text:
Home /
Our Sources / About Us
/ FAQs /
Advanced Search
Not what you're
looking for? Try an advanced search.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
decided: March 2, 1984.
TIERNEY A. O'ROURKE, PUBLIC ADMINISTRATOR OF QUEENS COUNTY, NEW YORK, AS ADMINISTRATOR OF THE ESTATE OF ALEXANDROS HADZIS, DECEASED, PLAINTIFF-APPELLEE-CROSS-APPELLANT,v.EASTERN AIR LINES, INC., DEFENDANT-CROSS-APPELLEE, AND UNITED STATES OF AMERICA, DEFENDANT-APPELLANT-CROSS-APPELLEE
Appeal and cross-appeal from a final judgment of the Eastern District of New York (Bramwell, J.) entered after a non-jury trial awarding the estate of Alexandros Hadzis $982,100 for his wrongful death. Affirmed in part; reversed in part.
Mansfield and Pratt, Circuit Judges, and Tenney, Senior District Judge.*fn* George C. Pratt, Circuit Judge, concurring and dissenting.
Defendant, United States of America ("the United States"), appeals from a final judgment of the United States District Court for the Eastern District of New York, Henry Bramwell, District Judge, awarding plaintiff $982,100 in damages for the wrongful death of plaintiff's decedent. The United States contends that the award was excessive as a matter of law and, in addition, that the district court erred when it permitted the plaintiff to increase the ad damnum clause in the amended complaint to an amount in excess of the administrative claim filed pursuant to 28 U.S.C. § 2675 (1976).
On cross-appeal, plaintiff, Tierney A. O'Rourke, the Public Administrator of Queens County, New York ("the Public Administrator") challenges (1) the application of New York law instead of Greek law to the question of damages, (2) the court's refusal to award prejudgment interest on a sum due from Eastern Air Lines, Inc. ("Eastern") under the absolute liability provision of the Warsaw Convention, (3) the exclusion of circumstantial evidence on the decedent's conscious pain and suffering, and (4) the exclusion of certain testimony on the issue of lost future earnings.
For the reasons stated below, we affirm the rulings contested by plaintiff on cross-appeal, but reverse on the issues raised by the government concerning the award of damages. The district court erred in allowing the plaintiff to amend the ad damnum clause. Furthermore, the award of damages is excessive, and, accordingly, the district court is instructed to retry the issue of damages unless the plaintiff is willing to remit 21% of the award.
On June 24, 1975 Eastern Air Lines Flight 66 en route from New Orleans to New York City crashed on its approach to John F. Kennedy International Airport ("JFK"). Among those killed in the crash was Alexandros Hadzis ("Hadzis"), a Greek citizen and seaman who was on his way home to Greece. The Public Administrator brought an action against Eastern and the United States on behalf of Hadzis' estate initially seeking $925,000 in damages for his wrongful death and conscious pain and suffering. The claim against the United States, brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80 (1976),*fn1 alleged that the air traffic controllers at JFK had been negligent. In addition, because Hadzis was engaged in international transportation at the time of the crash*fn2 and, thus, subject to the terms and conditions of the Warsaw Convention ("the Convention"),*fn3 as supplemented by the Montreal Agreement ("the Agreement"),*fn4 plaintiff brought a separate claim for $75,000 against Eastern under the absolute liability provision of the Convention. All of the actions arising out of the crash were transferred to the Eastern District of New York and were consolidated for pretrial purposes. See In re Air Crash Disaster at John F. Kennedy Int'l Airport on June 24, 1975, 407 F. Supp. 244 (J.P.M.D.L. 1976). After the completion of pretrial discovery, the court consolidated the passenger actions for a trial on the issue of liability. On the eve of trial, the United States consented to a liability judgment. Subsequently, a jury found Eastern negligent. This was affirmed on appeal. 635 F.2d 67 (2d Cir. 1980). Following the affirmance, Eastern moved pursuant to the damage limitation provision of the Warsaw Convention for partial summary judgment to limit its liability to the Hadzis estate to $75,000. The court granted the motion, O'Rourke v. Eastern Air Lines, 16 Avi. L. Rep. 18,367 (E.D.N.Y. Jan. 29, 1982), and on March 1, 1982, after depositing $75,000 with the Clerk of the Court, Eastern withdrew from the proceedings.
Plaintiff had previously made two motions. One sought a ruling that the damage law of Greece applied to the action on behalf of the Hadzis estate. The other sought permission to amend the complaint in that action to increase the ad damnum clause from $925,000 to $1,400,000. The district court ruled that New York law rather than Greek law applied and, with the other motion still pending, commenced a non-jury trial on the issue of damages.
On June 21, 1982, the lower court entered two orders. In one, the court granted plaintiff's motion to increase the ad damnum clause. In the other, which included the court's findings of fact and conclusions of law, the court awarded the plaintiff $982,100 for the wrongful death of Hadzis. The court made no award for his conscious pain and suffering apparently because no evidence had been admitted at the trial to substantiate this claim. During the course of the trial, the court ruled that the proffered testimony of Mary Mooney ("Mooney"), an Eastern flight attendant who survived the crash, was not relevant on the question of Hadzis' pain and suffering and was therefore inadmissible.
The district court also found that the $982,100 award did not have to be discounted. While it recognized the usual requirement that awards be discounted to present value, see generally Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S. Ct. 2541, 2550, 76 L. Ed. 2d 768 (1983) ("Even in an inflation-free economy the award of damages to replace the lost stream of income cannot be computed simply by totaling up the sum of the periodic payments. For the damages award is paid in a lump sum at the conclusion of the litigation, and when it -- or even a part of it -- is invested, it will earn additional money. . . . 'The ascertained future benefits ought to be discounted in the making up of the award. '") (quoting Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485, 490, 36 S. Ct. 630, 60 L. Ed. 1117 (1916) (footnote omitted), the lower court found, based on the testimony of plaintiff's expert, that the "total offset" approach should be applied. Under this approach an award for lost future earnings is adjusted neither upward nor downward since the potential benefit from investing the money is counterbalanced by inflationary forces. See Pfeifer, supra, 103 S. Ct. at 2554. In a related evidentiary ruling the court held that the plaintiff's expert could not testify about the propriety of adjusting the lost future earnings figure upward because his proposed testimony came as a surprise to the government.
Finally, in a post-trial motion, the plaintiff moved for an order directing Eastern to pay prejudgment interest on the $75,000. Finding that the damage limitation provisions of the Convention and Agreement were inclusive of prejudgment interest, the lower court denied the motion. O'Rourke v. Eastern Air Lines, Inc., 553 F. Supp. 226 (E.D.N.Y. 1982).
Since we do not agree with the plaintiff-cross-appellant that the district court erred in its rulings on the prejudgment interest, the admissibility of testimony, or the choice-of-law question, we affirm on those issues. We do believe, however, that the court erred in allowing the plaintiff to amend the ad damnum clause and that the final damage award is excessive. Thus, a retrial of the damage issue is required unless the plaintiff agrees to a remittitur as set out below.
Because a determination of the appropriate substantive law to be applied in this case is necessary before we may consider in particular the prejudgment interest issue, and the award of damages, we will address the questions raised on cross-appeal first.
A. The Cross-Appeal
1. Choice-of-law
The Public Administrator argues that Judge Bramwell erred in applying New York's wrongful death law. Although New York's choice-of-law rules are far from clear, we do not believe that a New York court would agree with the plaintiff and apply the law of Greece in this case where the tortious conduct occurred in the state and New York is the forum state.
Under the FTCA a district court must apply the whole law of the state in which the acts of negligence occurred, including the choice-of-law rules of that state. Richards v. United States, 369 U.S. 1, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962). Where jurisdiction rests upon diversity of citizenship, the court must apply the whole law of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); Rosenthal v. Warren, 475 F.2d 438 (2d Cir.), cert. denied, 414 U.S. 856, 94 S. Ct. 159, 38 L. Ed. 2d 106 (1973).*fn5
Following these guidelines, the district court held that under New York's choice-of-law rules a New York court would apply its own substantive law concerning wrongful death because it was either the place of the wrong or the place with the greater governmental interest. New York's Wrongful Death Statute, unlike that of Greece, does not provide for recovery in wrongful death actions for loss of consortium, Liff v. Schildkrout, 49 N.Y.2d 622, 404 N.E.2d 1288, 427 N.Y.S.2d 746 (1980), or for the survivor's grief. Horton v. State, 50 Misc. 2d 1017, 272 N.Y.S.2d 312 (Ct. Cl. 1966). See also Garland v. Herrin, 724 F.2d 16, slip op. at 7419 (2d Cir. 1983).
Our task is to determine what law New York courts would apply in this situation rather than a " 'rule we [might] think better or wiser. '" See id., at 17 (quoting Hausman v. Buckley, 299 F.2d 696, 704-05 (2d Cir.), cert. denied, 369 U.S. 885, 82 S. Ct. 1157, 8 L. Ed. 2d 286 (1962)); O'Connor v. Lee-Hy Paving Corp., 579 F.2d 194, 205 (2d Cir.), cert. denied, 439 U.S. 1034, 99 S. Ct. 638, 58 L. Ed. 2d 696 (1978). Furthermore, we have noted that "the district judge's interpretation of . . . choice-of-law precedent is entitled to special deference because of his experience and familiarity with [the] law." Saloomey v. Jeppesen & Co., 707 F.2d 671, 676 (2d Cir. 1983) (citing Bernhardt v. Polygraphci Co. of Am., 350 U.S. 198, 204, 76 S. Ct. 273, 100 L. Ed. 199 (1956)). This principle is especially persuasive when this court is called upon to wade into New York's choice-of-law quagmire.
The New York Court of Appeals was one of the first courts to reject the rigid lex loci delicti (place of the wrong) rule in favor of a more flexible modern approach to tort choice-of-law questions.*fn6 In the landmark case of Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963), the court held that an Ontario guest statute would not be applied to bar recovery in an action by a New York guest against a New York automobile driver-host, even though the accident occurred in Ontario. The court stated that:
Justice, fairness and "the best practical result" . . . may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation.
12 N.Y.2d at 482, 191 N.E.2d at 283, 240 N.Y.S.2d at 749 (citation omitted).
However, over the next nine years, as a number of conflict-of-law cases involving wrongful death and guest statutes reached the court, the analytical methodology on which the court relied in selecting the appropriate law appeared to change. See, e.g., Dym v. Gordon, 16 N.Y.2d 120, 209 N.E.2d 792, 262 N.Y.S.2d 463 (1965) (applicable law determined by the location of most significant relationship between the parties); Macey v. Rozbicki, 18 N.Y.2d 289, 221 N.E.2d 380, 274 N.Y.S2d 591 (1966) (applicable law determined by a counting of the contacts with the interested states); Tooker v. Lopez, 24 N.Y.2d 569, 249 N.E.2d 394, 301 N.Y.S.2d 519 (1969) (government interest analysis determines choice-of-law question). See generally R. Leflar, American Conflicts Law § 91, at 183-85 (3d ed. 1977); Korn, supra note 6, at 820-902. Thus, the court created an inconsistent body of precedent with seemingly similar cases decided differently.
Finally, in Neumeier v. Kuehner, 31 N.Y.2d 121, 286 N.E.2d 454, 335 N.Y.S.2d 64 (1972), the court acknowledged this lack of consistency in its previous multistate accident cases. Id. at 127, 286 N.E.2d at 457, 335 N.Y.S.2d at 69. In Neumeier, the question before the court again concerned Ontario's guest statute. The issue was whether the statute was applicable in an action between an injured Ontario domiciliary and his New York host arising out of an accident in Ontario. The court held that the statute did apply and promulgated three principles for the resolution of future guest statute problems in conflict situations.*fn7 However, the court did not make clear whether these principles applied equally to other multistate tort cases. See Herzog, 1982 Survey of New York Law -- Conflicts-of-Laws, 34 Syracuse L. Rev. 113, 140 (1983); Korn, supra note 6, at 884-86.
After Neumeier, the flow of explicative decisions dealing with tort choice-of-law issues dwindled, and only a few short opinions have been issued by the Court of Appeals. See, e.g., Croft v. National Car Rental, 56 N.Y.2d 989, 439 N.E.2d 346, 453 N.Y.S.2d 631 (1982) (Mem.); Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 376 N.E.2d 914, 405 N.Y.S.2d 441 (1978) (per curiam). Unfortunately, these have only added to the confusion. See generally R. Cramton, D. Currie & H. Kay, Conflict of Laws 243 (3d ed. 1981); Korn, supra note 6, at 957.
In Cousins, the court signaled an apparent retreat from its modern approach. It stated in dictum that "it is true that lex loci delicti remains the general rule in tort cases to be displaced only in extraordinary circumstances. But it has been acknowledged that in airplane crash cases, the place of the wrong, if it can even be ascertained, is most often fortuitous." 44 N.Y.2d at 699, 376 N.E.2d at 915, 405 N.Y.S.2d at 442 (citations omitted).*fn8 This statement has caused considerable confusion in the lower New York courts.*fn9 See Korn, supra, at 957. Nevertheless, the Court of Appeals has made no attempt to clarify the "extraordinary circumstances" qualification, nor is it clear from the Cousins opinion that all or even most airplane crash cases are within this exception.
Notwithstanding these uncertainties, a district court judge faced with a New York choice-of-law question can not throw up his or her hands and walk away from the problem. With the above discussion in mind, we have concluded that Judge Bramwell did not commit reversible error in ruling that a New York court would apply its own substantive law in this case.
We are not convinced that, as the Public Administrator argues, the lex loci delicti rule in New York applies only to choice-of-law issues involving tortious conduct and not to the issue of damages. The Court of Appeals in Cousins, albeit in dictum, stated that " lex loci delicti remains the general rule in tort cases." (Emphasis added).*fn10 The court did not indicate that this statement applied only to tortious conduct. Moreover, we do not believe that claims arising out of an airplane crash require the application of the Cousins "extraordinary circumstances" exception simply because of the transitory nature of the tort. See Grancaris v. J.I. Hass Co., supra, 79 A.D.2d at 551, 434 N.Y.S.2d at 21 ("Tort cases, though transitory, still remain subject, in choice-of-law matters, to the rule of lex loci delicti. . . .") Finally, the additional compensation the decedent's beneficiaries would receive if Greek law were applied hardly seems to be an extraordinary circumstance that would satisfy the Cousins exception. See Rakaric v. Croatian Cultural Club, supra.
Even if a New York court applied interest analysis in the instant case, we do not believe that it would agree with plaintiff that the law of the decedent's beneficiaries' domicile should always be applied in aviation wrongful death cases because that jurisdiction has the superior interest.*fn11 This court has observed that " 'a domiciliary conceptualism that rest[s] on a vested right accruing from the fact of domicile ' [should not be substituted] for New York's sophisticated 'interest analysis' approach to choice of law problems. The New York precedents require more." Rosenthal, supra, 475 F.2d at 444 (quoting Miller v. Miller, 22 N.Y.2d 12, 29, 237 N.E.2d 877, 887, 290 N.Y.S.2d 734, 748 (Breitel, J., dissenting)). See also Tooker, supra, 24 N.Y.2d at 580-81, 249 N.E.2d at 401, 301 N.Y.S.2d at 528-29.
In applying governmental interest analysis to a choice-of-law problem, a court examines the policies underlying the alleged conflicting laws to determine which state has the greatest interest in the application of its own law. See id. at 576-77, 249 N.E.2d at 398-99, 301 N.Y.S.2d at 525-26. Additional factors that a court considers in this process are "the domiciles of the parties, the place where the tortious conduct occurred and where the injury was suffered." Bing v. Halstead, 495 F. Supp. 517, 520 (S.D.N.Y. 1980). The lower court, utilizing this approach, found that New York, as the state where the crash occurred and as the forum state, had a greater interest in the application of its own law.
Plaintiff has not persuaded us that the result should be otherwise. This is not a situation where one party seeks the application of an anachronistic law that would drastically limit or eliminate the damage award. See Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (1961); see also Rosenthal, supra, 475 F.2d at 446. Nor will an unjust or anomalous result occur if New York law is applied. See Babcock, supra. Both Greece and New York in their wrongful death statutes provide full and adequate compensation for the beneficiaries of decedents. New York, however, has a strong public policy to " 'specifically [limit] recovery in wrongful death actions to pecuniary damages resulting from decedent's death. '" Garland, supra, 724 F.2d at 20 (quoting Campbell v. Westmoreland Farm, Inc., 403 F.2d 939, 940 n.1 (2d Cir. 1968)). In addition, New York, in order to discourage forum shopping and encourage business within the state, has a governmental interest in assuring that defendants will not be subject to damage awards larger than those provided for by state law.*fn12 Greece also has a governmental interest in this action. It has an interest in assuring that its domiciliaries receive compensation for loss of consortium and the survivor's grief. While the policy considerations underlying the Greek laws are not clear from the record, Greece's interest in the application of its own law is not compelling since under New York law the beneficiaries will receive sufficient compensation to avoid becoming a burden to society. Accordingly, plaintiff has not demonstrated that Greece has enough of an interest in the application of its law to displace New York's interests in the application of its own law.*fn13 New York is the forum; the tortious conduct occurred in the state; and the defendants have substantial contacts with the state. See Cousins, supra; Tooker, supra; see also Walkes v. Walkes, 465 F. Supp. 638 (S.D.N.Y. 1979).
Thus, under either a government interest analysis approach or the rule of lex loci delicti, the law of New York should be applied to this case. Having determined this, we need not consider the government's alternate argument that under the FTCA a claim may not be brought against the United States if it is based on a foreign law. Nor is it necessary for us to decide whether a New York court would accept the public policy considerations relied on by the court in In re Paris Air Crash of March 3, 1974, 399 F. Supp. 732 (C.D. Cal. 1975), to apply the law of the forum.
2. Prejudgment Interest on the Warsaw Convention Damage Award
The Public Administrator asserts that the district court erred in holding that the plaintiff could not recover prejudgment interest pursuant to New York law*fn14 on the $75,000 damage award that it received from Eastern. We disagree.
Article 22 of the Warsaw Convention*fn15 provides in pertinent part that:
(1) In the transportation of passengers the liability of the carrier for each passenger shall be limited to the sum of 125,000 francs [about $8,300 in 1934]. Where, in accordance with the law of the court to which the case is submitted, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 125,000 francs [about $8,300 in 1934]. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.*fn16
See supra note 3.
In 1965, the United States, dissatisfied with the inadequate liability limits afforded its citizens under Article 22, filed a formal notification of denunciation of the Convention to be effective May 15, 1966. Fearful that the world's largest air power would withdraw from the Convention, the majority of airlines signed what has become known as the Montreal Agreement. See Reed v. Wiser, 555 F.2d 1079, 1087 (2d Cir.), cert denied, 434 U.S. 922, 98 S. Ct. 399, 54 L. Ed. 2d 279 (1977); Day v. Trans World Airlines, Inc., 528 F.2d 31, 36 (2d Cir. 1975), cert. denied, 429 U.S. 890, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976); see generally Lowenfeld & Mendelsohn, supra note 15, at 563-596. Under the agreement the airlines agreed to be subject to absolute liability unless the passenger himself was at fault,*fn17 see Day v. Trans World Airlines, Inc., supra, 528 F.2d at 36. Furthermore, paragraph 1(1) of the Agreement states that:
The limit of liability for each passenger for death, wounding, or other bodily injury shall be the sum of US $75,000 inclusive of legal fees and costs, except that, in case of a claim brought in a State where provision is made for separate award of legal fees and costs, the limit shall be the sum of US $58,000 exclusive of legal fees and costs.
See supra note 4.
The Public Administrator argues that since paragraph 1(1) of the Montreal Agreement specifically states that the "$75,000 [is] inclusive of legal fees and costs" but makes no reference to the payment of prejudgment interest,*fn18 the absence of express language addressing prejudgment interest should be construed to mean that the figure is exclusive of prejudgment interest. According to the Administrator, his interpretation would advance one of the main purposes of both the Convention and the Agreement, namely, the speedy resolution of claims.
We are not convinced that the payment of prejudgment interest would necessarily have any impact on the speed with which claims under the Convention are resolved. See 1 L. Kreindler, supra, at § 12A.08[2]. Further, we are not satisfied that this is one of the main purposes of these agreements. In Reed v. Wiser,*fn19 supra, a previous case in which this court examined the underlying purposes of the Warsaw Convention, we stated that:
It is beyond dispute that the purpose of the liability limitation prescribed by Article 22 was to fix at a definite level the cost to airlines of damages sustained by their passengers and of insurance to cover such damages. . .
Id. at 1089 (emphasis in original) (footnotes omitted). We also noted that:
Another fundamental purpose of the signatories to the Warsaw Convention, which is entitled to great weight in interpreting that pact, was their desire to establish a uniform body of world-wide liability rules to govern international aviation, which would supersede with respect to international flights the scores of differing domestic laws, leaving the latter applicable only to the internal flights of each of the countries involved.
Id. at 1090 (footnotes omitted).
There is no indication that the contracting parties to the Montreal Agreement intended to modify these principles so that they would be liable for more than the fixed and definite sum of $75,000. See id. at 1089. See generally 1 L. Kreindler, supra, at § 12A.02-.06; Sheinfeld, From Warsaw to Tenerife: A Chronological Analysis of the Liability Limitations Imposed Pursuant to the Warsaw Convention, 45 J. of Air L. & Com. 653, 665-71 (1980). Although the $75,000 limitation may be anachronistic, the awarding of prejudgment interest in excess of this amount would be contrary to the purposes of the two agreements and would thus undercut the fundamental intent of their framers.
Nor can any support be found for the Public Administrator's position in the language of either document. We have noted that the specific words of a treaty should be given " 'a meaning consistent with the genuine shared expectations of the contracting parties. '" Reed, supra, 555 F.2d at 1090 (quoting Day v. Trans World Airlines, Inc., supra, 528 F.2d at 35). The fact that the $75,000 figure in the Agreement is inclusive of attorney's fees cannot be read to mean that it excludes prejudgment interest. Paragraph 1(1) of the Agreement also provides for an award of $58,000 exclusive of attorney's fees in States "where provision is made for separate award of legal fees and costs." In light of the damage limitation principle established in Article 22 of the Convention, see id. at 1089, it would appear that, if the signatories to the Agreement had intended to create any exclusions to the damage limitation figures, they would have included a specific provision in the agreement similar to the one concerning the separate award of legal fees and costs. See Block v. Compagnie Nationale Air France, 386 F.2d 323, 329 (5th Cir. 1967), cert. denied, 392 U.S. 905, 88 S. Ct. 2053, 20 L. Ed. 2d 1363 (1968). Cf. Lowenfeld & Mendelsohn, supra note 15, at 563, 568.
Furthermore, the Montreal Agreement must be read in the context of the Warsaw Convention. See id. at 597. The Convention indicates that any liabilities that the airlines may be subject to must be found within that document. Article 24 states that:
(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.
(2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply . . . .
See supra note 3 (emphasis added). In the five instances where the law of the forum is applicable, the articles so state explicitly. Reed, supra, 555 F.2d at 1092 (citing Sundberg, Air Charter: A Study in Legal Development 242 (Stockholm 1961)). An award of prejudgment interest pursuant to the law of the forum is not a condition set out in the Convention. See Husserl v. Swiss Air Transport Co., 388 F. Supp. 1238, 1246 (S.D.N.Y. 1975).
As a treaty adhered to by the United States, the Warsaw Convention is the supreme law of the land, see Reed, supra, 555 F.2d at 1093; Smith v. Canadian Pac. Airways, Ltd., 452 F.2d 798, 801 (2d Cir. 1971), and our duty is to enforce its provisions according to the intent of the framers. In the absence of any contrary intent on the part of the framers, we may not read into that document a provision that allows the payment of prejudgment interest above the $75,000 liability limitation.*fn20
3. The Evidentiary Rulings
The Public Administrator contends that the district court made two erroneous evidentiary rulings concerning the admissibility of testimony during the course of the non-jury trial. First, the Administrator argues that the lower court should have admitted the testimony of Mary Mooney, one of the survivors of the crash, on the issue of the decedent's pain and suffering during the moments between the time when the wing of the descending airplane first struck the ground and the time of final impact. It was established in an offer of proof that Mooney, who was sitting about ten to fifteen feet behind Hadzis at the time of the crash, did not see Hadzis or know what happened to him during this five to ten second period. The Administrator argues, however, that her proffered testimony concerning the conditions within the airplane cabin was not irrelevant, as the court ruled. According to the Administrator, "if admitted, [this testimony would have been] sufficient circumstantial evidence to allow the trial court to draw the reasonable inference that Mr. Hadzis probably suffered consciously . . . ." Brief of Plaintiff-Appellee-Cross-Appellant at 21 (emphasis added).
We do not agree. The question of relevancy is entrusted to the trial judge's discretion, see United States v. Carter, 522 F.2d 666, 685 (D.C. Cir. 1975); United States v. Catalano, 491 F.2d 268, 273 (2d Cir.), cert. denied, 419 U.S. 825, 95 S. Ct. 42, 42 L. Ed. 2d 48 (1974), and turns in part on the rule of substantive law at issue. See 1 J. Weinstein & M. Berger, Weinstein's Evidence para. 401[09], at 401-48 (1982). Under the law of New York, which governs in this case, see supra note 1, an award of damages for pain and suffering may not be based upon evidence that requires the fact finder to speculate upon the pain and suffering of a decedent prior to death. See Fiederlein v. New York City Health and Hosp. Corp., 56 N.Y.2d 573, 435 N.E.2d 398, 450 N.Y.S.2d 181 (1982); Huertas v. State, 84 A.D.2d 650, 651, 444 N.Y.S.2d 307, 309 (3d Dep't 1981); Anderson v. Rowe, 73 A.D.2d 1030, 1031, 425 N.Y.S.2d 180, 181 (4th Dep't 1980). See also Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126, 138, 428 N.Y.S.2d 535, 543 (4th Dep't 1980) ("In determining damages for conscious pain and suffering experienced in the interval between injury and death, when the interval is relatively short, the degree of consciousness, severity of pain, apprehension of impending death along with duration are all elements to be considered.") (emphasis added) (citations omitted). Accordingly, since Mooney did not see Hadzis or know what happened to him immediately before the crash, the district court did not abuse its discretion in ruling that her testimony was irrelevant to the question of his conscious pain and suffering.
As for the second contested ruling, the plaintiff argues that the district court erred when it ruled that certain proffered testimony of David Bunin ("Bunin"), plaintiff's economic expert, was inadmissible. The offer of proof made to the court demonstrates that Bunin was prepared to testify that a 2% negative growth rate factor should be applied to the award for lost future earnings, and that Hadzis would have been promoted to port captain, thus improving his earning potential.
The government argues that a number of adequate evidentiary and procedural grounds support the court's ruling. We agree. "[A] trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous." Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S. Ct. 1119, 8 L. Ed. 2d 313 (1962) (citation omitted); see also Taenzler v. Burlington N., 608 F.2d 796, 798 n.3 (8th Cir. 1979).
The record indicates that Bunin's proffered testimony came as a surprise to the government because it was not within the scope of the pretrial order nor produced on discovery and that Judge Bramwell excluded the testimony on these grounds.*fn21 In addition, the court found the testimony regarding Hadzis' potential promotion to port captain to be speculative and, thus, irrelevant. See Fed. R. Evid. 401; see also Fiederlein v. New York City Health and Hosp. Corp., supra. The plaintiff has not demonstrated that the exclusion of this testimony was manifestly erroneous. Accordingly, the lower court is affirmed on this issue.
B. The Appeal
1. The Ad Damnum Clause
The district court erred in granting plaintiff's motion to amend the ad damnum clause. As a jurisdictional prerequisite to a suit under the FTCA an administrative claim must be filed with the appropriate federal agency before an action may be commenced against the United States. 28 U.S.C. § 2675(a). See also Adams v. United States, 615 F.2d 284, 286 (5th Cir. 1980); Kielwien v. United States, 540 F.2d 676, 679 (4th Cir.), cert. denied, 429 U.S. 979, 97 S. Ct. 491, 50 L. Ed. 2d 588 (1976). Section 2675(b) provides further that:
Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.
(Emphasis added).
Shortly before trial plaintiff moved pursuant to § 2675(b) to increase the ad damnum clause from $925,000 to $1,400,000. Plaintiff asserted that, in the six years since it filed the administrative claim, an unprecedented rise had occurred in the salaries paid to Greek captains and mates. Finding that this circumstance constituted an "intervening fact" within the meaning of § 2675(b), the court granted plaintiff's motion.
Under the circumstances of this case, however, the motion should not have been granted. While this is our first opportunity to examine § 2675(b), other courts that have ruled on the scope of this section have granted motions to amend ad damnum clauses only when an unexpected change occurred either in the law or in a medical diagnosis. For example, in Husovsky v. United States, 590 F.2d 944, 955 (D.C. Cir. 1978), the court held that a changed medical diagnosis predicting an increased life span constituted an "intervening fact" where sufficient evidence supported the inference that the amount of the original claim was based on plaintiff's life expectancy at the time the claim was filed and the increased damage award was sought on the basis of this change. In Funston v. United States, 513 F. Supp. 1000 (M.D. Pa. 1981), the district court held that the unpredicted adoption by the state supreme court of a new method of discounting the present value of lost future earnings constituted an intervening fact. The court granted plaintiff's motion to increase the ad damnum clause, "but only to the extent that the increase is applicable to the fact that in submitting the administrative claim Plaintiff discounted his request for lost future earnings as required by then applicable law." Id. at 1007. See also McDonald v. United States, 555 F. Supp. 935, 957-62 (M.D. Pa. 1983); Gallimore v. United States, 530 F. Supp. 136 (E.D. Pa. 1982).
In all of these cases, there was some indication that the amount of the original claim was calculated on the basis of known facts at the time of the filing and that, subsequently, some new and previously unforeseen information came to light. Here, no such showing has been made. Although it is uncontroverted that the salaries of Greek seamen increased dramatically during the intervening six years, plaintiff does not claim that this was unforeseen. More important, he failed to assert sufficient concrete facts demonstrating that he relied on the old salary structure data in the calculation of his original $925,000 claim.
The FTCA, as a statute waiving sovereign immunity, must be complied with strictly. See United States v. Kubrick, 444 U.S. 111, 117-18, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979). If plaintiff were allowed to amend his ad damnum clause based upon the minimal showing he made in the district court, we would, in effect, be substituting the liberal pleading requirements of Federal Rule of Civil Procedure 15 for the narrower requirements of § 2675(b). This we may not do. See Kubrick, supra. Accordingly, we hold that the district court erred in granting plaintiff's motion to amend the ad damnum clause.
2. Award of Damages
The government contends that the $982,100 damages award to Hadzis' estate is clearly excessive.*fn22 According to the government this resulted from (1) the use of the total offset method to discount the award to present value, (2) the erroneous calculation of the amount of support that Hadzis would have supplied to his family, and (3) the excessive awards for loss of parental guidance and services.*fn23 Although we do not agree with all of the government's contentions, we find that the district court made some errors in the calculation of the award, and that a retrial on the issue of damages is required unless the plaintiff is willing to remit 21% of the award.
The district court's use of the total offset method was not clearly erroneous or incorrect as a matter of New York law.*fn24 While we have suggested that a 2% discount rate would be fair to all sides in cases involving federal law, Doca, supra, 634 F.2d at 39, this court has also stated that "we are not prepared to require any one particular method by which inflation should be taken into account in estimating lost future wages," id., and that "litigants are free to account for inflation in other ways, or, if they use the adjusted discount rate approach, to offer evidence of a rate more appropriate than 2%." Id. at 40.
The plaintiff's actuarial economist testified that, after studying data on the decedent's earning potential and the Greek economy, it was his conservative opinion that future interest and inflation rates in Greece would be equal and would cancel each other out.*fn25 These factual findings were adopted by the district court. See Findings 43-45, J.A. at 241-42.
The government now contends that the lower court's use of the total offset approach was without an adequate factual basis. The government, relying on language from Stratis v. Eastern Air Lines, Inc., 682 F.2d 406, 415 (2d Cir. 1982), argues, in essence, that since plaintiff's economic expert -- Bunin -- was not an expert on the Greek maritime industry, he was not qualified to testify about future wage increases in that industry. Therefore, the government claims an insufficient factual basis was established for the court's adoption of the total offset method.*fn26
We do not agree. If the government had wanted the lower court to adopt one of the alternate discount rates that it now urges upon us, it should have had its own experts testify on this matter.*fn27 The government was well aware before trial of Bunin's qualifications and that he intended to propose that the court adopt the total offset method for discounting the award. See J.A. at 73, 652-53. Nevertheless, the government did not object to Bunin's qualifications to testify on this matter during the trial. More important, the government did not introduce any experts of its own to refute Bunin's contentions; it "contented itself with cross-examination of plaintiff's expert." Vasina v. Grumman Corp., supra, 644 F.2d at 119. It is within the sound discretion of the trial judge to assess the persuasiveness of expert testimony as to estimates and evaluations concerning damages. See Ludlow Corp. v. Textile Rubber & Chem. Co., 636 F.2d 1057, 1060 (5th Cir. 1981); Pittman v. Gilmore, 556 F.2d 1259, 1261 (5th Cir. 1977). Furthermore, economics is not an exact science allowing an expert to determine the precise value that a lump sum award will have to a decedent's estate over a period spanning forty years. See Pfeifer, supra, 103 S. Ct. 2551-55; Doca, supra, 634 F.2d at 36-39. Accordingly, the district court's adoption of the total offset method to determine the present value of the damage award was not clearly erroneous in light of the evidence submitted.
However, the district court's determination of the proportion of the decedent's income that would have gone to the support of his family is more problematic. The district court, relying on the testimony of Bunin, found that Hadzis provided his family with 88% of his earnings. The court reduced this figure to 80% to account for that portion of the money that was saved and later put to his own personal use. See Finding 47, J.A. at 242. At the trial, however, Bunin testified that Hadzis' gross pay for the 12 months preceding his death was approximately $18,500 and that he gave his family approximately $14,500. Id. at 629. He also testified that Hadzis used $2,000 for his own personal expenses and that he was carrying approximately $2,500 when the plane crashed. Id. at 630. The government argues that since $14,500 is 78% of $18,500 rather than 88%, Bunin obviously made a mathematical error in his calculation that the district court repeated in its findings of fact. See Finding 47, J.A. at 242.
The government contends that the amounts for past and future support should therefore be reduced by 10%. We agree, and unless the plaintiff is willing to remit 10% of the amounts awarded for support a new damage trial must be conducted.*fn28
There is no support for the government's additional contention that the district court erred in the calculation of lost support because it excluded $2,000 that Hadzis sent annually to his parents. The district court acknowledged the existence of the gift, see supra, note 22, but found that this amount should not be included in the calculation for lost support on the theory that this amount was cancelled out by $2,000 in bonuses that Hadzis earned each year. Id. The bonuses also were not included in the calculation. Although the government contends that the bonuses were illegal and should not have been considered, the district court found that they were "customary and legitimate [and] could have been expected to continue throughout . . . Hadzis' career." Finding 19, J.A. at 238. The government presents no evidence to the contrary, and while an ambiguity appears in the record concerning the calculation of lost support,*fn29 the ruling that the bonus cancelled out the gift was not clearly erroneous.
Both the $75,000 awards for each child for loss of parental guidance and training, Findings 59, 60, J.A. at 244, and the award of $44,000 for loss of services, Finding 61, id., are so excessive as to shock the Court's conscience. See Franchell v. Sims, 73 A.D.2d 1, 6, 424 N.Y.S.2d 959, 962 (4th Dep't 1980). Hadzis was away at sea ten months a year, and he spent one of his two free months on vacation with his wife and child. The amount of time he could have spent on parental guidance or household repairs and services was minimal. The awards are excessive and should be reduced by 50%.
In light of the above, we would grant a conditional remittitur to $779,981.*fn30 If the plaintiff is unwilling to accept this, a new trial on damages is hereby ordered.
PRATT, Circuit Judge, concurring and dissenting:
I concur in that part of the majority opinion addressed to the appeal by the United States of America, but dissent from the disposition of plaintiff's cross-appeal because it denies plaintiff prejudgment interest.
While the central purpose of the liability limitation established by the Warsaw Convention, as modified by the Montreal Agreement, was "to fix at a definite level the cost to airlines of damages sustained by their passengers and of insurance to cover such damages", Reed v. Wiser, 555 F.2d 1079, 1089 (2d Cir. 1977) (emphasis in original), that purpose would be unaffected by requiring Eastern Air Lines to pay interest on the $75,000 award from the time of the accident to the time of judgment. As soon as the accident occurred, Eastern knew exactly what its maximum liability under the Montreal Agreement would be: $75,000 times the number of international passengers on board the ill-fated aircraft.
More importantly, as the various lawsuits wore on, Eastern had the use of that money and was able to earn interest on it. By the majority's own calculation, plaintiff's $75,000 recovery here would have earned $31,604.79 in interest even if calculated at New York's unrealistically low legal rates. Stated differently, therefore, "the cost to [Eastern Air Lines]," Reed v. Wiser, 555 F.2d at 1089, of the damages resulting from the death of plaintiff's decedent, Alexandros Hadzis, is not the $75,000 intended by the Montreal Agreement, but no more than $43,395.21, and perhaps significantly less.
Since Eastern was clearly and absolutely liable to pay plaintiff the $75,000 from the moment of death, interest on that sum earned during the legal proceedings required to compel its payment should accrue to plaintiff, not Eastern. Airline defendants and their insurers should not have an incentive to use the litigation process in order to reduce costs by delaying payment of moneys clearly due and owing.
Absent any language in, or purpose behind, either the Montreal Agreement or the Warsaw Convention that would preclude prejudgment interest, I agree with the view of the Fifth Circuit in Domangue v. Eastern Air Lines, Inc., 722 F.2d 256 (5th Cir. 1984), that prejudgment interest should be available to victims of air disasters who recover under the Montreal Agreement.
Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
LRC, Inc. About Us


text:
Results 1 to 1 of 1
Thread: RAID health status
10-15-2009, 08:38 PM #1Aspiring Evangelist
- Join Date
- Dec 2005
- Posts
- 395
RAID health status
I have a PROMISE TECH hardware raid card running a 4 disk RAID 10 array. I logged into today to check the drive statuses which were:
Drive 1: OK
Drive 2: OK
Drive 3: OK
Drive 4: OK, PFA
So they all look to be okay, but that 4th disk has PFA (I'm guessing that stands for predicted failure analysis) but I am not sure if that means its predicting a fail, or just stating that the technology is running?
Also, this array is the system drive on a server which has much too little memory, (there is usually 5-7GB PF swap during the day) and I'm concerned that the drives constantly under that stress are more prone to fail. They are 2.5" SAS 10k Fujitsu if that means anything.
Is anyone familiar with this raid card? Any help is greatly appreciated!
Similar Threads
3Ware Daily RAID Health ReportBy MjrGaelic in forum Hosting Security and Technology TutorialsReplies: 9Last Post: 03-12-2014, 07:11 PM
Adaptec 2015S RAID StatusBy torwill in forum Hosting Security and TechnologyReplies: 0Last Post: 08-11-2006, 05:17 AM
Check Hard Drive Status (Raid) on Centos?By best4service in forum Hosting Security and TechnologyReplies: 2Last Post: 02-15-2006, 03:19 AM
RAID statusBy Jay Cornwall in forum Hosting Security and TechnologyReplies: 4Last Post: 12-07-2005, 02:31 AM
RAID status on PE1850By Serverplan in forum Colocation and Data CentersReplies: 4Last Post: 05-25-2005, 10:24 PM

subset: commoncrawl


text:
Having unnecessary fat in numerous areas of your body can have a substantial influence on your health and self-esteem. While standard weight reduction through workout and diet is a great method to lose weight overall, even the very best exercises can't target issue areas like the belly, inner thighs, arms, and butts. Liposuction is a time checked treatment that is used to get rid of excess fat from specific locations of the body, enabling an individual to form and contour their body to their liking. Is liposuction right for you? Find out now.Pros of Liposuction
There are numerous advantages to this cosmetic treatment, consisting of:
• Right away noticeable changes. Unlike standard weight-loss, liposuction creates modifications that are immediately visible in the body. Some difference is visible immediately, and the wanted outcomes are typically attained in simply a few days.
• Proven and safe. This cosmetic procedure has actually been performed by skilled cosmetic surgeons all over the world for years and the strategy has actually been fine-tuned over and again to be safe and efficient.
• Recovery time is usually quickly. The downtime needed after having this kind of treatment is usually much less than exactly what is needed for other kinds of cosmetic treatments, including abdominoplasty, breast reduction, and more. Individuals who have had the procedure can typically return to work much more rapidly than they prepared for and can return to living a healthy, active way of life.
• Weight loss can be long-term. With the right maintenance techniques, the fat that was eliminated throughout the liposuction treatment will not return.
• Complete control over your body. With liposuction, a person can have complete control over how they want to look, beyond what traditional diet and exercise can offer. Providing individuals this power over their bodies increases self-esteem and help people feel their very best.
While there many advantages to liposuction, there are of course a few caveats that need to be considered before making the final decision to move forward with the procedure.
Cons of Liposuction
Prior to having liposuction done, it is essential to analyze the possible downsides of the treatment and determine if the advantages outweigh the threats in your certain case. Your specialist can help you learn more about the threats related to the procedure and can assist you decide if moving on is the ideal thing for you.
• Issues with basic anesthesia. Since liposuction is performed under general anesthesia, the treatment brings the exact same dangers as other type of surgery where basic anesthesia is utilized. Hidden medical conditions may increase these risks.
• Adverse responses. Bruising, bleeding, and discomfort are all to be expected, however, in unusual cases can cause more substantial issues.
• The potential to acquire the weight back. After having actually liposuction done, it is vital to maintain a healthy diet plan and workout properly as suggested by your doctor. Failure to do so could lead to gaining back the weight that was lost or perhaps even more.
There are dangers associated with liposuction, for lots of people, the advantages far surpass them. Inform yourself about the treatment by having in-depth discussions with your cosmetic surgeon and consider how liposuction has the potential to impact you as a distinct person. Only you and your surgeon can identify if liposuction will provide you with the outcomes you are looking for within your expectations.
Laser Liposuction procedure is a new non invasive procedure to loose unwanted bodyfat in New London WI
Laser liposuction is a newer, minimally invasive procedure that involves heating the fat cells to melting point and getting rid of the melted fat through a small cannula. The treatment is usually done right in your doctor's workplace and is an outstanding choice for individuals who have less than 500 ml of fat to eliminate from any one area. Laser liposuction can be a safe, complementary procedure to weight loss in order to sculpt the body you've always desired.
Contact a Specialist in your New London WI today.
If you're thinking about liposuction as a weight reduction solution, it's important that you discuss your desires with a qualified cosmetic surgeon in your area. Your specialist will carry out a complete exam and health history survey to determine if liposuction can benefit you and assist you reach your physical and emotional goals. Call today for an assessment and learn more about how liposuction can help you achieve the body of your dreams.


text:
A tanning bed is a fantastic addition to your home and best tanning beds for sale will allow you to enjoy glowing bronze skin all year round at a lower rate. Modern home tanning beds have been designed to be
Top 5 Mystic Tan Tips
Spray tanning is the only way to get beautifully tanned sin but to get a smooth tan result you need to investigate a few mystic tan tips. Spray tanning is sensitive work and there are a lot of factors that
How Long Does a Spray Tan Last
The major question on most people who are considering a spray tan for the first time's minds is; how long does a spray tan last? The answer can vary greatly for different skin tones and for the steps that you
Best Tanning Bed Bulbs for Cheap
If you want to cut running costs on your tanning bed then you should get the best tanning bed bulbs for your home tanning bed. A great way to determine what the best tanning bed bulbs for you would is
2016 Best Tanning Bed Lotions
To get the best and most even tan from your tanning bed, you need to ensure you are using the best tanning bed lotions available. The right tanning bed lotion will help you achieve better tanning results from your tanning


text:
ESFNA: The Judge Invitation Choked the Sheikh By LJD
For years, the Ethiopian Sport Federation in North America (ESFNA) has been telling the Diaspora that the money it has been receiving from Sheikh Al Amoudi, the accomplice of tyrant Meles Zenawi, has no strings attached. However, the Sheikh recent act that initiating a legal action to repossess the $240k donation he gave to the ESFNA has made it absolutely clear that the blood money he has been giving to the federation has been eclipsed in his political mission.
After Mohammed Bouazizi burned himself to death in December 2010, Tunisia's status quo was shuttered, and Bin Ali was forced to flee. Following the nomination of Judge Birtukan Mideksa for the ESFNA Guest of Honor in October 2010, the Sheikh is choked, and he is forced to choke off his iron grip on the ESFNA. Drawing a parallel between Tunisia's revolution and the ESFNA's ordeal might seem extraneous, but the point I am trying making is both situations took one incident to trigger events.
I like to take this opportunity to tip my hat to those board members of the ESFNA who persistently guarding the federation; especially to the board members of the Abebe Bikila Sports Club of Los Angeles for the courage and the wisdom they demonstrated when they nominated Judge Birtukan for Guest of Honor. Because without the rift the Judge nomination caused among the Diaspora, the shortcomings of the federation and the Sheikh motives for sponsoring the federation could not have been revealed.
Most think the woe the Diaspora has been experiencing since the ESFNA Executive Committee reversed the vote against in favor of Judge Birtukan's invitation is worthy of its outcomes because it led into:
1. Uniting the Diaspora during the struggle to restore the ESFNA board of directors' vote approving the Judge invitation.
2. Sparking off the Diaspora to spontaneously and methodically engage in the affairs of the ESFNA which led into uncovering so many things, including lack of effectiveness, transparency, and accountability in the management of the federation.
3. Rejecting the old ways of running the ESFNA. And encouraging the federation fans to speak loudly against the status quo of their organization.
4. Creating ground for those who got fed up by the incompetency of the ESFNA to deliver a competitor of the federation, the Ethiopian Heritage Society of North America.
5. Exposing the Sheikh drive for sponsoring the ESFNA, and forcing him to lift the yoke he placed on the shoulders of the federation.
Though most of the shortcoming of the ESFNA are revealed, recommendations for improvement are provided, and the Sheikh may no longer able to use the money he snatches from the throats of the starving Ethiopian children to keep making the federation unproductive, the organization survival hangs on the resolve of its board members, including to change their culture, to be transparent, to reform, and to rebrand the federation. Not taking advantage of their present predicament to transform their organization to be ready to ably compete might amount to nailing the last nail on its coffin.
Before I finish, adding to what I pointed above, the ESFNA is in a perilous position, between the devil and the deep blue sea. For instance: First, the legal action the Sheikh initiated against the ESFNA indicates his attempt to make the federation pay his way out of the organization. Second, teamwork between the board of directors and the Executive Committee members is not there anymore; some board members make a joke about lack of teamwork among them by saying we are good only for eating together but not for working in concert. Third, thrust among the Executive Committee members is at its lowest level in the organization history. Forth, confidential email exchanges and correspondence among the nine executive committee members, including privileged and confidential attorney client communications are being leaked to the Ethiopia First website editor, a henchman of the EPRDF. The leaked documents can be found on www.ethiopiafirst.com. Fifth, most of the Executive Committee members are about to finish their term. At the end of the year, they will step down from their posts.
Those who have stake in the federation must beware of a fact that nearly all outgoing members of an organization do not pay due attention about developing issues of their organization especially when they are about to leave during a turmoil as the one the ESFNA is engulfed by. So, you all must question whether the legal case regarding the $240k the Sheikh is trying to reclaim is handled by those who firmly guard your self-interest.
The writer who is responsible for this article can be reached at email@example.com


text:
WESTPORT - A man and woman from Rhode Island were killed, and two people from Bridgeport were hurt today in an early morning accident on I-95 in Westport.
Fairfield fire officials say the car was heading northbound on I-95 when it left the road just after 3 a.m. It then rolled over the guardrail, and fell 100 feet down an embankment. Two people, 32-year-old Jamain Jerry Allen and 27-year-old Jennifer Shaver, were treated for injuries. A 46-year-old man and 25-year-old woman were both pronounced dead at the scene.
State police are investigating the accident, and it is not known if alcohol played a factor.


text:
"Even though the U.S. spends twice as much per person as any other developed country on health care, the U.S. is the only developed country that fails to provide universal coverage for all its citizens."
Related quotes
"You can't usually fall twice and still make an Olympic team. Until I went down, though, I'd been doing very well. I just told myself that one mistake probably wouldn't beat me."
"A person with a hundred interests is twice as alive as one with only fifty and four times as alive as the man who has only twenty-five"
"Yea, though he live a thousand years twice told, yet hath he seen no good: do not all go to one place? / All the labour of man is for his mouth, and yet the appetite is not filled."


text: Firefox 3.5.7 Update Addresses Stability Issue, Tweaks How Updates WorkAdam Pash1/05/10 3:45pmFiled to: UpdatesFirefoxFirefox 3.5.7Firefox 3.5Web browsersDownloadsin brief41EditPromoteShare to KinjaToggle Conversation toolsGo to permalink Firefox users, expect your browser to prompt you with a minor update sometime in the next day or so; Mozilla has just released Firefox 3.5.7, a tiny update addressing a common stability issue and changing the way major updates are presented to users. (Apparently the migration of users from 3.0 to 3.5 has been less than expected.) If you don't feel like waiting for your browser to auto-update, you can head straight to the download page to grab the latest. [Mozilla Firefox]Gear from Kinja DealsBestsellers: Haribo Gummi Bears, 5-Pound BagKoogeek's Affordable Smart Plug Speaks Siri's LanguageThe Best Value In Chef's Knives Is Just $28 TodayReply41 repliesLeave a reply


text:
Login/Create Account
Check Out the new Remax App
Ask About This Home
Gorgeous Newly Updated Lakefront Home with almost 2,400 square feet of Living Space, 4 Bedrooms, 2.5 Bathrooms, Living Room, Dining Room, Large Kitchen and a Spacious Family Room. The interior features New Carpet, Updated Wood Laminate Flooring, New Paint, Wood Cabinets, New Water Heater in 2014, New AC system in 2010, Wainscoting and Decorative Wood Trim Work. The Master Suite has Vaulted Ceilings, Lake Views, Walk-In Closet; along with an updated Master Bath that has a Fully Tiled Walk-In Shower including beautiful Glass Tile border & Built-in Shelves, Tile Floors on a Diagonal, Dual Sinks and Garden Tub. The exterior features New Exterior Paint, Extended Screened Lanai with New Screens, Lush Landscaping and a Large Backyard overlooking the Lake. Gateway features a community pool, parks, volleyball courts, basketball court, soccer fields, dog park, 15 miles of bike and jogging paths, and private memberships available at the Gateway Golf & Country Club.


text:
Home /
Our Sources / About Us
/ FAQs /
Advanced Search
Not what you're
looking for? Try an advanced search.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
July 10, 2012
SOLOMON PERCY TEMPLE, PETITIONER,v.G.D. LEWIS, RESPONDENT.
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has requested that the court appoint counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). The court may appoint counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing § 2254 Cases. Petitioner claims that he is "[u]nable to read, write or comprehend complex legal issues" because of a disability.*fn1 Dckt. No. 10. The claims in the petition are typical of those that arise in habeas proceedings and are not especially complex. Even assuming that petitioner is somewhat mentally impaired, the court does not find that the interests of justice would be served by the appointment of counsel at this stage of the proceedings.
Accordingly, it is hereby ORDERED that petitioner's June 28, 2012 request for appointment of counsel is denied without prejudice.
Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
LRC, Inc. About Us


text:
Tri County Childrens Advocacy
287 N Tallassee St Dadeville, Alabama 36853(256) 825-0094
Print | Save | Directions
AboutTri County Childrens Advocacy is located at the address 287 N Tallassee St in Dadeville, Alabama 36853. They can be contacted via phone at (256) 825-0094 for pricing, hours and directions.
Tri County Childrens Advocacy has an annual sales volume of 0 - 500K. .For more information contact Timothy Birt, Executive Director
Tri County Childrens Advocacy provides Charity Services, Resource Center, Medication Management to it's customers. For maps and directions to Tri County Childrens Advocacy view the map to the right. For reviews of Tri County Childrens Advocacy see below.
Business Features
- Pain Management , Tax-Deductible Donations , Resource Center , Mental Health Services , Vocational Services , Medication Management , Charity Services , Home Health Care , Athletic Services , Self-Help Information
People Also Viewed
Community Action
City Hl Dadeville, Alabama 36853
You must Sign in to post reviews.
0 Reviews
Key Contacts
- Timothy Birt
- Phone: (256) 825-0094


text:
*This item is not regularly stocked or displayed in our Showroom, however it may be Special Ordered for you.
Item Availability is subject to Manufacturer Drop or Discontinuation & Price may vary according to fabric grade selected. Please stop in or click Request More Info for additional details.
Why not show our Low Price?Rotmans sets our own prices on our TV & Electronics items, however some manufacturers have restrictions on how we may display the prices of their products. Since our price is frequently lower than their suggested retail price, they may not allow us to show you our Low Price until you place the item in your shopping cart. Adding this item to your cart does not require you to purchase it & you can easily remove it from your cart should you decide not to purchase.
This traditional styled loveseat will decor homes with a fresh furniture fashion that is all about classic design and sophisticated elegance. Flaunting decorative rolled arms and exposed wood accent trim, this loveseat complements its coordinating collection as well as existing traditional furniture items. Created in a two over two cushion style, this small sofa is crafted for comfort using an eco-friendly furniture foam that provides relaxation and reduces global warming emissions. Made from an environmentally friendly polyol that is derived from soy beans and castor beans, this enhanced foam requires up to 60 percent less fossil fuel resources than its petroleum-based counterparts. Complete with an elegant silhouette crafted in formal furniture fashion, this traditional loveseat makes a decorative living room addition.
The 7400 Classic Styled Loveseat with Traditional Wood Face Accent by Serta Upholstery from Rotmans. We proudly serve the Worcester, Boston, MA, Providence, RI, and New England area. Product availability may vary. Contact us for the most current availability on this product.
This traditional upholstered living room collection is comprised of a loveseat, sofa and (un-pictured) chair, the three main pieces used to decor rooms with a fine furnished comfort. Crafted after the classics for traditional furniture design, each piece in this collection features elegant rolled arms and romantic wood-face with plush padded cushions for an exceptional upholstered comfort. Made for relaxation with eco-friendly practices, the foam used in this collection's cushions is made with environmentally-friendly polyol that is derived from soy beans and castor beans, requiring up to 60 percent less fossil fuel resources than petroleum-based polyols and reducing global warming emissions by 36 percent. Beautiful as a collection as well as eclectic furniture pieces, the traditional sofa, traditional loveseat and traditional chair in this collection will provide a stylish and comfortable design through eco-friendly furniture methods.
The 7400 collection is a great option if you are looking for Traditional furniture in the Worcester, Boston, MA, Providence, RI, and New England area.
These images are representative of this group as a whole and may differ from this item.
Browse other items in the 7400 collection from Rotmans in the Worcester, Boston, MA, Providence, RI, and New England area.
This item has been tagged as: Loveseat, Love Seats, Reclining Love Seat, Sofa Love Seat, Loveseat Recliner, Love Seat Sleepers, Loveseat Glider, Small Love Seat, Love Seat Hide-A-Bed, Love Seat Chaise, Modular Sectional Pieces, Couch, Small Couch, Sofa, Small Sofa, Settee, Divan, Davenport, Couches, Seating for Two, Double Chair, Settee for Two People
Nothing on this page may be copied or reproduced without explicit permission.
Drag anItem Here
To start a new blank room plan, enter the desired room dimensions below and click Create Room.
To request a new password, enter your username or e-mail address and click submit. A new password will automatically be emailed to you.
If you are still having trouble logging on after receiving your new password, please email firstname.lastname@example.com


text:
Home /
Our Sources / About Us
/ FAQs /
Advanced Search
Not what you're
looking for? Try an advanced search.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
decided: October 7, 1988.
BRIAN CAMBRIDGE, PETITIONER-APPELLANT,v.JACK DUCKWORTH AND LINLEY E. PEARSON, RESPONDENTS-APPELLEES
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. S 84-0702 -- Allen Sharp, Judge.
Cummings, Ripple, and Manion, Circuit Judges.
MANION, Circuit Judge.
Brian ("Benny") Cambridge appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm.
In the early morning hours of June 17, 1979, Cambridge returned home to the Indianapolis, Indiana apartment he shared with Robin Jackson. Jackson was in bed feigning sleep until she opened her eyes and saw Cambridge standing by the bed. Cambridge proceeded to pin Jackson to the bed and asked her about some cigarette butts in the apartment and where she had been that night. They argued. Cambridge accused Jackson of lying and said, "I'm going to kill you." Still pinning Jackson to the bed, Cambridge reached across the bed, pulled out a gun, and pointed it at her head. Jackson turned her head and Cambridge shot her. Jackson was extremely fortunate. The bullet entered her forehead, traveled about an inch, and exited at her hairline. Jackson got away from Cambridge and locked herself in the bathroom. Cambridge left the apartment.
Cambridge then returned, telling Jackson, "Baby, I didn't mean to hurt you . . . Please, don't send me back to jail. . . . listen to me, I hid the gun . . . This is what we [are] going to tell them, somebody was trying to come in and rob through the bathroom. . . ." Cambridge took an ashtray and broke a window to make it appear that a burglar had entered the apartment. Cambridge then told Jackson that he would take her to the hospital. A police officer arrived as they were leaving the apartment. He questioned Jackson and Cambridge. Jackson told the officer Cambridge shot her. Cambridge repeated his story about a burglar. The officer arrested Cambridge. At the scene, the police found the broken window and pieces of broken glass on the ground outside the window.
The State charged Cambridge with attempted murder. Following plea negotiations, the State agreed to drop the attempted murder charge in return for a guilty plea to battery. The State agreed to recommend an eight-year determinate sentence. Cambridge signed the agreement. Cambridge's attorney subsequently moved to withdraw the guilty plea and withdraw from the case. He stated that Cambridge had signed the plea agreement "reluctantly" and that Jackson had visited Cambridge in jail and "allegedly told [Cambridge] that this whole case was a misunderstanding, that she did not want him to plead guilty, and that she was leaving the state and would not prosecute." The court then appointed Cambridge a new defense attorney and granted him leave to withdraw his guilty plea.
The State recharged Cambridge with attempted murder and a jury trial was held on June 9, 1980. Robin Jackson was the chief prosecution witness. Cambridge did not testify in his own defense, but rather relied upon a defense strategy of trying to create reasonable doubt about the government's case. This strategy focused primarily on attempting to discredit Robin Jackson's testimony by attempting to show that her testimony about the shooting was inconsistent with the fact that she had kept in contact with Cambridge and had visited him while he was in prison. On cross-examination, Cambridge's attorney asked Jackson how she had obtained permission to visit Cambridge and the following colloquy took place:
Q. I'm asking you if you had any special permission?
A. Yes.
Q. And, you had to do that on your own, that wasn't something Brian Cambridge could have done for you, is it?
A. No, he couldn't do it for me, but as I was trying to say, the Court case was supposed to be over, Benny had signed a Guilty Plea; and that was the only time I went down there to find out about my diamond--.
Mr. Hollander: Your honor, I would ask for the witness' statement to be struck, and ask for a mistrial, it was an answer unresponsive to the question, and elicited information not requested.
Court: We'll grant the Motion to strike the witness' answer as not responsive to the question, and the Jury is instructed to disregard the last answer; Motion for Mistrial, overruled. You may proceed.
Cambridge's attorney subsequently introduced a letter that Jackson had written to Cambridge after her visit. The letter referred to the fact that Jackson had moved to New York and was having an affair with a married man who apparently was footing Jackson's bills. The letter stated that, "You see my friend is worried about what's going to happen if you got out. I told him nothing but I guess he feels a lack of security being that I turned him down before for you." During the course of his questioning on this matter and the jail visit, Jackson referred to Cambridge's guilty plea on two more occasions. Cambridge did not move to strike Jackson's testimony from the record or move the trial court to instruct Jackson to avoid referring to the guilty plea. In fact, Cambridge's counsel thereafter mentioned the guilty plea in his questions to Jackson.
The jury was instructed on attempted murder, battery, and criminal recklessness. The jury found Cambridge guilty of attempted murder and the court sentenced Cambridge to thirty years in prison. Cambridge appealed his conviction to the Supreme Court of Indiana, claiming that the trial court committed reversible error by denying his motion for mistrial after Jackson referred to his guilty plea. The court affirmed the conviction. Cambridge v. State (" Cambridge I "), 428 N.E.2d 1252 (Ind. 1981). Cambridge brought the same issue before the Supreme Court of Indiana on appeal of the denial of a petition for post-conviction relief. The court ruled against Cambridge on this issue on the ground that the issue had already been decided against Cambridge on his direct appeal. Cambridge v. State (" Cambridge II "), 468 N.E.2d 1047, 1049 (Ind. 1984). In addition, Cambridge also claimed that Jackson's subsequent, unobjected-to references to Cambridge's guilty plea also warranted overturning his conviction. The court held that any arguments regarding Jackson's unobjected-to references to the guilty plea were waived by Cambridge's failure to raise them on his direct appeal. Id. Cambridge then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Indiana. The district court denied the petition and this appeal followed.
A. Jackson's Original Reference To The Guilty Plea.
Cambridge contends that Jackson's original reference to his guilty plea violated his Fourteenth Amendment due process right to a fair trial even though the trial court struck the testimony from the record and admonished the jury to disregard it. Cambridge first argues that it is fundamentally unfair for the State to derive the benefits from a criminal defendant's withdrawn guilty plea while depriving him of what he bargained for in exchange, a lighter prison sentence. See, e.g., State v. Reardon, 245 Minn. 509 , 73 N.W.2d 192 (1955) (prosecutor's statement about defendant's withdrawn guilty plea deprived defendant of due process right to fair trial); Ely v. Haugh, 172 N.W.2d 144 (Iowa 1969) (admission of withdrawn guilty plea into evidence violated defendant's due process right to a fair trial). Cambridge argues that it is particularly unfair to allow the prosecution to use a withdrawn guilty plea against a criminal defendant where, as in Indiana, state law expressly provides that withdrawn plea agreements and statements made in plea negotiations are inadmissible at trial. See Ind. Code § 35-35-3-4 (1986).*fn1 According to Cambridge, an important condition of his plea agreement, and the negotiations leading up to the agreement, was that his guilty plea would not be used against him if the agreement was not consummated. The trial court's denial of his motion for mistrial after Jackson mentioned his guilty plea, Cambridge contends, violated this implicit condition under which his plea was negotiated and then later withdrawn.
Had the prosecution mentioned Cambridge's plea agreement or had the trial court admitted the plea into evidence, Cambridge's argument concerning the fundamental unfairness of altering the conditions under which he agreed to plead guilty would carry considerable force. But this is simply not a case where the State lured Cambridge into a disadvantageous position and then pulled the rug out from underneath him. See, e.g., Wainwright v. Greenfield, 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634 (1986) (holding that it is fundamentally unfair to use post-Miranda warning silence against a criminal defendant because Miranda warnings carry an implicit assurance that the exercise of those rights will not be used against a defendant). Nor did the State violate any express or implied agreement with Cambridge. See, e.g., Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971) (due process requires prosecutors to fulfill promises made in connection with a plea bargain). The prosecution did not mention the plea or in any way attempt to elicit such information. It did not even come out in response to a question from the prosecution. There is simply nothing in the record to indicate that Jackson's mention of the guilty plea was anything more than an inadvertent response from a lay witness unskilled in the rules of evidence. Moreover, upon request from defense counsel, the trial court promptly struck the response from the record and admonished the jury to disregard it. Under these circumstances, Cambridge has no basis to argue that the State treated him unfairly by attempting to retain the fruits of the plea agreement while depriving him of any of the benefits.
Although Cambridge phrases all his arguments in terms of his due process right to a fair trial, he also raises what is essentially a Fifth Amendment argument. According to Cambridge, his guilty plea constituted a conditional waiver of his Fifth Amendment privilege against compelled self-incrimination. Cambridge contends that when he withdrew his guilty plea he also withdrew his conditional waiver of the privilege against self-incrimination. Therefore, Cambridge argues, the trial court's denial of his mistrial motion violated his Fifth Amendment privilege against compelled self-incrimination.
In making this argument, Cambridge relies heavily upon the Supreme Court's decision in Kercheval v. United States, 274 U.S. 220, 71 L. Ed. 1009, 47 S. Ct. 582 (1927), where the Court held as a matter of federal evidence law that it was improper to admit a withdrawn guilty plea as evidence against a criminal defendant. In Kercheval, the defendant pleaded guilty and then subsequently moved to withdraw the plea on the ground that the government unfairly induced him to plead guilty. The trial court allowed the petitioner to withdraw his plea but subsequently permitted the prosecution to place a certified copy of the withdrawn guilty plea into evidence at the defendant's trial. The Court held that this was improper, reasoning that it was inherently inconsistent for the trial court to allow the plea to be withdrawn on the ground that there was some defect in the plea and then to breathe new life into the plea by allowing the government to introduce it as evidence against the defendant.*fn2 As the Court explained:
The effect of the court's order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. . . . As a practical matter, it could not be received as evidence without putting petitioner in a dilemma utterly inconsistent with the determination of the court awarding him a trial. Its introduction may have turned the scale against him.
274 U.S. at 224.
Although Kercheval was decided under the Supreme Court's supervisory power over the federal courts, several courts have relied upon its reasoning in holding that a state's use of a withdrawn guilty plea violated a criminal defendant's Fifth Amendment privilege against compelled self-incrimination. In Wood v. United States, 75 U.S. App. D.C. 274, 128 F.2d 265 (D.C. Cir. 1942), the court held that the admission of a guilty plea against criminal defendants who were unrepresented by counsel and not shown to have been aware of their rights, violated the defendants' privilege against compelled self-incrimination. While its holding rested on the fact that the pleas were not made knowingly and voluntarily, the court expressed broader Fifth Amendment concerns about the use of a withdrawn guilty plea against a criminal defendant. Judge (later Justice) Rutledge reasoned that a guilty plea is intended to waive trial and "has nothing to do with waiving immunity to giving testimony." Id. at 275. Because a plea is not testimonial or evidentiary in nature, a court has the right to compel a plea from an accused person in the sense that the accused person's silence will be construed as a plea of not guilty. Id. at 274. The fact that a plea must be entered, Judge Rutledge reasoned, should not then be misconstrued as a waiver of Fifth Amendment rights. As Judge Rutledge explained:
The matter may be tested as follows. It would seem beyond question that in the testimonial stage of trial the court, of its own motion or at the prosecutor's instance, could not call the defendant to the witness stand and compel him to answer directly or indirectly the question, "Are you guilty or not guilty?" Regardless of the nature of the answer, the court would have no right to confront him with such an inquiry. His privilege is to be free from being compelled to testify in his own case. It is to have no pressure from judicial power to speak his own guilt or innocence. The court could not force him to speak as a witness from the box. Yet in a roundabout way this would happen if the plea could be admitted in evidence. . . . We do not think the court can use its power to elicit the plea at one stage for one purpose and then abuse it by admitting the plea as "evidence" at another and for an entirely different purpose.
128 F.2d at 274. Judge Rutledge also reasoned that the admission of such evidence would place the impartiality of a trial court into question because it would be in the position of procuring evidence for the prosecution when taking the plea and would also be sitting in judgment of its own actions when the plea is presented as evidence at trial. Finally, Judge Rutledge stated that even if pleading guilty could be considered a waiver of the Fifth Amendment privilege against self-incrimination, the "withdrawal would nullify the waiver." Id. at 275.
Similarly, in United States ex rel. Spears v. Rundle, 268 F. Supp. 691 (E.D. Pa. 1967), aff'd, 405 F.2d 1037 (3d Cir. 1969), the court held that the admission of a withdrawn guilty plea that was not knowingly or voluntarily made violated a criminal defendant's privilege against self-incrimination. Like Wood, the court in Spears rested its holding upon narrow grounds but questioned the admissibility of withdrawn guilty pleas in a broader sense. The court questioned whether the mere act of pleading guilty could also be considered a waiver of the Fifth Amendment privilege against self-incrimination. Moreover, the court noted that admitting a withdrawn guilty plea into evidence could have a coercive effect upon a defendant by making him take the witness stand for the purpose of explaining why he made the plea or else "suffering the consequences of any adverse inferences that may be drawn." 268 F. Supp. at 699. Accord United States v. Albano, 414 F. Supp. 67, 69 (S.D.N.Y. 1976) (Fifth Amendment prohibits the use of incriminating statement that was incidental to defendant's withdrawn guilty plea).
Wood, Spears, and Albano all point out potential Fifth Amendment problems in connection with the admission of a withdrawn guilty plea as evidence even in cases where the guilty plea is not "compelled."*fn3 Those problems, however, are not present in this case. The State did not treat Cambridge's withdrawn guilty plea as a "waiver" of his Fifth Amendment privilege against compelled self-incrimination. It did just the opposite. As noted earlier, the prosecution did not attempt to place the plea before the jury and the trial court immediately struck Jackson's inadvertent response when requested to do so by defense counsel. Nor did the trial court or the prosecution place Cambridge in the position of being forced to choose between not testifying or explaining away a withdrawn guilty plea admitted into evidence against him. The trial court did not admit the plea into evidence.
Cambridge's constitutional argument really boils down to his contention that the mere mention of a withdrawn guilty plea is so damaging to a defendant's case that no curative instruction can possibly preserve a defendant's right to a fair trial. Cambridge does find support for this proposition in two decisions of the Illinois Court of Appeals that held that a witness' inadvertent reference to a defendant's withdrawn guilty plea denied a criminal defendant of his right to a fair trial under both the United States and Illinois constitutions. See People v. Bain, 10 Ill. App. 3d 909, 295 N.E.2d 295 (1973); People v. Haycraft, 76 Ill. App. 2d 149, 221 N.E.2d 317 (1966). although the potentially damaging effects of a guilty plea cannot be taken lightly, we do not find Bain or Haycraft to be persuasive authority to the extent that they set forth a per se ruling requiring mistrial any time a guilty plea is brought to the attention of the jury.
A jury is normally presumed to disregard inadmissible evidence brought to its attention unless there is an overwhelming probability that the jury will not follow the trial court's instructions and a strong likelihood that the inadmissible evidence was devastating to the defendant. See Greer v. Miller 483 U.S. 756, 107 S. Ct. 3102, 3109 n.8, 97 L. Ed. 2d 618 (1987). Consistent with Greer v. Miller, most courts have taken a case-by-case approach to determining whether the jury's exposure to a defendant's guilty plea warrants declaring a mistrial. See, e.g., United States v. Tesack, 538 F.2d 1068 (4th Cir.) (holding that any error caused by admission of evidence against a codefendant that referred to another defendant's guilty plea was harmless), cert. denied, 429 U.S. 1025, 97 S. Ct. 646, 50 L. Ed. 2d 627 (1976); United States v. Doamarel, 567 F. Supp. 254 (D. Del. 1983) (holding that even if the constitutional rights of a criminal defendant were violated by witness' inadvertent reference to defendant's withdrawn guilty plea, any error was harmless), aff'd, 729 F.2d 1449 (3d Cir.), cert. denied, 467 U.S. 1253, 104 S. Ct. 3539, 82 L. Ed. 2d 843 (1984). See generally Weinstein & Berger, Weinstein's Evidence para. 410[03] at 410-38 to 410-39 (1986) (while deliberate interjection of plea by prosecution or trial court "would seem to be incurable . . . automatic retrials should not be granted if in fact it is perfectly clear that disclosure was inadvertent and reference to the plea did not affect the verdicts").
In the present case, we do not believe that the jury was incapable of following the trial court's admonition to disregard Jackson's reference to the withdrawn guilty plea. As the Supreme Court of Indiana noted on Cambridge's first appeal, the reference to Cambridge's guilty plea was not brought to the jurors' attention by a prosecutor or other public official, such as a police officer, whose testimony might be given special weight by the jurors. More important, this is not a case where jurors were likely to use the guilty plea as a substitute for their own independent analysis of the facts. The prosecution's case was not built upon inferences derived from circumstantial evidence such that the jurors may have used the guilty plea to buttress inferences from the evidence. This case involved a single violent incident where the State's case was based upon the direct, eyewitness testimony of the victim. Jackson testified that Cambridge pinned her to the bed, told her that he was going to kill her, pointed the gun at her head, and then shot her. Jackson also testified that Cambridge contrived to make it appear that she was shot by a burglar. This testimony was essentially uncontradicted and fully consistent with the physical evidence. The jury saw Jackson's scar as well as photographs showing blood in the apartment, broken glass on the lawn outside a broken apartment window, and what appeared to be a broken ashtray inside the apartment window. The jury also heard the uncontradicted testimony of the police officer who arrived at the scene who stated that he found Jackson bleeding profusely from a head wound. He further testified that Jackson told him Cambridge had shot her while Cambridge told him that a burglar had broken into the apartment. Cambridge presented essentially no evidence to contradict these facts but rather tried to discredit Jackson's testimony because she communicated with Cambridge while he was in prison and because the man with whom she was romantically involved was concerned about an ex-boyfriend getting out of prison. Neither of these lines of attack placed a significant dent in Jackson's trial testimony, particularly since her trial testimony was fully consistent with the statements she made immediately after the shooting. Given the facts of this case, it is unlikely that the jury focused on the guilty plea rather than what went on in the apartment. In any event, these same facts make clear that even if the inadvertent reference to a guilty plea could by itself constitute a constitutional violation, any error was harmless beyond a reasonable doubt.
B. Jackson's Subsequent References To The Withdrawn Guilty Plea.
Cambridge also claims that his due process rights were violated by Jackson's subsequent references to his guilty plea. Cambridge did not, however, move to strike these subsequent references to the guilty plea. Moreover, on review of Cambridge's post-conviction petition, the Supreme Court of Indiana held that Cambridge waived any challenge to the subsequent references to his guilty plea by his failure to specifically raise the issue on his direct appeal. Cambridge II, 468 N.E.2d at 1049. Normally, procedural default in state court waives the issue for purposes of federal habeas corpus review unless the petitioner can show cause for the default and prejudice resulting from the default. See Buelow v. Dickey, 847 F.2d 420, 425 (7th Cir. 1988). A narrow exception to the "cause and prejudice" standard exists for cases where there is a "fundamental miscarriage of justice" in that a constitutional violation has probably resulted in the conviction of an innocent person. Id. at 427.
Cambridge argues that he had "cause" for his failure to object to Jackson's subsequent references to the plea because any such objection would have been futile. We disagree. Given that the trial court struck the original reference from the record and admonished the jury to disregard the answer, Cambridge can hardly contend that any subsequent request to admonish the jury (or the witness) would have been futile. While his failure to object at trial to the subsequent mention of the guilty plea did not bar his appeal concerning the original mention of the plea, he cannot bootstrap all subsequent references to the plea, including his own counsel's, under his original objection. To do so would give Cambridge the benefit of the objection, without giving the trial court or the prosecution the opportunity to cure any problem.*fn4 Moreover, Cambridge raises no argument on appeal as to why we should ignore the Supreme Court of Indiana's holding that Cambridge defaulted on his objections to the subsequent references by failing to raise any objections on his direct appeal. Because Cambridge fails to satisfy the "cause and prejudice" standard, he is only entitled to habeas corpus relief if the subsequent references to his plea resulted in a "miscarriage of justice." In view of our earlier holdings concerning Jackson's original reference to the withdrawn plea, we find no "miscarriage of justice" based on the subsequent references to the plea.
For the reasons stated above, the decision of the district court is
Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
LRC, Inc. About Us


text:
Phone: (289) 320-8250
1238 Dominion Road
Fort Erie, Ontario, L2A 1H7
To view our complete product offer in your area, we suggest you select this RONA.
At anytime you can select another RONA store or a RONA L'Entrepôt/ Home & Garden. The product selection listed will match the selected store.
Grey Deep FSE Gang Box 1 Gang PVCDeep FSE style gang box with 1 gang and made of PVC. The color is grey and box dimensions are 1 inch.


text:
Need a Food Sensitivity Test in Bloomsburg, PA? Simply order online 24/7 and get a fast, affordable Food Sensitivity Test at a lab near you (Find More Locations):
Why would I get the Food Sensitivity Test?
The Food Sensitivity Test checks for blood markers related to food sensitivity. People in Bloomsburg, PA order the Food Sensitivity Test for general screening or when experiencing specific symptoms.
How much does the Food Sensitivity Test cost?
Our Food Sensitivity Test price include the doctor's order that you need to get tested in Bloomsburg, PA, all lab fees and taxes, and a pdf copy of your results. For current prices, please CLICK HERE.
We are pleased to offer the Food Sensitivity Test in Bloomsburg, PA.
Food Sensitivity Test in other cities near Bloomsburg, PA:Aristes | Berwick | Catawissa | Danville | Elysburg | Light Street | Marion Heights | Mifflinville | Millville | Numidia | Orangeville | Riverside | Stillwater | Washingtonville | Wilburton
Limited Time Offer!
Save 5% on Your Order Today Only
Use Promo Code XTPUDSKLC
Offer Expires in


text:
BELLEVILLE - The Essex County Prosecutor's Office says a man found dead yesterday in Belleville was murdered. The body of 23-year-old Daniel Mejia was found in a Belleville parking lot yesterday morning, blocks away from his home in Newark.
Authorities say today's autopsy revealed that Mejia suffered a gunshot wound to the head. It's still not known why he was killed.No arrests have been made.
Police: Newark father found dead in parking lot


text:
Estimation of volatile organic compound emissions for Europe using data assimilation
Atmospheric Chemistry and Physics (2013)
- DOI: 10.5194/acp-13-5887-2013
Readership Statistics
10 Readers on Mendeley
by Discipline
50% Earth and Planetary Sciences
20% Engineering
20% Environmental Science
by Academic Status
30% Researcher
30% Student > Ph. D. Student
20% Student > Doctoral Student
Sign up today - FREE
Mendeley saves you time finding and organizing research. Learn more
- All your research in one place
- Add and import papers easily
- Access it anywhere, anytime
Start using Mendeley in seconds!
Sign up & Download
Already have an account? Sign in


text:
On Second Thought is a one-hour, daily news talk show that airs at 9 a.m. ET weekdays.
Relive the misadventures of headstrong orphan Anne Shirley with our marathon of the family classic "Anne of Green Gables." Sunday, December 11 at 2 PM.
The GHSA state championships for football are right around the corner. There are 16 teams left on the road to the Georgia Dome and by late Saturday night all eight champions for 2016 will be... MORE
GPB Passport is the new member benefit that provides you with extended access to an on-demand library of quality local and national public television programming, including tens of thousands of hours of your favorite programs.
Mon., September 17, 2012 5:44am
Drive-By Shooting On I-85
Police in College Park say someone fired from one car into another car on Interstate 85, killing one person and wounding another.
Full Story


text:
Fighters step on the scales for the UFC 201 early weigh-ins watch video >>
Fighters hit the scales early for the UFC Fight Night 92 early weigh-ins watch video >>
Anthony Pettis focused on a title run in the UFC's featherweight division watch video >>
The UFC 196 weigh-ins at the MGM Grand Garden Arena were the last chance for Diaz and McGregor to spar with words, gestures and posturing before they meet in the cage in a last-minute welterweight bo watch video >>
Does Conor McGregor have a say in how much promotion he does for the UFC? Fighters weigh in watch video >>
Aljamain Sterling and Bryan Caraway weren't so sweet to each other at the UFC Fight Night 88 weigh-ins watch video >>
Fighters from the UFC 199 card weigh in from Los Angeles watch video >>
Fighters from Saturday's UFC 204 event in Manchester, England, hit the scales to make their fights official. watch video >>
Take a look back at the road Ronda Rousey's career took in the UFC leading up to the latest shot at a title at UFC 207 watch video >>
Michael Bisping and Dan Henderson face off for fans at the UFC 204 ceremonial weigh-ins watch video >>


text:
Opening notes are very surprising and incorporate cara cara orange, spicy cardamom, ambrette seed and apple. Strong middle notes carry the scent of jasmine, neroli, ozone and pink peppercorn. Drydown is built around California Palo Verde and sandalwood. Palo Vedre is a dark and mysterious tree growing in California and its thorns and blue-green branches served as inspiration to the perfumer to add exclusive, precious aromas to the fragrance.
A fantastic masculine fragrance that brings out notes of jasmine.
|Company Name
|123 Hair And Beauty
|Shop Name
|123 Hair And Beauty
|Shop Address
|Mickledore Coach House BB4 8RS Rawtentstall
|Shop Phone Number
|Shop Email Address