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Supreme Court of California
December 8, 2014
THE PEOPLE, Plaintiff and Respondent,v.FLOYD LAVENDER, Defendants and Appellant. THE PEOPLE, Plaintiff and Respondent,v.MICHAEL JAMES GAINES, Defendant and Appellant
Superior Court of Imperial County, No. JCF21566, No. JCF21567, Donal B. Donnelly, Judge. Court of Appeal, Fourth Appellate District, Division One, No. D057655, No. D057686.
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[Copyrighted Material Omitted]
Page 681
Kimberly J. Grove, under appointment by the Supreme Court, for Defendant and Appellant Floyd Lavender.
Rebecca P. Jones, under appointment by the Supreme Court, for Defendant and Appellant Michael James Gaines.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Gil Gonzalez, Steven T. Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Baxter, J., with Cantil-Sakauye, C. J., Werdegar, Chin, Corrigan, Liu, and Dondero, JJ.[*], concurring.
[181 Cal.Rptr.3d 30] [339 P.3d 319]
Jurors, like all human beings, are imperfect. It follows that jury deliberations may also be imperfect. A single juror may fail to recollect some bit of testimony. Some jurors may forget or misapply one of the instructions. Others may focus tenaciously but unreasonably on one aspect of the record to the exclusion of the rest. Through the give and take of deliberations, however, the jury's collective memory and common sense will often correct these types of errors and lead to a result that surpasses in wisdom the understanding of any one person.
In this case, the parties agree that the deliberations were imperfect. Evidence submitted in support of defendants' motion for new trial revealed that one or more members of the jury " discussed the fact that if the [defendants] were innocent then they should've testified." Evidence submitted in opposition to the motion indicated that the foreperson " immediately admonished that juror that [they] could not consider that issue" and " there was no further mention" of it. The Court of Appeal found--and the parties do
Page 682
not dispute--that the discussion of defendants' decisions not to testify constituted misconduct that raised a presumption of prejudice. The Court of Appeal also found--and the parties do not dispute--that the trial court failed to recognize and resolve a conflict in the evidence as to whether the foreperson did in fact remind the jury of the court's instructions to disregard defendants' decisions not to testify. But the Court of Appeal deemed it unnecessary to remand the matter to the trial court to resolve that evidentiary conflict. The appellate court instead reasoned that the misconduct was prejudicial--even assuming the foreperson had [339 P.3d 320] promptly and correctly reminded the jury of the court's instructions--because the jury's discussion involved " an inference of guilt based on [defendants'] failure to testify." The Court of Appeal therefore reversed the convictions and ordered a new trial.
Reviewing the issue of prejudice from juror misconduct independently, as is our duty, we find that the Court of Appeal erred in declaring the misconduct in discussing defendants' decisions not to testify to be categorically prejudicial without considering whether the jury was promptly reminded of the court's instructions to disregard defendants' decisions not to testify or whether any objective evidence in the record indicated that the reminder of the court's instructions would have been ineffective. We therefore reverse the Court of Appeal and remand the matter to the trial court to determine in the first instance the nature and scope of the misconduct, the existence and timing of any reminder of the court's instructions to disregard defendants' decisions not to testify, as well as any other material disputed facts, and to reconsider the motion for new trial.
Defendants Floyd Lavender and his cousin Michael James Gaines were convicted [181 Cal.Rptr.3d 31] of the kidnapping (Pen. Code, [1] § 207, subd. (a)) and first degree murder (§ 187, subd. (a)) of Courtney Bowser, and the torture (§ 206) of Bowser and two other victims, Kristen Martin and Michael Hughes. Defendants were each sentenced to a term of 25 years to life for the murder, plus a consecutive five-year term for kidnapping, as well as three concurrent life terms for torture, consecutive to the indeterminate term for the murder.
The prosecution alleged that on the night of August 14, or in the early morning hours of August 15, 2003, defendants tortured and terrorized the victims (a group of methamphetamine users, two of whom had recently been released from juvenile hall) and threatened to shoot them over a period of hours in an effort to discover who had stolen two blank or not fully printed traveler's checks that Gaines had entrusted to Angela Vereen, his upstairs
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neighbor in Palm Desert. As Gaines was about to resume his investigation into the checks' disappearance by pounding the flat ends of nails into Hughes's head with a hammer or chisel, Bowser blurted out that she had taken the checks and had traded them for " dope." After beating and torturing Bowser--and telling her she was going to die--defendants handcuffed her and led her out of Vereen's apartment. The next morning, Vereen asked Gaines whether he and Lavender had recovered the missing traveler's checks. Gaines said " no," but added that " [t]he girl is in a canal with a bag over her head barely breathing."
Five days later, Bowser's lifeless body was discovered in an irrigation ditch leading to the Pansy Canal in Imperial County. Her body was not identified until February 2006.
The defense argued that Bowser had died from a drug overdose after a multiday methamphetamine binge with the prosecution's percipient witnesses, that these witnesses had panicked and disposed of Bowser's body in the ditch, and that these witnesses concocted a story to scapegoat defendants in the event the police ever became involved. No forensic evidence linked defendants to Bowser's death.
The forensic pathologist who performed the autopsy opined that Bowser had been alive when placed in the water and had died of drowning following a struggle. He excluded drug overdose, including an overdose of gamma-hydroxybutyric acid (GHB, a date rape drug), as the cause of death. However, a defense expert who examined the various reports testified that Bowser would have been dead at the time she was placed in the water and that he would not rule out an overdose as the cause of death, noting the elevated level of GHB in her vitreous fluids. The experts also disagreed as to how long Bowser's body had been in the ditch.
The Motion for New Trial
Gaines filed a motion for new trial, which Lavender joined, alleging that the prosecutor improperly commented in argument, and the jurors improperly discussed and considered [339 P.3d 321] during their deliberations, defendants' decisions not to testify. The defense motion was supported by declarations from three jurors. Juror No. 4 stated that " the fact that the defendants did not testify was discussed at length during the deliberations and also played a large part in our decision. We discussed the fact that if the [defendants] were innocent then they should've testified." Juror No. 9 stated that " [s]everal jurors also discussed the fact that the Defendants did not testify in this case." Juror No. 10 stated that " [t]here was no testimony from the defendants and we discussed this fact during the [181 Cal.Rptr.3d 32] deliberations and openly talked about why they
Page 684
did not testify and that this fact made them appear guilty to us. [¶ ] There was not enough testimony from defendants' witnesses. The jurors discussed that the defendants should have provided more witnesses, including themselves, to testify on their behalf."
In opposition, the prosecution submitted a declaration from the foreperson as well as new declarations from Juror No. 4 and Juror No. 9. The foreperson stated that " [t]he only discussion that occurred during deliberations regarding the defendants not testifying is when one of the jurors mentioned it. I immediately admonished that juror that we could not consider that issue. I specifically recall that Juror No. 11 ... also stated that we were not to consider that issue and must follow the instructions." Juror No. 4 stated that " [t]he only discussion that occurred during deliberations regarding the defendants not testifying is when a juror mentioned it. The foreperson immediately told the juror that we could not consider that issue ... ." Juror No. 9 stated that " [t]he only discussion that occurred during deliberations regarding the defendants not testifying is when one of the jurors mentioned it. The foreperson immediately admonished that juror that we could not consider that issue. Several other jurors then also repeated that it was an issue that we could not consider."
In reply, defendants offered the declaration of the defense investigator who asserted that the declaration of Juror No. 4 submitted by the prosecution was " not what he told me on several occasions during my interviews with him. He told me that the defendants not testifying was discussed for some period of time and was more than a mere mentioning of that fact. He also told me that the jury discussed that if they were really innocent they would have testified. He never said that [the foreperson] or any other juror admonished them to stop talking about that or that they could not consider this in their deliberations." The defense investigator similarly asserted that the declaration of Juror No. 9 submitted by the prosecution " is not what she told me when I first interviewed her. She told me that several jurors discussed the fact that the defendants did not testify. She did say that at some later point in time that a juror said that they should not discuss that. She never told me that the foreperson immediately put a stop to the discussion."
The trial court admitted only limited portions of the declarations. Except as to the allegation that several jurors discussed at length defendants' failure to testify, the trial court excluded the declarations proffered by the defense from Juror No. 4, Juror No. 9, and Juror No. 10 as the " subjective thought processes and mental processes of the jurors." The trial court also excluded the declaration of the defense investigator in its entirety as " inadmissible hearsay, irrelevant, insufficient to impeach verdicts and a violation of Evidence Code section [1150]." From this limited record, the trial court determined
Page 685
" that jury misconduct did occur," in that at least one juror " mentioned that the defendants did not testify during the deliberation process," but the court found that the presumption of prejudice had been rebutted when " the admonition by the foreperson as stated to the jury cured the misconduct." Thus, " no actual prejudice occurred."
The court additionally found that " there does not appear to be before the Court clearly defined and specific disputes on material issues relating to misconduct" and therefore concluded the defense had " failed to make a sufficient showing that a ... [181 Cal.Rptr.3d 33] hearing should be held to elicit testimony from jurors."
The Court of Appeal reversed. The appellate court found the trial court erred when it excluded, and therefore failed to weigh, certain [339 P.3d 322] evidence relevant to the nature and scope of the misconduct. In particular, the Court of Appeal found admissible the statement from the initial declaration of Juror No. 4 that " [w]e discussed the fact that if the [defendants] were innocent then they should've testified" (as clearly representing " 'statements that are objectively ascertainable by sight, hearing, or the other senses'" [quoting People v. Cissna (2010) 182 Cal.App.4th 1105, 1116 [106 Cal.Rptr.3d 54]]) and the statement that those discussions " played a large part in our decisions" (as " capable of an interpretation that described the quantitative level at which the failure to testify was involved in the jury's discussions" ). The Court of Appeal also admitted the statements from the initial declaration of Juror No. 10 that the jury " openly talked about why they did not testify and that this fact made them appear guilty to us" and that " [t]he jurors discussed that the defendants should have provided more witnesses, including themselves, to testify on their behalf" (as clearly representing statements that were objectively ascertainable by the senses). Finally, the Court of Appeal admitted the portions of the defense investigator's declaration relating to prior inconsistent statements by Juror No. 4 and Juror No. 9 as impeachment and " to the extent that the declarations submitted by the prosecution made Juror Nos. 4 and 9 'witness[es] ... at the hearing' on the issue of jury misconduct within the meaning of Evidence Code section 1235, their prior inconsistent statements would also be admissible under Evidence Code section 1201 for the truth of the statements contained in the declarations."
The Court of Appeal then reasoned that even accepting the truth of the foreperson's assertion that there was only a single comment about defendants' decisions not to testify and then an immediate reminder of the court's instructions that this fact was not to be considered, the presumption of prejudice was not rebutted in this case. The Court of Appeal found the foreperson's reminder insufficient to demonstrate that prejudice did not exist because the jury's discussion " was expressly linked to the adverse inference
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of guilt to be drawn from the failure to testify... . [W]hen a jury chooses to place that inference on the table notwithstanding the court's express prior instruction not to consider the same inference, we have difficulty understanding why the foreman's repetition of that instruction would have any curative effect on a jury that has already evinced a willingness to disregard the court's instructions." The court then found a reasonable probability defendants were actually harmed by the misconduct in this case, which " turned entirely on close and substantial credibility assessments,"
We granted review and directed the Court of Appeal to vacate its decision and " reconsider the cause in light of People v. Bryant (2011) 191 Cal.App.4th 1457, 1462-1471 [120 Cal.Rptr.3d 626], People v. Von Villas (1992) 11 Cal.App.4th 175, 251-261 [15 Cal.Rptr.2d 112], and People v. Perez (1992) 4 Cal.App.4th 893, 905-909 [6 Cal.Rptr.2d 141]," each of which had been remanded for an evidentiary hearing on a claim of jury misconduct. On remand, the Court of Appeal modified its opinion and again reversed. After finding the cited cases were " distinguishable" and based on " questionable legal reasoning," a majority of the Court of Appeal " remain[ed] convinced the misconduct by this jury in discussing the adverse inference to be drawn from defendants' [181 Cal.Rptr.3d 34] failure to testify was presumptively prejudicial and, because the evidentiary basis for the guilty verdict appeared diaphanous and was in many respects in disarray, the record in this case is inadequate to rebut that presumption." Justice Nares would have remanded the matter to enable the trial court to reconsider the motion.
We again granted review.
The procedural history of defendants' jury misconduct claim is complex. The trial court and the Court of Appeal each relied on different evidence and each came to different legal conclusions. Each party, in turn, has abandoned its initial strategy and adopted the strategy of the other side. The People, for example, pleaded in the trial court and in the Court of Appeal that no evidentiary hearing was needed, but argue in this court that " [g]iven the unresolved material, disputed issues [339 P.3d 323] of fact in this case, a remand for an evidentiary hearing ... is the appropriate remedy." Defendants, on the other hand, pleaded for an evidentiary hearing in the trial court and in the Court of Appeal, but argue in this court that " no further trial court proceedings are necessary to resolve the juror misconduct claim presented here." To untangle this web, we begin with the claim of misconduct itself.
The jury was instructed not to " consider, for any reason at all, the fact that the defendant[s] did not testify" and not to " discuss that fact during your
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deliberations or let it influence your decision in any way." The trial court found--and the People do not dispute--that one or more jurors during deliberations nonetheless mentioned defendants' decisions not to testify. The violation of the court's instructions constituted misconduct. ( People v. Loker (2008) 44 Cal.4th 691, 749 [80 Cal.Rptr.3d 630, 188 P.3d 580] ( Loker ); People v. Leonard (2007) 40 Cal.4th 1370, 1425 [58 Cal.Rptr.3d 368, 157 P.3d 973].) Such misconduct, in turn, gave rise to a presumption of prejudice, which may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm resulting from the misconduct. ( People v. Williams (2006) 40 Cal.4th 287, 333 [52 Cal.Rptr.3d 268, 148 P.3d 47]; Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417 [185 Cal.Rptr. 654, 650 P.2d 1171].)
The trial court determined, as a factual matter, that the foreperson had reminded the jury of the court's instructions not to consider defendants' decisions not to testify and concluded, therefore, " that no actual prejudice occurred" and denied the motion for new trial. On appeal, defendants argued that because there was a conflict in the evidence as to whether the foreperson had so admonished the jury, the trial court abused its discretion in failing to conduct an evidentiary hearing. The Court of Appeal disagreed in part, reasoning that the conflict as to whether the jury had been reminded to disregard defendants' decisions not to testify was not a valid basis for an evidentiary hearing under the peculiar circumstances of this case. " Even assuming the foreman's declaration was credited," the Court of Appeal reasoned, the People had failed to rebut the presumption of prejudice because " the discussion about defendants' failure to testify was not limited to expressions of regret or curiosity, but instead was expressly linked to the adverse inference of guilt to be drawn from the failure to testify." The Court of Appeal thus reversed the judgment and remanded the matter for a new trial.
Reviewing independently the question whether prejudice from juror misconduct has been rebutted ( People v. Leonard, [181 Cal.Rptr.3d 35] supra, 40 Cal.4th at p. 1425), we conclude the Court of Appeal erred. Our case law indicates that a reminder to the jury of the court's instructions to disregard a defendant's decision not to testify is, in the absence of objective evidence establishing a basis to question the effectiveness of the reminder (see Evid. Code, § 1150), strong evidence that prejudice does not exist.
In Loker, supra, 44 Cal.4th at pages 748-749, for example, we upheld the trial court's ruling that the presumption of prejudice had been rebutted where the foreperson responded to " discussions" about the defendant's decision not to testify by reminding the jury " 'that he had a legal right not to testify'"
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and " 'that it should not be considered one way or the other.'" The foreperson's admonition " 'was the end'" of the conversation on that topic. ( Id. at p. 748; see id. at pp. 750 [no prejudice where jury's discussion of the costs of punishment " was met with an admonition from the foreperson" ], 751 [possibility of prejudice from jury's discussion of psychiatric report that was not admitted into evidence " was mitigated by the foreperson's reminder" ].) In People v. Avila (2009) 46 Cal.4th 680 [94 Cal.Rptr.3d 699, 208 P.3d 634], we again agreed that it was misconduct for the jurors to discuss the defendant's decision not to testify but upheld the trial court's ruling that the presumption of prejudice had been rebutted where " the offending juror was immediately reminded he could not consider this factor and the discussion [339 P.3d 324] ceased." ( Id. at p. 727; cf. People v. Brasure (2008) 42 Cal.4th 1037, 1060 [71 Cal.Rptr.3d 675, 175 P.3d 632] [error in prosecutor's argument concerning defendant's decision not to testify was harmless where the court promptly instructed the jury " 'neither [to] discuss this matter nor permit it to enter into your deliberations'" ].)
Similarly, the Court of Appeal in People v. Hord (1993) 15 Cal.App.4th 711 [19 Cal.Rptr.2d 55] ( Hord ) recognized that misconduct occurred when " 'several jurors discussed why the defendant did not take the stand and testify'" but concluded that the presumption of prejudice had been rebutted when the foreperson reminded the jury " 'that whether the defendant testified or not had no bearing on his guilt or innocence'" and " 'was not to be used in our decision making process. Any further discussion or talk whatsoever regarding testimony of the defendant was stopped.'" ( Id. at pp. 721-722.) After all, whether the presumption of prejudice from jury misconduct has been rebutted is not only an objective inquiry, it " is a pragmatic one, mindful of the 'day-to-day realities of courtroom life' ( Rushen v. Spain (1983) 464 U.S. 114, 119 [78 L.Ed.2d 267, 104 S.Ct. 453]) and of society's strong competing interest in the stability of criminal verdicts ( id. at pp. 118-119); [ In re ] Carpenter [(1995)] 9 Cal.4th 634, 655 [38 Cal.Rptr.2d 665, 889 P.2d 985])." ( In re Hamilton (1999) 20 Cal.4th 273, 296 [84 Cal.Rptr.2d 403, 975 P.2d 600].)
Other courts are in accord. In Race v. Pung (8th Cir. 1990) 907 F.2d 83, 11 of the 12 jurors testified that the deliberations included a discussion of the habeas corpus petitioner's decision not to testify. ( Id. at p. 85.) Because " the foreman or others admonished the speaker that issue could not be considered," the trial court determined " there were no grounds to believe that [the petitioner]'s failure to testify affected the jury's deliberations," and the Eighth Circuit found " no grounds on which to overrule the state court's decision." ( Ibid. ) In Perez v. Marshall (S.D.Cal. 1996) 946 F.Supp. 1521, the presumption of prejudice [181 Cal.Rptr.3d 36] arising from the five-to-10-minute discussion of the habeas corpus petitioner's decision not to testify was rebutted " when the foreman explained to the jury that they could not discuss or consider the defendant's
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failure to testify" and " the subject was not mentioned again." ( Id. at p. 1538; see Shumate v. Newland (N.D.Cal. 1999) 75 F.Supp.2d 1076, 1095-1096; Broussard v. State (Tex.Crim.App. 1974) 505 S.W.2d 282, 284-285 [comment in deliberations that the defendant did not testify " 'because he had been in trouble with the law before'" was not prejudicial where the foreperson instructed the jury not to consider it].)
Defendants, like the Court of Appeal, contend that the presumption could not have been rebutted in this case, even assuming that the foreperson reminded the jury of the court's instructions concerning defendants' decisions not to testify. They find it fatal that the jury discussed not only that defendants did not testify, but also " the adverse inferences to be drawn from this fact." In drawing a hard line between misconduct arising from discussion of a defendant's decision not to testify and misconduct arising from discussion of an inference of guilt from a defendant's decision not to testify, they rely especially on the following passage from Hord, supra, 15 Cal.App.4th at page 728: " When comments go beyond natural curiosity and their content suggests inferences from forbidden areas, the chance of prejudice increases. For example, if a juror were to say, 'The defendant didn't testify so he is guilty,' or 'we will have to find the defendant guilty of the greatest charges to ensure he will be adequately punished,' the comments go beyond mere curiosity and lean more toward a juror's drawing inappropriate inferences from areas which are off limits. Such comments are more likely to influence that juror and other jurors."
Defendants misread Hord. The likelihood that comments drawing inappropriate inferences from a defendant's decision not to testify pose an increased " chance of prejudice" ( Hord, supra, 15 Cal.App.4th at p. 728) as compared to comments merely expressing curiosity about a defendant's decision does not mean that an explicit [339 P.3d 325] reminder to the jury that this is a forbidden topic would necessarily be ineffective at dispelling the presumption of prejudice. Indeed, Hord itself found the presumption of prejudice rebutted, despite a juror's comment about the defendant's decision not to testify that " may have carried a greater potential for prejudice than a mere statement of curiosity" ( ibid. ), precisely because the foreperson reminded the jury the topic was irrelevant and " 'had no bearing on [the defendant's] guilt or innocence'" ( id. at p. 722). Hord also found the presumption of prejudice rebutted, despite the absence of an admonition, where the jury's discussion of potential punishment was no more than " [t]ransitory comments of wonderment and curiosity [which], although misconduct, are normally innocuous, particularly when a comment stands alone without any further discussion." ( Id. at pp. 727-728; see People v. Leonard, supra, 40 Cal.4th at p. 1425 [finding the presumption of prejudice rebutted where the jury discussed the defendant's decision not to testify, despite the absence of a contemporaneous admonition]; cf. Hovey v. Ayers (9th Cir. 2006) 458 F.3d 892, 912-913 [prosecutor's brief comments
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about defendant's decision not to testify were harmless even in the absence of a curative instruction].) Thus, neither part of Hord suggests that a finding of unrebuttable prejudice is mandated here.
It may often be the case, though, that juror comments that go beyond mere wonderment [181 Cal.Rptr.3d 37] and curiosity may need stronger affirmative evidence--such as a reminder of the court's instructions not to consider the forbidden topic--to show that prejudice does not exist. As we said in Loker, " Even if some comments disclosed in the amended declarations might have given rise to inferences adverse to defendant, the foreperson promptly forestalled that possibility, reminding the jurors that defendant had a right not to testify and that his assertion of that right could not be held against him. Under these circumstances, the purpose of the rule against commenting on defendant's failure to testify was served, and the presumption of prejudice is rebutted." ( Loker, supra, 44 Cal.4th at p. 749.) Similarly, if (as the Court of Appeal assumed) the foreperson reminded the jury in this case that the decision not to testify could not be held against defendants, then (in the absence of objective evidence to the contrary) that reminder would constitute strong evidence to rebut the presumption of prejudice. (Cf. People v. Leonard, supra, 40 Cal.4th at p. 1426 [prejudice from jury's discussion as to the greater cost of imprisonment compared to execution was rebutted by foreperson's reminder that " 'this was not an appropriate consideration' in determining whether to impose the death penalty" ].)
The specific factual scenario on which the Court of Appeal rested its decision below is thus distinguishable from that in People v. Cissna, supra, 182 Cal.App.4th 1105, on which the Court of Appeal heavily relied. In Cissna, a juror met with and discussed the case with a friend during the trial on a twice-daily basis, beginning with the first day of testimony. ( Id. at p. 1114.) " [T]hese daily, deliberative-type discussions improperly interjected the views of a nonjuror--who had not been vetted through voir dire, had not been sworn to follow the law, and had not heard all the evidence--into [the juror]'s consideration of the case" ( id. at p. 1120) and included the nonjuror's observation that " 'guilty people do not testify, and if the defendant was not guilty he would testify'" ( id. at pp. 1114-1115). The Court of Appeal concluded that in " the circumstances of this case," where the issue of the victim's credibility was of critical importance, " the discussion of defendant's decision not to testify carried a high potential of prejudice to the defense" ( id. at p. 1121) and, along with other matters the nonjuror encouraged the juror to consider " that were improper and detrimental to the defense," warranted a new trial, despite the court's general instructions to the jury not to discuss the case with other people and not to consider the improper matters ( id. at p. 1122). Here, unlike in Cissna, there were no secret deliberations " every single day " with a nonjuror that " carried a high potential of [339 P.3d 326] detriment to the defense," nor (at least as assumed by the Court of Appeal) were there any
Page 691
deliberation errors that went uncorrected by the other jurors. ( Id. at pp. 1122-1123; cf. People v. Nesler (1997) 16 Cal.4th 561, 579, 583 [66 Cal.Rptr.2d 454, 941 P.2d 87] (lead opn. of George, C. J.) [substantial likelihood of juror bias where the juror " referred repeatedly to the out-of-court information she had obtained" even after she " was reminded repeatedly by other jurors not to do so" ].)
Defendants, like the Court of Appeal, assert that the foreperson's reminder of the court's instructions to disregard defendants' decisions not to testify could not have been sufficient to rebut the presumption of prejudice for this jury, which chose " to place that inference on the table notwithstanding [181 Cal.Rptr.3d 38] the court's express prior instruction not to consider the same inference." But the limited factual scenario contemplated by the Court of Appeal offered no objective indication that one or more jurors was unable or unwilling to follow the court's instructions once reminded of them. (Cf. People v. Cissna, supra, 182 Cal.App.4th at pp. 1118-1119 [juror's " failure to comply with repeated admonitions not to discuss the case," which were described as " an absolute obligation" and " a critical component of a fair trial," " casts serious doubts on his willingness to follow the court's other instructions" ].) When we talk about jury deliberations, we are talking about the conduct of human beings who are fallible. " It's a rare jury trial in which there are no mistakes on anyone's part." ( U.S. v. Farmer (7th Cir. 2013) 717 F.3d 559, 564.) " To demand theoretical perfection from every juror during the course of a trial is unrealistic." ( In re Carpenter, supra, 9 Cal.4th at p. 655.) Accordingly, to assume that jurors who wade into a forbidden topic in the course of deliberations can never be put right again by a reminder from the trial judge or from fellow jurors sets an unreasonably high bar for jury conduct. " As MR. JUSTICE POWELL has observed, the 'collective judgment' of the jury 'tends to compensate for individual shortcomings ... .'" ( Herring v. New York (1975) 422 U.S. 853, 863-864, fn. 15 [45 L.Ed.2d 593, 95 S.Ct. 2550], quoting Powell, Jury Trial of Crimes (1966) 23 Wash. & Lee L. Rev. 1, 4.) Where (as in the cases cited above) a mistake by one or more jurors during deliberations is promptly followed by a reminder from a fellow juror to disregard a defendant's decision not to take the stand--and the discussion of the forbidden topic thereafter ceases, without any objective evidence that the reminder of the court's instructions was ineffective--the reminder tends strongly to rebut the presumption that " [t]he defendant's failure to testify may still have affected the decision of at least one of the jurors." The Court of Appeal therefore erred in finding the presumption of prejudice could not be rebutted even if the foreperson had reminded the jury of the court's instructions not to consider that issue and no objective evidence indicated the reminder would have been ineffective.
However, as defendants argued in the Court of Appeal and as the People concede here, there has not yet been a full and fair determination that the
Page 692
foreperson actually reminded the jury of the court's instructions. The trial court's finding that the foreperson offered such an admonition was based only on the juror declarations offered by the People and did not take account of the declaration of the defense investigator that none of those jurors ever mentioned any admonition during their interviews with him. The trial court had deemed the defense investigator's declaration to be inadmissible hearsay, but the Court of Appeal found--and, because the People do not dispute it here, we will accept for purposes of this appeal--that the investigator's declaration recounting the jurors' failure to mention any admonition during their interviews with him qualified as prior inconsistent statements of those jurors. (See Evid. Code, § § 1202, 1235.) The Court of Appeal's ruling thus created an unresolved conflict in the evidence as to whether the jury was appropriately admonished, a conflict the trial court has not yet had the opportunity to resolve.
Similarly, the trial court has not yet resolved the material, disputed issues of fact surrounding the nature and scope of the discussion of defendants' decisions not to testify. [339 P.3d 327] The declarations from the People assert that defendants' choices were merely " mentioned" by one juror and that [181 Cal.Rptr.3d 39] the discussion on that topic was very brief. The declarations from defendants, on the other hand, assert that the discussion involved more than one juror and was " more than a mere mentioning of that fact." In addition, the defense declarations, unlike the People's declarations, explicitly linked the jury's discussion of defendants' decisions not to testify to the jury's discussion of their guilt.
And the trial court has not yet addressed whether any objective circumstances indicated that a reminder of the court's instructions to disregard defendants' decisions not to testify would have been ineffective in quashing the jury's consideration of the topic. For example, a persistent refusal to follow the court's instructions would tend to confirm the prejudicial effect of the misconduct claimed by defendants. ( Krouse v. Graham (1977) 19 Cal.3d 59, 81 [137 Cal.Rptr. 863, 562 P.2d 1022]; see People v. Perez, supra, 4 Cal.App.4th at pp. 908-909.) We intimate no view as to whether the record supports a finding of a persistent refusal to obey the court's instructions--as the People put it, the evidence on that point is " inconclusive" --but merely point out that this is an additional aspect for the trial court to address when it reconsiders the motion for new trial based on jury misconduct. ( Krouse, supra, 19 Cal.3d at pp. 81-82.) [2]
Page 693
Because " [t]he power to judge the credibility of witnesses and to resolve conflicts in the testimony is vested in the trial court ..." ( In re Carpenter, supra, 9 Cal.4th at p. 646), the proper remedy is to remand the matter to the trial court to resolve the factual disputes underlying the issue of prejudice. (See Green v. Superior Court (1985) 40 Cal.3d 126, 134 [219 Cal.Rptr. 186, 707 P.2d 248] [remanding for reconsideration where " an erroneous ruling by the trial court had thwarted development of a full record on the point ..." ].) Whether that will require an evidentiary hearing is a matter entrusted to the discretion of the trial court. ( People v. Hedgecock (1990) 51 Cal.3d 395, 415 [272 Cal.Rptr. 803, 795 P.2d 1260].) As we have previously explained, " such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact." ( Ibid. ; see Loker, supra, 44 Cal.4th at p. 749.)
Finally, we address defendants' contention that the People should be estopped from requesting an evidentiary hearing or, alternatively, that the People have forfeited their request for one. It is true that, in the trial court, the People argued successfully that no evidentiary hearing was necessary. But that argument rested on their contention, also embraced by the trial court, that large portions of the defense declarations (including the entire declaration of the defense investigator) were inadmissible and that the [181 Cal.Rptr.3d 40] fact of the foreperson's reminder to disregard defendants' decisions not to testify (as well as the nature and scope of the misconduct) was therefore uncontested. Now that the factual record has been expanded by the Court of Appeal, there is no unfairness in allowing the People to adjust their argument to address that expanded factual record or in permitting the trial court to resolve the factual conflicts in the first instance. ( People v. Moore (2006) 39 Cal.4th 168, 177 [45 Cal.Rptr.3d 784, 137 P.3d 959]; Aguilar v. Lerner (2004) 32 Cal.4th 974, 987 [12 Cal.Rptr.3d 287, 88 P.3d 24]; cf. People v. Duran (1996) 50 Cal.App.4th 103, 114 [57 Cal.Rptr.2d 635] [339 P.3d 328] [" there was no material conflict in the evidence presented in support of the motion for new trial and thus, no need for an evidentiary hearing" ].) After all, defendants find themselves in exactly the same predicament. They have argued in this court, quite strenuously, that no evidentiary hearing should be permitted--on the assumption, which we have now rejected, that they were entitled to relief even viewing the record in the light most favorable to the People. Whether an evidentiary hearing is required, therefore, remains within the discretion of the trial court on remand. ( People v. Hedgecock, supra, 51 Cal.3d at p. 420.) Neither forfeiture nor estoppel bars the trial court from resolving defendants' motion for new trial on its merits.
Page 694
We reverse the judgment of the Court of Appeal and direct that court to vacate the order denying defendants' motion for new trial and remand the matter to the trial court for further proceedings consistent with our opinion.
Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Corrigan, J., Liu, J., and Dondero, J.,[*] concurred.
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Continuing the unbroken record of marriage equality wins since last year's Supreme Court ruling against DOMA in the Windsor case, today a federal judge ruled unconstitutional Kentucky's ban on marriage for same-sex couples.
District Judge John G. Heyburn II wrote:
In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted.
He dismissed the opposing arguments — including that the ban was good for the state's economic stability and birth rates — out of hand, noting, "These arguments are not those of serious people."
The judge has stayed the ruling for now, meaning that Kentucky couples can't immediately begin marrying. But the decision is a significant victory for LGBT families in the Bluegrass State, where activists have fought courageously for equal rights for many years. Congratulations, Kentucky!
More good news from the fight for marriage equality: today a federal judge struck down Oregon's ban on marriage for same-sex couples.
If you are feeling a sense of deja-vu, it's understandable – the Washington Blade notes that this ruling is the "13th straight win for gay nuptials in the federal courts" in the wake of the Supreme Court's Windsor decision last year, which struck down a key section of the discriminatory Defense of Marriage Act [emphasis added].
Given that decision, Oregon Attorney General Ellen Rosenblum declined to defend the state ban, and the judge did not allow the right-wing National Organization for Marriage (NOM) to defend it. Earlier today NOM lashed out at the case, calling it "an ugly example of inappropriate cooperation between the Attorney General and the gay marriage lobby."
Judge Michael McShane wrote:
It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.
As the Right continues to fight a losing battle to prevent loving couples from accessing the protections they need to take care of each other, we'll keep fighting for nationwide equality.


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I received an email from Emarketer.com on behalf of one of their sponsors telling me the term SPAM is no longer confined to messages containing Viagra and Nigerian bank scams, and asking me what does the CAN-SPAM Act of 2003 outline as rules that every email marketer should know and comply with. It continued discussing the number of clicks allowed for an unsubscribe, addressed CAN-SPAM applications with transactional messages, and asked me to learn how the CAN-SPAM laws impact my email marketing. It then asked me to take a Bronto.com was a cool name and a great logo, so I went ahead and participated. It just shows you how the right approach with genuine information on a topical subject can grab your attention. On the basis of this marketing campaign and from the looks of the Bronto.com website, if I was seeking a great email management program I would be investigating all they had to offer. Below, find the quiz they had us take to lead into collecting our contact info and see if you can't follow their example for something to stimulate leads for your own e-commerce programs.
1) CAN-SPAM is only applicable in the United States and overrides any state level spam laws.
The answer is "True"
CAN-SPAM was written into law in 2003 as a federal measure to ensure that all email adequately identifies its origin, allows a user to remove themselves from future mailings and provides the government and ISPs a right to action against anyone not following CAN-SPAM requirements.
2) Updates to CAN-SPAM are managed and produced by the FCC.
The answer is "False"
While the FCC contributes to CAN-SPAM via email sent to cell devices, the Federal Trade Commission (FTC) owns and updates the core requirements of CAN-SPAM. The FTC is also the governing body in legal prosecutions.
3) Which of the following is not acceptable under CAN-SPAM?
The Answer is "Sending marketing email to anyone regardless of whether they've actually opted-out"
CAN-SPAM is very clear that once a recipient has opted out of receiving your email, you may not contact them again for further marketing opportunities. With an unsubscribe, this is akin to a Do-Not-Call list with telephone numbers.
4) What's the maximum number of pages a user is allowed to land on or be redirected to after clicking on the unsubscribe link in an email?
The Answer is "One page"
To avoid senders having overly complicated or confusing opt out mechanisms to keep list attrition at a minimum, a sender is allowed to have the recipient take one action after landing on the unsubscribe page from an opt-out clickthrough. At that point, they can click on a confirm button, check a box, etc., but a sender cannot require them to sign into an account and perform other actions to be removed from the list or require a fee.
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You must remove a recipient from mailing lists or suppress sending to them within 10 days of receipt of their opt-out request as mandated by law.
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To ensure that recipients have enough time to actually click on an unsubscribe link in an email, you must support the unsubscribe link and the resulting landing page for at least 30 days.
7) Transactional email is defined as that which you think the recipient would most likely convert on.
The Answer is "False"
CAN-SPAM clearly defines transactional email as one which "facilitates an agreed-upon transaction or updates a customer in an existing business relationship." This definition prohibits marketing messages from being labeled as transactional although it does allow for marketing content in a transactional email.
8) Transactional email is exempt from CAN-SPAM.
The Correct Answer is "True"
Since transactional email falls under strict definition by the FTC, it is exempt from the commercial email restrictions. But, it is advised that a sender get input from someone who's an expert in email law to certify that the content does apply to the transactional definition.
9) Which of the following headers must accurately reflect the sender?
The Answer is "All of the Above"
All of these must accurately reflect the originator of the email message. Failure to do so is considered fraudulent and in direct conflict of the transparency spirit of the law.
10) You must send to at least the following amount for CAN-SPAM to be in force?
The Answer is "Any Volume"
Any amount of email sent, regardless even if it's just to a single recipient, is covered by CAN-SPAM. There are no volume thresholds.
11) Violation of CAN-SPAM can result in monetary fines and possible jail time.
The Answer is "True"
Violation of CAN-SPAM can result in monetary fines and jail time depending on the number of offenses and intent of the sender. Over the years, many people have received either or both as they've been found guilty of breaking CAN-SPAM regulations. Also, a sender in violation can face civil damages from private ISPs attempting to recoup damages lost by sending mail to their recipients.
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A hand-written love letter, an engraved keepsake, or something suitably sexy. Here's some inspiration for meaningful gifts for your groom, from boudoir shoots to honeymoon accessories for every taste and budget, with…
Written by Tyler Goodyer Last updated: June 5, 2016
Remember when you drove your dad crazy; all the times daddy's little princess made him want to tear his hair out? Well on the 19th of June you can start to make it up to you dear old dad with the gift of some fun for this Father's Day!
For some reason most children have a need to climb trees when they probably shouldn't, it's the dad's job to shout at the kid and make sure you don't hurt yourself. Climbing those trees was so fun, exciting and scary all at once; unfortunately you'd look like a mad woman if you climbed a tree in the park at your age. With Go Ape you can show your old man just how great it was to climb all those trees!
Whether he's a grumpy shut in or an outdoors man, Go Ape is a great experience and is perfect for dads of all ages. There are few sights in life that are as funny as an old man whizzing through the tree tops. Hurry and book onto a session soon, places will fill up fast.
With it getting closer to summer and the weather getting much nicer, it's the perfect time for a BBQ! So pull out the grill, grab some drinks and a blanket, and create the perfect home cooked father's day meal. Food always tastes better when it's cooked outside.
It's somewhat of a stereotype that dad's love cooking at BBQs, but ask him. Maybe he just wants to hang out, drink and not worry about the grill. Just make sure that you have everything that you'll need. Check out this article to ensure that you are ready for a last minute BBQ.
Think back to every birthday and every Christmas day; remember all those great gifts you got? They all came from your mum and dad. So now it's your turn to treat him to some gifts. Whatever your dad is into you can find the perfect gift in the Confetti shop!
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A day at the races is an amazing trip for all the family. This will take your dad right back to the days where he planned out family outings and will surely fill him with nostalgia. You don't have to go to a race that day, tickets will be fine.
Treat your dad to some race course hospitality with some good food and drink while he watches the races. If you're feeling really kind, you can buy him a free drinks pass! What could be better than free drinks, food and maybe winning some money?
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Shorter braking distances in all weather conditions.
The new Micro Flexibility Compound ensures an optimum interlocking between tyre and road surface. This guarantees better acceleration and shorter braking distances at high and low temperatures – in wet or dry conditions. (grip)
Force Vectoring for maximum control, a new era in tread pattern development.
The improved inner and outer tread pattern ensures best steering precision and support for lateral forces during cornering. The advanced Macro Block Design keeps you safe and in control at any manoeuvre. Stiff centre ribs and asymmetric concave longitudinal grooves greatly support overall stability. (control)
Aralon350™, the new adaptive hybrid cap ply for maximum high speed up to 350 km/h.
The sophisticated Aralon350™ technology accelerates your vehicle safely up to 350 km/h. This newly designed strong Hybrid Cap Ply provides a controlled tyre growth – even at highest speeds. (stability)
The void ratio of the inside and outside are respectively 38% and 34%, and it can improve tire's drainage efficiency and also wet handling.
With broadened circumferential groove width, the section area of inside/ outside grooves are increased 21.3% and 43.8% respectively compared to the conventional design. And it can increase the volume to contain more water for better drainage performance.
Brand new profile design and reinforced sidewall design can upgrade tire stiffness.
Serrated wall of circumferential groove: Discharge water in the circumferential grooves promptly and effectively, as well as reduce the noise caused by the friction between airflow and groove wall.
For inside and outside lateral groove on tread shoulder, we use chamfering design to optimize the angle of lateral grooves, and it can reduce tire's rolling sound and improve block stiffness effectively.
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3D software was used to design the tyre profile and do simulation tests to allow the best possible results to be gained before creating samples, maximizing the water dispersal, rolling resistance and performance of the tyre.
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Ultimate Performance Street Radial Designed For Maximum Dry Traction. Designed by Goodyear race tire engineers, the Eagle F1 Supercar''s race-derived mold shape and high-tensile steel belts deliver exemplary driving performance, superb handling and precise cornering.
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The New Eagle F1 Asymmetric 3 has been tested by independent organization TÜV and verified strong performance compared to other premium brand tires in the market.
The Eagle F1 Asymmetric 3 compared to competitors
2.6 meters shorter braking distance on wet roads, or 9% better performance*
1.3 meters shorter braking distance on dry roads, or 4% better performance*
4% better wet handling*
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* Compared to average performance of 3 latest designs from main competitors in UHP segment (Michelin Pilot Sport 3, Bridgestone Potenza S001, Continental Sport Contact 5). Tested by TÜV SÜD Product Service GmbH in Sept – Oct 2015 by order of Goodyear Dunlop. New UHP, Tire Size: 225/45 R17 91Y; Test Car: VW Golf; Test Locations: Mireval (F), Papenburg (D), TÜV SÜD PS Garching (D); Report No. 713066268.
** Scores for rolling resistance: Continental Sport Contact 5 – 101.6; Goodyear Eagle F1 Asymmetric 3 – 100; average of leading competitors – 89.1. Part of test specified above with report No. 713066268.


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Brandy Biography (Wikipedia)
Brandy Rayana Norwood (born February 11, 1979), known professionally as Brandy, is an American singer, songwriter, record producer and actress. Born into a musical family in McComb, Mississippi and raised in Carson, California, she began her career as a child and performed as a backing vocalist for teen groups. In 1993, Norwood signed with Atlantic Records. The following year, she released her self-titled debut album, which was certified quadruple Platinum in the US, selling six million copies worldwide. Norwood starred in the UPN sitcom Moesha as the title character, which lasted six seasons and resulted in numerous other roles. She resumed her music career in 1998 with the widely successful duet with fellow R&B contemporary Monica, "The Boy Is Mine", which went on to become the best selling female duet of all time, and one of the longest running number one singles in history. Her second album, Never Say Never sold 16 million copies worldwide, featured two number one singles, and earned Norwood her first Grammy Award. This launched her into international stardom, with films, endorsements, sold out concert tours, and her own line of Barbie dolls.
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£239,500 Offers over
Alba Property are pleased to present this gorgeous 4 bed detached family home in Oldwood Place, Eliburn. This sought after location is close to Eliburn Park and within the catchment area for Peel Primary. The house boasts a stunning kitchen/dining/ conservatory area that sits perfectly in the landscaped south facing garden. If the master bedroom/ en-suite don't entice you, then the family bathroom certainly will; both bathrooms benefit from under-floor heating. Elsewhere the house features an integral garage, driveway, front garden, large living room (with bay window) downstairs W.C. plus 3 more bedrooms upstairs- EARLY VIEWINGS RECOMMENDED!
Entrance Hallway - 16' 5'' x 6' 6'' (5m x 1.9875m)
The welcoming entrance hall gives an indication of the quality found throughout the house. A glazed timber door leads to the living room whilst a partially glazed timber door leads on to the kitchen/dining area.
Downstairs W.C. - 5' 0'' x 3' 4'' (1.515m x 1.025m)
Well presented this handy room has a push button W.C. wall mounted wash hand basin. The walls and floor have been tiled and the ceiling has down-lights in-set in cladding strips.
Living Room - 13' 0'' x 11' 10'' (3.975m x 3.615m)
Benefitting from a bay window the spacious living room has been tastefully presented with a feature wall and fitted carpet flooring. A second glazed timber door leads directly to the dining area.
Kitchen/Diner - 24' 3'' x 9' 8'' (7.4m x 2.94m)
This area would make an impressive entertaining area and would be perfect for dinner parties! 2 large openings allow the space to flow into the sunroom. The kitchen is well equipped with plenty of base and wall units and integrated oven, hob and a chimney style cooker hood. There is space for under-counter appliances. The tiled flooring is continued throughout the kitchen/dining and sunroom.
Conservatory/ Sun Room - 15' 11'' x 11' 0'' (4.84m x 3.365m)
Perfectly positioned to nestle in the south facing garden the floor is laid with tiles with down-lights in-set in the ceiling. The clever addition of a ceiling means it is a usable space all year round.
First Floor Landing - 15' 6'' x 5' 10'' (4.72m x 1.775m)
The white timber balustrade forms a gallery overlooking the stairs below. Both the stairs and the landing have carpet flooring whilst the walls are tastefully presented. White panel doors lead to all the bedrooms and family bathroom.
Family Bathroom - 8' 6'' x 5' 11'' (2.6m x 1.8m)
This gorgeous bathroom suite offers a slice of high-end luxury. The centre-piece is a modern free-standing bath; a cleverly placed alcove means a glass of wine is within easy reach. The room also features a curved walk-in shower cubicle, push button W.C. and a wall mounted wash hand basin. The room is full tiled and boasts under floor heating. The ceiling features in-set down-lighting in the cladding strips.
Master Bedroom - 15' 6'' x 10' 4'' (4.72m x 3.15m)
The spacious master bedroom looks out on to the street through a triple set of windows. The room is elegantly presented and benefits from carpet flooring.
En-suite - 8' 6'' x 3' 10'' (2.6m x 1.175m)
The en-suite has been finished to a high standard like the family bathroom. It also boasts under-floor heating along with a walk-in double shower, wall-mounted wash hand basin and a push button W.C.
Bedroom 2 - 12' 8'' x 8' 6'' (3.865m x 2.6m)
Over-looking the rear garden this well presented bedroom benefits from a fitted carpet and papered feature wall.
Bedroom 3 - 9' 10'' x 7' 1'' (3m x 2.17m)
This bedroom also over-looks the rear garden. Well presented it also benefits from carpeted flooring.
Bedroom 4 - 9' 10'' x 8' 2'' (3m x 2.49m)
This well presented bedroom benefits from a fitted carpet and is also positioned to over-look the rear garden.
Garage - 15' 11'' x 8366' 2'' (4.86m x 2550m)
This integral garage houses the gas fired boiler and adds a great extra storage space.
The pleasant front garden has a gravel path leading to the front door and area of lawn surrounded by mature plants and shrubs. There is a Tar macadam drive for off-street parking. The lovely rear garden is south facing and has a well positioned deck area to make the most of the sunshine all day long. A florist's delight- the lawn is bordered by a wide array of plants and shrubs and en closed by timber fencing.
This house description is based upon information supplied by the owner, or on behalf of the owner. These property particulars are produced in good faith and do not constitute or form part of any contract. s1homes do not take any responsibility for the accuracy of the information contained in this document.
If a property value displays '0', don't worry it just means no properties have been sold in that area during that time.
Sold house price data is supplied to us by the Registers of Scotland, a government department responsible for compiling and maintaining property registers, every month. There can be a delay of up to 3 months from when a property is sold to being recorded with Registers of Scotland. We provide house price data for your information only, we do not accept any liability for any errors. If you have noticed any incorrect information, please contact Registers of Scotland.


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New Members' Show
Opening Reception on Saturday, January 12, 5:30 - 7:30 Sat, Jan 12 - Thu, Feb 7, 2013
Venue: Copley Society of Art
158 Newbury Street, Boston, MA 02116Contact:
0 people saved this
The Copley Society of Art is proud to present the 30 newly accepted members into the gallery in 2012. The Membership Committee of the Copley Society of Art meets annually to review the applications of prospective artist members throughout the year. The Committee assesses each applicant on the strength of their body of work, and accepts for membership only those whose work is truly outstanding. Artist membership at the Copley Society of Art is extremely competitive and reflects Co|So's commitment to emerging artists. Those who are invited to join the organization represent a great diversity of styles, media, and techniques.
Trustees Hiking Challenge is in its Home Stretch!
Back in May, The Trustees began celebrating its 125th anniversary as the world's first...
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Student Loan Default Rate Rises Slightly
October 8, 2008
Default rates on federally guaranteed student loans rose from 4.6 percent to 5.2 percent for the fiscal year ending September 30, 2006. That increase was due, in part, to a large increase in defaults in the states affected that year by hurricanes Katrina and Rita.
Default rates are not even across types of institutions and tend to be notably higher at proprietary institutions. For 2006, for-profit institutions registered a 9.7 percent default rate, compared to 8.2 percent in 2005. In contrast, public institutions' rate rose from 4.3 percent to 4.7 percent, and independent institutions' rose only 1/10th of a percent to 2.5 percent. Regardless of control, four-year institutions tend to have lower default rates than those whose programs are less than four years.
The cohort default rate that has been used for more than a decade looks at a fairly short window; it calculates the number of borrowers entering repayment during a fiscal year who defaulted by the end of next fiscal year. In response to criticisms that the measure is too short-sighted, Congress dictated a change in the formula as part of its recent reauthorization of the Higher Education Act. The new default rate must take into account an additional year. . At the same time, the threshold at which institutions must take default-reduction measures or face loss of eligibility to participate in the federal loan programs will rise from 25 to 30 percent.
NACUBO Contact: Anne C. Gross
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Red Ice
by Jean Follain
translated from the French by Phil Sugden
In 1812 in Russia
when the soldiers retreated
their strong wine froze
in among corpses
of men and horses
a pick-axe
had to cut shares
even for the dying
from the block of red ice
shaped like a casket
that no museum
could have preserved.
Jean Follain (1903–1971) was a French author who published nine books of poetry and one work of prose.
Phil Sugden graduated last year from Sheffield University in England. (Spring 1975)


text:
The average cost for a Shock Absorber Replacement - Rear is between $759 and $890. Labor costs are estimated between $308 and $389 while parts are priced between $451 and $501. Get a personalized estimate based on your location and specific car. Estimate does not include taxes and fees.
Rear Shock Absorber Replacement Cost for Infiniti M37
Shock Absorber Replacement - Rear Estimate (National Average)
Validated estimate range for national average.
View Estimate Details
Parts & Labor Breakdown
Labor: $308 - $389
Parts: $451 - $501
Estimate does not include taxes and fees.
Best Practices
Your shock absorbers should be replaced in pairs.
Common Symptoms
Shock absorbers can require replacement due to oil leaks, knocking noises, and torn rubber bushings.
Last step before receiving your estimate:
* Estimate for all Infiniti M37 model years. Get a more accurate price by entering in your year.


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How do I get rid of tomato worms?
Hardiness Zone: 6a
Crafty Critter 8 from PA
To keep tomato horn worms off my tomatoes, I plant marigolds next to them. I plant tomatoes in groups of four with two to three marigolds in between them. In twenty plus years of gardening, I have only had three horn worms I had to remove.
By Steve from Dorr, Michigan
Here are some good tips on ThriftyFun. Just follow this link.
here, I grow a spare tomato plant just FOR the hornworms.... see, I like the moths....the hummingbird moth....
when I find one, I pick it off and put it on the 'spare' tomato plant... and then I get to watch the moths enjoy my flowers.....
I use peppermint flavoring mixed with water.They can't stand the smell.
Add your voice! Click below to comment. ThriftyFun is powered by your wisdom!


text:
How To Wear Winter Neckscarves with Hijab Video Tutorial
Posted on February 02, 2015
Watch my latest tutorial on how to work neck scarves with hijab! I show you 10 easy looks with 5 different scarves. Watch the rest of my tutorials on our YouTube page!
Have a tutorial request? Leave it below or e-mail me at email@example.com!


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Home / Scholarships / Scholarships Articles
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There are so many scholarship opportunities available to Hispanic students.
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text:
Bids submitted Monday for the construction of a new Hamlet-Davis Township fire department building were described by the Pyramid Architecture/Engineering and Construction representative as
"a lot better" than the previously submitted bids.
Fifteen companies submitted bids in nineteen proposals for 10 of the 12 trade packages. One bidder's proposal was rejected as incomplete. The accepted bids will be reviewed by Pyramid.
Its recommendation will be presented at the next meeting of the board.
The project is a 8,100 sq-ft building on Indiana Avenue, just east of the Starke County Fairgrounds
in Hamlet. It will be a wood framed system with metal roofing, metal siding, and slab-on-grade.


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The Meaning of WYLSNED
You have found the definitive source for the meaning of WYLSNED. This page contains all the definitions of WYLSNED, crowd sourced, moderated and curated by real people who care about the true definitions of WYLSNED.
The Top Definition of WYLSNED
The most popular meaning of WYLSNED is: Well you learn something new every day
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What is WYLSNED?
WYLSNED is Well you learn something new every day
WYLSNED Means
The definition of WYLSNED is "Well you learn something new every day".
WYLSNED Definition
The meaning of WYLSNED
WYLSNED means Well you learn something new every day.
Now you understand the definition of WYLSNED - WYLSNED means "Well you learn something new every day".
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text:
A Good Deal: No Evil 022
Round up4.29 / 5.00 2,476 Views
Park Bench
A short film about a park bench4.16 / 5.00 1,950 Views
frog thing
frogggsgsgs3.79 / 5.00 2,235 Views
lol his head is a pokemon?
lets play lol you died music!
I was laughing my head off, it was so funny! :D :P
Hey, that's not funny!
The only reason this got such a high rating is because "Pokemon" has a massive amount of hate towards it. I don't support any of this hate. It's all around the politics around the anime than what's actually on screen. Have you ever noticed that out of all the negative reviews of the movies, you've never heard anyone say "why" it was so bad? People automatically hate it.
2 things
omg you drew his butthole!
Well noticed good sir!
Glad you enjoyed.
now thats %&#$##%$^# Funny...


text:
The downside of plastic decking as compared with the other options is that it is designed as part of an overall system. You will need fasteners to fix the plastic down. Now you have the most suitable materials at hand, then you will be ready to begin doing the authentic clean-up. adding a second floor balcony and deck. Deciding on the best material for a deck is crucial but it is only as critical to make certain it is installed correctly. Something you should know of is that composite decking materials are not entirely waterproof.
Plastic decking materials only arrive in lots of colors. Several of the alternative decking materials do not have any actual history. The Key to Successful Plastic Decking Most composite manufacturers claim a specific proportion of recycled goods, deck wood composite railing plastic, and I do not have any doubt this is true. If you prefer to use something that is quite durable, this may be the best choice for you as long as you do not mind not being about to find the pure elegance of the wood.
Opaque deck products hide the organic wood grain and can be found in a wide variety of colors.it is possible for You to screw in the material very near the edge, states Azek vice president of marketing Brian Kincaid. Yet composite materials do not always meet their own hype. price wpc transcend porch flooring. Choosing the deck materials is only the start. T he material is not indestructible. PVC decking materials generally have a long lifespan, which means you wo not will need to replace them as often.


text:
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|Reviews for Fair, Strong and Cold
| teapearl chapter 25 . 4/23/2015
Beautiful story. I will be re-reading this. I love how you started with the arranged marriage idea and made it work; showing Eowyn and Faramir's growing relationship and motivations. My favorite parts are: the proposal, Faramir's visit to Rohan, Eowyn's time in Gondor, feast in Ithilien, Eowyn comforting Faramir, their talk about her Shieldmaiden role, and of course, the last couple of chapters. Thanks for writing!
| Hannah Lynn McDonald chapter 25 . 9/27/2014
A beautiful story. You have a wonderful way with words - so lyrical and magical. Soft. The entire story was like reading a dream, a silent song.
Bravo! *claps* Bravo.
By the way, remember your dance? Would you mind if I used it in a series of mine?
| Hannah Lynn McDonald chapter 20 . 9/27/2014
I have to put this down here, because I will never remember by the end.
Your dance was beautiful. It matters not that it doesn't exist, it seems to. You described it just right. Reading it, I could feel it; and i danced with them. I loved how you mentioned the laughter, because it is true. It is so easy to lose oneself in a dance and just move in laughter and joy.
As I said before: beautiful.
| Moose Voose chapter 11 . 11/21/2013
That moment when they were sparring, man, I melted. I've felt almost as cold towards Faramir as Eowyn, but man...that was a beautiful moment. This story really grows on you. :)
| bookaholic2000 chapter 1 . 6/30/2013
Well-written first chapter...
| Glosswen chapter 25 . 1/26/2013
I loved your story. Your portrayal of Faramir is very In Character; that of Aragorn also. People often try to make them "more human", just as if real human beings couldn't be noble and selfless.
This is the first "arranged marriage" fanfic I have ever seen that is true to the characters. Aragorn would never order anyone to marry, but he might suggest it.
It is only natural that Faramir would be the one to put more effort in the relationship. He is the one in a position of power and, thus, has more responsibility. Don't listen to people who say otherwise...and don't listen to people who say you need one great bit event that makes them realize they truly love each other. I liked the calmness of your story.
Your style is amazing. I would never have guessed that English is not your mothertongue. (Not a native speaker myself, I am a bit envious).
The only think I didn't like in the story was Faramir's supernatural ability. It seemed to come out of nowhere. Was it in the books? (I could have forgotten it. I sometimes to that with things I don't like in a book) To me, it devaluated his empathy. I would have preferred his gentle manners to have stemmed from careful observation and interest in Eowyns well-being. Also, mind-reading is creepy. And in my opinion, the story would have worked perfectly without it.
| Guest chapter 2 . 10/22/2012
sweetie use some other filling words rather than and please!
| Talia119 chapter 25 . 8/21/2012
What a fantastically beautiful read. I love the way you brought all of the pieces together and they came to love slowly. I often think that love and marriage happens way too fast in the fanfic world anyway. Thank you for sharing this with us!
| TheSpectrum chapter 25 . 12/22/2011
Two words: absolutely fantastic.
| elanor of aquitania chapter 25 . 10/28/2011
I really liked this story, the plot and the writing style.
Yet, for me the characters are not the Eowyn and Faramir I imagine when I read LotR. For me Eowyn is far more fiery and Faramir is far more intense. To me the characters you invented feel more like very restrained modern humans with a good touch of political correctness ;-) . After such a huge blood-letting humans are usually very aware of being alive (of being survivors), as you have described it too, and thus have a greater impulse to procreate.
But as a fanfic, with the conditions and requirements you set, it is a great work. Congratulations!
| Riel-mir chapter 15 . 3/10/2011
Oh Eomer always loving and protective.
| Riel-mir chapter 11 . 3/10/2011
Oh Either one hasn't realize that they live each other Awww I can't wait. They are both playing it safe. Ok I will continue reading now.
| Riel-mir chapter 8 . 3/10/2011
You did great. I would never thought that Rohan represents day and sun while Gondor is night and moon. Faramir and Eowyn represent both so it was a perfect union. Great I like that sun and moon idea.
| Riel-mir chapter 2 . 3/10/2011
Yes, Faramir also wanted to fight but unable thus he flet guilty. Good point cuz since in the scene when they first met it seems it was on Eowyn wanted to go to the battle. I believe that Faramir felt the same way. Thank you. Great story.
| Aki no Ryu chapter 11 . 1/31/2011
Dear Ellethill,
I read this story some weeks ago and I must say, it gets better the second, nay, third time around! You have a great writing style which mimics Tolkien but gives more as is usual with a "regular" story or narrative- which I do prefer because as much as I love the great Tolkien, sometimes I cannot but wish that he provided more dialog especially when it came to couples. So a heartfelt thank you for your wonderful storytelling. Oh, and I do believe this chapter is my favorite- next to chapter 23.
ian aka Nuingarien


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Free Weekly Download
Sometimes moral superiority Cattle Drive
released april 12th at northside tavern. this song tells the story of various stages of a relationship and and how growing up changes your way of looking at it.
You're Too Late!
Sorry dude... This download has expired. Check out our homepage to see this week's download!


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Tag: funny illustrations
10 Funny Illustrations Show Why You Should Stay Single
There are two kinds of men – one who is free and enjoying the freedom of being single and others who are held in the clutches of a relationship. We have collected 10 funny ...READ MORE +
14 Funny Illustrations Of Tiny Adventures Of Everyday Objects
Salim Zerrouki studied at the Fine Art School of Algiers. His passion lead him to pursue a career as an art director in various advertising agencies before settling in Tunisia. In ...READ MORE +
Funny Illustrations Teach You How To Be A Cat
If you've been considering a career change, now's a great time to consider becoming a cat. That's because Lisa Swerling and Ralph Lazar, the creative artists behind Last Lemon, ...READ MORE +


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Supreme Court of New York, First Department
May 14, 2013
Vernetta Rivers, Plaintiff-Appellant,v.Villford Realty Corporation, et al., Defendants-Respondents.
Burns & Harris, New York (Christopher J. Donadio of counsel), for appellant.
Newman Myers Kreines Gross Harris, P.C., New York (Adrienne Yaron of counsel), for respondents.
Friedman, J.P., Richter, Feinman, Gische, Clark, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered October 18, 2011, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff slipped on calcium chloride, a substance used to treat and prevent ice conditions, while exiting her apartment building. She admitted observing the calcium chloride pellets before her fall. The record shows that the presence of the calcium chloride was open and obvious and not inherently dangerous ( see Verdejo v New York City Hous. Auth., ___ A.D.3d ___, 2013 NY Slip Op 02323 [1st Dept 2013]; Baynes v City of New York, 81 A.D.3d 423 [1st Dept 2011]). Defendants' safety consultant established that using calcium chloride to combat snow and ice conditions was a good, accepted, and safe practice, consistent with industry standards, and that there were no standards that required removing "ice melt" when ice was not present. The expert opined that the calcium chloride would have been soft and pliable and would not have been slippery at the time of the accident, and thus, not hazardous. His affidavit was not speculative since it was based upon his review of deposition testimony, the weather report for the relevant period, his personal inspections of the premises, and a sample of the calcium chloride used there.
In opposition, plaintiff failed to raise a triable issue of fact as to the existence of a dangerous condition. Consideration of the building superintendent's deposition testimony does not alter this conclusion.
We have considered plaintiff's contention based on public policy and find it unavailing.
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Mom of two, Kim Kardashian, has on numerous occasions, flaunted her curves on social media not minding who sees or not.
Kim, was holidaying in Punta Mita, Mexico, last week, had every eyes on and off the internet popping with new photos of her wet and in a sheer top.
The reality TV star, first donned a two piece black swimsuit, which saw the top being sheer and her nipples out and about in the world.
ALSO READ: FG Uncovers Fresh 5,000 Ghost Workers
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