1) the instruction is a correct statement of law; (2) the instruction is applicable to the facts of the case; and (3) the content of the instruction was not fairly covered elsewhere in instructions actually given." Dickey v. State, 404 Md. 187, 197-98, 946 A.2d 444, 450 (2008); see also Md. Rule 4-325(c). We review a trial court's decision whether to grant a jury instruction under an abuse of discretion standard. See, e.g., Thompson v. State, 393 Md. 291, 311, 901 A.2d 208, 220 (2006). On review, jury instructions
[M]ust be read together, and if, taken as a whole, they correctly state the law, are not misleading, and cover adequately the issues raised by the evidence, the defendant has not been prejudiced and reversal is inappropriate. Reversal is not required where the jury instructions, taken as a whole, sufficiently protect[ed] the defendant's rights and adequately covered the theory of the defense.
Fleming v. State, 373 Md. 426, 433, 818 A.2d 1117, 1121 (2003). Thus, while the trial court has discretion, we will reverse the decision if we find that the defendant's rights were not adequately protected. See, e.g., General v. State, 367 Md. 475, 789 *190 A.2d 102 (2002) (trial court abused its discretion in refusing to give a "mistake of fact" instruction); Smith v. State, 302 Md. 175, 486 A.2d 196 (1985) (trial court abused discretion in refusing to give an instruction on alibi).
ANALYSIS
1. Missing Evidence Instructions, Generally
As a preliminary matter, we find that Cost's proposed instruction is most accurately labeled as a "missing evidence" instruction. While the Court of Special Appeals, as well as Cost, characterized Cost's claim as "spoliation," we consider this moniker misleading. As we describe below, "spoliation" is often used in civil cases, where parties withhold or destroy evidence strategically. The term "spoliation," moreover, is often associated with egregious or bad faith actions, and not for cases involving negligent destruction or loss. Yet here, in the criminal context, "spoliation" is an imprecise term. Instead, Cost's claim is more accurately titled as "missing evidence,"[6] which can include situations where the State intentionally or negligently destroyed or merely failed to produce relevant evidence.
Maryland recognizes some form of jury instructions regarding missing or destroyed evidence in both civil and the criminal contexts. In the civil context, we give a jury instruction for the "spoliation of evidence" where a party has destroyed or failed to produce evidence. The pattern jury instruction reads as follows:
The destruction of or the failure to preserve evidence by a party may give rise to an inference unfavorable to that party. If you find that the intent was to conceal the evidence, the destruction or failure to preserve must be inferred to indicate that the party believes that his or her case is weak and that he or she would not prevail if the evidence was preserved. If you find that the destruction or failure to preserve the evidence was negligent, you may, but are not required to, infer that the evidence, if preserved, would have been unfavorable to that party.
MPJI-CV 1:10. Such an instruction is designed to draw a jury's attention to a simple, straightforward premise: that "one does not ordinarily withhold evidence that is beneficial to one's case." Anderson v. Litzenberg, 115 Md.App. 549, 562, 694 A.2d 150, 156 (1997). The instruction does not require that a jury make an adverse inference in situations involving the spoliation of evidence; rather, it merely permits such an inference.[7]See Joseph F. Murphy, Jr., Maryland Evidence Handbook § 409 (4th ed.2010) ("Destruction of evidence permits, but does not require, an inference that the *191 evidence would have been unfavorable to the position of the party who destroyed the evidence.").
We have also recognized a "missing evidence" instruction in a criminal proceeding, though only against the defendant. The Maryland Criminal Pattern Jury Instructions ("MPJI-CR") include an instruction on "Concealment or Destruction of Evidence as Consciousness of Guilt[,]" which reads in part as follows:
Concealment or destruction of evidence is not enough by itself to establish guilt, but may be considered as evidence of guilt. Concealment or destruction of evidence may be motivated by a variety of factors, some of which are fully consistent with innocence.
You must first decide whether the defendant [concealed, destroyed, or attempted to conceal or destroy] evidence in this case. If you find that the defendant [did so] . . . then you must decide whether that conduct shows a consciousness of guilt.
MPJI-CR 3:26. We have held that "[c]onsciousness of guilt evidence . . ., including. . . destruction or concealment of evidence[,]" is significant because "the particular behavior provides clues to the [actor's] state of mind[.]" Decker v. State, 408 Md. 631, 640, 641, 971 A.2d 268, 274 (2009). This is hardly a novel concept; numerous commentators have expressed similar sentiments. Wigmore, for example, has explained the significance of the destruction of evidence as follows:
It has always been understood the inference, indeed, is one of the simplest in human experience that a party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.
2 John Henry Wigmore, Evidence in Trials at Common Law § 278 (Chadbourn rev.1979) (emphasis deleted and footnote omitted).
Here we consider the distinct, though related, question of when a "missing evidence" instruction is required against the State in a criminal proceeding.
2. Patterson and Missing Evidence Instructions for a Criminal Defendant
In a previous case, we have considered whether a defendant in a criminal case was entitled to a jury instruction regarding evidence that the State had failed to produce. See Patterson v. State, 356 Md. 677, 682, 741 A.2d 1119, 1121 (1999). In Patterson, the defendant was convicted of drug possession after police discovered a jacket in the trunk of his car with crack cocaine in its pockets. See id. at 680-81, 741 A.2d at 1121. The jacket was not itself introduced into evidence; instead, prosecutors offered into evidence a photograph of the jacket in the trunk of the defendant's car. See id. The defendant unsuccessfully requested a "missing evidence" jury instruction stating that if the jacket "was peculiarly within the power of the State to produce, but was not produced by the State and the absence of that evidence was not sufficiently accounted for or explained, then [the jury] may decide that the evidence would have been unfavorable to the State." Id. at 682, 741 A.2d at 1121.
We analyzed the trial court's refusal to instruct the jury under substantive Maryland *192 evidence law and on due process grounds. First, we held as a matter of Maryland law that the trial court did not err in rejecting the missing evidence instruction, as trial courts "[g]enerally . . . need not instruct . . . on the presence or absence of most evidentiary inferences, including `missing evidence' inferences." Patterson, 356 Md. at 694, 741 A.2d at 1127. We then considered the defendant's claim that the defendant's due process rights were violated by the state's failure to produce the jacket. While noting that other states had found additional protections for defendants in their state constitutions, we found that Maryland's Constitution guaranteed no additional protections:
The United States Supreme Court's interpretation of the Due Process Clause of the Fourteenth Amendment generally may be applicable in interpreting Article 24 of the Maryland Declaration of Rights. We have considered guarantees in the Declaration of Rights to be in pari materia with similar provisions of the federal constitution. Thus, we apply the same standards whether the claim alleges violation of a state or federal constitutional right.
Petitioner contends that the trial court's refusal to give the missing evidence instruction denied him due process of law. The Supreme Court made clear in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), that when a defendant alleges a denial of due process he or she must prove that the government acted in bad faith[.]
* * *
The Youngblood standard logically must extend to the refusal to instruct on the government's failure to preserve evidence.
Patterson, 356 Md. at 694-96, 741 A.2d at 1128 (some citations omitted). We thus held in Patterson that neither Maryland law nor due process required a jury instruction for the State's failure to produce evidence.
As we recognized in Patterson, the requirement that a defendant in a criminal proceeding show "bad faith" has its origin in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). In Youngblood, a man was convicted for the rape of a young boy despite inconclusive scientific evidence. See Youngblood, 488 U.S. at 52-54, 109 S. Ct. at 333-35. One sample of the assailant's semen had not been refrigerated by the State, and expert testimony given at trial demonstrated that the defendant could have been exonerated if the evidence had been preserved. See id. at 54, 109 S. Ct. at 335. After conviction, the Arizona Court of Appeals reversed, holding that the State had denied the defendant due process by failing to preserve the evidence. See id. The Supreme Court disagreed, holding that the Due Process clause was not violated when "there was no suggestion of bad faith on the part of the police." Id. at 58, 109 S. Ct. at 338. The specific holding of Youngblood is that the Due Process clause is not violated, and thus the charges should not be dismissed, where the defendant has failed to show bad faith by the State in failing to preserve evidence that could be subject to further tests.
Since Youngblood, states have struggled to determine the scope of the "bad faith" requirement. Specifically, states have been faced with a problem of whether a defendant in a criminal case could ever be entitled to a remedy, perhaps a lesser one than dismissal, when the State has destroyed or failed to preserve evidence. Courts have had to balance the holding in Youngblood with the practical reality that the defendant will rarely, if ever, be able *193 to show "bad faith" by the State. In so doing, different approaches have emerged.
A few states have adopted the Youngblood standard and refused to provide extra protections for a defendant in a criminal case. These states include Georgia, Ohio, North Carolina, and Washington. See Walker v. State, 264 Ga. 676, 449 S.E.2d 845 (1994) (no due process violation where officer mistakenly destroyed evidence, believing it to be trash); State v. Lewis, 70 Ohio App. 3d 624, 591 N.E.2d 854 (1990) (conviction upheld where rape test kit was lost by state); State v. Drdak, 330 N.C. 587, 411 S.E.2d 604 (1992) (destruction of defendant's blood sample did not preclude admission of defendant's medical records detailing blood alcohol concentration); State v. Ortiz, 119 Wash.2d 294, 831 P.2d 1060 (1992) (state constitution did not afford broader rights for preservation of evidence than the federal Constitution).
Other states have maintained a focus on due process, but sidestepped Youngblood by finding additional protections for criminal defendants in their state constitutions. See Thorne v. Dep't. of Pub. Safety, 774 P.2d 1326, 1330 (Alas.1989) (construing "Alaska Constitution's Due Process Clause to not require a showing of bad faith"); State v. Morales, 232 Conn. 707, 657 A.2d 585, 591-592 (1995) (although "due process under the federal constitution does not require a trial court to apply such a balancing test, we are persuaded that due process under [the Connecticut] constitution does."); State v. Matafeo, 71 Haw. 183, 787 P.2d 671, 673 (1990) (recognizing that Hawaii due process inquiry must go beyond Youngblood); Commonwealth v. Henderson, 411 Mass. 309, 582 N.E.2d 496, 497 (1991) ("The rule under the due process provisions of the Massachusetts Constitution is stricter than that stated in the Youngblood opinion."); State v. Ferguson, 2 S.W.3d 912, 914 (Tenn.1999) ("[T]he due process principles of the Tennessee Constitution are broader than those enunciated in the United States Constitution [in Youngblood.]"); State v. Tiedemann, 162 P.3d 1106, 1117 (Utah 2007) (Youngblood standard does not "serve as an adequate safeguard of the fundamental fairness required by article I, section 7 of the Utah Constitution."); State v. Delisle, 162 Vt. 293, 648 A.2d 632 (1994) (finding additional constitutional protections in Vermont Constitution).
The state due process protections for destroyed evidence are often applied in the form of a balancing test to determine whether some remedy be it dismissal or a "missing evidence" instruction is warranted. Delaware, for example, has adopted a balancing test in lieu of any broad application of a "bad faith" requirement. See Deberry v. State, 457 A.2d 744 (Del.1983); see also Hammond v. State, 569 A.2d 81 (Del.1989) (affirming the Deberry approach after Youngblood). Delaware applies three factors in determining whether a defendant is entitled to a remedy: "(1) the degree of negligence or bad faith involved, (2) the importance of the lost evidence, and (3) the sufficiency of the other evidence adduced at the trial to sustain the conviction." Deberry, 457 A.2d at 752. Other states that use a balancing test to answer this question include New Mexico, Tennessee and Vermont. See State v. Chouinard, 96 N.M. 658, 634 P.2d 680, 683 (1981); Ferguson, 2 S.W.3d at 917; Delisle, 648 A.2d at 643.
A few states have avoided Youngblood's harsh result by providing a remedy for destroyed evidence as a matter of state evidence law. Iowa, while originally limiting the application of the missing evidence inference to those instances in which a defendant's constitutional rights have been violated, has recently modified its approach so as to protect the defendant even *194 in the absence of a due process violation. Compare State v. Atley, 564 N.W.2d 817, 822 (Iowa 1997) (holding that an instruction on the missing evidence inference "is only appropriate when such destruction is a violation of a defendant's due process rights"), with State v. Hartsfield, 681 N.W.2d 626, 629 (Iowa 2004) (holding, without addressing bad faith, that "a defendant can be entitled to a spoliation instruction without showing that a refusal to give the instruction would be an infringement of his right to due process"). See also State v. Reffitt, 145 Ariz. 452, 702 P.2d 681, 690 (1985) (citing State v. Willits, 96 Ariz. 184, 393 P.2d 274, 276 (1964) (under Arizona state evidence law, a defendant is entitled to a missing evidence instruction when (1) "the state failed to preserve material and reasonably accessible evidence having a tendency to exonerate him," and (2) "this failure resulted in prejudice.")).
In adopting different approaches than Youngblood, courts and commentators have noted the problems with a universal "bad faith" requirement. Vermont, in adopting a balancing test, noted that the "bad faith" standard is both too broad and too narrow:
It is too broad because it would require the imposition of sanctions even though a defendant has demonstrated no prejudice from the lost evidence. It is too narrow because it limits due process violations to only those cases in which a defendant can demonstrate bad faith, even though the negligent loss of evidence may critically prejudice a defendant.
Delisle, 648 A.2d at 643. Alaska, in allowing its courts to find a violation in the absence of bad faith, stated:
The Youngblood decision could have the unfortunate effect of encouraging the destruction of evidence to the extent that evidence destroyed becomes merely "potentially useful" since its contents would be unprovable. [We agree] with Justice Stevens' belief that there may be cases "in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair." Youngblood, [488 U.S. at 61, 109 S. Ct. at 339], 102 L.Ed.2d at 291 (Stevens, J., concurring).
Thorne, 774 P.2d at 1331 n. 9. See also, e.g., Norman C. Bay, Old Blood, Bad Blood, and Young Blood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. U.L.Rev. 241 (2008) (reviewing the near-consensus rejection of Youngblood); Matthew H. Lembke, Note, The Role of Police Culpability in Leon and Youngblood, 76 Va. L.Rev. 1213, 1215 (1990) (criticizing the bad faith requirement as "inherently flawed").
Courts have been even more willing to depart from the bad faith requirement when the eventual remedy is a missing evidence instruction, not the dismissal of charges at issue in Youngblood. See, e.g., Hammond, 569 A.2d 81, 90 (requiring a missing evidence jury instruction without a showing of bad faith); Fletcher v. Anchorage, 650 P.2d 417, 418 (Alaska Ct.App. 1982) (when evidence is "lost or destroyed in good faith," a court may decide to "instruct the jury to assume that the [missing] evidence would be favorable to the defendant.") Even some states that adhere to Youngblood's bad faith requirement allow or encourage missing evidence instructions. See State v. Youngblood, 173 Ariz. 502, 844 P.2d 1152, 1157 (1993) (on remand from Supreme Court, reaffirming "bad faith" standard but noting that "an instruction is adequate where the state destroys, loses or fails to preserve evidence[.]"); Collins v. Commonwealth, 951 S.W.2d 569 (Ky.1997) (following Youngblood *195 but stating that a "factor of critical importance to this case is the missing evidence instruction that was provided [through which] any uncertainty as to what the [missing evidence] might have proved was turned to [defendant's] advantage.")
In these cases, we see an emerging consensus that a universal bad faith standard does not go far enough to adequately protect the rights of a person charged with a crime. The courts have seen the bad faith requirement as a potentially bottomless pit for a defendant's interest in a fair trial, and stepped back from the brink. With this trend in mind, we turn to the issue here of whether Maryland law should require the defendant to show bad faith by the police before he may receive a missing evidence jury instruction, or whether an alternative approach is warranted.
One way in which courts have avoided Youngblood's harsh result is not available in Maryland. In Patterson, we affirmed that Maryland's constitutional protections do not extend beyond Youngblood, nor apply in cases where the defendant cannot show bad faith by the police. See Patterson, 356 Md. at 694-96, 741 A.2d at 1128. As the Patterson Court performed a Maryland constitutional analysis, Cost cannot find direct assistance in the approaches of states whose constitutions provide the defendant additional due process protections, even though their discussions of the implications of Youngblood are instructive.
Yet our holding in Patterson did not definitively establish the limits of substantive Maryland evidence law, the other theory which may support a missing evidence instruction. In addressing the requirements of our Maryland evidence law, we stated in Patterson that trial courts "need not instruct . . . [on] most evidentiary inferences," and that "a party generally is not entitled to a missing evidence instruction," the very constructions of which imply that this is not an absolute rule. Patterson, 356 Md. at 694, 741 A.2d at 1127 (emphasis added).[8] This case may constitute the exceptional circumstance that the Patterson Court foresaw, one which compels a missing evidence jury instruction relating to an evidentiary inference. The emerging consensus among the states which have considered the issue that to insure a fair trial, the missing evidence jury instruction in a criminal case should not be limited to the Youngblood bad faith standard persuades us that we should take a careful look through the door that Patterson left open.[9]
*196 3. Peeking Though the Patterson Open Door
Patterson presented the "general" or "typical" case, likely to be repeated, in which some piece of crime scene evidence, not of major import, was not retained or analyzed. It makes sense to hold, as Patterson did, that juries should not be instructed by the judge to wander down most pathways of evidentiary inference negative to the state based on evidence that is cumulative or not material and not usually collected by the police. Yet, this case is not typical, and the unusual facts here stand in stark contrast to those in Patterson. In Patterson, the missing jacket, although photographed, was never actually collected as evidence, nor was it likely to ever have been collected as evidence. Id. at 681, 741 A.2d at 1121. The arresting officers in that case testified that the jacket "was not the kind of evidence typically held as evidence by their agency, and that neither officer was aware of the jacket's current whereabouts." Id. at 681-82, 741 A.2d at 1121.
Here, by contrast, the crime scene, allegedly containing blood-stained linens and clothing, and dried blood on the floor, certainly would contain highly relevant evidence with respect to the crime for which Cost is charged, which normally would be collected and analyzed. Indeed, Brown's cell was sealed off from use, with the alleged crime scene left intact, pending IIU's investigation. Moreover, the missing items were actually held as evidence, completely within State custody. In fact, it appears from the record that at least some of these items were eventually submitted for laboratory examination, but were rejected because they were not submitted quickly enough, and because chain of custody was not properly preserved.
The evidence destroyed while in State custody was highly relevant to Cost's case. A factual issue at trial was whether Brown was, indeed, stabbed, and whether the alleged stabbing caused significant bleeding, as Brown insisted. While Cost was able to shed doubt on Brown's claim through Brown's medical records, he was prevented from supporting his case with laboratory analysis of Brown's clothing, towel, sheets, and the red substance on the floor of Brown's cell. Such evidence might well have created reasonable doubt as to Cost's guilt. This missing evidence could not be considered cumulative, or tangential it goes to the heart of the case. We are persuaded that under these circumstances a "missing evidence" instruction, which would permit but not demand that the jury draw an inference that the missing evidence would be unfavorable to the State, should have been given.
To be sure, even absent the instruction, Cost could argue that the State's case was weak without this evidence. But argument by counsel to the jury will naturally be imbued with a greater gravitas when it is supported by a instruction on the same point issued from the bench. As we have previously said, "a statement or *197 instruction by the trial judge carries with it the imprimatur of a judge learned in the law, and therefore usually has more force and effect than if merely presented by counsel." Hardison v. State, 226 Md. 53, 62, 172 A.2d 407, 411 (1961).
We acknowledge that an instruction which informs a jury that it may consider a particular inference runs the risk of "creating the danger that the jury may give the inference undue weight . . . [or of] overemphasizing just one of the many proper inferences that a jury may draw." Davis v. State, 333 Md. 27, 52, 633 A.2d 867, 879 (1993). Nonetheless, the purpose of a jury instruction is "to aid the jury in clearly understanding the case, to provide guidance for the jury's deliberations, and to help the jury arrive at a correct verdict." Chambers v. State, 337 Md. 44, 48, 650 A.2d 727, 729 (1994). If Cost had somehow destroyed the missing evidence here, the court would have likely instructed the jury that they may infer from this action that the evidence would have been favorable to the State. For the judicial system to function fairly, one party in a case cannot be permitted to gain an unfair advantage through the destruction of evidence. The application of the "missing evidence" inference against the State in this case, as promulgated through a jury instruction, will help ensure that the interests of justice are protected.[10] The application of the missing evidence inference against the State in a criminal case does not by itself amount to "substantive proof that the evidence was unfavorable." Bereano v. State Ethics Comm'n, 403 Md. 716, 747, 944 A.2d 538, 556 (2008) (citing DiLeo v. Nugent, 88 Md.App. 59, 71, 592 A.2d 1126, 1132 (1991)). The instruction on missing evidence merely permits an evidentiary inference, and neither establishes a legal presumption nor furnishes substantive proof.
Our holding does not require a trial court to grant a missing evidence instruction, as a matter of course, whenever the defendant alleges non-production of evidence that the State might have introduced. Instead, we recommit the decision to the trial court's discretion, but emphasize that it abuses its discretion when it denies a missing evidence instruction and the "jury instructions, taken as a whole, [do not] sufficiently protect the defendant's rights" and "cover adequately the issues raised by the evidence." Fleming, 373 Md. at 433, 818 A.2d at 1121. In another case, where the destroyed evidence was not so highly relevant, not the type of evidence usually collected by the state, or not already in the state's custody, as in Patterson, a trial court may well be within its discretion to refuse a similar missing evidence instruction.
Because we hold that Cost was entitled to the requested jury instruction, we need not consider whether the failure to disclose Brown's medical history constituted a Brady violation. Cost will have the benefit of Brown's medical history on retrial.
CONCLUSION
We hold that Cost was entitled to a jury instruction on the missing evidence because the State had destroyed highly relevant evidence in its custody that it normally would have retained and submitted to forensic examination. We remand the case to the Court of Special Appeals with instructions to vacate Cost's conviction, *198 and to remand the case to the Circuit Court for Baltimore City for a new trial.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE PETITIONER'S CONVICTION, AND TO REMAND TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR A NEW TRIAL. COSTS TO BE PAID BY THE STATE.
NOTES
[1] At trial, Cost endeavored to explain the staining in the cell by suggesting that it was caused by melted red Jell-O.
[2] The use of the word "formable" appears to be a typographic error. We presume, as did the Court of Special Appeals, that the word was actually "favorable."
[3] The MPJI-CR instruction for "missing witnesses" reads as follows:
You have heard testimony about ____, who was not called as a witness in this case. If a witness could have given important testimony on an issue in this case and if the witness was peculiarly within the power of the [State] [defendant] to produce, but was not called as a witness by the [State] [defendant] and the absence of that witness was not sufficiently accounted for or explained, then you may decide that the testimony of that witness would have been unfavorable to the [State] [defendant].
[4] The State does not rely on the testimony issue in this appeal, focusing instead on the fact that the destruction of evidence was "not undertaken in bad faith and consequently did not amount to a due process violation."
[5] Cost's prior sentence has now lapsed, and he is currently incarcerated on the basis of only the reckless endangerment conviction.
[6] As we stated above, Cost's proposed instruction is modeled off the "missing witness" instruction of the criminal Maryland Pattern Jury Instructions.
[7] The Court of Special Appeals has elaborated on the function and purpose of the instruction:
The destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator, the nature of the inference being dependent upon the intent or motivation of the party. Unexplained and intentional destruction of evidence by a litigant gives rise to an inference that the evidence would have been unfavorable to his cause, but would not in itself amount to substantive proof of a fact essential to his opponent's cause. The maxim, Omnia praesumuntur contra spoliatem, "all things presumed against the spoliator," rests upon the logical proposition that one would ordinarily not destroy evidence favorable to himself.
Miller v. Montgomery County, 64 Md.App. 202, 214, 494 A.2d 761, 768 (1985) (citation omitted).
[8] The Patterson Court, moreover, cited favorably to at least three state courts Alaska, Connecticut, and Delaware which have required missing evidence instructions in certain circumstances or have rejected Youngblood's bad faith standard. See Patterson, 356 Md. at 691-693, 741 A.2d at 1126-1127 (citing Riney v. State, 935 P.2d 828, 839-40 (Alaska Ct.App.1997) (not an abuse of discretion under state evidence law to deny missing evidence instruction); State v. Malave, 250 Conn. 722, 737 A.2d 442, 446-49 (1999) (same); and Cook v. State, 728 A.2d 1173, 1176-77 (Del. 1999) (same)). This reliance further undermines any interpretation of Patterson which would impose a "bad faith" requirement in all situations.
[9] Youngblood later became the poster-child for this viewpoint. The defendant was later proven, by DNA evidence, to be wrongfully convicted. See Norman Bay, Old Blood, Bad Blood, and Young Blood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. U.L.Rev. 241, 243 (2008). As another commentator has described:
[After the Supreme Court decision,] Larry Youngblood remained in prison for many years. Following his parole and rearrest for failing to register as a sexual predator, [in the summer of 2000], Mr. Youngblood's appellate attorneys discovered a swab of semen that had been retrieved from the victim's skin at the time the crime occurred. It had been separated from the clothing, initially, but due to its minute size, had never before been tested, using the then existing inferior technology. When the swab was tested [that] summer, Larry Youngblood was exonerated.
What is extraordinary about Mr. Youngblood's case is that the doctrine requiring a showing of "bad faith" withstood the test of time for more than a decade. Think about the irony. In law school, we have been taught that, absent bad faith, the destruction of critical evidence will not be deemed prejudicial. As a result, there has been no requirement that law enforcement agencies use due diligence to preserve evidence. This doctrine rested for more than a decade on the shoulders of an innocent man.
Peter Neufeld, Symposium: Serenity Now or Insanity Later?: The Impact of Post-Conviction DNA Testing On The Criminal Justice System, 35 New Eng. L.Rev. 639, 646 (2001).
[10] We do not suggest that the instruction requested by Cost, modeled upon the Maryland Criminal Pattern Jury Instruction ("MPJI-CR") on missing witnesses, best encapsulates the doctrine of spoliation in this context. See MPJI-CR 3:29. We recognize that various formulations of the instruction could satisfy the requirements of our holding in this case.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2580484/
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122 F. Supp. 2d 1 (2000)
Allen WEAVER, et al., Plaintiffs,
v.
Officer G.S. HANNA, et al., Defendants.
No. CIV. A. 99-2615 (JR).
United States District Court, District of Columbia.
August 15, 2000.
*2 Samuel M. Shapiro, Rockville, MD, for Plaintiffs.
Robert John Kniaz, Washington Metropolitan Area Transit Authority, Washington, DC, Cheryl Crandall Burke, Akin, Gump, Strauss, Hauer & Feld, L.L.P., Washington, DC, Vincent Anthony Jankoski, Washington, DC, for Defendants.
MEMORANDUM
ROBERTSON, District Judge.
Plaintiffs, father and son, assert claims of false arrest and excessive force against defendants Officer G.S. Hanna and three unknown Washington Metropolitan Area police officers under the Fourth Amendment to the Constitution and 42 U.S.C. § 1983. Plaintiffs also assert common-law claims of false arrest and battery. The defendants, sued in their individual capacities, have moved for summary judgment. For the reasons set forth below, the motion will be granted.
Background
Plaintiff, Allen Weaver, Sr., is Caucasian. His son, a minor, is biracial. On the afternoon of October 5, 1998, they boarded a red line train at the Judiciary Square Metro station in Washington, D.C.[1] Plaintiff (hereinafter "plaintiff" refers to the father) bought a 40-ounce bottle of beer before boarding the train, drank some of it before the train trip, and finished the bottle after leaving the Metro.
A woman on the train became suspicious of the plaintiff primarily because he was different in appearance from his son and because their conversation suggested to her that they did not know one another. She followed plaintiff and his son as they exited the Metro and boarded a bus. She advised the bus driver that plaintiff had kidnaped the child. The driver contacted Metro's operations control center and did not move the bus until the Metro transit police arrived.
Officer Gregory Hanna was advised by police radio of a possible child abduction. *3 According to his version of events, he reached the bus when plaintiff was walking away with his son on his shoulders. After speaking with the bus driver and the woman, and then observing a knife in plaintiff's pocket, he shouted for the plaintiff to stop. Plaintiff turned around briefly and took his son off his shoulders, but then he continued to walk at what appeared to be a faster pace. Plaintiff's version is that he walked down the street until he heard a woman say: "Not him, the white guy." At that point he turned around and saw the policemen with their weapons drawn.
The parties also have different versions of the conduct of the officers. Plaintiff claims that his son was "grabbed" and "thrown to the ground," while defendants allege that they "placed him on his feet."[2] In either case, the child was then placed in a police car.
Plaintiff avers that defendants then "slammed" him to the ground, frisked him, confiscated his knife, pulled him up by the handcuffs and "slammed" him into a car. Defendants state that they ordered plaintiff to the ground, that he complied, that they handcuffed him, and patted him down, and that they then assisted him to his feet.
It is undisputed that plaintiff told the officers that the child was his son and gave them the telephone number of the babysitter; and that, after the officers verified that the plaintiff was the child's father, they apologized and drove him and his son home.
Analysis
1. Section 1983 claims
Law enforcement officers acting within the scope of their employment have qualified immunity for claims asserted under section 1983, DeGraff v. District of Columbia, 120 F.3d 298, 302 (D.C.Cir. 1997); Wardlaw v. Pickett, 1 F.3d 1297, 1301 (D.C.Cir.1993). It is undisputed, and in fact alleged, that the defendant officers were at all times acting within the scope of their employment as WMATA police officers. Complaint at ¶¶ 5-6.
Plaintiff maintains, however, that these officers are not entitled to qualified immunity because they lacked probable cause to arrest him. See Wardlaw v. Pickett, 1 F.3d 1297, 1305 (D.C.Cir.1993) ("[O]fficer retains qualified immunity from suit if he had an objectively reasonable basis for believing that the facts and circumstances surrounding the arrest were sufficient to establish probable cause.") (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)).
Defendants argue that the applicable standard is not "probable cause" but "reasonable suspicion," because they did not arrest the plaintiff but instead conducted a temporary investigative stop under Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). A reasonable suspicion, which requires less proof than probable cause, United States v. White, 648 F.2d 29, 42 (D.C.Cir.1981), is sufficient basis for a Terry stop, see United States v. Christian, 187 F.3d 663, 668 (D.C.Cir. 1999). Officers making a lawful Terry stop, like those making a lawful arrest, are entitled to qualified immunity.
Assuming for the sake of argument that the officers did not have probable cause for an arrest, it is necessary to determine whether their detention of plaintiff was an arrest or a Terry stop. In United States v. Clipper, 973 F.2d 944, 951 (D.C.Cir.1992), relying on United States v. White, 648 F.2d 29, 34 (D.C.Cir.1981), our Court of Appeals used a five-part test for determining whether a specific detention was a Terry stop or an arrest: "the officer's intent in stopping the citizen; the impression conveyed to the citizen as to whether he was in custody or only briefly *4 detained for questioning; the length of the stop; the questions, if any, asked; and the extent of the search, if any, made." Not all of these factors can be evaluated on the basis of the present record, and of course the first two are subjective factors that might naturally give rise to disputed questions of fact. The record does support objective findings, however, that the encounter between the parties lasted approximately sixteen minutes (Pltf.'s Opp'n. Ex. 4 at 37), that Officer Hanna forced plaintiff to the ground to confiscate his knife (Pltf.'s Opp'n. Ex. 1 at 57), and that, once the officers determined that plaintiff was the child's father, the encounter ended promptly (Plft.'s Opp'n. at 4). These findings are consistent with Terry stops and not with arrests. While plaintiff maintains that the officer's use of handcuffs transformed the encounter into an arrest, persuasive authority from other circuits holds that the use of handcuffs is not determinative. See United States v. Crittendon, 883 F.2d 326, 329 (4th Cir.1989) (handcuffs did not turn stop into an arrest so long as restraints were reasonable); United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.1989) (handcuffs and guns used during an investigatory stop did not convert stop into an arrest): cf. United States v. Trullo, 809 F.2d 108, 113 (1st Cir.1987) (guns used during an investigatory stop did not convert stop into an arrest).
I find that plaintiff was not in fact arrested, but that he was instead subjected to a Terry stop to investigate a possible child abduction. If the officers making the stop had an objectively reasonable belief that there was reasonable suspicion to make the stop, Terry, 392 U.S. at 21, 88 S. Ct. 1868, then the stop was lawful and qualified immunity attaches to their actions.
The inquiry set forth in Terry to determine whether a stop was unreasonable "is a dual one whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20, 88 S. Ct. 1868. The Terry stop in this case easily passes the test. First, as to whether it was justified at its inception: the police had received a tip that a kidnaping was in progress. Plaintiff did nothing to dispel suspicion when he encountered the police. He walked away with the child on his shoulders (Pltf.'s Opp'n. at 3), did not put the child down when asked (Pltf.'s Dep. at 51), had a large knife in his pocket (id. at 56, 88 S. Ct. 1868), and, according to the officers, smelled of alcohol (Def.'s Dep. at 86). These factors easily justify the inception of a Terry stop.
Second, as for the scope of the Terry stop, I find that it was "strictly tied to and justified by" the circumstances which rendered its initiation permissible. Terry, 392 U.S. at 19, 88 S. Ct. 1868. Defendants detained the plaintiff for sixteen minutes (Pltf.'s Opp'n. Ex. 4 at 37), only removed a knife from his outer clothing (Pltf.'s Opp'n. Ex. 1 at 57), and ended the investigation after they determined that plaintiff was the father (Pltf.'s Opp'n. at 4).
Because the defendant officers conducted a lawful Terry stop grounded on objectively reasonable suspicion, they are immune from liability for the section 1983 false arrest claim.
Plaintiff's section 1983 claim of excessive force requires further analysis. The "qualification" in an officer's qualified immunity from a claim of excessive force relates to the level of excessiveness of the force. This presents, at least initially, a question for the court, since a rule that requires the submission of the excessiveness question to the jury would vitiate the goal of qualified immunity to "avoid such disruption (and the social cost it entails)," Harris v. District of Columbia, 932 F.2d 10, 13 (D.C.Cir.1991). Thus,
"[A] defendant's motion for summary judgment is to be denied only when, viewing the facts in the record and all reasonable inferences derived therefrom *5 in the light most favorable to the plaintiff, a reasonable jury could conclude that the excessiveness of the force is so apparent that no reasonable officer could have believed in the lawfulness of his actions." Wardlaw v. Pickett, 1 F.3d 1297, 1306 (D.C.Cir.1993)
See also DeGraff v. District of Columbia, 120 F.3d 298, 302 (D.C.Cir.1997); Martin v. Malhoyt, 830 F.2d 237, 253-254 (D.C.Cir.1987).
In this case I find that the officers' use of force was not such that no reasonable officer could have believed in the lawfulness of his actions. The officers' suspicion of a kidnaping in progress, their observation of a knife on plaintiff's person, their perception of alcohol, and the plaintiff's reaction upon encountering the police, all support the use of force. The dispute of fact here whether plaintiff was "slammed" to the ground or placed him on the ground is not for a jury.
Defendants are also entitled to absolute immunity for plaintiff's common-law claims of false arrest and battery. Defendants are police officers who were working within the scope of their employment, Complaint ¶ 5-6. Their actions clearly fit within the scope of a government function, Burkhart v. WMATA, 112 F.3d 1207, 1216 (D.C.Cir.1997). Section 80 of the WMATA Compact provides WMATA and its employees, with immunity from common-law claims arising out of the performance of a government function. See Beebe v. WMATA, 129 F.3d 1283, 1288 (D.C.Cir.1997).
An appropriate order accompanies this memorandum.
ORDER
Upon consideration of Defendant's Motion for Summary
Judgment [# 6], it is this ___ day of ___, 2000, for the reasons
set forth in the accompanying memorandum,
ORDERED, that the motion is granted.
NOTES
[1] Metro is operated by the Washington Metropolitan Area Transit Authority.
[2] In his deposition, plaintiff was asked: "You didn't see him [his son] being dropped by the officer and landing on anything other than his feet, correct?" Pltf.'s Dep. at 52. Plaintiff responded: "Pretty much, yes." Id.
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80 So. 3d 1037 (2012)
MORROW
v.
STATE.
No. 4D10-2614.
District Court of Appeal of Florida, Fourth District.
February 8, 2012.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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124 P.3d 634 (2005)
STATE v. HARMON.
No. 20050577.
Supreme Court of Utah.
September 15, 2005.
Petition for certiorari denied.
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124 P.3d 634 (2005)
TRAVELLER v. QUESTAR.
No. 20050620.
Supreme Court of Utah.
September 21, 2005.
Petition for certiorari granted.
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81 N.W.2d 894 (1957)
Louis P. MAGENTON, Plaintiff and Appellant,
v.
The STATE of South Dakota and G. Norton Jameson, Warden of the South Dakota State Penitentiary, Defendants and Respondents.
No. 9594-a.
Supreme Court of South Dakota.
March 18, 1957.
*895 E. E. Sullivan, Rapid City, for plaintiff and appellant.
Phil Saunders, Atty. Gen., Benj. D. Mintener, Asst. Atty. Gen., for defendants and respondents.
RENTTO, Judge.
This is a habeas corpus proceeding. The appellant was convicted of manslaughter in the first degree and is now serving his sentence of ten years in the state penitentiary. He was received there on December 22, 1952. After a hearing on the writ the circuit court ordered it quashed and remanded him to the custody of the warden of the penitentiary. He appeals from that judgment.
The application for the writ claims that at the time of his trial there existed a doubt as to his sanity. With this as a premise he proceeds to urge that because his mental status was not inquired into as provided in SDC 34.2001-34.2004, the court was without jurisdiction to enter the judgment by virtue of which he is imprisoned.
*896 Whether the matter of which applicant complains can properly be presented by habeas corpus is not questioned. Consequently we are not called on to decide that question. The matter is presented on its merits and our decision is on that basis. However, we think it proper to observe that it is questionable whether habeas corpus is a proper remedy. State ex rel. Novak v. Utecht, 203 Minn. 448, 281 N.W. 775; Sedlacek v. Greenholtz, 152 Neb. 386, 41 N.W.2d 154; People ex rel. Wiseman v. Nierstheimer, 401 Ill. 260, 81 N.E.2d 900; McMahan v. Hunter, 10 Cir., 150 F.2d 498; Massey v. Moore, 5 Cir., 205 F.2d 665; Ex parte Potts, 89 Okla. Crim. 89, 205 P.2d 522; Massey v. Moore, 348 U.S. 105, 75 S. Ct. 145, 99 L. Ed. 135. See also, Hawie v. State, 121 Miss. 197, 83 So. 158, 10 A.L.R. 213; Mitchell v. State, 179 Miss. 814, 176 So. 743, 121 A.L.R. 267, and 25 Am.Jur., Habeas Corpus, Sec. 84, 1956 Supp., p. 32.
The applicant, now about 62 years of age, was accused of murdering John Lilly in Custer County on November 5, 1952. Counsel was appointed to represent him. Before arraignment in circuit court, pursuant to SDC Supp. 36.0109, his counsel requested that experts be appointed to examine the accused to determine his mental condition. This request did not indicate whether he desired the examination for the purpose of claiming that accused was insane at the time of the commission of the offense, or for the purpose of urging that his present mental condition was such that he could not be tried. Three doctors were appointedtwo neuropsychiatrists and the other a clinical psychologist. They were directed to determine "whether or not Louis P. Magenton is sane or insane within the meaning of the criminal statutes of the state of South Dakota; * * *". The order appointing them in defining insanity used the right and wrong rule of SDC 13.0201(4).
After examining the accused they filed these written conclusions:
"(1) The examinee, Louis P. Magenton, is found to be legally sane in that his mental activity is not so perverted as to render him incapable of distinguishing right from wrong.
"(2) Further, it is the finding of the board that Louis P. Magenton is afflicted with a condition of organic brain damage superimposed on an immature personality structure resulting in a person whose emotional controls are adequate in well defined or well structured situations but who cannot adapt to meet intense, fluctuating emotional situations as readily as the average person."
At the trial of the criminal case, which lasted three days, the accused was a witness and the psychologist testified in his behalf. One of the defenses relied on by him and submitted to the jury was that he was insane at the time of the commission of the offense. The jury rejected this contention and found him guilty. Before sentence the accused and his counsel stated in open court that he had no legal cause to show why the judgment of the court should not be pronounced. At all stages of the trial the accused was represented by counsel. Not until the institution of this proceeding on October 25, 1955, was it suggested to any court that there was a doubt as to the sanity of the accused at the time of trial.
SDC 34.2002 provides:
"When an indictment or information is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arises as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the court from the body of the county in cases where sufficient jurors duly summoned have not appeared.
*897 "The trial of the indictment or information or the pronouncing of judgment, as the case may be, must be suspended until the question of insanity is determined by the verdict of the jury."
Under this code section it is not necessary that the accused be actually insane to be entitled to a hearing on the issue of his present sanity. He must be accorded that protection if the facts are sufficient to raise only a doubt as to his sanity. The doubt referred to is one that must arise in the mind of the trial judge, rather than in the mind of some other person. People v. Perry, 14 Cal. 2d 387, 94 P.2d 559, 124 A.L.R. 1123. It must be a real doubt arising from facts and circumstances of a substantial character. Bingham v. State, 82 Okla. Crim. 5, 165 P.2d 646.
In applying this statute the test of the accused's sanity is not the right and wrong rule above referred to. That concerns sanity in the sense of criminal responsibility for an act. We are here concerned with sanity for the purpose of present triability. Sanity in this regard is determined by appraising the present ability of the accused to so understand the nature and purpose of the proceedings taken against him as to be able to conduct his own defense in a rational manner. United States v. Chisholm, C.C., 149 F. 284; People v. Gomez, 41 Cal. 2d 150, 258 P.2d 825; 14 Am.Jur., Criminal Law, Sec. 45; 44 C.J.S., Insane Persons, § 127; In re Smith, 25 N.M. 48, 176 P. 819, 3 A.L.R. 94. The statute does not say how this matter is to be brought to the attention of the court, but that omission is unimportant. It may be done on formal application or where no application is made, it may be done by the court on its own motion. And if the trial judge has a real doubt as to the sanity of the accused it is his duty to order the inquiry, even though not requested. Brewer v. Hudspeth, 166 Kan. 263, 200 P.2d 312. However, because the court knows, or has reason to believe, that the accused is claiming that he was insane at the time the offense was committed does not of itself make necessary an inquiry into his present sanity. Weiland v. State, 58 Okla. Crim. 108, 50 P.2d 741. Nor is it logical to urge that instructing on insanity as a defense necessarily indicates a doubt in the mind of the trial judge concerning the present sanity of the accused.
Whenever counsel for the accused or for the state become possessed of knowledge of accused's lack of mental capacity to comprehend his situation or to properly make his defense, it becomes their duty to promptly bring this matter to the attention of the court. State v. Smith, 173 Kan. 813, 252 P.2d 922. The fact that counsel for the accused does not request a trial of this issue is significant. It is a circumstance which a trial judge is entitled to consider in deciding whether he should order the inquiry. It is also of persuasive significance when the trial court's failure to order an inquiry on its own motion is under review. Bingham v. State, supra.
Whether a trial court on its own initiative should order such inquiry is a matter addressed to its sound judicial discretion, and its decision will not be disturbed in the absence of an abuse of that discretion. Bingham v. State, supra; State v. Collins, 162 Kan. 34, 174 P.2d 126; State v. Smith, supra; 23 C.J.S., Criminal Law, § 940(b); 142 A.L.R. 966. The accused has the burden in this regard, 3 Am.Jur., Appeal and Error, Sec. 960, 1956 Supp., p. 86; 5 C.J.S., Appeal and Error, § 1584, p. 476, and a strong showing is required to establish an abuse thereof. People v. Gomez, supra. Ordinarily sanity is presumed and where it is urged that the trial court had, or should have had, a doubt as to the present sanity of the accused, the court's failure to order the inquiry on its own motion is aided by that presumption.
Our statutes, unlike those of many jurisdictions, make provision for an inquiry into the present sanity of the accused at only two points in the trial proceedingswhen *898 the information is called for trial or when the defendant is brought up for judgment. Bingham v. State, supra. Since the reporter's transcript of the trial proceedings is not a part of the record, it is difficult to know what facts and circumstances bearing on the present sanity of the accused were before the trial court when the information was called for trial. However, we will assume that when that occurred the trial court had examined the conclusions of the expert witnesses above set out and the psychologist's report.
We have carefully studied these documents. The report is concerned with the results of intelligence and personality tests taken by the accused. It was relied on by the experts in arriving at their conclusions. It is clear from these that he has suffered organic brain damage and that his personality is restricted, but there is nothing to indicate that because of these he was unable to understand his situation or to make a proper defense. People v. Aparicio, 38 Cal. 2d 565, 241 P.2d 221; Johnson v. State, 73 Okla. Crim. 370, 121 P.2d 625. Surely, if the court or counsel for the accused had entertained even a slight doubt concerning the present sanity of the accused, these experts would have been asked for their opinion thereon. Also, it must be borne in mind that the court had the benefit of observing the accused. Under these circumstances we are satisfied that the court did not abuse its discretion in not holding an inquiry into the present sanity of the accused when the information was called for trial. Acuff v. State, Okl.Cr., 283 P.2d 856.
In addition to the facts and circumstances above set out, when the accused was brought up for sentence, the court had before it the testimony of the accused and had observed him as a witness. Also it had heard the testimony of the psychologist. These are not in the record. In the absence of a showing to the contrary it must be presumed that the discretionary powers of the trial court have been wisely exercised. State v. Rash, 27 S.D. 185, 130 N.W. 91; Sutton v. State, 163 Neb. 524, 80 N.W.2d 475. There is in this record a lengthy statement made by the accused to the officers two or three days after his arrest. It details matters concerning himself and his recent relations with the deceased, including the circumstances surrounding the homicide. There is nothing in this exhibit that gives rise to a doubt concerning his sanity at the time of the trial. Rather, it indicates a mental ability fully aware of his predicament and able to make a strong defense.
At the hearing on the writ the applicant gave testimony concerned largely with an injury suffered by him as a serviceman in World War I. A psychiatrist who examined him about ten months before the hearing on the writ also testified. The materiality of this showing is doubtful. But, be that as it may, in our view it fails to indicate any doubt as to his sanity at the time the criminal case was tried. On this record we cannot say, as a matter of law, that the trial court had, or should have had, any real doubt concerning the applicant's sanity at the time he was tried.
The humane purposes which the Legislature intended to serve by adopting SDC 34.2002 are well known and we have no desire to depart from them. However, the Legislature has also declared that these humane purposes are involved only if there is a doubt as to the sanity of the accused. If applicant is now insane, SDC Supp. 13.4724 provides for his release from punishment and authorizes his removal to an appropriate institution for hospitalization and treatment.
Affirmed.
All the Judges concur.
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20 A.3d 1211 (2011)
COM.
v.
ORTIZ.
No. 604 EAL (2010).
Supreme Court of Pennsylvania.
April 25, 2011.
Disposition of Petition for Allowance of Appeal Denied.
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10 A.3d 739 (2011)
2011 ME 9
STATE of Maine
v.
Jayson W. CARON.
Docket: Pen-09-535.
Supreme Judicial Court of Maine.
Submitted on Briefs: December 1, 2010.
Decided: January 11, 2011.
*740 Mandi Odier-Fink, Esq., Bangor, ME, for Jayson Caron.
R. Christopher Almy, Dist. Atty., Susan J. Pope, Asst. Dist. Atty., Bangor, ME, for the State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
JABAR, J.
[¶ 1] Jayson W. Caron appeals from a judgment of conviction of aggravated assault (Class B), 17-A M.R.S. § 208(1)(A) (2010); aggravated operating under the influence (OUI) (Class C), 29-A M.R.S. § 2411(1-A)(A), (1-A)(D)(1), (5)(D-1) (2007); and aggravated OUI (Class C), 29-A M.R.S. § 2411(1-A)(A), (1-A)(B)(3), (5)(C) (2007),[1] entered in the Superior Court (Penobscot County, Anderson, J.) following a jury trial. Caron raises four points of error in this appeal, challenging both his conviction and sentence. Specifically, he argues that the court erred by: (1) failing to exclude the testimony of the State's expert witness; (2) admitting certain redacted medical records in evidence; (3) denying his motion for a mistrial; and (4) imposing an illegal sentence. We disagree with Caron's contentions and affirm the judgment.
*741 I. BACKGROUND
[¶ 2] Viewing the evidence presented at trial in the light most favorable to the State, the jury rationally could have found the following facts beyond a reasonable doubt. See State v. Manosh, 2010 ME 31, ¶ 2, 991 A.2d 819, 820.
[¶ 3] On the afternoon of September 1, 2007, Caron and the victim were attending the Springfield Fair. Caron, who had been consuming alcohol earlier in the day, planned to participate in a truck pull being held at the fair. While waiting for the event to begin, Caron continued to drink alcohol. Around 6:30 p.m., after registering for the truck pull, Caron struck another vehicle with his truck. Event organizers became concerned about his level of sobriety and refused to allow him to participate. Thereafter, the victim drove Caron to a nearby convenience store.
[¶ 4] Upon arriving at the store, Caron took the keys from the victim and insisted on driving the truck. The victim was ultimately unable to convince him to reconsider, and moved to the passenger's seat to let him drive. Shortly after leaving the store, Caron lost control of the truck and crashed, injuring himself and the victim, leaving the victim paralyzed from the waist down. A blood-alcohol test administered at the hospital less than three hours after the accident registered Caron's blood-alcohol level at 0.16%. Caron was subsequently indicted for aggravated assault (Class B), 17-A M.R.S. § 208(1)(A); aggravated OUI (Class C), 29-A M.R.S. § 2411(1-A)(A), (1-A)(D)(1), (5)(D-1); and aggravated OUI (Class C), 29-A M.R.S. § 2411(1-A)(A), (1-A)(B)(3), (5)(C).
[¶ 5] The primary issue at Caron's trial was the identity of the vehicle's driver at the time of the accident. To this end, Caron and the State each designated an expert witness. Caron filed a motion in limine seeking to exclude the testimony of the State's expert, arguing that the expert's opinions did not satisfy the qualification and reliability requirements for admissibility. After conducting a voir dire examination, outside the presence of the jury, the court denied Caron's motion. The court found that the State's expert was sufficiently qualified to testify and that the jury should decide the weight to be given to the expert's conclusions. In the court's words:
[T]he gist of the [State's expert's] testimony is that the left-sided injuries indicate the driver, the right-sided injuries indicate the passenger, and [the expert] indicates that this is backed up in the literature . . . and his own personal experience, and he has testified that the fact that there is a rollover does not alter that opinion, that there could be other reasons for other injuries, but that his premise is still valid.
[¶ 6] Both the State's expert and Caron's expert testified at trial, each offering a conflicting opinion on the identity of the driver. The State's expert further testified on the issue of Caron's blood-alcohol level, extrapolating from the result of the blood-alcohol test taken at the hospital back to the time of the accident. Over Caron's objection, the court also admitted certain redacted medical records of Caron and the victim, pursuant to 16 M.R.S. § 357 (2008).[2]
[¶ 7] Following deliberation, the jury returned guilty verdicts on all three counts. Before discharging the jury, however, it came to the court's attention that a scheduling document referencing Caron's three prior OUI convictions had been posted *742 near the doorway to the courtroom.[3] On individual voir dire conducted by the court, each juror denied seeing the document. The court denied Caron's motion for a mistrial, and entered judgment on the jury verdict.
[¶ 8] On the aggravated assault count, the court sentenced Caron to eight years in prison, with all but six years suspended, and three years of probation. Caron was sentenced to three years for each of the remaining two counts, to be served concurrently. The court also imposed $5175 in fines and suspended Caron's driver's license for six years. This appeal followed.
II. DISCUSSION
A. Expert Testimony
[¶ 9] Caron advances two arguments in support of his contention that the court erred in refusing to exclude the State's expert's testimony. He argues that the State's expert was neither competent nor qualified to testify. We disagree with both contentions.
[¶ 10] The focus of Caron's competency argument is on an alleged learning disability afflicting the State's expert. Caron highlights a particular exchange during voir dire in which the State's expert, attempting to describe the nature of his condition, testified that, "I do not know right from left and I do notam not able to add or subtract even simple numbers." Noting that the State's expert was ultimately asked to calculate Caron's blood-alcohol level and to explain the significance of left-sided and right-sided injuries, Caron contends that the State's expert's learning disability rendered him incompetent to testify.
[¶ 11] As a general rule, "[e]very person is competent to be a witness." M.R. Evid. 601(a). Pursuant to M.R. Evid. 601(b)(3), however, a person will be disqualified from testifying if the court finds that "the proposed witness lacked any reasonable ability to perceive the matter." The phrase "any reasonable ability" was included in Rule 601(b) "`to make it clear that even a limited ability to perceive. . . may be sufficient to avoid disqualification.'" State v. Gorman, 2004 ME 90, ¶ 22, 854 A.2d 1164, 1170 (quoting Field & Murray, Maine Evidence § 601.2 at 244 (2000 ed.)). A trial court's ruling on witness competency is reviewed for clear error. State v. Cochran, 2004 ME 138, ¶ 6, 863 A.2d 263, 265.
[¶ 12] We find no clear error in the court's competency determination. Notwithstanding the State's expert's self-reported learning disability, the court was able to observe the apparent fluency with which he explained his opinions, including his ability to distinguish right-sided and left-sided injury patterns and perform the calculations necessary to extrapolate from the results of Caron's blood-alcohol test. Accepting Caron's argument would require reading the State's expert's brief description of his learning disability in a vacuum, divorced from all context. This we will not do.
[¶ 13] Caron's second argument targets the qualifications of the State's expert. Caron acknowledges that, as the State's Deputy Chief Medical Examiner, the State's expert possessed significant scientific credentials. He contends, however, that the State's expert's particular expertise did not qualify him to opine on the identity of the driver of the vehicle. We review the trial court's ruling on this issue for an abuse of discretion. See State v. *743 Cookson, 2003 ME 136, ¶ 20 n. 2, 837 A.2d 101, 108 ("When the issue is not what the expert's qualifications are, but whether those qualifications are adequate for the opinion of the expert, the standard of review is abuse of discretion.").
[¶ 14] According to his voir dire testimony, the State's expert has investigated approximately 600 motor vehicle fatalities during his nearly thirty-year tenure as a medical examiner. Based on his training, experience, and review of medical literature, he testified that a person's injury patterns could be used to determine that person's original position in the vehicle.[4] Notwithstanding Caron's unsupported assertion to the contrary, the State's expert explained that specialized knowledge in the fields of accident reconstruction and "occupant kinematics" was not necessary to render an opinion on this issue. Given this record, we cannot say that the court abused its discretion in determining that the State's expert was qualified to testify at trial.
B. Remaining Arguments
[¶ 15] Caron's other contentions are without merit, and we address them only briefly. His numerous arguments with regard to the court's admission of the medical records are unpersuasive: Medical records may, and often must, be admitted in redacted form, see 16 M.R.S. § 357; State v. Francis, 610 A.2d 743, 744 & n. 4 (Me. 1992); neither Maine Rule of Evidence 403 nor the Confrontation Clause of the Sixth Amendment to the United States Constitution required exclusion of the records, see State v. Bennett, 2006 ME 103, ¶ 9, 903 A.2d 853, 855-56 (reviewing the admission of evidence over a Rule 403 objection for an abuse of discretion); Francis, 610 A.2d at 745 (concluding that the admission of medical records in evidence against the defendant did not violate his right to confront witnesses); Caron did not object to the noninclusion of a diagram depicting Caron's injuries, see Anderson v. O'Rourke, 2008 ME 42, ¶ 13, 942 A.2d 680, 683 ("To preserve an issue for appeal, a party must not only object, but must also state the specific grounds of its objection. . . ." (quotation marks omitted)); and any inadvertent references to Caron's level of intoxication, which had gone unnoticed during the redaction process, were not prejudicial, particularly given the considerable amount of admissible evidence presented on this issue, see In re Elijah R., 620 A.2d 282, 285 (Me.1993) (finding the improper admission of medical records to be "harmless error because under the circumstances it is highly probable that admission of the evidence did not affect the judgment").
[¶ 16] The court also properly denied Caron's motion for a mistrial. See State v. Bridges, 2004 ME 102, ¶ 10, 854 A.2d 855, 858 ("[W]e review a denial of a motion for a mistrial for an abuse of discretion, overruling the denial only in the event of prosecutorial bad faith or in exceptionally prejudicial circumstances." (quotation marks omitted)). By conducting individual voir dire to confirm that no juror noticed the scheduling document, the court adequately ensured that the jury had not been improperly influenced by the document's presence near the courtroom.
[¶ 17] Finally, Caron's sentence was not illegal or imposed in an illegal manner. See State v. Schmidt, 2010 ME 8, *744 ¶ 5, 988 A.2d 975, 977 ("[O]n direct appeal, we review only the legality, not the propriety, of a sentence."). In reviewing the legality of a sentence, we have recognized a difference between improperly "increasing a defendant's sentence because the defendant chooses to exercise the right to trial," and properly "considering a defendant's conduct at trial and information learned at trial, along with other factors, in determining the genuineness of a defendant's claim of personal reform and contrition." State v. Grindle, 2008 ME 38, ¶ 19, 942 A.2d 673, 678 (quotation marks omitted). Contrary to Caron's contention, the court here explicitly recognized this distinction and did not punish him for exercising his constitutional right to a trial, but rather explained its reasons for considering his apparent refusal to accept responsibility for his criminal actions.
The entry is:
Judgment affirmed.
NOTES
[1] Title 29-A M.R.S. § 2411 has since been amended, though those amendments are not relevant in the present case. P.L.2009, ch. 447, §§ 37-42 (effective Sept. 12, 2009); P.L. 2007, ch. 531, § 2 (effective Sept. 1, 2008).
[2] Title 16 M.R.S. § 357 has since been amended, though those amendments are not relevant in the present case. P.L.2009, ch. 447, § 17 (effective Sept. 12, 2009).
[3] Because the parties stipulated that Caron had three prior OUI convictions, the court agreed to exclude this information from the jury.
[4] Although the State's expert conceded to having never dealt with a case involving these exact same circumstances, he explained that on at least six occasions he has been called upon to determine the identity of a driver based on the injury patterns of the vehicle's occupants.
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84 So. 3d 1101 (2012)
Nancy Loftus QUINONES, Appellant,
v.
John M. QUINONES, Appellee.
Nos. 3D09-3220, 3D10-432.
District Court of Appeal of Florida, Third District.
March 21, 2012.
Rehearing Denied May 1, 2012.
*1102 Nancy A. Hass, Hallandale Beach, for appellant.
Perez-Abreu & Martin-LaVielle, Andy W. Acosta and Javier Perez-Abreu, Coral Gables, for appellee.
Before WELLS, C.J., and SHEPHERD, and EMAS, JJ.
WELLS, Chief Judge.
In these consolidated appeals, Nancy Loftus Quinones appeals from a final judgment of dissolution of marriage, arguing *1103 that the trial court erred in its alimony and equitable distribution determinations (Case 3D09-3220), and that it erred in its fee awards (Case 3D10-432). We agree that the court below erred in determining the amount of alimony to be paid and reverse that award.[1] Based on this determination, we also conclude that the fee award must be reconsidered. However, we find no error in the equitable distribution and affirm that part of the award.
The parties were married in April 1988 and are the parents of two children, a son, who had achieved majority by the time of the divorce, and a teenaged daughter, who at the time of the final judgment had not yet attained majority. The former wife, a high school graduate, was fifty-three years old when the divorce decree was entered. While employed as a flight attendant when the parties were married, the former wife had been unemployed during the parties' eighteen-year marriage.[2] The former husband was fifty-six years old at the time of the divorce and was employed as a major network news correspondent earning over a million dollars a year.
In August 2009, a final judgment dissolving the parties' marriage was entered. The following January, a fee and cost award was entered. The former wife appeals from the equitable distribution, alimony, and fee awards. We find no error in the equitable distribution devised by the court below. We do, however, agree that the trial court erred in considering the former husband's voluntary support payments for the parties' adult son in devising its alimony award and in its order awarding the former wife only a portion of her fees and costs.
The Alimony Award
The former wife argues that she was shortchanged by the trial court's after tax award of $14,135 a month in permanent periodic alimony. We agree. The testimony was, and the final judgment acknowledges, that at the time of the divorce, the former husband was netting a little over $58,000 a month in income from his employment as a news correspondent. The former wife, on the other hand, was unemployed and had been so for over eighteen years. Yet, after recognizing that "[t]he parties [had] lived a fairly luxurious lifestyle during the marriage," sending their children to private schools, traveling extensively, staying in luxury hotels and dining at expensive restaurants, the court below went on to cut down the expenses listed on the former wife's financial affidavit to award her $14,135 a month, leaving the former husband with $44,000 to fund his stated $13,000 a month personal expenses. This was due to two things. First, it was due to the trial court's express consideration of the former husband's agreement to pay the expenses for the parties' adult son:
In weighing the needs of the Wife and the ability of the Husband to pay, the court has considered the fact that the Husband has agreed to assume full responsibility for the private college tuition of [the parties' adult son] (Approximately $52,000.00 plus expenses for the *1104 next four years.) The Husband is also paying for [the adult son's] car and car insurance.
Second, it was due to the trial court's failure to "provide for the needs and necessities of life as they were established during the marriage." See § 61.08(8), Fla. Stat. (2010).
1. Consideration of Voluntary Payments
As observed in McLean v. McLean, 652 So. 2d 1178, 1181 (Fla. 2d DCA 1995), absent a contractual agreement between the parties, courts are not authorized to consider "voluntary payments" to adult children in calculating amounts available to pay support in dissolution proceedings:
[T]he trial court considered evidence from the husband's accountant on the extensive cost of sending the . . . children to college and graduate school. . . . Although [the father] may well feel a moral obligation to pay these expenses, he is not legally required to pay them. See Grapin v. Grapin, 450 So. 2d 853 (Fla.1984). Given the parties' strong commitment to education, they may wish to stipulate concerning these future expenses and the effect they will have on this divorce proceeding, see Madson v. Madson, 636 So. 2d 759 (Fla. 2d DCA 1994), but neither this court nor the trial court is authorized to add this factor into the divorce equation in the absence of some contractual agreement between the parties. See, e.g., Kilbride v. Kilbride, 172 Mich.App. 421, 432 N.W.2d 324 (1988), receded from on other grounds sub nom. Heike v. Heike, 198 Mich.App. 289, 497 N.W.2d 220, 221 (1993) (in setting wife's amount of alimony, trial court did not err in failing to consider husband's voluntary assumption of obligation to pay for adult child's college expenses where parties did not independently agree to share such expenses). Cf. Swigers v. Swigers, 176 Ill.App.3d 795, 126 Ill. Dec. 231, 531 N.E.2d 858 (1988) (where statute authorized trial court to provide for educational expenses of child who has reached majority, it was not error for court to consider husband's voluntary contributions to child's education in determining amount of wife's maintenance award). See generally Edward L. Raymond, Jr., Annotation, Divorce: Voluntary Contributions to Child's Education Expenses as Factor Justifying Modification of Spousal Support Award, 63 A.L.R. 4th 436 (1988).
(Emphasis added) (footnote omitted); see also Grapin v. Grapin, 450 So. 2d 853, 854 (Fla.1984) (agreeing "that a trial court may not order post-majority support simply because the child is in college and the divorced parent can afford to pay"); Rey v. Rey, 598 So. 2d 141, 145 (Fla. 5th DCA 1992) ("There is no legal obligation to support the non-dependent adult children of the parties.").
There is no contractual agreement in this case and it is apparent from the face of the final judgment that in determining the husband's alimony obligation, the trial court considered that the former husband had assumed full responsibility for the son's private college tuition, his car and car insurance. In addition to expressly acknowledging the former husband's agreement to make these payments, as well as the annual cost of these payments, over $52,000 a year, the court below specifically listed this adult child's expenses as part of the former husband's monthly expenses in the final judgment thereby reducing the amount available to pay alimony to the former wife. This was improper and requires reversal of the alimony award.
*1105 2. Failure to Consider Standard of Living During the Marriage
In Canakaris v. Canakaris, 382 So. 2d 1197, 1201-02 (Fla.1980), the Florida Supreme Court confirmed that in determining need for the purpose of awarding permanent periodic alimony, the standard of living enjoyed by the parties during the marriage must be taken into consideration:
Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds. The criteria to be used in establishing this need include the parties' earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties' estates.
(Emphasis added). Consideration of standard of living is to ensure that one spouse is not "shortchanged." Id. at 1204.
The obligation to consider standard of living when making an alimony award was codified in section 61.08(2)(a), Florida Statutes (2009) (requiring the court below to consider "[t]he standard of living established during the marriage" when making an alimony award).[3] While acknowledging in the final judgment that the parties "lived a fairly luxurious lifestyle during the marriage" with "residences in Miami and Utah," that the parties were able to send their children to expensive private schools, and that they traveled extensively staying at "luxury hotels" and dining "at expensive restaurants," the court below substantially reduced the former wife's living expenses so as to leave her substantially shortchanged.
Specifically, the former wife maintained she needed $28,000 a month to support the lifestyle she enjoyed during the marriage. On the former husband's conceded $58,000 a month net income, payment of this amount would leave him with over $30,000 a month for his own support. While the court below was not obligated to accept the former wife's representation of her needs, it was not free to disregard the parties' standard of living to reduce her expenses to approximate what the trial court believeduntethered to the parties' living standardwould be reasonable. In this case, the former wife's financial affidavit showed that she was then paying $4,000 a month for a rented condominium. At trial, the former wife testified that she intended to purchase a home, after the parties' Utah home sold, and anticipated a monthly mortgage, taxes and insurance payment of around $6,700. Based on the parties' standard of living, this was not unreasonable, yet the court below considered decreasing the amount the former wife was then paying for rent in calculating the support award. Similarly, the court below decreased a number of other items detailed on the former wife's financial affidavit for things such as vacations, grooming, entertainment, household expenses, and meals at home. These cuts eliminated the former wife's stated ability to engage in activities with her children and their friends as she had in the past. In light of the uncontradicted evidence that the former husband had the ability to pay the amounts requested to maintain the former wife's standard of living, those *1106 amounts that the trial court concluded to be valid reflections of the former wife's pre-dissolution expenses should not have been adjusted.
In sum, the court below determined the former wife's need without consideration of the standard of living enjoyed by both parties during the marriage. The amount of permanent alimony awarded is, therefore, reversed. On remand, the court below shall consider the amount of alimony to be awarded without consideration of payments made to support the parties' adult son and upon consideration of the standard of living enjoyed by the parties during the marriage.
The Fee Awards
Section 61.16(1) of the Florida Statutes requires consideration of the financial resources of both parties in determining whether and how much to order one party to pay to the other for fees and costs incurred in a Chapter 61 proceeding. § 61.16(1), Fla. Stat. (2010) ("The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter. . . .").
The final order on fees and costs entered below, although twice expressly finding that the former husband has the ability to pay the former wife's attorneys' fees and costs, substantially reduced those awards concluding "that the Former Wife took unreasonable positions in the case, particularly as to the amount of alimony she thought she was entitled to and her intransigence as to selling the home in Utah." In light of our determination herein that the court below erred in its alimony award, and because the record does not demonstrate the type of meritless or vexatious litigation that would affect a fee award, we reverse the fee and costs awards in their entirety for reconsideration in light of this opinion.[4]See Ramos v. Lopez, 997 So. 2d 1119, 1120 (Fla. 3d DCA 2008) (stating that where a "trial court specifically finds [that a spouse] had engaged in vexatious, excessive, or unnecessary litigation," it may consider such behavior in awarding attorneys' fees).
Conclusion
That portion of the final judgment setting the amount of alimony to be paid by *1107 the former husband is reversed as is the final order on attorneys' fees and costs. The remainder of the final judgment is affirmed.
Reversed in part, affirmed in part.
NOTES
[1] The trial court additionally imputed income to the former wife upon the younger child finishing high school, in effect lowering the $14,135 net alimony award by an additional $2200 monthly. The analysis outlined herein makes it unnecessary for us to address this point other than to observe that however the trial court fashions its alimony award on remand, because the former husband has the ability to pay, the alimony awarded should allow the former wife to live the lifestyle established prior to the dissolution of marriage.
[2] The former wife at one point had obtained a real estate license and sold two houses using referrals from the husband.
[3] Currently, in addition to section 61.08(2)(a), section 61.08(8), Florida Statutes (2011) provides, "[p]ermanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties[.]"
[4] Although the final fees award did not mention the former husband's voluntary payments for the benefit of the parties' adult son, the final judgment did evidence that consideration:
After the court's equitable distribution scheme and alimony awards, and in consideration of the Husband's voluntary payment of the older child's private college tuition and private schooling for the minor child, it appears the parties are on fairly equal financial footing and that each party should be responsible for his or her own attorney's fees and costs. It also appears that the difficulty the Wife had in preparing an accurate Financial Affidavit and her intransigence in failing to agree to sell the Utah property have not only caused the unnecessary expenditure of attorney's fees and costs but has caused the Husband to pay carrying costs for the Utah home for at least 20 extra months. It is highly unlikely the court would be inclined to grant the Wife's request for attorney's fees and costs. Nonetheless, the court reserves jurisdiction to conduct a hearing to determine whether the Wife is entitled to fees based upon need and ability to pay as well as the other Rosen or Diaz/Smallwood factors. The Wife is forewarned that if she requests a hearing and if the court finds her request was unreasonable, the court will impose attorney's fees and costs against her for wasting the court's and the Husband's time for such a hearing.
(Emphasis added). As stated above, voluntary payments on behalf of an adult child should not be considered in a dissolution proceeding. See McLean, 652 So.2d at 1181.
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343 Mich. 671 (1955)
73 N.W.2d 521
PEOPLE
v.
BABCOCK.
Docket No. 88, Calendar No. 46,418.
Supreme Court of Michigan.
Decided December 1, 1955.
Rehearing denied March 1, 1956.
Thomas M. Kavanagh, Attorney General, Edmund E. Shepherd, Solicitor General, Gerald K. O'Brien, Prosecuting Attorney, Samuel Brezner and Angelo A. Pentolino, Assistant Prosecuting Attorneys, for plaintiff.
Leithauser, Leithauser & Tobias, for defendant.
SHARPE, J.
Defendant, Charles W. Babcock, was convicted of unlawfully using a title tending to convey the impression that he was an architect in violation of CL 1948, § 338.551 (Stat Ann 1953 Cum Supp § 18.84[1]), by advertising in the Detroit *674 News on January 1, 1954, as "C.W. Babcock, Architectural Engineer and Builder." The record shows that defendant is registered with the State board of registration for architects, professional engineers and land surveyors as a registered professional engineer, and that he is not so registered as an architect.
Defendant's registration certificate as a professional engineer reads as follows:
"State of Michigan, Board of Registration for Architects, Professional Engineers and Land Surveyors.
"Be it known that Charles W. Babcock, having submitted acceptable evidence of his training and other qualifications, has been registered and is hereby authorized to practice professional Engineering and use the title `Registered Professional Engineer.' The particular fields of engineering practice and experience embraced by the evidence mentioned heretofore, on which the board has based this registration, includes construction.
"In witness of these presents, the board grants this certificate, which shall be effective for 3 years, from February 12, 1946, and for additional periods of 3 years each, when so certified by the board." (Emphasis added.)
Upon leave being granted, defendant appeals and urges that he is not prohibited by the act in question from advertising himself as an architectural engineer, and that the act is unconstitutional for the following reasons:
"It is so vague and indefinite that to convict a defendant under this act would be a denial of due process of law of the 14th Amendment to the Constitution of the United States and/or the due process of law clause of article 2, § 16 of the Constitution of the State of Michigan (1908).
"That said act attempts to delegate legislative authority to an administrative agency without providing *675 any yardstick for the exercise of its authority contrary to the due process clause of the 14th Amendment to the Constitution of the United States and/or the due process of law clause of article 2, § 16 of the Constitution of the State of Michigan (1908)."
Defendant also urges that the act in question is unconstitutional for the further reason that the act is a denial of equal protection of the law as guaranteed under the 14th Amendment of the Constitution of the United States and article 5, § 30, of the Constitution of the State of Michigan (1908) which prohibits special legislation.
Defendant testified:
"We design houses and buildings of all kinds. We also have a construction business, but do very little modernization. We design or construct other than residential buildings. I sell plans and specifications all over the United States through the National Home Plan Bureau, of which I am the owner, through the newspapers in different cities all over the country, such as Cleveland, Denver, and so on, and we had them in the Free Press here for around 5 years, in fact. I draw some of the plans and some of the students draw them under my supervision. The specifications are prepared by me, or by someone under any supervision and control."
It clearly appears that the legislative intent in enacting the act was to safeguard life, health, and property, when it restricts to qualified persons, both as to education and experience, the designing and construction of a building. Section 2 of the act (CLS 1954, § 338.552 [Stat Ann 1953 Cum Supp § 18.84(2)]) reads, in part, as follows:
"The term `architect' as used in this act shall mean a person who, by reason of his knowledge of mathematics, the physical sciences, and the principles of architectural design, acquired by professional education *676 and practical experience is qualified to engage in architectural practice as hereinafter defined.
"The practice of architecture within the meaning and intent of this act includes any professional service such as consultation, investigation, evaluation, planning, design, or responsible supervision of construction, alteration or repair in connection with any public or private structures, buildings, equipment, works or projects wherein the public welfare or the safeguarding of life, health, or property is concerned or involved, when such professional service requires the application of the principles of architecture or architectural design. No registered architect shall be engaged or interested in the sale of building materials or have any interest in any project or structure, prejudicial to his professional interest therein, excepting such projects and structures as are not required by this act to be designed by a registered architect."
The act also defines professional engineer and land surveyor. Section 12 of the act (CL 1948, § 338.562 [Stat Ann 1953 Cum Supp § 18.84(12)]) states the qualifications that applicants must have before taking the examination. In part, it reads as follows:
"An applicant for examination for registration must be a citizen of this State except as provided in section 20; must be of good moral character and over 21 years of age; must, except as provided hereafter in this section, have had not less than 8 years of practical experience in architectural or engineering work, or land surveying, under the direction or supervision of a registered architect or a registered engineer or a registered land surveyor, or of an architect or engineer or surveyor of equivalent professional standing, or must be a graduate in architecture or engineering of a college or school acceptable to the board, and have had not less than 4 years of experience of a nature satisfactory to the board."
*677 Section 14 of the act (CL 1948, § 338.564 [Stat Ann 1953 Cum Supp § 18.84(14)]) provides in part as follows:
"Examinations shall be given for the purpose of determining the qualifications of applicants for registration separately in architecture, in professional engineering, and in land surveying."
Section 15 of the act (CL 1948, § 338.565 [Stat Ann 1953 Cum Supp § 18.84(15)]) provides for a certificate of registration for applicants who, in the opinion of the board, have satisfactorily met the requirements of the act:
"The board shall issue a certificate of registration upon payment of registration fees as provided for in this act, to any applicant who, in the opinion of the board, has satisfactorily met all the requirements of this act. In case of a registered architect, the certificate shall authorize the practice of `architecture,' in the case of a registered engineer, the certificate shall authorize the practice of `professional engineering,' and in the case of a registered land surveyor, the certificate shall authorize the practice of `land surveying.' Certificates of registration shall show the full name of the registrant, shall have a serial number, and shall be signed by the chairman and the secretary of the board under seal of the board.
"The issuance of a certificate of registration by this board shall be evidence that the person named therein is entitled to all the rights and privileges of a registered architect, a registered professional engineer, or of a registered land surveyor, while the said certificate remains unrevoked or unexpired."
It clearly appears from the above statute that the legislature intended that applicants have certain and definite qualifications before they are entitled to take an examination in either of the 3 mentioned professions. Section 1 of the act (CL 1948, § 338.551 *678 [Stat Ann 1953 Cum Supp § 18.84(1)]) provides, in part:
"And it shall be unlawful for any person to practice or to offer to practice the profession of architecture, the profession of engineering or of land surveying, in this State, or to use in connection with his name or otherwise assume, use or advertise any title or description tending to convey the impression that he is an architect, a professional engineer, or a land surveyor, unless such person has been duly registered or exempted under the provisions of this act."
In our opinion it was the intention of the legislature to segregate architects, professional engineers and surveyors into 3 distinguishable categories, as section 14 of the act provides that examinations shall be given separately in architecture, in professional engineering, and in land surveying.
Appellant challenges the constitutionality of the act on the basis that it is vague, indefinite, an unlawful delegation of legislative authority to an administrative agency, and in violation of the 14th Amendment of the Constitution of the United States and article 5, § 30, of the Constitution of the State of Michigan (1908).
As a guide in determining the constitutionality of an act, we again affirm our holding in City of Grand Rapids v. Crocker, 219 Mich 178, 182, 183:
"There seems to be no lack of harmony in the rules governing the interpretation of statutes. All are agreed that the primary one is to ascertain and give effect to the intention of the legislature. All others serve but as guides to assist the courts in determining such intent with a greater degree of certainty. If the language employed in a statute is plain, certain and unambiguous, a bare reading suffices and no interpretation is necessary. The rule is no less elementary that effect must be given, if *679 possible, to every word, sentence and section. To that end, the entire act must be read, and the interpretation to be given to a particular word in one section arrived at after due consideration of every other section so as to produce, if possible, a harmonious and consistent enactment as a whole.
"`No rule is better settled than, in construing a statute, effect must be given to every part of it. One part must not be so construed as to render another part nugatory, or of no effect. The same rule applies to words in construing a sentence.' People v. Burns, 5 Mich 114, 117.
"See, also, Whipple v. Saginaw Circuit Judge, 26 Mich 342."
In Attorney General v. Detroit United Railway, 210 Mich 227, 253, 254, this Court said:
"In approaching the consideration of a legislative enactment with the purpose of passing upon its constitutionality courts usually do and always should strive to sustain its validity if that may be done without doing actual violence to the language used in the act. Every intendment favorable to a conclusion sustaining the law must be indulged in."
An examination of the act discloses that the rights, duties and privileges of registrants and the board are clearly defined. In G.F. Redmond & Co. v. Michigan Securities Commission, 222 Mich 1, 5, we said:
"The power to carry out a legislative policy enacted into law under the police power may be delegated to an administrative board under quite general language, so long as the exact policy is clearly made apparent, and the administrative board may carry out in its action the policy declared and delegated, but it cannot assume it has been vested with power beyond expressed legislative delegation, and must ever seek its way in the light shed by the legislative mandate. This marks the line between arbitrary officiousness and the exercise of delegated power *680 to carry out a designated policy under the police power."
The leaving of details of operation and administration to the board is not an objectionable delegation of legislative power. See Waier v. State Board of Registration for Architects, Professional Engineers, & Land Surveyors, 303 Mich 360.
While it is a fact that the definitions of architects and engineers are somewhat similar, yet there is a distinction. The services of an architect requires the application of the principles of architecture or architectural design, while the services of an engineer requires the application of engineering principles.
The act in question does not deny to defendant the equal protection of the law as guaranteed by the Federal and State Constitutions because it excludes from its effects architects or engineers working on a temporary basis, not to exceed 60 days, or being engaged in serving the United States, or those operating on interstate or railroad property, and other exceptions noted in the act. In Straus v. Elless Co., 245 Mich 558, 563, we said:
"The classification is sufficient if it is practical and reasonable. It is not reviewable unless it is palpably arbitrary and unreasonable. A lack of abstract symmetry does not matter."
The exemptions enumerated in the act do not constitute obectionable discrimination so as to deny equal protection of the laws.
The object of the act is to safeguard the life, health and property of the citizens of the State by providing tests for each applicant, and to provide certificates *681 to those who meet the qualifications provided by the legislature. The act is constitutional.
The judgment of conviction is affirmed.
CARR, C.J., and BUTZEL, SMITH, BOYLES, REID, DETHMERS, and KELLY, JJ., concurred.
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280 Kan. 513 (2005)
STATE OF KANSAS, Appellee,
v.
LARRY WALKER, Appellant.
No. 91,271.
Supreme Court of Kansas.
Opinion filed December 9, 2005.
*514 Michelle A. Davis, assistant appellate defender, argued the cause, and Libby K. Snider, assistant appellate defender, was on the brief for appellant.
Thomas R. Stanton, deputy district attorney, argued the cause, and Keith E. Schroeder, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.:
This case comes before us on our grant of defendant Larry Walker's petition for review of the Court of Appeals' decision in State v. Walker, No. 91,721, unpublished opinion filed January 14, 2005. The question presented is whether the provisions of K.S.A. 2004 Supp. 21-4720(b)(2) require a sentencing court, when sentencing a defendant for multiple felony convictions, to designate the defendant's severity level 1 crime, which according to the decision in State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002), is sentenced as a severity level 4 crime, as the primary crime. The trial court designated the defendant's severity level 2 crime as the primary crime. On petition for review, we affirm the Court of Appeals' decision affirming the trial court.
Pursuant to a plea agreement, the defendant pled no contest to the amended charges of possession of ephedrine or pseudoephedrine with intent to use to manufacture a controlled substance (K.S.A. 65-7006), a severity level 1 drug felony; possession of methamphetamine with intent to sell within 1,000 feet of a school (K.S.A. 65-4161), a severity level 2 drug felony; possession of methamphetamine (K.S.A. 65-4160), a severity level 4 drug felony; and *515 possession of drug paraphernalia with intent to use to manufacture a controlled substance (K.S.A. 65-4152), a severity level 4 drug felony.
Acknowledging that the possession of ephedrine or pseudoephedrine with intent to use to manufacture a controlled substance must be sentenced as a severity level 4 felony under Frazier, the sentencing court utilized the presumptive range for a severity level 4 drug felony with a criminal history score of H, 10-12 months, rather than the range for a severity level 1 drug felony, 142-161 months. The trial court accordingly designated the severity level 2 felony as the primary crime, which carried a presumptive range of 49-54 months.
The defendant appealed, arguing the severity level 1 drug felony of possession of ephedrine or pseudoephedrine with intent to use to manufacture a controlled substance should have been designated the primary crime, even though it was sentenced as a severity level 4 crime pursuant to Frazier. In rejecting this argument, the Court of Appeals reasoned:
"We are satisfied that the trial court followed the proper statutory procedure in determining the primary crime. Walker was sentenced for the offense of possession of ephedrine or pseudoephedrine as if he was convicted under K.S.A. 65-4152(a)(3). See K.S.A. 65-4152(c) (violation of subsection [a][3] is a drug severity level 4 felony); 30 Kan. App. 2d at 404-06. As a result, Walker's conviction of possession of methamphetamine with intent to sell within 1,000 feet of a school became his primary crime. See K.S.A. 65-4161(d) (classifying crime as drug severity level 2 felony); K.S.A. 2003 Supp. 21-4720(b)(2) (defining primary crime as crime with highest severity ranking.)" Walker, slip. op. at 5.
The defendant's petition for review of the Court of Appeals' decision was granted by this court pursuant to K.S.A. 20-3018(b).
Discussion and Analysis
The interpretation of a statute is a question of law subject to unlimited review. State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005). The defendant argues that the Court of Appeals ignored the plain language of K.S.A. 2004 Supp. 21-4720(b)(2), which required the sentencing court to designate the severity level 1 crime as the primary crime instead of the severity level 2 crime *516 which the sentencing court used. K.S.A. 2004 Supp. 21-4720(b)(2) specifies that the primary crime is the crime with the highest crime severity ranking:
"The sentencing judge must establish a base sentence for the primary crime. The primary crime is the crime with the highest crime severity ranking. An off-grid crime shall not be used as the primary crime in determining the base sentence when imposing multiple sentences. If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence, and the postrelease supervision term will be based on the off-grid crime. If more than one crime of conviction is classified in the same crime category, the sentencing judge must designate which crime will serve as the primary crime. In the instance of sentencing with both the drug grid and the nondrug grid and simultaneously having a presumption of imprisonment and probation, the sentencing judge will use the crime which presumes imprisonment as the primary crime. In the instance of sentencing with both the drug grid and the nondrug grid and simultaneously having a presumption of either both probation or both imprisonment, the sentencing judge will use the crime with the longest sentence term within the grid block range as the primary crime." (Emphasis added.)
There is no dispute in this case that Frazier required the sentencing court to sentence the defendant to no more than could be imposed for a severity level 4 crime notwithstanding the crime's designation as a severity level 1 crime. However, the defendant argues that the district court misinterpreted Frazier as holding that the crime severity level of possession of ephedrine or pseudoephedrine changed the crime severity level to a severity level 4 crime. The defendant contends it is up to the legislature, not the courts, to determine crime severity levels. Thus, according to the defendant, his possession of ephedrine or pseudoephedrine conviction remained a severity level 1 drug crime and should have been designated as his primary crime under K.S.A. 2004 Supp. 21-4720(b)(2) to which his full criminal history score of H applied.
The State responds that the defendant wants to take advantage of Frazier by having his sentence reduced from a severity level 1 felony sentence to a severity level 4 felony sentence and then claim a second benefit by having that reduced sentence be classified as the base sentence. The State argues it is "ridiculous" to believe that the base sentence can be 36 months less than the nonbase *517 sentence and the clear legislative intent of K.S.A. 2004 Supp. 21-4720(b)(2) is that the base sentence should be the sentence with the longest prison term.
The Court of Appeals' opinion in this case did not offer a clear explanation for affirming the trial court's use of the severity level 2 crime as the primary crime instead of the severity level 1 crime. However, its conclusion treating the defendant as if he were convicted of the severity level 4 drug crime of possession of drug paraphernalia, coupled with its failure to discuss the plain language ("[t]he primary crime is the crime with the highest crime severity ranking" [emphasis added]) or the legislative intent of K.S.A. 2004 Supp. 21-4720(b)(2), suggests the court believed that applying Frazier actually changes the severity level of the crime of conviction (possession of ephedrine or pseudoephedrine) or does so for purposes of sentencing only.
Two other Court of Appeals' panels have reached similar results as the panel in this case with little analysis. In State v. Krankenberg, No. 91,533, unpublished opinion filed March 18, 2005, Krankenberg argued the trial court erred in designating his possession of methamphetamine conviction, a severity level 3 felony, as the primary crime when he was also convicted of possession of ephedrine and possession of lithium, severity level 1 felonies. The panel rejected this argument, reasoning: "Simply put, possession of ephedrine or pseudoephedrine and possession of lithium are level 4 felonies. See Frazier, 30 Kan. App. 2d at 405-06. Nothing in Frazier suggests these crimes retain their severity rankings for the purpose of establishing the primary crime under K.S.A. 2004 Supp. 21-4720." Krankenberg, slip. op. at 2.
In State v. Williams, No. 90,473, unpublished opinion filed July 30, 2004, rev. denied 279 Kan. 1010 (2005), the court rejected a similar argument, reasoning: "When Williams' conviction for possession of pseudoephedrine was lowered by the court to a level 4 drug crime [pursuant to Frazier], his conviction for possession of methamphetamine with two prior convictions, a level 1 drug crime, by definition became his primary sentence." Williams, slip. op. at 2-3.
*518 However, a review of case law decided by this court involving the identical offense rule set forth in Frazier supports the conclusion that the original severity level 1 drug crime remains a severity level 1 drug crime and only the length of the sentence imposed is reduced to the least of the penalties of the two identical offenses.
In State v. Clements, 244 Kan. 77, 734 P.2d 1096 (1989), the defendant was convicted of aggravated criminal sodomy and he argued on appeal that the trial court should have instructed the jury on indecent liberties with a child as a lesser included offense. The State conceded that the allegations would have supported a charge of either aggravated criminal sodomy or indecent liberties with a child and that the two offenses were identical except as to the applicable penalty. This court concluded:
"Where identical offenses are involved, the question is not truly a matter of one being a lesser included offense of the other. Each has identical elements and the decision as to which penalty to seek cannot be a matter of prosecutorial whimsy in charging. As to identical offenses, a defendant can only be sentenced under the lesser penalty. Here, it would have been the better practice to have instructed on indecent liberties with a child, but the error could have been remedied by sentencing defendant as having been convicted of a class C felony rather than a class B felony. Accordingly, the sentence imposed herein must be vacated." 241 Kan. at 83.
Likewise, in State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), the defendant was convicted of aggravated criminal sodomy, a class B felony, for conduct which was also proscribed by the statute defining the offense of indecent liberties with a child, a class C felony. Relying on Clements, the court remanded to the trial court with directions to correct the sentence imposed to conform to the penalties for a class C felony rather than a class B felony, reasoning: "Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision." Nunn, 244 Kan. at 228-29.
More recently in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), the defendant was convicted of conspiracy to unlawfully manufacture methamphetamine and was sentenced for a severity level 1 drug felony pursuant to K.S.A. 65-4159(a). This court found *519 that manufacturing methamphetamine, a severity level 1 drug felony, and compounding a stimulant or drug, a severity level 3 drug felony, were identical under the facts of the case. As such, the defendant could be sentenced only under the lesser penalty provision of the severity level 3 drug felony. 277 Kan. at 142-47.
In State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004), Barnes argued his conviction for aiding and abetting the manufacture of methamphetamine, a severity level 1 drug felony, should have been sentenced as a severity level 3 drug felony under McAdam. In determining whether the sentence was illegal, the Barnes court found that the sentence imposed in McAdam was not unconstitutional; rather, "the problem when two statutes have identical elements but carry different penalties is that `the decision as to which penalty to seek cannot be a matter of prosecutorial whimsy in charging.'" 278 Kan. at 123.
Also relevant to this case, the court found that Barnes' sentence for the severity level 1 drug felony was not illegal because the district court had jurisdiction to find Barnes guilty and impose sentence, the sentence conformed to K.S.A. 65-4159 as to both its character and term of punishment, and the sentence was not ambiguous in the time or manner in which it was to be served. 278 Kan. at 124. Nevertheless, the court concluded that Barnes should have been sentenced for a severity level 3 drug felony. 278 Kan. at 129-30.
In State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005), this court considered an appeal from a Court of Appeals' decision which had concluded that possession of ephedrine or pseudoephedrine and possession of drug paraphernalia were not identical offenses, thereby declining to follow Frazier. In reversing, this court found that the elements of the offenses were the same where the elements were knowingly possessing ephedrine or pseudoephedrine with the intent to use it to manufacture a controlled substance. The court remanded to the district court to resentence Campbell "to a drug severity level 4 felony as provided for a violation of [the drug paraphernalia statute.]" 279 Kan. at 17.
Finally, State v. Boley, 279 Kan. 989, 991-93, 113 P.3d 248 (2005), while not on point, suggests that the severity level of the *520 charged crime in an identical offense case remains the same but the length of the sentence is reduced to the least penalty of the two identical offenses. In commenting on this aspect of the case and a plea agreement wherein Boley agreed to plead to a severity level 1 crime, this court said that "[t]he State's argument [severity level 1 was the heart of the State's agreement] blurs the distinction between the conviction and the sentence. Boley's conviction [severity level 1] stands; what changes is the length of his sentence." 279 Kan. at 993.
Review of Clements, Nunn, McAdam, Barnes, Campbell, and Boley supports the conclusion that the purpose of the identical offense rule is not to alter the severity level of the crime of conviction, but to prevent unfettered prosecutorial discretion in choosing which offense to charge. Moreover, none of the above cases explicitly provide that the severity level of the crime of conviction is changed when a defendant has been convicted of the more severe of identical crimes; in fact, Barnes' holding that a sentence imposed in accord with the higher severity level is not illegal or unconstitutional suggests otherwise. However, none of the cases discussed above provide that the crime of conviction retains its severity level for purposes of establishing a base sentence when the defendant is sentenced to the lesser penalty.
In Carmichael v. State, 255 Kan. 10, 19, 872 P.2d 240 (1994), this court imposed a similar sentencing remedy in the context of general versus specific crimes. Carmichael held that the proper remedy for Carmichael being charged and convicted of the general crime of rape of his daughter rather than the specific crime of aggravated incest was "to vacate the sentence imposed for rape and resentence the petitioner for aggravated incest." In Beem v. McKune, 317 F.3d 1175, 1180-81 (10th Cir. 2003), the Tenth Circuit Court of Appeals considered whether the Carmichael remedy truly results in a sentence for aggravated incest, which would require jury findings on all elements of that crime, or whether instead the remedy merely results in a reduced sentence for the crime of conviction, i.e., rape or indecent liberties with a child, albeit one that is determined by reference to the penalty range for aggravated incest.
*521 The Tenth Circuit upheld the constitutionality of the Carmichael remedy by characterizing it as "merely a sentence reduction remedy" which "(1) leaves intact the conviction for the general sex crime and (2) reduces the sentence for the general sex crime by reference to the allowable penalty range for aggravated incest." 317 F.3d at 1181. In reaching this conclusion, the court relied in part upon the fact that the court was correcting an illegal sentence which did not conform to the statutory provisions, either in the character or the term of punishment authorized. 317 F.3d at 1181.
Carmichael and Beem are obviously distinguishable from this case in that they involve the interplay of general and specific crimes and a resulting illegal sentence; however, the Tenth Circuit's handling of this court's imposition a lesser sentencing penalty for a higher severity level crime of conviction in Carmichael bears noting. Carmichael and Beem also lend support for the conclusion that sentencing a defendant in accord with Frazier leaves intact the severity level 1 crime of conviction but reduces the sentence by reference to the penalty range for possession of drug paraphernalia, a severity level 4 drug crime. We thus conclude that application of Frazier does not actually change the severity level of the crime of conviction but is merely a "sentence reduction remedy."
While application of Frazier does not change the severity level of the crime of conviction, we cannot ignore the reality of the situation in this case that in sentencing the defendant by reference to the penalties of possession of drug paraphernalia, the defendant was sentenced as if he were convicted of a severity level 4 drug felony, with a presumptive range of 10-12 months, rather than a severity level 1 drug felony, with a presumptive range of 142-161 months.
The State does not dwell on whether the crime severity level of possession of ephedrine or pseudoephedrine is changed or changes for all practical purposes under Frazier; rather, it focuses on the legislative intent of the sentencing statute. It contends that the legislature clearly intended that the primary crime be the crime of conviction with the longest sentence under K.S.A. 2004 Supp. 21-4720(b)(2).
*522 The meaning of a particular statute is dependent upon the intent of the legislature. McCurry, 279 Kan. at 121. In ascertaining this intent, we turn to the following rules of statutory construction:
"The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Where the face of the statute leaves its construction uncertain, the court may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. The legislative intent is to be determined from a general consideration of the entire act, and effect must be given, if possible, to the entire act and every part thereof, and it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible." (Emphasis added.) State v. Sedillos, 279 Kan. 777, Syl. ¶ 2, 112 P.3d 854 (2005).
"In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the literal import of words or phrases which conflict with the manifest purpose of the legislature." (Emphasis added.) State v. Gonzales, 255 Kan. 243, Syl. ¶ 4, 874 P.2d 612 (1994).
The State does not address the defendant's argument that this case is resolved by the plain and unambiguous statutory language but moves directly to the intent of the legislature as gleaned from the statute as a whole. However, under our rules of statutory construction, our first consideration is whether the language used by the legislature is plain and unambiguous. No question exists that the plain language of K.S.A. 2004 Supp. 21-4720(b)(2) provides: "The primary crime is the crime with the highest crime severity level ranking." At first blush, this language appears clear and unambiguous indicating a legislative intent to make the primary crime the crime of conviction with the highest severity level, which normally would be the crime with the longest sentence. However, the facts of this case do not present the typical situation where the severity level of the crime of conviction is commensurate with the *523 sentence. Under these circumstances, we conclude that the construction of the statutory language is uncertain or ambiguous as applied to the facts of this case, where the severity level of the crime of conviction does not match the sentence to be imposed.
We may therefore consider other factors in determining the legislative intent of the statute. For example, K.S.A. 2004 Supp. 21-4720(b)(2) further provides that where there are multiple convictions on both the drug and nondrug grids, the primary crime will be the conviction with "the longest sentence term." Although this case involves convictions on the same grid, presumably this clear legislative intent that the primary crime be the conviction with the longest sentence term would remain the same. The fact that this subsection of the statute does not contain a similar provision regarding crimes on the same grid does not demonstrate an intent that those crimes be treated differently; rather, it just reflects the fact that ordinarily, the crime with the highest severity level on the drug grid would have the longest sentence. See K.S.A. 2004 Supp. 21-4720(b)(2).
Additionally, as in this case where the defendant's possession of ephedrine or pseudoephedrine conviction retains its severity level 1 ranking, if such a severity level ranking were to be used as the primary crime for sentencing purposes under K.S.A. 2004 Supp. 21-4720(b)(2), unreasonable results would arise. See State v. Deffebaugh, 277 Kan. 720, 722, 89 P.3d 582 (2004) ("Courts should construe statutes to avoid unreasonable results, presuming that the legislature does not intend to enact useless or meaningless legislation."). For example, if the defendant's possession of ephedrine or pseudoephedrine conviction retains its severity level 1 ranking for sentencing purposes and becomes the primary crime under K.S.A. 2004 Supp. 21-4720(b)(2), the defendant's base sentence would then be presumptive probation and considerably shorter (12-14 months) than the nonbase sentence which would be imposed for his severity level 2 conviction for possession of methamphetamine with intent to sell (46-51 months). See K.S.A. 2004 Supp. 21-4705.
Although the severity level 2 conviction would fall in the presumptive prison box, it along with the other two severity level 4 *524 convictions, possession of methamphetamine and possession of drug paraphernalia, would likewise have to be sentenced as nonprison terms. See K.S.A. 2004 Supp. 21-4720(b)(8) ("If the sentence for the primary crime is a nonprison sentence, a nonprison term will be imposed for each crime conviction, but the nonprison terms shall not be aggregated or served consecutively even though the underlying prison sentences have been ordered to be served consecutively.").
It is illogical to assume that the legislature intended to establish a presumptive probation base sentence to a defendant who was also convicted of a drug severity level 2 presumptive imprisonment crime. Compare K.S.A. 2004 Supp. 21-4720(b)(2) ("In the instance of sentencing with both the drug grid and the nondrug grid and simultaneously having a presumption of imprisonment and probation, the sentencing judge will use the crime which presumes imprisonment as the primary crime." [Emphasis added.]). This provision demonstrates a clear legislative intent that the primary crime be the crime with presumptive imprisonment rather than presumptive probation.
If we were to adopt the defendant's position, another absurd and unreasonable result would be the application of the double sentence rule of K.S.A. 2004 Supp. 21-4720(b)(4) to this case. The double sentence rule provides that in cases where sentences for multiple convictions are imposed consecutively, the total controlling sentence cannot exceed twice the base sentence. If the possession of ephedrine or pseudoephedrine conviction were designated as the primary crime in this case, the double sentence rule would be violated because two times the maximum base sentence of 14 months would cap the total sentence at 28 monthswhen the presumptive nonbase sentence for the severity level 2 conviction alone would be 46-51 months. See K.S.A. 2004 Supp. 21-4705. Surely the legislature did not intend that K.S.A. 2004 Supp. 21-4720(b)(2) be interpreted in such a way that its application would automatically violate the provisions of K.S.A. 2004 Supp. 21-4720(b)(4).
Thus, when K.S.A. 2004 Supp. 21-4720(b)(2) is read in conjunction with the rest of the statute and K.S.A. 2004 Supp. 21-4705, *525 it is clear that the statute was drafted with the intention that the primary crime would be the crime of conviction with the longest and most severe sentence. Interpreting the provision that "the primary crime is the crime with highest severity level ranking" in this case literally without taking into account the sentence actually imposed would contravene the manifest purpose of the legislature and lead to absurd and unreasonable results. In order to effect the legislative intent, we interpret the provisions of K.S.A. 2004 Supp. 21-4720(b)(2) to require the primary crime to be the crime of conviction with the highest severity level ranking which is actually sentenced using that severity level's applicable penalties to effect imposition of the longest sentence provided under the sentencing guidelines.
In conclusion, application of Frazier does not change the severity level of possession of ephedrine or pseudoephedrine conviction from a severity level 1 drug crime to a severity level 4 drug crime. However, under the circumstances of this case, we interpret the provisions of K.S.A. 2004 Supp. 21-4270(b)(2) to require that the primary crime be the crime of conviction with the highest severity level ranking which is actually sentenced, using that severity level's applicable penalties to effect the legislative intent that the primary crime be the crime with the longest sentence imposed under the sentencing guidelines. This interpretation avoids any unreasonable and absurd results. Thus, we conclude that the district court's designation of the primary crime under the facts of this case was appropriate and must be affirmed.
Affirmed.
LOCKETT, J., Retired, assigned.[1]
NOTES
[1] REPORTER'S NOTE: Justice Tyler C. Lockett, Retired, was assigned to hear case No. 91,271 pursuant to the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court resulting from Justice Gernon's death.
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10-30-2013
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648 N.W.2d 690 (2002)
STATE of Minnesota, Respondent,
v.
Kyle John KELBEL, Appellant.
No. C8-01-1699.
Supreme Court of Minnesota.
August 8, 2002.
*691 Office of the MN State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis, MN, for Appellant.
Mike Hatch, Minnesota Attorney General, Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.
Heard, considered and decided by the court en banc.
OPINION
PAUL H. ANDERSON, Justice.
Two-year-old Kailyn Marie Montgomery died in her home while under the care of appellant Kyle John Kelbel. Following Kailyn's death, Kelbel was convicted of first-degree murder, past pattern of child abuse, in violation of Minn.Stat. § 609.185(5) (2000), and second-degree murder, in violation of Minn.Stat. § 609.19, subd. 2(1) (2000). He was sentenced to life in prison. Kelbel's first argument on appeal is that the district court erred in failing to instruct the jury that it must find that the state proved beyond a reasonable doubt each of the acts that constituted the past pattern of child abuse. Second, he argues that the evidence was insufficient to prove that he committed a past pattern of child abuse against Kailyn. We affirm.
On December 4, 2000, two-year-old Kailyn Montgomery died in her home while under the care of appellant Kyle John Kelbel. Kelbel, then 19 years old, was the boyfriend of Kailyn's mother, Lindsey Ostler. Kelbel was living with Lindsey and Kailyn in a home shared with Lindsey's father, George Ostler, and Ostler's five-year-old son, Evan.
On December 4, Kelbel was caring for both Kailyn and Evan while Lindsey and Ostler were at work. At 2:56 p.m., Kelbel called 911 and said that Kailyn "got hit in the head with a cup today by her little brother and she has a bruise on her head and like she is like not breathing right now." Officer Mark Aldrich was the first *692 to arrive at the Ostler home in response to the 911 call. Aldrich observed that Kailyn's lips were blue, her skin was cool and pale, and her eyes were glazed. He also saw that she had some vomit in and around her mouth and had a big bruise on her forehead. As Aldrich was about to begin CPR, Officer Paul Theines, a paramedic, arrived and took over Kailyn's care.
Theines later testified that when he arrived, he saw Kelbel standing over Kailyn looking stressed and worried about Kailyn. Theines cut off Kailyn's shirt to begin CPR and saw several bruises on her chest. While Theines was trying to help Kailyn, Aldrich asked Kelbel what happened. According to Aldrich, Kelbel said that around 12:38 p.m., Evan and Kailyn were at the kitchen table and Evan threw a sippy cup full of milk at Kailyn and hit her in the head. Theines testified that when he heard Kelbel's sippy cup story, he did not believe that a plastic cup thrown by a five-year-old could have caused Kailyn's injury.
An ambulance transported Kailyn to the hospital. When she arrived, Dr. Edward Feinstein worked for 40 minutes to revive her, but pronounced her dead at 4:00 p.m. While trying to help Kailyn, Feinstein observed many bruises on her chest, forehead, abdomen, and arm.
Kelbel's Police Interviews
The Maplewood police arrested Kelbel at the scene and interviewed him twice that day. Officer Kevin Johnson conducted the first interview. According to Johnson, Kelbel stated that he, Kailyn, and Evan were together at home that morning, went to the dentist a short time before 11:00 a.m., and returned home around 11:40 a.m. They then ate lunch. Because Evan was not eating his lunch, Kelbel told him that he needed to eat or Kelbel would take the food away. Evan told Kelbel to take the food away, so Kelbel took the plate and turned away from Evan. Just then, Kelbel heard an object hit something and then heard the object hit the table and then the floor. Kelbel turned around and saw Kailyn point to her head. Kailyn then said, "Evan hit me." Kelbel observed a sippy cup on the floor behind Kailyn and a red mark on Kailyn's forehead. Kelbel told Johnson that Kailyn did not cry and did not seem to be upset.
Johnson testified that Kelbel told him that he and Kailyn drove Evan to the school bus stop and then returned home. During this time, Kailyn was not crying and was "acting normal." Kelbel said he called Lindsey and left a message around 2:00 p.m. Johnson testified that Kelbel said that Lindsey called him that afternoon and he told her about the sippy cup and the forehead bruise. Although Kelbel told Lindsey that he wanted to take Kailyn to the doctor right away, Lindsey said that she would take care of it after work.
Officer Johnson also testified that at this point in the interview, he was concerned whether Kelbel's account of events would match the medical examiner's findings regarding Kailyn's physical condition. For this reason, he asked Kelbel several times whether there was anything else that could have caused Kailyn's injury. According to Johnson, Kelbel said that the sippy cup incident was the only thing that had happened and that nothing else could have done it. Kelbel then said that when he and Kailyn got home after dropping Evan off at the bus stop, they went into Ostler's bedroom where the computer was located. Kailyn lay on the bed while Kelbel was using the computer. Kelbel noticed that Kailyn was breathing heavily, hyperventilating, so he asked her if she was all right. Kailyn indicated that she was fine. When Kelbel noticed that Kailyn's breathing stopped, he called 911.
According to Johnson, Kelbel said that he did not like watching Evan and Kailyn *693 at the same time. Kelbel told him that Lindsey was skeptical about having Evan and Kailyn staying at home together. Kelbel also said that Evan hurts people. At some point during this first interview, Kelbel told Johnson that he wanted to know what was going on with Kailyn because he loved her.
Approximately two hours after the end of the first interview, Johnson and Special Agent Jeff Hansen interviewed Kelbel for a second time. Johnson testified that at this interview, he informed Kelbel that Kailyn had died. Kelbel asked to see Lindsey, cried, and said he loved Kailyn as if she were his own child. Hansen testified that Kelbel was unable to answer questions for some time because he was crying. Johnson asked whether the sippy cup caused Kailyn's forehead injury and Kelbel insisted that it must have been the cause.
Kelbel was then released from custody and agreed to return for a third interview the next day. He returned the next day and Hansen and Captain Mike Ryan conducted this interview. Hansen testified that Kelbel told them that two days before Kailyn died, he had caught Evan putting a pillow over Kailyn's face. Kelbel said that after removing the pillow, he saw that Kailyn's eyes were shaking and her lips were blue. He also said that Kailyn's balance after this incident was "off" and that she was swaying back and forth.
According to Hansen, Kelbel again told them about the sippy cup incident. Kelbel said that after this incident, Kailyn's "balance was off." He also related the events prior to Kailyn's death and explained that after dropping off Evan, they returned home and went into Ostler's bedroom. While Kelbel was downloading music or listening to music, he turned down the volume to listen to Kailyn's breathing. When Kelbel heard that Kailyn had stopped breathing, he called 911.
Hansen testified that during this third interview, he asked Kelbel if he went outside sometime between the time he arrived home from dropping Evan off at the bus stop and the time the police arrived. Kelbel said that while Kailyn was watching cartoons, he went outside, possibly to have a cigarette. Kelbel told Hansen that while he was outside, he talked to a 15-year-old neighbor for five to ten minutes. When Kelbel went back inside the house, Kailyn asked for something to drink and he gave her a sippy cup with some milk in it. Kelbel listened to music for about 15 minutes and then noticed that Kailyn was having trouble taking deep breaths.
Hansen testified that he asked Kelbel if Kailyn had fallen down any stairs or had been in a car accident. Kelbel said no. Hansen also asked whether Kailyn had had stomach pain that day. Kelbel responded that she had a stomach ache a few days before her death. Next, Hansen said that the medical examiner had found that Kailyn had died of very forceful blunt trauma to the abdomen and that she bled to death internally. Kelbel responded, "What could have caused that?" Hansen answered that such an injury could have been caused by someone striking Kailyn in the stomach with something like a fist, shoe, or knee. Hansen told Kelbel that Kailyn's injury could not have been caused by a sippy cup.
According to Hansen, he then told Kelbel that if something had happened to Kailyn that was "beyond [his] control," such as a fall or playing rough, Kelbel needed to tell them now. After Kelbel repeatedly denied that there had been an accident, Hansen asked Kelbel whether Kailyn's breathing had been normal before he went outside and spoke with the neighbor. Kelbel said that Kailyn's breathing had been fine. Hansen then told Kelbel that the neighbor had told the police that *694 Kelbel had said that Kailyn was "breathing funny." Kelbel then changed his story and acknowledged that he told the neighbor that Kailyn's breathing was messed up and that she had been having trouble breathing.
Hansen also testified that Kelbel changed his story regarding the sippy cup incident and admitted that Evan did not throw the cup at Kailyn. Kelbel explained that he, Kailyn, and Evan had all been walking down the stairs when Evan tripped Kailyn. Kailyn then brushed up against the back of Kelbel's leg. As Kelbel attempted to stop Kailyn from falling, the back part of his thigh fell on Kailyn. Ryan expressed disbelief with Kelbel's explanation. Ryan again expressed disbelief and said that Kelbel would have had to land on Kailyn with something like a foot, fist, or elbow to cause the injury that Kailyn had. Kelbel responded, "Swear to God that's what happened" and then said that he landed on Kailyn with the side of his knee. He then said that he fell on Kailyn with the side of his leg. Kelbel next explained that Kailyn obtained the forehead injury after falling down the stairs and hitting her head on a door at the bottom. He then reenacted the fall for Hansen and Ryan. Although Ryan expressed disbelief about Kelbel's version of events, Kelbel insisted that it was the truth.
Lindsey's Police Interview
Hansen also interviewed Lindsey on December 4. According to Hansen, Lindsey said that Evan had outbursts against Kailyn for the past few months, including pulling Kailyn's hair and punching her in the back. Because of this behavior, Lindsey separated Kailyn and Evan at the dinner table. Lindsey also said that she observed bruises on Kailyn from an incident in which Evan placed a pillow over Kailyn's face and from an incident in which Kailyn fell while trying to balance on a glide rocker and a couch. With respect to Kelbel, Lindsey told Hansen that Kelbel cared for Kailyn no more than ten times and that Kailyn had one accident under his care. Lindsey also said that Kelbel never disciplined Kailyn, that she never saw him become violent or frustrated with Kailyn, and that he was gentle and kind toward Kailyn.
Kelbel's Indictment and Trial
Seven months later, Kelbel was indicted for first-degree murder under Minn.Stat. § 609.185(5) and second-degree murder under Minn.Stat. § 609.19, subd. 2(1). At his trial, there was extensive testimony from numerous witnesses about the events of December 4. Ostler and Lindsey testified that Kelbel was alone caring for Evan and Kailyn on December 4. According to Lindsey, Kailyn had no facial injuries that morning. Later that morning, Kelbel brought Evan and Kailyn with him to the dentist where he underwent a dental examination between 10:30 and 11:00. The nurse and the receptionist at the dental office, who had the opportunity to observe Kailyn, testified that at that time Kailyn had no apparent injuries and did not appear to be in pain.
The state introduced a message from Lindsey's cell phone. The message showed that Kelbel called Lindsey's cell phone number at 12:42 p.m. and asked her to call him immediately. Lindsey left her cell phone at home that day and did not receive Kelbel's message, but she called Kelbel at about 1:30 p.m. to find out how the children were doing. According to Lindsey, Kelbel said that Evan had thrown a sippy cup at Kailyn at the kitchen table, Kailyn had a huge bruise on her forehead, and she was "a little off." Lindsey testified that based on Kelbel's account, Kailyn's injury did not seem serious. For this reason, she told Kelbel that she would take *695 Kailyn to urgent care when she was done with work at 3:30 p.m.
The neighbor testified that he visited with Kelbel outside Ostler's home around 2:30 p.m. They spoke to each other for about 10 minutes. According to the neighbor, Kelbel mentioned that Kailyn was having trouble breathing.
In addition to Officers Aldrich and Theines, several other officers responded to Kelbel's 911 telephone call, including Sally Dunn, a child abuse investigator and paramedic. Dunn testified that she had previously been to the Ostler home in September 2000 in connection with a suspected child abuse incident involving Kailyn. When Dunn arrived at the home on December 4, she saw a large bruise on Kailyn's forehead and bruises on her chest and abdomen. She believed that the injuries were not caused by a thrown sippy cup and immediately declared the home a crime scene so that evidence could be preserved undisturbed.
Dunn testified that Ostler's home was secured and officers returned on December 5 with a search warrant and conducted a search. The next day, after he was permitted to reenter the home, Ostler called the police to inform them of a dent in the basement wall which he had not seen before. The police returned to measure and photograph the dent, which was a circular indentation near Kailyn's bed.
Medical Examiner's Testimony
Dr. Michael McGee, the Ramsey County Medical Examiner, testified that he performed an autopsy on Kailyn on December 5. According to McGee, Kailyn had 84 separate soft tissue injuries on her body, including her head, chest, back, and both arms and legs. McGee believed most of the injuries were incurred between two and seven hours before Kailyn's death.
McGee testified that Kailyn's death was caused by exsanguination due to blunt trauma to the abdomen as a result of child abuse. According to McGee, a tremendous blunt force, such as a fist or knee concentrated on Kailyn's abdominal region, was necessary to cause Kailyn's injuries. A fall like the one described by Kelbel to the police could not have caused Kailyn's internal injuries because such a fall could not have generated enough force to produce such injuries. In McGee's view, Kailyn's injuries could not have been caused by a fall down the stairs even if Kelbel had landed on her abdomen with his knee.
With respect to Kailyn's other injuries, McGee testified that her forehead had a large bruise, an abrasion, swelling above the right eye, and multiple contusions above both eyebrows. According to McGee, the abrasion could have been caused by a thrown sippy cup, but a thrown cup could not account for the total area of bruising, which would have required a great deal of force and multiple blows. McGee also testified that Kailyn had multiple bruises on the left and right sides of her head, her right cheek, and her chest and upper abdomen as well as burn injuries on her left hand. He testified that the injuries to Kailyn's forehead were likely caused by multiple blows to her head with some blunt object. McGee testified that the injuries on the back of Kailyn's head were consistent with the back of her head "impacting" the basement wall.
McGee testified that he believed that Kailyn's injuries were inflicted rather than accidental. He concluded that the manner of death was homicide with multiple traumatic injuries. McGee also concluded that Kailyn was a battered child, a child who has received multiple injuries in a repetitive manner over a period of time. McGee based his opinion on his autopsy findings, as well as Kailyn's medical records containing information regarding her previous visits to the clinic and the hospital.
*696 Kailyn's Previous Injuries
In addition to the evidence surrounding the events of December 4, the state presented evidence regarding injuries Kailyn suffered before that date. Lindsey testified that Kailyn was born on June 2, 1998, and lived with Lindsey and Lindsey's mother in Wisconsin until June 5, 2000. On June 5, Kailyn and Lindsey moved to Maplewood, Minnesota to live with Ostler so that Lindsey could attend college. Until June 5, Kailyn was cared for by Lindsey and Lindsey's mother. Both Lindsey and her mother testified that while Kailyn was living in Wisconsin, she suffered no unexplained injuries. Lindsey also testified that while living in Wisconsin, Kailyn occasionally visited Ostler and Evan in Maplewood and she never suffered any unexplained injuries as a result of those visits. Lindsey also testified that Kailyn suffered no unexplained injuries before August 2000.
From June 5, 2000 until mid-August 2000, Judy Thompson, a neighbor, cared for Kailyn during the day. Lindsey and Thompson testified that during this period, Kailyn suffered no unexplained injuries. According to Thompson, Kailyn and Evan got along well and Thompson never saw Evan intentionally harm Kailyn.
Lindsey, who was 17 at the time of the trial, testified as to Kelbel's relationship with her and Kailyn. Lindsey and Kelbel met in January 2000 and began dating in March. At that time, Lindsey and Kailyn lived in Wisconsin. Lindsey said that when she lived in Wisconsin, Kelbel never took care of Kailyn alone. After Lindsey and Kailyn moved to Minnesota on June 5, 2000, Kelbel visited Lindsey in mid-August and moved into the Ostler home at that time. At the end of August, Lindsey was working and going to school. Lindsey testified that at this time, Kelbel worked sporadically and cared for Kailyn alone twice a week for two or three weeks. Judy Thompson took care of Kailyn the other days of the week.
Lindsey testified that at the end of August and throughout September, she observed unexplained bruising on Kailyn's face, arms, chest, and back. According to Lindsey, there were new bruises every three or four days as well as occasional bite marks. Lindsey stated that on August 29, Kelbel told her that Kailyn fell out of the crib and hit her face. Both Lindsey and Thompson testified that they observed injuries on Kailyn's face that day. Thompson testified that she never had a problem with Kailyn crawling or falling out of her crib or Evan pulling her out. Thompson also testified that after August 29, the injuries never seemed to go away, they would just move. According to Thompson, Kailyn's injuries would be smaller one day and bigger the next day.
Lindsey testified that she was concerned about these recurring bruises and took Kailyn to a doctor on September 7. Lindsey and the doctor both testified that Lindsey told the doctor that she did not know the cause of the bruises, which began two or three weeks earlier. The doctor requested testing to determine if there was anything wrong with Kailyn. Lindsey told the doctor that Kailyn's only care providers were her and the babysitter. The doctor testified that Kailyn was pale and withdrawn and had bruises on her forehead, shins, lower back, and cheeks. He also testified that the injuries indicated abuse, but he ordered blood tests to rule out medical causes. All the tests came back normal.
Lindsey testified that on September 13, she brought Kailyn to the hospital. At that time, Kailyn had bruises on her face, arms, and chest and Lindsey was concerned something was medically wrong. Lindsey and Kailyn saw a pediatric nurse, who documented the bruising. The nurse *697 testified that Lindsey said that the unexplained bruising had been occurring for four weeks, that she had seen a doctor a week earlier, and that the results of the blood tests taken at that time were normal. The nurse ordered further laboratory tests and ruled out medical reasons for Kailyn's condition. Also, on this occasion, Officer Theines came to the hospital and observed the multiple bruises on Kailyn. Theines testified that Lindsey told him she did not know how the bruises occurred, that Kailyn had begun getting the bruises three or four weeks earlier, and that new bruises occurred every three or four days. Theines testified Lindsey told him that Kelbel had moved in four weeks earlier and that he could not have caused Kailyn's injuries and that he was rarely alone with her.
As a result of Lindsey's visit to the hospital, Kailyn was placed in foster care from September 13 to October 2. During this time period, Kailyn's injuries healed and she was free of injury when she returned home. Kailyn incurred no new injuries until mid-November, when Kelbel told Lindsey that Kailyn had fallen in the bathtub. Lindsey testified that she then observed that Kailyn had bruises on her back. Just before Thanksgiving, Lindsey started a new job and, as a result, asked Kelbel to care for Kailyn while she was working. The day after Thanksgiving, Lindsey's mother, who was visiting, noticed that Kailyn had a burn on her left hand and asked Lindsey about it. Lindsey's mother testified that Lindsey said that Kailyn was in the bathroom with her while she was taking a shower and Kailyn must have picked up a burning candle. Before trial, Lindsey gave this same account of events to the police. However, at trial, Lindsey admitted that she lied to protect Kelbel. Lindsey testified that Kelbel had told her that Kailyn was in the bathroom with him and that she had been burned by hot candle wax. Lindsey testified that she lied because even though she had never seen Kelbel hurt Kailyn, she was concerned that others would think he did. Thompson testified that on November 28 or 29, she noticed that Kailyn had bruises up and down her rib cage.
On December 2, Lindsey was at work and Kelbel cared for Kailyn. Lindsey testified that when she returned home, Kelbel told her he had found Evan sitting on Kailyn's chest trying to smother her with a pillow. Lindsey testified that at that time she observed bruises on Kailyn's chest and chin and again that night, when she gave Kailyn a bath. She showed the bruises to Ostler. Lindsey testified that Kailyn's injuries could have been caused when Kailyn fell on her chest on the carpet while she was playing between a reclining rocker and a sofa.
Lindsey testified that she never saw Kelbel become violent or frustrated with Kailyn and that Kelbel was very gentle with her. Lindsey and Ostler both acknowledged that Evan was rough with Kailyn. They also testified that one of the two Rottweilers which lived in the Ostler home occasionally knocked Kailyn over, causing her to fall on her bottom. However, Lindsey also testified that in September she had lied to the police, her mother, Thompson, and the medical professionals who had seen Kailyn in order to protect Kelbel. She acknowledged that she did not reveal the extent to which Kelbel cared for Kailyn. She also acknowledged that even though she did not observe certain injuries to Kailyn, she sometimes told others that she observed certain injuries to Kailyn that Kelbel had described to her. Lindsey testified that she thought Kelbel would never hurt Kailyn, but worried that others would think that he had.
Jury Instructions and Verdict
Before closing arguments, Kelbel requested in writing an instruction regarding *698 past pattern of child abuse under section 609.185(5). Kelbel proposed the following instruction: "Each alleged incident of child abuse that comprises the `past pattern of child abuse' must be proven beyond a reasonable doubt." The district court rejected Kelbel's request and instructed the jury regarding section 609.185(5) in the following manner:
First, the death of Kailyn Marie Montgomery must be proven. Second, Kailyn Marie Montgomery was a minor. A minor is a person under the age of 18 years. Third, the death of Kailyn Marie Montgomery occurred while the defendant was committing child abuse. Minnesota statutes defined "child abuse" as assault. Fourth, the defendant engaged in a past pattern of child abuse upon Kailyn Marie Montgomery. The term "pattern" may be taken to have its common and ordinary meaning. Fifth, the death of Kailyn Marie Montgomery occurred under circumstances that manifested an extreme indifference to human life. Sixth, the defendant's acts took place in Ramsey County on or about December 4, 2000, and prior to December 4, 2000, with respect to the element of a past pattern of child abuse. If you find that each of these six elements has been proven beyond a reasonable doubt, the defendant is guilty. If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty.
After deliberating, the jury found Kelbel guilty of first-degree murder, past pattern of child abuse, and second-degree murder. Kelbel was then sentenced to life in prison.
Post-Trial Motion and Appeal
On July 23, Kelbel made a motion for a judgment of acquittal and for a new trial on the grounds that the evidence was insufficient to support his conviction. More specifically, he argued that the only evidence that he committed a past pattern of child abuse was
a coincidence with respect to the bruising on [Kailyn] and his presence in the home. In order to reach a conclusion beyond a reasonable doubt on circumstantial evidence, all circumstances proved must be inconsistent with any other rational conclusion. There was credible evidence of several other sources for the bruising.
The district court denied Kelbel's motion. In a memorandum of law accompanying its order, the court explained that it rejected Kelbel's requested jury instruction regarding past pattern of child abuse because it believed that State v. Cross, 577 N.W.2d 721 (Minn.1998), remained good law after State v. Crowsbreast, 629 N.W.2d 433 (Minn.2001). Then, the court explained its ruling in the following manner:
There is no evidence that the child ever was able to articulate the source of her significant bruising. As a result, the state's only evidence of the past pattern of child abuse by defendant consisted wholly of circumstantial evidence of that pattern, and no specific acts of abuse by defendant. Defendant's requested instruction regarding past pattern would render it impossible to prove the crime charged in the absence of eyewitness accounts of past abuse, or defendant's admissions. A child in the age range of 30 months simply cannot engage in selfreporting of abuse. As a result, this court rejects the argument that Minn. Stat. § 609.185(5) is analogous to the federal Continuing Criminal Enterprise (CCE) Statute found at 21 U.S.C. § 848(a) (1994).
For these reasons, the court concluded that a conviction under section 609.185(5) may be had by proof beyond a reasonable doubt using circumstantial evidence of a specific past pattern of child abuse rather *699 than direct or circumstantial evidence of each act of child abuse that comprise the past pattern.
Kelbel's first argument on appeal is that the district court erred in failing to instruct the jury that in order to convict him of first-degree murder, past pattern of child abuse, the jury must find beyond a reasonable doubt that he committed each of the acts which constituted the past pattern of child abuse. Second, he argues that the evidence presented at trial was not sufficient to prove that he committed a past pattern of child abuse against Kailyn.
I.
Kelbel first contends that in order to be convicted under section 609.185(5), the state must prove that he engaged in a past pattern of child abuse. He asserts that the district court violated his federal and state due process rights by refusing his request for an instruction that each alleged incident of abuse that comprises a past pattern of child abuse must be proven beyond a reasonable doubt. More specifically, Kelbel argues that the language "past pattern of child abuse" in the statute creates several elements and that every element of a crime must be proven beyond a reasonable doubt to satisfy due process. In support of his argument, Kelbel cites to In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (holding that every fact necessary to constitute the crime must be proven beyond a reasonable doubt).
To evaluate Kelbel's constitutional due process claim, we must determine whether section 609.185(5)'s language referring to a "past pattern of child abuse" creates a single element or whether the statute makes each incident of child abuse a separate element, each of which must be proven beyond a reasonable doubt. This determination is a matter of statutory construction, which we review de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990).
Section 609.185(5) provides that a person is guilty of first-degree murder when he
causes the death of a minor while committing child abuse, when [he] has engaged in a past pattern of child abuse upon the child and the death occurs under circumstances manifesting an extreme indifference to human life.
Minn.Stat. § 609.185(5). The language regarding "past pattern of child abuse" mirrors the language used in section 609.185(6), which addresses the issue of past pattern of domestic abuse. Section 609.185(6) provides that a person is guilty of first-degree murder when he
causes the death of a human being while committing domestic abuse, when [he] has engaged in a past pattern of domestic abuse upon the victim or upon another family or household member and the death occurs under circumstances manifesting an extreme indifference to human life.
Minn.Stat. § 609.185(6) (2000).
We have previously addressed whether the language "past pattern of domestic abuse" in section 609.185(6) creates one element or several elements. In Cross, we rejected the argument that each underlying act offered as evidence of a "past pattern of domestic abuse" is a separate element of the crime of domestic abuse homicide, requiring proof beyond a reasonable doubt as to each underlying act of abuse. 577 N.W.2d at 726-27. We said that such an argument "ignores the plain language of the statute." Id. at 726. Thus, we concluded that the state need not prove each of the alleged underlying acts beyond a reasonable doubt as long as the state has proven sufficient acts to establish, beyond a reasonable doubt, a pattern of such acts of domestic abuse. See id. That is, if the state presents evidence *700 of underlying acts A, B, C, and D, it is not reversible error for there to be insufficient evidence of D, if A, B, and C are sufficient to establish a pattern of domestic abuse beyond a reasonable doubt. While the plain language of the statute supported our conclusion, we also pointed out that in the absence of clear statutory direction, requiring proof beyond a reasonable doubt as to each of the acts constituting a "past pattern of domestic abuse" would "create an unnecessarily heavy burden on the state" in light of the fact that domestic abuse offenses are "among the most underreported crimes in America." Id. at 727.
Following our decision in Cross, the United States Supreme Court decided Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999). In Richardson, the defendant challenged the jury instructions given by the district court concerning a charge under 21 U.S.C. § 848(a) (2000), the federal Continuing Criminal Enterprise (CCE) Statute. 526 U.S. at 815-16, 119 S. Ct. 1707. This statute forbids any person from engaging in a "continuing criminal enterprise" and defines this term as involving a violation of the controlled substances statutes where such violation "is a part of a continuing series of violations." 21 U.S.C. § 848(a), (c).
In Richardson, the Supreme Court held that the language of the statute, tradition, and potential unfairness supported a reading of the term "series of violations" as constituting several elements rather than one element. Id. at 820, 824, 119 S. Ct. 1707. The Court examined the term "violations" and observed that this term referred to an act or conduct that is contrary to law. Id. at 818, 119 S. Ct. 1707. Because the Court found no legal source defining the word "violations" as the means the defendant used to commit an element,[1] the Court concluded that the language of the statute supported a reading of "violations" as elements. Id. at 817-18, 119 S. Ct. 1707.
Next, the Court concluded that to hold that each "violation" amounts to a separate element was consistent with a tradition of requiring juror unanimity where the issue is whether a defendant has engaged in conduct that violates the law. Id. at 818-19, 119 S. Ct. 1707. Finally, the Court concluded that the CCE statute's breadth aggravates the dangers of unfairness that treating each violation as a means rather than an element would risk. Id. at 818-20, 119 S. Ct. 1707. More specifically, the Court stated that the statute's breadth aggravated the danger that violations would be treated as simply alternative means by which the defendant satisfied a single element. Id. at 819, 119 S. Ct. 1707. This would permit the jury to avoid discussion of the specific factual details of each violation and cover up wide disagreement among the jurors about which violations the jurors believe the defendant committed. Id. The Court also expressed its concern that jurors would fail to focus upon specific factual detail and might rely on bad character evidence in concluding that the defendant is guilty. Id. Based on these considerations of language, tradition, and unfairness, the Court held that the *701 CCE statute required jury unanimity with respect to each individual violation alleged to make up the series of violations. Id. at 824, 119 S. Ct. 1707.
In Richardson, the Court rejected the government's argument that there was a history or tradition of treating individual criminal violations as means toward the commission of a greater crime. Id. at 821, 119 S. Ct. 1707. The Court stated that certain state statutes regarding sexual abuse of a minor are among the few examples of criminal statutes that do not define the crime in terms that require the commission of other predicate crimes by the defendant. The Court said:
The closest analogies [the government] cites consist of state statutes making criminal such crimes as sexual abuse of a minor. State courts interpreting such statutes have sometimes permitted jury disagreement about a "specific" underlying criminal "incident" insisting only upon proof of a "continuous course of conduct" in violation of the law. With one exception, the statutes do not define the statutory crime in terms that require the commission of other predicate crimes by the defendant.
Id. at 821, 119 S. Ct. 1707 (citations omitted).
The Court then explained that the state sexual abuse statutes do not typically define the crime in terms that require the commission of other predicate crimes because of the difficulties of proving the individual underlying criminal acts. The Court said:
The state practice may well respond to special difficulties of proving individual underlying criminal acts, which difficulties are absent here. The cases are not federal but state, where this Court has not held that the Constitution imposes a jury-unanimity requirement. And their special subject matter indicates that they represent an exception; they do not represent a general tradition or rule.
Id. at 821-22, 119 S. Ct. 1707 (citations omitted). In acknowledging the special subject matter of the sexual abuse statutes, the Court strongly suggested that the CCE statute was distinguishable from the state sexual abuse statutes where the crime is not defined in terms that require the commission of other predicate acts.
Following Richardson, we were asked to revisit the issue of whether each underlying act offered as evidence of "past pattern of domestic abuse" was a separate element of the crime of domestic abuse homicide. In Crowsbreast, we held that the district court did not commit plain error by failing to instruct the jury that each past incident of abuse alleged to comprise a "past pattern of domestic abuse" must be proven beyond a reasonable doubt. 629 N.W.2d at 438. In reaching this conclusion, it was unnecessary for us to determine the effect that Richardson had on the holding of Cross because the doubt, if any, that Richardson cast on the legal underpinnings of Cross would not elevate the alleged error in Crowsbreast to plain error. 629 N.W.2d at 438.
Kelbel acknowledges that our holding in Cross suggests that the language "past pattern of child abuse" creates one element rather than several elements. Nevertheless, Kelbel claims that Richardson's analytical framework compels the conclusion that Minn.Stat. § 609.185(5) creates several elements.
Whether the language "past pattern of child abuse" creates one element rather than several elements is a matter of statutory construction. Under our rules and case law, when the legislature's intent is clearly discernable from plain and unambiguous language, statutory construction is neither necessary nor permitted and we apply the statute's plain meaning. Minn. *702 Stat. § 645.16 (2000); State v. Grossman, 636 N.W.2d 545, 550 (Minn.2001). In Cross, we concluded that the plain language of the domestic abuse statute does not specify that proof beyond a reasonable doubt is required as to each of the underlying acts of abuse. 577 N.W.2d at 726-27. In the absence of clear statutory direction, we refused to require proof beyond a reasonable doubt as to each of the acts constituting a "past pattern of domestic abuse" because such a requirement would create an unnecessarily heavy burden on the state. Id. at 727. Here, for the same reasons as in Cross, we conclude that the plain language of section 609.185(5) does not require proof beyond a reasonable doubt as to each of the acts constituting a "past pattern of child abuse." Thus, section 609.185(5) requires that the state establish, beyond a reasonable doubt, the pattern of abuse. Although the jurors may disagree about which particular acts make up the pattern, they must agree that the state has proven a pattern beyond a reasonable doubt.
Even if we did apply the rules of statutory construction specified in Richardson, as Kelbel urges us to do, we would reach the same conclusion. Under Richardson's analytical framework, we must examine a statute's language, tradition, and potential unfairness to a defendant to determine whether the language "past pattern of child abuse" creates one or several elements. With respect to the language of the statute, the "past pattern of child abuse" language of section 609.185(5) is similar to the CCE statute's language "series of violations" in that both a series and a pattern require that more than one incident occur. See Richardson, 426 U.S. at 819, 96 S. Ct. 2488; Cross, 577 N.W.2d at 727 n. 3. In addition, just as the CCE statute at issue in Richardson referred to "violations," defined as conduct contrary to the law, section 609.185(5) defines "child abuse" as "an act committed against a minor victim that constitutes a violation of the following laws of this state or any similar laws of the United States or any other state." Minn.Stat. § 609.185. Thus, both the CCE statute and section 609.185(5) state that criminal acts must make up the "series" or "pattern." However, in Richardson, the Court failed to find any legal source defining "violations" as a means of committing an offense rather than the offense itself. 526 U.S. at 818, 119 S. Ct. 1707. Here, by contrast, we have our decision in Cross, where we concluded that the criminal acts that constituted "domestic abuse" were means of establishing a pattern rather than elements. See 577 N.W.2d at 727. Thus, the language of section 609.185(5) weighs in favor of reading "past pattern of child abuse" as creating one element.
The second factor considered by the Court in Richardson is tradition. In Richardson, the Court distinguished the state sexual abuse statutes from the CCE statute on the grounds that the state sexual abuse statutes typically do not define the crime in terms that require the commission of other predicate crimes. The Court also explained why the state sexual abuse statutes defined the crime in this manner, stating that the underlying criminal acts were difficult to prove. 526 U.S. at 821, 119 S. Ct. 1707. Similarly, in Cross, we concluded that the difficulty of proving a past pattern of abuse where domestic abuse crimes are unreported supported the conclusion that the statute did not create several elements. 577 N.W.2d at 727. The same difficulties of proving a past pattern of domestic abuse apply in the context of child abuse. We agree with the district court that the acts constituting a pattern of child abuse are difficult to prove, particularly when a child is so young that she cannot self-report abuse. See also Minn.Stat. § 595.02, subd. 3 (2000) (providing that out-of-court statements *703 by a child under age 10 or a person who is mentally impaired may be admissible hearsay when such statements allege sexual or physical abuse). Accordingly, tradition weighs against interpreting "past pattern of child abuse" as creating several elements, each of which must be proven beyond a reasonable doubt.
The third factor considered by the Richardson Court was potential unfairness to a defendant. In Richardson, the Court was concerned that if the term "series of violations" constituted one element, the jury would not consider the factual details of each violation, covering up wide disagreement among jurors regarding what the defendant did and permitting the jury to convict a defendant on the grounds of bad character. 526 U.S. at 819, 119 S. Ct. 1707. The potential unfairness discussed by the Richardson Court could be present in cases involving section 609.185(5). However, the state must prove a pattern beyond a reasonable doubt, and therefore jurors must agree that the state proved beyond a reasonable doubt that a defendant committed some number of acts constituting a past pattern of child abuse. See Cross, 577 N.W.2d at 727 n. 3. In addition, even if such potential unfairness were present, both the language of section 609.185(5) and tradition weigh against a reading of "past pattern of child abuse" as creating several elements rather than one element. Thus, even under Richardson's analytical framework, section 609.185(5)'s language "past pattern of child abuse" does not create several elements.
Because our rules of statutory construction do not support Kelbel's argument that "past pattern of child abuse" creates several elements, the district court's refusal to give Kelbel's requested jury instruction was within the court's broad discretion. We will not reverse a court's refusal to give a jury instruction absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn.1996). The court instructed the jury that it must find that the state proved each element of the crime of first-degree murder, past pattern of child abuse, beyond a reasonable doubt. Because "past pattern of child abuse" constitutes one element of this crime, we hold that the court did not abuse its discretion.
II.
Kelbel's second argument on appeal is that the evidence was insufficient to support the verdict. In reviewing a claim of sufficiency of the evidence in a criminal matter, we determine whether a jury could reasonably have concluded that the defendant is guilty of the offense charged. State v. Johnson, 568 N.W.2d 426, 435 (Minn.1997). In doing so, we view the evidence in the light most favorable to the verdict and assume that the jury disbelieved any testimony in conflict with the result it reached. State v. Daniels, 361 N.W.2d 819, 826 (Minn.1985).
Here, the jury could have reasonably concluded that Kelbel was guilty of first-degree murder, past pattern of child abuse. Kailyn was a minor who died as a result of child abuse, defined by the statute as assault. The medical examiner testified that as a result of child abuse, Kailyn died from internal bleeding due to internal injuries resulting from severe blows to the abdomen. He also testified that Kailyn's injuries causing her death occurred two to seven hours before she died. Testimony from Lindsey as well as Kelbel's statements to police indicated that Kelbel was alone with Kailyn on December 4 at the time her injuries were incurred. Further, Kelbel gave conflicting explanations for Kailyn's injuries, ultimately admitting that his initial explanation was false. Moreover, Kelbel's explanations were contrary to the medical evidence. Testimony from Lindsey, Lindsey's mother, Thompson, and *704 the doctors and nurses who provided medical care to Kailyn before December 4 indicated that Kailyn was a battered child. Testimony from Lindsey, Lindsey's mother, Ostler, and Thompson indicated that the injuries Kailyn sustained before December 4 occurred when Kailyn was alone with Kelbel. When we view all of this evidence in the light most favorable to the verdict, we hold that the evidence was sufficient to support the jury's verdict.
Affirmed.
NOTES
[1] In Richardson, the Court gave the following example to illustrate the difference between an element and the means the defendant used to commit an element. The Court said:
Where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreementa disagreement about meanswould not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely, that the defendant had threatened force.
526 U.S. at 817, 119 S. Ct. 1707.
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22 A.3d 1071 (2010)
COM.
v.
CLARK.
No. 15 WDA 2010.
Superior Court of Pennsylvania.
November 15, 2010.
Affirmed.
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275 Wis. 243 (1957)
WHITE HOUSE MILK COMPANY, Respondent,
vs.
THOMSON, Attorney General, and others, Defendants:
PURE MILK PRODUCTS CO-OPERATIVE, Proposed Intervenor and Appellant.
Supreme Court of Wisconsin.
February 6, 1957.
March 5, 1957.
*246 For the appellant there was a brief by St. Peter & Hauer of Fond du Lac, and oral argument by George M. St. Peter.
For the respondent there was a brief by Michael, Spohn, Best & Friedrich, attorneys, and Kenneth K. Luce and John K. Maclver of counsel, all of Milwaukee, and oral argument by Mr. Luce and Mr. Maclver.
CURRIE, J.
Sec. 100.22, Stats., which the plaintiff seeks to have declared unconstitutional, is a criminal statute which prohibits a purchaser of milk, cream, or butterfat from paying different prices for such products in different communities of the state, unless justified by a commensurate difference in quantity or quality, or in transportation charges or other expense of marketing involved in the purchase. It is apparent from the express wording of the statute that its purpose is to prevent unfair discrimination in the purchase of such dairy products between different communities or sections of the state.
The brief of the co-operative asserts that among its producing members which it represents are 728 farmers who sell milk, cream, or butterfat to the plaintiff. The plaintiff is interested in having sec. 100.22, Stats., declared unconstitutional so that it can pay lower prices in certain communities than would be the case if compliance with this statute were required. On the other hand, it is to the interest of the co-operative, and its members who sell to the plaintiff, that sec. 100.22 be determined to be constitutional in order that the plaintiff not be permitted to reduce the prices paid by it for these dairy products anywhere in the state below the highest prices, which it is forced to pay to meet competition in any of the five communities of the state where it is engaged in business.
*247 In a common-law jurisdiction, such as Wisconsin, intervention is a matter of statutory creation, it not having been recognized at common law. 67 C. J. S., Parties, p. 975, sec. 53 b. Counsel for the co-operative ground their clients claimed right of intervention upon that portion of sec. 260.19, Stats., which provides that "when persons not parties have such interests in the subject matter of the controversy as require them to be parties for their protection, the court shall order them brought in."
It was the conclusion of the learned trial judge, as stated in his memorandum opinion, that while the co-operative and its farmer members have a general interest in the outcome of the pending action, this is not a sufficient interest to entitled them to be made defendants. The memorandum opinion points out that other producers of milk, cream, or butterfat, not members of the co-operative as well as all consumers of such products, also have this same general interest.
The attorney general is one of the three original defendants in the action, and it is his duty to uphold the constitutionality of the attacked statute. In so doing he is acting in a representative capacity in behalf of all the people of the state, including those who are members of the co-operative. This being so, we find it extremely difficult to perceive how their interests "require" that the co-operative be made a party for the protection of interests which are already being adequately protected. 39 Am. Jur., Parties, p. 934, sec. 60, states:
"It is universal that no one has any right to intervene in any action unless he has some right to protect which is not being protected."
Certainly the co-operative is not a necessary party to the controversy presented in the pending action. We hesitate to hold that it is even a proper party, absent any allegation in the petition for intervention that the attorney general has *248 failed in his duty to properly the defend the action and uphold the constitutionality of the challenged statute. Nevertheless, even if it were conceded to be a proper party, the co-operative cannot prevail on this appeal without demonstrating that the trial court abused its discretion in denying the application for intervention. Schatzman v. Greenfield (1956), 273 Wis. 277, 281, 77 N. W. (2d) 511; Fish Creek Park Co. v. Bayside (1956), 273 Wis. 89, 93, 76 N. W. (2d) 557; and Muscoda Bridge Co. v. Worden-Allen Co. (1928), 196 Wis. 76, 98, 219 N.W. 428.
This court held in the Muscoda Bridge Co. Case that the village of Muscoda and town of Eagle, because of being partly liable for the construction of the bridge, possessed sufficient interest in the subject matter of the controversy to make them proper parties to the action. The denial of their application for intervention by the trial court was affirmed as not being an abuse of discretion on the ground that their interest would be sufficiently protected by reason of the state and counties having been made parties. We deem such decision to be decisive of the instant appeal. Here the interests of the co-operative and its members are sufficiently protected by having the attorney general as a party defendant.
The provisions of the trial court's order granting to the co-operative the right to file a brief amicus curiae, and to make an oral argument at the conclusion of the trial, further negative any charge of abuse of discretion on the part of the trial court.
Counsel for the co-operative place great reliance upon the decision of the Montana court in State ex rel. Westlake v. District Court (1946), 119 Mont. 222, 227, 173 Pac. (2d) 896, 169 A. L. R. 827, which directed that intervention should be granted in a fact situation very similar to that in the instant case, where the validity of a statute was the subject matter of the controversy. However, the Montana statute which controlled reads very differently from our sec. *249 260.19. Such Montana statute grants to any person "who has an interest in the matter in litigation [or], in the success of either of the parties," the right to intervene in the action. Our statute does not go that far. It is also interesting to note that California, which has the same intervention statute as Montana, does not construe the same as liberally as does Montana. Jersey Maid Milk Products Co. v. Brock (1939), 13 Cal. (2d) 661, 91 Pac. (2d) 599.
The brief of Pure Milk Products also cites sub. (11) of sec. 269.56, Stats. (the Uniform Declaratory Judgments Act), which subsection provides, "When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration." To place the interpretation on such subsection that is here urged by the co-operative would render the Uniform Declaratory Judgments Act unworkable as a procedural device for securing a determination of the validity of a statute or ordinance. This is because it would require joining as parties all persons who might be affected by the outcome, who in the instant case might be thousands of dairy farmers. Such provision should be reasonably interpreted, keeping in mind the objectives of the act. Therefore, we construe such subsection as not requiring the joinder as parties, in a declaratory action to determine the validity of a statute or ordinance, of any persons other than the public officers charged with the enforcement of the challenged statute or ordinance. Such defendant public officers act in a representative capacity in behalf of all persons having an interest in upholding the validity of the statute or ordinance under attack. For a further discussion of this point, see Blooming Grove v. Madison, post, pp. 328, 334, 81 N. W. (2d) 713.
The co-operative is apprehensive that the attorney general will not diligently and adequately defend the action, and, if the action is determined adversely to the defendants, that he will not appeal such result to this court. Such fear is *250 grounded upon a letter which the attorney general wrote May 31, 1951, to the general manager of the co-operative. Such letter expressed the opinion that sec. 100.22, Stats., was unconstitutional under the decision of the United States supreme court in Fairmont Creamery Co. v. Minnesota (1927), 274 U.S. 1, 47 Sup. Ct. 506, 71 L. Ed. 893. For this reason the attorney general at that time declined to take action to enforce sec. 100.22. 52 Am. Jur., Taxpayers' Actions, p. 18, sec. 26, states:
"Public officers are always presumed, in the absence of any showing to the contrary, to be ready and willing to perform their duty; and until it is made to appear that they have refused to do so, or have neglected to act under circumstances rendering this equivalent to a refusal, there is no occasion for the intervention of the citizen for the protection of himself and others similarly situated."
This court cannot assume, because the attorney general nearly six years ago expressed a doubt as to the constitutionality of sec. 100.22, Stats., and at that time declined to institute a prosecution under such statute, that he will not at this time properly and diligently defend the action. Likewise, we cannot conceive of the attorney general failing to perform his duty of appealing, if the trial court should adjudge sec. 100.22 unconstitutional. The issue of the validity of such statute is of such state-wide concern that he would be derelict in his duty if he did not appeal an adverse judgment. We must presume that he will perform his duty until such time as we are presented with convincing evidence to the contrary.
By the Court.Order affirmed.
WINGERT, J., took no part.
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81 N.W.2d 597 (1957)
164 Neb. 45
Eldon FARR, Appellee,
v.
CAMBRIDGE CO-OPERATIVE OIL COMPANY, a corporation, Appellant.
No. 34082.
Supreme Court of Nebraska.
March 8, 1957
*599 Aten & Chadderdon, Holdrege, for appellant.
Morrison, Lyons & Starrett, McCook, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
CHAPPELL, Justice.
Plaintiff, Eldon Farr, brought this action against defendant, Cambridge Co-Operative Oil Company, a domestic corporation, seeking to recover damages for alleged personal injuries. Plaintiff predicated his right of recovery upon allegations that two named employees of defendant negligently and in disregard of plaintiff's safety set off an explosion while on duty and in furtherance of defendant's business; that defendant's managers, having knowledge of the facts while acting for and on behalf of defendant, negligently permitted the practice to continue; and that the permitting of such explosion on or about defendant's premises constituted an actionable nuisance which was the proximate cause of painful injuries in and around plaintiff's ears and partial loss of his hearing. In that connection, plaintiff relied upon the alleged negligence of defendant, and his nuisance theory was not an issue in the trial court. Thus, it was not presented or argued in this court.
Insofar as important here, defendant's answer denied generally; denied specifically that the alleged acts of its employees were within the scope of their employment or in the furtherance of defendant's business; and denied specifically that defendant or its managment had any knowledge of the circumstances alleged, or that its management suffered or permitted the practice to continue as alleged. Plaintiff's reply was a general denial.
The cause was tried to a jury whereat defendant's motions for directed verdict or dismissal, made at conclusion of plaintiff's evidence and again at conclusion of all the evidence, upon the ground of insufficiency of the evidence to support a verdict in favor of plaintiff, were overruled. After submission of the cause to the jury, it returned a verdict for plaintiff and judgment was rendered thereon. Subsequently defendant's motion for judgment notwithstanding the verdict or in the alternative for new trial, was overruled. Therefrom defendant appealed to this court, assigning among other alleged errors that the trial court erroneously failed to sustain defendant's motion for judgment notwithstanding the verdict. We sustain that assignment, which disposes of all others.
In that connection, defendant relied upon the general rule stated in Crane v. Whitcomb, 160 Neb. 527, 70 N.W.2d 496, *600 497, and cases cited therein, that: "The relation of master and servant does not render the master liable for the torts of the servant, unless connected with his duties as such servant or within the scope of his employment."
Concededly, the acts and conduct of defendant's employees, hereinafter recited, were not connected with their duties as servants of defendant or in the furtherance of defendant's business, or within the scope of their employment. Also, as stated in 57 C.J.S., Master and Servant, § 574(c), p. 327, citing authorities: "If the servant does an act merely to frighten a third person * * * or to perpetrate a joke on a third person, and the act is entirely disconnected from the purpose of the employment, the master is generally not liable therefor."
However, such rules do not solve the problem presented if plaintiff, by a preponderance of competent evidence, has established his right to recover under a related exception hereinafter set forth. In that connection, as stated in Restatement, Torts, s. 317, p. 860: "A master is under a duty to exercise reasonable care so to control his servant while acting outside the course of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control." Such statement was construed and applied in Ford v. Grand Union Co., 268 N.Y. 243, 197 N.E. 266, and Dincher v. Great Atlantic & Pacific Tea Co., 356 Pa. 151, 51 A.2d 710, citing numerous authorities. The latter case also cites numerous other related authorities in a note appended thereto.
We have examined the record in the light of the aforecited authorities, together with the rule that: "A motion for directed verdict or for judgment notwithstanding the verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence." Crane v. Whitcomb, supra.
It is undisputed that on November 29, 1954, between 4 and 5 p.m., plaintiff, a farmer customer of defendant, drove his Chevrolet truck up to the pumps at defendant's motor vehicle gasoline and repair service station to have it serviced. He ordered gasoline for his truck, went into the men's rest room, and shut the door. While plaintiff was therein two employees of defendant then on duty decided to have some fun and play a joke or prank upon plaintiff. Thus, they went over into defendant's wash, grease, and repair room where they took a firecraker, about 2 inches long and thick as a pencil, out of a drawer in an old school desk standing about midway along the south wall. In that connection, firecrackers were not sold or handled by defendant as any part of its business. One of defendant's employees lit the firecracker while the other held it and then either placed it in or dropped it in front of the rest room grated ventilator sitting upright on the floor. There the firecracker exploded, as a result of which plaintiff claimed to have received personal injuries and damages.
The record discloses that the drawers in the desk from which the firecracker was taken contained complete sets of tools for special types of work and two or three firecrackers. There is no evidence that such desk was ever used by the manager. It is not shown when such firecrackers were placed therein, but it is clear that W. E. *601 Jones, defendant's manager since January 1, 1953, did his work in the office and never knew that any firecrackers were in the desk or that any had been exploded by defendant's employees at or about the premises. He was not at the station at the time of the explosion on November 29, 1954, and knew nothing about it until 5 or 6 days afterward. At that time he inquired of his employees about it, and upon learning the facts, disposed of the remaining firecrackers and made it plain to defendant's employees that there should be no more such action.
A man who had been employed by defendant during 1949 and 1950 as a station attendant, and during 1952, 1953, and until July 5, 1954, as a propane truck driver when he was discharged by defendant's manager, testified as a witness for plaintiff. He testified substantially as follows: That while he was so employed, Ervin Bennett, Keith Golden, Burgess Fultz, Don Sickles, and W. E. Jones had respectively been managers for defendant. He testified that during such years of employment he had shot off some firecrackers himself and saw certain employees of defendant shoot off fair-sized firecrackers at least four times in defendant's workroom or outside defendant's station. He could not remember either the year or the time of year when this was done. He did not know who brought the firecrackers there or when that was done, but knew that they were in that desk or elsewhere in the workroom and some remained in the desk when he left. He once brought some small firecrackers upon the premises. He testified that as far as he knew no manager was ever there when firecrackers were taken out of the desk or when they were exploded, but they might have been. He testified that former managers Fultz and Bennett had directed defendant's employees not to bring to or explode any firecrackers on or about the station, and they obeyed, but he shot one off in the workroom sometime during 1954.
We find no competent evidence adduced by such witness from which it could be reasonably concluded that any manager of defendant ever knew or should have known that firecrackers were upon defendant's premises or that any had been previously exploded on or about defendant's premises by its employees. Plaintiff's contention otherwise is based entirely upon hearsay, speculation, and conjecture.
Another witness for plaintiff testified that once when he was in the rest room at defendant's station he heard an explosion which sounded like a shotgun. He testified that two named employees of defendant were around the station at that time although he did not see the firecracker or the explosion itself, but heard afterward that it was caused by a firecracker. He did not know who caused the explosion, and was not certain when it occurred, but thought it was in November 1953. He was certain that it did not happen in 1952 or 1954. The fact is, however, that one such employee named by him testified while a witness for plaintiff that he was not there at the time of such claimed explosion and knew nothing about it. Concededly, he never was employed by defendant until after August 1, 1954.
When such employee was called as a witness for defendant he testified that he lit the firecracker on November 29, 1954, but had never seen other firecrackers exploded in or about the station, and did not know who put firecrackers in the desk. After the explosion of November 29, 1954, occurred and manager Jones learned about it 5 or 6 days later, he reprimanded the witness and made it pretty plain to defendant's employees that it must never happen again.
Another witness for defendant testified that he had been employed at defendant's station full time from November 1945 to June 10, 1955, and heard but did not see the explosion on November 29, 1954. He never found any firecrackers around the station, but knew that there were some in the desk. *602 He never heard or saw any explosion of firecrackers there except once when two of defendant's employees exploded one while he was in the rest room some 4 or 5 years ago. He knew that several years before a buzz bomb had been placed in another employee's car out in defendant's car parking lot.
Another witness for defendant had been employed at the station for more than 3 years. He kept some firecrackers in the desk in the workroom. He admitted that another employee got the firecracker out of the desk and he held it while it was lit by the other employee, after which he dropped it in front of the rest room ventilator on November 29, 1954. Defendant's employees were friendly with plaintiff and had joked with him upon other occasions when he had been there. There is no evidence that the two who caused the explosion had any intention of harming him. The witness had exploded a firecracker only once 2 or 3 weeks before November 29, 1954, at the same place when another man was in the rest room and while the manager was away, and they all had a good laugh about it. He had heard that one firecracker had been so exploded sometime before he came there to work 3 years ago. The explosion on November 29, 1954, was the only one manager Jones ever knew about, and upon subsequently learning of it he made it plain that it should never occur again.
In the light of such evidence, it is conclusive that defendant's employees had no intention to harm plaintiff, and the explosion occurred upon the premises in possession of defendant but without using any chattel of defendant. It could be reasonably concluded that defendant's two employees so conducted themselves outside the scope of their employment by exploding a firecracker in or about a gasoline service station as to create an unreasonable risk of bodily harm to plaintiff. However, under the evidence adduced plaintiff was not injured by any facility or property of defendant. It could not be reasonably concluded with regard to the conduct involved that defendant's manager Jones timely knew or had any reason to know, or that any previous manager of defendant timely knew or had any reason to know, that they had the ability to control defendant's employees, or that they knew or should have known of the necessity and opportunity for exercising such control.
In Ford v. Grand Union Co., supra, [268 N.Y. 243, 197 N.E. 269] speaking of the duty of a master to control his servants on his business premises, it is said: "The duty, if any, is certainly not absolute. The owner of property not inherently dangerous, who does not knowingly permit others to put the property to a dangerous use, is not subject to any absolute duty to prevent unauthorized persons from putting it to a dangerous use. Here there must be at least notice that a dangerous use is threatened, and perhaps acquiescence in such use. Again, where there is no notice that an employee is in the habit of acting in a manner dangerous to others, there is no duty to control the actions of the employee outside the scope of his employment. Such limitations, at least, are dictated by fundamental principles of tort liability. Without them there would be no room for the doctrine that a person is responsible only for the result of his own fault or the fault of his servants, acting within the scope of their employment.
"In some cases, nevertheless, the possessor of property used for business has been held liable for failure to control his servants, though acting outside the scope of their employment, or other persons permitted to come upon or use such property. It is to be noted, however, that even in these cases, the courts held that the duty was not absolute, but relative. It arises only where, from the nature of the authorized use of property or from a course of conduct of visitors or of employees employed upon or in connection with the property, the possessor has notice that the use of his property, by persons acting without his authority but whom he could control, may cause danger *603 to members of the general public. When such duty exists, it is limited to the exercise of skill and care commensurate to the danger which may reasonably be anticipated. * * * Where danger cannot reasonably be anticipated, there is no duty to guard against it; after knowledge or notice of danger is present, there must be reasonable opportunity to guard against the danger. Here no want of care by the defendant is shown, for at the moment when duty arose, opportunity to use care disappeared." See, also, Dincher v. Great Atlantic & Pacific Tea Co., supra. Such statement and authorities heretofore cited are applicable and controlling here.
We conclude that the evidence was insufficient to support a verdict for plaintiff and judgment thereon. Therefore, the judgment should be and hereby is reversed and the cause is remanded with directions to sustain defendant's motion for judgment notwithstanding the verdict and dismiss plaintiff's action. All costs are taxed to plaintiff.
Reversed and remanded with directions.
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720 S.E.2d 461 (2011)
STATE
v.
FREEMAN.
No. COA11-691.
Court of Appeals of North Carolina.
Filed December 20, 2011.
Case Reported Without Published Opinion Vacated.
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81 So.3d 135 (2011)
STATE of Louisiana
v.
Paul COLLINS.
No. 11-KA-485.
Court of Appeal of Louisiana, Fifth Circuit.
December 13, 2011.
*136 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Charles T. Carr, III, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
Michael J. Rocks, Attorney at Law, Gretna, LA, for Defendant/Appellant.
Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
MARION F. EDWARDS, Chief Judge.
Defendant/appellant, Paul Collins ("Collins"), appeals his conviction and sentence on a charge of issuing a worthless check in violation of La. R.S. 14:71. Upon review, we reverse the conviction and sentence and enter a judgment of acquittal.
Collins was charged with the offense when a $5,000 check he wrote to Freddie Allen ("Allen") on August 18, 2006 for partial payment on a contract between the parties was returned for insufficient funds. Collins was arraigned and entered a plea of not guilty. After a bench trial on the merits, Collins was found guilty as charged and sentenced to serve two years at hard labor.[1] The trial court suspended the sentence and placed Collins on active probation for two years. Collins filed a timely appeal that was granted.
FACTS
Both Collins and Allen testified at trial. According to that testimony, Collins is the owner of Westchester South Properties, L.L.C.[2] ("Company"), a real estate holding company operating in the Baton Rouge *137 area. In July 2006, Collins entered into a verbal contract with Allen to provide the labor to operate heavy equipment needed to clear a site in Baton Rouge of underbrush and trees and other vegetation debris. After clearing the site, Allen was to burn the debris and lightly grade the land. The agreement was reduced to writing by Allen on August 9, 2006. The document is simple and provides the following: "Grub site, grub around trees, take up stumps, burn debris. Do not take down no [sic] trees. When job is half finish [sic] will receive one half moneys [sic] due." The total amount due on the contract is $10,000.
Collins testified that he was dissatisfied with Allen's work on the project and spoke to him about it. Collins maintains Allen was to supply two workers to operate the heavy equipment. Based on that agreement, the Company leased two pieces of equipment. However, Allen only supplied one worker and, as a result, the project went much longer than originally estimated, causing the Company to expend an additional $20,000 for equipment rental. Nevertheless, Collins wrote the check for $5,000 on August 18, 2006 for half the amount due under the contract.
However, subsequently, he went to Allen's home to discuss completion of the job. Collins stated that Allen had failed to clean the equipment, and there was still "grub" remaining on the site. Further, the debris had not been burned and the area had not been graded. Collins also discussed the cost overruns caused by Allen's failure to do the job as agreed. According to Collins' testimony, Allen tried to press for the final payment of $5,000. When Collins refused to pay that, Allen indicated he had taken on another job and would not return to the Company's work site. Collins stated that he told Allen not to negotiate the original $5,000 check because the funds would not be in the bank.
Collins testified that the Company had in excess of $7,000 in the checking account when he wrote the check to Allen in August. However, after his meeting with Allen, Collins attempted to stop payment on the check but was unable to do so. Collins explained that, at the time he wrote the check, he was confident Allen would complete the job and had sufficient funds in the bank to cover the check. But, after his meeting with Allen, he was certain that Allen would not complete the job. Collins testified that it was never his intention to cheat or defraud Allen.
Allen's testimony corroborates that of Collins insofar as the written agreement was a contract between the parties and that a check was given to him by Collins for $5,000 when the halfway mark on the work was done. However, Allen maintains he completed all of the work under the contract except the burning of the debris. Allen explained that he did not get a permit to burn the piles of debris and was stopped by Baton Rouge fire officials when smoke from the fire caused traffic problems on a nearby road. Allen went back the next day, but the backhoe was gone, so he could not continue with the disposal of the debris.
Allen stated that he completed the work under the contract and was owed the entire amount. He testified that, when he deposited the check Collins had given him, it was returned for insufficient funds. Allen also testified that he sent a demand notice to Collins for the $5,000, but he admits it was sent to an incorrect address and probably never reached Collins. He called the district attorney and proceeded with criminal charges. Allen did not file a civil suit in the matter.
The State presented testimony from Monica Dupeire, Vice President and Security *138 Officer for First Bank & Trust. She came in response to a subpoena duces tecum for the Company's bank records as the custodian of those records. Ms. Dupeire testified that check No. 1633, dated August 18, 2006 and made payable to Allen, was presented for payment of September 12, 2006, and it was returned for insufficient funds. The check was again presented for payment on September 22, 2006 and was again marked NSF. It was also marked not to be presented for payment again.
The Company's bank records introduced show that the balance on August 31, 2006 was $7,342.53. On September 1, 2006, the balance was $5,977.53. However on September 12, 2006, when the check was presented for payment, the balance was insufficient to cover the $5,000 check and would have created a deficit balance of $3,617.95. Because the Company had no overdraft protection on the account, the $5,000 was returned for insufficient funds.
After considering the testimonial and documentary evidence, the trial court rendered a verdict of guilty as charged.
LAW AND ANALYSIS
On appeal, Collins maintains the State presented insufficient evidence to sustain the trial court's verdict of guilty as charged to issuance of a worthless check. Collins contends that no reasonable trier of fact could have found that he was guilty of issuing a worthless check, because the evidence showed there were sufficient funds to cover payment of the check at the time it was issued. Collins also asserts that the trial judge erroneously considered not only the point in time that the check was written, but also when it was presented for payment by the holder. He further argues there was not sufficient evidence to prove that Collins intended to defraud Allen.
The State responds that the evidence was sufficient to establish that Collins had the intent to defraud and that he knew at the time he issued the check he would have insufficient funds to cover the check since he intended to go to the bank to remove those funds.
In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt.[3]
In cases involving circumstantial evidence, the trial court must instruct the jury that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence."[4] The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.[5]
In the matter before us, Collins was convicted of issuing a worthless check, a violation of La. R.S. 14:71. To obtain a conviction for issuing a worthless check, the State is required to prove beyond a reasonable doubt that: (1) defendant issued, in exchange for anything of value, whether the exchange is contemporaneous *139 or not; (2) a check, draft or order for the payment of money upon any bank or other depository; (3) knowing at the time of the issuing that the account on which drawn has insufficient funds, and the defendant has insufficient credit with the financial institution on which the check is drawn to have the instrument paid in full on presentation; and (4) the instrument was issued with intent to defraud.[6]
Subparagraph (A)(1)(f), (2) of La. R.S. 14:71 creates a statutory rebuttable and permissible presumption of the issuer's intent to defraud when the offender fails to pay the amount of the worthless check within ten days of the receipt of notification by certified mail of nonpayment of the check, sent to the address shown on the check or the address shown in the records of the bank on which the check was drawn.[7]
The State refers this Court to State v. Mosby,[8] and State v. Washington,[9] in support of its position that its burden of proof was met and the evidence was sufficient to convict Collins. In Mosby, defendant wrote a $250 check to Matranga Motors for vehicle repairs on April 1. When the check was presented for payment on April 5, there were insufficient funds in the account to cover it. A letter notifying defendant of the nonpayment was mailed to defendant, which defendant signed for; however, he never made payment. On appeal, defendant argued that there was insufficient evidence to prove that he had the intent to defraud and that he knew at the time he issued the check there would be insufficient funds for the payment of it upon presentation. Defendant asserted that his bank statement showed a balance of $556.91 on April 1, an amount sufficient to cover the check issued that date. The Second Circuit noted the bank statement showed that, on the next day, April 2, the balance was $197.76, an amount insufficient to cover the outstanding check to Matranga Motors. The Second Circuit also noted that evidence was sufficient to establish the rebuttable presumption of fraud provided for in La. R.S. 14:71(A)(1)(f), (2) because a certified letter was sent to defendant. Based on that evidence, the Second Circuit found no error in the trial court's conclusion that defendant knew at the time of issuance that he would have insufficient funds to cover the check, and he did not rebut the presumption of intent to defraud.
In Washington, defendant bought a new car on April 1 by writing a check for $5,000 to Twin City Pontiac/Jeep for the down payment and by financing the remainder. The check was deposited on April 5 and returned to the dealer because of insufficient funds. A registered letter demanding payment was mailed to defendant and received by her, but she did not respond. Defendant ignored repeated demands to pay off the check or return the car, and she did not pay any monthly installment due under the financing contract. Six months after writing the check, defendant returned the car with 19,000 miles on the odometer. She admitted at trial she knew she did not have sufficient funds in her account to satisfy the $5,000 check when she wrote it. The Second Circuit found the evidence sufficient to prove beyond a reasonable doubt that defendant *140 intended to defraud Twin City. Defendant's assignment regarding the State's proof of defendant's knowledge was not addressed because it was not briefed.
We find the State's reliance on the above two cases is misplaced. In the instant case, funds sufficient to cover the $5,000 check were in the bank at the time the check was issued, and, according to bank records and testimony, remained there for several weeks after the issuance of the check. Although, at some point between the issuance of the check and its tender for payment, Collins withdrew $5,000, it was clearly because of a contract dispute between the parties. Unlike the defendants in Mosby and Washington, Collins did not receive a letter that would trigger the rebuttable presumption in La. R.S. 14:71(A)(1)(f), (2).[10] Allen admits he sent a certified letter to Collins at an incorrect address, even though he had the correct address on the check and the contract. Thus, the State had to prove, beyond a reasonable doubt, that Collins had the intent to defraud Allen without the benefit of the presumption in La. R.S. 14:71.
The State has the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute the defendant's guilt.[11] The State failed to prove that Collins knew at the time of issuance of the check that the account had insufficient funds. In fact, the evidence proves otherwise. Further, there is no evidence establishing that Collins knew when he issued the $5,000 check that he would then become dissatisfied with the work and go to the bank and remove the funds. Additionally, there is no evidence in the instant case that Collins intended to defraud Allen when he issued the check. It is clear from the testimony of both Collins and Allen that this is a contract dispute. Allen admitted he sent a letter to Collins about the NSF check to an incorrect address. We also note the testimony at trial was consistent with a breach of contract action, rather than a criminal prosecution. Both parties disagree with the extent of completion of the contract and the amount owed.
Accordingly, we find that the evidence was insufficient under the Jackson standard to support the conviction. We reverse the conviction and sentence, enter a judgment of acquittal, and order Collins discharged.[12]
REVERSED; JUDGMENT OF ACQUITTAL RENDERED
NOTES
[1] Although defense counsel made an oral motion to reconsider sentence, the record does not reflect that a written motion was filed. Since sentencing is not at issue in this appeal, we consider that issue to be abandoned and will neither consider it, nor remand the matter to the trial court for consideration.
[2] Documentation in the records confirms this testimony.
[3] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[4] La. R.S. 15:438.
[5] State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83.
[6] La. R.S. 14:71; State v. Washington, 29,784 (La.App. 2 Cir. 9/26/97), 700 So.2d 1068, 1072.
[7] State v. Mosby, 42,519 (La.App. 2 Cir. 5/18/07), 956 So.2d 843, writ denied, 07-1457 (La. 1/7/08), 973 So.2d 731, 845.
[8] 42,519, pp. 1-3 (La.App. 2 Cir. 5/18/07), 956 So.2d 843.
[9] 29,784 (La.App. 2 Cir. 9/26/97), 700 So.2d 1068.
[10] The offender's failure to pay a check, draft, or order, issued for value, within ten days after notice of its nonpayment upon presentation has been deposited by certified mail in the United States mail system addressed to the issuer thereof either at the address shown on the instrument or the last known address for such person shown on the records of the bank upon which such instrument is drawn or within ten days after delivery or personal tender of the written notice to said issuer by the payee or his agent, shall be presumptive evidence of his intent to defraud.
[11] La. R.S. 15:271.
[12] Because of our disposition in this case, it is unnecessary to discuss the second assignment of error or any errors patent found in the record.
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82 So.3d 1098 (2012)
Lula LONGLEY, Appellant,
v.
MIAMI-DADE COUNTY SCHOOL BOARD and Gallagher Bassett Svcs., Appellees.
No. 1D11-1467.
District Court of Appeal of Florida, First District.
February 2, 2012.
Rehearing Denied March 29, 2012.
*1099 William F. Souza of the Law Offices of William F. Souza, P.A., North Miami Beach, for Appellant.
Kimberly J. Fernandes of Kelley, Kronenberg, Gilmartin, Fichtel, Wander, Bamdas, Eskalyo & Dunbrack, P.A., Fort Lauderdale, for Appellees.
PER CURIAM.
In this workers' compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying benefits on the ground the statute of limitations had run. Claimant asserts five distinct arguments for reversal; one has merit and, because it is dispositive, we need not address the other four.
FACTS
The facts of this case are undisputed. On March 30, 2009, prior to the final adjudication of all claims raised in a pending 2003 petition for benefits (PFB), Claimant filed another PFB seeking an appointment with an authorized orthopedist (specifically, either Dr. Brown or Dr. Hyde, both authorized in the past), and costs and attorney's fees. The Employer/Carrier (E/C) filed a response asserting that it had set an appointment with Dr. Hyde, and defending against the costs and fees as not due or owing. Claimant attended the scheduled appointment on April 24, 2009.
On July 22, 2009, both parties' counsel requested cancellation of a mediation set for July 23, 2009; their letter to the mediator states, in part:
The issue in that PFB was over the authorization and scheduling of an orthopedic appointment for the claimant with her authorized doctor, and that has since taken place and been resolved. Accordingly, there are no other outstanding issues other than attorney's fees and costs, over which jurisdiction remains reserved in the JCC.
The mediation was cancelled.
On March 3, 2010, Claimant filed a second PFB, seeking authorization of an "alternative orthopedist" or, "if carrier denies the request for the alternative," a follow-up appointment with Dr. Hyde, as well as penalties, interest, costs, and attorney's fees. In response, the E/C denied the entire claim as barred by the statute of limitations. In the order on appeal, the JCC agreed with the E/C that the statute of limitations barred the claim, reasoning in part that the 2009 PFB was no longer pending because the letter to the mediator "indicat[ed] a resolution of the issues" in that PFB and, therefore, the letter operated as a voluntary dismissal of the 2009 PFB. In support, the JCC cited Louis v. Hooters of West Palm Beach, 36 So.3d 701 (Fla. 1st DCA 2010), and Bednarik v. Ebasco Services, 527 So.2d 251 (Fla. 1st DCA 1988), for the proposition that a resolution *1100 of all issues serves as a voluntary dismissal of the claims.
APPLICATION OF LAW
Claimant's March 3, 2010, PFB was not barred by the statute of limitations, because the parties had not settled the active claims for entitlement to attorney's fees and costs brought by the 2009 PFBthe July 2009 letter plainly states this by the wording "no other outstanding issues other than attorney's fees and costs," and confirms this fact by noting that any ruling on fees and costs is reserved. The facts of the cases cited by the JCC, in contrast, are that all of the issues had been resolved. See Louis, 36 So.3d at 701-02 (noting claimant's "Notice of Resolution of Issues" advised JCC "that the parties had resolved the claim"); Bednarik, 527 So.2d at 252 (noting "stipulation for cancellation of hearing" asserted that "the matters scheduled to be heard at that time have been resolved by the parties"). Because Louis and Bednarik are distinguishable on their facts, the JCC erred in analogizing the instant case to them.
More apt analogy is made to Airey v. Wal-Mart/Sedgwick, 24 So.3d 1264 (Fla. 1st DCA 2009), John Ringling Towers v. Klein, 573 So.2d 154 (Fla. 1st DCA 1991), and Gilman v. South Florida Water Management District, 584 So.2d 591 (Fla. 1st DCA 1991). In Airey, this court held the timely filed PFB, because it remained pending, "tolled" the statute of limitations. See 24 So.3d at 1265. In Klein, this court held that the statute of limitations "remained open" due to pending claims for "payment for prosthetic devices and medical care related to the amputation site." See 573 So.2d at 155. The procedurally more intricate case of Gilman indicates that, given the opportunity, this court will apply the reasoning in Airey and Klein equally where the pending claims are for attorney's fees. See Gilman, 584 So.2d at 596. Applying these cases, we hold the proper outcome here is to permit the 2010 PFB to go forward, because it was not barred by the statute of limitations, as it was filed while the 2009 PFB was still pending.
The E/C argues that because no deadline (other than the statute of limitations) exists for the pursuit of attorney's fees, see Villazano v. Horace Bell Honey Co., 928 So.2d 515 (Fla. 1st DCA 2006), or costs, see Shackleford v. CTL Distribution, 25 So.3d 667 (Fla. 1st DCA 2010), an active outstanding claim for such should not affect the statute of limitations. On the contrary, here, the fee claim, premised as it was on the benefit sought in the 2009 PFB, was ripe at the time the benefit was provided; Claimant sought fees in the 2009 PFB, but had she not sought fees at that time (or at some time prior to the resolution of the claim for the benefit) she would have waived entitlement to such. See Georgia-Pacific Corp. v. DeLoach, 603 So.2d 702 (Fla. 1st DCA 1992) (holding claimant waived right to fee for services resulting in order awarding appointment of physician, because motion for appointment of physician did not request fee, fee claim became ripe at time of hearing resulting in the award, and order did not address fee entitlement or reserve jurisdiction to do so at later date). Because that claim for fees and costs remains pending, the JCC erred in dismissing the 2010 PFB on the basis that it was barred by the statute of limitations.
REVERSED and REMANDED for further proceedings.
THOMAS, ROBERTS, and CLARK, JJ., concur.
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83 So.3d 591 (2010)
EX PARTE CHRISTOPHER KEION DONALD.
Nos. 1090526 (CR-08-1279).
Supreme Court of Alabama.
April 9, 2010.
DECISION WITHOUT PUBLISHED OPINION
Cert. denied.
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222 S.W.3d 832 (2007)
William CHOICE, Appellant
v.
Richard A. GIBBS and Mary C. Edwards, Appellees.
No. 14-05-01068-CV.
Court of Appeals of Texas, Houston (14th Dist.).
April 12, 2007.
*833 John C. Osborne and Robert Teir, Houston, for appellants.
A. Scott Alford, Derek Daniel Bauman, Edgar Saldivar, Houston, for appellees.
Panel consists of Justices FOWLER, EDELMAN, and FROST.
SUBSTITUTE OPINION[1]
KEM THOMPSON FROST, Justice.
In this negligence case, a contractor appeals a no-evidence summary judgment *834 rendered in favor of the homeowners he sued after allegedly suffering an electrocution while performing work on their premises. Concluding that a genuine issue of material fact as to causation precludes summary judgment, we reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant/plaintiff William Choice was installing a bathtub at the residence of appellees/defendants Richard A. Gibbs and Mary C. Edwards. Choice alleged that while at their home to perform this work, he came into contact with loose wires protruding from the walls on the staircase, and, as a result, he was electrocuted. Although he attempted to continue the bathtub installation, Choice grew very weak and had difficulty breathing. An on-site co-worker called an ambulance, which arrived at the scene immediately. Choice underwent an electrocardiogram ("EKG") and several other diagnostic tests, and was informed that he had suffered a heart attack.
Choice brought a negligence suit against the homeowners, asserting that they were negligent in leaving live electrical wires exposed at a workplace where an invitee could be electrocuted. The homeowners filed a no-evidence motion for summary judgment contending that Choice had no evidence of causation. In his response to the no-evidence motion, Choice included his pleadings, his own deposition testimony, and the affidavit of Dr. Louis Train, a medical doctor. The homeowners filed objections to Dr. Train's affidavit. In a filing in the trial court, Choice stated that he intended to supplement his response with the affidavit of Dr. Mark Levinson as evidence to support Choice's position that the alleged electrocution caused his heart attack. The homeowners filed supplemental objections against Dr. Levinson's affidavit.
Before ruling on the summary-judgment motion, the trial court sustained the homeowners' objections to Dr. Levinson's affidavit, struck that affidavit, and stated in an order that the court would not consider Dr. Levinson's affidavit. Although the homeowners submitted a proposed order for the trial court to use in sustaining their objections to Dr. Train's affidavit, the trial court did not sign this proposed order, and the record contains no ruling on the homeowners' objections to Dr. Train's affidavit. The trial court subsequently granted the homeowners' motion for summary judgment.[2]
II. ISSUE PRESENTED
Choice asserts on appeal that the trial court erred in granting the no-evidence *835 motion for summary judgment because he provided an expert affidavit stating that his electrocution was the cause of his subsequent heart attack.[3]
III. SUMMARY JUDGMENT ANALYSIS
In reviewing a no-evidence summary judgment, we ascertain whether the nonmovant pointed out summary-judgment evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex.2002). We take as true all evidence favorable to the nonmovant, and we make all reasonable inferences therefrom in the nonmovant's favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). A no-evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary-judgment evidence that raises a genuine issue of material fact. Id. at 917. When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).
It was Choice's burden to respond to the homeowners' motion for summary judgment with competent summary-judgment evidence that raised a genuine issue of material fact. Dolcefino, 19 S.W.3d at 917. Choice contends the summary-judgment evidence raised a fact issue as to causation. Before tackling this issue, we first address whether expert testimony was required to raise a fact issue as to whether the homeowners' alleged negligence in leaving wires exposed caused Choice's injuries.
A. Is expert testimony required to raise a fact issue as to whether Choice's heart attack was caused by the homeowners' negligence?
To prevail on his premises-liability theory, Choice must show that (1) the homeowners had actual or constructive knowledge of some condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) the homeowners did not exercise reasonable care to reduce or eliminate the unreasonable risk of harm, and (4) the homeowners' failure to use reasonable care to reduce or eliminate the unreasonable risk of harm proximately caused Choice's injuries. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex.2000).[4] Proximate cause has two elements: cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). The test for cause in fact is *836 whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003).
In response to the homeowners' no-evidence motion for summary judgment, Choice had the burden to produce summary-judgment evidence that the occurrence in question was a foreseeable result of a failure by the homeowners to use reasonable care to reduce or eliminate an unreasonably dangerous premises condition, and that their failure was a substantial factor in causing Choice's injuries. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). The causal link between the event forming the basis of the suit and the plaintiff's injuries must be shown by competent evidence. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984). Whether expert testimony is necessary to prove a matter or theory is a question of law. FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 89 (Tex. 2004); see also Schneider v. Haws, 118 S.W.3d 886, 893 (Tex.App.-Amarillo 2003, no pet.) (stating that expert testimony not always required to establish causation).
We conclude that the Supreme Court of Texas's opinion in Insurance Co. of North America v. Kneten answers the question of whether Choice needs expert testimony to prove the cause-in-fact prong of proximate cause. 440 S.W.2d 52 (Tex. 1969). Kneten was a workers' compensation case in which an employee suffered a heart attack shortly after being electrocuted on the job. Id. at 52-53. The employee-plaintiff, Kneten, was working while standing on a ladder and drilling a hole into a window frame. Id. A bare wire in the cord to the drill hit his wrist, and he felt an electric shock go through his body. Id. Kneten finished drilling, but his physical condition continued to worsen, forcing him to the go to the doctor. Id. It was later determined that Kneten had suffered a heart attack and that he suffered from hardening of the arteries at the time of his electrocution and heart attack. Id.
At trial, only one medical expert, Dr. Sloan, testified. He stated that he could not say without medical doubt that the occurrence on the ladder had caused Kneten's heart attack, but that it was a "strong possibility." Id. Dr. Sloan testified that the electric shock "`could have' been a contributing factor," but he did not testify that, in his opinion, the electrocution caused Kneten's heart attack within a reasonable medical probability. See id. at 53.
After the trial court rendered judgment in favor of Kneten based on the jury's verdict, the insurer appealed, asserting the evidence at trial was legally insufficient as to causation because there was no expert testimony showing a reasonable medical probability that the occurrence caused Kneten's heart attack. See id. The Supreme Court of Texas concluded that such expert testimony was unnecessary and that the evidence at trial was legally sufficient. See id. at 53-54. Our high court held the following was sufficient to raise a genuine issue of material fact as to causation:
(1) lay testimony providing direct evidence of the prompt onset of symptoms following electrocution, and
(2) expert medical testimony that such an electrocution could have caused the plaintiff's heart attack.
See id. at 54. Thus, under Kneten, when the onset of a heart attack occurs immediately after an electrocution, it is not necessary for an expert to testify to a "reasonable medical probability" that the electrocution caused the plaintiff's damages. Id.
Kneten was a workers' compensation case, and the case before us is not. However, *837 the Kneten court did not rely upon any statute or principle unique to the workers' compensation context, and the cause in fact principles in workers' compensation cases are the same as those in common-law negligence cases such as this one. See Parker v. Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d 43, 45 (Tex. 1969) (stating that the principles in workers' compensation cases for determining whether a worker's employment was cause in fact of his injury are the same as those in common-law negligence cases for determining whether a party's negligence was cause in fact of the plaintiff's injury). Therefore, we conclude that, under binding precedent, Choice was not required to produce expert testimony that the electrocution caused his damages within a "reasonable medical probability."[5]See Kneten, 440 S.W.2d at 54.
B. Is there a fact issue as to cause in fact?
Both in the trial court and on appeal, the homeowners assert that, although Choice suffered a heart attack, there is no evidence the heart attack was caused by any electrocution while Choice was working in their residence. There is no dispute that Choice suffered a heart attack.[6] Furthermore, the summary-judgment evidence contains excerpts from Choice's deposition in which he testifies to the prompt onset of heart-attack symptoms after being electrocuted when he touched exposed wires while working at the homeowners' residence.[7] Therefore, the first prong of Kneten is satisfied because there is lay testimony *838 providing direct evidence of the prompt onset of symptoms following electrocution. See Kneten, 440 S.W.2d at 53-54.
The summary-judgment evidence also contains Dr. Train's affidavit, which the trial court did not strike. In this affidavit, Dr. Train states in pertinent part:
(1) My name is Dr. Louis Train. I am at least eighteen years of age, of sound mind, and capable of making this statement, and swearing to its truthfulness.
(2) I am a doctor of medicine, practicing in Houston, Texas for over 25 years.
(3) I have reviewed the medical information concerning the heart attack suffered by Willie Choice.
(4) I understand that Mr. Choice was subject to electrocution.
(5) It is my opinion, based on common medical belief, my experience, and my medical knowledge, that people with some arterial blockage are not necessarily going to suffer a heart attack. Rather, some people with this condition to [sic] suffer a heart attack, and some do not.
(6) Similarly, some people with arterial blockage may require surgery; some will not.
(7) A cardiac situation that features arterial blockage would be exacerbated by an electrocution.
(8) It is my belief, based on the medical records that I have reviewed, that an electrocution caused the heart attack suffered by Mr. Choice.
The homeowners assert that Dr. Train's affidavit is not admissible in evidence for various reasons, including failure to show how Dr. Train is qualified to testify and lack of reliability under Texas Rule of Evidence 702. However, this court cannot address the alleged inadmissibility of Dr. Train's affidavit because the homeowners waived their evidentiary objections to Dr. Train's affidavit by failing to obtain a ruling from the trial court on these objections. See, e.g., Vansteen Marine Supply, Inc. v. Twin City Fire Ins. Co., 93 S.W.3d 516, 520 n. 3 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (holding appellee waived its numerous objections to summary-judgment evidence by not obtaining rulings from trial court); Rogers v. Continental Airlines, Inc., 41 S.W.3d 196, 200 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (holding that party objecting to summary-judgment evidence must obtain rulings on objections in the trial court; otherwise, the objections are waived and the evidence will be considered in reviewing the summary judgment); Dolcefino, 19 S.W.3d at 926-27 (emphasizing the need for a party objecting to summary-judgment evidence to obtain a written ruling on the objections and holding that, on record before it, appellate court could not presume an implicit ruling by the trial court on objections to summary-judgment evidence based on trial court's ruling on summary-judgment motion). Although the trial court concluded that Dr. Train's affidavit did not raise a genuine issue of material fact precluding summary judgment, the court never ruled on the homeowners' objections to Dr. Train's affidavit.
The homeowners also assert on appeal that Dr. Train's affidavit is conclusory, and they still may assert this argument despite their failure to obtain a ruling in the trial court on their objections. See Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.2004) (stating that even unobjected-to conclusory testimony does not raise a fact issue). *839 However, as discussed above, the Kneten court concluded that a medical expert's simple statements to the effect that the electrocution of the plaintiff could have caused the plaintiff's heart attack constituted sufficient expert testimony to raise a fact issue as to cause in fact in a case in which there was lay testimony that the plaintiff experienced heart-attack symptoms shortly after being electrocuted. See Kneten, 440 S.W.2d at 53-54 (concluding medical expert's simple statements that there was a "strong possibility" the electrocution precipitated Kneten's heart attack and that the electrocution "`could have' been a contributing factor" were sufficient expert testimony to raise a fact issue on causation in fact when combined with lay testimony regarding the prompt onset of heart-attack symptoms following electrocution). Under Kneten, Dr. Train's testimony that he believes the electrocution caused Choice's heart attack, combined with the evidence of the prompt onset of heart-attack symptoms following electrocution, also raises a genuine fact issue. See id. Likewise, although the homeowners claim the evidence did not raise a fact issue because there was no expert testimony based on a reasonable medical probability, the Kneten court held that such expert testimony is unnecessary under these circumstances. See id. Under the controlling precedent of Kneten, which this court must follow, the summary-judgment evidence raised a genuine issue of material fact as to whether the alleged negligence of the homeowners was the cause in fact of Choice's heart attack and damages. See id.
C. Is there a fact issue as to foreseeability?
We now must determine if there is a fact issue regarding the foreseeability element of proximate cause. In the context of proximate cause, foreseeability requires that a person of ordinary intelligence would have anticipated the danger created by a negligent act or omission, although it is not required that such a person would anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence. Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex.1998); Yarborough v. Erway, 705 S.W.2d 198, 203 (Tex.App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). The question of foreseeability involves a practical inquiry based on common experience applied to human conduct. Read, 990 S.W.2d at 737 (quotations omitted).
In their motion for summary judgment, the homeowners challenged only the essential element of causation.[8] We already have concluded that there is a genuine issue of material fact regarding cause in fact. Therefore, in determining whether there is a fact issue as to foreseeability, we presume for the sake of argument the following:
(1) The homeowners had actual or constructive knowledge of a condition on their premises that posed an unreasonable risk of harm.
(2) The homeowners did not exercise reasonable care to reduce or eliminate the unreasonable risk of harm.
(3) The homeowners' failure to use reasonable care to reduce or eliminate the unreasonable risk of harm was a cause in fact of Choice's injuries.
We conclude that there is a genuine issue of material fact as to whether a person of ordinary intelligence would have anticipated (1) the danger created by failing to reduce or eliminate the unreasonable risk of harm caused by live electrical *840 wires extending out of a hole in the wall in a house in which contractors were working and (2) that a contractor working in the house could be electrocuted and injured by coming into contact with the exposed wires. See Read, 990 S.W.2d at 737 (holding there was a genuine issue of fact as to the foreseeability element of proximate cause); Wald-Tinkle Packaging & Dist., Inc., No. 01-02-01100-CV, 2004 WL 2966293, at *3 (Tex.App.-Houston [1st Dist.] Dec. 23, 2004, no pet.) (mem op.) (same). Therefore, the summary-judgment evidence raises a genuine issue of material fact as to whether it was foreseeable that the homeowners' alleged negligence would cause Choice's damages.
Because the summary-judgment evidence raises a genuine issue of fact as to the essential element of proximate cause, we sustain Choice's first issue, reverse the trial court's judgment, and remand for further proceedings consistent with this opinion.[9]
NOTES
[1] We overrule appellees' motion for rehearing, withdraw the opinion issued on February 13, 2007, and issue this substitute opinion in its place.
[2] In its order granting summary judgment, the trial court stated that the court had "sustained, in part, Defendants' objections to these affidavits as reflected in previous orders of this Court." By this statement the trial court refers to the prior rulings of the court and does not purport to rule on any of the homeowners' objections. This statement is consistent with the trial court's previous rulings in which it sustained the homeowners' objections to Dr. Levinson's affidavit and did not rule on their objections to Dr. Train's affidavit. The trial court did not state that it had sustained or otherwise ruled on any objections to Dr. Train's affidavit. In the summary-judgment order, the trial court also states that it found the affidavits of both Dr. Levinson and Dr. Train were insufficient to carry Choice's burden to bring forth legally sufficient evidence to raise a genuine issue of fact on causation. As to Dr. Train's affidavit, this finding is consistent with the court's failure to rule on the homeowners' objections to this affidavit. Given that this court can dispose of this appeal without relying on Dr. Levinson's affidavit, we need not address the effect, if any, of this language on the trial court's prior order striking Dr. Levinson's affidavit in its entirety.
[3] In his second issue, Choice asserts the trial court erred in requiring him, in a non-medical malpractice case, to produce an expert report similar to that required by statute in medical-malpractice cases. However, the record does not reflect that the trial court required Choice to provide the type of expert report that would be required in a medical-malpractice case. Accordingly, we overrule Choice's second issue.
[4] Choice also alleged a negligent-activity theory. Specifically, he alleged the homeowners failed to discover and remove the exposed wiring within a reasonable time, failed to warn him of an unsafe condition, and breached their duty to keep the area where contractors would be working free and clear of exposed electrical wiring. The gravamen of Choice's complaint, however, is not that of negligent activity but that the homeowners were negligent in failing to keep the premises safe from a known, dangerous condition, that is, exposed electrical wires. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992) (distinguishing between negligent-activity claim and premises-liability claim). Accordingly, Choice's negligence claim is one for premises liability rather than negligent activity.
[5] Prior to 1989, there was no specific statute dealing with the compensability of heart attacks under the workers' compensation statute. See Transcontinental Ins. Co. v. Smith, 135 S.W.3d 831, 836 (Tex.App.-San Antonio 2004, no pet.). Following changes to the workers' compensation statute in 1989, a heart attack is a compensable injury under that statute only if:
(1) the attack can be identified as:
(A) occurring at a definite time and place; and
(B) caused by a specific event occurring in the course and scope of the employee's employment;
(2) the preponderance of the medical evidence regarding the attack indicates that the employee's work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the attack; and
(3) the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden stimulus.
TEX. LAB. CODE ANN. § 408.008 (Vernon Supp.2006).
In workers' compensation cases, a question might arise regarding the extent to which the Kneten opinion has survived the enactment of this statute. See Transcontinental Ins. Co., 135 S.W.3d at 836. However, we need not decide that issue in this case because section 408.008 of the Texas Labor Code does not apply to this case. See TEX. LAB. CODE ANN. § 408.008 (Vernon 2006). Thus, for the purposes of our analysis in determining whether the evidence raised a genuine issue of material fact as to the issue of causation, we apply the standard set forth in Kneten.
[6] In their motion for summary judgment, the homeowners assert that Choice suffered an "acute myocardial infarction" but that it was not caused by any alleged electrocution. On appeal, we accept as true Choice's assertion in his statement of facts that emergency medical personnel informed him that he had suffered a heart attack. See TEX. R. APP. P. 38.1(f) (stating that, in civil cases, appellate courts will accept as true the facts stated in appellant's statement of facts unless another party contradicts them). Not only did the homeowners not contradict this statement in their appellate brief, they again asserted that Choice had suffered a heart attack but that it was not caused by any alleged electrocution.
[7] In these deposition excerpts, Choice testifies as follows:
Immediately upon coming into contact with the wires, he was shocked and stumbled over into his brother-in-law, who was working with him at the time.
Immediately thereafter, Choice became weak and had difficulty breathing.
Although Choice tried to resume installation of the bathtub, he reached a point at which he felt like he was having a heart attack and asked his brother-in-law to call an ambulance.
An ambulance arrived and the paramedics administered an EKG and several other diagnostic tests and gave him "nitro."
[8] Our decision in this appeal does not affect the homeowners' right to challenge other essential elements on remand, should they wish to do so.
[9] Because there is a genuine issue of material fact without considering Dr. Levinson's affidavit, we need not and do not include that affidavit, or any issue relating thereto, in our analysis.
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82 So.3d 25 (2010)
RASHAD LEE
v.
ALABAMA DEP'T OF CORR.
No. 2090600.
Court of Civil Appeals of Alabama.
June 1, 2010.
DECISION WITHOUT PUBLISHED OPINION
Dismissed for lack of prosecution.
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85 So.3d 488 (2012)
ALESEVIC
v.
STATE.
No. 1D11-0360.
District Court of Appeal of Florida, First District.
April 18, 2012.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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84 So.3d 373 (2012)
Jacquelyn BENNETT and Bobbi Sue Miller, Petitioners,
v.
Marie-Christine BERGES, Chrisitan Devocht and Jean-Luc Devocht, Respondents.
No. 4D10-4874.
District Court of Appeal of Florida, Fourth District.
March 14, 2012.
Rehearing Denied April 26, 2012.
Charles D. Franken of Charles D. Franken, P.A., Plantation, for petitioners.
*374 Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Jody Leslie of Leslie & McLaughlin, LLP, Fort Lauderdale, for respondents.
PER CURIAM.
Petitioners, Jacquelyn Bennett and Bobbi Sue Miller, seek certiorari review of an order directing their former attorney to produce certain documents for an in camera review. For reasons discussed herein, the petition is denied. This is a probate case, the details of which are discussed in depth in two prior opinions from this Court. See Bennett v. Berges, 32 So.3d 771 (Fla. 4th DCA 2010) (hereinafter "Bennett I"); Bennett v. Berges, 50 So.3d 1154 (Fla. 4th DCA 2010) (hereinafter "Bennett II").
Relevant to this petition, a dispute arose as to the enforceability of a settlement agreement, which determined a 2005 will would be admitted to probate. Bennett I, 32 So.3d at 771. Because it was unclear whether the settlement agreement was enforceable, this Court reversed and remanded for an evidentiary hearing on that issue. Id. at 771-72. Pursuant to Bennett I, Respondents filed a motion to determine the validity of the settlement agreement and set the motion for a three-day evidentiary hearing.
In connection with the hearing, Respondents subpoenaed Petitioners' former attorney to produce:
Any and all communications and/or documentation which set forth directions, affirmations, and/or acquiesces (sic) received from Jacquelyn Bennett and/or Bobbi Sue Miller authorizing the presentation to the court of the "agreed upon" Formal Settlement Agreement, Order Requiring the Distributions, Releases and Stipulations for Dismissal, and/or any and all other documents anticipated to be part of same which had been anticipated to be signed by Respondents Jacquelyn Bennett and/or Bobbi Sue Miller on or about May 29, 2008.
In response, Petitioners objected on the grounds that the documents subject to the subpoena were protected by the attorney-client privilege. Respondents then moved for an order compelling the attorney to produce the requested documents.
On November 11, 2010, prior to any hearing, the attorney provided the parties with a letter listing the documents responsive to the subpoena: (1) an April 30, 2008 email from Jacquelyn Bennett to his assistant; (2) a copy of the formal settlement agreement with notations and writing on it; (3) a May 1, 2008 email exchange between Jacquelyn Bennett and himself; (4) a second May 1, 2008 email between Jacquelyn Bennett and himself; (5) a May 8, 2008 email between Jacquelyn Bennett and himself; and (6) a May 13, 2008 email between Jacquelyn Bennett and himself. His letter indicated that he was preserving his privilege assertion.
On November 17, 2010, the trial court heard Respondents' motion to compel, including the parties' arguments with respect to whether or not the documents subpoenaed were protected by the attorney-client privilege. At the conclusion of the hearing, the trial court ordered the documents in the attorney's privilege log to be produced for an in camera inspection within ten days. Petitioners seek certiorari review of that order.
For certiorari to lie, a petitioner must demonstrate that the trial court departed from the essential requirements of law resulting in material harm of an irreparable nature. S & I Invs. v. Payless Flea Market, Inc., 10 So.3d 699, 701 (Fla. 4th DCA 2009); see also Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). A trial court's order erroneously compelling discovery of information protected from *375 discovery by the attorney-client privilege is reviewable by certiorari. S & I Invs., 10 So.3d at 701; see also Langston, 655 So.2d at 94. "The basis for allowing certiorari review of certain discovery orders is that discovery of protected material could result in letting the `cat out of the bag,' and injury could result if such information was disclosed." Cape Canaveral Hosp., Inc. v. Leal, 917 So.2d 336, 339 (Fla. 5th DCA 2005). When a party is required to turn over protected documents, they are beyond relief. See Langston, 655 So.2d at 94 n. 2.
If a party seeks to compel the disclosure of documents that the opposing party claims are protected by attorney-client privilege, the party claiming the privilege is entitled to an in camera review of the documents by the trial court prior to disclosure. See Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So.2d 1128, 1128-29 (Fla. 4th DCA 1991) (finding that where documents may be protected by both the attorney-client privilege and the work-product doctrine, the petitioners are entitled to an in camera review of the documents by the trial court prior to disclosure); see also Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002) (stating that the trial court should have conducted an in camera inspection of documents before compelling disclosure when a discovery request, on its face, required disclosure of attorney-client communications); Zanardi v. Zanardi, 647 So.2d 298, 298 (Fla. 3d DCA 1994) (stating that the petitioner is entitled to an in camera review for the trial court to determine whether the assertion of attorney-client privilege is valid).
Here, the trial court properly ordered an in camera review of the relevant documents claimed to be privileged. The order does not compel Petitioners to produce the documents to Respondents. After an in camera inspection, the trial court may determine that the documents are privileged and uphold Petitioners' objection to the discovery request. Accordingly, because the order requires a party to submit allegedly protected materials only for an in camera inspection, and the trial court may never require disclosure of the documents to the opposing party, we hold that the petition is premature. See Cape Canaveral, 917 So.2d at 340 (holding certiorari review was premature because no irreparable harm had been demonstrated where the order under review merely required documents to be produced for an in camera inspection and no discovery had yet been ordered); Gaton v. Health Coal., Inc., 774 So.2d 59 (Fla. 3d DCA 2000) (certiorari review of an order requiring submission of documents allegedly protected by the trade secret privilege to the courts for an in camera inspection was premature because no production had been ordered to the opposing party). But see Cebrian By & Through Cebrian v. Klein, 614 So.2d 1209 (Fla. 4th DCA 1993) (granting a writ of certiorari and quashing an order requiring in camera inspection of certain HRS investigation reports because the shield law found in section 415.52(2), Florida Statutes (1990), created a privilege for such reports; thus, an in camera inspection was not necessary to determine whether the material was or was not protected).
Whether the trial court has misapprehended the scope of the privilege is a question we need not decide because to date, no discovery has been ordered. Accordingly, the petition is denied.
Petition Denied.
WARNER, POLEN and DAMOORGIAN, JJ., concur.
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20 A.3d 629 (2011)
Leonard BLAIR and Sharon Blair
v.
BERKS COUNTY BOARD OF ASSESSMENT APPEALS, Appellant.
No. 1310 C.D. 2010.
Commonwealth Court of Pennsylvania.
Argued February 7, 2011.
Decided May 3, 2011.
Deborah A. Sottosanti, Reading, for appellant.
*630 Paul A. Prince, Pottstown, for appellees.
BEFORE: PELLEGRINI, Judge, and BUTLER, Judge, and FRIEDMAN, Senior Judge.
OPINION By Senior Judge FRIEDMAN.
The Berks County Board of Assessment Appeals (Board) appeals from the June 11, 2010, amended order of the Court of Common Pleas of Berks County (trial court), setting the assessments for the property of Leonard and Sharon Blair (Appellees or the Blairs) for 2008 and 2009, and deferring consideration of the 2010 tax year pending disposition of this appeal.[1] We affirm.
Leonard Blair is now the sole owner of the property located at 63 Day Road, Rockland Township, Berks County (Property), which consists of 60.37 acres of land and is zoned R-1, Rural Conservation. The Property is currently enrolled in the "Clean and Green" program, which is authorized by the Pennsylvania Farmland and Forest Land Assessment Act of 1974, commonly known as the Clean and Green Act (Act), Act of December 19, 1974, P.L. 973, as amended, 72 P.S. §§ 5490.1-5490.13. The Property is enrolled as forest reserve.[2] It includes a "Farmstead," which, here, has been classified as a residence and the one acre of land upon which the residence sits.[3] Unlike the remainder of the Property, the Farmstead is not entitled to preferential assessment.[4]
After the residence and a pole barn were constructed on the Property, the Property was assessed on an interim basis as of January 1, 2008. The Blairs appealed to the Board from both the "full" market *631 value and Clean and Green value interim assessments. The Board held a hearing and then issued a decision recalculating the assessments. The Blairs appealed to the trial court on April 21, 2008.
On September 1, 2008, the assessment office issued its assessment for the 2009 tax year, retaining the interim assessment figures calculated by the Board. On or about September 26, 2008, the assessment office issued a new interim assessment for 2009, effective October 1, 2008, to adjust for the construction of a second metal storage shed/pole barn. By agreement of the parties, the Blairs' appeal incorporated review of the October 1, 2008, interim assessment.
At the trial de novo, the parties agreed that Bruce R. Hall, a state-certified, general appraiser whom the Blairs retained, would establish the fair market value of the Property. Hall also provided fair market values for the Farmstead, which were agreed to by the parties, and the fair market values for the house alone. Finally, the parties stipulated to the 2008 and 2009 values of the 59.37 acres of land subject to preferential assessment. The Berks County common level ratio (CLR) for the 2008 tax year was .681 and for the 2009 tax year was .657.[5]
On these facts, the trial court first stated that, because the Property was enrolled as forest reserve rather than agricultural use, the one acre on which the residence sits is not entitled to preferential assessment. In this regard, the trial court cited Section 4.2 of the Act, 72 P.S. § 5490.4b,[6] which provides in relevant part:
(b) For each application for preferential assessment, the county assessor shall establish a total use value for land in forest reserve by considering available evidence of capability of the land for its particular use. Contributory value of farm buildings shall be used.
. . .
(d) For purposes of this section:
. . .
(2) Farmstead land located within an area enrolled as agricultural reserve or forest reserve shall be assessed at agricultural use value if . . . (i) a majority of land in the application for preferential assessment is enrolled as agricultural use land[.]
The trial court also relied on Sher v. Berks County Board of Assessment Appeals, 940 A.2d 629, 631 (Pa.Cmwlth.2008), in which this court stated that "land located in an area enrolled as agricultural reserve or forest reserve [is] no longer eligible for a preferential assessment unless a majority of the land is enrolled as an agricultural land use."
The trial court then considered whether the CLR should be applied to the Farmstead, i.e., property located within a preferentially assessed area, but which is not itself entitled to preferential assessment. The trial court stated that, in this case, the grounds for the new assessment were the substantial improvements to the property under section 6.1 of what is commonly *632 referred to as the Second Class A and Third Class County Assessment Law (Law).[7] The trial court explained that, due to these improvements, the Farmstead, which was ineligible for preferential assessment under the applicable regulations and would normally retain base year value,[8] was instead being assessed at present-day fair market value. Determining that this procedure violated constitutional principles of uniformity, the trial court applied the county's CLR to the Farmstead's fair market value, mimicking the procedure for maintaining tax uniformity in an assessment appeal involving a non-Clean and Green property.
Last, the trial court reasoned that, because the parties had stipulated to the fair market value of the property, any issue as to how construction of the two pole barns affected its fair market value was moot. Nonetheless, the trial court addressed the issue, concluding that the contributory value of a farm building under the Act and the related regulations is set by subtracting what the fair market value of the property would be if the farm building were never constructed from the actual fair market value of the property with the farm building. Thus, the contributory value of the farm building may bear no relation to the cost of the improvement. The trial court further explained that, because Hall's figures for the pole barns' values appeared to correspond with the General Assembly's intent, "the fair market values reached by Mr. Hall and stipulated to by the parties will not be increased by this Court to effect an increase in value based on the presence of the outbuildings." (Tr. Ct. Op. at 10.)
The trial court then issued an order setting the 2008 and 2009 assessment values for the property. The Board filed a petition for permission to appeal, which we granted on August 3, 2010.
On appeal, the Board first asks whether the trial court erred in applying the CLR to the Farmstead, or, stated another way, it asks whether the Farmstead's location on property enrolled in the Clean and Green program precludes application of the CLR to the Farmstead's fair market value.[9] Essentially, the Board argues that, despite the Farmstead's ineligibility for preferential assessment, because it is part of property enrolled as forest reserve under the Act, and because the Clean and Green program is a preferential assessment program, the trial court's application of the CLR was improper.
In support of its assertion that the Clean and Green classification applies to the entire property, the Board cites, inter alia, 7 Pa.Code § 137b. 15, which provides that "[f]armstead land is an integral part *633 of land in agricultural use, agricultural reserve, or forest reserve." However, even if farmstead land is integral to forest reserve land under 7 Pa.Code § 137b.15, it is still treated differently for preferential assessment purposes. Moreover, we note that this regulation and others upon which the Board relies have not kept pace with the Act and are invalid to the extent they conflict with statutory law. See Northern Area Personal Care Home Administrators Association v. Department of Public Welfare, 899 A.2d 1182, 1188 (Pa.Cmwlth.2006) (providing, "where there is a conflict between a statute and a regulation promulgated thereunder, the statute must prevail"), aff'd, 591 Pa. 405, 919 A.2d 187 (2007).[10]
The Board further argues that, under Hess v. Montgomery County Board of Assessment Appeals, 75 Pa.Cmwlth. 69, 461 A.2d 333, 335 (1983), the Uniformity Clause of Article VIII, Section 1 of the Pennsylvania Constitution is inapplicable in Clean and Green cases.[11] However, Hess does not support the Board's argument that principles of tax uniformity do not apply to the Farmstead. Rather, we determined in Hess that Article VIII, Section 2 of the Pennsylvania Constitution empowered the General Assembly to treat land devoted to forest reserve, agricultural reserve and agricultural use as separate classes of real estate for purposes of taxation. Id. at 335.[12] Here, the Farmstead, by itself, is not a Clean and Green property. Indeed, the Farmstead is specifically excluded from preferential assessment by section 4.2 of the Act. As previously noted, the Board concedes as much in its brief. The Board specifically states that "the Farmstead on the Blairs' property was not eligible for the preferential assessment. Instead, the Farmstead would be assessed at market value." (Board's Brief at 12.) Therefore, to avoid a violation of the constitutional requirement of tax uniformity, the trial court necessarily applied the CLR, which, "despite any inherent weaknesses, is an accepted calculation of the common level existing in the district and the standard against which the taxpayer's assessment ratio should be measured for uniformity purposes." Smith v. Carbon County Board of Assessment Appeals, 10 A.3d 393, 406 (Pa.Cmwlth.2010) (footnote omitted).[13]
Next, the Board argues that, while the parties stipulated to the fair market *634 value of the Property, such that no adjustment in value is required, in a case where the parties did not stipulate to the fair market value of the Property, it would be proper to increase the Property's fair market value based on the presence of farm buildings upon it. Once again, the Board relies for its assertions on both the Act and the regulations.[14]
Pursuant to Section 4.2 of the Act, 72 P.S. § 5490.4b(b), the total use value for land in forest reserve includes "contributory value of farm buildings." Section 2 of the Act, 72 P.S. § 5490.2, defines "[c]ontributory value of [a] farm building" as "[t]he value of the farm building as an allocated portion of the total fair market value assigned to the tract, irrespective of replacement cost of the building." Further, 7 Pa.Code § 137b.54 provides:
Calculating the contributory value of farm buildings.
A county assessor shall be responsible to calculate the contributory value of farm buildings on enrolled land. The method of calculating the contributory value of a farm building shall be a method based upon the fair market comparison and the extraction of the value of the farm building from the total fair market value of the parcel.
Here, the trial court stated that, "[i]n essence, the contributory value of the farm building is set by subtracting what the fair market value of the Property would be if the farm building were never constructed from the actual fair market value of the Property, which includes the presence of the farm building." (Tr. Ct. Op. at 9) (emphasis added). This method is consistent with 7 Pa.Code § 137b.54, which requires a fair market comparison and the extraction of the contributory value of a farm building from a parcel's total fair market value. This method is also consistent with Section 2 of the Act, 72 P.S. § 5490.2, because the contributory value of a farm building is an allocated portion of a tract's total fair market value and because the formula is not based on a farm building's replacement cost. We discern no error in the trial court's approach.
Accordingly, we affirm.
ORDER
AND NOW, this 3rd day of May, 2011, the amended order of the Court of Common Pleas of Berks County, dated June 11, 2010, is hereby affirmed.
NOTES
[1] The June 11, 2010, order amended the trial court's May 12, 2010, order by including the requisite language for an interlocutory appeal.
[2] "Forest reserve" is "[l]and, ten acres or more, stocked by forest trees of any size and capable of producing timber or other wood products." Section 2 of the Act, 72 P.S. § 5490.2.
[3] Although Appellees assert that the footprint of the house is not large enough to support a measurement of one acre of land beneath it, (Appellees' brief at 19), the precise amount of land thereunder is apparently not at issue. Moreover, we note that the Act does not define the term "Farmstead," but section 2 of the Act, 72 P.S. § 5490.2, and 7 Pa.Code 137b.2 define "[f]armstead land" as "[a]ny curtilage and land situated under a residence, farm building or other building which supports a residence, including a residential garage or workshop." "Curtilage" is defined as "[t]he land surrounding a residential structure and farm building used for a yard, driveway, on-lot sewage system or access to any building on the tract." Id. Further, "[f]arm building" is defined as "[a] structure utilized to store, maintain or house farm implements, agricultural commodities or crops, livestock and livestock products. . . ." Id.
[4] "Preferential assessment" is defined as "[t]he total use value of land qualifying for assessment under the act." 7 Pa.Code § 137b.2. We explained in Herzog v. McKean County Board of Assessment Appeals, 14 A.3d 193, 195 n. 4 (Pa.Cmwlth.2011):
Although not defined in the . . . Act, "use value" represents value to a specific user; it is premised on the productivity of the good in question and may vary depending on the current conditions in the marketplace. See F & M Schaeffer Brewing Co. v. Lehigh County Board of Appeals, 530 Pa. 451, 457, 610 A.2d 1, 3 (1992). See also BLACK'S LAW DICTIONARY 1692 (9th ed.2009) (defining "use value" as a value established by the utility of an object, not its sale or exchange value).
Moreover, section 3(a) of the Act, 72 P.S. § 5490.3(a), provides that, "[f]or general property tax purposes, the value of land which is presently devoted to agricultural use, agricultural reserve, and/or forest reserve shall, on application of the owner and approval thereof as hereinafter provided, be that value which such land has for its particular use category. . . ."
[5] Section 1.1 of what is commonly referred to as the Second Class A and Third Class County Assessment Law, Act of June 26, 1931, P.L. 1379, as amended, added by the Act of December 13, 1982, P.L. 1165, 72 P.S. § 5342.1, defines CLR as "[t]he ratio of assessed value to current market value used generally in the county as last determined by the State Tax Equalization Board. . . ."
[6] Section 4.2 was added by the Act of December 21, 1998, P.L. 1225, No. 156, and was later amended by the Act of December 8, 2004, P.L. 1785, No. 235, which amended, inter alia, subsection (b) and added subsection (d), effective February 7, 2005.
[7] Act of June 26, 1931, P.L. 1379, as amended, added by the Act of July 19, 1991, P.L. 91, 72 P.S. § 5347.1. Section 6.1 of the Law, 72 P.S. § 5347.1, provides in part: "The subordinate assessors may change the assessed valuation on real property . . . when improvements are made to real property or existing improvements are removed from real property or are destroyed."
[8] Section 1.1 of the Law, 72 P.S. § 5342.1, defines "[b]ase year" as:
[t]he year upon which real property market values are based for the most recent countywide revision of assessment of real property or other prior year upon which the market value of all real property of the county is based. Real property market values shall be equalized within the county and any changes by the board of assessment appeals shall be expressed in terms of such base year values.
[9] Our review in a tax assessment appeal is limited to determining whether the trial court abused its discretion, committed an error of law, or rendered a decision unsupported by substantial evidence. Sher, 940 A.2d at 632 n. 4.
[10] For this reason, we also summarily reject the Board's alternative argument that, even if the trial court correctly classified the Farmstead as "ineligible land" under 7 Pa.Code § 137b.2, it should not have applied the CLR to the Farmstead's fair market value because 7 Pa.Code § 137b.27, relating to the "assessment of ineligible land," does not provide for such a formula.
[11] The Uniformity Clause of the Pennsylvania Constitution specifically provides: "All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws." Pa. Const. art. VIII, § 1.
[12] Article VIII, Section 2 of the Pennsylvania Constitution provides in relevant part: "The General Assembly may, by law . . . [e]stablish standards and qualifications for private forest reserves, agriculture reserves, and land actively devoted to agricultural use, and make special provision for the taxation thereof." Pa. Const. art. VIII, § 2(b)(i).
[13] Moreover, we note that section 3(g)(2) of the Act, 72 P.S. § 5490.3(g)(2), added by the Act of December 8, 2004, P.L. 1785, No. 235, specifically allows the county commissioners to "adopt an ordinance to include farmstead land in the total use value for land in forest reserve." The statute further requires that any such ordinance be applied uniformly to all land in forest reserve in the county. Clearly, the commissioners' failure to adopt such an ordinance does not obviate uniformity requirements where they otherwise would be required.
[14] We recognize that the trial court deemed this issue moot based on the parties' stipulation. However, because the trial court nevertheless considered the question, and because we granted the Board's petition for permission to appeal in part on this issue, we now decide the issue, despite the advisory nature of doing so.
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552 S.E.2d 878 (2001)
250 Ga. App. 686
WOOTEN
v.
The STATE.
No. A99A2268.
Court of Appeals of Georgia.
July 19, 2001.
Cook & Connelly, Bobby Lee Cook, Summerville, Todd M. Johnson, for appellant.
Herbert E. Franklin, Jr., Dist. Atty., for appellee.
BLACKBURN, Chief Judge.
Following a jury trial, Kenneth R. Wooten appeals his conviction for four counts of child molestation,[1] contending that: (1) the method of assigning cases in the Lookout Mountain *879 Judicial Circuit violated Uniform Superior Court Rule 3.1; (2) prior consistent statements of the victim were improperly allowed into evidence; and (3) a juror was inappropriately dismissed after deliberations had begun. For the reasons set forth below, we affirm.
1. In Wooten v. State,[2] this Court considered Wooten's contention that his case should be reversed because the method of assigning cases in the Lookout Mountain Judicial Circuit violated USCR 3.1. Citing Cuzzort v. State,[3] we found that Lookout Mountain's method of assigning cases was improper because the Lookout Mountain District Attorney's Office created the criminal court calendar, assigned cases to judges, and actually called the cases to proceed. Wooten, 244 Ga.App. at 101-102, 533 S.E.2d 441. We further held that this system was inherently harmful to the defendant. Id. at 102, 533 S.E.2d 441.
In State v. Wooten,[4] however, our Supreme Court reversed this Court's opinion, finding that "the district attorney's limited role in assigning cases to a judge and calling the court calendar did not violate Wooten's right to due process under the Georgia Constitution or [the] United States Constitution." The Supreme Court then went on to determine that, although the assignment method was contrary to USCR 3.1, it was "highly improbable that the error ... contributed to the jury's verdict of guilty." Id. at 533(3), 543 S.E.2d 721. Therefore, with regard to this enumeration of error, we vacate our prior opinion and adopt the Supreme Court's holding with regard to this issue.
2. Wooten's contention that the trial court improperly allowed prior consistent statements by the victim into evidence was found to be without merit in our prior opinion, and this finding was not reversed by our Supreme Court. Accordingly, this finding stands, and our previous determination remains dispositive of this issue.
3. Finally, Wooten argues that the trial court improperly dismissed a juror after deliberations had begun. We disagree.
The record shows that, during the voir dire of the jurors, the State asked jurors to reveal whether they knew the defendant or members of his family. No juror responded to this question. However, after the trial was finished and deliberations had begun, the jury foreperson reported to the trial court that she believed that another juror was being partial because he personally knew Wooten. The foreperson stated that this juror had indicated to the others that he was familiar with the defendant and that, through this association, he had no intention of considering the testimony of the victim.
The trial court then called the problematic juror into court and questioned him. At this time, the juror admitted for the first time that he knew the defendant, and he gave no valid explanation for failing to inform the State when he was originally asked about the association. The trial court did not immediately dismiss the juror because he stated that, despite his knowledge of the defendant, he would attempt to deliberate fairly. While deliberations continued, however, the trial court concluded that the juror should be dismissed for failure to comply with the voir dire oath of honesty. Wooten now appeals this decision.
OCGA § 15-12-172 provides: "If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated." This Code section gives the trial court "discretion to discharge a juror and replace him or her with an alternate at any time, and we will not reverse as long as the court's exercise of discretion has a sound legal basis." (Punctuation omitted.) Worthy v. State.[5]
*880 In this case, such a sound legal basis existed. "It was not an abuse of discretion to conclude that the juror's failure to respond truthfully during voir dire, coupled with his admitted actions during jury deliberations, constituted legal cause for removal." Norris v. State.[6] And, contrary to Wooten's argument, the juror's statement that he would try to deliberate fairly does not change this result. Here, the trial court was faced with a juror whose veracity was clearly in question. Under such circumstances, we cannot say that the trial court abused its discretion in removing the juror. Id.
Judgment affirmed.
ELDRIDGE and BARNES, JJ., concur.
NOTES
[1] Wooten was acquitted on charges of aggravated child molestation and aggravated sodomy.
[2] Wooten v. State, 244 Ga.App. 101, 533 S.E.2d 441 (2000).
[3] Cuzzort v. State, 271 Ga. 464, 519 S.E.2d 687 (1999).
[4] State v. Wooten, 273 Ga. 529, 532(2), 543 S.E.2d 721 (2001).
[5] Worthy v. State, 223 Ga.App. 612, 613(1), 478 S.E.2d 421 (1996).
[6] Norris v. State, 230 Ga.App. 492, 495(5), 496 S.E.2d 781 (1998).
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https://www.courtlistener.com/api/rest/v3/opinions/6364132/
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Opinion by
Judge Biatt,
Consolidated herein are eighteen appeals from orders of the Unemployment Compensation Appeal Board (Board), seventeen- of which are from orders of the Board denying appeals from determinations of the Bureau of• Employment Security (Bureau) as untimely taken, while the remaining appeal is from the Board’s denial of a request that a prior Board order be vacated.
All -of the claimants here were formerly maintenance úr production workers- of-the George Sail Metal Company (employer), where a-work stoppage was begun'on May 18, 1973 by Local 115 of the Teamster’s Union, which was the bargaining' unit representing the claimants. The work stoppage was the result of an alleged' refusal by the employer to bargain collectively. All of the claimants filed for unemployment compensation at local offices of the Bureau, and the *567Bureau’s district office ruled on June 22, 1973 that the claimants were ineligible for benefits under Section 402(d) of the Unemployment Compensation Law1 (Law), 43 P.S. §802(d), on the grounds that the work stoppage constituted a strike. Only one of the claimants, Edison J. Eby (Eby), took a timely appeal of this determination to the referee and Board, both of which affirmed the Bureau’s determination.
On April 30, 1975, however, in a case involving a co-employee of the claimants who had also been engaged in the same work stoppage, the Board ruled that the stoppage had been a lockout rather than a strike and awarded benefits. The seventeen claimants who had not previously appealed then filed appeals of the Bureau’s 1973 determinations denying them benefits, and after hearings on the issue of timeliness, the referee dismissed these appeals because they had not been filed within the ten-day appeal period then provided in Section 501(e)2 of the Law, 43 P.S. §821(e). On appeal to the Board the referee’s decision was affirmed and these appeals were dismissed. Subsequent to the Board’s decision that the work stoppage had been a lockout, Eby also filed a petition requesting the Board to vacate its prior decision in his case and award him benefits. The Board denied this petition by letter, stating that the Board’s decision in his case, dated March 6, 1974, had become final ten days after that date pursuant to the provisions of Section 509. of the Law,3 43 P.S. §829. All of the claimants then filed timely appeals to this Court.
*568Section 510 of the Law, 43 P.S. §830, provides that this Court’s scope of review in an unemployment compensation appeal is confined to questions of law and, absent fraud, to a determination of whether or not the findings of fact are supported by the evidence. The major issue raised here by the claimants is whether or not the Board had the authority to reverse or reconsider the decisions in their cases which had become final under the relevant provisions of the law.
The filing of a timely appeal is a jurisdictional requirement which must be met before an appellate court may consider an appeal. Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 368, 214 A.2d 203, 205 (1965). It is true that this Court has held numerous times, as has the Superior Court on earlier occasions, that the appeal provisions of the Unemployment Compensation Law are normally mandatory. See, e.g., Delaney v. Unemployment Compensation Board of Review, 28 Pa. Commonwealth Ct. 453, 456, 368 A.2d 1351, 1352 (1977); Unemployment Compensation Board of Review v. Buongiovanni, 21 Pa. Commonwealth Ct. 338, 340, 345 A.2d 783, 784 (1975); Abrams Unemployment Compensation Case, 180 Pa. Superior Ct. 580, 582, 119 A.2d 656, 657 (1956). We have also held, however, that if a claimant can prove that he was deprived of his right of appeal by fraud or its equivalent, i.e., wrongful or negligent conduct of the administrative authorities, then an untimely appeal will be permitted. Unemployment Compensation Board of Review v. Ferraro, 22 Pa. Commonwealth Ct. 304, 306, 348 A.2d 753, 754 (1975); Ferretti Unemployment *569Compensation Case, 195 Pa. Superior Ct. 234, 236, 171 A.2d 594, 595 (1961).
The claimants argue here that this exception is available to them because the Bureau’s determination denying benefits had been rendered palpably erroneous by the Board’s subsequent decision in another case that the work stoppage concerned in all cases had been a lockout, but we must disagree. As an administrative agency, the Board is a creature of the state and has only those powers and authority granted to it by the legislature. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 95, 309 A.2d 165, 168 (1973). The periods specified for taking appeals by the claimants here were obviously exceeded, and the case law is clear that the exception in which the claimants seek to place themselves refers only to cases where fraud or wrongful or negligent conduct has occurred. Because we can find no evidence of such here, we must hold that the Board acted properly in dismissing all but one of these appeals on this basis. Mayer v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 244, 248, 366 A.2d 605, 607 (1976).
This one appeal, filed by Billy Berry, urges that he was denied his right of appeal by the wrongful and negligent conduct of Bureau employees, and Berry testified at the referee’s hearing that he did not appeal the Bureau’s determination in 1973 because he had been informed by two Bureau employees at that time that he could not appeal the Bureau’s denial of benefits. The referee found that the claimant had not been misled by the Bureau employees and dismissed his appeal as untimely, and this determination was affirmed by the Board. The issue presented in claimant Berry’s case is identical to that presented in the case of Flynn v. Unemployment Compensation Board of Re*570view, 192 Pa. Superior Ct. 251, 159 A.2d 579 (1960), where a Bureau employee told the claimant that she could not make an appeal and that she did not have a leg to stand on. Flynn, supra, 192 Pa. Superior Ct. at 251, 159 A.2d at 579. The present case can be distinguished from Flynn, however, in that the Board here found that the claimant had not been misinformed or misled by the compensation authorities concerning his right of appeal. In making this finding, the Board clearly believed Berry’s testimony not to be credible and we are bound by that finding. In an unemployment compensation case, questions concerning the •credibility of witnesses and the weight to be accorded the evidence are left to the Board. Rice v. Unemployment Compensation Board of Review, 19 Pa. Commonwealth Ct. 592, 594, 338 A.2d 792, 794 (1975). We will, therefore, affirm the order of the Board dismissing claimant Berry’s appeal.
The orders of the Board in all of the cases herein consolidated are affirmed.
Order
And Now, this 9th day of February, 1978, the orders of the Unemployment Compensation Board of Review are hereby affirmed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §751 et seq.
Section 501 was amended by the Act of April 14, 1976, P.L. 113, to provide for a fifteen-day period in which to bring appeals from determinations of the Bureau.
Section 509 was amended by the Act of April 14, 1976, P.L. 113, to provide for a fifteen-day period in which to bring appeals *568from determinations of the Referee. We note that Eby’s petition could be considered a request for reconsideration by the Board pursuant'to 1 Pa. Code §35.241 (a), which provides for a fifteen-day period in which to file such petitions. See Mayer v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 244, 366 A.2d 605 (1976).
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01-03-2023
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06-24-2022
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https://www.courtlistener.com/api/rest/v3/opinions/2550257/
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85 So.3d 489 (2012)
GRANT
v.
TUCKER.
No. 1D10-6516.
District Court of Appeal of Florida, First District.
April 11, 2012.
DECISION WITHOUT PUBLISHED OPINION
Certiorari denied.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2550292/
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84 So. 3d 1023 (2010)
BRUCE WILLIAMS
v.
STATE.
No. CR-09-1043.
Court of Criminal Appeals of Alabama.
July 9, 2010.
DECISION WITHOUT PUBLISHED OPINION
Dismissed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2550308/
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82 So. 3d 1077 (2012)
Robert ALORDA and Danielle Alorda-McKinnon, Appellants,
v.
SUTTON PLACE HOMEOWNERS ASSOCIATION, INC., Appellee.
No. 2D10-3966.
District Court of Appeal of Florida, Second District.
January 6, 2012.
Rehearing Denied February 15, 2012.
*1078 Michael V. Laurato of Austin & Laurato, P.A., Tampa, for Appellants.
Francis E. Friscia and George D. Root, III, of Meirose & Friscia, P.A., Tampa, for Appellee.
DAVIS, Judge.
Robert Alorda and his daughter, Danielle Alorda-McKinnon (the Alordas), challenge the trial court's final judgment awarding attorney's fees and costs to Sutton Place Homeowners Association, Inc., in conjunction with the Association's action for injunctive relief against the Alordas. In its order, the trial court found that the Association had prevailed in that action and thus awarded it attorney's fees. However, because the Association could not be the prevailing party in an action seeking an equitable remedy when a remedy at law was available, we reverse.
The Alordas purchased a townhouse located in the Sutton Place subdivision on June 29, 2007.[1] The subdivision is subject to the Declarations of Covenants, Conditions, Restrictions, and Easements filed in the public records of Hillsborough County. Section 9.04 of the Declarations requires that the owner of a residence in the subdivision maintain insurance on the residential property and annually provide notice of such coverage to the Association. Specifically, the provision states that at the time of purchase the owner must provide proof of such coverage and that on the purchase anniversary date each year, the owner must provide proof that such coverage has been renewed.
In June 2008, upon the first anniversary of the Alordas' purchase, the Association did not receive any notice that the Alordas had renewed their insurance coverage. The Association therefore began to send them letters advising of the need to provide the required proof. The record indicates that letters were sent in May, July, and August of 2008. In September 2008, the Association sent its offer to engage in *1079 presuit mediation regarding the coverage issue. Although Mr. Alorda did agree at that time to provide the proof of coverage, he continued to fail to do so. This prompted a letter from the Association requesting his compliance with the prior agreement. When that did not resolve the matter, the Association tried one last time to obtain the proof of coverage by letter dated March 9, 2009.
When these efforts failed, the Association filed its complaint against the Alordas on April 9, 2009. By the complaint, the Association sought the equitable remedy of injunctive relief, specifically asking the trial court to "enter a permanent mandatory injunction requiring that the Defendant obtain the insurance coverages as are described in § 9.04 of the Declaration." In response to the service of that suit, the Alordas' attorney sent the Association's attorney an email on May 6, 2009, advising that the Alordas did have the required coverage. Attached to the email was a copy of the declaration pages of the Alordas' insurance policy, showing that it went into effect March 19, 2009. Counsel for the Alordas also asked if the Association would dismiss its action "so that additional attorney time will not be expended on an appropriate response."
After the Alordas did not receive a favorable response to their attorney's email suggestion, they filed a motion to dismiss on May 11, 2009. In the motion, the Alordas suggested that the Association had failed to plead sufficient facts to establish the needed elements for the trial court to enter an injunction. Specifically, the Alordas argued that although a clear legal right had been violated, the Association had failed to sufficiently establish that it lacked an adequate remedy at law to justify injunctive relief.
In the memorandum of law attached to the motion, the Alordas maintained that the Association's adequate legal remedy was expressed by the terms of the Declarations attached to the Association's complaint. The memorandum quoted section 9.04 of the Declarations as follows:
The owner shall furnish proof of such insurance to the Association at the time of purchase of a lot and shall furnish proof of renewal of such insurance on each anniversary date thereof. If the owner fails to provide such insurance the Association may obtain such insurance and shall assess the owner for the cost of the same in accordance with the provisions of this Declaration.
(Emphasis added.)
Additionally, the Alordas argued that the Association could only obtain injunctive relief to prevent a threatened harm but not to redress harm that already had occurred. The Alordas maintained that because they had obtained insurance coverage effective March 19, 2009, i.e., prior to the filing of the complaint, there remained no threatened harm to be enjoined. And the Alordas further alleged that the issue was moot.
The trial court held a hearing on the motion to dismiss on September 9, 2009, and entered its order denying the motion on September 11, 2009.[2] The Alordas then filed their answer and affirmative defenses on September 24, 2009. Included in the affirmative defenses were the previously raised arguments that the Association had an adequate remedy at law and that injunctive relief was not proper when there was no threatened harm to enjoin where the Alordas already had obtained insurance coverage.
The trial court, however, granted the Association's request that the issue be referred to mediation, which ultimately resulted *1080 in an impasse. On November 16, 2009, the Association filed its notice requesting a nonjury trial, and the trial court, on December 16, 2009, entered its order setting nonjury trial for March 5, 2010. Prior to trial, the Alordas filed a motion for summary judgment, arguing again that as a matter of law the Association was not entitled to injunctive relief. In response to that motion, the Association filed the affidavit of Ronald Trowbridge, agent of the Association, who averred that the Alordas failed to provide the required notice of insurance coverage until after the complaint had been filed.
After considering the motion, the filed depositions, and Mr. Trowbridge's affidavit, the trial judge sent a memo to the parties dated March 2, 2010. He advised that he was going to deny the motion for summary judgment but that he was dismissing the complaint as moot and that the March 5 trial date would be used to determine the prevailing party for the purpose of awarding attorney's fees.
Following that hearing, the trial court entered its order determining that the Association was the prevailing party and awarding it $10,725 in attorney's fees and $2106.40 in costs. The court based its conclusion on the finding that even though the Alordas eventually provided notice of their insurance coverage, the Association had been required to file the lawsuit to obtain that notice.
The Alordas argue on appeal that because injunctive relief was never available to the Association and the complaint should have been resolved on the original motion to dismiss, the Association cannot be considered the prevailing party.
We agree with the Alordas that the Association cannot be considered the prevailing party because it did not state a cause of action for injunctive relief in its complaint. See Shaw v. Tampa Elec. Co., 949 So. 2d 1066, 1069 (Fla. 2d DCA 2007) ("`A mandatory injunction is proper where a clear legal right has been violated, irreparable harm has been threatened, and there is a lack of an adequate remedy of law.'" (quoting Dep't of Health & Rehab. Servs. v. Weinstein, 447 So. 2d 345, 345 (Fla. 4th DCA 1984))); see also Digaeteno v. Perotti, 374 So. 2d 1015, 1016 (Fla. 3d DCA 1979) (concluding that "the trial judge erred in resorting to equity and entering the mandatory injunctions" where the plaintiff had "an adequate remedy at law").
By its own pleadings, the Association acknowledged that it had an available remedy at law. The Declaration attached to the complaint provided the Association with procedures to follow if an owner failed to provide the required notice of insurance coverage. The procedures specifically include allowing the Association to obtain coverage and then assessing the cost of obtaining that coverage against the owner. The procedures also provide that the assessment can be recorded as a lien against the owner's real property if the assessment is not paid within thirty days and that an action at law could then be filed against the owner to collect the assessment, including a foreclosure action on the real estate if necessary. Although the complaint makes a general allegation that the Association did not have an adequate remedy at law, the complaint failed to allege facts that would show how the specific legal remedies provided by the Declaration attached thereto were not available. See Coriat v. Global Assurance Grp., Inc., 862 So. 2d 743, 743 (Fla. 3d DCA 2003) ("A trial court[,] when considering a motion to dismiss[,] must look only to the four corners of the complaint including the attachments....").
Accordingly, the trial court should have dismissed the complaint at the September 5, 2009, hearing because the Association failed to allege a cause of action. See City of Coral Springs v. Fla. Nat'l Props., Inc., *1081 340 So. 2d 1271, 1272 (Fla. 4th DCA 1976) ("[T]he ... complaint did not state a cause of action for injunctive relief, and ... the appellant's motion to dismiss should have been granted. ... [T]he [complainant] must show that he has no adequate remedy at law."). If the proper ruling had been entered on the Alordas' motion to dismiss, the Association would have been precluded from being the prevailing party because it had failed to state a valid cause upon which it could prevail. Cf. McKelvey v. Kismet, Inc., 430 So. 2d 919, 922 (Fla. 3d DCA 1983) (concluding that a defendant is entitled to prevailing party attorney's fees where all of the counts in the plaintiff's complaint were either voluntarily dismissed or dismissed for the plaintiff's failure to state a cause of action); see also Valcarcel v. Chase Bank USA NA, 54 So. 3d 989, 991 (Fla. 4th DCA 2010) ("Although the dismissal order was not an adjudication on the merits, the [defendants] can nonetheless be considered the prevailing party. They are entitled to an award of attorney's fees because the action against them was dismissed.").
In reaching this conclusion, we are not unsympathetic to the Association's having incurred unnecessary fees and costs in attempting to obtain the Alordas' compliance with the terms of the Declaration. However, this opinion addresses only whether courts can award fees based on a prevailing party theory where that party can never prevail because the complaint, on its face, fails to state a cause of action. Because this impossibility prevents the award of fees to the Association in this action, we are compelled to reverse that award.
Reversed.
VILLANTI and MORRIS, JJ., Concur.
NOTES
[1] Although Danielle is on the title to the real estate with her father, she does not reside at the residence.
[2] Our record does not include a transcript of the September 9, 2009, hearing.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1816367/
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987 So.2d 80 (2008)
DUMORANGE
v.
CITY OF MIAMI.
No. SC08-189.
Supreme Court of Florida.
June 20, 2008.
Decision without published opinion. Rev.denied.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2550426/
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124 P.3d 621 (2005)
202 Or. App. 673
In the Matter of the Compensation of Karen M. Godfrey, Claimant.
Karen M. GODFREY, Petitioner,
v.
FRED MEYER STORES, Respondent.
03-04253; A124562.
Court of Appeals of Oregon.
Argued and Submitted February 14, 2005.
Decided November 23, 2005.
*622 Robert F. Webber argued the cause for petitioner. With him on the briefs was Black, Chapman, Webber, Stevens & Petersen.
Deborah L. Sather, Portland, argued the cause for respondent. With her on the brief were Brian M. Perko and Sather, Byerly & Holloway.
Before LANDAU, Presiding Judge, and BREWER, Chief Judge,[*] and ARMSTRONG, Judge.
LANDAU, P.J.
ORS 656.265(1) requires that a worker give an employer notice of an accident resulting in injury or death. At issue in this case is whether a claimant who orally reported an injury to her employer gave the notice that is required by that statute. The Workers' Compensation Board held that she did not. We disagree and therefore reverse and remand for reconsideration.
I. FACTUAL BACKGROUND
The relevant facts are not in dispute. On December 22, 2001, claimant orally advised her supervisor that she had injured her wrist at work the day before. The supervisor then entered the following into employer's computerized database under a format labeled "Employee Incident Report":
"[Claimant] was scanning a 2 liter of soda when she felt a pop or tear and burning sensation in her wrist and lower forearm. She has swelling and bump that is not normal. It feels like a deep ache. If the pain gets worse then she will seek medical attention. It is the right arm."
Employer never printed a paper copy of what claimant had reported.
Claimant did not seek medical treatment for over a year. On February 18, 2003, she filed a Form 801 making a written claim for her injury. Employer denied the claim on the ground that claimant had failed to file timely written notice as required by the applicable statutes. Employer argued that ORS 656.265(1) requires written notice from a worker within 90 days after an accident and permits notice to be filed beyond that period only if the employer had knowledge of the injury and the claimant filed written notice within a year of the accident. In this case, employer argued, claimant did not file written notice until well after the one-year period had expired. Claimant responded that the statute requires only that "notice" be given the employer within a year of the accident and that that notice need not be in writing. The board agreed with employer and upheld the denial.
II. ANALYSIS
On review, the parties renew their argumentsemployer, that the statute requires that notice be given in writing, and claimant, that notice need not be in writing so long as the employer learns the relevant facts. The disposition of the parties' arguments turns on the meaning of the relevant statute, which we ascertain by reference to the interpretive method set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). Our task is to ascertain what the legislature that enacted the statute into law intended the wording of the enactment to mean. ORS 174.020. It is not to effect what we, in our independent judgment, believe to be better policy. See, e.g., Monaco v. U.S. Fidelity & Guar., 275 Or. 183, 188, 550 P.2d 422 (1976) ("This court cannot correct clear and unambiguous language for the legislature so as to better serve what the court feels was, or should have been, the legislature's intent."); Lindsey v. Farmers Ins. Co., 170 Or.App. 458, 467, 12 P.3d 571 (2000) ("Our obligation is not to fix statutes[.]"). We ascertain the legislature's *623 intended meaning of the statute first by examining the text of the statute in its context, which includes any prior Supreme Court construction of the statute. See State v. Reid, 319 Or. 65, 68-69, 872 P.2d 416 (1994) (The Supreme Court's construction of a statute "becomes a part of the statute as if written into it at the time of its enactment."). If, after analysis of the text in context, the statute remains ambiguous, we resort to legislative history and, if necessary, other aids to construction. PGE, 317 Or. at 611-12, 859 P.2d 1143.
A. Textual Analysis
ORS 656.265 provides:
"(1) Notice of an accident resulting in an injury or death shall be given immediately by the worker or a dependent of the worker to the employer, but not later than 90 days after the accident. The employer shall acknowledge forthwith receipt of such notice.
"(2) The notice need not be in any particular form. However, it shall be in writing and shall apprise the employer when and where and how an injury has occurred to a worker. A report or statement secured from a worker, or from the doctor of the worker and signed by the worker, concerning an accident which may involve a compensable injury shall be considered notice from the worker and the employer shall forthwith furnish the worker a copy of any such report or statement.
"(3) Notice shall be given to the employer by mail, addressed to the employer at the last-known place of business of the employer, or by personal delivery to the employer or to a foreman or other supervisor of the employer. If for any reason it is not possible to so notify the employer, notice may be given to the Director of the Department of Consumer and Business Services and referred to the insurer or self-insured employer.
"(4) Failure to give notice as required by this section bars a claim under this chapter unless the notice is given within one year after the date of the accident and:
"(a) The employer had knowledge of the injury or death; or
"(b) The worker died within 180 days after the date of the accident.
"* * * * *
"(5) The issue of failure to give notice must be raised at the first hearing on a claim for compensation in respect to the injury or death.
"(6) The director shall promulgate and prescribe uniform forms to be used by workers in reporting their injuries to their employers. These forms shall be supplied by all employers to injured workers upon request of the injured worker or some other person on behalf of the worker. The failure of the worker to use a specified form shall not, in itself, defeat the claim of the worker if the worker has complied with the requirement that the claim be presented in writing."
As is not uncommon with frequently amended statutes, the drafting is less than perfect. The text can be taken to suggest different possibilities with respect to whether it requires that the worker provide an employer with written notice of an accident or injury, depending on which portions are given emphasis.
1. First possibility: Notice must be presented in writing
A number of provisions of the statute reasonably suggest that the worker must provide written notice to the employer. First, under subsection (1), "[n]otice" must be given "by the worker * * * to the employer." Thus, whatever "notice" may entail, it must be given "by the worker."
Second, subsection (2) provides that, although "[t]he notice need not be in any particular form," it must be in writing. The use of the definite article suggests that "the notice" refers to the notice mentioned in the immediately preceding section; there is no other "notice" at that point in the statute to which the subsection could refer. See Anderson v. Jensen Racing, Inc., 324 Or. 570, 578-79, 931 P.2d 763 (1997) (the definite article "the" functions as an adjective that denotes a particular, specified thing). Thus, it is reasonable to conclude that "the notice" that "shall be in writing" is the notice that *624 must be given by the worker to the employer.
Third, subsection (3) provides that "[n]otice shall be given to the employer by mail * * * or by personal delivery." Once again, although the definite article is not used, "notice" appears to refer to the notice that is mentioned in subsections (1) and (2). That is important, because the reference to the giving of notice "by mail" or "by personal delivery" suggests that the noticethat is, the notice that, under subsections (1) and (2) must be provided "by the worker"must be in writing. Ordinarily, such phrasing refers to delivery of a writing or some other physical object. See, e.g., Black's Law Dictionary 385 (5th ed. 1979) (defining "delivery" as "[t]he act by which the res or substance thereof is placed within the actual or constructive possession or control of another"). And, consistently with that ordinary meaning, the legislature has employed the phrase to refer to mail or delivery of a writing. See, e.g., ORS 10.245(2) ("The presiding judge for the judicial district may cause to be mailed or delivered with a juror's summons a juror eligibility form and instructions for completion of the form and return of the completed form by mail or personal delivery to the clerk of court by a specified date."); ORS 18.652(1) ("A writ of garnishment may be delivered to the garnishee personally or by certified mail, return receipt requested."); ORS 30.275(4), (5) ("Formal notice of a claim is a written communication from a claimant or representative * * * [and] shall be given by mail or personal delivery."); ORS 90.155(1) ("[W]here this chapter requires written notice, service or delivery of that written notice shall be executed by one or more of the following methods: (a) Personal delivery to the landlord or tenant; [or] (b) First class mail to the landlord or tenant[.]"); ORS 105.135(3)(b) ("The process server shall serve the defendant with a true copy of the summons and complaint at the premises by personal delivery to the defendant[.]"); ORS 223.117(2)(c) (a local government ordinance imposing a public works assessment must "[r]equire notice of such proposed assessment to be mailed or personally delivered to the owner of each lot to be assessed"). As a general rule, when the legislature uses the same term throughout the statutes, we assume that the term has the same meaning throughout. PGE, 317 Or. at 611, 859 P.2d 1143; State v. Holloway, 138 Or.App. 260, 266-67, 908 P.2d 324 (1995) (determination of meaning of "public land" in criminal statute derived from legislature's consistent use of the same term approximately 600 other times in the Oregon Revised Statutes).
Fourth, subsection (6) states that the failure of a worker to use a specified form of notice is not fatal, "if the worker has complied with the requirement that the claim be presented in writing." The statute reflects a requirement that "the claim"and not the notice of an accident causing injury or deathbe presented in writing. Thus, at least on the surface, the provision would appear to suggest nothing about whether the notice must be presented in writing. In Vsetecka v. Safeway Stores, Inc., 337 Or. 502, 98 P.3d 1116 (2004), however, the Oregon Supreme Court, albeit in dictum, referred to that provision as stating a requirement that the notice be presented in writing.
In Vsetecka, the claimant had noted in the employer's injury log the claimant's name, the date of injury, and a description of the injury as "pain in right wrist." Id. at 504, 98 P.3d 1116. The employer contended that the notice failed to satisfy the statutory requirement of identifying in writing where and how the injury had occurred. Id. The court held that providing written notice of when, where, and how an injury occurred is but one of several different methods that the statute authorizes. The court noted that subsection (2) of the statute offered a second method, namely, the employer securing from the worker a "report or statement" concerning an accident thatay involve a compensable injury. That provision, the court observed, did not include a requirement that the notice include information as to when, where, and how the injury occurred. Id. The court noted that, in subsection (6), the statute mentioned a third possibility, completing forms that the director has promulgated for the purpose. After summarizing the various possible ways to satisfy the notice requirement, the court concluded with the comment that "the one constant, which the last sentence *625 in subsection (6) makes clear, is that the notice must be in writing." Id. at 510, 98 P.3d 1116 (emphasis added).
Precisely why the court said what it did about subsection (6) is not clear. It was not necessary to the disposition of the case before it. There was no issue in Vsetecka about whether the notice must be in writing; it was undisputed in that case that the claimant wrote his notice into the employer's injury log. Ordinarily, dictumeven Oregon Supreme Court dictumabout the construction of a statute has no particular precedential force. See SAIF v. Allen, 320 Or. 192, 204, 881 P.2d 773 (1994) (rule of prior construction does not apply to Supreme Court dicta).
That would seem to be particularly appropriate when the dictum is difficult to reconcile with the reasoning of the balance of the opinion. See, e.g., Cutright v. Weyerhaeuser Co., 299 Or. 290, 301, 702 P.2d 403 (1985) (court declined to rely on dictum that was a "questionable pronouncement" as to meaning of earlier workers' compensation statute). In Vsetecka, it should be recalled, the court took care to explain that the "when and where and how" requirement applied only to the first method of providing notice to the employer; it does not apply to reports or statements that the employer secures from the worker because the "report or statement" provision omits any reference to such a requirement. 337 Or. at 510, 98 P.3d 1116. By parity of reasoning, the requirement that the notice be in writing would not apply to the "report or statement" provision, because that provision omits any reference to a writing requirement as well. Still, the court said what it said, and we regard the statement, along with the textual analysis that we have described, as at least plausible support for interpreting the statute to impose a requirement that all forms of notice be in writing.
In short, taken together, subsections (1), (2), (3), and (6) reasonably may be interpreted to impose a requirement that a worker provide notice to the employer of an accident or injury and that the notice that the worker must provide to the employer must be in writing.
2. Second possibility: The "report or statement" alternative
There is at least one other interpretation of the statute that is plausibly supported by the text of the statute in context. It is possible to read ORS 656.265 as describing three different ways that the notice requirement stated in subsection (1) may be satisfied, only two of which impose a requirement that the notice be in writing.
First, the statute provides that the notice "shall be in writing and shall apprise the employer when and where and how an injury has occurred to a worker." ORS 656.265(2). Second, the statute provides, as an alternative, that "[a] report or statement secured from a worker, or from the doctor of the worker and signed by the worker, concerning an accident which may involve a compensable injury shall be considered notice from the worker[.]" Id. Third, the statute provides in subsection (6) that the director must prescribe "uniform forms to be used by workers in reporting their injuries to their employers."
The legislature thus took the trouble to describe three different ways to satisfy the notice requirement of subsection (1). And in describing the second of those three different methods of supplying notice, the "report or statement" method, the legislature omitted any express reference to a writing requirement. Certainly, in common parlance, "reports" or "statements" may take either written or oral form. Webster's Third New Int'l Dictionary 1925, 2229 (unabridged ed. 2002) (defining "report" as, among other things, "something that gives information: usu. detailed account or statement" and defining "statement" as including "the act or process of stating, reciting, or presenting orally or on paper"). And the legislature commonly uses the terms to refer to both oral and written communications. ORS 17.075, for example, provides that "[a]n employer whose interest is or may become adverse to that of an injured employee shall not, within 15 days from the date of the occurrence causing the employee's injury * * * [o]btain or attempt to obtain any statement, either written or oral, from the injured *626 employee." (Emphasis added.); see also ORS 36.504 ("delivery of the expert's written or oral report"); ORS 124.065(1) (referring to "oral reports" of elder abuse); ORS 128.891(2) (referring to "[a]ny written or oral statement in connection with a solicitation of contributions"); ORS 419B.020(1) ("oral report of child abuse").
Moreover, the legislature knows how to impose a requirement that notice be presented in writing, as illustrated by the immediately preceding sentence of subsection (2), which provides that the first method of providing notice "shall be in writing." In this case, it did not do so, giving rise to the reasonable inference that it intended that a writing not be required.
What is more, reading "report or statement" to refer only to writings creates the potential for redundancy. If, under the preceding sentence of subsection (2), it is already required that notice take the form of a writing, what is the point of adding a second sentence to the statute, providing that a report or statement secured from the worker "shall be considered notice from the worker"? Ordinarily, we are constrained to construe statutes to avoid such potential redundancies. See, e.g., State v. Young, 196 Or.App. 708, 713, 103 P.3d 1180, rev. den., 338 Or. 583, 114 P.3d 504 (2005) ("Well-worn principles of statutory construction counsel us to avoid, if possible, interpretations that render portions of a statute redundant.").
Adding to the persuasive force of the foregoing reading of ORS 656.265 is the fact that it appears to be how the Supreme Court interpreted it in Vsetecka. Recall that, in that case, the worker had written in his employer's injury log certain information about an injury, but had omitted a description of precisely how or where the injury occurred. The employer argued that the notice was insufficient, because it omitted that information, which it argued was plainly required by ORS 656.265(2). The court disagreed. The court reasoned that the "when and where and how" information was necessary only if the worker had elected to give his employer notice by the first of the three different ways that the statute permitted notice to be accomplished. Because the statute described alternate ways of satisfying the notice requirement without supplying that particular information, the court held, the omission of the information was not fatal:
"ORS 656.265(1) requires that a worker give his or her employer notice of an accident that results in an injury or death. The first two sentences in ORS 656.265(2) address the form and contents of that notice. They provide: `The notice need not be in any particular form. However, it shall be in writing and shall apprise the employer when and where and how an injury has occurred to a worker.' ORS 656.265(2).
"Viewed in isolation, that text provides support for employer's position. Ordinarily, however, `text should not be read in isolation but must be considered in context.' Stevens v. Czerniak, 336 Or. 392, 401, 84 P.3d 140 (2004). Context includes other provisions of the same statute. Id. In addition to the text on which employer focuses, ORS 656.265 identifies two other ways in which a worker may notify his or her employer. The third sentence in subsection (2) provides that `[a] report or statement secured from a worker, or from the doctor of the worker and signed by the worker, concerning an accident which may involve a compensable injury shall be considered notice from the worker[.]' The phrase `shall be considered notice' demonstrates that the third sentence describes an alternative way of providing notice; there would be no need for the legislature to state that a report or statement that meets the requirements of the third sentence `shall be considered notice' if the report or statement also satisfied the criteria in the first two sentences of ORS 656.265(2).
"Textually, the notice contemplated by the third sentence of ORS 656.265(2) differs in at least two respects from that described by the first two sentences. The first two sentences describe a writing that the worker gives the employer; the third sentence refers to a statement or report that someone (presumably the employer) secures from the worker or the worker's doctor. Additionally, the third sentence does not repeat the phrase `when and *627 where and how.' It rephrases that requirement and provides that any report or statement `concerning an accident which may involve a compensable injury' shall be considered notice.
"ORS 656.265(6) refers to yet another way of providing notice of a work-related injury. That subsection directs the director of the Department of Consumer and Business Services (department) to promulgate uniform forms for workers to use to report workplace injuries to their employers. It provides that the failure to use the prescribed form `shall not in itself, defeat the claim of the worker if the worker has complied with the requirement that the claim be presented in writing.' ORS 656.265(6). The last sentence implies that submitting a completed form will constitute notice even though, as claimant notes, the form that the director has prescribed does not require a worker to state `when and where and how' the injury occurred but asks instead a more general question.
"The foregoing recitation of text and context leads to three observations. First, ORS 656.265 does not prescribe a single form of notice. Rather the statute explicitly provides that notice need not take a particular form and identifies three ways of providing notice: (1) a worker may give notice to the employer; (2) an employer may secure a report or statement from the worker or the worker's doctor; or (3) a worker may submit a prescribed form to the employer. Second, in identifying those different ways of providing notice, the legislature has referred to the content of the notice in different ways. The statute refers to (1) giving notice that apprises an employer `when and where and how' the injury occurred; (2) securing a report or statement `concerning an accident which may involve a compensable injury'; and (3) submitting a form that contains the information that the director prescribes."
Vsetecka, 337 Or. at 508-10, 98 P.3d 1116 (s omitted; first emphasis added).
The court's reasoning reasonably may be applied to this case. Just as the "report or statement" provision of subsection (2) omits any reference to notice of "when and where and how" an injury occurred, it also omits any requirement that notice be in writing. Just as the omission suggests that the legislature intended the "when and where and how" requirement not to apply to that alternative method of providing notice under ORS 656.265(2), it would seem logically to follow that it suggests that the legislature intended the writing requirement not to apply either.
It may be objected that reading the "report or statement" to apply to oral communications from the worker is inconsistent with other provisions that appear to assume that notice must be in writing. As we noted when describing the alternative construction, the second sentence of subsection (2) does plainly say that notice must be in writing. In addition, subsection (3) imposes a requirement of serving the notice by mail or personal delivery. Those provisions are inconsistent, however, only if it is assumed that they apply to the "report or statement" provision in the first place. As the Supreme Court explained in Vsetecka, that provision constitutes a separate method of providing notice, one thatnotwithstanding the requirements that may apply to the other two methods"shall be considered notice from the worker[.]" ORS 656.265(2). In other words, whatever requirements may apply to the other methods of satisfying the notice requirement described in ORS 656.265(1), a report or statement secured from the worker suffices. The other requirements simply do not apply.
It may also be objected that the "report or statement" provision at least implicitly assumes that notice will be given in writing because it requires the employer to deliver a "copy" to the worker once the report or statement has been secured. The word "copy," however, is not necessarily limited to writings. Webster's at 504 (defining "copy" to include "an imitation, transcript, or reproduction of an original work"). The legislature employs the term to refer to duplicates of audio recordings, see, e.g., ORS 161.385(8)(b) ("The record may include a certified true copy of a tape recording of the proceeding[.]"), as well as reproductions of communications in different media from the form of the original, see, e.g., ORS 192.440 *628 ("If the public record is maintained in a machine readable or electronic form, the custodian shall provide copies in the form requested, if applicable. If the public record is not available in the form requested, it shall be made available in the form in which it is maintained."), and sometimes specifically as a written documentation of an oral communication, see, e.g., ORS 476.580 ("However, written copies of such oral order shall be filed and dispatched as soon after issuing such order as is conveniently possible[.]").
In short, the text of ORS 656.265 is susceptible of a construction that permits a worker to satisfy the statutory notice requirement by means other than written notice. Particularly in light of the Supreme Court's holding in Vsetecka, that construction even appears the more likely. There is, of course, the dictum in the same opinion that notice always must be in writing, but, as we have noted, that dictum itself is not easily reconciled with the reasoning on which the court relied in reaching the holding of the case. In consequence, regardless of which construction we adopt, we find ourselves at odds with some aspect of Vsetecka. On balance, it strikes us as more appropriate to adopt a construction that conforms to the reasoning that supports the holding of the case, even if at the expense of conformity with other aspects of the decision.
B. Legislative History
Thus far, our analysis of the text in context leads us to conclude that the legislature most likely intended ORS 656.265 to permit a worker to satisfy the notice requirement of subsection (1) by any of three different methods, one of which does not expressly require that the notice be presented in writing. That method requires that the employer secure from the worker a "report or statement" concerning an accident that may involve a compensable injury. ORS 656.265(2). Particularly in light of the Supreme Court's analysis of the statute in Vsetecka and its conclusion that the differences in phrasing between the different methods of providing notice have legal significance, the alternative construction becomes more difficult to sustain. That does not mean that the statute is not ambiguous, however. After all, the threshold of ambiguity is a low one. It does not require that competing constructions be equally tenable. It requires only that a competing construction not be "wholly implausible." Owens v. MVD, 319 Or. 259, 268, 875 P.2d 463 (1994); State v. Walker, 192 Or.App. 535, 542, 86 P.3d 690 (2004). We turn, then, to the legislative history to determine whether there is anything in the record of enactment that demonstrates that what we have concluded from the textual analysis is incorrect.
Our examination of that enactment history reveals nothing of the sort. In fact, the legislative history reveals little of pertinence to the issue. What is now ORS 656.265 originated in 1965, as section 30a of House Bill (HB) 1001, a significant restructuring of the state workers' compensation statutes. That section of the bill, as ultimately enacted, provided, in part:
"(1) Notice of an accident resulting in an injury or death shall be given immediately by the workman or his dependent to the employer, but not later than 30 days after the accident. The employer shall acknowledge forthwith receipt of such notice.
"(2) The notice need not be in any particular form. However, it shall be in writing and shall apprise the employer when and where and how an injury has occurred to a workman. A report or statement secured from a workman concerning an accident which may involve a compensable injury shall be considered notice from the workman and the employer shall forthwith furnish the workman a copy of any such report or statement.
"(3) Notice shall be given to the employer by mail, addressed to the employer at his last-known place of business, or by personal delivery to the employer or to a foreman or other supervisor of the employer. If for any reason it is not possible to so notify the employer, notice may be given to the board and referred to the department or the direct responsibility employer."
Or. Laws 1965, ch. 285, § 30a.
The bill was referred to the House Committee on Labor and Management. It appears *629 that section 30a of the bill was discussed only once, and then only in general terms. A three-person panel of witnesses testified before the committee, summarizing the effect of each section of the proposed legislation. The minutes of the hearing reflect that one of the panel members, Charles Gill, director of what was then the State Industrial Accident Commission, explained that section 30a "requires the worker to give notice of the accident to his employer and failure to give notice within 60 days after the accident is a possible bar to the claim." Minutes, House Committee on Labor and Management, Jan. 25, 1965, 1. Bill Moshofsky, from the Committee on Fair Workmen's Compensation, added that "this section imposes on the workman some obligation to notify the employer of the accident. This allows the employer some chance to see whether there is a compensable injury." Id. Our review of the tape recordings of the hearings and the floor debates does not reveal anything else of relevance.
The legislative history thus may support a conclusion that the broader purpose of the statute is to require claimants to provide sufficient notice to enable the employer to determine whether an investigation is advisable. Beyond that, however, it says nothing about the purpose of the requirement that the claimant's notice be presented in writing.
The statute has been amended several times since 1965. In 1971, the legislature amended subsection (2) of the statute to add a provision that permitted a report or statement from the worker's doctor also to serve as notice to the employer. Or. Laws 1971, ch. 386, § 2. And, in 1995, the legislature extended the time period within which the worker must provide notice from 30 days to 90 days. Or. Laws 1995, ch. 332, § 29.
Some legislative history of the 1995 amendment at least arguably bears on the matter at hand. In hearings before a joint session of the Senate Labor and Government Operations Committee and the House Labor Committee, the drafter, Representative Kevin Mannix, explained that the amendment "first of all, changes the current law that at the beginning says you have 30 days to file written notice of a claim, to give you 90 days." Tape Recording, Senate Labor and Government Operations and House Labor Committee, SB 369, Jan. 30, 1995, Tape 15, Side B. He explained that the purpose of that provision was to benefit the worker. Id. "At the other end of the spectrum," he explained, the statute provides that, "if a year has passed, even if employer knew about this, and nothing else was done; if you sat around a year and you have done nothing, your claim expires. * * * But if you have done nothing for a year and a written claim wasn't filed, the claim expires." Id. (emphasis added). As we have noted, the remarks do at least arguably pertain to the issue before us; in fact, the Workers' Compensation Board cited them in support of its own initial interpretation of ORS 656.265 to require the worker to present written notice. In the Matter of Kephart, 54 Van Natta 1369, 1371 n. 3 (2002). We are less inclined to rely on that history, however, as it post-dates the enactment of the actual statutory wording at issue. Salem-Keizer Assn. v. Salem-Keizer Sch. Dist. 24J, 186 Or.App. 19, 26, 61 P.3d 970 (2003) (subsequent statements of legislators are not probative of the intent of statutes already in effect).
C. Third-Level Considerations
Assuming for the sake of argument that the statute remains ambiguous, nothing in any of the relevant "third-level" canons of construction suggests that our tentative conclusion with respect to the meaning of ORS 656.265 is incorrect. To the contrary, relevant "third-level" considerations suggest that our conclusion is the only proper one.
In evaluating competing plausible interpretations of a statute, we are counseled to adopt the construction that is the one closest to what we anticipate the legislature would have intended us to adopt had it confronted the matter. See, e.g., State v. Brooks, 187 Or.App. 388, 398, 67 P.3d 426, rev. den., 335 Or. 578, 74 P.3d 112 (2003). In conducting that inquiry, we are guided by what the legislature or the courts have identified as the broader purpose of the statute. See, e.g., Linn-Benton-Lincoln Ed. v. Linn-Benton-Lincoln ESD, 163 Or.App. 558, 570, 989 P.2d 25 (1999) ("[A] court should attempt *630 to construe the language of a statute in a manner consistent with its purpose.").
In this case, as we have noted, the legislative history suggests that the purpose of the statutory notice requirement that is expressed in ORS 656.265 is to ensure that the employer obtains information sufficient to enable the employer to determine whether an investigation into an accident is advisable. The courts have characterized the purpose of the statute in similar terms. In Colvin v. Industrial Indemnity, 301 Or. 743, 747, 725 P.2d 356 (1986), for example, the Supreme Court explained that the purpose of the notice requirement is to "facilitate[] prompt investigation and diagnosis of the injury." Likewise, in Vsetecka, the court characterized the purpose of the notice provisions of ORS 656.265 as ensuring "prompt notice so that an employer can conduct a timely investigation into the nature and cause of a worker's injury." 337 Or. at 510, 98 P.3d 1116. The court added that it is clear that the legislature "did not intend to impose formalistic requirements on notice" as long as the worker provides enough information about an accident or injury "to put an employer on notice that the injury may be compensable and thus that an investigation may be advisable." Id. at 511, 98 P.3d 1116.
An oral report or statement secured by an employer from a worker would seem to comply with those purposes, so long as the report or statement contains the required information. Imposing a requirement that the report or statement be presented in writing does not advance those identified purposes and, to the contrary, could serve to frustrate the intended operation of the statute.
D. Application
In this case, employer secured from claimant an oral report or statement that, on the previous day, she had injured her wrist at work. She explained to employer how the injury occurred and the particulars of the injury itself. Employer entered the information into its computerized database designed for reporting on-the-job injuries. No one suggests that the substance of the information in any way falls short of what the statute requires to constitute notice under ORS 656.265. Employer's sole contention is that, because claimant's communication was oral in form, it cannot constitute the notice that the statute requires. As we have noted, it is unlikely that the legislature intended that a report or statement secured from a worker would fail to qualify as "notice" within the meaning of the statute solely because it was not secured from the worker in written form. Imposing such a technical requirement, in fact, would seem to frustrate what it appears is plainly the purpose of the statute, particularly in a case when the substance of the worker's oral communication otherwise provides the employer with all the information that the statute requires.
We hold that the board erred in concluding that claimant failed timely to provide notice under ORS 656.265.
Reversed and remanded for reconsideration.
ARMSTRONG, J., concurring.
I agree with the majority's conclusion that, on these facts, the notice requirement of ORS 656.265 is satisfied. I also agree that the best construction of the statute is to conclude that a report or statement secured by the employer need not be in writing from the worker. I write to explain that, to the extent that the statute does require a writing, that requirement is satisfied here.
The majority is correct to conclude that the Supreme Court's statement in Vsetecka v. Safeway Stores, Inc., 337 Or. 502, 510, 98 P.3d 1116 (2004), that "the one constant, which the last sentence in subsection (6) makes clear, is that the notice must be in writing," is dictum. As the majority keenly observes, in Vsetecka, the claimant gave the employer written notice; therefore, the question whether the notice had to be in writing was not before the court and was not necessary to the decision. Thus, the court's statement that "the notice must be in writing" is dictum in the classic sense of the term. The majority is also correct that the statement is in tension with the ultimate conclusion in Vsetecka. Therefore, the majority's reasoning that we must follow the logic of Vsetecka's holding rather than its dictum is sound. *631 But, we need not necessarily reject the Supreme Court's dictum in this case. Even assuming that the Supreme Court was correct that the notice must be in writing, the writing requirement is satisfied here because the electronic record created by employer is, by operation of ORS 84.019, a writing. Before explaining the operation of that statute, I grapple further with the Supreme Court's dictum in Vsetecka.
In Vsetecka, the Supreme Court relied on ORS 656.265(6) to support its statement that "the one constant [among the three ways to provide notice], which the last sentence in subsection (6) makes clear, is that the notice must be in writing." 337 Or. at 510, 98 P.3d 1116. ORS 656.265(6) provides:
"The director shall promulgate and prescribe uniform forms to be used by workers in reporting their injuries to their employers. These forms shall be supplied by all employers to injured workers upon request of the injured worker or some other person on behalf of the worker. The failure of the worker to use a specified form shall not, in itself, defeat the claim of the worker if the worker has complied with the requirement that the claim be presented in writing."
(Emphasis added.) As the majority notes, subsection (6) "reflects a requirement that `the claim' * * * be presented in writing." 202 Or.App. at 679, 124 P.3d at 624. In other words, subsection (6) does not impose that requirement, it merely references it. The requirement that the claim be presented in writing comes from ORS 656.005(6), which defines "claim" to mean "a written request for compensation from a subject worker or someone on the worker's behalf." (Emphasis added.) It is undebatable that a claim for compensation must be presented in writing; the debate in this case is whether notice of a potentially compensable injury must be presented in writing. The significance of that distinction comes to light when one compares the language of ORS 656.265 with the Supreme Court's statement in Vsetecka. The "one constant" identified by the Supreme Court is not that the notice must be presented in writing, but "that the notice must be in writing." Thus, the Supreme Court's statement in Vsetecka could be understood to mean that, so long as there is a writing, the statute is satisfied and the source of the writing is irrelevant. Thus, it is possible to be faithful to both the holding and the dictum in Vsetecka by construing ORS 656.265(2) to permit an oral report or statement by a worker, reduced to writing by the employer, to constitute notice.
Under such a construction, claimant satisfied the notice requirement. Admittedly, entering claimant's statement into an electronic database seems to be an action of a different quality than physically taking pen to paper to record the statement. However, it is a distinction without a difference.
In 2001, Oregon passed the Uniform Electronic Transactions Act (UETA), codified at ORS 84.001 to 84.061. The UETA applies to electronic records, which are defined as records "created, generated, sent, communicated, received or stored by electronic means." ORS 84.004(7). For purposes of the act, "`[e]lectronic' means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities." ORS 84.004(5). However, the UETA applies only to electronic records related to "transactions between parties, each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct." ORS 84.013(2); ORS 84.007. A "transaction" is "an action or set of actions occurring between two or more persons relating to the conduct of business, commercial or governmental affairs." ORS 84.004(16). Most crucially to this case, ORS 84.019(3) provides that, "[i]f a law requires a record to be in writing, an electronic record satisfies the law."
The transaction in question here consists of the reporting and recording actions by claimant and employer, respectively, relating to claimant's purported on-the-job injury. An on-the-job injury is certainly a business affair, and the actions by claimant and employer were related to it; therefore, this was a transaction for purposes of ORS 84.004(16). Furthermore, it can be inferred from the *632 parties' conduct that both agreed to conduct the transaction by electronic means. See ORS 84.013(2). Thus, the reporting and recording of claimant's injury was a transaction within the scope of the UETA. Consequently, by operation of ORS 84.019(3), the electronic record that employer created of claimant's statement was a writing. Thus, the employer secured an oral report or statement from claimant and reduced it to a writing, satisfying the notice requirement of ORS 656.265.
The fact that neither party cited the UETA to us or to the Workers' Compensation Board is of no import. Claimant argued to the board below that, "[o]nce text is entered into a database, a `writing' exists in fact, only to be retrieved by the party in control of such, the employer. To deny the existence of a `writing' * * * is to ignore the very nature of electronic communications." She renews that argument before us. Claimant's arguments capture the underlying policy behind the UETA, although she does not cite that statute. Nonetheless, "the parties may not prevent a court from noticing and invoking an applicable statute by relying only on other sources of law." Miller v. Water Wonderland Improvement District, 326 Or. 306, 309 n. 3, 951 P.2d 720 (1998). Thus, we may consider the effect of the UETA on this case.
In sum, employer secured an oral statement from claimant and reduced it to writing by entering it into its electronic database. Thus, to the extent that ORS 656.265 requires a writing, that requirement is satisfied on these facts.
For those reasons, I concur in the majority's result.
NOTES
[*] Brewer, C.J., vice Richardson, S.J.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2550447/
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124 P.3d 635 (2005)
156 Wash.2d 140
STATE of Washington, Petitioner,
v.
Shelly Marie OSE, Respondent.
No. 76425-5.
Supreme Court of Washington.
Argued October 25, 2005.
Decided December 15, 2005.
*636 Andrew J. Metts, Spokane County Prosecutor's Office, Spokane, for Petitioner/Appellant.
David N. Gasch, Gasch Law Office, Spokane, for Appellee/Respondent.
En Banc.
OWENS, J.
¶ 1 We are asked to identify the unit of prosecution for the crime of possessing "a stolen access device" in violation of RCW 9A.56.160(1)(c). In addition, we are asked whether respondent Shelly Ose's exceptional sentence violated the Sixth Amendment to the United States Constitution as interpreted in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We find that the legislature unambiguously established the unit of prosecution in RCW 9A.56.160(1)(c) as each stolen access device in a defendant's possession. Thus, we reverse the Court of Appeals and hold that the trial court did not put Ms. Ose in double jeopardy by convicting her multiple times for possessing multiple access devices. However, because Ms. Ose's exceptional sentence violated Blakely, we vacate the sentence and remand for resentencing within the standard sentencing range.
FACTS
¶ 2 On January 30, 2002, after a series of car prowlings and use of stolen credit cards, Ms. Ose pleaded guilty to 25 counts of possessing "a stolen access device"[1] in violation of RCW 9A.56.160(1)(c) and one count of first degree theft in violation of RCW 9A.56.030. The trial court imposed an exceptional sentence of 108 months 51 months above the maximum standard range sentence.
¶ 3 On June 24, 2004, while Ms. Ose's appeal was pending, the United States Supreme Court held that the Sixth Amendment requires any fact used to increase a defendant's sentence beyond the standard sentencing range (excluding prior convictions) be proved beyond a reasonable doubt to a jury or admitted by the defendant. Blakely, 542 U.S. at 301-05, 124 S.Ct. 2531. On appeal, Ms. Ose cited Blakely as additional authority; however, Division Three of the Court of Appeals reversed Ms. Ose's convictions on double jeopardy grounds and did not reach the Blakely issue.
¶ 4 The State petitioned this court for review, which we granted on July 12, 2005. State v. Ose, noted at 154 Wash.2d 1020, 116 P.3d 398 (2005).
ISSUES
¶ 5 (1) What is the unit of prosecution for possessing "a stolen access device" in violation of RCW 9A.56.160(1)(c)?
¶ 6 (2) Does Ms. Ose's exceptional sentence violate the Sixth Amendment as interpreted in Blakely?
ANALYSIS
¶ 7 Standard of Review. This court reviews de novo whether the lower court correctly identified the unit of prosecution in a statute. State v. Graham, 153 Wash.2d 400, 404, 103 P.3d 1238 (2005). We also review de novo whether the factors cited by the lower court justify an exceptional sentence. State v. Law, 154 Wash.2d 85, 93, 110 P.3d 717 (2005).
*637 ¶ 8 Unit of Prosecution. The United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. Similarly, the Washington State Constitution provides that "[n]o person shall be ... twice put in jeopardy for the same offense." WASH. CONST. art. I, § 9. These two clauses provide identical protection. State v. Tvedt, 153 Wash.2d 705, 710, 107 P.3d 728 (2005) (citing In re Pers. Restraint of Davis, 142 Wash.2d 165, 171, 12 P.3d 603 (2000)). Both constitutions "`protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime.'" Id. (quoting State v. Westling, 145 Wash.2d 607, 610, 40 P.3d 669 (2002)).
¶ 9 While a unit of prosecution issue "is one of constitutional magnitude on double jeopardy grounds, the issue ultimately revolves around a question of statutory interpretation and legislative intent." State v. Adel, 136 Wash.2d 629, 634, 965 P.2d 1072 (1998). In determining legislative intent, this court first looks to the statute's plain meaning. Tvedt, 153 Wash.2d at 710, 107 P.3d 728. If the statute is ambiguous as to the unit of prosecution, we apply the "rule of lenity," under which any ambiguity must be "`resolved against turning a single transaction into multiple offenses.'" Id. at 710-11, 107 P.3d 728 (quoting Adel, 136 Wash.2d at 635, 965 P.2d 1072).
¶ 10 Here, Ms. Ose pleaded guilty to 25 violations of subsection (c) of the following statute:
A person is guilty of possessing stolen property in the second degree if:
(a) He or she possesses stolen property other than a firearm as defined in RCW 9.41.010 which exceeds two hundred fifty dollars in value but does not exceed one thousand five hundred dollars in value; or
(b) He or she possesses a stolen public record, writing or instrument kept, filed, or deposited according to law; or
(c) He or she possesses a stolen access device; or
(d) He or she possesses a stolen motor vehicle of a value less than one thousand five hundred dollars.
RCW 9A.56.160(1). In interpreting the above statute, Division Three, relying on State v. McReynolds, 117 Wash.App. 309, 71 P.3d 663 (2003), reversed Ms. Ose's convictions and held that the trial court put Ms. Ose in double jeopardy because "`possession of property owned by different persons is only a single crime'" and therefore "Ms. Ose's possession was a single act constituting one offense." State v. Ose, noted at 123 Wash.App. 1057, 2004 WL 2407142, at *2, 2004 Wash.App. LEXIS 2433, at *4 (quoting McReynolds, 117 Wash.App. at 336, 71 P.3d 663).
¶ 11 The State argues that Division Three's reliance on McReynolds was misplaced and that this court should adopt Division Two's reasoning in State v. Douglas, 50 Wash.App. 776, 751 P.2d 311 (1988). In McReynolds, the defendants were convicted of possessing stolen property but not specifically of possessing a stolen access device. The McReynolds court held that "continuous possession of various property during a period of 15 days ... is a single possession. The separate convictions for the single possession violated the prohibition against double jeopardy." 117 Wash.App. at 340, 71 P.3d 663 (second emphasis added). In contrast, in Douglas, the defendant was charged with two counts of second degree possession of stolen property specifically for possessing stolen access devices. 50 Wash.App. at 777, 751 P.2d 311. In interpreting RCW 9A.56.160(1)(c), the Douglas court held that "[t]he plain language of the statute indicates that the possession of one stolen credit card... would warrant a charge of second degree possession. It follows that additional items would warrant additional charges.... The language of the statute is plain and unambiguous." Id. at 779, 751 P.2d 311 (citation omitted). Thus, the Douglas court concluded that the statute "clearly allows a one count per card rule." Id. at 777, 751 P.2d 311.
¶ 12 We agree with the Douglas court that the legislature unambiguously defined the unit of prosecution in RCW 9A.56.160(1)(c) as one count per access device *638 by using the indefinite article "a" in the clause "a stolen access device." Webster's provides the following definition for "a":
1-used as a function word before most singular nouns other than proper and mass nouns when the individual in question is undetermined, unidentified, or unspecified...; used with a plural noun only if few, very few, good many, or great many is interposed.
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 1 (2002). Thus, because the word "a" is used only to precede singular nouns except when a plural modifier is interposed, the legislature's use of the word "a" before "stolen access device" unambiguously gives RCW 9A.56.160(1)(c) the plain meaning that possession of each stolen access device is a separate violation of the statute.
¶ 13 Ms. Ose's attempt to read ambiguity into the statute is unpersuasive. Relying on an older dictionary, Ms. Ose defines "a" as "not any particular or certain one of a class or group: a man; a chemical; a house." Resp't's Supp. Br. at 11 (citing WEBSTER'S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE (1996)). Applying this definition, Ms. Ose argues that "a stolen access device" should be read as "any stolen access device" and, from here, "one could logically argue that any number of stolen access devices would constitute only one unit of prosecution." Id. at 11-12.
¶ 14 Perhaps "one could logically argue" that "a" means "any number"; however, a statute is "not ambiguous merely because different interpretations are conceivable." Id.; State v. Tili, 139 Wash.2d 107, 115, 985 P.2d 365 (1999). Moreover, the very definition that Ms. Ose cites undermines her argument for application of the rule of lenity. While "a" may at times be synonymous with "any," the rest of the definition, i.e., "one of a class," indicates that "a" can mean "any one" but not "any number."
¶ 15 Moreover, this court has consistently interpreted the legislature's use of the word "a" in criminal statutes as authorizing punishment for each individual instance of criminal conduct, even if multiple instances of such conduct occurred simultaneously. For example, in Westling, we considered the second degree arson statute and the difference between the word "a" and the word "any." The statute at issue in Westling provided that "[a] person is guilty of arson in the second degree if he knowingly and maliciously causes a fire or explosion which damages a building, or any ... automobile." RCW 9A.48.030(1) (emphasis added). The Westling court held that because the legislature used the words "a fire," the unit of prosecution for the arson statute was per fire caused by the defendant. 145 Wash.2d at 611-12, 40 P.3d 669. In contrast, the court found the language "any ... automobile" indicated that only "one conviction is appropriate where one fire damages multiple automobiles." Id.
¶ 16 Similarly, in State v. Root, 141 Wash.2d 701, 9 P.3d 214 (2000), we considered how the legislature's use of the words "a minor" in the sexual exploitation of a minor statute, RCW 9.68A.040, impacted the unit of prosecution analysis. The Root court ultimately concluded that because "[t]he statute specifically states `a minor,' ... [the defendant] may be charged per child involved." Id. at 710-11, 9 P.3d 214.
¶ 17 Likewise, in State v. DeSantiago, 149 Wash.2d 402, 68 P.3d 1065 (2003), we interpreted RCW 9.94A.533(3) and (4), which allows sentence enhancement if a defendant or an accomplice was armed with "`a' firearm" or "`a' deadly weapon." Id. at 418, 68 P.3d 1065. We concluded that the statute allows a defendant to "be punished for `each' weapon involved." Id. at 419, 68 P.3d 1065.
¶ 18 Most recently, in Graham, we considered the unit of prosecution for the reckless endangerment statute, which provides that "[a] person is guilty of reckless endangerment when he or she recklessly engages in conduct not amounting to drive-by shooting but that creates a substantial risk of death or serious physical injury to another person." RCW 9A.36.050(1) (emphasis added). The Graham court interpreted "another" as a "compound of `an + other,' and the indefinite article `an' means `a,' the letter n being an addition before a following vowel *639 sound." 153 Wash.2d at 406 n. 2, 103 P.3d 1238 (citing WEBSTER'S, supra, at 89, 75). Accordingly, we held that "[i]n light of the plain language of RCW 9A.36.050(1), as well as the nature of reckless endangerment as a crime against the person, ... the unit of prosecution for the crime of reckless endangerment is each person endangered." Id. at 407-08, 103 P.3d 1238.
¶ 19 When this court engages in statutory construction we presume that the legislature is aware of our prior interpretations of its enactments. Tili, 139 Wash.2d at 116, 985 P.2d 365 (citing Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wash.2d 488, 496, 825 P.2d 300 (1992)). Thus, consistent with our prior construction of similarly worded statutes, we now hold that the legislature, by use of the language "a stolen access device," unambiguously defined the unit of prosecution in RCW 9A.56.160(1)(c) as each access device in a defendant's possession. Accordingly, we hold that Ms. Ose's multiple convictions for possessing multiple stolen access devices did not violate the double jeopardy prohibition.
¶ 20 Exceptional Sentence. In 2004, while Ms. Ose's appeal was pending, the United States Supreme Court ruled that the Sixth Amendment requires any fact used to increase a defendant's sentence beyond the standard sentencing range (excluding prior convictions) to be proved beyond a reasonable doubt to a jury or admitted by the defendant. Blakely, 542 U.S. at 301-05, 124 S.Ct. 2531. However, not every aggravating factor need be valid in order for this court to uphold an exceptional sentence. State v. Hughes, 154 Wash.2d 118, 134, 110 P.3d 192 (2005) (citing State v. Jackson, 150 Wash.2d 251, 276, 76 P.3d 217 (2003)).
¶ 21 In the present case, none of the factors that the trial court relied on to justify Ms. Ose's exceptional sentence withstand scrutiny under Blakely. The trial court imposed the exceptional sentence because Ms. Ose's sentence would otherwise be "clearly too lenient" in that (1) "the crimes committed required a high degree of planning and sophistication," (2) "the crimes impacted a large number of victims," (3) the crimes resulted in "major economic harm," and (4) Ms. Ose would be given "`free crimes'" because her "standard range would not change once she got to an offender score of nine." Verbatim Report of Proceedings at 51; Clerk's Papers at 55-56. The first three of these factors unquestionably require factual determinations which should be left to the jury under Blakely. In addition, in Hughes, we rejected the argument that the "free crimes" factor fits within the "prior convictions" exception to the Blakely rule. 154 Wash.2d at 138-40, 110 P.3d 192. Thus, here, because none of the aggravating factors relied upon by the sentencing court were proved to a jury or admitted by Ms. Ose, we vacate Ms. Ose's sentence and remand for resentencing within the standard range.
CONCLUSION
¶ 22 We reverse the Court of Appeals and hold that the legislature unambiguously defined the unit of prosecution for violations of RCW 9A.56.160(1)(c) as possession of each access device. Therefore, Ms. Ose's multiple convictions for possession of multiple access devices did not violate the double jeopardy prohibition.
¶ 23 However, we vacate Ms. Ose's sentence and remand for resentencing within the standard sentencing range. The sentencing court's imposition of an exceptional sentence violated Blakely because the facts used in justifying the exceptional sentence were neither proved to a jury nor admitted by Ms. Ose.
ALEXANDER, C.J., C. JOHNSON, MADSEN, SANDERS, BRIDGE, CHAMBERS, FAIRHURST and J.M. JOHNSON, JJ., concur.
NOTES
[1] An "[a]ccess device" is defined as "any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument." RCW 9A.56.010(1).
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2550450/
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124 P.3d 634 (2005)
FOSTER v. SAUNDERS.
No. 20050605.
Supreme Court of Utah.
September 21, 2005.
Petition for certiorari denied.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2550454/
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280 Kan. 681 (2005)
STATE OF KANSAS, Appellee,
v.
CORNELIUS DEVON OLIVER, Appellant.
No. 88,987.
Supreme Court of Kansas.
Opinion filed December 16, 2005.
*682 Debra J. Wilson, capital appellate defender, argued the cause and was on the brief for appellant.
Debra S. Byrd Peterson, deputy district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
*683 The opinion of the court was delivered by
BEIER, J.
This case arises out of a quadruple homicide in Wichita. Defendant Cornelius Oliver appeals his convictions and hard 50 sentences on two counts of first-degree premeditated murder and two counts of first-degree felony murder in the deaths of Jermaine Levy, Quincy Williams, Odessa Ford, and Raeshawnda Wheaton.
Oliver raises five issues: (1) Did the police have probable cause to support his arrest? (2) Did the district court err in limiting testimony regarding his psychological disorders? (3) Did the district court err in instructing the jury on the lesser included offenses of capital and premeditated murder? (4) Was an instruction on compulsion warranted? and (5) Is the hard 50 sentencing statute unconstitutional?
Facts
Investigation of the murders at the center of this case began when a Wichita police officer was dispatched to a house on a shooting complaint. Inside the house, the officer found four dead bodies. The bodies of Jermaine Levy, Quincy Williams, and Odessa Ford were in the front room. Raeshawnda Wheaton's body was in a bedroom.
Levy was sitting on the floor, leaning against a couch. Two bullets fired from a .380 semi-automatic handgun were recovered from his body; the points of entry were the lower left side of his head and the lower left side of his neck. One of his pockets was pulled out. Williams was facing a television and sitting on another couch. He had been shot three times, twice with a .38 caliber special revolver and once with the .380 handgun. Williams' entry wounds were on the top left side of his head, above his left eyebrow, and in the center lower area of his head. A bullet was found underneath Williams that had been fired from the .38 revolver. Ford was lying on her back on the floor. She had been shot in the head with a .38 revolver from 3 feet to 6 feet away. Investigators found no defensive wounds on these three victims.
In the bedroom, there was a bullet hole in the doorway to the closet and in the wall. These bullets had been fired from the .38 *684 revolver. Wheaton was sitting between a wall and a bed. She had a pillow clutched to her face, and there were two bullet holes in the pillow. Wheaton sustained a graze wound on her left hand and a graze wound on her left cheek, which were classified as defensive wounds. Another shot went through her wrist. She had also been shot in the top of her head at close range. These bullets were fired by the .380 handgun.
Various shell casings from the .380 handgun were found at other points in the house. Police also found a live .380 round. The markings on it were consistent with a misfeed.
Jesse Hardyway, a friend of Williams, arrived at the house before the police. He testified that a video game was on the television on pause and that Williams had a video controller in his hand. Hardyway also testified that Ford was selling drugs for defendant out of her house. Another person who entered the house testified that he took the adapter to the video game.
In the bedroom, a ceiling tile had been moved. The police recovered a small amount of drugs and money from the ceiling.
Before arresting defendant Oliver, the police knew he and Wheaton shared a violent romantic history. They also knew Oliver was a gang member, and Levy and Williams were affiliated with a rival gang. The police were wary, however, of assuming the crimes were gang-related. Neither Levy nor Williams had been in a defensive position, and each appeared to have been shot from behind. Further, the killing of the two women, while not unheard of, would have been rare in gang crime. The police therefore decided to explore robbery and domestic violence, in addition to the gang theory, as motives for the murders.
There had been no forced entry, and the investigators concluded that the shooter was probably someone familiar to the victims. While at the crime scene, a police officer had received a sheet of paper with defendant's name written on it from an unidentified person.
Wheaton's father informed police about Wheaton's rocky relationship with Oliver and told them people suspected Oliver had committed the crime. He also told them that Oliver often stole *685 Wheaton's car. Wheaton's mother reported to police that Oliver had pulled a gun on Wheaton.
The police also learned from Ford's mother that Wheaton had described a fight with Oliver in which he dropped his gun and she picked it up and shot him with it. The same day, Wheaton had appeared at a hospital with injuries to her face. She was interviewed by a police officer but refused to file a complaint, claiming a stranger had attacked her. Oliver appeared at another hospital with a gunshot wound to his left shoulder. He also was interviewed by a police officer. Oliver first told the officer that he had been shot in a drive-by shooting; he later claimed he had shot himself.
Ford's mother also told police that Oliver had threatened Wheaton and Ford two days before the murders and that he was crazy. Oliver had said he would "get" the people helping Wheaton.
Police also searched a house associated with defendant and turned up three weapons, including a .380 handgun.
At this point, the police decided to arrest Oliver. One officer testified that, because Oliver had yet to surface and inquire about Wheaton, police feared he might leave town before he could be questioned.
The officers sent to arrest Oliver found him on his brother's porch. Oliver was wearing pants and a sleeveless tank top, which seemed odd to the officers because it was December and cold outside. The officers observed Oliver from their car until he started to leave the porch; then they arrested him. One of the officers testified that he observed blood on the toes of Oliver's shoes. Other clothing belonging to Oliver was found in the garage. Blood from both Oliver and Levy was found on that clothing. Other blood stains on the clothing could not be identified.
After his arrest, Oliver was placed in an interview room for 45 minutes. His shoes were taken, and he was shackled to the floor and handcuffed to the table. He was given Miranda warnings and agreed to speak with officers.
Oliver told the officers different versions of the events on the night of the homicide, initially saying he had nothing to do with the murders. When the officers told Oliver that they had spoken with Earl Bell and Demetrius Butler, whose nickname was "DJ," *686 and that they wanted to clear up some discrepancies, Oliver continued to deny having anything to do with the shootings. Oliver referred to Bell as his "brother" or "stepbrother."
Oliver eventually said he regretted going over to the house where the bodies had been found. In this second version of his story, Oliver said he had walked up to the house, and Ford had opened the door. "Two dudes" were sitting on the couch, looking at him like "we gonna get you or we know who you is and we gonna get you." Oliver said he then talked to Wheaton, and she told him one of the men had a "glock." Oliver realized that the man did not have a "glock" but did have a .380 handgun. The men were playing a video game and calling him names like "crab," which was disrespectful toward his gang. Oliver said he was also seeing "stuff" out of the corner of his eye. He thought one of the men grabbed for his gun; so Oliver shot that man in the head. Ford then ran out of the bedroom, and the other man shot her. Oliver then started shooting again, and he said that he thought he had shot the other man. Oliver said he then ran away, hearing more shots as he was leaving. He claimed that he threw his gun, a .38 caliber revolver, into some bushes.
A detective responded to this story by presenting Oliver with contradictory physical evidence. Oliver then admitted that he had shot Ford once. He also said that he and Wheaton had wrestled and that she had been shot accidentally.
Eventually Oliver told a third version of his story. In this version, he admitted Bell and "DJ" had accompanied him to the house. He again stated that Ford let them in. Again, he claimed Wheaton told him that one of the men at the house had a gun. Oliver admitted that the two men were still playing the video game when he shot both with a .380 handgun in the back of the head. One was still shaking, so Oliver pushed him over. Oliver checked this man's pockets but decided not to take the lighter he felt there. Oliver claimed that his gun jammed, and Bell gave him a .38 revolver. Oliver then entered the bedroom where the frightened women were huddled. Ford started to run; so he shot her. He then fired a warning shot at Wheaton. She cowered under a pillow, and he *687 fired again. Oliver then retrieved his .380 handgun from Bell and shot Wheaton.
Oliver was charged with one count of first-degree premeditated murder pursuant to K.S.A. 21-3401(a) for the killing of Levy and with three counts of capital murder pursuant to K.S.A. 21-3439(a)(6) for the killings of Williams, Ford, and Wheaton.
Oliver testified in his trial, and, again, his account of events changed. This time, Oliver said Bell was the shooter. He asserted that Bell was upset and wanted to go over to Wheaton's house. Butler was carrying Oliver's .380 handgun. When the three arrived, Ford let them into the house. Oliver and Wheaton went into the bedroom to talk. Oliver thought he heard gunshots but did not think anything of it. He then saw Ford stumble. When he returned to the living room, Bell was holding a gun and told him to check Levy. Oliver complied. Bell then entered the bedroom and shot Wheaton. Oliver said he was too frightened to run. He also testified that he believed Bell had set him up, because it was Bell who had told him to wait on his brother's porch the day that Oliver was arrested. Oliver testified he did not inform police that Bell had committed the crimes because he "just [didn't] tell on people."
After trial had begun, the defense sought to introduce expert testimony from psychologist Todd Robert Poch on his diagnoses of Oliver's post-traumatic stress disorder and dependent personality disorder. Defense counsel asserted that the testimony addressed the "psychological environment" for Oliver's confession under Crane v. Kentucky, 476 U.S. 683, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986), and would assist the jury in understanding why Oliver would claim responsibility for murders he did not commit. The State sought to exclude the testimony.
Poch's written report, which had been shared with the prosecution, stated that individuals with dependent personality disorder "tend to be passive and to allow other people (often a single other person) to take the initiative and assume responsibility for most major areas of their lives." Neither disorder, Poch wrote,
"would necessarily render the patient incapable of distinguishing right from wrong or so grossly impair their perception or understanding of reality that they would be incapable of forming a culpable mental state. These disorders could and often *688 do, however, place the patient under substantial duress which can negatively impact their emotional state as well as their capacity to appreciate the full consequences of their behaviors."
Poch's report did not mention the possible effect of Oliver's mental disorders on his capacity to be truthful during police interrogation, but defense counsel's intention to use the expert testimony to question the credibility of Oliver's confession was clear from counsel's written response to the State's motion in limine.
The district court heard argument on the State's motion, first inviting defense counsel to proffer further particulars of the anticipated expert testimony. Defense counsel declined to say anything more about the content of the testimony beyond what had already been disclosed in Poch's report and the response to the motion in limine. The State argued that the post-traumatic stress disorder diagnosis, to the extent it arose out of the crimes, was irrelevant. As to the dependent personality disorder diagnosis, the prosecutor characterized any testimony regarding Oliver's credibility as invading of the province of the jury. In the alternative, the prosecutor argued, if the court decided to allow the testimony out of an abundance of caution because of the capital charges, the testimony should be limited to the existence of the dependent personality diagnosis and the disorder's tendency, as its name implies, to make Oliver dependent on others.
Defense counsel then responded:
"Frankly, Your Honor, . . . if you're going to side with what [the prosecutor] was saying at the end of his argument and allow us to put the doctor up to say he has these diagnoses, you might as well exclude the evidence altogether, because it doesn't do us any good at all. We need to particularize how those diagnoses affect the confession, or the evidence is just floating around in vapor, doesn't help us. I mean, it doesn't help us explain what happened in this case. It doesn't help us to develop any sort of exculpatory theory."
The district court granted the State's motion in limine, emphasizing that the interrogation of Oliver had been videotaped and that the jury would therefore have ample opportunity to view Oliver's and the investigating officers' behavior. The judge regarded Crane, 476 U.S. 683, as distinguishable:
*689 "The psychological environment discussed in Crane is best defined by evidence of duress, coercion, trickery, deceit inflicted upon a defendant by law enforcement in order to extract a confession from an otherwise silent defendant or one proclaiming innocence.
"... [T]he psychological environment contemplated by Crane is behavior on the part of law enforcement tending to show that a defendant's free and independent will was overcome by illegal law enforcement tactics. The evidence proposed by the defendant in this case is not of that nature."
Defense counsel later made a proffer of the excluded evidence during the instructions conference. He said:
"As the Court knows, Dr. Poch has diagnosed Mr. Oliver with two mental disorders, one is post-traumatic stress disorder, the other is dependent personality disorder. His rationale for those diagnoses is contained in the report that we're submitting with this proffer.
"He says that the characteristics of PTSD are present in Mr. Oliver, this disorder would impair his judgment and weaken his emotional responses. It could impact what Mr. Oliver would say in the confession, according to Dr. Poch.
"To make this analogy, he, Dr. Poch, refers to military studies of soldiers who are badly traumatized. He concludes that those soldiers are more likely to make false statements to military tribunals. He says this military code of conduct, the entire military code of conduct is based on the psychological research.
"The conclusion in that code of conduct and from this psychological research is that those who suffer from PTSD are unreliable, will say things intended to remove them from the stressful environment of interrogation. He would not testify that is true of every person who is afflicted with this illness, but he says that is that increases the likelihood of an unreliable statement.
"He also says the military spent millions of dollars studying this very problem and concluded that prior traumatic experiences and interas manifested in interview conditions like those in this case will often lead to an unreliable confession. Accused will simply say he did things that he didn't do.
"The second diagnosis of dependent personality disorder, Dr. Poch says this would explain, among other things, Mr. Oliver's demeanor during thewhich somewhat flat affect during theduring interrogation, and his behavior about things like why he wouldn't run away after the murders from Earl Bell, he says this diagnosis is corroborated by his interview, Dr. Poch's interviews of other witnesses.
"He says thatDr. Poch says that this can offer an explanation for why Mr. Oliver would confess to something he didn't do. People with this disorder are more vulnerable to suggestions of responsibility than other interviewees.
"Dr. Poch also says that if in an environment andinterrogation environment where the defendant was at all being led along would bewas given facts about *690 the crime and asked to confirm or deny them, this would also exacerbate the problem.
"Additionally, people with this disorder are more likely to try to obtain relief from an interrogation environment that they would consider very stressful. And that this dependent personality might explain why Mr. Oliver would confess to crimes that he didn't commit.
"Dr. Poch'sDr. Poch's opinion, people in his situation with his mental defect may well say virtually anything to get themselves out of the interrogation room.
"What Dr. Poch would testify to inin conclusion is thatthat what could probably happen, given these diagnoses, was that there would be a high probability that Cornelius Oliver was giving untrue information, which diminishes the reliability of the confession."
Also at the instructions conference, the defense requested instructions on felony murder, lesser included offenses of capital and first-degree murder, and compulsion. The district court judge gave lesser included instructions on first-degree premeditated and felony murder on each of the capital charges and instructed on felony murder as an alternative on the first-degree premeditated murder charge. The judge denied the defense requests for instructions on still lesser included offenses and rejected the compulsion instruction.
The jury convicted Oliver of first-degree premeditated murder in the killings of the two men, Levy and Williams, and of felony murder in the killings of the two women, Ford and Wheaton. The district court sentenced Oliver to two consecutive hard 50 sentences on the first-degree premeditated murder convictions and to two consecutive life sentences on the two felony-murder convictions.
Probable Cause for Arrest
The parties do not dispute which facts were known to police officers at the time of Oliver's arrest, but Oliver argues those facts were insufficient to supply probable cause for a warrantless seizure of his person. As a result, he contends, his confession should have been suppressed as a fruit of the illegal arrest. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Appellate review of a question of law is unlimited. See State v. Boyd, 275 Kan. 271, Syl. ¶ 2, 64 P.3d 419 (2003) (where facts *691 material to decision on motion to suppress not in dispute, question one of law).
K.S.A. 2004 Supp. 22-2401(c)(1) provides that a police officer may arrest a person if "[t]he officer has probable cause to believe that the person is committing or has committed . . . [a] felony." If a warrantless arrest is challenged by a defendant,
"the burden is on the State to justify the arrest was not only authorized by the statute, but that it was permissible under the Fourth Amendment to the United States Constitution. The constitutional validity of a warrantless arrest depends on whether the arresting officer had probable cause to believe that the person arrested had committed a felony." State v. Aikins, 261 Kan. 346, Syl. ¶ 2, 932 P.2d 408 (1997).
This court has defined probable cause as the reasonable belief that a specific crime has been committed and that the defendant committed the crime. State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004). "Because probable cause does not require evidence of every element of a crime, it must not be confused with proof beyond a reasonable doubt of guilt." Abbott, 277 Kan. at 164. However, probable cause goes beyond mere suspicion. State v. Mayberry, 248 Kan. 369, 376, 807 P.2d 86 (1991).
This court considers the totality of the circumstances to determine whether probable cause existed. This includes "all of the information in the officer's possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt." Abbott, 277 Kan. at 164.
In addition, this court considers two factors when evaluating a warrantless arrest: "the seriousness of the alleged offense and the exigency of the situation, as where immediate arrest seems desirable because of the likelihood that the suspect will flee the jurisdiction." Aikins, 261 Kan. 346, Syl. ¶ 5.
There can be no question in this case that the crimes were very serious. The defense argues, however, that Oliver was arrested without attempting to flee. The State responds that Oliver tried to walk away from his brother's front porch.
Regardless of whether Oliver's departure from the porch can be interpreted as an attempt to flee, the police possessed other evidence against him at the time of his warrantless arrest. The police *692 knew that Wheaton had been Oliver's girlfriend; that their romance had a violent history, including gunfire; that Oliver had threatened to kill Wheaton with a gun and had injured her shortly before the murder; that Oliver had vowed to "get" those helping Wheaton; that Oliver had stolen Wheaton's car; that an anonymous person at the scene of the murders had handed an officer a note with defendant's name on it; that Oliver was in a gang, and Jermaine Levy was in a rival gang; that .380 shells were found at the crime scene; and that a .380 shell was found at a house with which Oliver had an association.
We have previously upheld warrantless arrests when law enforcement had similar evidence.
In Aikins, a case charging felony murder of a liquor store attendant, this court held there was sufficient probable cause for arrest where evidence revealed: A witness testified she saw "a car, fitting the description of [the defendant's] car, pull up to the side of the strip mall where the liquor store was located." Aikins, 261 Kan. at 355. The witness saw a person jump out of the car, run into the store, and run out. A friend of the defendant gave a similar description of the defendant's car. She also stated that the car was used in the robbery and murder, and that the triggerman was staying in an apartment rented in the defendant's name. Aikins, 261 Kan. at 355.
This court also held that the police had sufficient probable cause for the arrest of a suspect for the murder of his girlfriend when evidence revealed: The suspect lived with the victim part-time; the police knew that the suspect and the victim had fought the day before the murder and that the suspect had previously been convicted of the murder of a girlfriend; and the victim's daughter accused the suspect of the killing. Mayberry, 248 Kan. at 377.
Considering all of the information in the possession of the police in this case and other circumstancessuch as Oliver's failure to surface to inquire about Wheaton, law enforcement's reasonable apprehension that he might leave Wichita, and the seriousness of the crimes under investigationwe are satisfied that Oliver's warrantless arrest met both the statutory and the constitutional standards. Because we find no error in denying suppression of the *693 confession that followed Oliver's arrest, we do not reach the State's alternative argument that the confession was sufficiently attenuated from the arrest to be admissible.
Expert Testimony on Psychological Disorders and Defendant's Credibility
Oliver's next issue on appeal concerns the exclusion of Poch's expert testimony about psychological disorders that could have led Oliver to confess falsely. The proffered evidence included Oliver's diagnosis of post-traumatic stress disorder arising from witnessing the crimes and a diagnosis of dependent personality disorder. If permitted to testify, Poch also would have said that these diagnoses resulted in a "high probability" that Oliver gave untrue information in his confession. In other words, the testimony would have gone to Oliver's credibility at the time of his confession, not to the voluntariness of that confession. Oliver contends that granting the State's motion in limine to exclude his expert evidence violated the Sixth and Fourteenth Amendments and that the testimony was admissible under K.S.A. 60-456.
An appellate court generally reviews a trial court's decision on a motion in limine under an abuse of discretion standard. State v. Abu-Fakher, 274 Kan. 584, 594, 56 P.3d 166 (2002). However, our first question when examining a district court's admission or exclusion of evidence is relevance. "Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question." State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004); see also State v. White, 279 Kan. 326, 341, 109 P.3d 1199 (2005) (applying de novo standard to reverse exclusion of expert psychological testimony regarding mental disease or defect; evidence admissible under K.S.A. 22-3220; because evidence integral part of theory of defense, exclusion violated fundamental right to fair trial).
It is obvious that evidence going to the credibility to be afforded a defendant's confession is relevant. Beyond that, a district court's decision on the evidentiary issue in this case should be informed by K.S.A. 60-456 and K.S.A. 22-3215.
*694 K.S.A. 60-456 reads in pertinent part:
"(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
. . . .
"(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact."
Oliver is correct that Poch's proffered testimony met the criteria set forth in these portions of K.S.A. 60-456. It was based on facts personally known to the witness and within the scope of his special knowledge. Moreover, although the credibility to be afforded Oliver's confession would have had a direct impact on the jury's consideration of the ultimate issue of his guilt or innocence, K.S.A. 60-456(d) makes it clear that exclusion was not necessitated on that basis.
Our statutory analysis does not end there, however. We next must turn to K.S.A. 22-3215, which addresses confessions in criminal cases. K.S.A. 22-3215(5) provides:
"The issue of the admissibility of the confession or admission shall not be submitted to the jury. The circumstances surrounding the making of the confession or admission may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession or admission.
In other words, "[t]he truth or falsity of a confession need not be considered by the trial court in determining its voluntariness." State v. Harwick, 220 Kan. 572, 575, 552 P.2d 987 (1976). The determination of a confession's truth or falsity is a question left to the jury at trial. A district judge has discretion to decide whether to admit evidence regarding the circumstances surrounding the making of the confession. See K.S.A. 22-3215(5) (such evidence may be submitted to the jury). We therefore review the district judge's decision not to admit Poch's testimony regarding Oliver's diagnoses and their potential for affecting his reaction to interrogation under an abuse of discretion standard.
*695 We must apply a different standard to the district judge's decision on whether to admit Poch's further testimony that there was a "high probability" Oliver lied during his confession. Our standard on that issue is de novo. See State v. Elnicki, 279 Kan. 47, 53, 105 P.3d 1222 (2005). A judge who permits one witness to opine on the credibility of another witness errs as a matter of law; credibility judgments are within the exclusive province of the jury. Elnicki, 279 Kan. at 53.
Under this standard, the district judge in this case did not err in refusing to admit Poch's testimony that Oliver's psychological conditions meant there was a "high probability" Oliver lied in his confession. The district judge would have erred in reaching the opposite conclusion.
Whether the district judge abused his discretion in excluding the Poch testimony that stopped short of a credibility judgment requires further discussion.
Oliver urges us to draw an analogy between his case and the United States Supreme Court decision in Crane, 476 U.S. 683, and our opinion in State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002). He also cites United States v. Adams, 271 F.3d 1236, 1245 (10th Cir. 2001), for the proposition that such testimony may be allowed in some circumstances, and distinguishes State v. Cobb, 30 Kan. App. 2d 544, 43 P.3d 855, rev. denied 274 Kan. 1115 (2002). We also consider the effect, if any, of our recent decision in State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005).
In Crane, the defendant, Major Crane, was interviewed about a service station robbery. During the interview, he confessed to his involvement in that crime as well as many others. The police then questioned him about a robbery and shooting at a local liquor store that resulted in the store clerk's death. Crane confessed to that crime as well. 476 U.S. at 684.
At a later suppression hearing, Crane claimed he had been coerced into confessing falsely. The court denied his motion to suppress, and Crane attempted to argue at trial that his confession should not be believed, based on the confession's inconsistency with details of the crime and the "very circumstances surrounding *696 the giving of the [confession and] . . . [i]n particular, . . . evidence bearing on the length of the interrogation and the manner in which it was conducted." 476 U.S. at 685. The district court refused to admit evidence of the circumstances of the interrogation. 476 U.S. at 686.
The United States Supreme Court held:
"[T]he physical and psychological environment that yielded the confession can also be of substantial relevance to the ultimate factual issue of the defendant's guilt or innocence. Confessions, even those that have been found to be voluntary, are not conclusive of guilt. . . . Indeed stripped of the power to describe to the jury the circumstances that prompted his confession, the defendant is effectively disabled from answering the one question every rational juror needs answered: If the defendant is innocent, why did he previously admit his guilt?" 476 U.S. at 689.
The Court went on to state that "evidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility." 476 U.S. at 691. For Crane, "introducing evidence of the physical circumstances that yielded the confession was all but indispensable to any chance of [his defense] succeeding." 476 U.S. at 691. Accordingly, the court ruled that a blanket exclusion of testimony regarding the circumstances of the confession denied the defendant a fair trial. 476 U.S. at 691.
Crane plainly supports Oliver's general argument that a criminal defendant ordinarily should be permitted to introduce evidence of the circumstances surrounding a confession arising from interrogation by law enforcement. As Oliver recognizes in his brief, this holding is equivalent to the language of the second sentence of K.S.A. 22-3215(5). Although Crane dealt with factors exterior to the defendant rather than with the defendant's psychological makeup, we do not agree with the State that this is a distinction with a meaningful difference. The principle is the same in both situations.
We recognized this principle in Kleypas. In that case, we examined the applicability of Crane when the defendant had been permitted to challenge the reliability of his confession by introducing evidence from two experts regarding "confabulation." Confabulation is an automatic process through which "one who has *697 little or no memory of events occurring because of a blackout will gather information from outside sources to fill in the gaps in memory." 272 Kan. at 916.
Defendant Gary Kleypas argued that he should have been permitted to introduce expert testimony that he experienced a blackout on the night of the murder in question, that his memory of events was therefore impaired, and that the information he related in his confession while under interrogation was at least in part supplied by law enforcement officers. 272 Kan. at 916. The district court had denied Kleypas that opportunity, seeing evidence regarding a blackout on the night of the murder as an attempt to evade the notice and other requirements of K.S.A. 22-3219, the statute regulating defenses based on mental disease or defect. 272 Kan. at 917-18.
We distinguished the type of defense asserted by Kleypasa temporary blackout caused by alcohol, chronic cocaine use, and organic brain damagefrom an insanity or mental disease or defect defense and held the district court erred in refusing to admit the expert testimony regarding Kleypas' blackout on the night of the murder. We nevertheless held that the exclusion was harmless error.
"While Kleypas claims that the exclusion of testimony concerning his blackout on the night of the murder denied him the right to present his defense, he was able to show that he had been drinking before the crimes, that there was evidence of extensive cocaine use prior to the night of the murder, and that he suffered from organic brain damage, all of which increased his chances of a blackout and the likelihood that the confession was the product of confabulation. When this evidence is considered with the testimony of [the experts], it becomes clear that Kleypas was given the opportunity to convince the jury that his confession was in part confabulated. The limitations imposed by the court did not, in our opinion, prevent Kleypas from presenting his theory of defense to the jury, and we are able to conclude beyond a reasonable doubt that the error had little if any effect on the outcome." 272 Kan. at 923.
This case differs from Kleypas in that confabulation is reflexive; when certain conditions are met, it requires no exercise of the defendant's will to produce a falsehood. Here, Oliver sought to introduce psychological testimony on why he might have lied deliberately. Kleypas does, however, implicitly approve the practice *698 of permitting a criminal defendant to attack the credibility of his or her earlier confession by introducing expert psychological evidence of the defendant's condition at the time of the confession.
Adams, 271 F.3d 1236, the Tenth Circuit case cited by both parties, is less helpful to Oliver. It involved a defendant charged with possession of a firearm by a felon, who made a series of incriminating statements immediately after arrest. He sought to introduce the report of an expert psychologist which addressed his mental condition and education, factors that could be considered in judging the truthfulness of the incriminating statements. Adams, 271 F.3d at 1240.
The Adams, panel first rejected the defendant's effort to have de novo rather than abuse of discretion review applied to the issue. Like Oliver here, the Adams defendant asserted that his constitutional right to present his theory of defense had been violated. The panel disagreed, distinguishing the fundamental right to present a defense from a right "that is not fundamental, the right to present that theory in whatever manner and with whatever evidence he chooses." Adams, 271 F.3d at 1243.
In addition, because the report had been excluded on a valid procedural basisits untimely disclosure, the panel agreed with the district court's exercise of its discretion. In terms of substancethe panel also concurred with the district court in spite of Crane. The Adams defendant claimed that he had lied to protect a girlfriendmuch like Oliver's assertion here that he protected Bell. As the panel observed in Adams, this is "precisely the type of explanation that a jury is capable of resolving without expert testimony." Adams, 271 F.3d at 1246.
Oliver is more persuasive in distinguishing Cobb, 30 Kan. App. 2d 544. In that case, defendant Artis Cobb confessed to participating in the murders of Kasey Blount and her daughter, Alannah. At trial, the district court admitted expert testimony regarding the phenomenon of false confessions induced by the interrogation methods used on Cobb. The State argued that the admission of that evidence constituted an abuse of discretion, and the Court of Appeals panel agreed. 30 Kan. App. 2d at 564-67. It is clear that Cobb did not deal with the particular psychological makeup of the *699 defendant or with the potential for interaction between that makeup and interrogation techniques used by law enforcement. It dealt only with the techniques themselves.
Likewise, our recent decision in Swanigan, 279 Kan. 18, is distinguishable. In that case, defendant Jami Del Swanigan challenged the district court's rejection of his motion to suppress his statements to law enforcement as involuntary. We reversed in part because the district judge failed to consider Swanigan's low intellectual functioning and a defense expert's report and testimony regarding Swanigan's susceptibility to being overcome by anxiety during interrogation. Here, we are not concerned with a judge's voluntariness evaluation but rather a jury's credibility determination. However, Swanigan, like Kleypas, demonstrates that this court has recognized the potential for psychological factors to influence the dynamics of an interrogation.
Oliver also directs our attention to cases from other jurisdictions, both federal and state. See United States v. Hall, 93 F.3d 1337, 1342-45 (7th Cir. 1996) (conviction reversed because trial judge failed to correctly employ Daubert analysis, Federal Rule of Evidence 702 to evaluate admissibility of expert testimony on false confessions and personality disorder; such testimony may assist the jury, give reason to reject "common sense" conclusion regarding facts); United States v. Shay, 57 F.3d 126, 131-34 (1st Cir. 1995) (rejecting wholesale exclusion under Federal Rule of Evidence 702 of expert testimony on defendant's "psuedologia fantastica" disorder, which involves a compulsion to invent stories); Beagel v. State, 813 P.2d 699, 706-07 (Alaska Ct. App. 1991) (psychiatrist should have been permitted to testify regarding defendant's confabulation caused by psychogenic amnesia); People v. Lopez, 946 P.2d 478, 484 (Colo. App. 1997) (psychologist should have been permitted to testify regarding circumstances surrounding defendant's confession); McIntosh v. State, 532 So. 2d 1129, 1130-31 (Fla. Dist. App. 1988) (testimony regarding drug addiction, mother's dominance should have been admitted); Holloman v. Commonwealth, 37 S.W.3d 764, 767-68 (Ky. 2001) (expert should have been permitted to testify on effect of mental retardation on ability to understand, communicate); State v. Buechler, 253 Neb. 727, 739, *700 572 N.W.2d 65 (1998) (court should have admitted proffered testimony regarding drug withdrawal, psychological disorders; testimony "undertook not to tell the jury how to decide the case or what result should be reached on any issue to be resolved by it, but, rather, to explain [defendant's ] mental state at the time of the recorded confession"); State v. Stringham, 2003 WL 950957 (Ohio App.) (error to exclude testimony on possible impact of psychotypal personality disorder on defendant's reliability); State v. Wallen, 1995 WL 702611 (Tenn. Crim. App.) (on remand, trial court should consider admitting psychologist's testimony regarding defendant's mild mental retardation and poor reading comprehension); Pritchett v. Commonwealth, 263 Va. 182, 186-87, 557 S.E.2d 205 (2002) (error to disallow general expert psychological testimony regarding mild retardation resulting in tendency of defendant to be compliant, vulnerable to suggestion); State v. Miller, 1997 WL 328740 (Wash. App.) (social psychologist should have been permitted to testify generally on "why some people may confess to crimes they did not commit").
For its part, the State responds that other jurisdictions are not uniformly in favor of admitting expert testimony on the effect a defendant's psychological status may have on his or her confession. See Turtle v. State, 520 S.E.2d 211, 213-14 (Ga. 1999) (trial court's exclusion of testimony that defendant exhibited symptoms of bipolar disorder, displayed tendency to grandiose fabrications correctly excluded; jury capable of judging credibility without expert's input); Bixler v. State, 582 N.W.2d 252, 255-56 (Minn.), cert. denied 525 U.S. 1056 (1998) (no abuse of discretion in disallowing psychological expert testimony on low intelligence, vulnerability to suggestion; jury capable of "observing and understanding [defendant's] propensity to please authority figures"); State v. Loza, 71 Ohio St. 3d 61, 65-66, 641 N.E.2d 1082 (1994) (clinical psychologist's testimony that defendant's background, psychological makeup, personal code of conduct prohibiting "snitching" properly excluded; Crane distinguished).
Our reading of the clear majority of the cases from other jurisdictions reveals that most would allow experts to testify generally regarding a defendant's mental condition and the likelihood of a *701 person with a similar mental condition to give unreliable information. However, most of these cases either explicitly or implicitly limit such testimony to the theoretical or hypothetical; they would draw the line at permitting an expert to express a specific judgment or opinion on the credibility of the defendant's particular confession in the case at bar. See, e.g., Hall, 93 F.3d at 1342-45 (proffer discussed expert's theoretical testimony only); Shay, 57 F.3d at 133-34 (case reversed, remanded to determine whether testimony should be excluded for another reason, otherwise limited); United States v. Hall, 974 F. Supp. 1198, 1205 (C.D. Ill 1997) (decision on remand from Seventh Circuit; expert's testimony admissible only to show correlation between false confessions and certain coercive police techniques but not "about matters of causation, specifically, whether the interrogation methods used in this case caused [the defendant] to falsely confess"); Stringham, 2003 WL 950957 (observing "expert witness may not render a personal opinion as to whether a particular witness is telling the truth," testimony at issue would not have provided expert's opinion about whether defendant's confession reliable, would only better enable jury to evaluate reliability); Jackson v. Commonwealth, 266 Va. 423, 438-39, 587 S.E.2d 532 (2003) (expert's testimony on transference as phenomenon making subject more prone to suggestion found admissible; however, no error to exclude expert's testimony on truth or falsity of defendant's statements); Pritchett, 557 S.E.2d at 207-08 (allowable testimony limited to hypothetical effect of mental retardation; expert may not testify defendant "just went along with what they said"); Miller, 1997 WL 328740 (expert testimony would be limited to "general discussion of false confessions"). The one exception appears to be the Alaska Court of Appeals decision in Beagel, 813 P.2d at 707-08, where the defendant's proffer of psychiatric testimony included the witness's anticipated statement: "I believe this is exactly what Mrs. Beagel did at the times that she was recorded on the tapes [of her incriminating statements]." Because the Beagel decision is among the earlier cases and is short on analysis when compared to the decisions from other jurisdictions, we are not inclined to accept its approach. We agree with the majority of the jurisdictions, which have recognized that allowing *702 an expert to say that a defendant's mental condition specifically caused him or her to lie when confessing is a forbidden invasion of the jury's province.
We also observe that, as demonstrated by Adams, other jurisdictions hold expert testimony on a defendant's tendency toward false confessions would be inadmissible when the testimony actually would offer little help to the jury. See, e.g., Adams, 271 F.3d at 1246; Maine v. MacDonald, 718 A.2d 195, 198 (Me. 1998) ("[T]he court reasonably could have concluded that [the expert's] testimony would do little more than reinforce a concept already well within the jurors' grasps, namely, that people sometimes lie to protect those close to them.").
With all of these authorities in mindCrane, Kansas statutes and precedents, and cases from other jurisdictions that have considered the questionwe hold that a criminal defendant against whom a confession will be admitted may be permitted to introduce expert psychological or psychiatric testimony bearing on his or her ability to respond reliably to interrogation. It is essential, however, that the testimony actually tell jurors something they would not otherwise know from their usual human experience and that it remain hypothetical or theoretical. It must stop short of expressing the expert's judgment on the defendant's reliability in the specific instance of the confession submitted for the jury's consideration.
We have purposely stated this holding permissively. A district judge may allow such evidence, but there may be independent reasons that are perfectly valid for disallowing it. The appellate standard of review remains abuse of discretion under K.S.A. 22-3215(5). See also Crane, 476 U.S. at 689 ("Constitution leaves to the judges who must make these decisions `wide latitude' to exclude evidence that is `repetitive . . . , only marginally relevant' or poses an undue risk of `harassment, prejudice, [or] confusion of the issues'").
Here, the district judge's refusal to admit Poch's testimony did not amount to an abuse of discretion. The defense did not seek to admit the testimony until Oliver's trial was under way. Poch's written report was vague; it was not until defense counsel responded to the State's motion in limine that the purpose of the testimony *703 could be fairly understood. At argument on the State's motion in limine, defense counsel initially declined to provide additional particulars. He was somewhat more expansive in response to the State's assertion that the expert testimony should be limited to avoid interference with the jury's role as credibility evaluator, stating that such a limitation would make the evidence useless to the defense. Finally, a more complete proffer, including the unacceptable "high probability" language, was made at the instructions conference.
Under these circumstances, the district judge reasonably resisted the defendant's late-blooming, all-or-nothing demand to admit Poch's testimony. There was no error, and we need not reach the question of harmlessness.
Instructions on Lesser Included Offenses
At trial, Oliver's counsel requested instructions on second-degree murder and voluntary manslaughter as lesser included offenses. The district court denied defendant's request, finding that the inclusion of defendant's requested instruction on felony murder eliminated the need to give the lesser included offense instructions. The district court relied on State v. Williams, 263 Kan. 134, Syl. ¶ 1, 947 P.2d 25 (1997), which stated: "If the evidence of the underlying felony [is] strong, no instruction on the lesser included offenses [is] required."
Because defendant "requested the instructions, this court must review the matter in a light most favorable to" defendant. See State v. Hoge, 276 Kan. 801, 805, 80 P.3d 52 (2003).
"If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive. [Citations omitted.] An instruction on a lesser included crime, however, is not required if the jury could not reasonably convict the defendant of the lesser crime based on the evidence presented. [Citations omitted.]" Hoge, 276 Kan. at 805.
K.S.A. 2004 Supp. 21-3402 defines second-degree murder as "the killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life."
*704 K.S.A. 21-3403 defines voluntary manslaughter as "the intentional killing of a human being committed: (a) upon a sudden quarrel or in the heat of passion."
The difference between first-degree and second-degree murder is premeditation. Premeditation can be inferred from "`"(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless."'" Hoge, 276 Kan. at 806 (quoting State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 [2000]).
Here, Oliver takes issue with the district judge's conclusion that the inclusion of felony-murder instructions meant additional lesser included instructions were unnecessary. Oliver relies on State v. Boyd, 216 Kan. 373, 376-77, 532 P.2d 1064 (1975), in which this court reversed a conviction for failure to instruct on the lesser included offenses of premeditated murder even though the only evidence to support the defendant's theory was the defendant's testimony.
The State claims that the evidence did not support instructions on these lesser included offenses and that the Boyd decision is dated. The State asserts that this court should rely on its more recent decision in State v. Chism, 243 Kan. 484, 759 P.2d 105 (1988), which held: "If the undisputed evidence [of the underlying felony] is not weak or inconclusive, but instead would convince a reasonable person that a felony had been committed, instructions on lesser offenses are not required." 243 Kan. at 487. The State also distinguishes this court's more recent decision State v. Hoge, 276 Kan. at 805.
In Hoge, the defendant was charged with alternative counts of first-degree premeditated murder and felony murder for the death of Ivan Winn. The members of the jury returned a guilty verdict for first-degree murder under the combined theories because they were unable to reach a unanimous verdict. This court decided that whether the lesser included offense instructions should have been given had to be decided by analyzing each of the alternative theories of first-degree murder individually. Hoge, 276 Kan. at 805. *705 The instructions were not required under the felony-murder theory because there was sufficient evidence of the underlying felony. Hoge, 276 Kan. at 805. Under the premeditated murder theory, the instructions were unwarranted because the evidence supported an inference of premeditation. Hoge, 276 Kan. at 806-07.
In this case, Oliver was charged with first-degree premeditated murder of Levy and with capital murder of Williams, Ford, and Wheaton. On Levy's murder, the jury was instructed on both theories of first-degree murder, premeditated and felony; it convicted Oliver of first-degree premeditated murder. On each of the three other murders, the jury was instructed on capital murder and both theories of first-degree murder. Oliver was convicted of first-degree premeditated murder in Williams' death and of felony murder in the deaths of Ford and Wheaton. None of Oliver's four convictions is comparable to the conviction at issue in Hoge. Oliver's jury was unanimous on one of the theories of first-degree murder on each conviction, rather than convicting on a combined theory.
With regard to the two male victims, Levy and Williams, there was inadequate evidence to require giving either a second-degree murder or voluntary manslaughter instruction. Evidence of premeditation, in contrast, was abundant.
All or nearly all of the factors we have previously enumerated as indicative of premeditation were present. The weapons used were deadly, two guns. The evidence was that the shooter switched guns when one malfunctioned and switched back when the first gun became operational. Even considering Oliver's testimony, there was no evidence of provocation sufficient to support the deadly violence of the shootings. A court is not required to instruct on voluntary manslaughter unless the evidence shows "`that the heat of passion alleged resulted from severe provocation sufficient to cause an ordinary person to lose control of his or her actions or reason. [Citation omitted.] The provocation must consist of more than mere words or gestures.'" State v. Bell, 273 Kan. 49, 51, 41 P.3d 783 (2002) (quoting State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 [2001]). In addition, the evidence regarding the positions of the men's bodies demonstrated that they had not adopted either aggressive or defensive postures before they were shot. Oliver's *706 behavior before and after the killingat least one threat toward Wheaton's friends; his inappropriate dress for the December weather, suggesting a desire to conceal the blood on his clothes; his avoidance of contact with the police after the crimes; his statement to police that he would have shot anyone else unlucky enough to be present because "you can't leave witnesses at something like this"also have a tendency to prove premeditation. Finally, both Levy and Williams sustained more than one wound. Levy had been shot once in the back of the head and once in the neck; Williams had three gunshot wounds to the head. This physical evidence demonstrated that lethal shots may have been fired after the two men were rendered helpless.
With regard to the two female victims, we agree with the State that Chism is controlling. There was no need for instructions on second-degree murder or voluntary manslaughter in this case, because the evidence of the underlying felony of aggravated robbery was not weak or inconclusive.
Instruction on Compulsion
Oliver also argues that the district court committed reversible error by refusing to give an instruction on compulsion. He acknowledges that compulsion is not a defense to murder but argues it should have been a defense to the aggravated robbery, the underlying felony for felony murder. The State contends that evidence to support a compulsion instruction was insufficient.
The district court "must instruct the jury on the law applicable to the defendant's theories for which there is supporting evidence." State v. Williams, 277 Kan. 338, 356, 85 P.3d 697 (2004). "A defendant is entitled to an instruction on his or her theory of the case even though the evidence thereon is slight and supported only by the defendant's own testimony. [Citation omitted.]" State v. Bell, 276 Kan. 785, 792, 80 P.3d 367 (2003). Further, as mentioned, this court reviews the evidence in the light most favorable to the party requesting the instruction when considering the district court's refusal to give a requested instruction. Williams, 277 Kan. at 356.
The statute governing the compulsion defense in Kansas states:
*707 "(1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
"(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat." K.S.A. 21-3209.
Oliver argues that, when the evidence is viewed in the light most favorable to him, it shows he did not know that Bell was planning to rob anyone at the time he agreed to cooperate with Bell, that Oliver checked Levy's pocket only under duress, and that Bell was holding a gun and directing his actions. He argues therefore that he did not willfully place himself in the situation, and he was afraid his life would be in danger if he did not comply with Bell's directions.
Defendant relies on State v. Hunter, 241 Kan. 629, 740 P.2d 559 (1987), in which this court held that it was the jury's function to decide if a defendant was afraid for his or her life, if the fear was reasonable, and if such fear justified a criminal act. "When the trial judge refused the requested compulsion instruction, [the judge] effectively prevented the jury from considering the evidence presented in [defendant's] defense." 241 Kan. at 646.
Although there was some minimal evidence that Oliver was under the influence of Bell, there was no evidence supporting the degree of compulsion necessary to merit an instruction on that defense.
Hard 50 Sentencing Statute
Oliver's final argument on appeal is that his hard 50 sentences for each of his premeditated murder convictions pursuant to K.S.A. 2004 Supp. 21-4635 should be vacated because the statute is unconstitutional in light of the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). This court has de novo review over such constitutional questions. See State v. Beard, 274 Kan. 181, Syl. ¶ 1, 49 P.3d 492 (2002).
*708 We have rejected this argument numerous times and do so again today. See, e.g., State v. Wilkerson, 278 Kan. 147, Syl. ¶ 12, 91 P.3d 1181 (2004); State v. Hebert, 277 Kan. 61, 107-08, 82 P.3d 470 (2004).
Affirmed.
GERNON, J., not participating.
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229 Wis.2d 751 (1999)
601 N.W.2d 318
Kathleen R. HELLAND, Plaintiff-Appellant,
v.
KURTIS A. FROEDTERT MEMORIAL LUTHERAN HOSPITAL, a/k/a Froedtert Memorial Lutheran Hospital, Defendant-Respondent.
No. 98-0854.
Court of Appeals of Wisconsin.
Submitted on briefs June 1, 1999.
Decided July 27, 1999.
*753 On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Patrick J. Hudec and Gabrielle Boehm of Hudec Law Offices, S.C. of East Troy.
On behalf of the defendant-respondent, the cause was submitted on the brief of Tamara Hayes O'Brien of Whyte Hirschboeck Dudek S.C. of Menomonee Falls.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
WEDEMEYER, P.J.
Kathleen R. Helland appeals from a judgment granting a motion for summary judgment in favor of Kurtis A. Froedtert Memorial Lutheran Hospital (Froedtert). Helland contends that the trial court improperly granted summary judgment dismissing her wrongful discharge/breach of contract claim, her intentional infliction of emotional distress claim, and her statutory breach of privacy claim. Because, as a matter of law, the trial court properly *754 granted summary judgment dismissing Helland's three causes of action, we affirm.[1]
BACKGROUND
Helland became an employee of Froedtert in October 1984. She worked as a registered nurse in the Neurosciences Intensive Care Unit (NICU). When she was hired, she did not execute any employment contract. She was provided with an "Employee Handbook" (Handbook). In 1985 and in 1990 Froedtert also provided her with Handbook updates. The Handbook was a "working guide summarizing Froedtert's employment policies and procedures." It is undisputed that in the 1984 Handbook: (1) Froedtert reserved the right to unilaterally modify the Handbook and all other hospital policies regardless of whether they were contained in the Handbook; (2) Froedtert reserved the right to take any disciplinary action against employees it deemed appropriate regardless of the procedures set forth in the Handbook; and (3) finally, the 1990 Handbook itself states that its contents do not create any contractual rights, and that personnel of Froedtert are employees "at will" whose employment may be terminated at any time for any reason or for no reason at all.
During her employment, Helland received three written warnings regarding her conduct and two cautions regarding her behavior. Several days before May 8, 1996, Helland asked, and was granted, permission to *755 take a late lunch to enable her to keep a doctor's appointment. Arrangements were made to cover for her absence in the NICU. On May 8, shortly before Helland left for her late lunch, she told a co-worker that she might not be returning for the remainder of her shift after her doctor's appointment. Because patient coverage is important in the NICU, the co-worker discussed the problem with another co-worker. In turn, Helland's supervisor, Pamela Maxon-Cooper, was informed of Helland's anticipated intention not to return to work. Maxon-Cooper questioned Helland about her statement and Helland confirmed that she might not return. In view of her disciplinary history and alleged lack of concern for coverage of the patients, Maxon-Cooper terminated Helland.
Helland filed the complaint that the trial court dismissed on summary judgment. Helland now appeals.
ANALYSIS
Basic to Helland's three claims of trial court error is her assertion that genuine issues of material fact existed to foreclose granting of summary judgment on her claims of wrongful discharge/breach of contract, intentional infliction of emotional distress, and violation of privacy.
[1]
Whether summary judgment was appropriately granted presents a question of law which we review pursuant to § 802.08(2), STATS., independently of the trial court. See Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639, 651-52, 476 N.W.2d 593, 597 (Ct. App. 1991). A court examines summary judgment motions in a three-step process; the court proceeds to each succeeding step only if it determines that the appropriate *756 party has satisfied the burden on the preceding one. See Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473, 476-77 (1980).
First, it must be determined that the pleadings set forth a claim for relief as well as a material issue of fact. See id. at 338, 294 N.W.2d at 476. Second, the court must determine whether the moving party's affidavits and other proofs present a prima facie case for summary judgment. See id. at 338, 294 N.W.2d at 476-77. A moving party states a prima facie case for summary judgment by showing a defense that would defeat the claim. See Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580, 583 (Ct. App. 1983). Finally, the court examines the affidavits and proofs of the opposing party to determine whether any disputed material fact exists, or whether any undisputed material facts are sufficient to allow for reasonable alternative inferences. See Grams, 97 Wis. 2d at 338, 294 N.W.2d at 477.
[2]
The mere allegation of a factual dispute will not defeat an otherwise properly supported motion for summary judgment. See Kenefick v. Hitchcock, 187 Wis. 2d 218, 224, 522 N.W.2d 261, 263 (Ct. App. 1994). A party opposing a summary judgment motion must set forth "specific facts," evidentiary in nature and admissible in form, showing that a genuine issue exists for trial. It is not enough to rely upon unsubstantiated conclusory remarks, speculation, or testimony which is not based upon personal knowledge. See Maynard v. Port Publications, Inc., 98 Wis. 2d 555, 561-63, 297 N.W.2d 500, 504-05 (1980).
In general reference to all three of her claims of error, Helland asserts that genuine issues of fact exist with regard to what Froedtert knew at the time she *757 was fired, its motivation for firing her, whether Froedtert was justified in telling her co-workers that she was being treated by a physician who specializes in the treatment of drug and alcohol abuse, and how Froedtert's actions in this regard affected her.
[3]
Specifically, Helland first claims that the trial court erred when it concluded that she was an "at-will" employee. She contends that the trial court should have determined that the Handbook created an employment contract between Froedtert and her. In Wisconsin, employment is generally terminable "at will" by either party without cause. See Clay v. Horton Mfg. Co., Inc., 172 Wis. 2d 349, 354, 493 N.W.2d 379, 381 (Ct. App. 1992). An employee handbook may modify an "at-will" employment relationship. See Ferraro v. Koelsch, 124 Wis. 2d 154, 169, 368 N.W.2d 666, 674 (1985). Because of Wisconsin's policy favoring employment "at will," the mere issuance of an employee handbook for guidance and orientation of employees is insufficient to alter an "at-will" employment relationship. See id. An "at-will" employment relationship is altered only when a handbook contains express provisions from which it can reasonably be inferred that the parties intended to bind each other to a different employment relationship. See Bantz v. Montgomery Estates, Inc., 163 Wis. 2d 973, 979, 473 N.W.2d 506, 508 (Ct. App. 1991).
At the focal point of the dispute are two editions of the Employee Handbook: the 1984 version and the 1990 updated version. When Helland was hired in 1984, the Handbook provided that once an employee completed the probationary work period, that employee could only be disciplined pursuant to the guidelines set forth in the Handbook, including discipline *758 "for cause." Helland argues that this provision, in effect, changed the employment relationship from one of "at will" during the probationary period, to one of a contractual nature after probation was completed. As a result, she contends that she could only be discharged "for cause," and then, only after a progressive disciplinary procedure was followed as outlined in the 1984 Handbook. See Ferraro, 124 Wis. 2d at 164-65, 368 N.W.2d at 672 (employee handbook can create contractual relationship).
The 1990 Handbook update, however, contained a specific disclaimer that the Handbook created any employment contractual rights. In her affidavit opposing summary judgment, Helland asserted that she never received a copy of the 1990 revisions, never read them, and never agreed to be bound by them. Regardless of these contentions, Helland's first claim cannot withstand the tests of summary judgment scrutiny.
A review of the record demonstrates that Helland's claim fails. First, the acknowledgment form for the 1984 Handbook, which Helland admits she read and signed, provides in part:
I understand the Handbook is a working guide of policies, rights and responsibilities for Froedtert employees. I understand it does not replace or supersede original hospital policies. Changes or additions to hospital policies occurring after receipt of my Handbook will be communicated to me so I may keep my Handbook current. At my request, my supervisor or the Personnel Department will review original policies with me.
I also understand the policies summarized in my Handbook and all other Froedtert Hospital policies, practices and procedures are subject to change at the sole discretion of management.
*759 Unlike the handbook in Ferraro, this acknowledgment form declared that the Froedtert 1984 Handbook was a summarized "working guide" of the policies, rights and responsibilities. Further, it specifically provided that the Handbook was not a replacement of original hospital policies. It also unequivocally advised Helland that the policies synthesized in the Handbook and all other hospital policies, practices and procedures were subject to change at the sole discretion of Froedtert's management. See Olson v. 3M Co., 188 Wis. 2d 25, 54, 523 N.W.2d 578, 589 (Ct. App. 1994) (concluding that providing a handbook for "guidance" was insufficient to alter "at-will" employee status).
In addition to this clear language, even the provisions related to non-probationary employees, i.e., rules of employee conduct, discharge for "just cause," and progressive disciplinary procedures, are not free of qualifying language. The progressive disciplinary procedure "may result" from employee misconduct. The standards of conduct are not "all encompassing." If questioned conduct on the part of an employee occurs, Froedtert "reserves the right to take necessary and reasonable action, including discharge."
Last, the 1984 Handbook advises that disciplinary procedures "are included in the process when it is believed that progressive discipline will be effective." Thus, complete reliance on the 1984 Handbook to determine Helland's status as an employee is misplaced because her status as an "at-will" employee was not changed when she signed the acknowledgment receipt form.
If the 1984 Handbook offered no support for Helland's first claim of error, the 1990 update "a minore ad majus" offers no succor. Helland's reliance on the 1984 version of the Handbook is based on her alleged inability *760 to recall receiving the 1990 updated version and the lack of any proof that she ever received it. Her deposition testimony, however, belies her position in that it demonstrates she did receive the 1990 Handbook update, and was aware of how the updated version was promulgated to the employees. Although Helland averred in her affidavit in opposition to Froedtert's summary judgment motion that she "was not provided with other handbook updates," a genuine issue of material fact cannot be created by an affidavit contradicting earlier deposition testimony. See Wolski v. Wilson, 174 Wis. 2d 533, 540, 497 N.W.2d 794, 797 (Ct. App. 1993); Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975); Office Supply Co., Inc. v. Basic/Four Corp., 538 F. Supp. 776, 786 (E.D. Wis. 1982). Based on the foregoing, the trial court correctly concluded "there is no dispute that Helland received the updated version of the Handbook."
[4]
Because the trial court properly concluded that Helland received the 1990 Handbook update, its terms are controlling. See Bantz, 163 Wis. 2d at 982, 473 N.W.2d at 509. To demonstrate that the 1990 update provides no support for Helland's first claim of error, we need not present a detailed analysis because the notification language and other provisions found within the Handbook clearly accomplish this task.
On the backside of the cover page of the March 1990 version of the Handbook, there appears encapsulated under the boldly printed words "IMPORTANT NOTICE:"
This Handbook is not intended to create, nor does it create, contract rights. Notwithstanding any provision herein, the Hospital reserves the right to make *761 employment-related decisions on a case-by-case basis. The Hospital further reserves the right to amend or delete any provision of this Handbook at any time, without advance notice.
Page two, entitled "Acknowledgement Form," in part, declares:
3. The Handbook is a summary of Froedtert Hospital's policies, practices and procedures related to employment. The Handbook is not intended to replace original Hospital policies, and the Hospital reserves the right to change such policies and the provisions of the Handbook at any time without notice.
4. All Hospital employees are employees at will and, subject to applicable federal and state statutes, the relationship can be terminated at any time for any reason or no reason at all.
5. Froedtert Memorial Lutheran Hospital reserves the right and will exercise the right to take necessary and reasonable action, including discharge, for certain conduct not specifically delineated in the "Rules of Employee Conduct" when the conduct is of such a nature that [sic] to require such action.
Finally, under the "Rules of Employee Conduct" section, there is set forth, in part, the following language:
INTRODUCTION:
Written standards of conduct and performance cannot be all encompassing. Froedtert Memorial Lutheran Hospital reserves the right and will exercise the right to take whatever action it deems necessary, up to and including discharge, for conduct which adversely affects the Hospital's patients or visitors or employees, or which is otherwise unacceptable *762 whether or not such conduct is specifically addressed in these "Rules of Employee Conduct."
We conclude that the above cited language reserving Froedtert's right to unilaterally modify policies and procedures in the employer-employee relationship refutes any assertion that a contractual relationship existed. See Olson, 188 Wis. 2d at 54, 523 N.W.2d at 589 (concluding that providing a handbook for "guidance" was insufficient to alter "at-will" employee status). Accordingly, Helland was an "at-will" employee and, absent any allegations that her termination occurred in violation of public policy, no claim for wrongful discharge exists. See Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 573, 335 N.W.2d 834, 840 (1983).
Helland's second assertion is that the trial court erred when it granted summary judgment dismissing her intentional infliction of emotional distress claim. She contends that Froedtert's conduct in terminating her employment provides a basis for the claim. We are not convinced.
[5]
A cause of action for intentional infliction of emotional distress is a claim sounding in tort. In distinction, an action for wrongful discharge or termination sounds in contract. See generally Bourque v. Wausau Hosp. Ctr., 145 Wis. 2d 589, 427 N.W.2d 433 (Ct. App. 1988). From our review of the record, it is evident that the contents of Helland's complaint and her brief on appeal demonstrate that her claim is one of a wrongful discharge nature emanating from an employment relationship for which emotional distress redress is not allowed. See Bachand v. Connecticut *763 Gen. Life Ins. Co., 101 Wis. 2d 617, 630-32 & n.3, 305 N.W.2d 149, 155 & n.3 (Ct. App. 1981).[2]
Last, Helland claims that the trial court erred in dismissing her breach of privacy claim. Her claim is based on § 895.50(1), (2)(c), STATS., which provides relief, including compensatory damages, to one whose privacy has been unreasonably invaded, subject to the common law defenses of absolute and qualified privilege, see § 895.50(3), STATS.
Helland contends that her right to privacy was unreasonably invaded when her supervisor, Maxon-Cooper, disclosed to her co-workers at a staff meeting, that she was being assessed or treated at the Milwaukee Psychiatric Hospital, by a physician whose specialty was well-known, leaving the false impression that she was being treated for alcohol abuse. She alleged that two of her co-workers who attended the meeting advised her of Maxon-Cooper's "announcement." Helland did not attend the staff meeting, nor did she have personal knowledge of her supervisor's alleged statement. She did not obtain affidavits from the two co-workers who attended the staff meeting. She did not produce any contemporaneously made notes relating to her conversation with her co-workers, nor did she produce any evidence corroborating her assertion that the physician mentioned was well-known for treating patients for drug and alcohol abuse.
To support its motion for summary judgment, Froedtert submitted the affidavit of Maxon-Cooper. She averred, based upon personal knowledge, that if *764 asked by a staff member about the absence of Helland, she only advised that Helland was on medical leave and seeking treatment.
[6]
Once a moving party has established a prima facie case for summary judgment, the opposing party has the burden to establish that there is a genuine issue for trial. To meet this burden, however, an adverse party may not rest upon the mere allegations or denials of the pleadings, but must file affidavits or other supporting papers based upon personal knowledge of specific evidentiary facts that are admissible. See Phillips v. Behnke, 192 Wis. 2d 552, 563, 531 N.W.2d 619, 623 (Ct. App. 1995) and § 802.08(3), STATS. Applying these criteria to Helland's submissions, the trial court declared:
The plaintiff's affidavit here is woefully short on this issue ... it's based solely on speculation or on evidence not admissible at trial and, in fact, normally is not part of an affidavit.
In an affidavit, you must assert something that you personally saw, that you personally did, or that you personally spoke of, and not what someone else has reported to you unless that someone else is the employer or the party opponent.
... I'm finding that there's no real basis for her contention; and, therefore, that there would be no basis here as a matter of law. She has no cause of action.
We conclude that the trial court was correct for all the reasons stated. Helland's last claim of error also fails.
By the Court.Judgment affirmed.
*765 SCHUDSON, J. (concurring).
Although I agree with the majority decision, I do not join in the opinion. Accordingly, I respectfully concur.
NOTES
[1] Helland's complaint actually alleged five causes of action: (1) wrongful discharge/breach of contract; (2) tortious wrongful discharge; (3) intentional misrepresentation; (4) intentional infliction of emotional distress; and (5) statutory invasion of privacy. On appeal, however, Helland does not address claims (2) and (3). Therefore, we presume she is waiving any challenge in regard to those two claims.
[2] Even if Helland's emotional distress claim were properly pleaded, summary judgment would still be appropriate under the "exclusive remedy" provision of the Workers Compensation Act. See Jenson v. Employers Mut. Cas. Co., 161 Wis. 2d 253, 263, 468 N.W.2d 1, 5 (1991).
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2758971/
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs at May 21, 2014
STATE OF TENNESSEE v. VANESSA COLEMAN
Appeal from the Criminal Court for Knox County
No. 86216D Jon Kerry Blackwood, Judge
No. E2013-01208-CCA-R3-CD - Filed December 9, 2014
D. K ELLY T HOMAS, J R., J., concurring.
I write separately because I feel it is necessary to adequately address the federal grand
jury issue as presented by the Defendant in her appellate brief. The majority notes that the
Defendant moved to dismiss the presentment under Rule 6(j)(6) of the Tennessee Rules of
Criminal Procedure, arguing that her subpoena to testify before the federal grand jury barred
her state court prosecution. I do not disagree that Rule 6(j)(6) “applies only to proceedings
in state grand juries within the State of Tennessee.” However, the Defendant’s argument
both in her interlocutory appeal, and as presented in this direct appeal, is that the federal
authorities were acting as agents of the Knox County District Attorney General’s office.
Specifically, she notes that the charges against her arose from a joint investigation between
State and federal authorities. She continues, by virtue of this joint investigation, the federal
authorities were acting as agents of the Knox County District Attorney General when they
subpoenaed her to testify before the federal grand jury regarding her knowledge and
participation in the crimes against the victims, thereby, triggering the immunity protection
afforded by Rule 6(j)(6). In my opinion, to ignore the agency issue, ignores the issue
presented by the Defendant.
The Defendant argues that the advisory commission comments to the rule support her
argument. The following comment is included therein:
This rule grants immunity only to those witnesses compelled to testify by the
district attorney general, or the district attorney general’s assistant or agent, by
virtue of subpoena or order of the judge.
Tenn. R. Crim. P. 6, Advisory Comm’n Cmts. (emphasis added). She also cites to State v.
McCollum, (Tenn. 1995), wherein our supreme court held that there was no distinction
between witnesses testifying under subpoena requested by the grand jury foreperson or those
testifying by virtue of subpoena requested by district attorney general. 904 S.W.2d 114, 117
(Tenn. 1995). The McCollum court explicitly rejected the notion that Rule 6 grants
immunity only to the witness who appears pursuant to a subpoena requested by the district
attorney general, finding such an interpretation to be “illogical, restrictive, and violative of
the very essence of the rule.” Id. The court continued, “Were we to apply [the immunity
protection of Rule 6] only when the witness was subpoenaed at the request of the district
attorney general, . . . immunity could easily be subverted by ensuring that the official request
for a subpoena came from a source other than the district attorney general[,]” providing “a
mechanism for evading the requirements of fair play and due process.” Id.
However, under the facts of this case, the Defendant was not compelled to testify
before the federal grand jury. The Defendant never invoked her Fifth Amendment privilege
against self-incrimination before testifying for the federal grand jury. Although not cited by
the Defendant, the advisory commission comments also state that the immunity protection
of Rule 6 is “triggered by the refusal of a witness to testify before the grand jury.” See Tenn.
R. Crim. P. 6(j)(5) & (6). Such a refusal was not made, and the Defendant was not
compelled to testify. Therefore, in my opinion, it is unnecessary to decide whether a federal
authority, conducting a joint investigation with a county’s district attorney general, could be
declared an agent of that district attorney general office’s, as such is not dispositive of the
case. I agree with the majority that the Defendant is not entitled to relief on this issue.
D. KELLY THOMAS, JR., JUDGE
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01-03-2023
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12-09-2014
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14 A.3d 26 (2011)
205 N.J. 133
STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant,
v.
Daniel Twian BROWN, Defendant-Appellant and Cross-Respondent.
Nos. A-67 September Term 2009, A-17 September Term 2010.
Supreme Court of New Jersey.
Argued October 12, 2010.
Decided January 25, 2011.
*28 Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for appellant and cross-respondent (Yvonne Smith Segars, Public Defender, attorney; Ms. Turner and Mark E. Tabakman, Designated Counsel, on letter briefs).
Annemarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent and cross-appellant (John L. Molinelli, Bergen County Prosecutor, attorney).
Steven A. Yomtov, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Paula T. Dow, Attorney General, attorney).
Daniel Twian Brown submitted letter briefs pro se.
Chief Justice RABNER delivered the opinion of the Court.
This case involves the validity of a warrantless arrest and its impact on defendant's post-arrest statements to the police.
The police relied on invalid arrest warrants when they set out to arrest defendant Daniel Brown, at his girlfriend's apartment, for his role in a string of armed robberies and car thefts. Upon hearing the officers knock at the door, Brown fled through an apartment window onto an adjacent roof. After a twenty-minute standoff, the police arrested him. Later at headquarters, Brown made incriminating statements after the police advised him of his Miranda[1] rights.
Brown challenged the admission of those statements. Following a hearing, the trial court found that the police had sufficient probable cause to arrest him, and that his subsequent statements were given voluntarily. The court thus denied Brown's motion to suppress. The Appellate Division affirmed this issue on different grounds. It concluded that although Brown's arrest was unlawful, his statements had no connection to, and were attenuated from, the arrest.
We affirm for different reasons. According to the record, Brown immediately fled to a public area when the police arrived at his girlfriend's apartment. At that time, the police had sufficient probable cause to believe that he had committed a felony. They, therefore, did not need a warrant to arrest him in public. The police also had probable cause to arrest Brown for his conduct in resisting arrest, which they observed. As a result, the defective arrest warrants play no role in our analysis, and Brown's post-arrest statements following his lawful arrest are admissible.
I.
In the waning days of December 2004, local law enforcement officials in Bergen County were investigating a series of armed robberies and auto thefts in Hackensack and five nearby towns. The incidents included robberies of four gas stations, a convenience store, and a catering truck, each by three to five assailants.
*29 The last event in the sequence was an unsuccessful attempt to rob a gas station in Hackensack at around 4:30 a.m. on Friday, December 31, 2004. After the gas station attendant called the police, and they broadcast certain details, a Hackensack police officer spotted a car that matched the description of a vehicle used in an earlier robbery. With his overhead lights on, the officer followed the car and saw four occupants run in different directions when it stopped. The officer pursued and arrested the last man out of the car, codefendant Kenyatta Clarke. Clarke was wearing a wool hat with eye holes cut into it.
Clarke later made statements to the police implicating Brown and others. His statements led to the arrests of three others, who also gave incriminating statements to the police. The Appellate Division noted that "all four of the men arrested implicated [Brown] in these crimes."[2]
Detective Patrick Coffey of the Hackensack Police Department helped investigate this case. On Saturday, January 1, 2005, he prepared and signed five complaints against Brown. Four complaints sought authorization to arrest Brown for burglary, theft, robbery, possession of a firearm by a convicted person, possession of a weapon for unlawful use, unlawful possession of a weapon, and possession of burglary tools. Those complaints listed Brown's last known address as 406 Prospect Avenue in Hackensack. A fifth complaint charged Brown with resisting arrest by using and threatening violence.[3] It listed an address at 45 Linden Street, Apartment 7, Hackensack, where Brown's girlfriend, Chastity Connor, lived. Detective Coffey learned that Brown could be found there from another officer.
Detective Coffey testified that he left the signed complaints at the front desk of the Hackensack police department, consistent with the practice at the station. He did not bring them to a judge and did not know what happened to the complaints next. It is undisputed that at the time of Brown's arrest on January 1, 2005, no judicial officer had yet reviewed the complaints or authorized Brown's arrest.
At around 10:30 p.m. on January 1, about ten officers went to Connor's address to arrest Brown. Around that time, Brown's mother called Connor's apartment and told her the police were outside the building. Connor testified that she relayed that information to Brown. Shortly after, Detective Coffey and five officers entered the apartment building, and the remaining officers stayed outside and secured the area.
At the suppression hearing, Detective Coffey described what happened next at Connor's apartment: "An officer knocked on the door. The door was opened by a female [Connor]. The officer asked if *30 Danny Brown was there, at which time Mr. Brown jumped out a window on to the roof of" an adjacent building. Coffey testified that he heard a large crash, and another officer said, "He went out the window."[4]
Brown landed on the roof of McManus Tool Rental, located next door at 41-43 Linden Street. Following a twenty-minute standoff, Captain Frank Lomia convinced Brown to come off the roof. The police then arrested Brown and took him to headquarters.
Once at the police station, Detective Coffey and a second officer tried to interview Brown. Detective Coffey testified that Brown was orally advised of his Miranda rights. According to Coffey, Brown was aggressive and hostile, and the police ended the short, unproductive session. Captain Lomia and another officer tried to question Brown shortly after. Their interview lasted more than one hour and did not result in any substantive statements. Because Coffey had already administered Miranda warnings to Brown, Captain Lomia testified that he did not repeat them. Brown was then taken to the cell block for the night.
Brown gave his first statement to the police early the next afternoon. At around 12:30 p.m. on January 2, 2005, Captain Lomia testified that he approached Brown and asked if he was willing to talk. Brown agreed. Lomia stated that he read Miranda warnings to Brown and had him initial and sign a written waiver form. Brown then admitted his involvement in two armed robberies and two auto thefts. During the interview, Captain Lomia typed Brown's statements in a question-and-answer format. Brown then reviewed, initialed, and signed a printed version of the statement.
Later in the day, three different groups of police officers from Englewood, River Edge, Garfield, and Lodi interrogated Brown. Each interview followed the same pattern: Brown waived his Miranda rights in writing, made incriminating statements, and reviewed and signed typewritten versions of those statements.
The next day, January 3, 2005, a deputy court administrator at the Hackensack Municipal Court reviewed Detective Coffey's complaints for the first time and authorized arrest warrants for Brown. Nothing in the record reveals what happened to the complaints from January 1 to January 3. We note that January 3, 2005 fell on a Monday after a holiday weekend, and there is no evidence that suggests the police deliberately sought to avoid having a judicial officer evaluate the complaints during the holiday weekend.
In addition to the delay, the complaints did not contain any information about Brown that justified his arrest. In response to a request at oral argument, the State submitted copies of each complaint to the Court. The police reports attached to the complaints, which purportedly set forth probable cause for Brown's arrest for robbery, car theft, and gun offenses, did not even mention Brown by name. Only the resisting charge, which recounted events that occurred at the scene of the arrest, referred to Brown's conduct.
A grand jury in Bergen County returned a forty-three count indictment against Brown and others alleging multiple *31 counts of first- and second-degree armed robbery, third-degree theft, weapons offenses, second-degree armed burglary, third-degree aggravated assault, second-degree eluding, and fourth-degree resisting arrest. Brown moved pre-trial to suppress his custodial statements. He argued, among other things, that his arrest was unlawful because the warrants were not authorized until two days after the arrest, that his subsequent statements were thus inadmissible, and that he did not waive his Miranda rights. The State countered that even if the warrants were invalid, the police still had probable cause to arrest based on prior statements implicating Brown by his co-defendants. The State also claimed that by jumping out of the window, Brown's conduct amounted to obstruction of justice and resisting arrest, which justified his arrest.
The trial court denied Brown's motion to suppress. It found sufficient probable cause to arrest Brown based on the statements of his co-defendants, his flight from the apartment, and the twenty-minute standoff with police. After forcefully rejecting Brown's testimony at the hearing on credibility grounds, the court also found that Brown knowingly and voluntarily waived his Miranda rights.
A jury convicted Brown on all the counts submitted to it. (Prior to trial, the court dismissed three counts.) The court sentenced Brown to an aggregate term of life imprisonment plus forty-one years, with ninety-three years of parole ineligibility.
Brown appealed. The Appellate Division concluded that because the arrest warrants in this case were not issued until two days after Brown's arrest, "the police lacked the lawful authority to arrest [Brown] on January 1, 2005." However, the Appellate Division found that Brown's rights under Miranda were scrupulously honored and that his confession was sufficiently attenuated from his unlawful arrest. The appellate panel therefore found that Brown's statements were properly admitted.[5]
We granted Brown's petition for certification limited to the issue of whether his custodial statements were admissible. 201 N.J. 155, 988 A.2d 1177 (2010). We also granted the State's cross-petition for certification, in which it challenged the Appellate Division's conclusion that Brown's arrest was unlawful. 204 N.J. 38, 6 A.3d 441 (2010).
II.
As to the limited issues before this Court, Brown argues that his statements should be suppressed because his arrest was illegal. He contends that the police needed and lacked both arrest and search warrants to take him into custody in a third party's apartment. He also claims that the police created any exigency that might have justified a warrantless arrest.
Brown therefore argues that his statements should be inadmissible as "fruits of the poisonous tree." He also urges this Court to depart from New York v. Harris, 495 U.S. 14, 21, 110 S.Ct. 1640, 1644-45, 109 L.Ed.2d 13, 22 (1990) (holding that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home" without a warrant, consent, or exigent circumstances). He submits that neither his arrest *32 for resisting nor the administration of Miranda warnings broke the causal connection between his unlawful arrest and statements to the police. Finally, Brown continues to maintain that he did not voluntarily waive his Miranda rights.
The State concedes that the arrest warrants were invalid because they had not been executed by a detached court officer. The State nonetheless argues that Brown's arrest was lawful because it was supported by probable cause and exigent circumstances. The State also contends that Brown's statements are properly admitted under New York v. Harris. In addition, it argues that Brown's flight, arrest for resisting, and other intervening circumstances purged his voluntary statements of any taint.
The Attorney General, appearing as amicus curiae, stresses that Brown's arrest was legal. She maintains that despite any defect in the arrest warrants, the police had probable cause to arrest Brown and did so lawfully in public. Accordingly, she argues that there is no need to reach the attenuation issue. Her remaining arguments are consistent with the State's.
III.
To determine the validity of Brown's arrest, we begin with certain basic principles. The Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution protect "[t]he right of the people to be secure ... against unreasonable searches and seizures." To that end, the Federal and State Constitutions declare that arrest warrants must be supported by probable cause. A warrantless arrest in a public place must satisfy the same standard. State v. Basil, 202 N.J. 570, 584, 998 A.2d 472 (2010) (citing Maryland v. Pringle, 540 U.S. 366, 370, 124 S.Ct. 795, 799, 157 L.Ed.2d 769, 774 (2003)).
Because counsel for both sides do not dispute the existence of probable cause, see supra 138-39 n. 2, 14 A.3d at 29 n. 2, it is not necessary to focus on the standard at length. In short, for an arrest, "there must be probable cause to believe that a crime has been committed and that the person sought to be arrested committed the offense." State v. Chippero, 201 N.J. 14, 28, 987 A.2d 555 (2009) (citation and internal quotation marks omitted). Although it is difficult to define the concept with precision, probable cause requires "more than a mere suspicion of guilt" but less evidence than is needed to convict at trial. Basil, supra, 202 N.J. at 585, 998 A.2d 472 (citations omitted). The statements of Brown's co-defendants implicating him in armed robberies meet that test.
The parties' arguments, though, focus at length on whether Brown's arrest was lawful in light of the defective arrest warrants in this case. The warrant requirement provides citizens with protection from unreasonable arrests by having a neutral magistrate determine probable cause before an arrest is made. State v. Henry, 133 N.J. 104, 110, 627 A.2d 125, cert. denied, 510 U.S. 984, 114 S.Ct. 486, 126 L.Ed.2d 436 (1993); see also Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948). Without a warrant, the State has the burden of proving the overall reasonableness of an arrest. See Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639, 650 (1980); State v. Mann, 203 N.J. 328, 337-38, 2 A.3d 379 (2010).
Absent exigent circumstances or consent, the police must obtain a warrant to conduct an arrest inside a home. Payton, supra, 445 U.S. at 589-90, 100 S.Ct. at 1381-82, 63 L.Ed.2d at 652-53; State v. Hutchins, 116 N.J. 457, 463, 561 A.2d 1142 (1989). An arrest warrant "implicitly *33 carries with it the limited authority to enter a dwelling" where the suspect lives when there is reason to believe the suspect is inside. Payton, supra, 445 U.S. at 603, 100 S.Ct. at 1388, 63 L.Ed.2d at 661; see also State v. Jones, 143 N.J. 4, 13, 667 A.2d 1043 (1995). To search for the subject of an arrest warrant in the home of a third party, the police must also obtain a search warrant once again, absent exigent circumstances or consent. Steagald v. United States, 451 U.S. 204, 216, 101 S.Ct. 1642, 1649-50, 68 L.Ed.2d 38, 48 (1981).
Despite the important benefits offered by arrest warrants, they are not required in all cases. For example, felony arrests made in public places and supported by probable cause can be valid without a warrant. United States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 824, 46 L.Ed.2d 598, 605 (1976) (quoting Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543, 553 (1925)); Henry, supra, 133 N.J. at 110-12, 627 A.2d 125. In addition, under N.J.S.A. 40A:14-152.1, full-time police officers "have full power of arrest for any crime committed in [the] officer's presence and committed anywhere within the territorial limits of the State of New Jersey." That comports with the common law, under which "peace officers also had the authority to arrest without a warrant if they had probable cause to believe that a suspect was committing or had committed a felony," even if outside the officer's presence. Henry, supra, 133 N.J. at 110, 627 A.2d 125 (citing State v. Doyle, 42 N.J. 334, 345-46, 200 A.2d 606 (1964)); see also N.J.S.A. 40A:14-152 (empowering police officers to "apprehend and arrest any disorderly person or any person committing a breach of the peace" within view).
IV.
We now analyze whether the actions of the police were reasonable under the Federal and State Constitutions. The proper focus of that inquiry is on the conduct of the officers and not their subjective intent. An action is reasonable "regardless of the individual officer's state of mind, as long as the circumstances, viewed objectively, justify [the] action. The officer's subjective motivation is irrelevant." State v. O'Neal, 190 N.J. 601, 613-14, 921 A.2d 1079 (2007) (quoting Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 1948, 164 L.Ed.2d 650, 658 (2006) (alteration in original) (internal quotation marks and citations omitted)); see also State v. Bruzzese, 94 N.J. 210, 219, 463 A.2d 320 (1983).
It is helpful to view the conduct of the police step by step. In connection with an ongoing investigation, they approached Brown's girlfriend's apartment building and knocked on the door to her apartment. They did not need a warrant to do so. See State v. Domicz, 188 N.J. 285, 302-03, 907 A.2d 395 (2006) (noting no unconstitutional intrusion when police approach part of building used by visitors to make contact with resident).
Brown's mother's phone call gave him advance notice that the police were outside the building. Of critical importance, the trial court found that Brown "fled out the back window ... [i]mmediately upon learning of police presence at Ms. Connor's apartment." Ample, credible evidence supports that finding. According to Detective Coffey, Brown fled when Connor opened the door and the police asked for him. Connor testified that Brown fled even earlier when the police knocked on the door.
Brown claims that his flight was caused by the police's illegal conduct and that *34 they therefore still needed a warrant to arrest him. Based on the record, though, at the moment Brown fled, the police had engaged in no misconduct. They merely knocked on an apartment door and asked if Brown was present. There is no evidence or finding in the record that the police entered the apartment before Brown fled onto the roof next door.[6] Thus, there was no seizure of any sort in the apartment.
Beyond that, Brown's flight created a new reality. By moving to a public place and creating a standoff there, Brown transformed the situation from an arrest in a third party's private apartment, where police would need an arrest and search warrant, to the public arena, where the police could arrest him without a warrant based on probable cause that he had committed armed robbery. See supra at 138-39 n. 2, 14 A.3d at 29 n. 2.
In addition, Brown's conduct in the presence of the police provided an alternative basis to arrest him. After jumping onto a roof, Brown created a twenty-minute standoff with the police in a public place, posing a risk to the officers and the public. Because Brown resisted arrest in that way, the police had the authority to arrest him without a warrant for resisting. See N.J.S.A. 40A:14-152.1 (authorizing warrantless arrests for crimes committed in presence of officer); N.J.S.A. 40A:14-152 (authorizing warrantless arrests for disorderly person or person committing breach of peace "upon view" of officer); Henry, supra, 133 N.J. at 110, 627 A.2d 125. Indeed, soon after the standoff, the police charged Brown with resisting arrest, in violation of N.J.S.A. 2C:29-2, and a jury convicted him of fourth-degree resisting arrest.[7]
Because the police had probable cause to arrest Brown in public (1) for armed robbery committed outside their presence, and (2) for his behavior in resisting arrest, which they observed, they did not need an arrest warrant. As a result, the admittedly defective warrants the police possessed which were tantamount to no warrants at all under the circumstances and rendered this a warrantless arrest, see Groh v. Ramirez, 540 U.S. 551, 558, 124 S.Ct. 1284, 1290, 157 L.Ed.2d 1068, 1079 (2004) do not affect the outcome here.
To be sure, we do not sanction certain conduct by the police in this case. They presented robbery complaints that contain no evidence of probable cause specifically as to Brown; they acted on invalid arrest warrants that were neither reviewed nor signed by a detached court officer before they made an arrest; and they did not obtain a search warrant to arrest Brown in the home of a third party. Better police training would address some of those issues. Likewise, enhanced training of court officers who review complaints for probable cause might be warranted, which we call to the attention of the Director of the Administrative Office of the Courts. However, because Brown chose not to stand his ground in his girlfriend's apartment *35 and submit to a warrantless arrest, and instead fled and engaged in a public standoff, the above issues do not surface in the final analysis of this case.
Police officers took Brown into custody after the standoff. They testified that they advised him of his Miranda rights multiple times, and he repeatedly waived them. Brown claimed otherwise, and the trial court found him not credible. There is substantial, credible evidence in the record to support the court's finding that Brown voluntarily waived his rights. See State v. Robinson, 200 N.J. 1, 15, 974 A.2d 1057 (2009); State v. Locurto, 157 N.J. 463, 474, 724 A.2d 234 (1999). The trial judge also had substantial reasons to reject Brown's other arguments that he was not given food or drink and was subjected to endless questioning in a coercive manner. The statements he made while in police custody were therefore admissible at trial.
Because Brown's constitutional rights were not violated by his lawful arrest, it is not necessary to consider his attenuation argument or case law discussing the concept. The now familiar doctrine calls for suppression of the fruits of an illegal arrest unless the chain of causation between the illegality and a later confession is so attenuated, or has been interrupted by some intervening circumstance, that the confession was "sufficiently an act of free will to purge the primary taint of the unlawful" conduct. Wong Sun v. United States, 371 U.S. 471, 486-88, 83 S.Ct. 407, 416-17, 9 L.Ed.2d 441, 454-55 (1963); State v. Worlock, 117 N.J. 596, 622, 569 A.2d 1314 (1990). However, before examining the fruits, courts must find that the proverbial tree was "poisonous." See United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 1250, 63 L.Ed.2d 537, 545 (1980) (noting "the [beginning] premise that the challenged evidence is in some sense the product of illegal governmental activity"). Because no taint flows from a lawful arrest, nothing about it needs to be purged. We therefore need not evaluate whether Brown's confession was sufficiently attenuated from his arrest.
One example helps demonstrate the point. Brown relies heavily on State v. Johnson, 118 N.J. 639, 573 A.2d 909 (1990). In that case, the Court excluded evidence of a defendant's escape and a telephone call he made after ten hours of police questioning that repeatedly and blatantly violated his constitutional rights. Id. at 648, 654, 573 A.2d 909. The Court ultimately concluded that "the State ha[d] not purged the evidence of the taint of its own illegal conduct." Id. at 659, 573 A.2d 909. Once again, Brown's statements were not the product of unlawful state conduct; the attenuation doctrine thus does not apply.
In light of the facts and disposition of this case, we do not need to decide whether to adopt New York v. Harris. In that case, the police arrested a defendant in his home, based on probable cause, without first getting an arrest warrant. 495 U.S. at 15, 110 S.Ct. at 1642, 109 L.Ed.2d at 19. The Supreme Court held that despite a Payton violation, the exclusionary rule did not bar the State from using defendant's post-arrest statement made outside of his home. Id. at 21, 110 S.Ct. at 1644-45, 109 L.Ed.2d at 22. Because there was no Payton violation in this case, New York v. Harris is inapplicable.
V.
For the reasons set forth above, we affirm and modify the judgment of the Appellate Division. The matter is remanded for resentencing consistent with the Appellate Division's opinion.
*36 For affirmance as modified and remandment Chief Justice RABNER and Justices LaVECCHIA, ALBIN, RIVERA-SOTO, HOENS and STERN (temporarily assigned) 6.
Not Participating Justice LONG 1.
Opposed None.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[2] After oral argument, we granted leave for the State to supplement the record with co-defendants' statements that implicated Brown. The State provided statements by Clarke and co-defendant Winston Durant made on December 31, 2004. Clarke, in his third statement of the day, implicated himself and Brown in multiple armed robberies and one car theft; Durant admitted to his own role in multiple robberies and implicated Brown in one attempted robbery. In addition, defense counsel conceded at oral argument that the police had probable cause to arrest Brown. Brown has submitted a pro se letter stating that he does not concede that issue, which we have considered. We are satisfied that the co-defendants' statements provided the police with sufficient probable cause before Brown's arrest to believe that he had committed serious, violent crimes.
[3] The fifth complaint arose out of Brown's behavior at the time of his arrest. Presumably, it was prepared after the other four.
[4] Connor also testified at the suppression hearing. The trial court discounted her testimony insofar as it differed from Detective Coffey's; the judge did not reject her testimony outright. As to the sequence of events, Connor confirmed that as she headed to the front door in response to banging on it, she heard a crashing sound and a voice say, "He's on the roof."
[5] For reasons that are not relevant now, the Appellate Division reversed Brown's convictions on seven firearms counts and vacated the sentences imposed on two robbery counts. It affirmed the remaining convictions and remanded for resentencing.
[6] Entry into the apartment by the police afterward does not alter those facts. Detective Coffey testified that when Brown jumped out the window, he believed one officer went into the apartment after him. The police then promptly left the building. In addition, the trial court found that Connor later voluntarily consented to a search of the apartment despite her testimony to the contrary.
[7] It is not a defense to a charge of resisting arrest or eluding that a "law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority" and had announced his intention to arrest. N.J.S.A. 2C:29-2a. A claim that an officer was planning to act unlawfully would fare no better under the statute.
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189 Ga. App. 303 (1988)
375 S.E.2d 654
CAMPBELL
v.
THE STATE.
76890.
Court of Appeals of Georgia.
Decided November 16, 1988.
L. Howard Freeman, Jr., for appellant.
Richard W. Shelton, Solicitor, for appellee.
McMURRAY, Presiding Judge.
Defendant appeals his conviction of the offense of driving under the influence of alcohol. Held:
Defendant was driving a vehicle which was stopped by a state trooper due to a loud muffler. The officer did not see anything about defendant's driving that indicated he was driving under the influence of alcohol. Upon stopping defendant the officer discovered that defendant's breath smelled of alcohol, his eyes were very bloodshot and he was unsteady on his feet, that is, he "wobbled back and forth" while he was talking to the officer. Subsequently, an intoximeter test was administered and defendant registered .10 grams percent alcohol.
The offense of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) includes as one of its elements that defendant's consumption of alcohol had rendered him a less safe driver. Taylor v. State, 184 Ga. App. 368 (361 SE2d 667). Defendant contends that his conviction was not authorized by the evidence since there was no evidence that he was so under the influence of alcohol *304 that it rendered him a less safe driver.
The evidence of the alcohol content of defendant's blood was sufficient "to authorize the conclusion that he was `under the influence of alcohol' within the contemplation of OCGA § 40-6-391 (a) (1)." Collum v. State, 186 Ga. App. 822 (368 SE2d 578). This evidence combined with the evidence of defendant's bloodshot eyes and unsteadiness on his feet was sufficient for a rational trier of fact to reasonably find defendant guilty of driving under the influence of alcohol beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560); Collum v. State, 186 Ga. App. 822, supra.
Judgment affirmed. Birdsong, C. J., Banke, P. J., and Carley, J., concur. Deen, P. J., concurs and also concurs specially. Beasley, J., concurs specially. Sognier, Pope and Benham, JJ., dissent.
BEASLEY, Judge, concurring specially.
The law provides a rebuttable factual presumption which makes the evidence sufficient in this case. OCGA § 40-6-392 (b) (3) states: "If there was at that time an alcohol concentration of 0.10 grams or more, it shall be presumed that the person was under the influence of alcohol, as prohibited by paragraphs (1), (2), and (3) of subsection (a) of Code Section 40-6-391." Due to the results of the intoximeter test introduced in evidence, the presumption applied. It was not rebutted as a matter of law so as to remove it from the body of evidence. Hogan v. State, 178 Ga. App. 534, 536 (343 SE2d 770) (1986) concluded that: "The commission of the crime of DUI by violating OCGA § 40-6-391 (a) (1), ... or (a) (3) may include as an element of proof thereof, those presumptions or inferences which are established by OCGA § 40-6-392 (b) (1), (b) (2), or (b) (3)." (Emphasis omitted).
That itself would be sufficient to prove that the driver was a less safe one than if he had not been under the influence of alcohol.[1]
There is even more evidence, however. The officer testified that defendant stated he had one beer, he smelled of alcohol, he had bloodshot eyes, and he was unsteady on his feet. As to the latter, the officer explained that defendant "wobbled back and forth" and demonstrated to the factfinder how defendant was "moving back and forth." The physical condition described supported a reasonable inference that defendant was not as alert mentally and did not have as much motor command for controlling the movement of the vehicle and reacting to hazard than he would have had without the alcohol *305 consumption.
To hold that there must be evidence that the alcohol-influenced driver did in fact drive erratically or in violation of some traffic rule would import an element not present in OCGA § 40-6-391 (a) (1).
I am authorized to state that Presiding Judge Deen joins in this special concurrence. POPE, Judge, dissenting.
I cannot agree with the finding of the majority that the evidence in this case was sufficient to show that the appellant's consumption of alcohol had rendered him a less safe driver, so as to authorize a conviction of D.U.I. in violation of OCGA § 40-6-391 (a) (1). Under cross-examination the arresting officer responded that the only thing that brought appellant's driving to his attention was that his vehicle's muffler was loud; that appellant was not "stumbling or falling down, or anything of that nature"; that appellant was cooperative and seemed to understand everything that was going on around him; and that other than the smell of alcohol, his bloodshot eyes and unsteadiness on his feet, there was nothing else about appellant that exhibited he might be under the influence of alcohol. More importantly, when asked whether or not from his experience as an officer these symptoms would affect someone's driving, he answered that he did not know. Thus, there was no evidence, circumstantial or otherwise, that appellant was not driving safely. Compare Collum v. State, 186 Ga. App. 822 (368 SE2d 578) (1988), cited by the majority, in which this court held that the evidence of defendant's blood alcohol content combined with direct testimony that defendant was driving at an erratic speed and weaving, authorized the conviction.
"`Although [OCGA § 40-6-391 (a) (1)] does not state such, the requirement of proof that the driver be under the influence of alcohol to a degree which renders him less safe or incapable of safely driving has been judicially imported. [Cits.]' Peters v. State, 175 Ga. App. 463 (1) (333 SE2d 436) [(1985)]."[1]Groom v. State, 187 Ga. App. 398, 400 (2) (370 SE2d 643) (1988). Because, I disagree with the special concurrence to the extent it holds that the rebuttable presumption contained in OCGA § 40-6-392 (b) (3) is sufficient, without more, to show that the driver was a less safe driver, and because a reasonable doubt remains under the facts and circumstances of this case as to whether appellant was under the influence of alcohol to a degree which rendered him a less safe driver, I must respectfully dissent. Accord Mulling v. State, 156 Ga. App. 404 (1) (274 SE2d 770) (1980).
*306 I am authorized to state that Judge Sognier and Judge Benham join in this dissent.
NOTES
[1] At the time of the incident here, the statute by case law included the criterion "to a degree which renders him incapable of safely driving." Cargile v. State, 244 Ga. 871, 873 (1) (262 SE2d 87) (1979). In that case the Supreme Court equated that wording with the "less safe" language. See Howell v. State, 179 Ga. App. 633 (1) (347 SE2d 358) (1986). As of July 1, 1988, the statute has been amended to use expressly the "less safe to drive" language. Ga. L. 1988, p. 1893, § 2.
[1] As noted by the special concurrence, the July 1, 1988 amendment to OCGA § 40-6-391 (a) (1) codified the less safe to drive requirement which had previously been judicially imported.
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83 So.3d 976 (2012)
DELVI, INC., Appellant,
v.
FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Mario Pantaleon, Appellees.
No. 3D11-1091.
District Court of Appeal of Florida, Third District.
March 21, 2012.
Jason H. Clark, West Palm Beach, for appellant.
Louis A. Gutierrez, Senior Attorney, for Florida Unemployment Appeals Commission; David J. White, Jupiter, for Mario Pantaleon.
Before SUAREZ, ROTHENBERG, and FERNANDEZ, JJ.
SUAREZ, J.
Delvi, Inc. ("Delvi"), appeals an order of the Florida Unemployment Appeals Commission ("Commission") affirming the referee's finding that Mario Pantaleon ("Pantaleon") was entitled to unemployment compensation benefits. We affirm the Commission's decision that Pantaleon's conduct did not disqualify him from receiving unemployment benefits.
The claimant worked for Delvi since November 2, 2006, as a warehouse worker. On October 21, 2010, when Pantaleon's immediate supervisor asked him to move a pallet, he told his supervisor he would move the pallet after he finished his lunch, and raised his middle finger at the supervisor, as he contends, in jest. He was discharged from employment on October 21, 2010, for showing disrespect to his supervisor and not performing his job to his employer's expectations. The appeals referee concluded the claimant was qualified for benefits because he was discharged from his employment for alleged misconduct that was not proven by substantial, competent evidence. The employer appealed the referee's decision to the Commission. The Commission affirmed the referee's decision holding the claimant qualified to receive benefits. Delvi now appeals the final order of the Commission.
The issue on appeal is whether there was substantial, competent evidence, consistent with the findings of the Commission, that Pantaleon's conduct did not *977 disqualify him from receiving unemployment benefits from his employer. See § 120.68(7)(b), Fla. Stat. (2010); Aiello v. R.C. Props., Inc., 654 So.2d 287 (Fla. 3d DCA 1995). A single incident of insubordination does not amount to misconduct. See, e.g., Montalbano v. Unemployment Appeals Comm'n, 873 So.2d 417 (Fla. 4th DCA 2004) (holding that employee who had argument with her supervisor over a work order and was fired for insubordination when she began to yell, did not involve misconduct); Tabares v. Fla. Unemployment Appeals, 838 So.2d 1214 (Fla. 3d DCA 2003) (holding that employee's raising her voice during meeting with supervisor did not constitute misconduct connected with work); Donnell v. Univ. Cmty. Hosp., 705 So.2d 1031 (Fla. 2d DCA 1998) (holding that housekeeping department employee discharged for violating hospital rule and having argument with supervisor amounted to poor judgment and did not constitute misconduct). As found by the Commission, "[t]he claimant's actions may have displayed poor judgment, raising his middle finger at his supervisor, but does not amount to misconduct connected with his work." There is substantial, competent evidence to support the referee's finding that Pantaleon was not discharged for employee misconduct. We therefore affirm the Commission's decision that Pantaleon's conduct did not disqualify him from receiving unemployment benefits.
Affirmed.
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630 P.2d 772 (1981)
Timothy C. PROCK, Petitioner,
v.
DISTRICT COURT OF PITTSBURG COUNTY; Norman B. Hess, Warden, Oklahoma State Penitentiary, Respondents.
No. 54385.
Supreme Court of Oklahoma.
April 7, 1981.
Rehearing Denied July 13, 1981.
Timothy C. Prock, pro se.
Jan Eric Cartwright, Atty. Gen., by Janet L. Cox, Oklahoma City, for respondents.
*773 OPALA, Justice:
The issues to be answered in this proceeding are: [1] Did the trial curt err in declining to assume jurisdiction of a prisoner's petition alleging denial of certain federally-protected liberty interests by prison authorities acting in contravention of state-fashioned internal prison discipline rules? [2] Are the prisoner's allegations sufficient to raise constitutionally-cognizable claims to an administrative prison discipline hearing?
*774 We hold that (a) access to district court must be accorded, of right, to a prisoner who asserts a federally-protected claim to a prison discipline hearing and (b) the facts alleged by the prisoner, both here and below, are sufficient to entitle him to a hearing on every claim which he anchored on the prison officials' alleged invasion of his state-recognized liberty interests.
THE ANATOMY OF PRIOR LITIGATION
The petitioner, Timothy Prock [Prock], an inmate at the state penitentiary, petitioned the District Court, Pittsburg County, for a writ directing the warden to release him from solitary confinement and to restore certain of his privileges created by prison rules but withheld by an allegedly arbitrary internal discipline action. The trial judge summarily denied his petition, believing, no doubt, that he was without legal authority to interfere with internal management of prison facilities.[1] Prock now seeks in this court a writ to review the trial court's adverse decision and to pronounce that the district court is by law invested with power necessary to afford him the relief he sought below.
PRISONER'S ALLEGATIONS
Prock's allegations are:
Until August 21, 1979, he was classified as a medium security prisoner and was housed with the general inmate population. On that date he came to be transferred, without notice, to administrative lockup. This move resulted in his loss of certain privileges which include a monthly "bonus" and earned good-time credits. This was contrary to prison rules. Antecedent to his solitary confinement transfer, he was not allowed to appear before the institutional classification committee. He was merely informed by a prison employee that the transfer was being effected because he was then under investigation for alleged involvement in a fellow prisoner's homicide. On August 27th Prock did complete a form for an inmate grievance report to the warden. That form was returned to him the next day. He was told that he had failed clearly to define the problem. From the rejection of his grievance he next lodged an appeal to the Deputy Director of the Oklahoma Department of Corrections [Department]. That official responded with a written statement that the grievance was being returned to the warden who would provide him with an explanation for the transfer. Prock remained in solitary confinement some 29 days before being brought before the institutional classification committee. At his appearance before that body he was told that no change was possible in his custodial condition so long as he remained in the lockup. The administrative actions taken against him while he was kept segregated from the general inmate population are said to have been contrary to prison rules in the following particulars: (a) his case was not reviewed weekly, (b) he did not receive a written investigative report of the reasons leading to his segregation, (c) he did not receive a psychological evaluation every thirty days and (d) he was not allowed to have daily physical exercise, to attend educational classes nor to participate in any of the available rehabilitative programs.
During his five-month lockup he was not questioned by anyone with respect to the suspected misconduct which brought about his isolation from the general prison population. Nor was there placed in his file a followup investigation report with respect to his alleged complicity in the prison homicide. While the cloud of a suspected serious misconduct remains in his prison file, he has been afforded no administrative forum to clear himself or to procure a removal of the *775 detrimental information from his prison record. Prison rules provide for the deletion from an inmate's record of all those references to a disciplinary breach of which he has been cleared. The cloud of homicide-complicity attribution remains in his file and adversely affects his eligibility for transfer to a trusty status or for parole.
APPOINTMENT OF COUNSEL
Prock is uncounseled in this court. His request for the appointment of an attorney has been denied by a predecisional order. The protection of the Federal Constitution's VIth Amendment extends only to "criminal prosecutions". The issues for resolution here all deal with administration of internal prison discipline. This case does not fall under the protected VIth Amendment rubric. The state's own counterpart of the VIth Amendment's assistance-of-counsel clause Art. 2 § 20, Okl.Con. is also co-extensive with criminal prosecutions. It hence does not confer on Prock the right to secure a free lawyer. Moreover, Prock has not shown here any of those "special circumstances" which may make assistance of counsel essential as a matter of federal or state due process.[2]
THE PROCEDURAL FRAMEWORK OF REVIEW
Prock's pro se paperwork for review of the district court's disposition is titled "Petition for Writ of Certiorari and/or Application to Assume Original Jurisdiction". Since the plea for corrective relief sought by him from this court was filed here within the 30-day statutory time limit for appeal, we treat Prock's complaint as a petition in error.[3] The question to be answered is whether the district court's denial of Prock's petition was anchored on a statutorily-imposed limitation of judicial authority or constituted mere self-abnegation of power whose exercise is constitutionally mandated.
I.
JURISDICTION OF THE DISTRICT COURT TO REVIEW A FEDERALLY-PROTECTED INMATE CLAIM TO A HEARING ON AN ALLEGED BREACH-OF-INTERNAL-PRISON-DISCIPLINE COMPLAINT
Our statutes provide no explicit access to the district court to a prisoner who seeks review of a warden's administrative action taken in the course of maintaining internal prison discipline. Prock stands before us without the benefit of a state-created claim to question, in a judicial forum, any constitutionally impermissible agency behavior of prison authorities acting in the administration of correctional discipline.
This lacuna in our state law is itself offensive to constitutional notions of legality. A prisoner's access to the courts to litigate constitutionally-cognizable claims to a denied liberty interest is clearly mandated by federal case law.[4] If the parties to the proceedings are subject to state-court jurisdiction, a state court is authorized nay required to review violations of federal constitutional rights which occur within its borders. In short, prisoners must be provided with "some clearly defined method *776 by which they may raise claims of denial of federal rights".[5]
While statutory state law does not authorize review of actions by prison officials in dealing with internal breach of discipline, claims for vindication of constitutionally-protected interests, which may arise from prisoner misconduct disputes, must receive judicial scrutiny by the command of the Federal Government's fundamental law.
II.
THE NATURE OF THE INMATE'S CLAIMS
Prock argues that certain arbitrary and summary action of the prison officials, acting in contravention of existing regulations, violated the minimum standards of due process. These actions are said to have consisted of (a) his transfer to solitary confinement and (b) improper treatment while he remained in that custodial surrounding.
The test for gauging a prisoner's claim to a due-process-mandated administrative hearing that precedes imposition of disciplinary sanctions is whether his liberty or property interest was in fact threatened with invasion. Both the United States Constitution and Oklahoma's own fundamental law require that governmental action affecting life, liberty or property conform to that measure of fairness which accords with the minimum standards of due process.[6]
The basis for Prock's complaint is that he was deprived of liberty interest by a modification in his custodial surrounding which was so significant as to trigger a due process demand for a hearing.[7] We are not quite in accord with Prock's view. The notion that every state action with adverse consequences for a prison inmate is per se capable of raising a due process shield stands rejected by the United States Supreme Court.[8] A change in the conditions of one's confinement, although it may have a substantial adverse impact on a prisoner no matter how drastic will not alone suffice to raise due process implications.[9]
*777 While neither our state nor the federal constitution does guarantee any particular custodial condition to an incarcerated prisoner, the state may by statutory law or regulations limit its official latitude to change the conditions of confinement and limit the circumstances under which breach-of-discipline sanctions may be imposed.[10] When this occurs, a liberty interest is at once created. Due process will protect this state-fashioned interest to insure that it is neither arbitrarily meted out nor abrogated. A person's liberty interest may thus receive federal protection, even though it is itself but a creature of state law. "The touchstone of due process is protection of the individual against arbitrary action of government."[11]
A. State Law and State Prison Regulations
Oklahoma prison authorities have fashioned written regulations dealing with procedures and policies for controlling prisoner misconduct. They have imposed limits on the sweep of their discretionary action in changing a prisoner's custody status by conditioning intra-prison transfers on the existence of a specified standard.[12]
*778 Under these rules Prock has a justifiable "expectation", conferred by state-fashioned regulations, to a written explanation for his extended lockup confinement and to a final resolution of the homicide investigation in which he is suspected of complicity. Should he be cleared of the charges, he may have his prison record purged of misconduct attribution. Implicit in this expectation is Prock's claim to protection from an unreasonably extended curtailment of his rule-fashioned privileges.
B. Loss of Good-Time Credit
Loss of good-time credit, in this case, does not appear to violate Prock's due-process-protected interests. Prock bases his claim to good-time credit on the holding in Wolff v. McDonnell,[13] a Nebraska case, where the Court held that a state prisoner was entitled to due-process protection of good-time credit because he had in it a special liberty interest created by state statute.[14]
Oklahoma statutory law is distinguishable. The terms of 57 O.S.Supp. 1976 § 138[15] the statute effective at the time of his administrative lockup provide that good-time credit shall be given to an inmate who works or attends school. The privilege of receiving good-time credit, while in administrative segregation, is clearly discretionary because it is based on the warden's recommendation.
The loss of good-time credit which results from a prisoner's transfer to solitary confinement has been held not to deprive a prisoner of a due-process claim to a hearing.[16] This holding is premised on the rationale of Meachum v. Fano[17] and Montanye v. Haymes.[18] In the absence of a state-conferred right, there is thus no infringement of due-process-protected liberty interest when a prisoner's good-time credits are curtailed following his administrative segregation.[19] We take cognizance of federal case law and hold that neither Oklahoma *779 statutory law nor state regulation entitles a prisoner transferred to close custody to a liberty interest in good-time credit.
Prock has not cited us to nor do we know of any statute or regulation that creates a liberty interest in the monthly "bonus" he received before his transfer to solitary confinement. We hence conclude that unless Prock is able to come up with a state-conferred interest or expectation, he is not entitled to claim a monthly bonus for the period during which he may have been improperly held in administrative lockup.
CONCLUSION
While state statutes do not authorize or require a judicial review of internal prison disciplinary actions, both the federal and the state Due Process Clauses[20] command that prisoners with claims to interests or expectations of a constitutionally-protected nature be afforded access to courts. The district court's denial of jurisdiction must hence be treated as an act of self-abnegation of power with which the court is clearly invested a power whose exercise is mandated by both federal and state fundamental law.
Judgment of the trial court is reversed and cause is remanded with directions to re-examine all the fact and law issues to determine if the allegations and proof support some cognizable claim or claims. Should the district court find that its review of the allegedly objectionable actions of prison officials is not now in order because administrative remedies had not been exhausted, then a writ should issue directing the warden forthwith to set in motion the rule-fashioned adjudicative machinery within the prison system for the purpose of resolving every essential fact issue that remains undetermined.
It is apt to admonish the judicial service of this State to be mindful of Justice Brennan's observation in his concurring opinion in Case v. Nebraska, 381 U.S. 336, 345-346, 85 S. Ct. 1486, 1492, 14 L. Ed. 2d 422, 428 [1965], in which he said:
"None can view with satisfaction the channeling of a large part of state criminal business to federal trial courts. If adequate state procedures, presently all too scarce, were generally adopted, much would be done to remove the irritant of participation by federal district courts in state criminal procedure."
This observation is equally apropos with respect to prison discipline cases. Judicial lethargy is unlikely to help the state solve whatever problems may still exist in its penal system.[21]
Reversed and remanded.
IRWIN, C.J., and WILLIAMS, LAVENDER and DOOLIN, JJ., concur.
BARNES, V.C.J., and HODGES, SIMMS and HARGRAVE, JJ., dissent.
NOTES
[1] Disciplinary regulation of prisoners has been largely an arena beyond the pale of judicial remedies. Ex parte Ridley, 3 Okla. Crim. 350, 106 P. 549, 554-555, 26 L.R.A.N.S. 110 [1910]; Coburn v. Schroeder, 71 Okla. Crim. 405, 112 P.2d 191, 193 [1941]. A purely administrative officer, i.e. one without "judicial powers", cannot have his discretion controlled by the judiciary. No appeal lies from his actions. State ex rel. Lowe v. Pruett, Clerk of Dist. Court, 43 Okl. 766, 144 P. 365, 366 [1914].
[2] Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 [1973].
[3] Fisher v. Wilson, Okl., 328 P.2d 420, 423 [1958]; Carder v. Court of Criminal Appeals, Okl., 595 P.2d 416, 420 [1979].
[4] It is well established by federal case law that prisoners have a constitutional right of access to the courts. Ex parte Hull, 312 U.S. 546, 61 S. Ct. 640, 85 L. Ed. 1034 [1941]; Cochran v. Kansas, 316 U.S. 255, 62 S. Ct. 1068, 86 L. Ed. 1453 [1942]; Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 [1969]; Younger v. Gilmore, 404 U.S. 15, 92 S. Ct. 250, 30 L. Ed. 2d 142 [1971]; Cruz v. Hauck, 404 U.S. 59, 92 S. Ct. 313, 30 L. Ed. 2d 317 [1971]; Cruz v. Beto, 405 U.S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d 263 [1972]; Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 [1974]; Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 [1974]; Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 [1977]; Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 [1979].
[5] Young v. Ragen, 337 U.S. 235, 238-239, 69 S. Ct. 1073, 1074-1075, 93 L. Ed. 1333, 1336-1337 [1949]. In Young, a state prisoner, who had sought a writ of habeas corpus in the state court, raised "substantial questions under the due process clause". His petition was denied without a hearing. The Court held that the state must provide some procedure by which a prisoner can raise his claims regarding denial of federal rights. See also Hart v. Eyman, 458 F.2d 334, 340 [9th Cir.1972]; Gibson v. Jackson, 578 F.2d 1045, 1054 [5th Cir.1978].
[6] Art. 2 § 7, Okl.Con.; XIVth Amend., U.S. Const.
[7] Prock relies on Wright v. Enomoto, 462 F. Supp. 397, 402 [N.D.Cal. 1976] aff'd 434 U.S. 1052, 98 S. Ct. 1223, 55 L. Ed. 2d 756 [1978].
[8] Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 [1976]; Moody v. Daggett, 429 U.S. 78, 88, 97 S. Ct. 274, 279, 50 L. Ed. 2d 236, 244 [1976].
[9] Meachum v. Fano, supra note 8; A prisoner does not forfeit all constitutional protections as a result of his conviction and custodial status. He retains a cluster of some important rights that the courts must be alert to protect. Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129, 97 S. Ct. 2532, 2539-2540, 53 L. Ed. 2d 629, 641 [1977]; Meachum v. Fano, supra note 8, 427 U.S. at 225, 96 S.Ct. at 2538, 49 L.Ed.2d at 459; Wolff v. McDonnell, supra note 4, 418 U.S. at 555-556, 94 S.Ct. at 2974, 41 L.Ed.2d at 950-951; Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 501 [1974]; Bell v. Wolfish, supra note 4, 441 U.S. at 545-546, 99 S.Ct. at 1877, 60 L.Ed.2d at 472-473 [1979]. He may claim the protection of the Due Process Clause to prevent additional deprivation of life, liberty or property. Meachum v. Fano, supra note 8; Wolff v. McDonnell, supra note 4. Although a prisoner retains some constitutional rights, these may nonetheless be subject to restrictions and limitations. "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the consideration underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356, 1369 [1948]; Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S. at 125, 97 S.Ct. at 2537-2538, 53 L.Ed.2d at 638; Wolff v. McDonnell, supra note 4, 418 U.S. at 555, 94 S.Ct. at 2974, 41 L.Ed.2d at 950. The fact of confinement, as well as the legitimate goals and policies of the penal institution, operate to abridge even the retained constitutional rights of prisoners. Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S. at 125, 97 S.Ct. at 2538, 53 L.Ed.2d at 638; Pell v. Procunier, supra, 417 U.s. at 822, 94 S.Ct. at 2804, 41 L.Ed.2d at 501.
[10] This test was formulated by the United States Supreme Court in Meachum v. Fano, supra note 8, a companion case to Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 [1976]. Both cases stand for the proposition that the liberty interest of a prisoner is not infringed when he is transferred to another prison within the state, with or without a hearing, absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events. Meachum addressed the question whether state prisoners transferred from medium to maximum security facility had a right to a due-process-mandated hearing. The Court held that change in the nature of a prisoner's confinement is not sufficient to invoke due process because confinement of the prisoner in any state institution is within the power of the state. The Court's holding is anchored on the premise that state law did not create a legal interest in the prisoner to be assigned to any particular prison facility. This, the Court said, distinguishes Meachum from Wolff v. McDonnell, supra note 4, in which a prisoner was held entitled to minimum procedural safeguards before he could be deprived of good-time credits. There the liberty interest, though not constitutionally created, had been structured by state statute. Procedural due process was deemed necessary in Wolff to insure that the state-created liberty interest was not arbitrarily abrogated. Following these cases, federal circuit courts have consistently looked to the underlying state law before granting or denying a transferred prisoner's claim to due-process-mandated liberty interest protection. Mitchell v. Hicks, 614 F.2d 1016 [5th Cir.1980]; State-law interest may be based on statutes or prison rules and regulations. Meachum v. Fano, supra note 8, 427 U.S. at 229, 96 S.Ct. at 2540, 49 L.Ed.2d at 461-462.
[11] Wolff v. McDonnell, supra note 4, 418 U.S. at 558, 94 S.Ct. at 2976, 41 L.Ed.2d at 952.
[12] The State Board of Corrections the governing board of the Department has statutory authority to establish policies for the Department. 57 Ohio St. 1971 § 503; 57 O.S.Supp. 1974 § 504. The Director of the Department has by statute complete discretion in his supervision of all penal facilities. He can, consistent with the general policies established by the Board, prescribe rules pertaining to the operation and control of the inmates and of the penal facilities. 57 O.S.Supp. 1979 §§ 507, 510. When promulgated in the form of policies and operations memoranda, such rules have the force and effect of law.
The regulations pertinent to our discussion here are: Oklahoma Department of Corrections Guidelines for Classification Decision Making, No. OP-060103 Revised, October 15, 1978 and Oklahoma Department of Corrections Disciplinary Procedures, No. OP-060402 Revised, May 10, 1979.
By these rules a prisoner is placed in solitary confinement close custody if he presents a current and continuing danger to the safety and good order of the institution, staff or other prisoners in the institution. No assignment is made to close custody unless certain limited and specified substantive criteria are met. A hearing before the institutional classification committee is required before a prisoner may be placed in close custody. A pre-hearing assignment may be made by the warden, deputy warden or a designated staff member if a substantial reason dictates emergency action. A substantial reason exists when the prisoner constitutes a safety or security risk and an investigation is pending for a suspected criminal act or omission. If a pre-hearing assignment to close custody is made on the basis permitted by the rule, the action must be reviewed by the classification committee within three working days.
These rules also entitle a prisoner to having an investigation of his case completed within a reasonable time. He is entitled to be informed in writing of the reasons for any extended investigation and why he remains in solitary confinement. During his confinement he has a right to a weekly review of the pending investigation. The rules specifically provide for "privileges on the same basis as the general [prison] population," including daily exercises and educational privileges. The only exception specified is, of course, the freedom of unrestricted movement. If an inmate is not found guilty of violating prison rules and regulations, all references to the alleged violations shall be removed from his individual record, both manual and computer-generated.
[13] Supra note 4.
[14] Wolff v. McDonnell, supra note 4. The Nebraska statutes in Wolff not only mandated the issuance of good-time credit for satisfactory behavior but also specified that the credit could be forfeited only for serious misbehavior.
[15] The terms of 57 O.S.Supp. 1976 § 138 provide in pertinent part:
"A. Every inmate of a state correctional institution who engages in work, attends school or participates in a vocational training program, approved or provided by the Department, shall have one (1) day deducted from his sentence for each day that he engages in any such activity. Earned credits may be subtracted from the total accumulated by an inmate, upon recommendation of the institution disciplinary committee, following due process, and approved by the warden or superintendent. Provided that lost credits may be restored by the warden or superintendent upon approval by the classification committee. * * *
C. * * * Any inmate classified by the Department of Corrections as physically or mentally disabled for work or placed into administrative segregation, by the institutional administration, may be allowed up to one (1) day credit off his sentence for good behavior for each day served with a maximum credit of two hundred sixty (260) days per year. All inmates shall be allowed as a deduction from their term of imprisonment the jail term, if any, served prior to being transported to the penitentiary pursuant to the judgment and sentence by which the inmate is committed.
D. The accumulated time of every inmate shall be tallied each month and filed by the institution where the sentence is being served. A copy of this record shall be sent to the Department on a quarterly basis and a copy shall be provided the inmate."
[16] Dolph v. Crisp, 446 F. Supp. 1179, 1183-1184 [E.D.Okl. 1978]; Gardner v. Benton, 452 F. Supp. 170 [E.D.Okl. 1977]; Twyman v. Crisp, 584 F.2d 352, 356 [10th Cir.1978].
[17] Supra note 8.
[18] Supra note 10.
[19] Gardner v. Benton, supra note 16.
[20] Art. 2 § 7, Okl.Con.
[21] We do not intimate that the trial judge failed to follow the beaten path of the applicable state precedent. His decision, while resting on a correct exposition of our extant case law, is patently in discord with the currently prevailing notions of federal due process.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2550470/
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20 A.3d 940 (2011)
161 N.H. 699
The STATE of New Hampshire
v.
John MWANGI.
No. 2010-277.
Supreme Court of New Hampshire.
Argued: February 16, 2011.
Opinion Issued: April 12, 2011.
*942 Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
LYNN, J.
The defendant, John Mwangi, appeals the decision of the Superior Court (O'Neill, J.) calculating his pretrial confinement credit on his sentence for a robbery conviction. See RSA 636:1 (2007). He argues that the trial court erroneously allocated a portion of his incarceration to a prior habitual offender sentence on which he was charged with a parole violation. See RSA 651-A:23 (2007). We affirm.
The record supports the following undisputed facts. On April 19, 2006, the defendant was convicted for the felony offense of driving while certified as a habitual offender. He was sentenced to the New Hampshire State Prison for a minimum of one year and a maximum of four years. He was paroled in November 2006. On November 11, 2008, the defendant was arrested for robbery, and, the following day, bail was set at $5,000. He was unable to post bail and remained in the custody of the Hillsborough County House of Corrections.
On November 12, a detention order was issued based upon allegations that the defendant had violated parole by failing "to be of good conduct[,] obey all laws and remain arrest free" stemming from his alleged commission of armed robbery on November 11, and by failing to report to his parole officer. The defendant met with a parole officer, received notice of the parole violation charges, and signed a waiver regarding a preliminary hearing. Specifically, he acknowledged: "Having been informed of my rights to a Preliminary Hearing ... I hereby waive these rights. If I am a parolee, I understand I will be transported to NH State Prison pending my appearance at a Revocation Hearing...." On November 14, he was transferred to the New Hampshire State Prison.
A jury found the defendant guilty of robbery on August 11, 2009, and bail was revoked pending sentencing. On September 8, 2009, the defendant completed serving the habitual offender sentence at the prison and was returned to the Hillsborough County House of Corrections, where he remained until his sentencing hearing on the robbery conviction on October 29, 2009. At the hearing, the parties *943 disputed whether the entire period of the defendant's incarceration commencing November 11, 2008, should be calculated as pretrial confinement credit toward the robbery sentence. Ultimately, he received a sentence of not more than seven years, nor less than three and one half years, to be served consecutively to his habitual offender sentence. The trial court awarded him fifty-three days of pretrial confinement credit for his incarceration at the Hillsborough County House of Corrections, which included two days served in November 2008 and the time from September 8, 2009, when he completed his habitual offender sentence, to October 29, 2009, when he was sentenced on his robbery conviction.
The defendant moved to reconsider, requesting 353 days of credit, or alternatively, fifty-five days to correct a calculation error. He argued that he was entitled to 353 days because he had been in custody on the robbery charge from the date of his arrest on November 11, 2008, until his sentencing hearing on October 29, 2009, and was not serving any other sentence of confinement during that time. See RSA 651-A:23. According to the defendant, he was never confined for the parole violation because he was not afforded a final revocation hearing and did not receive a sentence on that violation.
The State, in response, agreed to the requested fifty-five days of credit, but contested the defendant's request for additional time. It argued that his incarceration at the state prison from November 14, 2008, through September 8, 2009, constituted time served on his habitual offender sentence due to his parole violation, and that it could not be counted as both time served to complete his habitual offender sentence and as pretrial confinement credit on his robbery sentence. After a hearing, the trial court increased the house of corrections confinement credit on the robbery sentence from fifty-three days to fifty-five days and allocated the defendant's incarceration at the state prison as time served on his habitual offender sentence. This appeal followed.
We first outline the interplay among several statutes governing sentencing, pretrial confinement credit, and parole. The allocation of pretrial confinement credit is governed by RSA 651:3 (2007) and RSA 651-A:23 (2007). See State v. Edson, 153 N.H. 45, 49, 889 A.2d 420 (2005). RSA 651:3, I, provides in part: "All the time actually spent in custody prior to the time [a defendant] is sentenced shall be credited in the manner set forth in RSA 651-A:23 against the maximum term of imprisonment that is imposed and against any minimum term authorized by RSA 651:2 or 6." RSA 651-A:23 provides in part:
Any prisoner who is confined to the state prison, any house of correction, any jail or any other place shall be granted credit against both the maximum and minimum terms of his sentence equal to the number of days during which the prisoner was confined in jail awaiting and during trial prior to the imposition of sentence and not under any sentence of confinement.
(Emphasis added.) See Edson, 153 N.H. at 49, 889 A.2d 420 (explaining that pretrial confinement credit statutes stem principally from the recognition that presentence detention is often the result of indigency). It is within the trial court's discretion to allocate pretrial confinement credit. Id.
Under the parole statutes, a parolee once arrested is entitled to a preliminary hearing and then a revocation hearing before the parole board, with the latter to occur within forty-five days. RSA 651-A:17 (2007) (amended 2010). The parole *944 board may revoke parole for a parolee who, for example, violates the conditions of his parole or violates the law, but shall revoke parole for a parolee who is convicted of a felony. RSA 651-A:18 (2007). Once parole is revoked, the parolee "shall be recommitted to the custody of the commissioner of corrections," RSA 651-A:17, and "[t]he time between the return of the parolee to prison after his arrest and revocation of parole shall be considered as time served as a portion of the maximum sentence." RSA 651-A:19 (2007) (amended 2010); see also RSA 651-A:23. If not re-paroled, the "prisoner who is recommitted shall serve the remainder of his maximum sentence" less any credits or other time reduction to which he is entitled. RSA 651-A:19.
The defendant acknowledges that as a consequence of this statutory scheme, his parole was revoked "by operation of law" when the jury convicted him of felony robbery, his re-confinement was mandatory, and he was required to serve the remainder of his habitual offender sentence. However, he contends that RSA 651-A:18 and :19 do not "suspend[ ] the due process requirement for a parole revocation hearing," and that absent such a hearing and a sentencing order on the parole violation, he was not serving a "sentence of confinement" under RSA 651-A:23 for that violation while incarcerated during the pendency of the robbery case. According to the defendant, the trial court's allotment of his incarceration at the state prison as time served for the habitual offender sentence effectively imposed a sentence for the parole violation in violation of his right to due process under the State and Federal Constitutions. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV.
We first consider the defendant's argument under the State Constitution, using federal cases only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983). Part I, Article 15 of the State Constitution provides, in relevant part: "No subject shall be ... deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land...." N.H. CONST. pt. I, art. 15. "Law of the land in this article means due process of law." State v. Veale, 158 N.H. 632, 636, 972 A.2d 1009, cert. denied, ___ U.S. ___, 130 S. Ct. 748, 175 L. Ed. 2d 524 (2009). The ultimate standard for judging a due process claim is the notion of fundamental fairness. Id. at 637, 972 A.2d 1009; see State v. Haley, 141 N.H. 541, 544, 689 A.2d 671 (1997) ("due process under our constitutional republic has, as a primary consideration, the notion that no matter how rich or how poor, all of our citizens are entitled to fundamental fairness when the government seeks to take action which will deprive them of their property or liberty interests" (quotation and brackets omitted)). Fundamental fairness requires that government conduct conform to the community's sense of justice, decency and fair play. Veale, 158 N.H. at 637, 972 A.2d 1009.
Our threshold determination in a procedural due process claim is "whether the challenged procedures concern a legally protected interest." Id. (quotation omitted). If such an interest is at stake, we then determine whether the procedure at issue afforded the requisite safeguards. Haley, 141 N.H. at 544, 689 A.2d 671. In so doing, we balance three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's *945 interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Veale, 158 N.H. at 639, 972 A.2d 1009 (quotation omitted). Further, we are mindful that "`the requirements of due process are flexible and call for such procedural protections as the particular situation demands.'" Id. at 642, 972 A.2d 1009 (brackets omitted) (quoting Wilkinson v. Austin, 545 U.S. 209, 224, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005)); see Baker v. Cunningham, 128 N.H. 374, 379, 513 A.2d 956 (1986) ("The degree of procedural protection required varies and must be determined with reference both to the individual right or expectation in question and to the public interest that justifies a limitation on the right." (citations omitted)).
We have recognized that a significant liberty interest exists which is worthy of due process protection under our State Constitution when the State seeks to revoke parole and incarceration may be the sanction of a parole violation. See Stapleford v. Perrin, 122 N.H. 1083, 1088, 453 A.2d 1304 (1982); Moody v. Cunningham, 127 N.H. 550, 553, 503 A.2d 819 (1986); Baker, 128 N.H. at 378, 381, 513 A.2d 956; see also Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) (parole revocation deprives individual of conditional liberty). The due process to be afforded includes:
(1) written notice of the conduct which triggers the sought-after incarceration; (2) disclosure to the defendant of the evidence against him; (3) the opportunity to be heard in person and to present witnesses and evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a statement in the record by the court indicating in substance the evidence relied upon and the reasons for imposing commitment; and (6) representation by counsel, to be appointed by the court if the defendant is indigent.
Stapleford, 122 N.H. at 1088, 453 A.2d 1304; see Moody, 127 N.H. at 554, 503 A.2d 819; see also Morrissey, 408 U.S at 488, 92 S. Ct. 2593 (under Federal Constitution, to revoke parole when revocation decision is discretionary, parolee must be afforded opportunity for hearing that "lead[s] to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation").
Here, the defendant waived his statutory right to a preliminary hearing, and does not contend that his due process rights were violated by any failure to afford him a final parole revocation hearing within forty-five days of his arrest or at any time prior to the robbery trial. See RSA 651-A:17. Indeed, he acknowledged to the trial court that he was waiting for the robbery charge to be resolved at trial prior to going before the parole board on the parole violation charges. Cf. State v. Flood, 159 N.H. 353, 355, 986 A.2d 626 (2009) (defendant's decision to testify or present evidence, or to remain silent, at hearing for imposition of suspended or deferred sentence occurring prior to related criminal prosecution is a strategic choice, though a difficult one). Nevertheless, he contends that he did not waive his right to a final revocation hearing, and due process requires that he be afforded one even after his conviction of a new felony level crime (here, robbery). While acknowledging that "[a] jury has already decided the merits of the felony and the [parole] [b]oard thus has no discretion with regard to the revocation of parole or sentencing," he argues that a hearing is necessary to resolve "the sole remaining issue [of] whether the person who was convicted of the felony is the same person who was on parolean issue not resolved by the felony trial, but *946 nonetheless, a necessary prerequisite to the imposition of the parole sanction." According to the defendant, "the relative benefit of some proceeding at which the sanction called for by RSA 651-A:18, II is formally imposed outweighs its burden and cost." We are not persuaded.
Once the defendant was convicted of felony robbery, a final parole revocation hearing was no longer necessary to protect his due process rights associated with the parole violation charge that stemmed from his commission of the robbery. When parole revocation is mandatory for a charged violation, the purpose of the due process protections afforded a parolee for that charged violation is to ensure that a fact-finder will make an accurate determination of the charge on the basis of reliable evidence and verified facts. See Moody, 127 N.H. at 554, 503 A.2d 819; Morrissey, 408 U.S. at 484, 92 S. Ct. 2593 (one purpose of informal parole revocation hearing is to provide procedural protection "to assure that the finding of a parole violation will be based on verified facts" (emphasis added)). Here, a final parole revocation hearing would not provide the defendant with more procedural protections than those already afforded to him at the trial on the robbery charge. See Stapleford, 122 N.H. at 1088, 453 A.2d 1304; see also Morrissey, 408 U.S. at 480, 92 S. Ct. 2593 ("revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations"). A jury found him guilty of felony robbery beyond a reasonable doubt and the law required revocation of his parole based solely upon that conviction. See RSA 651-A:18. Thus, post-conviction, there was no longer a meaningful risk of an erroneous deprivation of the defendant's conditional liberty for a parole violation that stemmed from his commission of a felony. See Veale, 158 N.H. at 639, 972 A.2d 1009 (to evaluate whether procedure afforded requisite safeguards, court considers, among other things, risk of erroneous deprivation of private interest through procedures used).
Requiring the parole board to conduct a revocation hearing after the defendant's felony conviction would add little, if any, value to the procedural safeguards that were afforded the defendant in this case. See id.; see also Morrissey, 408 U.S. at 490, 92 S. Ct. 2593 ("Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime."). We reject the defendant's argument that it remains necessary to conduct a revocation hearing after his felony conviction to ensure that "the person who was convicted of the felony is the same person who was on parole." The defendant is correct insofar as his status as a parolee was not an issue resolved by the jury's verdict convicting him of robbery. However, had there been a serious issue that he was not the same person who was on parole, he should have raised it at the sentencing hearing for the robbery. At that hearing, the parties expressly disputed the calculation of pretrial confinement credit given the defendant's incarceration associated with his parole violation. The defendant did not raise an identity issue either at the sentencing hearing or at the later hearing on his motion for reconsideration. Even on appeal before us, he argues for a final revocation hearing while openly acknowledging that he was on parole at the time he was convicted of a new felony.
We disagree with the defendant that "the time and expense associated with such a hearing is minimal" and that "the relative benefit of some proceeding at which the sanction [of mandatory revocation *947 under] RSA 651-A:18, II is formally imposed outweighs its burden and cost." Requiring the parole board to convene and conduct an informal hearing in this case would compel an unnecessary task that would impose fiscal and administrative burdens on the state. Cf. State v. Almodovar, 158 N.H. 548, 554, 969 A.2d 479 (2009) (hearing on imposition of deferred sentence required to assure that incarceration is not simply a result of defendant's inadvertent failure to file the correct petition, but rather that it furthers the goals of sentencing).
Our holding that due process does not require that a parolee be afforded a final parole revocation hearing in this context accords with decisions in several jurisdictions that have considered this issue under the Federal Constitution. See Sneed v. Donahue, 993 F.2d 1239, 1243-44 (6th Cir. 1993); United States v. Cornog, 945 F.2d 1504, 1512 (11th Cir.1991); Pickens v. Butler, 814 F.2d 237, 240-41 (5th Cir.), cert. denied, 484 U.S. 924, 108 S. Ct. 284, 98 L. Ed. 2d 245 (1987); Boulder v. Parke, 791 S.W.2d 376, 377-78 (Ky.Ct.App.1990); Ringor v. State, 88 Hawai`i 229, 965 P.2d 162, 170-71 (App.1998). We need not decide today whether a situation could arise in which due process would require a final parole revocation hearing after a parolee has been convicted of a felony. See Veale, 158 N.H. at 642, 972 A.2d 1009 (requirements of due process are flexible and call for such procedural protections as the particular situation demands).
We conclude that the trial court did not deprive the defendant of due process of law under the State Constitution when it calculated his pretrial confinement credit on his sentence for the robbery conviction. We reach the same result under the Federal Constitution because the State Constitution provides at least as much protection under these circumstances. See Morrissey, 408 U.S. at 489, 92 S. Ct. 2593; Sneed, 993 F.2d at 1243-44; Barnet v. Warden, N.H. State Prison for Women, 159 N.H. 465, 468-70, 986 A.2d 579 (2009).
Because the defendant's appeal fails on the merits, we need not address the State's argument that the defendant's attempt to gain additional pretrial confinement credit on his robbery sentence amounts to an improper collateral attack on his habitual offender sentence. Also, we deem waived issues the defendant raised in his notice of appeal but did not brief. State v. Kelley, 159 N.H. 449, 455, 986 A.2d 620 (2009).
Affirmed.
DALIANIS, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred.
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84 So.3d 552 (2012)
STATE of Louisiana
v.
Robert James JACOBS.
No. 2011-K-2469.
Supreme Court of Louisiana.
March 9, 2012.
*553 Denied.
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10-30-2013
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80 So. 3d 429 (2012)
KILN PLC and QBE International Insurance, Ltd., Appellants,
v.
ADVANTAGE GENERAL INSURANCE CO., LTD., Appellee.
No. 4D10-2995.
District Court of Appeal of Florida, Fourth District.
February 22, 2012.
*430 John M. Murray and Michael G. Shannon of Murray, Morin & Herman, P.A., Coral Gables, for appellants.
Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for appellee.
STEVENSON, J.
This appeal stems from the complaint of appellee, Advantage General Insurance Company, Ltd. ("Advantage"), against appellants, Kiln, PLC. ("Kiln") and QBE International Insurance, Ltd. ("QBE"), collectively doing business as Lloyd's of London ("Lloyd's"), seeking declaratory relief regarding entitlement to insurance coverage and damages for breach of contract for failing to pay amounts owed under the insurance policy. The trial court granted summary judgment in favor of Advantage. Because the trial court should have considered extrinsic evidence in interpreting the policy, we reverse.
The complaint alleged that appellants sold and issued a personal accident reinsurance policy to Advantage. Advantage insured an aircraft owned and operated by Air Sunshine, Inc., and procured the policy to cover any loss it would suffer as a result of providing coverage for the airline. After an aircraft crashed, causing the death of two passengers, Advantage paid $600,000 to the families of the passengers, on behalf of the airline. Advantage then sought reimbursement from appellants, pursuant to the policy. The policy provided coverage for claims paid by Advantage for the death or injury of an airline "passenger" in the amount of "US$300,000 any one person as original not exceeding 10x annual salary" (the "disputed language"). However, appellants refused to reimburse Advantage the $600,000. Advantage sought: (1) declaratory relief that the policy provided coverage for the loss sustained by Advantage and (2) money damages for appellants' breach of contract. Each party filed a motion for summary judgment.
At the hearing held on the motions, Advantage explained that it was originally formed as an insurance company in order to provide passenger liability insurance for the airline. When Advantage sought to obtain reinsurance, it assigned Frank Anton, its agent, to obtain the policy from the Lloyd's of London marketplace. Anton travelled to London and contacted a broker, John McKeigue, who obtained the policy from appellants. When appellants refused to reimburse Advantage, they reasoned that the policy covered only employed passengers. Appellants believed that the disputed language excluded unemployed persons from coverage. Advantage argued, however, that this language was ambiguous.
While the parties essentially agreed on the above facts, they disagreed on how the policy was drafted. Advantage argued *431 that McKeigue did not draft the policy, but simply took his direction from them in typing up the policy. Advantage believed that McKeigue was a Lloyd's broker and was not directly representing it. In McKeigue's deposition testimony, he stated that his office physically typed the policy, but the terms were those "mandated by Kiln." McKeigue also testified that the disputed language was required by the underwriter at Kiln. McKeigue stated that he did not author or personally choose any of the coverage language in the policy. Advantage also offered the deposition testimony of Mark Andrews, head of technical claims at Kiln, who testified that the disputed language was added by a Kiln underwriter. Based on this testimony, Advantage believed that the ambiguous language had to be construed against appellants, as drafter of the policy.
Appellants explained that only certain brokers could enter Lloyd's of London and procure a policy. The process involved negotiation between underwriters, such as appellants, and a broker, like McKeigue, who represents the insured. Appellants argued that McKeigue was representing Advantage and cited McKeigue's deposition testimony where he stated his belief that Advantage was his client. McKeigue also explained that he used a "slip" to negotiate the policy for Advantage. McKeigue wrote the notation "NE10XAS" and the explanation "not exceeding 10x annual salary" on the slip so that his office would know to include the disputed language as a sub-limitation. Appellants concluded that, since McKeigue understood that coverage was dependent upon the passenger being employed, that knowledge had to be imputed to Advantage.
The trial court ultimately concluded that the disputed language was ambiguous and construed it against appellants and in favor of providing coverage. A trial court's conclusion that a contract is ambiguous is reviewed de novo. See Emerald Pointe Prop. Owners' Ass'n v. Commercial Constr. Indus., Inc., 978 So. 2d 873, 877 (Fla. 4th DCA 2008). A policy is ambiguous when "`the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the [other] limiting coverage.'" Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla.2003) (quoting Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla.2000)).
The trial court correctly concluded that the contract is ambiguous. The policy offers no explanation for the meaning of the disputed language. See Auto-Owners Ins. Co., 756 So.2d at 34 ("[I]n construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect."). The disputed language, "US$300,000 any one person as original not exceeding 10x annual salary," appears in a chart in the policy entitled "INSURED PERSONS AND BENEFITS COVERED." According to the chart, "Passengers of aircraft as per attached schedule" are persons covered under the policy. Nowhere in the policy are unemployed passengers expressly excluded from coverage. In fact, the policy does not address how, or if, unemployed passengers are covered. Further, the insertion of the phrase "as original" is cryptic and adds to the confusion rather than shedding light on the overall meaning of the disputed language.
Appellants argue that the policy is not ambiguous and the only reasonable interpretation of the disputed language is that $300,000 is the maximum amount that can be paid out and the language "not exceeding 10x annual salary" is a sub-limitation. Thus, unemployed passengers are naturally excluded. Appellants insist that to interpret the policy language otherwise *432 would lead to an absurd result since, for example, an employed person earning $5,000 per year would receive $50,000 under the policy and a homemaker might receive up to the policy limits of $300,000. While we recognize this anomaly, it appears equally unreasonable that unemployed persons would be excluded from coverage without the policy expressly saying so. Elsewhere in the policy, under "Exclusions," the policy provides a list of particular exclusions, including injury from drug/alcohol abuse and injury incurred from the "commission of or the attempted commission of a criminal act," among other situations and circumstances. In spite of such detailed language as to coverage exclusions, nowhere does the policy mention that unemployed passengers are excluded. The ambiguity here does not lie simply in the disputed language, but in the fact that the policy completely fails to address treatment of unemployed passengers, makes no explicit exclusion of them and, instead, states that "passengers of aircraft" are, in fact, "insured persons." See Bell Care Nurses Registry, Inc. v. Cont'l Cas. Co., 25 So. 3d 13, 17 (Fla. 3d DCA 2009) ("An insurer is required to make clear precisely what is excluded from coverage."), review denied, 38 So. 3d 133 (Fla.2010). We also note that the disputed language applies to the policy's coverage of both "Death" and "Accidental Total Disability." The limitation "not exceeding 10x annual salary" might be perfectly clear and reasonable when applicable to a claim for total disability, but it is not so clear and reasonable when considering a death claim.
Appellants also argue that, even if the disputed language is ambiguous, the trial court should have considered extrinsic evidence instead of construing the policy against them, as drafter of the policy. On this point, we agree with appellants. In the case of an ambiguous insurance policy, where extrinsic evidence is available, consideration of that evidence may be appropriate. See, e.g., Castillo v. State Farm Fla. Ins. Co., 971 So. 2d 820, 823 (Fla. 3d DCA 2007) (permitting use of extrinsic evidence to interpret ambiguous provision in homeowners' insurance policy); Williams v. Essex Ins. Co., 712 So. 2d 1232, 1232 (Fla. 1st DCA 1998) (remanding for review of extrinsic evidence regarding whether parties' intended policy to be "primary" or "excess" where policy was ambiguous on matter). Ambiguous policies are often simply construed against the insurer, as drafter of the insurance contract, see Nat'l Indem. Co. of S. v. Landscape Mgmt. Co., 963 So. 2d 361, 364 (Fla. 4th DCA 2007), but, here, there is even a factual dispute as to which party chose the language of the policy. In the instant case, considering the unique and highly specialized nature of the insurance provided, we believe this is such a case where extrinsic evidence should be used to help resolve the ambiguity in the policy.
Accordingly, we reverse and remand to allow the parties to submit extrinsic evidence on what, if any, coverage is provided to unemployed passengers. We also note that a factual dispute exists regarding the role of McKeigue, and whether his knowledge and understanding of the policy can be imputed to Advantage as its agent. See, e.g., Almerico v. RLI Ins. Co., 716 So. 2d 774, 776-77 (Fla.1998) (noting that, generally, an insurance broker is treated as agent of insured; however, a "broker may act in the dual capacity of broker for the insured and agent of the insurer"). On remand, the issue should also be addressed.
Reversed and remanded.
HAZOURI and DAMOORGIAN, JJ., concur.
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81 So.3d 579 (2012)
Francisco MENDOZA, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D12-153.
District Court of Appeal of Florida, Third District.
February 29, 2012.
*580 Francisco Mendoza, in proper person.
Pamela Jo Bondi, Attorney General, for appellee.
Before CORTIÑAS, EMAS and FERNANDEZ, JJ.
EMAS, J.
Defendant Francisco Mendoza appeals the trial court's order denying, without an evidentiary hearing, his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Mendoza's motion raised six claims. While we find that none of the claims has merit, one of Mendoza's claims does warrant further discussion.
Mendoza asserted in his postconviction motion that trial counsel rendered ineffective assistance of counsel for failing to call certain witnesses to testify at the trial,[1]*581 and that such failure constituted deficient performance resulting in prejudice, warranting relief under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Whether to call a particular witness to testify at trial is ordinarily a strategic decision committed to the professional judgment of trial counsel, assuming that counsel has conducted a reasonable investigation before making such a decision. These strategic decisions are generally not subject to postconviction attack under Strickland.
An ineffective assistance claim for failure to call a witness to testify at trial must be distinguished from an ineffective assistance claim for failure to reasonably investigate and locate witnesses. Unlike the strategic decision to call a witness to testify at trial, the failure to reasonably investigate and locate witnesses can often serve as a colorable claim of ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (observing that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary" (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052)).
However, if a reasonable investigation has been conducted, subsequent decisions based on that investigation (such as the decision not to call a particular witness at trial) are presumed to be reasonable and strategic and are "virtually unchallengeable." Strickland, 466 U.S. at 690, 104 S.Ct. 2052. A defendant can rebut this presumption only by establishing that "no competent counsel" would have made the same decision. White v. State, 729 So.2d 909, 912 (Fla.1999). See also Windom v. State, 886 So.2d 915, 922 (Fla.2004) ("A strategic or tactical decision is not a valid basis for an ineffective claim unless a defendant is able to show that no competent trial counsel would have utilized the tactics employed by trial counsel.").
In the instant case, however, Mendoza does not claim that the underlying investigation of these witnesses was unreasonable. Rather, Mendoza claims that trial counsel knew what these witnesses would testify to, and the failure to call the witnesses met Strickland's two-prong requirements of constitutionally deficient performance and actual prejudice. Given the reasonableness of the underlying investigation, the subsequent decision not to call these witnesses is presumed to be reasonable and strategic, and, as characterized by Strickland, is virtually unchallengeable. Mendoza has failed to overcome this presumption, and thus cannot establish that trial counsel's performance was deficient under Strickland.
Moreover, the record reveals that Mendoza affirmatively agreed with his trial counsel's strategic decision. During trial, the court conducted a colloquy with Mendoza, on the record and outside the presence of the jury, which established that Mendoza agreed with the decision not to call any other witnesses at trial.[2] The trial court specifically asked Mendoza whether he was satisfied with his attorney's performance at trial and whether Mendoza *582 wished to call any other witnesses to testify. Mendoza expressed satisfaction with his counsel's performance, and advised the court that he did not wish to call any other witnesses to testify.[3]
Thus, not only is Mendoza unable to rebut the presumption that counsel's decision was reasonable and strategic, Mendoza's express agreement to such a decision is fatal to his claim of ineffective assistance of counsel.[4]See Gamble v. State, 877 So.2d 706, 714 (Fla.2004) (holding "if the defendant consents to counsel's strategy, there is no merit to a claim of ineffective assistance of counsel"). See also Stein v. State, 995 So.2d 329 (Fla.2008).
Affirmed.
NOTES
[1] Mendoza also asserted trial counsel rendered ineffective assistance by: (1) failing to introduce the post-Miranda statement of the co-defendant; (2) failing to object to the State's amendment of the information during trial; (3) abandoning his objections to the jury instructions as given; (4) failing to object to improper closing argument; and (5) failing to request a jury instruction on the lesser-included offense of aggravated assault.
[2] We commend the trial court for conducting such a colloquy, which ensured defendant's participation in his trial counsel's decision, and provided a record that permitted resolution of this claim without the need for an evidentiary hearing.
[3] Although Mendoza did mention, during this colloquy, the names of individuals who were unavailable or unwilling to come to court to testify, Mendoza does not base the instant claim on a failure to call those unavailable or unwilling witnesses.
[4] Of course, Mendoza's agreement was not required for this particular decision. As the United States Supreme Court observed in Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004):
An attorney undoubtedly has a duty to consult with the client regarding "important decisions," including questions of overarching defense strategy. Strickland, 466 U.S. at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. That obligation, however, does not require counsel to obtain the defendant's consent to "every tactical decision." Taylor v. Illinois, 484 U.S. 400, 417-418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (an attorney has authority to manage most aspects of the defense without obtaining his client's approval). But certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant, this Court affirmed, has "the ultimate authority" to determine "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring). Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action.
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Opinion by
President Judge Bowman,
This is a petition for review filed by Frederick Fiegenberg (Fiegenberg) to an order of the State *572Civil Service Commission (Commission), dated April 30, 1976. The order reinstated Fiegenberg without back pay to his position of workmen’s compensation referee. The petition asks this Court to review only the Commission’s refusal to award back pay. We will affirm the Commission’s order.
The facts are undisputed. Fiegenberg, an attorney, was convicted on April 23, 1965, in Philadelphia Federal Court of attempting to influence, intimidate, and impede the testimony of a witness. He was sentenced to one week probation. Immediately following his conviction, disbarment proceedings were initiated. The Court of Common Pleas of Philadelphia, however, refused to impose any disciplinary action. The court concluded that Fiegenberg had already received sufficient punishment and that his prior exemplary conduct demonstrated that protection of the public was unnecessary.
In 1972, Fiegenberg filed a Civil Service application for the position of workmen’s compensation referee. In answering the questions on the application, Fiegenberg failed to respond to the questions pertaining to whether he had ever been convicted of a criminal offense. Although these omissions were deliberate, they were motivated by a desire to fully explain the circumstances of his conviction. The Commission, however, never requested an explanation as to why he failed to respond to the questions and appointed him to the position of workmen’s compensation referee on the basis of the incomplete application.
Fiegenberg served in the capacity of workmen’s compensation referee until August 27, 1975. On that date he received notice that he was suspended from his position pending an investigation concerning an alleged failure to reveal a criminal conviction at the time he filled out his Civil Service application. The Secretary of Labor and Industry subsequently in*573formed Fiegenberg on September 9, 1975, tbat he bad no recourse but to remove bim from bis position in light of tbe fact tbat be did not disclose tbat in 1965 he had been convicted of a criminal offense.
Fiegenberg appealed to tbe Commission tbe Secretary’s decision to remove bim. A bearing on tbe matter was scheduled for November 6, 1975. Before tbe bearing date arrived, however, a perjury charge stemming from tbe same incident was brought. Upon notification of this charge, Fiegenberg’s counsel requested and received a continuance of tbe removal bearing. On February 17, 1976, tbe perjury charge was dismissed, and Fiegenberg requested tbat tbe bearing before tbe Commission be rescheduled.
Tbe bearing concerning Fiegenberg’s removal was conducted on March 30, 1976. Tbe Commission concluded tbat be bad been improperly removed and reinstated bim as a referee. Tbe Commission, however, refused to order back pay to Fiegenberg, stating only tbat “the greatest delay was at tbe request of counsel for appellant. . . .”
Tbe sole issue before this Court is whether the denial of back pay by tbe Commission was an abuse of discretion.1 As stated in Baron v. Civil Service Commission, 8 Pa. Commonwealth Ct. 6, 301 A.2d 427 (1973), tbe Commission enjoys a wide discretion in granting reinstatement without back pay. See also Wasilak v. Pennsylvania Liquor Control Board, 27 Pa. Commonwealth Ct. 171, 365 A.2d 910 (1976). It is essential, however, tbat tbe decision be based upon criteria which are job-related and which touch in some rational and logical manner upon a person’s compe*574tency and ability. Included are actions which would hamper or frustrate the execution of one’s duties. Department of Justice v. Grant, 22 Pa. Commonwealth Ct. 582, 350 A.2d 878 (1976); Corder v. Civil Service Commission, 2 Pa. Commonwealth Ct. 462, 467, 279 A.2d 368, 371 (1971). In addition, the Commission may reinstate a person without back pay where it believes the facts warrant such action, even though it concludes those same facts do not justify a suspension or removal. Harp v. Pennsylvania Liquor Control Board, 28 Pa. Commonwealth Ct. 318, 368 A.2d 846 (1977).
Keeping such guidelines in mind, the facts do not show that the Commission abused its discretion by ordering Fiegenberg to be reinstated without back pay. Fiegenberg, as a workmen’s compensation referee, was in a position of responsibility and trust. To function competently in such a situation, it is necessary for one’s integrity to be beyond reproach. The record reveals that the period of Fiegenberg’s suspension was the result of an investigation by the State Senate. He was dismissed from' his position by the Secretary of Labor and Industry. He was charged with perjury. It is not disputed that all of these consequences were the direct result of a deliberate omission by Fiegenberg on his Civil Service application. Certainly these facts can be found to warrant the penalty of the loss of back pay, even though they do not warrant a suspension or removal. The Commission’s failure to explain in great detail the reasoning behind its decision to deny back pay in no way prevents our conclusion that the decision is supported by the record. See O’Peil v. State Civil Service Commission, 16 Pa. Commonwealth Ct. 467, 332 A.2d 879 (1975) (allocatur denied).
• We conclude that the Commission did not abuse its discretion and affirm.
*575Order
Now, February 10, 1978, the order of the State Civil Service Commission dated April 30, 1976, reinstating Frederick Fiegenberg without back pay, is hereby affirmed.
Under Section 951(a) of tide Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, added by Section 27 of tbe Act of August 27, 1963, P.L. 1257, 71 P.S. §741.951(a), it is within the discretion of the Commission whether back pay is properly awarded with reinstatement.
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U.S. v. Grier
UNITED STATES, Appellee
v.
Paul E. GRIER, Private First Class
U.S. Army, Appellant
No. 99-0547
Crim. App. 9700651
United States Court of Appeals for the Armed
Forces
Argued January 19, 2000
Decided May 12, 2000
CRAWFORD, C.J., delivered the opinion of
the Court, in which SULLIVAN, GIERKE, and EFFRON, JJ., and EVERETT, Senior
Judge, joined.
Counsel
For Appellant: Captain Katherine A. Lehmann
(argued); Colonel Adele H. Odegard, Major Scott R. Morris
(on brief); Colonel John T. Phelps, II and Major Leslie A. Nepper.
For Appellee: Captain Troy A. Smith
(argued); Colonel Russell S. Estey and Lieutenant Colonel Eugene
R. Milhizer (on brief); Captain Kelly D. Haywood.
Military Judge: Robert F. Holland
THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Chief Judge CRAWFORD delivered the opinion
of the Court.
In March 1997, a general court-martial composed
of officer members convicted appellant, Private First Class (PFC) Paul
Grier, contrary to his pleas, of one specification each of rape, consensual
sodomy as the lesser-included offense of forcible sodomy, and adultery,
in violation of Articles 120, 125, and 134, Uniform Code of Military Justice,
10 USC §§ 920, 925, and 934, respectively. Appellant was acquitted
of assault consummated by a battery, in violation of Article 128, UCMJ,
10 USC § 928. He was sentenced to a dishonorable discharge, 4 years
confinement, total forfeitures, and reduction to the grade of Private E-1.
The convening authority approved the sentence. By action of the Deputy
Assistant Secretary of the Army (Army Review Boards), dated February 12,
1998, the unexecuted portion of the sentence to confinement was remitted
and the dishonorable discharge was upgraded to a general discharge. The
Court of Criminal Appeals affirmed the findings of guilty and the adjudged
sentence on December 11, 1998, in an unpublished opinion.
We granted review of the following issues:
I. WHETHER THE MILITARY JUDGE ERRED AS A
MATTER OF LAW BY FAILING TO PROPERLY DEFINE THE LAW OF "CONSENT" AND "INTOXICATION"
FOR THE MEMBERS, WHERE THE MILITARY JUDGE ALSO FAILED TO INFORM THE MEMBERS
THAT THE LEGAL CONCLUSIONS USED BY THE CID [Criminal Investigation Command]
AGENT DURING APPELLANTS INTERROGATION WERE ERRONEOUS.
II. WHETHER THE MILITARY JUDGE, AND SUBSEQUENTLY
THE ARMY COURT, ABUSED ITS DISCRETION IN FINDING THAT THE EVIDENCE WAS
LEGALLY SUFFICIENT TO SUPPORT THE FINDING THAT APPELLANT COMMITTED RAPE,
IN LIGHT OF THE JUDGES INCORRECT INSTRUCTIONS ON THE LAW OF "CONSENT"
AND "INTOXICATION."
FACTS
Appellant was assigned to Fort Campbell, Kentucky,
with another PFC named Lewis. In spring and summer of 1996, appellant became
friends with PFC Lewis wife, Cherise. The Lewises were experiencing marital
difficulties and Ms. Lewis testified she went to appellant with her concerns
and for friendship. The two spent a fair amount of time together, to include
driving to Nashville, Tennessee, ostensibly with Ms. Lewis husbands knowledge,
for a weekend of dancing; and going to the mall, etc. Here agreement on
the facts ends and the two stories diverge as to the depths of this relationship.
Appellant contends that the relationship between
the two included oral sex in a car. He also asserts that he and Ms. Lewis
had sexual intercourse about half a dozen times, including the night of
a party in appellants room. Another witness testified (by stipulation)
to watching appellant and Ms. Lewis kissing at Ms. Lewis apartment, an
incident that appellant admitted. There was also a purported "love note"
passed from Ms. Lewis to appellant through her husband. This note contained
references to what appellant described as a code. The numbers 1 4 3 were
written at the bottom. Appellant asserted at trial that this was their
code for "I love you" (1 letter for "I," 4 letters for "love," and 3 letters
for "you."). The note also asked for him to remember a song, which appellant
explained was the song that was on the radio when the two had oral sex.
Ms. Lewis denied that the relationship was
anything but platonic. She does not remember the corroborated kiss at her
apartment, does not remember having oral sex with appellant, and denies
having intercourse with appellant on previous occasions. She admitted writing
the letter to appellant,1
but did not comment on the "secret" love codes contained in the letter.
All of these disputed incidents in the relationship
of appellant and Ms. Lewis lead to the night of June 6, 1996. On this evening,
the undisputed facts are as follows: On the 6th of June, Ms.
Lewis was packing her belongings to leave the marital abode. While she
was packing, appellant and his friend, PFC Gosney, came over to the house
and asked her to come to dinner with them and some female friends. The
three arrived at the restaurant at about 8 or 8:30 p.m. They stayed at
the restaurant for about 2½ hours and drank alcohol. They went to
a dance club after this and stayed drinking alcohol and dancing for about
one hour.
It is disputed how much alcohol Ms. Lewis had
to drink that evening. Ms. Lewis states she had 3 beers and 3 rum and cokes,
but that she gets drunk after only 2 beers. PFC Lewis, Ms. Lewis husband,
testified that she told him she had had 4 beers and 2 rum and cokes, and
that, in his experience with Ms. Lewis, this is enough to get her drunk,
but not enough to make her stumble around. Appellant contends Ms. Lewis
had 1-2 beers and 3 mixed drinks. He also testified that he had been with
Ms. Lewis on another occasion where she drank a 6-pack of beer and seemed
fine.
Also disputed is Ms. Lewis condition upon
leaving the dance club. Ms. Lewis testified that she was so drunk she could
not keep her eyes open. The last thing she testified to remembering was
seeing her apartment building, stumbling, and hearing appellant and PFC
Gosney say they would help her inside. A woman who was at the restaurant
and dance club with Ms. Lewis and appellant testified by stipulation that
she "didnt notice" Ms. Lewis having any problems walking or doing anything
else at the dance club that would make her seem drunk. PFC Lewis testified
that when Ms. Lewis later told him about the incident, she claimed "that
she didnt think" she had enough to drink to be intoxicated. Appellant
testified that Ms. Lewis needed no help getting around, was not stumbling,
opened the apartment door herself, and sat in the living room chatting
with appellant and PFC Gosney for a short while. Appellant also testified
that Ms. Lewis got up and went to the bathroom, claiming when she returned
that she had gone to vomit.
Ms. Lewis has no version of the events of that
night after seeing the apartment building. She testified that she woke
up the next morning naked, with male emissions on her body, leading her
to believe that someone had had sex with her that evening. Appellant has
a more detailed version of events. He testified that Ms. Lewis laid down
on her bed and that he laid next to her and she began kissing him. Appellant
then testified that Ms. Lewis began to initiate oral sex on him. At this
point, PFC Gosney walked into the room. Appellant testified that he asked
Ms. Lewis if she wanted to have sex with both men and she replied "yeah."2
Both men had sex with Ms. Lewis twice. Appellant testified that Ms. Lewis
seemed actively engaged in the activity, rubbing PFC Gosneys head and
back and saying to appellant, "F*** me harder." After having intercourse,
the three got dressed and drank some soda in the kitchen. Appellant testified
that Ms. Lewis became upset because she "said that she didnt think that
PFC Gosney and I would talk to her after this." Appellant assured her that
he would speak to her again and they embraced and kissed. Then he left
with PFC Gosney.
The bulk of the Prosecutions evidence against
appellant was impeachment evidence obtained from his sworn statement to
CID investigators about the incident. Ms. Lewis reported this rape on August
2, 1996, after telling her husband about the incident. Appellant was questioned
by CID on the 5th of August 1996. Appellant waived his rights
and gave a statement to the investigators. The statement included these
exchanges between CID Agent Wagner and appellant:
Q. Was she intoxicated?
A. She kept saying that she was intoxicated
on the way back to her house. I believe she was intoxicated.
* * *
Q. Did Mrs. LEWIS ever give verbal consent
to having sex with Brad [PFC Gosney]?
A. No.
Q. Do you think she wanted to have sex with
Brad?
A. No, she said she loved me.
* * *
Q. Do you think you took advantage of Mrs.
LEWIS?
A. Yes, I went along with the situation.
Q. In your honest opinion, do you think Mrs.
LEWIS was in a state of mind where she could give consent to having intercourse?
A. No.
* * *
Q. Why do you think Mrs. LEWIS did not give
consent to intercourse?
A. She was not in her right state of mind.
* * *
Q. What is your definition of Rape?
A. Forcing someone to have sex when they do
not want to or have intercourse with someone who is not in their right
state of mind.
Q. What do you mean not in their right state
of mind?
A. Not fully aware of the situation.
Q. By your definition, what do you call the
events on 7 Jun 96?
A: It is quite possibly a rape case.
* * *
Q. Do you have anything to add to this statement?
A. At the time this happened, I did not know
if a woman is not capable of giving consent, it is rape. Now I know it
is rape.
(This statement was not offered into evidence
at trial, but was used for impeachment purposes.)
Regarding the legal words that appellant used
in this confession, namely consent and intoxication, Agent Wagner testified
as to how the words were explained to appellant before he used them. With
regard to consent, Agent Wagner testified that he is "sure" he told appellant
that consent is a "verbal affirmation." He did not discuss with appellant
an indication of consent in any way other than verbally saying "yes." Regarding
intoxication, Agent Wagner testified that he told appellant if a person
is intoxicated, they are unable to consent. He did not explain to appellant
that there are different levels of intoxication and not all of these levels
mean a victim is unable to consent to sexual intercourse.
The Judge gave the following instructions after
all the evidence was presented:
When a victim is incapable of consenting
because she is asleep or unconscious or intoxicated to the extent that
she lacks the mental capacity to consent, then no greater force is required
than that necessary to achieve penetration.
* * *
If Cherise was incapable of giving consent
and if the accused knew or had reasonable cause to know that Cherise was
incapable of giving consent because she was asleep or unconscious or intoxicated,
the act of sexual intercourse was done by force and without her consent.
The judge reminded the members that "any references
by counsel to the law or to my instructions do not constitute instructions
on the law, which may only be given by me in my judicial capacity." Later,
he again reminded them that they were bound by his statements of the law;
that is, witnesses and counsel cannot tell members what the law is.
DISCUSSION
Appellant argues the judge incorrectly defined
"consent" and "intoxication" for the panel. Appellant contends this instruction
perpetuated the erroneous legal definitions the CID agent gave to appellant
during his interrogation, and but for this mistake, the panel would most
likely have found the evidence insufficient to convict. Final Brief at
15.
The Government argues appellant waived any
issue concerning the instructions given by not objecting at trial. United
States v. Maxwell, 45 M.J. 406, 426 (1996); Answer to Final Brief at
8. In any case, the instruction contained no error, much less plain error.
The judge used instructions provided in the Military Judges Benchbook
(DA Pam. 27-9 at 430, 431 (30 Sep 96) for this situation. Answer at 18.
Instructional error is reviewed de novo.
Maxwell, 45 MJ at 425. Failure to object to an instruction before
the panel begins deliberation is waiver of the objection in the absence
of plain error. United States v. Cooper, 51 M.J. 247, 252 (1999);
RCM 920(f), Manual for Courts-Martial, United States (1998 ed.). To be
plain error: (1) there must be an error; (2) the error must be plain (clear
or obvious); and (3) the error must affect the substantial rights of the
defendant. United States v. Powell, 49 M.J. 460, 463 (1998).
We hold that there was no error and no prejudice
to appellants substantial rights. There was no objection to the instructions,
and the judge explained he was the sole source of law. Additionally, we
agree with the court below that "the phrase or intoxicated, in the context
of the descriptive terms preceding that phrase and the totality of all
the instructions given on this issue, could only be understood to address
intoxication to a degree rendering legal consent impossible." Unpub. op.
at 9.
The Government also argues the evidence was
legally sufficient to uphold appellants conviction. The standard for legal
sufficiency of the evidence is "whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
We also hold that the evidence was sufficient
to have allowed a rational trier of fact to find the necessary elements
of the crime of rape beyond a reasonable doubt.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 After appellant
had made jokes to PFC Lewis about wanting to have sex with Ms. Lewis if
the marriage ever broke up, PFC Lewis told appellants NCOs and they told
appellant "to stay away from" the Lewis house. This "love note" refers
to appellants being told to stay away.
2
There is a discrepancy here because appellants sworn statement says that
Ms. Lewis did not reply.
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01-03-2023
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09-29-2016
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164 So.2d 533 (1964)
Charles R. ROBERTS, Appellant,
v.
R & S LIQUOR STORES, INC., Kenneth R. Scheurman and Gilbert Mackoul, and Hanover Insurance Company, a corporation, Appellees.
No. E-394.
District Court of Appeal of Florida. First District.
May 28, 1964.
Norton, Wood & Moore, Jacksonville, for appellant.
Howell, Kirby, Montgomery & Sands, Jacksonville, for appellees.
WIGGINTON, Judge.
This appeal is from a summary final judgment rendered in favor of the garnishee, Hanover Insurance Company, a corporation, in a garnishment proceeding instituted against it by appellant garnishor, Charles R. Roberts. It is contended that the trial court erred in concluding that under the applicable law the garnishee is entitled to judgment.
Appellant first instituted action against appellees R & S Liquor Stores, Inc., Kenneth R. Scheurman, and Gilbert Mackoul, seeking damages for personal injuries sustained by him as a result of an assault made upon him by the individual defendants, Scheurman and Mackoul, while acting within the scope of their duties and employment as employees of the corporate defendant. The trial resulted in a verdict awarding Roberts damages against the corporation in the sum of $15,000.00, and against Mackoul in the sum of $3,700.00. Upon the entry of judgment Roberts procured the issuance of a writ of garnishment directed to the appellee Hanover Insurance Company alleging that the latter had, at the time of the assault and battery involved in *534 the principal suit, contracted to indemnify R & S Liquor Stores from any liability imposed upon it as a result of the occurrence of any accident in connection with the operation of its business, which insurance policy covered and included assaults and batteries such as were suffered by plaintiff at the hands of the corporation's employees. The garnishee insurance company denied liability under the terms and provisions of its insurance contract. The insurance policy in question provides that the company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident. Under the definitions clause of the policy it is provided that assault and battery shall be deemed an accident unless committed by or at the direction of the insured.
Roberts and the insurance company each filed a motion for summary judgment, contending that there existed in the case no genuine issue of any material fact, and that each movant was entitled to judgment as a matter of law. There was submitted to the trial judge for his consideration in disposing of these motions the pleadings and transcript of the proceedings in the principal suit by the appellant Roberts against the corporate defendant and its two employees, an affidavit of Hanover's attorney together with certain exhibits contained in the file. The trial court found that there existed no genuine issue of any material fact and from the evidence it affirmatively appeared without dispute that the assault and battery committed upon Roberts by Scheurman and Mackoul was by or at the direction of the corporate defendant R & S Liquor Stores, Inc., and therefore does not come within the coverage of the liability insurance policy sued upon in the garnishment proceedings. The trial court thereupon entered summary judgment in favor of the garnishee Hanover Insurance Company, from which judgment this appeal is taken.
An examination of the insurance policy involved herein reveals that Hanover Insurance Company bound itself to indemnify the corporate defendant R & S Liquor Stores for any sums which the latter may become legally obligated to pay as damages because of bodily injury sustained by any person and caused by accident, the term accident including assault and battery unless committed by or at the direction of the insured. The sole question presented to the court for determination in the garnishment proceedings was whether the assault and battery committed by Mackoul and Scheurman upon Roberts was by or at the direction of their employer, R & S Liquor Stores, Inc., the insured under the policy. If not, then Hanover would be liable within the limits of its policy to the plaintiff for the amount of his judgment against the insured defendant. If, however, the proof establishes that the assault by Scheurman and Mackoul was by or at the direction of their employer, the insured, then no liability coverage is provided by Hanover's insurance contract.
A review of the trial proceedings establishes without serious conflict that R & S Liquor Stores, Inc., the corporate defendant, was the owner and operator of a tavern in Duval County where intoxicating beverages and entertainment were provided its patrons. The corporation was owned entirely by one Ted Schlossman who appears on the records of the corporation as vice president. Gilbert Mackoul, whose assault on the plaintiff resulted in the judgment rendered against both him and the corporate defendant, was general manager of the tavern. Among the several duties of Mackoul as general manager was that of keeping order when the tavern was in operation. In carrying out this duty it was necessary for him to eject undesirable or unruly persons from the premises by physical force when necessary, the amount of *535 force to be used being left entirely to his judgment and discretion. On the night in question Roberts approached the entrance to the tavern and stated his desire to enter for the purpose of locating some friends whom he had agreed to meet there. Mackoul was at the door of the tavern and told Roberts that the place was full and he could not enter at that time, but would have to stand by and wait his turn with others. Further remarks were exchanged between Roberts and Mackoul which resulted in the assault which forms the basis of this action. At the time of the conversation between Roberts and Mackoul, Schlossman, the owner of the tavern, was standing nearby and observed the altercation from its inception. Schlossman not only failed to restrain Mackoul from assaulting Roberts, but later told him that he had done the right thing.
From the foregoing it affirmatively appears without dispute that the assault in this case made by Mackoul on Roberts was either by the insured corporation acting through its manager Mackoul, or was at the direction of the corporation acting through its owner and vice president Schlossman who tacitly approved, ratified and confirmed the assault as committed by his manager Mackoul.
The question with which we are concerned was squarely presented and passed upon by the Supreme Court of New York in the De Luca case.[1] The brief opinion published by the court in that case is as follows:
"Under the provisions of the policy there was no coverage for an assault committed by or at the direction of the insured. The assault was committed by the manager and president of the corporation acting in the line of his duty and in the interests of the corporation. The corporation is consequently liable for the assault. McLoughlin v. New York Edison Co., 252 N.Y. 202, 169 N.E. 277. The assault therefore may not be considered an accident within the meaning of clause 3 of the policy."
The same question again arose in the Supreme Court of New York in the Greater New York Mutual Insurance Company case.[2] There, as here, suit was brought for damages resulting from personal injuries sustained by plaintiff as a result of an assault and battery upon him by defendant Frankel who, at the time, was acting within the course of his duties as an officer of the corporate defendant, Hanover Construction Corporation. The liability insurance policy involved in that case provided indemnity to the construction company for all sums which it shall become obligated to pay by reason of liability imposed upon it for damages because of bodily injury sustained by any person caused by accident arising out of the care, maintenance or operation of the described premises. The insurance policy further provided, as does the policy involved in the case we now review, that assault and battery shall be deemed an accident unless committed by or at the direction of the insured. In holding in favor of the insurance company on its defense of nonliability the court said:
"The alleged assault by Frankel, acting as an officer of Hanover and in the course of his duties as Hanover's managing agent, is an assault by the named assured, Hanover, within the meaning of the policy, and by its express provisions is excluded from the coverage thereof."
In each of the two cases above cited the assault complained of by the plaintiff was committed by an individual occupying the position of manager in the employment of the insured corporate defendant. In each case the liability policy sued upon excluded from its coverage an assault and battery *536 committed by or at the direction of the insured under the policy. These facts squarely fit the facts in the case we now review. In each case it was held that the policy provided no coverage for the insured, nor was it liable to the injured plaintiff for the damages suffered by him. Based upon these authorities we are constrained to the view, and so hold, that the trial court in the case sub judice correctly held that the garnishee insurance company was entitled to judgment as a matter of law. The summary judgment appealed herein is accordingly affirmed.
STURGIS, C.J., and RAWLS, J., concur.
NOTES
[1] De Luca v. Coal Merchants Mut. Ins. Co., (1945) 203 Misc. 261, 59 N.Y.S.2d 664.
[2] Greater New York Mutual Insurance Co. v. Perry, (1958), 6 A.D.2d 432, 178 N.Y.S.2d 760.
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01-03-2023
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10-30-2013
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9 A.3d 508 (2010)
196 Md. App. 318
MEMC ELECTRONIC MATERIALS, INC., et al.
v.
BP SOLAR INTERNATIONAL, INC.
No. 1517, September Term, 2009.
Court of Special Appeals of Maryland.
December 3, 2010.
*513 Maury S. Epner (Donna E. McBride, Miller, Miller & Canby, Chtd., on the brief) Rockville, MD, for appellant.
Ava E. Lias-Booker (John C. Armstrong, McGuire Woods LLP, on the brief, Baltimore, MD) and Deborah M. Russell (McGuire Woods LLP, on the brief, Richmond, VA), for appellee.
Panel: EYLER, JAMES R., KEHOE, JAMES A. KENNEY, III (Retired, specially assigned), JJ.
EYLER, JAMES R., J.
MEMC Electronic Materials, Inc. and MEMC Pasadena, Inc. (collectively referred to as "MEMC" or "appellant") appeal from a judgment entered by the Circuit Court for Frederick County, after a jury verdict awarding damages for breach of contract to BP Solar International, Inc. ("BP Solar" or "appellee").[1] Prior to 2004, *514 pursuant to a longstanding relationship, appellant supplied appellee with silicon powder for use in manufacturing solar panels at its Frederick, Maryland facility. Seeking to continue that relationship, the parties exchanged e-mails in 2004 concerning a long-term supply contract to run through 2007. After shipping nearly 224 metric tons (MT) of silicon powder in 2005, appellant discontinued its shipments.
Consequently, on April 30, 2007, appellee filed suit charging appellant with breach of contract. Prior to trial, appellee filed four amended complaints.[2] At trial, appellee contended that the e-mail exchanges and the parties' previous course of dealing and performance created a three-year contract, requiring appellant to ship its output of silicon powder to appellee, with a minimum of 150 MT per year. Appellant's primary contention was that there was no meeting of the minds between the parties and, therefore, no contract. After an extensive two-week trial, the jury determined that the parties did form an agreement, and returned a verdict in favor of appellee in the amount of $8,849,447 as partial cover damages for appellant's discontinued performance. Perceiving no reversible error, we shall affirm.
Factual and Procedural Background
Appellee, a manufacturer of solar energy products, makes photovoltaic panels (also known as solar panels) that are used to convert sunlight into electricity. Appellant is in the business of selling wafers, polysilicon, and other silicon raw feedstock. In 1996, appellee purchased silicon powder from appellant, previously a waste by-product of appellant's polysilicon production process, in order to determine whether the silicon powder, inexpensive at the time, could be used to lower manufacturing costs.
Silicon powder proved useful in reducing costs, and it created a competitive advantage for appellee. Consequently, in 1997, the parties entered into a written, one and a half page sales agreement for the purchase of silicon powder for a two-year period running from April 1, 1997, through March 30, 1999. The agreement required appellant to supply appellee with four MT of silicon powder per month at a price of $3.00 per kilogram. Over the two-year period, appellee sent purchase orders confirming quantity, price, shipping, and other details, and appellant sent the appropriate invoices.
In March 1998, the parties extended this agreement through December 31, 2000. The extension increased the amount of silicon powder to ten MT per month at a price of $3.25 per kilogram, beginning January 1, 1999, and continuing through the end of the contract. Again, confirming purchase orders and subsequent invoices were issued.
Between 2001 and 2004, the parties entered into less formal documented arrangements. These supply agreements were generally consummated through and documented by e-mail exchanges.[3] Each *515 time, after agreement, the parties would follow the usual sequence of purchase orders, invoices, and contractual performance.
Ultimately, anticipating imminent shortages in the market for silicon feedstock supplies, appellee recognized a need to secure long term contracts for the supply of silicon powder. As a result, Pat Barron, appellee's Frederick warehouse manager, was authorized to arrange a long term supply contract with appellant. Herein lies the dispute. It is uncontested that several e-mails were exchanged between August 4, 2004, and November 9, 2004, concerning a long term supply contract between the parties. A printed copy of each e-mail was admitted into evidence. The primary dispute concerns the legal significance of those e-mails.
On August 4, 2004, Mr. Barron e-mailed Sanjeev Lahoti, appellant's product manager, requesting a "quotation (e-mail is fine) for 300 MT of powder per year for calendar years 2005 through 2007. Upon receipt, BP Solar will forward our purchase agreement for these quantities." Mr. Lahoti's September 17 response stated:
After reviewing our options we want to commit 150MT of powder per year for the next 3 years. The pricing for 2005 would be $3.50/kg. Pricing for 2006 and 2007 would be negotiated in October of the previous year. MEMC would offer to BP any additional quantity available for the following year at th[at] time.
Thereafter, on September 27, 2004, Mr. Barron and Mr. Lahoti discussed, via telephone, the arrangement or contemplated arrangement between the parties. In an e-mail later the same day to Bill Poulin, plant manager at BP Solar's Frederick plant, on which Mr. Lahoti was copied, Mr. Barron described this conversation as follows:
I had a phone conversation with Sanjeev this morning clarifing [sic] the MEMC proposal below. Sanjeev indicates that the 150MT is essentially the minimum available for each calendar year 2005-2007. Since this is scrap material for MEMC, their engineering staff has been tasked with improving yield and this is their target based on current levels of production. Sanjeev anticipates the available quantity of powder will be larger (especially in 2005) but did not want to quote a figure higher than their budgeted targets. He has confirmed BP Solar's "right of first refusal" for all quantities of powder they produce. Pricing can be negotiated during MEMC's visit in October.
(Emphasis in original). In his responsive e-mail the following day, Mr. Lahoti stated, "I agree with Pat's comments below. I look forward to meeting you and Pat during our visit."
Two weeks later, on October 13, 2004, Mr. Barron e-mailed Mr. Lahoti asking for confirmation on price. The e-mail stated:
I hope MEMC felt as poitive [sic] about our meeting as we did. As a follow up, you mentioned that you felt you could do better on the pricing of the powder going forward. If you would please send me something in writing, I can begin moving things on this end in terms of a purchase agreement. As stated earlier, BP Solar will commit to taking all quantities available in 2005 and would like to have a right of first refusal in 2006-2007.
On November 9, 2004, Mr. Barron e-mailed Mr. Lahoti concerning purchase orders for the 2005 and 2006 shipments of silicon powder. He stated:
*516 BP Solar has submitted to MEMC our purchase orders #22692 and #22693 for silicon powder to cover calendar years 2005 and 2006. We are not limiting the quantities we would purchase as we will take all the powder that is available under our agreement of right-of-first-refusal (see below). However, I had to put a quantity on the purchase order so I used the same volume that we have been receiving this year. Again, we will take whatever quantities you have available and adjust the PO accordingly.
We would also like to give MEMC a purchase order for our 2007 requirements. Does that work for you?
Following this series of e-mail conversations, appellant shipped nearly 224 MT of silicon powder during 2005. The last shipment occurred on December 30, 2005.
In late February 2006, appellee contacted appellant because it had not received any shipments since December. Upon inquiry, appellee was informed that appellant was experimenting with ways to recycle its silicon powder in its process, and therefore, it had only minimal excess powder. In essence, appellant advised appellee that it should not rely on further shipments. Accordingly, appellee filed suit, seeking damages for breach of a contract allegedly formed through the parties' e-mail exchange.
Prior to trial, appellant moved for summary judgment, arguing that as a matter of law, the parties had never reached the clear meeting of the minds necessary to form a contract. The motion was denied. Appellant argued then and throughout the trial that appellee had changed its position, during the pleading and discovery process, as to the terms of the alleged contract. During the trial, appellant continued its stance that the e-mails did not evidence a meeting of the minds. At the close of appellee's case, and at the close of all evidence, appellant moved for judgment, reasserting its argument that appellee could not make up its own mind regarding the terms of the alleged contract and could not prove a clear meeting of the minds. These motions were also denied.
After a two-week trial, the jury found that the parties entered into a contract by which appellant was obligated to supply appellee with silicon powder for the years 2005-07. The jury further found that appellant breached this contract. Consequently, it awarded damages in the amount of $8,849,447 as partial cover damages that resulted from appellant's failure to supply appellee with silicon powder in 2007.
Additional facts will be incorporated as necessary to complete our discussion.
Questions Presented
Appellant presents a number of issues for our review, which we condense and restate as follows:[4]
*517 1) Whether appellant preserved for review its challenge to the sufficiency of the writings under the Statute of Frauds and, if so, whether the printed copies of the e-mails are sufficient to satisfy the Statute.
2) Whether the trial court abused its discretion and whether appellant was prejudiced by court rulings (a) admitting into evidence the prior sworn testimony of Sanjeev Lahoti regarding an alleged corporate practice of appellant of selling polysilicon products to third parties on the spot market, notwithstanding prior contractual obligations; (b) excluding from evidence appellee's original and first, second, and third amended complaints; (c) initially precluding use of Mr. Barron's original deposition testimony, as distinguished from errata pages, during his cross-examination, but later allowing its use during appellant's case in chief; and (d) responding to a question from the jury during deliberations, which allowed the jury to determine if the parties entered into a general contract, rather than requiring the jury to determine if the parties entered into an output contract.
3) Whether the trial court abused its discretion in admitting the expert testimony of Richard Winegarner, and whether such testimony was sufficient to support the jury's damages award.
Contentions
1. Appellant's Contentions
With respect to the Statute of Frauds issue, question 1, appellant contends that the Statute of Frauds was not satisfied with respect to the year 2007.[5] To that point, appellant argues that there were no writings sufficient to indicate a contract for sale for 2007 because the parties' exchanges never advanced beyond negotiations. Appellant notes that appellee did not send any purchase orders to appellant for the year 2007 that could serve to satisfy the merchant's exception to the Statute.[6]
With respect to question 2, appellant contends that the trial court erred in a number of rulings. In that respect, appellant argues that (1) the admission of Mr. Lahoti's testimony from another case was unduly prejudicial and lacked probative value as irrelevant "routine practice" evidence; (2) appellee's superseded complaints were admissible as statements of a party opponent; (3) the court's delayed allowance of appellant to play excerpts from Mr. Barron's deposition testimony could not cure the prejudicial effect of the court's initial refusal during live cross-examination; and (4) the trial court improperly responded to a question from the jury during deliberations, which allowed the jury to find a contract different from that alleged in the fourth amended complaint, *518 an output contract, which was defended against at trial.
Finally, with respect to question 3, appellant contends that the court erred with respect to Mr. Winegarner's testimony. Appellant argues that Mr. Winegarner lacked the qualifications, methodology, and factual basis necessary to provide expert testimony. Appellant further argues that Mr. Winegarner's opinions pertaining to the reasonable price of silicon powder did not provide the jury with sufficient evidence to support a damages verdict because his opinions were not tied to "time of delivery." Lastly, appellant argues that Mr. Winegarner's opinions regarding reasonable price were tied to an alleged output contract and, therefore, left the jury without any factual basis for assessing damages for breach of a contract in general.
2. Appellee's Contentions
Preliminarily, appellee argues that appellant failed to preserve for review its argument concerning the Statute of Frauds and the merchants' exception because it neglected to argue this point in its motions for judgment at the close of appellee's case and at the close of all the evidence. In the event the issue is preserved, appellee argues that, collectively, the printed e-mails satisfied the Statute and/or the merchants' exception, and that the parties' demonstrated intent to negotiate prices for subsequent years did not render the contract unenforceable.
With respect to the court's rulings challenged in question 2, appellee argues that the court did not abuse its discretion. Appellee further argues that, even if the court erred in any of these respects, such errors were not sufficiently prejudicial as to constitute reversible error.
Finally, with respect to Mr. Winegarner's expert testimony, appellee argues that appellant failed to preserve this issue for appeal. Nevertheless, assuming the issue is preserved, appellee contends that Mr. Winegarner is an undisputed expert in polysilicon, that his opinions were indeed grounded on an adequate factual basis, and that his opinions provided sufficient factual basis to enable the jury to determine the reasonable price for silicon under a three-year agreement.
Discussion
1. Challenge to Sufficiency of Writings Under the Statute of Frauds
A. Preservation of Issue for Appeal
In seeking reversal of the trial court's judgment, appellant argues that the parties attempted to negotiate an agreement for 2007 but never reached agreement. Consequently, there was not and could not be a confirmatory writing that would satisfy the merchants' exception because there was no agreement to confirm. Appellant notes that appellee never sent a purchase order for silicon powder for 2007, as it did for the years 2005 and 2006. Preliminarily, appellee responds by arguing that appellant failed to preserve this challenge for review by neglecting to argue this specific point in its two motions for judgment.
Appellant presents its arguments in the abstract and does not tie them to a particular ruling by the court. We assume, as does appellee, that the alleged basis for error is the denial of appellant's motions for judgment, pursuant to Maryland Rule 2-519, on the ground that the Statute was not satisfied. A motion for judgment must "state with particularity all reasons why the motion should be granted." Maryland Rule 2-519(a). In that respect, it is well-settled that "[f]ailure to state a reason [why the motion for judgment should be granted] serves to withdraw *519 the issue from appellate review." Kent Vill. Assocs. Joint Venture v. Smith, 104 Md.App. 507, 517, 657 A.2d 330 (1995); see also Laubach v. Franklin Square Hosp., 79 Md.App. 203, 208, 556 A.2d 682 (1989) ("[I]n order to preserve an issue for appellate review, the moving party must have, in to [sic] making the motion either at the close of the plaintiff's case or after all the evidence, stated with particularity all reasons why the motion should be granted.") (Internal quotations omitted).
With respect to the breach of contract count, appellant argued in support of its first motion that (1) there was no definitive offer and acceptance because Mr. Lahoti's e-mail dated September 28, 2004 merely served to confirm Mr. Barron's understanding of the negotiations, and (2) appellee's breach of contract claim was barred by a one-year statute of limitations provision included in the parties' 1997 supply agreement. In support of its renewed motion at the close of all the evidence, appellant incorporated its earlier arguments and, in addition, argued that because the alleged contract did not include a price, a damage award could only be supported by testimony regarding a reasonable price at the time of delivery pursuant to § 2-305 of the Maryland Uniform Commercial Code ("MD UCC"). Thus, according to appellant, the absence of such testimony required the jury to speculate on the issue and, therefore, warranted judgment in its favor regarding appellee's claim for cover damages.
On the record before us, it is apparent that none of these arguments pertain to appellant's current contention on appeal that no writing by appellee was sufficient to satisfy the merchants' exception to the Statute of Frauds. Consequently, this issue is not properly preserved for appellate review.
B. The Writings Satisfy the Statute of Frauds and Its Merchants' Exception
Assuming appellant's argument is preserved, we conclude it is without merit. Commercial Law Section 2-201(1) of the MD UCC provides:
[A] contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
Maryland Code (2002 Repl.Vol.), § 2-201(1) of the Commercial Law Article ("CL"). Thus, the Statute effectively requires a writing that (1) is sufficient to indicate a contract for sale of goods of $500 or more between the parties; (2) is signed by the party against whom enforcement is sought; and (3) contains a quantity term.[7] The rule also provides an exception for merchants, which states that a writing in confirmation of the contract and sufficient against the sender that is received by a party who has reason to know of its contents satisfies the requirements of subsection (1) against the receiving party unless written notice of objection is given within ten days of receipt. CL § 2-201(2). *520 We conclude that the e-mail exchange between the parties satisfies both the requirements of the Statute and the merchants' exception.
As noted above, appellant argues that there was no writing that satisfied the Statute of Frauds pertaining to the 2007 calendar year. To this point, appellant argues that it "never signed any writing sufficient to indicate that a contract for sale of silicon powder for three years was ever made between itself and [appellee]." Moreover, appellant points to the fact that appellee sent purchase orders in 2005 and 2006 that satisfied the merchants' exception for those years, but failed to send a purchase order for 2007. With respect to the November 9, 2004 e-mail from Mr. Barron to Mr. Lahoti, appellant argues that this writing is merely representative of ongoing negotiations and does not "indicate that a contract for sale has been made for 2007, nor is it [confirmative] of a contract for 2007."
Here, however, the question regarding whether there was a contract and, if so, its terms, was left to the jury. Appellant does not challenge the court's determination that whether a contract existed was a jury question; its challenge is limited to the requirements of the Statute of Frauds. With respect to quantity, there was evidence that the parties agreed to a specific quantity or a minimum quantity with a right of first refusal of output or an agreement to buy output. The jury was instructed as to the relevant contract principles, including considerations relevant to an output contract.
After reviewing all of the documents and testimonial evidence, the jury determined that the parties entered into a three-year contract that covered the 2007 calendar year. The relevant question on the verdict sheet, which the jury answered in the affirmative, was: "Do you find that the parties entered into a contract by which MEMC was obligated to supply BP Solar with silicon powder for calendar years 2005, 2006, and 2007?" Thus, we do not know the terms of the contract as found by the jury, except to the extent we can infer them from the damages awarded.
Appellee's position during trial was that it had the right to appellant's output with a minimum quantity. It claimed damages for the years 2004-2007, consisting of cover damages under CL § 2-712, non-delivery damages under CL § 2-713, and consequential and incidental damages under CL § 2-715. The verdict sheet reveals that the damages awarded were only for "partial cover damages." The jury awarded "0" damages for "non-delivery damages," "consequential damages," and "incidental damages." Christopher Rosenthal and Mr. Winegarner, appellee's expert witnesses, opined, inter alia, as to the amount of cover damages for the year 2007, calculated at a contract price of $8.00 per kilogram, assuming a contract existed between the parties herein. The witnesses applied that price to the amount of silicon purchased from other suppliers by appellee in that year, and compared it to the actual price paid by appellee in that year. Because the amount awarded by the jury as cover damages matched the amount of cover damages claimed for the year 2007, as testified to by appellee's experts, appellant infers that the jury found that appellant was obligated to make its output available to appellee at a contract price of $8.00 per kilogram, and it awarded the entire amount claimed.
On appeal, appellant does not raise any issue regarding the initial jury instructions or the verdict sheet. As a result, appellant's argument that the Statute of Frauds was unsatisfied because there was no contract that could be confirmed in writing must necessarily fail. The jury *521 determined there was a contract. Thus, what we must determine is whether there was a legally sufficient confirmatory writing.
While underlying facts may be disputed in a given case, when resolved, the ultimate decision as to whether a writing satisfies the Statute's requirements is a question of law. Salisbury Bldg. Supply Co. v. Krause Marine Towing Corp., 162 Md.App. 154, 161, 873 A.2d 452 (2005). We review decisions involving application of Maryland statutory law for legal correctness under a de novo standard of review. Schisler v. State, 394 Md. 519, 535, 907 A.2d 175 (2006) (discussing de novo review of issues involving interpretation and application of Maryland constitutional, statutory, or case law).
Here, the printed e-mails constitute a sufficient writing under the Statute. Maryland law recognizes that a series of communications can satisfy the Statute's requirements. See Tatum v. Richter, 280 Md. 332, 335-36, 373 A.2d 923 (1977) (holding that a purchase order and bill of sale established the existence of an oral contract and satisfied the Statute). In addition, e-mail communications can amount to a sufficient writing under the Statute. See CL § 1-201(46) (noting that "`writing' includes printing, typewriting, or any other intentional reduction to tangible forms"). In that regard, if so intended, a typed name is a sufficient signature as an agent of the party against whom enforcement is sought. See id. § 1-201, cmt. 39 ("No catalog of possible authentications can be complete and the court must use common sense and commercial experience in passing upon these matters. The question always is whether the symbol was executed or adopted by the party with present intention to authenticate the writing.").
Furthermore, the purpose of the Statute is to avoid fraudnot to prevent enforcement of legitimate transactions. Consequently, in regard to that purpose, we have stated that the Statute is intended to prevent
successful fraud [through] inducing the enforcement of contracts that were never in fact made. It is not to prevent the performance or enforcement of oral contracts that have in fact been made; it is not to create a loophole of escape for dishonest repudiators. Therefore, we should always be satisfied with "some note or memorandum" that is adequate, when considered with the admitted facts, the surrounding circumstances, and all explanatory and corroborative and rebutting evidence, to convince the court that there is no serious possibility of consummating a fraud by enforcement.
Collins v. Morris, 122 Md.App. 764, 773-74, 716 A.2d 384 (1998). This purpose has guided our examination of the sufficiency of particular writings under the Statute:
The Statute of Frauds was not enacted to afford persons a means of evading just obligations; . . . nor was it adopted to enable defendants to interpose the Statute as a bar to a contract fairly, and admittedly, made. . . . Therefore, if after a consideration of the surrounding circumstances, the pertinent facts and all the evidence in a particular case, the court concludes that enforcement of the agreement will not subject the defendant to fraudulent claims, the purpose of the Statute will best be served by holding the note or memorandum sufficient even though it is ambiguous or incomplete.
Salisbury Bldg. Supply Co., 162 Md.App. at 162, 873 A.2d 452 (quoting Williston on Contracts, § 29:4 at 437-38 (4th ed.1999)). Thus, even an incomplete writing can be *522 sufficient so long as the court is satisfied that enforcement of the agreement will not advance a fraudulent claim.
With these principles in mind, we turn to the last requirement, that the writing contain a quantity term, which was the subject of much dispute at the trial court level. Though the verdict sheet does not reveal the precise terms of the contract that the jury found, it is evident that the e-mails support a finding of a specific minimum quantity (150 MT) with a right of first refusal of output or an agreement to buy output. In either event, appellant was obligated to make its output available to appellee. As discussed, the writing requirement in the Statute of Frauds is designed to prevent fraud, not prevent enforcement of legitimate transactions. With respect to the quantity term, because of the factual uncertainty as to the terms of any contract, the jury had to resolve that issue. Once resolved, we look to the writing to see if it contains a quantity term because the contract cannot be enforced beyond the quantity stated.
Here, Mr. Lahoti's September 17, 2004 e-mail committed appellant to 150 MT per year for three years. Thereafter, Mr. Baron's September 27 e-mail clarifying the proposal as to quantity stated that 150 MT was the minimum amount of silicon powder available for 2005-07, and that appellee held a right of first refusal for all excess quantities produced. Mr. Lahoti's responsive e-mail of September 28 served as confirmation of the terms by stating "I agree with Pat's comment's below." Thus, taken together, these e-mails represent the parties' reciprocal agreement that appellant would make its output available to appellee and would supply a minimum amount. Therefore, the September 28 e-mail served as a writing sufficient to satisfy the quantity term of the contract.
Finally, we note that the e-mail dated September 27 from Mr. Barron to Mr. Lahoti and Mr. Poulin satisfies the merchants' exception. That e-mail, especially in light of Mr. Lahoti's September 28 reply, serves as the required confirmatory e-mail under the exception. Thereafter, neither Mr. Lahoti nor any agent of appellant sent written notice of objection within ten days as required by the Statute. Consequently, the September 27 e-mail satisfies the merchants' exception to the Statute.
As a result, we reject appellant's argument that the Statute of Frauds bars appellee's claim as to the year 2007.
2. Rulings of the Court
First, appellant contends that the court improperly admitted deposition testimony of Mr. Lahoti from a prior action involving another of appellant's customers. Next, appellant challenges the court's refusal to admit into evidence appellee's amended complaints. Additionally, appellant argues that, during its cross-examination of Mr. Barron, the trial court improperly precluded the use for impeachment purposes of the witness's original deposition testimony. Lastly, in addition to appellant's evidentiary challenges, appellant argues that the trial court's response to a jury note received during deliberations constituted an abuse of discretion.
We have noted that "[t]he admission or exclusion of evidence is left to the sound discretion of the trial court." Lomax v. Comptroller of Treasury, 88 Md. App. 50, 54, 591 A.2d 1311 (1991). We review rulings pertaining to the admissibility of evidence for an abuse of discretion, Brown v. Daniel Realty Co., 409 Md. 565, 583, 976 A.2d 300 (2009), which occurs where "no reasonable person would share the view taken by the trial judge." Id. at 601, 976 A.2d 300. Maryland Rule 5-103(a) states that "[e]rror may not be *523 predicated upon a ruling that admits or excludes evidence unless the party is prejudiced by the ruling." "It is not the possibility, but the probability, of prejudice which is the object of the appellate inquiry." Crane v. Dunn, 382 Md. 83, 91, 854 A.2d 1180 (2004) (internal quotations omitted). Further, "[we] will only reverse upon finding that the trial judge's determination was both manifestly wrong and substantially injurious." Lomax, 88 Md.App. at 54, 591 A.2d 1311 (internal citation omitted). "The party maintaining that error occurred has the burden of showing that the error complained of likely affected the verdict below." Brown, 409 Md. at 584, 976 A.2d 300. These considerations will guide our analysis of the complained of evidentiary rulings.
A. Admission of Mr. Lahoti's Prior Testimony
Appellee sought to introduce evidence under Rule 5-406 to establish that appellant had a "corporate practice of shipping polysilicon to the highest bidder on the spot market due to revenue pressures notwithstanding and in violation of its contractual commitments to long standing customers, like [appellee]."[8] The court did not permit appellee to introduce all of the evidence that it proffered. The court did permit appellee to introduce the following testimony by Mr. Lahoti, in a deposition taken in litigation involving ASi Industries GmbH ("ASi"), another of appellant's customers.[9] During that deposition, Mr. Lahoti testified:
Q: So the corporate policy at MEMC was that if someone was willing to pay more, you would sell to that customer, notwithstanding the fact that you might have a contractual commitment to another customer having a lower price?
* * *
A: . . . [I]t wasn't a written policy, no.
Q: But that was a policy?
A: We did that, yes.
Q: And that policy came from where?
A: It came from my, my supervisor. . . .
Appellant objected, explaining that this testimony was irrelevant, as it concerned an allocation provision of an acknowledged contract with ASi that appellant argued allowed it to sell high to one customer rather than low to another. Thus, according to appellant, it had no bearing on whether the parties in the case at bar had ever formed a contract.
In allowing the excerpt, the court made specific findings of relevance, and stated that the excerpt was "relevant as to how each party saw [the alleged contract]. . . . I think that the way [appellant] operated is relevant to its view of whether there was a contract or not."
On appeal, appellant reasserts its argument that this testimony was irrelevant as it served no purpose in evaluating whether the parties ever formed a contract. Additionally, appellant argues that even if this evidence had slight probative value, the risk of unfair prejudice and confusion vastly outweighed that value, thereby rendering *524 the evidence inadmissible under Maryland Rule 5-403.[10]
As stated, the question of relevance is quintessentially within the trial court's discretion. See, e.g., Fenner v. State, 381 Md. 1, 25, 846 A.2d 1020 (2004) ("It is well established in Maryland that the admission of relevant evidence, . . . is committed to the considerable and sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion."); Merzbacher v. State, 346 Md. 391, 404-05, 697 A.2d 432 (1997) (stating that "[o]nce a finding of relevancy has been made, we are generally loath to reverse a trial court unless the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse of discretion").
Here, while refusing to admit several other excerpts of prior testimony whereby appellant's officials described the alleged corporate practice to which Mr. Lahoti testified, the court distinguished this particular excerpt by explaining that "Mr. Lahoti was directly [and intimately] involved with this contract." Therefore, according to the court, the Lahoti excerpt had special relevance to the issue of whether the parties reached an agreement because it could be found to provide insight as to appellant's view of its relationship with appellee: that notwithstanding its prior contractual commitment, appellant could sell to a customer willing to pay a higher price. We see no clear abuse of discretion that would warrant reversal.
With respect to Rule 5-403, appellant makes only one argument. Appellant argues that admitting this excerpt was prejudicial because the court would not allow appellant to explain the context of Mr. Lahoti's testimony without opening the door to appellee's introduction of additional corporate practice evidence.
In essence, appellant sought from the court permission to call a witness to explain the context of Mr. Lahoti's testimony, without allowing complete cross-examination of that witness. Though this may have created for appellant an undesirable dilemma, it is not the type of ruling that can be considered "manifestly wrong and substantially injurious." Lomax, 88 Md. App. at 54, 591 A.2d 1311. Consequently, we perceive no abuse of discretion.
B. Exclusion of Superseded Complaints
Appellant next challenges the court's exclusion of appellee's complaints filed prior to its fourth amended complaint. On April 30, 2007, appellee filed its original complaint, which stated that "the parties reached an agreement regarding the sale of silicon powder by [appellant] to [appellee] for the calendar years 2005 and 2006;" that "[t]he parties agreed upon minimum quantities that [appellant] would sell and ship to [appellee];" and that "[i]f any additional quantities were generated, the parties agreed that [appellee] had a right of first refusal for the additional quantities of silicon powder" that were produced. Relying on these factual assertions, appellee claimed, inter alia, that appellant breached a two-year supply contract, pursuant to which appellee held a right of first refusal for excess quantities produced, for the calendar years of 2005 and 2006.
Thereafter, on October 5, 2007, appellee filed its first of a series of amended complaints, asserting, inter alia, that the alleged *525 contract actually covered the three calendar years from 2005-2007. (Emphasis added). This complaint continued to assert appellee's right of first refusal for additional quantities of silicon powder that appellant produced. On January 11, 2008, appellee filed its second amended complaint, which encompassed an additional factual assertion that "[t]he terms of the agreement were set forth in a series of writings that included email exchanges between the parties and purchase orders. . . ." Ultimately, on May 26, 2009, appellee filed a fourth amended complaint,[11] wherein appellee alleged that appellant "refus[ed] to comply with its agreement to give [appellee] the right to purchase all additional quantities of silicon powder that [were] produced in each of those years." The complaints were signed by counsel but not by a corporate representative of appellant.
At trial, appellant argued that appellee changed its initial allegation that the parties entered into a two-year supply agreement with a right of first refusal of output to allege that, in fact, the parties entered into a three-year output contract in which appellee was obligated to buy output. In so doing, appellant attempted to introduce the superseded complaints into evidence, arguing that the inconsistencies in the complaints substantiated its position that there was never "any clear meeting of the minds with respect to the formation of the alleged contract," because appellee "had never been able to state, authoritatively and consistently, what it believed to be the terms of its alleged contract with [appellant]." Thus, because appellee "could not even make up its own mind as to the terms of its alleged contract, then it could not possibly have ever reached a meeting of the minds as to any terms of any such contract with [appellant]." (Emphasis in original). Nevertheless, the trial court rejected these arguments and refused to admit the superseded complaints into evidence.
On appeal, appellant renews these arguments in contending that exclusion of the amended complaints, in light of the alleged inconsistent allegations contained therein, amounts to reversible error. Appellant believes they should have been admitted as statements of a party opponent pursuant to Maryland Rule 5-803(a), and relies on language from Crane, 382 Md. at 96, 854 A.2d 1180, where the Court of Appeals stated that "[a] party may offer into evidence against his opponent anything said by him as long as it illustrates some inconsistency with the facts now asserted by the opponent in pleadings or in testimony." According to appellant, the court's exclusionary ruling was prejudicial because it enabled appellee to hide its "change in stories," rather than have to explain the alleged inconsistencies. To that point, appellant argues that the exclusion of these complaints prevented the jury from assessing the credibility of appellee's witnesses.[12]
Appellee responds by arguing that the factual allegations in the amended complaints regarding the circumstances surrounding the formation of the alleged contract did not change. Instead, according to appellee, the changes only represented changes in the legal conclusions deduced *526 from those underlying facts, and therefore, the complaints were properly excluded.
As discussed, the trial court enjoys wide discretion in admitting or excluding evidence. We reject appellant's arguments for several reasons. First, Crane is not controlling as a careful reading of the complaints in this case indicates that the underlying facts do not vary substantially among the amended complaints. Although subsequent complaints incorporate the 2007 calendar year, the central facts alleged in the original complaint surrounding the formation of the alleged contract continue to form the basis for the breach of contract claim in the amended complaints. It is the characterization of those underlying facts that varies within the amended complaintsthat the e-mails created a three-year contract, rather than a two-year contract, and that they created an output contract, as distinguished from a right of first refusal.
For pleading purposes, an amended complaint that does not incorporate or otherwise reference a prior complaint supersedes prior complaints and becomes the operative complaint. Shapiro v. Sherwood, 254 Md. 235, 239, 254 A.2d 357 (1969). This does not necessarily mean, however, that the contents of a superseded pleading may not be admissible in evidence as an admission or for purposes of impeachment.
We are unaware of any reported Maryland appellate court opinions on point. A number of cases from other states support the proposition that legal conclusions, including interpretations of contracts, or characterizations pertaining to certain facts are not admissible as evidence. See, e.g., Conley v. Life Care Ctrs. of Am., Inc., 236 S.W.3d 713, 743 (Tenn.Ct. App.2007) (excluding superseded pleadings because they "did not constitute factual statements or admissions of fact"); Amador v. Lea's Auto Sales & Leasing, Inc., 916 S.W.2d 845, 850 (Mo.Ct.App.1996) (stating that "[c]ase law is clear that there is a difference between statements of fact and legal conclusions"). See also Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1355 (Fed.Cir.2004) (denying the use of prior pleading as a factual admission, stating that "the Government has not made a factual admission; rather, it has taken a litigation stance on an issue of law" and that "the Government's position is merely a legal theory developed during litigation"). As a general proposition, we agree with those cases. As is true with all questions of admissibility, however, the admissibility of complaints has to be determined on a case by case basis, after due consideration of relevance, potential prejudice, and any rule of exclusion that might be applicable to specific content. Admissibility may also be affected if the complaint was signed, verified, or even reviewed by a party or testifying witness.
To the extent any changes in allegations were arguably factual in nature, we conclude that they were not the type of first level fact that compelled admission into evidence. Thus, the ruling was within the trial court's discretion.
Second, the record is devoid of any effort or proffer by appellant to redact all but what was arguably factual in nature. It is clear that most of the content of the complaints, relating to breach of contract, was not factual but contained legal characterizations and conclusions, the exclusion of which was well within the court's discretion. Moreover, the complaints contained counts in addition to breach of contract which were totally irrelevant for the purpose for which they were being offered. Appellant argued for admission of the complaints on an all-or-nothing basis. Under those circumstances, it was not an abuse of discretion for the trial court to *527 exclude the complaints in an effort to ensure that the change in legal conclusions contained therein did not improperly influence the jury.
Finally, appellant has failed to demonstrate prejudicial error. Throughout the trial, appellant was permitted to and consistently did stress the perceived inconsistencies of appellee's position from opening statement, through witness examinations, to closing argument. The jury was familiar with appellant's position that appellee's inconsistent interpretations of the alleged contract suggested that no meeting of the minds had ever occurred. The jury was also aware that appellee filed an original and four amended complaints. Appellant brought out the existence of the amended complaints through the testimony of Mr. Rosenthal and referred to them in its closing argument. In addition, the court instructed the jury, presumably at the request of a party, that appellee had filed four amended complaints and that it had a right to do that. The introduction of the complaints would have added little, particularly in light of the fact that there was no evidence that any of the witnesses who testified actually reviewed the complaints.[13] Consequently, we do not perceive from this record that admission of the complaints would have affected the verdict such that their exclusion constitutes reversible error.
C. Preclusion of Mr. Barron's Original Deposition Testimony During Cross-examination
Mr. Barron was deposed on April 2, 2009. During the deposition, Mr. Barron discussed his understanding of the terms of the alleged contract. Six weeks after his deposition, Mr. Barron submitted an errata sheet pursuant to Maryland Rule 2-415(d), which purported to supplement and explain certain statements made during his deposition.
At trial, Mr. Barron testified, inter alia, concerning his belief regarding the terms of the alleged agreement. Appellant sought to impeach Mr. Barron's testimony with statements made during his deposition that were later "changed" by his errata sheet, which it believed were "fatally inconsistent" with his trial testimony. Appellee objected, arguing that the excerpt on which appellant relied was changed by the errata sheet and therefore was no longer part of the transcript. In response, appellant argued that when a deponent submits an errata sheet correcting statements made during the deposition, counsel is "entitled to inquire as to the inconsistency in the two statements."
Initially, the trial court sustained the objection, and appellant was not permitted to conduct live cross-examination of Mr. Barron concerning that portion of the original transcript which was the subject of the errata sheet. One week later, however, following appellant's request to present Mr. Barron's deposition testimony during its case in chief, the court allowed appellant to play the original deposition testimony, so long as it also contemporaneously presented relevant portions of Mr. Barron's errata sheet. Under these circumstances, *528 although excerpts of Mr. Barron's original deposition testimony were ultimately admitted, he was never subject to live cross-examination concerning the alleged inconsistencies between that testimony and the errata sheet.
Appellant now argues that, notwithstanding the court's attempt to correct its error, appellant was prejudiced by the court's initial ruling excluding the use of a portion of Mr. Barron's deposition testimony during live cross-examination. According to appellant, because "the only evidence of [appellee]'s output contract claim was the tenuous word of a few employees," Mr. Barron should have been required to explain the inconsistencies in his testimony.
In our view, appellant has failed to demonstrate that it suffered the level of prejudice that would warrant reversal. Without minimizing the acknowledged importance of live cross-examination, we note that appellant utilized Mr. Barron's errata sheet during cross-examination; extensively questioned Mr. Barron at trial regarding many of the issues covered in the deposition and the errata sheet; and was ultimately able to play the video excerpts for the jury during its case in chief and closing argument. In closing argument, appellant focused on what it perceived as four different versions of Mr. Barron's testimony his e-mail, his original deposition testimony, the errata sheet, and his testimony at trial. Through cross-examination of fact and expert witnesses, appellant repeatedly presented to the jury its position that appellee's version of the contract was a moving target. Acknowledging that cross-examination is a crucial component of our system of justice, the court's ruling enabled appellant to argue the existence of an inconsistency that the witness could not purport to explain because the asserted inconsistency was introduced during appellant's case in chief.
Based on our review of the record, while the court should have permitted appellant to cross-examine Mr. Baron about the contents of his original deposition and errata sheet, we are satisfied that the court's actions were not so prejudicial as to warrant reversal.
D. Court's Response to Jury's Note
As discussed above, the main issue at trial was whether a contract existed and, if so, its terms. There was conflicting evidence regarding the length of the contract and whether it was for a specific quantity or for output. These differences existed in the context of whether there was a meeting of the minds sufficient to create a contract, and if so, whether the writing requirement of the Statute of Frauds was satisfied. As a result, the trial court instructed the jury as to general contract law and as to the requirements of the Statute, including its requirement that a contract is not enforceable beyond the quantity of goods shown in the writing.[14]
During deliberations, the jury sent a note to the court. In that note, the jury requested clarification regarding whether it was "deciding exclusively if [the alleged contract was] an output contract or a contract in general." The trial court advised the jury that "[my] instruction on an output contract is to assist you in determining *529 whether there is a contract between the parties and to interpret its terms if you find that there is a contract." Thus, the court effectively declined to require the jury to find one of two extremes: an output contract or no contract at all. Following the court's response, the jury returned a verdict indicating that it found that appellant breached a supply contract that spanned the 2005-07 calendar years and assessed damages as described above.
Appellant challenges the court's response to the jury note. Appellant argues that appellee had bound itself to an output contract, and the jury should have been required to find an output contract or none at all.
Appellant raises no issue with respect to either the jury instructions or the verdict sheet. Yet, the court's response to the jury note was consistent with both the instructions, which did not bind the jury to one of two extremes, as well as the verdict sheet, which merely asked the jury if there was a contract and, if so, whether it was breached. The court's general response to the jury's question did not in any way change the import of its earlier instructions or that of the question on the verdict sheet. Therefore, the court did not abuse its discretion in responding to the jury note, and appellant's contention has no merit.
3. Mr. Winegarner's Testimony
In light of the fact that the contract, as alleged by appellee, contained a term that pricing would be negotiated in October of the year preceding the shipment year, appellee called Richard Winegarner, its first expert witness, to testify concerning the "reasonable price" for silicon powder as of October 2005 and October 2006 for the following year's deliveries of powder.[15] Mr. Winegarner, a market researcher in the polysilicon industry for the past twenty-five years, testified that a reasonable price in October 2005 for the sale of powder in 2006 was between $4.50 and $5.50 per kilogram, and that a reasonable price in October 2006 for sale of powder in 2007 was between $7.00 and $8.00 per kilogram.[16] These figures were in part premised upon his understanding that appellant was the only producer of silicon powder, and was promising appellee 100% of its output. Thus, according to Mr. Winegarner, there would be no powder available on the spot market had appellant supplied appellee as allegedly agreed, and reliance on a spot market price would therefore be inappropriate.
Additionally, Christopher Rosenthal, appellee's second expert witness, testified concerning appellee's cover damages. Relying on Mr. Winegarner's "reasonable price" determination, Mr. Rosenthal estimated appellee's cover damages pertaining to the silicon powder not supplied in 2007. Ultimately, the jury's damages award was consistent with Mr. Rosenthal's testimony regarding cover damages for 2007.
On appeal, appellant challenges both the admissibility and sufficiency of Mr. Winegarner's testimony in an attempt to invalidate the jury's damage award. First, appellant argues that Mr. Winegarner was *530 not competent to offer an opinion regarding the "reasonable price" for silicon powder in 2006 and 2007. Next, appellant argues that his "reasonable price" opinions were not tied to the "time for delivery" and, therefore, ran afoul of the MD UCC. Lastly, appellant contends that Mr. Winegarner's opinions were premised upon appellee's claim that the parties entered into an output contract. Consequently, according to appellant, because the jury was free to find a contract in general, any damage award for other than an output contract would have been based on speculation because Mr. Winegarner's opinions were exclusively premised upon the economic effects of the alleged output contract. We reject each argument in turn.
A. Mr. Winegarner's Competency to Offer Expert Testimony
Appellant offers three reasons why Mr. Winegarner was not competent to offer expert testimony concerning the "reasonable price" for 2006 and 2007. First, appellant argues that Mr. Winegarner lacked the requisite expertise to render an opinion concerning the reasonable price of silicon powder. To that end, appellant states that Mr. Winegarner had never before been accepted as an expert witness; had never been involved in commercial sales; had never negotiated a price in any contract; and had never bought or sold polysilicon. Second, appellant argues that Mr. Winegarner's opinions, which were based in part on interviews with sources within the polysilicon industry, lacked the requisite factual basis to qualify as expert testimony. Lastly, appellant argues that Mr. Winegarner's opinions were "untethered to any reliable principles or methods," because "he had not applied any mathematical formula or other regularly accepted methodology." Therefore, according to appellant, the court erred in permitting this testimony.
Trial courts have wide discretion in evaluating expert testimony. The Court of Appeals has "often stated that the admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal." Bryant v. State, 393 Md. 196, 203, 900 A.2d 227 (2006) (internal quotations omitted). The Court has further stated:
Rule 5-702 vests trial judges with wide latitude in deciding whether to qualify a witness as an expert and does not limit the discretion of the trial court. The trial court is free to consider any aspect of a witness's background in determining whether the witness is sufficiently familiar with the subject to render an expert opinion, including the witness's formal education, professional training, personal observations, and actual experience. Absent a statute to the contrary, even the lack of particular formal credentials does not disqualify an expert witness, so long as the witness is sufficiently qualified such that the witness's testimony would be helpful to the fact finder.
In re Adoption/Guardianship No. CCJ14746, 360 Md. 634, 647, 759 A.2d 755 (2000) (citations omitted). Nevertheless, "[d]espite its broad discretion, a trial court's decision to admit or reject expert testimony is reviewable on appeal and may be reversed if it is founded on an error of law or if the trial court clearly abused its discretion." White v. State, 142 Md.App. 535, 544, 790 A.2d 754 (2002) (internal quotations omitted); see also Samsun Corp. v. Bennett, 154 Md.App. 59, 67, 838 A.2d 381 (2003) (same).
In this case, appellant has failed to meet its burden. First, regarding Mr. Winegarner's expertise relating to the price of *531 silicon powder, he is not disqualified from testifying as an expert, even for the first time, simply because he has never before negotiated a price or sold polysilicon. To the contrary, the Court of Appeals has distinctly rejected such a principle. In Rotwein v. Bogart, 227 Md. 434, 437, 177 A.2d 258 (1962), the Court of Appeals stated:
We do not agree entirely with the court's first reason, that the witness could not qualify as an expert in the flooring trade as he had never previously laid a floor. A witness may qualify if he possesses special and sufficient knowledge regardless of whether such knowledge was obtained from study, observation or experience. A law professor may be an expert on trial procedure even though he has never tried a case. There are many expert astronauts who have yet to make a space flight.
Id.; see also Radman v. Harold, 279 Md. 167, 171, 367 A.2d 472 (1977) ("[W]e perceive no reason why a person who has acquired sufficient knowledge in an area should be disqualified as a medical expert merely because he is not a specialist or merely because he has never personally performed a particular procedure.") (emphasis in original); Air Lift, Ltd. v. Bd. of Co. Comm'rs, 262 Md. 368, 402, 278 A.2d 244 (1971) (holding that "an experienced law enforcement officer who had never been personally involved in policing a rock festival or concert could nonetheless qualify as an expert witness and testify with respect to the security problems associated with such events").
Here, the court accepted, inter alia, Mr. Winegarner's twenty-five years of experience tracking the polysilicon market in allowing him to offer expert testimony regarding the price of silicon powder. Though Mr. Winegarner had not directly engaged in the purchase or sale of silicon powder, he had tracked and analyzed this information for a number of years. In fact, even while objecting to Mr. Winegarner's ability to offer testimony concerning pricing, appellant's counsel stated: "Yeah, I mean, I think it's obvious from listening to him he knows a lot about the polysilicon industry." Therefore, the court did not abuse its discretion in determining that Mr. Winegarner was qualified to offer expert testimony concerning the reasonable price of silicon powder.
Likewise, Mr. Winegarner possessed the requisite factual basis upon which to offer this opinion. Indeed, "[a] factual basis for expert testimony may arise from a number of sources, such as facts obtained from the expert's first-hand knowledge, facts obtained from the testimony of others, and facts related to an expert through the use of hypothetical questions." Sippio v. State, 350 Md. 633, 653, 714 A.2d 864 (1998) (citation omitted). Moreover, "[i]t is well-settled that the trial judgenot the expert witnessdetermines whether there exists an adequate factual basis for the opinion at issue." Wood v. Toyota Motor Corp., 134 Md.App. 512, 523, 760 A.2d 315 (2000). Further, in evaluating whether there is an adequate factual basis, the trial court operates within a wide discretionary range. CSX Transp., Inc. v. Miller, 159 Md.App. 123, 199, 858 A.2d 1025 (2004).
Here, appellant's argument is that Mr. Winegarner "chose to completely disregard the only hard, factual pricing data available to him: [appellant's] actual sales of silicon powder on the spot market during the precise period at issue." At trial, however, Mr. Winegarner explained that the spot market price can be significantly higher than the long-term average price. Instead, Mr. Winegarner based his opinion on a number of other permissible considerations, including interviews with individuals *532 within the industry, pricing data presented to industry groups one year prior to his involvement in the litigation, and his estimation of a long-term contract price based on his years of experience in the industry. Therefore, considering the breadth of the trial court's discretion in evaluating whether there is an adequate factual basis, the court did not abuse its discretion on this ground.
Finally, we find no merit in appellant's argument that Mr. Winegarner's opinions were untethered to any reliable principles or methods because he had not applied any mathematical formula or other regularly accepted methodology to his analysis. Though appellant is correct in noting that an expert may not offer testimony that amounts to a "`because I think so' or `because I say so'" situation, Giant Food, Inc. v. Booker, 152 Md.App. 166, 188, 831 A.2d 481 (2003), that situation did not occur here. Rather, there is credible evidence suggesting that Mr. Winegarner's testimony was properly predicated upon an "adequate factual basis," id., as described above, which "permit[ted] reasonably accurate conclusions as distinguished from mere conjecture or guess." Id. at 189, 831 A.2d 481. Again, while appellant may disagree with the factual basis for Mr. Winegarner's testimony, that does not render his testimony lacking in reliable principles or methods.
Thus, because our courts have consistently allowed experts to acquire expertise in a variety of ways, and because Mr. Winegarner's opinions were premised upon the requisite factual basis and reliable principles, we conclude that the trial court did not abuse its discretion in allowing him to offer expert testimony regarding the price of silicon powder.
B. "Reasonable Price" Testimony Need Not Be Tied to Time of Delivery
Appellant additionally argues that the trial court erred in denying its motion for judgment because the witnesses' "reasonable price" opinions for the price of silicon powder in October 2005 and 2006 were not tied to the "time for delivery" and therefore ran afoul of § 2-305 of the MD UCC.[17] Appellee counters that this issue is not preserved for appeal because appellant failed to object at the time the testimony was offered or, alternatively, that § 2-305 is not controlling in light of the parties' agreement to agree on 2007 pricing during October 2006.
First, regarding proper objections to the admissibility of expert testimony, we have stated that:
*533 It is clear that the proper way of attacking an allegedly flawed expert opinion is directly by an objection to its admission and not indirectly by a vague and undifferentiated motion that the evidence is not legally sufficient to take the case to the jury, a motion coming perhaps days after the opinion was ruled admissible.
CSX Transp., 159 Md.App. at 178, 858 A.2d 1025 (internal quotations omitted). Moreover, "once an expert opinion has been received in evidence, one may not seek to avoid its impact by making an untimely Rule 5-702 admissibility challenge under the guise of a Rule 2-519 motion for judgment based on the legal insufficiency of the plaintiff's case." Terumo Med. Corp. v. Greenway, 171 Md.App. 617, 630, 911 A.2d 888 (2006).
Here, the record reveals that appellant's only objection to Mr. Winegarner's "reasonable price" opinions concerned his general inability to testify as to price, for reasons previously discussed. Indeed, appellant sought and was granted a continuing objection on this ground during Mr. Winegarner's testimony regarding the reasonable price of powder as of October 2005 and 2006. However, appellant never raised an additional objection on the ground that this testimony was inadmissible as it was not tied to the time for delivery under § 2-305 of the MD UCC. Consequently, this argument is not preserved.
Assuming this argument is preserved, we reject it on the merits. Appellant contends that because the parties never agreed on price, § 2-305(1)(b) requires that the price amount to a reasonable price at the "time for delivery." Therefore, appellant argues, it was impermissible for Mr. Winegarner to "focus[] exclusively on the preceding October in fixing an annual price, and completely ignore[] what the price might be on any date of delivery [in 2007], much less all of them." (Emphasis in original). Similarly, appellant argues that Mr. Winegarner's testimony failed to account for evidence at trial allegedly establishing that the price for silicon powder rose during 2006 and 2007, and could therefore materially differ at the various "times for delivery" in 2007.
However, as is true elsewhere, much of appellant's argument rests on its view of the facts, a view on which Mr. Winegarner was not required to base his testimony. Expert witnesses are free to express opinions on facts in dispute, assuming there is evidence of those facts. Hall v. State, 107 Md.App. 684, 693, 670 A.2d 962 (1996) (". . . judges and lawyers [must] be alert to the distinction between the expert opinion that assumes the truthfulness of disputed testimony, and the expert opinion that asserts that the testimony is true. The former is admissible. The latter is not.") (Emphasis in original). Here, there was evidence of an output contract, and therefore, Mr. Winegarner could express an opinion about the long-term reasonable price of silicon powder, assuming the existence of an output contract. Furthermore, based on the e-mails and other testimony, he could also assume that the contract price for the entire year 2007 was to be determined in October 2006. Consequently, Mr. Winegarner was free to opine that the reasonable price of silicon powder in October 2006 was between $7.00 and $8.00 per kilogram.
Section 2-305 serves as a gap-filler, Havird Oil Co. v. Marathon Oil Co., 149 F.3d 283, 290 (4th Cir.1998), not to trump the existence of an agreement between the parties. Although the parties, in October 2006, failed to agree on a price for 2007 shipments, there was evidence, based on the e-mails, that the parties agreed to determine a singular price point *534 for the powder as of October 2006, to be used for shipments in 2007. Similarly, there was evidence supporting a factual conclusion that a term of the contract was that the price for 2007 would be the same throughout the year. To the extent the parties reached agreement with respect to pricing, i.e., it would be set in October for the following year, that agreement trumps § 2-305. Thus, the jury, having found that the parties formed a contract, was free to accept Mr. Winegarner's reasonable price determination as of October 2006, for all 2007 shipments, in fashioning its damages award.
It must also be noted that the court instructed the jury with respect to the issue of price as of the time of delivery. Additionally, appellant's counsel argued this point to the jury. Evidently, the jury rejected that argument.
For these reasons, the court did not err in denying appellant's motion for judgment on this basis.
C. There Was a Sufficient Factual Basis to Support Jury's Damages Award
Finally, appellant contends that because Mr. Winegarner's opinions were based on an assumed output contract, and because the court's response to the jury "freed" the jury to find a general contract, the jury was ultimately left without any evidence to support an award if they were to find a general contract. Thus, according to appellant, the award "must be vacated."
We note, initially, that in asserting this argument, appellant fails to identify precisely how the court erred. There is no indication in the record that appellant objected to Mr. Winegarner's testimony on this basis, moved for judgment on this basis, or requested post verdict relief on this basis.
Briefly addressing the argument in the abstract, we have already determined that the court did not err in responding to the jury's note. We have also already discussed that the jury was instructed on the general law of contracts, including specific instructions regarding output contracts, if they so found. Furthermore, the record reveals sufficient evidence to support the jury's findings regarding liability and damages. Contrary to appellant's belief, the jury's award was not based on pure speculation, and we find no error in this regard.
JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT.
NOTES
[1] Appellee has filed a cross appeal, challenging the court's dismissal of its negligent misrepresentation claim, the court's refusal to admit certain evidence, and the court's admission of certain testimony by appellant's expert witness. Because the cross appeal was conditional, and we affirm the judgment, there is no need to reach the cross appeal issues.
[2] The original and amended complaints contained other counts, but they are not relevant to the issues before us.
[3] In August 2000, the parties reached an agreement for the 2001 calendar year via faxes and e-mails. In January 2002, appellee, through its Treasurer, Ron Turcot, sent an e-mail to appellant's product manager, Sanjeev Lahoti, advising its intent to place a purchase order for 144 MT of silicon powder for 2002, and seeking a price of $3.25 per kilogram. Lahoti, on behalf of appellant, agreed to the shipment of 144 MT at $3.25 per kilogram, and requested that appellee send the appropriate purchase order.
[4] Appellant originally presented the questions for our review as follows:
1) Whether the trial court abused its discretion when it enabled BP to conceal from the jury BP's changes of position and inconsistent statements by (a) excluding from evidence inconsistent factual assertions in BP's prior complaints; (b) precluding cross-examination of BP Solar's most important witness concerning inconsistent deposition testimony; and (c) in response to a clarifying question from the jury, instructing the jury inconsistently with BP's oft-repeated claim that it was pursuing an output contract.
2) Whether any writing, sufficient under the Statute of Frauds, supported BP's claim to the third year of its alleged three-year contract.
3) Whether there was sufficient evidence to support the jury's damages award, based on expert opinions concerning "reasonable price" that were speculative, at variance with the Maryland Uniform Commercial Code, and premised on a contract theory that the jury was permitted to disregard.
4) Whether the trial court abused its discretion by allowing introduction of certain evidence as "routine practice" under Maryland Rule 5-406, where the "practice" was not relevant to any issue in the case.
[5] Appellant's arguments are limited to the year 2007, presumably because the jury awarded damages for that year only.
[6] In general, Commercial Law Section 2-201(1) of the Maryland Uniform Commercial Code ("MD UCC") requires a writing signed by the party against whom enforcement is sought. Between merchants, the requirement can be satisfied by a writing from the other party to the transaction. See Discussion I.B., infra.
[7] The Official Comments to the MD UCC provide that "[t]he only term which must appear is the quantity term which need not be accurately stated but recovery is limited to the amount stated. The price, time and place of payment or delivery, the general quality of the goods, or any particular warranties may all be omitted." CL § 2-201, cmt. 1.
[8] Rule 5-406 provides that "[e]vidence of the habit of a person or of the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice."
[9] Appellant also alleges that the trial court abused its discretion in permitting appellee to play an excerpt from the deposition of Nabeel Gareeb, appellant's then-CEO, wherein Mr. Gareeb commented on the Lahoti excerpt. Appellant primarily focuses on the Lahoti excerpt, however, in making its argument.
[10] Rule 5-403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ." Notably, appellant does not argue that this evidence was improper routine practice evidence within the meaning of Rule 5-406, and we need not address that issue.
[11] A third amended complaint was filed on November 20, 2008, which primarily served to amend a separate count for promissory estoppel.
[12] Appellant's rationale is that these witnesses testified at trial that they always thought the parties had reached a three-year output contract, even though contemporaneous correspondence allegedly showed otherwise. Therefore, the exclusion of the earlier complaints hindered appellant from further discrediting the witnesses before the jury.
[13] In that regard, Mr. Barron was the only witness who had knowledge of the basic underlying facts, but there is no evidence that he was involved in the drafting of the complaints.
There was, however, a bench conference during appellant's cross-examination of BP Solar CEO Lee Edwards, during which the trial court denied appellant's attempt to introduce a portion of Mr. Edwards's deposition during which he allegedly testified that he was involved in the decision-making process that led to the filing of the original complaint. Thus, ultimately, there was no evidence before the jury that any of the testifying witnesses reviewed the complaints.
[14] As part of its instructions on contract law, the court instructed: "Now you may find that [appellee] and [appellant] entered into a contract that measures the quantity by the output of the seller and requires a purchaser, uh, to purchase all of that, uh, output. A contract for output of the seller does not fail for indefiniteness." This instruction allowed the jury to find that the parties reached an output contract, but did not compel the jury to so find.
[15] According to § 2-305 of the MD UCC, a "reasonable price" will be used where the contract leaves open the price term. As will be discussed, the parties dispute the time for which the reasonable price is to be determined.
[16] Mr. Winegarner opined that these numbers represented reasonable long term contract prices, despite the fact that they were significantly less than the average prices on the spot market, which ranged from $40.00 to $77.92 per kilogram, between late 2005 and late 2006, when the prices would have been determined for 2006 and 2007.
[17] Section 2-305 provides:
Open price term.
(1) The parties if they so intend can conclude a contract for sale even though the price is not settled. In such a case the price is a reasonable price at the time for delivery if
(a) Nothing is said as to price; or
(b) The price is left to be agreed by the parties and they fail to agree; or
(c) The price is to be fixed in terms of some agreed market or other standard as set or recorded by a third person or agency and it is not so set or recorded.
(2) A price to be fixed by the seller or by the buyer means a price for him to fix in good faith.
(3) When a price left to be fixed otherwise than by agreement of the parties fails to be fixed through fault of one party the other may at his option treat the contract as cancelled or himself fix a reasonable price.
(4) Where, however, the parties intend not to be bound unless the price be fixed or agreed and it is not fixed or agreed there is no contract. In such a case the buyer must return any goods already received or if unable so to do must pay their reasonable value at the time of delivery and the seller must return any portion of the price paid on account.
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972 F.2d 129
140 L.R.R.M. (BNA) 3047, 123 Lab.Cas. P 10,343
DALLAS & MAVIS FORWARDING COMPANY, INC., Plaintiff-Appellant,v.GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL UNION NO. 89,Defendant-Appellee.
No. 91-6421.
United States Court of Appeals,Sixth Circuit.
Argued June 18, 1992.Decided Aug. 5, 1992.Rehearing En Banc Denied Sept. 17, 1992.
James U. Smith, III, Smith & Smith, Louisville, Ky., C. John Holmquist, Jr. (argued and briefed), Linda G. Burwell, (briefed), Charfoos, Reiter, Peterson & Holmquist, Birmingham, Mich., for plaintiff-appellant.
Alton D. Priddy (argued and briefed), Hardy, Logan, Priddy & Cotton, Louisville, Ky., for defendant-appellee.
Before: MERRITT, Chief Judge; and KEITH and RYAN, Circuit Judges.
MERRITT, Chief Judge.
1
The majority of an arbitration board determined that the plaintiff violated provisions of a collective bargaining agreement by refusing to merge its seniority list with the list of another employer that laid off workers after a loss of business in the wake of a major contract revision. The plaintiff sought to have the award for the defendant vacated by the District Court. We agree with the court that the arbitration board's award was rationally drawn from the essence of the collective bargaining agreement, and so we affirm the grant of summary judgment to the defendant.
I.
2
Plaintiff Dallas & Mavis [hereinafter "D & M"] delivers trucks and other vehicles from manufacturers to distribution points nationwide and in Canada. Like other employers engaged in the vehicle transshipment industry, D & M entered into a national collective bargaining agreement [hereinafter "Agreement"] with the principal union involved in this industry, the Teamsters, as well as a local supplemental agreement. D & M had an existing contract with the Ford Motor Company at its Louisville, Kentucky Truck Plant [hereinafter "KTP"] for a share of Ford's truck transshipment business from that plant. The defendant, Teamsters Local No. 89, represents the members of KTP's collective bargaining unit in this industry.
3
During the 1980s three companies were engaged by Ford to deliver completed trucks from KTP. These were D & M, which specialized in delivery by the "driveaway" (i.e., the "piggyback" mounting of one tractor onto another, with the lower vehicle as prime mover for both) method of shipment; Allied Systems, Inc. [hereinafter "Allied;" formerly known as Motor Convoy, Inc.], which transported trucks by the "truckaway" (loading onto tractor-driven trailers) method; and Transport Storage, Inc. [hereinafter "Transport"], which shipped trucks solely by railcar. During the early 1980s D & M shipped Ford trucks to the western portions of the United States and Canada. By mid-decade, it sought to expand its market into Transport's own delivery sector in the West and Canada.
4
In 1988 Ford announced that it would open rebidding on its existing KTP transshipment contracts. D & M entered its bid for what was heretofore Transport's rail deliveries, while also placing bids for the truckaway and driveaway methods. Ford awarded D & M a contract for motor deliveries into the Midwest, 11 western states and Canada, while Allied won its bid for preshipment preparations for KTP's trucks. D & M, however, had insufficient facilities in Louisville to cope with its burgeoning program. It thus was forced to look elsewhere for employees to staff the expanded routes. Transport's KTP employees were left jobless because all of its railhead operations there were eliminated in the recontracting process.
5
D & M entered discussions with the defendant about the company's projected staffing needs for the new operations. The plaintiff reasoned that it was obligated under the Agreement to offer the new job vacancies first to the laid-off Transport employees. Only after those positions were filled would D & M then create new positions for 14 Allied workers who had also been laid off in the wake of rebidding. Teamsters Local No. 89 disagreed, and it filed grievances on behalf of only Allied's and Transport's employees with the National Joint Arbitration Committee [hereinafter "Committee"]. These grievances required consideration at two Committee sessions in April and October 1988.
6
The Committee determined at the April meeting that the Agreement's provisions were not fully applicable. Instead of "canceling" Allied as a shipper, Ford's rebidding merely required realignments in Allied's service territories. Nevertheless, the Committee required the 14 laid-off Allied workers to be incorporated into D & M's work force, thus allowing them to "follow the work," i.e., to allow them to transfer freely between employers performing essentially the same tasks. This principle was identified as a relatively common practice in the vehicle transportation industry.
7
This issue arose anew at the Committee's October 1988 meeting, coupled with a related seniority issue. D & M's employees objected that Local 89 had not informed them about the two grievances submitted to the Committee in April, and they contended that this violated their rights to adequate notice. Transport's employees likewise requested a transfer with full seniority rights to Allied. Allied denied these transfers on the grounds that their former employment in the rail yard was not so substantially similar to Allied's as to allow Transport's employees to "follow the work." Based on evidence that Allied was contemplating expansion, the Committee modified its April decision: D & M would no longer be required to provide positions on its seniority list to Allied's 14 employees. Separately, the Committee rebuffed the Transport employees' efforts to "follow the work" to either D & M or to Allied.
8
In October 1989, Ford again solicited bids on the KTP shipping operations as part of a wholesale redistribution of traffic in the eastern, southern and central United States. D & M now placed bids upon the "decking" (preshipment preparations) process, which it won from Allied. D & M also received part of its driveaway bid, while losing its upper Midwest routes to Allied. D & M prepared its new staffing plans in part upon the two 1991 Committee decisions. It anticipated that Allied's employees would not have a right to have their seniority merged with D & M's KTP seniority list. D & M offered the new decking jobs to its own drivers and employees at other facilities, as well to some non-union workers. It also refused to hire any of Allied's laid-off workers.
9
D & M and Allied filed motions to establish seniority rights with the Committee in March 1990. These focused upon Article 5 (concerning the "dovetailing," or merger, of seniority rights) and Article 26 (governing the transfer of seniority rights). The Committee, however, was soon deadlocked on what should be the correct resolution. To break the impasse, the issue was referred by the Committee to a board of three professional FMCS arbitrators--one picked by the union, one by the employer, and a disinterested third arbitrator selected jointly by the other two--under Article 7, § 9.1
10
The arbitrators rendered an opinion and award in December 1990. The majority held that D & M had violated the Agreement in refusing to merge its KTP seniority list with Allied's list of laid-off employees. The board scrutinized Article 5, § 2, which expressed a preference for merger of employee seniority rights under the Agreement,2 and Article 5, § 4(c), which addressed the circumstances under which an employer's business is "canceled" by the shipper and when the canceled employer's workers could then be reassigned to a "remaining" employer.3 In contrast stood Article 5, § 5(a), which required a shipper to cancel its business with an employer and then to transfer part or all of that work to another employer not doing business at the shipper's present location before dovetailing occurred.4 The majority of the board reconciled these distinctions by examining Article 5, § 8,5 stating that the rules suggested in the Agreement were meant only as illustrative guidelines and that the National Arbitration Committees were empowered by the Agreement to determine seniority questions.
11
The two majority arbitrators determined that the facts of the case fit more squarely under the ambit of § 4(c) than under § 5(a) or any other sections. They recognized that two possible interpretations could be accorded to § 4(c): either the subsection was inapplicable because Ford did not "cancel" all of Allied's traffic at KTP, or it was applicable because Allied "retained" some traffic--albeit of a different kind from its past operations--at KTP after Ford's 1990 renegotiations. While either interpretation might be correct, however, the majority interpreted Article 5, § 8 as authorizing them to extend that subsection's application to encompass the change in Allied's operations:
12
[E]ven if the [arbitration board] were to determine that the facts of the present case fell outside the literal meaning of subsection 4(c), it would be proper to extend application of that subsection in accordance with section 8 of Article 5.
13
Arbitration Opinion and Award at 28. The board concluded that if Article 5, § 4(c) established only a guideline, it was "highly doubtful" that the Agreement's drafters would have intended for different results to arise from total versus partial cancellations of an employer's business. This interpretation was reached despite Article 5, § 7(b)'s specific reference to "partial" closings.6 The majority held that D & M had violated the Agreement, and it ordered D & M to draft and implement a seniority list dovetailing the laid-off workers into its work force; to offer jobs to those employees on the dovetailed list commensurate with their seniority; and to make whole Allied's employees who accepted those jobs.
14
The plaintiff sought to have the arbitration award vacated by the Western District of Kentucky under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and jurisdiction was invoked under 28 U.S.C. § 1337. The Magistrate Judge recommended that the defendant's motion for summary judgment be granted. Citing the Supreme Court's Steelworkers Trilogy7 and United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987), the Magistrate concluded that the board was within its authority when it construed the terms of the Agreement, and that the board rendered an award drawn from the Agreement's essence. The District Court accepted the Magistrate's recommendations and entered summary judgment for the defendant.
II.
15
Appellate courts review a grant of summary judgment de novo. See, e.g., International Ass'n of Machinists v. Lourdes Hospital, 958 F.2d 154, 156 (6th Cir.1992); EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). Summary judgment is appropriate only when there is no genuine issue of material fact, and the moving party is therefore entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2551-53, 91 L. Ed. 2d 265 (1986); Fed.R.Civ.P. 56(c).
16
The essential sources for appellate review of an arbitrator's decision are the Supreme Court's Steelworkers Trilogy and its more recent decision affirming those cases in Misco, 484 U.S. at 29, 108 S.Ct. at 364. In Misco, the Court held that the authority possessed by appellate courts in reviewing arbitration awards is strictly limited to determining whether the arbitrator was "arguably construing or applying the contract and acting within the scope of his authority." Id. at 38, 108 S.Ct. at 371.
17
The courts are not authorized to reconsider the merits of an award even though the parties may allege that the award rests on errors of fact or misinterpretation of the contract. "The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards." Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S. Ct. 1358, 1360, 4 L. Ed. 2d 1424 (1960). As long as the arbitrator's award "draws its essence from the collective bargaining agreement," and is not merely "his own brand of industrial justice," the award is legitimate. Id., at 597, 80 S.Ct. at 1361.
18
Misco, 484 U.S. at 36, 108 S.Ct. at 370. See also AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649-50, 106 S. Ct. 1415, 1418-19, 89 L. Ed. 2d 648 (1986); AP Parts Co. v. United Auto. Workers, 923 F.2d 488, 491 (6th Cir.1991); Lattimer-Stevens Co. v. United Steelworkers of America, 913 F.2d 1166, 1168-69 (6th Cir.1990). "When the grievance procedure has been exhausted, the courts have nothing left to do but enforce the award. Courts are bound by the arbitrator's findings of fact and do not function as appellate courts or courts of review, but serve only to enforce the arbitrator's award." IBEW, Local 429 v. Toshiba America, Inc., 879 F.2d 208, 209 (6th Cir.1989).
19
The need for judicial deference to an arbitrator's choice of interpretation was explained by the Supreme Court in Enterprise Wheel & Car, one of the Trilogy cases, as follows:
20
[T]he question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which [sic ] was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.
21
Enterprise Wheel & Car, 363 U.S. at 599, 80 S.Ct. at 1362. Nevertheless, the arbitrator's discretion in interpreting the collective bargaining agreement is also strictly circumscribed:
22
[The arbitrator's] award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.
23
Id. at 597, 80 S. Ct. at 1361. See also IBEW, Local No. 1842 v. Cincinnati Electronics Corp., 808 F.2d 1201, 1203 (6th Cir.1987). An award fails to derive its essence from the agreement when (1) it conflicts with express terms of the agreement; (2) it imposes additional requirements not expressly provided for in the agreement; (3) it is not rationally supported by or derived from the agreement; or (4) it is based on "general considerations of fairness and equity" instead of the exact terms of the agreement. National Gypsum Co. v. United Steelworkers of America, 793 F.2d 759, 766 (6th Cir.1986) (citations omitted). See generally Cincinnati Electronics, 808 F.2d at 1203-04. The issue to be resolved here is whether the arbitration board drew the essence of its award from the collective bargaining agreement. We are satisfied that this was done.
24
The plaintiff contends that the arbitrators ignored the plain language of the Agreement, thereby violating the first factor of National Gypsum. It first points to the board's interpretation of Article 5, § 4(c) and argues that, to reach its conclusion, the majority disregarded § 4(c)'s plain language concerning two or more employers "sharing" traffic from the same shipper. The board, however, considered this in its discussion of the possible interpretations of that subsection. While we may disagree with these interpretations of the subsection, we cannot review them as erroneous interpretations. See AP Parts, 923 F.2d at 491. Thus, this is a question of interpretation left to the arbitrators' legitimate discretion. See, e.g., Enterprise Wheel & Car, 363 U.S. at 597, 80 S. Ct. at 1361. That this authority was within the sound discretion of the board is bolstered in part by the first sentence of Article 5, § 8, which specifies by its terms that the rules contained within that article "are intended solely as general standards." This, however, does not completely resolve the plaintiff's challenge.
25
The plaintiff further contends that the majority of the arbitrators erred in their extensive reliance upon the rest of Article 5, § 8. D & M notes that section's specificity in allowing the Joint Committee to resolve knotty dilemmas of seniority, like this one, by modification or amendment. The plaintiff reasons that the power to amend, modify or add conditions to the Agreement is explicitly reserved only to the National or Area Committees' actions--not to an arbitration board. The plaintiff argues that what the arbitrators did was not to interpret subsection 4(c); rather, they modified its meaning to allow coverage for "partial" cancellations.
26
The board was presented with a challenge. It had to interpret the Agreement in the light of facts that were not explicitly covered under any of the Agreement's sections. There was also a relative dearth of prior Committee interpretation. In its April 1988 decision, the National Committee examined § 4(c)'s predecessor and determined that it was not totally applicable because Allied was not cancelled by Ford but was still used at KTP. The arbitrators recognized, however, the preference for seniority rights as expressed in Article 5, § 2. Like the National Committee, the majority reviewed the various sections of the Agreement and their possible interpretations. They determined that the closest relevant section was Article 5, § 4(c). While relying upon Article 5, § 8 as the basis for not having to choose specifically one of the varying interpretations for § 4(c), the arbitrators adopted their construction of § 8 in part because of the National Committee's own reliance upon that section to resolve the April 1988 dispute. It was to give effect to that prior decision, under even more compelling facts, that the majority "require[d] application" of § 8. The board therefore tailored its award as closely as possible to conform with the language of the Agreement and with prior interpretations of the body that was specifically authorized to modify or adapt the Agreement, the National Committee. A court may disagree with this interpretation, but it cannot dispute that this was but one of several rational interpretations. Accordingly, a court is not authorized to reject this plausible interpretation. See, e.g., American Federation of Television & Radio Artists v. Storer Broadcasting Co., 745 F.2d 392, 398 (6th Cir.1984).
27
Additionally, the fact remains that the very body specifically authorized to modify or amend the Agreement was irreparably deadlocked on the underlying grievance, thereby requiring arbitration under the terms of the collective bargaining agreement. Outside Article 9, § 7, no other portion of the Agreement specifies the role and limits of arbitration. The board therefore determined that its opinions were within its authority to interpret and apply the Agreement. This action was also within the informed judgment of the arbitrators, and it was the remedy for which the parties had specifically bargained. See Enterprise Wheel & Car, 363 U.S. at 597 & 599, 80 S. Ct. at 1361 & 1362. This resolution is a far cry from those cases in which the arbitrator either totally disregarded the plain language of the contract or administered a personal "brand of industrial justice." Cf. Ficks Reed Co. v. Allied Indus. Workers of America, 965 F.2d 123 (6th Cir.1992) (arbitrator ignoring plain language of agreement); Lourdes Hospital, 958 F.2d at 157 (arbitrator essentially devising a new contractual term); AP Parts, 923 F.2d at 491 (arbitrator justifying findings solely in terms of his personal "sense of equity"); Toshiba America, 879 F.2d at 210 (arbitrator simply refusing to apply terms of agreement). See also National Gypsum, 793 F.2d at 766.
28
The arbitration award may indeed create economic disincentives. The plaintiff may well have sound economic reasons why it would prefer to use only its own employees, be they from KTP or outlying operations. It may be dissatisfied with the level of training or expertise of its former competitors' employees. It may also be that the parties simply prefer not to renegotiate the Agreement, from a desire to avoid dog-eat-dog conflicts between the various employers' workers, from general satisfaction with the bulk of the existing provisions, or out of mere avoidance of conflict. A court would be wrong, however, to strike down an arbitration award solely for these economic reasons. The answer to the economic disincentives, from this perspective, is simple: the parties should resolve these matters at the bargaining table, not in a court of law. Such concerns are appropriately left up to employers and unions and to their next round of collective bargaining for resolution.
29
Accordingly, the judgment of the District Court is AFFIRMED.
1
Article 7, § 9 provides that if a dispute becomes deadlocked by the Committee, the Committee shall submit the grievance to a three-member board of arbitration. The language of subsection (b) is particularly pertinent:
The arbitrator shall have the authority to interpret and apply the provisions of this Agreement or Supplements thereto, where appropriate, but shall not have the authority to amend or modify this Agreement or Supplements ... or establish new terms and conditions....
2
That section states in relevant part: "Terminal seniority rights for all employees covered by this Agreement shall prevail, unless the Supplements or other provisions of this Agreement provide specifically to the contrary" (emphasis added)
3
Article 5, § 4(c) states:
Seniority lists are dovetailed ... (c) [w]hen two (2) or more Employers share traffic from the same shipper at the same location, excluding port facilities, and the traffic of one (1) of the Employers is cancelled by the shipper and it is assigned to one (1) of the remaining Employers, whether or not there is a financial transaction of any kind involving the affected Employers....
4
That article provides:
In the event a shipper cancels its business relationship with an Employer at a location, excluding port facilities, and transfers all or part of that business to another Employer which is not servicing that shipper at that location, whether or not there is a financial transaction of any kind involving the affected Employers, both the active and laid-off employees of the cancelled Employer at that terminal and the laid-off employees of the succeeding Employer who choose to accept employment opportunity at the affected location shall be placed in a master dovetailed seniority list in accordance with their company seniority. The succeeding Employer shall afford work opportunities to the employees on that master seniority list in order of their seniority.
5
Article 5, § 8 provides as follows:
The parties acknowledge that the above rules are intended solely as general standards and further agree that many factual situations may be presented to the Committee which necessitate modification or amendment in the application of these rules to specific factual cases.... Accordingly, the Employers and the Union acknowledge that questions involving the accrual, interpretation or application of seniority rights may arise which require different treatment. It is understood that the Employers, the Union and the National or Area Joint Arbitration Committees may mutually agree to such disposition of questions of seniority.... The National and Area Joint Arbitration Committees shall have the authority to determine the establishment and application of seniority in all situations presented to them and the seniority decisions of the Joint Arbitration Committee shall be final and binding....
6
That section states:
When a terminal is closed or partially closed ... a sufficient number of employees necessary to perform the transferred work shall have the right to transfer to the terminal into which the work was transferred, if regular work is available [i.e., follow the work]."
(Emphasis added).
7
United Steelworkers of America v. Enterprise Wheel & Car Co., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960); United Steelworkers of America v. Warrior & Gulf Navig. Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); United Steelworkers of America v. American Mfgr. Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960)
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01-03-2023
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08-23-2011
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https://www.courtlistener.com/api/rest/v3/opinions/2550620/
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80 So.3d 1106 (2012)
J.C.J., Appellant,
v.
FLORIDA DEPARTMENT ON REVENUE, on behalf of O.S.B., Appellee.
No. 2D10-4029.
District Court of Appeal of Florida, Second District.
February 24, 2012.
*1107 Tamara A. Felton of Felton Law Firm, P.A., St. Petersburg, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tampa, for Appellee.
DAVIS, Judge.
J.C.J. challenges the trial court's order denying his petition to disestablish his paternity of the minor child of O.S.B. (the Mother). The trial court denied the petition, concluding that it did not comply with the requirements of section 742.18(1)(b), Florida Statutes (2009). That statute "establishes circumstances under which a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child." § 742.18(1). On appeal, J.C.J. argues that the trial court erred in failing to grant his request for further scientific testing prior to denying the petition. We agree and reverse.
From the limited record before this court,[1] we have determined that the minor child was born on May 22, 2005. J.C.J. signed a voluntary acknowledgement of paternity for the child the next day in accordance with section 382.013, Florida Statutes (2005), and nothing in this record suggests that either he or the Mother ever sought to rescind that acknowledgement. As such, J.C.J. has been established as the legal father of the minor child. See § 742.10(1) ("[I]f an affidavit acknowledging paternity or stipulation of paternity is executed by both parties and filed with the clerk of the court ... such ... affidavit or acknowledgment constitutes the establishment of paternity for purposes of this chapter."); Allison v. Medlock, 983 So.2d 789, 790 (Fla. 4th DCA 2008) ("When the child was born in 2003, Allison and the mother signed a paternity affidavit in accordance with section 382.013, Florida Statutes. Because neither party sought to rescind the acknowledgement of paternity within sixty days, a rebuttable presumption arose that Allison is the father.").
For undisclosed reasons, however, J.C.J. subsequently took the child to DNA Diagnostics Center for DNA testing on November 1, 2007, and the lab submitted its *1108 finding by a report dated November 11, 2007. The report indicated that "the probability of paternity is 0%" and concluded that "[t]he alleged father is excluded as the biological father of the tested child."
On March 5, 2008, the Department of Revenue (DOR) filed, on behalf of the Mother, its petition for support and other relief, alleging that J.C.J. is the "biological and/or legal father" of the minor child and that the child resides with the Mother. The petition further alleged that J.C.J.'s paternity of the child legally had been determined pursuant to chapter 742, Florida Statutes, and that the child was in "the care and actual custody of the Custodial Parent," who is the mother of the child.
J.C.J. initially filed a one-sentence pro se answer denying that he was the biological father of the child. He then retained counsel, who filed an answer and counterpetition to disestablish paternity on March 27, 2009. The counterpetition alleged that J.C.J. had newly discovered evidence which he received after he signed the acknowledgement of paternity and which proved that he was not the minor child's biological father. J.C.J. acknowledged that although the lab report might not be admissible as evidence at trial,[2] it does serve as the newly discovered evidence that would support the filing of the petition to disestablish paternity. J.C.J. then requested that the court order further scientific testing to determine the minor child's paternity. The answer and counterpetition both were filed under oath by J.C.J.
The Mother failed to respond to the counterpetition, and the clerk entered a default against her on June 2, 2009. DOR filed its answer on behalf of the Mother, basically alleging that it was without knowledge of the facts alleged in the counterpetition.
A hearing was held on J.C.J.'s counterpetition to disestablish paternity on July 16, 2009. The trial court found that J.C.J. "is deemed to be the legal father of the subject child, as a result of [the] voluntary acknowledgement" he signed the day after the child was born. The trial court's order acknowledged that the genetic testing provided by J.C.J. did show that he was not the minor child's biological father. However, the trial court concluded that because the test results, which were admitted into evidence at the hearing, had not been obtained within ninety days prior to the filing of the counterpetition, J.C.J. failed to comply with the requirements of section 742.18(1)(b). The court thus further concluded that it was required by subsection (4) of the statute to deny the petition even though the genetic testing conclusively determined that J.C.J. was not the minor child's biological father and a default had been entered against the Mother individually. The trial court specifically stated its belief that the statute did not provide any discretion in the matter because J.C.J. failed "to meet the strict requirements of the subject statute despite the [legislature's] obvious intent to allow disestablishment of paternity under certain circumstances."
We disagree with the trial court's conclusion. Section 742.18(1)(b) provides that the father's petition to disestablish paternity must include "[t]he results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition" or "an affidavit executed by the petitioner stating that he did not have access to the child to have scientific testing performed *1109 prior to the filing of the petition." This section thus sets forth what is required to be included in the petition in order for it to sufficiently state a cause of action. Subsections (2) and (3) describe the factual findings that the trial court must make to grant the petition. Section 742.18(4) requires that the petition be denied if the petitioner "fails to make the requisite showing required by this section." In other words, subsection (4) requires the denial of the petition if the petitioner fails to state a cause of action under subsection (1)the only subsection of the statute that sets forth what the petitioner is required to do under the statute.[3]
J.C.J., however, did not fail to state a cause of action under subsection (1). By his pleadings, he swore under oath that he did not have access to the child to have further testing performed, and he requested that the trial court thus order such testing. See § 742.18(1)(b) ("A male who suspects he is not the father but does not have access to the child to have scientific testing performed may file a petition requesting the court to order the child to be tested.").
Although the statute uses the word "affidavit," we conclude that the pleadings filed in the case provide the functional equivalent of an affidavit. The petition filed by DOR on behalf of the Mother alleged that she is the custodial parent of the minor child and that the child is in "the care and actual custody of the Custodial Parent, and they reside together." J.C.J.'s answer admitted this allegation, and that answer was filed under oath. Furthermore, by the default entered against the Mother, she in effect consented to each of the well-pled allegations of fact. See Donohue v. Brightman, 939 So.2d 1162, 1164 (Fla. 4th DCA 2006) ("When a default is entered, the defaulting party admits all well-pled factual allegations of the complaint."). Taking all of this together, an additional affidavit would not provide any further proof or notice, and accepting these pleadings as the equivalent of the statutorily described affidavit does not in any way prejudice the Mother, nor does it impact the effectiveness or intent of the statute.
Accordingly, we conclude that the trial court erred in denying the petition without requiring the further testing as requested by the pleadings. Upon remand, the trial court should order the additional testing of the child and father and then proceed to consider the merits of the evidence presented in support of J.C.J.'s counterpetition.
We therefore reverse the denial of J.C.J.'s petition to disestablish paternity and remand for further proceedings.
Reversed and remanded.
NORTHCUTT and BLACK, JJ., Concur.
NOTES
[1] Our record does not include a transcript of the hearing at which the trial court made its ruling. The order states that the parties stipulated to the order serving as a statement of facts presented at the hearing for the purposes of appellate review.
[2] This seems to suggest that J.C.J. recognized that the statute requires the lab results to have been obtained within ninety days of the filing of the petition for them to be evidence sufficient to disestablish paternity. See § 742.18(1)(b), Fla. Stat. (2009).
[3] The failure to file a petition that sufficiently states a cause of action actually should trigger a dismissal of the petition, not a denial on the merits. However, such a request was not made in this case, and J.C.J. does not argue on appeal that his counterpetition should have been dismissed rather than denied.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2242234/
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262 Cal.App.2d 367 (1968)
THE PEOPLE ex rel. DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant,
v.
INVESTORS DIVERSIFIED SERVICES, INC., Defendant and Respondent.
Civ. No. 31207.
California Court of Appeals. Second Dist., Div. Four.
May 22, 1968.
Harry S. Fenton, R. B. Pegram, Joseph A. Montoya, Richard L. Franck and Elbert E. Hensley for Plaintiff and Appellant.
Richards, Watson & Hemmerling and Gilbert Dreyfuss for Defendant and Respondent.
FILES, P. J.
This is an action in eminent domain brought by plaintiff to acquire a 10- foot-wide strip from the frontage of defendant's property 408.51 feet in length for the widening of Devonshire Street. There was a pretrial hearing at which the court was called upon to decide certain questions of law. At that hearing it was represented to the court that the property was zoned A1, but that the highest and best use of the property would be for residential purposes, which would require a change of zone; and that under Los Angeles Municipal Code sections 12.32 and 12.37, an applicant for a change of zone of this property might be required to dedicate a 20-foot strip for the widening of the street. Such a dedication would include the identical land condemned in this action. At the pretrial hearing plaintiff advised the court that it *369 expected to prove at the trial that the owner had made an application for a change of zone, and that other properties in the area which had obtained zone changes had been required to dedicate land for the widening of this street as a condition of the zone change; and that in the opinion of an appraiser a reasonable purchaser would take that into consideration if he were to purchase defendant's property.
The court then made an order which includes this:
"It Is Ordered, Adjudged And Decreed, in valuing the defendant's property, the expert valuation witnesses may not consider the fact that, in order to put the property to its highest and best use by obtaining a zone change, defendant might be required to dedicate the identical parcel of land being condemned in this action, and may not value said parcel differently from the rest of the larger parcel on that account."
"It Is Further Ordered, Adjudged And Decreed, that if the expert valuation witnesses find that there is a reasonable probability of a change of zone, they shall value the parcel being taken in the same manner as the balance of defendant's property, at least to the extent of not allowing for any reduction in the value of the property taken on account of any possible required dedication." [fn. 1]
Following that order, on October 11, 1965, the parties entered into a written stipulation which declared that (1) had the matter been tried, plaintiff would have made an offer of proof that a qualified valuation witness would have valued the property at $100 but for the pretrial order above quoted, and (2) that giving effect to the pretrial ruling, the just compensation is $3,000. The stipulation concluded with the statement that the parties reserved the right to appeal from the judgment based upon that pretrial order. That stipulation was filed January 12, 1966.
On January 14, 1966, the parties filed a second stipulation which provided for the entry of a judgment, a copy of which was attached to that stipulation. The proposed judgment, attached to the January 14 stipulation, quotes in full the October 11, 1965, stipulation, and provides for compensation to defendant in the amount of $3,000. On January 17, 1966, there was entered a judgment in the exact form provided in the January 14 stipulation. *370
Plaintiff is appealing from that judgment.
[1] Despite the obfuscatory draftsmanship, whereby a stipulation is incorporated within a judgment within a stipulation, the January 14 document is not a consent to the judgment which was entered. It is clear that the parties did not mislead each other or the trial court. The effect of the stipulation was simply to admit that under the theory of valuation adopted by the trial court, the damages were $3,000.plaintiff at all times contended in the trial court, as it does here, that the trial court made an error of law in adopting that theory. In stipulating, plaintiff simply acknowledged that no other contested issue remained undecided. The right to carry on the controversy in a reviewing court was preserved. Defendant does not contend otherwise. The sole issue argued in the briefs is whether the trial court erred in deciding that the appraiser could not consider the possibility that the defendant might be required to dedicate the property to the city.
The portions of the Los Angeles Municipal Code referred to in the pretrial proceedings are a part of the comprehensive zoning plan of the City of Los Angeles. Section 12.32 provides in part that in the consideration of an application for a change of zone, it may be required that provision be made for adequate streets. Section 12.37 provides in effect that, with certain exceptions, no building or structure may be erected on any lot in an R3 or less restricted zone, if such lot abuts on a major highway, unless the half of the highway located adjacent to such lot has been dedicated or improved to its master plan width. The section also prescribes procedures by which a variance from its requirements may be procured.
A dedication is not an inevitable result of a request for a change of zone or the issuance of a building permit, because the Municipal Code allows for an exercise of discretion by city authorities.
In some instances the practical effect of these provisions in the zoning laws is to compel a property owner to dedicate a portion of his property to the city without receiving the compensation which would be required if the property had been taken by a condemnation. The statutes and ordinances which bring this about have been held constitutional under the police power. (Ayres v. City Council of Los Angeles, 34 Cal.2d 31 [207 P.2d 1, 11 A.L.R.2d 503]; Sommers v. City of Los Angeles, 254 Cal.App.2d 605 [62 Cal.Rptr. 523]; Southern *371 Pac. Co. v. City of Los Angeles, 242 Cal.App.2d 38 [51 Cal.Rptr. 197].) The latter two cases deal specifically with Los Angeles Municipal Code section 12.37.
In the Sommers case at page 613 the court said: "It should here be noted that the provisions of section 12.37 do not require the dedication or improvement of private property; they do under the police power sharply limit the use of private property adjacent to important city highways as part of the comprehensive zoning plan until such time as the development of the adjacent half of such highways is completed or reasonably assured, by whatever means. No doubt the practical effect of these provisions, in many instances, is to procure the dedication of the highway rights-of-way in order to gain the immediate right to use the remainder of the land to its maximum economic use. These dedications which are made under the police power pursuant to the provisions of section 12.37 are of course in sharp contrast to acquisitions under eminent domain where property is taken and paid for or purchased under threat of such proceedings."
[2a] In the case at bench the pretrial order contains some so- called "findings of fact" which include this statement:
"Dedication of defendant's property for the widening of Devonshire Boulevard [sic] to the width and standards set forth in the Los Angeles Municipal Code and in the Master Plan of Highways and Freeways, adopted by the City Planning Commission of the City of Los Angeles, would not favorably affect or benefit in any way the suitability of defendant's land for any residential uses, and would not be reasonably required by, or related to, planning or traffic needs resulting from the use of the property for residential purposes. Similarly, such dedication would not favorably affect or benefit in any way the suitability of any part of defendant's land for the construction of any residential building or improvement, and would not be reasonably required by, or related to, planning or traffic needs resulting from such construction."
There was nothing before the trial court to provide a basis for any such conclusion. The only evidence then before the court consisted of copies of the zoning ordinances.plaintiff was offering to show that there was such a high probability of a dedication that in the appraiser's opinion a reasonable purchaser would take that into consideration. The expectation of *372 course is that the city authorities would act reasonably and within the limitations of the law.
In the case at bench the plaintiff is not seeking to force any dedication under the police power. This case involves a taking under the power of eminent domain, subject to the obligation on the part of the plaintiff to pay just compensation for what is taken (Cal. Const., art. I, 14.) It must be noted that the issue brought here is a very narrow one. This court is not required to consider what is just compensation for the subject property, nor how that compensation is to be measured except in one respect, that is, whether the appraisers may consider at all the possible effect of sections 12.32 and 12.37 on the value of the property as of the date of valuation. It must be noted further that it is not for this court to consider whether the city would have compelled a dedication of the subject property (but for the plaintiff's taking) or whether the city could reasonably and lawfully have compelled it. The parties have bypassed any such issue by their stipulation that the plaintiff would have offered evidence concerning the probability of such a dedication, and the trial court's ruling that no such evidence could be considered.
[3] In appraising the market value of a parcel of land, as a basis for measuring the constitutionally required "just compensation," it is necessary to consider the existence of any zoning law which depresses value by limiting the use to which the property may be put. But if there is a reasonable probability that in the near future the zoning will change, then the effect of that probability upon the minds of purchasers generally may be taken into consideration. (Long Beach City High School Dist. v. Stewart, 30 Cal.2d 763, 768 [185 P.2d 585, 173 A.L.R. 249].)
[2b] The Los Angeles zoning ordinance may have a double effect upon plaintiff's acreage which fronts on Devonshire Street. If there is a reasonable probability that its zoning may be changed in the near future from agricultural to residential, the value of the tract as a whole may be enhanced thereby. But if the city will condition any such change upon a dedication of the first 20 feet along the highway, that 20-foot strip will never become residential property at all. To value that 20-foot strip as potential residential property would be contrary to the assumed facts, for under the hypothesis stated the 20-foot strip would not become available for residential use. It *373 was therefore error for the trial court to require the appraiser to consider the effect of a change of zoning upon the rear portion of the tract, and to assume, contrary to fact, that the effect upon the strip along the highway would be the same.
This decision is not inconsistent with Evidence Code section 822, which lists certain matters upon which opinions may not be based. One such forbidden matter is "(e) The influence upon the value of the property or property interest being valued of any noncompensable items of value, damage, or injury." The matter here considered is not such an item. Here the matters considered are (a) the location of the property taken, and (b) the effect of the zoning ordinance. Those factors, considered together, may be found to minimize the probability that the subject property can ever be used for residential purposes.
The three arguments offered by defendant in support of the trial court's ruling must fail in the light of the foregoing analysis.
First, defendant argues that the provisions of the Los Angeles Municipal Code "have no application to this proceeding." That is literally true, but that code does govern the zoning of the defendant's property, which is a factor in appraising its value.
Second, defendant says that "restrictions on the use of property imposed by government authorities to depress the value of property preliminary to its acquisition for public purposes must be disregarded in any eminent domain proceeding." The case cited for that proposition is Kissinger v. City of Los Angeles, 161 Cal.App.2d 454 [327 P.2d 10], an action for declaratory relief. There the court held unconstitutional an emergency ordinance by which the city had attempted to rezone plaintiffs' property from R3 to the more restrictive R1 classification, for the purpose of depressing its value in anticipation of its condemnation for airport purposes. No such misuse of the police power appears in the record upon which the instant case is presented.
Defendant also cites People ex rel. Dept. of Public Works v. Silveira, 236 Cal.App.2d 604 [46 Cal.Rptr. 260]. In that case the highway department took a strip of defendants' ranch, along a highway, and also took defendants' right of access to the highway. Before the taking, defendants had the right of access to the highway at four specified points, where streets could have been built to serve a projected residential subdivision *374 on the ranch. Defendants' valuation witnesses took into consideration the availability of this access. The plaintiff pointed out that Streets and Highways Code section 100.2 provides that no street shall be opened into a freeway unless the highway commission consents, and argued that since the commission retained that power the access was speculative and therefore not worth considering. The trial court instructed the jury that the defendants had a right of access at four openings, which could have been used in connection with any lawful use of the land. In affirming the judgment, the appellate court said (at p. 614): "we think that defendants could reasonably expect that any necessary consent of the California Highway Commission to the connection of a public road or street with the freeway at the particular opening would in all probability be obtainable and that considered in its totality, defendants' theory of valuation as to the uses to which the land might have been developed was reasonably probable and not entirely remote or speculative."
In effect, the appellate court refused to assume that plaintiff's property rights could have been destroyed by an arbitrary exercise of a regulatory power possessed by a governmental body.
The situation presented by the instant record does not include any assumption that the city's zoning power will be exercised arbitrarily, or even to defendant's detriment. Rather the probability indicated in the offer of proof is that the city would consent to a change of zoning which would greatly increase the value of defendant's total property, even though defendant might be required to dedicate the subject property at the same time.
Third, defendant argues that "The subject parcel could not have a value per square foot lower than the value of the remainder of the larger parcel since it was not lower in physical quality, and the dedication thereof was not physically necessary for the development of the larger parcel."
Defendant's emphasis on "physical quality" is erroneous. The subject property is different in value from the remainder of the acreage because of its location and because the existing zoning law affects it differently. The fundamental error in defendant's position is its insistence that the subject property should be valued as residential, in disregard of a zoning law which makes it highly improbable that this strip could ever become available for such use. *375
Defendant calls attention to two appellate decisions handed down subsequent to the judgment appealed from, but neither one furnishes any support for the ruling of the trial court. In County of Santa Clara v. Curtner, 245 Cal.App.2d 730 [54 Cal.Rptr. 257], the condemnation of a portion of plaintiff's property for highway purposes cut off part of the defendants' access, leaving defendants with a parcel which could not be developed to its highest and best use unless the defendants dedicated certain property for street widening in accordance with the city master plan of zoning. The court held it was error to include in the severance damages the cost of meeting the requirements of the city zoning plan. The opinion states (at p. 749): "It is concluded, in the light of the principles set forth above, that condemnees were only entitled to severance damages from the county to the extent that the fair market value of their property was depreciated by the loss of access, and that insofar as the city's plan caused further depreciation of that market value the condemnees should be left to recover the excess from the city if and when the area within the plan lines is taken for public streets. Or if they elect to dedicate, and, if necessary, improve the streets in return for whatever advantages the city may offer toward the development of the property, they should not charge the county for the additional expense. Such a result would subsidize the property owner's additional advantages at the expense of the county."
The other case is People ex rel. Dept. of Public Works v. Curtis, 255 Cal.App.2d 378 [63 Cal.Rptr. 138], which also involves severance damages. The trial court refused to allow the appraisers or the jury to consider, as an element affecting severance damage, evidence that the city would probably require as a condition of any permit to develop the property the dedication of additional land necessary to widen the 40-foot strip being taken by the state to a width of 80 feet. In affirming, the appellate court said (at p. 384): "If the city of West Covina should decide to compel dedication for the purpose of widening Center Street, appellants' property will not be thereby taken or damaged within the purview of the constitutional rule requiring payment of compensation. To the extent that the widening of Center Street is required by the proposed development of the property, the property will be benefited thereby and not damaged. To the extent that the widening is made necessary by present and future traffic conditions in the neighborhood, any damage caused thereby is *376 noncompensable because it results from a risk shared by all property owners."
The cases which have upheld the constitutionality of the Los Angeles zoning ordinance recognize that forced dedication is a concomitant to the development of a larger parcel, ordinarily resulting in a net economic gain to the owner and an increased traffic burden on the neighborhood, for which the owner should pay something. Thus placing a property owner in a position in which he may be required to make such a dedication at some future time should not be expected to reduce the value of his property as a whole. The Curtis and Curtner decisions' realistic view of the effect of zoning requirements upon undeveloped property are not authority for defendant's argument that such laws are irrelevant to appraisals made for eminent domain proceedings.
The property owners in Curtis and Curtner wanted the court to look only at the burdens and disregard the economic benefits of the prospective development of their properties. The property owner here wants the court to value its property as though the benefits of a zone change could be had without the burdens. Here again the total effect of the local zoning laws must be considered. If an appraiser finds that by reason of such a law the land probably will never be available for residential use, he should take that into consideration in forming his opinion of value.
The judgment is reversed.
Jefferson, J., concurred.
BISHOP, J. pro tem. [fn. *]
I dissent. "It is, of course, an elementary rule of appellate procedure that a judgment or order will not be disturbed on an appeal prosecuted by a party who consented to it." So stated the Court of Appeal in Atchison, T. & S.F. Ry. Co. v. Hildebrand (1965) 238 Cal.App.2d 859, 861 [48 Cal.Rptr. 339, 341], as it dismissed the appeal citing six of the many cases that it could have selected, beginning as far back as Imley v. Beard (1856) 6 Cal. 666. So far as I am aware, given the premise "who consented to it," no exception has been made in a "hard case."
It seems clear to me that our appealing plaintiff "consented" to the judgment from which it appealed. The judgment's opening words were: "It appearing to the Court that *377 plaintiff above-named and defendant Investors Diversified Services, Inc., a corporation, ... have stipulated to judgment in condemnation herein between said parties with respect to the real property ... and other than the Findings of Fact and Conclusions of Law dated July 1, 1965, on file herein, have waived further Findings of Fact, Conclusions of Law. ..."
There were two stipulations in the files at the time the judgment was entered. Whatever the effect of the first stipulation, the second cannot be misunderstood. It was executed January 6, 1966, and provides, without uncertainty or equivocation, "that judgment in Condemnation ... may be entered in the sum and containing the terms and conditions of the attached proposed judgment, marked 'Exhibit A' and by this reference made a part of this stipulation. ..." The judgment entered January 17, 1966, from which plaintiff's appeal was taken, is word for word, Exhibit A, which the plaintiff, by the same counsel that executed his notice of appeal, had consented the judgment was to be. The January 6 stipulation was somewhat lengthy, but it contained no weasel words, nothing that can be construed as a condition upon the consent given that Exhibit A may be the judgment. It became the judgment.plaintiff may not appeal from it. I would dismiss its appeal.
NOTES
[fn. 1] 1. This order is neither a judgment nor a decree. (See Code Civ. Proc., 577, 1064.) The misuse of the words "adjudged and decreed" here is harmless, as no one has been misled by it.
[fn. *] *. Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2550673/
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83 So. 3d 723 (2012)
MANSURI-MASON
v.
STATE.
No. 2D09-3449.
District Court of Appeal of Florida, Second District.
March 16, 2012.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2550752/
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124 P.3d 324 (2005)
130 Wash.App. 600
CITY OF DES MOINES, a Municipal Corporation, Appellant,
v.
GRAY BUSINESSES, LLC, a Washington Limited Liability Company, Respondent.
No. 54683-0-I.
Court of Appeals of Washington, Division 1.
December 5, 2005.
Reconsideration Denied January 24, 2006.
*326 Michael C. Walter, Jeremy W. Culumber, Keating Bucklin & McCormack, Inc., P.S., Seattle, WA, Richard S. Brown, Des Moines City Attorney's Office, Des Moines, WA, for Appellant.
Patrick J. Schneider, Susan E. Drummond, Foster Pepper & Shefelman PLLC, Seattle, WA, for Respondent.
AGID, J.
¶ 1 Gray Businesses, L.L.C. (Gray) has owned the Pine Terrace Trailer Village (Pine Terrace) in Des Moines for over 30 years. Pine Terrace operated as a legal nonconforming use for most of that time. On February 10, 2000, the Community Development Director for the City of Des Moines (City) sent a letter notifying Gray that it could no longer fill vacant mobile home spaces at Pine Terrace because the City had discovered that Gray never submitted the site plan required by a 1992 ordinance (site plan regulation). Gray eventually filed a regulatory takings claim, alleging that the City's action terminated its nonconforming use, which in turn denied Gray its fundamental right to lease its land. The parties filed cross-motions for summary judgment on the taking issue, and the King County Superior Court granted Gray's motion. The court then awarded Gray the $295,000 damages it requested as well as almost $70,000 in attorney fees. The City appeals the summary judgment ruling, the calculation and award of damages, and the attorney fee award.
¶ 2 Because the site plan regulation was a valid exercise of the City's police power, and the City's application of the site plan regulation to Pine Terrace did not destroy or derogate a fundamental attribute of Gray's ownership, there was no regulatory taking. The trial court should have granted the City's summary judgment motion, so we reverse and remand for entry of judgment for the City.
FACTS
¶ 3 Pine Terrace is a mobile home park that has been in its current location on Pacific Highway South in Des Moines since before 1960 when the area was in unincorporated King County. In 1973, Gray purchased Pine Terrace and continued operating it as a mobile home park. In 1974, the City of Des Moines annexed the area. In 1986, Des Moines established a "Highway Commercial Zone" around Pacific Highway South that included Pine Terrace. Mobile home parks are not a permitted use in the zone, but the City allowed Gray to continue operating as a legal nonconforming use.[1]
¶ 4 On May 7, 1992, the City adopted Ordinance No. 938 amending various building and construction codes. Section 154 of the ordinance required preexisting mobile home parks to submit a site plan as a prerequisite for obtaining or renewing a City business license.[2] Section 155 stated that all preexisting mobile home parks that were in compliance with City ordinances at the time they were established
shall be legal, nonconforming uses and shall be entitled to the number of mobile homes which was permitted by the applicable ordinance in effect at the time the mobile home park was established; provided, however, that no increase in density or change in the location of any mobile home shall be allowed unless all the provisions of this Chapter are met.
¶ 5 On September 24, 1992, the City passed Ordinance No. 978, amending section 155. It provided that all preexisting mobile home parks in compliance with codes at the time of their establishment
shall be legal, nonconforming uses and are entitled to the number of mobile homes which was permitted by the applicable ordinance in effect at the time the mobile home park was established, the number of individual spaces which are provided for placement of a mobile home for dwelling unit purposes existing on July 1, 1992, and the privilege of locating in such spaces *327 mobile homes of a size suitable to the dimensions of the individual spaces which are provided for mobile home placement; provided:
A. The owner of the mobile home park shall provide the city of Des Moines planning department within ninety days of the effective date of this ordinance a plan or schematic of the mobile home park drawn to scale, showing the location and dimension of each space for the placement of mobile homes,
B. All other provisions of this Mobile Home Park Regulation Code shall be applicable, and
C. No increase in density and no increase in the number of mobile homes are allowed unless all of the provisions of this chapter are met.
Ordinance Nos. 938 and 978 were published as required by law and codified in the Des Moines Municipal Code as DMMC 14.48. Section 154 is now codified as 14.48.270 and section 155 is 14.48.280.[3] Although Gray never submitted a site plan, the City continued to renew its business license and issue "move-on" permits for replacement mobile homes at Pine Terrace.[4]
¶ 6 In April 1999, the City established a six-month moratorium on land use permits in the new "Pacific Ridge" zone, which included Pine Terrace. In early 2000, City staff asked whether the permit moratorium applied to move-on permits for mobile homes. The Community Development Director, Judith Kilgore, and the City Attorney, Gary McLean, concluded that the moratorium did apply to move-on permits. They also discovered that Gray had never submitted the required site plan and the City had been improperly renewing its business license and approving move-on permits since 1992. On February 10, 2000, Kilgore wrote Gray a letter about the problem:
More importantly, we regret to inform you that your Mobile Home Park does not appear to be a permitted use under the zoning and building codes of the City of Des Moines. This is not in any way related to the moratorium. Instead, our records indicate that your Mobile Home Park never satisfied specific conditions which could have qualified the park as a "legal, nonconforming use", generally allowing the park to maintain the number of mobile homes on the site as of July 1, 1992. These conditions were established in Ordinance Nos. 938 and 978, adopted in 1992 and now codified as DMMC 14.48.280. Specifically, our department records do not show that you or any previous owner of the Mobile Home Park ever filed a plan or schematic drawing of the park with the Community Development Department at any point before the deadline for qualifying as a legal, nonconforming use. That date was December 28, 1992. . . .
. . . .
Without affirmative proof that you or a previous owner satisfied the filing requirement found in DMMC 14.48.280, no additional mobile homes can be located in your mobile home park. Additionally, no mobile homes will be permitted to come onto the site to replace any preexisting mobile homes that might be moved away.
¶ 7 In March or April of 2000, Gordon Gray and his attorney met with Kilgore, McLean, and City Planner Corbitt Loch. Kilgore and McLean stood by the statements in the letter. Over the next two years, Gray attempted to reach a resolution with the City about the continuing use of Pine Terrace while unsuccessfully marketing the property. On August 9, 2002, in a matter unrelated to the site plan regulation, the City filed an eminent domain petition seeking to condemn a 7-foot-wide strip of land running along Pine Terrace as part of the Pacific Highway South Improvement Project. Gray filed a counterclaim alleging a regulatory taking of its property from the time of the February 10, 2000 letter from Kilgore.
*328 ¶ 8 On August 26, 2003, the City moved for summary judgment on Gray's regulatory taking counterclaim. On October 6, Gray cross-moved for summary judgment on the same issue. On December 9, the trial judge issued a letter ruling granting Gray's summary judgment motion. The parties settled the eminent domain valuation, so the only issue left for trial was the amount of damages for the regulatory taking. Gray hired a mobile home park appraiser who calculated the damages from the taking. Based on vacant park spaces, he testified Gray's damages were $295,000. The trial court awarded Gray that amount. After trial, Gray moved for attorney fees under RCW 8.25.075 and, over the City's objections, the trial court awarded the full amount Gray requested: $69,285.71.
DISCUSSION
¶ 9 This case is before us on summary judgment, presenting only questions of law. Our review is de novo.[5] Gray alleges a regulatory taking, arguing that the City's application of its site plan regulation to Pine Terrace terminated its nonconforming right to lease mobile home spaces to new tenants, thereby destroying its right to lease property a fundamental attribute of property ownership. It contends that because the City destroyed a fundamental attribute of ownership, under Manufactured Housing Communities of Washington v. State,[6] it effected a per se taking and no further analysis is required. The City argues that it did not deny Gray a fundamental attribute of property ownership. In the alternative, it asserts that it was properly exercising its police power, so the court should have done a full regulatory taking analysis under which the City prevails as a matter of law. We agree with the City. Gray and the trial court mischaracterized the City's application of the site plan regulation to Pine Terrace, analyzing it as if it were an exercise of eminent domain rather than of the police power. We recognize that the City's actions caused Gray significant hardship. We have not gone into the history of the conflict between the City and Gray because it is not relevant to the regulatory taking issue. But while Gray may have claims under theories not before us, such as procedural and substantive due process or tortious interference, its claim here does not qualify as a taking under Washington law.[7]
¶ 10 The threshold question in any taking claim is whether the government action is an exercise of its eminent domain power or its police power. The power of eminent domain allows the City to take real property for public use, provided it justly compensates the owner.[8] The police power allows the City "to regulate for the health, safety, morals, and general welfare, and the burdens imposed incidental to such regulations are not takings unless the burdens manifest in certain, enumerated ways."[9]
Police power and the power of eminent domain are essential and distinct powers of government. Courts have long looked behind labels to determine whether a particular exercise of power was properly characterized as police power or eminent domain. But clearly, not every government action that takes, damages, or destroys property is a taking. "Eminent domain takes private property for a public use, while the police power regulates its use and enjoyment, or if it takes or damages it, it is not a taking or damaging for the public *329 use, but to conserve the safety, morals, health and general welfare of the public."[[10]]
¶ 11 When an alleged taking results from an exercise of eminent domain, usually because the municipality physically occupies the property, the only question is whether a public entity took private property for a public use. If it did, the analysis ends there, and the public entity must pay compensation.[11] But when a property owner alleges a taking based on an exercise of the police power, we must determine whether the regulation "goes too far" and thus requires compensation.[12] A regulation goes too far when it "becomes so onerous that it has the same effect as an appropriation of the property through eminent domain or physical possession."[13] In an "as applied" challenge, which Gray alleges here, "the court must engage in `ad hoc, factual inquires' into the particular economic impact of the regulation on specific property under the case's unique circumstances."[14]
¶ 12 Gray relies heavily on the Supreme Court's opinion in Manufactured Housing. There, a state statute gave mobile home park tenants a right of first refusal to buy the park where they lived.[15] A group of park owners challenged the statute on its face, arguing it was an unconstitutional taking. The Washington Supreme Court held that "the power to grant a right of first refusal is part and parcel of the power to dispose of property."[16] It went on to conclude that the statute fell within the rule that a taking occurs "where a regulation deprives the owner of a fundamental attribute of property ownership."[17] It is significant to our analysis here that the Manufactured Housing court was persuaded that there was a taking because the private property right of first refusal was transferred to a private party by statute for a public purpose.[18] The court noted the differences between an exercise of the police power and an exercise of eminent domain:
"When restrictions upon the ownership of private property fall into the category of `proper exercise of the police power,' they, validly, may be imposed without payment of compensation. The difficulty arises in deciding whether a restriction is an exercise of the police power or an exercise of the eminent domain power. When private property rights are actually destroyed through the governmental action, then police power rules are usually applicable. But, when private property rights are taken from the individual and are conferred upon the public for public use, eminent domain principles are applicable."[[19]]
The court concluded that the actual effect of the statute was "more closely akin to the exercise of eminent domain, and not the police power, because the property right is not only taken, but it is statutorily transferred to a private party for an alleged public use."[20]
¶ 13 Instead of making a facial challenge like the park owners in Manufactured Housing, Gray challenges only the City's application of the site plan regulation to Pine Terrace. Gray does not dispute that the regulation itself was a valid exercise of the City's police power.[21] Kilgore's letter *330 notified Gray that as a consequence of its noncompliance with the site plan regulation, no new mobile home tenants would be allowed to move onto the property. This effectively terminated Gray's ability to lease vacant spaces on his property for mobile home use. But, unlike the statute at issue in Manufactured Housing, the City did not confer Gray's private property rights to anyone, and certainly not "to a private party for an alleged public use."[22] The analysis in Manufactured Housing does not apply to the City's actions in this case.
¶ 14 Thus, we must analyze this case as a challenge to the City's exercise of the police power. The City's application of the regulation to Gray's property does not require compensation unless it (1) actually impacted Gray's property rights and (2) went "too far" in doing so.[23] When the impact of a regulation is at issue, the analysis does not end after answering the first inquiry in the affirmative. We must also determine whether the City's application of the site plan regulation to Pine Terrace went too far and thus was a compensable taking.
I. Regulatory Taking
¶ 15 Guimont v. Clarke,[24] which incorporated the nuances of Lucas v. South Carolina Coastal Council[25] into Washington's Presbytery[26] approach, provides the analytical framework for a regulatory taking claim in Washington. First, the court asks whether the regulation destroys or derogates a fundamental attribute of property ownership, including the right to possess, to exclude others, to dispose of property, or to make some economically viable use of the property.[27] If so, there is a per se taking. Similarly, there is a per se taking if the plaintiff proves a "physical invasion" or "total taking"[28] of its property. In either case, just compensation is required.[29] If a property owner alleges less than a "physical invasion" or "total taking," and "a fundamental attribute of ownership is not otherwise implicated," the court proceeds to the second threshold question.[30] That question is "whether the challenged regulation safeguards the public interest in health, safety, the environment or the fiscal integrity of an area, or whether [it] ... `seeks less to prevent a harm than to impose on those regulated the requirement of providing an affirmative public benefit'."[31] If the challenged regulation is merely a safeguard, there is no taking and the analysis ends. If, on the other hand, it imposes an onerous burden for the public benefit, there may be a compensable taking and further analysis is required.[32]
¶ 16 Gray does not argue that the site plan regulation fails to substantially advance a legitimate state interest.[33] Thus, in *331 this as applied challenge, we go to the final step in the analysis which requires the court to balance the State's interest against the regulation's adverse impact on the property owner.[34] We consider the regulation's impact on the property, the extent the regulation interferes with investment-backed expectations, and the character of the government action.[35]
A. Fundamental Attribute
¶ 17 Gray argues that the City deprived it of a fundamental attribute of its ownership of Pine Terrace when it prohibited new move-on permits for mobile homes.[36] Gray characterizes this as a termination of its nonconforming use. It asserts that a mobile home park owner's right to lease vacant spaces is just as important, if not more so, than the right of first refusal held to be a fundamental attribute of property ownership in Manufactured Housing. The City argues that it did not terminate Gray's right to lease because Pine Terrace continued functioning as a mobile home park. It further contends that although the right to lease one's property is a fundamental attribute of ownership, the right to lease one's property for any purpose he or she desires is not.
¶ 18 The City's argument that it did not destroy Gray's right to lease Pine Terrace for mobile home use is not persuasive. By prohibiting Gray from leasing any vacant mobile home spaces, the City would eventually have made it economically impossible for Pine Terrace to continue as a mobile home park. That Gray could continue leasing to existing tenants did not change the ultimate impact because ever-increasing vacancies are inevitable.[37] But even assuming the City destroyed Gray's right to lease property for mobile home use, that specific right is not a fundamental attribute of ownership.
¶ 19 The statute in Manufactured Housing "`simply appropriate[d] an owner's right to sell his property to persons of his choice.'"[38] "[T]he right to grant first refusal is a part of `the bundle of sticks' which the owner enjoys as a vested incident of ownership."[39] That is not the case here because Gray conflates an owner's inherent right to sell or lease its property to anyone it chooses with its contingent right to use or lease its property for any purpose it desires. The right to use and lease property for mobile homes is derived from and limited by state statute and local regulations.[40] An owner must have a business license and comply with applicable regulations before it can be said to have a "right" to lease its property for mobile home use.[41] Because the ability to use or lease property for mobile home use is contingent, it is not a part of the "bundle of sticks" which the owner enjoys as a vested incident of ownership. It is thus not a fundamental attribute of ownership. Here, the City limited Gray's right to lease Pine Terrace for mobile home use because Gray did not comply with its admittedly legitimate site plan regulation. While the course of negotiations between the City and Gray may raise concerns about the City's motives and methods, Gray's rights to operate as a nonconforming mobile home park are not a fundamental attribute of ownership, and Gray cannot establish a regulatory taking.
*332 ¶ 20 Even if the City had deprived Gray of a fundamental attribute of ownership and we reached the balancing test, Gray cannot establish it was overly burdened or that it was burdened to provide an affirmative public benefit. The site plan regulation itself had virtually no impact on Gray. Regulatory compliance required minimal effort and expense, and Gray offers no proof that the City prevented it from complying. Further, Gray offers no proof that its failure to comply with the regulation resulted in any economic loss because the City never denied a move-on permit for Pine Terrace after Kilgore's letter.[42] Without proof of actual damages caused by either the regulation itself or Kilgore's letter, Gray has not established that it has been burdened.
¶ 21 The City argues alternatively that Gray's claim is not ripe and that it failed to exhaust administrative remedies. We do not need to reach those issues because we have resolved the case on its merits. We reverse the trial court and remand for entry of summary judgment in favor of the City.
I CONCUR: COLEMAN, J.
BECKER, J. (dissenting).
¶ 22 I respectfully dissent. I would hold that the City's abrupt and unlawful termination of Gray's lawful nonconforming use was a regulatory taking because it served no other purpose than to coerce Gray to sell his land for development.
¶ 23 In 1992, the City of Des Moines rezoned the area in which Gray's mobile home park is located. One ordinance adopted at the time allowed existing mobile home parks to continue as a nonconforming use. Another ordinance, No. 978, required the operators of existing mobile home parks to give the City a site plan showing the location and dimension of each mobile home site. The site plan was to be submitted within 90 days of the effective date of the ordinance. Gray, unaware of ordinance 978, did not submit a site plan. The City did not enforce the requirement.
¶ 24 For years, the City continued to issue "move-on" permits to mobile home owners who wished to rent one of the spaces in Gray's park. Suddenly, in February 2000, the City informed Gray through a letter from Judith Kilgore that move-on permits would no longer be issued for Gray's park because of his failure to submit a site plan back in 1992. In effect, the City terminated Gray's right to operate Pine Terrace Trailer Village as a lawful nonconforming use.
¶ 25 Negotiations were fruitless. In August 2002 Gray filed suit alleging that ordinance 978, as applied to his property, was a taking without just compensation.
¶ 26 In late 2003, as the case was about to go to trial, the City passed another ordinance that allowed pre-existing mobile home park owners such as Gray to submit a site plan and thereby gain reinstatement to legal nonconforming status.[1] As a result of this action, move-on permits could once again be issued, and Gray's claim became one for a temporary taking.
¶ 27 The trial court considered cross-motions for summary judgment in November 2003. Gray primarily argued that by taking away his right to lease the empty trailer pads to new lessees, the City had destroyed an attribute of ownership as fundamental as the right of first refusal considered in Manufactured Housing, 142 Wash.2d 347, 13 P.3d 183 (2000). The court agreed that Manufactured Housing was analogous. The court granted summary judgment to Gray, and awarded damages for the temporary taking.
¶ 28 The majority rejects Gray's theory of a per se taking. I agree with this aspect of the majority's analysis. Because Gray was not prevented from selling or leasing his *333 property, he has not lost a fundamental attribute of ownership, and therefore the City's action is not a taking under Manufactured Housing. Further, the City's refusal to issue move-on permits was not tantamount to a physical invasion of Gray's property (see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982)). Nor was it a denial of all economically viable use of his property (see Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)).
¶ 29 But a government regulation that does not meet the criteria for a per se taking discussed in Manufactured Housing, Loretto and Lucas may still amount to a compensable taking if it "goes too far". Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). A regulation goes too far if it "goes beyond preventing real harm to the public which is directly caused by the prohibited use of the property and instead imposes on those regulated the requirement of providing an affirmative public benefit". Guimont v. Clarke, 121 Wash.2d 586, 603, 854 P.2d 1 (1993). See also Presbytery of Seattle v. King Cy., 114 Wash.2d 320, 333, 787 P.2d 907 (1990).
¶ 30 The majority concludes that the 1992 site plan regulation is not susceptible to this takings analysis because "Gray cannot establish it was overly burdened or that it was burdened to provide an affirmative public benefit. The site plan regulation itself had virtually no impact on Gray." Majority at 332.
¶ 31 If it were only a question of the burdens associated with submitting a site plan, I would agree. By itself, a site plan requirement is a simple, inexpensive and well-accepted land use tool. But the regulatory act that Gray is concerned about is the City's decision in 2000 to penalize his failure to submit a site plan by preventing him from taking in any new tenants. Judith Kilgore's letter did not say that Gray would have to submit a site plan before any more new tenants were allowed to move in. Her letter said that no more new tenants would be allowed to move in, period. As the trial court reasoned, Judith Kilgore's letter of February 2000 informing Gray that move-on permits would no longer be issued "represented a complete (though possibly slow acting) one pad at a time termination of the right to operate as a legal nonconforming use".[2]
¶ 32 A lawful nonconforming use can be extinguished, but unless the owner has abandoned it the City must allow a reasonable amortization period to allow the owner to recoup on investment. University Place v. McGuire, 144 Wash.2d 640, 648-49, 30 P.3d 453 (2001). "Although found to be detrimental to important public interests, nonconforming uses are allowed to continue based on the belief that it would be unfair and perhaps unconstitutional to require an immediate cessation of a nonconforming use." Rhod-A-Zalea v. Snohomish County, 136 Wash.2d 1, 7, 959 P.2d 1024 (1998). As the trial court noted, the City extinguished Gray's nonconforming use without using its own abatement process, which requires notice, public hearings, findings, and an amortization period.[3] The site plan ordinance itself (No. 978) does not state that termination of an otherwise lawful nonconforming use will be a consequence of failure to submit a site plan before the 1992 deadline.
¶ 33 The question is whether the City's termination of Gray's legal nonconforming use status was merely a safeguard for the public interest, or whether it sought "less to prevent a harm than to impose on those regulated the requirement of providing an affirmative public benefit'." Guimont, 121 Wash.2d at 603, 854 P.2d 1, quoting Robinson v. Seattle, 119 Wash.2d 34, 49, 830 P.2d 318 (1992).
¶ 34 The City's decision to permanently shut off Gray's supply of new tenants was not merely a safeguard for the public welfare. To prevent any real harm to the public that was caused by Gray's failure to submit a site plan, all the City needed to do, once it became aware of the missing site plan, was to *334 call Gray and ask him to bring one down to City Hall.
¶ 35 Did the City's sudden decision to extinguish the use of Pine Terrace as a mobile home park impose upon Gray "the requirement of providing an affirmative public benefit"? Under Guimont the answer to this question must be "yes" if the overly severe land use regulation is to be susceptible to a takings analysis; otherwise, the appropriate challenge is as a violation of substantive due process. Guimont 121 Wash.2d at 594, 854 P.2d 1. See also Lingle v. Chevron U.S.A., Inc., ___ U.S. ___, 125 S.Ct. 2074, 2082, 161 L.Ed.2d 876 (2005) (the "common touchstone" of regulatory takings jurisprudence is to "identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain"; all tests for a taking focus "directly upon the severity of the burden that government imposes upon private property rights.").
¶ 36 In the record is Gray's declaration describing his negotiations with city officials after he received the Kilgore letter. At the first meeting, Gray protested that the City had not taken any of the steps that its own ordinances require to terminate a nonconforming use. According to Gray, the City Attorney "did most of the talking at that meeting. He talked about the City's desire to see the Pine Terrace land developed in a manner that would be consistent with the new Pacific Ridge zoning that the City was adopting, and he wanted to know about our willingness to sell the park to a developer."[4] The City Attorney specifically said "the City would like to see the park sold" and that if Gray could find a buyer for the park, and set a fixed date for terminating the mobile home park use, then he could do just about anything he wanted in the park until it was sold.[5] Later, according to Gray, the City Attorney said that Gray would be allowed to rent spaces to new tenants "if I would enter into a written agreement with the City to sell the park to a developer, terminate the use by a specific date, and help the City move mobile homes from the spaces along Pacific Highway South that the City needed to take in order to expand the highway."[6]
¶ 37 Gray's takings theory is that the Kilgore letter of February 2000 was sent "in an effort to coerce Gray Businesses into selling Pine Terrace to a developer whom the City approved, who would then redevelop the property in a manner that was consistent with the City's new Pacific Ridge Zone for the area that included Pine Terrace."[7] His unrebutted account of the City Attorney's comments, combined with the City's unlawful suspension of move-on permits, proves the theory and shows that the City imposed upon him a requirement to provide an affirmative public benefit.
¶ 38 First, converting Gray's property to a preferred use manifestly would have achieved the public benefit of eliminating the nonconforming use. The designation of a use as nonconforming necessarily identifies that use as detrimental to the public interest. The nonconforming use is allowed to continue only because its termination would constitute a hardship on the owner greater than the benefit the public would derive from termination of the use. Seattle v. Martin, 54 Wash.2d 541, 544, 342 P.2d 602 (1959).
¶ 39 Second, the City's action was coercive and confiscatory. Despite the City's declaration that any decision by Gray to sell his property would have been purely voluntary, the only reasonable inference from the comments of the City Attorney is that the objective of the decision to suspend move-on permits was to force mobile home park owners to sell to developers.
¶ 40 I would hold that the City's unlawful use of the site plan regulation as a means to extinguish Gray's nonconforming use did not solve any genuine problem of public welfare and did not prevent any real harm to the public. Instead, the objective was to accelerate the replacement of mobile home parks by preferred uses. By suspending move-on permits *335 as a method of forcing Gray to sell his property to a developer, the City regulated in a manner that is functionally equivalent to a classic taking in which the government ousts an owner from his domain.
¶ 41 Guimont calls for the court to undertake a balancing test at this point of the takings analysis, if the regulation in question "substantially advances a legitimate state interest." Guimont, 121 Wash.2d at 603-04, 854 P.2d 1. But see Lingle, 125 S.Ct. at 2087 (the "substantially advances" inquiry is doctrinally and practically untenable in takings analysis). Because I do not believe the City had a legitimate interest in unlawfully terminating Gray's nonconforming use, I would say balancing is unnecessary under the test as formulated in Guimont. More likely, though, the Guimont test will be replaced by the takings analysis recently articulated by the United States Supreme Court in Lingle, which continues to emphasize what are known as the Penn Central factors, after Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). They include the regulation's economic impact on the property, the extent of the regulation's interference with investment-backed expectations, and the character of the government action. Lingle, 125 S.Ct. at 2082 (Penn Central factors "have served as the principal guidelines for resolving regulatory takings claims that do not fall within the physical takings or Lucas rules.").
¶ 42 The Penn Central factors support the conclusion that a taking occurred here. As Gray puts it, the mobile home park "was being slowly strangled by the loss of rental income from empty spaces that could not be filled".[8] Gray's unrebutted testimony was that the property "was much more valuable as a mobile home park than as land with an illegal use on it, and the sale of the property that the City was trying to force me to agree to would have been financially ruinous."[9] Denying Gray the opportunity to get new tenants to replace those who moved out frustrated his investment-backed expectation that he would be allowed to operate the park as a nonconforming use despite changes in zoning. And the character of the government action was invasive, much like a physical taking in the sense that it was designed to oust Gray from his property so that a new owner could devote it to a use held in higher esteem by the City.
¶ 43 The majority asserts that Gray cannot prove economic impact because the City never actually denied a move-on permit during the period of time that the restriction was in effect. Majority, at 332. But no reasonable mobile home owner would bother to apply for a permit in a park where the City had categorically declared that none would be issued.
¶ 44 In summary, Gray proved a regulatory taking. The judgment should be affirmed.
NOTES
[1] The parties dispute exactly when Pine Terrace became a nonconforming use, but both agree it was nonconforming during the events pertinent to this case.
[2] Section 154 is now codified as Des Moines Municipal Code § 14.48.270.
[3] The City did not specifically notify Des Moines area mobile home park owners of the ordinance, and Gray contends it was unaware of the site plan requirement until 2000. But there is no requirement that the City specifically notify property owners of a change in the law.
[4] "Move-on" permits are building permits that allow mobile homes to move into a mobile home park.
[5] Eggleston v. Pierce County, 148 Wash.2d 760, 766 n. 4, 64 P.3d 618 (2003) (citing Rivett v. City of Tacoma, 123 Wash.2d 573, 578, 870 P.2d 299 (1994)).
[6] 142 Wash.2d 347, 13 P.3d 183 (2000).
[7] See Eggleston, 148 Wash.2d at 766, 64 P.3d 618. The dissent's argument on Gray's behalf supports a substantive due process claim, not a claim for a regulatory taking. As the Supreme Court made clear in Guimont v. Clarke, 121 Wash.2d 586, 594, 854 P.2d 1 (1993), these are two distinct theories. Gray did not plead or argue that the City's actions violated its substantive due process rights. So the facts on which the dissent relies simply do not apply to Gray's regulatory taking claim.
[8] Wash. Const. art. I, § 16. Section 16 provides that private property shall not be taken for "public or private use" without just compensation.
[9] Eggleston, 148 Wash.2d 760 at 767, 64 P.3d 618.
[10] Id. at 767-68, 64 P.3d 618 (quoting Conger v. Pierce County, 116 Wash. 27, 36, 198 P. 377 (1921)) (citations omitted) (footnote omitted) (emphasis omitted).
[11] See id.
[12] See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922) ("The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.").
[13] Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 199, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).
[14] Guimont v. Clarke, 121 Wash.2d at 596, 854 P.2d 1 (quoting Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 495, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987)), cert. denied, 510 U.S. 1176, 114 S.Ct. 1216, 127 L.Ed.2d 563 (1994).
[15] 142 Wash.2d at 352, 13 P.3d 183.
[16] Id. at 366, 13 P.3d 183.
[17] Id. at 369, 13 P.3d 183.
[18] Id.
[19] Id. (citation and emphasis omitted).
[20] Id.
[21] Nonconforming uses are subject to later-enacted reasonable police power regulations. Goldblatt v. Town of Hempstead, N.Y., 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Manufactured Housing, 142 Wash.2d at 369, 13 P.3d 183; Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136 Wash.2d 1, 7, 959 P.2d 1024 (1998).
[22] 142 Wash.2d at 369, 13 P.3d 183. Nor did the City transfer Gray's property rights to a private party for a private use.
[23] Eggleston, 148 Wash.2d at 768 n. 6, 64 P.3d 618 (citing Mahon, 260 U.S. 393, 43 S.Ct. 158).
[24] 121 Wash.2d 586, 854 P.2d 1 (1993), cert. denied, 510 U.S. 1176, 114 S.Ct. 1216, 127 L.Ed.2d 563 (1994).
[25] 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).
[26] Presbytery of Seattle v. King County, 114 Wash.2d 320, 787 P.2d 907, cert. denied, 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d 238 (1990).
[27] Guimont, 121 Wash.2d at 602, 854 P.2d 1.
[28] A "total taking" occurs where a regulation denies a landowner "`all economically beneficial or productive use of land.'" Id. at 598, 854 P.2d 1 (quoting Lucas, 505 U.S. at 1015, 112 S.Ct. 2886).
[29] Id. at 602-03, 854 P.2d 1.
[30] Id. at 603, 854 P.2d 1.
[31] Id. (quoting Robinson v. City of Seattle, 119 Wash.2d 34, 49, 830 P.2d 318, cert. denied, 506 U.S. 1028, 113 S.Ct. 676, 121 L.Ed.2d 598 (1992)).
[32] Edmonds Shopping Ctr. Assocs. v. City of Edmonds, 117 Wash.App. 344, 362-63, 71 P.3d 233 (2003).
[33] In Lingle v. Chevron U.S.A., Inc., ___ U.S. ___, 125 S.Ct. 2074, 2084, 161 L.Ed.2d 876 (2005), the Supreme Court essentially eliminated this factor, but that may or may not change the analysis under article 1, section 16 of our Constitution.
[34] Guimont, 121 Wash.2d at 595-96, 854 P.2d 1 (citing Keystone, 480 U.S. at 495, 107 S.Ct. 1232). An as applied challenge involves application of the regulation to specific property, rather than a challenge to the regulation as a whole. Id. at 595, 854 P.2d 1.
[35] Id. at 596, 854 P.2d 1 (citing Presbytery, 114 Wash.2d at 335-36, 787 P.2d 907; Robinson, 119 Wash.2d at 51, 830 P.2d 318).
[36] Gray does not contend that the City's site plan regulation fails to safeguard the public interest in health and safety, or that the regulation burdens it with providing an affirmative public benefit.
[37] The City began allowing Gray to lease to new tenants again in late 2003.
[38] 142 Wash.2d at 368, 13 P.3d 183 (quoting Gregory v. City of San Juan Capistrano, 142 Cal. App.3d 72, 88-89, 191 Cal.Rptr. 47 (1983)).
[39] Id. at 367, 13 P.3d 183 (emphasis omitted).
[40] See, e.g., RCW 36.70A (Growth Management Act); RCW 43.21C (State Environmental Policy Act); Des Moines Municipal Code Ch. 14.48 (Mobile Home Park Regulations), Ch. 18 (Land Use Regulations).
[41] Des Moines Municipal Code Ch. 14.48.
[42] The dissent argues that "no reasonable mobile home owner would bother to apply for a permit in a park where the City had categorically declared that none would be issued." Dissent at 9. But the evidence established that Gray and its agents told prospective tenants not to apply, so we will never know what the City would have done had it received an application.
[1] Clerk's Papers at 202. The passage of this ordinance implicitly recognizes that the effect of the site plan requirement, as interpreted and enforced by the Kilgore letter, was to terminate Gray's legal nonconforming use.
[2] Clerk's Papers at 505.
[3] DMMC 18.48.090, set forth at Clerk's Papers at 270-71.
[4] Clerk's Papers at 396.
[5] Clerk's Papers at 396.
[6] Clerk's Papers at 396.
[7] Clerk's Papers at 31-32.
[8] Clerk's Papers at 396-97.
[9] Clerk's Papers at 397.
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81 So. 3d 639 (2012)
Michael J. CAMPOS, as personal, etc., Appellant,
v.
R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees.
No. 5D10-1846.
District Court of Appeal of Florida, Fifth District.
March 9, 2012.
Steven L. Brannock, Celene H. Humphries and Tyler K. Pitchford of Brannock & Humphries, Tampa, James D. Clark and Don Greiwe of Alley, Clark & Greiwe, Tampa, C. Calvin Warriner, III, David J. Sales of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, Bruce R. Anderson, Angelo M. Patacca, Jr., and Evan J. Yegelwel of Terrell, Hogan, et. al., Jacksonville, for Appellant.
Benjamin H. Hill, III, and Troy A. Fuhrman of Hill, Ward & Henderson, P.A., Tampa, Stephanie E. Parker, John F. Yarber, John M. Walker and Jones Day, Atlanta, Georgia, for Appellee R.J. Reynolds Tobacco Company.
David L. Ross, Elliot H. Scherker and Brigid F. Cech Samole of Greenberg Traurig, P.A., Miami, for Appellee Lorillard Tobacco Company.
Kelly Anne Luther, Maria H. Ruiz and Giselle Gonzalez Manseur of Kasowtiz, Benson, Torres & Friedman, LLP, Miami, for Appellees Liggett Group, LLC and Vector Group Ltd., Inc.
David B. Thorne and Jennifer M. Voss of Shook, Hardy & Bacon, L.L.P., Tampa, and William P. Geraghty and Frank Cruz-Alvarez of Shook, Hardy & Bacon, L.L.P., Miami, and Jeffrey E. Bigman of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, for Appellee Philip Morris USA, Inc.
PER CURIAM.
Appellant challenges the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively "Appellees") in this Engle[1]-progeny case. Appellant argues that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court's summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. *640 Philip Morris, Inc., 75 So. 3d 378 (Fla. 3d DCA 2011).[2]
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
GRIFFIN, TORPY and LAWSON, JJ., concur.
NOTES
[1] Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla.2006).
[2] At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.
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82 So. 3d 1102 (2012)
Dawn Grace DiNARDO, Appellant/Cross-Appellee,
v.
Anthony DiNARDO, Appellee/Cross-Appellant.
No. 2D10-3427.
District Court of Appeal of Florida, Second District.
February 8, 2012.
*1103 Mark V. Silverio of Silverio & Hall, P.A., Naples, for Appellant/Cross-Appellee.
Ricardo A. Reyes and Brett J. Horowitz of Tobin & Reyes, P.A., Boca Raton, for Appellee/Cross-Appellant.
WALLACE, Judge.
Dawn Grace DiNardo (the Wife) appeals the trial court's order denying her motion for attorney's fees and costs filed after the entry of a final judgment dissolving her marriage to Anthony DiNardo (the Husband). The Husband cross-appeals the trial court's denial of his postjudgment motion for attorney's fees and costs. On the Wife's direct appeal, we reverse and remand for further proceedings because the trial court failed to take into account all of the Husband's income in determining the relative financial resources available to the parties. On the Husband's cross-appeal, we affirm the circuit court's order. The circuit court did not abuse its discretion in declining to award fees and costs to the Husband for the Wife's litigation conduct based on the factors outlined in Rosen v. Rosen, 696 So. 2d 697, 700 (Fla.1997).
I. THE FACTS AND PROCEDURAL BACKGROUND
The parties were married in 1984. They had two children. At the time of the final hearing in October 2006, one of the children had reached the age of majority. The other child was fifteen.
*1104 The Husband is a certified public accountant. During the marriage, he was employed by two successful real estate development companies. At the time of the final hearing, the Husband had been employed by his current employer for approximately thirteen years. The Husband's base salary was $175,000. In addition to his base salary, the Husband received an automobile allowance of $6000 per year, an expense account at his employer's club facilities, and other fringe benefits. The Husband also received bonus income. In its final judgment, the trial court made the following finding of fact concerning the Husband's bonus income: "Although not guaranteed and in the sole discretion of his employer, the Husband has received regular and continuous bonuses nine (9) out of the thirteen (13) years he has been employed. His 2005 bonus, paid in Jan[.]-Feb. 2006[,] was $110,000." The trial court found that the Husband's annual income was $291,000. The $291,000 figure included the Husband's base salary of $175,000, the automobile allowance of $6000, and the bonus for 2005 of $110,000.
The Wife had not worked outside the home since the birth of the parties' first child in 1988. However, the Wife had some expertise in photography. A vocational expert testified that the Wife could earn $24,000 per year from employment in a photography studio or $31,000 per year if she were self-employed. Nevertheless, the Wife would require some time and training to achieve either of these income levels. The trial court found that the Wife should be able to earn at least $15,000 annually for the three years after the dissolution of marriage while the parties' younger child completed high school. In accordance with this finding, the trial court imputed $1250 per month income to the Wife following the dissolution of marriage.
Before the final hearing, the parties agreed to an equal division of their assets. In accordance with this equal distribution of property, each party was to receive assets valued at approximately $1,100,000. The trial court calculated the amount of the Wife's passive income on the equitably divided assets as $780 per month.
Under the final judgment, the Husband was required to pay the Wife $2210 per month as support until the sale of the marital home. In addition, the Husband was required to pay $2400 per month in "carrying expenses" for the marital homewhich the Wife would occupyuntil the marital home sold.[1] Finally, the Husband was required to pay the Wife $1400 per month in child support.
The petition for dissolution of marriage was filed in October 2005. During the course of the proceedings, the Husband voluntarily paid $15,000 toward the Wife's attorney's fees. The Husband also contributed an additional $5000 for the Wife to hire a certified public accountant. The Wife's attorney's fees and costs incurred through the entry of the final judgment were approximately $83,000.
The case went to final hearing before Judge Daniel R. Monaco in October 2006. The trial court entered the final judgment of dissolution of marriage on November 15, 2006. An amended final judgment was entered on June 4, 2007. The Wife took an appeal from the final judgment, and this court affirmed. See DiNardo v. DiNardo, 989 So. 2d 1190 (Fla. 2d DCA 2008) (table decision).
*1105 In the final judgment, the trial court reserved jurisdiction to consider the issue of attorney's fees and costs. The parties promptly filed their fee motions, but the trial court did not hear the motions until January 2010, more than three years after the entry of the final judgment. In the interim, Judge Monaco had retired; a different judge heard the fee motions.
The Husband's motion requested an award of attorney's fees and costs based on his claim that he had "incurred a substantial amount of needless and unnecessary attorney's fees, suit monies[,] and costs caused by [the] Wife's bad faith litigation tactics and unnecessary delays." The Wife based her claim on her need and on the Husband's ability to pay.
The trial court conducted an evidentiary hearing on the parties' respective fee motions. In a written order entered after the hearing, the trial court denied the Husband's request for fees and costs. The trial court found that the Wife had caused some delays in resolving various matters, thereby increasing the amount of litigation necessary to resolve the matter. However, the trial court found the existence of extenuating circumstances that explained at least some of the delays. Ultimately, the trial court ruled that the circumstances did not rise to a level sufficient to warrant the assessment of fees and costs against the Wife based on her litigation conduct.
The trial court also denied the Wife's motion for fees and costs because it found that the financial resources of the parties were "relatively equal." The critical portion of the trial court's ruling in the order under review concerning the financial resources of the parties is the treatment of the Husband's bonus income. In support of its conclusion that the parties' resources were "relatively equal," the trial court made the following finding: "[T]he bonuses [sic] the [H]usband received prior to trial were put into [a] bank account that will be ultimately equally divided."
II. THE PARTIES' ARGUMENTS
On appeal, the Husband argues that the trial court abused its discretion in ruling that the Wife's litigation conduct did not warrant requiring her to pay the Husband's attorney's fees and costs based on the Rosen factors. After a thorough review of the record, we conclude that the trial court did not abuse its discretion in declining to assess all or a portion of the Husband's fees and costs against the Wife. The Husband's argument on this point does not warrant further discussion.
The Wife observes thatin the order under reviewthe trial court misapprehended the income available to the Husband at the time of the entry of the final judgment. According to the Wife, this mistake caused the trial court to conclude incorrectlythat the financial resources available to the parties for the payment of attorney's fees and costs were relatively equal. We agree with the Wife, and we write to explain our reasoning below.
III. THE APPLICABLE LAW
Section 61.16(1), Florida Statutes (2005), addresses the subject of attorney's fees, suit money, and costs in proceedings under chapter 61. The statute provides, in pertinent part:
The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.
*1106 (Emphasis added.) Under the statute, the primary factor to be considered in determining whether to award attorney's fees and costs to one party is the relative financial resources of the parties. Rosen, 696 So.2d at 700; Humerickhouse v. Humerickhouse, 932 So. 2d 1142, 1145 (Fla. 2d DCA 2006).
In assessing the financial resources of the parties, the trial court must determine the parties' income as well as their assets. "The extent of the parties' incomes from all sources and the reasonable income-earning abilities of the parties[] are essential parts of the equation... in determining the parties' comparable financial circumstances, to justify or deny an attorney's fee and costs to the spouse with less resources." Brock v. Brock, 690 So. 2d 737, 742 (Fla. 5th DCA 1997). The trial court should determine the relative financial positions of the parties as of the time of the entry of the final judgment dissolving the marriage. See Rashid v. Rashid, 35 So. 3d 992, 995 (Fla. 5th DCA 2010); Derrevere v. Derrevere, 899 So. 2d 1152, 1153 (Fla. 4th DCA 2005); Duchesneau v. Duchesneau, 692 So. 2d 205, 207 (Fla. 5th DCA 1997).
The purpose of section 61.16 is "to ensure that both parties will have similar ability to secure competent legal counsel." Canakaris v. Canakaris, 382 So. 2d 1197, 1205 (Fla.1980). Thus "[a]n award of attorney's fees in domestic support cases is not dependent on one party's success in the litigation but rather upon the parties' relative financial resources." Humerickhouse, 932 So.2d at 1145 (citing Bullock v. Jones, 666 So. 2d 224, 225 (Fla. 2d DCA 1995)). "It is not necessary that one spouse be completely unable to pay attorney's fees in order for the trial court to require the other spouse to pay these fees." Canakaris, 382 So.2d at 1205. With these general principles in mind, we turn to the facts of this case.
IV. DISCUSSION
We begin by noting the disconnect between the trial court's findings in the final judgment concerning the Husband's income and the trial court's findings in the order under review on the same subject. In the final judgment, the trial court found that "the Husband has received regular and continuous bonuses nine (9) out of the thirteen (13) years he has been employed." The trial court also noted that the Husband's 2005 bonus was $110,000. The trial court found that the Husband's annual incomecomposed of his base salary, automobile allowance, and bonuswas $291,000. These findings are amply supported by the record. At the time of the final hearing, the Husband had received a substantial bonus for each of the preceding six years of his employment. Based on our calculations, the bonuses for these six years averaged $121,667 per year. Over the thirteen years of the Husband's employment with his current employer, his bonus income averaged $74,077 per year.
However, in the order under review, the trial court did not take the Husband's bonus income into account in determining the amount of his income. Instead, the trial court considered only the Husband's base salary and his automobile allowance. The trial court based this treatment of the Husband's income on its finding that his 2005 bonus amounting to $110,000was deposited into a bank account that was to be divided equally between the parties. This finding is correct as far as it goes. The Wife does not dispute that the bonus for 2005 was deposited into the account in question. But the order under review treats the receipt of the $110,000 bonus for 2005 as if it were a singular event. *1107 In fact, the trial court had already found in the final judgment that the Husband was receiving bonuses that were regular and continuous. That finding was never modified or vacated. Therefore, the trial court was required to take the Husband's bonus income into account in assessing his financial resources available for the payment of attorney's fees and costs. Cf. Drew v. Drew, 27 So. 3d 802, 802-03 (Fla. 2d DCA 2010) (requiring the trial court to consider regular and continuous bonuses in calculating income for the purposes of alimony and child support); Parry v. Parry, 933 So. 2d 9, 16 (Fla. 2d DCA 2006) (requiring the trial court to consider regular and continuous bonuses in calculating income for the purpose of child support); Shrove v. Shrove, 724 So. 2d 679, 682 (Fla. 4th DCA 1999) (holding that the trial court properly included the husband's bonus income for the purpose of determining monthly support amounts); Crowley v. Crowley, 672 So. 2d 597, 600 (Fla. 1st DCA 1996) (holding that the trial court erred in excluding the husband's bonus income in determining his ability to pay alimony and child support).
It is true that the equitable division of the parties' assets and liabilities would leave them in a substantially equal position with regard to the property owned by each. But the omission of the Husband's bonuses from the determination of his income dramatically understated his income relative to the Wife's more modest income. When the Husband's bonus income is added to his base salary, it is apparent that his available income substantially exceeds the income available to the Wife. It follows that the trial court's denial of the Wife's motion for attorney's fees and costs was based on an incorrect finding that the financial resources of the parties were "relatively equal." "[W]here, as here, the record establishes that the parties' past, present[,] and anticipated earnings are not substantially equivalent, it may be inequitable to force the lower earning party to deplete her share of the otherwise equally divided assets to pay attorney's fees." Nisbeth v. Nisbeth, 568 So. 2d 461, 462 (Fla. 3d DCA 1990).
V. CONCLUSION
On the Wife's direct appeal, we reverse the order under review to the extent that it denied the Wife's motion for attorney's fees and costs. We remand this case to the trial court for further proceedings. On remand, the trial court shall reconsider the Wife's motion for fees and costs, taking into account all of the financial resources available to the parties, including the Husband's bonus income. The trial court shall make appropriate findings to facilitate appellate review of its decision. On the Husband's cross-appeal, we affirm the order under review to the extent that it denied the Husband's motion for attorney's fees and costs.
Affirmed in part, reversed in part, and remanded.
KHOUZAM and CRENSHAW, JJ., Concur.
NOTES
[1] After the marital home was sold, the "carrying expenses" would end. But the Husband's alimony obligation was scheduled to increase to $4100 per month for a period of three years. After the initial three-year period, the alimony would decrease to $2700 per month.
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80 So. 3d 1065 (2012)
G.L., Father of T.M.L., a child, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
No. 5D11-1502.
District Court of Appeal of Florida, Fifth District.
February 14, 2012.
*1066 Heather Morcroft, Orlando, for Appellant.
Rosemarie Farrell, Orlando, for Appellee, Department of Children and Families.
Laura E. Lawson, Tavares, for Appellee, Guardian ad Litem.
*1067 ORFINGER, C.J.
The father, G.L., appeals the termination of his parental rights to his child, T.M.L. He contends that the notice requirements of the Indian Child Welfare Act of 1978 ("ICWA"), 25 U.S.C.A. §§ 1901-1963 (2010), were not met. We agree, reverse the judgment, and remand with directions.
As a result of her parents' drug history, domestic violence and related criminal history, T.M.L. was sheltered and placed in foster care. The Department of Children and Families ("DCF") filed an expedited petition to terminate the mother's and father's parental rights. In response, the mother filed a notice with the court alleging that she and the child have Indian ancestry and, as a consequence, the ICWA was applicable. The court minutes reflect that the trial court and the parties were aware of the need to satisfy the ICWA's requirements based on the mother's notice. However, the trial court made no determination as to applicability of the ICWA. The mother and father appeared at the termination hearing, and neither the parents, DCF nor the court raised the issue of the ICWA's applicability. The court terminated parental rights. While the mother did not appeal, the father claims that the trial court's failure to comply with the ICWA requires reversal.
At the outset, we reject DCF's assertion that this issue may not be addressed on appeal as it was not raised by the father below. Section 1912 of the ICWA provides that "[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." Thus, under the ICWA, DCF has the burden of notifying the appropriate Indian tribes so that the trial court has the information necessary to determine whether the ICWA is applicable.
We find that the provisions of the federal ICWA allowing post-judgment challenges to involuntary termination proceedings preempt the traditional rules regarding preservation of error.[1] The notice requirements enumerated in the ICWA are mandatory and preempt state law, and the failure to follow the ICWA may be raised for the first time on appeal. See 25 U.S.C.A. § 1914 (stating that Indian child, parent of child, or tribe may petition any court of competent jurisdiction to set aside involuntary termination for failure to comply with ICWA); see also In re Antoinette S., 104 Cal. App. 4th 1401, 129 Cal. Rptr. 2d 15, 21 (2002) (finding that father's failure to raise issue of applicability of ICWA notice requirement did not waive issue on appeal of termination of parental rights because notice requirement is intended, in part, to protect interests of Indian tribes, and therefore, cannot be waived by parents' failure to raise it); People in Interest of J.O., 170 P.3d 840, 842 (Colo.Ct.App. 2007) (stating that "notice requirements of *1068 the ICWA serve the interests of the Indian tribes and, therefore, cannot be waived by a parent and may be raised for the first time on appeal"); In re J.J.C., 302 S.W.3d 896, 899 (Tex.App.2009) (finding that ICWA protections are mandatory and preempt state preservation of error law). But see In Interest of J.D.B., 584 N.W.2d 577, 581 (Iowa Ct.App.1998) ("[W]e find nothing in ICWA which expressly or impliedly preempts a state's error preservation rules.").
Congress enacted the ICWA for the purpose of protecting the best interests of Indian children and to promote the stability and security of Indian tribes and families. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989). The ICWA applies when the state seeks to place an Indian child[2] in foster care or terminate parental rights. See 25 U.S.C.A. §§ 1911, 1912. Under those circumstances, whenever the court has reason to know that the child may be an Indian child, DCF, as the party seeking placement or termination, must provide notice to the child's tribe, or the Bureau of Indian Affairs ("BIA") if the tribe cannot be identified or located, with return receipt requested, of the pending proceedings and of the tribe's right to intervene. 25 U.S.C.A. § 1912(a). The tribe must receive notice because "the best source of information on whether a particular child is Indian is the tribe itself" and "tribal verification is preferred." Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,586 (B.1 Commentary)[3] (Nov. 26, 1979) ("the Guidelines"). The record before us contains no proof of notice to the tribes, and it is undisputed that the court did not determine whether T.M.L. is an Indian child.
Here, the trial court had reason to believe that T.M.L. is an Indian child.[4]See BIA Guidelines, 44 Fed. Reg. at 67,586 (providing that court may have "reason to believe" child is an Indian child if (1) any party to the case, Indian tribe, Indian organization, or public or private agency informs court that child is Indian; (2) any public or state-licensed agency involved in child protection services or family support has discovered information that suggests child is Indian; or (3) officer of court involved in proceeding has knowledge that child may be Indian). Once the trial court had reason to believe that *1069 T.M.L. is an Indian child, the notice provisions of the ICWA were triggered and were mandatory. See BIA Guidelines, 44 Fed. Reg. at 67,586 (providing that when state court has reason to believe child involved in child custody proceeding is an Indian, court shall seek verification of child's status from either BIA or child's tribe); In re Antoinette S., 129 Cal. Rptr.2d at 21 (indicating that "minimal showing" required trigger notice under ICWA is merely evidence suggesting minor may be an Indian child within purview of Act); B.H. v. People in Interest of X.H., 138 P.3d 299, 304 (Colo.2006) (stating that sufficiently reliable information of any criteria on which membership might be based triggers ICWA's notice provisions); J.O., 170 P.3d at 843 (indicating that parent's possible Apache heritage required notice to all known Apache tribes); In re Dependency of T.L.G., 126 Wash.App. 181, 108 P.3d 156, 158 (2005) (requiring notice when child "possibly" an Indian child).
The trial court's application of the ICWA is a question of law, which we review de novo. See Seminole Tribe of Fla. v. Dep't of Children & Families, 959 So. 2d 761, 765 (Fla. 4th DCA 2007); L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 2000); Empson-Laviolette v. Crago, 280 Mich.App. 620, 760 N.W.2d 793, 797 (2008). In light of the ICWA's explicit language, we cannot view the trial court's failure to comply with the ICWA as harmless. See 25 U.S.C.A. § 1914 (stating that violation of ICWA notice provisions may be cause for invalidating termination of parental rights).
As the Second District recognized in In re T.D., 890 So. 2d 473, 474 (Fla. 2d DCA 2004), it is important to determine early in the proceedings whether the ICWA might apply, and to follow the proper procedures to ensure that the notice requirements of the ICWA are met:
This situation puts into sharp focus the need for early investigation to determine whether American Indian children are involved in child custody or TPR proceedings. To insure compliance with the ICWA and to avoid the expenditure of state resources when the child's Indian tribe should and wants to exercise its jurisdiction, we suggest that the Department, at the initiation of proceedings, or the trial court when it first is involved, inquire of the parents or relatives to determine the applicability of the ICWA. If the ICWA were presumptively applicable to this case, and had its procedures been properly followed, the great expenditure of scarce judicial and state resources that this case represents could have been avoided.
For these reasons, we reverse the termination order and remand this case to the trial court so that proper notice may be provided. On remand, the trial court shall conduct a hearing to determine whether T.M.L. is an Indian child under the ICWA. If, after notice and hearing, the trial court determines that T.M.L. is an Indian child, the trial court shall conduct a new trial applying the requirements and standards of the ICWA. If, after notice and a hearing, the trial court determines that T.M.L. is not an Indian child, the trial court may re-enter the termination order terminating the rights of the parents. See S.B. v. Dep't of Health & Rehab. Servs., 679 So. 2d 57, 57 (Fla. 4th DCA 1996) (reversing order terminating parental rights but stating that on remand, upon resolving notice issue, court may re-issue termination order).
REVERSED AND REMANDED.
TORPY and LAWSON, JJ., concur.
NOTES
[1] Federal law preempts state law when: (1) Congress has expressly preempted state law, (2) Congress has installed a comprehensive regulatory scheme in the area, removing the entire field from the state realm, or (3) state law directly conflicts with the force or purpose of federal law. See Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992). Congress has not expressly stated that it was preempting state law concerning child custody proceedings by enacting the ICWA or that it intended for the ICWA to occupy the area of child custody proceedings completely. In re J.J.C., 302 S.W.3d 896, 899 (Tex.App.2009); In re W.D.H., 43 S.W.3d 30, 36 (Tex.App.2001).
[2] An Indian child is defined by the ICWA as an "unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C.A. § 1903(4). The ICWA, however, does not define what constitutes being a "member" or "being eligible for membership" since each tribe has its own criteria for determining tribe membership. See In Interest of A.G.-G., 899 P.2d 319, 321 (Colo.App.Ct.1995).
[3] The BIA created guidelines for state courts to use in Indian child custody proceedings to assist with the interpretation of the ICWA. See BIA Guidelines, 44 Fed. Reg. 67,584. Although the Guidelines are not binding, they have been considered persuasive by state courts. See, e.g., B.H. v. People in Interest of X.H., 138 P.3d 299, 302 n. 2 (Colo.2006); In re N.N.E., 752 N.W.2d 1, 7 (Iowa 2008); In re H.D., 11 Kan. App. 2d 531, 729 P.2d 1234, 1238 (1986); In re Welfare of Child of: T.T.B. & G.W., 724 N.W.2d 300, 305 (Minn.2006); In re R.R., Jr., 294 S.W.3d 213, 218 (Tex.App. 2009).
[4] The mother's notice stated that T.M.L.'s maternal grandfather was half Navajo and maternal grandmother was three-fourths Cherokee. Although "[t]he party asserting the applicability of ICWA has the burden to produce the necessary evidence for the trial court to determine if the child is an `Indian child,'" In Interest of A.G.-G., 899 P.2d at 322, the threshold information necessary to trigger the notice requirement "was clearly not intended to be high." B.H., 138 P.3d at 303.
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124 P.3d 1016 (2005)
142 Idaho 140
WOODLAND FURNITURE, LLC, an Idaho limited liability company, Plaintiff-Counterdefendant-Appellant,
v.
Richard LARSEN and Heirloom Reflections, LLC, an Idaho limited liability company, Defendants-Counterclaimants-Respondents.
No. 30977.
Supreme Court of Idaho, Idaho Falls, September 2005 Term.
November 23, 2005.
*1018 Beard, St. Clair, Gaffney, McNamara & Calder, PA, Idaho Falls, for appellant. Jared W. Allen argued.
Law Office of Duncan Palmatier, Moscow, for respondents. Duncan Palmatier argued.
TROUT, Justice.
The appellant, Woodland Furniture, LLC (Woodland), appeals the district court's grant of summary judgment against it on all claims it made against the respondents, Richard Larsen and Heirloom Reflections, LLC (collectively referred to as Heirloom). Woodland's claims involve the federal Lanham Act, an Idaho unfair competition statute, and common law unfair competition. This appeal raises interesting legal issues relating to protectible trade dress, unfair competition and federal preemption, and we agree with the district court's legal analysis and affirm summary judgment for Heirloom.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Woodland manufactures highend furniture which is intended to look aged or worn even though it is new. Woodland went into business in 1996 using various distressing, finishing, scaling, and texturing techniques to create an aged appearance. Woodland hired respondent Larsen who, over the next few years, became familiar with Woodland's manufacturing processes. Larsen was terminated from his employment with Woodland in June of 1999, and in September of 1999 he began the Heirloom furniture business. Heirloom manufactured furniture that replicated the look of Woodland furniture. Initially, Heirloom copied pictures from Woodland's catalog and used them in its catalog. Heirloom also occasionally referred to Woodland products by name or catalog number in placing orders with former Woodland customers.
*1019 Woodland discovered Heirloom's conduct and filed suit seeking an injunction to stop Heirloom from copying Woodland furniture. Woodland brought three causes of action for violations of the Lanham Act (15 U.S.C. § 1125), Idaho's unfair competition statute (I.C. § 48-104), and common law unfair competition. Heirloom moved for summary judgment. The district court denied Heirloom's first request for summary judgment and granted a preliminary injunction, prohibiting Heirloom from using Woodland's trade dress in its catalogs or furniture manufacture. The district court subsequently reversed its opinion and lifted the injunction, concluding Woodland had failed to articulate specific elements of its claimed trade dress. Because there was no specific or consistent set of features, reasoned the district court, the court was unable to narrowly tailor injunctive relief for Woodland. The district court determined the Lanham Act had not been violated because the features Woodland sought to protect were functional, and granted Heirloom's second summary judgment motion. Shortly thereafter, the district court dismissed Woodland's statutory unfair competition claim because there was nothing more than a "mere scintilla" of evidence to support it. Finally, the district court dismissed Woodland's common law unfair competition claim, as well. The district court reasoned that even if Woodland had sufficiently articulated the elements of its claimed trade dress which it had not such a trade dress would be considered "functional," which precludes protection under state common law causes of action due to federal patent law preemption. Woodland appeals the district court's dismissal of each of its claims.
II.
STANDARD OF REVIEW
In an appeal from a grant of summary judgment, this Court's standard of review is the same as the district court's standard in ruling upon the motion. Thomson v. Lewiston, 137 Idaho 473, 475-76, 50 P.3d 488, 490-91(2002). This Court reviews the record before the district court, including the pleadings, depositions, admissions and affidavits, if any, to determine de novo whether, after construing the facts in the light most favorable to the nonmoving party, there exist any genuine issues of material fact and whether the successful movant below is entitled to judgment as a matter of law. Tusch Enters. v. Coffin, 113 Idaho 37, 40, 740 P.2d 1022, 1026 (1987).
III.
ANALYSIS
The first issue before the Court is whether Heirloom violated the Lanham Act, 15 U.S.C. § 1125. To resolve this issue, the Court must determine whether Woodland articulated a trade dress, and, if so, whether the claimed trade dress is protectible. If the trade dress is deemed "functional," it is not protected by the Lanham Act. The second issue raised on this appeal is whether the district court erroneously dismissed Woodland's unfair competition claim under I.C. § 48-104. The third issue is whether Woodland's common law unfair competition claim is precluded by federal patent laws. Like the Lanham Act, the common law tort of unfair competition may only protect "non-functional" aspects of trade dress. Finally, this Court will briefly address Heirloom's claim to attorney fees on appeal.
A. The Lanham Act: Trade Dress Elements
Section 43 of the Lanham Act gives a producer a cause of action for the use by any person of "any word, term, name, symbol, or any combination thereof ... which ... is likely to cause confusion ... as to the origin, sponsorship, or approval of his or her goods...." 15 U.S.C. § 1125(a)(1)(A). This section of the Lanham Act may be used to protect a party's unregistered trade dress. 15 U.S.C. § 1125(a)(3). Trade dress is a "category that originally included only the packaging or `dressing' of a product, but in recent years has been expanded by many Courts of Appeals to encompass the design of a product." Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 209, 120 S. Ct. 1339, 1342, 146 L. Ed. 2d 182, 188 (2000) (citations omitted). "[T]rade dress refers to the total image of a product and may include *1020 features such as size, shape, color, color combinations, texture or graphics." International Jensen, Inc. v. Metrosound U.S.A., 4 F.3d 819, 822 (9th Cir.1993) (internal quotation marks and citation omitted).
A plaintiff seeking trade dress protection "must articulate the design elements that compose the trade dress.... [T]he `focus on the overall look of a product does not permit a plaintiff to dispense with an articulation of the specific elements which comprise its distinct dress.'" Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 116-17 (2d Cir.2001) (quoting Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 381 (2d Cir.1997)) (emphasis added). "A plaintiff's inability to explain to a court exactly which aspects of its product design(s) merit protection may indicate that its claim is pitched at an improper level of generality, i.e., the claimant seeks protection for an unprotectible style, theme or idea." Landscape Forms, 113 F.3d at 381. Thus, the particularity requirement assists the court in "winnowing out claims that are overbroad as a matter of law." Yurman, 262 F.3d at 117. Indeed, a court "will be unable to shape narrowly-tailored relief if [it] do[es] not know what distinctive combination of ingredients deserves protection." Landscape Forms, 113 F.3d at 381.
The deposition of Woodland's managing member, Lynn Harker, is full of attempts by Heirloom's counsel to get Harker to define more specifically the exact composition of Woodland's trade dress. And while Harker did identify six elements of Woodland's claimed trade dress (irregular surface texture, scaling, distressing, finish, artwork, and style of carving), he could not say with particularity which of these elements, or which combination of elements, would constitute an infringement if used by a Woodland competitor. When asked if there were any one element that must always be present in order to see Woodland's alleged trade dress, Harker simply responded, "No." The district court concluded Harker would need to personally examine each piece of furniture manufactured by a competitor to determine if it "looked like a Woodland piece," in which case it would be an infringement.
Also, we note Woodland sought protection of hundreds of separate pieces of furniture, with numerous variations on each piece. Woodland contends this situation is similar to one in which a specific logo design was afforded trade dress protection, even though that logo could have been applied to untold numbers of articles of apparel. The fact that Woodland puts its dress on a variety of items, Woodland argues, does not make that dress any less protectible. This arguments fails, however, as Woodland is unable to specify the limits to the elements of its claimed trade dress; Woodland cannot point to its own "specific logo design" worthy of protection. When the variations are considered, Woodland seeks to protect over 100,000 distinct items. This, combined with Woodland's "I know it when I see it" approach to defining a trade dress infringement, strengthens the argument that Woodland's claims here are "overbroad as a matter of law." Yurman, 262 F.3d at 117. With such a vague and indefinite definition of trade dress, no fact finder can properly evaluate whether a trade dress has been infringed upon. Id. Accordingly, as the district court correctly found Woodland has not sufficiently articulated the specific elements that constitute its trade dress, it was proper for the district court to grant summary judgment on this issue.
B. The Lanham Act: Protectible Trade Dress
In addition to failing to define the elements of its claimed trade dress, Woodland has not satisfied the three-pronged test to establish a protectible trade dress. To protect a trade dress, a producer must show by a preponderance of the evidence that the allegedly infringing feature is (1) nonfunctional, (2) likely to cause confusion with the product for which protection is sought, and (3) the trade dress is either (a) inherently distinctive or (b) has acquired a secondary meaning. Wal-Mart Stores, Inc., 529 U.S. at 210, 120 S. Ct. at 1343, 146 L.Ed.2d at 188-89. The district court did not analyze the second and third elements, as it determined Woodland's claimed trade dress was functional and therefore not protectible. As we agree with *1021 the district court's conclusion, we likewise need not address the second and third elements.
A product feature is functional "if it is essential to the use or purpose of the article or it affects the cost or quality of the article, that is, if exclusive use of the feature would put competitors at a significant nonreputation-related disadvantage." Qualitex Co. v. Jacobson Prods. Co., Inc., 514 U.S. 159, 165, 115 S. Ct. 1300, 1304, 131 L. Ed. 2d 248, 255 (1995) (citation and internal quotations omitted). Functional features are features "which constitute the actual benefit that the consumer wishes to purchase, as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product." Int'l Order of Job's Daughters v. Lindeburg & Co., 633 F.2d 912, 917 (9th Cir.1980). The burden of proving the feature is nonfunctional lies with the person asserting trade dress protection. 15 U.S.C. § 1125(a)(3).
Trade dress protection is not available for functional features due to "the judicial theory that there exists a fundamental right to compete through imitation of a competitor's product, which right can only be temporarily denied by the patent or copyright laws." Tie Tech, Inc. v. Kinedyne Corp., 296 F.3d 778, 785 (9th Cir.2002) (quotations and citations omitted). In other words, the reason the functionality of a product is not protected as trade dress is to prevent trademark law from infringing on patent law[1] and to preserve free and effective competition by ensuring competitors can copy features that they need to compete effectively. This reasoning limits protection available under the Lanham Act, as well as under the state tort of unfair competition we will address later in this opinion.
In this case, the overall effect of Woodland's claimed trade dress is functional. According to Harker's own deposition testimony, the features increase both the cost and the quality of the article. Each of the features claimed by Woodland is designed to contribute to an overall distressed and aged appearance so as to give the furniture an appearance of genuine age. Woodland's furniture is desired by customers because of its aged appearance. Thus, Woodland's claimed trade dress creating the aged appearance provides the actual benefit that the consumer desires to purchase as opposed to an assurance that the furniture was made by Woodland. As one Woodland representative testified, Woodland is not selling dressers because customers "need a place to put stuff"; rather, Woodland is selling dressers because the aged appearance of its dressers appeals to consumers. Woodland has failed to carry its burden of proving the features of its claimed trade dress are nonfunctional. We agree with the district court that these features are functional and therefore not protectible under the Lanham Act.
C. Unfair Competition Under I.C. § 48-104
Woodland raises several arguments related to the district court's dismissal of its statutory unfair competition claim under I.C. § 48-104. First, Woodland argues it lacked notice that summary judgment as to this claim was under consideration by the district court. Heirloom's first memorandum in support of summary judgment addressed all three of Woodland's claims. This motion was denied. Heirloom's second motion for summary judgment was directed only at Woodland's Lanham Act claims. This motion was granted. When the district court subsequently granted summary judgment on Woodland's I.C. § 48-104 claim without a new motion being filed, Woodland argues it *1022 was denied notice that summary judgment was even at issue.
Summary judgment may be entered in favor of a non-moving party, but "the party against whom the judgment will be entered must be given adequate advance notice and an opportunity to demonstrate why summary judgment should not be entered." Idaho Endowment Fund Inv. Bd. v. Crane, 135 Idaho 667, 671, 23 P.3d 129, 133 (2001). Woodland cannot be said to have lacked actual notice or the opportunity to show why summary judgment should not have been granted. After the district court's grant of summary judgment on the Lanham Act claim, a conference was held regarding any issues that remained to be tried. Woodland was directed to outline the issues it claimed remained, and Woodland subsequently submitted a brief in support of its remaining I.C. § 48-104 and common law unfair competition claims. Both parties appeared before the district court, during which time Woodland addressed its unfair competition claims. One month later, the district court issued an order granting summary judgment as to Woodland's I.C. § 48-104 claim. Because the record contains no objection from Woodland claiming error regarding insufficient notice, and because Woodland had meaningful opportunities to show why summary judgment should not have been entered, the district court did not err in considering the issue even though Heirloom had not filed a third, separate summary judgment motion.
Next, Woodland argues the version of I.C. § 48-104 in effect when Woodland filed its complaint governs this lawsuit. The former version of I.C. § 48-104 prohibited any person engaged in business in Idaho from "enter[ing] into any contract, combination or conspiracy ... for the purpose of driving out of business any other person engaged therein, or who for such purpose shall in the course of such business sell any article or product at less than its fair market value." I.C. § 48-104 (2000) (repealed by Idaho Competition Act, 2000 Idaho Sess. Laws ch. 148, § 1). Woodland filed its complaint in March 2000. The new version of I.C. § 48-104 became effective July 1, 2000. The law is well settled that, unless a contrary intention is clearly indicated, a new statute will not be given retrospective effect. Unity Light & Power Co. v. City of Burley, 92 Idaho 499, 504, 445 P.2d 720, 725 (1968). In setting the effective date of the new statute as July 1, 2000, the legislature demonstrated its intent that it not be given a retrospective effect. See id. at 504, 445 P.2d at 725. Thus, the repeal of a statute which takes place after a complaint has been filed does not terminate the cause of action brought under that statute. Id. at 503-04, 445 P.2d at 724-25. We agree with Woodland that the version of I.C. § 48-104 in effect when Woodland filed its complaint in March 2000 governs this suit.
However, we also agree with the district court that there was nothing more than a scintilla of evidence to support Woodland's I.C. § 48-104 claim. Again, the former version of I.C. § 48-104 prohibited contracts, conspiracies and combinations entered into for the purpose of driving another out of business. Woodland has claimed the following with respect to Heirloom's alleged intent to drive Woodland out of business: (1) When Larsen's employment with Woodland was terminated, he told Woodland shop employees he was going to put Woodland out of business; (2) Heirloom had used Woodland catalog numbers to quote furniture descriptions and prices on purchase orders with a Woodland customer; and (3) Heirloom copied Woodland's catalog using scanned images Heirloom knew were of Woodland furniture.
Woodland's allegations, even if true and even if relevant to this cause of action, are not sufficient to sustain a claim under I.C. § 48-104. This statute requires a claimant to show a purpose to drive another out of business, reflecting the notion that unfair competition laws were enacted to protect competition, not competitors. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S. Ct. 690, 697, 50 L. Ed. 2d 701, 712 (1977) (discussing purpose behind anti-trust laws). Idaho Code § 48-104 strikes the balance between free competition and fair competition by offering relief only where a company can show a competitor's intent to drive the company out of business, rather than simply an intent to compete. *1023 Heirloom's actions, though not commendable, simply reflect Heirloom's business purpose to succeed in the high-end furniture market by selling a similar product for less money and perhaps a desire to do so at Woodland's expense. There is nothing other than Larsen's angry comment upon his termination to support Woodland's claim that Heirloom had an intent to drive Woodland out of business. That is simply not enough and we affirm the district court's grant of summary judgment on Woodland's I.C. § 48-104 claim.
D. Common Law Unfair Competition
Idaho recognizes the tort of unfair competition. See Cazier v. Economy Cash Stores, 71 Idaho 178, 228 P.2d 436 (1951). "The law of unfair competition has its roots in the common-law tort of deceit; its general concern is with protecting consumers from confusion as to source." Bonito Boats, Inc., v. Thunder Craft Boats, Inc., 489 U.S. 141, 157, 109 S. Ct. 971, 981, 103 L. Ed. 2d 118, 138 (1989). State unfair competition laws are viable, yet limited somewhat by federal patent laws because trade dress is a potential subject matter of design patents. See id. at 154, 109 S. Ct. at 979, 103 L.Ed.2d at 136-37. While the United States Supreme Court has noted that all state regulation of trade dress "is not ipso facto pre-empted by the federal patent laws," the Supreme Court has recognized the following as a restraint on the state's power to regulate: "[T]he common-law tort of unfair competition has been limited to protection against copying of nonfunctional aspects of consumer products which have acquired secondary meaning such that they operate as a designation of source." Bonito Boats, Inc., 489 U.S. at 154, 158, 109 S. Ct. at 979, 981, 103 L. Ed. 2d at 136, 139 (emphasis added). The requirement of non-functionality "prevents trademark law, which seeks to promote competition by protecting a firm's reputation, from instead inhibiting legitimate competition by allowing a producer to control a useful product mark." Qualitex Co., 514 U.S. at 164, 115 S. Ct. at 1305, 131 L.Ed.2d at 254. In other words, the reluctance to protect functional features "is grounded in the public policy that everyone has the right to use an article for its functional purpose, subject only to limited patent protection." Fotomat Corp. v. Photo Drive-Thru, Inc., 425 F. Supp. 693, 705 (D.C.N.J. 1977).
As already stated, we agree with the district court's finding that the "look" Woodland sought to protect via the Lanham Act was functional. There is no reason to adopt a different functionality analysis for the purpose of determining whether certain features may or may not be protected by state unfair competition laws. The message from the Supreme Court is clear and the rationale behind it sound: federal patent law preempts state unfair competition laws where the features to be protected are functional. Woodland may not prevent Heirloom from copying its functional features under Idaho unfair competition common law.
E. Attorney Fees On Appeal
Heirloom requests attorney fees and costs on appeal pursuant to I.R.C.P. 65(c). Idaho Rule of Civil Procedure 65(c) provides:
No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant ... for the payment of such costs and damages including reasonable attorney's fees to be fixed by the court, as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained....
I.R.C.P 65(c). Rule 65(c) addresses fees incurred in defending against an injunction at the trial court level, but does not provide for fees on appeal. Heirloom may not use Rule 65(c) as a vehicle for obtaining attorney fees on appeal simply because those expenses are tenuously related to its earlier battle over the preliminary injunction. The preliminary injunction at issue in this case was both issued and withdrawn by the district court, and was not before this Court on appeal. Heirloom's request for attorney fees on appeal is denied.
IV.
CONCLUSION
This Court affirms the district court's grant of summary judgment relating to Woodland's Lanham Act claims because *1024 Woodland failed to articulate with specificity the elements of its claimed trade dress and because the features Woodland sought to protect were deemed functional. Similarly, the finding of functionality compels the conclusion that Woodland's common law unfair competition claim was appropriately dismissed due to federal patent law preemption. The district court's grant of summary judgment on Woodland's statutory unfair competition claim is also affirmed, as there is nothing more than a "mere scintilla" of evidence showing Heirloom acted with the purpose of driving Woodland out of business. We award costs to Heirloom on appeal.
Chief Justice SCHROEDER and Justices EISMANN, BURDICK and JONES concur.
NOTES
[1] It is lawful to copy functional features of an unpatented product. Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 441, 121 S. Ct. 1678, 1688, 149 L. Ed. 2d 674, 690 (2001). Patent law encourages invention by granting inventors a monopoly over new product designs or functions for a limited time, after which competitors are free to use the innovation. Qualitex Co. v. Jacobson Prods. Co. Inc., 514 U.S. 159, 164, 115 S. Ct. 1300, 1304, 131 L. Ed. 2d 248, 254 (1995). If a product's functional features could be used as trademarks, a perpetual monopoly could be obtained without regard to whether the product qualifies under patent law because trademarks may be renewed in perpetuity. Id. at 164-65, 115 S. Ct. at 1304, 131 L.Ed.2d at 254-55.
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09-4644-ag
Zheng v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 15th day of April, two thousand eleven.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
____________________________________
YAN YUN LIN v. HOLDER, 1 08-1525-ag
A095 461 815
____________________________________
JUN QIN KE v. HOLDER, 08-4139-ag
A073 661 093
____________________________________
XING QIANG YANG, A.K.A. XING 08-5000-ag
YONG YANG v. HOLDER,
A076 969 048
____________________________________
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
1
Attorney General Eric. H. Holder, Jr., is automatically substituted
where necessary.
12132010-1-34
____________________________________
XIU QIN LIN, A.K.A. XIU QING 08-6266-ag
LIN v. HOLDER,
A077 322 260
____________________________________
DAO-SHU LIN v. HOLDER, 09-0167-ag
A072 485 388
____________________________________
XIU ZHU v. HOLDER, 09-0550-ag
A077 660 225
____________________________________
RUIYU WANG v. HOLDER, 09-1016-ag
A096 263 970
____________________________________
GUO YING QIU v. HOLDER, 09-1035-ag
A076 027 787
____________________________________
JINXIU ZHENG v. HOLDER, 09-1877-ag
A097 478 685
____________________________________
MING TENG ZHANG v. HOLDER, 09-2827-ag
A072 373 970
____________________________________
MING YING ZHENG, KOK POH LIN 09-2853-ag
v. HOLDER,
A073 045 702
A029 882 583
____________________________________
DE YONG CHEN v. HOLDER, 09-2855-ag
A073 570 843
____________________________________
12132010-1-34 -2-
____________________________________
XIU YING WEI v. HOLDER, 09-2967-ag
A077 283 089
____________________________________
ZHEN GUANG JIANG v. HOLDER, 09-3083-ag
A073 611 310
____________________________________
LIN JIQING v. BCIS, 09-3206-ag
A029 790 914
____________________________________
YAN YING LI, A.K.A. YAN 09-3858-ag
JUAN LI v. BCIS,
A079 097 331
____________________________________
JIANG DENG, A.K.A. XIAO 09-3891-ag
DONG JIANG v. HOLDER,
A072 484 162
____________________________________
XIN YING ZHENG, A.K.A. 09-4219-ag
XINYING ZHENG v. HOLDER,
A079 407 995
____________________________________
CHUN-HUI HUANG, A.K.A. 09-4220-ag
CHUNHUI HUANG v. HOLDER,
A070 579 857
____________________________________
SHUAI ZHENG v. HOLDER 09-4374-ag
A070 311 881
____________________________________
XUE FENG HUANG v. BCIS, 09-4613-ag
A073 552 797
____________________________________
12132010-1-34 -3-
____________________________________
TIANGONG ZHENG, A.K.A. TIAN 09-4644-ag
GONG ZHENG v. HOLDER,
A078 731 678
____________________________________
LI QING GUO v. HOLDER, 09-4648-ag
A077 550 863
____________________________________
YI JIAN WANG v. HOLDER, 09-4649-ag
A073 583 147
____________________________________
BO KUN ZHU v. HOLDER, 09-4711-ag
A073 134 414
____________________________________
XIU ZHEN LIN v. HOLDER, 09-4712-ag
A099 082 786
____________________________________
MEI RONG CHEN v. HOLDER, 09-4791-ag
A077 007 626
____________________________________
JING LI v. HOLDER, 09-4821-ag
A073 625 185
____________________________________
YAN CHEN v. HOLDER, 09-4837-ag
A073 620 487
____________________________________
XIAO LI LIU v. HOLDER, 09-4905-ag
A077 297 907
____________________________________
ZHANG BING CHEN v. HOLDER, 09-4936-ag
A078 400 265
____________________________________
12132010-1-34 -4-
____________________________________
SUZHU ZHAO, A.K.A. SU ZHU 09-5113-ag
ZHAO v. HOLDER
A095 369 241
____________________________________
TAN LAN CHI, A.K.A. DAN LING 09-5262-ag
SHI v. HOLDER,
A073 598 096
____________________________________
SHI YANG HUANG v. HOLDER, 10-0277-ag
A077 281 562
____________________________________
UPON DUE CONSIDERATION of these petitions for review of
several Board of Immigration Appeals (“BIA”) decisions, it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for
review are DENIED.
Each of these petitions challenges a decision of the BIA
affirming an immigration judge’s (“IJ”) decision denying a
motion to reopen or denying a motion to reopen in the first
instance based on either the movant’s failure to demonstrate
changed country conditions sufficient to avoid the applicable
time and numerical limits or the movant’s failure to
demonstrate prima facie eligibility for the underlying relief
sought. See 8 C.F.R. §§ 1003.2(c), 1003.23(b). The
applicable standards of review are well-established. See Jian
Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).
12132010-1-34 -5-
Petitioners, all natives and citizens of China, filed
motions to reopen based on their claim that they fear
persecution because they have one or more children in
violation of China’s coercive population control program. For
largely the same reasons as this Court set forth in Jian Hui
Shao, 546 F.3d at 158-73, we find no error in the BIA’s
decisions. While the petitioners in Jian Hui Shao were from
Fujian Province, as are most of the petitioners here, five of
the petitioners2 are from Zhejiang Province. As with the
evidence discussed in Jian Hui Shao, which concerned Fujian
Province, the evidence proffered by these petitioners
concerning Zhejiang Province either does not discuss forced
sterilizations or involves isolated incidents of persecution
of individuals who are not similarly situated to the
petitioners. See Jian Hui Shao, 546 F.3d at 160-61, 170-71.
Some of the petitioners3 argue that the agency applied an
incorrect burden of proof by requiring them to establish more
2
The petitioners in Xiu Ying Wei v. Holder, No. 09-2967-ag;
Jiang Deng v. Holder, No. 09-3891-ag; Xue Feng Huang v. BCIS, No.
09-4613-ag; Jing Li v. Holder, No. 09-4821-ag; and Suzhu Zhao v.
Holder, No. 09-5113-ag.
3
The petitioners in Xing Qiang Yang v. Holder, No. 08-5000-ag;
Xin Ying Zheng v. Holder, No. 09-4219-ag; Chun-Hui Huang v. Holder,
No. 09-4220-ag; Xiao Li Liu v. Holder, No. 09-4905-ag; and Zhang
Bing Chen v. Holder, No. 09-4936-ag.
12132010-1-34 -6-
than their prima facie eligibility for relief. However, in
those cases, the agency either reasonably relied on their
failure to demonstrate changed country conditions excusing the
untimely filing of their motions, or concluded that they
failed to establish their prima facie eligibility for relief.
See 8 C.F.R. §§ 1003.2(c), 1003.23(b); see also INS v. Abudu,
485 U.S. 94, 104 (1988).
Some of the petitioners4 argue that the agency failed to
give sufficient consideration to the statement of Jin Fu Chen,
who alleged that he suffered forcible sterilization after his
return to China based on the births of his two children in
Japan. A prior panel of this Court remanded a petition making
a similar claim so that Jin Fu Chen’s statement (which was
submitted to the BIA after a remand) could be considered by
the IJ. See Zheng v. Holder, No. 07-3970-ag (2d Cir. Jan. 15,
2010). Since that remand, the BIA has repeatedly concluded
that Jin Fu Chen’s statement does not support a claim of
changed country conditions or a reasonable possibility of
persecution. Accordingly, we find no abuse of discretion in
4
The petitioners in Jun Qin Ke v. Holder, No. 08-4139-ag; Xing
Qiang Yang v. Holder, No. 08-5000-ag; Dao-Shu Lin v. Holder, No.
09-0167-ag; Chun-Hui Huang v. Holder, No. 09-4220-ag; Yan Chen v.
Holder, No. 09-4837-ag; and Zhang Bing Chen v. Holder, No. 09-4936-
ag.
12132010-1-34 -7-
the BIA’s summary consideration of that statement in these
cases. See Jian Hui Shao, 546 F.3d at 169 (recognizing that
the Court has rejected the notion that the agency must
“expressly parse or refute on the record each individual
argument or piece of evidence offered by the petitioner”); see
also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)
(providing that the agency may summarily consider evidence
that is “oft-cited” and that it “is asked to consider time and
again”). We cannot say, furthermore, that the agency’s
conclusions concerning the probative force of the statement
involved any error of law.
Eight of the petitioners5 argue that the BIA erred by
relying on the U.S. Department of State’s 2007 Profile of
Asylum Claims and Country Conditions in China (“2007 Profile”)
because statements in that document are based on mistranslated
and contradictory evidence. However, we have repeatedly
concluded, as the BIA did here, that the purportedly corrected
translations do not materially alter the meaning of the 2007
Profile by demonstrating a risk of forced sterilization. To
5
The petitioners in Jinxiu Zheng v. Holder, No. 09-1877-ag;
Ming Teng Zhang v. Holder, No. 09-2827-ag; Ming Ying Zheng, Kok Poh
Lin v. Holder, No. 09-2853-ag; De Yong Chen v. Holder, No. 09-2855-
ag; Zhen Guang Jiang v. Holder, No. 09-3083-ag; Shuai Zheng v.
Holder, No. 09-4374-ag; TianGong Zheng v. Holder, No. 09-4644-ag;
and Xiu Zhen Lin v. Holder, No. 09-4712-ag.
12132010-1-34 -8-
the extent that the BIA declined to credit some of the
petitioners’6 unauthenticated, individualized evidence in
light of an underlying adverse credibility determination, the
BIA did not abuse its discretion. See Qin Wen Zheng v.
Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007).
Finally, one of the petitioners7 argues that the BIA
violated her right to due process and equal protection of the
law by refusing to reopen her proceedings to file a successive
application for withholding of removal and CAT relief. The
petitioner’s equal protection argument is foreclosed by Yuen
Jin v. Mukasey, 538 F.3d 143, 158-59 (2d Cir. 2008). We find
no merit to petitioner’s due process argument. Assuming,
arguendo, that petitioner has a protected interest in
withholding of removal and CAT relief, we conclude that she
received constitutionally sufficient process when the agency
adjudicated her initial application for relief and provided
her the opportunity to submit evidence in support of two
6
The petitioners in Xiu Zhu v. Holder, No. 09-0550-ag; Jiang
Deng v. Holder, No. 09-3891-ag; Xin Ying Zheng v. Holder, No. 09-
4219-ag; TianGong Zheng v. Holder, No. 09-4644-ag; Yi Jian Wang v.
Holder, No. 09-4649-ag; Bo Kun Zhu v. Holder, No. 09-4711-ag; Mei
Rong Chen v. Holder, No. 09-4791-ag; Jing Li v. Holder, No. 09-
4821-ag; Xiao Li Liu v. Holder, No. 09-4905-ag; and Tan Lan Chi v.
Holder, No. 09-5262-ag.
7
The petitioner in Mei Rong Chen v. Holder, No. 09-4791-ag.
12132010-1-34 -9-
motions to reopen. See id. at 157.
For the foregoing reasons, these petitions for review are
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in these petitions is
VACATED, and any pending motion for a stay of removal in these
petitions is DISMISSED as moot. Any pending request for oral
argument in these petitions is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
12132010-1-34 -10-
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85 So.3d 645 (2012)
In re Leonard E. YOKUM, Jr.
No. 2011-B-2232.
Supreme Court of Louisiana.
March 13, 2012.
Charles Bennett Plattsmier, Baton Rouge, LA, Tammy Pruet Northrup, for Applicant.
Corbett L. Ourso, Jr., Albany, LA, Leonard E. Yokum, Jr., Hammond, LA, for Respondent.
ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.
This disciplinary matter arises from formal charges filed by the Office of Disciplinary *646 Counsel ("ODC") against respondent, Leonard E. Yokum, Jr., an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Yokum, 09-0213 (La.2/4/09), 999 So.2d 1129.
UNDERLYING FACTS
Count IThe Anthony Matter
In February 2006, Beverly Anthony retained respondent to handle a personal injury matter arising out of an automobile accident in which her minor son was injured. In February 2007, respondent settled the claim for $85,000 and withheld $23,677.80 from the settlement to pay his client's medical expenses. However, respondent did not remit these funds to the medical providers until October 2007, after a complaint was lodged with the ODC and after Ms. Anthony had filed a lawsuit against him. During the interim, the balance of respondent's client trust account dropped below the amount he was holding to pay the medical providers. Respondent also failed to respond to repeated inquiries from Ms. Anthony concerning the invoices she received from her son's medical providers after the settlement was negotiated.
The ODC alleges respondent violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.15(d) (failure to promptly deliver funds owed to a client or third person), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.
Count IIThe Albin Matter
In November 2006, Bobby and Linda Albin retained respondent to represent them in a judgment debtor examination scheduled for December 6, 2006. The Albins paid respondent $2,000 to handle this matter. By agreement of respondent and opposing counsel, the December 6th proceeding was continued, to be reset at a later date. However, because respondent had not enrolled as counsel of record on behalf of his clients, he did not receive notice of the rescheduled hearing date of March 12, 2007. Respondent then failed to appear in court on March 12th, leaving the Albins unrepresented.
Following the hearing, the Albins requested that respondent refund the attorney's fees they paid. Respondent refused to do so, and in August 2007, the Albins filed a complaint with the ODC. During the ODC's investigation, respondent wrote a check to the Albins refunding half of their fee, in exchange for which they signed a letter at his request purporting to withdraw their disciplinary complaint. The notation on the check indicated that this sum represented the settlement of "all claims" against respondent. Respondent did not provide the Albins an opportunity to seek the advice of independent counsel in connection with this settlement.
The ODC alleges respondent violated Rules 1.3, 1.4, 1.8(h) (a lawyer shall not settle a malpractice claim with an unrepresented client unless the client is advised in writing to seek the advice of independent legal counsel), and 8.4(a) of the Rules of Professional Conduct.
Count IIIThe Arbo Matter
In May 2006, Diane Arbo retained respondent to handle her mother's succession. Ms. Arbo paid respondent $1,500 to handle this matter. Respondent did some work on the succession, but he did not complete it and failed to communicate with Ms. Arbo or return her telephone calls. In March 2007, Ms. Arbo discharged respondent and requested a refund of the attorney's fees she paid. Respondent refused to do so, and in February 2008, Ms. *647 Arbo filed a complaint with the ODC. During the ODC's investigation, respondent wrote a check to Ms. Arbo refunding half of her fee, in exchange for which she signed a letter at his request purporting to withdraw her disciplinary complaint. The notation on the check indicated that this sum represented payment in full of "all claims" against respondent. Respondent did not provide Ms. Arbo an opportunity to seek the advice of independent counsel in connection with this settlement.
The ODC alleges respondent violated Rules 1.3, 1.4, 1.8(h), and 8.4(a) of the Rules of Professional Conduct.
Count IVThe Overton Matter
Respondent was retained to represent John H. Overton, M.D., the executor of the succession of his brother, Morris Overton. In his capacity as the attorney for the executor, respondent opened a succession checking account with First American Bank and Trust on which he was the sole signatory. Thereafter, in 2005, respondent obtained a personal loan from First American Bank and pledged the Overton succession account as collateral to secure the loan. Dr. Overton was not informed of the pledge of the succession funds, nor was he provided an opportunity to seek the advice of independent counsel in connection with the transaction.
The ODC alleges respondent violated Rules 1.8(a) (a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client), 8.4(a), and 8.4(c) of the Rules of Professional Conduct.
Count VThe Angela Spiers Matter
In 2003, respondent began representing Angela Spiers, handling several legal matters for her personally and for Extreme Auto Mart, Inc., a corporation in which respondent and Ms. Spiers had an interest.[1] During the representation, respondent and Ms. Spiers began a consensual sexual relationship. Ms. Spiers also managed respondent's law office during this time. Respondent did not withdraw from representing Ms. Spiers or Extreme Auto Mart in any cases after their sexual relationship began.
The ODC alleges respondent violated Rules 1.7(a) (conflict of interest) and 8.4(a) of the Rules of Professional Conduct.
Count VIThe Emilie Yokum Matter
Respondent performed the legal work for the succession of his mother, Emilie Yokum, who died intestate in June 2001. Mrs. Yokum was predeceased by her husband and survived by respondent and his brother, Albert Yokum, a resident of New York.
In 1995, Albert executed a power of attorney granting respondent the authority to act on his behalf to "mortgage any and all property owned by [Albert] situated in Tangipahoa Parish, Louisiana, in any amount deemed necessary by [respondent]. . ." The power of attorney allowed respondent to sign any documents necessary for the mortgage transaction "and to do all other acts necessary and incidental in the premises . . ." Albert did not revoke the 1995 power of attorney after this mortgage transaction was completed.
Several years later, in March 2003, respondent mortgaged two lots in Tangipahoa Parish which were part of the succession *648 of his mother and in which he and Albert owned an undivided interest. Respondent did not inform Albert of this transaction, nor did he disclose to Albert that he had signed his name to a new power of attorney which was used to obtain the mortgage. Respondent asserted that he had the authority to sign Albert's name to the 2003 power of attorney pursuant to the authority granted by the 1995 power of attorney.
The ODC alleges respondent violated Rule 8.4(c) of the Rules of Professional Conduct.[2]
Count VIIThe Rubye Yokum Matter
This count of the formal charges relates to respondent's handling of the succession of his grandmother, Rubye Yokum, who died in 1973. The hearing committee concluded that the ODC did not prove the alleged misconduct by clear and convincing evidence, and the disciplinary board agreed with this finding. The ODC's brief in this court does not object to this portion of the board's recommendation, and accordingly, Count VII is not discussed herein.
Count VIIIThe Peterman Matter
Gerald Peterman retained respondent to perform title research on immovable property he owned in Tangipahoa Parish. Thereafter, Mr. Peterman used the property as collateral for a bank loan. Respondent handled the loan closing on June 18, 2007. As part of the closing, respondent issued a title insurance policy in favor of the lender. The ODC alleges respondent issued the policy after his license to write title insurance lapsed (see Count X, infra), thereby violating Rules 8.4(a), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) of the Rules of Professional Conduct.[3]
Count IXThe Delaney Matter
In June 2000, respondent was retained to represent Louis Delaney, the executor of the succession of his sister, Rose Mary Delaney. In his capacity as the attorney for the executor, respondent opened a succession checking account on which he was the sole signatory. Between October 2003 and December 2003, and again in September 2007, respondent wrote five checks on the account totaling $150,000, all payable to Extreme Auto Mart, the business run by Angela Spiers (see Count V, supra). According to the notations on the checks, these sums represented loans to Extreme Auto Mart. In October 2007, respondent borrowed $179,000 in succession funds to finance the purchase of a home for Ms. Spiers in Mississippi. The home was purchased in the name of Altus Group, Inc., a corporation of which respondent was the president. Respondent contends that Mr. Delaney was aware of and authorized the loans involving both Extreme Auto Mart and Altus Group; however, he acknowledges that he did not provide Mr. Delaney the opportunity to seek the advice of independent counsel in connection with the transactions. A significant portion of the *649 loans have not been repaid to Mr. Delaney. Moreover, as of 2009, when the formal charges were filed, the Delaney succession was still open and no judgment of possession had been obtained.
The ODC alleges respondent violated Rules 1.3, 1.4, 1.7(a), 1.8(a), 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct.
Count XThe Title Insurance Matter
Respondent handled real estate closings as part of his law practice. However, on April 30, 2007, respondent's license to write title insurance lapsed. Thereafter, on May 11, 2007, respondent's title insurance underwriter, First American Title Insurance Company ("FATIC"), notified him that it was terminating his Agency Agreement, effective thirty days from the date of the letter. Nevertheless, respondent continued to issue title insurance policies to clients for whom he handled closings. When FATIC was subsequently able to audit respondent's files, it was discovered that a number of title insurance policies were lost or could not otherwise be accounted for. Although respondent signed lost policy affidavits for these policies, in some instances, it was later determined that policies described in the affidavits had in fact been issued.
The ODC alleges respondent violated Rules 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct.
Count XIThe Porter Matter
This count of the formal charges relates to respondent's handling of the succession of Richard Porter. The hearing committee concluded that the ODC did not prove the alleged misconduct by clear and convincing evidence, and the disciplinary board agreed with this finding. The ODC's brief in this court does not object to this portion of the board's recommendation, and accordingly, Count XI is not discussed herein.
Count XIIThe Millaudon Matter
The following facts are not in dispute, having been stipulated to by the parties:[4]
In July 2008, Clifford Millaudon retained respondent to represent his son, Paul Millaudon, in a domestic matter, paying him $1,750. After several continuances, a hearing was scheduled in the case for February 11, 2009. However, on February 4, 2009, respondent was placed on interim suspension. Respondent notified Mr. Millaudon of the suspension on February 9, 2009, when Mr. Millaudon telephoned him to inquire whether the hearing was still scheduled to take place on February 11th. Respondent has not refunded any portion of the $1,750 fee to Mr. Millaudon.
The ODC alleges respondent violated Rules 1.4, 1.5(f)(5) (failure to refund an unearned fee), and 8.4(a) of the Rules of Professional Conduct.
Count XIIIThe Clark Matter
The following facts are not in dispute, having been stipulated to by the parties:
In August 2008, respondent was retained to represent Diane Clark in her divorce proceeding. Ms. Clark paid respondent $2,500 to handle the matter, which was scheduled for hearing on February 17, 2009. However, on February 4, 2009, respondent was placed on interim suspension. Respondent notified Ms. Clark of the suspension on February 16, 2009, the day before the hearing, and informed her that he could no longer handle her divorce. The hearing was subsequently *650 continued to afford Ms. Clark the opportunity to retain other counsel. Respondent has not refunded any portion of the $2,500 fee to Ms. Clark.
The ODC alleges respondent violated Rules 1.4, 1.5(f)(5), and 8.4(a) of the Rules of Professional Conduct.
DISCIPLINARY PROCEEDINGS
In September 2009, the ODC filed thirteen counts of formal charges against respondent, as set forth above.[5] Respondent answered the formal charges and admitted a few minor violations of the Rules of Professional Conduct, but otherwise denied any misconduct. The matter then proceeded to a formal hearing on the merits.
Hearing Committee Report
In its report, the hearing committee made the following findings based upon the evidence and testimony at the hearing:
Count I:
1. Respondent represented Beverly Anthony in connection with an automobile accident in which her son was injured. In February 2007, the case settled for $85,000. Respondent provided Ms. Anthony with a settlement statement reflecting that he had withheld funds to pay third-party healthcare providers who asserted valid liens, and he informed her that these liens would be paid within thirty days. However, respondent failed to timely remit the funds to the healthcare providers. Ms. Anthony then began to receive notices from the healthcare providers that the sums were not paid. She testified that she attempted to contact respondent on several occasions, but that her calls to him were never returned. The healthcare providers were ultimately paid in October 2007, more than eight months after the case was settled and after Ms. Anthony retained counsel to sue respondent over this issue.
2. Respondent admitted that he failed to timely remit the withheld sums to the healthcare providers and that he had not been diligent in seeing to it that the payments were tendered. Respondent attributed the delay in payment to the activities of Angela Spiers, a client with whom he developed a personal, consensual sexual relationship and who became deeply involved in the daily operation of his law practice. Respondent admitted that he failed to supervise Ms. Spiers' activities but denies any dishonesty, fraud, deceit, or misrepresentation under Rule 8.4 as charged in this count.
3. The evidence established that in many respects, respondent's client trust account was used like an operating account. Thus, he did not deposit into that account only monies in which a client or third person may have an interest. Respondent testified that Ms. Spiers had assumed responsibility for writing checks drawn on the trust account, although he signed the checks. The documentary evidence produced by the ODC established that shortly after the settlement proceeds were received and disbursed to Ms. Anthony and to respondent for his fee (but not to the healthcare providers), the balance in the trust account fell below the amount withheld to pay the healthcare providers. The ODC established that the funds owed to the *651 healthcare providers were used for other purposes. Later, approximately $25,000 from Extreme Auto Mart (a business owned by Angela Spiers) was deposited into the trust account. These funds were apparently loaned to Extreme Auto Mart by the succession of Rose Mary Delaney (Count IX). This deposit provided sufficient funds for respondent to pay the healthcare liens in the Anthony matter in October.
4. The ODC met its burden of proving violations of Rules 1.3, 1.4, 1.15(d), and 8.4(a). However, the evidence does not establish a knowing violation of Rule 8.4(c) or any intentional fraud or misrepresentation. Respondent violated duties owed to his client as a result of his complete and total abdication of the management of his client trust account (and indeed, most of his practice) to Ms. Spiers. That, however, does not excuse his conduct with respect to this count.
5. Ms. Anthony sustained harm as a result of respondent's violations. She testified that she received numerous phone calls from the healthcare providers who had not been paid and that she was ultimately required to hire an attorney to file suit against respondent to compel him to pay the healthcare liens. She also testified that her credit rating suffered because of the delinquent amounts owed to the healthcare providers. As a result of the lawsuit, Ms. Anthony was awarded damages but not attorney's fees,[6] which resulted in her incurring attorney's fees of over $8,000.
Count II:
1. Bobby and Linda Albin retained respondent to represent them with respect to a judgment debtor rule filed in Tangipahoa Parish based upon a judgment obtained against them in Winnfield City Court. A rule to show cause was issued by the 21st Judicial District Court and served on the Albins. The Albins agreed to pay $2,000 to respondent in order to secure his representation of them.
2. Respondent obtained all of the pleadings from Winnfield City Court and communicated directly with counsel for the judgment creditor. This resulted in a continuance of the originally scheduled hearing date. However, respondent never formally enrolled as counsel for the Albins, and as a result, he did not receive notice of the rescheduling of the judgment debtor examination. Respondent failed to appear on the newly assigned date.
3. Respondent did very little, if anything, to represent the Albins in this matter, other than, perhaps, securing a reassignment of the rule to show cause to a later date (the date on which he failed to appear). He thereafter did not communicate with the Albins concerning the nature of the proceedings themselves. As a consequence of respondent's failure to enroll, and the resultant lack of notice to him of the rescheduled *652 hearing, the judgment debtor examination went on as rescheduled without his participation and with the Albins being unrepresented by counsel.
4. The Albins made demand upon respondent to return the fee paid by them, and they later filed a complaint with the ODC concerning respondent's conduct. After the complaint was filed and while the ODC's request to take respondent's sworn statement was pending, respondent contacted the Albins and refunded one-half of the fee to them in exchange for their dismissing the complaint. Respondent admitted that he took this action and that he did not provide the Albins the opportunity to consult independent counsel, as required by Rule 1.8(h).
5. While respondent generally admits these facts as recited, he pointed out to the committee that at the time of the rescheduled judgment debtor examination, he was in the courthouse in Amite and that the Albins did not attempt to locate him there. He also notes that Mrs. Albin testified that she did not contact him when she received notice of the rescheduled hearing.
6. The committee found respondent created the circumstances that resulted in his failure to obtain notice of the rescheduled hearing because he did not enroll as counsel for the Albins, something that is routine and that he could have done quite easily. It was not up to the Albins or to the court to ensure that respondent was notified of the new hearing date, particularly after he had been retained and accepted a $2,000 fee. Thus, respondent did not keep his clients informed about the status of the matter or act with reasonable diligence in connection with his representation of them.
7. Following receipt of notice from the ODC that the Albins had filed a complaint, and just before his sworn statement was to be taken with respect to that complaint, respondent contacted the Albins in an attempt to resolve their dispute with him. He asked the Albins "what it would take" for them to dismiss their complaint. They responded that they wished to obtain a refund of one-half of the fee paid and in return would sign a letter directed to the ODC withdrawing the complaint. Respondent reimbursed the Albins one-half of the fee and they signed the letter. All of this was done by respondent without referring the Albins to independent counsel. The ODC contends that this action on the part of respondent violates Rule 1.8(h). On the other hand, respondent contends that Rule 1.8(h) is directed only to malpractice claims, not to disciplinary matters. He further contends that his agreement with the Albins did not preclude them from filing a malpractice action or seeking to obtain the balance of the fee paid pursuant to Rule 1.5.
8. Although the language of Rule 1.8(h)(1) makes specific reference to claims for malpractice, and while subparagraph (2) of that rule makes reference to settlement of a claim or potential claim "for such liability," the committee concluded that this rule applies with equal force to the settlement or withdrawal of disciplinary complaints and is not limited purely to civil actions by a client against the *653 lawyer. Respondent intended to compromise a serious claim, albeit a disciplinary complaint, without affording the Albins an opportunity to seek independent counsel concerning this action. Moreover, respondent's contention that the "release" by the Albins "settled nothing" rings hollow. Clearly, any fee dispute between the Albins and respondent was compromised by the agreement.
9. As to the harm sustained by the Albins, it is unclear whether respondent could have mounted a successful defense to the judgment debtor examination. Nevertheless, the Albins paid respondent a net of $1,000 and got very little in return. In addition, they were forced to proceed without representation at the scheduled hearing. Thus, the committee concluded the Albins sustained harm as a result of respondent's conduct.
10. Accordingly, the ODC proved by clear and convincing evidence a violation by respondent of Rules 1.3, 1.4, 1.8(h), and 8.4(a).
Count III:
1. In May 2006, respondent was retained by Diane Arbo to handle the succession of her mother. Respondent charged a $1,500 flat fee for the services required to complete this engagement, which Ms. Arbo paid. Eventually, as a result of respondent's failure to file pleadings with respect to the succession or to return her telephone calls, Ms. Arbo terminated respondent and hired another attorney to complete the succession. She made a request to respondent to refund a portion of the fee paid. He refused to refund any of the fee for the work for which he was retained, nor did he put any portion of the fee into his trust account pending resolution of the fee dispute with his client.
2. Apparently, this succession became more complicated than what respondent initially anticipated, at least from his perspective. Ms. Arbo testified that she made repeated attempts to get in touch with respondent, including phone messages and faxed documents, but that she received no response. These attempts spanned a period from May 2006 until March 2007, when Ms. Arbo ultimately advised respondent that his services were no longer required and that she had retained new counsel. Ms. Arbo further testified that respondent contacted her in July 2008, whereupon there was a discussion about returning a portion of the fee. Initially, in March 2008, respondent took the position that he would not refund any money to Ms. Arbo, but in fact, he did refund some of the fee in July 2008. Ms. Arbo filed her complaint with the ODC in February 2008.
3. However, as in the case of the Albin matter (Count II), prior to the ODC's taking his sworn statement, respondent met with Ms. Arbo and refunded one-half of the fee in consideration for which Ms. Arbo agreed to withdraw the complaint, again without the disclosures required by Rule 1.8. Respondent wrote the "withdrawal letter" for Ms. Arbo's signature and returned one-half of the fee she had paid. Respondent admitted that he did not advise Ms. Arbo that she had the right to seek independent counsel before agreeing to withdraw the complaint. In this particular instance, Ms. Arbo testified that, had she been informed of her right to *654 seek additional counsel, she might have done so.
4. Insofar as respondent's diligence in this matter, it appears he did undertake a significant amount of the work that was required. Thus, the ODC did not prove a violation of Rule 1.3. However, it is equally clear that respondent failed to communicate with Ms. Arbo regarding the succession or to consult with her regarding any additional work that may have been required to complete it, and thus he violated Rule 1.4. The failure to respond to Ms. Arbo's telephone calls was attributed by respondent to the interference in his practice of Angela Spiers, but that does not relieve him of his professional responsibility to Ms. Arbo.
5. For the reasons described in the committee's findings with respect to the Albin matter, respondent's actions in seeking a withdrawal of the disciplinary complaint in exchange for a refund of one-half of the fee paid by Ms. Arbo constitutes a violation of Rule 1.8(h).
6. Ms. Arbo sustained harm in that she endured a delay in the completion of her mother's succession, was forced to engage another lawyer to complete the succession, and paid a fee for which she did not receive the services (i.e., the completed succession) that respondent had contracted to provide.
Count IV:
1. Respondent was retained to represent the executor of the succession of Morris Overton. In connection with his representation, respondent opened a checking account at First American Bank designed to hold and transfer funds belonging to the succession and to pay succession debts. Curiously (but as was apparently a common practice of respondent in succession matters), the executor was not the person authorized to transact business on the account and had no authority to sign checks drawn on the account; respondent was designated as the sole person authorized to do so.
2. On October 11, 2005, respondent made a personal loan at First American Bank. As collateral for the loan, respondent pledged the Overton succession account, funds which admittedly did not belong to him and for which he had fiduciary responsibility consistent with his representation of the executor. Respondent did not ask permission of nor tell his client that he had pledged the succession funds to secure his personal debt. Respondent admits these facts but testified that he indicated to the banker responsible for the loan that the pledged funds belonged to the succession of Morris Overton and that the banker still agreed to and accepted the pledge of that account as security. To the extent that respondent suggests the bank's consent to the pledge is a defense to his action, the committee expressly rejected his contention.
3. Thus, there are no facts at issue regarding respondent's actions. The only question for the committee was whether respondent's conduct violates the rules charged, namely Rules 1.8(a), 8.4(a), and 8.4(c).[7]
*655 4. In response to the contention that he violated Rule 1.8(a), respondent argues that he did not "technically" acquire an ownership, possessory, security, or other pecuniary interest in the client's property. The committee disagreed. As a practical matter, in pledging the client's funds to secure a personal debt, respondent effectively "borrowed" the funds (or at least the right to pledge the funds) from his client. Doing so without the consent of the client appears to be a clear violation of Rule 1.8(a). The fact that the loan was repaid and that the funds pledged were never seized by the bank is of no moment. The violation occurred when the pledge was executed.
5. The committee found it particularly curious that respondent appears to have routinely opened succession accounts and retained signature authority over the account to the exclusion of the succession representative. While the legality of such an arrangement was not before the committee, it noted it was beyond dispute that the arrangement permitted respondent an unfettered ability to pledge the funds. Respondent was the sole person in control of the account.
6. Moreover, by failing to advise the succession representative that the pledge had occurred, respondent misrepresented to his client the status of the succession account and the use of estate funds. In doing so, he violated Rules 1.8(a), 8.4(a), and 8.4(c).
7. The client was harmed because the funds pledged were in jeopardy of seizure by the bank. Thus, the pledge of these funds was more than just an academic or technical exercise. According to the documentary exhibits and testimony, respondent was delinquent on this loan at least once and no principal reduction occurred on the loan until at some point following the notice to respondent that the ODC was investigating his actions with respect to this transaction.
Count V:
1. Angela Spiers was respondent's client for a number of years. At one time, she owned Extreme Auto Mart, a used car business in Tangipahoa Parish. Respondent represented Ms. Spiers and the business in connection with a number of transactions. In 2004, respondent and Ms. Spiers began a consensual sexual relationship. This occurred at a time when respondent was still actively representing Ms. Spiers. Respondent did not withdraw from the representation of Ms. Spiers or of her business. The relationship with Ms. Spiers not only created apparent conflicts of interest between respondent and her, it permitted Ms. Spiers to become deeply involved in the daily operation of respondent's law practice and adversely affected a number of his other professional relationships.
2. For example, for all intents and purposes, Ms. Spiers took over the administration of respondent's law practice. She refused to convey messages to respondent from his clients. She also actively managed and controlled respondent's trust account and was partially responsible for the delay in making payments to the healthcare providers in the *656 Anthony matter (Count I). Her refusal to convey messages from Diane Arbo contributed materially to respondent's failure to adequately communicate with Ms. Arbo when he represented her (Count III). Ms. Spiers' influence and her control of respondent's practice became so pervasive that the office management fell into near total disarray.
3. The bookkeeping and accounting practices which respondent permitted Ms. Spiers to control resulted in some of the problems seen in Count X, the title insurance matter. However, perhaps the most significant evidence of Ms. Spiers' impact on respondent's law practice is seen in Count IX. In that matter, respondent induced Mr. Delaney, in his capacity as the executor of his sister's succession, not only to "invest" in Extreme Auto Mart but also to loan a substantial amount of money to Ms. Spiers so that she could purchase a residence in Mississippi. Respondent's principal motivation for this transaction was to get Ms. Spiers out of his life after their relationship soured; it had nothing to do with Mr. Delaney's best interests.
4. The committee agreed generally with respondent that his consensual sexual relationship with Ms. Spiers did not adversely affect his independent judgment in advising her regarding either her personal legal affairs or those of Extreme Auto Mart.[8] However, the relationship between respondent and Ms. Spiers greatly affected his relationship with other clients. Specifically, money advanced to Extreme Auto Mart as an "investment" by the succession of Rose Mary Delaney was precipitated, at least in part, by respondent's desire to advance the interests of one client (Extreme Auto Mart) at the expense of another (the Delaney succession), and probably to make up for a shortfall in respondent's trust account. Those funds found their way to the trust account and were used, in part, to pay the healthcare providers in the Anthony matter (Count I).
5. Moreover, respondent's relationship with Ms. Spiers led to her assuming inordinate authority and power over his law practice, and directly led to the disputes with Ms. Anthony, Ms. Arbo, and FATIC.
6. By placing the interest of Ms. Spiers and his relationship with her above the interests of his other clients, respondent violated Rules 1.7(a) and 8.4(a).
Count VI:
1. Respondent executed a power of attorney that enabled him to mortgage property he co-owned with his brother Albert in Tangipahoa Parish. The power of attorney was executed by respondent both in his capacity as agent and also as principal. In other words, respondent executed a power of attorney naming himself as agent for his brother, but without Albert's knowledge or consent. Respondent contends this was perfectly legal and based on a prior power of attorney (admittedly authorized by Albert) which appointed respondent *657 as agent for Albert, which respondent contended authorized him to execute any and all documents necessary to carry out his agency (including executing the second power of attorney). The initial, admittedly valid, power of attorney did not expressly authorize respondent to appoint any other agents or to execute any additional powers of attorney.
2. Respondent's conduct in executing a power of attorney appointing himself as agent for his brother in order to complete a real estate transaction that was beneficial to respondent was improper and, at the very least, deceptive. (Respondent admitted that he did not inform his brother that he had executed this second power of attorney.)
3. The committee concluded that the language in the first power of attorney which authorized respondent to execute any and all documents required to exercise the authority granted in that power of attorney (the basis upon which respondent argues that he validly executed the second power of attorney) is not so broad. Respondent could have easily requested of his brother an additional power of attorney. That fact, coupled with respondent's admission that he did not inform his brother about the transaction involving the property they co-owned (and for which the power of attorney was required) strongly indicated to the committee that respondent's actions in executing and using the power of attorney were, at the least, deceptive, and thereby violated Rule 8.4(c).
4. The committee found potential harm to Albert occurred by virtue of respondent's use of the second power of attorney in a real estate transaction of which Albert had no knowledge. The committee did not find that Albert sustained any direct economic loss as a result of that transaction, however.
Count VIII:
1. Respondent performed the title work required for his client, Mr. Peterman, to use property in Tangipahoa Parish as collateral for a bank loan. Respondent issued a title policy providing coverage to the bank as mortgagee.
2. It is clear that respondent issued the policy after his Louisiana title agent's license to do so had expired.
Count IX:
1. In this count, the ODC alleges that respondent improperly induced a client, Louis Delaney, who was the surviving legatee and executor of the estate of his deceased sister Rose Mary, to invest money in Extreme Auto Mart, the entity owned by Angela Spiers. Moreover, succession funds were advanced to Altus Group, Inc., another entity in which respondent had an ownership interest, so that Ms. Spiers could purchase a residence in the State of Mississippi. In this instance, as was apparently respondent's custom, he opened an account for the succession, but retained signature authority himself as opposed to vesting it in the succession representative.
2. Mr. Delaney testified at the disciplinary hearing. He appeared to the committee to be a relatively unsophisticated gentleman who unexpectedly inherited a large estate from his sister. Persuaded by respondent that an investment in Extreme Auto Mart would provide a reasonable return, Mr. Delaney *658 agreed to loan the business a substantial sum of money.
3. The ODC contends that at the time respondent induced his client to invest in Ms. Spiers' business, respondent was also an officer of the corporation. Whether respondent was actively involved in Ms. Spiers' business is unclear, but the documents introduced by the ODC indicate that respondent was, in fact, an officer and director of Extreme Auto Mart during the times relevant to this count.
4. Respondent testified that he believed the investment would provide a return to Mr. Delaney. He also candidly admitted that one of the principal motivations in his approaching Mr. Delaney about the investment and the loan by which the Mississippi residence was purchased was that it presented an opportunity to remove Angela Spiers from his life. By providing an investment to her business and advancing additional money to purchase a residence for Ms. Spiers, such actions would not only move her out of respondent's law office and home, but out of the State of Louisiana.
5. The committee concluded that respondent used his fiduciary relationship with Mr. Delaney to foster his own personal motives, failed to disclose the romantic and business relationship he had with Ms. Spiers, and, thus, misled Mr. Delaney into loaning money to Ms. Spiers' business and to purchase the real estate in Mississippi. Ms. Spiers defaulted on those obligations fairly quickly, leaving Mr. Delaney to engage counsel in Mississippi and undertake foreclosure proceedings in that state. Mr. Delaney now finds himself as the owner of as-yet unsold real estate in Mississippi. The investment never produced a return of any kind, but did cause Mr. Delaney to incur costs in terms of loss of income attributable to the principal loan to Ms. Spiers, attorney's fees, and costs. The total amount of this loss is yet to be determined.
6. From the testimony of Mr. Delaney, the documentary evidence submitted by the ODC, and the testimony of respondent himself, the committee concluded that the ODC met its burden of proving by clear and convincing evidence that respondent violated Rules 1.3, 1.4, 1.7(a), 1.8, 8.4(a), and 8.4(c) with respect to this count. The committee did not find respondent committed a criminal act in violation of Rule 8.4(b).
Count X:
1. Respondent was a long-time title insurance agent for FATIC. This required him to be licensed as such by the Louisiana Department of Insurance. As a result of the activities in his office involving Angela Spiers, which included poor bookkeeping, poor accounting, and a lack of an audit trail for some of the title policies issued by respondent, FATIC desired, but was unable to conduct, a comprehensive audit of the policies issued by respondent. In fact, Ms. Spiers deflected and delayed numerous attempts to conduct the audit.
2. When FATIC was ultimately able to conduct its audit, it determined that a number of policies were lost or could not be accounted for. Respondent ultimately signed lost policy affidavits. In some instances, it was later determined that the policies described in the affidavit(s) had in fact been issued. Despite this evidence, *659 no FATIC representative could testify that, as a result of respondent's actions or inactions, FATIC had lost any money or that premiums pertaining to any policy had not been collected and remitted to FATIC as required. However, as a result of the FATIC audit, respondent was advised that he would no longer be recognized or sponsored as a FATIC title agent, but that he would be permitted to complete any "work in progress" after the effective date of his termination. Thus, at the end of the day, FATIC had no real complaint regarding respondent's agency except for his inability to maintain adequate records and for the delay in its ultimately performing an audit. It suffered no economic loss that it could identify.
3. In the meantime, respondent's license to write title insurance, issued by the Louisiana Department of Insurance, expired in the ordinary course of business. (All such licenses are renewed annually.) Notwithstanding that FATIC had authorized respondent to conclude any work in progress after it withdrew his authorization to serve as a FATIC agent, the evidence clearly established that several policies were issued by respondent after his Louisiana title agent's license had expired. During the hearing, the ODC produced representatives of the Louisiana Department of Insurance who testified regarding the procedure by which title insurance agents are notified of the pending expiration of their licenses so they can be timely renewed. The procedure involves mailing a renewal notice to the title agent's address of record. The renewal itself is a relatively simple process that involves paying an annual fee. Representatives of the Department of Insurance further testified that it is a violation of Title 22, punishable as a criminal offense, to issue title insurance policies without being properly licensed by the Department.
4. Respondent testified that he could not remember receiving a renewal notice,[9] and it was not possible for the Department of Insurance to prove specifically that a notice had been mailed to and/or received by him. However, the committee concluded it was more probable than not that the Department of Insurance had followed its normal procedure in connection with respondent's license renewal and that respondent had simply failed to timely renew his title agent's license.
5. The committee reviewed the relevant statutes and found that the testimony of the Louisiana Department of Insurance representatives regarding the failure of respondent to renew his title agent's license, as compared to the dates on which a number of FATIC insurance policies were issued, establishes by clear and convincing evidence that respondent violated Louisiana law and subjected himself to a criminal penalty by issuing title insurance policies when he was not properly licensed to do so. Thus, the committee found the ODC proved by clear and convincing evidence that respondent violated Rules 8.4(b) and 8.4(c) of the Rules of Professional *660 Conduct. The committee did not find a violation of Rule 8.4(a).
Counts XII and XIII:
1. The ODC contends that respondent agreed to represent Mr. Millaudon (Count XII) and Ms. Clark (Count XIII) in domestic relations matters and accepted a fee of $1,750 from Mr. Millaudon and $500 from Ms. Clark. However, before either client's matter could be heard, respondent was placed on interim suspension. To date, he has not refunded any part of the fee to either client. Respondent acknowledges that he failed to do so and testified that he does not have the financial ability to make the refunds.
2. The ODC further contends that respondent did not timely advise either client of the fact that he was suspended or keep them reasonably notified regarding the status of the respective matters, principally because he failed to provide notice to either client well in advance of the scheduled court appearances that he had been suspended and would not be permitted to continue his responsibilities to them. Based on respondent's testimony, the committee found the ODC met its burden of proving by clear and convincing evidence that respondent violated Rules 1.4, 1.5(f)(5), and 8.4(a) in these counts.
Based upon these findings, the committee determined that respondent violated duties principally owed to his clients. He failed to properly handle the funds withheld to pay healthcare providers in the Anthony matter, failed to properly enroll or to appear on behalf of his clients in the Albin matter, failed to complete the succession work undertaken by him in the Arbo matter, improperly pledged client funds to secure a personal debt in the Overton matter, used his relationship with Angela Spiers to adversely affect his client in the Delaney matter, and failed to timely advise his clients of his interim suspension in the Millaudon and Clark matters. He improperly compromised fee disputes and obtained withdrawals of ethical complaints in violation of Rule 1.8. In addition, respondent violated a duty owed to the legal profession when he executed an unauthorized power of attorney in the Emilie Yokum succession, and to the public in failing to timely renew his Louisiana title agent's license.
Considering the evidence as a whole, the committee did not find that respondent acted intentionally to harm his clients or to breach any duties owed to them. However, respondent did act knowingly in pledging client funds to secure a private debt in the Overton matter and knowingly induced Mr. Delaney to lend money to Extreme Auto Mart and to Ms. Spiers in connection with the Delaney succession. In the remaining instances in which misconduct was found, the committee determined respondent acted negligently (and in some instances, in a grossly negligent fashion).[10]
In each of the circumstances in which a violation of the Rules of Professional Conduct has been found, some harm was realized *661 by the affected client. For example, in the Anthony matter, Ms. Anthony was required to hire an attorney at considerable expense to pursue a claim against respondent to force him to pay healthcare liens for which he had unquestionably retained client funds. In the Albin matter, the clients paid respondent a fee and got essentially no services in return. In the Arbo matter, Ms. Arbo was required to hire another attorney and incur additional legal expenses as a result of respondent's failure to complete the representation he undertook and for which he accepted a fee. With respect to the pledge of succession funds in the Overton matter, while it is true that there was no ultimate financial loss to the client, there was, at least, the potential for loss had respondent defaulted on his personal loan. In connection with the Delaney matter, the actions of respondent caused clear damage to Mr. Delaney, as legatee of the succession of his sister, in an amount that has not yet been determined.[11] Finally, fees were paid and not refunded in both the Millaudon and Clark matters, and no services were performed for either client by virtue of respondent's interim suspension.
The committee found the following aggravating factors are present: a dishonest or selfish motive (only as to Count IX, in which respondent induced Mr. Delaney to advance money to Angela Spiers), a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1966). In mitigation, the committee recognized the following factors: absence of a prior disciplinary record, absence of a dishonest or selfish motive (except as to Count IX), full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and character or reputation. The committee also noted that respondent "generally acknowledged the wrongful nature of his conduct, even though he attempted to excuse much of it."
Considering the foregoing findings, the committee recommended respondent be disbarred. The committee further recommended that respondent be required to meet specified conditions prior to seeking readmission.[12]
Both respondent and the ODC filed objections to the hearing committee's report.
Disciplinary Board Recommendation
After reviewing the record of this matter, the disciplinary board found the hearing committee's factual findings are supported by the record and are not manifestly erroneous, with a few minor exceptions. The board also generally agreed with the committee's determinations regarding the alleged violations of the Rules of Professional Conduct. In Count VIII, the board expressly found that respondent violated Rules 8.4(b) and 8.4(c) by issuing a title insurance policy in the Peterman matter after his insurance license lapsed. The board also found that respondent violated Rule 8.4(a) by violating the Rules of Professional Conduct as discussed in its report.
The board determined respondent violated duties owed to his clients and to the profession. The board found respondent's *662 conduct was negligent, knowing, and intentional, and caused actual harm. Relying on the ABA's Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction in this matter is disbarment.
The board found the following aggravating factors are present: a dishonest or selfish motive (as to Counts IV, VI, and IX), a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim (as to Count IX), and substantial experience in the practice of law. In mitigation, the board recognized the following factors: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and character or reputation.
Considering the egregious nature of respondent's misconduct, the board recommended he be permanently disbarred. The board also recommended that respondent be required to make restitution in the Delaney matter and to refund the unearned fees owed to Mr. Millaudon and Ms. Clark. Finally, the board recommended that respondent be assessed with all costs and expenses of these disciplinary proceedings. One board member dissented and would recommend disbarment.
Respondent filed an objection to the disciplinary board's report and recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield, 96-1401 (La. 11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.
In a thorough report, the hearing committee made numerous and specific factual findings to lend support to its determination that respondent failed to communicate with clients, neglected legal matters, failed to refund unearned fees, engaged in conduct constituting conflicts of interest, failed to timely pay third-party medical providers, committed a criminal act, and engaged in dishonest and deceitful conduct. The disciplinary board generally accepted the committee's findings and concluded that respondent violated numerous Rules of Professional Conduct. We agree that these findings are well supported by the voluminous record of this matter.
Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So.2d 520 (La.1984).
The record demonstrates that respondent's conduct was negligent and knowing, *663 and caused both actual and potential harm. The applicable baseline sanction in this matter is disbarment.
In mitigation, respondent has no prior disciplinary record in more than forty-five years of practicing law. He has been extremely cooperative throughout these proceedings, has demonstrated remorse, and has a good reputation in the community where he resides and maintains his law office. Respondent has also begun making restitution to his clients, including Mr. Delaney, who is owed a significant sum in connection with the loans to Ms. Spiers. These numerous mitigating factors clearly outweigh the aggravating factors present and justify a downward deviation from disbarment.
Under the circumstances, we find the appropriate sanction in this matter is a three-year suspension from the practice of law, which shall be retroactive to the date of respondent's interim suspension. We will also order respondent to make restitution in the Anthony and Delaney matters, and refund the unearned fees owed in the Millaudon and Clark matters.
DECREE
Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Leonard E. Yokum, Jr., Louisiana Bar Roll number 13745, be and he hereby is suspended from the practice of law for a period of three years, retroactive to February 4, 2009, the date of his interim suspension. It is further ordered that respondent pay restitution to Beverly Anthony and Louis Delaney, and refund the unearned fees owed to Clifford Millaudon and Diane Clark. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
NOTES
[1] The record reflects that respondent incorporated Extreme Auto Mart and served as an officer and director. In 2004, respondent transferred twenty-five shares of the company's stock to Ms. Spiers, but according to his own testimony, he retained an interest in the company at least as late as 2008.
[2] The formal charges originally alleged other violations by respondent in handling his mother's succession. The hearing committee concluded that the ODC did not prove this other misconduct by clear and convincing evidence, and the disciplinary board agreed. The ODC's brief in this court does not object to the board's findings in this regard, and accordingly, these issues are not discussed herein.
[3] The formal charges originally alleged other violations by respondent in handling Mr. Peterman's legal matter. The hearing committee concluded that the ODC did not prove this other misconduct by clear and convincing evidence, and the disciplinary board agreed. The ODC's brief in this court does not object to the board's findings in this regard, and accordingly, these issues are not discussed herein.
[4] Prior to the hearing on the formal charges, the ODC and respondent stipulated to the underlying facts alleged in Counts XII and XIII. However, respondent did not agree that these facts constituted violations of the Rules of Professional Conduct, as alleged by the ODC.
[5] At the direction of the hearing committee, the ODC twice amended the formal charges in order to correct substantive and typographical errors in its filing.
[6] Respondent appealed the judgment rendered in favor of Ms. Anthony, and that appeal was pending at the time of the hearing before the hearing committee. On May 6, 2011, the court of appeal affirmed the judgment against respondent in an unpublished opinion. Anthony v. Yokum, 10-0487 (La. App. 1st Cir.5/6/11), 66 So.3d 81.
[7] In some instances, the committee's report erroneously refers to Rule 1.8(h); the rule at issue in this count is 1.8(a).
[8] We note that in prior cases, this court has held that a violation of Rule 1.7 occurs when a lawyer engages in a consensual sexual relationship with a client, regardless of whether the conflict of interest caused actual harm to the client. See, e.g., In re: Ryland, 08-0273 (La.6/6/08), 985 So.2d 71.
[9] The committee noted that as with many other deficiencies in his practice, respondent suggests that Angela Spiers may have simply failed to call the renewal notice to his attention.
[10] The committee acknowledged that many (but certainly not all) of these violations occurred as a direct result of respondent's personal involvement with Ms. Spiers. Even by respondent's own testimony, her influence on his practice was pervasive. She effectively took control of respondent's law firm, including the access of clients to respondent and the management of the trust account, to the point that respondent was not exercising independent judgment or control over his practice. As respondent has generally admitted, however, the situation with Ms. Spiers does not relieve him from ultimate responsibility for these actions.
[11] The committee observed that the loans to Extreme Auto Mart have not been and are likely never to be repaid. Similarly, the loan to Ms. Spiers to purchase the house in Mississippi will cause Mr. Delaney some damages if and when the house is sold following foreclosure proceedings there.
[12] These conditions included the payment of restitution to Louis Delaney; return of the fees paid by Mr. Millaudon and Ms. Clark; attendance at the Louisiana State Bar Association's Trust Accounting School; monitoring of respondent's client trust account; and payment of all costs of these proceedings.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2550784/
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22 A.3d 845 (2011)
420 Md. 232
Ricky SAVOY
v.
STATE of Maryland.
No. 120, September Term, 2009.
Court of Appeals of Maryland.
June 23, 2011.
*847 Austin K. Brown, Assigned Public Defender, Washington, D.C., for petitioner.
James E. Williams, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and JOHN C. ELDRIDGE (Retired, specially assigned), JJ.
BARBERA, J.
Petitioner Ricky Savoy was tried before a jury in the Circuit Court for Baltimore City and convicted of involuntary manslaughter, use of a handgun in the commission of a crime of violence, and carrying a handgun. Petitioner contends that the trial court's instruction to the jury on the standard of proof violated due process by reducing the State's burden of proof to below the constitutionally-required standard of proof beyond a reasonable doubt. Petitioner, having made no objection to the instruction at trial, argued on appeal to the Court of Special Appeals that the erroneous instruction was a structural error that is per se reversible, even in the absence of a contemporaneous objection. He argued, alternatively, that the Court of Special Appeals should take cognizance of "plain error," as permitted by Maryland Rule 4-325(e), and reverse the judgments on that basis. The Court of Special Appeals affirmed the judgments of conviction. The court held that the jury instruction, viewed in its entirety, did not constitute constitutional error, much less constitutional error that is structural in nature, and there was no cause to exercise the court's discretion to review the claim under the guise of "plain error."
We granted Petitioner's request to review the judgment of the Court of Special Appeals. For the following reasons, we hold that the instruction contained error of constitutional dimension and was structural in nature; the error is worthy of the exercise of our discretion to take cognizance of the error as "plain"; and Petitioner is entitled to a new trial as a result.
I.
In light of the legal question before us, we need not undertake a detailed account of the evidence offered at trial. It suffices for our purposes to understand that the State presented legally sufficient evidence that, on May 28, 1993, Petitioner shot and killed Marvin Watts during an altercation between the two.
Petitioner's three-day jury trial commenced on May 9, 1994. At the close of all *848 the evidence, the court gave the following jury instruction on the beyond-a-reasonable-doubt standard of proof required for conviction:
[T]he defendant is presumed innocent of the charges until proven guilty beyond a reasonable doubt and to a moral certainty. He comes into court clothed with this presumption of innocence, which remains with him from the beginning to the end of the trial as though it were testified to and supported by evidence that the defendant is innocent.
The burden of proving the defendant guilty is upon the prosecution from the beginning to the end of the trial for every element of the crime charged. The defendant has no burden to sustain and does not have to prove his innocence.
The charges against the defendant are not evidence of guilt. They are merely complaints to let you and the defendant know what the charges are.
After the jury has fairly and carefully reviewed all the evidence in this case, if you feel that the prosecution has failed to prove beyond a reasonable doubt and to a moral certainty all of the evidence necessary to convict, then you must acquit the defendant.
The test of reasonable doubt is that the evidence that the State has produced must be so convincing that it would enable you to act on an important piece of business in your every day life. The words "to a moral certainty" do not mean an absolute or mathematical certainty but a certainty based upon convincing grounds of probability. The phrase "beyond a reasonable doubt" does not mean beyond any doubt or all possible doubt. But as the words indicate, beyond a doubt that is reasonable.
You are further instructed that the burden is on the State to prove beyond a reasonable doubt not only that the offenses were committed, but that the defendant is the person who committed them.
(Emphases added.)
Petitioner did not object to the instruction. The jury convicted him of involuntary manslaughter, use of a handgun in the commission of a felony or crime of violence, and carrying a handgun upon his person. The court imposed a total of 33 years' imprisonment, which included separate sentences for the two handgun-related convictions.
On direct appeal, Petitioner did not contest the reasonable doubt instruction. He argued, successfully, only that the handgun-related convictions should merge. His sentence was thereby reduced to 30 years' imprisonment. Petitioner thereafter pursued post-conviction relief, which resulted in his receiving a second, belated direct appeal on the ground that his counsel on direct appeal was ineffective in failing to challenge, as plainly erroneous, the reasonable doubt instruction given at trial.[1]
*849 In 2008, the Court of Special Appeals heard the appeal. Petitioner, citing Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), asserted that the reasonable doubt instruction reduced the burden of proof at his trial. That error, Petitioner argued, violated the Fourteenth Amendment Due Process Clause and the Sixth Amendment right to trial by jury, thereby creating structural error that required reversal of the 1994 judgments of conviction, even in the absence of a contemporaneous objection at trial. Petitioner further argued that, even if the instructional error was not structural, the Court of Special Appeals should take cognizance of it as "plain error" and reverse the convictions on that ground.
The State did not contest Petitioner's premise that the reasonable doubt instruction was erroneous. Instead, the State took the position that Petitioner could not overcome the hurdles posed by the limits of "plain error" review merely by casting the error as "structural." The State therefore argued that the Court of Special Appeals should decline Petitioner's request for automatic review. Even so, the State further argued, the error in the instruction was not of constitutional dimension, much less structural error; moreover, Petitioner made no persuasive argument suggesting the need for or desirability of the Court of Special Appeals' taking cognizance of plain error.
In an unreported opinion, the Court of Special Appeals affirmed the judgments of conviction. The Court recognized that, under Sullivan, a reasonable doubt instruction that reduces the burden of proof is constitutional error that is structural in nature. The Court of Special Appeals also recognized that, under Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), not all errors in a reasonable doubt instruction are of constitutional magnitude. The court concluded that the error in the instruction given at Petitioner's trial was not of that magnitude. The court observed that the instruction was very similar to the instruction held to be plainly erroneous in Himple v. State, 101 Md.App. 579, 647 A.2d 1240 (1994). The court, however, found no reason to exercise its discretion to take cognizance of the error in Petitioner's case as "plain."
We granted certiorari to answer the following questions:
(1) Did the Court of Special Appeals err when it held that the reasonable doubt instructions issued to the jury at Petitioner's trial, which defined the standard for beyond a reasonable doubt as "certainty based upon convincing grounds of probability," did not constitute a structural error nor violate Petitioner's Sixth and Fourteenth amendment constitutional rights?
(2) Did the Court of Special Appeals abuse its discretion in refusing to recognize plain error in reasonable doubt jury instructions, which defined the standard for reasonable doubt as "certainty based upon convincing grounds of probability"?
II.
We begin our discussion by noting the two points on which the parties agree: (1) the reasonable doubt instruction given at Petitioner's trial contained erroneous language; and (2) Petitioner did not lodge a contemporaneous objection to it. The parties have diametrically opposing views, though, concerning whether Petitioner's failure to lodge a contemporaneous objection to the instruction erects procedural and substantive hurdles to obtaining appellate relief.
*850 Looming large in the analysis is Maryland Rule 4-325(e), which provides:
No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.
The State, not surprisingly, hangs its hat on that rule. The State argues that the only way Petitioner can obtain appellate relief is by persuading us either that the Court of Special Appeals abused its discretion in declining to review the instructional error under the guise of plain error or that we should exercise our discretion under that same standard. In that regard, the State points out that the nature of the error, whether labeled "constitutional," "structural," or otherwise, is irrelevant to whether Petitioner preserved for appellate review his challenge to the instruction.
Petitioner disagrees that the plain error rule necessarily controls his right to appellate review of the challenged instruction. He argues, albeit in a footnote only, that preservation by contemporaneous objection is not required to preserve an appellate challenge to a reasonable doubt instruction that lowers the constitutional standard of proof, because "waiver" of such error requires that it be a Zerbst-type "intelligent and knowing" waiver.[2] Petitioner further argues that an objection is unnecessary when, as here, the claimed instructional error creates a "structural" problem.
We disagree with both of Petitioner's arguments for why, in his view, the "plain error" standard of Rule 4-325(e) does not apply to the instructional error the parties agree occurred in this case. To begin, Petitioner confuses the concepts of a Zerbst-type substantive waiver of a known right or privilege, on the one hand, and a procedural forfeiture of the right to appellate review of trial error by failure to lodge a contemporaneous objection, on the other. "Forfeiture is the failure to make a timely assertion of a right, whereas waiver is the `intentional relinquishment or abandonment of a known right.'" State v. Rich, 415 Md. 567, 580, 3 A.3d 1210, 1217 (2010) (quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 113 S.Ct. 1770 (1993)). The two doctrines are distinct, and we have made clear that "[t]he `knowing and intelligent' waiver concept is not applicable to the failure to object to an erroneous jury instruction." Hunt v. State, 345 Md. 122, 150, 691 A.2d 1255, 1268 (1997) (rejecting that argument in the context of a post conviction challenge to the constitutional adequacy of a reasonable doubt instruction) (citing Davis v. State, 285 Md. 19, 35, 400 A.2d 406, 414 (1979)).
Petitioner's second argument for why he need not have objected to the instruction in order to obtain appellate review is that, because the instructional error is alleged to be of constitutional dimension and "structural" in nature, the error is per se subject to appellate review. That argument relies heavily upon Sullivan.
In Sullivan (about which we shall say more later in this opinion), the Supreme Court held that a constitutionally deficient reasonable doubt jury instruction is structural error and, consequently, is never harmless error. 508 U.S. at 280, 113 S.Ct. *851 2078. The Supreme Court, though, did not suggest in that case, or in any subsequent case insofar as we know, that a structural error is immune from the ordinary appellate-review requirement of a contemporaneous objection to the claimed error, at trial.
Rule 8-131(a) is the general rule governing procedural forfeiture of an appellate claim through inaction at the trial level. That rule reads, in pertinent part: "Ordinarily, the appellate court will not decide any other issue [that is, any issue other than jurisdiction over the subject matter and, unless waived, over the person] unless it plainly appears by the record to have been raised in or decided by the trial court. . . ."[3] We have not hesitated to decline to review on direct appeal claims of constitutional dimension that were not preserved under Rule 8-131(a). See Robinson v. State, 410 Md. 91, 106, 976 A.2d 1072, 1081 (2009) (stating that errors of constitutional dimension can be waived, and declining to review on direct appeal a claim of a violation of the Sixth Amendment right to a public trial, where the claim was not raised at trial); Taylor v. State, 381 Md. 602, 614, 851 A.2d 551, 558 (2004) (explaining that "[e]ven errors of Constitutional dimension may be waived by failure to interpose a timely objection at trial" (citation omitted)); Walker v. State, 338 Md. 253, 262-63, 658 A.2d 239, 243 (declining to consider the petitioner's Due Process and Sixth Amendment claims because the issues were not raised below and thus not preserved for review under Md. Rule 8-131(a)).
State v. Rose, 345 Md. 238, 691 A.2d 1314 (1997), also informs the issue. We held in Rose that a post-conviction petitioner is not excused from the contemporaneous objection requirement, in connection with an allegedly constitutionally deficient reasonable doubt instruction, notwithstanding that the error involved fundamental constitutional rights. Id. at 248-49, 691 A.2d at 1319. In so holding, we explained:
Our cases make it clear that, simply because an asserted right is derived from the Constitution of the United States or the Constitution of Maryland, or is regarded as a "fundamental right," does not necessarily make the "intelligent and knowing" standard of waiver applicable. Rather, most rights, whether constitutional, statutory or common law, may be waived by inaction or failure to adhere to legitimate procedural requirements.
Id. at 248, 691 A.2d at 1319. See also Hunt, 345 Md. at 152, 691 A.2d at 1269-70 (declining, on post conviction review in a capital case, to overlook the appellant's failure to raise a timely challenge to the reasonable doubt instruction).
In addition to the general rule requiring preservation of claims by contemporaneous objection is, of course, Maryland Rule 4-325(e), which requires contemporaneous objection in order to challenge instructional error on appeal, as a matter of right. Absent from Rule 4-325(e), or any other rule relevant to appellate review, is an exception from the contemporaneous objection requirement for structural errors. In other words, appellate review of unpreserved *852 instructional errors is limited to circumstances warranting plain error review, regardless of the nature of the error.
We set forth in State v. Hutchinson the circumstances under which an appellate court should consider exercising discretion to take cognizance of plain error: "[A]n appellate court should take cognizance of unobjected to error" when the error is "compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial." 287 Md. 198, 203, 411 A.2d 1035, 1038 (1980). Factors to consider in that determination include "the materiality of the error in the context in which it arose, giving due regard to whether the error was purely technical, the product of conscious design or trial tactics or the result of bald inattention." Id., 411 A.2d at 1038. We have not deviated from that standard in the years since Hutchinson. See, e.g., Miller v. State, 380 Md. 1, 29-30, 843 A.2d 803, 820 (2004) (collecting cases).
The error at issue in the present case is instructional error. Notwithstanding (as we shall see) that the error is of constitutional dimension and structural in nature, Petitioner was required, but failed, to make a timely objection to the instruction. He therefore has no right to automatic appellate review of it. It remains for us to determine whether the error is appropriate for review under the guise of plain error. We therefore shall examine Petitioner's remaining arguments through the prism of that doctrine.[4]
*853 Is the error in the reasonable doubt instruction given in this case of constitutional dimension and, if so, is it structural error?
Review for plain error requires as an initial step that the instruction contain error. The parties, as we have said, agree that the reasonable doubt instruction given at Petitioner's trial was erroneous.
The next step in the analysis requires that we consider whether the error was "plain" and "material" to Petitioner's right to a fair trial; that is, we must consider whether the error in the instruction lowered the burden of proof and thereby created error that was clear and "`fundamental to assure the defendant a fair trial.'" Miller, 380 Md. at 29, 843 A.2d at 820 (quoting Hutchinson, 287 Md. at 203, 411 A.2d at 1038). Petitioner argues that the error in the reasonable doubt instruction given at his trial meets that standard.
Before examining that contention, we pause to repeat that Petitioner was tried in 1994. His trial therefore long predates Ruffin v. State, 394 Md. 355, 906 A.2d 360 (2006). We held in Ruffin that, going forward from the date of that decision,[5] "in every criminal jury trial, the trial court is required to instruct the jury on the presumption of innocence and the reasonable doubt standard of proof which closely adheres to MPJI-CR 2:02[,]"[6] and "[d]eviations in substance will not be tolerated." Id. at 373, 906 A.2d at 371. Because we made clear in Ruffin that our holding has only prospective application, it has no bearing on Petitioner's case.
The Due Process Clause of the Fourteenth Amendment to the United *854 States Constitution requires the State to prove every element of an offense charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The Constitution, however, "does not require that any particular form of words be used in advising the jury of the government's burden of proof. . . . Rather, `taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.'" Victor, 511 U.S. at 5, 114 S.Ct. 1239 (upholding reasonable doubt instruction as constitutionally sound despite troublesome language because, upon consideration of the instruction in its entirety, there was no reasonable likelihood that the jury misunderstood the standard of proof beyond a reasonable doubt) (quoting Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954)). Accord Merzbacher v. State, 346 Md. 391, 401, 697 A.2d 432, 437 (1997) (We review the trial court's "`explanation of reasonable doubt as a whole; [we cannot] determine the propriety of an explanation from an isolated statement[, but must] view[] the effect of a suspect statement on the jury in light of the entire explanation.'" (quoting Wills v. State, 329 Md. 370, 384, 620 A.2d 295, 302 (1993))).
The inquiry is "`whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). If upon applying that standard of review we determine that the reasonable doubt instruction was constitutionally deficient, then the error is structural and defies analysis by harmless error standards. See Sullivan, 508 U.S. at 280, 113 S.Ct. 2078; Merzbacher, 346 Md. at 398, 697 A.2d at 436 ("The reasonable doubt standard is such an indispensable and necessary part of any criminal proceeding that, with respect to a case tried before a jury, the trial court's failure to inform the jury of that standard constitutes reversible error."); Wills, 329 Md. at 376, 620 A.2d at 298 (stating that inclusion of a reasonable doubt instruction "is so indispensable that the Supreme Court has indicated that failure to instruct the jury of the requirement of the reasonable doubt standard is never harmless error" (citation omitted)).
To determine whether the instruction given at Petitioner's trial is constitutionally deficient, we look first to Supreme Court jurisprudence on the subject. To our knowledge, there is but one case, Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), in which the Supreme Court found a reasonable doubt instruction constitutionally deficient. The instruction in Cage read:
If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant's guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.
*855 498 U.S. at 40, 111 S.Ct. 328. The Supreme Court determined that the instruction, when viewed as a whole, "suggest[ed] a higher degree of doubt than is required for acquittal," because the instruction equated reasonable doubt with "grave uncertainty" and "actual substantial doubt." Id. at 41, 111 S.Ct. 328. The Court reversed the conviction on the basis of the constitutionally deficient instruction. Id.
Four years later, the Supreme Court, in Victor, again construed a reasonable doubt instruction for constitutional defectiveness.[7] The Supreme Court considered in Victor the companion cases of petitioners Arthur Sandoval and Clarence Victor, each of whom asserted that his first-degree murder conviction was the product of a constitutionally-defective reasonable-doubt jury instruction. 511 U.S. at 7, 18-19, 114 S.Ct. 1239.
At Sandoval's trial, the court instructed the jury on the prosecution's burden of proof as follows:
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the State the burden of proving him guilty beyond a reasonable doubt.
Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.
Victor, 511 U.S. at 7, 114 S.Ct. 1239. Sandoval contended that the language italicized above reduced the State's burden of proof and thereby violated the Due Process Clause. Id. at 8, 114 S.Ct. 1239. The Court focused on the phrases "moral certainty" and "moral evidence." Although the phrase is "ambiguous in the abstract," the Court determined that "moral certainty," in light of the immediately preceding clause "abiding conviction," "impress[ed] upon the fact-finder the need to reach a subjective state of near certitude of the guilt of the accused." Id. at 15, 114 S.Ct. 1239 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The Court explained that the instruction given in Sandoval's case was further distinguished from the instruction given in Cage by the presence in the instruction to Sandoval's jury that (1) the decision must be based solely on the evidence presented in the case ("after the entire comparison and consideration of all the evidence"), and (2) the jury must "determine the facts of the case from the evidence received in the trial and not from any other source." Id. at 16, 114 S.Ct. 1239. The Court expressed disdain for the use of "moral certainty" in jury instructions; the Court nevertheless held that the instruction given in Sandoval's case, when read in its entirety, was not constitutionally defective. Id. at 16-17, 114 S.Ct. 1239.
The Court then addressed the instruction provided at Victor's trial, where the *856 trial court, after stating that the burden is always on the State to prove all elements of a charged offense, provided the following reasonable doubt charge:
"Reasonable doubt" is such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon. It is such a doubt as will not permit you, after full, fair, and impartial consideration of all the evidence, to have an abiding conviction, to a moral certainty, of the guilt of the accused. At the same time, absolute or mathematical certainty is not required. You may be convinced of the truth of a fact beyond a reasonable doubt and yet be fully aware that possibly you may be mistaken. You may find an accused guilty upon the strong probabilities of the case, provided such probabilities are strong enough to exclude any doubt of his guilt that is reasonable. A reasonable doubt is an actual and substantial doubt reasonably arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of evidence on the part of the State, as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture.
Id. at 18, 114 S.Ct. 1239.
The Court observed that equating reasonable doubt with "substantial doubt" is problematic because it could "imply a doubt greater than required for acquittal under Winship[.]" Id. at 20, 114 S.Ct. 1239. The Court's concern about that language, however, was alleviated by the language that followed the problematic words: the instruction refined the meaning of "substantial" as not involving a "mere possibility, [] bare imagination, or [] fanciful conjecture." Id. Furthermore, unlike the instruction in Cage, the instruction in Victor's case provided an alternative explanation of reasonable doubt: "a doubt that would cause a reasonable person to hesitate to act." Id. at 20, 114 S.Ct. 1239. Given those additions to the instruction, the Court was convinced that there was no reasonable likelihood that the jury would have interpreted the instruction as requiring proof that is less stringent than proof beyond a reasonable doubt.[8]
This Court's opinions are in accord with the Supreme Court's jurisprudence on the subject. See Wills, 329 Md. at 376-384, 388, 620 A.2d at 297-302, 303 (holding that the reasonable doubt instruction given in that case was more like the preponderance of the evidence standard and "did not measure up to an acceptable explanation of the reasonable doubt standard," because the instruction could lead a jury to believe that, "if the evidence adduced by the state has more convincing force and produces in the minds of the jury a belief that it is more likely true than not, the reasonable doubt standard has been met"); see also Ruffin, 394 Md. at 371, 906 A.2d at 370 (collecting cases on the subject); Miller, 380 Md. at 29-30, 843 A.2d at 820 (holding that the appellant, by failing to object timely to the reasonable doubt instruction, had waived his right to complain about it on appeal, but observing that, had the Court reached the merits of the challenge, it would have found no error in the inclusion in the instruction of the phrase "without hesitation" instead of "without reservation").
We have no need to rehearse in further detail the jurisprudence developed in those cases. One additional case, however, deserves *857 some discussion. Himple, 101 Md. App. 579, 647 A.2d 1240, involved a reasonable doubt instruction virtually identical to the one given in Petitioner's case.[9] Of additional interest, for our purposes, is that the Court of Special Appeals exercised its discretion in that case to take cognizance of plain error in the reasonable doubt instruction (as there had been no contemporaneous objection to it), and ordered a new trial on the basis of that instructional error. It therefore is understandable that both Petitioner and the State devote much of their attention to Himple.
The Court of Special Appeals, in undertaking plain error review of the un-objected-to instruction, considered two aspects of it: the language advising that "the words, to a moral certainty do not mean absolute or mathematical certainty, but a certainty based upon a convincing ground of probability"; and the omission of the phrase "without reservation" in the portion of the instruction that stated: "The test of reasonable doubt is the evidence that the State has produced must be so convincing that it would enable you to act on an important piece of business in everyday life." Id. at 581, 647 A.2d at 1241. The Court of Special Appeals concluded that the "convincing ground of probability" language undermined the reasonable doubt standard because the language equated a "convincing ground of probability to reasonable doubt. In other words, the jurors were instructed that if they were convinced that it was probable that appellant committed the offense, they could convict him of the charges." Id. at 582-83, 647 A.2d at 1242. The Himple Court emphasized that omission of the "without reservation" language alone "would not necessarily constitute `plain error.'" Id., 647 A.2d at 1242. The Court nonetheless considered the omission to be problematic:
Even if the "probability" factor had not been included, the balance of the instruction given [in Himple's case] appear[ed] to equate the degree with which people make important decisions in their everyday life with the reasonable doubt standard. That is not an accurate comparison. The important language in that portion of the pattern instruction that makes it a proper comparison is the language "willing to act. . . without reservation." The legal reasonable doubt standard and the decision making progress in respect to important personal matters in a layman's life are not the same. It is the language "without reservation" that tends to impart to the jury the degree of certainty that elevates the comparison in the direction of the reasonable doubt standard.
Id. at 583, 647 A.2d at 1242 (citations omitted). The Court of Special Appeals concluded that the instruction given at Himple's trial contained "the type of error [that] we will consider even in the absence of preservation. It is `plain error.' It is *858 also clearly prejudicial." Id., 647 A.2d at 1242.
With Cage, Victor, and Himple as guideposts, we turn to the instruction in the present case. Petitioner complains that the trial court reduced the State's burden of proof and thereby violated Winship, by instructing the jury that the "words to a moral certainty do not mean an absolute or mathematical certainty but a certainty based upon convincing grounds of probability," and by omitting "without reservation" from the description of reasonable doubt as "enabl[ing] you to act on an important piece of business in your everyday life."
The State counters that the instruction, when viewed in its entirety, properly instructed the jury on the reasonable doubt standard despite the inclusion of the "moral certainty" definition found deficient in Himple. As for the trial court's omission of the "without reservation" language, the State points to, inter alia, Merzbacher, 346 Md. at 399-400, 697 A.2d at 436, in which we upheld a reasonable doubt jury instruction that omitted the "without reservation" language, and Wills, 329 Md. at 384, 620 A.2d at 305, in which we held that the phrase "without reservation" is not required for an instruction to be constitutionally sufficient but is advisable to include.
We conclude, much as did the Court of Special Appeals in analyzing the virtually identical reasonable doubt instruction in Himple, that the instruction given at Petitioner's trial was constitutionally deficient. Aside from the troublesome use of the phrase "moral certainty," see Victor, 511 U.S. at 16, 114 S.Ct. 1239,[10] the instruction lacks the curative language present in Victor that would permit us to overlook the problematic language of "convincing grounds of probability." Looking for context to the words immediately surrounding the problematic language in the instruction, we find no words explaining or refining the phrase "a convincing ground of probability" that give some assurance that the jury understood the concept of proof beyond a reasonable doubt as requiring more than a mere "probability." See Himple, 101 Md.App. at 582-83, 647 A.2d at 1242. That error alone renders the instruction constitutionally deficient.
That same error, moreover, must be considered in concert with the omission of the "without reservation" language in the sentence that followed. We hew to our holding in Merzbacher, 346 Md. at 399-400, 697 A.2d at 436, that the omission of the "without reservation" language is alone not fatal. Yet we must consider the absence of that language in light of the entire instruction given in Petitioner's case. Like our colleagues in Himple, we cannot say that, in viewing the instruction as a whole, there is no "reasonable likelihood that the jury had applied the challenged instruction in a way that violates the Constitution." McGuire, 502 U.S. at 72, 112 S.Ct. 475 (internal quotation marks and citation omitted).
Accordingly, we hold that the error in the reasonable doubt instruction given in Petitioner's case is of constitutional dimension and, under Sullivan, is "structural" error. Moreover, such error is self-evidently plain and material to Petitioner's fundamental right to a fair trial. See *859 Hutchinson, 287 Md. at 203, 411 A.2d at 1038.
That we have found error in the instruction, though, does not answer the ultimate question, which is whether the discretion of the Court of Special Appeals or, for that matter, this Court, should be exercised to take cognizance of the un-objected-to error. It is to that question we turn next.
Should the structural error in the instruction be subject to discretionary review under Rule 4-325?
We have not hesitated to exercise discretion, in the appropriate (albeit rare) case, to take cognizance of un-objected-to instructional error under the guise of plain error. See Richmond v. State, 330 Md. 223, 623 A.2d 630 (1993) (taking cognizance of plain error in a jury instruction on malicious wounding with intent to disable that omitted specific intent); Franklin v. State, 319 Md. 116, 571 A.2d 1208 (1990) (taking cognizance of plain error in an instruction indicating that specific intent to kill was not required to establish assault with intent to murder); Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988) (finding plain error where jury instruction omitted element of knowledge from CDS possession). We conclude, for several reasons, that this case, too, is an appropriate case for the exercise of plain error review.[11]
The instructional error was serious, as it undermined a core value of constitutional criminal jurisprudence: that a person charged with a crime shall not be convicted on less than proof beyond a reasonable doubt. The prejudice to Petitioner's case is presumed. Sullivan, 508 U.S. at 280, 113 S.Ct. 2078. Moreover, it is most unlikely that counsel's failure to object to the instruction was a matter of strategy.
We bear in mind, moreover, that this case comes to us as a direct, albeit much belated, appeal. Therefore, we have considered Petitioner's case as if it were the Spring of 1994. At that time, Cage had been on the books for four years, Sullivan, one year, and Victor, a matter of several months. Himple, Wills, and Ruffin were not to be decided for several months, eight years, and twelve years, respectively. In other words, the legal landscape at the time this issue should have been raised on direct appeal was far different from what it is today. Indeed, we can find no reported Maryland decision on the books at the time of Petitioner's trial and original appeal that addressed the reasonable doubt instruction given at his trial. These circumstances make it all the more appropriate for us to exercise our discretion to decide the merits of the claim.
Having exercised our discretion to review the instructional error, it follows from the nature of the error that Petitioner is entitled to a new trial. The judgment of the Court of Special Appeals is therefore reversed. We direct that court to vacate the judgments of the Circuit Court for Baltimore City and order a new trial.
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AND REMAND THE CASE TO THE CIRCUIT *860 COURT FOR A NEW TRIAL; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY BALTIMORE CITY.
HARRELL and BATTAGLIA, JJ., Dissent.
HARRELL, J., dissenting, in which BATTAGLIA, J., joins.
I dissent. The Majority opinion takes great lengths to establish a framework within which to review unpreserved errors in a jury instruction context. Although the framework is accurate, it is applied in a conclusory and flawed manner to the circumstances of the present case.
The Majority opinion recognizes that a jury instruction may contain "troublesome language," so long as, "taken as a whole, the instructions correctly convey the concept of reasonable doubt to the jury." Victor v. Nebraska, 511 U.S. 1, 22, 114 S.Ct. 1239, 1251, 127 L.Ed.2d 583, 601 (1994). Despite cognizance of this cautionary Supreme Court precept, the Majority opinion focuses almost solely on two problematic phrases in the instruction under scrutiny in the present case, finding solace in the fact that the Court of Special Appeals in Himple v. State, 101 Md.App. 579, 647 A.2d 1240 (1994), considered "virtually identical" language and concluded that the instruction was deficient constitutionally. The trouble is that the Himple Court did not rely on or even cite Victor, let alone view the jury instructions in that case as a contextual whole. Thus, in the final analysis, the Majority opinion here does not practice what it preaches, instead averting its glance (with Himple-glazed eyes) from the present instruction viewed in its entirety.
I conclude that the judgment of the Court of Special Appeals in Savoy's case should be affirmed. Because the error in the subject jury instruction was not plain and material (i.e., not deficient constitutionally), Petitioner was required to object contemporaneously at trial to preserve his appellate challenge. He did not. Therefore, the error in the jury instruction is ineligible for discretionary review by an appellate court, and a new trial is unfounded.
I. The Majority Opinion's Plain Error Analysis
The Majority correctly identifies Maryland Rule 4-325(e) as the starting point for analyzing the present case. Majority op. at 293, 22 A.3d at 850. The Rule provides:
No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite the failure to object.
According to its plain reading, no unpreserved erroreven one of constitutional dimensionyields automatic reversal. Rather, any error to which a defendant did not object contemporaneously may be subject to plain error review. An appellate court, at its discretion, may opt to review "any plain error in the instructions, material to the rights of the defendant, despite a failure to object." Md. Rule 4-325(e).
A. The Presence of Error
To qualify for potential review, Petitioner must demonstrate first that an error exists. In the present case, the State concedes, and the Majority opinion agrees, *861 that errors appear in the jury instruction, which reads as follows:
[T]he defendant is presumed innocent of the charges until proven guilty beyond a reasonable doubt and to a moral certainty. He comes into court clothed with the presumption of innocence, which remains with him from the beginning to the end of the trial as though it were testified to and supported by evidence that the defendant is innocent.
The burden of proving the defendant guilty is upon the prosecution from the beginning to the end of the trial for every element of the crime charged. The defendant has no burden to sustain and does not have to prove his innocence.
The charges against the defendant are not evidence of guilt. They are merely complaints to let you and the defendant know what the charges are.
After the jury has fairly and carefully reviewed all the evidence in this case, if you feel that the prosecution has failed to prove beyond a reasonable doubt and to a moral certainty all of the evidence necessary to convict, then you must acquit the defendant.
The test of reasonable doubt is that the evidence that the State produced must be so convincing that it would enable you to act on an important piece of business in your every day life. The words "to a moral certainty" do not mean an absolute or mathematical certainty but a certainty based upon convincing grounds of probability. The phrase `beyond a reasonable doubt' does not mean beyond any doubt or all possible doubt. But[,] as the words indicate, beyond a doubt that is reasonable.
You are further instructed that the burden is on the State to prove beyond a reasonable doubt not only that the offenses were committed, but that the defendant is the person who committed them.
(Emphasis added.)
The Majority opinion identifies two particular problems with this instruction: (1) the omission of the qualifying words "without reservation" appended to the phrase "in your every day life,"[1] and (2) the use of the phrase "convincing grounds of probability" to define "moral certainty." Majority op. at 252, 22 A.3d at 857. The Majority opinion concedes, however, that the omission of "without reservation" is "not alone fatal." Majority op. at 254, 22 A.3d at 858; see Himple, 101 Md.App. at 582-83, 647 A.2d at 1242 (1994) (holding that failing to include the "without reservation" language "itself would not necessarily constitute `plain error'").
B. Was The Error Plain and Material Because It Was Constitutionally Deficient?
The second step in securing appellate review of an unobjected-to instruction is the establishment of the error as both "plain" and "material." An appellate court should consider exercising its discretion to review the jury instruction if an error is "compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial." State v. Hutchinson, 287 Md. 198, 202-03, 411 A.2d 1035, 1038 (1980). Stated more definitively, the instruction constitutes plain and material error (and is, therefore, susceptible to review at the discretion of an appellate court) if there is a reasonable chance that the jury would apply the instruction in a manner inconsistent *862 with the Constitution. See Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385, 399 (1991) (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316, 329 (1990)).[2]
In the present case, the Majority opinion establishes plain and material error by deeming the jury instruction "constitutionally deficient." Majority op. at 247, 22 A.3d at 854. According to the Majority, the instruction misrepresented the reasonable doubt standard, i.e., reduced the State's burden of proof. Because "failure to instruct the jury of the requirement of reasonable doubt is never harmless," Wills v. State, 329 Md. 370, 376, 620 A.2d 295, 298 (1993), the Majority opinion holds that the erroneous jury instruction vitiates the conviction and Petitioner must be awarded a new trial. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182, 189 (1993) (holding that a constitutionally deficient instruction discredits the conviction).[3]
To support its holding, the Majority opinion analogizes this case to two othersCage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) and Himplein which reasonable doubt instructions were deemed constitutionally deficient. The Majority opinion also attempted to minimize the relevance of Victor, in which the flawed instructions were upheld as constitutional.
1. Cage and Himple
In only one previous case, Cage, has the Supreme Court reversed a defendant's conviction because the reasonable doubt instruction as given was unconstitutional. See Cage, 498 U.S. at 41, 111 S.Ct. at 330, 112 L.Ed.2d at 342. In Cage, the problematic portion of the jury instruction was as follows:
This doubt must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt.
*863 Id. (emphasis added). The Court held that the instruction did not emphasize adequately the reasonable doubt standard or the "evidentiary certainty" required to convict the defendant. Id. Instead, the instruction as given permitted "a finding of guilt based on a degree of proof below that required by the Due Process Clause." Id.
The Majority opinion here also relies heavily on Himple, in large part because the instruction in that case resembles closely the instruction in the present case. The instructions in Himple read:
[T]he defendant is presumed innocent of the crimes charged until proven guilty beyond a reasonable doubt to a moral certainty. . . . [He] comes into Court clothed with this presumption of innocence, which remains with him from the beginning to the end of trial, as to each element of the crimes charged.
The burden of proving the defendant guilty is upon the prosecution from the beginning to the end of the trial. The defendant has no burden to sustain, does not have to prove his innocence.
* * *
The test of reasonable doubt is the evidence that the State has produced must be so convincing that it would enable you to act on an important piece of business in your everyday life. The words, to a moral certainty, do not mean absolute or mathematical certainty, but a certainty based upon a convincing ground of probability. The phrase beyond a reasonable doubt, does not mean beyond any doubt or all possible doubt, but, as the words indicate, beyond a doubt that is reasonable.
You are further instructed that the burden is on the state to prove beyond a reasonable doubt not only that the offenses were committed, but that the defendant is the person who committed them.
Brief for the Appellant, Himple v. State, 101 Md.App. 579, 647 A.2d 1240 (1994) (Ct.Spec.App.1995) (No.1911, Sept. Term 1993) (Appendix). The Court of Special Appeals deemed the instructions deficient constitutionally for reasons similar to those expressed in Cage. Himple, 101 Md.App. at 582-83, 647 A.2d at 1242. The instruction "equat[ed] a convincing ground of probability to reasonable doubt" and, thereby, lowered the burden of proof required to convict the defendant. Id.
2. Victor
Early on, the Majority opinion highlights correctly that:
The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the State to prove every element of a offense charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364[, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375] (1970). The Constitution, however, "does not require that any particular form of words be used in advising the jury of the government's burden of proof. . . . Rather, taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury." Victor, 511 U.S. at 5[, 114 S.Ct. at 1243, 127 L.Ed.2d at 590] (upholding reasonable doubt instruction as constitutionally sound despite troublesome language, because after examining instruction in its entirety, there was no reasonable likelihood that the jury misunderstood the standard of proof beyond a reasonable doubt) (quoting Holland v. United States, 348 U.S. 121, 140[, 75 S.Ct. 127, 138, 99 L.Ed. 150, 167] (1954)). Accord Merzbacher v. State, 346 Md. 391, 401, 697 A.2d 432, 437 (1997) (We review the trial court's "explanation of reasonable doubt as a whole; [we cannot] determine the propriety of an explanation from an *864 isolated statement[, but must] view [] the effect of a suspect statement on the jury in light of the entire explanation." (quoting Wills, 329 Md. at 384, 620 A.2d at 302)).
The inquiry is "`whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle v. McGuire, 502 U.S. 62, 72[, 112 S.Ct. 475, 482, 116 L.Ed.2d 385, 390] (1991) (quoting Boyde v. California, 494 U.S. 370, 380[, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316, 329] (1990)).
Majority op. at 245-47, 22 A.3d at 853-54.
Applying these principles to the present case, the Majority opinion concluded, "much as did the Court of Special Appeals in analyzing the virtually identical reasonable doubt instruction in Himple," that:
[T]he instruction given at Petitioner's trial was constitutionally deficient. Aside from the troublesome use of the phrase "moral certainty," see Victor, 511 U.S. at 16[, 114 S.Ct. at 1248, 127 L.Ed.2d at 596-97], the instruction lacks the curative language present in Victor that would permit us to overlook the problematic language of "convincing grounds of probability." Looking for context to the words immediately surrounding the problematic language in the instruction, we find no words explaining or refining the phrase "a convincing ground of probability" that give some assurance that the jury understood the concept of proof beyond a reasonable doubt as requiring more than a mere "probability." See Himple, 101 Md.App. at 582-83, 647 A.2d at 1242. That error alone renders the instruction constitutionally deficient.
Majority op. at 253-54, 22 A.3d at 858-59 (footnote omitted). For good measure, the Majority opinion cites also the omission of the phrase "without reservation," which although "not alone fatal," supports the taken inference that there is a reasonable likelihood the jury employed a standard of proof lower than reasonable doubt. Majority op. at 253-54, 22 A.3d at 858-59.
II. The Majority Opinion's Tunnel Vision
A. Victor Should Not Be Set Aside So Easily
Although the use of problematic phrases is not encouraged, their presence may not warrant a new trial if the surrounding context ensures that a jury will apply correctly the concept of reasonable doubt. Victor, 511 U.S. at 20, 114 S.Ct. at 1250, 127 L.Ed.2d at 599 ("[A]ny ambiguity . . . is removed by reading the phrase in context. . . ."). This is the case particularly when the instruction provides "an alternative definition of reasonable doubt." Id.
Although the Majority opinion employs the phrase "taken as a whole" in numerous instances, it seems to derive from Victor that a flawed instruction may be remedied only by curative language immediately preceding or following the flawed portion of the instruction. Majority op. at 254, 22 A.3d at 858 ("Looking for context to the words immediately surrounding the problematic language in the instruction, we find no words explaining or refining the phrase `a convincing ground of probability'. . . . That error alone renders the instruction constitutionally deficient." (emphasis added) (citation omitted)). The Supreme Court in Victor, however, did not evaluate only the language in nearest proximity to the troublesome passage, but "the rest of the instruction given in [the] case," which "lends content to the [subject] phrase." Victor, 511 U.S. at 14, 114 S.Ct. at 1247, 127 L.Ed.2d at 596. In the final analysis, the Victor Court was persuaded by the fact that, within the instruction (but not immediately before or after *865 the pertinent language), the trial judge provided an "alternative definition of reasonable doubt: a doubt that would cause a reasonable person to hesitate to act." Victor, 511 U.S. at 20, 114 S.Ct. at 1250, 127 L.Ed.2d at 599.
In the present case, there is language present both immediately following the problematic phrase, as well as earlier in the instruction, that mitigates the presence of the principal problematic phrase. Indeed, the words "`to a moral certainty'. . . mean . . . a certainty based upon convincing grounds of probability" were flanked by sufficiently curative language, such that any concern over misinterpretation or misconception was dispelled. Immediately following the phrase "convincing grounds of probability," the trial court provided an alternative definition of the applicable standard, explaining that: "The phrase `beyond all reasonable doubt' does not mean beyond any doubt or all possible doubt. But[,] as the words indicate, beyond a doubt that is reasonable." (Emphasis added); see Victor, 511 U.S. at 5, 114 S.Ct. at 1242-43, 127 L.Ed.2d at 590 (upholding a flawed instruction because, taken together, the instruction did not convey to the jury "that the doubt must be anything but a reasonable one"). This language requires that the jury maintain an appropriate sense of what is "reasonable" in evaluating the case. The phrases "beyond any doubt" and "beyond . . . all possible doubt" indicate to the jury that the standard of proof is high, and that it be convinced beyond most doubtsthat is, all reasonable doubtsbefore convicting Savoy. It is not likely that a jury would overlook these remonstrances and misinterpret the instructions as calling for "anything but" a personal and moral satisfaction of any reasonable doubts before finding guilt. See Wills, 329 Md. at 382-83, 620 A.2d at 301 (1993) (explaining that "[o]ur opinions have refrained from adopting a boiler plate explanation of reasonable doubt" and that "the explanation should . . . bring home to the jury clearly that . . . the [guilt] of the accused must be proved beyond a reasonable doubt").
Any possibility that the jury interpreted unconstitutionally the reasonable doubt instruction as given is extinguished when it is viewed as a whole, rather than a series of isolated and dissected phrases and sentences. Upon issuing the instruction, the trial court first informed the jury that Savoy
comes into court clothed with the presumption of innocence, which remains with him from the beginning to the end of the trial as though it were testified to and supported by evidence that the defendant is innocent. The burden of proving the defendant guilty is upon the prosecution from the beginning to the end of the trial for every element of the crime charged. The defendant has no burden to sustain and does not have to prove his innocence.
Imbued with this knowledge, the jury would interpret properly the phrase "convincing grounds of probability." Anything less than a moral convictionclose to, but not necessarily an absolute or mathematical certaintyis insufficient to rebuff the defendant's presumed innocence. Stated another way, before evaluating the evidence, the defendant stands as innocent. To make a finding of guilt, the jury must travel the entire probability spectrum until it arrives, convinced, at the opposite conclusion.
B. Himple Is Flawed Fatally
The Victor Court's explication of the importance of a holistic review of reasonable doubt jury instructions predates Himple. See Victor (decided 22 March 1994); Himple (decided 28 September 1994). Yet, the Himple Court failed to take Victor *866 into account. In its opinion, the Himple Court referenced only a small portion of the subject instruction therehoning in narrowly on two problematic phrases in the instruction while disregarding the rest. Nevertheless, despite its suspect value given this omission, Himple becomes the Majority's mainstay in order to conclude that the phrase "convincing grounds of probability" erased all of the qualifying and explanatory instructions the jury heard previously and thereafter, such that the problematic phrase stood alone.
C. Cage
In Cage, the trial court had informed the jury that a reasonable doubt is an "actual substantial doubt," one that gives rise to a "grave uncertainty. . . ." Cage, 498 U.S. at 40, 111 S.Ct. at 329, 112 L.Ed.2d at 342. The instruction in Cage stands in stark contrast to the instruction in the present case. Undoubtedly, the phrase "convincing grounds of probability" is not the most accurate description of the reasonable doubt standard and, taken in isolation, may produce an instructional shortcoming. Unlike Cage, however, the phrase here was not so immediately severe and misleading, was prefaced with a contextual instruction about the presumed innocence of the defendant (i.e., the starting point of any jury deliberations), and was followed by an alternate definition of the standard of proof.
The trial court here did not suggest that, to acquit, the jury must possess an actual substantial doubt or a grave uncertainty; rather, the trial court stated clearly that Savoy was, by dint of legal entitlement, innocent at all times during the trial, and that the jury must acquit if the State's evidence does not address all those doubts that are reasonable or produce a certainty that, while not necessarily mathematical or absolute in nature, is personally and morally satisfying. ("[I]f you feel that the prosecution has failed to prove beyond a reasonable doubt and to a moral certainty all of the evidence necessary to convict, then you must acquit the defendant.") Such contextual and curative language, absent in Cage, ensured that the instruction in the present case conveyed properly the "evidentiary certainty," See Cage, 498 U.S. at 41, 111 S.Ct. at 330, 112 L.Ed.2d at 342, required to convict Savoy, allowing a finding of guilty only upon a degree of proof beyond a reasonable doubt.
While the reasonable doubt standard is "an ancient and honored aspect of our criminal justice system," it "defies easy explication." Victor, 511 U.S. at 5, 114 S.Ct. at 1242, 127 L.Ed.2d. at 590. The U.S. Constitution "does not require that any particular form of words be used in advising the jury of the government's burden of proof." Id. Rather, the judiciary is charged with preventing "against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt." Taylor v. Kentucky, 436 U.S. 478, 485-86, 98 S.Ct. 1930, 1935, 56 L.Ed.2d 468, 475 (1978) (quoting Estelle, 425 U.S. at 503, 96 S.Ct. at 1693, 48 L.Ed.2d at 130).
In the present case, the Court of Special Appeals declined properly to take cognizance of plain error in the unpreserved jury instruction. Although there was error in the subject jury instruction, it was not plain and material, given the fact that the instruction, taken as a whole, conveyed adequately the reasonable doubt standard to the jury. Accordingly, Petitioner should not be granted a new trial.
Judge BATTAGLIA has authorized me to state that she joins in the views expressed in this dissenting opinion.
NOTES
[1] Getting to that result involved a number of procedural steps. In 2002, Petitioner filed a pro se petition for post conviction relief, asserting that he had ineffective assistance of counsel at trial and on appeal. On December 2, 2002, the post conviction court found that Petitioner had received ineffective assistance of both trial counsel, who failed to object to the instruction, and appellate counsel, who failed to challenge the reasonable doubt instruction as plainly erroneous. Accordingly, the post conviction court granted Petitioner a new trial. The State filed an application for leave to appeal to the Court of Special Appeals, which granted the application and placed the case on the regular appeal docket.
The Court of Special Appeals reversed the post conviction court's ruling that trial counsel was ineffective. The appellate court, though, agreed with the post conviction court that Petitioner received ineffective assistance of appellate counsel and held that a belated appeal was the appropriate relief.
[2] See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
[3] Rule 8-131(a) reads in its entirety:
Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.
[4] The overwhelming majority of courts that have considered this issue have held, as we do here, that un-preserved structural errors are not automatically reversible, but, instead, are subject to plain error review. See United States v. Birbal, 62 F.3d 456, 461 (2d Cir. 1995) (applying plain error review to un-objected-to constitutionally deficient reasonable doubt instruction); United States v. Washington, 12 F.3d 1128, 1138 (D.C.Cir.1994) (explaining that an un-objected-to constitutionally deficient reasonable doubt instruction is structural error under Sullivan and applying plain error review); United States v. Colon-Pagan, 1 F.3d 80, 81 (1st Cir.1993) (Breyer, J.) ("Because appellant's counsel did not object to [a constitutionally deficient reasonable doubt instruction] at trial, the issue on appeal is whether [the instructions] contain an error that is `plain' or a `defect' [] that affect[s] substantial rights"). See also United States v. David, 83 F.3d 638, 647-48 (4th Cir. 1996) (applying plain error review to structural error); United States v. Lopez, 71 F.3d 954, 960 (1st Cir. 1995) ("In all events, our best guess is that the Supreme Court would regard an omitted element reversible error per se if there were a timely objectionalthough not automatically `plain error' if no objection occurred. . . .").
Petitioner relies for the contrary view on two out-of-state cases, People v. Duncan, 462 Mich. 47, 610 N.W.2d 551 (2000), and State v. Colon, 118 Ohio St.3d 26, 885 N.E.2d 917 (2008). We do not find those cases persuasive.
The analysis in Duncan, in our view, is flawed. True, the Michigan Supreme Court held in Duncan that structural errors are automatically reversible, regardless of the failure to make a contemporaneous objection. 610 N.W.2d at 552 (reversing defendant's conviction despite failure to object at trial to instruction's omission of all of the elements of a crime because the omission was structural error). In so holding, the Michigan Supreme Court misconstrued, and thereby misapplied, Supreme Court precedent, particularly Sullivan, Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), and Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), to support that court's conclusion that structural errors are not subject to preservation requirements. As explained above, Sullivan says nothing about automatic appellate review of un-preserved structural errors. Neither does Neder, in which the Supreme Court held that the omission of an element of a crime in a jury instruction is subject to harmless-error analysis. 527 U.S. at 10, 119 S.Ct. 1827 (in fact, an objection was made to the omission at trial). And in Johnson, the Supreme Court expressly avoided deciding whether the instructional error was structural and thus automatically reversible, explaining that, even if it was, the error did not "seriously affect[] the fairness, integrity or public reputation of [the] judicial proceeding[]" and would not warrant exercise of plain error review. 520 U.S. at 469, 117 S.Ct. 1544 ("But we need not decide that question because, even assuming that the failure to submit materiality to the jury [was a structural error], it does not meet the final requirement of [plain error].").
Nor are we persuaded by Colon, 885 N.E.2d at 926, which was expressly overruled by the Ohio Supreme Court in State v. Horner, 126 Ohio St.3d 466, 935 N.E.2d 26, 34 (2010) (expressly overruling Colon and stating "[w]e hold that failure to timely object to a defect in an indictment constitutes a waiver" and "is limited to a plain-error review on appeal").
[5] We made clear in Ruffin that:
Our holding in this case represents a change in a Maryland common law principle and not an overruling of prior cases on the ground that they were erroneously decided. Consequently, the defendant Ruffin is entitled to the benefit of our holding, but, otherwise, the holding shall be applied only prospectively. In other words, today's holding "applies to the instant case [] . . . and to all [criminal] trials commencing and trials in progress on or after the date this opinion is filed."
394 Md. at 373 n. 7, 906 A.2d at 371 n. 7 (citation omitted).
[6] MPJI-CR 2:02 provides:
The defendant is presumed to be innocent of the charges. This presumption remains with the defendant throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The defendant is not required to prove [his] [her] innocence. However, the State is not required to prove guilt beyond all possible doubt or to a mathematical certainty. Nor is the State required to negate every conceivable circumstance of innocence.
A reasonable doubt is a doubt founded upon reason. Proof beyond a reasonable doubt requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs. However, if you are not satisfied of the defendant's guilt to that extent, then reasonable doubt exists and the defendant must be found not guilty.
[7] Sullivan, which dealt with a reasonable doubt jury instruction, came before Victor. Sullivan, though, did not address whether the reasonable doubt jury instruction in that case was constitutionally defective, as the State conceded there that the instruction was identical to that used in Cage and thus constitutionally defective. See Sullivan, 508 U.S. at 277, 113 S.Ct. 2078. At issue in Sullivan was whether the error was subject to harmless error analysis. As we have said, the Court held that a constitutional defect in a reasonable doubt instruction is not subject to harmless error analysis. Id.
[8] For similar reasons, the Court rejected Victor's objection to the use of the term "moral certainty" and "strong probabilities." Victor, 511 U.S. at 21-22, 114 S.Ct. 1239.
[9] The court gave the following reasonable doubt instruction at Himple's trial:
The burden of proving the defendant guilty is upon the prosecution from the beginning to the end of the trail [sic]. The defendant has no burden to sustain, does not have to prove his innocence.
. . . .
The charges against the defendant are not evidence of guilt, they are merely a complaint to let the Jury and the defense know what the charges are. The test of reasonable doubt is the evidence that the State has produced must be so convincing that it would enable you to act on an important piece of business in your everyday life. The words, to a moral certainty, do not mean absolute or mathematical certainty, but a certainty based upon a convincing ground of probability.
Himple, 101 Md.App. at 581, 647 A.2d at 1241 (emphasis added).
[10] Although not raised by Petitioner, the use of the phrase "moral certainty" has been discouraged by courts around the country. See, e.g., Gilday v. Callahan, 59 F.3d 257, 262-63 (1995) (expressing concern that the term could leave "the jury [] feel[ing] justified in convicting based on a feeling rather than on the facts of the case"); Commonwealth v. Pinckney, 419 Mass. 341, 644 N.E.2d 973 (1995) (noting that the use of the term without surrounding clarifying language can be reversible error).
[11] Petitioner framed the question as whether the Court of Special Appeals abused its discretion in failing to take cognizance of the error as "plain." We need not answer that precise question, however, as we shall exercise our independent discretion under Rule 4-325(e) to take cognizance of the error. See Squire v. State, 280 Md. 132, 134, 368 A.2d 1019, 1020 (1977) (explaining that under Md. Rule 756(g)the predecessor to Md. Rule 4-325(e)the Court of Appeals has independent discretion to take cognizance of plain error in jury instructions).
[1] In the Majority opinion's eyes, the sentence should have read: The test of reasonable doubt is that the evidence that the State produced must be so convincing that it would enable you to act on an important piece of business in your every day life without reservation.
[2] Not all errors in a reasonable doubt jury instruction constitute constitutional deficiency. Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1242-43, 127 L.Ed.2d 583, 590 (1994). The above standard determines which reasonable doubt errors are eligible for discretionary review as constitutionally deficient.
[3] Because the Majority opinion decided that the error was constitutionally deficient, it was able to determine, as a matter of rote, that the error was also structural in nature, such that a harmless error analysis was inapposite. Majority op. at 247, 22 A.3d at 854 ("If . . . we determine that the reasonable doubt instruction was constitutionally deficient, then the error is structural and defies analysis by harmless error standards."). A constitutional deficiency is classified as a structural error because it affects the entire trial process. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302, 331-32 (1991). An inadequate jury instruction "necessarily render[s] a trial fundamentally unfair." Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460, 470 (1986). Therefore, prejudice against the defendant is presumed and reversal of the conviction is mandated. See Fulminante, 499 U.S. at 310, 111 S.Ct. at 1265, 113 L.Ed.2d at 331 (stating that a criminal trial cannot accurately determine guilt or innocence if there is a structural error present).
Structural error is distinct from a "trial error," which is evaluated using the harmless error standard: the defendant must prove prejudice, then the severity of the error is quantified to determine whether a new trial ought to be granted. Fulminante, 499 U.S. at 307-08, 111 S.Ct. at 1263-64, 113 L.E.2d. at 329-30.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2550792/
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79 So.3d 828 (2011)
Eric BAZEMORE, Appellant,
v.
STATE of Florida, Appellee.
No. 2D10-2254.
District Court of Appeal of Florida, Second District.
December 30, 2011.
Rehearing Denied February 17, 2012.
*829 James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
ALTENBERND, Judge.
Eric Bazemore appeals his judgments and sentences arising from his involvement in a murder and an attempted murder. We reverse his judgment for attempted second-degree murder and remand that offense for a new trial. We affirm his judgments for accessory after the fact to first-degree murder and accessory after the fact to shooting into a vehicle. Because the reversal might affect Mr. Bazemore's sentences on the two judgments that we affirm, we reverse all of the sentences.
In September 2009, Mr. Bazemore drove his employer, William Privett, to the home of Eric Brewer. Shirley Sexton, Mr. Privett's former girlfriend, was a friend of Mr. Brewer's wife and was living temporarily at the Brewers' home. Mr. Bazemore pulled into the driveway behind a car occupied by Mr. Brewer and Ms. Sexton. Mr. Privett got out of the car, pulled out a handgun, and fired multiple shots at the two victims. Mr. Brewer died, and Ms. Sexton survived. After the shooting, Mr. Bazemore drove Mr. Privett from the scene.
Mr. Privett contacted a lawyer shortly after this shooting and arranged to turn himself in to law enforcement. The investigation then led to Mr. Bazemore. He too had contacted a lawyer who initially told him to "lay low." Thereafter, he was interviewed by a detective. After several interviews, Mr. Bazemore finally provided a location that allowed law enforcement to find the discarded murder weapon in a ditch alongside a road.
This case was presented to a grand jury, and the grand jury returned an indictment against both men. It charged Mr. Bazemore in count I as a principal in the firstdegree murder of Mr. Brewer and in count IV as an accessory after the fact to that same murder. It further charged him in count II as a principal in the attempted first-degree murder of Ms. Sexton and in count V as an accessory after the fact to that same attempted first-degree murder. Finally, in count VI, it charged him as an *830 accessory after the fact to shooting into a vehicle.[1]
The alternative offenses described in the indictment are based in part on Mr. Bazemore's theory of defense. The primary issue at trial was whether Mr. Bazemore had enough knowledge and involvement in these events to be a principal to the offenses of murder and attempted murder. The defense theory was that Mr. Bazemore had no idea that Mr. Privett planned to shoot his victims and that Mr. Bazemore fled the scene with Mr. Privett because he was afraid of Mr. Privett.
The State established a prima facie case of all five counts against Mr. Bazemore. Before the case was submitted to the jury, Mr. Bazemore asked for an instruction explaining to the jury that the theory of principal to a murder or attempted murder was mutually exclusive of the theory of accessory after the fact to these offenses. The trial court refused to give this instruction.
The jury found Mr. Bazemore not guilty in count I for the first-degree murder of Mr. Brewer, but found him guilty in count IV as an accessory after the fact to this first-degree murder. It also found him guilty in count VI as an accessory after the fact to the shooting into the vehicle. We affirm the judgments based on the two guilty verdicts.
In count II, the jury found Mr. Bazemore guilty of the lesser-included offense of attempted second-degree murder of Ms. Sexton. It also found him guilty in count V as an accessory after the fact to the same attempted second-degree murder. Thereafter, the trial court decided to sentence Mr. Bazemore only on the greater offense in count II. It declined to enter judgment or sentence on the related accessory charge in count V, describing that offense as "dismissed."
Mr. Bazemore has raised six issues and we will address three of them. First, the trial judge gave an instruction on attempted manslaughter that is virtually identical to the erroneous instruction in Houston v. State, ___ So.3d ___, 2011 WL 3518029 (Fla. 2d DCA 2011), appeal dismissed, State v. Houston, 73 So.3d 760 (Fla.2011).[2] Because the jury convicted Mr. Bazemore of attempted second-degree murder, this erroneous instruction on the next lesser offense requires that the conviction on this count be reversed and this count be remanded to the trial court for a new trial. We certify that our holding here, as in Houston, conflicts with the Fourth District's holding in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), cert. granted, 64 So.3d 1262 (Fla.2011).
Even if the attempted manslaughter instruction were not erroneous, we would still be required to reverse this conviction and remand for a new trial as to the attempted murder of Ms. Sexton. It is well established that a defendant cannot be convicted both as a principal to an offense and as an accessory after the fact for the same offense. Staten v. State, 519 So.2d 622, 623 (Fla.1988); Bowen v. State, 791 So.2d 44, 50 (Fla. 2d DCA 2001). Even though there is no standard instruction for this circumstance, Mr. Bazemore was entitled to an instruction explaining that the jury could convict him of only one of these offenses.
There may be occasions when the trial court could select the greater offense for *831 sentencing and omit sentencing on the lesser offense as occurred here. But in this case, the jury found Mr. Bazemore not guilty as a principal in the murder of Mr. Brewer. Notably, the verdict form did not identify the victims by name when describing each count. In examining this verdict, we cannot declare beyond a reasonable doubt that the jury's inconsistent verdict is harmless and that the jury would have selected the greater offense over the lesser offense if forced to choose. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).[3]
Finally, during the trial, the court allowed the prosecutor to admit portions of Mr. Bazemore's statement to the detective when he was interviewed. Over objection, the court allowed the State to include portions of the interview in which Mr. Bazemore explained that he had contacted an attorney and had been advised to "lay low." The trial court was apparently persuaded by the State's argument that these statements were evidence of consciousness of guilt.
The Fourth District has held that the state cannot argue that a defendant's request for a lawyer prior to arrest is evidence of consciousness of guilt. Dendy v. State, 896 So.2d 800, 804 (Fla. 4th DCA 2005). Given all of the reasons to avoid the presentation of attorney-client discussions to the jury and in light of the questionable probative value of this "evidence," the State primarily argues that this error was harmless beyond a reasonable doubt. As to the judgments that we affirm, we agree with that assessment. As to the judgment that we are reversing, we need not reach this issue. However, if we were not reversing the attempted second-degree murder judgment on other grounds, it would be a very close question as to whether this error required reversal. Suffice it to say that this evidence should not be reintroduced at any subsequent trial in this case.
Affirmed in part, reversed in part, and remanded.
NORTHCUTT and VILLANTI, JJ., Concur.
NOTES
[1] Count III dealt exclusively with Mr. Privett.
[2] See also Brown v. State, 74 So.3d 539 (Fla. 2d DCA 2011); Brooks v. State, 75 So.3d 756 (Fla. 2d DCA 2011); Mueller v. State, ___ So.3d ___, 2011 WL 4104912 (Fla. 2d DCA 2011); but see Banek v. State, 75 So.3d 762 (Fla. 2d DCA 2011).
[3] We have considered whether the errors requiring the reversal of the conviction for the attempted second-degree murder of Ms. Sexton could be cured by convicting Mr. Bazemore on the jury verdict for accessory after the fact to this offense. Given that this count was "dismissed," we are unconvinced that we could require this remedy. We leave this issue for the parties to consider on remand.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2551025/
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10 A.3d 942 (2011)
299 Conn. 447
STATE of Connecticut
v.
Marvin KITCHENS.
No. 18421.
Supreme Court of Connecticut.
Argued March 23, 2010.
Decided January 5, 2011.[*]
*946 Meghan L. Greco, special public defender, with whom was Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).
Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Herbert Carlson, former supervisory assistant state's attorney, for the appellee (state).
ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.[**]
ZARELLA, J.
The defendant, Marvin Kitchens, appeals[1] from the judgment of conviction, *947 rendered after a jury trial, of kidnapping in the second degree in violation of General Statutes § 53a-94 (a)[2] and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a).[3] On appeal, the defendant claims that the trial court improperly (1) failed to instruct the jury, in accordance with State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), that any confinement or movement of the victim had to exceed that which was incidental or necessary to the commission of the underlying offenses, and (2) included in its jury instructions the conduct element of the statutory definition of intent under General Statutes § 53a-3 (11),[4] even though kidnapping and unlawful restraint are specific intent crimes.[5] We disagree and, accordingly, affirm the judgment of the trial court.
The record reveals the following relevant facts and procedural history. On the night of April 19, 2007, the victim, Jennaha Ward, was playing cards with her godfather, Ronald Sears, at Sears' second story apartment in the city of Hartford. While playing cards, the victim and Sears decided to eat, and Sears went out and purchased shrimp for them to fry. The victim then prepared the shrimp while Sears heated cooking oil in a cast iron skillet. While they were eating the shrimp, the defendant called Sears' cell phone looking for the victim, with whom the defendant had been in a five month extramarital relationship that the victim recently had ended. The defendant told the victim that he was around the corner from Sears' apartment and asked whether she would come down and talk to him, and the victim said that she would. The victim, however, did not intend to speak to the defendant. Rather, she went downstairs to lock the door to make sure that he could not get inside. When the victim reached the first floor landing, she jumped up to look out the window above the door to see whether *948 the defendant had arrived yet. As soon as she landed back on her feet, he burst through the door, grabbed her by her clothing and pulled her outside. After the defendant heard a woman say that she was calling the police, he again grabbed the victim by her clothing and dragged her back inside and upstairs to Sears' apartment.
Once upstairs in the apartment, the defendant asked the victim why she had ended their relationship and physically[6] blocked her from leaving the apartment when she tried to run out the door. Following the altercation that ensued between the defendant and the victim, during which Sears asked them to take their dispute outside, she sustained first and second degree burns to her face after her head made contact with the skillet containing the frying oil.[7] The defendant then fled the apartment, at which time Sears called for the police and emergency assistance. The victim received treatment for her facial burns at Saint Francis Hospital and Medical Center, and the Burn Center at Bridgeport Hospital.
After a police investigation,[8] the defendant was arrested, and the state charged him in a five count information with assault in the first degree in violation of General Statutes § 53a-59 (a)(1), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a)(2) and 53a-49 (a)(2), burglary in the second degree in violation of General Statutes (Rev. to 2007) § 53a-102 (a)(1), kidnapping in the second degree in violation of § 53a-94 (a), and unlawful restraint in the first degree in violation of § 53a-95 (a). Following a jury trial and the trial court's denial of defense counsel's oral motion for judgment of acquittal, the jury returned a verdict of not guilty on the assault, attempted assault and burglary charges, but guilty on the kidnapping and unlawful restraint charges. The trial court then rendered judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of twelve years imprisonment, execution suspended after eight years, and five years probation. This appeal followed.
I
The defendant first claims that the trial court failed to instruct the jury, in accordance with the line of cases starting with State v. Salamon, supra, 287 Conn. 509, 949 A.2d 1092, that it could not find the *949 defendant guilty of kidnapping if the restraint or movement of the victim was limited to that necessary or incidental to the commission of an underlying offense. Relying on footnote 35 of the majority opinion in Salamon, the defendant argues that he was entitled to this instruction because a reasonable jury could have found that the restraint in this case was incidental to the underlying offense of assault, notwithstanding the fact that the jury had found him not guilty on that charge. In response, the state, relying on our recent decision in State v. Winot, 294 Conn. 753, 762 n. 7, 988 A.2d 188 (2010), contends that a new trial is not required under Salamon because the defendant had completed the crime of kidnapping before engaging in the conduct that gave rise to the assault and attempted assault charges of which he was acquitted, and that the force underlying the assault charges was different from that utilized to accomplish the kidnapping. The state also contends that the acquittal on the assault charges rendered any failure to give the Salamon instruction harmless error not requiring reversal because an acquittal on those charges is a binding determination that there were no underlying crimes and, further, would create confusion on retrial. We agree with the state and conclude that the acquittal on the underlying assault charges rendered the lack of a Salamon instruction harmless error.
The record reveals the following additional facts and procedural history. The case was tried in late February and early March of 2008, four months prior to the July 1, 2008 release of our decision in State v. Salamon, supra, 287 Conn. 509, 949 A.2d 1092. The trial court's instruction on kidnapping in the second degree did not direct the jury to consider whether the restraint imposed exceeded that necessary or incidental to the underlying assault crimes.[9] Further, the defense did not file a request to charge the jury, or take an exception to the instructions as given, to that effect.
Notwithstanding the defendant's failure to preserve this issue at trial, our interpretation of the kidnapping statutes in Salamon "may be applied to the present case because of the general rule that judgments that are not by their terms limited to prospective application are presumed to *950 apply retroactively . . . to cases that are pending. . . . Marone v. Waterbury, 244 Conn. 1, 10-11, 707 A.2d 725 (1998)." (Internal quotation marks omitted.) State v. Thompson, 118 Conn.App. 140, 154, 983 A.2d 20 (2009), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010); see also State v. Hampton, 293 Conn. 435, 462 n. 16, 978 A.2d 1089 (2009) (following Marone and concluding that Salamon is applicable to pending appeal in case tried nearly two years prior to its release).
"We begin with the well established standard of review governing the defendant's challenge to the trial court's jury instruction. Our review of the defendant's claim requires that we examine the [trial] court's entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction. . . . While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request. . . . If a requested charge is in substance given, the [trial] court's failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury. . . we will not view the instructions as improper. . . . Additionally, we have noted that [a]n [impropriety] in instructions in a criminal case is reversible . . . when it is shown that it is reasonably possible for [improprieties] of constitutional dimension or reasonably probable for nonconstitutional [improprieties] that the jury [was] misled." (Citations omitted; internal quotation marks omitted.) State v. Hampton, supra, 293 Conn. at 458, 978 A.2d 1089.
In State v. Salamon, supra, 287 Conn. 509, 949 A.2d 1092, we "reconsidered and reversed our long-standing jurisprudence holding that the crime of kidnapping encompasses restraints that are necessary or incidental to the commission of a separate underlying crime; see, e.g., State v. Luurtsema, 262 Conn. 179, 201-203, 811 A.2d 223 (2002); concluding that `[o]ur legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from unlawful restraints by the presence of an intent to prevent a victim's liberation, intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim.'" State v. DeJesus, 288 Conn. 418, 429, 953 A.2d 45 (2008). We emphasized, however, that "[o]ur holding [did] not represent a complete refutation of the principles established by our prior kidnapping jurisprudence. First, in order to establish a kidnapping, the state is not required to establish any minimum period of confinement or degree of movement.[10] When that confinement or movement is merely incidental to the commission of another crime, however, the confinement or movement must have exceeded that which was necessary to commit the other crime." State v. Salamon, supra, at 546, 949 A.2d 1092.
We also emphasized that "a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim *951 was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury." Id., at 547-48, 949 A.2d 1092. Indeed, we directed trial courts to instruct juries making that determination "to consider the various relevant factors, including the nature and duration of the victim's movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the defendant's risk of detection and whether the restraint created a significant danger or increased the victim's risk of harm independent of that posed by the separate offense." Id., at 548, 949 A.2d 1092.
Moreover, we emphasized in Salamon, in which the defendant "ultimately was not tried for assault," that "a defendant is entitled to an instruction that he cannot be convicted of kidnapping if the restraint imposed on the victim was merely incidental to the assault, regardless of whether the state elects to try the defendant for assault, because the facts reasonably would support an assault conviction." Id., at 550 n. 35, 949 A.2d 1092. Citing numerous sister state cases, we noted in footnote 35 of that opinion that "[t]o conclude otherwise would give the state carte blanche to deprive the defendant of the benefit of such an instruction merely by declining to charge him with the underlying crime, which . . . generally will carry a far less serious maximum possible penalty than the kidnapping charge." Id., at 551 n. 35, 949 A.2d 1092.
Relying on this footnote from Salamon, the defendant claims that he is entitled to a new trial,[11] even though he was acquitted of the underlying assault and attempted assault charges arising from the victim's facial injuries. We disagree. First, the failure to give a Salamon instruction is not reversible error per se; it may be harmless on the facts of a *952 particular case, as is demonstrated by our recent decision in State v. Hampton, supra, 293 Conn. 435, 978 A.2d 1089, in which we concluded that the defendant's failure to receive a Salamon instruction was harmless beyond a reasonable doubt because, although the defendant had been charged with both kidnapping and sexual assault, "the record [did] not contain evidence that could rationally lead to a contrary finding by the jury as to whether the defendant's restraint of the victim had been inherent in, or merely incidental to, the [additional] alleged crimes. The state presented overwhelming evidence that the defendant and [his accomplice] had kidnapped the victim and had driven around Hartford and East Hartford with her for well over three hours before the defendant's alleged commission of any other crimes commenced." Id., at 463, 978 A.2d 1089; see also id., at 464, 978 A.2d 1089 ("The passage of this substantial period of time, which was uncontested by the defendant at trial, clearly show[ed] the defendant's intent to prevent the victim's liberation for a longer period of time or to a greater degree than that necessary to commit the subsequent crimes. His restraint of the victim was not incidental to any additional offenses.").
We also find persuasive footnote 7 in State v. Winot, supra, 294 Conn. at 762-64, 988 A.2d 188, in which the majority responded to the dissenting justices' conclusion that the absence of a Salamon instruction required the defendant in that case to receive a new trial because the evidence that supported his conviction for kidnapping in the second degree "disclose[d] conduct that could constitute another crime, i.e., assault in the third degree, breach of the peace, creating a public disturbance or disorderly conduct, to which a jury reasonably could find the restraint was wholly incidental." Id., at 784, 988 A.2d 188 (Katz, J., dissenting). Concluding that the rule of Salamon was inapplicable to Winot, the majority emphasized that "there was no evidence presented at trial suggesting that the defendant, when he grabbed the victim's arm, was in the process of committing another crime against her to which the restraint potentially was incidental"; id., at 763 n. 7, 988 A.2d 188; and disagreed with the dissent justices' assertion that the evidence "disclose[d] conduct that could constitute another crime . . . [because] there was no evidence that the defendant injured or struck the victim. Accordingly, a jury could not find that the defendant's restraint of the victim was incidental to the commission of assault in the third degree or breach of the peace in the second degree." (Internal quotation marks omitted.) Id. We also noted that "the evidence was overwhelming that the defendant, when he accosted the victim, intended to prevent her liberation"; id., at 763-64 n. 7, 988 A.2d 188; which meant that, "even if the defendant's restraint of the victim also could be found to constitute the violent, tumultuous or threatening behavior proscribed by our statutes criminalizing [the] creation of a public disturbance . . . and disorderly conduct . . . no jury reasonably could conclude that the kidnapping was incidental to his commission of those crimes, rather than the converse." (Citations omitted; internal quotation marks omitted.) Id., at 764 n. 7, 988 A.2d 188. Finally, we "disagree[d] with the defendant that he [was] entitled to an incidental instruction in connection with the charge of risk of injury to a child. . . ." Id. Most tellingly with respect to the present case, we emphasized in Winot that the Appellate Court's reversal in that case of the defendant's risk of injury conviction for insufficiency of the evidence meant that he would not be retried on that charge, and, therefore, "a remand of [the] matter for an instruction on the incidental rule in relation to risk of injury would [have been] illogical and wholly confusing to the jury. *953 See Walker v. Commonwealth, 47 Va.App. 114, 122-24, 622 S.E.2d 282 (2005) (incidental rule inapplicable [when] defendant acquitted of robbery), aff'd, 272 Va. 511, 636 S.E.2d 476 (2006); see also People v. Robbins, 131 Mich.App. 429, 433, 346 N.W.2d 333 (1984) (incidental rule inapplicable [when] trial court granted defendant's motion for directed verdict on underlying assault charge); State v. French, 139 Vt. 320, 321, 428 A.2d 1087 (1981) (incidental rule inapplicable [when] defendants acquitted of sexual assault). . . ." (Citation omitted.) State v. Winot, supra, at 764 n. 7, 988 A.2d 188.
Having reviewed the record in this case, we conclude that, in light of the multitude of charged offenses, including assault and attempt to commit assault, arising from the same continuum of events, the defendant should have received a Salamon instruction. See State v. Salamon, supra, 287 Conn. at 550 n. 35, 949 A.2d 1092. We agree, however, with the state that the lack of such an instruction was harmless under the circumstances because the defendant was acquitted of all charges other than kidnapping and unlawful restraint, thus indicating that the jury believed only the victim's allegations with respect to the defendant's moving her forcibly from the apartment building's vestibule to another area outside and then back inside and up to Sears' apartment, where the defendant then confined her temporarily. Put differently, the jury's verdict, which indicated the jury's disbelief of the victim's allegations of assault; see footnote 7 of this opinion; is a conclusive finding that there was no separate crime underlying the kidnapping charge. See State v. Hampton, supra, 293 Conn. at 463, 988 A.2d 167 (concluding that defendant's failure to receive Salamon instruction was harmless beyond reasonable doubt, even though he had been charged with both kidnapping and sexual assault, because "the defendant and [his accomplice] had kidnapped the victim and had driven around . . . with her for well over three hours before the defendant's alleged commission of any other crimes commenced"); see also People v. Robbins, supra, 131 Mich.App. at 433, 346 N.W.2d 333 (trial court properly declined to instruct on incidental rule because, after granting of directed verdict on underlying assault charge, "no one suggested that any underlying lesser or co-equal offense could be found to have been committed, and there was no evidence of any such offense"); People v. Gonzalez, 80 N.Y.2d 146, 148, 153, 603 N.E.2d 938, 589 N.Y.S.2d 833 (1992) (concluding that second degree kidnapping conviction arising from "a lengthy odyssey on the streets of Brooklyn," prior to alleged sexual assault, should not have been merged with acquittal for attempted sexual assault because "[t]he abduction constituted the discrete crime of second degree kidnapping which was already completed, in all its elements, before the victim was allegedly sexually assaulted," and because "[t]he restraint was not a minimal intrusion necessary and integral to another crime . . . [or] simultaneous and inseparable from another crime," but, rather, "was a crime in itself"); People v. Cruz, 296 App.Div.2d 22, 26-27, 745 N.Y.S.2d 528 (merger doctrine inapplicable when "there is sufficient evidence of restraint but insufficient evidence of the other charged crime"), appeal denied, 99 N.Y.2d 534, 782 N.E.2d 572, 752 N.Y.S.2d 594 (2002); State v. French, supra, 139 Vt. at 321, 428 A.2d 1087 (incidental rule inapplicable when defendant acquitted of sexual assault because "the kidnapping, if proven in every element, can stand on its own"); Walker v. Commonwealth, supra, 47 Va.App. at 122, 124, 622 S.E.2d 282 (rejecting defendant's claim that he was entitled to reversal of abduction conviction on ground that "detention should be ignored because it was incidental to the claimed robbery" when defendant was acquitted of robbery *954 charge, thereby rendering incidental rule inapplicable).
Moreover, we agree with the state that remanding the case for a new trial on this ground would create the risk of confusion, as well as illogical jury instructions at the new trial, particularly given the distinction between uncharged crimes and crimes of which a defendant has been acquitted. Cf. State v. Smith, 289 Conn. 598, 611-12, 960 A.2d 993 (2008) (noting distinction between nolle prosequi, which restores defendant to preinformation status and permits "the state [to] continue prosecution of a defendant only after filing a new information and making a new arrest of the defendant within the statute of limitations," and dismissal of charges with prejudice). Indeed, the defendant cannot be retried for assault or attempted assault because of his acquittal on those counts at the first trial; see, e.g., State v. Tate, 256 Conn. 262, 284, 773 A.2d 308 (2001); and the introduction of evidence of the victim's assault claims, which the jury already had rejected on the basis of its verdict in this case, could be unduly prejudicial and precluded at that new trial. Accordingly, we conclude that the lack of a Salamon instruction was harmless and does not require a new trial.
II
The defendant next claims that the trial court improperly instructed the jury on the element of intent necessary to find the defendant guilty of kidnapping and unlawful restraint. See General Statutes § 53a-3 (11).[12] The defendant specifically claims that the trial court's instruction that "a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or to engage in such conduct" was improper because kidnapping and unlawful restraint are specific intent crimes to which the conduct portion of the statute does not apply. The defendant concedes that no exception was taken to the challenged instruction at trial and requests our review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state responds that the defendant waived or "forfeited" his jury instruction claim when the defense ignored multiple opportunities afforded by the trial court to examine the instructions and flag any errors while there was still time to correct them. The state alternatively argues that the defendant cannot satisfy the third prong of Golding because the jury could not reasonably have been misled so as to find him guilty without finding specific intent. We agree with the state that the defendant cannot prevail under Golding.
The record reveals the following relevant facts and procedural history. On February 25, 2008, the state filed a request to charge containing five suggested changes to the instructions on assault and burglary. The following day, when the trial court noted on the record that defense counsel had stated in chambers that he did not intend to file a request to charge and asked if that was still the case, counsel replied that it was. Two days later, the court held an on-the-record charge conference in which it referred to a proposed charge it previously had given to the parties.[13] After a brief discussion with *955 the assistant state's attorney (prosecutor) concerning the assault instruction, the court asked defense counsel if there was anything he wanted to discuss. Counsel indicated that he would like to discuss the prosecutor's request to charge, which the court proceeded to consider. Defense counsel agreed that the proposed language fairly stated the law and indicated that he either had no objection or preferred the standard charge. At one point, defense counsel asked that the court use less "pejorative" language in its instruction on the defendant's decision not to testify, and the court agreed to do so. At the conclusion of the conference, the court asked the attorneys, "[a]nything else about the charge. . .?" Defense counsel replied, "[n]o, Your Honor. I don't think so." After addressing certain other matters, the court advised that both attorneys should refrain from defining legal terms in their summations and should limit their arguments to the facts that would satisfy the elements of the charged crimes.[14] Both parties agreed, with defense counsel responding, "[f]air enough."
Several days later, the court informed the parties in an on-the-record conference that it had completed the jury instructions and that each attorney should obtain a copy for discussion at a future meeting. The prosecutor responded that he had stopped by the courthouse the previous day,[15] had read the completed instructions and was ready to make some suggestions, none of which related to the kidnapping or unlawful restraint counts, but that he did not know if defense counsel had done the same. The court replied that, if the prosecutor had any suggestions, it wanted to hear them at that time. Reading from his copy of the instructions, the prosecutor remarked on a typographical error and suggested one other minor correction to the instruction on credibility. At the conclusion of the discussion, the court turned to defense counsel and asked if he also had been able to examine the instructions, to which counsel replied, "[a]ctually, Your Honor, my copy is downstairs, but I didn't have any major revisions." The court then concluded: "All right. So then we don't have to get together. We're done. Okay." Neither party said anything further on the matter, and the court adjourned.
Thereafter, the parties made their closing arguments, and the court instructed the jury. The court first instructed on the element of intent under count onefirst degree assaultthat, "[a]s defined by our statute, a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result *956 or to engage in such conduct." For each substantive offense thereafter, the court repeated the preceding instruction on intent or stated as follows: "You will recall the instructions on intent that I gave you, when I explained count one and apply them here also." Upon completion of the instructions, the prosecutor stated that he had no exceptions. Defense counsel volunteered that he also had no exceptions. Neither party made any other comments and jury deliberations followed.
We first consider the state's argument that the defendant waived or "forfeited" his jury instruction claim. The state contends that our recent decision in State v. Ebron, 292 Conn. 656, 681-82, 975 A.2d 17 (2009), in which we concluded that jury instruction claims are reviewable unless the error has been induced or invited by the defense, represents a departure from our precedent that warrants reconsideration because it incorrectly treats induced error as the only form of waiver, and, even if defense counsel's acquiescence in the instruction as given does not rise to the level of induced or invited error, conduct short of induced error may constitute waiver. The state specifically argues that waiver should be found when, as in the present case, defense counsel acquiesces in the instructions following a meaningful opportunity to review them outside the rush of trial, participates in an on-the-record charge conference designed to allow counsel to identify errors while they still can be remedied and takes no exception after the charge has been delivered, when clarifying instructions can be given. The defendant responds that the state's claim is untenable in light of our recent decision in Ebron, in which we considered a claim involving similar facts and explicitly held that the claim had not been waived and was reviewable under Golding. We agree with the state that Ebron incorrectly construed the law and that the claim in the present case has been waived.
Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. "The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial." (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 90, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007).
"A defendant in a criminal prosecution may waive one or more of his or her fundamental rights." (Internal quotation marks omitted.) State v. Fabricatore, 281 Conn. 469, 478, 915 A.2d 872 (2007). "[I]n the usual Golding situation, the defendant raises a claim on appeal [that], while not preserved at trial, at least was not waived at trial. . . . [A] constitutional claim that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party . . . or that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. . . ." (Citation omitted; internal quotation marks omitted.) State v. Holness, 289 Conn. 535, 543, 958 A.2d 754 (2008).
"The mechanism by which a right may be waived . . . varies according to the *957 right at stake. . . . For certain fundamental rights, the defendant must personally make an informed waiver. . . . For other rights, however, waiver may be effected by action of counsel." (Citation omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 71, 967 A.2d 41 (2009). This court has stated that among the rights that may be waived by the action of counsel in a criminal proceeding is the right of a defendant to proper jury instructions. See, e.g., State v. Fabricatore, supra, 281 Conn. at 481-82, 915 A.2d 872. The United States Supreme Court has expressed a similar view, stating in New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000), that, "[a]lthough there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer hasand must havefull authority to manage the conduct of the trial. . . . As to many decisions pertaining to the conduct of the trial, the defendant is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney. . . . Thus, decisions by counsel are generally given effect as to what arguments to pursue . . . what evidentiary objections to raise . . . and what agreements to conclude regarding the admission of evidence. . . . Absent a demonstration of ineffectiveness, counsel's word on such matters is the last." (Citations omitted; internal quotation marks omitted.) Id., at 114-15, 120 S.Ct. 659; see also United States v. Babul, 476 F.3d 498, 500 (7th Cir.) ("[C]hoices about trial practice and managementshould a given [witness'] testimony be presented? [S]hould a hearsay objection be made? [W]hat language should be proposed for the jury instructions?are committed to counsel, not only because they are numerous [asking the defendant each time would be impractical] but also because they are the sort of choices for which legal training and experience are most helpful."), cert. denied, 551 U.S. 1126, 127 S.Ct. 2963, 168 L.Ed.2d 283 (2007).
In the present case, the record is adequate for review and the claim of instructional error on an element of the crime is of constitutional magnitude because it implicates the due process rights of the defendant. See, e.g., State v. Fabricatore, supra, 281 Conn. at 477, 915 A.2d 872. Accordingly, the question before this court is whether the defendant's claim has been waived under the third prong of Golding.
A
It is well established in Connecticut that unpreserved claims of improper jury instructions are reviewable under Golding unless they have been induced or implicitly waived. "The term `induced error,' or `invited error,' has been defined as `[a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling.' Black's Law Dictionary (7th Ed.1999) p. 563. . . ." (Citation omitted.) State v. Gibson, 270 Conn. 55, 66, 850 A.2d 1040 (2004). This court has found induced error undeserving of appellate review in the context of a jury instruction claim when the defense has affirmatively requested the challenged jury instruction; e.g., State v. Coward, 292 Conn. 296, 305-306, 972 A.2d 691 (2009); State v. Cruz, 269 Conn. 97, 106-107, 848 A.2d 445 (2004); State v. Walton, 227 Conn. 32, 67, 630 A.2d 990 (1993); State v. Hinckley, 198 Conn. 77, 81 n. 2, 502 A.2d 388 (1985); or has encouraged or prompted the court to refrain from giving an instruction that arguably should have been given. See State v. Gibson, supra, at 67-68, 850 A.2d 1040.
By comparison, "[w]aiver is an intentional relinquishment or abandonment of a known right or privilege. . . . It involves *958 the idea of assent, and assent is an act of understanding. . . . The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct. . . . In order to waive a claim of law it is not necessary . . . that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy." (Internal quotation marks omitted.) State v. Tyson, 86 Conn. App. 607, 612, 862 A.2d 363 (2004), cert. denied, 273 Conn. 927, 873 A.2d 1000 (2005). "Connecticut courts have consistently held that when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively acquiesces to the trial court's order, that party waives any such claim [under Golding]." (Internal quotation marks omitted.) Id., at 613, 862 A.2d 363.
Both this court and the Appellate Court have found implied waiver on grounds broader than those required for a finding of induced error. These include counsel's failure to take exception or object to the instructions together with (1) acquiescence in, or expressed satisfaction with, the instructions following an opportunity to review them, or (2) references at trial to the underlying issue consistent with acceptance of the instructions ultimately given. See, e.g., State v. Brewer, 283 Conn. 352, 360-61, 927 A.2d 825 (2007); State v. Fabricatore, supra, 281 Conn. at 481-82, 915 A.2d 872; State v. Collazo, 115 Conn.App. 752, 760, 974 A.2d 729 (2009), cert. denied, 294 Conn. 929, 986 A.2d 1057 (2010); State v. Duncan, 96 Conn.App. 533, 558-60, 901 A.2d 687, cert. denied, 280 Conn. 912, 908 A.2d 540 (2006); State v. Wortham, 80 Conn.App. 635, 647-50, 836 A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845 A.2d 406 (2004); State v. Hersey, 78 Conn.App. 141, 157-59, 826 A.2d 1183, cert. denied, 266 Conn. 903, 832 A.2d 65 (2003); State v. Arluk, 75 Conn.App. 181, 192-93, 815 A.2d 694 (2003); State v. Cooper, 38 Conn.App. 661, 664-70, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996). The rationale for declining to review jury instruction claims when the instructional error was induced or the claim was implicitly waived is precisely the same: "[T]o allow [a] defendant to seek reversal [after] . . . his trial strategy has failed would amount to allowing him to . . . ambush the state [and the trial court] with that claim on appeal." (Internal quotation marks omitted.) State v. Gibson, supra, 270 Conn. at 67, 850 A.2d 1040 (claimed error induced); see also State v. Fabricatore, supra, at 481-82, 915 A.2d 872 (claimed error waived).
Despite this substantial precedent, we appeared to signal an end to the concept of implied waiver in Ebron, in which we concluded that the defendant had not waived his right to Golding review. See State v. Ebron, supra, 292 Conn. at 681-82, 975 A.2d 17. In Ebron, defense counsel did not file a request to charge but had participated in discussions at trial with the prosecutor and the court regarding the proposed instructions and had made one request concerning an instruction unrelated to the defendant's claim on appeal. Id., at 677, 975 A.2d 17. Prior to closing arguments, the trial court summarized on the record its discussions with both attorneys regarding the proposed instructions and then inquired whether either side wanted to make any further changes or corrections. Id., at 678-79, 975 A.2d 17. Defense counsel responded in the negative. Id., at 678, 975 A.2d 17. After the court instructed the jury, defense counsel took no exception and confirmed that he had no objection to the instructions as given. Id., at 679, 975 A.2d 17. We nonetheless concluded in Ebron that, "although [defense counsel] acquiesced in the charge that the trial court ultimately gave to the jury, he *959 did not supply, or otherwise advocate for, the . . . language at issue . . . [on] appeal. Put differently, there is no indication that the defendant actively induced the trial court to give the . . . instruction that he. . . challenges on appeal, which renders [his] claim reviewable under Golding." (Emphasis added.) Id., at 681-82, 975 A.2d 17. In reaching our conclusion in Ebron, we relied on State v. Madigosky, 291 Conn. 28, 35 n. 7, 966 A.2d 730 (2009), which we cited for the proposition that "acquiescence at trial to [a] jury instruction challenged on appeal, without more, does not constitute induced error that would preclude review under Golding.. . ." State v. Ebron, supra, at 682, 975 A.2d 17.
Shortly thereafter, we concluded in State v. Foster, 293 Conn. 327, 339-42, 977 A.2d 199 (2009), and State v. Hampton, supra, 293 Conn. at 444-50, 978 A.2d 1089, that, although the jury instruction claims in those cases were of constitutional magnitude, they were not reviewable under Golding because the defense implicitly had waived them by failing to take exception to and expressing satisfaction with the instructions on the multiple occasions when the trial court had solicited counsel's views. Ebron is thus inconsistent with the cases that preceded and directly followed it on the issue of implied waiver. See, e.g., State v. Hampton, supra, at 450, 978 A.2d 1089 (defendant "waived" jury instruction claim); State v. Foster, supra, at 342, 977 A.2d 199 (defendant "waived his [jury instruction] claim"); State v. Holness, supra, 289 Conn. at 542, 958 A.2d 754 (defendant could not prevail because jury instruction claim fell "squarely within the waiver doctrine"); State v. Brewer, supra, 283 Conn. at 353, 927 A.2d 825 (defendant "waived at trial any claim with regard to the [challenged] instruction"); State v. Fabricatore, supra, 281 Conn. at 481, 915 A.2d 872 (defendant "waiv[ed] his right to challenge instruction on appeal"). There is no suggestion in any of the foregoing cases that we improperly used the terms "waiver" or "waived" to describe induced or invited error. Consequently, to the extent we concluded in Ebron that the claim of an improper jury instruction is reviewable under Golding only if the instructional error is not induced or invited, even if counsel fails to object or demonstrates by other conduct that he or she is satisfied with the charge as given, such a conclusion is at odds with contemporaneous decisions involving similar facts.[16]Ebron thus represents a departure from our precedent, and we now overrule our holding in that case.
*960 B
We next consider the state's argument that, if we determine that Ebron is inapplicable, the defendant's claim is unreviewable because, by acquiescing in, or expressing satisfaction with, the instructions as given, the defense either waived or forfeited the right to challenge them on appeal. The state specifically contends that implied waiver, which falls short of induced error, may be found when counsel accepts instructions in response to the court's focused inquiry because such acceptance unambiguously communicates that the instructions are fair to the defense, and, therefore, counsel's conduct constitutes a knowing and intelligent relinquishment or abandonment of the right to challenge them on appeal. The state further contends that, even if such conduct does not constitute a knowing and intelligent waiver, counsel's failure to take advantage of opportunities specifically designed for timely focus on the prevention of instructional error represents a forfeiture that precludes Golding review. The state thus suggests that waiver may be found when the defense acquiesces in the jury instructions following the court's careful solicitation of comments from both parties and an adequate opportunity to object to any perceived instructional flaws. We do not entirely agree with the state's legal argument.[17] We conclude, however, that, in light of the particular circumstances of this case, the defendant implicitly waived his claim of instructional error.
The defendant's claim provides this court with a timely opportunity to reexamine and clarify Connecticut law on implied waiver. We begin by comparing waiver and forfeiture and noting that waiver is the "intentional relinquishment or abandonment of a known right," whereas forfeiture is "the failure to make the timely assertion of a right. . . ."[18] (Internal quotation marks omitted.) Mozell v. Commissioner *961 of Correction, supra, 291 Conn. at 71, 967 A.2d 41. Failure to make the timely assertion of a constitutional right, however, is not a bar to appellate review of an unpreserved Golding claim but, rather, the precise reason why such review is permissible. Accordingly, we reject the state's contention that the defendant's claim, in the absence of waiver, should not be reviewed because it was not timely asserted and instead affirm the principle that, if this court determines that the defendant did not expressly or implicitly waive his claim or induce the alleged error, Connecticut law permits review of that claim under the third prong of Golding provided that the first two prongs have been satisfied.
Cases in which Connecticut courts have deemed jury instructions implicitly waived under Golding fall into three categories.[19] In the first and largest category are cases in which courts have found that the defense expressly acknowledged and agreed by words or conduct to the instruction challenged on appeal.[20]*962 See, e.g., State v. Hampton, supra, 293 Conn. at 444-50, 978 A.2d 1089 (defense waived claim of improper instruction on unanimity because court highlighted principle of unanimity twice during charge conferences and defense counsel assented to instruction by stating that instruction was in order, suggesting no changes, and failing to object after court twice asked counsel for changes); State v. Foster, supra, 293 Conn. at 339-42, 977 A.2d 199 (defense waived claim of improper instruction on alibi defense by expressing satisfaction with initial alibi instruction, asking court to remind jury that it must determine if defendant was present at scene of crime, and failing to object to court's supplemental instruction repeating part of initial alibi instruction requested by counsel); State v. Holness, supra, 289 Conn. at 539-45, 958 A.2d 754 (defense waived claim that defendant's right of confrontation was violated by failing to object to cross-examination on hearsay statements, requesting curative instruction on unavailable witness that court later gave without objection, and agreeing to proposed language of curative instruction at charge conference, thus indicating clear and unequivocal agreement to limiting instruction on unavailable witness to cure potential defect); State v. Collazo, supra, 115 Conn.App. at 758-60, 974 A.2d 729 (defense waived claim by expressing agreement with instruction at charge conference during which court highlighted challenged portion of instruction on liability as accessory or principal and by failing to object after instruction was given); State v. Duncan, supra, 96 Conn.App. at 557-59, 901 A.2d 687 (defense waived claim of instructional error on element of alteration of identifying mark or number of firearm and presumptive inference that jury is permitted to draw by failing to object and voicing satisfaction with corrected instruction on presumption language after court discussed correction with counsel); State v. Wortham, supra, 80 Conn.App. at 647-50, 836 A.2d 1231 (defense waived claim regarding instructions on initial aggressor, provocation and duty to retreat exceptions to self-defense by agreeing, during charge conference, that instructions based on statutory language were proper and highlighting certain evidence during closing argument to persuade jury that exceptions did not apply).
In the second category of cases, Connecticut courts have found waiver when there was no on-the-record discussion of the challenged jury instruction but the defense acquiesced in, or failed to object to, the instruction as given, and engaged in other trial conduct consistent with acceptance of the instruction. See State v. Fabricatore, supra, 281 Conn. at 475, 481-82 and nn. 14 and 15, 915 A.2d 872 (defense waived claim that trial court improperly included duty to retreat exception in self-defense instruction by failing to object to state's original request to charge, failing to *963 object to instruction as given, expressing satisfaction several times with general instruction on self-defense, failing to object at trial when state referred to duty to retreat in closing arguments, and referring to duty to retreat in his own closing argument);[21]State v. Hersey, supra, 78 Conn. App. at 157-59, 826 A.2d 1183 (defense *964 waived claim that court failed to instruct that state must prove existence of valid protective order by stipulating to order's existence, referring to order at trial and failing to object when state referred to order at trial); State v. Arluk, supra, 75 Conn.App. at 192-93, 815 A.2d 694 (defense waived claim that court failed to instruct that state must prove existence of valid protective order by referring to order several times at trial and failing to object when state referred to order); State v. Cooper, supra, 38 Conn.App. at 669-71, 664 A.2d 773 (defense waived claim by failing to object and making statements throughout trial tantamount to stipulation regarding element omitted from instruction). Thus, Connecticut courts have found implicit waiver when defense counsel did not object to the challenged instruction for what clearly appeared, on the basis of counsel's trial conduct, to have been tactical reasons. This is in accord with case law stating that "a party may not pursue one course of action at trial for tactical reasons and later on appeal argue that the path he rejected should now be open to him. . . . Golding is not intended to give an appellant a second bite at the apple." (Citation omitted; internal quotation marks omitted.) State v. Browne, 84 Conn.App. 351, 383 n. 22, 854 A.2d 13, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004).
In the third category of cases, Connecticut courts have deemed a claim of instructional error implicitly waived when the defense failed to take exception to, and acquiesced in, the jury instructions following one or more opportunities to review them. See, e.g., State v. Brewer, supra, 283 Conn. at 360, 927 A.2d 825 (defense waived claim regarding unanimity portion of lesser offense instruction by failing to take exception to instruction as given and expressing satisfaction with general instruction after court asked counsel if lesser offense instruction was instruction that counsel had requested).[22] In these *965 cases, in which there was no evidence that the court held an on-the-record discussion of the challenged instruction or that defense counsel failed to object for obvious tactical reasons, the court nonetheless determined that, because counsel had been provided with a meaningful opportunity to review and identify flaws in the instructions, and had expressed satisfaction with the instructions proposed or given, it could infer counsel's knowledge of the alleged impropriety and voluntary relinquishment of the right to challenge the instructions on appeal. This contrasts with the federal approach, in which courts generally do not infer that a claim has been implicitly waived unless defense counsel has approved the challenged instruction at trial following an on-the-record discussion with the court. See footnote 20 of this opinion; see also United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir.2009) (finding waiver because defense counsel indicated challenged instruction was satisfactory); United States v. Sanders, 520 F.3d 699, 702 (7th Cir.2008) (finding waiver because defense counsel agreed to, and argued in favor of, challenged instruction).
In the present case, which falls within this third category, the state argues that defense counsel's acquiescence in the jury instructions, as evidenced by counsel's affirmative responses to the trial court's inquiries at the charge conference and thereafter, was sufficient to convey that the defense had knowledge that the instruction on intent was flawed and that the defendant voluntarily relinquished his right to challenge the instruction on appeal. The state adds that reviewing a new claim of error on appeal runs afoul of counsel's implicitly expressed tactical determination that the jury instruction was suitable, and that, if counsel's choice is later questioned, the proper remedy is to evaluate the matter in a habeas proceeding alleging ineffective assistance of counsel in which there will be a fully developed record. The defendant, continuing to rely on Ebron, responds that defense counsel's participation in the charge conference does not foreclose Golding review.
We conclude that, when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding *966 changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.[23] See State v. Hampton, supra, 293 Conn. at 450, 978 A.2d 1089 (claim waived on basis of record); State v. Fabricatore, supra, 281 Conn. at 481-82, 915 A.2d 872 (claim waived under facts of case); see also United States v. Perez, 116 F.3d 840, 845 (9th Cir.1997) (examining evidence in record to determine if claim was waived). But cf. United States v. Zubia-Torres, 550 F.3d 1202, 1207 (10th Cir.2008) (record "devoid of any evidence" that counsel abandoned claim), cert. denied, ___ U.S. ___, 129 S.Ct. 2034, 173 L.Ed.2d 1120 (2009); United States v. Hamilton, 499 F.3d 734, 736 (7th Cir.2007) (no evidence in record that claim was waived), cert. denied, 552 U.S. 1129, 128 S.Ct. 951, 169 L.Ed.2d 782 (2008).
It is well established that implied waiver, as alleged in this case, arises from an inference that the defendant knowingly and voluntarily relinquished the right in question. See, e.g., C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 87, 919 A.2d 1002 (2007) ("Waiver does not have to be express . . . but may consist of acts or conduct from which waiver may be implied. . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so." [Internal quotation marks omitted.]); see also State v. Gore, 288 Conn. 770, 781-82, 955 A.2d 1 (2008) (evidence insufficient to permit inference that defendant waived right to jury trial); Martin v. Flanagan, 259 Conn. 487, 499-500, 789 A.2d 979 (2002) (evidence insufficient to permit inference that defendant waived privilege against self-incrimination). It also is well established that any such inference must be based on a course of conduct. See, e.g., State v. Woods, 297 Conn. 569, 583, 4 A.3d 236 (2010) (inquiry dependent on conduct of defendant and other factual considerations); see also Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (question of waiver must be determined on "the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the [person waiving the right]"). Although we agree with the concurring justices that evidence of an on-the-record discussion of the challenged instruction supports an inference of waiver, we believe that a similar inference is supported by evidence that counsel had a meaningful opportunity to review and comment on the proposed instruction and did, in fact, convey his affirmative acceptance thereof.
We emphasize that this is not a less stringent standard than the standard, or standards, advocated by the concurring justices.[24] Although it might be the better practice for the trial court to *967 read the proposed instructions line by line and ask after each instruction whether defense counsel agrees, we fail to see a meaningful distinction between repeatedly asking counsel if he or she has any issues with the proposed charge and requesting comments from counsel after the court reads each section of the charge. In fact, there may be cases in which it is not the better practice to infer waiver on the basis of an on-the-record discussion. For example, defense counsel may agree to a last minute instructional change only to realize, upon further reflection after the trial, that he or she did not fully understand the change and that the instruction was incorrect, when the flaw might have been identified in time for counsel to object had there been an opportunity to review the change in writing and in less pressing circumstances before the jury was charged. Accordingly, the notion that waiver should be found only when there is an on-the-record discussion of the challenged instruction because it is the best way to ensure that counsel was aware of, and thus understood, the instruction is problematical.*968[25]
*969 C
In adopting the standard set forth in this opinion, we also rely on (1) the widely recognized presumption that counsel is competent and capable of acting on behalf of the defendant in matters concerning trial management, including waiver of the defendant's right to challenge a jury instruction, (2) our rules of practice, which provide for substantial participation by counsel in formulating and reviewing jury instructions, (3) basic principles of fundamental fairness that favor placing responsibility with the trial court and the parties' counsel to take all necessary measures at the time of trial to ensure that the instructions are correct, and (4) the availability of habeas review to determine whether counsel's failure to take exception, or to suggest any changes, to the jury instructions constituted ineffective assistance and caused prejudice, thus requiring a new trial. We discuss each of these considerations in turn.[26]
*970 1
With respect to the first consideration, we repeatedly have relied on the presumption of competent counsel when determining whether a defendant's waiver of a constitutional right or statutory privilege has been knowing and intelligent. See, e.g., State v. Reid, 277 Conn. 764, 781-84, 894 A.2d 963 (2006) (concluding that defendant entered knowing and voluntary guilty plea, which operated as implicit waiver of several constitutional rights, including privilege against self-incrimination, in part based on presumption that, "in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit"); State v. Lopez, 269 Conn. 799, 801-802, 850 A.2d 143 (2004) (rejecting Appellate Court's conclusion that ordinary presumption, in cases of guilty pleas, that defense counsel has informed defendant of elements of crimes charged must be supported by evidence in record that positively indicates that defendant had opportunity to discuss plea agreement with his attorney and concluding, instead, that Appellate Court misstated law in defendant's favor and that, "even without an express statement by the court of the elements of the crimes charged, it is appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. . . . Thus, unless a record contains some positive suggestion that the defendant's attorney had not informed the defendant of the elements of the crimes to which he was pleading guilty, the normal presumption applies." [Citations omitted; emphasis in original; internal quotation marks omitted.]); State v. Ross, 269 Conn. 213, 294-95, 849 A.2d 648 (2004) (concluding that defendant implicitly waived statutory psychiatrist-patient privilege, in part because court "must assume that the defendant's experienced and highly competent counsel knew that the results of the. . . psychiatric examination could be used in rebuttal [if he raised impaired mental status as a mitigating claim] and informed the defendant of the potential scope of the. . . examination . . . and that the defendant's decision to claim mental impairment was made intelligently and with full knowledge of the consequences" [citation omitted; internal quotation marks omitted]); State v. Steiger, 218 Conn. 349, 369-70, 590 A.2d 408 (1991) (concluding that defendant implicitly waived sixth amendment right to consult with counsel as to nature and scope of psychiatric examination and to presence of counsel at psychiatric examination, in part because "the defendant filed his notice of defense of mental disease or defect approximately seven months before the psychiatric examination, [and therefore] we can safely assume that the defendant's experienced and highly competent counsel knew that the results of the state's psychiatric examination could be used in rebuttal and informed the defendant of the potential nature and scope of the state's examination"). We have likewise concluded, with respect to a claim that the defendant's right of confrontation under the sixth and fourteenth amendments to the United States constitution had been violated because the trial court had permitted the state to introduce certain hearsay statements during the defendant's trial, that the claim had been waived at trial because defense counsel had agreed to a limiting instruction pertaining to the statements. *971 See State v. Holness, supra, 289 Conn. at 542-43, 958 A.2d 754. As we explained in Holness, "when . . . counsel has waived a potential . . . claim [under the confrontation clause of the sixth amendment] in the exercise of his or her professional judgment . . . [it may be] presume[d] that defense counsel was familiar with [the law] and . . . acted competently in determining that the [court's] limiting instruction was adequate to safeguard the defendant's [constitutional] rights. To conclude otherwise would require the trial court to canvass defense counsel with respect to counsel's understanding of the relevant constitutional principles before accepting counsel's agreement on how to proceed. . . . [T]here is nothing in our criminal law that supports such a requirement." Id., at 544, 958 A.2d 754. Our nation's highest court has recognized a similar presumption in contexts apart from ineffective assistance of counsel, stating that a defendant's fundamental due process "right to be heard [in a court of law] would be, in many cases, of little avail if it did not comprehend the right to be heard by [competent] counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with [a] crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he [has] a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense." Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932); see also Buchanan v. Kentucky, 483 U.S. 402, 424, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987) (concluding that petitioner's constitutional right to counsel had not been violated because "[the] petitioner's counsel himself requested the psychiatric evaluation . . . [and, thus, it could] be assumedand there are no allegations to the contrarythat defense counsel consulted with [the] petitioner about the nature of this examination"); Henderson v. Morgan, 426 U.S. 637, 647, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) ("Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.").
2
The presumption of competent counsel articulated by the United States Supreme Court and in the case law of this state also is consistent with rule 1.1 of the Rules of Professional Conduct, which is applicable to all practicing attorneys in Connecticut and directs that "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
*972 The presumption of competent counsel has special meaning in the context of a jury instruction claim because our rules of practice contain seven provisions that encourage attorneys to participate in formulating jury instructions by providing detailed guidance on how to proceed. Practice Book § 42-16 informs counsel that it is advisable to file a written request to charge and provides that there will be no appellate consideration of instructional error unless such a request is filed or an exception to the charge is taken immediately following its delivery. Practice Book §§ 42-17 and 42-18 further encourage the filing of requests to charge by explaining when they must be filed, how and when they may be amended, and their proper form and content. Practice Book § 42-19 provides that the court, if requested by counsel, shall hold a charge conference that is on the record, or summarized on the record, informing counsel at the close of evidence of the substance of the proposed instructions. Practice Book § 42-24 discusses modification of the instructions for purposes of correction or clarification after an exception is taken or upon the court's own motion. Practice Book § 42-25 provides that additional instructions may be necessary "to avoid undue emphasis" on the correcting or clarifying instructions and that such additional instructions shall be given pursuant to the procedures described in Practice Book § 42-16 allowing counsel to take exception to the instructions that were given. Finally, Practice Book § 42-27 addresses situations in which the jury requests additional instructions after the start of deliberations and provides that counsel shall be given notice and an opportunity to make suggestions regarding the additional instructions.
On the basis of these rules, we conclude, first, that trial courts expect significant participation by counsel in formulating jury instructions because there would be no reason for our rules to provide such guidance if little or no participation was anticipated. We also conclude that competent counsel, being cognizant of our rules, is aware that there are multiple opportunities to request specific instructions, that exceptions or objections to the instructions proposed or given may be taken or raised at various times, and that a charge conference may be requested to consider the instructions and any changes or modifications thereto that counsel deems necessary to ensure that they are correct. Accordingly, reviewing courts in Connecticut have good reason to conclude that counsel knowingly and intentionally waived the right to challenge a jury instruction when the trial court has provided the parties with a meaningful opportunity to review and discuss the instructions, to request changes or modifications before and after the instructions are given, and to comment on the instructions while there is still time to correct them.[27]
*973 3
The approach set forth in our decision also is in accord with basic principles of fundamental fairness. On the one hand, trial courts will be encouraged to hold meaningful and participatory on-the-record charge conferences,[28] give counsel written copies of the proposed instructions and provide counsel with sufficient time to review them because such actions not only assist the court in carrying out its duty to ensure that the instructions are fair and just, but also have the salutary effect of helping to avoid a possible retrial and the waste of judicial resources that such a proceeding might entail. See State v. Griggs, 288 Conn. 116, 124, 951 A.2d 531 (2008) ("[t]he test of a court's charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law" [internal quotation marks omitted]). Correspondingly, counsel will be encouraged to take advantage of the opportunities provided by the rules of practice, that is, to submit a request to charge, to seek an on-the-record charge conference and to raise objections whenever necessary because such actions will protect the parties' interests, create an adequate record for review and avoid the waiver of a legitimate claim when the trial court has given counsel sufficient opportunity to participate in the instruction process. See State v. Cobb, 199 Conn. 322, 329, 507 A.2d 457 (1986) ("If defense counsel did not approve of . . . the charge, then he should have alerted the court to his previous remarks and suggested whatever curative language he deemed most appropriate.. . . An exception at this point . . . would have served the important function of alerting the trial court to what defense counsel believed was erroneous while there was time to correct it without ordering a retrial." [Citation omitted.]). Accordingly, the judicial system is better served from all perspectives when waiver is inferred from counsel's affirmative acceptance of the jury instructions following a meaningful opportunity to review them.
*974 4
A final consideration is the availability of habeas review if a defendant wishes to bring a claim of ineffective assistance of counsel to contest the reviewing court's conclusion that the jury instruction claim was waived. As we have stated in other cases, a habeas proceeding provides a superior forum for the review of a claim of ineffective assistance because it provides the opportunity for an evidentiary hearing in which the attorney whose conduct is challenged may testify regarding the reasons he did not contest the instruction at trial. See State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480 (1986). A habeas proceeding thus enables the court to determine whether counsel's failure to take exception or otherwise to participate in formulating the instructions was due to mere incompetence or to counsel's trial strategy, which would not be possible in a direct appeal in which there is no possibility of an evidentiary hearing. An aggrieved party is thus not without recourse in the event that the court deems a claim of instructional impropriety waived on appeal.[29]
To the extent Justice Katz claims in her concurrence that the majority "fails to acknowledge the importance of the review of unpreserved errors to our ability to declare and clarify the law," we disagree. Justice Katz apparently presumes that many valid claims of instructional error will not be reviewed in light of our decision in this case because they will be deemed waived, but such a presumption is purely speculative. The more likely effect is that attorneys will take exception to jury instructions more often if they are perceived as incorrect, thus properly preserving their clients' claims for review. Moreover, Justice Katz ignores the fact that reviewing courts already routinely consider numerous, properly preserved constitutional claims of instructional impropriety on direct appeal. Finally, claims of instructional error deemed waived on direct appeal will still be reviewed in habeas proceedings because the habeas court must address the merits of the underlying claim in deciding whether there was ineffective assistance of counsel. See, e.g., Crespo v. Commissioner of Correction, 292 Conn. 804, 812, 975 A.2d 42 (2009). Consequently, there simply is no support for the view that our decision will have a detrimental effect on the ability of Connecticut courts to articulate and clarify the law.
D
Turning to the facts of the present case, we conclude that defense counsel's repeated statements indicating his affirmative acceptance of the proposed jury instructions after being given a meaningful opportunity to review them constituted an implicit waiver of the defendant's claim of *975 instructional error. Following the state's request to charge, the court noted on the record that it had asked defense counsel in chambers the previous day if he intended to file a request to charge, and counsel had replied in the negative. The court then asked counsel if he still did not intend to file a request to charge, and counsel affirmed that he had no such intent. The court thus reminded defense counsel on two different occasions of his right to file a request to charge, and counsel declined each time to file such a request.[30]
The court also held two additional charge conferences to discuss the instructions. Two days after defense counsel reaffirmed that he had no intention of filing a request to charge, the court asked counsel if there was anything he wanted to discuss. Counsel replied that he wanted to discuss those portions of the state's request to charge relating to the assault counts and one other minor matter but did not raise any issues regarding the intent instruction pertaining to kidnapping and unlawful restraint. When the court asked counsel if there was "[a]nything else" he wanted to discuss, counsel replied, "[n]o, Your Honor. I don't think so."[31] Several days later, after the court advised counsel that it had prepared the final instructions and would give each attorney a written copy to review, defense counsel stated that his copy was "downstairs," apparently referring to the clerk's office, but that he did not have any major revisions. The court thus concluded on the record that the instructions were complete and that there was no need for another conference to discuss the instructions, to which counsel made no response. Finally, after the instructions were given, both the prosecutor and defense counsel stated that they had no exceptions to those instructions.
Defense counsel's acceptance of the jury instructions was in sharp contrast to the conduct of the prosecutor, who made repeated attempts to obtain certain instructional language by filing a request to charge, asking several questions at the first charge conference regarding the instructions on assault, and reviewing a copy of the completed instructions the night before the second charge conference so that he would be prepared to discuss any remaining issues. Thus, it is clear that defense counsel had several meaningful opportunities to participate in fashioning the jury instructions and to review and object to any language contained therein because his counterpart, the prosecutor, repeatedly made his own views known to the court.[32] We therefore conclude that *976 the defendant implicitly waived his right to challenge the instructions on intent.
The judgment is affirmed.
In this opinion ROGERS, C.J., and VERTEFEUILLE and McLACHLAN, Js., concurred.
KATZ, J., with whom NORCOTT and PALMER, Js., join, concurring.
The issue presented in this caseunder what circumstances a defendant will be deemed to have waived appellate review of a constitutional challenge to a jury instruction under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989)is one of the most significant decisions with which this court recently has wrestled. This court's jurisprudence, namely our well established doctrines of waiver and induced error, dictate that Golding review of unpreserved instructional errors should be foreclosed only when the record reflects that the defendant, through defense counsel, knowingly and intentionally relinquished his objection to the error. Instead, the majority conflates and mischaracterizes this court's precedents in order to lend credence to a wholly novel system of categorizing unpreserved trial errors under which, essentially, a defendant will be deemed to have waived Golding review of an instructional claim merely by participating in a charging conference and failing to object to jury instructions proposed by the court or the state.[1] In order to justify this approach, the majority employs a public policy analysis that contravenes the purpose and underlying principles, established over forty years of jurisprudence, of appellate review of unpreserved trial errors.
I
In setting forth its new rule, the majority relies on a flawed analysis of this court's case law concerning waiver of Golding review of trial errors.[2] In order to *977 provide a context for this analysis, I begin with the fundamental principles and purpose of Golding review. It is well settled that, as a general rule, appellants are not entitled to appellate review of errors that were not distinctly raised at trial. See State v. Evans, 165 Conn. 61, 66, 327 A.2d 576 (1973). Nonetheless, nearly forty years ago in Evans, this court recognized "two situations that may constitute `exceptional circumstances' such that newly raised claims can and will be considered by this court. The first is . . . [when] a new constitutional right not readily foreseeable has arisen between the time of trial and appeal. . . . The second `exceptional circumstance' may arise [when] the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." (Citation omitted.)[3] Id., at 70, 327 A.2d 576. Thereafter, in State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, the court reformulated the standard announced in State v. Evans, supra, at 61, 327 A.2d 576, after the state had urged it to revise the Evans standard of review for errors not preserved at trial "because the words used by the standard though easily said lend themselves to inconsistent application." State v. Golding, supra, at 239, 567 A.2d 823. The court decided "neither to adopt a pure plain error standard for alleged constitutional violations, nor to attempt to reconcile past Evans decisions. Instead, [i]t articulate[d] guidelines designed to facilitate a less burdensome, more uniform application of the present Evans standard in future cases involving alleged constitutional violations that are raised for the first time on appeal." Id. Relying on the methodology of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), the court adopted the now familiar four part Golding test.[4]
This history reflects that the rationale of Golding and its predecessors is that "fundamental constitutional rights are of such importance that appellate courts should review claims of alleged constitutional violations even when a defendant fails to take an exception to the alleged violation at the trial court level." State v. Wright, 114 Conn.App. 448, 461, 969 A.2d 827 (2009). The Evans/Golding rubric was intended to be capacious enough to rectify any constitutional trial court errors that affect the outcome of a criminal case. "[B]ecause constitutional claims implicate fundamental rights, it . . . would be unfair automatically and categorically to bar a defendant from raising a meritorious constitutional claim that warrants a new trial solely because the defendant failed to identify the violation at trial. Golding strikes an appropriate balance between these competing interests: the defendant may raise such a constitutional claim on appeal, and the appellate tribunal will review it, but only if the trial court record is adequate for appellate review." State v. Canales, 281 Conn. 572, 581, 916 A.2d 767 (2007).
Despite our recognition of the essential function of Golding review, we also have recognized that a defendant, through defense *978 counsel, may, in a few narrowly defined instances, waive such review. Within the specific context of jury instructions, we have drawn from the traditional understanding of waiver as a knowing and intentional relinquishment of a right; see Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); in holding that a defendant waives appellate review of even a properly preserved instructional error only when the record demonstrates that the defendant affirmatively and knowingly accepted the instruction.[5] See State v. Whitford, 260 Conn. 610, 632-33, 799 A.2d 1034 (2002) (defendant waived preserved challenge to instructional error because "the defendant's conduct at trial indicated that he accepted the supplemental charge as sufficient to cure the claimed instructional error"); State v. Jones, 193 Conn. 70, 87-89, 475 A.2d 1087 (1984) (defendant waived preserved challenge to erroneous charge by participating in fashioning supplemental instruction and failing to object to that instruction). Recently, we explicitly extended the waiver doctrine to Golding review of instructional errors. See State v. Fabricatore, 281 Conn. 469, 478, 915 A.2d 872 (2007) ("A defendant in a criminal prosecution may waive one or more of his or her fundamental rights. . . . In the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial." [Citations omitted; internal quotation marks omitted.]). Our cases applying waiver to Golding review are consistent with prior cases applying waiver to appellate review, generally, in that they indicate that a defendant will waive Golding review only by affirmatively agreeing to a specific jury instruction discussed on the record. See, e.g., State v. Holness, 289 Conn. 535, 543, 958 A.2d 754 (2008) (defense counsel waived challenge to jury instruction by agreeing to limiting instruction suggested by state); State v. Fabricatore, supra, at 481, 915 A.2d 872 (defense counsel waived challenge to jury instruction by failing to object to instruction, expressing satisfaction with instruction, arguing that instruction was proper and adopting language of instruction in his summation).
The majority goes well beyond the circumscribed approach to waiver outlined in these cases by improperly expanding our waiver cases into three categories: (1) express acknowledgment of and agreement with an instruction; (2) trial conduct consistent with acceptance of the instruction, even when there was no on-the-record consideration of the instruction; and (3) acquiescence to an instruction following one or more opportunities to review the instruction. I agree with the majority that waiver occurs in the first category of cases when the record demonstrates a defendant's express acknowledgment and knowing acceptance of a specific instruction. The remaining two categories do not accord, however, with our established case law and the majority misconstrues the holdings and approaches of State v. Fabricatore, supra, 281 Conn. at 469, 915 A.2d 872, and State v. Brewer, 283 Conn. 352, 927 A.2d 825 (2007), in order to support these novel categories of waiver.
The majority relies on Fabricatore for the proposition that this court has found waiver when there was no on-the-record discussion of the challenged jury instruction, but the defendant engaged in other trial conduct consistent with acceptance of the instruction. This represents a gross misreading of the facts in Fabricatore. As a preliminary matter, it is clear that, in *979 that case, there had been an on-the-record discussion concerning the later challenged instruction on self-defense, which included the duty to retreat.[6]State v. Fabricatore, supra, 281 Conn. at 475 n. 10, 915 A.2d 872 (providing excerpt of discussion between defense counsel and trial court). Additionally, the state had requested an instruction on the duty to retreat, thereby explicitly putting the defendant on notice that that limitation on the defense was under consideration. Moreover, we specifically noted: "[D]efense counsel not only failed to object to the instruction as given or to the state's original request to charge the jury with the duty to retreat, but clearly expressed his satisfaction with that instruction, and in fact subsequently argued that the instruction as given was proper. Indeed, defense counsel himself addressed the duty to retreat in his own summation." Id., at 481, 915 A.2d 872. The facts in Fabricatore therefore fit squarely within our previously established doctrine of waiver, which required explicit acknowledgment and acceptance of a later challenged instruction. See State v. Holness, supra, 289 Conn. at 543, 958 A.2d 754; State v. Whitford, supra, 260 Conn. at 632-33, 799 A.2d 1034; State v. Jones, supra, 193 Conn. at 87-89, 475 A.2d 1087.
In addition, the majority relies on Brewer for the proposition that this court has recognized yet a third category of cases within which an appellant waives review of an instructional error by failing to object to, and acquiescing in, the instructions following one or more opportunities to review them and contends that the present case, in which defense counsel acquiesced generally to a set of jury instructions, is analogous to Brewer. Again, these conclusions represent a misapprehension of our case law. In Brewer, defense counsel and the trial court discussed on the record the later challenged instruction and defense counsel explicitly acquiesced to the instruction as given. State v. Brewer, supra, 283 Conn. at 357, 927 A.2d 825. We noted: "Defense counsel took no exceptions from the instructions given by the trial court. The state, however, registered its objection to the trial court's inclusion of a lesser included offense charge. The trial court explained its reasons for including the lesser included offense charge, and then specifically asked defense counsel if the charge as read was what had been requested. Defense counsel responded: `That is correct, Your Honor.'" (Emphasis in original.) Id. In addition, we emphasized: "This is not an instance of defense counsel's failure to take exception to the instruction as given, which included the language that he now attacks, but rather is a case in which he specifically expressed his satisfaction with that instruction when queried by the trial court. As we recently concluded in [State v. Fabricatore, supra, 281 Conn. at 481-82, 915 A.2d 872], `[u]nder this factual situation, we simply cannot conclude that injustice [has been] done to *980 either party . . . or that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.'" State v. Brewer, supra, at 360-61, 927 A.2d 825. It is apparent that this case involved explicit discussion, on the record, of the specific jury instruction later challenged by the defendant, followed by the defendant's express agreement to that instruction.[7] Accordingly, Brewer lends no credence to the majority's conclusion that we have long recognized the facts in the present case to constitute waiver.
Rather than acknowledge the limited nature of waiver reflected in these cases, the majority unduly focuses on the purportedly unworkable holding in State v. Ebron, 292 Conn. 656, 682, 975 A.2d 17 (2009). I recognize that our response to the Appellate Court's treatment of the doctrines of induced error and waiver[8] in that case may not have been entirely clear. Nonetheless, our case law, consistent with the principles and purpose of Golding, provides a workable framework for evaluating when the conduct of defense counsel forecloses *981 Golding review of a constitutional challenge, including jury instructions. As suggested in Fabricatore, the proper lens through which to view this inquiry derives from the well established principle of waiver. "Waiver is an intentional relinquishment or abandonment of a known right or privilege.... It involves the idea of assent, and assent is an act of understanding.... The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct.... In order to waive a claim of law it is not necessary ... that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy.... Connecticut courts have consistently held that when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively acquiesces to the trial court's order, that party waives any such claim." (Internal quotation marks omitted.) State v. Velez, 113 Conn.App. 347, 357-58, 966 A.2d 743 (2009).
Accordingly, consistent with our case law, waiver is effectuated by what this court has deemed "active inducement" of an error or any other intentional relinquishment or abandonment of a known right or privilege. Moreover, waiver may be implied from defense counsel's conduct only when that conduct demonstrates that counsel affirmatively and knowingly forwent any objection to the later challenged instruction. Consistent with this framework, within the specific context of jury instructions, waiver includes both actively inducing an error by providing the later challenged instruction to the court (which we have called induced or invited error) as well as affirmatively embracing an instruction offered by opposing counsel or the court, so long as that conduct demonstrates that counsel affirmatively and knowingly forwent any objection to the later challenged instruction.[9]
Because this approach requires a case-by-case analysis to determine when waiver occurs, which has not been entirely helpful to the Appellate Court, I suggest that we turn to related federal case law to further illuminate the distinction between waived error and unpreserved error. Cf. State v. Evans, supra, 165 Conn. at 69, 327 A.2d 576 ("Only in the most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court. The same general rule has been adopted by the federal courts."). Federal review of unpreserved trial errorsso called "plain error" reviewis governed by rule 52(b) of the Federal Rules of Criminal Procedure.[10] In applying *982 this rule, the federal courts distinguish between errors that are merely "forfeited" (what we call unpreserved errors), which may be reviewed, and those that are "waived," which cannot be reviewed. See, e.g., Government of the Virgin Islands v. Rosa, 399 F.3d 283, 290-91 (3d Cir.2005) ("[s]tated most simply, where there was forfeiture, we apply a plain error analysis; where there was waiver, we do not" [internal quotation marks omitted]). With the exception of this distinction in terminology, the approach of the federal courts is consistent with that of this court. The United States Supreme Court has explained: "Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." (Internal quotation marks omitted.) United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In applying the waiver doctrine, federal courts have emphasized that, in order to find waiver, the defendant who allegedly waived the error must have done so knowingly, intentionally and deliberately. For example, the Tenth Circuit Court of Appeals has explained: "[W]aiver is accomplished by intent, but forfeiture comes about through neglect.... Waiver occurs when a party deliberately considers an issue and makes an intentional decision to forgo it." (Citations omitted.) United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir.2009).
Federal cases applying the waiver doctrine reveal three guiding principles regarding when a defendant, through defense counsel, will be deemed to have waived appellate review by agreeing to a later challenged error. First, to establish waiver, the record, itself, must demonstrate the party's awareness of an issue and his deliberate decision to forgo a challenge; such conditions are never presumed or inferred.[11] See, e.g., United States v. Zubia-Torres, 550 F.3d 1202, 1207 (10th Cir.2008) ("The record is simply devoid of any evidence that defense counsel knew of the argument or considered making it. We will not presume a waiver or infer one from a record as sparse as this."); United States v. Hamilton, 499 F.3d 734, 736 (7th Cir.2007) ("The government asks us to pick through the record *983 with a fine-tooth comb and infer that the defendant's lawyer must have thought the instruction okay, in which event his failure to object would be deliberate.... But we cannot find any indication of that, and doubts should be resolved against a finding of waiver ... for by precluding judicial review it invites a challenge that the lawyer's failure to object constituted ineffective assistance of counsel." [Citations omitted.]), cert. denied, 552 U.S. 1129, 128 S.Ct. 951, 169 L.Ed.2d 782 (2008); United States v. Perez, 116 F.3d 840, 845 (9th Cir.1997) ("[w]hat we are concerned with is evidence in the record that the defendant was aware of, i.e., knew of, the relinquished or abandoned right").
A second, but related, principle holds that, in the context of challenges to jury instructions, waiver results only when: (1) the specific instruction that is later challenged is brought to the attention of defense counsel; (2) that instruction is discussed on the record; and (3) defense counsel nonetheless explicitly and actually approves of the instruction.[12] See United States v. Conner, 583 F.3d 1011, 1026 (7th Cir.2009) (The court concluded that waiver had been established when "[the defendant] did not merely fail to object to the court's instruction regarding aiding and abetting. During the charging conference, [defense] counsel expressly stated that she preferred [the later challenged] aiding and abetting instruction over the alternative. At no time in this discussion did she indicate that she objected to instructing the jury on aiding and abetting at all."); United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir.2009) ("Faced with the parties' incompatible positions regarding the proposed definition ... the [D]istrict [C]ourt proposed a third option. Presented with this option, [the defendant] indicated that the instruction was satisfactory. In these circumstances, by agreeing that the instruction was satisfactory, [the defendant] waived the right to challenge the instruction on appeal."); United States v. Sanders, 520 F.3d 699, 702 (7th Cir. 2008) (finding waiver when, during colloquy, defense counsel expressly and repeatedly stated that later challenged instruction was acceptable to him); United States v. Perez, supra, 116 F.3d at 845 ("[w]aiver occurred ... because the defendant considered the controlling law, or omitted element, and, in spite of being aware of the applicable law, proposed or accepted a flawed instruction"); United States v. Lakich, 23 F.3d 1203, 1207-1208 (7th Cir.1994) (finding waiver when trial court and counsel had been alerted to issue with court's original jury instruction by note from jury, court gave attorneys overnight to consider ways to remedy problem, and defense counsel agreed to precise instruction defendant later challenged). Courts decline to find waiver when any one of these elements is missing. See United States v. Wisecarver, 598 F.3d 982, 988 (8th Cir.2010) (The court concluded that no waiver had been established when it was "not clear that [defense counsel's statement] was an `intentional relinquishment or abandonment' of a known right.... He did not, for example, explicitly say that he had no objection to the [later challenged] aspect of the instruction or that it was a correct statement of the law that he was willing to be bound by."); *984 United States v. DiSantis, 565 F.3d 354, 361 (7th Cir.2009) (defense counsel thanking judge after judge rejected counsel's proposed instruction not "the ... type of actual approval of a jury instruction that would constitute waiver"); United States v. Hamilton, supra, 499 F.3d at 736 ("a failure to object, which for all we know was inadvertentthere were nearly fifty pages of instructions, and while the judge invited objections he didn't ask the defendant's lawyer whether the lawyer agreed to the instructions to which he did not object, or ask the lawyer specifically about [the later challenged] instructionis not an `intentional relinquishment of a known right,' the canonical definition of waiver" [emphasis in original]); Government of the Virgin Islands v. Rosa, supra, 399 F.3d at 293 (no waiver when "[t]here is no indication that [the defendant's] attorney knew of and considered the controlling law, and despite being aware of the [flaw], accepted the flawed instruction").
Third, there may indeed be a rare instance of tactical waiver of an improper instruction that a defendant later challenges on appeal. While findings of tactical waiver are necessarily fact-bound, and therefore difficult to reduce to clear rules, they do reveal a common thread. Tactical waiver may result from a failure to object; see United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir.1995); but courts find waiver only when the tactical value of defense counsel's action or inaction, as reflected in the record, is obvious and indisputable, and when the other requirements for waiver are met.[13] See United States v. Quinones, 511 F.3d 289, 321-22 (2d Cir. 2007) ("We have no doubt that it was a tactical decision for [the] defendants ... to agree that a life sentence was the only alternative to death.... The tactical value of such a concession is obvious."). As a result, most of the cases dealing with tactical waiver do so in the context of an evidentiary claim where the strategic value in not objecting is easiest to recognize. See United States v. Cooper, 243 F.3d 411, 416 (7th Cir.2001) ("[t]his was clearly a strategic decision rather than a mere oversight"); United States v. Yu-Leung, supra, at 1122 ("[i]t is apparent that [the defendant's] failure to object at trial to the challenged testimony was a strategic choice"); United States v. Coonan, 938 F.2d 1553,1561 (2d Cir.1991) ("[u]nder these circumstances, we have no difficulty concluding that [the defendant] has waived appellate review of this evidentiary claim").
II
Ignoring both this court's precedent and well established federal jurisprudence concerning waiver, the majority attempts to use public policy concerns to justify its fabrication of both a new framework for categorizing waivers and a new rule pursuant to which a defendant waives Golding review by participating in a charging conference pursuant to our rules of practice. The majority's analysis of the relevant public policy concerns, however, is unsound. *985 First, it ignores the fundamental principles and purposes of Golding review, namely the essential role that Golding review plays in the protection of individual constitutional rights. Second, it contradicts several of the implicit understandings and presumptions this court has embraced concerning the value of appellate review of error, and the role of trial and appellate counsel in that process. Finally, it fails to recognize the detrimental effect that the new rule likely will have on the court system and overestimates the positive impact of the new rule in encouraging trial judges to provide meaningful opportunity for the review of jury instructions.
To understand the practical effects of the majority's new rule, and thereby to evaluate the relevant public policy concerns, it is critical to examine closely the application of that rule in the present case. Counsel for the defendant, Marvin Kitchens, essentially participated in several on-the-record conferences in which he declined to raise any concerns related to the instruction at issue in this appeal. The trial court then provided the parties with written jury instructions. At a subsequent conference, the prosecution raised several issues unrelated to the challenged instruction. The trial court asked defense counsel if he had had an opportunity to review the instructions, to which counsel replied, "my copy is downstairs, but I didn't have any major revisions." The court then ended the conference without further comment from the attorneys.
The majority emphasizes several facts about the present case, seemingly in an attempt to demonstrate that defense counsel had a "meaningful" opportunity to review and object to the instructions. First, the majority notes that the trial court asked defense counsel several times whether he was going to file a request to charge and defense counsel declined to do so. I note, however, that a failure to file a request to charge has no bearing in any Golding inquiry because, had defense counsel done so, the error would have been preserved properly for direct appellate review. See State v. Terwilliger, 294 Conn. 399, 406, 984 A.2d 721 (2009) ("A party may preserve for appeal a claim that a jury instruction was improper either by submitting a written request to charge or by taking an exception to the charge as given. Practice Book § 16-20."). Second, the majority notes that defense counsel, the prosecution and the trial court engaged in discussions about unrelated parts of the instruction. I cannot, however, understand how a discussion of one jury instruction bears on whether the failure to object to a different jury instruction meets the requirement for waiver, namely, that it was knowing and intelligent. See part III of this concurring opinion. Third, the majority emphasizes the prosecutor's repeated attempts to obtain his preferred instructional language. Again, I fail to comprehend the connection between a prosecutor's actions and whether defense counsel's failure to object to a set of jury instructions constitutes waiver. Accordingly, the majority's opinion effectively stands for the proposition that a defendant waives Golding review of an instructional error, even if the challenged instruction is never specifically discussed, as long as the trial court provides a set of written jury instructions, allows defense counsel adequate time to review those instructions, and then holds a charging conference in which defense counsel acquiesces, generally, to the instructions. In other words, if the trial court follows the procedures set forth in the Practice Book concerning jury instructions, a defendant will be denied access to Golding review.
Accordingly, the practical effect of the majority's approach contravenes the underlying principles and purpose of Goldingthe elimination of the hurdle of *986 "failure to preserve" constitutional claims at the trial court level in order to facilitate appellate review for unpreserved constitutional claims.[14] See part I of this concurring opinion. In devising a rule that depends on the use of the charging conference to determine whether the defendant has waived his right to challenge a defective instruction, the majority, in essence, establishes that participation in that conference and advanced notice of the instructions provide a sufficient basis upon which to presume that, when the defendant nevertheless fails to object to the instruction, he is acting intentionally, as opposed to being merely negligent. This approach undermines this court's exhortation that Golding review is intended to break down any categorical or absolute bars to appellate review by foreclosing review of an entire class of trial errors. Moreover, by concluding that mere failure to object to an improper instruction constitutes a waiver of the defendant's appellate rights, the majority essentially singles him out to bear the consequences of the error despite the equal obligations on the trial court and the prosecutor to identify and to correct the error.
The majority's approach also flies in the face of several fundamental understandings, implicit in our Golding jurisprudence, about the nature and value of appellate review of criminal convictions and our expectations of advocates at both the trial and appellate level. First, the majority's approach undervalues the role that appellate review of unpreserved errors plays in fulfilling the appellate courts' essential functions. Appellate courts serve "two basic functions: (1) correction of error (or declaration that no correction is required) in the particular litigation; and (2) declaration of legal principle, by creation, clarification, extension or overruling. These are ... respectively the corrective and preventive functions." J. Phillips, Jr., "The Appellate Review Function: Scope of Review," 47 Law & Contemp. Probs. 1, 2 (Spring 1984). In its approach to public policy concerns, the majority focuses solely on the first function and fails to acknowledge the importance of the review of unpreserved errors to our ability to declare and clarify the law. Instructing the jury is a particularly critical point in a criminal trial; indeed, "[a]n improper instruction has a watershed effect on the jury's understanding of the law." D. Carter, "A Restatement of Exceptions to the Preservation of Error Requirement in Criminal Cases," 46 U. Kan. L.Rev. 947, 960 (1997-1998). Beginning with Golding itself, this court has set forth or clarified *987 substantial questions regarding the propriety of jury instructions in cases in which we reviewed unpreserved instructional errors. See, e.g., State v. Cook, 287 Conn. 237, 250, 947 A.2d 307 (2008) (defendant charged with carrying dangerous weapon entitled to instruction that jury must consider factual circumstances surrounding alleged threat); State v. Flowers, 278 Conn. 533, 547-48, 898 A.2d 789 (2006) (clarifying proper intent instruction for burglary charge and setting forth circumstances under which closing argument rectifies improper charge); State v. Scott, 256 Conn. 517, 528-29, 779 A.2d 702 (2001) (clarifying proper instruction for sexual assault in first degree by fellatio); State v. Golding, supra, 213 Conn. at 238, 567 A.2d 823 (concluding that amount obtained by fraud is essential element of crime, and therefore, court must instruct jury concerning it). Indeed, for unpreserved claims advancing novel theories or seeking to overrule established law regarding jury instructions, direct review is the only opportunity for the appellate courts to clarify and correct the law, as habeas relief under an ineffective assistance of counsel theory would be foreclosed. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 461-62, 880 A.2d 160 (2005) ("[C]ounsel's failure to advance novel legal theories or arguments does not constitute ineffective performance.... Nor is counsel required to change then-existing law to provide effective representation." [Citations omitted; internal quotation marks omitted.]), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006).
Second, in contravention of our presumptions that counsel is both ethical and competent, the majority's approach allows appellate judges to presume, from nearly silent records, that trial counsel's failure to object to an instruction derived from strategic contrivance rather than mere negligence. It is well established that we presume that all trial advocates act within the ethical standards set forth in our Rules of Professional Conduct. See, e.g., State v. Chambers, 296 Conn. 397, 420, 994 A.2d 1248 (2010) (presuming that defense attorney ethically invoked rule of professional responsibility); State v. Cator, 256 Conn. 785, 794, 781 A.2d 285 (2001) ("[i]n the absence of evidence to the contrary, this court may presume that the attorney has performed his ethical obligation to inform his client of any potential conflict"). Although we also presume that attorneys have the competence to provide adequate representation to their clients; see Rules of Professional Conduct 1.1;[15] we do not expect any attorney, especially trial attorneys working under the pressure and intensity of an ongoing trial, to perform flawlessly. We must also recognize that appellate attorneys, with the benefit of time and hindsight, are often able to identify errors inadvertently missed by trial counsel. D. Carter, supra, 46 U. Kan. L.Rev. at 951 ("the evolving expertise of appellate counsel assures the presentation of prejudicial [trial] errors"). Our Golding jurisprudence is founded on these principles, and any limitation of its scope must take into account the understanding that most trial errors derive from negligence rather than strategic contrivance. See id. ("the American appellate system is premised on the reality that the ordinary procedural default is born of the inadvertence, negligence, inexperience, or incompetence of trial counsel" [internal quotation marks omitted]).
*988 Rather than recognize these principles, the majority's approach depends upon an assumption that the defendant's attorney behaved unethically by knowingly failing to correct a mistake of law in violation of rule 3.3 of the Rules of Professional Conduct.[16] I would not presume, except in the most obvious of cases, that the defendant has engaged in a tactical decision to forgo an objection to an instruction that he knew to be faulty. In addition to the aforementioned presumption that attorneys behave ethically, I express my reluctance for several other reasons. First, it simply makes no sense for an attorney who recognizes that the court has made a mistake in the instructions to say nothing to the trial court to correct the error in the hopes of challenging the instruction later on appeal, convincing the reviewing court that a true constitutional error was made and that it was harmful to the defendant. In light of the statistics showing that reviewing courts rarely conclude that the defendant can prevail on a Golding challenge to an improper jury instruction,[17] not only would an attorney engaging in this behavior be unethical, but he would be incompetent as well. See D. Carter, supra, 46 U. Kan. L.Rev. at 951 ("[n]othing is gained from sandbagging, except a disparaged reputation or an attorney grievance claim"); H. Friendly, "Is Innocence Irrelevant? A Collateral Attack on Criminal Judgments," 38 U. Chi. L.Rev. 142, 158 (1970) ("[it] is exceedingly hard to visualize a case where a defendant or his lawyer would deliberately lay aside a meritorious claim so as to raise it after the defendant was jailed"). Second, appellate judges are not mind readers. See United States v. Frokjer, 415 F.3d 865, 871 (8th Cir.2005) (declining to find tactical waiver because record not clear enough to determine counsel's state of mind). Therefore, any finding that waiver has resulted from a strategic choice should be dependent upon a demonstrated inconsistency, apparent from the record, between defense counsel's trial strategy, as reflected in counsel's course of action at trial, and the strategy reflected in the later challenge to the error. See, e.g., United States v. Cooper, supra, 243 F.3d at 416 (counsel waived objection to substance of tip by referring to tip throughout opening statement and closing argument in order to bolster theory of case); United States v. Coonan, supra, 938 F.2d at 1561 (counsel waived objection to evidence concerning violent gang activities by welcoming admission of evidence in order to convince jury that defendant was not violent or brutal enough to gain admission into gang). Again, such a case, by definition, will be rare, and will, in the majority of cases, be governed by our *989 traditional waiver doctrine. See footnote 13 of this concurring opinion. Accordingly, although it may be necessary to acknowledge the existence of strategic waiver, I do not believe that that exception should drive the rule.
Moreover, the majority's new rule likely will have a detrimental impact on the effective functioning of the court system. As a preliminary matter I note that the number of cases in which a defendant obtains reversal of his conviction on the basis of Golding review of instructional errors is negligible. See footnote 17 of this concurring opinion. Therefore, attorneys well versed in our Golding jurisprudence do not see review under its umbrella as a panacea. Collapsing the distinction between negligence and intentional waiver serves merely to delay resolution of the claimed error and to increase the workload of our trial courts by requiring the defendant to bring a habeas petition for ineffective assistance of counsel. The vast majority of appellants requesting Golding review of instructional errors also seek review of properly preserved errors or Golding review of unpreserved noninstructional errors. Under the majority's approach, these appellants will be entitled to a direct appeal of some of their claims before an appellate court, but will have to pursue their unpreserved instructional error claims in a separate habeas proceeding. Even those appellants who seek review only of Golding instructional error claims will have to raise those claims on direct appeal in order to preserve them for habeas review.[18] At best, therefore, this approach merely shifts the venue, and thus the responsibility for evaluating these claims to the habeas courts, and, at worst, actually increases the net workload of the judicial system.
Finally, I disagree that the majority's approach is likely to impact significantly whether trial courts provide written copies of proposed instructions, afford time to review those instructions and then hold on-the-record charging conferences. First, the majority's rule is premised on the presumption that trial judges will not fulfill their duty to ensure a fair trial without the dangling carrot of limited appellate review. This represents an undeservedly skeptical view of the trial judges of this state that is entirely unsupported by any data or anecdotal evidence. Similarly, the majority's approach is predicated on the presumption that defense counsel will not submit requests to charge or request charging conferences when they recognize potential problematic or important issues relating to the jury instructions. As set forth previously, this contravenes our established presumptions that defense counsel acts competently and ethically, as well as the understanding that Golding review provides no incentive for defense counsel to purposefully withhold meritorious legal claims. Finally, even if the majority's approach encourages defense attorneys to file a request to charge concerning instructions that they identify as important, and to contest any instructions they recognize as erroneous, it will have no impact when defense counsel, through negligence or inadvertance, fails to recognize an erroneous instruction. Indeed, these are the precise errors that Golding review is meant to *990 rectify.[19] See part I of this concurring opinion.
III
Drawing from both this court's precedent and federal precedent, it is evident that a defendant should not be deemed to have waived a challenge to a jury instruction unless the record clearly reflects that the defendant was aware of the particular challenged aspect of the instruction and the defendant expressed satisfaction with that part of the instruction.[20] See part II of this concurring opinion. Applying this standard, I cannot agree with the majority that waiver resulted in the present case merely because the defendant failed to take exception to the charge he now challenges. Although the trial court provided a written copy of the instructions and twice asked the parties for their concerns or exceptions, nothing in the record demonstrates that the defendant was aware of the specific problem with the instruction at issue in this appeal and nonetheless intentionally relinquished his right to challenge it. Accordingly, I would conclude that the defendant did not waive Golding review.
Having determined that the defendant did not waive Golding review, I must examine his claim of instructional impropriety. See footnote 4 of this opinion (setting forth four-pronged Golding test). Specifically, the defendant claims that the trial court's instructions improperly provided the jury with a definition of "intentionally" that included language concerning general intent, despite the fact that the defendant was charged only with crimes requiring specific intent. He further claims that this instruction improperly allowed the jury to find him guilty of kidnapping and unlawful restraint without determining that he had the specific intent to engage in the proscribed conduct. The state concedes that the instruction was improper, but contends that the instructions were nonetheless constitutionally adequate. I agree with the state.
The record reveals the following undisputed facts, which are relevant to the resolution of this claim. The defendant was charged with, inter alia, kidnapping in the second degree in violation of General Statutes § 53a-94 (a)[21] and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a).[22] In instructing the jury on general principles of law, the trial court provided the following definition of intent: "As defined by our statute, a *991 person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or to engage in such conduct." Later in the charge, the court explained that, to find the defendant guilty of kidnapping in the second degree, the state must prove beyond a reasonable doubt that the defendant abducted the victim, Jennaha Ward. The court further explained: "`Abduct' means, as it pertains to this case, to restrain a person with intent to prevent his liberation by using or threatening the use of physical force or intimidation. The term `restrain' means to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty.... You will recall my earlier instructions on intent and apply them here also." The court gave a similar instruction on the charge of unlawful restraint in the first degree, first informing the jury that to find the defendant guilty on the charge, the state must prove beyond a reasonable doubt that the defendant restrained the victim and that such restraint exposed the victim to a substantial risk of physical injury. The court defined "`restrain'" as "to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty.... You will recall my earlier instructions on intent and apply them here also."
As a preliminary matter, the defendant's claim meets the first two prongs of Golding and, therefore, is reviewable. First, the record contains a transcript of the jury instructions, and is therefore adequate for review. Second, it is well established that an improper instruction on an element of an offense is of constitutional magnitude; see State v. DeJesus, 260 Conn. 466, 472-73, 797 A.2d 1101 (2002) ("[a]n improper instruction on an element of an offense ... is of constitutional dimension" [internal quotation marks omitted]); and that specific intent is an essential element of both kidnapping and unlawful restraint. State v. Salamon, 287 Conn. 509, 542, 572, 949 A.2d 1092 (2008). I, therefore, turn to whether the defendant may prevail on the merits of his claim.
"[T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.... [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.... In determining whether it was ... reasonably possible that the jury was misled by the trial court's instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect [on] the jury in guiding [it] to a correct verdict in the case.... The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result." (Internal quotation marks omitted.) Id., at 572-73, 949 A.2d 1092.
Salamon is instructive. That case also involved a crime of specific intent but the trial court improperly had provided only a general intent instruction. We concluded that this impropriety did not require reversal "because the court thereafter accurately explained that, to prove the element of restraint, the state was required to establish that the defendant had restricted the victim's movements intentionally and unlawfully in such a manner so as to interfere substantially with her liberty by confining her without her consent.... Under this explanation, there is no reasonable *992 possibility that the jury could have found the defendant guilty of unlawful restraint unless it first had found that he had restricted the victim's movements with the intent to interfere substantially with her liberty. In other words, because restraint is itself defined in terms that include the requirement of a specific intent, and because the trial court properly instructed the jury on that definition, the defendant was not prejudiced by the trial court's failure to define intent in full compliance with [the definition under General Statutes] § 53a-3 (11)."[23] (Internal quotation marks omitted.) Id., at 573-74, 949 A.2d 1092.
As the state properly concedes in the present case, the trial court's definition of intent incorrectly encompassed both specific and general intent. See State v. Francis, 246 Conn. 339, 358, 717 A.2d 696 (1998) (although generally it is improper for trial court to provide entire statutory definition of intent when charge required specific intent, no error in context of particular case when jury not misled); State v. Youngs, 97 Conn.App. 348, 361, 904 A.2d 1240 (same), cert. denied, 280 Conn. 930, 909 A.2d 959 (2006). Therefore, as in Salamon, the question is whether it reasonably was possible that the jury relied on the general intent instruction to convict the defendant of a specific intent crime. Reading the jury instructions as a whole, I conclude that it was not reasonably possible that the jury was misled. In the present case, the trial court twice provided the exact same definition of restraint as was provided by the trial court in Salamon, which explicitly required the jury to find that the defendant had restricted the victim's movements with the intent to interfere substantially with her liberty. Therefore, I conclude that the trial court's instructions adequately presented the elements of the charges of kidnapping in the second degree and unlawful restraint in the first degree to the jury. Therefore, the defendant has failed to establish that there was a constitutional violation.
Accordingly, I concur.
PALMER, J., with whom KATZ and NORCOTT, Js., join, concurring.
I agree with, and join, Justice Katz' thoughtful concurrence. I write separately, however, to underscore why, in my view, the majority is incorrect in finding that defense counsel knowingly and intentionally waived the claim of the defendant, Marvin Kitchens, concerning the constitutionality of the jury charge solely on the basis of counsel's statement that he had no objection to the court's jury instructions after having been afforded a reasonable opportunity to review and comment on those instructions. In reaching its conclusion, the majority disregards the well established principle that, to be effective, the record must demonstrate that counsel's failure to object to the charge on constitutional grounds represented the intentional relinquishment of a known right. Under the majority's flawed application of the concept of implied waiver, counsel will be found to have purposefully waived any claim that the defendant may have had with respect to his due process right to a proper jury charge, thereby foreclosing appellate review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),[1] even though there is absolutely *993 nothing in the record to demonstrate that counsel actually was aware of any potential defect in the charge. Indeed, the majority concedes that, under its holding, the record will be deemed sufficient to infer that the defense had knowledge of the alleged instructional impropriety and voluntarily relinquished the right to challenge the instruction on appeal, even though the record contains no evidence that the alleged impropriety was induced or invited, that the court had a discussion about the instructional issue with counsel or that counsel otherwise engaged in conduct indicating that the failure to object was tactical rather than inadvertent. Lacking a record establishing both that counsel in the present case was aware of that right and elected to waive it on behalf of the defendant, the majority nevertheless denies the defendant appellate review of a constitutional claim that otherwise satisfies the reviewability requirements of Golding. As I explain more fully hereinafter, the majority's approach is predicated on an inference that is not supported by the facts, namely, that, whenever defense counsel has been afforded a fair opportunity to review and comment on the court's instructions, and, thereafter, counsel informs the court that he has no objection to those instructions, it is appropriate to conclude, as a factual matter, that counsel was aware of and consciously rejected every conceivable constitutional challenge to the jury instructions. Moreover, the weakness of the majority's analysis is reflected in the fact that, under well established principles of waiver, defense counsel can readily avoid the majority's holding, and thereby ensure Golding review of any and all unpreserved claims challenging the constitutionality of the court's instructions, simply by advising the trial court that his failure to raise a constitutional objection is due to the fact that he is aware of no such objection, and not because of an intent to waive any potential constitutional claims. Finally, the unsound approach that the majority adopts will make it significantly more difficult, and in some cases impossible, for a defendant to obtain a new trial even when he can establish a deprivation of his due process right to a fair and accurate jury instruction.[2]
Before commencing my review of the majority's analysis, I first set forth several unchallenged principles concerning the issue of waiver. "What suffices for waiver depends on the nature of the right at issue. [W]hether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and *994 whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake. United States v. Olano, 507 U.S. 725, 733 [113 S.Ct. 1770, 123 L.Ed.2d 508] (1993). For certain fundamental rights, the defendant must personally make an informed waiver. See, e.g., Johnson v. Zerbst, 304 U.S. 458, [464-65, 58 S.Ct. 1019, 82 L.Ed. 1461] (1938) (right to counsel); Brookhart v. Janis, 384 U.S. 1, 7-8 [86 S.Ct. 1245, 16 L.Ed.2d 314] (1966) (right to plead not guilty). For other rights, however, waiver may be effected by action of counsel. Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer hasand must havefull authority to manage the conduct of the trial. Taylor v. Illinois, 484 U.S. 400, [417-18, 108 S.Ct. 646, 98 L.Ed.2d 798] (1988). As to many decisions pertaining to the conduct of the trial, the defendant is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney. Link v. Wabash R. Co., 370 U.S. 626, 634 [82 S.Ct. 1386, 8 L.Ed.2d 734] (1962).... Thus, decisions by counsel are generally given effect as to what arguments to pursue, see Jones v. Barnes, 463 U.S. 745, 751 [103 S.Ct. 3308, 77 L.Ed.2d 987] (1983), what evidentiary objections to raise, see Henry v. Mississippi, 379 U.S. 443, 451 [85 S.Ct. 564, 13 L.Ed.2d 408] (1965), and what agreements to conclude regarding the admission of evidence, see United States v. McGill, 11 F.3d 223, [226-27 (1st Cir. 1993)]. Absent a demonstration of ineffectiveness, counsel's word on such matters is the last." (Citation omitted; internal quotation marks omitted.) New York v. Hill, 528 U.S. 110, 114-15, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000); see also Mozell v. Commissioner of Correction, 291 Conn. 62, 71, 967 A.2d 41 (2009) ("It is well settled that a criminal defendant may waive rights guaranteed to him under the constitution.... The mechanism by which a right may be waived, however, varies according to the right at stake. ... For certain fundamental rights, the defendant must personally make an informed waiver.... For other rights, however, waiver may be effected by action of counsel." [Citations omitted; internal quotation marks omitted.]); State v. Smith, 289 Conn. 598, 620, 960 A.2d 993 (2008) (same).
There is no dispute that, for reasons of strategy, counsel may knowingly and intentionally waive a defendant's constitutional right to a particular jury instruction despite the fundamental nature of the defendant's due process entitlement to an adequate jury charge.[3] When such a waiver occurs, the defendant is precluded from appellate review of the defective charge because, "[t]o allow the defendant to seek reversal [after] his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal." State v. Fabricatore, 281 Conn. 469, 480-81, 915 A.2d 872 (2007). In such circumstances, moreover, the defendant cannot satisfy the third Golding prong; see footnote *995 1 of this opinion; because it cannot be said that "the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial...." State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823.
Of course, such a waiver may be express or may be implied by conduct. See, e.g., State v. Smith, supra, 289 Conn. at 621, 960 A.2d 993. Thus, "[w]aiver does not have to be express ... but may consist of acts or conduct from which waiver may be implied.... In other words, waiver may be inferred from the circumstances if it is reasonable to do so." State v. Gaskin, 116 Conn.App. 739, 753, 977 A.2d 681, cert. denied, 294 Conn. 914, 983 A.2d 851 (2009). Both this court and the Appellate Court consistently have concluded, however, that waiver of a constitutionally protected trial right is not valid unless it represents "the intentional relinquishment or abandonment of a known right."[4] (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, supra, 291 Conn. at 71, 967 A.2d 41; accord State v. Woods, 297 Conn. 569, 583, 4 A.3d 236 (2010); State v. Gaskin, supra, at 753, 977 A.2d 681; State v. Thomas W., 115 Conn.App. 467, 487, 974 A.2d 19, cert. granted, 294 Conn. 911, 983 A.2d 276 (2009). This standard, which aptly has been characterized as a strict one; see, e.g., State v. Woods, supra, at 583, 4 A.3d 236; first was adopted by the United States Supreme Court more than seventy years ago; see Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. 1019; and reflects that court's "unyielding ... insistence that a defendant's waiver of his trial rights cannot be given effect unless it is knowing and intelligent."[5] (Internal quotation marks omitted.) Illinois v. Rodriguez, 497 U.S. 177, 183, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Thus, such a waiver necessarily "involves the idea of assent, and assent is an act of understanding."[6] (Internal quotation marks omitted.) State v. Hampton, 293 Conn. 435, 449, 978 A.2d 1089 (2009).
Because the conduct of the parties "`is of great importance'" in determining waiver; id.; we look to the record to discern whether the right was waived by counsel with full knowledge of the existence of the right. See id. In other words, "[a]n effective waiver presupposes full knowledge of the right or privilege allegedly [being] waived and some act done designedly or knowingly to relinquish it.... Moreover, the waiver must be accomplished with sufficient awareness of the relevant circumstances *996 and likely consequences." (Internal quotation marks omitted.) Perricone v. Perricone, 292 Conn. 187, 207, 972 A.2d 666 (2009); accord State v. Santiago, 245 Conn. 301, 310-11, 715 A.2d 1 (1998). Furthermore, in determining whether this stringent standard has been met, "a court must inquire into the totality of the circumstances of each case." (Internal quotation marks omitted.) State v. Woods, supra, 297 Conn. at 583, 4 A.3d 236; see also State v. Foreman, 288 Conn. 684, 697, 954 A.2d 135 (2008) (validity of purported waiver is question of fact that depends on circumstances of particular case). Because a fundamental constitutional right is at stake, "we will indulge every reasonable presumption against waiver ... and ... [will] not presume acquiescence in the loss of [such a right].... In addition, a waiver of a fundamental constitutional right is not to be presumed from a silent record." (Internal quotation marks omitted.) State v. Woods, supra, at 583-84, 4 A.3d 236.
Thus, in the present case, counsel cannot be deemed to have waived the defendant's right to a constitutionally adequate jury charge in the absence of a record clearly demonstrating, either expressly or impliedly, counsel's knowledge that the charge, at least potentially, was constitutionally infirm and that counsel, in the exercise of his professional judgment, decided to forgo any claim concerning that possible infirmity. Of course, neither the state nor the majority claims that the record supports a finding of express waiver. Nevertheless, under our jurisprudence, counsel may be found to have impliedly waived a claim that the court's jury instructions were constitutionally deficient. To establish such an implied waiver, however, the state bears the burden of meeting the same stringent standard that is applicable to express waivers, namely, that the waiver represents the intentional relinquishment of a known right. Consequently, waiver may be impliedthat is, it may be inferred only if the record reveals conduct by counsel demonstrating both that counsel had knowledge of the potential constitutional claim and intentionally decided not to raise it, presumably for strategic reasons. See, e.g., Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251-52, 618 A.2d 506 (1992) ("Waiver is the intentional relinquishment of a known right.... Waiver need not be express, but may consist of acts or conduct from which a waiver may be implied.... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.... Assuming [the threshold applicability of the doctrine of] implied waiver [to the present case] ... the plaintiff would still have to make a showing that the defendants knew of their right[s] ... before they could [intentionally] waive [them]." [Citations omitted; internal quotation marks omitted.]).
These waiver principles apply to unpreserved constitutional claims for good reason. The narrow Golding exception to the general rule that a reviewing court will not consider a claim not previously raised at trial is justified by the overriding importance of protecting the fundamental constitutional rights of the accused. See State v. Golding, supra, 213 Conn. at 238-39, 567 A.2d 823 (explaining "exceptional" circumstance presented by unpreserved claim of constitutional violation if record sufficient for review); see also State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973) (predecessor to Golding identified "`exceptional circumstance'" that arises when "the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial"). In the present case, however, the majority fails to adhere to these principles with respect to a certain class or category of cases, that is, those cases in which defense counsel, following a charge conference at which counsel has been afforded timely notice of the charge, informs the *997 court that he has no objection to the charge.[7]
The shortcoming of the majority opinion is attributable to the majority's determination of an implied waiver by conduct on the basis of a record that clearly does not support such an inference. According to the majority, when, as in the present case, defense counsel, having been given sufficient time to review the jury charge, expresses approval of the charge, it is reasonable to infer that counsel knowingly and intentionally waived any constitutional objection to the charge. In other words, in such circumstances, defense counsel will be deemed both to have known of the potential constitutional claim and to have decided not to raise it. The majority reaches this conclusion even though there is nothing in the record to indicate either that counsel was aware of the constitutional issue or that he intentionally opted to forgo any objection to the constitutionally defective instruction.
"An inference is [a] process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted." (Internal quotation marks omitted.) Walker v. Mortham, 158 F.3d 1177, 1183 n. 10 (11th Cir.1998), cert. denied, 528 U.S. 809, 120 S.Ct. 39, 145 L.Ed.2d 36 (1999); see also State v. Fermaint, 91 Conn.App. 650, 665, 881 A.2d 539 (Bishop, J., dissenting) ("[i]n plain terms, an inference is simply a deduction or conclusion based on proven facts"), cert. denied, 276 Conn. 922, 888 A.2d 90 (2005). Thus, "[a]n inference is not a suspicion or a guess. It is a reasoned, logical decision to conclude that a disputed fact exists on the basis of another fact [that is known to exist]." (Internal quotation marks omitted.) Siewe v. Gonzales, 480 F.3d 160, 168 (2d Cir.2007). "An inference is reasonable if the conclusion flows from logical and probabilistic reasoning." (Internal quotation marks omitted.) United States v. Truong, 425 F.3d 1282, 1288 (2005).
It is apparent that the conduct of counsel in reviewing the charge and advising the court that he has no objection to it is insufficient to support the inference that counsel intentionally abandoned the defendant's right to raise a constitutional challenge to the charge. Counsel might have been aware of a potential constitutional infirmity in the charge and elected not to seek to remedy the impropriety, but there is no reasoned basis for concluding that counsel was, in fact, aware of the claim and decided to forgo it. In the absence of a discussion of the potential constitutional claim during the charge conference, or some other indication in the record that counsel was aware of the existence of such a claim, it simply is unreasonable to infer that counsel, with knowledge of the claim, intentionally abandoned it. Thus, far from "indulg[ing] every reasonable presumption against waiver of fundamental constitutional rights"; (internal quotation marks omitted) State v. Woods, supra, 297 Conn. at 583-84, 4 A.3d 236; and otherwise adhering to the "strict standard" that this court *998 demands for purposes of demonstrating the waiver of a constitutional right; (internal quotation marks omitted) id., at 583, 4 A.3d 236; the majority applies a test that, by any measure, falls well short of what is required to support a finding of implied waiver. Indeed, the majority provides no explanation as to why it is reasonable to infer that counsel intentionally has abandoned a constitutional claim, with full knowledge of that claim, merely because counsel agreed to the jury charge after having been afforded a reasonable opportunity to review it. In fact, in terms of probabilities, it is far more likely that counsel raised no constitutional objection to the charge because he was aware of no such objection.
The majority's reasoning cannot withstand scrutiny for another, albeit related, reason. Under that reasoning, we must presume that defense counsel was aware of and elected to waive every constitutional claim that conceivably could have been raised with respect to the court's instructions. This is so because the majority treats as waived any and all constitutional claims to which the defense had not objected after having had an adequate opportunity to review the charge. Thus, although it may appear, at first glance, that the majority's inference of a knowing and intentional waiver pertains only to the specific claim at issue on appeal, under the majority's reasoning, defense counsel necessarily is deemed to have waived every single constitutional claim that possibly could have been made with respect to the court's jury instructions. Of course, such an inference is unreasonable; no defense attorney or team of defense attorneys, no matter how capable or prescient, could possibly be expected to recognize each and every constitutional claimmeritorious and unmeritorious, innovative and not so creativethat conceivably might be raised to challenge the constitutionality of the court's jury charge. Nevertheless, that is precisely the inference on which the majority relies in finding that defense counsel in the present case impliedly waived the defendant's constitutional claim.[8]
Furthermore, because the majority's inference of waiver is unsupported and, therefore, bears no reasonable relation to counsel's actual intent in failing to raise a claim, in future cases, counsel can readily avoid the inherent unfairness of the majority's decision. To do so, counsel who does not wish to have a reviewing court treat his failure to object as a waiver for Golding purposes may avoid such treatment simply by informing the trial court that he has not raised a constitutional challenge to the charge because he is unaware of any such claim, and not because he has elected to waive the claim. In view of the fact *999 that the doctrine of implied waiver is employed for the purpose of ascertaining an actor's intent when that intent remains unstated, counsel's express statement disavowing waiverreflecting counsel's actual intentnecessarily would trump any finding of implied waiver by this court or the Appellate Court under the approach that the majority adopts.[9] The fact that defense counsel can so easily overcome the inference on which the majority's decision is predicated demonstrates the inherent weakness in the majority's reasoning and completely defeats the import and purpose of the majority's holding.[10]*1000
*1001 It is clear that the majority's approach constitutes a marked departure from our waiver jurisprudence generally and from our Golding jurisprudence specifically.[11] In fact, the majority's analysis does not truly implicate waiver at all, for it is unreasonable to infer that counsel knowingly and intentionally waived any and all constitutional claims that might have been raised with respect to the jury charge solely on the basis of the fact that counsel reviewed the charge in advance and raised no objection to it. Rather, the majority decides to deny Golding review in the present case primarily on the basis of policy considerations that have nothing to do with traditional waiver principles. The considerations that the majority identifies are: "[1] our rules of practice, which provide for substantial participation by counsel in formulating and reviewing jury instructions, [2] basic principles of fundamental fairness that favor placing responsibility with the trial court and the parties' counsel to take all necessary measures at the time of trial to ensure that the instructions are correct, and [3] the availability of habeas review to determine whether counsel's failure to take exception, or to suggest any changes, to the jury instructions constituted ineffective assistance and caused prejudice, thus requiring a new trial."
In fact, none of these policy considerations has the slightest bearing on the issue of whether counsel knowingly and intelligently waived the defendant's right to a constitutionally adequate jury instruction. The fact that our rules of practice provide generally for participation by defense counsel in formulating and reviewing jury instructions provides no insight into whether counsel's participation in a particular case warrants the conclusion that a failure to object to a particular charge reflects counsel's intentional waiver of a known right. Of course, policy considerations that purportedly favor placing responsibility with the trial court and the parties' counsel to ensure that the jury charge is correct shed absolutely no light on whether counsel's failure to object was the product of a tactical decision or negligence. Moreover, the availability of a habeas remedy also has nothing to do with *1002 the fact-based waiver inquiry. Indeed, the real basis for the majority's conclusion appears to be its view that it is wise policy to deprive a defendant of Golding review in cases such as the present one, and not because an inference of waiver may fairly be drawn from the record.[12]
Indeed, it appears that, under the majority's holding, the remedy of a writ of habeas corpus predicated on a claim of ineffective assistance of counsel would not be available in certain cases when, as in the present case, counsel is deemed to have waived a constitutional claim. It is well established that, "to perform effectively, counsel need not recognize and raise every conceivable constitutional claim." (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006). "Moreover, numerous state and federal courts have concluded that counsel's failure to advance novel legal theories or arguments does not constitute ineffective performance." Id., at 461, 880 A.2d 160. "Nor is counsel required to change then-existing law to provide effective representation." (Internal quotation marks omitted.) Id., at 462, 880 A.2d 160. Thus, a defendant whose attorney failed to raise a new or novel claim at trialand who, under the majority's decision, is deemed to have waived that claim for Golding purposes and thus is barred from seeking review of that claim on appeal also will be unable to obtain habeas relief because there is no basis for an ineffective assistance claim. Consequently, to the extent that the majority's decision is predicated on the availability of a habeas *1003 remedy, that reliance is misplaced because, in some cases, the defendant will have no opportunity to obtain such a remedy.[13]
Moreover, for any case in which counsel's failure to object to a constitutionally deficient jury instruction gives rise to a claim of ineffective assistance of counsel and that claim is meritorious, the defendant will be required to await the successful outcome of his habeas claim before obtaining the new trial to which he is entitled. Moreover, the new trial will be further delayed by any appeal that the commissioner of correction elects to take from the adverse judgment of the habeas court. This delay is both unnecessary and unfortunate, especially for those defendants serving a sentence of incarceration. In addition, the majority's decision will make it more difficult to prevail on unpreserved claims of instructional impropriety. Before today's decision, a defendant who had established that his trial was tainted by a constitutionally defective jury charge would be entitled to a new trial unless, under the fourth prong of Golding; see footnote 1 of this opinion; the state established that the improper charge was harmless beyond a reasonable doubt. Hereafter, that same defendant bears the burden of establishing not only that his attorney's representation fell below the range of competence displayed by attorneys with ordinary skill and training in the criminal law, but also that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 291 Conn. 830, 835, 970 A.2d 721 (2009). For the reasons previously set forth in this opinion, and in the absence of evidence that counsel's decision to forgo an objection to the defective charge was tactical, there is no justification for placing this burden on a defendant.
The fact that the majority opinion is driven by the various policy considerations identified by the majority and not by principles of waiver is reflected in the majority's insistence that, in accordance with well established rules pertaining to waiver, the determination of whether counsel has waived the defendant's right to a constitutionally adequate jury charge "must be based on a close examination of the record and the particular facts and circumstances of each case." Of course, this is the rule applicable to proving waiver generally; see, e.g., State v. Woods, supra, 297 Conn. at 583, 4 A.3d 236; and so the majority asserts that it also is applicable in the present case. In reality, under the approach that the majority adopts, the reviewing court's "close examination of the record" and careful consideration of "the particular facts and circumstances of the case" require nothing more than a determination of whether counsel, having been afforded a reasonable, advance opportunity to review and comment on the court's charge, raised no objection to the charge. If so, the reviewing court is bound to treat any constitutional challenge to any aspect of the jury instructions as having been waived by counsel.[14]
*1004 The majority also insists that it is not adopting a "less stringent standard" for purposes of determining whether counsel has knowingly and intelligently waived a defendant's right to challenge a constitutionally deficient jury charge. Contrary to the majority's assertion, that is exactly what the majority is doing. Although purporting to apply the requirement of a knowing and intelligent waiver, the majority then concludes that it reasonably may be inferred that counsel intended such a waiver even though there is nothing in the record even to suggest that counsel was aware of the right at issue, which, so far as the record will reflect, is buried somewhere in the court's lengthy set of jury instructions. For that reason, the majority employs a standard that is much less demanding than the standard required under our well established waiver jurisprudence.[15]
I therefore would conclude that the waiver doctrine does not preclude the defendant from Golding review of his unpreserved claim of instructional impropriety. For the reasons set forth by Justice Katz in her concurrence, however, I also would conclude that the defendant cannot prevail on the merits of that claim. Accordingly, I concur in the result.
NOTES
[*] January 5, 2011, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
[**] The listing of justices reflects their seniority status on this court as of the date of oral argument.
[1] The defendant appealed from the judgment of the trial court to the Appellate Court, and we granted the state's motion to transfer the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-2.
[2] General Statutes § 53a-94 (a) provides: "A person is guilty of kidnapping in the second degree when he abducts another person."
General Statutes § 53a-91 (2) provides: "`Abduct' means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation."
[3] General Statutes § 53a-95 (a) provides: "A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury."
General Statutes § 53a-91(1) provides in relevant part: "`Restrain' means to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. . . ."
[4] General Statutes § 53a-3 provides in relevant part: "(11) A person acts `intentionally' with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. . . ."
[5] The defendant also claims that the jury's finding of guilt with respect to the kidnapping and unlawful restraint charges is legally inconsistent with its finding of not guilty with respect to the burglary charge because, "[b]y [finding him not guilty] of burglary, the jury necessarily concluded that [the defendant] did not intend to commit unlawful restraint or any other crime within [the] apartment [where the incident in question took place]." At oral argument before this court, however, the defendant conceded that this claim is precluded by our recent decision in State v. Arroyo, 292 Conn. 558, 973 A.2d 1254 (2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1296, 175 L.Ed.2d 1086 (2010), which was released subsequent to the filing of his principal brief in this appeal, and in which we concluded that "claims of legal inconsistency between a conviction and an acquittal are not reviewable." Id., at 586, 973 A.2d 1254.
[6] The victim testified that the defendant was approximately six feet, four inches tall, weighed approximately 200 pounds and was physically strong.
[7] The testimony of Sears and the victim at trial, which the jury apparently did not credit, was that, upon arriving back in the apartment, the defendant had told the victim to sit down at the kitchen table, at which time he splashed her in the face with gin from a bottle or glass that had been on the table, causing her eyes to burn. After the victim washed her eyes out in the bathroom down the hall, she returned to the kitchen where she saw the defendant with a black and yellow utility knife in his hand. After he opened the knife, the victim hit the defendant in the face with a marble ashtray. The defendant then grabbed her by her head scarf, and then her hair, and dragged her approximately eleven feet toward the stove, where he forced her face into the skillet of hot oil. Sears testified, however, that he did not actually see the defendant push the victim's face into the oil; he only heard her scream.
[8] Because of the presence of her husband at the hospital, as well as the fact that she was concerned about the defendant being arrested, the victim initially told Officer Joseph Mauro, who was investigating the case, that she had been injured in an altercation over the proceeds from the card game. She did not inform the police of her allegations against the defendant until approximately one week later, when she signed a sworn statement following an interview.
[9] We note that the trial court instructed the jury in relevant part: "The defendant is charged in count four with the crime of kidnapping in the second degree, in violation of [§] 53a-94 of the Penal Code, which provides, as it pertains to this case, as follows: A person is guilty of kidnapping in the second degree when he abducts another person.
"The elements of the crime: For you to find the defendant guilty of this charge, the state must prove beyond a reasonable doubt that the defendant abducted the victim. `Abduct' means, as it pertains to this case, to restrain a person with intent to prevent his liberation by using or threatening the use of physical force or intimidation. The term `restrain' means to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another or by confining him either in the place where the restriction commences or in a place to which he has been moved without consent. As used here, `without consent' means but is not limited to any means whatsoever. You will recall my earlier instructions on intent and apply them here also.
"Now, the state contends in count four that, on or about April 19, 2007, in the late evening, at 15 Martin Street, Hartford, Connecticut, the defendant . . . abducted [the victim]. The defendant, on the other hand, denies all of the state's allegations. If you unanimously find in count four that the state has failed to satisfy you beyond a reasonable doubt as to any of the necessary elements, which I have explained to you, you must find the defendant not guilty. On the other hand, if the state has satisfied you beyond a reasonable doubt of the existence of each of these essential elements, your verdict should be guilty of the offenses as charged on this count."
[10] "We reiterate[d], however, that kidnapping convictions involving miniscule restraints remain subject to challenge under the vagueness doctrine." State v. Salamon, supra, 287 Conn. at 546 n. 31, 949 A.2d 1092.
[11] In State v. DeJesus, supra, 288 Conn. at 437, 953 A.2d 45, we overruled our previous decision in State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008) (Sanseverino I), to the extent that it had directed an appellate remedy of a judgment of acquittal on the kidnapping charges because, "under the facts of [Sanseverino], no reasonable jury could have found the defendant guilty of kidnapping in the first degree on the basis of the evidence that the state proffered at trial." State v. Sanseverino, supra, at 624, 949 A.2d 1156; see also State v. Sanseverino, 291 Conn. 574, 589, 969 A.2d 710 (2009) (Sanseverino II) (following DeJesus upon reconsideration of Sanseverino I, giving state "the opportunity to decide whether to retry the defendant on the charge of kidnapping in the first degree," and concluding that "it is not the function of this court to make that decision for the state"). In DeJesus, we emphasized that "the appropriate remedy for the instructional impropriety identified in Salamon is to reverse the defendant's kidnapping conviction and to remand the case to the trial court for a new trial. It is well established that instructional impropriety constitutes `trial error' for which the appropriate remedy is a new trial, rather than a judgment of acquittal." State v. DeJesus, supra, at 434, 953 A.2d 45; see also id., at 439, 953 A.2d 45 ("[A]ny insufficiency in proof was caused by the subsequent change in the law under Salamon, rather than the government's failure to muster sufficient evidence. Accordingly, the proper remedy is a new trial [at which] the jury properly is instructed on the element of intent in accordance with the dictates of Salamon.").
[12] See footnote 4 of this opinion.
[13] At the outset, the court addressed the assistant state's attorney (prosecutor) and defense counsel, and the following colloquy ensued:
"The Court: . . . As you know, you probably both still have or you know what the first part of my charge is just general things, so is there any objection to that or request to change that?
"[The Prosecutor]: I didn't review mine from about sixteen months ago, but my recollection is I had no objection at that time, so I can't imagine it's changed.
"The Court: Okay.
"[The Prosecutor]: I'll just leave it at that.
"The Court: I'll just give you generally what I discuss."
Accordingly, it appears that the trial court previously had given the prosecutor and defense counsel written copies of the proposed instructions.
[14] The court stated as follows: "When I say you can't discuss the law, what I mean is you can't define terms. That doesn't mean, however, that you can't refer to facts that constitute the law like the elements of the offense. What is a dangerous instrument? You know, the facts, what are you claiming the dangerous instrument? What are you claiming, you know, intent? Things like that. I don't want to suggest you can't use the legal terms that I'm going to use, but you can't explain it. You can explain the facts that constitute the legal terms, and then I'll explain what the terms are, like `dwelling,' or if you want to say, `he had permission to be there or you know, he didn't have permission'. . . . [Y]ou can refer to the principles and with the facts, but not justdon't say, `okay, a building is a dwelling,' you know, things that I'm going to say."
[15] The court apparently had left written copies of the jury instructions with the clerk's office in the judicial district of Hartford, from which the prosecutor had obtained his copy.
[16] Insofar as Ebron stated that Fabricatore and Brewer were distinguishable on the facts and that State v. Madigosky, supra, 291 Conn. at 28, 966 A.2d 730, required the court to conclude that the defendant in that case had not waived his right to Golding review, Ebron incorrectly construed all three cases. In Ebron, the court indicated that its facts differed from those in Fabricatore and Brewer because the defendants in the two earlier cases had actively induced the trial court to give the instruction challenged on appeal. See State v. Ebron, supra, 292 Conn. at 681-82, 975 A.2d 17 ("[T]he present case is distinguishable from Fabricatore and Brewer because, although the defendant [in Ebron] acquiesced in the charge that the trial court ultimately gave to the jury, he did not supply, or otherwise advocate for, the . . . language at issue [on] appeal. Put differently, there is no indication that the defendant actively induced the trial court to give the . . . instruction that he . . . challenges on appeal, which renders [his] claim reviewable under Golding." [Emphasis added.]). The defendants in Fabricatore and Brewer, however, did not supply, affirmatively request or advocate for the language in question but failed to object to the proposed instructions and expressed satisfaction with the charge as given, like the defendant in Ebron. See State v. Brewer, supra, 283 Conn. at 360, 927 A.2d 825; State v. Fabricatore, supra, 281 Conn. at 481, 915 A.2d 872. The court thus found waiver, not induced error, in both cases; State v. Brewer, supra, at 353, 927 A.2d 825; State v. Fabricatore, supra, at 481, 915 A.2d 872; and Ebron improperly determined that Fabricatore and Brewer were distinguishable because they involved induced error.
With respect to Madigosky, Ebron summarized its holding in a parenthetical as follows: "[A]cquiescence at trial to [a] jury instruction challenged on appeal, without more, does not constitute induced error that would preclude review under Golding. . . ." (Emphasis added.) State v. Ebron, supra, 292 Conn. at 682, 975 A.2d 17. In Madigosky, however, in which we explained that induced error is error that a party cannot complain of on appeal because the complaining party encouraged or prompted the court to give the challenged instruction, we stated that we merely disagreed with the state's assertion in that case that the defendant was not entitled to Golding review because he had "induced" the trial court's conduct "by essentially acquiescing to the court's instruction without objecting to it." State v. Madigosky, supra, 291 Conn. at 35 n. 7, 966 A.2d 730. We did not analyze the record or reach the waiver issue in Madigosky because we determined that the claimed instructional impropriety did not rise to the level of a constitutional violation. Id., at 38, 966 A.2d 730. Thus, our reasoning in Ebron, namely, that Madigosky required us to reject the state's argument that the defendant in Ebron waived his right to Golding review, was incorrect.
[17] In declaring that, "[d]espite contending that it is not adopting the state's [approach to waiver], the majority sets out a nearly identical rule"; footnote 1 of Justice Katz' concurring opinion; Justice Katz is apparently referring to our statement that "[w]e do not entirely agree with the state's legal argument." Justice Katz, however, misunderstands that, in referring to the state's "legal argument," we include the argument on forfeiture, with which we do not agree, as well as the argument on waiver, with which we generally agree. Moreover, to the extent that we agree with the state's position on waiver, we agree because it is the correct approach and not for any other reason.
[18] We note, in keeping with these principles, that the finding of a valid waiver precludes a finding that a jury instruction constitutes plain error because a valid waiver means that there is no error to correct. See, e.g., Mozell v. Commissioner of Correction, supra, 291 Conn. at 70, 967 A.2d 41.
[19] Justice Katz declares that our precedent has established that "a defendant will waive Golding review only by affirmatively agreeing to a specific jury instruction discussed on the record"; (emphasis in original); and that the majority, in stating that cases involving waiver fall into three categories, relies on a flawed analysis of this court's case law that "goes well beyond the circumscribed approach to waiver outlined in these cases. . . ." Justice Katz specifically claims that the majority mischaracterizes and misconstrues Fabricatore and Brewer in order to support its "wholly novel system of categorizing unpreserved trial errors under which . . . a defendant will be deemed to have waived Golding review of an instructional claim. . . ." We disagree. We merely note that the numerous cases in which this court and the Appellate Court have reviewed instructional error under Golding tend to fall into three recognizable categories, which we explain in more detail in the discussion that follows.
[20] Waiver in this group of cases is similar to waiver under federal law, under which unpreserved instructional claims in criminal cases are reviewed for plain error. See Fed. R.Crim.P. 52(b) ("[a] plain error that affects substantial rights may be considered even though it was not brought to the court's attention"). The federal scheme for reviewing trial error generally distinguishes between forfeiture and waiver, applying plain error review when the claim was merely forfeited because the party failed to assert the right to object in a timely manner, and precluding review of the claim when the party knowingly and intentionally waived that right. See Virgin Islands v. Rosa, 399 F.3d 283, 291 (3d Cir. 2005); see also United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir.2009). Thus, "[i]f a party's failure to take an . . . exception is simply a matter of oversight, then such oversight qualifies as a correctable `forfeiture' for the purposes of plain error analysis. If, however, the party consciously refrains from objecting as a tactical matter, then that action constitutes a true `waiver,' which will negate even plain error review." United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995). "According to the sole applicable test, therefore, waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." (Emphasis in original; internal quotation marks omitted.) Pace v. Bogalusa City School Board, 403 F.3d 272, 298 (5th Cir.) (Jones, J., concurring in part and dissenting in part), cert. denied sub nom. Louisiana State Board of Elementary & Secondary Education v. Pace, 546 U.S. 933, 126 S.Ct. 416, 163 L.Ed.2d 317 (2005). This test is not easily applied. "[Alt]hough the conceptual distinction between a forfeiture and a waiver is clear, in practice the distinction is sometimes elusive." Virgin Islands v. Rosa, supra, at 291.
In resolving claims of waiver, federal courts proceed cautiously and "indulge every reasonable presumption against waiver of fundamental constitutional rights and . . . do not presume acquiescence in the loss of fundamental rights." (Internal quotation marks omitted.) Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); see also, e.g., Bayo v. Napolitano, 593 F.3d 495, 503 (7th Cir.2010); United States v. Watford, 468 F.3d 891, 907 (6th Cir.2006), cert. denied, 550 U.S. 970, 127 S.Ct. 2876, 167 L.Ed.2d 1155 (2007). Accordingly, federal courts generally agree that acquiescence is not enough to support the conclusion that a defendant knowingly relinquished or abandoned the right to challenge a jury instruction on appeal. Rather, the record must show that defense counsel not only was aware of the challenged instruction but also stipulated or affirmatively agreed to the instruction by words or other conduct. See United States v. Cruz-Rodriguez, supra, 570 F.3d at 1185 (classic waiver situation occurs when "a party actually identified the issue, deliberately considered it, and then affirmatively acted in a manner that abandoned any claim on the issue" [internal quotation marks omitted]); see also, e.g., United States v. DiSantis, 565 F.3d 354, 361 (7th Cir.2009) ("[t]he touchstone of the waiver requirement is whether and to what extent the defendant ha[s] actually approved of the jury instructions assigned as error on appeal" [internal quotation marks omitted]).
[21] Justice Katz charges the majority with a "gross misreading of the facts in Fabricatore" and maintains that there was an on-the-record discussion of the instruction on self-defense, which was later challenged on appeal. We disagree.
In Fabricatore, the certified question was whether "the Appellate Court properly conclude[d] that the trial court's improper instruction on the duty to retreat constituted harmless error. . . ." (Emphasis added.) State v. Fabricatore, 275 Conn. 902, 903, 882 A.2d 678 (2005). We stated at the outset of our opinion that "[t]he sole issue in this appeal is whether the Appellate Court properly rejected the defendant's claim that the trial court's self-defense instruction as it pertained to the duty to retreat constituted harmful error." (Emphasis added.) State v. Fabricatore, supra, 281 Conn. at 471, 915 A.2d 872. Thus, the question on appeal did not relate to the self-defense instruction, generally, but to the duty to retreat portion of the self-defense instruction, which was not the subject of an on-the-record discussion in Fabricatore.
The facts on which we relied in Fabricatore are as follows. After the jury left the courtroom, the prosecutor requested that certain language be added to the self-defense instruction indicating that, "if the jury found the defendant was the initial aggressor, the defense of self-defense would no longer be available to the defendant pursuant to [General Statutes] § 53a-19 (c). When the court asked defense counsel if he had any objections to that addition to the charge, defense counsel objected, stating twice that the self-defense instruction already had been given as he had requested, and once that he was `satisfied' with the self-defense instruction." (Emphasis added.) Id., at 475, 915 A.2d 872. Consequently, the only part of the self-defense instruction to which [counsel] responded with a specific on-the-record comment related to the prosecutor's suggested addition of an initial aggressor instruction. His remarks indicating "satisf[action]" with the self-defense instruction conveyed that he was satisfied with the instruction on self-defense, generally, and that he did not want the court to add the initial aggressor instruction that the prosecutor had requested. Thereafter, we concluded that the defendant had waived Golding review of the propriety of the duty to retreat instruction because "defense counsel not only failed to object to the instruction as given or to the state's original request to charge the jury with the duty to retreat . . . but clearly expressed his satisfaction with that instruction, and in fact subsequently argued that the [self-defense] instruction as given was proper. Indeed, defense counsel himself addressed the duty to retreat in his own summation [and failed to object to the state's references to the duty to retreat in its summation and rebuttal summation]. Thus, the [defense] accepted the duty to retreat theory presented by the prosecutor, and openly acquiesced at trial, thereby waiving [the] right to challenge the instruction on appeal." (Emphasis added.) Id., at 481, 915 A.2d 872. Notably absent from this list of reasons is any reference whatsoever to an on-the-record discussion of the duty to retreat instruction itself. Accordingly, it is Justice Katz who misreads the facts in Fabricatore and misunderstands that the basis for our conclusion that the defendant in that case had waived his jury instruction claim was not an explicit acknowledgment and acceptance of the duty to retreat instruction in an on-the-record discussion with the court.
In insisting that it was "fully apparent throughout the on-the-record discussions regarding the instruction" that the defendant was challenging the inclusion of the duty to retreat instruction; footnote 6 of Justice Katz' concurring opinion; Justice Katz fails to recognize that the defendant was challenging the prosecutor's request for an initial aggressor instruction. Insofar as Justice Katz also relies on the fact that defense counsel expressed satisfaction with the instruction, did not take exception to the prosecutor's reference to the duty to retreat in his summation and addressed the duty to retreat in his own summation, counsel's actions represented either express acquiescence in the instruction as given or trial conduct indicating acceptance of the instruction. Consequently, the record clearly shows that, although defense counsel did not engage in an on-the-record discussion with the court on the duty to retreat, he waived the defendant's right to challenge the instruction on appeal.
[22] Justice Katz reasserts her claim that the majority opinion suffers from a "misapprehension of our case law" because, in Brewer, defense counsel and the trial court discussed on the record the "specific jury instruction later challenged," and defense counsel explicitly acquiesced in the instruction as given. We disagree.
In Brewer, we stated that the defendant's sole claim on appeal was that, "pursuant to State v. Sawyer, 227 Conn. 566, 576, 630 A.2d 1064 (1993), the trial court improperly instructed the jury that it must unanimously [find] the defendant [not guilty] of the murder charge before it properly could consider a lesser included charge of first degree reckless manslaughter (acquittal first instruction)." State v. Brewer, supra, 283 Conn. at 353, 927 A.2d 825. Defense counsel in Brewer had requested the lesser included offense instruction, which the court gave as an "`exercise in caution'" over the state's objection; id., at 360, 927 A.2d 825; and had conceded that the instructions as given were correct in the law because they complied with the requirement of unanimity outlined in Sawyer; id.; but claimed that the unanimity requirement violated the defendant's constitutional rights to a jury trial and due process of law. Id., at 355, 927 A.2d 825. We subsequently concluded in Brewer that the defendant had waived his claim because defense counsel "specifically expressed his satisfaction with that instruction when queried by the trial court." Id., at 361, 927 A.2d 825. We disagree with Justice Katz, however, that the language that we used in Brewer can be construed to mean that the unanimity requirement was discussed on the record because a fair reading of the record unequivocally demonstrates that the unanimity requirement never was mentioned. See id., at 357 n. 7, 927 A.2d 825. After asking if counsel had any exceptions to the jury instructions, both sides replied in the negative. Id. Upon asking a second time, the prosecutor responded that the state did not believe that the defense was entitled to a lesser included offense instruction. Id. The court then expressed ambivalence about giving such an instruction, stating that "[i]t's often very difficult to figure out whether an offense is a lesser included offense.. . . I'm not totally convinced that it's a lesser included offense, but charging on it . . . makes more sense. . . . [S]o as an exercise in caution, I've decided to go along with the request of the defense on this even though I'm not sure that it's appropriate and give the . . . lesser included that they requested and . . . this was the only one that you requested and. . . this was the right one as far as you were concerned, correct?" (Citation omitted; internal quotation marks omitted.) Id. Defense counsel replied: "That is correct, Your Honor." (Internal quotation marks omitted.) Id.
On the basis of this colloquy, several conclusions can be drawn. First, the discussion concerned whether the court should give the instruction on the lesser included offense of reckless manslaughter, not whether the instruction incorrectly stated the law or was constitutionally defective. Second, the court indicated that it was giving the instruction because defense counsel had requested it and then asked counsel if the lesser included offense to which the instruction referred was "the right one. . . ." (Internal quotation marks omitted.) Id. Third, defense counsel responded that it was. Id. Neither counsel nor the court referred to the unanimity portion of the instruction. Although this colloquy and defense counsel's prior statement that he had no exceptions to the jury instructions suggest that counsel was satisfied with the instructions and thus waived a claim of instructional error concerning the unanimity requirement, there is no basis for Justice Katz' conclusion that the unanimity portion of the instruction was specifically discussed on the record, especially when counsel's only contribution to the discussion was his perfunctory, "[t]hat is correct, Your Honor," which was in response to the court's simple question of whether it had instructed on the proper lesser included offense. Accordingly, Justice Katz' assertion that there was an explicit, on-the-record discussion of the unanimity instruction is unsupportable.
[23] The standard that we describe would not allow waiver to be presumed from a silent record or from defense counsel's mere acquiescence in, or failure to object to, the jury instructions. A silent record, by definition, would not satisfy the standard because there would be no factual basis from which the court could infer a waiver, and mere acquiescence or failure to object, without more, would provide an insufficient basis for a finding of waiver because there would be no evidence from which the court could determine whether counsel had been given a meaningful opportunity to review, comment on and express satisfaction with the instructions, or whether counsel had, in fact, expressed such satisfaction before or after the instructions were given.
[24] Having joined each other's opinions, it is difficult to determine whether the concurring justices agree on a single standard, because the standards articulated in their individual opinions appear to be quite different, if not incompatible. For example, Justice Katz states that nontactical, implied "waiver results only when: (1) the specific instruction that is later challenged is brought to the attention of defense counsel; (2) that instruction is discussed on the record; and (3) defense counsel nonetheless explicitly and actually approves of the instruction," whereas Justice Palmer states that waiver "cannot be [found]. . . in the absence of a record clearly demonstrating, either expressly or impliedly, counsel's knowledge that the charge, at least potentially, was constitutionally infirm and that counsel, in the exercise of his [or her] professional judgment, decided to forgo any [objection] concerning that possible infirmity." Thus, the standard articulated by Justice Katz, unlike that articulated by Justice Palmer, would not require evidence that counsel agreed to a constitutionally flawed jury instruction despite knowledge of the flaw.
[25] We also believe that Justice Palmer's view that waiver should not be found "in the absence of a record clearly demonstrating, either expressly or impliedly, counsel's knowledge that the charge, at least potentially, was constitutionally infirm and that counsel, in the exercise of his [or her] professional judgment, decided to forgo any claim concerning that possible infirmity"; (emphasis in original); is internally inconsistent because there appears to be no way that counsel may clearly demonstrate such knowledge except by expressly informing the court. Accordingly, Justice Palmer's standard effectively eviscerates the concept of implied waiver in favor of express waiver, despite his use of the word "implied."
Moreover, Justice Palmer's understanding of implied waiver is not how Connecticut's reviewing courts have construed implied waiver in the past. See, e.g., State v. Hampton, supra, 293 Conn. at 449-50, 978 A.2d 1089 (defense waived claim of improper instruction on unanimity because unanimity was highlighted twice by court during charge conferences, counsel was given complete copy of revised instructions to review, and counsel assented to instruction by stating that instructions were "`in order,'" suggesting no changes, and failing to object after court twice asked counsel for changes, additions or deletions to instructions); State v. Foster, supra, 293 Conn. at 340-42, 977 A.2d 199 (defense waived claim of improper instruction on alibi defense by expressing satisfaction with initial alibi instruction, asking court to remind jury that it must determine if defendant was present at crime scene and failing to object to court's supplemental instruction repeating part of initial alibi instruction that counsel had requested); State v. Collazo, supra, 115 Conn.App. at 760, 974 A.2d 729 (defense waived claim by expressing agreement with instruction at charge conference during which court highlighted challenged portion of instruction on liability as accessory or principal and by stating that it had no objection after instruction was given). It is also not how federal courts typically have construed implied waiver in the past. As we previously noted; see footnote 20 of this opinion; most federal courts proceed on the theory that the challenged instruction must be discussed on the record and that defense counsel must have stipulated or affirmatively agreed to the instruction by words or other conduct. See, e.g., United States v. Polouizzi, supra, 564 F.3d at 153 (finding waiver because defense counsel indicated to trial court that challenged instruction was satisfactory); United States v. Sanders, 520 F.3d at 702 (finding waiver because defense counsel agreed to, and argued in favor of, challenged instruction); see also United States v. DiSantis, 565 F.3d 354, 361 (7th Cir.2009) ("[t]he touchstone of the waiver requirement is whether and to what extent the defendant ha[s] actually approved of the jury instructions assigned as error on appeal" [internal quotation marks omitted]). Indeed, in her concurring opinion, Justice Katz cites these and several other cases in support of this theory. See, e.g., United States v. Conner, 583 F.3d 1011, 1026-27 (7th Cir.2009) (finding waiver because defense counsel expressly stated that she agreed with challenged instruction); United States v. Hamilton, supra, 499 F.3d at 736 (finding no waiver because court did not ask defense counsel if he agreed to instructions or ask counsel about specific instruction challenged on appeal). In the very few federal cases in which the court found no waiver because the record contained no evidence of trial counsel's knowledge that the challenged instruction was flawed, the facts are distinguishable. See, e.g., Virgin Islands v. Rosa, 399 F.3d 283, 290-91 (3d Cir.2005) (finding no waiver despite multiple, on-the-record discussions of challenged instruction with trial counsel because record clearly showed that counsel's "failure to object, and moreover his agreement on at least three occasions to the erroneous jury instructions, stemmed from the circumstance that he was unaware of the correct rule of law or, if aware of it, did not realize that the intent instruction misstated it"); United States v. Perez, 116 F.3d 840, 845 (9th Cir.1997) (finding no waiver even though trial counsel invited error by submitting flawed instruction to court, because record indicated that neither court nor parties' attorneys were aware of recently decided case requiring new element to be submitted to jury, and record thus lacked evidence that counsel "affirmatively acted to relinquish a known right"). It is the idea that counsel had sufficient notice of, and accepted, the instruction to be given, not that counsel actually knew and expressed an awareness that the instruction was constitutionally infirm, that has always informed the decisions of this court on implied waiver and that lies at the heart of most federal case law on this issue, with different courts and jurisdictions disagreeing as to the amount and type of evidence required to conclude that counsel was sufficiently aware of the instruction and its possible ramifications to make a finding of waiver. In other words, implied waiver rests on the "legal fiction" that, if counsel had sufficient notice of the jury instructions and was aware of their content, an inference, or "assumption" of fact; Black's Law Dictionary (9th Ed.2009) p. 976 (defining "legal fiction"); can be made that counsel also was aware of any potential constitutional defect that the instructions may have contained and, with full understanding of that defect, opted to refrain from objecting for strategic reasons. Evidence in the record that counsel actually was aware of a constitutional defect in the jury instructions and intentionally chose not to object has, to our knowledge, never been required by this court or by any federal court in order to find implicit waiver of a jury instruction claim. When federal courts have relied on actual knowledge of counsel in rejecting a finding of waiver, it appears to have been only in circumstances in which the record clearly showed that counsel believed that the instructions were correct and was unaware that they were flawed. See Virgin Islands v. Rosa, supra, at 287, 290-91; United States v. Perez, supra, at 845.
Indeed, if the law were as Justice Palmer would like it to be, the presumption of competent counsel on which this court has relied in past cases involving implied waiver would not survive, because counsel could not concede on the record that a jury instruction was constitutionally defective and forgo an objection, even for reasons of trial strategy, without exposing himself or herself to the almost certain filing of a habeas claim of ineffective assistance following a conviction.
We also take issue with Justice Palmer's conclusion that "counsel who does not wish to have a reviewing court treat his failure to object as a waiver for Golding purposes may avoid such treatment simply by informing the trial court that he has not raised a constitutional challenge to the charge because he is unaware of any such claim, and not because he has elected to waive the claim"; (emphasis in original); and that an "express . . . disavow[al]" of waiver "would trump any finding of implied waiver by this court or the Appellate Court. . . ." Such a conclusion is logically flawed because an admission by counsel that he is unaware of a constitutional claim can mean only one of two things, namely, that competent counsel, which Justice Palmer recognizes may be properly presumed, has intentionally waived the right to raise a constitutional challenge on appeal or that counsel is ineffective because he fails to recognize the existence of a constitutional challenge. To determine which is the case is best examined in a habeas proceeding, in which the record can be fully developed and trial counsel may testify about his reasons for acting as he did. Furthermore, Justice Palmer cites no legal support for a blanket preservation by trial counsel of all constitutional challenges to jury instructions merely on the basis of counsel's in-court statement that he or she is "unaware" of a constitutional violation. Finally, such a ploy could open up a "Pandora's box," flooding Connecticut courts with cases alleging improper jury instructions on every conceivable issue and making a mockery of the trial court's attempt to query and solicit counsel's input on the jury instructions. It also would conflict directly with the mandate in rule 1.1 of the Rules of Professional Conduct that requires adequate preparation by counsel in representing a client, which presumably would include sufficient familiarity with the jury instructions to identify instructions that are constitutionally flawed. See Rules of Professional Conduct 1.1 ("A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."). Accordingly, we unequivocally reject as legally unsupportable the assertion that counsel may expressly disavow waiver by informing the trial court that he is "unaware" of any constitutional infirmities in the jury instructions.
We finally disagree with Justice Palmer's view that there is far less reason to bar appellate review of jury instruction claims under the principle of implied waiver than unpreserved claims of prosecutorial impropriety during closing argument, where defense counsel sits through the argument and raises no objection. Trial strategy aside, which may be reason in either circumstance to refrain from objecting, counsel has much more opportunity to identify instructional error than prosecutorial impropriety because counsel has a meaningful opportunity to review the jury instructions and to suggest revisions or corrections, whereas, in the case of prosecutorial impropriety, counsel must make spontaneous, on-the-spot decisions regarding when to object during closing argument, a task not easily accomplished when the argument is passionate, its pace is very rapid and counsel is attempting to make mental or written notes regarding points that require a response. We thus disagree with Justice Palmer's conclusion that the majority's decision "cannot be squared with the approach that this court has taken with respect to unpreserved claims of prosecutorial impropriety during closing argument"; footnote 11 of Justice Palmer's concurring opinion; because it fails to acknowledge the substantial differences between the two scenarios.
[26] Justice Palmer argues that none of these considerations has any bearing on whether counsel in this particular case knowingly and intelligently waived the defendant's right to a constitutionally adequate jury instruction, and, in any event, such considerations are unpersuasive and policy driven. We disagree. Although we believe it self-evident that a finding of valid waiver in any given case must be based on an examination of the facts and circumstances as revealed in the record; see State v. Hampton, supra, 293 Conn. at 450, 978 A.2d 1089 (claim waived on basis of facts in record); State v. Fabricatore, supra, 281 Conn. at 481-82, 915 A.2d 872 (claim waived under facts of case); Justice Palmer apparently misunderstands that the considerations that we discuss do not, in and of themselves, constitute the applicable standard but merely serve as justification for that standard. Finally, we note that these considerations are not policy driven but are based on legal principles that are firmly embedded in the case law of this state and other jurisdictions, and in our rules of practice. Consequently, Justice Palmer's critique is not based on a proper understanding of the standard articulated in this opinion.
[27] Justice Katz asserts that, contrary to the presumption that counsel is both competent and ethical, "the majority's approach allows appellate judges to presume, from nearly silent records, that trial counsel's failure to object to an instruction derived from strategic contrivance rather than mere negligence." We do not agree. It is Justice Katz who contravenes the presumption that counsel is competent because she would deny waiver in all cases in which counsel failed to bring the specific instructional error to the trial court's attention, thus implying that any other valid instructional error was overlooked or not identified because counsel was either incompetent or unethical. In contrast, the majority decision specifically rejects the presumption that all acquiescence at trial to the jury instructions must be due to counsel's incompetence or unethical conduct. Not only do we not believe that all strategic decisions concerning jury instructions are unethical, but we build on the presumption of competent counsel by presuming that counsel would have identified the instructional error if given a proper and meaningful opportunity to review the instructions and by disallowing review upon counsel's failure to object or express satisfaction with the instructions proposed or given. Accordingly, Justice Katz demonstrates a fundamental misunderstanding of the approach articulated in the majority opinion.
[28] Justice Katz again misconstrues our reasoning when she declares that the majority has devised a rule "that depends on the use of the [charge] conference to determine whether the defendant has waived his right to challenge a defective instruction" and has singled out the defendant to bear the costs of instructional error that may occur at trial. Although we have stated that an on-the-record charge conference provides an important opportunity for the defendant to raise specific concerns regarding instructional error, we have also stated that a defendant will not be deemed to have waived such a claim unless the court has provided counsel with a copy of the proposed instructions and a meaningful opportunity for review and comment, which can be determined in any given case only by a close examination of the record. The significance of a meaningful opportunity for review and comment cannot be underestimated. Holding an on-the-record charge conference, and even providing counsel with an advance copy of the instructions, will not necessarily be sufficient in all cases to constitute waiver of Golding review if defense counsel has not been afforded adequate time, under the circumstances, to examine the instructions and to identify any potential flaws. Thus, Justice Katz' assertion that the charge conference is the most important factor in determining whether a claim of instructional error has been waived and that the majority has singled out the defendant to bear the consequences of an erroneous instruction is without foundation because the obligations of the trial court, as described herein, are equally, if not more, significant than those of the prosecutor and the defense.
[29] Justice Palmer, citing Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460-62, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), concludes that a habeas remedy predicated on a claim of ineffective assistance of counsel would not be available in cases in which counsel is deemed to have waived a constitutional claim for failure to raise a novel legal theory or argument at trial because there would be no basis for such a claim. We find this logic unpersuasive. In Ledbetter, we stated that, "[t]o conclude that counsel is obligated to recognize and to preserve previously undecided constitutional claims, the viability of which is purely speculative, would be to require criminal defense lawyers to [be clairvoyant]. . . ." Id., at 462, 880 A.2d 160. For reasons similar to those expressed in Ledbetter, an implied waiver of a previously undecided speculative constitutional claim cannot be founded on a silent record. Moreover, we do not identify, or carve out an exception, for such claims, as Justice Palmer contends, but merely respond to his argument that they would not be entitled to Golding review under the standard set forth in the majority opinion.
[30] Justice Katz states that the failure to file a request to charge has no bearing on a Golding inquiry because filing such a request would properly preserve the claim of error for direct appellate review. Although we agree that the effect of filing a request to charge is to preserve properly a claim of instructional error, we note, with respect to the present case, that defense counsel, by declining twice to file a request to charge in response to the court's direct invitation, indicated that he had no special concerns regarding the instructions on intent that he wished to discuss with the court.
[31] Defense counsel's discussion of unrelated parts of the jury charge at an on-the-record charge conference was significant because it demonstrated that counsel was sufficiently familiar with the instructions to identify those portions of the instructions with which he disagreed. Thus, to the extent that he selectively discussed certain portions of the instructions but not others, one may presume that he had knowledge of the portions that he did not discuss and found them to be proper, thus waiving the defendant's right to challenge them on direct appeal.
[32] Although Justice Katz finds the prosecutor's repeated on-the-record conversations with the court wholly irrelevant to this analysis, we believe that they should have served as a vivid reminder to defense counsel that, if he had any concerns regarding the instruction on intent, he could have brought them to the court's attention. Counsel's failure to do so on multiple occasions thus suggests that he agreed with the instructions that were given.
[1] It is worth noting that, although the majority insists that it does not adopt the state's approach to waiver of Golding review of instructional errors, there is no significant difference, either in description or application, between the state's proposed rule and the rule adopted by the majority. The majority characterizes the state as setting out a rule under which waiver occurs when a defendant acquiesces injury instructions following a meaningful opportunity to review them outside the rush of trial, participates in a charging conference on the record and takes no exception to the charge after it has been delivered. Despite contending that it is not adopting the state's rule, the majority sets out a nearly identical rule under which waiver occurs when the trial court provides a set of written jury instructions to defense counsel, allows a meaningful review of and the opportunity to comment on those instructions, and defense counsel acquiesces to the instructions. See part II of this concurring opinion.
[2] I agree with the majority that this court has recognized that Golding analysis cannot be used to review unpreserved claims of induced, also known as invited, error regardless of the constitutional nature of the error. State v. Cruz, 269 Conn. 97, 104, 848 A.2d 445 (2004); State v. Gibson, 270 Conn. 55, 66, 850 A.2d 1040 (2004). I note that this court has found induced or invited error of Golding instructional claims only when a defendant has submitted or suggested the instructional language that he later challenges. See State v. Coward, 292 Conn. 296, 305, 972 A.2d 691 (2009) ("[w]ith respect to Golding review, the defendant concedes that he induced the claimed error by requesting the very jury charge that he now claims was improper"); State v. Madigosky, 291 Conn. 28, 35 n. 7, 966 A.2d 730 (2009) (mere acquiescence to instruction did not constitute induced error); State v. Griggs, 288 Conn. 116, 126 n. 13, 951 A.2d 531 (2008) ("[t]here was no induced instructional error in this case because the defendant had not submitted a request to charge or suggested any instructional language"); State v. Gibson, supra, at 67-68, 850 A.2d 1040 (defendant induced error by failing to respond affirmatively to court's question as to whether he wanted limiting instruction, failing to correct court's statement that defendant had requested that court not give any limiting instructions, and failing to file written request to charge or to object to charge); see State v. Cruz, supra, at 105 n. 7, 848 A.2d 445 (defendant induced error by affirmatively requesting jury instruction).
[3] The present case concerns only the second exceptional circumstance identified in Evans.
[4] "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823.
[5] This includes review for plain error. See State v. Pierce, 269 Conn. 442, 452, 849 A.2d 375 (2004).
[6] The majority disputes my reading of Fabricatore based in part on its conclusion that, in that case, there was never an on-the-record discussion of the allegedly improper language. In doing so, the majority fails to recognize that the defendant challenged the mere inclusion of the duty to retreat language in the self-defense instruction, an impropriety that was fully apparent throughout the on-the-record discussions regarding the instruction. See State v. Fabricatore, supra, 281 Conn. at 474-75, 915 A.2d 872 (providing text of self-defense instruction); see also State v. Brewer, supra, 283 Conn. at 360, 927 A.2d 825 ("[i]n Fabricatore, the defendant challenged the trial court's inclusion of the duty to retreat in the jury charge on self-defense because the case did not involve the use of deadly force"). Moreover, despite the blatancy of what he later claimed to be an error, defense counsel expressed his satisfaction with the charge, failed to object to the prosecutor's reference in his summation to the duty to retreat and went so far as to address the duty to retreat in his summation.
[7] The majority contends that the on-the-record discussion in the trial court concerned whether the court should give an instruction on lesser included offenses, not the unanimity requirement. I acknowledge that the excerpt of the colloquy cited by this court; State v. Brewer, supra, 283 Conn. at 357 n. 7, 927 A.2d 825; contains no express discussion of the unanimity requirement. In Brewer, however, we were responding to the defendant's claim that he had not waived review of his right to challenge the unanimity instruction required by State v. Sawyer, 227 Conn. 566, 576, 630 A.2d 1064 (1993), because any such claim to the trial court would have been futile. We reiterated that, "as we previously discussed, this is not a case of silence in the face of an allegedly improper charge; instead, it is a case in which defense counsel specifically expressed his satisfaction with that charge. Such an affirmative action by counsel simply cannot lend support to a claim of futility." State v. Brewer, supra, at 361 n. 11, 927 A.2d 825. Because Sawyer specifically concerns unanimity instructions, I believe that the court's statement in Brewer that the defendant had "expressed his satisfaction with that charge"; (emphasis added) id.; necessarily refers to the unanimity charge.
[8] Although this court has maintained that any finding of waiver must derive from a defendant's clear and affirmative acceptance or suggestion of specific instructional language, some panels of the Appellate Court have suggested that a defendant's mere acquiescence to a set of jury instructions may preclude Golding review. See State v. Velez, 113 Conn.App. 347, 357-59, 966 A.2d 743 (2009) (failure to take exception to trial court's response to jury question about proof of intent constituted waiver under Fabricatore); State v. Akande, 111 Conn.App. 596, 608-609, 960 A.2d 1045 (2008) ("We decline to draw a distinction between defense counsel stating that he had no problem with a jury charge that he specifically requested and defense counsel stating that he had no problem with a jury charge that he had not specifically requested. There is also no difference between counsel stating that he has no comment about the charge and counsel stating that the charge as read was correct. In both cases, we find the objection to be waived."), aff'd, 299 Conn. 551, ___ A.3d ___ (2011); State v. Farmer, 108 Conn. App. 82, 88, 946 A.2d 1262 (failure to file request to charge or take exception to constancy of accusation instruction constituted waiver under Fabricatore), cert. denied, 288 Conn. 914, 954 A.2d 185 (2008). In these cases, the Appellate Court construed the defendant's acquiescence to constitute a waiver of Golding review, and in the process, conflated the distinction between waiver and failure to preserve. Partly in response to this approach by the Appellate Court, we attempted to clarify our approach to induced error and waiver in State v. Ebron, supra, 292 Conn. at 682, 975 A.2d 17. In doing so, we suggested that waiver occurred only when the defendant actively induced the later challenged error. Id.; see also State v. Ovechka, 118 Conn.App. 733, 741, 984 A.2d 796 ("[w]here there is an indication that the defendant actively induced the trial court to give the [improper] instruction that he now challenges on appeal; State v. Ebron, [supra, at 682, 975 A.2d 17]; the defendant's claim is waived and thus not reviewable under Golding" [internal quotation marks omitted]), cert. denied, 295 Conn. 905, 989 A.2d 120 (2010).
[9] I reiterate for the purpose of clarity that, as in the federal courts, invited or induced error is a subset of waiver. The federal courts deem instructions that the defendant expressly provides to the court to be invited errors, and generally treat such errors as a subset of waiver, thus foreclosing review. See United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir.2009) ("the waiver doctrine has been applied in situations of invited error"); United States v. Hertular, 562 F.3d 433, 444 (2d Cir.2009) ("a defendant who has invited a challenged charge has waived any right to appellate review" [internal quotation marks omitted]); United States v. Hamilton, 499 F.3d 734, 736 (7th Cir.2007) ("[h]ad [the challenged instruction] been one of the defendant's requested instructions, any objection to giving it would indeed have been waived . . . it would have been a case of `invited error'" [citations omitted]), cert. denied, 552 U.S. 1129, 128 S.Ct. 951, 169 L.Ed.2d 782 (2008); United States v. Wall, 349 F.3d 18, 24 (1st Cir.2003) (defendant waived error by requesting and specifically approving later challenged charge). One federal circuit, however, has suggested that invited errors should be treated differently than waiver, and may be subject to review for "`manifest injustice.'" United States v. Rodriguez, 602 F.3d 346, 350-51 (5th Cir.2010).
[10] Rule 52(b) of the Federal Rules of Criminal Procedure provides: "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention." Although the federal courts refer to this doctrine as plain error review, it is treated in practical application like this court's Golding review.
The United States Supreme Court has set forth a four-pronged test to determine whether a trial error may be reviewed under rule 52(b). "First, there must be an error or defectsome sort of [d]eviation from a legal rulethat has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant.... Second, the legal error must be clear or obvious, rather than subject to reasonable dispute.... Third, the error must have affected the appellant's substantial rights.... Fourth ... if the above three prongs are satisfied, the court of appeals has the discretion to remedy the errordiscretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." (Citations omitted; internal quotation marks omitted.) Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009); see also United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
[11] In suggesting that Justice Palmer and I have adopted inconsistent standards, the majority apparently overlooks my adoption of this fundamental principle of waiver, which states in general terms the same view articulated in Justice Palmer's concurring opinion regarding application of that principle in the specific context of Golding reviewthat waiver "cannot be deemed ... in the absence of a record clearly demonstrating, either expressly or impliedly, counsel's knowledge that the charge, at least potentially, was constitutionally infirm and that counsel, in the exercise of his [or her] professional judgment, decided to forgo any claim concerning that possible infirmity." (Emphasis in original.) Therefore, the claimed inconsistency is illusory.
[12] I reiterate that these principles are consistent with this court's approach to waiver of jury instructions. See, e.g., State v. Holness, supra, 289 Conn. at 543, 958 A.2d 754 (defense counsel waived challenge to jury instruction by agreeing to limiting instruction suggested by state); State v. Fabricatore, supra, 281 Conn. at 481, 915 A.2d 872 (defense counsel waived challenge to jury instruction by failing to object to challenge, expressing satisfaction with instruction, arguing that instruction was proper and adopting language of instruction in his summation).
[13] Again, I note that this approach is consistent with our approach to strategic waivers. We have recognized that "[t]o allow the [petitioner] to seek reversal [after] his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal." (Internal quotation marks omitted.) State v. Fabricatore, supra, 281 Conn. at 480-81, 915 A.2d 872. We have always, however, imposed the same requirements for finding waiver regardless of the suspected motivation or intent behind a defendant's actions, namely, that the record reflects that the waiver was knowing and intentional. Id., at 480, 915 A.2d 872. I continue to believe that our traditional waiver doctrine is capacious enough to identify and preclude all waivers, including strategic waivers.
[14] The doctrine of "plain error," that is error that is so fundamental that the defendant will not lose his ability to challenge it on appeal, does not ameliorate a defendant's inability to access Golding review. Any reliance on the plain error doctrine as a fallback measure on which defendants may rely is misplaced because "[j]ust as a valid waiver calls into question the existence of a constitutional violation depriving the defendant of a fair trial for the purpose of Golding review, a valid waiver also thwarts plain error review of a claim.... [The] [p]lain [e]rror [r]ule may only be invoked in instances of forfeited-but-reversible error . . . and cannot be used for the purpose of revoking an otherwise valid waiver. This is so because if there has been a valid waiver, there is no error for us to correct. . . . The distinction between a forfeiture of a right (to which the [p]lain [e]rror [r]ule may be applied) and a waiver of that right (to which the [p]lain [e]rror [r]ule cannot be applied) is that [w]hereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." (Citation omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 70-71, 967 A.2d 41 (2009). Therefore, the majority's reframing of implied waiver forecloses both Golding review and plain error review when a defendant acquiesces to jury instructions following the charging conference.
[15] Rule 1.1 of the Rules of Professional Conduct provides: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
[16] Rule 3.3(a) of the Rules of Professional Conduct provides in relevant part: "A lawyer shall not knowingly:
"(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; [or]
"(2) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel...."
[17] From January 1, 2000, to May 5, 2010, this court considered approximately 140 criminal appeals in which a defendant requested Golding review, not including cases in which the court determined that the defendant was entitled to other types of appellate review. Of those 140 cases, approximately 70 involved claims for Golding review of instructional errors, in which the court found reversible error in only 6 cases.
During the same period, the Appellate Court considered approximately 550 criminal appeals in which a defendant requested Golding review or the court, sua sponte, engaged in Golding review, not including cases in which the court determined that another legal framework governed its review. Of those 550 cases, approximately 250 involved claims for Golding review of instructional error, and the court found reversible error in only 17 cases.
[18] This court has held that Golding review is not available for unpreserved claims of error raised for the first time in a habeas appeal. Safford v. Warden, 223 Conn. 180, 190 n. 12, 612 A.2d 1161 (1992); see also Cupe v. Commissioner of Correction, 68 Conn.App. 262, 271 n. 12, 791 A.2d 614 ("Golding does not grant . . . authority for collateral review and is ... inapplicable to habeas proceedings"), cert. denied, 260 Conn. 908, 795 A.2d 544 (2002). Therefore, this leaves defendants in the position of having to raise Golding claims on appeal, knowing that the court will deem them to be waived, in order to preserve them for habeas review.
[19] Similarly, the majority's reliance on Practice Book § 42-16 is misplaced. Section 42-16 provides in relevant part: "An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception...." The majority suggests that this provision encourages defense counsel to file a request to charge, but fails to consider that § 42-16 sets forth the procedure by which counsel may properly preserve appellate review of an instruction, and thus is not applicable to Golding review. See, e.g., State v. King, 289 Conn. 496, 502-503, 958 A.2d 731 (2008) (engaging in Golding review of instructional error claim despite failure to comply with § 42-16).
[20] The state does not claim that the defendant's actions constituted induced or invited error.
[21] General Statutes § 53a-94 (a) provides: "A person is guilty of kidnapping in the second degree when he abducts another person."
[22] General Statutes § 53a-95 (a) provides: "A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury."
[23] General Statutes § 53a-3 (11) provides that "[a] person acts `intentionally' with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct...."
[1] Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823.
[2] I do agree with the majority that the present case provides an appropriate opportunity for this court to reexamine and clarify the law on implied waiver as it applies to claims of instructional impropriety under Golding, in view of the fact that our previous pronouncements on the subject have hardly been a model of clarity. Although I believe that our decision in State v. Ebron, 292 Conn. 656, 681-82, 975 A.2d 17 (2009), comes the closest to setting forth the correct legal principles, to my knowledge, this court has never engaged in a thorough analysis of the concept of implied waiver insofar as it pertains to unpreserved constitutional claims of instructional error. Indeed, to date, this court has not evaluated a claim of implied waiver with express reference to the standard applicable to the waiver of a constitutional right, that is, that, to be effective, such a waiver must reflect the intentional relinquishment of a known right. Consequently, our prior cases in this area are not particularly helpful in resolving the question posed by the present appeal.
[3] There also is no dispute that the right to a constitutionally adequate jury instruction is a fundamental right. Indeed, this court routinely has concluded that such claims satisfy the second prong of Golding, pursuant to which an unpreserved claim is reviewable only if it "is of constitutional magnitude alleging the violation of a fundamental right...." State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. In fact, in the present case, the majority expressly has acknowledged that the defendant's claim is reviewable under the second Golding prong, stating that "the claim of instructional error on an element of the crime is of constitutional magnitude because it implicates the due process rights of the defendant."
[4] This court also has defined waiver as the "voluntary relinquishment or abandonment express or impliedof a legal right or notice." (Internal quotation marks omitted.) State v. Hampton, 293 Conn. 435, 449, 978 A.2d 1089 (2009); accord State v. Fabricatore, supra, 281 Conn. at 482 n. 18, 915 A.2d 872. There is no material distinction between these two characterizations of the waiver principle.
[5] The reason for requiring a knowing and intelligent waiver in such circumstances is obvious. As the United States Supreme Court has explained, this "strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the [c]onstitution were not provided.... The [c]onstitution requires that every effort be made to see to it that a defendant in a criminal case has not unknowingly relinquished the basic protections that the [f]ramers thought indispensable to a fair trial." (Citation omitted.) Schneckloth v. Bustamonte, 412 U.S. 218, 241-42, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Of course, a constitutionally adequate jury instruction is a necessary prerequisite to a fair trial.
[6] I note that neither the state nor the majority has suggested that a less stringent standard of proof is applicable to the waiver issue presented by this appeal. In the absence of any such claim, I do not address the possible applicability of such a standard.
[7] I hereinafter refer generally to defense counsel's failure to raise a constitutional challenge to the court's jury instructions. In fact, in any given case, counsel may have raised one or more such challenges. Of course, each of those challenges represents a preserved constitutional claim, and, therefore, the defendant need not invoke Golding for purposes of obtaining appellate review of those claims. My references to counsel's failure to raise a claim of instructional impropriety are to any and all such claims that defense counsel did not raise, irrespective of whether counsel raised one or more other claims of instructional error. Of course, the fact that counsel may have raised one or more such claims has no bearing on the extent to which the defendant may or may not be deemed to have waived all other such claims that defense counsel did not raise.
[8] I note that the state claims, as an alternative to establishing waiver, that counsel may be deemed to have forfeited the defendant's right to raise a claim challenging the court's jury instructions on constitutional grounds when the court affords counsel a reasonable opportunity to review the charge and counsel indicates his acceptance of the charge. The majority rejects the state's contention, explaining that forfeiture, which is defined as "the failure to make the timely assertion of a right"; (internal quotation marks omitted); is not a bar to Golding review of an unpreserved claim of instructional impropriety. In fact, however, the majority effectively embraces the forfeiture doctrine while purporting to reject it. This is so because, as I have explained, counsel's conduct does not support an inference of waiver, and, consequently, the sole basis for barring the defendant's claim on appeal stems from counsel's failure to have timely asserted that claim at trial. Indeed, the fact that the majority's conclusion is predicated on forfeiture and not on waiver is demonstrated by the majority's reliance on policy considerations rather than the fact-intensive inquiry that is necessary to the determination of whether an implied waiver by conduct has occurred.
[9] The majority disputes the logic of this analysis, asserting that, "an admission by counsel that he is unaware of a constitutional claim can mean only one of two things, namely, that competent counsel ... has intentionally waived the right to raise a constitutional challenge on appeal or that counsel is ineffective because he fails to recognize the existence of a constitutional challenge." Footnote 25 of the majority opinion. This assertion is incorrect because the majority fails to recognize the vast majority of the claims that it deems waived by competent counsel's failure to raise the claim, namely, the infinitely large category of constitutional claims that lack merit. Just as the majority has no response to the fact that no competent counsel possibly could conceive of all such claims, the majority also has no response to the fact that, under its decision, counsel is irrebuttably presumed to have waived all constitutional claims that have not been raised, including claims that ultimately are determined to be without merit. Unfortunately, the majority fails to come to grips with this fundamental problem in its analysis.
Of course, in the rare case in which counsel actually intends to waive one or more claims relating to the court's jury instructions, counsel presumably would so advise the court. In doing so, counsel would be discharging his duty of candor to the court and, at the same time, avoiding an unwarranted inference of waiver, for Golding purposes, with respect to any other potential constitutional claims pertaining to the jury charge.
[10] The majority rejects this analysis, asserting, first, that there is "no legal support for a blanket preservation by trial counsel of all constitutional challenges to jury instruction merely on the basis of counsel's in-court statement that he or she is `unaware' of a constitutional violation," second, that "such a ploy could open up a `Pandora's box,' flooding Connecticut courts with cases alleging improper jury instructions on every conceivable issue," third, that it would make "a mockery of the trial court's attempt to query and solicit counsel's input on the jury instructions," and, fourth, that it "would conflict directly with the mandate of rule 1.1 of the Rules of Professional Conduct that requires adequate preparation by counsel in representing a client, which presumably would include sufficient familiarity with the jury instructions to identify instructions that are constitutionally flawed." Footnote 25 of the majority opinion. These objections are lacking in merit, primarily because they have nothing at all to do with the fact-based inquiry that, as the majority itself acknowledges, is determinative of whether a constitutional right has been knowingly and intentionally waived by implication. See part II B of the majority opinion (whether reviewing court may find that defense counsel waived constitutional claim by implication depends on "a close examination of the record and the particular facts and circumstances of each case," including, most importantly, counsel's "course of conduct"). Indeed, the majority's four reasons simply highlight the fundamental problem with its analysis; each of those reasons is predicated on policy concerns that, the majority claims, stem from counsel's express disavowal of waiver and that have no bearing on the issue of whether, as a factual matter, it is reasonable to infer that counsel has knowingly and intentionally waived a constitutional claim or claims despite counsel's representation to the contrary.
Furthermore, even as a matter of policy, the four concerns expressed by the majority have no basis in fact or law. The majority's first point, namely, that there is "no legal support for a blanket preservation by trial counsel of all constitutional challenges to jury instructions merely on the basis of counsel's in-court statement that he or she is `unaware' of a constitutional violation"; footnote 25 of the majority opinion; fails for at least two reasons. First, there is no controlling precedent to cite on the issue because the majority's approach is itself unprecedented; indeed, the majority cites nothing to support its opposing argument. Second, and more importantly, the majority misses the point in asserting that a statement by counsel informing the court that he or she is unaware of any potential constitutional claim constitutes a "blanket preservation ... of all constitutional challenges" to the court's jury instructions. Id. In fact, such a statement by defense counsel does not serve to preserve any claim or claims; rather, the statement merely serves to ensure that, on appeal, the defendant will not be barred from bringing an unpreserved constitutional claim that otherwise would be reviewable under Golding merely because counsel was unaware of the claim and therefore failed to raise it at trial.
The majority's second concern also is completely unfounded. A forthright statement by counsel explaining why his or her failure to raise a constitutional challenge to the charge should not be construed as a waiver of any such challenge cannot, by any fair standard, be characterized as a "ploy...." Id. In fact, the majority fails to provide any support for its dismissive and perjorative characterization of such a statement; rather, the majority simply asserts, without any basis for doing so, that the statement, although accurate, is merely a gambit or maneuver. More importantly, there is absolutely no reason to believe that a proper application of the waiver principle will lead to a flood of claims on appeal in which appellate counsel raises "every conceivable [jury instruction] issue...." Id. Simply put, the majority's concern is both unsupported and unsupportable. The majority's concern is unsupported because the majority provides no evidence, anecdotal or otherwise, to substantiate its bald assertion that accepting defense counsel's representations on the issue of waiver would result in a flood of claims on appeal. The majority's concern is unsupportable because there is no reason to presumeagain, the majority itself advances no such reasonthat appellate counsel will flood this court and the Appellate Court with frivolous claims of constitutionally deficient jury instructions.
The majority also asserts that a statement by counsel disavowing a knowing and intentional waiver of potential constitutional claims would make "a mockery of the trial court's attempt to query and solicit counsel's input on the jury instructions" and "would conflict directly with the mandate of rule 1.1 of the Rules of Professional Conduct that requires adequate preparation by counsel in representing a client, which presumably would include sufficient familiarity with the jury instructions to identify instructions that are constitutionally flawed." Id. This assertion is devoid of merit, as well. Contrary to the view of the majority, it must be presumed that defense counsel seek to represent their clients conscientiously and effectively and, further, that counsel will comply with their professional obligation to attend to matters concerning the court's jury instructions with diligence and due care. Moreover, there is no basis for the majority's suggestion that an attorney who fails to identify a constitutionally flawed jury instruction would be violating rule 1.1 of the Rules of Professional Conduct; although it may be that, in some cases, such an oversight would support a claim of ineffective assistance of counsel, there is no legal or factual support for the majority's assertion that the oversight also implicates ethical concerns. Finally, the majority demonstrates its misunderstanding of the issue presented when it asserts that adequate preparation by counsel "presumably would include sufficient familiarity with the jury instructions to identify instructions that are constitutionally flawed." (Emphasis added.) Id. In fact, under the approach that the majority adopts, defense counsel will be deemed to have waived both meritorious and unmeritorious claims challenging the constitutional adequacy of the jury instructions. Since counsel cannot possibly be expected to anticipate all potential unmeritorious claims that may be raised on appeal, no matter how well prepared counsel might be, there is absolutely no reason to think that rule 1.1 of the Rules of Professional Conduct somehow will be undermined by counsel's explanation disavowing waiver.
In sum, it is clear that the majority disapproves of the consequences that it perceives will flow from counsel's disavowal of a knowing and intentional waiver of any instructional impropriety. Putting aside the fact that the majority's concerns are unfounded, I submit that those concerns do not stem from any logical flaw in my assertion that, under the fact-driven law of waiver, counsel can avoid a finding of implied waiver by expressly disavowing an intent to waive any claim of instructional error. Rather, the majority's concerns flow from considerations wholly unrelated to principles of waiver, namely, policy considerations that the majority believes militate in favor of denying Golding review in cases such as the present one. As I have explained, however; see footnote 8 of this opinion; the majority seeks to give voice to those policy considerations through a misapplication of the waiver doctrine; in reality, the majority's decision rests on the forfeiture doctrine, pursuant to which defense counsel's failure to make a claim in a timely manner, that is, at trial, bars the defendant from raising the claim on appeal. Simply put, it is self-evident that a defense attorney who, in his capacity as an officer of the court, represents to the court that he is aware of no constitutional infirmity in the jury charge, cannot possibly be deemed to have knowingly and intentionally waived any and all future claims challenging the constitutionality of that charge.
[11] I note that the majority's decision cannot be squared with the approach that this court has taken with respect to unpreserved claims of prosecutorial impropriety during closing argument. Specifically, we have stated that a defendant is entitled to appellate review of an alleged due process violation stemming from improper prosecutorial argument even though defense counsel sat through that argument and raised no objection. See, e.g., State v. Stevenson, 269 Conn. 563, 575-77, 849 A.2d 626 (2004). If ever there was a case in which defense counsel might be presumed to have waived a constitutional claim, that is it; indeed, we expressly have recognized the role that tactical considerations are likely to have played in such a scenario. See id., at 576, 849 A.2d 626 ("defense counsel may elect not to object to arguments that he or she deems marginally objectionable for tactical reasons, namely, because he or she does not want to draw the jury's attention to it or because he or she wants to later refute that argument" [internal quotation marks omitted]). This court having opted not to bar appellate review of such unpreserved claims, there is far less reason to bar appellate review of claims such as those raised in the present case, claims that, in stark contrast to claims concerning a prosecutor's allegedly inflammatory closing argument, frequently implicate complex and subtle issues embedded in a lengthy jury charge.
[12] Although the majority does not say so, the result it achieves seems to be responsive generally to the concerns expressed by the Appellate Court in State v. Reynolds, 118 Conn.App. 278, 305-306 n. 7, 983 A.2d 874 (2009), cert. denied, 294 Conn. 933, 987 A.2d 1029 (2010), with respect to our waiver analysis in State v. Ebron, 292 Conn. 656, 679-82, 975 A.2d 17 (2009). Characterizing Ebron as "narrowly defining waiver"; State v. Reynolds, supra, at 305 n. 7, 983 A.2d 874; and relying on policy concerns relating to the import and efficacy of charge conferences, the court in Reynolds encouraged this court to reconsider its holding in Ebron with respect to the availability of Golding review notwithstanding defense counsel's acquiescence in a jury charge following a charge conference and an adequate opportunity to review and consider that charge. See id., at 305-306 n. 7, 983 A.2d 874 ("Mindful of the purpose of a charge conference, we are concerned that Ebron could have the effect of rendering the charge conference an inconclusive and less than meaningful exercise during which there may be decreased incentive for counsel to clearly articulate a proposed charge in a difficult area when counsel may determine [that] it is more advantageous to leave the door ajar for another day. Such a tactic could place an arduous, unnecessary burden on the trial court in its effort to compose a fair, accurate and legally appropriate jury charge and could result in unnecessary relitigation of criminal matters. Although we follow Ebron, as we must, and afford review to the defendant's claim under the particular circumstances we face, we express our concerns regarding the practical implications of its holding for the trial bench with the hope that, perhaps, this issue of waiver by acquiescence or concurrence has not seen its last day." [Emphasis in original.]). In expressly overruling Ebron, the majority relies on similar policy considerations pertaining to the use and value of charge conferences. As I have explained, these considerations cannot properly be used to decide the waiver issue presented by this case because they have nothing to do with waiver. In any event, even if it were appropriate to eschew a waiver analysis in favor of a policy analysis, I agree with Justice Katz that, for the reasons set forth in her concurrence, the benefits of Golding review substantially outweigh the policy considerations that the majority has identified. Indeed, because the waiver doctrine is such an important part of our jurisprudence, it is difficult to see how any policy consideration or set of considerations could trump the requirement that, to be effective, the waiver of a constitutional right must be knowing and intelligent.
[13] Apparently, the majority has carved out an exception for Golding claims alleging the existence of an entirely new constitutional right. Of course, such cases are extremely rare and comprise only a small subset of cases in which defense counsel will not be deemed to have waived a constitutional challenge to the court's jury instructions. In all other cases, the defendant runs the risk that this court will deem his claim to have been waived and that the habeas court will reject the defendant's claim of ineffective assistance of counsel.
[14] In fact, contrary to the majority's conclusion, principles of fundamental fairness and judicial economy militate strongly against the majority's approach. There are two possibilities when a defendant raises a claim of instructional impropriety under Golding: either the claim will entitle the defendant to a new trial or it will not. The significant majority of cases are likely to fall into the second category, either because the defendant cannot establish the alleged constitutional violation or because any such violation was harmless. With respect to that category of cases, the interests of justice clearly are served if the appellate tribunal entertains and rejects the claim in accordance with Golding rather than avoiding the claim by treating it as having been waived by implication; in that event, both the defendant and the state know at the earliest possible time that the claim does not entitle the defendant to a new trial, and, moreover, there will be no basis for raising the issue in a petition for a writ of habeas corpus.
The second category of cases, which contains only a very small minority of cases involving Golding claims alleging an instructional impropriety of constitutional magnitude, includes only those cases in which the defendant can establish entitlement to a new trial because of a constitutional violation that was not harmless. As I have explained, in the rare case in which the defendant can prevail on such a claim under Golding, it is unfair to deprive the defendant of a new trial pending the filing and final resolution of a habeas petition. To conclude otherwise, as the majority does, accomplishes nothing and denies the defendant of the opportunity for a retrial in a timely manner.
[15] The majority asserts that, "[a]lthough it might be the better practice for the trial court to read the proposed instructions line by line and ask after each instruction whether defense counsel agrees, we fail to see a meaningful distinction between repeatedly asking counsel if he or she has any issues with the proposed charge and requesting comments from counsel after the court reads each section of the charge." Again, the majority misses the point. For purposes of ascertaining whether counsel's conduct constituted a waiver, it makes no difference whether the court takes counsel through the charge line by line or merely asks counsel if he or she has any objection to the charge; in neither case does the record support an inference of waiver. As I previously explained, waiver cannot be found from a record that does not demonstrate counsel's actual awareness of the existence of a potential claim or claims. When, as in the present case, the record is silent on that issue, it is impossible to tell whether counsel was aware of the claim and intentionally abandoned it, or whether counsel simply did not read the charge as containing any such claim.
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2550925/
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20 A.3d 846 (2011)
161 N.H. 675
GOLF COURSE INVESTORS OF NH, LLC
v.
TOWN OF JAFFREY and another.
No. 2010-167.
Supreme Court of New Hampshire.
Argued: November 10, 2010.
Opinion Issued: April 12, 2011.
William S. Gannon PLLC, of Manchester (William S. Gannon on the brief and orally), for Golf Course Investors of NH, LLC.
*847 Bragdon & Berkson, P.C., of Keene (Kelly E. Dowd on the brief and orally), for the Town of Jaffrey and Town of Jaffrey Zoning Board of Adjustment.
CONBOY, J.
The Town of Jaffrey (Town) and the Town of Jaffrey Zoning Board of Adjustment (ZBA) appeal the order of the Superior Court (Arnold, J.) vacating the ZBA's decision granting the appeal of certain residents of the Town from decisions of the Town of Jaffrey Planning Board (planning board). The trial court ruled that the residents lacked standing to appeal the planning board's decisions granting major subdivision and site plan approvals to Golf Course Investors of NH, LLC (GCI). We affirm.
The following facts are drawn from the record. With the planning board's approval, GCI subdivided its single 9.13 acre parcel into two lots, one consisting of 7.39 acres, and the other of 1.75 acres (Lot 8.9) containing the building at issue. The approval of the subdivision was not appealed. GCI subsequently submitted a major subdivision application, seeking to convert the building on Lot 8.9, the Shattuck Inn Annex, into a four-unit condominium. It also submitted a site plan application, proposing the condominium conversion with two detached garages. The planning board voted that a special exception was not required to allow the proposed four-unit condominium. It accepted the major subdivision and site plan applications and conducted a public hearing.
Planning board member Don MacIsaac recused himself from participating in the board's review of the applications. He is identified in the minutes as an abutter, and the certified record demonstrates that the Town sent notice of the public hearing to "MacIsaac Trust c/o Donald & Patricia MacIsaac." During the hearing, Mr. MacIsaac expressed some road safety concerns, and Mrs. MacIsaac asked questions about the proposed use of an existing driveway, as well as the intended access to a nearby golf course "by maintenance people on carts." The minutes reflect that GCI's plan was to restore the existing Annex building, which apparently has historical value, by extending the front porch, constructing two porches in the back with "similar character" to existing back porches, and painting the exterior cedar with solid stain. The plan also included constructing two detached garages. The planning board approved the major subdivision and site plan applications with conditions.
Seven residentsRichard and Heather Ames, James and Sara Bacon, Allon and William Blackwell, and Patricia MacIsaacappealed the planning board's decisions to the ZBA. They stated:
[W]e believe the Planning Board erred in its interpretation of the zoning regulations regarding the lot size for a major subdivision and in its decision that the plan did not need to come before the [ZBA] for Special Exceptions. Under RSA Chapter 675, we therefore appeal the Planning Board's April 11, 2006 decisionallowing four dwelling units in the Mountain Zone on a plot of only 1.75 acresto the [ZBA].
The residents contended that "[s]tandard zoning in the Rural District and Mountain Zone requires at least 6 acres for four units with town water, or at least 4.8 acres for an Open Space Development Plan for four units with town water," and that "[i]f the Shattuck Annex were a standard ownership project in the Mountain Zone, it would require Special Exceptions for a major development and for a multi-family dwelling and approval for an Open Space Development Plan (OSDP), which is the only way to allow multi-family housing in *848 the Mountain Zone." They requested that the ZBA overturn the planning board decisions and direct it to rehear the case, asserting that, "Upon rehearing, we believe that a revised proposal on at least 4.8 acres of platted land could be readily approved by the Planning Board as an Open Space Development Plan, assuming prior Planning Board referral to and approval by the Board of Adjustment of the necessary Special Exceptions for a major subdivision and multi-family dwelling in the Mountain Zone." They also stated, "We are pleased that the Shattuck Inn Annex, gutted and unused for many years, has been proposed by [GCI] to be redeveloped into attractive housing," and "We believe the resulting redevelopment of the Shattuck Annex as four dwelling units on a plot of at least 4.8 acres will be a very good reuse of this historic 1912 building, which is an example of Shingle Style Architecture."
Under a section in their appeal document entitled "AGGRIEVED PERSONS," the residents identified their respective properties' location in relation to the mountain zone and Lot 8.9. They stated that the Ames' property "abuts land in the Mountain Zone and [its] northwest property boundary is approximately 900 feet from Lot 8.9"; the Bacons' property fronts "the same side of Dublin Road as Lot 8.9 about 2400 feet from Lot 8.9"; and the Blackwells' property is located in the mountain zone and "is about 1200 feet from Lot 8.9 fronting on the opposite side of Dublin Road." With respect to Patricia MacIsaac, the appeal document states that she "was identified by the Planning Board as an abutter" and her property "is located across Dublin Road . . . approximately 450 feet from Lot 8.9."
On June 6, 2006, the ZBA held a public hearing on the residents' appeal. GCI raised the issue of whether the residents had standing to appeal the planning board's decisions as "persons aggrieved." See RSA 676:5, I (Supp.2010). It asserted that living close to the project or having a general interest in the proper enforcement of town ordinances and regulations is not enough to be "aggrieved," and pointed out that the residents stated that they actually favored the project. With respect to the issue of standing, Town counsel noted that, of the residents, only Patricia MacIsaac attended and participated in the planning board proceedings. The minutes of the hearing also state the following:
[Town counsel] read RSA 672:3 which defines an abutter. To his knowledge none of the four properties adjoin or are directly across the street or stream from the land under consideration. Another consideration would be do they have a direct issue; whether they can demonstrate that their land will be directly affected by the proposal under consideration. In the petition they identify themselves as aggrieved and they stop they do not go on to say how their properties are affected by this. They do say however that they like the proposal itself.
During the hearing, the residents related their concern that the planning board erroneously allowed "too much housing, being four condominium units, on too little land, being 1.75 acres, within the rural/mountain zone." The ZBA closed the public hearing, expecting to begin deliberations on June 20.
At the commencement of its June 20 deliberative session, the ZBA addressed the issue of standing. The minutes of that session state the following:
The board reviewed the State's definition of abutter. Chairman Dumont did not feel that any of the appellants qualified as an abutter. Member Weber commented that the State has regional *849 impact going as far as Marlborough. The appellants are closer than Marlborough.
Member Dodge asked [Town counsel] for an explanation on who can and cannot appeal a decision. [Town counsel] explained that the definition of abutter is for notice purposes and you do not have to be an abutter to be an aggrieved party. The issue here is whether or not the parties who issued the appeal are aggrieved.
Chairman Dumont noted that three of the four appellants did not attend the Planning Board public hearing and asked how aggrieved could they be? There are two choices. The board can either deny the appeal and go with what the Planning Board said was correct or the appeal can be granted and returned to the Planning Board. If the second option takes place it will most likely generate an application for a special exception.
Without any further discussion described in the minutes, the ZBA voted that the residents were "aggrieved." It also voted to grant the appeal "on the basis that a special exception to allow a multi-family use is required." GCI unsuccessfully sought a rehearing from the ZBA, and then appealed to the superior court. The trial court bifurcated the matter, first addressing the jurisdictional issue of standing. It ruled that the residents lacked standing to bring their appeal before the ZBA, and vacated the ZBA's decision granting the appeal and reversing the planning board's decision. This appeal followed.
As a preliminary matter, we will assume, without deciding, for purposes of this appeal that the Town has standing to challenge the trial court's decision regarding the standing of the residents and therefore we address the Town's arguments on the merits. See S. N.H. Med. Ctr. v. Hayes, 159 N.H. 711, 715, 992 A.2d 596 (2010); Stuart v. State, 134 N.H. 702, 704, 597 A.2d 1076 (1991).
The Town argues that the trial court erred "in finding that standing is a legal conclusion rather than a factual judgment," "in substituting its judgment for that of the ZBA," and "in failing to accord the presumption of validity to the determination of the ZBA." It further contends that "the record is clear that the determination of the ZBA was reasonable and in accordance with existing New Hampshire case law." It points out that one of the residents, Patricia MacIsaac, was cited as an abutter by the planning board for notice purposes, that two residents live within 1,000 feet and the others live within 2,400 feet from Lot 8.9, that the proposed change "was the creation of a major subdivision on a 1.75 acre lot," and that at least one of the residents participated in the planning board proceedings.
GCI argues that the trial court properly found that the ZBA's ruling on standing was not supported by the record and that, based upon the undisputed facts, the residents lacked standing as a matter of law. It contends that the Town identifies in its brief certain facts that are not part of the certified record, and that "[n]owhere in the Zoning Appeal [do the residents] claim or even hint that converting the Annex to four (4) single-family residential condominiums will affect their health, general welfare, safety, the value of their properties, impose any other pecuniary damage not shared by all persons in the community or impact some other direct definite and immediate interest in the outcome." (Quotations omitted.) According to GCI, the residents' appeal was based only upon "an academic debate regarding the interpretation of the ordinance and regulations," and that at "most" their appeal asserted that *850 "conversion of an existing building into 4 single-family residential condominium units, without any expansion, would be `too much housing' in the `mountain zone . . . designed to protect and preserve the rural and scenic beauty of Mount Monadnock and the associated highlands.'"
To have standing to appeal to the ZBA, the residents must have been "aggrieved" by the planning board's decisions approving the major subdivision and site plan applications without requiring GCI to obtain a special exception. See RSA 676:5, I; Goldstein v. Town of Bedford, 154 N.H. 393, 395, 910 A.2d 1158 (2006). "Persons aggrieved" include any person "directly affected" by the challenged administrative action or proceeding. RSA 677:2 (Supp. 2010); RSA 677:4 (Supp.2010); see Goldstein, 154 N.H. at 395, 910 A.2d 1158. The appealing party must show some direct, definite interest in the outcome of the action or proceeding. Goldstein, 154 N.H. at 395, 910 A.2d 1158. To determine whether a non-abutter has a sufficient direct, definite interest to confer standing, the trier of fact may consider factors such as the proximity of the challenging party's property to the site for which approval is sought, the type of change proposed, the immediacy of the injury claimed, and the challenging party's participation in the administrative hearings. Weeks Restaurant Corp. v. City of Dover, 119 N.H. 541, 544-45, 404 A.2d 294 (1979); Johnson v. Town of Wolfeboro Planning Bd., 157 N.H. 94, 99, 945 A.2d 13 (2008).
Whether a person's interest in the challenged administrative action is sufficient to confer standing is a factual determination to be undertaken on a case by case basis. See Goldstein, 154 N.H. at 395-96, 910 A.2d 1158. While the factual findings of the ZBA regarding standing are deemed prima facie lawful and reasonable, see RSA 677:6 (2008), the decision on standing may be subject to de novo review when the underlying facts are not in dispute. See Johnson, 157 N.H. at 96, 945 A.2d 13; Joyce v. Town of Weare, 156 N.H. 526, 529, 937 A.2d 919 (2007). Further, when the issue of standing is raised, the party challenging the administrative action cannot rest on unsubstantiated allegations, but must sufficiently demonstrate his or her right to claim relief. Joyce, 156 N.H. at 529, 937 A.2d 919. Standing will not be extended to "all persons in the community who might feel that they are hurt by" the administrative action. Goldstein, 154 N.H. at 395, 910 A.2d 1158 (quotation omitted).
Our review of the trial court's decision regarding the ZBA's ruling on standing is limited; we will uphold it unless it is unsupported by the evidence or legally erroneous. Fox v. Town of Greenland, 151 N.H. 600, 603, 864 A.2d 351 (2004); Feins v. Town of Wilmot, 154 N.H. 715, 717, 919 A.2d 788 (2007). We are mindful that the party who seeks to have the trial court set aside the ZBA decision bears the burden of showing that such decision is unlawful or unreasonable. See RSA 677:6; Feins, 154 N.H. at 717, 919 A.2d 788. Further, in the appeal to the trial court, "[a]ll findings of the zoning board of adjustment . . . upon all questions of fact properly before the court shall be prima facie lawful and reasonable." RSA 677:6. The trial court is precluded from setting aside or vacating a zoning board decision "except for errors of law, unless the court is persuaded by the balance of probabilities, on the evidence before it, that said order or decision is unreasonable." Id.
Here, the trial court, while aware of its obligation to accept the ZBA's factual findings as prima facie lawful and reasonable, determined that
*851 the ZBA did not make any factual findings regarding standing, because the facts relevant to this determination were not in dispute. There was no dispute that most of the residents who were appealing the planning board decision had not attended the board's meetings. Nor was there a dispute regarding the proximity of the residents' properties to the proposed development site. There was no allegation of any injury to the residents, let alone a dispute regarding the nature or extent of such injury. Instead of making factual findings, the ZBA simply concluded that the residents were aggrieved. It appears the ZBA made this ruling so that it could render a decision on the merits of the appeal.
Thus, the trial court decided, it was "not obligated to defer to the ZBA's erroneous conclusion of law."
It also determined that the ZBA's ruling that the residents were "persons aggrieved" was not supported by the record. After review of the certified record, the trial court remarked that "all of the residents involved in the appeal lived within approximately 2,400 feet of the lot [GCI] sought to subdivide," the residents "did not identify any injury they would face as a result of the planning board's approvals," and only one of the residents attended the planning board hearing. Ultimately, it concluded, "It seems the residents' interest in this case was limited to a general interest in preventing the planning board from approving plans that would violate the town's zoning ordinance," and ruled that this general interest is not sufficient to confer standing.
We discern no error in the trial court's decision to overturn the ZBA's determination. See Malachy Glen Assocs. v. Town of Chichester, 155 N.H. 102, 109, 920 A.2d 1192 (2007). In concluding that the residents were aggrieved by the planning board's decisions, the ZBA neither rendered factual findings nor resolved any factual disputes, either implicitly or explicitly. Rather, the residents' appeal document and the ZBA minutes reflect undisputed facts regarding the proximity of the residents' property to that of GCI, the size of GCI's lot 8.9, the proposed changes to the Annex building, and the extent of the residents' participation in the planning board hearing. The residents neither asserted, nor presented evidence supporting, particularized harm to them that would result from this project. Although standing is typically a factual question resolved on a case by case basis, see Goldstein, 154 N.H. at 395-96, 910 A.2d 1158, and ZBA findings are afforded deference, see RSA 677:6, the trial court is not compelled to defer to a legally erroneous conclusion. See RSA 677:6 (trial court can set aside a ZBA decision for "errors of law"). We conclude that the trial court did not err when it conducted a de novo review to determine as a matter of law whether the undisputed facts in the record could support a finding that the residents were aggrieved by the planning board's decisions. See Johnson, 157 N.H. at 96, 945 A.2d 13; Joyce, 156 N.H. at 529, 937 A.2d 919. Further, assessing the record in light of the factors identified in Weeks, 119 N.H. at 545, 404 A.2d 294, we conclude that the trial court did not err in determining that the ZBA's conclusion that the residents were aggrieved is not supported by the record.
Regarding proximity, the residents' respective properties are located between approximately 450 feet and 2,400 feet from the project site. While the Town points out that Patricia MacIsaac was cited as an abutter for notice purposes in the proceeding before the planning board, it does not contend that she actually was one. Indeed, the residents' appeal document itself *852 recognizes that she is not an actual abutter by describing her property as located across Dublin Road approximately 450 feet from Lot 8.9. Further, the ZBA minutes reflect that the ZBA chair "did not feel any of the appellants qualified as an abutter," and nothing in the minutes suggests that the ZBA afforded her standing as an abutter.
We disagree with the Town's contention that we held in Towle v. Nashua that "an adjoining land owner had standing to appeal whether or not he or she was an abutter for notice purposes, based on the presumption of a direct pecuniary interest in land use changes by neighbors." In Towle, we held that city residents had standing to appeal the validity of an amending ordinance which rezoned a residential district to that of general business. Towle v. Nashua, 106 N.H. 394, 396, 212 A.2d 204 (1965). We rejected the contention that because the residents did not live within the geographical parameters of the rezoned district as set forth under former RSA 675:5, they lacked standing to appeal; we considered the residents' physical proximity to the redistricted area. See id. ("Persons entitled to protest by reason of ownership of property in, or adjoining, or across from, an area sought to be rezoned may be thought to have a direct pecuniary interest in the change."). However, we did not adopt a bright line rule identifying whether and to what extent physical proximity establishes direct interest sufficient to confer standing. Id. In Weeks, decided fourteen years after Towle, we set forth factors to be considered in determining whether a non-abutter has demonstrated a direct, definite interest sufficient to confer standing to appeal a planning board or zoning board decision. Weeks, 119 N.H. at 544-45, 404 A.2d 294. Physical proximity is but one of those factors. See id. at 545, 404 A.2d 294. Therefore, while close proximity is relevant, we reject the notion suggested by the Town that a non-abutter necessarily establishes a direct, definite interest by close proximity alone. See id.
Regarding the type of change proposed, the record indicates that GCI does not intend to dramatically alter the footprint of the existing Annex building or its visual character. Indeed, in the appeal document, the residents expressed their approval of the intended improvements to the existing Annex building, and the proposed conversion of the Annex building to a four-unit condominium. Their objection exclusively focused upon allowing such conversion to occur on a smaller parcel than allegedly required by the zoning regulations. Further, with respect to the immediacy of the injury claimed, the trial court correctly concluded that the residents "did not identify any injury they would face as a result of the planning board's approvals." They identified no injury that their particular properties would incur in the event the project is completed on the 1.75 acre lot rather than on a 4.8-acre lot. Rather, the residents essentially sought to generally protect open space in the mountain zone through what they saw as proper application of the zoning regulations.
In its brief, the Town asserts:
The [residents] argued that the subdivision proposed is an unprecedented development apparently set up to "game" the Jaffrey Land Use Plan, which is intended to encourage Open Space Development in the Mountain Zone. The [residents] suggest that approval of the project without additional land set aside as open space would result in overcrowding and over-commercialization of the Mountain Zone. Presumably, the injury to the [residents] would be the impacts of noise and traffic and potential *853 diminution of property values due to overdevelopment.
On this record, these assertions amount to unsubstantiated suppositions. See Joyce, 156 N.H. at 529, 937 A.2d 919 (party challenging an administrative action cannot rest on unsubstantiated allegations to establish standing). Converting the existing building into a four-unit condominium presumably will cause some increase in traffic and noise. However, in the face of their express approval of this converted use, the residents did not allege, much less identify, any harm to them which would result from increased traffic and noise. Additionally, while allowing a four-unit dwelling on a parcel smaller than otherwise allegedly required could affect the preservation of open space, there is nothing in the certified record evidencing that the residents demonstrated to the ZBA that the project on a 1.75 acre lot, rather than a 4.8 acre lot, would result in overcrowding, or increased traffic and noise, causing direct, definite injury to them. In short, the trial court correctly determined that there was a complete lack of evidence concerning the nature and extent of any injury to the residents' respective properties, and that the residents alleged no more than a general interest in preventing the planning board from approving plans that would violate the Town's zoning ordinance. See Goldstein, 154 N.H. at 395, 910 A.2d 1158 (standing not extended to "all persons in the community who might feel that they are hurt by" the administrative action).
Finally, aside from Patricia MacIsaac, none of the residents participated in the planning board proceedings, and MacIsaac's involvement was de minimis. The minutes reflect that she questioned only the intended use of an existing driveway and the intended access to a nearby golf course by "maintenance people on carts."
Considering all of the Weeks factors, we conclude that the Town has failed to demonstrate that the trial court's decision is unsupported by the evidence or legally erroneous. Cf. Price v. Planning Board, 120 N.H. 481, 484, 417 A.2d 997 (1980) (non-abutters had standing where they participated in planning board proceedings and the proposed project was located across the street, constituted a significant change in use from undeveloped open space to subdivision with single-family dwellings and interfered with non-abutter's use of right of way); Thomas v. Town of Hooksett, 153 N.H. 717, 719-21, 903 A.2d 963 (2006) (non-abutters had standing where they owned a gas station within one thousand feet of proposed gas station and within conservation district and had extensively participated in zoning board proceedings); Johnson, 157 N.H. at 96-100, 945 A.2d 13 (non-abutters had standing where proposed project constituted a significant change to dimensions and use of existing structure in a protected district, planning board had repeatedly denied applications to construct much less significant structures in the protected district, and non-abutters lived within two hundred feet of the proposed project, participated actively at the planning board hearing, and alleged that new structure would interfere with the use and enjoyment of their property).
Affirmed.
DALIANIS, C.J., and DUGGAN and HICKS, JJ., concurred.
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