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FIFTH DIVISION
October 16, 1998
Nos. 1-97-3288 and 1-97-3289 (consolidated)
HANS MENG and KLAUS A. WIESKE, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County
)
v. ) No. 97 L 2282
)
MAYWOOD PROVISO STATE BANK, and )
FIRST SECURITY TRUST AND SAVINGS BANK,)
)
Defendants-Appellees, )
)
)
(GREATER ILLINOIS TITLE INSURANCE )
COMPANY, ) Honorable
) Kenneth L. Gillis,
Defendant) ) Judge Presiding
HANS MENG and KLAUS A. WIESKE, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County
)
v. ) No. 96 L 5971
)
ALBANY BANK AND TRUST COMPANY, N.A., )
a/k/a Albank, ) Honorable
) Kenneth L. Gillis,
Defendant-Appellee. ) Judge Presiding.
JUSTICE GREIMAN delivered the opinion of the court:
Plaintiffs Hans Meng and Klaus A. Wieske purchased three cashier's checks from defendant Albany Bank & Trust Company, N.A., a/k/a Albank (Albank), which subsequently were honored by three separate institutions (defendants Maywood Proviso State Bank, First Security Trust & Savings Bank, and Greater Illinois Title Insurance Company
(footnote: 1)). Plaintiffs made two of the cashier's checks payable to John Parolin and David Kelly, who is a fictional person. The third cashier's check was payable to one of the plaintiffs, who specially indorsed it to Parolin and the fictitious Kelly. Parolin indorsed each cashier's check with his name and the name of Kelly, cashed the checks and absconded with the funds.
Plaintiffs first filed a complaint against Albank, asserting a breach of contract claim. Upon
the trial court's granting summary judgment in favor of the bank, plaintiffs filed a complaint against the three institutions that separately honored the cashier's checks, which was dismissed by the trial court for failure to state a cause of action.
This consolidated appeal raises three issues: (1) whether the fictitious payee rule codified in section 3--404(b)(ii) of the Uniform Commercial Code (Code) (810 ILCS 5/3--404(b)(ii) (West 1994)) precludes plaintiffs' breach of contract claim against the bank (Albank) that issued the cashier's checks; (2) whether a cashier's check that names two payees, absent any instructions as to whether they are joint payees or alternate payees, constitutes an ambiguous instrument, which is deemed to be payable in the alternative under section 3--110(d) of the Code (810 ILCS 5/3--110(d) (West 1994)); and (3) whether plaintiffs' negligence claim against the institutions that honored the cashier's checks is precluded under section 3--404(d) of the Code (810 ILCS 5/3--404(d) (West 1994)). We answer each issue in the affirmative and, thus, affirm both orders from the trial court.
In 1995, plaintiffs wanted to purchase a building located at 712 West Diversey in Chicago, Illinois. The building was in foreclosure and a federal government agency (United States Department of Housing and Urban Development (HUD)) held the mortgage. To accomplish the purchase, plaintiffs retained John F. Parolin, an attorney who has since been disbarred. Parolin advised plaintiffs that, before HUD would consider plaintiffs as a potential purchaser, plaintiffs were required to establish a fund in the amount of the purchase price by obtaining cashier's checks. Parolin further advised plaintiffs that the cashier's checks must be made payable to himself and David L. Kelly, an alleged HUD employee who was authorized to make the sale. In fact, David L. Kelly does not, and never did, exist. David L. Kelly is a fictional person.
Plaintiffs purchased the following three cashier's checks from Albank, totaling $712,500: (1) $350,000; payable to Klaus Wieske; dated March 1, 1995; check no. 404885; (2) $125,000; payable to David L. Kelly and John Parolin; dated May 24, 1995; check no. 407067; and (3) $237,500; payable to David L. Kelly and John F. Parolin; dated June 26, 1995; check no. 410255.
Plaintiffs delivered each check to Parolin.
The first check was specially indorsed by Klaus Wieske in the following manner:
[INSERT SCAN OF CHECK INDORSEMENT]
All three cashier's checks were cashed by Parolin at defendants Maywood Proviso State Bank (check No. 1), First Security Trust & Savings Bank (check No. 2), and Greater Illinois Title Insurance Company (check No. 3), respectively. When cashed, each check bore the signatures of both Parolin and Kelly, the fictional person. Upon presentment, Albank made payment on the three checks.
Appeal No. 1--97--3289 (Albank)
On May 24, 1996, plaintiffs filed a complaint against Albank, alleging that Albank breached a contract with plaintiffs by making payment on the cashier's checks without the endorsement of David L. Kelly. Plaintiffs alleged that the cashier's checks were issued by Albank with the agreement that the checks had to be endorsed by both Parolin and Kelly, as payees, before Albank would make payment on the checks. Plaintiffs further alleged that Kelly never endorsed the checks and that Parolin forged the endorsement of Kelly. Thus, plaintiffs contended that "the payment of the checks without the endorsement of David L. Kelly was a breach of the contract between the Plaintiffs and" Albank.
On December 9, 1996, Albank filed a motion for summary judgment, asserting that it had paid the cashier's checks in the ordinary course of business, in good faith and without knowledge that Kelly was a fictitious payee. To its motion, Albank attached an affidavit from the personnel assistant at HUD in the Chicago regional office, who attested that no one by the name of David Kelly or David L. Kelly was employed by HUD in the entire United States during the time period 1994 through 1996. Albank contended, and the trial court agreed, that the fictitious payee rule completely absolves a bank from any liability for payment over a forged indorsement.
On February 5, 1997, the trial court entered summary judgment in favor of Albank, finding that Albank was only the nominal drawer of the subject cashier's checks, that plaintiffs were the drawers of the checks, and that Albank properly paid the disputed items pursuant to the Code (810 ILCS 5/3--404(b)(ii) (West 1994)). On August 4, 1997, the trial court denied plaintiff's motion to reconsider the summary judgment for Albank.
Appeal No. 1--97--3288 (Maywood Bank)
On February 26, 1997, plaintiffs filed a complaint against the three defendant institutions that cashed the three cashier's checks, alleging that defendant institutions failed to exercise ordinary care in paying or taking the instrument under section 3-
-404(d) of the Code (810 ILCS 5/3--404(d) (West 1994)). Both Maywood and First Security filed section 2--615 motions to dismiss (735 ILCS 5/2--615 (West 1996)), for failure to state causes of action based on the Code.
On August 6, 1997, the trial court dismissed plaintiffs' complaint with prejudice as to all three named defendants. Regarding the dismissal motions filed by Maywood and First Security, the trial court specifically found that plaintiffs' complaint failed to state a claim for breach of warranty under the Code (810 ILCS 5/3--416, 3--417, 4--207, 4--208 (West 1994)) and, even if ordinary care was not exercised, the failure could not have, as a matter law, "substantially contribute[d] to loss resulting from payment of the instrument" under section 3--404(d) of the Code (810 ILCS 5/3--404(d) (West 1994)). In addition, the trial court found that the endorsement of Parolin alone sufficed to make the check negotiable because the cashier's check was alternatively payable to Parolin or Kelly under section 3--110(d) of Code (810 ILCS 5/3--110(d) (West 1994)).
The first issue on appeal is whether the fictitious payee provision in the Code bars plaintiffs' breach of contract claim against the bank (Albank) that issued and subsequently paid the cashier's checks upon presentment. We apply a
de
novo
standard of review to summary judgment rulings.
Outboard Marine Corp. v. Liberty Mutual Insurance Co.
, 154 Ill. 2d 90, 102 (1992). Moreover, where no factual issues are raised on appeal, the sole question on review is whether the trial court's entry of summary judgment is proper as a matter of law.
McNamee v. State of Illinois
, 173 Ill. 2d 433, 438 (1996).
Plaintiffs assert that the issuer of a cashier's check (
i.e.
, Albank) is obligated under an implied contract to pay the payees (Parolin and Kelly) named by the remitter (plaintiffs) on the checks or to return the checks to the remitter. Plaintiffs argue that the Code does not effectively deal with the rights and obligations of the remitter of a cashier's check in relation to the issuer.
We agree with plaintiffs that an enforceable contract arises when a cashier's check is purchased and the contract calls for the issuing bank to pay the instrument according to its terms.
Lassen v. First Bank Eden Prairie
,
514 N.W.2d 831, 836 (Minn. Ct. App. 1994) (and cases cited therein). The implied contract is the issuing bank's promise to pay the cashier's check to the named payee only.
Lewis v. Telephone Employees Credit Union
, 87 F.3d 1537, 1546 (9th Cir. 1996). The Code, in fact, authorizes the use of contract or equity claims where the Code does not cover a particular topic or transaction. Section 1--103 expressly provides that "[u]nless displaced by the particular provisions of this Act, the principles of law and equity *** shall supplement its provisions." 810 ILCS 5/1--103 (West 1994).
Under the facts of the present case, however, we disagree with plaintiffs' contention that the Code does not deal with the relationship between the issuing bank and the remitter of a cashier's check. The dispositive fact in the present case is that the cashier's checks bore the forged signature of a fictitious payee, David Kelly. The Code specifically addresses the situation involving such a payee.
Section 3--404 of the Code is entitled "Impostors-Fictitious payees." Section 3--404(b)(ii), in relevant part, is as follows:
"(b) If *** (ii) the person identified as payee of an instrument is a fictitious person, the following
rules apply until the instrument is negotiated by
special indorsement:
(1) Any person in possession of the
instrument is its holder.
(2) An indorsement by any person in the name
of the payee stated in the instrument is
effective as the indorsement of the payee in
favor of a person who in good faith, pays the
instrument or takes it for value or for
collection." 810 ILCS 5/3--404(b) (West 1994).
This particular provision is the Illinois codification of the fictitious payee rule. It became effective in 1992, when it was revised and renumbered from section 3--405. 810 ILCS Ann. 5/3--
404, Uniform Commercial Code Comment, at 209 (Smith-Hurd 1993).
As specifically stated in section 3--404(b)(ii) of the Code, where a named payee is a fictitious person, then the "indorsement by any person in the name of the payee *** is effective as the indorsement of the payee." 810 ILCS 5/3--404(b)(ii) (West 1994). A forged indorsement of a fictional payee is an exception to the general rule that places liability on a bank that pays over a forged endorsement. See
In re Ostrom-Martin, Inc.
, 188 B.R. 245, 250 (Bankr. C.D. Ill. 1995).
The statutory fictitious payee rule relieves a bank from liability for honoring a check bearing the forged indorsement of a fictional payee by deeming the forged indorsement to be effective. 810 ILCS 5/3--404 (West 1994). The drawer of the checks in such a scenario suffers the loss because the drawer is in the best position to avoid the loss. The Uniform Commercial Code Comment to section 3--404 specifically explains this rationale:
"If a check payable to an impostor, fictitious
payee *** is paid, the effect of subsections (a) and
(b) is to place that loss on the drawer of the check
rather than on the drawee or the Depositary Bank that
took the check for collection. ***[F]raud is almost
always involved in cases governed by subsection (b).
The drawer is in the best position to avoid the fraud
and thus should take the loss." (810 ILCS Ann. 5/3--
404, Uniform Commercial Code Comment, at 211 (Smith-
Hurd 1993).
Plaintiffs direct attention to the
Lassen
case, which is factually distinguishable from the instant case because
Lassen
did not involve a fictitious payee. The issuing bank in
Lassen
breached its contract with the purchasers of the cashier's checks because it did not pay the cashier's checks in accordance with its terms, which provided that the checks were payable to two joint copayees. The issuing bank erroneously honored the checks on the endorsement of only one copayee.
Lassen
, 514 N.W.2d at 836. In contrast, the issuing bank in the present case (Albank) fulfilled its contract with plaintiffs because the cashier's checks were made payable to two copayees and, indeed, contained the endorsements of the two named copayees (Parolin and Kelly). In all other respects, the
Lassen
decision accords with our findings.
A case more on point is
Lewis
, which involved cashier's checks and fictitious payees.
Lewis
, 87 F.3d 1537. In
Lewis
, two elderly women were separately swindled out of hundreds of thousands of dollars by fraud artists who persuaded the victims to write numerous checks for the alleged purpose of investment in valuable coins and gems. The victims prepared numerous checks in the form of personal, teller's and cashier's checks. The victims sued various banks that had sold, collected or paid the checks.
Lewis
, 87 F.3d at 1542.
For the banks that had issued the cashier's check to fictitious payees, the
Lewis
court applied the fictitious payee rule, which was then codified under section 3--405, the former imposter provision, and held that the complaint could not state a claim upon which relief could be granted.
Lewis
, 87 F.3d at 1545. The court found that banks that sell cashier's checks are both the drawer and drawee of the checks.
Lewis
, 87 F.3d at 1546; accord
Lassen
, 514 N.W.2d at 836. The purchasers of the cashier's checks are the drawers.
Lewis
, 87 F.3d at 1548. Under the language and policy of the impostor provision, the forged signatures of the payees are considered effective and "the drawer bears the loss from the check because the drawer was the party most directly duped by the imposter and the party in the best position to avoid the loss."
Lewis
, 87 F.3d at 1550.
We find the
Lewis
decision persuasive and in accord with the language and policy of section 3--404(b)(ii) of the Code in Illinois. A forged indorsement of a fictional payee invokes the fictitious payee rule and places the loss on the drawer of a cashier's check, not the issuing bank. Thus, we find that summary judgment in favor of Albank was proper.
We further observe that to the extent plaintiffs rely on the 1931 case of
United States Cold Storage Co. v. Central Manufacturing District Bank
, 343 Ill. 503 (1931), such reliance is misplaced. As noted in two subsequent decisions, the holding in
Cold Storage Co.
was rejected by the legislature when it amended the then-existing negotiable instrument law in 1931. See
People v. Dauphin
, 53 Ill. App. 2d 433 (1964);
Houghton Mifflin Co. v. Continental Illinois National Bank & Trust Co.
, 293 Ill. App. 423 (1938).
Second, plaintiffs assert that there was no ambiguity to invoke the alternative payee method of payment in the cashier's check that was made payable to Klaus Wieske who, in turn, specially indorsed the back of the check as follows:
"EARNEST MONEY FOR 712 DIVERSEY
Pay to the order of:
John F. Parolin
David L. Kelly
Klaus A. Wieske [signature]
David L. Kelly [signature]
John F. Parolin [signature]."
Plaintiffs argue that the form of this indorsement is not ambiguous but rather requires that the cashier's check be paid jointly, not in the alternative, under section 3--110 of the Code (810 ILCS 5/3--110(d) (West 1994)). We disagree.
Section 3--110(d) of the Code governs how to identify the person to whom an instrument is payable and provides for multiple payees as follows:
"(d) If an instrument is payable to 2 or more
persons alternatively, it is payable to any of them and
may be negotiated, discharged, or enforced by any or
all of them in possession of the instrument. If an
instrument is payable to 2 or more persons not
alternatively, it is payable to all of them and may be
negotiated, discharged, or enforced only by all of
them.
If an instrument payable to 2 of more persons is ambiguous as to whether it is payable to the persons alternatively, the instrument is payable to the persons alternatively
." (Emphasis added.) 810 ILCS 5/3--
110(d) (West 1994).
This multiple payee provision became effective in 1992 and replaced former section 3--116 of the Code. 810 ILCS Ann. 5/3--
110, Uniform Commercial Code Comment, at 53 (Smith-Hurd 1993). Under former section 3--116 of the Code, an instrument was presumed to be payable jointly where the instrument did not designate payment in the alternative. 810 ILCS 5/3--116 (West 1992). Contrary to the former provision, the current section shifts the presumption to pay on an instrument in the alternative rather than jointly.
We find, as a matter of law, that the designation of two payees on a cashier's check is ambiguous where no directives are stated on the checks to determine the manner of payment. In the present case, the cashier's check at issue names two payees but does not include any directions regarding whether the check is payable to the named persons alternatively or jointly. The subject cashier's check does not contain any language or markings to instruct the method of payment, such as the word "and" or the word "or." Accordingly, section 3--110 provides that the check is payable to the persons alternatively. Therefore, in the present case, one named payee was sufficient to negotiate the cashier's check at Maywood Proviso State Bank.
We further note that the special indorsement of Klaus Wieske does not change the validity or result of the negotiation of the subject cashier's check. The Code expressly accommodates special indorsements and applies the principles stated in section 3--110 to special indorsements. 810 ILCS 5/3--205 (West 1994).
Third, we consider whether plaintiffs stated a negligence claim against the institutions that paid the cashier's checks, relying on section 3--404(d) of the Code (810 ILCS 5/3--404(d) (West 1994)).
Where, as here, the trial court dismisses a complaint under section 2--615, this court applies a
de
novo
standard of review.
Brown Leasing, Inc. v. Stone
, 284 Ill. App. 3d 1035, 1044 (1996). The question presented by a section 2-615 motion to dismiss for failure to state a cause of action is whether sufficient facts are contained in the pleadings which, if established, would entitle the plaintiff to relief.
Wright v. City of Danville
, 174 Ill. 2d 391, 398 (1996). A section 2--615 motion to dismiss "tests the legal sufficiency of a pleading and a court must accept all well-pleaded facts as true."
Doe v. Calumet City
, 161 Ill. 2d 374, 381 (1994). Where "it clearly appears that no set of facts can be proved" that would entitle the plaintiffs to recover, the trial court's dismissal order will be affirmed.
People ex rel. Daley v. Datacom Systems Corp.
, 146 Ill. 2d 1, 11 (1991).
Section 3--404(d) of the Code provides as follows:
"(d) With respect to an instrument to which
subsection (a) or (b) [fictitious payee rule] applies,
if a person paying the instrument or taking it for
value or for collection fails to exercise ordinary care
in paying or taking the instrument and that failure
substantially contributes to loss resulting from
payment of the instrument, the person bearing the loss
may recover from the person failing to exercise
ordinary care to the extent the failure to exercise
ordinary care contributed to the loss." 810 ILCS 5/3--
404(d) (West 1994).
Under the language of section 3--404(d) and the facts of the present case, we find that plaintiffs did not and, indeed, cannot demonstrate in their complaint any failure to exercise ordinary care on the part of the three institutions that accepted the cashier's checks. Plaintiffs, at oral arguments, suggested that banks should have a duty to question customers about the payees in transactions involving cashier's checks, but conceded that, even if such inquiries had been made in the present case, the outcome would not be affected. We believe that such a duty is not required under the Code and that imposing such a duty contravenes the very purpose of a cashier's check, which is meant to operate as cash. Furthermore, such a duty would infringe on the rights of a customer to access his or her own funds for the purpose of distributing them to his or her own designated payees.
The unfortunate facts of this case indisputably include a scam initiated by an attorney against his clients, a fictitious payee, forged check transactions, and the loss of hundreds of thousands of dollars. Although the fact that plaintiffs were duped by a scam is regrettable, their attempt to place blame on the institutions that actually followed and honored their orders is not supportable either under the Code or in common sense. In fact, the opening comments addressing the revised article 3 of the Code specifically state what benefits were expected to obtain from the 1992 revisions. One such stated benefit is the expectation that the new sections 3--404, the fictitious payee provision, through 3--406 "should significantly reduce litigation." Another expected benefit directly addressed cashier's checks and the importance of honoring them as cash equivalents: "Section 3--411 and related provisions considerably improve the acceptability of bank obligations like cashier's checks as cash equivalents by providing disincentives to wrongful dishonor, such as possible recovery of consequential damages." 810 ILCS Ann. 5/3--101
et
seq
., Uniform Commercial Code Comment, at 7-8 (Smith-Hurd 1993).
For all of the foregoing reasons, we affirm both orders by the trial court.
Affirmed.
HOURIHANE, P.J., and HARTMAN, J., concur.
FOOTNOTES
1:
Greater Illinois Title Insurance Company did not appear or participate in the proceedings in the trial court and have not filed any documents in the appellate court.
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226 Miss. 227 (1955)
83 So.2d 837
CAPITAL ELECTRIC POWER ASSN.
v.
McGUFFEE, et al.
No. 39812.
Supreme Court of Mississippi.
December 19, 1955.
Wm. Harold Cox, Jackson, for appellant.
*230 Teller & Biedenharn, Vicksburg, for appellees.
*234 KYLE, J.
This case is before us on appeal by Capital Electric Power Association, defendant in the court below, from a decree of the Chancery Court of Warren County awarding injunctive relief and damages to Mrs. Gertrude McGuffee *235 and her husband, H.L. McGuffee, complainants in the court below, for the wrongful refusal of the power association to furnish electric service to the complainants because of pending litigation between the defendant power association and the owner of the premises occupied by the complainants as lessees.
The bill of complaint in this case was filed by Mrs. McGuffee and her husband on September 13, 1954.
The complainants alleged in their bill of complaint they had rented from Mrs. Emma Hinson a dwelling house on a 27-acre tract of land, in Warren County, which was owned by Mrs. Hinson, and that they had intended to move into the house on September 1, 1954, and occupy the same as a home; that the house was properly wired for electrical service and had been theretofore served with electricity by the defendant; that, after renting the house, Mrs. McGuffee had gone to the principal office of the defendant in the Town of Clinton and had signed an application for electrical service on the form prescribed by the defendant and had paid the required fee of $5, for which a proper receipt was issued to her by the defendant's office representative; but a short time thereafter she was notified by the defendant's manager that the complainants would not be served with any electricity unless Mrs. Hinson first dismissed a lawsuit which she had filed against the defendant. The complainants further alleged that they had a large family, including five children of school age, and that the house which they had rented from Mrs. Hinson was located on a school bus route; that the complainants and their family could not enjoy the advantages and comforts of home life without electrical service; that they stood ready at all times to comply with each and every regulation of the association and had agreed to pay the minimum charge called for in the contract which Mrs. McGuffee had signed when she paid the $5 fee and signed the application for such electrical service. The *236 complainants alleged that they had suffered much inconvenience and hardship as a result of the defendant's refusal to furnish such electrical service; that the defendant's action in refusing to furnish such service for the reason assigned was both wrongful and malicious. The complainants asked that a mandatory injunction be issued forthwith requiring the defendant to furnish electrical service to the complainants upon the same terms and conditions as such service had been furnished to former occupants of the leased premises, and that upon the final hearing the injunction be made permanent and that the complainants be awarded compensatory and punitive damages and a reasonable attorney's fee.
After notice to the defendant and a hearing the chancellor issued a temporary mandatory injunction requiring the defendant to install and maintain electrical service in the house which the complainants expected to occupy, and the complainants moved into the house immediately thereafter. The defendant filed its answer to the bill of complaint on October 11, 1954, and the cause was heard upon the pleadings and proof at the regular January 1955 term of the Court.
Three witnesses testified during the hearing.
Mrs. McGuffee testified that she and her husband had rented the house from Mrs. Hinson, the owner, during the month of August, and expected to move into the house on September 1st. They were to pay $30 a month as rent. They had made an inspection of the property before renting the same, and had seen that the dwelling house was properly wired for electrical service. Mrs. McGuffee stated that she had electrical appliances, which included a refrigerator, a radio, a television set, an electric iron, and an electric hot plate. She had five children of school age who were required to study their lessons at night. After she had made definite arrangements with Mrs. Hinson to move into the house on September 1, she and two of her children went to the house and *237 scrubbed the floors. While she was doing this she was notified by the defendant's lineman that the association was going to cut the lights off. She told the lineman that she was preparing to move into the house, and requested him to leave the lights on. But her request was disregarded. She then went to Clinton and applied for electrical service. She signed the application, which she was requested to sign, and paid the $5 deposit fee. But a few hours later she received a message from the defendant's manager that she could not have electric current on Mrs. Hinson's place and that her $5 deposit fee would be returned to her.
Mrs. McGuffee stated that the house in which they were living prior to the issuance of the temporary injunction was not on a school bus route, and she and her husband had to carry their children to school. But the house which they had rented from Mrs. Hinson was on a school bus route, and after they moved into that house the children rode to school on the school bus.
H.L. McGuffee testified that he made the trip to Clinton with his wife when she filed the application for electrical service and paid the $5 fee required by the office manager, which constituted a so-called membership fee. He also stated that after they had rented the house from Mrs. Hinson, he made arrangements with his nephew to help him move and hired a truck for that purpose.
Earl L. Phillips, the general manager of the defendant association, testified that the association was organized in 1938 and served a large part of Warren County, and also parts of several other counties. It owned 1825 miles of distribution lines and served 7300 customers. The association had served a former occupant of the house which the complainants had rented from Mrs. Hinson. No other power association had power lines running to the property. The witness stated that a suit for damages for the wrongful cutting of timber had been *238 filed by Mrs. Hinson against the association in the Circuit Court of Warren County, and he had issued instructions that no electrical service should be furnished to any person who occupied any part of the 27-acre tract of land owned by Mrs. Hinson so long as there was any controversy in the court between Mrs. Hinson and the association. The order was issued pursuant to an order of the board of directors. The witness also stated that he had issued a check for a refund to Mrs. McGuffee of the $5 membership fee which she had paid to the association on August 30, 1954. He stated that he alone was authorized to accept such membership fee, and that only the board of directors could accept applications for membership in the association. He stated that the only reason the association had refused to give the complainants electrical service was that Mrs. Hinson had filed suit against the association for the recovery of damages for the wrongful cutting of the timber.
On direct examination by the defendant's attorney, Phillips stated that the defendant association was incorporated under the "Electric Power Association Act", Chapter 184, Laws of 1936, and that it extended services only to persons who had been accepted for membership by the association. It was a nonprofit association, and had no fixed capital. The book value of its assets was $2,500,000, but at the time of the trial the association owed $1,200,000 to the R.E.A. The witness stated that neither he nor the board of directors had ever accepted Mrs. McGuffee's application for membership, and that Mrs. Alma Warren, who issued the receipt to Mrs. McGuffee on August 30, 1954, had no power to make contracts for the association. On further cross-examination the witness admitted, however, that Mrs. Warren had his permission to sign application receipts for the association; and in answer to a question propounded to him by the chancellor, he also admitted that the suit filed by Mrs. Hinson against the association did not involve any *239 question regarding the lines then in existence and serving the house referred to in Mrs. McGuffee's application.
At the conclusion of the evidence, the chancellor found that the defendant's manager did not have the right to deny membership in the association to the complainants because the complainants' landlord was in a controversy with the association over the landlord's claim for damages for the wrongful cutting of trees. The chancellor found that the complainant, Mrs. McGuffee, had made a deposit of $5 with the defendant to insure the electrical connection, and that the deposit had been accepted by the defendant's agent, who was authorized to accept the same; and that the defendant's refusal to recognize the complainant's membership in the association and its refusal to furnish electrical service to the complainants under the facts disclosed by the testimony of the witnesses was arbitrary, capricious, and without authority of law, and that the acts complained of were of such nature as to justify an award of punitive damages. The chancellor entered a decree making the injunction permanent and awarding damages to the complainants in the sum of $500 and attorney's fee in the sum of $250.
The first point argued by the appellant's attorney as ground for reversal on this appeal is that the chancellor erred in treating the appellant as if it were a public utility and in holding that the appellees were entitled to electrical service from the association as a matter of vested right and in requiring the appellant to furnish such service.
It is not necessary for us to determine here whether an electric power association such as we have here is a "public utility" within the purview of statutes regulating such utilities and subjecting them to the jurisdiction of a public service commission. The question that we have to consider here is, whether such corporation may arbitrarily reject the application for membership of persons *240 living in the area served by such corporation and in close proxmity to its distribution lines and refuse to supply electric energy to such persons solely because of the existence of a legal controversy between the electric power association and the applicants' landlord.
The answer to that question must be found in the provisions of the "Electric Power Association Act" itself.
The declared purpose of the statute, Sections 5463 et seq., Miss. Code of 1942, is to provide a method for the formation of "a corporation not organized for pecuniary profit for the purpose of promoting and encouraging the fullest possible use of electric energy by making electric energy available at the lowest cost consistent with sound economy and prudent management of the business of such corporations." Section 5464, Code of 1942. The statute provides that, "Except as hereinafter provided, the corporate purpose of each corporation formed hereunder shall be to render service to its members only. Any person may become and remain a member if such person shall use energy supplied by such corporation and shall comply with the terms and conditions in respect to membership contained in the bylaws of such corporation, which terms and conditions shall be nondiscriminatory. Any person who shall agree to use energy supplied by the corporation from an existing line or from a line the construction of which has been authorized or commenced by the corporation may be admitted to membership in the corporation prior to such use upon complying with the other terms and conditions with respect to membership contained in the certificate of incorporation or in the bylaws. The membership fee shall be fixed by the board of directors. * * *." Section 5472, Code of 1942. Among the enumerated powers conferred upon such corporations are the power to acquire, own and operate electric power systems for the generation, transmission or distribution of electric energy, and to furnish electric service in connection *241 therewith; "to use any right of way, easement or other similar property right necessary or convenient in connection with the acquisition, improvement, operation or maintenance of a system, granted by the state or any political subdivision thereof, provided that the governing body of such political subdivision shall consent to such use; and to have and exercise the power of eminent domain in the manner provided by the condemnation laws of this state for acquiring private property for public use, such right to be paramount except as to the property of the state or of any political subdivision thereof." Section 5474, Code of 1942. Such corporations are authorized "to contract with any person, Federal agency or municipality for the purchase or sale of energy and/or the acquisition of all or any part of any system, and in connection with any such contract to stipulate and agree to such covenants, terms and conditions as the board may deem appropriate, including covenants, terms and conditions with respect to the resale rates, financial and accounting methods, services, operation and maintenance practices and the manner of disposing of the revenues of the system operated and maintained by the corporation. Section 5474 (8), Code of 1942. And such corporations are authorized "to fix, maintain and collect fees, rents, tolls and other charges for services rendered."
It can be readily seen that corporations organized under the above mentioned statute are vested with many of the attributes of public service corporations. The right to exercise the power of eminent domain is conferred upon such corporations, and that right is limited by constitutional provision to cases where the property is to be taken for public use; and the question whether the contemplated use be public is a judicial question, to be determined without regard to legislative assertion that the use is public. Section 17, Mississippi Constitution, 1890. The State does not have the power to *242 authorize the taking of the private property of an individual without his consent for the private use of another, even on the payment of full compensation. 18 Am. Jur. pp. 658, 659, Eminent Domain, par. 34, and cases cited.
In the case of Bookhart v. Central Electric Power Cooperative, Inc., 219 S.C. 414, 65 S.E.2d 781, the Court held that statutes which created electric power cooperatives for the purpose of supplying electric energy and promoting and extending uses thereof in rural areas and which gave the power of eminent domain in the manner provided by law for the exercise of that power by corporations operating electric transmission and distribution system and which exempted cooperatives from the jurisdiction and control of the public service commission, manifested a legislative intention to make such cooperatives public service corporations; and that, where such statute limited such service to the members of such cooperatives, governmental agencies and subdivisions and other persons not in excess of ten per cent of the number of members, such limitation did not preclude such cooperatives from being public service corporations entitled to exercise the power of eminent domain, since such cooperatives had the implied obligation to make membership available without arbitrary or unreasonable limitation to all coming within the purview of the purpose for which they were created.
The service rendered by an electric power association, such as we have here, to the inhabitants of the areas in which it operates bears a striking resemblance to the service rendered by a municipal corporation engaged in furnishing electricity, gas or water to the inhabitants of the municipality. And this Court has held in several cases that a municipal corporation engaged in furnishing such service to its inhabitants must furnish such service upon a nondiscriminatory basis to all persons residing in the municipality who agree to pay *243 for such service and to comply with the rules and regulations adopted by the governing authorities of the municipality with reference thereto. See Burke v. City of Water Valley, 87 Miss. 732, 40 So. 820; Ginnings v. Meridian Water Works Co., 100 Miss. 507, 56 So. 450; Caston v. Huston, 139 Miss. 890, 104 So. 698; Yazoo City v. Birchett, 89 Miss. 700, 42 So. 569; Carnaggio Bros. v. City of Greenwood, 142 Miss. 885, 108 So. 141.
(Hn 1) We think that members of an electric power association organized under the provisions of the "Electric Power Association Act" and other persons living along the routes served by such association and readily accessible to its existing lines, who apply for membership in the association and agree to use electric energy supplied by the association, are entitled to have such electric service furnished to them upon a nondiscriminatory basis, just as the inhabitants of a municipality which operates an electric distribution system are entitled to have such service furnished to them upon a nondiscriminatory basis.
(Hn 2) The appellant's attorney lays great stress in his argument upon the clause in Code Section 5472, which provides that, "Except as hereinafter provided, the corporate purpose of each corporation formed hereunder shall be to render service to its members only." But that provision must be read along with the other provisions of the same section, including the provision that, "Any person may become and remain a member if such person shall use energy supplied by such corporation and shall comply with the terms and conditions in respect to membership contained in the bylaws of such corporation, which terms and conditions shall be nondiscriminatory," and the provision that, "Any person who shall agree to use energy supplied by the corporation from an existing line or from a line the construction of which has been authorized or commenced by the corporation may be admitted to membership in the corporation *244 prior to such use upon complying with the other terms and conditions with respect to membership contained in the certificate of incorporation or in the bylaws." These provisions of the statute were designed to make certain the accomplishment of the purpose for which such corporations are organized by making electric energy available upon a nondiscriminatory basis to the inhabitants of the areas which they propose to serve at the lowest cost consistent with sound economy and prudent management of the business; and such provisions were necessary to justify the delegation to such corporations of the power of eminent domain.
(Hn 3) We therefore hold that an electric power association, created under Chapter 184, Laws of 1936, and amendments thereto, Sections 5463 et seq., Miss. Code of 1942, having the power of eminent domain and enjoying the other privileges conferred on such corporations under the provisions of the act, by the acceptance of its charter assumes the obligation to render nondiscriminatory service to persons subscribing for such service who live in the areas served by such corporation and on the routes traversed by its distribution lines, and that any such person has a right to become and remain a member if such person shall use energy supplied by such corporation "and shall comply with the terms and conditions in respect to membership contained in the bylaws of such corporation, which terms and conditions shall be nondiscriminatory."
The appellant's attorney cites in support of his contention that the appellant was justified in refusing to furnish electric service to the appellees the cases of King v. Farmers Electric Coop., Inc. (1952), 56 N.W. 552, 246 P.2d 1041, and Sutton v. Hunziker (1954), 85 Idaho 395, 272 P.2d 1012. But the opinions rendered in those cases are not controlling in the case that we have here. The provisions of the New Mexico statute and the Idaho statute relating to the creation of electric *245 power associations and the rights of membership therein are unlike the provisions of our own statute; and the reason assigned by the power association for refusing to furnish electric service to the complaining party in each of those cases was entirely different from the reason assigned by the appellant in this case.
(Hn 4) The order of the board of directors of the appellant corporation adopted on January 10, 1945, which provided that "the manager shall be instructed not to render electric service to property while in litigation," was in our opinion unreasonable, arbitrary and discriminatory, and afforded no justification for the manager's refusal to supply electric energy for the appellees in this case on the ground that Mrs. Hinson had filed an action for damages against the appellant for the wrongful cutting of timber on her land. And we think there was no error in the action of the chancellor in holding that the appellees were entitled to have electric service restored in the dwelling house which they had rented from Mrs. Hinson.
(Hn 5) It is next argued that the chancellor erred in refusing to make certain specific findings of facts requested by the defendant at the conclusion of the evidence. But we think there is no merit in this contention. The chancellor was not required to make a specific finding that the defendant power association was not a public utility, or that the order adopted by the board of directors on January 10, 1945, undertaking to empower the manager to withhold service from property while the owner was in litigation with the association, had been applied without favor or partiality, or that Mrs. Warren was not authorized to make a contract on behalf of the association. For reasons already stated by us in this opinion the application of Mrs. McGuffee for electric service should not have been rejected by the association.
(Hn 6) Finally, it is argued that the chancellor erred in awarding to the appellees punitive damages and attorney's *246 fees on account of the wrongful refusal of the appellant to furnish such electric service to the appellees.
This assignment or error is well taken and must be sustained.
The complainants were entitled to recover compensatory damages. But the rule is well settled by the weight of authority that it is not a function of a court of equity to assess punitive damages in the absence of express statutory provisions, and a court of equity will assess actual damages only as ancillary to equitable relief. 19 Am. Jur. p. 125, Equity, par. 125; 30 C.J.S. p. 426, Equity, par 72. The rule thus stated was cited and approved by this Court in the very recent case of Wilborn v. Balfour et al., 218 Miss. 791, 67 So.2d 857, and in that case the Court also held that attorney's fees were not recoverable in a case of this kind.
The chancellor should have determined the amount of compensatory damages which the complainants were entitled to recover, and should have awarded judgment for that amount. Punitive damages and attorney's fees should not have been allowed.
The decree of the lower court is therefore affirmed as to the injunctive relief granted, but will be reversed as to the allowance of damages and attorney's fees; and the cause will be remanded for the assessment of compensatory damages only.
Affirmed in part and reversed in part and remanded.
Hall, Lee, Ethridge and Gillespie, JJ., concur.
ON MOTION TO DISSOLVE AND VACATE INJUNCTION
ETHRIDGE, J.
(Hn 7) Appellant has filed a motion to dissolve and vacate the injunction against it rendered by the chancery court and affirmed on appeal, requiring it to render *247 electric service to appellees. An attached affidavit reflects that appellees abandoned the premises in April 1955, owing the association a bill for electricity used. However, this Court in its judgment remanded the case to the chancery court for assessment of compensatory damages, so appellant should now apply to that court rather than here for whatever relief it is entitled to in this respect. For that reason the motion is overruled.
Motion to dissolve and vacate injunction overruled.
Hall, Kyle, Lee, and Gillespie, JJ., concur.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 15, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
PROFESSIONAL BULL RIDERS,
INC., a Colorado corporation,
Plaintiff-Appellant/Cross-
Appellee,
v. Nos. 03-1544 and 04-1029
D.C. No. 02-D-841 (DES)
AUTOZONE, INC., a Nevada (D. Colorado)
corporation,
Defendant-Appellee/Cross-
Appellant,
SPEEDBAR, INC.,
Intervenor-Counterclaimant-
Cross-Appellant.
ORDER AND JUDGMENT *
Before HENRY, LUCERO, Circuit Judges, and BRACK, District Judge. **
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
The Honorable Robert C. Brack, United States District Judge for the District of
**
New Mexico, sitting by designation.
Professional Bull Riders, Inc. (PBR) filed this breach of contract action
against AutoZone, arguing that AutoZone entered into and then breached an oral
agreement to sponsor certain PBR events during 2001 and 2002: the Bud Light
Cup Professional Bull Rider Series and the Related Championship Finals. In
response, AutoZone argued that the agreement could not be performed within a
year and was therefore void under the Colorado statute of frauds, Colo. Rev. Stat.
§ 38-10-112. AutoZone and Speedbar, Inc. (its wholly- owned subsidiary and the
owner of the trademark “AutoZone”) also asserted counterclaims for service mark
infringement, trademark infringement, unfair competition, and service mark
dilution.
The district court granted summary judgment to AutoZone on PBR’s breach
of contract claim. However, as to the trademark infringement counterclaims, the
court ruled against AutoZone and Speedbar, granting summary judgment to PBR
on the grounds that AutoZone and Speedbar had failed to offer any evidence that
they had suffered actual damages.
The parties appealed, and, in a prior order, we certified a question
involving the Colorado statute of frauds to the Colorado Supreme Court. See
Professional Bull Riders, Inc. v. AutoZone, Inc., Nos. 03-1544, 04-1029, 2005
WL 34494801 (10th Cir. Feb 03, 2005). The Colorado Supreme Court has now
answered our question. See Professional Bull Riders, Inc. v. AutoZone, Inc., 113
-2-
P.3d 757 (Colo. 2005). In light of that answer, we conclude that the district court
erred in granting summary judgment to AutoZone on PBR’s breach of contract
claim. We further conclude that the district court erred in granting summary
judgment to PBR on the counterclaims asserted by AutoZone and Speedbar. We
therefore reverse the district court’s decisions and remand for proceedings
consistent with this order and judgment.
I. BACKGROUND
In the years leading up to this dispute, AutoZone sponsored events
conducted by PBR. For the years 2001 and 2002, PBR prepared a proposed
written agreement to provide for AutoZone’s sponsorship.
Section I of that document states:
The term of this Agreement shall commence as of
December 29, 2000 and end on December 31, 2002, unless
terminated earlier in accordance with the provisions of this
Agreement. Notwithstanding the preceding sentence,
AutoZone may, at its option, elect to terminate this
Agreement and its sponsorship of PBR and the [Bud Light
Cup Professional Bull Rider] Series and the Related
effective as of the end of the [Championship] Finals in
2001, by giving PBR written notice of termination by no
later than August 15, 2001.
Aplt’s App. at 18.
-3-
AutoZone never executed this document. However, PBR alleges that by its
actions, AutoZone tacitly accepted its terms and that, as a result, the parties
entered into an oral agreement mirroring the terms set forth in writing.
There appears to be a factual dispute as to the communications between the
parties during 2001. However, it appears undisputed that, in January 2002,
AutoZone notified PBR that AutoZone would not be sponsoring PBR events in
2002. Despite this notice, AutoZone alleges, PBR continued to use AutoZone’s
protected trade name and service mark.
PBR then filed this action against AutoZone, alleging breach of the oral
sponsorship agreement. Speedbar, a wholly-owned subsidiary of AutoZone and
the owner of the trade name and service mark “AutoZone,” intervened. AutoZone
and Speedbar filed counterclaims alleging service and trademark infringement,
unfair competition, and service mark dilution under the Federal Trademark Act,
15 U.S.C. §§ 1114 and 1125 and the common law. They contended that PBR had
displayed the “AutoZone” mark without permission. They sought declaratory and
injunctive relief and an order that PBR return profits resulting from alleged
unauthorized used of the “AutoZone” mark.
As we have noted, the district court granted summary judgment to
AutoZone on PBR’s breach of contract claim. The court applied the Colorado
statute of frauds, Colo. Rev. Stat. § 38-10-112, which provides, in part:
-4-
(1) Except for contracts for the sale of goods . . . and lease
contracts . . . , in the following cases every agreement
shall be void, unless such agreement or some note or
memorandum thereof is in writing and subscribed by the
party charged therewith:
(a) Every agreement that by the terms is not to be
performed within one year after the making thereof.
Citing the provision of the alleged PBR-AutoZone agreement that allowed
AutoZone to terminate the agreement after one year, the district court reasoned
that “‘the fact either party has an option to put an end to the contract within a year
does not take it out of the operation of the statute if, independent of the exercise
of such power, the agreement cannot be performed within a year.” Aplt’s App. at
114-15 (Order, filed Dec. 18, 2003) (quoting Klinke v. Famous Recipe Fried
Chicken, Inc., 600 P.2d 1034, 1038 (Wash. Ct. App. 1979)). Because the alleged
agreement was not in writing, the district court concluded, the agreement was
void under § 38-10-112(1)(a).
The district court also granted summary judgment to PBR on AutoZone’s
and Speedbar’s counterclaims. The court reasoned that AutoZone and Speedbar
had failed to offer any evidence that they had suffered actual damages.
The parties appealed, and we then certified the following question to the
Colorado Supreme Court:
Under Colo. Rev. Stat. § 38-10-112(1)(a), is an oral
agreement void when: (1) the agreement contemplates
-5-
performance for a definite period of more than one year
but (2) allows the party to be charged an option to
terminate the agreement by a certain date less than a year
from the making of the agreement and when (3) the party
to be charged has not exercised that option to terminate the
agreement?
See Professional Bull Riders, Inc. v. AutoZone, Inc., Nos. 03-1544, 04-1029, 2000
WL 34494801 (10th Cir. Feb 03, 2005).
The Colorado Supreme Court has now answered our question. See
Professional Bull Riders, 113 P.3d at 759-61. Analyzing the alleged agreement
between PBR and Autozone, the court concluded that it “expressly provided, by its
own terms, an alternative performance that could be completed in less than a
year.” Accordingly, the statute of frauds did not apply:
Because exercise of the option to terminate could
reasonably be construed, by the terms of the agreement, to
constitute complete performance of AutoZone’s
sponsorship obligation, whether or not it effectively
exercised that option, nothing in § 38-10-112(1)(a), C.R S.
(2004), renders the agreement void. We therefore answer
the certified question in the negative.
Professional Bull Riders, 113 P.3d at 761-62.
II. DISCUSSION
PBR challenges the district court’s application of the Colorado statute of
frauds, Col Rev. Stat. § 38-10-112(1)(a), to foreclose in breach of contract claim.
In their cross-appeal, AutoZone and Speedbar maintain that the district court erred
-6-
in ruling that they could not prevail on their counterclaims because they had failed
to offer evidence of actual damages.
We review the district court’s grant of summary judgment de novo, applying
the same legal standard used by the district court. Coldesina v. Estate of Simper,
407 F.3d 1126, 1131 (10th Cir. 2005). “Summary judgment is appropriate ‘if . . .
there is no genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ .P. 56(c). Because we are
sitting in diversity, we look to the law of the forum state, here Colorado. Houston
Gen. Ins. Co. v. Am. Fence Co., 115 F.3d 805, 806 (10th Cir.1997).
A. PBR’s Breach of Contract Claim
In challenging the district court’s ruling on its breach of contract claim,
PBR urges this court to adopt the view that a contract subject to a right of
termination by either party within one year is not within the statute of frauds, even
though, absent the termination clause, the contract could not be performed within
one year. In response, AutoZone acknowledges a split of authority on this issue.
However, it contends, the better view is that a right to terminate an oral agreement
within one year does not render that agreement enforceable if, absent the
termination clause, the agreement could not be performed within one year.
-7-
In considering the facts of this case and responding to our certified question,
the Colorado Supreme Court concluded that the alleged agreement was not barred
by the statute of frauds, though its reasoning differed from PBR’s. The court
concluded that the alleged oral agreement between PBR and AutoZone “provided
AutoZone with two alternative ways of satisfying its obligations as contemplated
by the agreement.” Professional Bull Riders, 113 P.3d at 761. In particular,
“[a]lthough the agreement contemplated performance for two seasons . . . , if
AutoZone chose that option, it also contemplated that AutoZone could completely
perform its obligation by sponsoring PBR for one full season.” Id.
The fact that AutoZone could fully perform the agreement within one year was
controlling:
Under the circumstances of this case, it is
unnecessary for us to decide whether an option to terminate
a contract must always be construed as an alternative and
sufficient means of performance. Where the terms of an
agreement can fairly and reasonably be interpreted to define
alternate obligations, one or more of which can be
performed within one year, the agreement in question may
be fairly and reasonably interpreted such that it may be
performed within one year. The one-year provision
therefore does not bring such an agreement within the
statute of frauds. And at least where, as here, the word
“terminate” not only applies to the agreement itself but
expressly limits the electing party’s performance obligation
to a specific task-sponsorship for one season-an
interpretation of the election as defining alternate
obligations is not only fair and reasonable, it is clear.
Id. (citation omitted).
-8-
The Colorado Supreme Court’s ruling establishes that the district court erred
in holding that the statute of frauds rendered the alleged agreement void.
Accordingly, we must remand this case for further proceedings on PBR’s breach of
contract claim.
B. AutoZone and Speedbar’s Cross-Appeal on the Trademark Infringement
Counterclaims
In their cross-appeal, AutoZone and Speedbar argue that the district court
erred in concluding that their trademark and service mark counterclaims should be
dismissed because they failed to provide evidence of actual damages.
On this point, the law is with AutoZone and Speedbar. Federal trademark
laws provide for injunctive relief. See 15 U.S.C. § 1116(a); see also Caesars
World, Inc. v. Venus Lounge, Inc., 520 F.2d 269, 274 (3d Cir. 1975) (noting that
“[i]f the record in the district court contains no evidence of actual damage or
actual profit in dollars and cents no monetary award may be made . . . and the
trademark owner must be content with injunctive relief”).
Moreover, despite a lack of actual damages, AutoZone and Speedbar may
also seek an accounting of PBR’s profits. As this circuit explained, “the
unavailability of actual damages as a remedy . . . does not preclude plaintiff from
recovering an accounting of defendant’s profits.” Bishop v. Equinox Int’l Corp.,
154 F.3d 1220, 1223 (10th Cir. 1998) (internal quotation marks omitted). Even in
-9-
the absence of actual damages, an accounting may prevent unjust enrichment of the
infringing party and may also deter willful violations of the trademark laws. Id.
Although it acknowledges these principles, PBR nevertheless contends that
the district court’s grant of summary judgment against AutoZone and Speedbar
should be affirmed. According to PBR, the district court implicitly made an
equitable determination that an accounting of PBR’s profits was not warranted
because PBR’s alleged violation was not willful. See Aplt’s Reply Br. at 14-17.
PBR also argues that the record establishes that it has ceased using the “AutoZone”
mark and that injunctive relief is thus not warranted.
PBR’s argument reads too much into the district court’s brief comments. We
see no indication that the district court made findings as to the willfulness of PBR’s
alleged conduct. Moreover, the record before us does not allow us to reach a
definitive conclusion on that issue or on the matter of injunctive relief.
Accordingly, we conclude that the district court erred in granting summary
judgment to PBR on AutoZone and Speedbar’s counterclaims.
III. CONCLUSION
We REVERSE the district court’s grant of summary judgment to AutoZone
and Speedbar on PBR’s breach of contract claim, and we REVERSE the district
court’s grant of summary judgment to PBR on AutoZone and Speedbar’s
-10-
counterclaims for service mark infringement, trademark infringement, unfair
competition, and service mark dilution. We REMAND the case for further
proceedings consistent with this order and judgment.
Entered for the Court,
Robert H. Henry
United States Circuit Judge
-11-
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NO. 07-02-0358-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
NOVEMBER 12, 2004
______________________________
MARTIN GARCIA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;
NO. CR-01D-058; HONORABLE H. BRYAN POFF, JR., JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
OPINION
In four issues, appellant Martin Garcia challenges his conviction of capital murder
and the resulting sentence of life imprisonment in the Texas Department of Criminal
Justice-Institutional Division. Appellant and his co-defendant Bryan Parrack were charged
in a single indictment for the felony offense of capital murder. Appellant filed a pre-trial
motion requesting severance of his trial from Parrack's. After a hearing, the motion was
denied, the case proceeded to jury trial and appellant was convicted of capital murder.
Appellant reurged the motion to sever during trial. He presents three issues relating to the
trial court's refusal to sever his trial from Parrack's, and a fourth issue asserting that the
evidence was legally and factually insufficient to sustain his conviction. We will affirm.
On February 25, 2001, at approximately 10:20 p.m., Tony Garcia, assistant
manager of the Thriftway East grocery store in Hereford, Texas, was shot and killed as he
left the store after closing with the day's cash deposits. When officers arrived at the scene,
they found Tony Garcia slumped over in the driver's seat of his vehicle, which was sitting
in the parking lot with its engine running. He had been shot three times, once in the chest,
once in his right side, and once in his legs, where a bullet entered and exited his right leg,
lodging in his left leg. He also had another wound to the chest caused when the jacketing
of the bullet that entered his chest separated from the bullet and entered separately.
Autopsy results indicated that one of the wounds in his chest was the probable cause of
death. The bullets recovered from wounds in his chest and side were of .38 caliber class,
while his leg wounds were caused by a single .22 caliber bullet. The store's money bag
was with him.
Sufficiency of Evidence Appellant's fourth issue argues the evidence was legally and factually insufficient
to convict him of capital murder. We begin with the fourth issue because disposition of it
requires discussion of the evidence presented at trial.
To find appellant guilty of capital murder, as defined in the charge to the jury, the
jury was required to find that he intentionally caused the death of Tony Garcia while in the
course of attempting to commit the offense of robbery. (1) Appellant's argument on
evidentiary sufficiency is based on the premise that he could be found guilty of capital
murder only if his co-defendant killed Tony Garcia in furtherance of a conspiracy with
appellant. Appellant argues there was no evidence that his co-defendant Parrack caused
the death of the victim, and appellant therefore could not be guilty of capital murder.
Appellant's argument is faulty. It fails to consider the complete jury charge, which read, in
relevant part:
"Now, if you find from the from [sic] evidence beyond a reasonable doubt that
on or about February 25, 2001, in Deaf Smith County, Texas, the defendant,
Martin Garcia, did intentionally cause the death of Tony Garcia by shooting
him with a gun, while said defendant was then and there in the course of
attempting to commit the of [sic] robbery of Tony Garcia of his property, then
you will find the defendant guilty of capital murder; . . ."
The charge continued with an alternate theory whereby appellant could be found guilty of
capital murder if his co-defendant intentionally shot Tony Garcia, intending to kill him
pursuant to a conspiracy between appellant and his co-defendant. (2) The jury thus could
have found appellant guilty under the charge if they determined either he intentionally
caused the death of Tony Garcia by shooting him in the course of attempting to commit a
robbery, or that Parrack did so and appellant was criminally responsible for the action. The
verdict rendered by the jury states, "We, the Jury find the defendant, Martin Garcia, guilty
of Capital Murder as alleged in the indictment." The verdict will be upheld if the evidence
is sufficient under either of the alternative theories. See Rabbani v. State, 847 S.W.2d
555, 558 (Tex.Crim.App. 1992) (general verdict of guilty will be upheld when evidence is
sufficient under any of the theories submitted), cert. denied, 509 U.S. 926, 113 S. Ct. 3047,
125 L. Ed 2d 731 (1993).
In reviewing the legal sufficiency of the evidence, we look at all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Griffin v.
State, 614 S.W.2d 155, 159 (Tex.Crim.App. 1981). The standard for legal sufficiency
review "gives full play" to the jury's responsibility "fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts." Jackson, 443 U.S. at 319; Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.
2003). In a review of the record for factual sufficiency, we consider all the evidence in a
neutral light, and will set aside the verdict if the evidence supporting it, either (1) standing
alone or (2) when weighed against the contrary evidence, is too weak to establish the
elements of the offense beyond a reasonable doubt. The analysis is to answer the single
ultimate question: considering all the evidence in a neutral light, was the jury rationally
justified in finding appellant guilty beyond a reasonable doubt? See Zuniga v. State, 144
S.W.3d 477, 481 (Tex.Cr.App. 2004); Goodman v. State, 66 S.W.3d 283, 285
(Tex.Crim.App. 2001). A proper appellate factual sufficiency review must include
discussion of the most important and relevant evidence that the appellant claims
undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603-04 (Tex.Crim.App.
2003).
The State presented the testimony of appellant's brother Jose Garcia. He testified
that appellant, prior to the day of the shooting, told him appellant and Parrack were
planning to rob the Thriftway East grocery store. (3) Jose further testified that the day of the
shooting appellant described how he and Parrack planned to carry out the robbery. Jose
stated, "He told me Parrack was going to be across the street on the building and he was
going to shoot the manager in the legs and Martin was going to come from across the
street and get the money." He testified appellant left their home with Parrack. Later that
night Jose was awakened by appellant. Jose testified, "I woke up, I don't know what time
it was, my brother came into the room, he told me that he shot Tony and I asked him if he
had killed him and he said I don't know, but he had seen Tony slump over the steering
wheel and the car took off in reverse and that he ran up to the car and tried opening the
door but it wouldn't open so he took off."
Jose also testified that a few days after the shooting appellant had a black handgun,
and it was the gun with which he had shot the victim. Appellant asked Jose what he should
do with the gun. Jose advised him to get rid of it.
The night of the shooting, individuals near the scene of the crime heard gunshots.
A hole in the windshield of the victim's vehicle, a shattered driver's-side window and glass
in the interior of the vehicle indicated shots had been fired into the vehicle. Rodney Tucay,
M.D., who performed an autopsy on the victim, testified that the victim had one wound in
his left lateral chest, two wounds in his right upper chest, caused when a bullet and its
copper jacket separated after being fired from a gun, and wounds in both legs caused by
a single .22 caliber bullet. Dr. Tucay testified that the wound in the right upper chest,
caused by the bullet, was the likely cause of death. He opined that the leg wounds would
not have been life-threatening.
Investigators found two spent .357 Sig cartridge casings and two live .357 Sig
cartridges in the Thriftway parking lot. A police search of the barn located behind the
residence occupied by appellant and Jose produced a black Glock model 31 handgun
(admitted as State's exhibit 16) wrapped in plastic on the barn's rafters. A live .357 Sig
cartridge was found on the barn floor. Aaron Fullerton, a firearms examiner with the Texas
Department of Public Safety crime laboratory, testified that the two spent .357 Sig cartridge
casings found at the scene of the shooting were fired from the gun found in the barn.
Fullerton identified the bullets removed from the chest of the victim as .38 caliber-class
bullets, but could not say whether or not they were fired from that particular gun. (4)
Justin Tarr, a former co-worker of Parrack's testified that, within weeks before the
shooting, Parrack showed him a .357 Sig Glock handgun he owned. Tarr identified State's
exhibit 16 as being like the gun Parrack showed him. A magazine fitting a Glock model 31
was found in Parrack's pickup truck during a police search a few days following the
shooting. It contained ten live cartridges.
Charles Peters, a forensic scientist for the FBI, testified that an analysis of the
content of one of the lead bullets removed from the victim revealed that it was "analytically
indistinguishable" from the two live .357 Sig cartridges found at the scene and the live
cartridge found in the barn behind appellant's residence, indicating that all those bullets
were manufactured from the same molten pot of lead. The lead content of the other bullet
taken from the victim's chest was different. Peters testified, though, that it is not
uncommon for bullets originating with different pours of lead to end up in the same box of
shells.
Police also found three spent .22 shell casings on the roof of a building across the
street from the Thriftway and a rope hanging toward the ground from an exhaust pipe on
the roof of that building. The rope had cut through the tin at the edge of the building's roof.
Parrack's former girlfriend testified she was with him on the afternoon of the shooting, and
as they drove near the Thriftway he said, "I'm going to 'hit' (or 'get') that mother f'er
tonight," indicating he would be across the street from the Thriftway. Peters testified that
the lead content of the .22 bullet found in the victim's leg was indistinguishable from that
of .22 cartridges found in Parrack's pickup truck and in the residence appellant and his
brother Jose shared.
As noted, appellant's evidentiary insufficiency argument on appeal focuses on the
alternative theory included in the jury charge, that Parrack fired the shots that killed the
victim and appellant was criminally responsible for that action. Appellant argues there was
no evidence connecting the fatal bullets recovered from the victim's body with Parrack.
The thrust of the State's case and evidence was that appellant was the shooter of the fatal
shots. In his only specific contention addressing that theory of the evidence, appellant
argues the State failed to show that the bullets causing the victim's death were fired from
State's exhibit 16, the Glock pistol located in the barn behind appellant's residence. As
noted, appellant's brother Jose testified the gun appellant displayed to him was the gun
appellant used to shoot the victim. He described the weapon as a black handgun, and
from the evidence we have recited the jury reasonably could infer that it was the same
weapon police found in the barn. DPS firearms examiner Fullerton testified the gun found
in the barn fired the two spent .357 Sig shell casings found at the scene of the shooting.
Appellant's co-defendant Parrack presented his father as a witness to support his
alibi defense. Throughout trial, appellant challenged the credibility of witnesses and
exhibits, but he presented no testimony or other evidence on his own behalf. Evidence
contrary to the verdict included testimony that a red car was seen circling the victim's car
at Thriftway East and leaving the scene of the shooting shortly after gunshots were heard
by witnesses nearby. Investigators testified the individuals in the red car were arrested,
questioned and released after police concluded they had arrived at the scene after the
gunshots. Too, Parrack's father testified he sold a Glock model 31 at a gun show in
December 2000. His testimony was contradicted by that of a policeman. Jose testified
that Parrack picked appellant up at their home about 7:00 on the evening of the shooting.
Daniel Fangman testified he spent the evening with Jose driving around Hereford, and that
he picked Jose up around 5:00 p.m. Such conflicts in the evidence were for the jury to
resolve.
Having reviewed all the evidence, and looking at the evidence in the light most
favorable to the verdict, we conclude a rational jury could have found beyond a reasonable
doubt appellant was the shooter and committed the essential elements of capital murder.
Further, viewing all the evidence in a neutral light favoring neither the State nor appellant,
we also conclude the jury was rationally justified in finding appellant guilty beyond a
reasonable doubt. The evidence supporting appellant's guilt on the theory he was the
shooter of the fatal bullets is neither too weak standing alone to support the finding of guilt
beyond a reasonable doubt nor undermined by contrary evidence so strong that his guilt
cannot be proven beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 481; Griffin,
614 S.W.2d at 159. Our conclusions make it unnecessary that we consider appellant's
evidentiary sufficiency argument directed at the alternative theory submitted to the jury.
See Guevara v. State, No. 0424-03, 2004 WL 2347793, at *5 (Tex.Crim.App., October 20,
2004). The evidence is both legally and factually sufficient to support the jury's general
verdict. Appellant's fourth issue is overruled.
Denial of Motion to Sever
At the hearing on appellant's pretrial motion to sever his trial from that of his co-defendant and the similar motion filed by Parrack, both defendants argued that their
defenses were antagonistic and mutually exclusive. Parrack's trial counsel and an
investigator hired by appellant testified. The investigator testified that the victim was
wounded by two different types of bullets and because wounds caused by one caliber
bullet were in the victim's legs and wounds from a different caliber were to the victim's
chest, there could be a difference in intent of the shooters. He also testified that the
evidence indicated one individual was the "mastermind" of the plan to shoot and rob Tony
Garcia while others were solicited to help.
Attorneys for both defendants declined to disclose their intended defenses to the
court. After the motion to sever was denied, the trial court judge stated that should
evidence during trial indicate severance was proper, he would reconsider the motion.
Motions to sever are governed by Texas Code of Criminal Procedure article 36.09:
Two or more defendants who are jointly or separately indicted or complained
against for the same offense or any offense growing out of the same
transaction may be, in the discretion of the court, tried jointly or separately
as to one or more defendants; provided that in any event either defendant
may testify for the other or on behalf of the state; and provided further, that
in cases in which, upon timely motion to sever, and evidence introduced
thereon, it is made known to the court that there is a previous admissible
conviction against one defendant or that a joint trial would be prejudicial to
any defendant, the court shall order a severance as to the defendant whose
joint trial would prejudice the other defendant or defendants.
Tex. Crim Proc. Code Ann. art. 36.09 ( Vernon 1981).
In appellant's first point of error, he contends that the failure of the trial court to grant
his motion to sever violated his due process rights under the Fourteenth Amendment to the
United States Constitution and Article 1, Section 19 of the Texas Constitution by
impermissibly shifting the burden of proof from the prosecution to appellant. Appellant
here contends that Code of Criminal Procedure article 36.09 is unconstitutional on its face.
The motion to sever presented by appellant to the trial court, however, alleged: "A joint trial
will be prejudicial to the defendant in that the State will present evidence admissible only
against co-defendant that will confuse the jury and make it impossible to render a fair and
impartial verdict. Also, the joint trial is prejudicial to the defendant due to the adverse
position of the joint defendants forcing defendant to defend himself against both the State
and the co-defendant."
As noted, appellant reasserted his motion to sever several times during trial as
evidence was admitted. At no time, however, did appellant present the specific objection
asserted in his first issue to the trial judge and afford him an opportunity to rule on it. See
Saldano v. State, 70 S.W.3d 873, 886-87 (Tex.Cr.App. 2002); see Tex. R. App. P. 33.1(a).
The failure to timely and specifically object at trial may cause forfeiture even of some
constitutional rights. Id. at 887, 889; see Jenkins v. State, 912 S.W.2d 793, 808
(Tex.Crim.App. 1993) (op. on reh'g). See generally Marin v. State, 851 S.W.2d 275, 279
(Tex.Crim.App. 1993); Ex parte Alakayi, 102 S.W.3d 426, 434-35 (Tex.App.-Houston [14th
Dist.] 2003, pet. ref'd) (due process violation complaint not preserved). We agree with the
State that appellant's due process challenge to the constitutionality of article 36.09 is not
exempt from the requirement that it first be presented to the trial court, and may not be
raised for the first time on appeal. See Webb v. State, 899 S.W.2d 814, 817-18
(Tex.App.-Waco 1995, pet. ref'd) (challenge to constitutionality of statute on vagueness
grounds not permitted for first time on appeal). Appellant's first issue on appeal does not
comport with his trial objection, Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App. 1999);
Curry v. State, 910 S.W.2d 490, 495 (Tex.Crim.App. 1995); see Tex. R. App. P. 33.1(a)(1),
and presents nothing for our review. The first issue is overruled.
Appellant in his second issue contends that the failure of the trial court to grant his
motion for severance denied him the right to cross-examine the witnesses against him
during trial, in violation of his rights guaranteed by the Sixth and Fourteenth Amendments
of the United States Constitution and under Article I, Section 10 of the Texas Constitution.
He here contends article 36.09 is unconstitutional as applied. We overrule the issue, for
several reasons. First, like his first issue, it was not preserved for review. Tex. R. App.
P. 33.1(a)(1). No challenge to the constitutionality of article 36.09 as applied, or contention
that appellant's constitutional right of confrontation was being denied him because of his
joint trial with Parrack, was presented to the trial court. See Saldano, 70 S.W.3d at 889;
Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990); McGowan v. State, 938
S.W.2d 732, 741 (Tex.App.-Houston [14th Dist.] 1997), aff'd on other grounds sub. nom.,
Weightman v. State, 975 S.W.2d 621 (Tex.Crim.App. 1998). Secondly, the record does not
support appellant's contention. Appellant argues that because of the joint trial he was
denied his right to confront and cross-examine his co-defendant, who chose not to testify.
He argues that he was hampered in presenting his defense due to his inability to cross-examine Parrack regarding evidence found in his possession. Appellant also contends that
he was required to defend himself against allegations of his co-defendant. The
confrontation clause of the Sixth Amendment, made applicable to the states through the
Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13
L.Ed.2d 923, 928 (1965), guarantees the right of an accused to confront and cross-examine witnesses who testify against him in court or whose testimonial out-of-court
statements are admitted into evidence against him. See Crawford v. Washington, 124 S.
Ct. 1354, 158 L. Ed 2d 177, 72 U.S.L.W. 4229 (2004). (5) Appellant relies on Cruz v. New
York, 481 U.S. 186, 107 S. Ct. 1714, 95 L. Ed. 162 (1987), and Chavez v. State, 6 S.W.3d
56 (Tex.App.-San Antonio 1999, pet. ref'd) to emphasize the importance of a defendant's
right to confront and cross-examine a co-defendant when out-of-court statements of the
nontestifying co-defendant have been admitted into evidence. These cases, however,
involve a nontestifying co-defendant's confession that incriminates the other defendant.
Here, there was not a confession. The only testimony presented whereby Bryan Parrack
implicated appellant as a participant in the planned robbery was given by Parrack's ex-girlfriend, and that testimony was given outside the presence of the jury. No violation of
appellant's right of confrontation appears.
The State perceives appellant's second issue to present the contention the joint trial
prejudiced his defense because it prohibited him from calling his co-defendant Parrack to
testify. The State notes that cases discussing prejudice from the denial of a motion for
severance based on the defendant's claimed right to call a co-defendant to testify as a
witness have required the defendant to demonstrate, among other requisites, that the co-defendant will in fact testify at a separate trial. See, e.g., Lacy v. State, 901 S.W.2d 518,
520 (Tex.App.-Tyler 1995, no pet.). Appellant made no such showing. To the degree
appellant's second issue presents such a contention, then, it fails. Appellant's second issue
is overruled.
In appellant's third issue he argues that the trial court abused its discretion in failing
to grant his motion for severance. Article 36.09 mandates severance if evidence shows
that a defendant's joint trial would prejudice the other defendant or defendants. See Davila
v. State, 4 S.W.3d 844, 846-47 (Tex.App.-Eastland 1999, no pet.); Silva v. State, 933
S.W.2d 715, 718-19 (Tex.App.-San Antonio 1996, no pet.). To show an abuse of
discretion, the proponent for severance bears a heavy burden and must show he was
clearly prejudiced by the trial court's failure to grant a severance. Haggerty v. State, 825
S.W.2d 545, 548 (Tex.App.-Houston [1st Dist.] 1992, no pet.).
Appellant contends the joint trial was prejudicial to him due to the adverse position
of the joint defendants, forcing appellant to defend himself against both the State and his
co-defendant. Severance may be granted on the basis of conflicting defenses, if the co-defendant's positions are mutually exclusive in the sense that the jury, in order to believe
the core of one defense, must necessarily disbelieve the core of the other. Mendoza v.
State, 61 S.W.3d 498, 502 (Tex.App.-San Antonio 2001), aff'd on other grounds, 88
S.W.3d 236 (Tex.Crim.App. 2002); see Silva, 933 S.W.2d at 719. Proof of differing
degrees of culpability will not suffice. Davila, 4 S.W.3d at 847. Moreover, to be entitled
to severance based on antagonistic defenses, a defendant "must show by offer of proof
or otherwise what his defense would be if he were not being tried with his co-defendant."
Id., citing Calverley v. State, 511 S.W.2d 60, 62 (Tex.Crim.App. 1974), overruled on other
grounds, Moosavi v. State, 711 S.W.2d 58 (Tex.Crim.App. 1986).
In Silva, on which appellant elsewhere relies, the defendant Silva presented an alibi
defense at trial, contending he was not at the crime scene and the State's witness who
identified him as being there was mistaken. 933 S.W.2d at 718. His codefendant Lemos
testified at trial, admitting that both he and Silva were present and identifying Silva as the
triggerman. The court found error in the trial court's denial of Silva's pre-trial severance
motion, noting that evidence of the conflicting positions presented to the court at the
hearing on the motion apprised the court that Silva would be prejudiced because if the jury
were to believe Lemos's story that Silva was the triggerman, it would necessarily have to
disbelieve Silva's alibi defense. Id. at 719.
A trial court has a continuing duty to order a severance after trial begins upon a
showing of sufficient prejudice. Aguilar v. State, 26 S.W.3d 901, 909 (Tex.Crim.App.
2000). A motion to sever based on unfair prejudice is "timely" if made at the first
opportunity or as soon as the grounds for prejudice become apparent or should have
become apparent, thus providing the trial court an opportunity to rule on the potentially
prejudicial evidence at the time it is introduced. Id. at 910.
The testimony of the investigator and Parrack's counsel during the pretrial hearing
on severance did not demonstrate that the defenses of the two defendants were mutually
exclusive. Neither defendant was willing to put on evidence of his anticipated defense.
The trial court did not abuse its discretion by denying the pretrial motion. See Mendoza,
61 S.W.3d at 502; King v. State, 17 S.W.3d 7, 17 (Tex.App.-Houston [14th Dist.] 2000, pet.
ref'd); Davila, 4 S.W.3d at 847; Silva, 993 S.W.2d at 719.
Neither defendant testified at trial. Appellant's defense challenged, through cross-examination, the State's evidence that he was involved in the shooting. As noted, he
presented no testimony or other evidence on his own behalf. As also noted, Parrack
asserted an alibi defense. Parrack's father testified that his son had been home at the time
the shooting occurred. (6) The father did not implicate appellant.
Appellant complains of statements and cross-examination by Parrack's counsel that
he contends were designed to cast blame on him and deflect it from Parrack. We agree
the record reflects an effort by Parrack's counsel to implicate Jose as the second
participant in the attempted robbery. Portions of his cross-examination of Jose can be
seen as part of that effort. He also attacked Jose's alibi and his credibility during closing
argument and argued that evidence pointed to Jose rather than Parrack. Appellant,
though, made a similar attack on Jose's credibility, alibi and character during closing
argument, arguing to the jury that the case against him "boils down to" whether they
believed Jose's testimony. Appellant's brief on appeal points to six occasions during trial
on which appellant again urged the motion to sever. Assuming, without deciding, that
appellant's reurging of the motion was timely, based on the prejudice asserted at the time
of the reurging, see Aguilar, 26 S.W.3d at 909-10, on none of those occasions can we say
the evidence demonstrated that the jury, in order to believe the core of one defense, must
necessarily disbelieve the core of the other. See Aguilar v. State, 39 S.W.3d 700, 703
(Tex.App.-Corpus Christi 2001, pet. ref'd) (on remand); Silva, 993 S.W.2d at 719.
Appellant asserts the failure of the trial court to give a limiting instruction with
respect to certain evidence as an additional ground of prejudice from the joint trial.
Appellant's position is that evidence admissible only against Parrack was available for the
jury to consider in convicting appellant. When evidence which is admissible as to one party
or for one purpose but not admissible as to another party for another purpose is admitted,
the court, upon request, shall restrict the evidence to its proper scope and instruct the jury
accordingly. Tex. R. Evid. 105(a).
Appellant refers to six instances in which he requested but was denied an instruction
that specific evidence was not to be considered against him. Specifically, appellant
requested such an instruction in regard to Justin Tarr's testimony that Parrack showed him
a .357 Sig Glock handgun that looked like State's exhibit 16. Appellant also requested the
same instruction for evidence seized when Parrack's home and vehicle were searched.
This evidence consisted of pictures of items found in Parrack's pickup, including a gun
magazine that fit State's exhibit 16. He also requested the instruction when the audiotape
of a conversation between Parrack's father and a police officer was received as evidence.
Appellant also refers to the court's refusal to give the same limiting instruction in the jury
charge. The trial court's denial of appellant's requested limiting instructions does not
demonstrate prejudice from the joint trial. "The key to this claim of prejudice is that evidence
would be admissible in a joint trial that would not be admitted in an individual trial." 43
George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure §
33.44 (2001), citing McWilliams v. State, 496 S.W.2d 630 (Tex.Crim.App. 1973). We see
no reason why the evidence for which appellant requested a limiting instruction would be
inadmissible if he were tried individually. Appellant's third issue is overruled.
Having overruled appellant's issues, we affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
1. "
"
2.
'
3. Parrack was a former Thriftway employee.
4. " "
' ' "
- - '
- -
"
5. We note Crawford v. Washington was decided after the completion of briefing in
this case.
6.
'
| {
"pile_set_name": "FreeLaw"
} |
523 F.2d 1284
UNITED STATES of America, Plaintiff-Appellee,v.Thomas Boyd KELLUM and Jane K. Kellum, Defendants-Appellants.
No. 74-2990.
United States Court of Appeals,Fifth Circuit.
Nov. 28, 1975.
W. Timothy Jones, Jackson, Miss., William H. Barbour, Sr., Yazoo City, Miss., for defendants-appellants.
Robert E. Hauberg, U. S. Atty., Joseph E. Brown, Jr., Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before BELL, COLEMAN and GEE, Circuit Judges.
COLEMAN, Circuit Judge.
1
Thomas Boyd Kellum and Mrs. Jane K. Kellum, husband and wife, appeal from a money judgment entered against them for an indebtedness owed the United States. Although not for the reasons assigned by the District Court, we affirm its Judgment.
2
For the unpaid balance of a loan from the Small Business Administration, the Kellums, on March 6, 1964, were indebted in the principal sum of $23,848.39, plus interest. On October 28, 1964, in the District Court for the Northern District of Mississippi, a consent judgment was entered against the debtors for the amount of the indebtedness. Thereafter, for seven years To the day, nothing happened. On October 28, 1971, pursuant to 28 U.S.C. § 1963,1 the Northern District judgment was registered in the Southern District, where the Kellums then resided.
3
It was not, however, until April 16, 1973, in the Southern District, that the United States filed its civil action "to revive and renew" the consent judgment theretofore obtained on October 28, 1964.
4
The Kellums raised the following defenses to the 1973 complaint:
5
(1) The action is barred by 28 U.S.C. 2415(a).2
6
(2) The claim was extinguished by §§ 743, 733, and 735 of the Mississippi Code of 1942 (now codified as 15-1-3, 15-1-43, and 15-1-47, respectively, of the Miss.Code of 1972).3(3) The cited state statutes, in combination with 28 U.S.C. § 1962,4 bar the action.
7
(4) The claim is barred by estoppel.
8
The District Court held that the "Section 1963 registration (in the Southern District) was tantamount to the obtaining of a new judgment in a plenary action duly filed * * * (and) constituted an effective revival of the original judgment rendered in the Northern District of Mississippi."5
9
The motion to dismiss was denied, the defendants declined to plead further, and final judgment was entered in favor of the United States for the full amount claimed. Relying on this approach, the District Court did not reach the issue of limitations. Since, however, the suit was to "revive and renew a judgment" this was a very viable issue in the case.
Statutes of Limitation
10
The United States, absent its own consent, is not subject to local statutes of limitations, United States v. John Hancock Mutual Insurance Company, 1960, 364 U.S. 301, 81 S.Ct. 1, 5 L.Ed.2d 1; United States v. Summerlin, 1940, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283; Phillips v. Commissioner of Internal Revenue, 1931, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289; United States v. Thompson, 1878, 98 U.S. 486, 25 L.Ed. 194; Gibson v. Chouteau, 1871, 80 U.S. 92, 13 Wall. 92, 20 L.Ed. 534.
11
Congressional intent to waive governmental immunity from state statutes of limitation must be "clearly manifested", United States v. Wurts, 1938, 303 U.S. 414, 58 S.Ct. 637, 82 L.Ed. 932; United States v. Nashville, C. & St. L. R. Co., 1886, 118 U.S. 120, 6 S.Ct. 1006, 30 L.Ed. 81.
12
Moreover, if Congress attaches conditions to such a waiver, those conditions must be complied with, Lucas v. Pilliod Lumber Company, 1930, 281 U.S. 245, 50 S.Ct. 297, 74 L.Ed. 829, 67 A.L.R. 1350.
13
In the case presently before us, the first question is whether Congress has waived the general governmental immunity from the application of the local (Mississippi) Seven year statute of limitations.
14
We think not.
15
The Small Business Act, 15 U.S.C., § 631 et seq., which created the Small Business Administration, imposes no statute of limitations upon that Organization. The consent judgment of October 28, 1964, was in favor of the United States, and properly so, see 15 U.S.C., §§ 633(c)(1), 633(c)(2), and 635(a); Small Business Administration v. McClellan, 1960, 364 U.S. 446, 450, 81 S.Ct. 191, 5 L.Ed.2d 200.
16
Appellants contend, however, that 28 U.S.C., § 2415(a) (Footnote 2, Supra ) supplies the necessary waiver or consent. That statute provides, with exceptions, that "every action for money damages brought by the United States upon any express or implied contract shall be barred unless the complaint is filed within six years after the right of action accrues * * * ". Additionally, they argue that a consent judgment is a contract, Ergo, the 1964 consent judgment is a contract, thus barred by Section 2415(a).
17
Our Court has recently said that a consent decree is In many respects (emphasis added) a contract between the parties thereto, United States v. City of Jackson, Mississippi, 5 Cir., 1975, 519 F.2d 1147, 1151, citing United States v. ITT Continental Baking Company, 420 U.S. 223, 236-37, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975). As we read it, the cited case involved the correct construction, or interpretation of, a consent decree entered into between ITT and the Federal Trade Commission. We offer the general observation that the contractual aspect of a consent judgment exists chiefly, if not altogether, in regard to disputes concerning what the parties actually consented to as reflected by the judgment in question.
18
A consent judgment has the same force and effect as any other judgment until set aside in the manner provided by law, May v. Moss, 8 Cir. 1952-1954, 194 F.2d 133, Cert. denied 343 U.S. 952, 72 S.Ct. 1046, 96 L.Ed. 1353; 212 F.2d 400; Kiwi Coders Corp. v. Acro Tool and Die Works, 7 Cir. 1958, 250 F.2d 562; Fleming v. Huebsch Laundry Corp., 7 Cir. 1947,159 F.2d 581; Siebring v. Hansen, 8 Cir. 1965, 346 F.2d 474, 477. Furthermore, the legislative history of 28 U.S.C., § 2415 provides no comfort for the appellants. The Senate report on Public Law 89-505, which became Section 2415, declares the purpose of the Act to be the establishment of limitations on contract and tort actions by the United States. At no point does the report designate a judgment as being a contract for the purposes of the Act, 1966 U.S.Code Cong. & Adm.News, pp. 2502-14.
19
We are convinced that this consent judgment for the recovery of money owed the United States, the amount of which is not in dispute, embraced all of the attributes commonly accorded a judgment, as much so as if it had been the result of litigation. It must be treated as a judgment, not as a contract.
20
Therefore, we hold that 28 U.S.C., § 2415 has no applicability to the judgment entered on October 28, 1964; that the United States has not waived its immunity from the applicability of the State seven year statute of limitations; and that the efficacy of the judgment has never been and is not now barred by any statute of limitations. On the same reasoning the Judgment could not be extinguished by a state statute.
21
Consequently, insofar as the continuing validity Vel non of the judgment was concerned there was no necessity for the United States to bring suit to renew or revive it. Neither could there be any legal impediment to renewal or revival if the United States saw fit to seek it.
22
It is altogether undisputed that the Judgment of October 28, 1964 was duly entered by a court having jurisdiction of the parties and the subject matter. The amount owed is not denied. Accordingly, the District Court should have entered judgment reviving and renewing the 1964 judgment.
Judgment Lien and Levy of Execution
23
A further examination of the law quickly reveals the reason for seeking to revive the 1964 Judgment. By virtue of certain statutes and rules enacted by Congress, the Judgment gave the government neither a lien nor the right to levy execution after October 28, 1971.
24
As to liens, 28 U.S.C. Section 1962 provides, in pertinent part:
25
Every judgment rendered by a district court within a State shall be a lien on the property located in such State in the same manner, to the same extent and under the same conditions as a judgment of a court of general jurisdiction in such State, and shall cease to be a lien in the same manner and time.
26
As to execution on a judgment, Rule 69(a) of the Federal Rules of Criminal Procedure clearly states:
27
Rule 69.
EXECUTION
28
(a) In General. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.
29
The life of a lien or a judgment in Mississippi is specified as follows:
30
A judgment or decree rendered in any court held in this state shall not be a lien on the property of the defendant therein for a longer period than seven years from the rendition thereof, unless an action be brought thereon before the expiration of such time. However, the time during which the execution of a judgment or decree shall be stayed or enjoined by supersedeas, injunction or other process, shall not be computed as any part of the period of seven years. Section 15-1-47, Miss.Code 1972.
31
Thus, on October 28, 1971 the United States had a judgment against the Kellums which could be renewed or revived, but it was incapable of enforcement, either
32
by lien or levy. It was a tiger without teeth. Was the 1964
33
Judgment Revived and Renewed by Registering it in
34
Another District Within the Same State?
35
If, as the government contends, and as the District Court decided, the 1971 registration of the 1964 Judgment was "tantamount to the obtaining of a new judgment in a plenary action duly filed * * * (and) constituted an effective revival of the original judgment", the registration revived both the lien and the right to levy execution.
36
We, however, must disagree with this position.
37
In support of its views, the government strongly relies on Stanford v. Utley, 8 Cir. 1965, 341 F.2d 265 (per Blackmun, J.). In the District Court for the Southern District of Mississippi, Stanford had a default judgment, dated April 25, 1956, against Utley and Hood. On April 26, 1956, pursuant to 28 U.S.C., Section 1963, the judgment was registered in the Eastern District of Missouri. Nothing happened until August 6, 1963, when the defendants were noticed for depositions to discover assets. Utley moved to quash the notice, pleading the Mississippi seven year statute of limitations, which had run. The District Court granted the motion.
38
The problem presented by the appeal was quite succinctly stated as follows:
39
We thus have the interesting situation where there are (a) a 1956 Mississippi federal judgment registered in that year in a Missouri federal court; (b) a seven year Mississippi period of limitations; (c) a ten year Missouri period of limitations; (d) a federal statute providing that a registered judgment "shall have the same effect as a judgment of the district court of the district where registered"; and (e) an effort by the judgment creditor to discover Missouri assets more than seven but less than ten years after the registration of the judgment in Missouri. In these circumstances what is the effect of the registration? 341 F.2d at 267.
40
The problem was resolved in the following manner:
41
We have concluded that § 1963 is more than "ministerial" and is more than a mere procedural device for the collection of the foreign judgment. We feel that registration provides, So far as enforcement is concerned, the equivalent of a new judgment of the registration court. In other words, for the present fact situation and for enforcement purposes, the Missouri federal registration equated with a new Missouri federal judgment on the original Mississippi federal judgment, that is, it is no different than a judgment timely obtained by action in Missouri federal court on that Mississippi judgment. It follows from this that the Missouri ten year period of limitations, provided by V.A.M.S. § 516.350, and not the Mississippi seven year period, applies so far as enforcement is concerned, and that execution proceedings by the plaintiff within the Missouri period, and otherwise proper, are not subject to dismissal. (Emphasis added.) 341 F.2d at 268.
42
We agree with the holding in Stanford but we find it to be inapposite to the issue here presented. We think Stanford was correctly analyzed by the Ninth Circuit in Matanuska Valley Lines, Inc. v. Molitor, 365 F.2d 358 (1966), "the holding of the Eighth Circuit court relates to the effect of valid registration upon subsequent enforcement proceedings", 365 F.2d at 360.
43
Matanuska declined to allow the registration of an eight year old Alaska judgment (where the statute of limitations was ten years) in the State of Washington, (where the statute ran in six years).
44
Stanford enforced a registered judgment from a seven year state (Mississippi) in a ten year state (Missouri).
45
Neither Stanford nor Matanuska held that registration created a brand new judgment, to be enforced as if there had never been a judgment in the case.6
46
Here, we have a judgment entered in Mississippi and registered in Mississippi, albeit in another district. The crucial point is that the same seven year period for enforcement applied in both districts. The statute, Section 1963, specifies that "A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be Enforced in like manner", that is, enforced according to the laws of the state where registered. The 1963 Kellum judgment registered In the same state in 1971 was nothing more than the 1964 judgment, and was to be enforced according to the laws of Mississippi. It is just that simple, and to hold otherwise would be to emasculate 28 U.S.C. Section 1962 as to liens and Rule 69(a) as to the levy of execution for the enforcement of the judgment, not to mention the rule that remedies are to be enforced according to the law of the forum. To be more specific, the effect of the judgment remained the same, the Kellums were indebted to the United States for a specified sum of money, but the enforcement thereof continued to be governed by the Mississippi statute as controlled by Section 1962 and Rule 69(a). There was no new judgment as would have been obtained in a plenary action duly filed. Neither did the registration renew or revive the 1964 judgment.
47
After October 28, 1971 the United States had its judgment but until the entry of the new judgment, reviving and renewing the original, it had neither a lien nor the right to levy execution.
48
Nevertheless, because a new judgment was entered against the defendants as to the sums due the United States, although entered for the wrong reasons, and the United States was clearly entitled to renewal and revivor, the Judgment of the District Court is
49
Affirmed.
1
28 U.S.C., § 1963
A judgment in an action for the recovery of money or property now or hereafter entered in any district court which has become final by appeal or expiration of time for appeal may be registered in any other district by filing therein a certified copy of such judgment. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.
A certified copy of the satisfaction of any judgment in whole or in part may be registered in like manner in any district in which the judgment is a lien.
2
The federal statute relied on by appellants is 28 U.S.C., § 2415, which says in relevant part:
§ 2415. Time for commencing actions brought by the United States.
(a) Subject to the provisions of section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by law, whichever is later.
(g) Any right of action subject to the provisions of this section which accrued prior to the date of enactment of this Act shall, for purposes of this section, be deemed to have accrued on the date of enactment of this Act.
3
§ 15-1-3. Completion of limitation extinguishes right
The completion of the period of limitation prescribed to bar any action, shall defeat and extinguish the right as well as the remedy. However, the former legal obligation shall be a sufficient consideration to uphold a new promise based thereon.
S 15-1-43. Limitations applicable to actions founded on domestic judgments or decrees.
All actions founded on any judgment or decree rendered by any court of record in this state, shall be brought within seven years next after the rendition of such judgment or decree, and not after, and an execution shall not issue on any judgment or decree after seven years from the date of the judgment or decree.
S 15-1-47. Lien of judgments limited.
A judgment or decree rendered in any court held in this state shall not be a lien on the property of the defendant therein for a longer period than seven years from the rendition thereof, unless an action be brought thereon before the expiration of such time. However, the time during which the execution of a judgment or decree shall be stayed or enjoined by supersedeas, injunction or other process, shall not be computed as any part of the period of seven years.
Mississippi Code of 1972.
4
28 U.S.C., § 1962
Every judgment rendered by a district court within a State shall be a lien on the property located in such State in the same manner, to the same extent and under the same conditions as a judgment of a court of general jurisdiction in such State, and shall cease to be a lien in the same manner and time.
5
Of course, if this is correct, no necessity existed for the filing of a suit to renew and revive
6
The Stanford opinion was careful to state:
We note by way of caveat that § 1963 presents much to be answered in the future. . . . May a registered judgment be revived by a later reregistration? . . . The presence of these and undoubtedly many other questions prompts us to emphasize that the conclusion we reach here is one having application to the fact situation of this case. We do not now go so far as to say that registration effects a new judgment in the registration court for every conceivable purpose; . . . . (Emphasis added.) 341 F.2d at 271.
Relatedly, 7 Moore's Federal Practice P 69.03(3) says:
(t)o aid the collectibility of federal judgments, and without the necessity of bringing an independent action on the federal judgment in Another state where the judgment debtor may have property, a general registration statute was added by the Judicial Code Revision of 1948 (28 U.S.C. § 1963). (Footnotes omitted.) (Emphasis added.)
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6071
CORNELL ROBINSON,
Petitioner - Appellant,
v.
GREENVILLE CORRECTIONAL CENTER, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:11-cv-00087-GBL-IDD)
Submitted: April 19, 2012 Decided: April 25, 2012
Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Cornell Robinson, Appellant Pro Se. Gregory William Franklin,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornell Robinson seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2254 (2006) petition.
The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(A) (2006). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Robinson has not made the requisite showing. Accordingly,
we deny a certificate of appealability and dismiss the appeal.
We dispense with oral argument because the facts and legal
2
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
3
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Case: 13-13201 Date Filed: 04/22/2015 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13201
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:13-cv-01585-MEF; 1:01-cr-00470-MEF-1
ROLAND MATHIS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 22, 2015)
Before JORDAN, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
Case: 13-13201 Date Filed: 04/22/2015 Page: 2 of 8
Roland Mathis, a federal prisoner proceeding pro se, appeals the district
judge’s denial of his motion for appointment of counsel outside the Federal
Defender Program (“FDP”). We affirm.
I. BACKGROUND
In 2004, a jury convicted Mathis of intentionally distributing at least five
kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii);
conspiracy to possess with intent to distribute at least five kilograms of cocaine and
marijuana, in violation of 21 U.S.C. § 846; conspiracy to commit money
laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i), and (h); and
money laundering, in violation of § 1956(a)(1)(B)(i). Former Judge Jack T. Camp
sentenced Mathis to 260 months of imprisonment in 2006. On direct appeal, we
affirmed his conviction and sentence. United States v. Mathis, 239 F. App’x 513
(11th Cir. 2007), cert. denied, 552 U.S. 1273, 128 S. Ct. 1687 (2008).
Mathis moved for habeas relief under § 2255, which the district judge denied, and
we affirmed.
In December 2010, Mathis filed a pro se pleading, entitled Motion for
Review of Otherwise Final Sentence Pursuant to 18 U.S.C. § 3742(a). His motion
alleged his sentence imposed by former Judge Camp was invalid, because of Judge
Camp’s misconduct and racial bias. Mathis requested immediate release from
federal prison.
2
Case: 13-13201 Date Filed: 04/22/2015 Page: 3 of 8
On March 14, 2011, the district judge issued an order explaining that
Mathis’s allegations of bias and judicial misconduct were too vague and general to
warrant a hearing or permit the judge to determine whether relief was appropriate.
Therefore, the judge appointed the FDP to consult with Mathis concerning whether
a viable motion could be filed. The judge ordered that any motion be filed by
August 1, 2011. The order stated: “This Order shall serve as an Order appointing
the Federal Public Defender to file the perfected motion if the latter determines that
such a motion should be filed. Otherwise, the Defendant, acting pro se, may file a
perfected motion by August 1, 2011.” R. at 4455. On August 1, 2011, Stephanie
Kearns of the FDP filed a notice stating, after review of the record in Mathis’s case
and other information concerning former Judge Camp’s alleged bias and mental-
health impairment, the FDP would not be filing a motion on Mathis’s behalf.
In December 2011, Mathis moved for appointment of counsel under Federal
Rule of Criminal Procedure 44(c) and sought new counsel outside the FDP to
assist him with seeking a new trial, based on Judge Camp’s misconduct and
alleged racial bias. Mathis stated the FDP had represented over five witnesses,
who had obtained plea bargains to testify against him at his trial 1; therefore, he
1
Mathis did not name the five witnesses against him he contends the FDP represented at trial.
The government identifies Mathis’s codefendants and the attorneys who represented them in its
brief. Appellee’s Br. at 5-7. Other than Jerome Mathis, who was represented by Regina
Stephenson of the FDP for his initial appearance only, none of Mathis’s codefendants were
represented by the FDP. Id. at 7.
3
Case: 13-13201 Date Filed: 04/22/2015 Page: 4 of 8
contended the FDP could not provide him conflict-free representation. His case
was reassigned to Judge Mark E. Fuller in the Middle District of Alabama in 2012,
who issued an order informing Mathis of his intent to construe Mathis’s various
motions as a single § 2255 motion, gave him Castro 2 warnings, and ordered
Mathis to file any perfected motion. Mathis then filed a motion for clarification
and asked the judge whether his construed § 2255 motion would be successive. He
also explained that the judge previously had ordered the FDP to consult with him,
but the FDP had not done so. He asked the judge what had become of the order
appointing the FDP. The district judge granted Mathis’s motion for clarification
and explained (1) Mathis already had filed a § 2255 motion that had been denied
on the merits; and (2) the FDP had filed a notice that it would not file a motion on
Mathis’s behalf. Unless Mathis wished to retain counsel, the judge informed he
must proceed pro se.
Mathis then filed a pleading, entitled Statement in Compliance with Court’s
Order, and asked the district judge to construe his pending motions as a single
request for appointment of counsel outside of the FDP. Mathis also filed an
objection to the district judge’s construing his motions as a § 2255 motion, because
his motions did not directly challenge his conviction or sentence, making them not
2
Castro v. United States, 540 U.S. 375, 383, 124 S. Ct. 786, 792 (2003) (holding a district judge
must notify a pro se defendant when it intends to recharacterize an otherwise labeled pleading as
a first § 2255 motion, warn the defendant that the recharacterization will restrict “second or
successive” motions, and provide the defendant with an opportunity to withdraw or amend the
motion).
4
Case: 13-13201 Date Filed: 04/22/2015 Page: 5 of 8
cognizable under § 2255. The judge summarily denied Mathis’s motion for
appointment of counsel. In denying his motion for appointment of counsel, the
judge explained Mathis had no right to appointment of counsel at that stage of the
proceedings. Mathis filed a notice of appeal, which the district judge construed as
a motion for a certificate of appealability (“COA”) and denied it, as well as
Mathis’s motion for leave to appeal in forma pauperis (“IFP”).
Mathis then moved in this court to proceed without a COA and IFP. We
granted his motion to proceed without a COA; he did not need a COA to proceed,
since he was not appealing a final order in a § 2255 proceeding. United States v.
Mathis, No. 13-13201 (11th Cir. Feb. 11, 2014). Because we concluded Mathis’s
appeal from denial of his motion for appointment of counsel was frivolous, we
denied his motion to proceed IFP. Id. Mathis has appealed the latest denial of his
motion for appointment of counsel.
5
Case: 13-13201 Date Filed: 04/22/2015 Page: 6 of 8
II. DISCUSSION
On appeal, Mathis argues the district judge should have appointed him
conflict-free counsel outside the FDP. We review a district judge’s decision not to
appoint counsel for abuse of discretion. United States v. Berger, 375 F.3d 1223,
1226 (11th Cir. 2004). “[D]efendants have a Sixth Amendment right to counsel on
direct appeal, but not when they collaterally attack their sentences.” Id.; see
Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987) (“[T]he
right to appointed counsel extends to the first appeal of right, and no further.”).
Mathis had no right to counsel at the stage of his proceedings he made the
request, because his conviction became final, when the appellate process had
become final. Mathis’s conviction became final, when the Supreme Court denied
certiorari on March 17, 2008. See Washington v. United States, 243 F.3d 1299,
1300-01 (11th Cir. 2001) (recognizing, when a convicted defendant is unsuccessful
on appeal and files a petition for certiorari with the Supreme Court, his conviction
becomes final when the Supreme Court either denies certiorari or issues a decision
on the merits). Therefore, the district judge did not abuse his discretion by denying
Mathis’s motion for conflict-free counsel outside the FDP.
In addition, Mathis has failed to show any actual conflict regarding his
counsel. “[T]o demonstrate a violation of his Sixth Amendment rights, a defendant
must establish that an actual conflict of interest adversely affected his lawyer’s
6
Case: 13-13201 Date Filed: 04/22/2015 Page: 7 of 8
performance.” Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719
(1980). The mere possibility of a conflict of interest does not rise to the level of a
Sixth Amendment violation. Id. Joint representation of two defendants does not
necessarily result in a conflict of interest. See Smith v. Newsome, 876 F.2d 1461,
1463-64 (11th Cir. 1989) (recognizing joint representation did not prevent effective
plea bargaining on behalf of either defendant). We have established a test to
distinguish actual from potential conflict:
We will not find an actual conflict [of interest] unless appellants can
point to specific instances in the record to suggest an actual conflict or
impairment of their interests . . . . Appellants must make a factual
showing of inconsistent interests and must demonstrate that the
attorney made a choice between possible alternative courses of action,
such as eliciting (or failing to elicit) evidence helpful to one client but
harmful to the other. If he did not make such a choice, the conflict
remained hypothetical.
Smith v. White, 815 F.2d 1401, 1404 (11th Cir. 1987).
Although Mathis contends the FDP represented five witnesses who testified
against him at his trial, the record establishes only one individual who testified
against Mathis at trial, who also was represented by the FDP. Stephanie Kearns of
the FDP was appointed to represent Mathis on March 14, 2011, approximately nine
years after Mathis’s trial, for the limited purpose of reviewing his case to
determine if Mathis had a viable claim relative to former Judge Camp’s
misconduct and alleged racial bias. The district judge’s order did not require the
FDP to do anything more than consult with Mathis and determine whether filing a
7
Case: 13-13201 Date Filed: 04/22/2015 Page: 8 of 8
motion on his behalf was warranted. Moreover, the judge’s order appointing the
FDP makes clear that Mathis was required to proceed pro se, if the FDP
determined that it could not file a viable motion on his behalf. Per the terms of the
district judge’s order, Mathis could have proceeded pro se. The district judge
correctly denied Mathis’s motion to appoint counsel. 3
AFFIRMED.
3
Mathis’s reliance on the doctrines of res judicata and law of the case is unavailing. The
doctrine of res judicata or claim preclusion “bars the parties to an action from litigating claims
that were or could have been litigated in a prior action between the same parties.” Lobo v.
Celebrity Cruises, Inc., 704 F.3d 882, 892 (11th Cir.), cert. denied, 134 S. Ct. 61 (2013).
Because neither party is seeking to litigate a claim that was or could have been litigated in a prior
action between the same parties, res judicata does not apply. Id. “[L]aw of the case applies only
where there has been a final judgment.” Vintilla v. United States, 931 F.2d 1444, 1447 (11th Cir.
1991) (citation and internal quotation marks omitted). Because the district judge’s March 14,
2011, order was not a final judgment, and Mathis’s case remained in the district court’s
jurisdiction after it issued that order, the law-of-the-case doctrine is inapplicable. Id.
8
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354 N.W.2d 147 (1984)
218 Neb. 271
Christine M. LITTLE, Appellee and Cross-Appellant,
v.
James L. GILLETTE et al., Appellants and Cross-Appellees.
Nos. 83-442, 83-686.
Supreme Court of Nebraska.
August 10, 1984.
*149 Daniel E. Wherry of Johnston, Barber, Wherry & Knight, Lincoln, for appellant Gillette.
Thomas J. Culhane and Tamra L. Wilson of Erickson, Sederstrom, Leigh, Eisenstatt, Johnson, Kinnamon, Koukol & Fortune, P.C., Omaha, for appellant Sec. Bank and Trust Co.
Thomas J. Fitchett of Pierson, Ackerman, Fitchett, Akin & Hunzeker, Lincoln, for appellants Edwards and Gateway.
Stephen Speicher, Lincoln, for appellee and cross-appellant.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.
WHITE, Justice.
Appellee, Christine M. Little Koenig (Little), brought this action to recover damages for fraud. Her second amended petition was based on both common-law fraud and a violation of the Nebraska Consumer Protection Act, Neb.Rev.Stat. §§ 59-1601 et seq. (Reissue 1978), for damages sustained by her in the purchase and operation of a Mexican fast-food franchise restaurant in Beatrice, Nebraska. As defendants, she named Donald B. Edwards (Edwards), Gateway Realty of Beatrice, Inc. (Gateway), James L. Gillette (Gillette), First Security Bank and Trust Co. (Bank), Nancy Gillette, and First Security Savings of Beatrice, Nebraska (First Security Savings). The case was tried to a jury in the district court for Gage County, Nebraska. At the close of Little's evidence the court, on the parties' respective motions, dismissed Nancy Gillette and First Security Savings. At the close of all the evidence the court, on its own motion, consolidated the statutory and common-law causes of action. The jury was instructed on the elements of common-law fraud only. The jury returned a verdict for Little against all the remaining defendants in the amount of $43,220.30.
All the appellants filed timely motions for a new trial as well as motions for judgment notwithstanding the verdict. These motions were overruled on May 9, 1983, and the court requested Little to submit information relative to award of attorney fees under § 59-1609. Appellants, having orally suggested the possibility that § 59-1617 exempted them from liability under the Consumer Protection Act, then filed their motions for leave to amend their general denials and plead the effect of § 59-1617. In response, Little filed a motion for leave to amend her second amended petition, a motion she had made previously during the trial.
On August 19, 1983, the court overruled all the parties' motions for leave to file amended pleadings, denied Little's request for statutory damages under § 59-1609, entered judgment on the verdict, and awarded Little costs and $10,900 in attorney *150 fees pursuant to § 59-1609. Appellants, having previously appealed from the order overruling their motions for a new trial and for judgment notwithstanding the verdict, then filed a separate appeal from the order awarding attorney fees. Those appeals and the appellee's cross-appeal have been consolidated in this court.
The facts, taken in light most favorable to the prevailing party, reveal that in July or August 1979 Little, having previously had some success running a motel, sought to leave her job at a drugstore in Beatrice and reenter the motel field. Gateway, through one of its agents, Edwards, had sold her the home in which she then resided. She had been satisfied with this transaction and went to Gateway and Edwards for help in locating a motel.
Edwards informed her that he knew of no motels currently available, and he showed her a clothing store instead. After reviewing certain financial records, which showed gross sales of $20,000 per year and a net profit of $2,000, Little informed Edwards that she was not interested in the business as it had insufficient net profit.
On September 12, 1979, Gateway obtained a listing contract from Beatrice Taco Corporation on a piece of commercial real estate. Edwards showed the property to Little. Little informed Edwards that a restaurant business did not interest her. Two weeks later Edwards and Little revisited the site. On that occasion they went inside. Edwards told her the business had been closed but could be a good business if the right person got in there; that Little was the right person; and that he knew the business could make money. Subsequently, a third trip was made to the site. Frank Smith, Jr., Gateway's president, accompanied Little and Edwards. They discovered certain documents inside the building. All three examined them, but none was able to gain any useful information concerning the past operation's profit or loss. They also discovered a brochure from the Aunt Chilotta franchise which showed eight separate calculations of net income per year based on different levels of sales. Edwards, however, told Little that the figures shown would have to be checked out, since they appeared to depend on local variables. He was to make that investigation but never did. Little further testified that Edwards quoted her a figure of $10,000 net profit per month as likely from the operation of the business. He made these statements to her at his office, in her home, and during two conversations at the offices of the Bank, where Little had gone with him to discuss financing possibilities. On these latter two occasions Edwards' statements were confirmed by Gillette; both Gillette and Edwards represented to the appellee that she could make a net profit of $10,000 per month. Little also testified that Nancy Gillette, Gillette's wife and a stockholder of the Bank and an officer, director, and stockholder of First Security Savings, discussed the business' potential and represented to the appellee that she could make a profit.
A purchase agreement for the restaurant was signed by Little on October 16, 1979, for $75,000. To raise the purchase price Little borrowed money from both the Bank and from First Security Savings. After a 2-week training course offered by the Aunt Chilotta franchise, the restaurant was opened by the appellee on January 7, 1980. Little managed the property until about May 1980 and then hired a Mr. Crosier as her assistant manager. Plaintiff fired Crosier after about 2 weeks, and the business was closed for about 2 weeks thereafter, until early June 1980. Crosier was then rehired. In December 1980 David Pethoud was hired to manage the property. Pethoud managed the property for 6 months, until June 1981. At that time Little resumed management of the property, and on September 28, 1981, the restaurant was closed. In December 1980 appellee listed the property for sale with Gateway, but a buyer was never found. Except for a short period of time, the business was operated at a loss.
The first question to be resolved on appeal is whether or not a cause of action for fraudulent misrepresentation exists under *151 the facts of this case. We believe that it does.
It is a general rule that fraud must relate to a present or preexisting fact and cannot ordinarily be predicated on an unfulfilled promise or a statement as to future events. Cook Livestock Co., Inc. v. Reisig, 161 Neb. 640, 74 N.W.2d 370 (1956); Boettcher v. Goethe, 165 Neb. 363, 85 N.W.2d 884 (1957). This general rule has a well-recognized exception, the exception being when such representations as to future acts are falsely and fraudulently made with an intent to deceive. Central Constr. Co. v. Osbahr, 186 Neb. 1, 180 N.W.2d 139 (1970); Transportation Equipment Rentals, Inc. v. Mauk, 184 Neb. 309, 167 N.W.2d 183 (1969). In Ames Bank v. Hahn, 205 Neb. 353, 356, 287 N.W.2d 687, 689 (1980), this court had occasion to decide whether a party had adequately pleaded an intent to deceive, and held:
The requirement of scienter is satisfied by alleging that the person making the statement knew the statement was false, or made it as a positive statement without knowledge as to whether it was true or false, and the false statement was made with intention that it should be acted upon.
In the instant case the jury was instructed that actionable fraud may not be based upon mere expression of opinion unless such an opinion is given with an intent to deceive. The instruction was proper and supported by Nebraska case law. See, Central Constr. Co. v. Osbahr, supra; Ames Bank v. Hahn, supra. The record contains evidence from which the jury could conclude that the statements of Edwards and Gillette were made with an intent to deceive.
The jury heard direct testimony that Edwards knew that the appellee was seeking to buy a business that generated at least a reasonable profit. In fact Edwards was told that the reason Little did not wish to buy the clothing business that Edwards had shown her was because the previous operation did not generate enough profit. It could be inferred from the evidence that Gillette also knew that the appellee was seeking to buy a business with a profit potential. The record discloses that prior to the time that the purchase was completed, Gillette had told Smith that the previous operation of the Beatrice Taco Corporation was a "financial disaster." Gillette's brother was the president of the previous operation, and the Bank held the mortgage on the property. This mortgage was 12 months in default. Even after Edwards, who had been an owner of a fast-food business in Beatrice for 15 years, reviewed the Aunt Chilotta brochure which detailed expected profit potentials based on various degrees of volume, he continued to tell the appellee that she could make $10,000 a month net profit. Little testified that none of the appellants told her that the previous operation was a failure. She further testified that she relied on the representations of Edwards and Gillette that she could make a profit when she purchased the business. The motives for the false representation are clear: commission on the sale for Edwards and Gateway, and inducement for the sale of what was essentially property of the Bank for Gillette.
Against this background there was sufficient evidence in which the jury could find that the representations made by Edwards and Gillette came within the exception of opinions given with "intent to deceive." It is this finding of fraudulent intent that distinguishes the instant case from the cases of Smith v. Wrehe, 199 Neb. 753, 261 N.W.2d 620 (1978), and Boettcher v. Goethe, supra.
In the instant case Edwards' and Gillette's representations, although in the form of opinions, could have reasonably been understood by the appellee to imply that there were facts that justified the opinion or at least that there were no facts that were incompatible with it. Such is not the case, as all of the appellants knew that the previous operation was a failure. Although some allowance must be made for "sales talk," the appellants' false representations amounted to a "con" to induce the *152 appellee to purchase property she otherwise would not have purchased.
The appellants next contend that the appellee's recovery was barred because ordinary prudence would have prevented reliance on the statement. In Foley v. Holtry, 43 Neb. 133, 143, 61 N.W. 120, 123-24 (1894), we stated:
We have little sympathy with the theory always advanced in such cases that the defendant should be protected from the consequences of false statements made by him for the purpose of inducing the plaintiff to act, because the plaintiff had sufficient confidence in the defendant to believe the statement and not proceed upon the assumption that he was dealing with a man unworthy of belief. There are some cases where the fact lies so open before the plaintiff that he is unwarranted in closing his eyes to its existence and depending upon a statement made to him by the other party. We do not think that this principle applies to any case where an absolute statement of fact is made and where an investigation elsewhere would be necessary to disclose its falsity.... In such case the plaintiff may, if he choose, rely upon the representation made to him, and if he do so, the defendant cannot complain.
The appellants shed little light as to what investigation Little could have undertaken to ascertain that the previous operation was operated at a loss. She had asked for previous financial records, to no avail. Her suspicions were somewhat assuaged by the representations that she could make a profit by Edwards and Gillette, both of whom were experienced in business. The question of reliance was properly submitted to the jury, and it determined the issue adversely to the appellants' position. As the jury's determination was not clearly wrong, it will not be reversed on appeal.
Case No. 83-686 presents the question of whether the appellee's attorney was properly awarded fees of $10,900 under the Nebraska Consumer Protection Act, § 59-1609. The appellee invites us to overrule the cases of Kuntzelman v. Avco Financial Services of Nebraska, Inc., 206 Neb. 130, 291 N.W.2d 705 (1980), and McCaul v. American Savings Co., 213 Neb. 841, 331 N.W.2d 795 (1983), in which we held that because the institutions were regulated by the Nebraska Department of Banking and Finance, they were exempt from the provisions of the Consumer Protection Act under § 59-1617. That section states in part:
Exempted Transactions. Nothing in sections 59-1601 to 59-1622 shall apply to actions or transactions otherwise permitted, prohibited or regulated under laws administered by the Director of Insurance, the Public Service Commission, the federal power commission or any other regulatory body or officer acting under statutory authority of this state or the United States ....
(Emphasis supplied.)
The exemption provision of § 59-1617 is clearly stated and is applicable in the instant case. The Bank is regulated by the Nebraska Department of Banking and Finance. Gateway is regulated by the Nebraska State Real Estate Commission. It is obvious that the appellee's invitation was directed to the wrong branch of government.
In her cross-appeal the appellee first contends that the district court erred in denying her motion for sanctions under Rule 37(d)(1) of the Nebraska Discovery Rules. She contends that because Nancy Gillette, Gillette, and First Security Savings did not appear for the scheduled depositions, her motion for sanctions should have been granted. Rule 37(d)(1) allows sanctions when a party fails "[t]o appear before the officer who is to take his or her deposition, after being served with a proper notice." (Emphasis supplied.)
Although the transcript reveals that notices to take the depositions of the parties were filed, they contain no certificate of service, and the record does not otherwise reveal that the parties were properly served with notice or subpoenaed to compel attendance. Absent compliance with the notice requirements of Rule 26 of the Nebraska *153 Discovery Rules, any sanctions for nonappearance are inappropriate.
Little next contends that the trial court erred in dismissing Nancy Gillette and First Security Savings pursuant to the parties' motions for directed verdict at the close of the appellee's evidence. An essential element required to sustain an action for fraudulent misrepresentation is that a defendant's statement must induce the plaintiff to act to his injury or damage. See Ames Bank v. Hahn, 205 Neb. 353, 287 N.W.2d 687 (1980).
Although the appellee stated several times that the statements made by Gillette and Edwards induced her to buy the business, the record is absolutely silent of any inducement based on Nancy Gillette's statements. The appellee having failed to prove a prima facie case against Nancy Gillette and First Security Savings, they were properly dismissed from the litigation.
The remainder of the parties' assignments of error focuses on the issue of damages.
We have previously held that where a party is induced to enter a contract by fraud, the party must, upon discovery of the fraud, elect a remedy and shall either affirm the contract and sue for damages or disaffirm and be reinstated to the position existing prior to the contract. Russo v. Williams, 160 Neb. 564, 71 N.W.2d 131 (1955). If the party chooses not to rescind the contract but, rather, to affirm it and seek damages for the fraudulent inducement, the party's recovery is based on the difference in value of the property as fraudulently represented and its value in actuality. Camfield v. Olsen, 183 Neb. 739, 164 N.W.2d 431 (1969).
This jurisdiction adheres to what is known as the "benefit-of-the-bargain" rule, that is, that the measure of general damages for fraud in inducing the purchase of property is the difference between the actual value of the property at the time of the purchase and the value it would have had if the seller's representation had been true.
Rothery v. Pounds, 150 Neb. 25, 27, 33 N.W.2d 347, 348 (1948).
Although the parties agree that Little's action affirms the agreement to purchase the business, Little presented no proof to justify a benefit-of-the-bargain instruction. The maximum total damages testified to by the appellee is $22,560.54. The jury returned a verdict of $43,220.30. Rather than to speculate as to how the jury reached this verdict, we feel compelled to reverse the jury's verdict and remand the cause as to all the issues of damages raised by the pleadings.
In conclusion, we hold that the appellee had a viable cause of action for fraudulent misrepresentation against Gillette, Edwards, and their respective principals. Because the appellee failed to establish a prima facie case against Nancy Gillette and First Security Savings, those parties were properly dismissed from the lawsuit. Section 59-1617 exempts both Gateway and the Bank from the provisions of the Consumer Protection Act and therefore any award of attorney fees under that act was inappropriate. Because the notice requirements of Rule 26 of the Nebraska Discovery Rules were not complied with, any sanctions against the appellants were also inappropriate. We further conclude that the judgment must be reversed and the cause remanded for a new trial on the issue of damages.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS.
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540 F.2d 39
Complaint of Singapore Navigation Company, S. A., as ownerof the STEAMSHIP SINGAPORE TRADER, and China MarineInvestment Co., Ltd. and China Overseas Navigation Co.,Ltd., Plaintiffs, for exoneration from or limitation of liability.SINGAPORE NAVIGATION COMPANY, S. A., et al., Plaintiffs-Appellants,v.MEGO CORP. et al., Cargo Claimants-Appellees.
No. 368, Docket 75-7380.
United States Court of Appeals,Second Circuit.
Argued Jan. 22, 1976.Decided July 15, 1976.
Lawrence J. Bowles, New York City (Kirlin, Campbell & Keating, David W. Martowski, New York City, of counsel), for plaintiffs-appellants.
David L. Maloof, New York City (Donovan, Donovan, Maloof & Walsh, Charles C. Goodenough, New York City, of counsel), and Raymond P. Hayden, New York City (Hill, Rivkins, Carey, Loesberg & O'Brien, Robert J. Ryniker, New York City, of counsel), for Cargo claimants-appellees.
Before MOORE, OAKES and MESKILL, Circuit Judges.
MOORE, Circuit Judge:
1
In early October, 1971, Singapore Navigation Company, S.A., (the shipowner), owner of the steamship SINGAPORE TRADER (TRADER), was faced with a problem and a difficult decision. TRADER had sailed from Hong Kong on August 22, 1971, bound for New York, laden with a cargo of 74,641 paper cartons, consisting primarily of Christmas goods destined for the 1971 Christmas market in New York. This cargo was covered by 472 bills of lading. At the time of sailing, there was a possibility that a strike on the West Coast by the International Longshoremen's Association (ILA) might spread to the East. In anticipation of this contingency, a handstamp was superimposed on the front of each bill reading as follows:
2
"ALL U.S.A. CARGO WILL BE DISCHARGED AT THE NEAREST NON-U.S. PORT(s) IN EVENT OF THE LONGSHOREMEN STRIKE AT THE U.S. EAST COAST CONTINUES AND CARGO FROM SUCH DISCHARGING PORT(s) TO BILL OF LADING DESTINATIONS ARE AT THE COST AND RISK OF CARGO."
3
The TRADER arrived in New York (actually at a pier in Brooklyn) and commenced unloading its cargo on September 28, 1971. When only some 15-20% of the cargo had been unloaded, a strike possibility materialized and forced a cessation of work at midnight on September 30, 1971. At this point, the Shipowner had to look to the bills of lading which covered the cargo for its contract obligations. The handstamp read "All U.S.A. cargo will be discharged at the nearest non-U.S. port(s)" in event of a strike; the bill of lading (clause 5) in its printed form, read, in substance, that if discharge were impeded by a strike "the carrier and/or his agents and/or the master may (if in his or their uncontrolled discretion he or they think it advisable) at any time" alter or depart from the agreed route. Query: did the handstamp supplant clause "5"; did it merely give the Shipowner additional rights, namely to proceed to non-U.S. ports; and was it mandatory or discretionary?
4
The nearest non-U.S. ports were Canadian. The Shipowner's agent Gannet Freighting Inc. of New York, which with the assistance of Colley Motorships Ltd. of Montreal, had canvassed the Canadian situation, advised the Shipowner that the ports of St. John, Halifax, Quebec and Montreal were ILA controlled and hence, would be unavailable for the discharge of cargo from a runaway ship1 such as the TRADER. As a consequence, Gannet advised the Shipowner to proceed to Detroit, a non-ILA port, where adequate facilities existed for the immediate discharge and delivery of the cargo and where it had made appropriate arrangements for the TRADER. Gannet gave this recommendation on October 6, 1971, the Shipowner confirmed the Detroit arrangement on October 7, 1971, and the TRADER left New York for Detroit on October 8, 1971. Arrival after a stop in Montreal was estimated to be October 16, 1971.
5
All would have gone well, and the Christmas trees and decorations would have appeared in countless homes in the New York area at that festive season, but for the grounding of the TRADER in the early morning of October 15, 1971, while proceeding through the St. Lawrence Seaway en route to Detroit on a shoal outside of the channel and in the vicinity of Clayton, New York. The court's finding of negligent navigation is clearly supported by the evidence.
6
The other issues before the Court arise out of the claim of the cargo owners that in proceeding towards Detroit, the TRADER was guilty of an unreasonable deviation. Resolution of this question calls for answers to two questions: (1) was there a deviation and (2) if so, was it unreasonable?
7
(1) The voyage contemplated was from Hong Kong to New York, where the cargo normally would be discharged. However, the parties themselves provided for the contingency of a strike. If there were a strike, the printed clause 5 on the back of the bill gave the Owner and Master broad discretion to "abandon" or "suspend the voyage" or to depart from the customary route. Were there no other provisions our review would focus upon the exercise of that discretion. However, the parties endeavored to cover the strike contingency by creating a special clause superimposed on the bill by the handstamp. Even this clause presents a problem. Does "will" mean "must", as claimants argue, or is it merely permissive and but an extension to non-U.S. ports of the discretion given in clause 5, as the Shipowner argues. If "non-U.S. port(s)" was not mandatory, Detroit, ready, able and willing to receive the TRADER, should have been a satisfactory solution. In fact, the Court recognized that "discharge at Detroit fulfilled the ordinary condition of a bill of lading 'liberties clause' in that it was indeed among the best available safe and convenient ports.
8
(2) Was the deviation unreasonable? Obviously, some deviation was necessary if the cargo were to be unloaded. "Nearest Non-U.S. port(s)" could only mean Canada. The trial concentrated almost entirely on where in Canada the TRADER could not have discharged its cargo. Knowledgable witnesses concurred that the ILA strike would have affected normally available ports such as Saint John, Halifax, Quebec and Montreal,2 and that cargo could not have been discharged there. With this conclusion the trial court agreed and its findings are based upon adequate proof.
9
Towards the end of the trial and after four witnesses had testified and pre-trial testimony of five witnesses had been read, the testimony of the manager of Valleyfield Dock & Terminal Co., Ltd. was read. Valleyfield is a small Canadian non-ILA port a short distance from Montreal. It had the physical facilities to accommodate the TRADER, two sheds were available, one empty, the other substantially empty. Two general cargo ships could be handled. The labor force was adequate. Fifteen truck lines and two rail lines served the port.
10
However, Valleyfield was practically a forgotten port (at least by the parties here) until elevated out of its obscurity by the cargo claimants "motivated by retrospective vision and the infelicitous fact of stranding in asserting their rights to object to the deviation as unreasonable." (App. p. 117a) However, "hindsight," the progenitor of countless lawsuits, should not militate against the claimants if their legal rights are clear.
11
Their position is succinctly stated in their brief:
12
"Valleyfield being perfectly suitable, and the contract of carriage, by a specific mandatory stamp on its face calling for discharge there, the appellants' failure to do so and thus to expose the cargo to the dangers of further river transit was a deviation."
13
The Trial Court too, was influenced by the fact that "(t)he risk of carriage for the additional distance to Detroit was substantial"; that "the voyage is lengthy and difficult inland passage through narrow channels possessing many obstructions and special risks"; that a local compulsory pilot was required and that these perils were beyond those contracted for in the bills of lading. These considerations led the Court to the conclusion that:
14
"Under the circumstances, failure to discharge at Valleyfield, as the nearest non-U.S. port was an unjustified breach of the contract of carriage and an unreasonable deviation, rendering the vessel and her owner liable for the accident which occurred after having passed that port." (App. p. 123a)
15
There is no doubt that Valleyfield was three days nearer than Detroit and that the TRADER's cargo could have been discharged there although as the Court said "its facilities were less efficient than Detroit". But apparently Valleyfield as a possibility never entered the minds of the Shipowner or its agents at least as a feasible port for cargo discharge. Thus, if fault there be, attributable to the Shipowner or its agents, it would be that no effective investigation of Valleyfield's possibilities was made. If such were made, it is not revealed in the record. The agents assured themselves of the unavailability of the many ILA ports; probably Valleyfield was passed over as having inadequate facilities. The rest is interesting speculation. If the TRADER had turned in at Valleyfield, it would not have had to traverse the Seaway. If the pilot had not momentarily retired to make some financial instead of navigational calculations the TRADER might not have gone off course.
16
But some decision must be made. The loss of the cargo was not due to an act of God or a peril of the sea, but rather to a human error of navigation and the question of liability must be resolved from the contractual obligations which the parties imposed upon themselves.
17
The balancing scale swings almost evenly but the parties, endeavoring to cope with the possible emergency, did say, in effect, "Go to Canada". This was their bargain. Had they said "Go to any port available for unloading" different consequences might have ensued but they did not so write. A rather well settled principle of law is that the overriding stamp is to be considered as superceding the printed form if there be conflict. Capitol Bus Co. v. Blue Bird Coach Lines, Inc., 478 F.2d 556 (3rd Cir. 1973); Western Oil Fields Inc. v. Pennzoil United, Inc., 421 F.2d 387 (5th Cir. 1970).
18
Therefore, the requirement that the cargo "will be discharged at the nearest non-U.S. port(s)" did place a burden upon the Shipowner to fulfill this obligation if possible. The record indicates that cargo discharge was proceeding at Valleyfield. Only the "MINNIE LOTUS" and the "DAGRUN" were ahead of the TRADER. The "MINNIE LOTUS" apparently sailed and the "DAGRUN" was only in two days. Even if such a time schedule were not achievable, unloading of the TRADER could probably have been commenced at Valleyfield at the latest shortly after the TRADER would have arrived in Detroit and the Shipowner would have fulfilled its commitment.
19
The Trial Court found the handstamp overrode and superceded the printed clauses of the bill of lading (Finding 4); that Valleyfield was available for cargo discharge (Finding 9); and that Mr. Lin's (plaintiff's President) failure to order the vessel to discharge at Valleyfield was an unreasonable deviation (Finding 12).3 With these findings we agree.
20
The Shipowner's argument that the claimants waived the deviation is not supportable in law or in fact. The decision to direct the TRADER to sail for Detroit was made without claimants' knowledge, their consent was neither sought nor given. Whether the notices were addressed to the consignees or merely their agents is immaterial. The notice at best was merely an announcement that the TRADER had sailed for Detroit. There was nothing the consignee could have done to change its course or destination. The essential elements of knowing waiver are lacking.
21
There remains for consideration only the relation of the Court's findings and conclusions to the suit before us as presented by the pleadings. As the result of two suits filed against the Shipowner arising out of the grounding of the TRADER and the cargo damage, the Shipowner filed this suit for exoneration from, or the right to limitation of, liability and requiring all claimants to present their claims. Many claims were presented. This suit therefore deals with the respective rights of the Shipowner and the claimants.
22
The Trial Court having held the deviation unreasonable denied the petition for exoneration from the limitation of liability and gave judgment in favor of the cargo claimants, the amount thereof to be determined in a separate trial to be held after appellate finality of the interlocutory judgment entered herein.
23
The unreasonable deviation precludes Shipowner's counterclaims for general average contribution. World Wide S. S. Co. v. India Supply Mission,316 F.Supp. 190 (SDNY 1970) at 193-94, and for freight charges.
24
The only remaining issue is whether the Shipowner's liability can be limited pursuant to 46 U.S.C. § 183. This statute states:
25
"The liability of the owner of any vessel . . . for any . . . loss, or destruction by any person of any property . . . shipped or put on board of such vessel, or for any loss, damage, . . . or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not . . . exceed the amount or value of the interest of such owner in such vessel, and her freight then pending."
26
The key requirement of the statute is that the damaging act occur "without the privity or knowledge of such owner." Wyandotte Transportation Co. v. United States, 389 U.S. 191, 205, 88 S.Ct. 379, 388, 19 L.Ed.2d 407 (1967). But here Shipowner's president, Mr. Lin, personally ordered the deviation and the deviation was causally connected to the loss.
27
For the reasons heretofore stated, that judgment is affirmed.
OAKES, Circuit Judge (dissenting):
28
This case, of little or no significance except to the parties, is as Judge Moore implies somewhat Tweedledum and Tweedledee. I believe, however, that it is also another case1 where the courts sitting in admiralty look too much to form and too little to economic substance. I agree with appellants that the real purpose, in the light of which the bill of lading should be interpreted, of all parties in the event of an East Coast strike was to have the cargo of Christmas goods discharged at the best alternate point, within or without the United States, to achieve the commercial aim of the transaction, viz., to enable the Christmas goods after discharge to reach the 1971 New York market. If Boston or Portland had somehow been open, to go to either would not have been a deviation. "Non-U.S. port(s)" in the special clause was then not mandatory, but permissive, and Detroit so far as the Seaway was concerned was "indeed among the best available safe and convenient ports," as the district court found, thus fulfilling the ordinary requirement of the "liberties" clause. Thus I would hold no deviation.
29
The district court also found that the shipowner "relied on (his agent) Gannet in instructing the Master to proceed to Detroit," that "Gannet made good faith efforts . . . to ascertain conditions in Canada," and that Gannet "acted reasonably in reporting to its principal." Gannet did report to the owner that "(i)nsofar as Canadian ports are concerned our agents have advised again that any suitable Canadian port such as St. John, Halifax, Montreal will not accept the vessel a/c union problems." (The district court viewing the case after the fact agreed with that advice.) The report then went on to say: "Other smaller Canadian ports who don't have union problems are hopelessly inadequate in warehouse space, transit facilities, etc." In retrospect it turns out, or so the district court found, that discharge could apparently have been effected at Valleyfield. But the shipowner or its agent did not learn this after "good faith efforts" and "reasonable" reporting.
30
It strikes me that the rule of The Styria v. Morgan, 186 U.S. 1, 9, 10, 13, 15, 22, 22 S.Ct. 731, 46 L.Ed. 1027 (1902) (discharge in Sicily of American cargo, sulfur, contraband on Spanish enemy's list, not unreasonable despite Spain's later temporarily exempting sulfur from list), should prevail: a master's "conduct is to be judged, not in the light of exact knowledge acquired after the event, but by such information as may have been available for him at the time and place." Id. at 15, 22 S.Ct. at 737 (quoting from the Circuit Court of Appeals). See also The Wildwood, 133 F.2d 765, 767-68 (9th Cir. 1943) (mid-Pacific abandonment of voyage to Russia in early 1940 not unreasonable). No one knew of the availability or adequacy of Valleyfield. In the light of the knowledge and information available to the owner here, in reasonable reliance on his agent's good faith efforts, I fail to see how any deviation by discharging at Detroit was unreasonable. Reasonableness means deliberated, considered, rational judgment, not infallibility or prescience.
31
The result of the decision is to make the carrier or his insurer wholly liable for the cargo loss, despite COGSA, 46 U.S.C. §§ 1304(2)(a), (j), without general average contribution or freight, or alternatively limitation of liability under 46 U.S.C. § 183 et seq. This seems to me harsh where the underlying reason for the old rule of deviation was that the cargo lost its insurance when the vessel deviated, see G. Gilmore & C. Black, The Law of Admiralty 181-82 (2d ed. 1975), and at present cargo policies usually cover, at least until the cargo owner learns of a deviation. Id.
32
I accordingly would reverse.
1
A runaway ship may be defined as a ship which has left a strike-bound port in an effort to find a port where it may discharge its cargo
2
Under some circumstances not here present, some witnesses thought that some of these ports might have been available
3
We do not agree with the Trial Court that the ordering of the TRADER to Detroit was at least in part for the economic convenience of the Shipowner (Finding 11) or in the opinion that the risk of carriage to Detroit was substantial, that there were many obstructions and special risks in the Seaway passage or that the necessity of a compulsory pilot subjected the TRADER to additional perils. However, these findings are not material to our interpretation of the contractual obligation of the bills of lading
1
See e. g., Fitzgerald v. Texaco, Inc., 521 F.2d 448 (2d Cir. 1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 781, 46 L.Ed.2d 641 (1976)
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[Cite as Brenneman Bros. v. Allen Cty. Commrs., 2015-Ohio-148.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLE N COUNTY
BRENNEMAN BROTHERS, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 1-14-15
v.
ALLEN COUNTY COMMISSIONERS, OPINION
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court
Trial Court No. CV 2012 0432
Judgment Affirmed
Date of Decision: January 20, 2015
APPEARANCES:
Michael A. Rumer and Zachary D. Maisch for Appellants
Gregory M. Antalis for Appellee
Case No. 1-14-15
ROGERS, P.J.
{¶1} Plaintiffs-Appellants, Brenneman Brothers, Stanley Brenneman and
Kim Brenneman (collectively “the Brennemans”), appeal the judgment of the
Court of Common Pleas of Allen County, affirming the adoption of Resolution
#421-12 of Defendants-Appellees, the Allen County Commissioners (“the
Board”), which disallowed the Brennemans’ objections to the estimated
assessments arising from a ditch-improvement project known as the Wrasman
Project #1268 (“the Wrasman Project”). On appeal, the Brennemans argue that
the trial court erred (1) by applying the wrong burden of proof when considering
whether a public body held a closed meeting in violation of R.C. 121.22 (“Open
Meetings Act”); (2) by failing to invalidate Resolution #421-12 for being illegal
because it utilized a document that was illegally backdated; and (3) by not
vacating the Wrasman project for the Board’s failure to adopt a final schedule of
assessments. For the reasons that follow, we affirm the trial court’s judgment.
{¶2} This is the third appeal in which the Brennemans have challenged the
Board’s actions concerning the Wrasman Project. See Brenneman v. Allen Cty.
Bd. of Commrs., 196 Ohio App.3d 60, 2011-Ohio-4032 (3d. Dist.) (“Brenneman
I”); Brenneman Bros. v. Allen Cty. Commrs., 3d Dist. Allen No. 1-13-14, 2013-
Ohio-4635 (“Brenneman II”). A detailed procedural and factual history of the
-2-
Case No. 1-14-15
Brenneman’s challenges to the Wrasman Project can be found in Brenneman II.
See Brenneman II at ¶ 2-15.
{¶3} The facts relevant to the current appeal are as follows. In Brenneman
I, this court found that the trial court abused its discretion when it used its
resolution of a different case as the basis for dismissing the Brennemans’ appeal.
Brenneman I at ¶ 15. After our remand in Brenneman I, the trial court vacated the
Board’s approval of the Wrasman Project. Brenneman II at ¶ 4. On January 12,
2012, at least two members of the Board, the Board’s counsel, Greg Antalis, and
the Board’s clerk, Kelli Singhaus, met with Dan Ellerbrock and Steve
Langenkamp, employees of the Allen County Soil and Water Conservation
District (“Soil and Water”) and others. According to a Soil and Water diary entry
authored by Langenkamp, the group discussed options as to how to proceed after
the trial court’s ruling subsequent to this court’s decision in Brenneman I. Antalis
suggested that no action be taken until after the time for any further appeal had
expired and Ellerbrock recommended that Soil and Water resubmit the Wrasman
Project to the Board.
{¶4} After no challenge to the trial court’s order vacating the original
Wrasman Project occurred, Antalis sent a letter to Soil and Water requesting that it
resubmit the Wrasman Project to the Board without change. On February 15,
2012, Soil and Water resubmitted the Wrasman Project to the Board. The Board
-3-
Case No. 1-14-15
approved the Wrasman project in Resolution #267-12 on April 26, 2012. That
same day, the Board also adopted Resolution #268-12, which acknowledged
receiving a schedule of estimated assessments from Soil and Water and further
directed the clerk to notify landowners of the estimated assessments for their
respective properties. Attached to this resolution was the schedule of estimated
assessments which bore a printed date of April 23, 2012, but also bore a time
stamp of the date it was received by the Board of March 22, 2012.
{¶5} The Brennemans objected to these estimated assessments through
counsel at a July 9, 2012 hearing of the Board. After the hearing, the Board
passed Resolution #421-12, which overruled their objections. The Brennemans
appealed the adoption of this resolution to the trial court, as well as the adoption of
Resolution #267-12 approving the Wrasman Project. The trial court consolidated
the two cases, and allowed the Brennemans to present additional evidence to
supplement the record through an evidentiary hearing. The Board moved to
dismiss the Brennemans’ challenge to Resolution #267-12, arguing that the trial
court lacked subject matter jurisdiction over a legislative act. The Brennemans
concurred with the dismissal at the beginning of the evidentiary hearing held on
December 13, 2012.
{¶6} At the hearing, Ellerbrock testified that he did not know how the
estimated schedule of assessments had a printed date that was later than the stamp
-4-
Case No. 1-14-15
indicating the date it was received by the Board. He also testified that he did not
remember whether the January 12, 2012 meeting with the Board was open to the
public, but that the Soil and Water diary entry accurately reflected what transpired.
An additional evidentiary hearing was held on January 18, 2013. Doug Degen, a
drainage engineer for Allen County, testified that he did not recall attending the
January 12, 2012 meeting as indicated in the Soil and Water diary.
{¶7} Singhaus also testified and stated that she had no explanation as to
why the date stamp and printed dates did not match on the schedule of estimated
assessments. She further testified that she had a record of a meeting on January
12, 2012, that occurred at the Board’s office with a “purpose to discuss the
Wrasman ditch * * *.” January 18, 2013 Hearing Tr., p. 54. Two Board
members were present, and they “went into executive session at one-thirty-one
p.m. to discuss actual litigation.” Id. at p. 55.
{¶8} The Brennemans filed a supplemental merit brief on January 28, 2013,
which argued that the Wrasman Project was illegal, as it was adopted based upon
deliberations held in a meeting not open to the public in violation of the Open
Meetings Act. The Board filed its response on February 6, 2013, arguing that the
trial court lacked subject matter jurisdiction in an administrative appeal to consider
an Open Meetings Act violation. The Brennemans’ filed their rebuttal on
February 11, 2013.
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{¶9} On February 12, 2013, the trial court denied the Brennemans’ appeal.
In its judgment entry, the trial court found that it did not have subject matter
jurisdiction, in an administrative appeal, to determine whether the Board’s
adoption of Resolution #421-12 was invalid for being in violation of the Open
Meetings Act. In Brenneman II, this court found that the trial court had subject
matter jurisdiction and remanded the case back to the trial court to determine
whether an Open Meetings Act violation occurred. Brenneman II at ¶ 34.
{¶10} No additional proceedings occurred after our decision in Brenneman
II. In its April 16, 2014 judgment entry, the trial court found that the Brennemans
had proved that a meeting occurred on January 12, 2012, the meeting was not a
regular meeting, and it was likely not open to the public. However, the trial court
also found that the Brennemans had failed to prove that the meeting was not a
special meeting or that the Board failed to go into executive session through a roll
call vote. Further, the trial court found that the subject matter discussed fell under
an exception to the Open Meetings Act for conferences with counsel regarding
litigation. The trial court found that the Brennemans “did not show by the
preponderance of the evidence that the [R.C.] 121.22(G)(3) exception was not
applicable or not valid. So, they did not meet their burden of proof to show that
the Board violated the open meetings law.” (Docket No. 48, p. 13). The judgment
entry also incorporated that trial court’s February 12, 2013 judgment entry.
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Case No. 1-14-15
{¶11} The Brennemans timely filed this appeal, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED WHEN IT CONCLUDED THE
APPELLANTS HAD FAILED TO MEET THEIR BURDEN OF
PROOF TO SHOW THAT THE BOARD HAD VIOLATED
THE OPEN MEETINGS ACT.
Assignment of Error No. II
THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT
A DOCUMENT WHICH WAS BACK DATED AS PART OF
THE PUBLIC RECORD DOES NOT INVALIDATE THE
BOARD’S RESOLUTION DUE TO SUCH AN ILLEGAL ACT.
Assignment of Error No. III
THE TRIAL COURT ERRED BY NOT VACATING THE
WRASMAN PROJECT DUE TO THE BOARD’S FAILURE
TO ADOPT A FINAL SCHEDULE OF ASSESSMENTS
PURSUANT TO R.C. 1515.24(D)(2).
Standard of Review
{¶12} Property owners may ask the court of common pleas to review the
overruling of objections to assessments. R.C. 1515.24(D)(3); R.C. 2506.01(A);
Brenneman I at ¶ 9. The court of common pleas considers the whole record to
determine whether the decision to overrule the objections was “unconstitutional,
illegal, arbitrary, capricious, unreasonable, or unsupported by a preponderance of
substantial, reliable, and probative evidence.” R.C. 2506.04; Henley v.
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Case No. 1-14-15
Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147 (2000). Appellate
review of the trial court's judgment is more limited in scope and does not include
the same power to weigh the evidence granted to the court of common pleas.
Toledo Edison Co. v. Bd. of Defiance Cty. Commrs., 3d Dist. Defiance No. 4-13-
04, 2013-Ohio-5374, ¶ 17. The judgment of the court of common pleas will not be
overturned absent an abuse of discretion. Bartchy v. State Bd. of Edn., 120 Ohio
St.3d 205, 2008-Ohio-4826, ¶ 41.
{¶13} A trial court will be found to have abused its discretion when its
decision is contrary to law, unreasonable, not supported by the evidence, or
grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18
(2d Dist.). When applying the abuse of discretion standard, a reviewing court may
not simply substitute its judgment for that of the trial court. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
Assignment of Error No. I
{¶14} In their first assignment of error, the Brennemans argue that the trial
court applied the incorrect burden of proof when deciding whether the January 12,
2012 meeting violated the Open Meetings Act. Specifically, the Brennemans
argue that the Board had the burden to prove that it properly entered into an
executive session through a roll call vote. In the alternative, the Brennemans
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Case No. 1-14-15
argue that the Board failed to prove that the executive session was authorized
under an exception to the statute. We disagree.
{¶15} Initially, we must clarify what is properly under review. The
Brennemans do not dispute that the resolutions approving the Wrasman Project,
establishing the estimated schedule of assessments, or overruling the objections,
were adopted at meetings open to the public. Instead, the Brennemans argue that
the Wrasman Project was deliberated at a meeting on January 12, 2012, which was
not open to the public in violation of the Open Meetings Act. The Brennemans
further argue that all subsequent actions taken by the Board, including the
approval of the Wrasman project, the approval of the estimated schedule of
assessments, and the overruling of the objections, were all based upon these
deliberations, and thus invalid.
{¶16} While the trial court determined that Resolution #267-12, which
approved the Wrasman Project, was not adopted in violation of the Open Meetings
Act, the only administrative appeal before the trial court was the Brennemans’
challenge to the Board’s adoption of Resolution #421-12, which overruled the
objections to the estimated schedule of assessments. Indeed, the Brennemans had
also administratively appealed the adoption of Resolution #267-12, but had agreed
to dismiss the claim when the Board argued that the trial court lacked subject
matter jurisdiction to review legislative acts. They cannot now claim that the trial
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Case No. 1-14-15
court can invalidate the Wrasman Project when they agreed that the trial court
lacked subject matter jurisdiction to review the resolution that approved it.
Procedures
{¶17} The Open Meetings Act states that “[a]ll meetings of any public body
are declared to be public meetings open to the public at all times.” R.C.
121.22(C). A formal action adopted in an open meeting that results from
deliberations in a meeting not open to the public is invalid unless (1) the meeting
not open to the public was an executive session; (2) the public body utilized the
proper procedures to enter into an executive session; and (3) the executive session
was for a reason enumerated as one of the exceptions to the Open Meetings Act
under R.C. 121.22(G). R.C. 121.22(H). A public body can only enter an
executive session from a properly held regular or special meeting, and only after a
roll call vote of a quorum of the members present. R.C. 121.22(G). To properly
hold a special meeting, the public body must follow the required notice
procedures. R.C. 121.22(F).
{¶18} However, “the party asserting a violation of [the Open Meetings Act]
has the ultimate burden to prove [the Act] was violated (or was threatened to be
violated) by a public body.” State ex rel. Hardin v. Clermont Cty. Bd. of
Elections, 12th Dist. Clermont Nos. CA2011-05-045, CA2011-06-047, 2012-
Ohio-2569, ¶ 24. The burden never leaves the party asserting a violation. Id.
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Case No. 1-14-15
Further, “the presumption of regularity applies to official actions pursuant to the
official’s ordinary duties of office.” L.J. Smith, Inc. v. Harrison Cty. Bd. of
Revision, 140 Ohio St.3d 114, 2014-Ohio-2872, ¶ 28.
The rule is generally accepted that, in the absence of evidence to the
contrary, public officers, administrative officers and public boards,
within the limits of the jurisdiction conferred by law, will be
presumed to have properly performed their duties and not to have
acted illegally but regularly and in a lawful manner.
State ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 590 (1953); see
also Thomas v. Bd. of Trustees of Liberty Twp., 5 Ohio App.2d 265, 268 (7th
Dist.1966) (finding that township trustees were presumed to have followed the
Open Meetings Act). The presumption must be rebutted with actual evidence, and
not bare allegations. In re Application of Am. Transm. Sys., Inc., 125 Ohio St.3d
333, 2010-Ohio-1841, ¶ 23.
{¶19} Here, the trial court applied the correct legal standard, as it found that
the Brennemans had the burden to prove that the Board did not follow the correct
procedures and violated the Open Meetings Act. Further, the Brennemans offered
no evidence to rebut the presumption that the Board acted legally when it held the
January 12, 2012 meeting. There is no evidence indicating that the Board failed to
follow the proper procedures to call a special meeting or enter executive session.
Singhaus was not asked whether notice was given for the meeting or whether a roll
call vote was taken to enter executive session, nor were her notes of the meeting
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Case No. 1-14-15
offered into evidence. None of the County Commissioners were called to testify
as to whether the procedures were followed and the minutes of the meeting are not
a part of the record. Ellerbrock was not asked these questions, and Doug Degen
testified that he did not remember attending the meeting. The Brennemans
presented no affirmative evidence that the Board failed to follow the procedures
necessary for entering an executive session. As the Brennemans had the burden to
prove a violation occurred, and the Board enjoys the presumption that it acted
legally, the trial court did not abuse its discretion in finding that the Board
followed the proper procedures when entering into executive session.
Exception
{¶20} The trial court found that the January 12, 2012 meeting did not
violate the Open Meetings Act because it was for a purpose under R.C.
121.22(G)(3), which excepts “[c]onferences with an attorney for the public body
concerning disputes involving the public body that are the subject of pending or
imminent court action.” The Brennemans argue that the exception “only permits
the Board’s counsel to be present in executive session to discuss matters of
litigation.” Appellant’s Br., p. 9. However, the Brennemans cite no case law for
this proposition, nor does the statute restrict who can be a part of the meeting with
the public body. Consequently, we reject the narrow interpretation that only the
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Case No. 1-14-15
public officers and the attorney can be present at an executive session where
litigation is discussed.1
{¶21} Indeed, it is unclear from the record whether an exception is
necessary. As the Board enjoys the presumption that it followed the law when
conducting its meetings, it is presumed that the meeting started as an open, special
meeting before the Board went into executive session. Further, it is presumed that
any discussion of public business occurred during the part of the meeting that was
open. The Brennemans provided no evidence as to whether the discussion with
Soil and Water occurred during the open or closed portions of the meeting, and
therefore failed to rebut these presumptions.
Deliberations
{¶22} Even assuming that the Board failed to follow the proper procedures
to hold a special meeting or enter executive session at the January 12, 2012
meeting, it does not change our result. The Open Meetings Act
is not intended to prevent a majority of a board from being in the
same room and answering questions or making statements to other
persons who are not public officials, even if those statements relate
to public business. The [Open Meetings Act] is instead intended to
prohibit the majority of a board from meeting and discussing public
business with one another.
1
We note that the Brennemans did not challenge whether the meeting was in fact for a conference with an
attorney regarding pending litigation, and instead only attacked the procedures the Board used to enter
executive session.
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Case No. 1-14-15
(Emphasis sic.) Holeski v. Lawrence, 85 Ohio App.3d 824, 830 (8th Dist.1993). A
violation of the Open Meetings Act does not occur unless the public body both
meets and deliberates public business. Wilkins v. Village of Harrisburg, 10th Dist.
Franklin No. 12AP-1046, 2013-Ohio-2751, ¶ 19.
{¶23} “The mere fact an issue of public concern is raised in closed session
does not necessarily mean the action was deliberated.” Stainfield v. Jefferson
Emergency Rescue Dist., 11th Dist. Ashtabula No. 84-CA-51, 2010-Ohio-2282, ¶
35. Deliberations include more than information gathering, investigation, or fact-
finding, and require that the public body entertain a discussion of public business
among its own members. Wilkins at ¶ 21. A discussion includes an exchange of
words, comments, and ideas between the members of the public body, and not a
question-and-answer session with other persons. Krueck v. Kipton Village
Council, 9th Dist. Lorain No. 11CA009960, 2012-Ohio-1787, ¶ 14. “[I]n the
absence of deliberations or discussions by the public body’s members, such a
session is not a ‘meeting’ as defined by the act, so it need not occur in public.”
Cincinnati Enquirer v. Cincinnati Bd. of Edn., 192 Ohio App.3d 566, 2011-Ohio-
703, ¶ 15 (1st Dist.).
{¶24} Even where deliberations occur at a meeting in violation of the Open
Meetings Act, that violation does not invalidate a later action of the public body
without a showing of causation. Greene Cty. Guidance Center, Inc. v. Greene-
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Case No. 1-14-15
Clinton Community Mental Health Bd., 19 Ohio App.3d 1, 5 (2d Dist.1984). The
Open Meetings Act only invalidates a formal action taken by a public body at a
public meeting where the evidence in the record makes clear that the decision to
take the formal action was largely the result of the prior deliberations in an
improperly closed meeting. See Maddox v. Greene Cty. Children Servs. Bd. of
Dirs., 2d Dist. Greene No. 2013-CA-38, 2014-Ohio-2312, ¶ 32-33 (finding action
of the board was clearly based upon numerous improper executive meetings,
which invalidated a resolution at a properly held meeting); Sprecht v. Finnegan,
149 Ohio App.3d 201, 2002-Ohio-4660, ¶ 30-31 (6th Dist.) (hiring of police chief
was invalid where the evidence in the record indicated that the trustees had ranked
the candidates during a closed meeting); Myers v. Hensley, 3d Dist. Hardin No. 6-
99-02, 1999 WL 797140, *3 (Sept. 23, 2999) (finding that decision to pass
resolution was based upon improper closed meeting, where no subsequent public
discussion on the issue was allowed).
{¶25} The trial court began its analysis by stating that the Brennemans
carried their initial burden by showing by preponderance of evidence
that a meeting * * * of the majority of the members of the Board (at
least Sneary and Reiff) occurred on January 12, 2012 and that the
general public was probably excluded from that meeting. Once it
was demonstrated that at least two members of the Board were
present at the meeting on January 12, 2012, the burden then shifted
to the Board to produce or go forward with evidence that the
challenged meeting fell under one of the exceptions of R.C.
121.22(G).
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Case No. 1-14-15
(Docket No. 48, p. 10). While the trial court determined that a meeting occurred,
it failed to determine what occurred at the meeting. Nowhere in the trial court’s
judgment entry does it find that the Wrasman Project was deliberated at the
January 12, 2012 meeting, let alone how to handle any possible objections.
Assuming that the trial court found that deliberations occurred, this finding is not
supported on the record.
{¶26} As discussed, we must presume that the board acted in a lawful
manner absent evidence to the contrary, requiring affirmative evidence in the
record to prove that the Board deliberated at the January 12, 2012 meeting. None
of the members of the Board were called to testify as to whether they discussed
any plans with one another at the meeting. Ellerbrock only testified that the diary
accurately reflected what transpired at the meeting; he was not otherwise asked
what was discussed between the different people attending the meeting. While
Singhaus testified that her notes indicate that the purpose of the meeting was to
discuss the Wrasman Project, she was not asked whether the Board discussed the
project with each other or with the others present at the meeting. Her notes are not
in the record, nor are the minutes. Indeed, the only evidence as to what actually
occurred comes from the Soil and Water diary. The January 12, 2012 entry in the
diary states:
Dan Ellerbrock + (sic) I met w/ the three commissioners Sneary,
Reiff + (sic) Bassit, Greg Antalis, Kelli Singhaus, Doug Degen, Tim
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Case No. 1-14-15
Piper and Nathan Davis to discuss plan of action for this project.
Judge Warren in favor of Brenneman’s so Greg Antalis wanted to
file an appeal. After some discussion Dan Ellerbrock suggested
instead of appealing why not just bring the project back before the
commissioners. This time we will have included all the necessary
paperwork. Greg Antalis said before we do anything will have to
wait till the 30 day appeal period is over. In the meantime Greg will
be working with us to come up with a plan on how to continue.
Evidentiary Hearing Tr., Plaintiff’s Exhibit 9, p. 3.
{¶27} The next entry, dated January 17, 2012, states:
I spoke with Jim Dutton today. He wanted some information on
project and what was going on. I told him that we had a meeting
with the commissioners and Antalis last week. Told him that Antalis
the Attorney would be working with us to come up w/ a plan and
that we were waiting for the 30 day appeal period to be over before
we do anything.
(Emphasis added.) Id. The January 18, 2012 entry states:
I informed the board at the board meeting this morning the progress
with this project. I told them about Judge Warren’s decision. I told
them that Dan Ellerbrock and I met with the Commissioners + (sic)
Greg Antalis to discuss are (sic) plans for the project. I told the
board that we would like to wait to the 30 day appeal period is over.
After that we will give the commissioners all the necessary
paperwork. It will then be up to the commissioners if they want to
approve the project.
(Emphasis added.) Id. at p. 2.
{¶28} On February 8, 2012, Antalis sent a letter to Ellerbrock, which stated
that no appeal had been taken from the trial court’s judgment overturning the
approval of the Wrasman Project on remand from this court’s ruling in Brenneman
I. The letter went on to state:
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Case No. 1-14-15
Therefore, I believe it is safe at this time for Soil and Water District
to once again certify this project to the Allen County Commissioners
for approval of construction.
I want to make sure that the project as approved is exactly the same
as was previously approved by Soil and Water, with no
distinguishing new characteristics which would require a new vote
of Soil and Water to recommend sending the project to the
commissioners for approval of construction. If the project is
unchanged, send it on to the commissioners once again, and they will
then hopefully act with my guidance, in a proper manner, in
approving the project and scheduling an assessment hearing with
regard to the individual assessments to the landowners in the
watershed.
(Emphasis added.) Evidentiary Hearing, Plaintiff’s Exhibit 10, p. 1.
{¶29} The only evidence in the record is that Soil and Water discussed how
it was going to proceed. Indeed, the recertification of the Wrasman Project was
suggested by Ellerbrock, not the Board. There is nothing in the record that states
that the Board made any kind of decision as to how it would proceed if Soil and
Water recertified the project unchanged or did anything other than ask questions
and discuss with others what they believed the best course of action may be.
Further, the diary entries state that it would be up to the Board whether it wants to
reapprove the project, indicating that they had not agreed on a plan of action at the
meeting. This is supported by the letter from Antalis, which indicates his hope
that the Board will reapprove the project.
{¶30} Even if the matter was deliberated at the meeting, the Brennemans
have failed to prove causation. At the time of the meeting, there was no Wrasman
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Case No. 1-14-15
Project, as the trial court had invalidated the original resolution approving the
actual project itself after our ruling in Brenneman I. Ellerbrock and Langenkamp
were employees of Soil and Water, and could not assure that the Board of
Supervisors would approve the Wrasman Project unchanged a second time. There
was no indication as to what kind of objections would be raised if the project was
reapproved. Any deliberations regarding the project would have been speculation
upon speculation, as numerous other actions would have to take place before the
Board could approve anything.
{¶31} Without evidence of deliberation, closing the January 12, 2012
meeting to the public would not violate the Open Meetings Act. Without any link
between what was deliberated at that meeting and the vote overruling the
objections to the project, any violation of the Open Meetings Act that occurred at
the January 12, 2012 meeting does not invalidate the adoption of Resolution #421-
12.
{¶32} Accordingly, the Brennemans’ first assignment of error is overruled.
Assignment of Error No. II
{¶33} In their second assignment of error, the Brennemans argue the
schedule of estimated assessments was improperly backdated. They further argue
that the backdating constitutes falsification under R.C. 2921.13, and is thus an
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Case No. 1-14-15
illegal act, which required the trial court to nullify the adoption of the Wrasman
Project. We disagree.
{¶34} Here, the trial court found that regardless of the date the estimated
schedule of assessments was time stamped (March 22, 2012) or printed (April 23,
2012), the Board had the document in its possession when it voted to approve the
Wrasman Project on April 26, 2012. Without deciding whether the schedule was
illegally backdated, the trial court found that the backdating was irrelevant for the
purposes of the approval of the project or approval of the assessments sent to the
individual landowners.
{¶35} We cannot find error in this analysis. There must be a link between
an alleged illegal act and the relief sought. See Davidson v. Village of Hanging
Rock, 97 Ohio App.3d 723, 734 (4th Dist.1994) (finding that failing to approve
minutes in violation of R.C. 121.22 was not substantially linked to relief of
invalidating resolution). While the Brennemans argue that it was illegal to
backdate the estimated schedule of assessments, they do not argue that the
members of the Board illegally backdated the document or ordered that it be
backdated. Further, regardless of which date is correct, it is undisputed that the
Board had the information that it needed when it deliberated and voted to approve
the Wrasman Project. We fail to see how an incorrect time stamp on a document
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Case No. 1-14-15
that the Board had in its possession before it voted on a resolution can be linked to
the requested remedy of invalidating that resolution.
{¶36} Further, for the Brennemans to argue that the document was illegally
falsified under R.C. 2921.13 in an administrative appeal, they must prove the
element of intent. See State ex rel. Nick Strimbu, Inc. v. Indus. Comm. of Ohio,
10th Dist. Franklin No. 03AP-71, 2004-Ohio-2991, ¶ 7, aff’d 106 Ohio St.3d 173,
2005-Ohio-4386 (finding that R.C. 2921.13 required employer to prove employee
intentionally falsified application in administrative appeal of Worker’s
Compensation claim). “Falsification cannot occur when a person unintentionally
makes a false statement.” Hershey v. Edelman, 187 Ohio App.3d 400, 2010-Ohio-
1992, ¶ 30 (10th Dist.). While it is undisputed that the document is backdated, the
Brennemans have presented no evidence, or even any argument, that the
backdating was intentional. As a result, the Brennemans cannot rely on a claim of
falsification in violation of R.C. 2921.13 to invalidate the resolution as illegal.
{¶37} Accordingly, the Brennemans’ second assignment of error is
overruled.
Assignment of Error No. III
{¶38} In their third assignment of error, the Brennemans argue that the
Wrasman Project must be vacated because the Board failed to adopt a final
schedule of assessments. We disagree.
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Case No. 1-14-15
{¶39} R.C. 1515.24 explains the process of approving a Soil and Water
project and levying assessments on landowners who will benefit from the project.
R.C. 1515.24(A) states that after receiving the necessary information about a
project from Soil and Water, the Board “may adopt a resolution levying upon the
property within the project area an assessment at a uniform or varied rate * * * as
necessary to pay the cost of construction of the improvement not otherwise funded
* * *.” (Emphasis added.) Landowners can object to this assessment under R.C.
1515.24(D)(1). Once the objections are made, R.C. 1515.24(D)(2) requires that a
hearing on the objections occur and that “[u]pon hearing the objectors, the board
may adopt a resolution amending and approving the final schedule of assessments
and shall enter it in the journal.”
{¶40} The trial court found that Resolution #268-12 only informed the
affected landowners of an estimated assessment, not a final assessment.
The statute provides that the Commissioners shall make an order
approving the levying of the assessment after the imposition of an
assessment is upheld in the final disposition of an appeal of the
imposition of assessments. R.C. 1515.24(D)(4)(3). Since the
Commissioners never adopted a resolution that approved a final
schedule of assessments and never entered such on its journal, there
was never a proper final appealable resolution approving the final
schedule of assessments from which plaintiffs could appeal. Since
there is no resolution approving a final schedule of assessments from
which plaintiffs could appeal, this “issue” is moot.2
2
We note that, according to the trial court’s analysis, the issue is not moot, but instead is not yet ripe.
Mootness occurs when an issue has “no practical significance; hypothetical or academic.” Black’s Law
Dictionary 1161 (10th Ed.2014). Ripeness is a requirement that, before a court will adjudicate an issue, the
dispute “has reached, but has not passed, the point when the facts have developed sufficiently to permit an
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Case No. 1-14-15
(Emphasis sic.) (Docket No. 37, p. 20).
{¶41} The trial court, in essence, found that the Board’s adoption of
Resolution #268-12 did not levy the assessments on the landowners, but merely
informed the landowners of an estimated assessment for the project; that the
objections were to the estimates, and not against assessments that had actually
been levied; that because the Board had not actually levied the assessment, R.C.
1515.24 does not apply; and that the Board must actually levy the assessment
before there need be any determination as to whether a final schedule of
assessment need be adopted.
{¶42} We are somewhat troubled by this analysis. According to the trial
court’s reasoning, the Board has yet to levy an assessment against the landowners,
and has only informed them of an estimate, and the statute has not yet triggered.
This makes it unclear whether the Board must pass another resolution to levy the
assessment, which would allow the Brennemans and other affected landowners to
object and be granted another hearing under the statute, or whether Resolution
#268-12 allows the Board to collect the estimated assessment after this court
resolves whether the objections were properly overruled, which would affect the
intelligent and useful decision to be made.” Black’s Law Dictionary 1524 (10th Ed.2014). As the trial
court found that no assessment had been levied, then there was nothing to finalize under the statute after the
hearing, and the controversy was not yet ripe for review.
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Case No. 1-14-15
rights of any landowners who did not object to the notice received from the Board,
believing it was only an estimate.
{¶43} However, we need not address that issue, as it deals with the
enforceability of collecting the assessment from the landowners. Resolution #421-
12 merely overruled objections. There is nothing in the record that indicates that
the Board has taken any action to actually collect the assessment from any of the
landowners. At a minimum, as stated by the trial court, the Board allowed for a
hearing on objections to an estimate and subsequently overruled those objections.
We find nothing to support the proposition that, even if the Board needs to adopt a
final schedule of assessments under R.C. 1515.24 to levy those assessments,
failing to do so otherwise invalidates a resolution overruling objections or, indeed,
the entire project itself. Any issue as to the enforceability of the estimated
assessment is not before this court.
{¶44} Accordingly, we overrule the Brenneman’s third assignment of error.
{¶45} Having found no error prejudicial to the Brennemans in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
-24-
| {
"pile_set_name": "FreeLaw"
} |
In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐1753
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff‐Appellant,
v.
AUTOZONE, INCORPORATED, et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:12‐cv‐00303‐WEC — William E. Callahan, Jr., Magistrate Judge.
ARGUED SEPTEMBER 30, 2015 — DECIDED JANUARY 4, 2016
Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Plaintiff‐appellant, the Equal Employ‐
ment Opportunity Commission (“EEOC”), filed suit against
defendant‐appellee, AutoZone, Incorporated (“AutoZone”),
for dismissing Margaret Zych (“Zych”) from AutoZone’s
Cudahy, Wisconsin, location in violation of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). Specifically,
the EEOC alleged that AutoZone failed to accommodate Zych’s
2 No. 15‐1753
lifting restriction and that Zych’s termination constituted
discrimination on account of her disability. After a five‐day
trial, the jury returned a verdict in favor of AutoZone, finding
that Zych was not a qualified individual with a disability or a
record of disability. The EEOC filed a motion for a new trial,
which the district court denied. The EEOC appealed. For the
reasons that follow, we affirm the district court.
I. BACKGROUND
AutoZone sells automobile parts in retail stores located
throughout the United States. AutoZone has a store located in
Cudahy, Wisconsin, which has a minimum staffing require‐
ment of two to three employees in the store at all times. In
2005, Zych began working at the Cudahy, Wisconsin,
AutoZone. In 2007, she was promoted to Parts Sales Manager
(“PSM”).
In July 2007, Zych injured her right shoulder while at work.
She underwent two years of physical therapy and treatment for
her shoulder. During those two years, she had several work
restrictions, which AutoZone accommodated. In June 2009,
Zych’s doctor permanently restricted her from lifting anything
with her right arm that weighed over 15 pounds. About one
month later, AutoZone discharged Zych because it was unable
to accommodate her permanent restriction.
Zych filed a charge with the EEOC, and on March 28, 2012,
the EEOC filed suit against AutoZone claiming that it failed to
accommodate Zych’s lifting restriction and illegally terminated
her employment. A jury trial was held from November 17‐21,
2014. At the close of AutoZone’s evidence, the EEOC moved
for judgment as a matter of law on the issue of whether Zych
No. 15‐1753 3
was “disabled” under the meaning of the ADA. The court
denied the motion.
Before the case was submitted to the jury, the EEOC offered
a proposed “team concept” jury instruction regarding how to
determine the essential functions of a job position. The pro‐
posed team concept instruction stated:
In team working environments, where team mem‐
bers per‐form tasks according to their capacities and
abilities, job functions that are not required of all
team members are not essential functions. Where
there is no required manner in which employees are
to divide the labor, the fact that one team member
may not be able to do all the tasks assigned to the
team does not mean that person is unable to per‐
form his or her essential functions.
The district court rejected the proposed instruction because
it found the instant matter was factually distinguishable from
prior cases dealing with the EEOC’s proposed team concept.
The judge said that the EEOC could argue this theory to the
jury in closing arguments. The EEOC did not do so; it argued
that the essential function of the PSM position was “customer
service,” and that lifting was just a “marginal function.”
The jury returned a special verdict finding that the EEOC
failed to prove by a preponderance of the evidence that Zych
was a “qualified individual with a disability or a record of
disability at the time that her employment was terminated.”
Following the verdict, the EEOC moved for a new trial. In
support of its motion, the EEOC argued: (1) the verdict was
against the manifest weight of the evidence; (2) the medical
4 No. 15‐1753
evidence established that Zych was disabled as a matter of law;
and (3) the jury instructions confused the jury. The district
court denied the motion.
II. DISCUSSION
The EEOC now appeals the district court’s denial of its
motion for a new trial. We address each of the issues raised by
the EEOC in turn.
A. Sufficiency of the Evidence Supporting the Jury
Verdict
We apply the “abuse of discretion” standard of review to
examine the district court’s denial of the EEOC’s motion for a
new trial on the basis that the verdict was against the manifest
weight of the evidence. Lewis v. City of Chicago Police Dep’t, 590
F.3d 427, 444 (7th Cir. 2009) (citation omitted). We will only set
aside the verdict and remand for a new trial if “no rational jury
could have rendered” the verdict. Smith v. Wilson, 705 F.3d 674,
677–78 (7th Cir. 2013) (citations omitted). This analysis involves
examining the evidence in the light most favorable to
AutoZone, while “leaving issues of credibility and weight of
evidence to the jury.” King v. Harrington, 447 F.3d 531, 534 (7th
Cir. 2006) (citation omitted).
To establish a prima facie failure to accommodate claim
under the ADA, the EEOC had to show that: (1) Zych was a
qualified individual with a disability; (2) AutoZone was aware
of her disability; and (3) AutoZone failed to reasonably
accommodate her disability. See James v. Hyatt Regency Chicago,
707 F.3d 775, 782 (7th Cir. 2013) (citation and quotation
omitted). In this case, the jury found that the EEOC failed to
No. 15‐1753 5
prove the first element, so the issue is whether a rational jury
could have found that Zych was not a qualified individual
with a disability.
Under the ADA, a “qualified individual” is someone who,
“with or without reasonable accommodation, can perform the
essential functions of the employment position” at issue. 42
U.S.C. § 12111(8) (emphasis added). In addition, EEOC
regulations clarify that essential functions are the “fundamen‐
tal job duties” of the position, as opposed to the “marginal
functions.” 29 C.F.R. § 1630.2(n)(1). Further, the employer’s
judgment, the amount of time performing the function at issue,
the work experience of prior employees in the same position,
and written job descriptions are among the relevant evidence
that can be considered to determine the essential functions of
a position. 29 C.F.R. § 1630.2(n)(3).
Here, Zych was unable to lift more than 15 pounds with her
right arm. Thus, if the evidence at trial showed that heavy
lifting was a fundamental duty of the PSM position, as op‐
posed to a marginal function, then a rational jury could have
found that Zych was not a qualified individual with a disabil‐
ity.
At trial, AutoZone presented testimony from former PSMs
at the Cudahy, Wisconsin, location regarding the lifting
requirements of a PSM. For example, Angel Maldonado
(“Maldonado”) testified that the PSM job functions included
lifting and moving the items at the store, as well as the items
brought in by the customers, at least 30‐40 times per day.
Maldonado agreed that lifting the products sold at the store
was a “regular part” of the job, and that when he initially
6 No. 15‐1753
received the PSM position, he understood that it involved
“heavy lifting.” Tabari Stewart (“Stewart”), another former
PSM at the Cudahy, Wisconsin, location, testified that it was a
regular aspect of customer assistance to retrieve an item from
the store, hold it for the customer to inspect, and even carry the
item to the customer’s car. In addition, the testimony at trial
established that the items at the store could weigh substantially
more than 15 pounds. For example, car batteries could weigh
anywhere from 25 to 75 pounds. Cases of antifreeze and motor
oil weighed around 30 pounds. AutoZone also established an
itemized list of other products within the store that weighed
over 15 pounds, such as brakes, rotors, brake drums, ready‐
mount struts, and radiators.
The testimony also brought out that the PSM position
involved performing customer service functions that required
heavy lifting, such as charging customers’ batteries, installing
car batteries, and recycling customers’ oil (which could weigh
up to 20‐30 pounds). The PSM had to organize “planograms”
as well. Planograms involve the way that the products are
arranged on the shelves throughout the store. Stewart testified
that the PSM sometimes had to conduct a “full reset”
planogram, in which all of the products (which could weigh
over 40 pounds each) had to be removed from the shelves, the
shelves re‐arranged, and then the products re‐stacked.
AutoZone further produced evidence regarding “truck
days.” Truck days occurred once a week, and involved
unloading items from delivery trucks in order to re‐stock the
supply at the store. Truck days involved moving both light and
heavy items, but even the light items could be heavier if they
were stored in “totes.” Stewart testified that truck days
No. 15‐1753 7
involved “nothing but lifting,” and that the PSM was expected
to lift along with all of the other AutoZone employees. In
addition to truck days, the PSM position was also responsible
for handling daily “hub deliveries,” which could also involve
heavy items that sometimes weighed over 20 pounds.
Finally, AutoZone introduced a written job description
regarding the physical functions involved with the PSM
position. Under “Arm Requirements,” it states that the position
requires “constantly” carrying items up to 50 pounds, but
“usually 10 to 20 pounds.” It also states the PSM must “fre‐
quently” lift items up to 75 pounds from floor to waist, and up
to 25 pounds horizontally. In addition, the position involves
“constantly” reaching or working with arms extended or bent,
and “frequently” twisting or rotating. Stewart testified that the
written job description accurately reflected the physical
requirements and tasks of the PSM, as did Maldonado who
agreed that it included the key duties of the position. While
Zych acknowledged that the written job description repre‐
sented the tasks that she performed as a PSM, she disagreed
with the phrase “constantly,” and stated that the position also
involved paperwork.
From the substantial evidence presented at trial, a rational
jury could have concluded that heavy lifting was a fundamen‐
tal duty of the PSM position, rather than merely a marginal
function. Since Zych could not lift more than 15 pounds with
her right arm, there was sufficient evidence for a rational jury
to find that she could not perform the essential functions of the
PSM position. Thus, a rational jury could find that Zych was
not a qualified individual with a disability. Therefore, the
verdict was not against the manifest weight of the evidence
8 No. 15‐1753
and the district court did not abuse its discretion in denying
the motion for a new trial.1
Also, the EEOC points out that Barry Kurta (“Kurta”),
another employee at the Cudahy, Wisconsin, AutoZone, had
a paralyzed left arm and could only lift objects with his right
arm. The EEOC argues that if Zych is not qualified because of
her lifting restriction with her right arm, then Kurta should be
deemed unqualified as well, and the fact that he is not means
that Zych should be deemed a qualified individual with a
disability. AutoZone responds that Kurta is a “red herring”; he
was a part‐time employee with a different position than Zych,
which meant that he would never be alone in the store.
Further, Kurta had no official lifting restriction, although there
was testimony that he needed help lifting objects that were too
awkwardly shaped to carry with one arm. Kurta also stated
that he did not do heavy lifting when he waited on customers.
But, there was testimony that he could lift heavy items such as
rotors and car batteries with one arm, and he participated in
lifting on truck days. In contrast, Maldonado testified that he
did not see Zych lift rotors or other heavy items with one arm.
As discussed above, regardless of Kurta’s status, there is
sufficient evidence in the record to support the jury’s verdict
that Zych was not a qualified individual with a disability. “Our
1
Since we are upholding the jury’s finding that Zych was not a “qualified
individual with a disability,” the issue of whether Zych was disabled as a
matter of law is moot and we need not discuss it. See Majors v. Gen. Elec. Co.,
714 F.3d 527, 533 (7th Cir. 2013) (“We don’t need to decide whether [the
plaintiff] has a disability, though, because there was no issue of fact as to
whether [she] was a qualified individual”).
No. 15‐1753 9
appellate function is completed when we are convinced that
there is an evidentiary basis in the record for the jury’s verdict
… ‘it [is] immaterial that the court might draw a contrary
inference or feel that another conclusion is more reasonable.’”
Rogers v. ACF Indus., Inc., 774 F.3d 814, 819 (7th Cir. 1985)
(citing Lavender v. Kurn, 327 U.S. 645, 652–54 (1946)). “The fact
that [the EEOC] presented evidence that is inconsistent with
the jury’s verdict does not mean that the verdict should be
reversed.” Lowe v. Consol. Freightways of Del., Inc., 177 F.3d 640,
643 (7th Cir. 1999) (citation omitted). Thus, while it may be
inconsistent for AutoZone to find that Kurta is qualified but
Zych is not, it does not mandate this court to set aside the
jury’s verdict.
B. Denial of Proposed Team Concept Jury Instruction
The EEOC acknowledges that the district court’s jury
instructions for determining an “essential function” of a job
correctly cite the applicable federal regulations. However, the
EEOC argues that the district court’s denial of its proposed
team concept instruction provided the jury with an “incom‐
plete and misleading” statement of the law, which confused
the jury and prejudiced the EEOC. We disagree.
“We review the district court’s refusal to give a jury
instruction only for abuse of discretion.” Rapold v. Baxter Int’l
Inc., 718 F.3d 602, 609 (7th Cir. 2013) (citation omitted). We
examine the jury instructions as a whole, and only reverse and
remand for a new trial if the instructions did not sufficiently
inform the jury of the applicable law and the instructions
prejudiced the EEOC. Id. (citations omitted). “Even if we
believe that the jury was confused or misled, we would need
10 No. 15‐1753
to find that the [EEOC] [was] prejudiced before ordering a new
trial.” Jimenez v. City of Chicago, 732 F.3d 710, 717 (7th Cir. 2013)
(citations omitted).
The EEOC relies exclusively on Miller v. Illinois Department
of Transportation, 643 F.3d 190 (7th Cir. 2011), to support its
argument that the district court had to allow its proposed jury
instruction. We agree with the district court that this case is
factually distinguishable from Miller.
In Miller, the plaintiff was a member of six‐person bridge
crew for the Illinois Department of Transportation (“IDOT”),
which was responsible for a wide variety of tasks. Miller, 643
F.3d at 192. Once the plaintiff began his employment with
IDOT, he informed his team leader that had a fear of heights
and that there were a few discrete tasks (such as “walk a
bridge beam”) that he could not do. Id. IDOT informally
accommodated the plaintiff by having another member of the
bridge crew perform the duties involving heights. Id. at 193.
IDOT also informally accommodated other members of the
bridge crew who could not perform other discrete tasks in a
similar manner. Id. These included one member who could not
weld, one who would not ride in the “snooper bucket,” and
another who would not spray bridges or mow the yards due
to his allergies. Id. The court found that “[o]n this record, a
reasonable jury could find that working at heights … was not
an essential function for [the plaintiff] as an individual member
of the bridge crew.” Id. at 198. The court also distinguished
prior cases in which reassigning an essential function to
another co‐worker did not constitute a reasonable accommoda‐
tion, and stated that “[w]hat sets this case apart from those
earlier cases is [plaintiff’s] evidence that it was in fact the
No. 15‐1753 11
normal course for individual members of the bridge crew to
substitute and reassign tasks among themselves according to
individual abilities, preferences, and limitations.” Id. at
199–200.
The EEOC argues that its proposed team concept instruc‐
tion was necessary because the staffing at the Cudahy, Wiscon‐
sin, AutoZone store presents a similar team work environment
as the IDOT bridge crew in Miller. The EEOC supports this
comparison by citing a passage from the AutoZone employee
handbook that states that employees should “ask for help
when needed” if lifting heavy objects. In addition, the EEOC
notes that employees at AutoZone were evaluated based on
“teamwork” and whether the employee “helps the team
succeed.” The EEOC also relies on testimony from multiple
AutoZone employees who acknowledged helping Zych (and
Kurta) lift heavy objects, as well as Zych’s own testimony that
before her injury other co‐workers had occasionally helped her
or “other women” lift heavy items that she or the other women
could not carry by themselves. Finally, the EEOC notes that
during truck days, Zych testified that she would often do the
scheduling and other paperwork that her co‐workers in the
PSM position did not know how to do, and in exchange those
co‐workers would do Zych’s lifting instead.
We disagree with the EEOC’s comparison between this case
and Miller. First, since it is common practice for employers to
promote cooperation and teamwork amongst their employees,
the fact that AutoZone uses teamwork as a criteria for evaluat‐
ing its employees did not mandate the district court to admit
the EEOC’s proposed jury instruction. Second, the evidence
presented does not show a distribution of labor system in
12 No. 15‐1753
which the “normal course” was for Zych to substitute and
reassign discrete tasks involving lifting certain heavy items and
in exchange other employees did not do discrete tasks that they
were unable to do. Rather, the record indicates that if Zych, or
anyone else, needed help lifting something, someone would
help them, which both the employee guidelines and common
courtesy dictate.
This case is more factually analogous to cases involving
lifting restrictions in which the proposed accommodation was
requiring someone else to do the lifting for the employee at
issue. Here, as in those cases, such an accommodation is not
reasonable because it is essentially delegating the PSM position
to another employee. See James, 707 F.3d at 778, 783 (finding it
was not a reasonable accommodation for a banquet steward at
a hotel with a lifting restriction to delegate lifting objects
involved with maintaining the banquet hall and transporting
food and equipment to another employee at the hotel); see also
Majors, 714 F.3d at 531, 534 (employee with lifting restriction
was not qualified for position that involved “intermittent
movement of heavy objects,” and having another employee do
the lifting was not a reasonable accommodation).
Furthermore, “a judge need not deliver instructions
describing all valid legal principles.” Gehring v. Case Corp., 43
F.3d 340, 343 (7th Cir. 1994). “Rather than describing each
possible inference of the evidence, the judge may and usually
should leave the subject of the interpretation of the evidence to
the argument of counsel.” Hasham v. Cal. State Bd. of Equaliza‐
tion, 200 F.3d 1035, 1051 (7th Cir. 2000) (citation omitted). In
this case, the EEOC’s proposed team concept instruction was
an attempt to have the jury draw an inference that heavy lifting
No. 15‐1753 13
was not an essential function of the PSM position because
Zych’s co‐workers could lift the items that Zych was unable to.
The district court was not obligated to promulgate such an
inference within the jury instructions. Rather, it was proper for
the district court to instead allow the EEOC to make its team
concept argument to the jury in its closing arguments.
Finally, the district court’s denial of the proposed instruc‐
tion did not prejudice the EEOC. We determine whether the
EEOC was prejudiced by examining “the instructions as a
whole, along with all of the evidence and arguments, to deter‐
mine whether the jury was misinformed about the applicable
law.” United States v. White, 443 F.3d 582, 587–88 (7th Cir. 2006)
(emphasis added) (quotation and citation omitted). Although
the district court denied the instruction, the judge allowed the
EEOC to argue its team concept theory to the jury during its
closing arguments. Yet, the EEOC abandoned this theory, and
instead claimed during closing arguments that heavy lifting
was a “marginal function” of the PSM position. Since the
EEOC decided not to present the team concept argument,
despite the district court expressly stating that it could, the
EEOC cannot now claim that it was prejudiced by the district
court’s refusal to admit its proposed jury instruction.2
2
The EEOC also notes that during deliberations the jury asked for
permission to express its views on AutoZone’s conduct. The EEOC
interprets this request to mean that even though the jury believed that
heavy lifting was an essential function, the jury wanted AutoZone to allow
Zych “to continue receiving help.” The EEOC claims that this indicates that
if the proposed jury instruction was admitted, it would have led the jury to
vote differently. Therefore, the EEOC claims it was prejudiced. This
(continued...)
14 No. 15‐1753
III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
2
(...continued)
argument is pure speculation, and is insufficient to invalidate the jury’s
verdict.
| {
"pile_set_name": "FreeLaw"
} |
[Cite as State v. Cutright, 2015-Ohio-374.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellant :
: Case No. 14CA3442
v. :
: DECISION AND
KARICE M. CUTRIGHT, : JUDGMENT ENTRY
:
Defendant-Appellee. : Released: 01/29/2015
APPEARANCES:
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C. Marks, Ross County
Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellant.
Timothy Young, Ohio Public Defender and James S. Szorady, Assistant Ohio Public Defender,
Chillicothe, Ohio, for Appellee.
Per Curiam.
{¶ 1} The state of Ohio, appellant, appeals the decision of the Ross County Court of
Common Pleas sustaining appellee-defendant Karice M. Cutright’s motion to suppress evidence
seized during a traffic stop. A police officer stopped Cutright’s vehicle after a citizen flagged
down the officer and relayed a complaint. The citizen reported that she saw a group of people
exit a vacant house; and she suspected the group to be engaged in drug related activity. The trial
court granted Cutright’s motion to suppress because the state failed to prove that the officer
possessed reasonable suspicion to stop the vehicle. For the following reasons, we sustain the
state of Ohio’s assignment of error, and reverse the judgment of the trial court. This cause is
remanded to the trial court so it may decide Cutright’s motion to suppress applying the proper
legal standard.
Statement of Facts
Ross App. No. 14CA3442 2
{¶ 2} In March 2013, appellee-defendant, Cutright was indicted on one count of
Possession of Heroin, a fifth degree felony, in violation of R.C. 2925.11 and one count of Illegal
Conveyance of Prohibited Items onto Ground of a Specified Governmental Facility, a third
degree felony in violation of R.C. 2921.36. In October 2013, Cutright filed a motion to suppress
all evidence resulting from a traffic stop on November 12, 2012.
{¶ 3} The parties presented the facts during the hearing on the motion to suppress.
Sergeant Timothy Gay (“Sgt. Gay”) was the only witness that was presented at the hearing. On
November 30, 2012, Sgt. Gay was in the middle of second shift when Carrie Brown (“Brown”)
approached him. Brown was a resident of the neighborhood Sgt. Gay was patrolling. Sgt. Gay
testified that he conversed with Brown through his cruiser window, as he remained seated in the
vehicle. Sgt. Gay testified:
SHE ADVISED THAT THERE WAS A HOUSE ACROSS THE STREET
FROM HER THAT WAS VACANT, THAT SHE SUSPECTED THERE WAS
DRUG DEALERS WORKING OUT OF THAT HOUSE, THE VACANT
HOUSE, AND THAT SHE SAW PEOPLE COMING OUT OF THAT HOUSE
GETTING INTO A WHITE VAN THAT WAS PARKED JUST UP FROM
WHERE I STOPPED TO TALK TO HER.
{¶ 4} Sgt. Gay testified that the area was known for drug activity. However, Sgt. Gay’s
police report of the incident did not specify that the area was known for drug activity. Sgt. Gay
saw the white van in question as Brown was talking to him. As Sgt. Gay was still speaking to
Brown, the van pulled away and began traveling westbound. Less than a quarter mile down the
road, Sgt. Gay marked the van on dispatch and initiated a stop. Sgt. Gay gave the following
testimony on direct examination:
Ross App. No. 14CA3442 3
MARKS [PROSECUTOR]: WHY DID YOU THEN INITIATE A TRAFFIC
STOP ON THE WHITE VAN?
GAY: TO INVESTIGATE THE COMPLAINT OF BEING AT THE VACANT
HOUSE AND DRUG ACTIVITY.
MARKS: WHAT WERE YOU, WHAT PARTICULAR CRIMES WERE YOU
INVESTIGATING AT THAT POINT IN TIME?
GAY: THE TRESPASSING OR POSSIBLY BURGLARY AT A RESIDENCE,
AND POSSIBLE DRUG ACTIVITY.
MARKS: AND YOU STATE THAT CUTRIGHT WAS IN THE VAN WHEN
YOU STOPPED IT?
GAY: YES.
{¶5} On cross examination Sgt. Gay testified:
SZORADY [DEFENSE COUNSEL]: AND THEN SHE SAYS AND I’M
QUOTING THIS FROM YOUR REPORT, “SHE THINKS THEY MAY BE
USING DRUGS”. [SIC]
GAY: YES.
SZORADY: OKAY. SHE DIDN’T KNOW ANY OF THE OCCUPANTS OF
THE VAN, NONE OF THAT RELAYED TO YOU THAT SHE DIDN’T
KNOW ANY OF THE OCCUPANTS OF THE VAN?
GAY: RIGHT
***
SZORADY: MS. BROWN DOESN’T INDICATE THAT SHE SEES ANY
DRUG USE, CORRECT? SHE DIDN’T SEE ANYONE USING DRUGS?
Ross App. No. 14CA3442 4
GAY: NO NOT THAT I KNOW OF, SHE’D HAVE TO TESTIFY TO THAT.
SZORADY: AND YOU DIDN’T SEE ANY DRUGS BEING USED WHEN
YOU PULLED UP…WELL YOUR INITIAL LOOK AT THE VAN WHEN
YOU’RE THERE, YOU DON’T SEE ANYBODY USING DRUGS.
GAY: RIGHT.
SZORADY: AND THEN ONCE YOU PULLED IT OVER YOU DON’T SEE
ANYONE USING DRUGS AT THE TIME, RIGHT?
GAY: RIGHT.
SZORADY: SO EVERYTHING THAT YOU BASED YOUR
INVESTIGATION ON AT THIS POINT IS THROUGH CARRIE BROWN
WHO IS A RESIDENT IN THAT NEIGHBORHOOD.
GAY: RIGHT.
SZORADY: SO MS. BROWN GIVES YOU…ESSENTIALLY SHE SAYS I
HAVE A HUNCH THAT THIS IS GOING ON, AND YOU FOLLOWED
THAT.
GAY: RIGHT.
{¶ 6} After the stop, Sgt. Gay checked out the house in Brown’s complaint. He testified:
“The house appeared to be vacant. There were no signs of any forced entry. There was no
damage that I could find, and I had no way to get in and check any further.”
{¶ 7} The trial court granted Cutright’s motion to suppress. At the conclusion of the
suppression hearing, the trial court articulated its findings of fact and reason for its ruling. The
court stated:
Ross App. No. 14CA3442 5
SHE [BROWN] DIDN’T HAVE ANY SPECIFIC INFORMATION TO WHICH
SHE PROVIDED TO HIM [SGT. GAY] OTHER THAN JUST HER HUNCH.
IT’S MY UNDERSTANDING FROM HIS [SGT. GAY] TESTIMONY THAT
HE DID NOT HAVE ANY DRUG ABUSE COMPLAINTS FROM THE
SPECIFIC ADDRESS WHERE THE VAN WAS, BUT FROM THE BUILDING
NEXT DOOR.
A WHITE VAN WAS PARKED NEAR THE BUILDING WHERE HE DID
HAVE SPECIFIC INFORMATION OF PREVIOUS DRUG ACTIVITY
THOUGH. THE WHITE VAN THEN PULLED AWAY, TRAVELED LESS
THAN A QUARTER OF MILE [SIC] AND OFFICER GAY STOPPED THE
VEHICLE.
THE COURT WOULD NOTE THAT REASONABLE CAUSE FOR [SIC]
STOP DOESN’T HAVE TO BE BASED SOLELY ON A POLICE OFFICER’S
PERSONAL OBSERVATIONS AS IN TERRY. HOWEVER, IT DOES
REQUIRE I THINK SPECIFIC INFORMATION COMING FROM AN
INDIVIDUAL THAT WOULD HAVE BEEN ABLE TO PROVIDE IT. IN THIS
CASE IT WAS NOT NECESSARILY AN ANONYMOUS SOURCE, BUT WE
ALSO DON’T KNOW THE VERACITY OF MS. BROWN. WE DON’T
KNOW WHETHER SHE IS RELIABLE, IF SHE HAS PROVIDED RELIABLE
INFORMATION IN THE PAST I JUST SIMPLY DON’T KNOW.
IT’S EQUALLY POSSIBLE THAT MS. CUTRIGHT WAS AN APPRAISER,
OR AN ELECTRICIAN, OR SOMEBODY HIRED TO WORK AT THAT
HOUSE AS ANY OTHER THING.
Ross App. No. 14CA3442 6
BASED ON ALL THE EVIDENCE THAT HAS BEEN SUBMITTED, THE
COURT FINDS THAT THE STATE DID NOT MEET ITS BURDEN, AND AS
SUCH THE COURT FINDS THERE WAS NOT PROBABLE CAUSE OR
REASONABLE SUSPICION TO STOP THE VEHICLE IN THIS CASE.
{¶ 8} The state asserts in this appeal that the ruling on the motion to suppress has
rendered its proof of the charges so weak in its entirety that any reasonable possibility of
effective prosecution has been destroyed.
Appellant’s Sole Assignment of Error:
THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT-
APPELLEE’S MOTION TO SUPPRESS DUE TO THE FACT THAT THE
OFFICER POSSESSED A REASONABLE SUSPICION OF CRIMINAL
ACTIVITY, BASED UPON SPECIFIC AND ARTICULABLE FACTS, WHICH
ALLOWED HIM TO PULL OVER THE VEHICLE IN WHICH THE
DEFENDANT-APPELLEE WAS A PASSENGER WITHOUT VIOLATION OF
ANY OF HER CONSTITUTIONAL RIGHTS
{¶9} The state argues that the trial court erred because the information from Brown
provided Sgt. Gay with reasonable suspicion that a trespass or possibly a burglary or breaking
and entering had been committed. The state also contends that the trial court made a mistake of
law when it determined that there could not be much weight given to the information Brown
relayed. As a result, according to the state, Sgt. Gay was justified in initiating an investigative
stop of appellee Cutright.
{¶ 10} Appellee Cutright argues that under the totality of the circumstances test, the trial
court properly weighed the credibility and veracity of Brown’s tip and reached the correct
Ross App. No. 14CA3442 7
conclusion in granting the motion to suppress. Specifically, Cutright suggests that the state
incorrectly sets forth that an identified citizen informant’s tip is reliable based solely on their
status. Cutright states that Sgt. Gay witnessed no drug activity; and Brown did not witness any
drug use or activity. In addition, no testimony was presented demonstrating how Brown knew the
house in question was vacant.
A. Standard of Review
{¶ 11} Our review of a trial court's decision on a motion to suppress presents a mixed
question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, 797 N.E.2d
71, ¶ 8. When considering a motion to suppress, the trial court acts as the trier of fact and is in
the best position to resolve factual questions and evaluate witness credibility. Id. Accordingly,
we defer to the trial court's findings of fact if they are supported by competent, credible evidence.
Id. Accepting those facts as true, we must independently determine whether the trial court
reached the correct legal conclusion in analyzing the facts of the case. Id.
B. Investigative Stop
{¶ 12} The Fourth Amendment to the United States Constitution and Section 14, Article I
of the Ohio Constitution guarantee the right of the people to be free from unreasonable searches
and seizures. See State v. Orr, 91 Ohio St.3d 389, 391, 2001-Ohio-50, 745 N.E.2d 1036. These
two provisions contain nearly identical language and the Supreme Court of Ohio has interpreted
them as affording the same level of protection. Id. “Once the defendant demonstrates that he was
subjected to a warrantless search or seizure, the burden shifts to the State to establish that the
warrantless search or seizure was constitutionally permissible.” State v. Hansard, 4th Dist.
Scioto No. 07CA3177, 2008–Ohio–3349, at ¶ 14, citing Maumee v. Weisner, 87 Ohio St.3d 295,
Ross App. No. 14CA3442 8
297, 1999–Ohio–68, 720 N.E.2d 507 and Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889
(1988), at paragraph two of the syllabus.
{¶ 13} Based on the parties’ arguments on appeal, the stop at issue in this case is an
investigative stop subject to Fourth Amendment jurisprudence. The investigative stop exception
to the Fourth Amendment warrant requirement allows a police officer to stop and briefly detain
an individual if the officer possesses a reasonable suspicion, based upon specific and articulable
facts, that criminal activity “may be afoot.” State v. Abernathy, 4th Dist. Scioto No. 07CA3160,
2008-Ohio-2949 ¶22-24, quoting Terry v. Ohio, 392 U.S. 1, 30 (1968); see also United States v.
Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Illinois v. Wardlow, 528 U.S. 119,
123, 120 S.Ct 573, 145 L.Ed.2d 570 (2000); State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d
1271 (1991); State v. Venham, 96 Ohio App.3d 649, 654, 645 N.E.2d 831, 833 (1994).
{¶ 14} A valid investigative stop must be based upon more than a mere “hunch” that
criminal activity is afoot. See e.g., Arvizu at 273; Wardlow at 124; Terry at 27. Reviewing courts
should not, however, “demand scientific certainty” from law enforcement officers. Wardlow at
125. Rather, a reasonable suspicion determination “must be based on commonsense judgments
and inferences about human behavior.” Id. Thus, “the likelihood of criminal activity need not
rise to the level required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.” Arvizui at 274; Wardlow at 123.
{¶ 15} A court that is determining whether a law enforcement officer possessed
reasonable suspicion to stop an individual must examine the “totality of the circumstances.” See
e.g., Arvizu at 273. The totality of the circumstances approach “allows officers to draw on their
own experience and specialized training to make inferences from and deductions about the
cumulative information available to them that ‘might well elude an untrained person.’” Id.
Ross App. No. 14CA3442 9
quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Thus,
when a court reviews an officer's reasonable suspicion determination, a court must give “due
weight” to factual inferences drawn by resident judges and local law enforcement officers. Id.
{¶ 16} An informant's tip may provide officers with the reasonable suspicion necessary
to conduct an investigative stop. Abernathy, 2008-Ohio-2949 at ¶ 26. Where the information
possessed by the police before the stop stems solely from an informant’s tip, the determination of
reasonable suspicion will be limited to an examination of the weight and reliability due that tip.
Maumee, 87 Ohio St.3d 295, 1999-Ohio-68, 720 N.E.2d 507 at 299. The appropriate analysis
then is whether the tip itself has sufficient indicia of reliability to justify the investigative stop.
Id. Factors considered “highly relevant in determining the value of the [informant’s] report” are
the informant’s veracity, reliability, and basis of knowledge. Id. (Citations omitted).
C. Analysis
{¶ 17} In the case sub judice, the information leading to the stop of Cutright came from
Brown. Courts have generally classified informants into three groups: the anonymous informant,
the known informant, and the identified citizen informant. Maumee at 300. Brown cannot be
classified as anonymous or a known informant (“someone from the criminal world who has
provided previous reliable tips”) given the circumstances of her report to Sgt. Gay. Id. Therefore,
for purposes of constitutional analysis, Brown is an “identified citizen informant” in this case.
The trial court recognized Brown’s status, stating: “In this case it was not necessarily an
anonymous source, but we also don’t know the veracity of Brown. We don’t know whether she
is reliable, if she has provided reliable information in the past. I simply don’t know.”
{¶ 18} In Maumee the Ohio Supreme Court further explained:
Ross App. No. 14CA3442 10
While the United States Supreme Court discourages conclusory analysis based
solely upon these categories, insisting instead upon a totality of the circumstances
review, it has acknowledged their relevance to an informant's reliability. The
court has observed, for example, that an anonymous informant is comparatively
unreliable and his tip, therefore, will generally require independent police
corroboration. Alabama v. White, [496 U.S. 325, 330, 110 S.Ct. 2412, 110
L.Ed.2d 301 (1990).] The court has further suggested that an identified citizen
informant may be highly reliable and, therefore, a strong showing as to the other
indicia of reliability may be unnecessary: “[I]f an unquestionably honest citizen
comes forward with a report of criminal activity—which if fabricated would
subject him to criminal liability—we have found rigorous scrutiny of the basis of
his knowledge unnecessary.” Illinois v. Gates, [462 U.S. 213, 233–234, 103 S.Ct.
2317, 76 L.Ed.2d 527 (1983).]
Id. at 300.
{¶ 19} Based on the evidence in this case, we find the trial court erred in granting
appellant Cutright’s motion to suppress. The state argues 1) the trial court erred in its assessment
of the veracity of Brown and 2) Sgt. Gay possessed reasonable suspicion to initiate an
investigatory stop. First we will address the trial court’s assessment of the credibility of Brown.
{¶ 20} According to the United States Supreme Court’s analysis, a main difference
between an anonymous informant and an identified citizen informant is that an anonymous
informant will generally require independent police corroboration. Id. The analysis also suggests
that increased scrutiny of an identified informant may be unnecessary. The state cites State v.
Thompson, 4th Dist. Washington No. 94CA35, 1995 Ohio App., where this Court stated: “When
Ross App. No. 14CA3442 11
an average citizen tenders information to the police, the police should be permitted to assume
that they are dealing with a credible person in the absence of special circumstances suggesting
that such might not be the case.”
{¶ 21} Conclusory analysis based solely upon the category a witness falls under is
discouraged. Maumee at 300. However, the primary concern for a court is to evaluate the tip’s
weight and reliability in order to determine if reasonable suspicion existed. Id. at 299. In that
regard, the trial court concluded that it did not have any information pertaining to Brown’s
reliability. The trial court evaluated Brown’s tip regarding appellee Cutright stating: “It’s equally
possible that Ms. Cutright was an appraiser, or an electrician, or somebody hired to work at that
house as any other thing.”
{¶ 22} We are mindful that the trial court is in the best position to resolve factual
questions and evaluate witness credibility. Nevertheless, in doing so, the trial court must apply
the correct analytical factors. The reliability of a known citizen informant may be presumed. Id.
at 300, citing U.S. v. Parsquarille (C.A.6, 1994), 20 F.3d 682, 689. See, also, State v. Summers,
5th Dist. Morgan No. 02CA7, 2002 -Ohio-5284, ¶ 26 citing State v. Gardner, 74 Ohio St.3d 49,
63, 656 N.E.2d 623, 1995-Ohio-168 citing Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527
(1983). Yet the trial court concluded that it did not know Brown’s reliability without stating any
reason why it should be in question. Therefore, we find that the trial court erred in its analysis of
the reliability of Brown’s information.
{¶ 23} Next, the state argues that regardless of the drug activity “hunch,” Brown was able
to inform Sgt. Gay that the individuals in the van had just left a vacant house where no one was
living at the time. The state claims that, with those specific facts, Sgt. Gay possessed reasonable
suspicion to stop the white van on the suspicion of trespass. The state contends that the trial court
Ross App. No. 14CA3442 12
seemed to completely disregard this information and only focused on the likelihood of a drug
offense having been committed.
{¶ 24} Examining the information Brown supplied Sgt. Gay, we find the trial court also
erred in its analysis of whether Sgt. Gay possessed reasonable suspicion to stop Cutright.
Concerning the suspicion of trespass, the trial court concluded that it was possible that the
individuals walking out of the vacant house and getting in the van were hired to work at the
house. The incident occurred after 9:30 P.M., so it seems improbable that such an assumption
could be correct. More importantly, the principal function of an investigative stop is to resolve
the very ambiguity that equally plausible innocent and culpable possibilities create. Such a stop
is reasonably designed to enable police to quickly determine whether they should allow a suspect
to go about her business or to hold her to answer charges. The proper analysis focuses upon
whether there is a substantial possibility that criminal conduct has occurred, is occurring, or is
about to occur. See, City of Chillicothe v. Ingham, 4th Dist. Ross No. 1948, 1994 WL 67786
(Feb. 24, 1994), Harsha, P.J., dissenting, and the authorities cited there at *4. The test regarding
reasonable suspicion is not whether there is a potentially innocent explanation for defendant’s
behavior. Here, a resident of a neighborhood known for drug activity reported that individuals
were coming out from an abandoned house after 9:30 P.M. The proper legal standard is whether
under the totality of the circumstances, the officer had a reasonable suspicion that criminal
activity, in this case a trespass, “may be afoot.”
{¶ 25} In light of the foregoing, we reverse the trial court’s decision to grant Cutright’s
motion to suppress. This cause is remanded to the trial court so it may decide Cutright’s motion
to suppress applying the proper legal standards. We add, however, that our opinion should not be
Ross App. No. 14CA3442 13
construed as a comment on the actual merits of the motion to suppress after the trial court applies
the proper legal standards.
JUDGMENT REVERSED AND CAUSE REMANDED.
Hoover, P.J., dissenting:
{¶ 26} I respectfully dissent from the per curiam opinion. I would overrule the state’s
sole assignment of error and affirm the judgment of the trial court.
As the trial court is in the best position to resolve factual questions and evaluate witness
credibility, I would defer to the trial court’s findings if supported by competent, credible
evidence. Burnside, supra, at ¶ 8. Here, the court expressed a neutral opinion on whether Brown
was reliable or not. Sgt. Gay never testified that Brown reported any specific witness of drug
activity, as it was just her hunch that the individuals were engaged in such behavior. It was
Brown’s hunch, not Sgt. Gay's hunch, that the white van was involved in drug activity. It is
inconsequential that Sgt. Gay investigated the house later, after the traffic stop, to confirm that
the house was in fact vacant. Therefore, I would find that the trial court’s evaluation of Brown
was in accordance with the proper legal standard.
{¶ 27} Based on the information Brown supplied to Sgt. Gay, the trial court did not err in
its analysis of whether Sgt. Gay had reasonable suspicion to stop the white van. With respect to
the issue of a possible trespass, Brown’s information did not report inherent illegal activity.
Another observer at the same time may have reasonably concluded that the individuals were
there for a legitimate purpose. It is well established that reasonable suspicion must be established
on more than just a “hunch.”Arvizu, supra, at 274. The trial court found that Brown lacked
specific information other then her hunch. On cross examination, Sgt. Gay answered in the
affirmative when he was asked if all he possessed was a hunch. “ ‘The articulable and reasonable
Ross App. No. 14CA3442 14
suspicion must exist in the officer's mind at the time of the stop and cannot be based on facts
obtained after the initial stop.’ ” Chillicothe v. Ingham, 4th Dist. Ross No. 1948, 1994 WL
67786, *2 (Feb. 24, 1994), quoting State v. Freeman, 64 Ohio St.2d 291, 294, 414 N.E.2d 1044
(1980). Affirming information regarding the status of the house only came about after the stop
occurred. After the stop, Sgt. Gay checked out the house in Brown’s complaint. He saw no signs
of any forced entry. He could not find any damage.
{¶ 28} When viewing the totality of the circumstances in this case, sufficient articulable
facts did not exist to constitutionally justify the stop. This Court has stated the following:
“***[T]he Supreme Court made it clear that good faith, accompanied only by an
inarticulate hunch, is not enough for even the temporary ‘seizure’ of a stop. And
that is all that appears on this record. * * * This may have been enough reason for
an officer to become suspicious enough to keep an eye on defendant. But it can
hardly be deemed to be an objective indicator of reasonable suspicion of criminal
conduct. * * * The inarticulate hunch, the awareness of something unusual, is
reason enough for officers to look sharp. Their knowledge and experience identify
many incidents in the course of a day that an untrained eye might pass without
any suspicion whatever. But awareness of the unusual, and a proper resolve to
keep a sharp eye, is not the same as an articulated suspicion of criminal conduct.
Defendant's acts, as reported, were too innocuous to warrant the intrusion of a
temporary seizure for questioning.”
Id. at *3, quoting United States v. Montgomery, 561 F.2d 875, 879 (D.C.Cir.1977).
{¶ 29} Accordingly, I would find that the trial court did not err in either evaluating the
veracity of the witness Brown or in its conclusion that the state had not met its burden in proving
Ross App. No. 14CA3442 15
that Sgt. Gay possessed reasonable suspicion when he performed a stop on Cutright’s white van.
I would overrule the state's sole assignment of error and affirm the judgment of the trial court.
Ross App. No. 14CA3442 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED AND CAUSE REMANDED.
Appellee shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, J. & McFarland, A.J.: Concur in Judgment and Opinion.
Hoover, P.J.: Dissents with Dissenting Opinion.
FOR THE COURT:
By:
William H. Harsha, Judge
By:
Matthew W. McFarland, Administrative Judge
By:
Marie Hoover, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
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227 Or. 139 (1961)
360 P.2d 774
FRIES
v.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
Supreme Court of Oregon.
Argued March 9, 1961.
Affirmed April 12, 1961.
Petition for rehearing denied May 9, 1961.
Burt Bennett, Portland, argued the cause for appellant. With him on the briefs were Anderson, Franklin, Jones & Olsen, Portland.
Herbert H. Anderson, Portland, argued the cause for respondent. With him on the brief were Koerner, *140 Young, McColloch & Dezendorf, and Stanley R. Loeb, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, GOODWIN and LUSK, Justices.
AFFIRMED.
PERRY, J.
The plaintiff brought this action to recover under the accidental death benefit coverage of a policy of insurance issued to her husband by the defendant. The jury returned a verdict for the plaintiff. On motion of the defendant for judgment non obstante veredicto, the trial court set aside the judgment rendered on the verdict of the jury and caused judgment to be entered for the defendant. From this order of the trial court the plaintiff appeals.
The evidence discloses that plaintiff's husband at the time of his death was a man 71 years of age; his vocation was that of a food broker and he was actively engaged in his work until his death. On December 9, 1958, Mr. Fries (hereinafter designated as "the deceased") was operating his automobile on southwest Taylor street and a Mr. Green was operating his automobile on 9th street, both streets being in the city of Portland. At the intersection of these two streets the two automobiles came in contact, the deceased's automobile striking in a swiping motion across the right front portion of the Green automobile. After striking the Green automobile, the deceased continued across the intersection where he stopped. The injury to the deceased's automobile is described by one witness as a "scrape, nothing serious." After the deceased stopped his automobile, he got out, picked up some chrome from the pavement, put it in his automobile, and then walked over *141 to where Mr. Green and a Mr. Williams, who was a passenger in the Green automobile, were standing. He stopped before these parties and "simply stood there." Mr. Williams said, "You fellows better get your drivers' licenses and so forth out here, and Mr. Fries started to reach for his pocket and dropped." The deceased's fall is described by Mr. Williams as follows:
"Q How did he go down now? Describe it.
"A He went down, just slumped.
"Q He slumped over?
"A His head dropped back.
"Q He slumped over and his head slumped back? Did he grab for his heart?
"A I wouldn't remember that.
"Q Did he let out any cry?
"A Not at all.
"Q He just slumped down. Did you observe his eyes as he went down?
"A No, not as he went down.
"Q Did his eyes roll up?
"A After he got down, I noticed his eyes, they were open.
"Q And what did he hit his head on, the pavement?
"A He hit the back of his head right on the pavement.
"Q Did he hit it pretty hard?
"A Yes."
Mr. Green described what occurred at this time as follows:
"A Well, Mr. Fries got out of his car, came around, picked up a piece of molding, and by that time I was over at the corner on the curb. He put the molding in his car and walked over to me, and I said, `Fellow, that sign means stop.'
*142 "Q Did he say anything then?
"A He did not say a thing. He was just awful nervous. He was shaking. So Mr. Williams piped up and said, `Well, you better get your licenses out,' and apparently Mr. Fries made an effort to reach in his hip pocket and he as he reached down, fell flat on his back. At that time his feet were dancing around, which he was quite nervous, and as he hit the ground, I stooped down and picked his head up and pulled his coat up and held his head out of the dirt, out of the water.
"Q Did you notice his hands shaking?
"A Not after he hit the ground, no. I don't think he did a lot of moving at all.
"Q I mean before he hit?
"A His hands were shaking and his feet were just kind of dancing around. He seemed quite nervous.
"Q He seemed nervous?
"A Yes.
"Q Did you notice, was he pale or
"A (Interposing) No, I don't remember.
"Q You don't remember that. All right. Did he do anything, did he clutch at his heart or let out any groan?
"A Never made a sound.
"Q He just slumped over? Then did you notice any blood on him?
"A Not until the officer arrived, and I had kept his head up out of the water, so the officer said, `Put his hat under it,' and as I turned his head loose, I had blood in my right hand.
"Q As you were holding his head there, were you able to feel any sensations in his body?
"A Yes, I could feel his heart.
"Q Tell the jury what you felt?
"A Well, I had my hands right up next to his neck and his heart beat a little bit and slow up *143 and beat a little more, and about three minutes, or three to five minutes he was dead.
"Q So his heart was beating after he fell?
"A Yes, sir."
The parties stipulated that:
"Mr. Fries was examined by a doctor in December, 1952 with complaints of fatigueability, nervousness, foot swelling, cough, and obesity, and that these subjective complaints had been present for about six months and that there was a medical diagnosis at that time of arteriosclerotic heart disease, FC II, with congestive failure."
There is no evidence that the deceased suffered any visible external bodily injuries by reason of the contact of the automobiles. Dr. Edwin A. Mickel, called to give an expert's opinion of the cause of deceased's death, testified that, although there was evidence deceased was afflicted with a serious heart condition, it was his opinion "that this man died of the injury he suffered to his brain as a result of the fall that he took." He also stated it was his opinion that deceased fainted "as a result of the nervous condition he suffered."
Dr. Warren C. Hunter, under whose instruction an autopsy was performed, was of the opinion that death was due to the diseased condition of deceased's heart.
The insuring clause of the policy is as follows:
"If the employee, while insured for Accidental Death and Dismemberment Insurance under this Policy, suffers any of the losses described below, as a result of bodily injuries sustained solely through external, violent and accidental means, directly and independently of all other causes and within ninety days from the date of such injuries, the Company shall pay to the employee, if living, *144 otherwise to the beneficiary, the amount of insurance specified for such loss in the following Schedule of Indemnities, determined on the basis of the Full Amount of Insurance set forth in the provision entitled `Amounts of Insurance' contained herein; provided, however, that no payment shall be made for any loss caused wholly or partly, directly or indirectly, by (a) disease, or bodily or mental infirmity, or medical or surgical treatment thereof; * * *"
There is no contention that the deceased's fall was immediately caused by slipping or tripping, but that the requirements of the insuring clause are met by plaintiff's contention that the evidence discloses deceased was involved in an automobile accident, that this incident made him nervous, and his nervousness caused him to faint, fall and strike his head on the pavement causing his death. In other words, the proximate cause of injury was the automobile accident.
An examination of the policy shows that the policy eliminates recovery for an injury "wholly or partly, directly or indirectly, by (a) disease, or bodily or mental infirmity," and requires for recovery thereunder that the proximate cause of the injury must be the result of an accident insured against.
In Hutchison v. Aetna Life Insurance Co., 182 Or 639, 189 P2d 586, where, in construing a policy contract identical in its requirements with the policy contract now before us, we approved of the rules enunciated by the Supreme Court of North Carolina in Penn v. Standard Life & Accident Ins. Co., 160 NC 399, 76 SE 262, 42 LRA NS 597, it is pointed out, 182 Or 648, as follows:
"`(1) When an accident caused a diseased condition, which together with the accident resulted in *145 he injury or death complained of, the accident alone is to be considered the cause of the injury or death.
"`(2) When at the time of the accident the insured was suffering from some disease, but the disease had no causal connection with the injury or death resulting from the accident, the accident is to be considered as the sole cause.
"`(3) When at the time of the accident there was an existing disease, which, co-operating with the accident, resulted in the injury or death, the accident cannot be considered as the sole cause or as the cause independent of all other causes.'"
This court, in Hutchison v. Aetna Life Insurance Co., supra, 182 Or 639, 648, stated:
"The words `disease' and `bodily infirmity,' frequently used in exceptions in accident insurance policies, are construed to be practically synonymous, `and to refer only to some ailment or disorder of an established or settled character to which the insured is subject.' 29 Am Jur 747, § 995."
Therefore, in seeking a solution to the problem before us, we are not interested in the result of the fall, i.e., whether deceased died of the skull fracture or heart failure. Thompson v. General Insurance Company of America, 226 Or 205, 359 P2d 1097; LaBarg v. United Ins. Co., 209 Or 282, 303 P2d 498, 306 P2d 380. The sole question is Did deceased fall because of violent, external and accidental causes?
Dr. Mickel, appearing on behalf of the plaintiff, was of the opinion the deceased fell because of nervousness, created by the collision, which caused him to faint and then fall. Dr. Hunter was of the opinion that a partial or total heart failure caused the fall.
If we assume from Dr. Mickel's statement, "This man fainted as a result of the nervous condition he *146 suffered," he means a fright created by the occurrences surrounding the collision of the automobiles and not the defendant's bodily condition, which it appears from the stipulation of the parties he suffered since 1952, we must find that a psychological event is a violent, external and accidental means causing bodily injury. If we cannot make this assumption, it is quite clear that disease caused the fall and no recovery may be had.
1. Since the defendant's policy of insurance uses the conjunctive "and" with reference to the cause of injury, "violent, external and accidental," each of these elements must be present to create liability thereunder. Travellers' Ins. Co. v. McConkey, 127 US 661, 32 L Ed 308, 8 S Ct 1360; Schonberg v. New York Life Insurance Company, 235 La 461, 104 So 2d 171; John Hancock Life Insurance Co. v. Plummer, 181 Md 140, 28 A2d 856; Oklahoma Nat. Life Ins. Co. v. Norton, 44 Okla 783, 145 P 1138.
"The term `violent,' in such provisions, signifies merely that a physical force, however slight, is efficient in producing the injury" (Italics theirs) 45 CJS 784, Insurance § 754.
There is not the slightest bit of evidence in this case that any physical force of any nature was applied to the body of the deceased and proximately caused him to fall.
2. In our opinion a mere mental picture conjured in the mind of an individual which causes that individual to faint cannot be considered either violent or external within any reasonable interpretation of the policy contract. Provident Life & Acc. Ins. Co. v. Campbell, 18 Tenn Ap 452, 79 SW2d 292.
The judgment of the trial court is affirmed.
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848 F.2d 190
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Nathan EDWARDS, Petitioner-Appellant,v.KINROSS CORRECTIONAL FACILITY, Respondent-Appellee.
No. 87-2008.
United States Court of Appeals, Sixth Circuit.
May 13, 1988.
Before WELLFORD, BOGGS and ALAN E. NORRIS, Circuit Judges.
ORDER
1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Upon consideration, we affirm the judgment of the district court for the reasons stated in its judgment filed September 17, 1987. Rule 9(b)(5), Rules of the Sixth Circuit.
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352 F.Supp. 941 (1973)
Richard MORALES, Plaintiff,
v.
ARLEN REALTY & DEVELOPMENT CORP. et al., Defendants.
No. 72 Civ. 419.
United States District Court, S. D. New York, Civil Division.
January 9, 1973.
*942 David Lopez, New York City, for plaintiff.
Parker, Chapin & Flattau, New York City, for defendants; Alvin M. Stein, Mark Abramowitz, Ray J. Fleischhacker, New York City, of counsel.
OPINION
KNAPP, District Judge.
Plaintiff, a stockholder of Arlen Realty and Development Corporation (Arlen), brings this derivative suit against four Arlen directors, Cohen, Levien, Rose and Weissman, to recover shortswing profits under § 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p. Both sides move for summary judgment on the question of § 16(b) liability, having stipulated pursuant to F. R.Civ.P. 56(c) to sever the issue of damages.
The following facts are undisputed:
Arlen, the corporation here involved, was formed to be the vehicle for the integration of two previously independent enterprises. The first of these was a partnership known as the "Arlen Group", which was engaged in real estate development. Defendants Cohen, Levien and Rose were members of this partnership. The second of these enterprises was Spartans Industries, Inc., whose business was the operation of retail stores and shopping centers. Defendant Weissman was an officer and director of this corporation.
The first step in the planned integration occurred in late 1970, when the members of the "Arlen Group" formed the Arlen Corporation, and defendants Cohen, Levien and Rose became directors of that corporation. The corporation did not then acquire the business of the "Arlen Group" or any assets whatever. On February 26, 1971, the Arlen Group partners transferred the assets of the partnership to the Arlen Corporation in return for shares of its capital stock. On the same day a merger between Spartans and Arlen was completed, and defendant Weissman became a director of Arlen. Thus, all four defendants were directors of Arlen on February 26, 1971.
*943 On that same day, as a result of the foregoing transactions, the four defendants acquired shares of Arlen capital stock in the following amounts; Defendant Cohen, 4,968,220 shares; defendant Levien, 2,365,220 shares, defendant Rose, 355,971 shares; and defendant Weissman, 100,849 shares.
Three days later, on March 1st, defendants Cohen, Levien and Rose privately sold for cash and promissory notes to one Emanuel Klimpl, a former director of Arlen, 38,000, 19,000 and 3,000 shares, respectively, of Arlen common stock.
On the same day, defendant Cohen transferred 250,000 shares of Arlen common to his wife as trustee of five trusts established for their children. It is stipulated that this transfer was for value, and at oral argument it was stated that such "value" consisted of the trustee's promissory notes and that the trusts held no other assets.
On May 10, 1971, defendant Weissman sold 500 shares of Arlen common on the New York Stock Exchange.
Plaintiff claims that each of the above-mentioned transactions came within the purview of § 16(b), and that the Arlen corporation is therefore entitled to recover from each defendant any profit he may have made therefrom. Each defendant concedes he is an "insider" within the meaning of the section. However, defendants severally take the following positions:
(a) Defendants Levien and Rose concede that their acquisitions of the stock as a result of the February 26th integration, were "purchase[s]" within the meaning of § 16(b), but contend that their subsequent sales to another "insider" should not be deemed "sale[s]" within that section.
(b) Defendant Cohen, similarly conceding that his acquisition of Arlen stock was a "purchase", takes the identical position with respect to his sale to the insider Klimpl. In addition, he contends that his transfer of the stock to a trustee for the benefit of his children should not because of the nature of the transferee be deemed such a "sale".
(c) Defendant Weissman, conceding that his sale of Arlen stock was covered by the statute, contends that his acquisition of the stock was not a "purchase" within its coverage. In this connection plaintiff does not claim that defendant Weissman had a controlling voice in either Spartans or Arlen at the time of the merger, or that he could have prevented the merger. Other facts relevant to Weissman's acquisition of the stock will be subsequently stated.
For the reasons hereinafter stated, I accept defendant Weissman's contentions, but reject those of the other defendants.
Section 16 was enacted by the Congress to deter officers, directors, and beneficial owners of more than ten per cent of any class of the stock of corporations from deriving unfair advantage over other stockholders by virtue of their "insider" status. § 16(a) establishes reporting requirements for insiders. § 16(b) provides in relevant part:
"For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, . . . shall inure to and be recoverable by the issuer, * * *"
The word "purchase" is defined elsewhere in the Act to include "any contract *944 to buy, purchase, or otherwise acquire", and "sale" is defined to include "any contract to sell or otherwise dispose of". § 3(a)(13), (14), 15 U.S.C. § 78c(a)(13), (14).
The defendants urge that the statute is to be construed with an eye to its stated purpose of preventing the unfair use of "insider" information, rather than applied across the board to all transactions literally covered even if those transactions could not possibly result in the evil the statute seeks to prevent. In support of their interpretation, defendants cite Blau v. Lamb (2d Cir. 1966) 363 F.2d 507. The Court of Appeals there held that a conversion of preferred stock into common stock of the same issuer did not constitute a "sale" within the meaning of § 16(b) because it could not possibly have served as a means for the defendant to have engaged in speculation.
In the Blau case, the Court established two basic propositions with respect to the purpose and effect of section 16(b). The first of these propositions is that, impressed by the multitude of ills resulting from "insider" manipulation of corporate stock, the Congress adopted a draconian measure which would in effect make impossible the sale (or purchase) by any insider of stock within six months of its purchase (or sale) by the insider. As applied to "purchases" and "sales" as those terms are ordinarily understood in the law, the Congress allowed no loophole by which the insider could avoid the impact of the statute. In the case of such ordinary purchases and sales, it mattered not to whom, why or how the insider sold (see 363 F.2d at 516). Indeed, as the Court subsequently ruled in Abrams v. Occidental Petroleum Corporation (2d Cir. 1971) 450 F.2d 157, cert granted, Kern County Land Company v. Occidental Petroleum Corporation, 405 U.S. 1064, 92 S.Ct. 1498, 31 L.Ed.2d 793, the only way an insider could avoid the statute was to hold his stock until six months after its purchase had elapsed. Thus, in Abrams the Court observed (450 F.2d at 162):
"In the case of a garden-variety purchase and sale or sale and purchase within six months, . . . the statute operates as a `crude rule of thumb' . . . . The only way to avoid § 16(b) liability in such cases is to see to it that the matching transaction is postponed beyond the six months period."
The second proposition established by Blau is that the Congress was not content to limit the reach of the statute to ordinary purchases and sales, but intended to include "conversions, options, stock warranties, reclassifications" and every other sophisticated method by which securities could be acquired or disposed of (363 F.2d at 561). However, with respect to these sophisticated methods as opposed to ordinary purchases and sales the Court concluded that the Congress did not intend the statute to apply to situations where the "transaction in question could not possibly [lend] itself to insider abuse" (363 F.2d at 519).
Under this authoritative construction of the statute it seems to me that the transactions involving defendants Cohen, Levien and Rose constitute under the facts as stipulated ordinary purchases and sales, and that any inquiry as to their purpose or possible effect is irrelevant. Summary judgment is therefore granted in plaintiff's favor against those defendants as to the question of liability.
A different result seems indicated in the case of defendant Weissman. With respect to that defendant, the parties agree that prior to the merger between Spartans and Arlen, defendant Weissman had been an officer, director, and minority stockholder of Spartans, and that as a result of the merger, he received Arlen stock in exchange for his Spartans' holdings on a share-for-share basis, and became a director of Arlen. Plaintiff does not contend that Weissman was either instrumental in planning *945 or achieving ratification of the merger, or that he had any power to prevent it. Indeed, plaintiff claimed in support of his now moot argument that the acquisitions of Cohen, Levien, and Rose pursuant to the integration constituted "purchase[s]", that those three defendants engineered the merger and formed Arlen to effect it. However, Weissman does not deny that he could have cashed in his Spartans' shares rather than exchange them.
The question is whether the acquisition of stock under these circumstances has the indicia of a "purchase" under § 16(b); viz., whether it entailed the possibility of speculation. While plaintiff urges that Blau v. Mission Corp. (2d Cir. 1954) 212 F.2d 77, Park & Tilford, Inc. v. Schulte (2d Cir. 1947) 160 F.2d 984, and Newmark v. R. K. O. (2d Cir. 1970) 425 F.2d 348, provide the factual paradigms to be followed here, those cases are distinguishable in that defendants in each one were in control of the litigated transactions or of the corporations involved. In my view Ferraiolo v. Newman (6th Cir. 1958) 259 F.2d 342 involved a defendant whose position was more analogous to Weissman's. In that case his conversion of preferred stock to common was held by the then Judge Stewart to not constitute a § 16(b) purchase on the ground that it was, from a practical standpoint, involuntary. The Court acknowledged that defendant could have redeemed his stock at a loss or sold it rather than convert, but stated that ". . . it can hardly be said that a failure to sell is tantamount to a purchase." (at 346)
I find that Weissman's share-for-share exchange of stock has not been shown to have lent itself to the possibility of speculation. In the absence of a showing that he wielded any control over the terms or timing of the Arlen-Spartans merger, his acquisition of Arlen stock pursuant to the merger did not constitute a "purchase" within the meaning of § 16(b). The complaint is accordingly dismissed against Weissman.
So ordered.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JIM BENSMAN,
Plaintiff,
v. Civil Action No. 10-1910 (JEB)
NATIONAL PARK SERVICE,
Defendant.
MEMORANDUM OPINION
Plaintiff Jim Bensman brought this action against Defendant National Park Service under
the Freedom of Information Act. Bensman alleges that NPS has violated FOIA by improperly
denying his request for a public-interest fee waiver; he also claims that NPS failed to adhere to
FOIA’s 20-workday time limit for reaching a determination on his request. Both parties now
move for summary judgment under Federal Rule of Civil Procedure 56(a). Because the Court
finds that NPS exceeded its statutory time limit and thus cannot assess fees here, it need not
reach the merits of the public-interest dispute.1
I. Background
Plaintiff, as a hobby, uses topographical data to make electronic maps for global-
positioning-system devices. Pl. Mot. at 1. After creating his maps, Plaintiff then makes them
available at his website for visitors to download and use free of charge. Id., Compl., ¶ 4. The
1
In considering the parties’ competing Motions, the Court has reviewed the Administrative Record,
Plaintiff’s Motion for Summary Judgment, Defendant’s Cross-Motion and Opposition to Plaintiff’s Motion,
Plaintiff’s Reply and Opposition to Defendant’s Cross-Motion, and Defendant’s Reply. In addition, the Court held a
hearing on August 4, 2011.
1
data Plaintiff uses to create his GPS maps is typically obtained from “numerous . . . federal, state,
and local agencies by simply asking for it and explaining what it [will] be used for.” Id. at 2.
Bensman became interested in acquiring similar data for lands maintained by Ozark
National Scenic Riverways, a bureau managed by NPS, which is housed within the Department
of the Interior. See Compl., ¶ 8. Plaintiff subsequently had phone and email conversations with
NPS employees regarding the park data, but was unable to procure the desired information. Id.,
¶ 7. After these unsuccessful attempts to have the data released to him, Bensman submitted a
formal FOIA request to NPS on November 17, 2009, for “[a]ny and all trail data” and “[a]ny
data for building locations, put ins, camping areas, parking, etc. that the NPS may have” for the
relevant parklands. App. to Pl. Mot. at 1-2 (“Request”). The Request also sought a public-
interest fee waiver for the records under 5 U.S.C. § 552(a)(4)(A)(iii), which requires an agency
to “furnish[] [records] without any charge or at a [reduced] charge,” where a requester
demonstrates that “disclosure of the information . . . is likely to contribute significantly to public
understanding of the operations or activities of the government and is not primarily in the
commercial interest of the requester.” In support of his fee-waiver request, Bensman
“explain[ed] that he had no commercial interest in the files, and that releasing them served a
public interest since he provides the maps he makes with this information to thousands of people
free of charge.” Pl. Mot. at 3.
Defendant responded on December 4, 2009, acknowledging receipt of Plaintiff’s
November 17 Request, assigning him a Request Number, and addressing the issue of a public-
interest fee waiver. App. to Pl. Mot. at 5-6 (“Letter”). The Letter asserted that the information
Plaintiff had provided in connection with his fee-waiver request “is not sufficient justification to
qualify for a fee waiver under the Department of the Interior’s (DOI) FOIA regulations,” and it
2
referenced 43 C.F.R. Part 2, Appendix D. Id. at 5. Defendant “agree[d] that the records
[Plaintiff requested were] not primarily in [his] commercial interest,” but asked him to “provide
additional information to justify [his] fee waiver request.” Id. at 5-6. The Letter included
suggestions on how Bensman could better formulate his fee-waiver request. Id. In pertinent
part, the Letter asked him to:
1) Explain how the records you seek will be meaningfully informative
with respect to the agency’s operations and activities. Records must
be sought for their informative value with respect to specifically
identified government operations or activities; a request for access to
records for their intrinsic informational content alone would not
satisfy this threshold consideration.
2) Explain how and to whom you intend to disseminate the information
and how you intend to use the information to contribute to public
understanding. Passively making records available to anyone who
might seek access to them does not meet the burden of demonstrating
with particularity that the information will be communicated to the
public.
3) Explain how release of the requested records will contribute
significantly to public understanding. For example, is the
information being disclosed new; does the information confirm or
clarify data released previously; and is the information publicly
available. Explain how disclosure will increase the level of public
understanding that existed prior to disclosure.
Id. Such additional information would “assist [NPS] in making a decision on [Bensman’s]
request for a fee waiver[.]” Id. at 5. The Letter finally directed Bensman to “provide [such]
additional information to justify [his] fee waiver request or written assurance of [his] willingness
to pay all fees (or specify the maximum amount that [he is] willing to pay for the bureau to
process [his] request).” Id. at 6. “This [would] allow [NPS] to begin processing [Bensman’s]
request for records while considering [his] fee waiver request.” Id.
Three days later, on December 7, 2009, Plaintiff replied to NPS’s Letter. App. to Pl.
Mot. at 7 (“Response”). The Response expressed Plaintiff’s frustration over the “time and
3
government resources [he believed were] being wasted” handling his request, but he agreed to
“answer [NPS’s] questions anyway.” Id. Bensman accordingly expanded his earlier fee-waiver
justification to include:
1) The NPS builds and maintains trails and other facilities. The data I
am seeking will inform the location of trails and other NPS facilities
so the taxpayers can find and enjoy what their tax dollars paid for.
2) As I pointed out in my request, I do more than make the data
passively available. I post it on the Internet where thousands of
people have already downloaded it. When I update the maps with
new data, I send out emails letting people know the new maps are
available. Since thousands of people have already downloaded and
installed the maps on their GPS, there is an established record of my
disseminating the data.
3) It will significantly increase public understanding as the public will
have the ability to see where the trails their tax dollars have paid for
are located when using their Garmin GPS.
Id.
Defendant sent a second letter to Plaintiff on January 7, 2010, indicating that “a
recommendation on [his] fee waiver request was forwarded to the Department of the Interior
(DOI) Solicitor s [sic] Office in Denver.” App. to Pl. Mot. at 8 (“Initial Denial”). The
correspondence further explained that the Solicitor’s Office had “not yet completed review of
[NPS’s] recommendation due to the need to further research fee waiver regulations and case
law”; however, Defendant “hope[ed] to have a final determination . . . within the next 5
workdays[,]” and advised Plaintiff of his “right to treat [the] delay as a denial of [his] request.”
Id. Bensman submitted an appeal of the Initial Denial on January 10, 2010, in which he
complained about the delay and accused NPS of “violat[ing] FOIA by not responding in the time
required” by 5 U.S.C. § 552(a)(6)(A)(i). App. to Pl. Mot. at 10 (“First Appeal”). He also
referenced 5 U.S.C. § 552(a)(4)(A)(viii), arguing that NPS was required to release the relevant
4
records to him at no cost because it had not reached a determination within FOIA’s 20-working-
day time limit. Id. at 10-11.
Seven months later, on August 17, 2010, Defendant sent two additional documents to
Plaintiff. The first formally denied Plaintiff’s November 17 Request because NPS “[did] not
believe [Plaintiff] provided sufficient substantiation that release of the requested records is likely
to contribute significantly to the public understanding of the operations and activities of the
Government.” App. to Pl. Mot. at 12 (“Determination”). The Determination also informed
Bensman of his right to appeal the denial of his fee-waiver request and included a $1,387.20 fee
estimate and additional instructions if he still wished to obtain the relevant records. Id. at 13.
The second August 17 communication from NPS denied Plaintiff’s First Appeal. App. to
Pl. Mot. at 15-17 (“First Appeal Denial”). The First Appeal Denial responded to Bensman’s
claim that NPS was required to release the requested records to him at no cost for allegedly
failing to adhere to FOIA’s 20-working-day time limit. Id. NPS dismissed Bensman’s
argument, asserting that “the 20 workday time limit only applies to those requests that are made
in accordance with an agency’s published FOIA regulations,” and “does not begin to run until all
issues regarding processing fees are resolved.” Id. at 16. “In order to resolve all issues regarding
fees,” the First Appeal Denial averred, “the regulations require a FOIA requester to either
provide adequate justification to support his entitlement to a fee waiver or provide his written
assurance that he will pay the fees associated with processing the FOIA request.” Id.
According to NPS, Bensman had provided neither “adequate justification to support [his]
entitlement to a fee waiver,” nor “written assurance that [he] would pay the fees associated with
processing the FOIA request.” Id. “Because of this,” the Denial declared, “all issues regarding
fees have not been resolved . . . .” Id. NPS further reasoned that Bensman did “not submit[] a
5
request ‘in accordance with an agency’s published FOIA regulations,’” and thus FOIA’s time
limit “does not apply to [his] November 17, 2009, FOIA request.” Id. (no citation in original).
The First Appeal Denial concluded, on this basis, that “the section of the FOIA that precludes an
agency from assessing search fees if it fails to comply with [FOIA’s] time limit also does not
apply” to Bensman’s request. Id.
Plaintiff subsequently filed an additional appeal challenging NPS’s Determination on
September 7, 2010. App. to Pl. Mot. at 18-21 (“Second Appeal”). Bensman’s Second Appeal
first challenged NPS’s substantive arguments for denying his fee-waiver request; it then
reasserted his position that “FOIA prohibits [charging him fees] due to [NPS’s] failure to comply
with deadlines.” Id. at 19. Plaintiff also argued that NPS failed to rule on his First Appeal
within the statutory time limit, thus constituting an additional unmet deadline for which search
fees could not be assessed under FOIA. Id. The Second Appeal further expressed Bensman’s
confusion regarding NPS’s denial of his First Appeal because it “appear[ed] to be saying this 20
working day period began [the day NPS] denied [his] request.” Id. at 20. Plaintiff again
referenced 5 U.S.C. § 552(a)(6)(A)(ii) in support of his position that NPS exceeded FOIA’s time
limits in reaching determinations on both his Request and First Appeal. Id. Bensman asked NPS
to “please clarify” whether his interpretation of the First Appeal Denial was correct, in case he
was “missing some important point.” Id.
NPS denied Plaintiff’s Second Appeal on October 12, 2010. App. to Pl. Mot. at 22-30
(“Second Appeal Denial”). While the Second Appeal Denial may have discussed the denial of
Plaintiff’s request for a fee waiver, certain issues regarding the duration and cost of search time,
Bensman’s allegation that FOIA prohibits charging him fees, and an issue concerning NPS’s
obligation to provide Plaintiff with information regarding judicial review, the Denial failed to
6
address Bensman’s central argument regarding time limits, noting cursorily that “[t]he
Department rendered its decision on that appeal on August 17, 2010, and finds no basis to revisit
that matter.” Id. at 29. The Second Appeal Denial concluded by advising Bensman of his “right
to seek judicial review of th[e] decision . . . .” Id. at 30.
Plaintiff subsequently brought this lawsuit against NPS under 5 U.S.C. §§ 552(a)(4)(B).
Both parties now move for summary judgment. The suit concerns only the issue of whether
Defendant properly handled Plaintiff’s fee-waiver request; it does not address the documents
themselves. As the Court finds that NPS exceeded FOIA’s 20-working-day time limit with
respect to both Plaintiff’s Request and First Appeal, Defendant cannot assess fees for its search.
This determination renders moot the question of whether Plaintiff adequately justified his public-
interest contribution under FOIA.
II. Legal Standard
Summary judgment is normally granted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986);
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). The mere existence of a factual
dispute, by itself, is insufficient to bar summary judgment. Liberty Lobby, 477 U.S. at 248. To
be material, the factual assertion must be capable of affecting the substantive outcome of the
litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a
reasonable trier of fact could find for the non-moving party. Laningham v. U.S. Navy, 813 F.2d
1236, 1241 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251-52 (holding that the court must
determine “whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law”).
7
Although styled Motions for Summary Judgment, the pleadings in this case more
accurately seek the Court’s review of administrative decisions. The standard set forth in Rule
56(c), therefore, does not apply because of the limited role of a court in reviewing the
administrative record. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006)
(citing National Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, at *7
(D.D.C. 2005); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995), amended on
other grounds, 967 F. Supp. 6 (D.D.C. 1997)). “[T]he function of the district court is to
determine whether or not as a matter of law the evidence in the administrative record permitted
the agency to make the decision it did.” Id. at 90 (internal citations omitted).
Thus, “[i]n any [FOIA] action by a requester regarding the waiver of fees . . . the court
shall determine the matter de novo” and review “shall be limited to the record before the
agency.” 5 U.S.C. § 552(a)(4)(A)(vii); see also Schoenman v. FBI, 604 F. Supp. 2d 174, 188
(D.D.C. 2009) (“In reviewing an agency’s determination on a fee waiver issue, a district court
must apply a de novo standard of review and look only to the administrative record that was
before the agency at the time of its decision.”); Judicial Watch, Inc. v. Gen. Servs. Admin., 2000
WL 35538030, at *4 (D.D.C. 2000) (“[T]he court may not consider new reasons by the agency
that were not advanced in [the record].”).
III. Analysis
Plaintiff maintains that NPS improperly denied his request for a public-interest fee
waiver. Even if the denial was not improper, he argues, NPS must nevertheless disclose the
requested records at no charge because it failed to satisfy FOIA’s 20-working-day time limit for
making a determination on his request. Plaintiff specifically relies on two FOIA provisions – 5
U.S.C. §§ 552(a)(4)(A)(viii) and 552(a)(6)(A) – to support the contention that he is entitled to
8
the records free of cost. Defendant responds that its existing regulations govern the interpretation
of the statute; as Plaintiff’s position conflicts with such regulations, he cannot prevail. The Court
will first discuss the context of the FOIA provisions and regulations at issue before considering
the parties’ particular arguments.
A. Legislative History – The OPEN Government Act of 2007
Congress passed the OPEN Government Act of 2007 (“2007 Amendments”) to amend
certain sections of FOIA, including the provisions on which Plaintiff relies here. See Pub. L.
110-175, 121 Stat. 2524 (2007) (codified at 5 U.S.C. §§ 552(a)(4)(A) and 552(a)(6)(A)). The
legislative history of the 2007 Amendments evinces a strong desire by Congress to curb
agencies’ delays in processing FOIA requests. See S. Rep. No. 110-59, 110th Cong., 1st Sess.
(Apr. 30, 2007). The Senate report explains that the 2007 Amendments “address[] the growing
backlog of FOIA requests and restore[] meaningful deadlines for agency action, by ensuring that
the 20-day statutory clock runs immediately upon an agency’s receipt of a request and by
imposing consequences on federal agencies for missing the deadline.” Id. at 3 (emphasis added).
Indeed, “the major delays encountered by FOIA requestors” were “[c]hief among the problems
with FOIA” that Congress sought to remedy by passing the 2007 Amendments. Id. (noting also
that “the oldest outstanding FOIA requests date back to 1989 – before the collapse of the Soviet
Union”).
B. Statutory Framework
To obtain information under FOIA, one must first submit a formal request to the agency
from which the information is sought. See 5 U.S.C. § 552(a)(3)(A) (“[E]ach agency, upon any
request for records which (i) reasonably describes such records and (ii) is made in accordance
with published rules stating the time, place, fees (if any), and procedures to be followed, shall
9
make the records promptly available to any person.”). After an individual submits a request, an
agency must “determine within 20 [working] days . . . after the receipt of any such request
whether to comply with such request.” § 552(a)(6)(A)(i). The agency must also “immediately
notify the person making such request of such determination and the reasons therefor, and of the
right of such person to appeal to the head of the agency any adverse determination.” Id.
(emphasis added).
This 20-working-day time limit also applies to any appeal. § 552(a)(6)(A)(ii) (“Each
agency . . . shall make a determination with respect to any appeal within twenty [working] days .
. . after the receipt of such appeal.”). As part of the effort to ensure that agencies no longer
skirted the statutory time limit, the 2007 Amendments clarify that “[t]he 20-day period under
clause (i) shall commence on the date on which the request is first received by the appropriate
component of the agency, but in any event not later than ten days after the request is first
received by any component of the agency.” Id. (emphasis added).
The 2007 Amendments’ addition to § 552(a)(6)(A) further proclaims that “[t]he 20-day
period shall not be tolled by the agency except” in two narrow scenarios: “[T]he agency may
make one request to the requester for information and toll the 20-day period while it is awaiting
such information that it has reasonably requested from the requester,” § 552(a)(6)(A)(ii)(I), and
agencies may also toll the statutory time limit “if necessary to clarify with the requester issues
regarding fee assessment.” § 552(a)(6)(A)(ii)(II). Congress was likewise direct in its
pronouncement that, “[i]n either case, the agency’s receipt of the requester’s response to the
agency’s request for information or clarification ends the tolling period.” Id. (emphasis added).
An additional effect of the 2007 Amendments was to impose consequences on agencies
that do not act in good faith or otherwise fail to comport with FOIA’s requirements. See S. Rep.
10
No. 110-59. To underscore Congress’s belief in the importance of the statutory time limit, the
2007 Amendments declare that “[a]n agency shall not assess search fees . . . if the agency fails to
comply with any time limit” of FOIA. § 552(a)(4)(A)(viii) (emphasis added).
C. DOI’s FOIA Regulations and Guidance
The most recent revisions to the Department of Interior’s FOIA regulations were issued
on October 21, 2002. See Revision of the Freedom of Information Act Regulations and
Implementation of the Electronic Freedom of Information Act Amendments of 1996, 67 Fed.
Reg. 64,527 (Oct. 21, 2002) (to be codified at 43 C.F.R. pt. 2). DOI’s regulations, as relevant to
this litigation, have thus not been altered since five years before Congress passed the 2007
Amendments substantially revamping several sections of FOIA. The applicable regulations,
moreover, as well as DOI’s interpretive guidance and memoranda, are themselves internally
inconsistent. Some provisions imply, for example, no time limit to resolve fee issues, but require
their full resolution before the 20-working-day time limit begins to run against a bureau
processing a FOIA request; other provisions, conversely, require bureaus to make determinations
on fee-waiver requests within the statutory time period.
For instance, at the hearing on the Motions, NPS took the position that there is no time
limit within which it must decide fee waivers. Indeed, certain regulations imply as much: “The
bureau will not begin processing [a] request until the fee issues are resolved.” 43 C.F.R. §
2.8(b)(2). This approach, however, flies in the face of other DOI regulations on fee-waiver
requests, such as § 2.19(a):
The bureau will rely on the fee waiver justification you have submitted
in your request letter. If you do not submit sufficient justification, your
fee waiver request will be denied. The bureau may, at its discretion,
communicate with you to request additional information if necessary.
However the bureau must make a determination on the fee waiver
11
request within the statutory time limit, even if the agency has not
received such additional information.
(Emphasis added).
Defendant’s guidance and policy directives are similarly inconsistent. DOI publishes a
FOIA Handbook, for example, that “establishes Departmentwide policies and procedures for
administering and implementing FOIA.” U.S. DEPARTMENT OF THE INTERIOR, DEPARTMENT
MANUAL: FREEDOM OF INFORMATION ACT HANDBOOK, 383 DM 15 (effective Apr. 24, 2004)
(available at http://www.doi.gov/foia/foiahandbook.html (last updated on Jan. 22, 2010))
(“Handbook”). In certain places, the Handbook expounds upon DOI’s supposed policy that it
“will respond to an initial FOIA request no later than 20 workdays after the appropriate bureau
FOIA Contact receives the request and it is perfected (i.e., all issues regarding fees and the scope
of the request are resolved).” Id. at 3.2(A). A “perfected request” is more thoroughly defined in
the Handbook’s first chapter as “a FOIA request for records which adequately describes the
records sought, which has been received by the FOIA office of the agency or agency component
in possession of the records, and for which there is no remaining question about the payment of
applicable fees.” Id. at 1.5(S). “The 20-workday time limit begins to run the workday after a
[perfected] request . . . is received by the FOIA Contact at the bureau office that has the
requested records.” Id. at 3.2(A)(1).
On the other hand, the Handbook states elsewhere that the time limit does apply to fee
waiver requests:
The start of the [20-working-day] time limit may be delayed [if either]
(a) [t]he requester has not stated a willingness to pay fees as high as
those anticipated[,] [or] (b) [t]he requester has sought a fee waiver and
has not indicated a willingness to pay regardless of whether a fee waiver
is granted. The delay applies only to the issue of providing a substantive
response to the request, as the bureau must decide whether to grant the
fee waiver within the statutory time limit.
12
Id. at 3.2(A)(3) (emphasis added). Indeed, “[t]he office handling the request . . . is responsible
for . . . [m]aking determinations on fee waiver . . . requests within the statutory time limits.” Id.
at 3.18(B). Once again, a “bureau will not start processing a request until [all] fee issue[s have]
been resolved,” but “the bureau must make a determination on [a] fee waiver request within 20
workdays . . . .” Id. at 4.11.
As a result, even if DOI’s guidelines and regulations were not at odds with the 2007
Amendments, the Court would have difficulty determining which to follow and which to ignore.
D. NPS’s Administrative Action
Despite the existence of the 2007 Amendments and the inherent contradictions in its own
regulations, Defendant nonetheless argues that it has correctly handled Plaintiff’s FOIA request
here. Defendant first asserts that, under DOI’s 2002 regulations, Plaintiff never submitted a
“perfected” FOIA request, and thus the statutory time limit never started to run. See Def. Mot. at
10. Even if the time limit did start, Defendant also argues, its December 4 Letter actually
constituted a rejection of Plaintiff’s fee-waiver request. Id. It thus acted in a timely fashion. Or,
in the alternative, Defendant claims that the December 4 Letter tolled the time limit indefinitely
until any lingering fee issues were sufficiently resolved. See id. at 11 (“At that point, the twenty
(20) working day time was tolled until the fee waiver issue was resolved.”); see also Def. Reply
at 3 (“Plaintiff[’s] failure to provide meaningful facts to support his claim for a fee waiver is the
only reason for tolling the time.”) (emphasis in original). Finally, at the hearing, Defendant took
the position that “exceptional circumstances” existed to justify the delay in its determination.
None of these arguments, singly or in concert, holds up. First, the 2002 regulations do
not trump the 2007 Amendments. Where Defendant relies on a “perfecting” rationale or a tolling
theory that is contrary to the Amendments, it cannot prevail. Second, even if the December 4
13
Letter marks a timely rejection of Plaintiff’s initial request – which it does not – Defendant offers
no explanation that it timely handled Plaintiff’s appeal. Finally, the exceptional-circumstances
position is supported by neither the statute nor the record of this case.
1. Chevron Analysis
The first question, therefore, is how to interpret the 2002 regulations in light of the 2007
Amendments. (To even embark on this analysis, the Court must cherry-pick regulations
Defendant likes and ignore the aforementioned inconsistencies.) “[F]or regulations to be valid
they must be consistent with the statute under which they were promulgated.” Ashton v. Pierce,
716 F.2d 56, 60 (D.C. Cir. 1983) (internal quotation marks omitted). An agency’s regulations
“must be found to be consistent with the [C]ongressional purposes underlying the authorizing
statute.” Planned Parenthood Federation of America, Inc. v. Heckler, 712 F.2d 650, 655 (D.C.
Cir. 1983); see also Morton v. Ruiz, 415 U.S. 199, 237 (1974); Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367, 381 (1969). “[R]egulations can be sustained only if th[e] ‘reviewing court
[is] reasonably able to conclude that the grant of authority contemplates the regulations [at]
issue.’” Heckler, 712 F.2d at 655 (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 308 (1979)).
It is thus “[a]n essential function of the reviewing court . . . to guard against bureaucratic
excesses by ensuring that administrative agencies remain within the bounds of their delegated
authority.” Id.
In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), the Supreme Court outlined the process courts must follow when reviewing an agency’s
interpretation of a statute. See also Village of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d
650 (D.C. Cir. 2011) (applying Chevron). Challenges to agency interpretations are typically
seen in litigation under the Administrative Procedure Act, as the APA expressly provides for
14
such judicial review. See 5 U.S.C. § 706. The Chevron analysis is equally applicable to FOIA
cases, however, because “the relief available under FOIA is of the ‘same genre’ as the relief
available under the APA.” Feinman v. F.B.I., 713 F. Supp. 2d 70, 78 (D.D.C. 2010) (quoting
Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009)).
The Chevron standard employs a two-tiered analysis. Under the first step (“Chevron Step
One”), courts must “look[] to whether Congress has ‘directly addressed the precise question at
issue[,]’ since a court must ensure that an agency gives effect to ‘the unambiguously expressed
intent of Congress.’” Career College Ass’n v. Duncan, No. 11-138, 2011 WL 2690406, at *5
(D.D.C. July 12, 2011) (quoting Chevron, 467 U.S. at 842–43).
If Congress did not unambiguously express its intent, courts will proceed to the second
phase of the Chevron test (“Chevron Step Two”). Id. Under Chevron Step Two, a court “must
determine the level of deference due to the agency's interpretation of the laws it administers.” Id.
at *6; see also Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 754 (D.C. Cir. 2007).
Where an agency promulgates its interpretation through notice-and-comment rulemaking, courts
typically give the agency’s interpretation “Chevron deference.” Kempthorne, 477 F.3d at 754;
see also United States v. Mead Corp., 533 U.S. 218, 230-31 (2001). In other words, a court
“determine[s] whether [an agency’s] interpretation is ‘permissible’ or ‘reasonable,’ . . . giving
‘controlling weight’ to the agency’s interpretation unless it is ‘arbitrary, capricious, or manifestly
contrary to the statute.’” Kempthorne, 477 F.3d at 754 (quoting Chevron, 467 U.S. at 843-44)
(internal citation omitted).
Under Chevron Step One, courts “employ[] traditional tools of statutory construction,”
467 U.S. at 843 n.9, “to determine whether Congress has ‘unambiguously foreclosed the
agency’s statutory interpretation.’” Village of Barrington, 636 F.3d at 659 (quoting Catawba
15
County, N.C. v. EPA, 571 F.3d 20, 35 (D.C. Cir. 2009)). “Congress may have done so . . . either
by prescribing a precise course of conduct other than the one chosen by the agency, or by
granting the agency a range of interpretive discretion that the agency has clearly exceeded.” Id.
At this stage, courts afford an agency’s interpretation no special deference: “[I]f the agency has
either violated Congress’s precise instructions or exceeded the statute’s clear boundaries then, as
Chevron puts it, ‘that is the end of the matter’ – the agency’s interpretation is unlawful” Id. at
660 (quoting Chevron, 467 U.S. at 842).
Traditional tools of statutory interpretation include analysis of the statutory text,
legislative history, and structure. Alliance for Natural Health U.S. v. Sebelius, No. 09-1523,
2011 WL 1296888, at *11 (D.D.C. Apr. 6, 2011). “[T]he meaning of statutory language, plain or
not, depends on context.” Holloway v. United States, 526 U.S. 1, 7 (1999) (citation omitted). It
is thus “‘a fundamental canon of statutory construction that the words of a statute must be read . .
. with a view to their place in the overall statutory scheme.’” ArQule, Inc. v. Kappos, No. 10-
1904, 2011 WL 2469826, at *5 (D.D.C. June 22, 2011) (quoting Davis v. Mich. Dep’t of
Treasury, 489 U.S. 803, 809 (1989)). An equally ensconced canon of statutory construction
requires courts “‘to construe related statutory provisions in similar fashion.’” Id. at *7 (quoting
United States v. Delgado-Garcia, 374 F.3d 1337, 1347 (D.C. Cir. 2004)). Additionally, a
“‘fundamental canon of statutory construction is that, unless otherwise defined, words will be
interpreted as taking their ordinary, contemporary, common meaning.’” Id. at *5 (quoting Perrin
v. United States, 444 U.S. 37, 42 (1979)).
The Court in this case need not look beyond Step One. This is because the language of
the FOIA statute and the 2007 Amendments is unambiguous. A determination must be made
within 20 working days; to the extent tolling is possible, under the 2007 Amendments a
16
requester’s response to an agency’s request for information or clarification “ends the tolling
period.” 5 U.S.C. § 552(a)(6)(A)(ii)(II) (emphasis added). DOI’s assertion that its regulations
permit indefinite tolling must yield to the unequivocal expression of Congress’s intent. Where
Congress has addressed the precise question at issue, Defendant’s regulations cannot contradict
it. In this case, Defendant asked on December 4, 2009, for further information regarding
Plaintiff’s fee-waiver request. Plaintiff provided that three days later. No determination was
then made for over eight more months. Because this plainly violates the 2007 Amendments’
proscriptions, Defendant cannot assess fees here.
If Defendant is claiming that no tolling is necessary because the clock does not even
begin to run until “perfection,” see Handbook at 1.5(S), the legislative history of the 2007
Amendments undermines such an argument. As noted, Congress was motivated in passing the
2007 Amendments to curtail lengthy delays by agencies processing FOIA requests. Defendant’s
position is not only contrary to Congressional intent, but it also makes surplusage of the 2007
Amendments’ entire 143-word addition to 5 U.S.C. § 552(a)(6)(A)(ii). Because Defendant’s
proffered interpretation would require all issues regarding fee assessment to be resolved prior to
even starting the 20-working-day time limit, it follows that there would never be a need to clarify
fee issues once the time limit did commence; this necessarily must have already taken place.
Such a contradiction with the statute cannot pass muster.
Such a position is even more curious because Defendant’s own regulations and internal
memoranda explicitly acknowledge, in at least four instances, that the statutory time limit does in
fact apply to fee-waiver requests. See 43 C.F.R. 2.19(a) (“[T]he bureau must make a
determination on [a] fee waiver request within the statutory time limit.”); Handbook at
3.2(A)(3)(b) (“[A] bureau must decide whether to grant [a] fee waiver request within the
17
statutory time limit.”); id. at 3.18(B) (requiring “determinations on fee waiver . . . requests” to be
made “within the statutory time limits.”); id. at 4.11 (“[I]f the requester has asked for a fee
waiver, the bureau must make a determination on the fee waiver request within 20 workdays”).
In passing the 2007 Amendments, Congress did more than “address[] the precise question at
issue” here, Chevron, 467 U.S. at 843; indeed, this “precise question” served as an impetus for
the Amendments’ enactment.
2. Other Arguments
Defendant next maintains that, even if the statutory time limit did apply to Plaintiff’s
November 17 Request, Defendant timely denied the Request in its December 4 Letter. This
argument appears for the first time in Defendant’s pleadings and was never raised in its
correspondence with Plaintiff. The Court may not entertain litigation positions newly adopted by
Defendant after Plaintiff filed suit; even if it could, the Letter does not qualify as a denial under
Defendant’s own regulations.
Where DOI denies requests for fee waivers, its regulations state that it must notify
requesters, in writing, of the following:
(1) The basis for the denial, including a full explanation of why your fee
waiver request did not meet DOI’s fee waiver criteria[;]
(2) The name(s) and title(s) and position(s) of each person responsible
for the denial;
(3) The name and title of the Office of the Solicitor attorney consulted;
and
(4) A statement that the denial may be appealed within 30 workdays
after the date of the denial letter to the FOIA Appeals Officer[.]
§ 2.19(c). The December 4 Letter contains, at best, information sufficient to satisfy one of these
four criteria.
18
The language within the four corners of the Letter itself moreover belies Defendant’s
position. Although the Letter does state that the information Plaintiff provided in his Request “is
not sufficient justification to qualify for a fee waiver,” it asks Plaintiff to “assist [NPS] in making
a decision on [his] request for a fee waiver.” Id. at 5. It additionally informs Plaintiff that NPS
must hear from him “within 20 work days . . . [or NPS] will deny [Plaintiff’s] fee waiver request
. . . .” Id. at 6 (emphasis added). Such language is exclusively indicative of an event that has not
yet occurred; it discusses the possibility of a future denial and what can be done to avoid it. The
Letter is thus obviously not a denial itself.
Even if the December 4 Letter somehow did act as a denial, Defendant still could not
prevail. This is because, as it candidly conceded at the hearing, the 20-working-day time limit
also applies to the agency’s internal appeals process. It follows, at an absolute minimum, that
Defendant exceeded its time limit with respect to Plaintiff’s January 10, 2010, appeal, on which
NPS did not reach a determination until seven months later, on August 17, 2010.
Finally, Defendant argued at the hearing that exceptional circumstances existed
surrounding Plaintiff’s fee-waiver request, thus justifying extending the time limit for notifying
him of its determination. First, this is an argument Defendant failed to make at the
administrative level before Plaintiff brought suit, thus barring the Court’s consideration of it
now. Second, even at the hearing, Defendant never articulated what circumstances were
“exceptional” in this seemingly routine case. Finally, such an argument fails because it conflicts
with 43 C.F.R. § 2.13(d), which states that a “bureau may not take an extension of time to decide
whether to grant a request for a fee waiver.”
19
IV. Conclusion
As Defendant’s position is incompatible with both FOIA’s legislative history and its clear
statutory language, “the [C]ourt, as well as [Defendant], must give effect to the unambiguously
expressed intent of Congress.” Chevron, 467 U.S. at 842-43. The Court’s decision, however,
should not be read to indicate any position on the documents themselves – e.g., which should be
released or in what form. The only question presented was whether NPS could assess fees in
these circumstances. A separate Order consistent with this Opinion will be issued this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: August 10, 2011
20
| {
"pile_set_name": "FreeLaw"
} |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0716n.06
Filed: October 4, 2007
No. 06-4057
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MASOUD AHMEDMEHRABI, )
SOUSAN MEHRABI, )
KASHAYAR AHMEDMEHRABI, )
SHADI MEHRABI )
)
Petitioners, )
)
v. ) ON PETITION FOR REVIEW OF AN
) ORDER OF T HE BO AR D O F
ALBERTO GONZALES ) IMMIGRATION APPEALS
)
Respondent. )
)
)
)
)
)
)
Before: GUY, ROGERS, and MCKEAGUE, Circuit judges.
ROGERS, Circuit Judge. Mr. Masoud Ahmedmehrabi and his family appeal the decision
of the Board of Immigration Appeals denying their requested relief and ordering their removal to
Iran. Mr. Ahmedmehrabi is an Iranian national who sought asylum, withholding of removal, and
relief under the Convention Against Torture for both himself and his family. After a hearing, the
Immigration Judge denied all requested relief and ordered that Mr. Ahmedmehrabi and his family
be removed to Iran. He appealed the IJ’s decision. The Board of Immigration Appeals dismissed
his appeal in a per curiam opinion. We deny Ahmedmehrabi’s petition for review because the IJ’s
determinations that Mr. Ahmedmehrabi and his family do not qualify for asylum, withholding of
removal, or relief under CAT are supported by substantial evidence.
I. Background
Mr. Ahmedmehrabi lived and practiced medicine in Tehran, Iran from 1991 until October
2000, when he came to the United States on a B-1 visa. His wife and children followed in October
2001 on non-immigrant dependent visas (H-4). It is undisputed that he and his family overstayed
their visas and are subject to removal. They applied for asylum, withholding of removal, and relief
under the Convention Against Torture in December 2002, and in January 2003 the Immigration and
Naturalization Service charged them with being subject to removal.
To support his claims for relief, Mr. Ahmedmehrabi claims that in Iran he was advised not
to talk politics at work after he expressed the opinion that some individuals in Iran had been treated
unfairly. His wife, Sousan Mehrabi, claims to have had a similar experience in 1998, when she was
allegedly warned by members of an Islamic group not to speak too much while she was at the
university. She believes that these warnings were prompted by the fact that she spoke too much
about politics. Mr. Ahmedmehrabi, while working at the hospital, also treated patients who he
believes had been injured by the Iranian government.
The focal point of his arguments, however, is his claimed involvement in hiding his nephew
from the Iranian government. Mr. Ahmedmehrabi and his wife testified that in the summer of 1999,
Mr. Ahmedmehrabi’s nephew, Farshad Mehrabi, participated in a pro-democracy demonstration in
-2-
Iran. Following the July demonstration, Mr. Ahmedmehrabi claims that he allowed his nephew to
stay at his house for a period of time.1 In November 1999, Farshad received a subpoena to appear
before Iran’s Revolutionary Court; he left for the United States in November 2000, where he was
granted withholding of removal in August 2002.2 Mr. Ahmedmehrabi claims that he, too, has been
issued a subpoena by the Revolutionary Court. That subpoena was allegedly delivered to his parents
in Tehran in November 2002. He claims that his sister forwarded the subpoena from his parents to
his immigration attorney in the United States. The Islamic Revolutionary Courts were established
in 1979 to try offenses “viewed as potentially threatening to the Islamic Republic, including threats
to internal or external security, narcotics and economic crimes, and official corruption,” and “are
notorious for their disregard of international standards of fairness.” U.S. Dep’t of State Country
Report on Human Rights Practices 2006, available at http://www.state.gov/p/nea/ci/82004.htm. Mr.
Ahmedmehrabi believes that he was subpoenaed because he provided shelter to his nephew in 1999,
and he testified that he is afraid to return to Iran because those who answer Revolutionary Court
subpoenas are frequently arrested, beaten, killed, or disappear. The State Department’s 2006 country
report on Iran details Iran’s worsening human rights record, which includes “unjust executions after
reportedly unfair trials; disappearances; torture and severe officially sanctioned punishments such
1
The Government notes inconsistencies in Mr. Ahmedmehrabi’s testimony regarding the
precise length of time. Resp’t Br. 7. Mr. Ahmedmehrabi initially told an asylum officer that Farshad
had stayed for “several days,” but later stated that Farshad had stayed for two months. JA 94. When
Mr. Ahmedmehrabi got to Immigration Court, he testified that he did not remember the exact
duration and characterized it as “a little bit more than a month.” JA 94-95.
2
Farshad later returned to Iran because of a medical condition, and Mr. Ahmedmehrabi
claims that Farshad is in hiding. JA 92-93, 97-99.
-3-
as death by stoning; flogging; . . . arbitrary arrest and detention; lack of judicial independence; lack
of fair public trials,” among other things. Id.
The Immigration Judge was not persuaded by Mr. Ahmedmehrabi’s evidence. He concluded
that the testimony and evidence fell short of that required to support a grant of asylum, and that
therefore the evidence also necessarily fell short of that required under the higher standards for
withholding of removal or relief under the CAT. The IJ determined that “even if the testimony of
the adult respondents were credible or true,” the circumstances relied on by Mr. Ahmedmehrabi and
his family were “too remote in time and substance” to support a conclusion that they had a well-
founded fear of persecution, which is a prerequisite to a grant of asylum. JA 27. The IJ noted that
Mr. Ahmedmehrabi was never detained, imprisoned, or otherwise mistreated while in Iran and that
the worst maltreatment to which he and his wife testified was being advised to stop talking politics
by their co-workers. The IJ concluded that the significance of these minor pre-1999 incidents was
considerably undermined by the fact that Mr. Ahmedmehrabi and his wife failed to file applications
for asylum when they came to the US in 2000, and also by the wife’s testimony that she never feared
returning to Iran until her husband allegedly received the subpoena from the Revolutionary Court
in 2002. Additionally, the IJ found it significant that Mr. Ahmedmehrabi was employed at a
government hospital and kept his position until he left in 2000, and that both petitioner and his
family were allowed to leave Iran without any trouble.
The IJ concluded, in particular, that the alleged subpoena ordering Mr. Ahmedmehrabi to
appear before the Revolutionary Court carried no evidentiary weight because it was of questionable
significance and/or authenticity. The IJ deemed the document to be of questionable authenticity
-4-
because it changed many hands before it reached Mr. Ahmedmehrabi, and Mr. Ahmedmehrabi was
“unable to provide proof of the alleged transfer[s]” and “offered no testimony to establish a credible
chain of custody regarding the document relating to who, how or when his parents allegedly received
the document”; because the document was created when Mr. Ahmedmehrabi was in the United
States; and because Mr. Ahmedmehrabi failed to prove corroborative affidavits regarding the
subpoena, despite still being in contact with his parents. JA 28. The IJ also questioned the
document’s authenticity – and, if assumed to be authentic, its significance and relation to the 1999
demonstration – because Mr. Ahmedmehrabi remained employed at a government hospital following
the 1999 incident; because he and his family were allowed to depart Iran with no difficulty; and
because his testimony was “devoid of what [his] political opinion was and how he overtly expressed
it to the Iranian Government. [Mr. Ahmedmehrabi’s] claim that he was political or expressed
adverse political opinions was nebulous and without any specificity.” JA 28. Finally, the IJ found
Mr. Ahmedmehrabi’s testimony regarding his participation in the 1999 demonstrations to be
implausible and unbelievable. This finding contributed to the IJ’s doubt about the subpoena’s
authenticity and significance because Mr. Ahmedmehrabi alleges that the subject of the subpoena
is his participation in the 1999 demonstrations by housing his nephew.
The Immigration Judge denied the petitioner’s requests for asylum, withholding of removal,
and relief under CAT, and ordered that he and his family be removed to Iran. Mr. Ahmedmehrabi
appealed the IJ’s decision to the Board of Immigration Appeals, which agreed with the IJ’s
conclusions and dismissed the appeal in a per curiam opinion. Mr. Ahmedmehrabi now seeks review
in this court, arguing that the Immigration Judge and the Board of Immigration Appeals erred in not
-5-
granting him and his family asylum, withholding of removal, or relief under CAT; that the IJ’s
failure to accord the subpoena evidentiary weight violated Petitioners’ due process rights; and that
he and his family should have been granted humanitarian asylum.
II. Analysis
A. Asylum, Withholding of Removal, and relief under CAT
The IJ’s determinations that Mr. Ahmedmehrabi and his family do not qualify for asylum,
withholding of removal, or relief under CAT are all supported by substantial evidence. As recounted
in the facts above, the IJ found Mr. Ahmedmehrabi’s and his wife’s account of their well-founded
fear of persecution to be undermined by the facts that: they were never mistreated while in Iran; they
were allowed to leave Iran without trouble; the pre-1999 incidents were minor and remote in time
and substance; Mr. Ahmedmehrabi and his wife testified that they had no fear of returning to Iran
prior to 2002; Mr. Ahmedmehrabi was never fired from his position at a government hospital; and
Mr. Ahmedmehrabi and his wife never made clear exactly what their political opinions are, or how
they expressed them to the government. For all of these reasons, the IJ found their story generally
incredible and insufficient to ground a reasonable fear of persecution. In addition, the IJ was
unpersuaded by Mr. Ahmedmehrabi’s story regarding his involvement in the 1999 demonstrations
by sheltering his nephew. Again, he found the story to be undermined by Mr. Ahmedmehrabi’s
apparent lack of political enthusiasm and the facts that he retained his government job and had no
trouble with the Iranian government following 1999.
-6-
To qualify for asylum, Mr. Ahmedmehrabi and his family bore the burden of demonstrating
that they are unable or unwilling to return to their home country “because of persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Absent past persecution, they must
have a subjective fear of returning that is objectively reasonable. Pilica v. Ashcroft, 388 F.3d 941,
950 (6th Cir. 2004). Although some of the IJ’s reasons for discounting the Ahmedmehrabis’ claims
and testimony are more persuasive than others, the IJ’s determinations are supported by “reasonable,
substantial, and probative evidence on the record considered as a whole,” Yu v. Ashcroft, 364 F.3d
700, 702 (6th Cir. 2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)), and we cannot
say that “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4); see also Singh v. Ashcroft, 398 F.3d 396, 400-01 (6th Cir. 2005); Sarr v. Gonzales, 485
F.3d 354, 362 (6th Cir. 2007). Because the record provides substantial evidence to support the
conclusion that Mr. Ahmedmehrabi and his family are ineligible for asylum, “the record necessarily
supports the finding that [they do] not meet the more stringent standard of a clear probability of
persecution required for withholding of [removal]” under 8 U.S.C. § 1231(b)(3)(A). Berri v.
Gonzales, 468 F.3d 390, 397-98 (6th Cir. 2006) (citing Allabani v. Gonzales, 402 F.3d 668, 675 (6th
Cir. 2005)); see also Sarr, 485 F.3d at 362. Likewise, having failed to demonstrate a reasonable fear
of persecution on any grounds, let alone that torture is more likely than not, substantial evidence also
supports the denial of relief under the CAT. See Berri, 468 F.3d at 397-98; 8 C.F.R. § 208.16(c)(2).
Moreover, it was not improper for the IJ to give the alleged subpoena from Iran’s
Revolutionary Court no evidentiary weight. The IJ’s independent and preexisting doubt about the
-7-
family’s credibility, combined with doubts about the subpoena’s authenticity, appears to have led
him to conclude that the subpoena deserved no evidentiary weight, either because it was not
authentic or, if authentic, was insignificant or unrelated to Mr. Ahmedmehrabi’s story about the 1999
demonstrations. Indeed, there appears to be no precedent requiring immigration judges to assign
every piece of documentary evidence some persuasive value.
Mr. Ahmedmehrabi cites numerous cases for the proposition that failure to give the subpoena
evidentiary weight was error. An immediate problem is that his cited cases are not binding authority
for this court. Additionally, the cases are factually distinguishable from the instant case and do not
compel the conclusion that the IJ’s refusal to give his subpoena evidentiary weight was error. In Sall
v. Gonzales, the immigration judge, because of a geographical error, had found the document at issue
to have been forged. 437 F.3d 229, 235-36 (2d Cir. 2006). The Second Circuit concluded that it
“[could not] know what the IJ would have found had she believed [Petitioner’s document] to be
legitimate . . . .” Id. at 236. Sall is distinguishable from the instant case for two reasons. First, the
IJ below did not dismiss Mr. Ahmedmehrabi’s subpoena out of hand due to an apparent error.
Rather, the IJ considered it in light of its evidentiary deficiencies, such as lack of a proper chain of
custody and authentication, as well as in light of Mr. Ahmedmehrabi’s and his wife’s other
testimony. Only then did the IJ conclude that the subpoena did not merit evidentiary weight.
Second, the court in Sall was unsure whether the IJ would change his decision on remand if the
document at issue were legitimate. In contrast, the IJ in the instant case explicitly stated that Mr.
Ahmedmehrabi and his family failed to carry their burden to qualify for asylum, withholding of
removal, or relief under CAT “even if the testimony of the adult respondents were credible or true.”
-8-
JA 27. It is clear from the IJ’s opinion that he was not persuaded by their story – valid subpoena or
not.
Mr. Ahmedmehrabi also cites Gjerazi v. Gonzales for the proposition that the IJ was required
to accord his subpoena evidentiary weight. In Gjerazi, however, the IJ not only doubted the
authenticity of the documents at issue, but: (1) had borderline irrational reasons for doubting their
authenticity; (2) improperly required corroborating evidence despite the fact that he found applicant’s
testimony otherwise credible; and then (3) used his doubt about the documents’ authenticity against
the applicant as a basis for finding him incredible and denying his application. 435 F.3d 800, 809-11
(7th Cir. 2006). In contrast, the IJ in Mr. Ahmedmehrabi’s case had more reasonable grounds for
doubting the subpoena’s authenticity, including the lack of a proper chain of custody and his doubts
about the significance of Mr. Ahmedmehrabi’s role in the events supposedly underlying the
subpoena. More importantly, the IJ below did not find Mr. Ahmedmehrabi’s and his wife’s account
to be otherwise credible and then use irrational doubts about the subpoena against them as a reason
to deny their application. The IJ below found their story unpersuasive regardless of the authenticity
of the subpoena. Further, there is no indication in his opinion that the IJ used the subpoena to
discredit either Mr. Ahmedmehrabi or his wife; rather, the IJ simply concluded that it did nothing
to bolster their claims.
Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2003), also does not support Mr.
Ahmedmehrabi’s contention. In Georgis, the IJ improperly required corroborating evidence (though
none is required by statute), and then excluded the document in question because it was not
submitted in advance of the hearing date. Id. at 968. The IJ then proceeded to base his denial of
-9-
petitioner’s asylum application entirely on the lack of corroborating evidence. Id. The Seventh
Circuit quoted Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001), in concluding that it was error for
the IJ to exclude the document, because the IJ expressly stated that it was for lack of corroborating
evidence that he found Georgis not credible and denied her asylum application. Georgis, 328 F.3d
at 969. These circumstances are not present in the instant case. The IJ found Mr. Ahmedmehrabi’s
story incredible regardless of the subpoena, and denied his application on that basis. Moreover, the
IJ did not exclude Mr. Ahmedmehrabi’s subpoena; he merely found that it did nothing to aid the
credibility of Mr. Ahmedmehrabi’s story.
In Khan v. INS, the IJ had committed the same error of excluding documents and then basing
his denial of the petitioner’s asylum application on a lack of corroborating evidence. 237 F.3d at
1143-44. In addition, the IJ in Khan excluded the documents because they had not been certified as
authentic pursuant to INS regulation authentication procedure. Id. The Ninth Circuit also held this
to be error because “documents may be authenticated in immigration proceedings through any
recognized procedure . . . . The procedure specified in 8 C.F.R. § 287.6 provides one, but not the
exclusive, method.” Id. at 1144. In contrast, there is no indication that the IJ in the instant case
required Mr. Ahmedmehrabi to authenticate the subpoena through the § 287 procedure, or indeed
through any cumbersome, formal procedure.
In summary, none of the cases Mr. Ahmedmehrabi cites supports the argument that the IJ
erred in finding his subpoena unpersuasive. The IJ below committed none of the errors that were
committed in the above cases, and instead simply did not find the subpoena helpful in bolstering Mr.
- 10 -
Ahmedmehrabi’s otherwise-lacking story. Because the IJ’s treatment of the subpoena did not
constitute error, neither did it constitute a violation of Mr. Ahmedmehrabi’s due process rights.
Even assuming the authenticity of the subpoena and that failure to give it evidentiary weight
was error, it is clear from the IJ’s opinion that he would reach the same result even if he gave the
subpoena evidentiary weight. See JA 27-29. This conclusion would remain supported by substantial
evidence.
B. Humanitarian Asylum
Mr. Ahmedmehrabi and his family also fail to qualify for asylum under the regulatory
provision for humanitarian asylum, as the regulation is patently not applicable in this case. If an
asylum applicant has demonstrated past persecution, but his resulting presumption of a well-founded
fear has been rebutted, he may still be given a discretionary grant of humanitarian asylum if:
(A) The applicant has demonstrated compelling reasons for being unwilling or unable
to return to the country arising out of the severity of the past persecution; or
(B) The applicant has established that there is a reasonable possibility that he or she
may suffer other serious harm upon removal to that country.
8 C.F.R. § 208.13(b)(1)(iii). Although neither the IJ nor the BIA addressed the issue of humanitarian
asylum directly, both concluded that Mr. Ahmedmehrabi and his family failed to demonstrate that
they had suffered any past persecution. Such findings of fact by the agency are “conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4).
Given the family’s account of their supposed past persecution before both the IJ and the BIA, it was
- 11 -
reasonable for the fact-finders to conclude that they suffered no past persecution. Because past
persecution is a necessary predicate to a grant of humanitarian asylum – indeed, the very basis for
it – Mr. Ahmedmehrabi and his family are ineligible for such a grant.
III. Conclusion
For the foregoing reasons, Mr. Ahmedmehrabi’s petition for review of the decision of the
Board of Immigration Appeals is denied.
- 12 -
| {
"pile_set_name": "FreeLaw"
} |
330 S.C. 152 (1998)
498 S.E.2d 222
MANUFACTURERS AND MERCHANTS MUTUAL INSURANCE COMPANY, Respondent,
v.
Norman L. HARVEY; Joyce P. Harvey; Betsy Baker; R.H., a minor child under the age of fourteen years, by his next friend, P.H.; K.E.H., a minor child under the age of fourteen years, by her next friend, P.H.; B.C.H., a minor child under the age of fourteen years, by his next friend, P.H.; B.E.B., a minor child under the age of fourteen years; F.H.B., a minor child under the age of fourteen years; Price H.; and Gloria H., Defendants.
Of Whom R.H., a minor child under the age of fourteen years, by his next friend, P.H.; K.E.H., a minor child under the age of fourteen years, by her next friend, P.H.; B.C.H., a minor child under the age of fourteen years, by his next friend, P.H.; Price H.; and Gloria H. are, Appellants/Respondents
Of Whom Betsy Baker; B.E.B., a minor child under the age of fourteen years; and F.H.B., a minor child under the age of fourteen years, are, Primary Respondents/Appellants
Of Whom, Joyce Harvey is, Secondary Respondent/Appellant.
No. 2772.
Court of Appeals of South Carolina.
Submitted April 1, 1998.
Decided April 2, 1998.
*155 Victoria L. Eslinger and Susan Batten Lipscomb, both of Nexsen, Pruet, Jacobs & Pollard, Columbia, for Appellants/Respondents.
J. Marvin Mullis, Jr., and Frank A. Barton, both of Mullis & Barton, Columbia, for Primary Respondents/Appellants.
Joseph M. McCulloch, Jr., Columbia, for Secondary Respondent/Appellant.
Thomas C. Salane, of Turner, Padget, Graham & Laney, Columbia, for Respondent.
ORDER
The primary Respondents/Appellants and Respondent in the above captioned case have petitioned for rehearing. We grant this petition without oral argument and order that the opinion heretofore filed, Op. No. 2772, December 22, 1997, be withdrawn and the attached opinion be substituted.
IT IS SO ORDERED.
/s/ William T. Howell, C.J.
/s/ Jasper M. Cureton, J.
/s/ William L. Howard, J.
*156 Introduction
HOWARD, Judge:
This appeal raises the important question of whether the sexual abuse of a minor by an insured constitutes an "occurrence" under an insurance contract. Manufacturers and Merchants Mutual Insurance Company (Manufacturers) brought this declaratory judgment action seeking a declaration that its policies provide no coverage to the insureds, Norman and Joyce Harvey, for alleged acts of sexual abuse against their five minor grandchildren. The trial court concluded Manufacturers had no obligation to defend or indemnify the Harveys for liability resulting from the underlying civil actions against them. We affirm in part and reverse in part.
Facts
Manufacturers issued homeowners policies to Norman Harvey for the period of February 1990 through February 1992. Joyce Harvey was an additional insured under the policies. It is uncontested that the alleged acts of sexual abuse were discovered during this time period.
In August of 1992, Norman Harvey pled guilty to indictments charging him with committing lewd acts upon children under fourteen years of age and with second degree criminal sexual conduct with minors. Joyce Harvey pled guilty to an indictment charging her with the unlawful abuse or neglect of children. The victims were the Harveys' five grandchildren. In 1993, lawsuits were filed on behalf of the grandchildren against Norman and Joyce Harvey. These suits alleged causes of action against both Harveys for assault, battery, intentional infliction of emotional distress, invasion of privacy, and false imprisonment. As to Norman Harvey, the complaints of the grandchildren alleged that he subjected them to various sexual acts including penile and digital penetration, penetration with other objects, fellatio, sodomy and other wrongful touching, exposure to harmful substances, exposure to dangerous practices, and exposure to ritualistic sex acts.
As to Joyce Harvey, the grandchildren alleged that she also engaged in wrongful sexual contact and photographed the grandchildren participating in wrongful, illicit touching with her husband. Further, the grandchildren alleged that Joyce *157 Harvey knew Norman Harvey was a pedophile, condoned his conduct with the grandchildren, and refused to report it or protect the grandchildren from the abuse. In addition to these claims, the grandchildren alleged that Joyce Harvey negligently supervised them during the abuse of Norman Harvey.
The parents of the grandchildren, Price and Gloria H. and Betsy Baker, filed separate lawsuits against the Harveys, alleging intentional infliction of emotional distress, invasion of privacy, loss of consortium, and negligent supervision.
Manufacturers sought a determination that it had no obligation under the policies to defend or indemnify the Harveys for the allegations in the civil actions. During the non-jury hearing, the trial court received the testimony of two medical experts, Dr. Harold Morgan and Dr. Gene Abel. These experts stated that, in their professional opinion, pedophiles have no understanding their acts are harmful to their victims. Both admitted, however, that Mr. Harvey understood the nature and quality of his acts and was perfectly competent except for a diminished capacity to resist his deviant sexual urges with minors.
After the hearing, the court issued its order concluding Manufacturers had no duty to defend or indemnify because
(1) repeated acts of molestation by the insureds do not constitute an "occurrence" within the meaning of the insuring clause of the policies; (2) an insured's sexual molestation of a minor is an act for which damage or injury is "expected or intended" as a matter of law and, therefore, is excluded under the "expected or intended" exclusion of the policy; and (3) Manufacturers & Merchants has no obligation under the homeowner policies to defend or to indemnify its insureds for any liability resulting from the underlying civil actions.
Issues
I. Did the lower court err in holding that the intentional conduct of Joyce and Norman Harvey did not constitute an "occurrence" as defined under the policy?
*158 II. Did the lower court err in finding that the intentional conduct of the Harveys is excluded from coverage by the intentional acts exclusion in the policy?
III. Did the lower court err in holding that the negligent supervision claims were not covered under the policy?
IV. Did the lower court err in finding that Norman and Joyce Harvey's guilty pleas collaterally estop the issue of intent?
Discussion
I. Did the lower court err in holding that the intentional conduct of Joyce and Norman Harvey did not constitute an occurrence as defined under the policy?
We uphold the trial court's finding that sexual abuse does not constitute an "occurrence" as defined by the Harveys' insurance policies. The homeowners policies issued by Manufacturers provided "Personal Liability" coverage as follows:
If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:
1. pay up to our limit of liability for the damages for which the insured is legally liable.
2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the occurrence equals our limit of liability. (emphasis added)
The term "occurrence" is defined in the policies as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions which results, during the policy period, in: (a) bodily injury; or (b) property damage." (emphasis added) The term "accident" is not defined within the policies.
Since "accident" is not specifically defined in the policies, the term should be defined according to the usual understanding of the term's significance to the ordinary person. USAA Property and Casualty Ins. Co. v. Rowland, 312 *159 S.C. 536, 435 S.E.2d 879 (Ct.App.1993). The South Carolina Supreme Court has interpreted the term "accident" to mean "an effect which the actor did not intend to produce and cannot be charged with the design of producing." Goethe v. New York Life Ins. Co., 183 S.C. 199, 190 S.E. 451 (1937). More plainly stated, an intended injury cannot be accidental. Id.
Appellants argue that the medical testimony submitted at trial states conclusively that pedophiles and Mr. Harvey, in particular, do not intend sexual abuse to be harmful and that, therefore, sexual abuse can constitute an "occurrence."
We today hold that the sexual abuse of a child is so inherently injurious to the victim that the perpetrator's intent to harm the child will be inferred as a matter of law. In so holding, we follow the 41 other jurisdictions which recognize an inferred intent to harm when adults sexually assault children.[1] As stated by Justice Souter, who addressed this issue while sitting on the New Hampshire Supreme Court: *160
*161 At the least, therefore, an insured's act is not an accidental contributing cause of injury when the insured actually intended to cause the injury that results. "[A]n accident is never present when a deliberate act is performed unless some additional unexpected, independent and unforeseen [circumstance exists or] happening occurs which produces or brings about the result of injury or death." Nor can an insured's intentional act be an accidental cause of injury when it is so inherently injurious that it cannot be performed without causing the resulting injury.
Vermont Mutual Insurance Company v. Malcolm, 128 N.H. 521, 523-24, 517 A.2d 800, 802 (1986) (citation omitted and emphasis added). We conclude that the effect of sexual abuse is so integral to the act that the intent to do the act is interchangeable with the intent to cause the resulting injury.
The intent to act, coupled with the intent to produce the consequences is not an "accident" as defined by the Supreme Court of South Carolina. Goethe, 183 S.C. 199, 190 S.E. 451 (1937). Since the Harveys' intentional acts of sexual abuse carry with them the inferred intent to harm their grandchildren, the acts alleged against the Harveys are not occurrences and, therefore, are beyond the scope of the Harveys' insurance coverage.
II. Did the lower court err in finding that the intentional conduct of the Harveys is excluded from coverage by the intentional acts exclusion in the policies?
The lower court held that, if the Harveys' conduct constituted an "occurrence," the acts are excluded by the intentional acts exclusion of the policies. Because we hold that intentional acts of sexual abuse cannot constitute an "occurrence," we need not address this issue on appeal.
*162 III. Did the lower court err in holding that the negligent supervision claims were not covered by the policies?
We conclude the lower court properly found the complaints of the grandchildren and Price and Gloria H. alleged intentional conduct and, therefore, did not allege "occurrences" covered by the Harveys' insurance policies. However, we reverse the trial court's determination that Betsy Baker's allegations of negligent conduct are not within the scope of the Harvey's insurance coverage.
In an action for declaratory judgment, the obligation of a liability insurance company to defend and indemnify is determined by the allegations in the complaint. R.A. Earnhardt Textile Machinery Div. Inc. v. South Carolina Ins. Co., 277 S.C. 88, 282 S.E.2d 856 (1981). Where the insured does not allege facts that bring the action within the policy coverage, the insurer has no obligation to defend the action. Id. See Snakenberg v. Hartford Cas. Ins. Co., Inc., 299 S.C. 164, 383 S.E.2d 2 (Ct.App.1989). Therefore, we address each complaint individually.
A. Allegations of the grandchildren
The complaints of the grandchildren were drafted identically and allege the same facts and damages. Upon close examination, we find these complaints allege Joyce Harvey intentionally abused her grandchildren. Even the sections entitled "Negligent Supervision" assert intentional acts of willful, deliberate misconduct. While alternative pleading is permitted in South Carolina, parties may not attempt to invoke coverage by couching intentional acts in negligence terms. South Carolina Med. Malpractice Liab. Ins. v. Ferry, 291 S.C. 460, 354 S.E.2d 378 (1987).
Because every cause of action against Joyce Harvey alleges intentional acts of sexual abuse, these acts cannot constitute "occurrences" under the insurance contract. Therefore, the trial court did not err in holding all causes of action against Joyce Harvey by her grandchildren to be outside of Manufacturer's policy coverage.
B. Allegations of Price and Gloria H.
Price and Gloria H. are the parents of three of the Harveys' grandchildren. In their complaint, they allege that both Joyce *163 and Norman Harvey "negligently, recklessly, willfully, wantonly, and intentionally breached [their] duty to the Plaintiff in connection with the minor children in the following particulars...." The complaint also incorporates into each negligence cause of action the' following underlying allegations of fact:
At all times herein, the Defendants caused the Plaintiffs to vest in them their trust and the care of the Plaintiffs' minor children well knowing that they intended to, and did, engage in a pattern of sexual contact and other wrongs with each of the children, as well as exposure to each child to ritualistic, aberrant and deviant sexual practices, all for their own personal sexual gratification.
These underlying facts do not support a cause of action for negligent conduct. The Appellants cannot assert that Joyce and Norman Harvey committed intentional acts, incorporate these intentional acts into each cause of action, and then seek recovery based on a negligence theory. These allegations do not constitute mere alternative pleading. Rather, the allegations are factually incompatible in that they characterize intentional conduct as negligent conduct. This characterization provides no basis for coverage where, as here, it is clearly negated by the underlying factual assertions upon which it is premised. South Carolina Med. Malpractice v. Ferry, 291 S.C. 460, 354 S.E.2d 378 (1987).
Since the causes of action against the Harveys in the complaint of Price and Gloria H. allege acts of intentional sexual abuse, these causes of action do not constitute "occurrences" under the Harveys' policies. Therefore, the trial court was correct in its determination that the allegations of Price and Gloria H. are not within the scope of the Harveys' homeowner policies.
C. Allegations of Betsy Baker
The complaint of Betsy Baker[2], the Harveys' daughter and the parent of two of the grandchildren, alleges that the *164 Harveys negligently, recklessly, and willfully and intentionally injured the Plaintiffs minor children as follows:
a. in allowing the plaintiffs minor children to be in the company of a person or persons that each Defendant knew or should have known posed a severe danger to the Plaintiffs minor children, said danger being the likelihood of committing physical or sexual abuse toward the Plaintiffs minor children;
b. in allowing the Plaintiffs minor children to be in the presence of a person or persons whom each Defendant knew or should have known posed a significant risk to the Plaintiffs minor children of causing severe physical and emotional injury;
c. in allowing the Plaintiffs minor children to be physically, sexually, and emotionally abused;
d. in failing to take action to stop the Plaintiffs minor children from being in the presence of people who were likely to physically, sexually, or emotionally abuse the plaintiffs minor children;
e. in failing to prevent physical, sexual, or emotional abuse which each Defendant knew or should have known was likely to occur to the Plaintiffs minor children;
f. in allowing the Plaintiffs minor children to be physically, sexually, or emotionally abused;
Several of these allegations appear to be redundant or at least overlapping. Although subparagraphs c. and f. allege intentional conduct, subparagraphs a., b., d., and e. can be construed as alleging negligent or reckless conduct. The acts alleged in these portions of the complaint are not inherently injurious. While Norman and Joyce Harvey may each have intentionally allowed the children to be in the presence of abusers, this is different from an allegation that the Harveys intentionally abused the children.
Each of the other complaints allege that the conduct of the Harveys was intentional and these allegations were incorporated into each cause of action. Betsy Baker's complaint does not incorporate her allegations of intentional conduct into each cause of action. Therefore, whether referring to one Harvey negligently entrusting a child to the other Harvey, or to third parties, the conduct described in subparagraphs a., b., d., and *165 e. allege actions which, if established, would constitute an "occurrence" under the Harveys' policies.
Further, the negligence claims in this complaint are not excluded by the intentional acts exclusion in the Harveys' policies. The South Carolina Supreme Court has held that, for an act to be an intentional act excluded by the intentional act exclusion of a policy, 1) the act which produces the loss must be intentional, and 2) the results of the act must be intended. Miller v. Fidelity-Phoenix Ins. Co., 268 S.C. 72, 231 S.E.2d 701 (1977). Betsy Baker's complaint does not allege the Harveys' intended the harm to their grandchildren through their negligent supervision. Therefore, the Harveys' act of permitting the children to be in the company of potential abusers is not excluded by the intentional acts exclusion of the Harveys' policies.
For this reason, we reverse the trial court's ruling that Betsy Baker's allegations are outside of the scope of the Harveys' coverage and excluded by the intentional acts exclusion; we hold that Manufacturers must perform under the insurance contract.[3]
IV. Did the lower court err in finding that Norman and Joyce Harvey's guilty pleas collaterally estop the issue of intent?
The trial court held that Norman and Joyce Harvey were estopped by their guilty pleas to deny that they intended the harm alleged in the complaint. Because we find that the causes of action alleging intentional acts are outside of the scope of the insurance coverage, we need not address the effect of the Harveys' guilty pleas regarding these claims.
However, Betsy Baker's complaint, which we find within the scope of the policies, asserts negligence claims based upon allegations of negligent entrustment of the children by each defendant to others, who then sexually abused them. We find that the court erred in holding that Joyce Harvey's guilty plea collaterally estopped relitigation of the *166 issue of her intent to harm the children. The judge stated in his order:
The guilty pleas of Norman and Joyce Harvey establish by collateral estoppel (1) that each committed intentional acts resulting in injury to minors; (2) each were competent to formulate the intent required to establish the criminal offenses; and (3) such competency and intent produces a reasonable "expectation" or "intention" to result in the injuries complained of by the various minors who were sexually abused.
The doctrine of collateral estoppel prevents parties from relitigating an issue that has previously been conclusively determined. Beall v. Doe, 281 S.C. 363, 315 S.E.2d 186 (Ct.App.1984). South Carolina courts have not conclusively held that collateral estoppel may result from guilty pleas. See Beall v. Doe, 281 S.C. 363, 315 S.E.2d 186 (Ct.App.1984); Samuel v. Mouzon, 282 S.C. 616, 320 S.E.2d 482 (Ct.App.1984) ("It is well settled that while a criminal conviction is not a binding adjudication of a subsequent civil action on the same facts, a judgment on a plea of guilty may be received into evidence as an admission, subject to explanation or rebuttal."). However, even if a guilty plea can collaterally estop relitigation of an issue in a subsequent civil trial, the doctrine would not be applicable here.
Joyce Harvey pled guilty to the unlawful neglect of a child. This statute states:
Any person having the legal custody of any child or helpless person, who shall, without lawful excuse, refuse or neglect to provide, as defined in § 20-7-490, the proper care and attention for such child or helpless person, so that the life, health or comfort of such child or helpless person is endangered or is likely to be endangered, shall be guilty of a misdemeanor and shall be punished within the discretion of the circuit court.
S.C.Code Ann. § 20-7-50 (1985) (amended 1995) The South Carolina Supreme Court has held that violation of this section is proven without proof of knowledge or intent. State v. Jenkins, 278 S.C. 219, 294 S.E.2d 44 (1982). Because intent is not an element of the crime to which Joyce Harvey plead guilty, the trial court erred in holding that Joyce Harvey's *167 guilty plea was a conclusive finding that Joyce Harvey acted intentionally.
Conversely, Norman Harvey plead guilty to second degree criminal conduct and to committing lewd acts on a child. Norman Harvey's specific intent to abuse the children based upon his direct acts of abuse does not negate the possibility that, in addition to those acts, he also negligently entrusted the children to others as alleged by Betsy Baker. Because her complaint must be accepted as true for the purposes of this analysis, the trial court's determination that Norman Harvey's guilty plea collaterally estops the issue of specific intent is not dispositive of the claims of negligent entrustment alleged in Betsy Baker's complaint.
Conclusion
Acts of sexual abuse by an adult on a minor are so inherently injurious as to necessitate a finding that the perpetrator intended the act and intended the inevitable resulting injury. Therefore, the alleged intentional acts of Norman and Joyce Harvey are beyond the scope of the Harveys' policies and the complaints which allege this intentional misconduct do not support an obligation by Manufacturers to defend or indemnify. Therefore, we affirm the trial court and hold that the allegations in the complaints of the grandchildren and Price and Gloria H. are not within the scope of the insurance coverage. We also reverse the holding of the trial court and find that the claims of Betsy Baker on behalf of her children are within the coverage of the Harveys' homeowners policies.
AFFIRMED IN PART AND REVERSED IN PART.
HOWELL, C.J., and CURETON, J., concur.
NOTES
[1] Every jurisdiction having the opportunity to consider the issue in the context of sexual molestation of a minor by an insured has adopted the "inferred intent" doctrine and found that the intent to perform the act of molestation is sufficient to infer the intent to harm the child. Jurisdictions and cases adopting an "inferred intent" rule in sexual molestation cases are: Alabama: State Farm Fire & Cas. Co. v. Davis, 612 So.2d 458 (Ala.1993); Horace Mann Ins. Co. v. Fore, 785 F.Supp. 947 (M.D.Ala.1992). Alaska: Allstate Ins. Co. v. Roelfs, 698 F.Supp. 815 (D.Alaska 1987). Arizona: Twin City Fire Ins. Co. v. Doe, 163 Ariz. 388, 788 P.2d 121 (1989). Arkansas: CNA Insurance Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984). California: J.C. Penney Cas. Ins. Co. v. M.K., 52 Cal.3d 1009, 804 P.2d 689, 278 Cal.Rptr. 64 (1991); Allstate Ins. Co. v. Kim W., 160 Cal.App.3d 326, 206 Cal.Rptr. 609 (1984); American States Ins. Co. v. Borbor, 826 F.2d 888 (9th Cir.1987); State Farm Fire & Cas. Co. v. Bomke, 849 F.2d 1218 (9th Cir.1988); Fire Insurance Exchange v. Abbott, 204 Cal.App.3d 1012, 251 Cal.Rptr. 620 (1988); State Farm Fire & Cas. Co. v. Abraio, 874 F.2d 619 (9th Cir.1989). Colorado: Troelstrup v. District Court, 712 P.2d 1010 (Colo. 1986) (En Banc); Allstate Ins. Co. v. Troelstrup, 789 P.2d 415 (Colo. 1990) (En Banc). Connecticut: Middlesex Mutual Assurance Co. v. Rand, 1996 WL 218698 (Conn.Super., April 4, 1996). Delaware: Motley v. Maddox v. New Castle Mut. Ins. Co., 1992 WL 52206 (Del.Super.1992). Florida: McCullough v. Central Florida YMCA, 523 So.2d 1208 (Fla.App. 5 Dist.1988); Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla.1989). Georgia: Roe v. State Farm Fire & Cas. Co., 259 Ga. 42, 376 S.E.2d 876 (1989); Allstate Ins. Co. v. Jarvis, 195 Ga.App. 335, 393 S.E.2d 489 (1990). Illinois: Scudder v. Hanover Ins. Co., 201 Ill.App.3d 921, 147 Ill.Dec. 386, 559 N.E.2d 559 (1990). Indiana: Wiseman by Wiseman v. Leming, 574 N.E.2d 327 (Ind.App.1991). Iowa: Altena v. United Fire & Cas. Co., 422 N.W.2d 485 (Iowa 1988). Kansas: Troy v. Allstate Ins. Co., 789 F.Supp. 1134 (D.Kan.1992). Kentucky: Thompson v. West American Ins. Co., 839 S.W.2d 579 (Ky.App.1992); Goldsmith v. Physicians Ins. Co. of Ohio, 890 S.W.2d 644 (Ky.App.1994). Louisiana: Doe v. Smith, 573 So.2d 238 (La.App.1990); Shaw v. Bourn, 615 So.2d 466 (La.App.1993); Belsom v. Bravo, 658 So.2d 1304 (La. App.1995). Maine: Perreault v. Maine Bonding & Cas. Co., 568 A.2d 1100 (Maine 1990). Maryland: Harpy v. Nationwide Mut. Fire Ins. Co., 76 Md.App. 474, 545 A.2d 718 (1988). Massachusetts: Terrio v. Mc-Donough, 16 Mass.App.Ct. 163, 450 N.E.2d 190 (1983); Worcester Ins. Co. v. Fells Acres Day School. Inc., 408 Mass. 393, 558 N.E.2d 958 (1990). Michigan: Linebaugh v. Berdish, 144 Mich.App. 750, 376 N.W.2d 400 (1985); Frankenmuth Mut. Ins. Co. v. Kompus, 135 Mich. App. 667, 354 N.W.2d 303 (1984); State Mutual Insurance Co. v. Russell, 185 Mich.App. 521, 462 N.W.2d 785 (1990). Minnesota: Horace Mann Ins. Co. v. Independent School District No. 656, 355 N.W.2d 413 (Minn.1984); State Farm Fire & Cas. Co. v. Williams, 355 N.W.2d 421 (Minn.1984); Lehmann v. Metzger, 355 N.W.2d 425 (Minn. 1984); Fireman's Fund Ins. Co. v. Hill, 314 N.W.2d 834 (Minn.1982); Illinois Farmers Ins. Co. v. Judith G., 379 N.W.2d 638 (Minn.App.1986); Mutual Service Cas. Ins. Co. v. Puhl, 354 N.W.2d 900 (Minn.App.1984). Missouri: State Farm Fire & Cas. Co. v. D.T.S., 867 S.W.2d 642 (Mo.Ct.App.1993); B.B. v. Continental Ins. Co., 8 F.3d 1288 (8th Cir. 1993). Montana: New Hampshire Ins. Group v. Strecker, 244 Mont. 478, 798 P.2d 130 (1990). Nebraska: State Farm Fire & Cas. Co. v. van Gorder, 235 Neb. 355, 455 N.W.2d 543 (1990). Nevada: State Farm Fire & Cas. Co. v. Smith, 907 F.2d 900 (9th Cir.1990); Allstate Ins. Co. v. Foster, 693 F.Supp. 886 (D.Nev.1988). New Hampshire: Vermont Mut. Ins. Co. v. Malcolm. 128 N.H. 521, 517 A.2d 800 (1986). New Jersey: Atlantic Employers Ins. Co. v. Tots & Toddlers Pre-School Day Care Center, Inc., 239 N.J.Super. 276, 571 A.2d 300 (1990). New Mexico: Sena v. Travelers Ins. Co., 801 F.Supp. 471 (D.N.M.1992). New York: Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 589 N.E.2d 365, 581 N.Y.S.2d 142 (1992). North Carolina: Nationwide Mutual Ins. Co. v. Abernethy, 115 N.C.App. 534, 445 S.E.2d 618 (1994); Russ v. Great American Ins. Co., 121 N.C.App. 185, 464 S.E.2d 723 (1995). North Dakota: Northwest G.F. Mut. Ins. Co. v. Norgard, 518 N.W.2d 179 (N.D.1994). Ohio: Young v. All America Ins. Co., 81 Ohio App.3d 493, 611 N.E.2d 421 (1992). Oklahoma: Allstate Ins. Co. v. Thomas, 684 F.Supp. 1056 (W.D.Okla.1988). Oregon: Mutual of Enumclaw v. Merrill, 102 Or.App. 408, 794 P.2d 818 (1990); State Farm Fire & Cas. Co. v. Reuter, 299 Or. 155, 700 P.2d 236 (1985) (En Banc). Pennsylvania: Wiley v. State Farm Fire & Cas. Co., 995 F.2d 457 (3d Cir.1993); Foremost Ins. Co. v. Weetman, 726 F.Supp. 618 (W.D.Pa.1989); Aetna Cas. & Surety Co. v. Roe, 437 Pa.Super. 414, 650 A.2d 94 (1994). Rhode Island: Peerless Ins. Co. v. Viegas, 667 A.2d 785 (R.I.1995). South Dakota: American Family Mut. Ins. Co. v. Purdy, 483 N.W.2d 197 (S.D.1992). Texas: Maayeh v. Trinity Lloyds Ins. Co., 850 S.W.2d 193 (Tex.App.1992); Allen v. Automobile Ins. Co. of Hartford, Conn., 892 S.W.2d 198 (Tex.App.1994); Commercial Union Ins. Co. v. Roberts, 815 F.Supp. 1006 (W.D.Tex.1992). Washington: Rodriguez v. Williams, 107 Wash.2d 381, 729 P.2d 627 (1986) (En Banc); Public Employees Mut. Ins. Co. v. Rash, 48 Wash.App. 701, 740 P.2d 370 (1987); Grange Ins. Association v. Authier, 45 Wash.App. 383, 725 P.2d 642 (1986); Western National Assurance Co. v. Hecker, 43 Wash.App. 816, 719 P.2d 954 (1986). West Virginia: Horace Mann Ins. Co. v. Leeber, 180 W.Va. 375, 376 S.E.2d 581 (1988). Wisconsin: N.N. v. Moraine Mut. Ins. Co., 153 Wis.2d 84, 450 N.W.2d 445 (1990); Whitt v. DeLeu, 707 F.Supp. 1011 (W.D.Wis.1989).
[2] Betsy Baker's complaint is based on allegations that the harm to her children caused injury and damages to Betsy Baker. The complaint is not made on behalf of Baker's children.
[3] We hold only that the causes of action for negligence are within the scope of the insurance policies; we do not address the validity of Betsy Baker's claims.
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891 F.2d 291
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Kenneth K. KITTER, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 89-1266.
United States Court of Appeals, Sixth Circuit.
Dec. 5, 1989.
Before KRUPANSKY and DAVID A. NELSON, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.
PER CURIAM.
1
This is a social security disability case in which the plaintiff, Kenneth K. Kitter, seeks judicial review of the Secretary's denial of benefits. Mr. Kitter claims he has been disabled since July of 1980 or April of 1981. An administrative law judge found that he did not become disabled until July 1, 1986. This was more than two years after the day (March 31, 1984) on which Mr. Kitter was last eligible for disability benefits. The district court entered summary judgment for the Secretary. We shall affirm the judgment.
2
Mr. Kitter was born on November 12, 1958. He attended school through the 12th grade. His most recent job, which he held from 1976 to 1981, was as a laborer with the Huron Cement Company. He claims he stopped working in 1981 because of rheumatoid arthritis.
3
Mr. Kitter applied for disability benefits on August 20, 1986. He admits he was last insured for disability on March 31, 1984. A claimant may not obtain retroactive benefits for more than 12 months prior to his application. 42 U.S.C. § 423(b); see also Yeiter v. Secretary of Health and Human Servs., 818 F.2d 8 (6th Cir.), cert. denied, 484 U.S. 854 (1987).
4
At a hearing before the ALJ, Mr. Kitter asserted that he had applied for disability benefits in 1981. The ALJ said he was unable to find any record of such an application. After the hearing, Mr. Kitter's attorney provided the ALJ with a form sent to Mr. Kitter from the Social Security office acknowledging his 1981 application. The form was the only documentation Mr. Kitter had of that claim.
5
The ALJ found that Mr. Kitter had been disabled since July 1, 1986, and supplemental security income benefits were awarded on that basis. The ALJ denied Mr. Kitter's claim for disability benefits.
6
On appeal, Mr. Kitter argues "by the mere fact that he had filed his 1986 application [he] was asking to reopen his 1981 application." There is, however, no indication in the record that the present application was supposed to be an application for reopening of the 1981 claim. In any event, a claim may be reopened after four years only under limited circumstances, none of which is applicable here. See 20 C.F.R. § 404.988 (1989). The district court noted that although Mr. Kitter may have been disabled from July of 1980 to February of 1982, it is too late for him to receive retroactive benefits for this period. We agree.
7
The next issue is whether substantial evidence supports the ALJ's finding that Mr. Kitter was not disabled as of March 31, 1984. On February 9, 1982, Andrew Daugavietis, M.D., Mr. Kitter's rheumatologist, reported that he found no abnormalities and that Kitter's laboratory data had "completely returned to normal." The only evidence in the record relating to the time period from February 1982 to the expiration of Mr. Kitter's insured status on March 31, 1984, are his subjective complaints and the reports of Donald Miller, M.D., a treating physician. The last of these reports, dated January 30, 1984, indicates that although Mr. Kitter was suffering from rheumatoid arthritis, he had gained weight and suffered only "occasional discomfort of his hands."
8
Substantial evidence clearly supports the Secretary's finding of no disability during the two years immediately preceding the expiration of Mr. Kitter's disability insurance. The judgment of the district court is AFFIRMED.
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150 N.J. Super. 410 (1977)
375 A.2d 1221
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HENRY VACCARO, M.D., DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued May 23, 1977.
Decided June 6, 1977.
*411 Before Judges BISCHOFF, MORGAN and KING.
Mr. Raymond P. Shebell argued the cause for appellant (Mr. Thomas F. Shebell, attorney).
Mr. Albert G. Fredericks, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
PER CURIAM.
At issue here is the existence of trial court power to increase a sentence on one count of an indictment, after vacation thereof, when conviction on another count, for which a separate sentence was imposed, is reversed on appeal.
*412 The procedural context from which this issue emerges starts with defendant's conviction of counts 3, 4, 5, 7, 10, 12, 16 and 17 of Monmouth County Indictment 799-72. As required, a separate sentence was imposed on each count. State v. Cianci, 18 N.J. 191, 194 (1955), cert. den. 353 U.S. 940, 77 S.Ct. 819, 1 L.Ed.2d 763 (1957); State v. Green, 129 N.J. Super. 147, 167 (App. Div. 1974). Custodial State Prison terms were suspended on all counts. A $5,000 fine was imposed on counts 3, 4, 5, 7, 10 and 12; on counts 16 and 17, merged by the trial judge, a $3,000 fine was imposed, and on count 18, a $7,000 fine was imposed. The aggregate fine on all counts of which defendant was convicted was $40,000. All fines were paid by 1974.
The appeal taken from these convictions resulted in the reversal of defendant's convictions of counts 10 and 12 and a remand for a new trial on those counts. Thereafter, on June 3, 1976, the trial judge entered an amended judgment of conviction eliminating the suspended custodial sentences on the reversed convictions, but retaining the aggregate amount of the fine previously imposed, $40,000. Following a hearing held on defendant's motion therefor on the amended judgment of conviction, the trial judge entered a second amended judgment of conviction wherein the judge amended the sentence imposed on count 18 to reflect a $17,000 fine instead of the $7,000 fine imposed in the original judgment of conviction. The purpose of this amendment was to retain the aggregate fine originally imposed and to block defendant's claimed right to repayment of $10,000.
Defendant contends that the $10,000 increase in the fine originally imposed on his conviction of count 18 violates his privilege against twice being put in jeopardy for the same offense, since it increases the punishment for that conviction after execution. The State, on the other hand, views the sentence imposed in the aggregate, arguing that the action of the trial judge did not result in an increase in the *413 total fine imposed; the original judgment of conviction required payment of $40,000, as did the second amended judgment.
We agree with defendant and reverse. Although the trial judge may have conceived the fines imposed in the aggregate allocated among the several convictions in keeping with the maximum fine permitted for each such conviction, the fact remains that each conviction properly carried its own sentence, a suspended custodial State Prison term and a fine of a specified amount. General sentences, an aggregate punishment by fine or imprisonment without allocation to convictions on individual counts, are invalid in this State. State v. Cianci, supra. Authority referred to by the State concerning the effect of reversal of one of several counts in jurisdictions permitting general sentences consequently has no application in New Jersey. See, e.g., Gorman v. United States, 456 F.2d 1258, 1259 (2 Cir.1972); McDonald v. Moinet, 139 F.2d 939, 941 (6 Cir.1944), cert. den. 322 U.S. 730, 64 S.Ct. 942, 88 L.Ed. 1565 (1944).
Under the common law, and under New Jersey practice, a trial judge is precluded from increasing a sentence once it has gone into operation. State v. Matlack, 49 N.J. 491, 501, cert. den. 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed.2d 606 (1967); indeed, any rule which permitted a trial judge to increase an executed sentence previously imposed "would raise serious problems under the constitutional right to be free from double jeopardy." Id. When defendant paid the fines imposed by the original judgment of conviction, the sentences were deemed to have been fully executed. State v. Laird, 25 N.J. 298, 307 (1957). Once a "sentence has been executed, it would seem that on the plainest principles of justice the jurisdiction of the court to increase the punishment is at an end * * *." State v. Laird, supra at 312. See also, United States v. Rosenstreich, 204 F.2d 321, 321-322 (2 Cir.1953).
That portion of the second amended judgment of conviction which specifies the fine for the conviction on *414 count 18 as $17,000 is vacated and the fine of $7,000 for conviction of that count is hereby reinstated. Defendant is, therefore, entitled to a refund of $10,000.
Reversed and remanded for further proceedings consistent with this opinion.
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684 F.2d 1208
8 Media L. Rep. 2049
Ruby CLARK, Plaintiff-Appellant,v.AMERICAN BROADCASTING COMPANIES, INC., Defendant-Appellee.
No. 80-1476.
United States Court of Appeals,Sixth Circuit.
Argued Dec. 3, 1981.Decided July 29, 1982.Order of Oct. 22, 1982.Rehearing Denied Nov. 3, 1982.
Victoria C. Heldman, Schaden & Heldman, Detroit, Mich., for plaintiff-appellant.
Richard E. Rassel, Butzel, Long, Gust, Klein and Van Zile, Detroit, Mich., for defendant-appellee.
Before KEITH and JONES, Circuit Judges, and BROWN, Senior Circuit Judge.
KEITH, Circuit Judge.
1
This appeal raises the question of whether summary judgment was providently granted in this defamation action. A judge of the United States District Court for the Eastern District of Michigan granted summary judgment for the American Broadcasting Companies, Inc. ("ABC"), the defendant-appellee. The court held that an ABC broadcast which pictured Ruby Clark, the plaintiff-appellant ("Plaintiff"), was not libelous. We reverse and remand for proceedings consistent with this opinion.
FACTS
2
This defamation action arises from an ABC broadcast which aired on April 22, 1977. The broadcast was an hour long "ABC News Closeup" entitled: "Sex for Sale: The Urban Battleground" ("Broadcast"). The Broadcast addressed the effects of the proliferation of commercialized sex: 1) the damage that sex-related businesses have on America's cities, towns, and neighborhoods; 2) the resurgence of street prostitution caused by these sex businesses; and 3) how the sex businesses flourish from prostitution. The Broadcast featured interviews which focused on various cities, including Boston, New York, and Detroit.
3
Act III focused on street prostitution in these cities. One segment of Act III focused on the devastating effect of street prostitution on a middle class neighborhood in Detroit. Residents of the neighborhood were interviewed, and several women were photographed as they walked down a public street.
4
The first woman was white. She was obese, and approximately fifty years old. She wore a hat, and carried a shopping bag in each hand. The second woman carried a grocery bag. She was black. The camera followed her a few minutes as she exited a grocery store and walked down the street. She was slightly obese, wore large-framed glasses, and appeared to be at least forty years old. The following comments were made while these two women appeared on the screen:
5
According to residents, and Detroit police records, most of the prostitutes' customers or johns were white; the street prostitutes were often black. This integrated middle class neighborhood became a safe meeting place for prostitutes and 'johns'.
6
The plaintiff, a black woman, was the third woman photographed walking down the street. The photographs were frontal close-ups. Plaintiff's face was clearly visible. The plaintiff appeared to be in her early to mid-twenties. She was attractive, slim, and stylishly dressed. She wore large earrings and had long hair which was pulled up above her head. Apparently, Plaintiff was unaware that she was being photographed. As Plaintiff appeared, the narrator made the following remarks:
7
But for black women whose homes were there, the cruising white customers were an especially humiliating experience.
8
Sheri Madison, a black female resident of the neighborhood plagued by prostitution, appeared on the screen seconds after Plaintiff. She stated:
9
Almost any woman who was black and on the street was considered to be a prostitute herself. And was treated like a prostitute.
10
Subsequently, Plaintiff initiated an action in the Wayne County Circuit Court against ABC claiming defamation and invasion of privacy. She claimed that the Broadcast depicted her as a "common street prostitute". It is uncontroverted that Plaintiff has never been a prostitute. In fact, Plaintiff is married and has one son. ABC removed the case to federal district court pursuant to the court's diversity jurisdiction.
11
In a deposition, Plaintiff testified concerning her reactions as she, her husband, and 2 year old son viewed the Broadcast. The Broadcast shocked her. Plaintiff believed that she had been portrayed as a prostitute. She also testified that several friends, acquaintances, and relatives phoned Plaintiff during and following the Broadcast. Each of these persons thought that the Broadcast portrayed her as a street prostitute.
12
Plaintiff also testified that she was propositioned, that church members shunned her, and that acquaintances confronted her with allegations that she was a prostitute. Moreover, after the Broadcast two potential employers refused to hire Plaintiff because they feared her employment would hurt their businesses.1
13
Both parties moved for summary judgment. In support of its motion, ABC argued that: 1) the audio and visual portions of the Broadcast were clear, unambiguous and not in dispute; 2) the pictures of the Plaintiff walking along a public street were not objectionable; 3) the "context and the words used in conjunction with the brief visual references" to the Plaintiff did not support her claim; and 4) the "balance of the (Broadcast) was not 'of and concerning' (the Plaintiff)." ABC attached to its Motion for Summary Judgment a transcript of the words used in the Broadcast. ABC also provided the court with a videotape of the Broadcast.
14
In her motion, Plaintiff asserted that: 1) there was no factual question that the defamation was "of and concerning" her; and 2) the Broadcast was not in the public interest, therefore, ABC could not assert a qualified privilege.
15
ABC filed an Answer to Plaintiff's Cross Motion for Summary Judgment, arguing that: 1) the Plaintiff was clearly and unambiguously depicted as a housewife; and 2) the Broadcast was in the public interest and a qualified privilege existed as a matter of law.
16
After viewing the videotape of the Broadcast and reading the accompanying transcript, the district court granted ABC's motion for summary judgment. Plaintiff perfected this appeal.
I. DEFAMATION CLAIM
17
On appeal, Plaintiff argues that the district court erred in granting summary judgment for ABC since there existed a factual question as to whether the broadcast was defamatory. We agree.
18
In granting ABC's motion for summary judgment, the district court concluded that the Broadcast was not libelous. The court reasoned that nothing in Plaintiff's appearance suggested that her activity paralleled that of a street prostitute.2
19
ABC argues that courts must be cautious in allowing juries to decide defamation cases which involve public interest reporting. In effect, ABC suggests that different rules and considerations apply to summary judgment motions in defamation cases. However, the standard for summary judgment motions is articulated clearly in Fed.R.Civ.P. 56(c). Rule 56(c) provides that summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.3
20
"There is no rule which favors either granting or denying motions for summary judgment in defamation cases." Schultz v. Newsweek, Inc., 668 F.2d 911 (6th Cir. 1982); See Yiamouyiannis v. Consumers Union of United States, 619 F.2d 932 (2d Cir.), cert. denied, 449 U.S. 839, 101 S.Ct. 117, 66 L.Ed.2d 46 (1980). Therefore, even in defamation cases, summary judgment is proper only if there exists no genuine issue as to any material fact.
21
In determining whether there exists a genuine issue as to a material fact, we apply the substantive law of Michigan. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Michigan Supreme Court in Nuyen v. Slater, 372 Mich. 654, 127 N.W.2d 369 (1964), defined defamation as follows:
22
A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.
23
Id. at 662, 127 N.W.2d 369.
24
This definition provides the applicable substantive law in this case.
25
The district court had a duty to determine as a matter of law whether the Broadcast was reasonably capable of a defamatory interpretation. Schultz v. Reader's Digest Association, 468 F.Supp. 551, 554 (E.D.Mich.1979); Michigan United Conservation Clubs v. CBS News, 485 F.Supp. 893 (W.D.Mich.1980), aff'd, 665 F.2d 110 (6th Cir. 1981). Whether the Broadcast was understood as being defamatory was for the jury to decide. Schultz v. Reader's Digest, 468 F.Supp. at 554; Michigan United Conservation Clubs, 485 F.Supp. at 902.
26
As noted, the district court granted summary judgment in favor of ABC because the court concluded that the broadcast was not libelous. The district court applied an incorrect standard. The district court should have granted summary judgment for ABC only if the Broadcast was not reasonably capable of a defamatory meaning. Schultz v. Readers Digest, 468 F.Supp. at 554; Michigan United Conservation Clubs, 485 F.Supp. at 902.
27
The portrayal of Plaintiff as a prostitute would clearly be defamatory under Michigan law. Prostitutes are considered immoral and socially undesirable. Moreover, as the Broadcast indicated, the presence of street prostitution in a neighborhood causes devastating social problems. There is often a significant increase in the number of assaults and robberies. App. 28. Street prostitution is also accompanied by the presence of illegal drug traffic. App. 30. Therefore, the portrayal of an individual as a prostitute would damage her reputation and tend to cause third persons not to associate with that individual.
28
In this case, Plaintiff's appearance in the Broadcast was capable of at least two interpretations, one defamatory and the other non-defamatory. That the Broadcast is reasonably capable of a non-defamatory meaning is clear from the district court's reasoning. The district court focused solely on whether Plaintiff's behavior during the Broadcast was similar to the stereotypical actions commonly associated with prostitution. This stereotypical behavior includes "(wearing) suggestive clothing, suggestive walking, overt acts of solicitation, and the like." App. 399. Plaintiff was not engaged in any of these actions. Consequently, the court concluded that Plaintiff's appearance in the Broadcast was not libelous.
29
Plaintiff's participation in the Broadcast is also reasonably capable of a defamatory meaning. The district court should also have viewed Plaintiff's appearance in the context of the focus on street prostitution. Viewed in this manner, Plaintiff was either portrayed as a prostitute or could reasonably be mistaken for a prostitute.
30
As noted earlier, Plaintiff was photographed as she walked down the street. Prior to Plaintiff's appearance, the commentator noted that the street prostitutes were often black while their customers were often white. Moreover, the commentator noted that this neighborhood was a safe meeting place for the black street prostitutes and their white customers. As the commentator spoke two women were pictured. The first woman was white. She was obese, at least fifty years old, and carried a shopping bag in each hand. This woman appeared to be one of the residents of the middleclass neighborhood. The second woman shown was black, slightly obese, wore large-framed glasses, and carried a bag of groceries as she exited a store. Although this woman was black, she also appeared to be one of the residents of the middle class neighborhood. Plaintiff's picture appeared immediately following the appearance of these two matrons.
31
The contrast between Plaintiff's appearance and that of the two matrons is striking. Plaintiff is black and appeared to be in her early to mid-twenties. She was slim, attractive, stylishly dressed, and wore large earrings. When her appearance is juxtaposed with that of the two matrons, it is not clear whether she is a resident of this middle class neighborhood or one of the street prostitutes who plagued this community. Arguably, this ambiguity is clarified by the commentator's statement that the presence of the cruising white customers was a humiliating experience for the black women who resided in the neighborhood. However, assuming arguendo that this statement tends to clarify the ambiguity, this partial clarification is negated by an interview which followed Plaintiff's appearance.
32
Immediately following Plaintiff's appearance, Sheri Madison, a resident of this neighborhood, appears on the screen and states: "Almost any black woman on the streets was considered to be a prostitute herself, and was treated as a prostitute." App. 73. Thus, it is unclear whether Plaintiff is one of those middle class women erroneously considered to be a prostitute or is, in fact, a prostitute.
33
The ambiguity created when Plaintiff's appearance is viewed within the context of Act III's focus on the effect of street prostitution on a Detroit middle class neighborhood renders the Broadcast susceptible to both a defamatory and a non-defamatory meaning.
34
Given the district court's own analysis of the question of whether the broadcast was defamatory, the court's decision to grant summary judgment for ABC is difficult to reconcile. The district court noted that it had "agonized over (whether the broadcast defamed Plaintiff)." App. 400. The fact that the court found it necessary to agonize over the question of whether the Broadcast was defamatory demonstrates that the case should have been submitted to the jury.
35
The Broadcast was reasonably capable of two meanings, one defamatory and the other non-defamatory. Consequently, it was for the jury to decide whether the Broadcast was understood as being defamatory. Schultz v. Readers Digest, 468 F.Supp. at 554; Michigan United Conservation Club, 485 F.Supp. at 902. We therefore conclude that summary judgment was improvidently granted.
II. QUALIFIED PRIVILEGE UNDER MICHIGAN LAW
36
ABC contends that a qualified privilege protects it even if the Broadcast was capable of a defamatory meaning. Michigan's qualified privilege protects a defendant from liability even where the statements published were defamatory. A defendant loses the protection of the qualified privilege, however, if it acts with actual malice as defined in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Schultz v. Newsweek, 668 F.2d at 918; Lawrence v. Fox, 357 Mich. 134, 97 N.W.2d 719 (1950) In New York Times v. Sullivan, the Supreme Court held that a defendant acts with actual malice where a statement is made with knowledge that it is false or with reckless disregard of whether it was false or not. Id. 376 U.S. at 280, 84 S.Ct. at 726. The record in the instant case does not indicate that ABC acted with actual malice. Therefore, if Michigan's qualified privilege applies in this case, we could sustain the district court's grant of summary judgment for ABC.
37
Plaintiff argues that Michigan's qualified privilege does not apply in this case, therefore, she is required to prove only that ABC was negligent.4
38
The parties' contentions raise difficult issues of state and constitutional law. State defamation law is affected by First Amendment principles. See Schultz v. Newsweek, 668 F.2d at 916; Orr v. Argus Press Co., 586 F.2d 1108 (6th Cir. 1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979). Moreover, as a legal and practical matter, the state law issues and the constitutional issues may be intertwined in some situations. See Orr, 586 F.2d at 1112. We will address the issues arising under Michigan law first, and will reach the constitutional issues only if required to do so. Cf. Schultz v. Newsweek, 668 F.2d at 916.
39
The Michigan Supreme Court recognized a qualified privilege to publish defamatory statements in the seminal decision of Bacon v. Michigan Central R. Co., 66 Mich. 166, 33 N.W. 181 (1887). In Bacon, the court held that the qualified privilege:
40
extends to all communications made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty. And the privilege embraces cases where the duty is not a legal one, but where it is a moral or social character of imperfect obligation.
41
Id. at 170, 33 N.W. 181.
42
Whether the qualified privilege applies is a question of law. Fortney v. Stephan, 237 Mich. 603, 213 N.W. 172 (1927). "The court must decide as a matter of law whether there is a recognized public or private interest which would justify the utterance of publication". Schultz v. Newsweek, 668 F.2d at 918.
43
One privileged occasion involves publications or broadcasts which are in the public interest. The privilege "rests upon considerations of public policy." Lawrence v. Fox, 357 Mich. at 137, 97 N.W.2d 719. The privilege "varies with the situation (and) with what is regarded as the importance of the social issues at stake." Id. at 138, 97 N.W.2d 719. The privilege applies as a matter of law where the plaintiffs' activities or opinions are in the public interest. Schultz v. Newsweek, 668 F.2d at 918; Orr v. Argus Press, 586 F.2d at 1108; Fortney v. Stephan, 237 Mich. 603, 213 N.W. 172; Bostetter v. Kirsch Co., 319 Mich. 547, 30 N.W.2d 276 (1948).
44
Once a court determines that the occasion is privileged, the court must next determine whether the allegedly defamatory statement is within the scope of the qualified privilege. Bowerman v. Detroit Free Press, 287 Mich. 443, 447, 283 N.W. 642 (1939). The defendant in Bowerman published a newspaper article concerning a judicial proceeding. The article was inaccurate, and contained libelous language. Nevertheless, the defendant argued that there was a qualified privilege to report on judicial proceedings. The court first held that the "extrinsic circumstances in the instant case are that defendant's newspaper was reporting a judicial proceeding which created a qualified privilege." Id. at 447, 283 N.W. 642. The Bowerman court also held that the newspaper article was not within the scope of the qualified privilege. The court reasoned that the privilege did not justify inaccuracies in the published report.
45
In Timmis v. Bennett, 352 Mich. 355, 89 N.W.2d 748 (1958), the Michigan Supreme Court adopted the following statement from 33 Am.Jur., Libel and Slander, § 126:
46
The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.
47
Id. at 369, 89 N.W.2d 748 (Emphasis added.)
48
The plaintiff in Timmis, a police officer, claimed that statements made concerning the performance of her official duties were defamatory. The court held that the statements were within the scope of the qualified privilege because of the public's interest in law enforcement matters and the actions of members of the police department.
49
Judge Lively's opinion in Schultz v. Newsweek, 668 F.2d 911, is also instructive. In Schultz, this Court held that the scope of Michigan's qualified privilege is not a question of fact. In a Newsweek article concerning the disappearance of Jimmy Hoffa, the plaintiff was referred to as a "Detroit underworld figure." Four articles which appeared in the Detroit News also discussed the plaintiff. Three of these articles concerned the disappearance of Jimmy Hoffa. Schultz was referred to as a "longtime underworld figure" and one of the last two men that Jimmy Hoffa was to have met before his disappearance. The fourth article discussed the problems encountered by Schultz's sons in their attempt to obtain a liquor license. This article stated that Schultz was a key figure in the investigation of Jimmy Hoffa's disappearance.
50
Schultz brought a libel action in which he conceded that Hoffa's disappearance was a matter of public interest. Nevertheless, Schultz argued that because he was an incidental figure in these articles the scope of Michigan's qualified privilege was a jury question. The defendant publishers argued that the entire report contained in each article was privileged and that there was no issue of scope since Schultz was not a "peripheral" or "incidental" figure. The court rejected Schultz's argument that the scope of the privilege is a matter of fact. The court relied upon Bowerman v. Detroit Free Press, 287 Mich. 443, 283 N.W. 642, and held that the scope of the privilege is a question of law. We agree with the court's holding that the scope of the privilege is to be decided by the court as a question of law.
51
The qualified privilege does not extend, however, to plaintiffs who are not the focus of the alleged public interest publication. A plaintiff who is merely an incidental figure in the broadcast is not, as a matter of law, within the scope of the privilege. See Timmis, 352 Mich. at 369, 89 N.W.2d 748. The policy underlying Michigan's qualified privilege is to promote reporting and comment about matters which are in the public interest. Lawrence v. Fox, 357 Mich. 134, 97 N.W.2d 719. If an individual is involved in some activity or proffers an opinion which is in the public interest, then a news story concerning that individual's activity or opinions is also in the public interest.
52
The same considerations do not apply where the plaintiff has only the most tenuous connection with the public interest subject matter. A newspaper or television broadcast concerning this incidental plaintiff is not in the public interest. The societal interests which the privilege protects are not furthered by expanding the scope of the privilege to include such individuals. Consequently, the scope of Michigan's qualified privilege does not encompass publications or broadcasts where the plaintiff is not the focus of the public interest publication.
53
In this case, Act III focused on the devastating effects of street prostitution on a middle-class neighborhood. The activities or opinions of the street prostitutes would clearly be in the public interest. Moreover, the reactions of residents to the street prostitutes is also in the public interest.
54
Plaintiff's participation in the Broadcast, however, was not in the public interest. There was a nexus between the plaintiff in Schultz v. Newsweek, 668 F.2d 911, and the subject matter of the articles: the disappearance of Jimmy Hoffa. By contrast, Plaintiff's appearance in the Broadcast had absolutely no connection with the subject matter of the Broadcast, i.e., street prostitution and its effect on a Detroit neighborhood. It is undeniable that Plaintiff was at best an incidental figure in the discussion of street prostitution.5 Plaintiff was not a prostitute when this segment of the Broadcast was filmed, nor was she one when the Broadcast was aired. In fact, as noted earlier, it is uncontroverted that Plaintiff has never engaged in prostitution or any sex-related business. Moreover, Plaintiff was not a resident of the Detroit neighborhood discussed during Act III. Instead, she resided in Ferndale, Michigan, when she was filmed and when the broadcast was aired. Although she was not a resident of this neighborhood, her reaction to the street prostitutes may have been in the public interest. However, she was not filmed during a protest march against the presence of street prostitutes, nor was she being harassed by the street prostitutes or the cruising customers. Also, she was not interviewed concerning her reactions to street prostitution. Therefore, her picture as she walked down a public street has absolutely no connection with the subject matter of the Broadcast.
55
We therefore conclude that Plaintiff's participation in the Broadcast was neither in the public interest nor within the scope of Michigan's qualified privilege as a matter of law.
III. FIRST AMENDMENT PRINCIPLES
56
Even though Michigan's qualified privilege does not apply in this case, we must determine whether any constitutional principle requires Plaintiff to prove that ABC acted with actual malice as defined in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. For the reasons below, we hold that no constitutional principle requires that Plaintiff prove actual malice.
57
The Broadcast raises the factual question of whether Plaintiff was depicted as a prostitute or could have reasonably been mistaken for a prostitute. An editorial opinion held by ABC, no matter how pernicious, would be entitled to First Amendment protection. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 3006, 41 L.Ed.2d 789 (1974).
58
The First Amendment, however, does not afford ABC the same absolute protection for misstatements of fact. "(T)here is no constitutional value in false statements of fact." Id. at 340, 94 S.Ct. at 3007. Nevertheless, the Supreme Court has afforded publishers and broadcasters limited protection from liability in defamation actions. In New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the Supreme Court held that publishers and broadcasters could not be liable in defamation actions brought by public officials unless the publisher or broadcaster acted with actual malice. It is clear that Plaintiff is not a public official.
59
The Court extended the New York Times v. Sullivan malice requirement to libel suits brought by public figures. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). "(Public figures) may recover from injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." Gertz, 418 U.S. at 342, 94 S.Ct. at 3008. See Street v. National Broadcasting Co., 645 F.2d 1227, 1233 (6th Cir.), cert. granted, --- U.S. ----, 102 S.Ct. 91, 70 L.Ed.2d 83, cert. dismissed, --- U.S. ----, 102 S.Ct. 667, 70 L.Ed.2d 636 (1981); Walker v. Cahalan, 542 F.2d 681, 684 (6th Cir. 1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1647, 52 L.Ed.2d 357 (1977). The court in Gertz defined "public figures" for purposes of the First and Fourth Amendment as follows:
60
For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. Gertz, 418 U.S. at 345, 94 S.Ct. at 3009.
61
Plaintiff is not a public figure for all purposes. "Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of (her) life". Id. at 352, 94 S.Ct. at 3013. Plaintiff has no general fame or notoriety. See Wolston v. Reader's Digest Association, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979). She also lacks any pervasive involvement in the affairs of society. See Id. at 164, 99 S.Ct. at 2705; Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976).
62
Plaintiff also cannot reasonably be regarded as a limited public figure. Gertz establishes a two-pronged analysis to determine if an individual is a limited public figure. First, a "public controversy" must exist. Gertz, 418 U.S. at 345, 94 S.Ct. at 3009. Second, the nature and extent of the individual's participation in the particular controversy must be ascertained. Id. at 352, 94 S.Ct. at 3013.
63
The Supreme Court has not clearly defined the elements of a public controversy. In Time, Inc. v. Firestone, however, the Supreme Court explicitly rejected the defendant publisher's argument that a "public controversy" should be equated with all controversies of interest to the public. The plaintiff in Firestone was the wife of a scion of a wealthy industrial family. She and her husband obtained a divorce, but the defendant inaccurately described the grounds for the divorce in an article. The Court held:
64
Dissolution of a marriage through judicial proceedings is not the sort of "public controversy" referred to in Gertz, even though the marital difficulties of extremely wealthy individuals may be of interest to some portion of the reading public. Firestone, 424 U.S. at 454, 96 S.Ct. at 965.
65
In this case, the effects of sex-related businesses in general, and the particular effects of street prostitution on a middleclass Detroit neighborhood, may be the kind of "public controversies" referred to in Gertz. The public's interest in the effects of prostitution in a Detroit neighborhood are arguably greater than the divorce proceedings of a wealthy couple. Cf. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154.
66
Even though the subject matter of the Broadcast may be the type of "public controversy" recognized in Gertz, the nature and extent of Plaintiff's participation in this public controversy must still be examined. The nature and extent of an individual's participation is determined by considering three factors: first, the extent to which participation in the controversy is voluntary; second, the extent to which there is access to channels of effective communication in order to counteract false statements; and third, the prominence of the role played in the public controversy. Gertz, 418 U.S. at 344-345, 94 S.Ct. at 3009; Wolston, 443 U.S. at 165-168, 99 S.Ct. at 2706-2707; Hutchison v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). See Wilson v. Scripps-Howard Broadcasting Co., 642 F.2d 371 (6th Cir.), cert. granted, --- U.S. ----, 102 S.Ct. 500, 72 L.Ed.2d 377, cert. dismissed, --- U.S. ----, 102 S.Ct. 984, 71 L.Ed.2d 119 (1981); Street v. National Broadcasting Co., 645 F.2d at 1234. Applying these three factors to the instant case, we conclude that Plaintiff is not a limited public figure.
67
First, Plaintiff did not voluntarily participate in the public controversy surrounding the effects of street prostitution on a middleclass neighborhood in Detroit. In Street v. National Broadcasting Co., 645 F.2d 1227, this Court held that the plaintiff, the prosecutrix and main witness in the Scottsboro rape trial, was a public figure when she appeared in a play concerning that trial. The plaintiff gave press interviews and aggressively proffered her extra-judicial version of the case. In Orr v. Argus-Press, this Court held that the plaintiff was a limited public figure because, inter alia, he voluntarily sought publicity.
68
The instant case is distinguishable from Street and Orr. Plaintiff never sought to obtain publicity for her actions or opinions. In fact, like the plaintiff in Wolston, "(Plaintiff) was dragged unwillingly into the controversy." Wolston, 443 U.S. at 166, 99 S.Ct. at 2707. Plaintiff was never a prostitute, nor was she engaged in any sex-related business. Moreover, she was not a resident of the Detroit middleclass neighborhood focused on during Act III. Finally, it appears that Plaintiff was unaware that she was being photographed. ABC never requested nor received permission to film Plaintiff or include her picture in the Broadcast.
69
Second, unlike the plaintiff in Street, Plaintiff has no access to channels of effective communication in order to counteract the false statements. Following the Broadcast, the press has not clamored to interview her. Cf. Street, 645 F.2d at 1234. Moreover, she does not have the "regular and continuing access to the media that is one of the accouterments of having become a public figure." Hutchinson, 443 U.S. at 136, 99 S.Ct. at 2688. Before Plaintiff's appearance in the Broadcast, she lived in relative obscurity. Her appearance during Act III did not change this fact. Therefore, she did not have any means to effectively contradict the erroneous impression that she was a prostitute.
70
Finally, as noted previously, Plaintiff played no prominent role in the subject matter which was the focus of Act III. In essence, Plaintiff was merely an incidental figure in the discussion of street prostitution. Therefore, the airing of Plaintiff's picture as she walked down the street was not relevant to any examination of the effects of street prostitution on a Detroit neighborhood.
71
The nature and extent of Plaintiff's involvement in the subject matter of Act III leads to the inescapable conclusion that she was not a limited public figure. The Supreme Court has refused to extend the actual malice requirement of New York Times v. Sullivan to plaintiffs who are neither public officials nor public figures. Gertz, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789. Thus, Plaintiff is not required to prove on remand that ABC acted with actual malice.
IV. CONCLUSION
72
We conclude that the Broadcast was capable of a defamatory meaning. Because the Broadcast was susceptible to two interpretations, one defamatory and the other non-defamatory, summary judgment for ABC was improvidently granted. Accordingly, we reverse and remand the case to the district court for proceedings consistent with this opinion.
73
BAILEY BROWN,* Senior Circuit Judge, dissenting.
74
I respectfully dissent. In the first place, after viewing the relevant parts of the documentary several times, I believe that, contrary to the majority opinion, the district court was correct in its determination that the portrayal of Mrs. Clark could not reasonably be construed as defamatory. In the second place, and in any event, I believe that American Broadcasting Companies, Inc. (ABC) enjoyed a qualified privilege under Michigan law.
I.
75
Act III of ABC's documentary focused on the devastating impact of street prostitution on the neighborhoods bordering Detroit's Woodward Avenue "when sex businesses first proliferated on Woodward Avenue in the early 1970s" and the subsequent struggle that occurred "between the quiet, orderly, middle class people who live here, and some street prostitutes and pimps who tried to move in." App. 70. Act III featured interviews of Woodward Avenue area residents, who described their anguish in witnessing blatant public pandering. These residents described how men would be "accosted" by prostitutes as they walked in the neighborhood with their families, how "the pimps were matching the johns and the prostitutes," and how "(t)hose who lived in the neighborhood were subject to conduct they considered inconceivable. The rules they lived by no longer applied." App. 71. The focus of the dialogue then turned to the mortifying experiences suffered by neighborhood women who were mistaken for prostitutes:
MRS. CARR:
76
Whether you're 15 or 45, constantly being approached-it's degrading-feels terrible.
SUE CARR:
77
You want to, you know, just kill 'em ... cause it makes you so angry to be placed down to a hooker's level.
HOWARD K. SMITH (Commentator):
78
According to residents, and Detroit police records, most of the prostitute's customers or johns were white; the street prostitutes were often black.
79
This integrated middle class neighborhood became a safe meeting place for prostitutes and "johns."
80
But for black women whose homes were there, the cruising white customers were an especially humiliating experience.
SHERI MADISON (a black woman):
81
Almost any woman who was black and on the street was considered to be a prostitute herself. And was treated like a prostitute.
PAM HILL:
82
How did that make you feel then?
SHERI MADISON:
83
Outraged ... outraged.
84
Young girls in some cases, high school students were actually approached physically assaulted. Intolerable, absolutely intolerable situations.
85
App. 72-73.
86
During this dialogue, three women were photographed in rapid succession as they walked down a street, the last of which was the plaintiff, Mrs. Ruby Clark. The first two women appeared as the commentator, Howard K. Smith, commented: "This integrated middle class neighborhood became a safe meeting place for prostitutes and 'johns.' "
87
District Judge Julian Abele Cook, Jr., who granted summary judgment for ABC, described these two women:
88
The first woman was white, elderly with two bags; presumably shopping bags, one in each hand, walking along the street. It was a full length view. The second picture was of a (black) woman who appeared to be in her middle age with a package in her arm, coming out of what appeared to be a store.
89
App. 398. The appearance of Mrs. Clark came while the commentator next remarked: "But for black women whose homes were there, the cruising white customers were an especially humiliating experience." Mrs. Clark appeared on the screen for three to five seconds, and only her head and shoulders were shown. The district judge then described Mrs. Clark's appearance:
90
The third picture was that of Mrs. Clark, the plaintiff, who appeared to be walking on a public street without any visible evidence of anything within her hands and, by contrast to the earlier two women, had earrings and what I may describe, though it may not be accurate, as a reasonably fancy or stylish hair style.
91
App. 398. Judge Cook also noted that Mrs. Clark "appeared to be fairly well dressed, though not excessively." App. 399.
92
After Mrs. Clark's libel suit against ABC had progressed through extensive discovery, the parties filed cross-motions for summary judgment. Judge Cook, after viewing the documentary several times, concluded that "(t)here is nothing in (Mrs. Clark's) appearance which would suggest, I think, to the reasonable mind that her activity would, in any way, parallel that of the act of prostitution, as varied as those acts may be," and granted ABC's motion for summary judgment. App. 399-400.
93
I agree with the majority that the proper standard to be used by the district court for its threshold determination whether a defamation action under Michigan law should be dismissed on summary judgment is "whether the Broadcast (of Mrs. Clark walking down the street) was reasonably capable of a defamatory interpretation." Ante at 1213. This standard is more fully explained in Michigan United Conservation Clubs v. CBS News, 485 F.Supp. 893, 902 (W.D.Mich.1980), aff'd, 665 F.2d 110 (6th Cir. 1981) (applying Michigan law):
94
It is a well established rule that it is the duty of the court to determine if a communication is capable of bearing a defamatory meaning. Washington Post Co. v. Chaloner, 250 U.S. 290, 293, 39 S.Ct. 448, 63 L.Ed. 987 (1919); Commercial Publishing Co. v. Smith, (6 Cir.), 149 Fed. 704, 706-707 (1907); Van Lonkhuyzen v. Daily News Co., 203 Mich. 570, 587-588, 170 N.W. 93 (1918); Restatement (Second) of Torts, § 614 (1977). In making this decision, the court must decide two questions: first, whether the communication is reasonably capable of conveying the particular meaning, or innuendo, ascribed to it by the plaintiff; and second, whether that meaning is defamatory in character. Restatement (Second) of Torts, § 614, comment b. If the publication is capable of more than one meaning, and one of these is defamatory, then it is for the jury to determine whether the communication was understood as being defamatory. Washington Post Co. v. Chaloner, supra ; Restatement (Second) of Torts, § 614(b).
95
However, the majority, in asserting that "(w)hether the Broadcast was understood as being defamatory was for the jury to decide," ante at 1213, fails to adequately explain the respective roles of the district court and the jury. "If the publication is capable of more than one meaning," an initial determination made as a matter of law by the district court, "then it is for the jury to determine whether the communication was understood as being defamatory." Id., 485 F.Supp. at 902 (emphasis added).
96
The sequence of events in Michigan United Conservation Clubs well illustrates the operation of these principles. One of the plaintiffs, Mr. Washington, contended that use of his voice from an unrelated interview during a segment of a CBS broadcast about hunting was defamatory. The district court concluded that no reasonable interpretation of the CBS broadcast would convey a defamatory meaning as to Mr. Washington, and therefore there was no issue to be taken to the jury. Our court, affirming the district court, determined:
97
Finally, we agree with the District Court that use of an unattributed tape of Washington's voice as background for a scene of Colorado hunters handling deer carcasses, was not defamatory as a matter of law .... Under these circumstances, this segment of the film was incapable of conveying or supporting the innuendo that Washington suggests.
98
665 F.2d 112 (emphasis added).
99
Mrs. Clark's deposition stated that friends, acquaintances and relatives who watched the program concluded that she was portrayed by it as a prostitute. The majority opinion appears to place some credence on their interpretation of the documentary. However, because the determination whether a publication is reasonably capable of a defamatory meaning is a preliminary question of law for the court, it is clear that the hearsay statements in Mrs. Clark's deposition concerning the interpretation of the broadcast by third parties were irrelevant to the district judge's deliberations.
100
I also disagree with the majority's assertion that Judge Cook "applied an incorrect standard" in granting summary judgment for ABC. The majority complains that Judge Cook "should have granted summary judgment for ABC only if the Broadcast was not reasonably capable of a defamatory meaning." Ante at 1213. However, the record clearly indicates that that was the standard used by Judge Cook, since he carefully scrutinized "the program to determine if Mrs. Clark, under any reasonable criterion, could be viewed as a prostitute or hooker within the context of the program," and concluded that it was not reasonably capable of being interpreted as portraying Mrs. Clark as a common street prostitute. App. at 400-01.
101
The majority opinion adopts an unrealistic standard by claiming that because "the court found it necessary to agonize over the question of whether the Broadcast was defamatory ... the case should have been submitted to the jury." Ante at 1214. If the majority intends to suggest that summary judgment is precluded anytime a district judge finds it necessary to give sensitive consideration to a plaintiff's allegations, that is a curious standard indeed to provide direction to the trial courts.
102
Furthermore, I disagree with the majority's conclusion that "(t)he Broadcast was reasonably capable of two meanings, one defamatory and the other non-defamatory." Ante at 1214. In Washington Post Co. v. Chaloner, 250 U.S. 290, 39 S.Ct. 448, 63 L.Ed. 987 (1919), the Supreme Court explained the role of a judge in reviewing an allegedly defamatory publication: " 'A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it.... When thus read, if its meaning is so unambiguous as to reasonably bear but one interpretation, it is for the judge to say whether that signification is defamatory or not.' " Id. at 293, 39 S.Ct. at 448, quoting Commercial Pub. Co. v. Smith, 149 F. 704, 706-07 (6th Cir. 1907). I believe that when examined in its proper context, Mrs. Clark's appearance on the ABC broadcast unambiguously portrayed her as a middle-class resident of the neighborhood affected by the invasion of the prostitutes, not as one of the prostitutes.
103
The majority opinion inaccurately contends that the particular segment of the broadcast in which Mrs. Clark appeared had its "focus on street prostitution." Ante at 1213. Therefore, because the audio portion of the broadcast had earlier noted that "(t)he street prostitutes were often black," the majority takes the unusual position that the appearance of Mrs. Clark, a "slim, attractive, stylishly dressed" black woman wearing large earrings and appearing to be in her early to mid-twenties suggested the possibility that she was a street prostitute.
104
On the contrary, the theme of this part of ABC's documentary was the invasion by sex-related businesses of this middle-class, integrated Detroit neighborhood and its impact on women in the area who were not street prostitutes. Throughout the broadcast, whenever a prostitute was shown, ABC took great pains to convey the message that a prostitute was being portrayed. Such things as suggestive clothing, suggestive walking, or overt acts of solicitation, which the district court correctly determined were not present in the case of Mrs. Clark's appearance, were utilized to pinpoint the portrayal of streetwalkers in the earlier segment of the documentary. But the particular segment focusing on the anguish suffered by Woodward Avenue area residents from the influx of prostitution showed no obvious prostitutes. Instead, the women who appeared during this segment of the program were either being interviewed about the problems facing the neighborhood or were shown, as was Mrs. Clark and the other two women, walking in broad daylight on the street. The other two women, who appeared just prior to Mrs. Clark, admittedly were not portrayed by the broadcast as prostitutes. However, the majority opines that the striking contrast between Mrs. Clark and the other two women, whom the majority opinion characterizes as "matrons," makes it unclear "whether (Mrs. Clark) is a resident of this middle class neighborhood or one of the street prostitutes who plagued this community." Ante at 1213.
105
Plaintiff, for obvious reasons, is not contending that her appearance alone, in isolation from the broadcast, could reasonably be construed as giving viewers the impression she is a prostitute.1 Indeed, after viewing the film, I am in total agreement with Judge Cook that there is nothing about Mrs. Clark's appearance that would convey to the reasonable mind the impression that she was a common street prostitute. It is obvious from viewing the film that Mrs. Clark was one of the "quiet, orderly, middle class people" who lived in the neighborhood, not one of the "street prostitutes" trying to move in. Nor is it contended that Mrs. Clark's race reasonably led to the innuendo that she was a prostitute, because although the commentator had remarked that the "street prostitutes were often black," he had also noted the dilemmas faced by non-prostitute black women in the neighborhood facing harassment from the "cruising white customers." The woman immediately preceding Mrs. Clark's appearance was also black; however, all are in agreement that she was not portrayed as a prostitute.
106
The majority concludes that the erroneous impression that Mrs. Clark was a prostitute arises when her appearance was juxtaposed with the appearance of the two "matrons." However, Mrs. Clark's appearance was entirely consistent with a middle class background, and her age in comparison with the two women preceding her appearance was not a reasonable distinguishing basis for concluding she was a prostitute while the other two women were middle class residents of the neighborhood.
107
The majority contends that the defamatory impression that Mrs. Clark was a prostitute was amplified by the audio comments of the documentary at the time of Mrs. Clark's brief appearance on the screen and the comments immediately following her appearance by Sheri Madison, a black female resident of the neighborhood who was interviewed concerning the "invasion." Those comments were as follows:
108
But for the black women whose home were there, the cruising white customers were an especially humiliating experience. (Sheri Madison's remarks:) Almost any woman who was black and on the street was considered to be a prostitute herself and was treated like a prostitute.
109
Prior to this point in the documentary, the focus had switched from the street prostitutes themselves to the incidental effects of the street prostitution invasion. Mrs. Clark's appearance can only be reasonably capable of the interpretation that she was a member of that group of middle class black women in the neighborhood who were subject to being accosted by "johns" looking for prostitutes among the women in the neighborhood. It is unrealistic to conclude that, because ABC indicated that Mrs. Clark's presence on the street could subject her to the humiliating experience of being mistaken for a prostitute, viewers of the program could also reasonably mistake Mrs. Clark's portrayal as being that of a common street prostitute.
II.
110
Although I would affirm the district court solely on the basis that the ABC broadcast was not reasonably capable of a defamatory interpretation, I am constrained to comment on the majority's statements concerning the application of Michigan law with respect to qualified privilege. If the Michigan qualified privilege, which assumes that the broadcast was defamatory, applies to the documentary, there would be no liability for the broadcast because there was no showing that ABC knowingly or recklessly defamed Mrs. Clark. Indeed, there has been no contention that ABC ever intended for Mrs. Clark's appearance to be given the interpretation that she is a prostitute.
111
The majority has correctly noted that the applicability of the Michigan qualified privilege to publish allegedly defamatory statements is a question of law for the courts to determine, as is the proper scope of the qualified privilege. However, the majority opinion takes the stance that ABC did not properly limit the scope of its documentary to the purpose of communicating the concerns of Woodward Avenue area residents about the distressing invasion of street prostitution when it included Mrs. Clark in the broadcast. Consequently, the majority concludes that the Michigan qualified privilege does not apply because "the scope of Michigan's qualified privilege does not encompass publications or broadcasts where the plaintiff is not the focus of the public interest publication." Ante at 1216. However, Michigan law does not countenance such a narrow view of the qualified privilege. A fair reading of Michigan law indicates that the appearance of an individual in a public interest documentary is within the scope of a qualified privilege attaching to that documentary as long as the individual has a reasonable connection with the subject matter of the documentary. The ABC documentary illustrated the impact on the women in an entire neighborhood from the invasion of the sex-related businesses. Because Mrs. Clark was part of this broad category of neighborhood women who were subject to the humiliation of misidentification as a prostitute, her appearance was within the scope of the qualified privilege.
112
In Timmis v. Bennett, 352 Mich. 355, 89 N.W.2d 748 (1958), the plaintiff, a policewoman, alleged that she had been defamed by an attorney's letter inquiring about plaintiff's efforts to have the attorney's client declared mentally incompetent. The Michigan Supreme Court determined that a communication is privileged if made by a party having "a moral or social duty" to make the communication and directed to a "person having a corresponding interest or duty." The Court then held:
113
The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty, and is not restricted within any narrow limits.
114
89 N.W.2d at 755. In addressing the scope of the privilege, the Court first determined that the purpose of the letter was to inquire about the activities of Kalamazoo law enforcement officials. Since the Court assumed that the public welfare embraced concerns about law enforcement, it determined that "the doctrine of qualified privilege may properly be regarded as including statements made in good faith by a citizen of a community having, or claiming to have, special knowledge or information bearing on such matter of public concern and communicated to others concerned or interested." Id. See also, Nuyen v. Slater, 372 Mich. 654, 127 N.W.2d 369 (1964); and Bufalino v. Maxon Brothers, Inc., 368 Mich. 140, 117 N.W.2d 150 (1962).
115
It is not disputed that ABC has an "interest" or "duty" to communicate to its viewers the concerns about the effects of street prostitution on the residents of surrounding residential areas in Detroit, nor is it disputed that ABC's viewers have a corresponding "interest" in receiving that information. Orr v. Argus-Press Co., 586 F.2d 1108, 1113 (6th Cir. 1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979) (applying Michigan law) ("Everyone, citizen or reporter, has the right to comment on matters of public importance ...."). There is no contention that ABC broadcast its documentary in bad faith, or that its publication of the broadcast was in any way improper.
116
The case of Lawrence v. Fox, 357 Mich. 134, 97 N.W.2d 719 (1959), is also highly instructive. Lawrence indicates that the threat of libel, which could "chill" the vigilance of the press, led to Michigan's adoption of the defense of privilege for certain publications. However, the privilege is not a constant, but operates on a continuum from "no privilege" for loose gossip to "absolute privilege" for judicial and legislative utterances. Public policy considerations "of lesser intensity" than those for absolute privilege would cause a limited, qualified privilege to be applied. 97 N.W.2d at 721. Lawrence, citing Bowerman v. Detroit Free Press, 287 Mich. 443, 283 N.W. 642 (1939), determined that the external circumstances or occasion of the communication, not the actual words used, would determine the scope of the privilege. The Michigan Supreme Court concluded: "(I)t is for the court to determine whether or not the external circumstances surrounding the publication are such as to give rise to a privileged occasion." 97 N.W.2d at 722.
117
This court in Schultz v. Newsweek, Inc., 668 F.2d 911 (6th Cir. 1982) (applying Michigan law) concluded:
118
The court must decide as a matter of law whether there is a recognized public or private interest which would justify the utterance or publication. The privilege attaches to reports on matters of general public interest even though the plaintiff is a private individual.
119
Id. at 918. Similarly, the district court opinion that was affirmed in Schultz v. Newsweek, Inc., reported at 481 F.Supp. 881 (E.D.Mich.1979) and authored by now Circuit Judge Kennedy, stated that "(u)nder Michigan law, there is a qualified privilege to publish information which is in the public interest," id. at 884, and implied that the entire article comprising the communication is within the scope of the privilege as long as the communication does not stray into discussing areas of concern not within the reasonable limits of the public interest.
120
In Schultz v. Reader's Digest Ass'n, 468 F.Supp. 551 (E.D.Mich.1979) (Freeman, J.) (applying Michigan law),2 plaintiff argued that the qualified privilege did not apply because he was an incidental figure in news stories concerning the disappearance of Jimmy Hoffa. Again, the court indicated that the "scope" of the qualified privilege is determined by the subject matter of the communication, in this case "the question of who Hoffa was to meet on the day he disappeared," and not necessarily the persons discussed in the articles themselves:
121
(T)he Court is of the opinion that an article involving a matter of public concern is subject to a qualified privilege under Michigan law. Although there can be no dispute that the article in question involved a matter of public concern, the plaintiff contends that the qualified privilege should not be applied to him because he was not a central figure in the Hoffa disappearance. Whatever role Schultz played in this matter, it is clear to the Court that the question of who Hoffa was to meet on the day he disappeared was and is an important matter of public concern.
122
Id. at 562.
123
The majority opinion seems to concede that the impact of street prostitution on surrounding residential neighborhoods is in the public interest.3 Therefore, the majority apparently would concur that the examination of this dilemma by ABC's documentary was in the public interest and subject to a qualified privilege as a general proposition. However, the majority opinion contends that Mrs. Clark's particular appearance on the program is not within the public interest focus of the documentary because "plaintiff has only the most tenuous connection with the public interest subject matter." Ante at 1216. The majority concludes that "plaintiff is not the focus of the public interest publication" because plaintiff has never been a prostitute, she was not a resident of the neighborhood being invaded by the sex-related businesses and she was not interviewed about her reactions to the street prostitution; accordingly, "her picture as she walked down a public street has absolutely no connection with the subject matter of the Broadcast." Ante at 1217.
124
However, as previously noted, Michigan case law focuses on the general subject matter of a communication in determining if the qualified privilege applies. In this connection, it is undeniable that the subject matter of this portion of the ABC documentary was the impact of the invasion of sex-related businesses on the female residents of this integrated middle class Detroit neighborhood who were forced to run the risk of being mistaken for prostitutes and possible solicitation by using the public sidewalks in their neighborhoods. It defies reality to contend that Mrs. Clark's appearance in the neighborhood of the sex businesses on Woodward Avenue, which would potentially subject her to the same abuse and harassment that the documentary was addressing, was so unrelated to the subject matter of the broadcast as to make her an "incidental figure" with "no connection" with the broadcast. See ante at 1216.
125
The majority has made the unsupported contention that, since Mrs. Clark was a resident of Ferndale, Michigan, she was not a resident of the neighborhoods blighted by the invasion of the sex businesses, and consequently the abuse suffered by women in those neighborhoods was not a problem peculiar to her. However, the majority opinion neglects to note that Woodward Avenue intersects Ferndale, Michigan, which is a suburb bordering the city of Detroit. The record adequately demonstrates that, although Mrs. Clark claims she did not frequent the immediate vicinity of the sex businesses, their location was not far from her home.
126
Mrs. Clark's appearance in the ABC documentary should be subject to the Michigan qualified privilege because the subject matter of the documentary was in the public interest and her appearance bore a reasonable relationship to that general subject matter.
CONCLUSION
127
In conclusion, I am persuaded that Judge Cook did not err in determining that Mrs. Clark's appearance in the broadcast could not reasonably be construed as portraying her as a common street prostitute. I also conclude that in any event, even assuming that Mrs. Clark's appearance could be interpreted as defamatory, Michigan's qualified privilege should be applied to this portion of the documentary, which did not exceed the bounds of the public interest subject matter of the documentary. While under current precedents it appears that the First Amendment is not implicated, it appears to me that the majority's disposition of this case will make the filming of television documentaries unduly risky and therefore the majority's disposition is not in the public interest.
ORDER
128
On September 21, 1982 by order of the Chief Judge of the Circuit you were advised that the motion for rehearing en banc in the above-styled case had been granted. The Chief Judge has now directed me to advise that his ruling was made in error and that in fact the 5-4 vote (one active judge being disqualified) failed to attain the 6 affirmative votes required to constitute "a majority of the circuit judges who [were] in regular active service" within the meaning of Rule 35(a) of the Federal Rules of Appellate Procedure. See also Zahn v. International, 469 F.2d 1033 (2d Cir. 1972), aff'd. on the merits, 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Boraas v. Village of Bell Terre, 476 F.2d 806 (2d Cir. 1973), rev'd on the merits, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) (rehearing en banc denied though four judges of the eight member court favored it); International Business Machine Corp. v. United States, 480 F.2d 293 (2d Cir. 1973); Boyd v. Lefrak Organization, 517 F.2d 918 (2d Cir. 1975); United States v. Martorano, 620 F.2d 912 (1st Cir.), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980).
ORDER DENYING PETITION
FOR REHEARING
129
A majority of the judges of the Court having not favored rehearing en banc, the petition for rehearing has been referred to the hearing panel for disposition.
130
Judge Brown would grant the petition to rehear for the reasons set out in his dissent to the majority opinion.
131
Upon consideration, the Court concludes that the petition for rehearing is without merit. Accordingly, it is ORDERED that rehearing be and hereby is denied.
1
In addition to Plaintiff's deposition, the parties engaged in other forms of discovery. The parties obtained two sets of interrogatories from each other. Plaintiff deposed Pam Hill, the writer, director, and producer of the Broadcast. Moreover, Plaintiff provided ABC with the names of at least nine individuals who viewed the Broadcast and thought Plaintiff was portrayed as a prostitute. However, these potential witnesses were never deposed
2
The district court did not reach the issue of whether ABC was protected by a qualified privilege. The court did hold, however, that the Broadcast was in the public interest
3
Rule 56(c), Fed.R.Civ.P. provides:
Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
4
Plaintiff argues that the New York Times v. Sullivan standard is not applicable in this case because she is not a "public figure". The Supreme Court has held that the constitutional privilege embodied in the New York Times v. Sullivan standard is not applicable to private individuals who are not "public figures". Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The Court in Gertz also held that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurious to a private individual." Id. at 347, 94 S.Ct. at 3010
In Schultz v. Newsweek, Inc., 668 F.2d 911 (6th Cir. 1982), this Court held that Michigan's privilege applies "even though the plaintiff is a private individual". Therefore, if the qualified privilege applies, even a private individual must prove "actual malice" as defined in New York Times v. Sullivan.
5
That plaintiff is merely an incidental figure in the Broadcast is also evident from ABC's pleadings in this case. First, in its Answer, ABC claimed as an affirmative defense that "(T)he portions of (t)he news report of which plaintiff complains were not of and concerning her." App. 8. Second, in its summary judgment motion, ABC claimed that "(t)he balance of the news documentary was not 'of and concerning' Plaintiff." App. 33
*
Circuit Judge Brown retired from regular active service under the provisions of 28 U.S.C. § 371(b) on June 16, 1982, and became a Senior Circuit Judge
1
Indeed, it would be anomalous to hold ABC liable for the impression of its viewers that Mrs. Clark was a prostitute if that interpretation were directly attributable to the way that she appeared while being photographed
2
There are two cases from the United States District Court for the Eastern District of Michigan involving Leonard Schultz. The Newsweek litigation, Schultz v. Newsweek, Inc., 481 F.Supp. 881 (E.D.Mich.1979) (Kennedy, J.), aff'd, 668 F.2d 911 (6th Cir. 1982), addressed news articles about Schultz's involvement in attempts by his sons to obtain a state liquor license as well as Schultz's alleged connection with the disappearance of Jimmy Hoffa. The Reader's Digest case, Schultz v. Reader's Digest Ass'n, 468 F.Supp. 551 (E.D.Mich.1979) (Freeman, J.) was concerned only with a publication about the Hoffa controversy
3
Judge Cook, although he did not reach the qualified privilege issue in granting summary judgment, did conclude "that the broadcast was of public interest." App. 396
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89 F.Supp.2d 976 (1999)
UNITED STATES of America, ex rel. Losardo LUCAS, Petitioner,
v.
George WELBORN,[1] Warden, Respondent.
No. 97 C 3158.
United States District Court, N.D. Illinois, Eastern Division
October 5, 1999.
*977 *978 Benjamin Earl Starks, Starks & Boyd, P.C., Chicago, IL, Thomas M. Peters, Chicago, IL, for Petitioner.
Losardo Lucas, Tamms, IL, pro se.
Lisa Anne Hoffman, William Lloyd Browers, Illinois Attorney General's Office, Chicago, IL, for Respondent.
MEMORANDUM OPINION AND ORDER
ASPEN, Chief Judge.
On June 3, 1986, habeas petitioner Losardo Lucas was convicted of murder by a jury in the Circuit Court of Cook County and was sentenced to 35 years in prison. Lucas appealed his conviction and sentence to the Illinois Appellate Court, claiming that he was not proven guilty beyond a reasonable doubt, that the trial court erred in limiting his cross-examination of a crucial State witness, and that his 35-year sentence was excessive. The Appellate Court affirmed both his conviction and sentence, and Lucas did not file a petition for leave to appeal the decision to the Illinois Supreme Court.
On December 30, 1993, Lucas filed a petition for post-conviction relief in the Circuit Court of Cook County, alleging *979 that certain witnesses testified falsely at his trial. Attached to the petition were three affidavits, two from State witnesses stating that their testimony at Lucas's trial had not been truthful, and one from another person who was not called as a witness but whose statement conflicts in part with that of one of the witnesses who testified for the State. In 1996, the court dismissed Lucas's post-conviction petition as untimely filed. The Illinois Appellate Court affirmed the dismissal for untimeliness, and again Lucas declined to seek review by the Illinois Supreme Court.
Lucas petitioned this court for a writ of habeas corpus in April 1997. His second amended petition (filed in November 1998) raises the following six grounds for relief: (1) judicial bias, because his trial was presided over by Judge Thomas Maloney, who was later convicted for judicial misconduct and who opposed an aldermanic candidate politically associated with Lucas's father; (2) judicial misconduct by Judge Maloney as Lucas's trial; (3) prosecutorial misconduct in the form of references to Lucas's gang affiliation and the use of perjured testimony; (4) violation of Lucas's right to a public trial based on Judge Maloney's exclusion of certain observers from the courtroom during the trial; (5) ineffective assistance of trial counsel for failing to interview and call two crucial witnesses; and (6) ineffective assistance of appellate counsel for failing to raise significant issues on appeal.
Before we may review the merits of his habeas petition, Lucas must both: "(1) exhaust all remedies available in state courts; and (2) fairly present any federal claims in state court first, or risk procedural default." Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir.1996) (citations omitted). These requirements ensure that Illinois will have the first chance to review and correct any alleged violations of its prisoners' federal constitutional rights. See McGowan v. Miller, 109 F.3d 1168, 1172 (7th Cir.1997). Lucas will be deemed to have "exhausted" his state court remedies if he has given the highest court in the state "a fair opportunity to consider the constitutional issue" presented, or if he has "no further available means for pursuing review of his conviction in state court." Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir.1985). Both parties agree that no avenues remain open for Lucas to present claims attacking his conviction in state court, so we conclude that he has exhausted his state remedies and turn now to the issue of procedural default.
Procedural default occurs either when a petitioner fails to present a federal constitutional issue fairly to the state courts on direct or post-conviction review, see Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir.1995), or when a state court rejects a claim on an independent and adequate state law ground. See Hogan v. McBride, 74 F.3d 144, 146 (7th Cir.1996). Lucas did not present any of the claims he makes in his habeas petition to the state courts for their review, so he is procedurally barred from raising them here unless he can "excuse" his default by demonstrating "cause for the default and actual prejudice as a result of the alleged violation of federal law, or ... that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To establish "cause" for default of a claim, Lucas must show "that some objective factor external to the defense impeded counsel" from presenting the claim to the state courts. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
Lucas first contends that Judge Maloney was biased against him both because Lucas did not bribe Judge Maloney (he argues that "[t]o cover up his bribe taking, Maloney acted like a ruthless proprosecution judge in all non-bribed cases") and because Lucas's father, a precinct captain in the First Ward, campaigned on behalf of an aldermanic candidate who ran against one of Judge Maloney's close associates. Certainly Lucas has cause for failing to raise this claimat least the bribetaking *980 component of itin his direct appeal, since it is based on new information that was not available at the time of Lucas's direct appeal. However, Judge Maloney was convicted on April 16, 1993, so Lucas could have raised the bias and corruption issue in his December 30, 1993 petition for post-conviction relief; because he did not bring this issue to the attention of the state court at that time but could have, the claim is procedurally defaulted. See Lemons, 54 F.3d at 361; Farrell v. Lane, 939 F.2d 409, 411 (7th Cir.1991). Lucas says that he told the lawyer representing him in his post-conviction proceedings to raise the judicial bias claim, but that the lawyer did not. He proceeds to list the things his post-conviction counsel did wrong, ultimately charging that the lawyer was "negligent and ineffective." But Lucas cannot rely on this argument to establish cause for his default because he "had no constitutional right to counsel when mounting his collateral attack on his conviction." Morrison v. Duckworth, 898 F.2d 1298, 1300-01 (7th Cir.1990) (citing Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987)); see also Pitsonbarger v. Gramley, 141 F.3d 728, 737 (7th Cir.1998).
The question "whether attorney error absent a right to effective assistance of counsel can ever be an external impediment constituting cause for a procedural default," Morrison, 898 F.2d at 1301, is not critical to our disposition because even if Lucas could rely on the errors of his post-conviction counsel to show "cause" for not raising his bias claim in state court, he has not shown "actual prejudice" as a result of the alleged corruption. Lucas has the burden of explaining "not merely that the [alleged] errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Carrier, 477 U.S. at 494, 106 S.Ct. 2639. And the Seventh Circuit has pointed out that
[the fact] that a judge who takes bribes to acquit defendants in some cases may have an incentive in others to throw the book at the defendant in order to avoid charges of being soft on criminals is not proof that he was not impartial in the criminal cases in which he was not bribed. It is merely a suspicious circumstance that warrants further inquiry.
Cartalino v. Washington, 122 F.3d 8, 10 (7th Cir.1997) (citing Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 1797, 138 L.Ed.2d 97 (1997)); see also U.S. ex rel. Dower v. O'Sullivan, No. 98 C 2415, 1999 WL 98340, at *4 (N.D.Ill. Feb.19, 1999) ("Bracy did not signal any notion that all of the numerous convictions over which Maloney had presided during his 13-year tenure on the Circuit Court have become vulnerable to federal habeas attackon the contrary, that case involved some direct linkages between Maloney's proved corruption and the circumstances of Bracy's murder trial and death sentence.") The petitioners in both Bracy and Cartalino relied not only on Judge Maloney's conviction for bribe-taking in other cases, but made "specific allegations" in support of their claims that Maloney was actually biased in their cases, pointing to enough additional evidence to establish "good cause" for discovery or an evidentiary hearing. Lucas, on the other hand, makes only conclusory assertions (claiming that at his trial Maloney disparaged the defense's evidence and theories and displayed hostility toward Lucas and his attorney that "was apparent to everyone in the courtroom, particularly the jurors"), which, without more, will not suffice to meet Lucas's burden of proving actual judicial bias in his case, and "a mere appearance of bias, of partiality, is not enough" to get an evidentiary hearing. Cartalino, 122 F.3d at 11 (citing Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1372 (7th Cir.1994) (en banc)). We are thus unable to excuse Lucas's procedural default and cannot consider the merits of his judicial bias claim.
Lucas also failed to present to the state courts his claim that Judge Maloney *981 engaged in judicial misconduct at Lucas's trial by intervening on behalf of the prosecutor, thus bolstering the case against Lucas.[2] Lucas could have made these allegations on direct appeal or in his post-conviction proceedings, since at those stages he knew what had transpired at trial and he had access to the trial transcripts to which he refers in his habeas petition. Lucas does not demonstrate that an "objective factor external to the defense" constitutes cause excusing his failure to raise this claim in the state courts, so we will not consider it here. Carrier, 477 U.S. at 488, 106 S.Ct. 2639.
Lucas's third claim is that the prosecutors engaged in misconduct at his trial both by introducing highly prejudicial evidence of his gang affiliation without establishing its relevance or laying a proper foundation and by knowingly using perjured testimony against him. Lucas defaulted the first part of this claim, by failing to raise it before the state courts in his direct appeal or post-conviction petition. And although ineffective assistance of counsel may be considered cause for a procedural default, see Carrier, 477 U.S. at 488, 106 S.Ct. 2639, Lucas may not rely on this argument to establish cause here because he never presented any ineffective assistance of counsel claims to the state courts for their review when he had a chance, in his post-conviction petition. See Momient-El v. DeTella, 118 F.3d 535, 541-42 (7th Cir.1997) (claim of ineffectiveness of appellate counsel not raised first in state post-conviction petition cannot be relied upon as cause to excuse procedural default at federal habeas stage).
As for the second part of the claim, although we could arguably construe Lucas's post-conviction petition as having put the state court on notice that the prosecutors used perjured testimony against him at the trialsince the post-conviction petition alleges that certain witnesses testified falsely at the trial and attached to it were affidavits from two of the witnesses alleged to have lied under oaththe claim is still procedurally defaulted. The trial court's dismissal of Lucas's post-conviction petition as untimely filed, affirmed by the Illinois Appellate Court's finding that Lucas had not provided sufficient evidence that his delay in filing the petition was not due to his own culpable negligence, see People v. Lucas, No. 1-95-0204, at 4 (Ill. App.Ct. July 30, 1996), constitutes an independent and adequate state procedural ground supporting the dismissal, on which the state court "clearly and expressly" relied in dismissing the petition. See Coleman, 501 U.S. at 735, 111 S.Ct. 2546. For this reason we cannot consider Lucas's claim in this Court unless he can show cause for the untimely filing and prejudice resulting therefrom. See id. at 750, 111 S.Ct. 2546. While Lucas offers no grounds for cause, he repeatedly mentions the ineffectiveness of his post-conviction counsel, so we suspect that he also blames that attorney for the procedural default of claim three. But because there is no constitutional right to counsel in collateral post-conviction proceedings, see, e.g., Morrison, 898 F.2d at 1301, we cannot excuse Lucas's failure to file a timely post-conviction petition as the result of ineffective post-conviction counsel.
Lucas's fourth claim is that his right to a public trial was violated when Judge Maloney excluded members of the public from the courtroom during Lucas's trial based upon Maloney's belief that the observers were Lucas's friends who were affiliated with a gang and whose presence intimidated the State's witnesses. Lucas offers no cause for failing to present this claim to the State courts for review either on direct appeal or in his post-conviction proceedings, so we cannot consider it here.
Lucas's claim of ineffective assistance of trial counsel was not raised in his direct appeal, which is not surprising *982 given that Lucas was represented by the same attorney at his trial and on appeal. In these situations, we excuse the failure to raise ineffectiveness claims on direct appeal. See Barnhill v. Flannigan, 42 F.3d 1074, 1077-78 (7th Cir.1994) (where trial counsel is also appellate counsel, petitioner is not barred from raising ineffective assistance of counsel for the first time in a collateral attack). But Lucas had another opportunity to raise the issue, with new counsel, in his post-conviction proceedings, and because he did not, he waived the right to raise the issue in federal court. See Farrell, 939 F.2d at 411. Similarly, Lucas should have raised his claim of ineffective appellate counsel in his post-conviction petition, as such claims are considered procedurally defaulted for federal habeas purposes if they are not first brought to the attention of the state courts in a petition for post-conviction relief. See Lemons, 54 F.3d at 360. Lucas insists that his counsel at the post-conviction stage could have and should have argued that Lucas's trial and appellate attorney was ineffective, but this does not excuse his default sinceas we observed earlier there is no constitutional right to counsel at the post-conviction stage. See Morrison, 898 F.2d at 1301.
Lucas argues that enforcing the default of his claims would result in a "fundamental miscarriage of justice," but this "narrow" exception is limited to "extraordinary" cases where the petitioner is actually innocent, and not merely legally innocent, of the crime of conviction. See Steward v. Gilmore, 80 F.3d 1205, 1212 (7th Cir.1996); Lemons, 54 F.3d at 361 n. 3 (citing Carrier, 477 U.S. at 496, 106 S.Ct. 2639). To fall within this exception, Lucas must "support his allegations of constitutional error with new reliable evidence that was not presented at trial," and he must show "that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." See Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
Lucas does not point to sufficient evidence of his actual innocence to invoke the fundamental miscarriage of justice exception. First, Lucas presents the affidavits of two witnessesBrandon Howard and Erskine Howardwho state that they did not testify truthfully at Lucas's trial, but he does not provide us with any information in support of the reliability and trustworthiness of the recantations, failing to explain how the affidavits were obtained and whether the witnesses came forward to recant on their own or only after being contacted by Lucas or his attorneys. Second, the credibility of Brandon Howard's recanting affidavitwhich is not even signedis further undermined by Brandon's rebuttal testimony at trial, during which he explained that Lucas's sister tried on two occasions to convince him to change his testimony and say that he had lied to the police, but that he told her that he would not change his testimony because he had not lied and the police did not force him to make the statement he made. And another part of Brandon's testimony about a fight he witnessed between Lucas and the victim in 1984 in which Lucas made a statement that could be construed as a threat to kill the victim was corroborated by further witness testimony. Overall, we do not find Brandon Howard's recanting affidavit to be the sort of trustworthy and reliable evidence required in order to avoid procedural default by a claim of actual innocence.
Moreover, Lucas has not shown that it is more likely than not that no reasonable juror would have convicted him in light of the Brandon and Erskine Howard recantations. Even without the testimony of the Howard brothers, there was sufficient evidence presented at the trial on which the jury could have based its finding of guilt, such as the testimony of Belinda Moffett that Lucas confessed to her and showed her the gun that he used to commit the murder, the testimony of two police detectives who took statements implicating Lucas following the shooting, and the testimony of a clinic doctorcorroborated by *983 the clinic's recordsstating that Lucas was not seen or treated there on the day of the shooting and thus impeaching Lucas's testimony and part of his alibi. At best, Lucas's evidence shows that it would be possible for a juror to find him not guilty, not that it would be impossible for any reasonable juror to find him guilty, so we cannot excuse his procedural default on fundamental miscarriage of justice grounds.
Lucas also presents the affidavit of Diane Cunningham, in which she states that she did not see or talk to Lucas on the day of the shooting and thus casts doubt on the trial testimony of her niece, Belinda Moffett, who testified for the State saying that she was at Cunningham's apartment and heard gunshots, after which Lucas knocked on the door and Belinda refused to let him in. Lucas does not explain the circumstances underlying Cunningham's affidavit, nor does the affidavit indicate that Cunningham would have testified at Lucas's trial had she been contacted by his attorneys at the time. Even if Cunningham had testified, however, the jury still could have chosen to believe Belinda over Cunningham. And Cunningham's affidavit merely indicates that she did not see or talk to Lucas that day; it does not say that Lucas did not knock on the door of her apartment or that Belinda never answered Cunningham's door. Even if it did say so, it would discredit only a minor portion of Belinda's testimony, as Belinda also recalled seeing Lucas in the building lobby later that day and then speaking to him privately, at which point he told her that he killed the victim and showed her the gun that he used. Again, while Lucas's evidence shows that it would be possible for a juror to find him not guilty, he does not demonstrate that it would be impossible for any reasonable juror to find him guilty, and for this reason we cannot apply the fundamental miscarriage of justice exception to procedural default in this case.
Because Lucas has failed to meet the procedural requirements for federal habeas review, we are precluded from considering the merits of his § 2254 petition. We therefore deny Lucas's petition for writ of habeas corpus. It is so ordered.
NOTES
[1] Pursuant to Federal Rule of Civil Procedure 17(a), Warden George Welborn has been substituted for Jack Hartwig as Respondent in this case, because Petitioner Lucas is presently incarcerated at Tamms Correctional Center and is therefore in Welborn's custody.
[2] Lucas claims that Maloney asked the prosecution's witnesses 42 questions, 37 of which resulted in answers that hurt Lucas's case, and that Maloney overruled 42 of defense counsel's 60 objections while only overruling 20 of the prosecution's 49 objections.
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492 S.W.2d 410 (1973)
Lillie WALPOLE, Appellant,
v.
Irene Kelly LEWIS, Appellee.
No. 5-6198.
Supreme Court of Arkansas.
March 19, 1973.
*412 L. A. Hardin, Little Rock, for appellant.
Curtis E. Rickard, Benton, for appellee.
FOGLEMAN, Justice.
Lillie Walpole brings this appeal from a judgment of a probate court holding that certain attempted deletions in one paragraph of a purported will of Lovie Harris were ineffective because the result of eliminating the words stricken would increase the estate that appellant would take. She asserts two points for reversal: first, that the holographic will requires no attestation, and, second, that the "strike outs" and obliterations made by the testatrix on her will operate only as a revocation of the parts stricken and obliterated without the necessity of any attestation.
Sam Gibson was appointed administrator of the estate of Lovie Harris on the 16th day of March, 1972. Soon after his appointment, he went to the house where his decedent had lived to remove her personal property, and found some papers and documents, including an abstract, old receipts, and a handwritten will dated July 3, 1961, in a box in a closet. He passed the will along to his attorney, Fred Briner. On March 30, 1972, he presented to the probate court this will, a typed instrument of a testamentary nature dated June 3, 1967, which appeared to bear the unattested signature of Lovie Harris, and another typed instrument dated in October 1968, which was also signed "Lovie Harris" without attestation. Gibson, by petition, asked the court to determine the validity of the various wills.
Appellant filed an answer, alleging that Lovie Harris had told her that she had bequeathed the homeplace to appellant, and prayed that the will of July 3, 1961, be admitted to probate, since that will, as altered, was consistent with these statements. Irene Kelly Lewis petitioned the court to admit the same will to probate, but to disregard the obliterations as not having been made with the intent of revoking any part of the will. The heirs of Lovie Harris, insofar as known to the administrator, were all collateral heirs, but neither of the responding parties was among them. After hearing evidence, the probate court admitted the will to probate, reciting in its order that it was a holographic will, but held that the "strike outs" in paragraph one were ineffective as a revocation, as they, in effect, made a new testamentary disposition, requiring attestation, which was lacking. The court held that the "strike outs" in two paragraphs of the second page constituted a revocation of those paragraphs because they eliminated specific bequests, and there was no residuary clause. The court directed that this will be admitted to probate, insofar as the first paragraph was concerned but denied effect to the two paragraphs on page two.
The will in question is reproduced as an appendix as it appears in the record in order to aid in an understanding of our disposition of the case.
*413 The parties and the probate court treat the will in question as if it must be regarded as holographic. While it probably qualifies as such, we consider it also to be entitled to probate as an attested will. The same will can be sustained both as holographic and attested. Mason v. Bowen, 122 Ark. 407, 183 S.W. 973, Ann. Cas.1917D 713. We consider probate appeals de novo. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487. We consider the evidence sufficient to establish the will as an attested will.
An instrument signed at the end by the testatrix, in the presence of two attesting witnesses, is valid as an attested will if the attesting witnesses sign as such at the request of and in the presence of the testator. Ark.Stat.Ann. § 60-403 (Repl.1971).
It has long been recognized that it is not necessary to have the testimony of both attesting witnesses to establish due execution of a will. Actually, a will may be established without the testimony of either of them or even against their testimony. Rogers v. Diamond, 13 Ark. 474; Evans v. Evans, 193 Ark. 585, 101 S.W.2d 435; Leister v. Chitwood, 216 Ark. 418, 225 S.W.2d 936. The present requirements for establishing an attested will are set out in Ark. Stat.Ann. §§ 62-2117, 2118 (Repl.1971), which we have said must be read together and construed to permit establishment of the will by any legally admissible evidence of the requisite facts in order that the testator's wishes may not be thwarted by straitlaced construction of statutory language. In re Altheimer's Estate, 221 Ark. 941, 256 S.W.2d 719. Under these statutes and the Altheimer decision, authenticity may be supplied by the testimony of any two credible witnesses who are disinterested, by whom the testator's handwriting may be proved, and proof of such other facts and circumstances (such as the handwriting of attesting witnesses whose testimony is unavailable) as would be sufficient to prove a controverted issue in equity. It is clearly recognized that common law rules as to proof of the execution of wills are in force, unaffected by any of our statutes and that, if attesting witnesses are unavailable, it is possible to prove the genuineness of their signatures and to raise a presumption that the will was duly executed. See Committee Comment, Ark. Stat.Ann. § 62-2118. In Altheimer, we reversed the judgment of a probate court rejecting a will, on the basis of the testimony of one attesting witness, and proof of the handwriting of the testatrix and the other attesting witness.
Here we have virtually the same evidence. Margaret Bright testified that she witnessed this will at the request of Lovie Harris, who, she believed, mentioned that it was her will. She stated that the writing on the will and the signature thereto were definitely in the handwriting of Mrs. Harris and that Mr. Turley, the other attesting witness was present at the time. Mrs. Bright lived across the street from the testatrix for 26 of the 30 years of their acquaintance and saw her daily while the two were neighbors and at least twice a week after the witness moved to Little Rock from Saline County. Jim Turley, the son of Arthur F. Turley, had known Lovie Harris since he was five or six years old and was her pupil in school. He was the operator of the gasoline filling station where Mrs. Harris did business and signed tickets for her purchases until she became ill and unable to drive a car. He said that the signature at the bottom of the will was hers and identified the signature of his father. Mrs. Flossie Turley, widow of Arthur F. Turley, also said that the signature of his name looked like his handwriting and his signature.
Neither of these three witnesses had any interest whatever in the matter at the time of their testimony.[1] Nothing was *414 shown which would be calculated to impair their credibility. We take the requirement of testimony of "credible disinterested witnesses" to be somewhat similar to that of the "unimpeachable evidence" of "disinterested witnesses" formerly required for proof of a holographic will by Revised Statutes, Chapter 157, Section 4, Kirby's Digest, § 8012, Fifth Paragraph; Pope's Digest 14512, Fifth Paragraph. We said that the latter requirement was satisfied when there was no evidence reflecting on the character or testimony of the witnesses testifying. Smith v. Boswell, 93 Ark. 66, 124 S.W. 264; Arendt v. Arendt, 80 Ark. 204, 96 S.W. 982. We find the three witnesses in this case to be disinterested and credible.
The only element not expressly shown by this testimony is the request of the testatrix that Arthur Turley sign as an attesting witness. Although it is clear that Mrs. Bright signed in the presence of Turley, it has never been required in Arkansas that the witnesses attest simultaneously or that they sign in the presence of each other. Coleman v. Walls, 241 Ark. 842, 410 S.W. 2d 749; Rogers v. Diamond, 13 Ark. 474. In determining whether there is sufficient proof of the only lacking essential, we follow our historical practice of avoiding a strict technical construction of statutory requirements where there is no indication of fraud, deception, imposition, or undue influence. If that were not done but few wills could be sustained. Hanel v. Springle, 237 Ark. 356, 372 S.W.2d 822; Rogers v. Diamond, supra. As a corollary, the meeting of some of the requirements for due execution may be inferred from all the attending circumstances. Hanel v. Springle, supra; Rogers v. Diamond, supra. See also, James v. Williams, 31 Ark. 175. The only fair inference to be drawn from the circumstances shown here is that Arthur F. Turley signed as an attesting witness at the request of Lovie Harris. As we said in Hanel, it would be a strict, if not a dangerous, construction to require proof that the testator made a specific request of each witness to sign his name as a witness before the will is held valid.
The applicable rule in testing the sufficiency of the evidence to justify drawing such an inference was stated in Anthony v. College of the Ozarks, 207 Ark. 212, 180 S.W.2d 321, by quoting from Corpus Juris, and restated in Leister v. Chitwood, 216 Ark. 418, 225 S.W.2d 936, and Edwards v. Knowles, 225 Ark. 1024, 287 S.W.2d 449, thus:
No presumption of the due execution of a will arises from the mere production of an instrument purporting to be a last will and testament * * *. Where, however, in proceedings for the probate of an instrument as a will it appears to have been duly executed as such, and the attestation is established by proof of the handwriting of the witnesses or otherwise, although their testimony is not available, or they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with all the requirements of law, including those relating to publication, attestation in the presence of the testator, and the affixing of the testator's signature prior to those of the witnesses.
Application of the rule in Anthony clearly requires that the will before us be sustained as an attested will. Even though the will there was typewritten, the names of the testator, Donnell, and the attesting witnesses appeared in the same relative positions as they do in the Harris will. It was stipulated that the signatures of Donnell and one of the attesting witnesses, D. B. Anderson, were in the handwritings of the respective signers. As here, there was no attestation clause and only the word "Witnesses" appeared above the purported signatures of D. B. Anderson and L. M. Guthrie. There, as here, the will was found among the testator's papers. Anderson was deceased, but his signature was *415 proven. Guthrie made an affidavit that Donnell came to Guthrie's office alone and asked affiant to sign a paper, which Donnell said was his will, but that D. B. Anderson was not present and affiant was not present when Anderson signed. There we said that the effect of the testator's actions amounted not only to a substantial, but a literal, compliance with statutory requirements.
Appellant contends that the will should be considered as if the portions stricken out were eliminated, while appellee asks that the attempted cancellation or obliteration be disregarded. Ark.Stat.Ann. § 60-406 (Repl. 1971) provides that a will may be revoked by the testator, in whole or in part, by being canceled or obliterated with the intent and for the purpose of revoking the same. The probate judge held that there was an unrebutted presumption that the markings on the will were made by the testatrix; that the "strike outs" in paragraph one had the effect of increasing the estate, and for that reason, the attempted revocation was ineffective, because it would have resulted in a new testamentary disposition without attestation.
Present statutory authority for will revocation is found in Ark.Stat.Ann. § 60-406. It permits revocation of all or part of a will by cancellation or obliteration by the testator. At the outset, we should say that if that which is essential to the validity of the whole will is cancelled or obliterated with the intention of revoking it, the whole will is revoked. Starnes v. Andre, 243 Ark. 712, 421 S.W.2d 616. But if the marks made here were made by the testatrix, it seems clear to us that she had no intention of revoking the whole will, and the revocation must be held partial unless the attempted revocation would render the entire will invalid. We should then direct ourselves to the question whether the defacement of the will was done by the testatrix. The probate court held that there was an unrefuted presumption that the marks were made by the testatrix with the intent to revoke. We think the proper rule in this regard is stated in 95 C.J.S. Wills § 385, page 281, as follows:
Where a will is found among the effects of the testator, and when so found has been cancelled, defaced, or obliterated in whole or in part, the prima facie presumption, in proceedings for the probate of the will, is ordinarily that the cancellation, defacement, or obliteration was made by the testator or by his direction, and that it was done with the intention of revoking the will or the parts thereof canceled or obliterated.
* * * * * *
Where only a paragraph or clause of will has been excised, the inference is that decedent attempted an alteration intending the remaining portions should constitute the will, and it may be admitted to probate, provided proof of the excised portion can be satisfactorily established. * * *
The presumption of animus revocandi may be rebutted, either by direct evidence or by circumstances tending to a contrary conclusion. The burden is on the proponent of a will to overcome the presumption, as by showing that no revocation was intended, or that the will was unrevoked and in existence at the time of the testator's death, or that if such spoliation had occurred before death, the testator lacked knowledge thereof, or that if he mutiliated the will himself, he lacked testamentary capacity at the time he did so. The proponent is not required, however, to prove whose name was obliterated or what words were obliterated.
Where a testator obliterates, deletes, or cancels a will, having a present intent to make a new will, as a substitute for the old, and the new will is not made, it is presumed that the testator preferred the old will to intestacy and effect will be given the old will.
This rule has been recognized in Arkansas if the acts of mutilation or obliteration are *416 sufficient to constitute a revocation. Cook v. Jeffett, 169 Ark. 62, 272 S.W. 873. We cannot say that the indulging of this presumption (or perhaps more properly a strong factual inference) was improper.
Partial revocation by cancellation by running lines through certain words in a will has been upheld in Arkansas under a statute much like Ark.Stat.Ann. § 60-406, which prohibited revocation except by certain methods. Cook v. Jeffett, supra; Jeffett v. Cook, 175 Ark. 369, 299 S.W. 389. The change in language of the statute is not significant insofar as application in this respect is concerned.
In Cook v. Jeffett, we quoted, with approval, the following statement appearing at 28 R.C.L. 185:
Nevertheless the courts, in deciding whether a will must be reattested after the making of the erasures, draw a distinction between an erasure which merely indicates an intention to expunge a clause or portion of the will and one which gives a new meaning to the words not erased. In the latter, but not in the former, case a reattestation is required. The general rule therefore is that when an attempt has been made by interlineation or obliteration to make a different disposition of the estate, the attempt will be abortive if made without the attestation required by law, and the will as originally drawn will be given effect.
We also held in the two Jeffett cases that where the whole or part of a will clause is crossed out (by lining out) there may be a revocation, even though the words crossed out remain legible. Furthermore, we said that when cancellation or obliteration of a clause or part of a clause does not affect the remainder of the will such cancellation or obliteration is effective as to such parts.
We are not particularly concerned with the obliterations in the paragraphs which related to an automobile and clothing, except as they may relate to determination of the intent of the testatrix as to the entire will, or as to the first paragraph. The beneficiaries of these bequests have not appealed. However, the action of the testatrix here is so nearly like that of Mrs. Jeffett in the Jeffett-Cook litigation that we must reach the same conclusion reached by the court there, i. e., that the manner of obliteration here is plainly indicative that a complete revocation such as was the case in Starnes v. Andre, 243 Ark. 712, 412 S.W.2d 616, was not intended.
This brings us to a consideration of the effect of the attempted obliteration in the paragraph relating to the bequest of the real property. If this will is considered as an attested will, there can be no doubt that, under the rule approved in the Jeffett cases, the obliteration would not be effective without reattestation, because it gives a new meaning to the words not erased. That is, instead of appellant and her husband (now deceased) being devisees contingent upon the failure of appellee to survive the testatrix, they would become the outright beneficiaries of this bequest.
We are inclined to the position that the will should be considered for the purpose of this appeal as an attested will, even though its body is in the handwriting of the testatrix, and the will is properly signed by her. She seems to have been well informed as to the Arkansas requirements for attestation. If she had not intended that the will be so considered, she would not have gone to this trouble. While it is apparent from the drafts of typewritten instruments in the record which the testatrix apparently signed but did not cause to be attested, that she intended to make a change in the will which was admitted by the probate court, she never made these wills effective.
On this state of the record, we affirm the judgment of the probate court.
JONES and BYRD JJ., concur.
*417 APPENDIX
*418
*419 BYRD, Justice (concurring).
To me the result should be the same whether the instrument be considered as a holographic or an attested will. Ark.Stat. Ann. § 60-406 (Repl.1971), with reference to revocation of a will provides:
"Except as provided in Section 23 [§ 60-407], a will, or any part thereof, can be revoked only
a. By subsequent will; or
b. By being burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or by another person in his presence and by his direction. If such act is done by any person other than the testator, the direction of the testator and the facts of such injury or destruction must be proved by two [2] witnesses who are not benefited by the revocation of the will. [Acts 1949, No. 140, § 22, p. 304.]"
In Cook v. Jeffett, 169 Ark. 62, 272 S.W. 873 (1925), with reference to partial obliteration we pointed out that when an attempt has been made by interlineation or obliteration to make a different disposition of the estate, the attempt will be abortive if made without the requirements of the law for the making of a will and the will as originally drawn will be given effect.
While the obliteration here made was presumably made by the testatrix, still the mere drawing of the lines does not qualify the obliteration as a holographic will. Ark. Stat.Ann. § 60-404 (Repl.1971), provides:
"Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator, such will may be established by the evidence of at least three (3) credible disinterested witnesses to the handwriting and signature of the testator . .."
The lines drawn through the instrument involved have not been proved to be in the proper handwriting of the testator. Consequently I would affirm even if the instrument should be considered a holographic will.
JONES, J., joins in this concurrence.
NOTES
[1] Margaret Bright might have been a contingent devisee, but could not benefit whether the revocation was effective or not, because Irene Kelly Lewis survived the testatrix.
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/A
June 19, 1974 J! c-q7
The Honorable George N. Rodriguez, Jr.
County Attorney
201 City-County Building Opinion No. H- 329
El Paso, Texas 79901
Re: Whether county conxnis-
sioner may be compensated
for iapresanting indigent
Dear Mr. Rodriguez.: defendant.
You have requested oui opinion on the question sf whether a county
commissioner may be compensated for his services a8 appointed
counsel for an indigent defendant.
Article 26.06 of the Texas Code of Criminal Procedure provides:
No court may appoint an elected county, district
or state official to represent a pirson accused of
crime, unless the official has notified the court of
his availability for appointment. If an official has
notified the court of his availability and is appointed
as counsel, he may decline the appointment if he
determines that it is in the best interest of his office
to do so. Nothing in this Code shall modify any
statutory provision for legislative continuance.
This article and its predecessor, Art. 494b of the former Code of
Criminal Procedure, have been construed to permit a county official to
accept an appointment to represent an indigent defendant. Ex parte Reece,
417 S. W. 2d 587 (Tex. Crim. 1967); Williams v, State, 321 S. W. 2d 72
(Tex. Crim. 1958). cert. den.,359 U.S. 930 (1959); Attorney General
Opinion No. C -247 (1964).
No Texas court has decided whether a county official appointed to
represent an indigent defendant may be compensated for doing SO. In
Williams v. State, supra, the court specifically declined to reach the
question. ,,
p. 1527
. The Honorable George N. Rodriguez, Jr., page 2 (H-329)
The oath of the county judge and the commissioners is set out in
Article 2340, V. T. C.S., as follows:
Before ente,ring upon the duiies of their office, the
county judge and each commissioner shall take the
official oath, and shall also take a written oath, that
he will. not be directly or indirectly interested in any
contract wi,th, or claim against, the county in which
he resides, except such warrants as may issue to him
as fees of office. Each commissioner shall execute
a bond to be approved by the county judge in the sum
of three thousand dollars, payable to the county
treasurer, conditioned for the faithful performance
of the duties of his office, that he will pay over to
his county.all moneys illegally paid to him out of
county funds, as voluntary payments or otherwise,,
and that he will not vote or give his consent to pay out
county funds except for lawful purposes. (Emphasis
added)
In Attorney General Opinion No. ‘C-247 (19641, this office determined the
issue as follows:
[I]t is the opinion of this office that, while a lawyer
who is a County Commissioner may accept an appoint-
ment from a district judge to represent an indigent
defendant, the County Commissioner may accept no
compensation from the county he serves for any such
representation. It is our opinion that the receipt of
such compensation would be contrary to the Commis-
sioner’s oath, and against sound public policy.
We concur in this prior determination of the issue. The answer to your
question is that a coufiLy commissi.on,e.r may not accept compensation for
serving as appointed counsel. to an indigent defendant because it would be
contrary to the commission.er’s oath and against sound public policy.
p. 1,528
1 .
\
\
.
The Honorable George N. Rodriguez, Jr., page 3 (H-329)
SUMMARY
A county commissioner may not receive
compensation for serving as appointed counsel
for an indigent defendant.
-Very truly yours,
APP,POVED:
v Attorney General of Texas
. YORK, First Asr;
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1529
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2017 IL App (1st) 143255
No. 1-14-3255
FIRST DIVISION
June 12, 2017
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. ) No. 13 CR 18626
)
DERRICK MARTIN, )
)
) Honorable Thomas Hennelly,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE CONNORS delivered the judgment of the court, with opinion.
Justices Harris and Mikva concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Derrick Martin was convicted of possession of a
controlled substance and sentenced to five years in prison. On appeal, defendant contends the
trial court erred in denying his motion to suppress evidence seized during a warrantless search.
We reverse.
¶2 The record reveals that following an alleged drug transaction that occurred on June 9,
2013, defendant was charged with possession of a controlled substance with intent to deliver and
delivery of a controlled substance. Before trial, defendant filed a motion to quash arrest and
suppress evidence. In this motion, defendant stated that on June 9, 2013, police officers entered
No. 1-14-3255
and searched the building located at 5154 West Fulton Street in Chicago without a search
warrant and without consent.
¶3 At the hearing on the motion, defendant’s mother, Perlene West, testified that she owned
the two-flat building located at 5154 West Fulton. West stated that she lived on the first floor and
no one currently lived on the second floor. West also testified that no one lived on the second
floor on June 9, 2013. Defendant, who occasionally stayed with West, had stayed overnight with
his girlfriend in West’s apartment the night before June 9. West further described the building,
which had a door on the outside and was surrounded by a fence with a gate. West also identified
a photograph of her building. West stated that beyond the outer door were two interior doors—
one to the right that led to West’s apartment and one to the left that went up the stairs. According
to West, the hallway area between the outer door and interior doors was a private area and not
public. West stated that the building was her home and denied that anyone could just walk in.
West stated that she has a “no trespassing” sign in the window of her home and that the sign was
up on June 9. West also stated that the front door has a lock, and she locks it using a key. West
recalled that on June 9, police officers did not have her permission to search anywhere in the
building.
¶4 Officer Manjarrez testified that at approximately 4:26 p.m. on June 9, he was conducting
a narcotics surveillance mission with Officer Collarzo in the area of 5154 West Fulton.
Defendant was in a vacant lot just west of 5154 West Fulton. Officer Manjarrez observed a man,
who was later identified as Dwayne Mason, approach defendant and raise his right index finger,
whereupon defendant acknowledged the gesture and entered the main doorframe of 5154 West
Fulton. Officer Manjarrez stated that the door to 5154 West Fulton was slightly ajar. Defendant
stood on the immediate threshold and reached into the door inside of the doorframe. Defendant
-2-
No. 1-14-3255
retrieved a blue plastic bag, manipulated it, and then retrieved a smaller unknown item from the
bag. Officer Manjarrez acknowledged that he could not actually see where the bag came from
and could not tell what the item was that defendant took from the bag. Defendant then placed the
bag on top of the door and returned to Mason, where he received money from Mason and
tendered the small unknown item. Defendant tendered the money to another male who was
standing outside of 5154 West Fulton.
¶5 At that point, Officer Manjarrez broke surveillance and approached Mason. During a
conversation, Mason stated, “I only got one blow from him” and freely tendered to Officer
Collarzo a red-tinted Ziploc bag with a bomb logo that said “stay high imagine” on it. The bag
contained a white powdery substance that was suspected to be heroin. Mason was placed in
custody and the officers relocated to defendant, who was also placed in custody. Officer
Manjarrez indicated to another officer, Officer Warner, where to recover the blue bag. Officer
Manjarrez stayed with defendant at the bottom of the stairs of 5154 West Fulton and observed
Officer Warner go up the stairs. Officer Warner related that the door was open. Officer Warner
reached above the doorframe on the inside of the door and recovered the blue bag. Officer
Manjarrez observed that the items inside the blue bag matched the suspect narcotics that were
recovered from Mason. Officer Manjarrez also stated that the item that Officer Warner recovered
was from the same area where he observed defendant place the item. Additionally, Officer
Manjarrez stated that once the door was open, he observed that the front door opened into a
vestibule or common area that had another door, leading into the residence. The parties stipulated
that the officers did not have a warrant.
¶6 After defendant rested, the State moved for a directed finding, contending in part that
there was no expectation of privacy on the inside of the doorframe and the officers did not enter
-3-
No. 1-14-3255
the home. In response, defense counsel contended in part that 5154 West Fulton was a private
home and the area at issue was not a common area.
¶7 The court denied defendant’s motion to quash and suppress. In its ruling, the court stated
that the officer reached into the doorway of a common area of a two-flat and the officer did not
enter the home. The court continued that “even assuming arguendo, there’s plenty of probable
cause based on Officer Manjarrez’s observations of the transaction.” The court also stated that it
did not think that defendant established standing.
¶8 Prior to trial, defense counsel orally moved to reconsider the ruling on the motion to
quash and suppress. Defense counsel stated in part that defendant’s mother owned the entire
building, she lived on the first floor, and no one was occupying the second floor. Defense
counsel asserted that “[i]t’s not your typical common area,” and moreover, West had a “no
trespassing” sign and the building was surrounded by a fence, which could be considered
curtilage. Additionally, defense counsel stated that there were no exigent circumstances. The
court denied the motion to reconsider.
¶9 The matter proceeded to trial. The State called as a witness Officer Manjarrez, whose
testimony was substantially similar to his testimony at the hearing on defendant’s motion to
quash and suppress. Additionally, Officer Manjarrez stated that after he broke surveillance, he
lost sight of the man who had received money from defendant.
¶ 10 Officer Warner also testified, stating that he went to the vicinity of 5154 West Fulton at
Officer Manjarrez’s request. Based on a conversation with Officer Manjarrez, Officer Warner
searched the door and corridor of the building. Officer Warner looked in the door frame, where
he found a blue bag containing five clear Ziploc bags with “Stay High” logos that contained
suspect heroin. Officer Warner noted that he could not see through the bag and had to open it to
-4-
No. 1-14-3255
see its contents. Officer Warner stated that he found the bag at the top of doorframe inside the
building. Officer Warner further recalled that the blue bag was “protruding out like a piece of
*** wood at the top of the door frame” and was sticking up.
¶ 11 The parties entered stipulations about the chain of custody and the chemical composition
of the recovered substance. The parties stipulated that all proper chains of custody were
followed. The parties also stipulated that a forensic chemist would testify that 1.4 grams of
powder from five items received from the police and 0.2 grams from another item tested positive
for heroin.
¶ 12 For its case, the defense called West, defendant’s mother, to testify. West stated that she
owned 5154 West Fulton and owned it on June 9, 2013. West identified a photograph of the
inside of her hallway and stated that the photograph accurately depicted how the inside of the
door leading to her home looked on June 9.
¶ 13 After closing arguments, the court issued its ruling. The court found that it was “probably
more likely than not” that the item Mason gave to the officer was the item he purchased from
defendant, but the evidence was insufficient to prove beyond a reasonable doubt that defendant
delivered a controlled substance to Mason. The court also found that the evidence was
insufficient to prove beyond a reasonable doubt that defendant was guilty of possession of a
controlled substance with intent to deliver. The court stated that it had “some packaging,” but
nothing else, such as money, an admission, scales, or “anything that would indicate the intent to
deliver.” Ultimately, the court found defendant guilty of the lesser-included offense of
possession of a controlled substance.
¶ 14 Prior to a sentencing hearing, defendant requested that the court reverse its finding on the
motion to quash and suppress “for reasons that were stated multiple times at the hearing *** as
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No. 1-14-3255
well as the trial.” The court denied the motion as well as a motion for a new trial that defendant
had filed.
¶ 15 Following the sentencing hearing, defendant was sentenced to five years in prison.
Defendant timely appealed.
¶ 16 On appeal, defendant contends that the trial court should have granted his motion to
suppress where it erroneously concluded that Officer Warner’s physical breach of the threshold
of a private home from the porch of that home was not a search within the meaning of the fourth
amendment. Defendant argues that per Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409
(2013), Officer Warner physically intruded onto constitutionally protected areas and far
exceeded the societal norms for acceptable social behavior when he searched the inside of the
doorway of 5154 West Fulton. In the alternative, defendant contends that his fourth amendment
rights were also violated under the expectation of privacy test set forth in Katz v. United States,
389 U.S. 347 (1967). Defendant also asserts that the State failed to prove consent or exigent
circumstances to justify the warrantless search.
¶ 17 The fourth amendment to the United States Constitution protects “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. Const., amend. IV. Similarly, article I, section 6 of the Illinois Constitution
states that the “people shall have the right to be secure in their persons, houses, papers and other
possessions against unreasonable searches [and] seizures.” Ill. Const. 1970, art. I, § 6; People v.
Pitman, 211 Ill. 2d 502, 513 (2004). Illinois courts have interpreted the search and seizure
provision found in the Illinois Constitution consistently with the fourth amendment jurisprudence
of the United States Supreme Court. Pitman, 211 Ill. 2d at 513. Further, “[r]easonableness under
-6-
No. 1-14-3255
the fourth amendment generally requires a warrant supported by probable cause.” People v.
Johnson, 237 Ill. 2d 81, 89 (2010).
¶ 18 When reviewing a trial court’s ruling on a motion to suppress evidence, we apply a two-
part standard of review adopted by the Supreme Court in Ornelas v. United States, 517 U.S. 690,
699 (1996). Johnson, 237 Ill. 2d at 88. We defer to the trial court’s factual findings and will
reject those findings only if they are against the manifest weight of the evidence. Id. “However, a
reviewing court remains free to undertake its own assessment of the facts in relation to the
issues, and we review de novo the trial court’s ultimate legal ruling as to whether suppression is
warranted.” (Internal quotation marks omitted.) Id. at 88-89. On a motion to suppress evidence,
the defendant has the burden of producing evidence and proving the search and seizure were
unlawful. People v. Woodrome, 2013 IL App (4th) 130142, ¶ 16. “[O]nce the defendant makes a
prima facie showing of an illegal search and seizure, the burden shifts to the State to produce
evidence justifying the intrusion.” (Internal quotation marks omitted.) Id.
¶ 19 We briefly address two preliminary matters. Defendant correctly asserts, and the State
does not dispute, that defendant can claim the protection of the fourth amendment as a guest in
his mother’s home. See Minnesota v. Olson, 495 U.S. 91, 98 (1990) (recognizing that an
overnight guest in a home may claim the protection of the fourth amendment). Because it was
mentioned in the trial court’s ruling, we note that we no longer use the rubric of “standing” when
analyzing fourth amendment claims. Johnson, 237 Ill. 2d at 89.
¶ 20 Turning to defendant’s contentions, defendant relies on Jardines, 569 U.S. ___, 133 S.
Ct. 1409, and the expectation of privacy test from Katz, 389 U.S. 347. We briefly summarize
each framework. Under Katz, to claim the protection of the fourth amendment, a person must
have exhibited an actual (subjective) expectation of privacy in the place searched or thing seized,
-7-
No. 1-14-3255
and this expectation must be one that society is willing to recognize as “ ‘reasonable.’ ” Id. at
361 (Harlan, J., concurring). This test was subsequently adopted by the majority of the Supreme
Court in California v. Ciraolo, 476 U.S. 207, 211 (1986). Of note, Illinois courts have found that
there is no reasonable expectation of privacy in common areas of apartment buildings that are
accessible to others. See People v. Smith, 152 Ill. 2d 229, 245 (1992) (no reasonable expectation
of privacy in a conversation that occurred in an apartment building’s unlocked common area that
was shared by other tenants, the landlord, their social guests, and other invitees); People v.
Carodine, 374 Ill. App. 3d 16, 23 (2007) (the defendant had no reasonable expectation of privacy
in the dryer vent of his three-unit apartment building where dryer vent was in a common area
that was accessible to the landlord and other members of the general public); People v. Lyles,
332 Ill. App. 3d 1, 7 (2002) (stating that a tenant has no reasonable expectation of privacy in
common areas of an apartment building that are accessible to other tenants and their invitees).
¶ 21 In Jardines, 569 U.S. ___, 133 S. Ct. at 1413, the Court considered whether using a drug-
sniffing dog on a homeowner’s porch to investigate the contents of a home was a “search” within
the meaning of the fourth amendment. The Court stated that pursuant to Katz, “property rights
‘are not the sole measure of Fourth Amendment violations.’ ” Id. at ___, 133 S. Ct. at 1414. The
Court continued that “though Katz may add to the baseline, it does not subtract anything from the
Amendment’s protections ‘when the Government does engage in [a] physical intrusion of a
constitutionally protected area.’ ” (Emphasis in original.) Id. The Court first considered whether
the officers’ investigation took place within a constitutionally protected area. Id. at ___, 133 S.
Ct. at 1414-15. The Court stated that the area “ ‘immediately surrounding and associated with the
home,’ ” known as curtilage, was “ ‘part of the home itself for Fourth Amendment purposes.’ ”
Id. at ___, 133 S. Ct. at 1414. The Court then assessed whether the officers’ investigation “was
-8-
No. 1-14-3255
accomplished through an unlicensed physical intrusion.” Id. at ___, 133 S. Ct. at 1415. The
Court stated that a police officer without a warrant “may approach a home and knock, precisely
because that is ‘no more than any private citizen might do.’ ” Id. at ___, 133 S. Ct. at 1416.
Ultimately, the Court found that the use of trained police dogs to investigate a home and its
immediate surroundings was a “search” within the meaning of the fourth amendment. Id. at ___,
133 S. Ct. at 1417-18.
¶ 22 The Illinois Supreme Court applied Jardines to a 12-unit apartment building in People v.
Burns, 2016 IL 118973. There, the court considered whether the warrantless use of a drug-
detection dog, located in a locked apartment building in the middle of the night, violated the
defendant’s fourth amendment rights. Id. ¶ 16. The dog sniff occurred outside the defendant’s
apartment door. Id. ¶ 7. The State in Burns suggested that Jardines did not apply to leased
apartments or condominiums because there is no legitimate expectation of privacy in the
common areas of multi-unit dwellings. Id. ¶ 32. Disagreeing with the State, the court noted that
the entrances to the apartment building were locked and the common areas were not open to the
general public. Id. ¶ 33. The court also found that the landing to the defendant’s apartment was
curtilage, noting that the landing was directly in front of the apartment and a clearly marked area
within a locked building with limited use and restricted access. Id. ¶¶ 35, 39. The court stated
that the police conduct in the case “certainly exceeded the scope of the license to approach [the]
defendant’s apartment door,” as the officers entered a locked building in the middle of the night
and remained in the building for more than a very short period of time. Id. ¶ 43.
¶ 23 Although Burns applied Jardines to a multi-unit apartment building, the specific contours
of Jardines are unsettled. This much was recognized by the Seventh Circuit in United States v.
Whitaker, 820 F.3d 849 (7th Cir. 2016). While the court stated that “[t]he practical effects of
-9-
No. 1-14-3255
Jardines *** weigh in favor of applying its holding to dog sniffs at doors in closed apartment
hallways,” the court questioned how Jardines would apply to “the middle ground between
traditional apartment buildings and single-family houses,” including split-level duplexes,
buildings that were converted from houses to apartments, and garden apartments whose doors
open directly to the outdoors. Id. at 854. The court further stated that “a strict apartment versus
single-family house distinction” was troubling because it would apportion fourth amendment
protections on grounds that correlate with income, race, and ethnicity, citing data showing that a
smaller percentage of African-Americans and Hispanics live in one-unit detached houses than
whites and that the percentage of households that live in one-unit, detached houses rises with
income. Id.
¶ 24 Thus, under both Katz and Jardines, the type of building at issue matters. Here, the State
and defendant dispute how to characterize 5154 West Fulton, with the State asserting that it is a
multi-unit apartment building and defendant contending that it is a single-family home. Our
research has not revealed an Illinois case that considered for fourth amendment purposes how to
characterize the type of building here—a two-flat owned and occupied by one family. Where
there is no Illinois authority on a point, we may look to other jurisdictions for guidance. People
v. $111,900, United States Currency, 366 Ill. App. 3d 21, 30 (2006). Cases from other
jurisdictions that indicate there are greater expectations of privacy in duplexes owned and
occupied by one family persuade us that 5154 West Fulton should be treated as a single-family
home for fourth amendment purposes. In United States v. Villegas, 495 F.3d 761, 764, 767 (7th
Cir. 2007), the Seventh Circuit considered whether the defendant had a reasonable expectation of
privacy in the common hallway of his duplex, which was owned by the defendant’s sister. The
first floor unit was occupied by the defendant and his sister and the second floor unit was
-10-
No. 1-14-3255
occupied by a couple that was unrelated to the defendant and his sister. Id. at 764. In finding that
the defendant did not have a reasonable expectation of privacy in the hallway, the court noted
that the defendant did not “present any evidence that suggests that he and his sister were related
to [the couple], such that the duplex in its entirety should be considered a single dwelling.” Id. at
768. The court also noted that fact-dependent nature of the inquiry into the reasonableness of a
person’s expectation of privacy in a particular place. Id. at 769.
¶ 25 In United States v. King, 227 F.3d 732 (6th Cir. 2000), the Sixth Circuit considered the
unique setting of a duplex entirely occupied by members of the same family. There, defendant’s
mother lived on the second floor with some of her other children, while defendant and other
family members lived on the other floors of the building. Id. at 738. The court concluded that
defendant had a legitimate expectation of privacy in the basement area of the building. Id. at 750.
The court found that the fact that the building was a two-family dwelling made it more likely that
the basement area was not a common area for purposes of fourth amendment protection. Id. at
749. Additionally, the court stated that “the nature of the living arrangements of a duplex ***
affords the tenant of the duplex a greater expectation of privacy in areas the tenant of the multi-
unit apartment building would not enjoy” because in a duplex, access to those areas is limited to
the duplex’s tenants and the landlord. Id. at 750.
¶ 26 Extending the reasoning of Villegas and King, the record indicates that 5154 West Fulton
should be treated as a single-family home. West stated that she owned the building and lived on
the first floor, and on June 9 and at the time of the hearing, no one lived on the second floor. She
also stated that defendant occasionally stayed with her and had stayed overnight the previous
evening. Beyond the building being occupied by one family, it was also owned by a member of
that family. Further, West testified that the building was her home and denied that anyone could
-11-
No. 1-14-3255
walk in. She had a “no trespassing” sign in the window. She also stated that the space between
the outer and interior doors was private. Although the front door was slightly ajar on June 9,
West stated that she locks the front door with a key. 5154 West Fulton was not a typical multi-
unit building where numerous tenants and members of the public were expected to enter. Rather,
it was viewed as the family home, and we will treat it as such for the purposes of this case. See
also United States v. Werra, 638 F.3d 326, 336 (1st Cir. 2011) (the defendant had a reasonable
expectation of privacy where the defendant believed the entire house, and not just the third floor,
served as his home, and shared living arrangements with housemates).
¶ 27 We now apply Jardines to the officers’ actions at 5154 West Fulton. The first question is
whether the officers’ investigation took place in a constitutionally protected area. Jardines, 569
U.S. ___, 133 S. Ct. at 1414-15. The Supreme Court stated that at the very core of the fourth
amendment is the “ ‘right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.’ ” Id. at ___, 133 S. Ct. at 1414. Additionally, as noted
above, the area “ ‘immediately surrounding and associated with the home,’ ” known as curtilage,
is considered part of the home itself for fourth amendment purposes. Id. at ___, 133 S. Ct. at
1414. In United States v. Dunn, 480 U.S. 294, 301 (1987), the Supreme Court listed four factors
to consider when defining the extent of a home’s curtilage: (1) the proximity of the area claimed
to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the
home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to
protect the area from observation by passersby. These factors are “useful analytical tools only to
the degree that, in any given case, they bear upon the centrally relevant consideration—whether
the area in question is so intimately tied to the home itself that it should be placed under the
home’s ‘umbrella’ of Fourth Amendment protection.” Id.
-12-
No. 1-14-3255
¶ 28 Here, Officer Warner recovered an item from above the inside doorframe of the outer
door of 5154 West Fulton. Although the area beyond the outer doorway led to two apartment
doors, we determined above that the entire building is a single-family home, which includes the
area above the inside doorframe. As “the Fourth Amendment has drawn a firm line at the
entrance to the house” (Payton v. New York, 445 U.S. 573, 590 (1980)), the area above the inside
doorframe was a constitutionally protected area. Further, to the extent that Officer Warner stood
on top of the steps outside 5154 West Fulton, that area outside the door was akin to a porch,
which is a “classic exemplar” of curtilage. See Jardines, 569 U.S. at ___, 133 S. Ct. at 1415.
¶ 29 The next question is whether the officers’ actions were accomplished through an
unlicensed physical intrusion. Id. at ___, 133 S. Ct. at 1415. A police officer without a warrant
may approach a home and knock because that is no more than any private citizen might do. Id. at
___, 133 S. Ct. at 1416. Further, “the background social norms that invite a visitor to the front
door do not invite him there to conduct a search.” Id. at ___, 133 S. Ct. at 1416. Here, Officer
Warner went up the stairs of 5154 West Fulton, reached above the inside doorframe, and
recovered a blue bag. This was well beyond what an ordinary private citizen could do, where
Officer Warner physically intruded on the inside of the home to gather evidence. See id. at ___,
133 S. Ct. at 1417 (officers’ behavior objectively revealed a purpose to conduct a search, “which
is not what anyone would think he had license to do”). That the door was open does not change
this result. A private citizen would not think that he could breach the open door of a home and
investigate its contents.
¶ 30 The State asserts that in contrast to Jardines and Burns, Officer Warner did not use a
drug-detection dog and merely reached his hand across the threshold of the exterior door.
However, “when the government uses a physical intrusion to explore details of the home ***, the
-13-
No. 1-14-3255
antiquity of the tools that they bring along is irrelevant.” Id. at ___, 133 S. Ct. at 1417. Further,
any physical invasion of the home’s structure by even a fraction of an inch is too much. Kyllo v.
United States, 533 U.S. 27, 37 (2001). Officer Warner exceeded what a private citizen was
permitted to do at the front door of 5154 West Fulton.
¶ 31 The State further contends that Officer Warner’s recovery of the contraband did not
constitute a search pursuant to the plain view doctrine. The plain view doctrine supplements a
prior valid reason for being present and permits the warrantless seizure of evidence in plain view
because it does not constitute a general, intrusive invasion of a person’s privacy. People v.
Hassan, 253 Ill. App. 3d 558, 569 (1993). Three requirements must be met to apply the plain
view doctrine: (1) the officers must be lawfully in a position from which they view the object;
(2) the incriminating character of the object must be immediately apparent; and (3) the officers
must have a lawful right of access to the object. People v. Jones, 215 Ill. 2d 261, 271-72 (2005).
“[I]f police lack probable cause to believe that an object in plain view is contraband without
conducting some further search of the object, i.e., if the incriminating character of the object is
not immediately apparent, the plain view doctrine cannot justify the seizure.” Id. at 272. Here,
the incriminating nature of the blue bag that was recovered above the doorframe was not
immediately apparent. Officer Manjarrez testified that when he observed the transaction between
Mason and defendant, defendant retrieved a small item from the blue bag and then tendered a
small unknown item to Mason. Officer Manjarrez could not identify the item that defendant
retrieved from the blue bag. It was only after Officer Warner recovered the bag that Officer
Manjarrez saw that the items inside matched the suspect narcotics that were recovered from
Mason. Because the nature of the object was not immediately apparent, the plain view doctrine
does not justify the seizure.
-14-
No. 1-14-3255
¶ 32 We conclude that the officers’ conduct was a warrantless search under Jardines.
Defendant also challenges the officers’ conduct under Katz, which “ ‘has been added to, not
substituted for,’ the traditional property-based understanding of the Fourth Amendment.”
(Emphases in original.) Jardines, 569 U.S. at ___, 133 S. Ct. at 1417. As a result, because we
found that the officers gained evidence by physically intruding on a constitutionally protected
area, we do not need to decide whether the officers’ conduct violated defendant’s expectation of
privacy under Katz. Id. at ___, 133 S. Ct. at 1417.
¶ 33 A warrantless search is permissible if it fits within a specifically established and well-
delineated exception to the warrant requirement. People v. Hand, 408 Ill. App. 3d 695, 700
(2011). Accordingly, the State raises an exception here—that the warrantless search was justified
by probable cause and exigent circumstances. See People v. Hunley, 313 Ill. App. 3d 16, 22
(2000) (police are not required to obtain a warrant to enter a home if exigent circumstances
exist). The State argues that exigent circumstances existed because the officers saw defendant
give money to an unknown man, but lost track of the man after they broke surveillance and
arrested Mason and defendant. According to the State, the officers reasonably believed that the
unknown man knew of their presence, but did not know whether the man went inside 5154 West
Fulton, where he could destroy the evidence.
¶ 34 The State bears the burden to demonstrate that exigent circumstances authorized the
warrantless entry. Id. Relevant factors for determining whether exigent circumstances were
present to effectuate an arrest include whether (1) the crime under investigation was recently
committed; (2) there was any deliberate or unjustified delay by the police during which time a
warrant could have been obtained; (3) a grave offense was involved, particularly a crime of
violence; (4) there was reasonable belief that the suspect was armed; (5) the police officers were
-15-
No. 1-14-3255
acting on a clear showing of probable cause; (6) it was likely that the suspect would escape if he
was not swiftly apprehended; (7) there was strong reason to believe that the suspect was in the
premises; and (8) the nonconsensual entry was made peaceably. People v. McNeal, 175 Ill. 2d
335, 345 (1997). Another consideration is whether the evidence would likely disappear without
prompt action. People v. Smith, 152 Ill. 2d 229, 249 (1992). No list of factors is exhaustive and
the factors listed above are guidelines, rather than cardinal maxims to be applied rigidly in each
case. McNeal, 175 Ill. 2d at 345. “The cornerstone of an exigency analysis is whether the police
officers acted reasonably,” a determination we make by considering the totality of the
circumstances confronting the officers when the entry was made. People v. Wimbley, 314 Ill.
App. 3d 18, 24 (2000).
¶ 35 Here, there were no exigent circumstances to justify the warrantless entry. We
acknowledge that the crime under investigation was recently committed, the entry was
peaceable, and there was probable cause to believe that defendant committed a crime and that
evidence was in the home. Further, the record does not suggest that the police delayed their
entry. However, the circumstances indicate that the officers could have obtained a warrant
without risk that the evidence would be destroyed. If the destruction of narcotics is the primary
motivation for the warrantless entry, the police must have particular reasons to believe that the
evidence will be destroyed for exigent circumstances to arise. Hassan, 253 Ill. App. 3d at 572.
The State did not provide those particular reasons. After Officer Manjarrez broke surveillance
and spoke to Mason, both Mason and defendant were placed in custody. Officer Manjarrez
stayed with defendant at the bottom of the stairs of 5154 West Fulton, while Officer Warner
recovered the blue bag. Defendant did not have access to the evidence at that point. The State
points to the unknown man to whom defendant gave money and asserts that it was reasonable to
-16-
No. 1-14-3255
believe that the man knew of the officers’ presence and went inside the residence, where he
could have destroyed the evidence. This is entirely speculative. Further, there were multiple
officers at the scene who could have secured the premises while a warrant was obtained. Under
these circumstances, we decline to find that exigent circumstances justified the warrantless entry.
See People v. Payton, 317 Ill. App. 3d 909, 914 (2000) (no exigent circumstances to justify
warrantless search where officers could have asked for consent, and if consent were denied,
officers could have secured the area to prevent any tampering while a warrant was obtained).
¶ 36 Additionally, we are not persuaded by the State’s reliance on People v. Slavin, 2011 IL
App (2d) 100764, and People v. Pierini, 278 Ill. App. 3d 974 (1996). In Slavin, 2011 IL App
(2d) 100764, ¶¶ 1, 6, a police officer conducted a warrantless search of an ice fishing shanty after
suspecting that the occupants were smoking cannabis inside. The court found that the search was
justified by exigent circumstances because another officer could not have been called to monitor
the scene while a warrant was obtained, as the suspected cannabis likely would have been
removed or destroyed by smoking it or dropping it through a hole into the water below the
shanty. Id. ¶ 23. Here, in contrast, there were already multiple officers on the scene to secure and
monitor the residence, and defendant was already detained away from the suspected narcotics. In
Pierini, 278 Ill. App. 3d at 978-79, exigent circumstances justified a warrantless search of an
apartment for cannabis where the officers’ presence was known to the defendant and his wife,
who were in the apartment in the immediate vicinity of the contraband. Here, again, defendant
was detained outside the residence, and there was no evidence that the unknown man was in the
residence, much less near the suspected narcotics. Exigent circumstances did not justify the
warrantless search of 5154 West Fulton.
-17-
No. 1-14-3255
¶ 37 Next, the State contends that even if the fourth amendment was violated, the recovered
evidence should not be suppressed because the officers acted in good-faith reliance on binding
precedent when they seized the drugs. The State argues that the officers conducted the search in
objectively reasonable reliance on First District precedent set forth in People v. Carodine, 374
Ill. App. 3d 16 (2007), and People v. Lyles, 332 Ill. App. 3d 1 (2002), which it asserts held that
common areas open to other tenants, invitees, salesmen, and others were not constitutionally
protected under the fourth amendment.
¶ 38 The fourth amendment is silent about suppressing evidence obtained in violation of its
command. Davis v. United States, 564 U.S. 229, 236 (2011). That rule—the exclusionary rule—
was created by the Supreme Court to “compel respect for the constitutional guaranty,” but is not
a personal constitutional right and was not designed to “redress the injury” caused by an
unconstitutional search. (Internal quotation marks omitted.) Id. The rule’s purpose is to deter
future fourth amendment violations. Id. at 236-37. Exclusion is a last resort, and the exclusionary
rule applies when the deterrent benefits outweigh its heavy costs. People v. LeFlore, 2015 IL
116799, ¶ 23. Where the particular circumstances show that police acted with an objectively
reasonable good-faith belief that their conduct was lawful, or when their conduct involved only
simple, isolated negligence, there is no illicit conduct to deter. (Internal quotation marks
omitted.) Id. ¶ 24. One instance where evidence is not excluded despite a fourth amendment
violation is when the police conduct a search in objectively reasonable reliance on binding
appellate precedent. Davis, 564 U.S. at 249-50. See also LeFlore, 2015 IL 116799, ¶ 29
(applying Davis). Under this analysis, an officer’s subjective awareness of the law is irrelevant.
People v. Harrison, 2016 IL App (5th) 150048, ¶ 26.
-18-
No. 1-14-3255
¶ 39 Here, we decline to apply the good-faith exception stated in Davis. Carodine and Lyles
involved the common areas of multi-unit apartment buildings that were accessible to others. See
Carodine, 374 Ill. App. 3d at 23; Lyles, 332 Ill. App. 3d at 7. Thus, the State’s contention rests
on the assumption that 5154 West Fulton was also a multi-unit apartment building and that the
area searched was accessible to others, but does not point to facts that support a reasonable belief
that this was the case. See People v. Bravo, 2015 IL App (1st) 130145, ¶ 20 (good-faith
exception did not apply where prosecutor did not present evidence that would excuse conduct
based on alleged precedent). Rather, the evidence at the hearing indicated that 5154 West Fulton
was a single-family home. Carodine and Lyles thus do not apply, and the State cannot rely on
them to excuse the officers’ warrantless search. We recognize that the lines between single-
family homes and multi-unit apartment buildings may not always be crystal clear, but an officer
working under non-exigent circumstances can always satisfy fourth amendment requirements by
presenting evidence of probable cause to a neutral magistrate and obtaining a warrant. See
United States v. Holland, 755 F.2d 253, 259-60 (2d Cir. 1985) (Newman, J., dissenting).
¶ 40 With no basis for avoiding the exclusionary rule, we find that the evidence in this case
should have been suppressed. Further, without the suppressed evidence of the narcotics, the State
cannot prove that defendant possessed the narcotics and his conviction must be reversed outright.
See People v. Sims, 2014 IL App (1st) 121306, ¶ 19; People v. Rhinehart, 2011 IL App (1st)
100683, ¶ 20.
¶ 41 For the foregoing reasons, the judgment of the circuit court is reversed.
¶ 42 Reversed.
-19-
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884 F.2d 926
58 USLW 2182
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITEDSTATES DEPARTMENT OF LABOR, Petitioner,v.CONSOLIDATION COAL COMPANY and William Petracca, Respondents.
No. 88-3667.
United States Court of Appeals,Sixth Circuit.
Argued March 27, 1989.Decided Sept. 8, 1989.
1
Sylvia T. Kaser (argued), U.S. Dept. of Labor, Office of the Sol., Washington, D.C., for Director, OWCP, U.S. Dept. of Labor, petitioner.
2
Douglas A. Smoot (argued), Jackson & Kelly, Charleston, W.Va., for Consolidation Coal Co., respondent.
3
Geary M. Battistelli, Beneke, Battistelli & Bremer, Wheeling, W.Va., for William Petracca, respondent.
4
Before ENGEL, Chief Judge, BOGGS, Circuit Judge, and COHN, District Judge.*
5
COHN, District Judge.
6
This is an appeal under the Black Lung Benefits Act (the Act), 30 U.S.C. Secs. 901-945 (Title IV of the Coal Mine Health and Safety Act of 1969, 30 U.S.C. Secs. 801-960). Appellee, William Petracca, contracted coal miner's pneumoconiosis (black lung) after working for 34 years at mines operated by appellee Consolidation Coal Company (Consolidation). The Act provides that the Black Lung Disability Trust Fund, administered by the Director of Workers' Compensation Programs (Director) of the U.S. Department of Labor, shall be responsible for the payment of benefits to any black lung claimant who ceased working as a statutorily defined "coal miner" before December 31, 1969, the effective date of the Act. The individual coal mine operators are responsible for any black lung claims filed by miners who worked for them after that date. On April 17, 1980, Petracca was found to be disabled by pneumoconiosis and eligible for benefits.
7
Consolidation claims that it was not a "responsible operator" under the Act because Petracca had worked in the Company's machine repair shop for the last twenty-five years and was thus not a "coal miner" after December 31, 1969. The Benefits Review Board (Board) agreed and dismissed Consolidation as the responsible operator, holding the Trust Fund liable for Petracca's benefits. The Director appeals on the grounds that the machine repair shop in which Petracca worked was "in or around a coal mine" and he should thus be found to have worked as a "miner" after December 31, 1969. The Court agrees with the Director and the decision of the Benefits Review Board will be reversed and Consolidation reinstated as the responsible operator.
I.
8
Petracca was born in 1910. He began working for Consolidation in 1929 as a loader, continuing on and off there until 1938. Between 1942 and 1948, Petracca worked for the Wheeling Township Coal Co. as a belt operator. He returned to Consolidation in 1948 and began working in the central machine shop. He worked in the shop, first as a painter, then as a laborer and finally as a mechanic until his retirement in 1976.
9
On February 2, 1979, Petracca filed a claim for black lung benefits. The Office of Workers' Compensation Programs notified Consolidation on April 17, 1980 that it had made an initial finding that Petracca was entitled to benefits and that Consolidation was found to be the responsible operator. Consolidation timely contested the finding on the grounds, inter alia, that Petracca was not a "miner" under the Act and that he was not disabled due to pneumoconiosis. An administrative hearing was held on March 14, 1984, where medical evidence was presented concerning Petracca's physical condition and his employment history. On March 29, 1985, the ALJ issued a formal decision and order holding that Petracca was entitled to benefits and that Consolidation was the responsible operator under the Act. Consolidation appealed the ALJ's ruling to the Board. On February 24, 1988, the Board issued a decision upholding the ALJ's finding that Petracca was totally disabled but dismissing Consolidation as the responsible operator. The Board held that Petracca's work in Consolidation's machine shop was not coal mine employment under the Act and that the Trust Fund was thus liable for Petracca's benefits. On April 19, 1988, the Director filed a timely appeal to this Court on the issue of Consolidation's liability for Petracca's benefits.1II.
A.
10
Our review of a decision of the Board is limited to assuring that the correct statutory standards have been applied and that no errors of law have been made. Warman v. Pittsburgh & Midway Coal Mining Co., 839 F.2d 257, 258 (6th Cir.1988), quoting Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1116 (6th Cir.1984), cert. denied, 471 U.S. 1116, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). The Board must accept the ALJ's findings of fact if they are supported by substantial evidence in the record considered as a whole. 33 U.S.C. Sec. 921(c)(3), as incorporated by 30 U.S.C. Sec. 932(a). Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as sufficient to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The Board may not engage in a de novo review, 20 C.F.R. Sec. 802.301, or substitute its own factual findings because it believes them to be more reasonable than those reached by the ALJ. Moseley v. Peabody Coal Co., 769 F.2d 357, 360 (6th Cir.1985). On questions of law, however, both this Court and the Board have plenary authority to review the conclusions of the ALJ and reverse them if convinced that they are erroneous. Warman, supra.
B.
11
The issue here is whether the Black Lung Disability Trust Fund or Consolidation is liable for Petracca's benefits.2 Coal mine operators are not required to pay black lung benefits to a miner who was not employed in or around a coal mine for at least one day after December 31, 1969. 30 U.S.C. Sec. 932(c); 20 C.F.R. Sec. 725.492(a)(3). The term "miner" is defined in the Act as "... any individual who works or has worked in or around a coal mine or coal preparation facility in the extraction or preparation of coal." 30 U.S.C. Sec. 902(d); 20 C.F.R. Secs. 725.101(a)(26) and 725.202(a). A "coal mine" is an
12
area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, under, or above the surface of such land by any person, used in, to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, anthracite, from its natural deposits in the earth by any means or method, and the work of preparing the coal so extracted, and includes custom coal preparation facilities.
13
30 U.S.C. Sec. 802(h)(2); 20 C.F.R. Sec. 725.101(23). Coal preparation is defined as "the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of a coal mine." 30 U.S.C. Sec. 802(i); 20 C.F.R. Sec. 725.101(a)(25).
14
Several courts of appeal, including this court, have interpreted the statutory definition of "coal miner" in section 902(d) as involving two separate components. First, the individual must have worked "in or around a coal mine" (situs requirement) and, second, that work must have been in the "extraction or preparation of coal" (function requirement). See e.g. Mitchell v. Director, Office of Workers' Compensation Programs, 855 F.2d 485, 489 (7th Cir.1988); Foreman v. Director, Office of Workers' Compensation Programs, 794 F.2d 569, 570 (11th Cir.1986); Wisor v. Director, Office of Workers' Compensation Programs, 748 F.2d 176, 178 (3d Cir.1984); Southard v. Director, Office of Workers' Compensation Programs, 732 F.2d 66, 69 (6th Cir.1984); Amigo Smokeless Coal Co. v. Director, Office of Workers' Compensation Programs, 642 F.2d 68, 70 (4th Cir.1981). What we must do is determine whether the ALJ was correct in holding that Petracca's work in the central machine shop satisfied both components of this two part test.
III.
A.
15
The ALJ held that Petracca's work in the central machine shop between 1970 and 1976 satisfied both the situs and function prongs of the coal mine employment test. As to function, the ALJ found that because "coal cannot be extracted without properly functioning equipment[,]" Petracca's duties were an "integral part of the coal extraction and preparation process." Decision and Order at 6, quoting Skipper v. Mathews, 448 F.Supp. 300, 302 (M.D.Pa.1977). As to situs, he found that the repair shop itself was a "structure or facility used in the process of extracting coal," and thus within the statutory definition of "coal mine." Decision and Order at 4. Since it was conceded that Petracca worked in the shop after December 31, 1969, questions of distance were rendered irrelevant. Id. The ALJ noted the apparent conflict between his ruling and the Board's decision in Siebert v. Consolidation Coal Co., 7 Black Lung Rep. 1-42 (1984), which held that a coal mine's central repair shop located a mile from the nearest extraction site did not constitute coal mine employment because it falled to meet the situs requirement. The ALJ distinguished Siebert on the grounds that "while somewhat ambiguous, [the testimony] generally indicated that after Claimant began working in the machine shop, he was required to work occasionally in the strip mine pits 'on and off' until the time he retired[.]" Decision and Order at 5. He held that the evidence, while "inconsistent and unclear," was insufficient to rebut the regulatory presumption that an individual employed by a coal mine operator was a statutorily defined "miner." See 20 C.F.R. Sec. 725.202(a).
16
The Board rejected the ALJ's findings as to situs, on the grounds that he improperly shifted the burden of proof on the question of coal mine employment. The Board held that, in fact, it is the claimant's burden to establish years of coal mine employment. Board Decision and Order at 2. The Board also held that work in a mine's central machine shop was not coal mine employment under the Act, citing Siebert, supra, and thus dismissed Consolidation as the responsible operator.
B.
17
The Director offers two alternative theories under which Petracca's work in the central machine shop should be considered coal mine employment under the Act. First, he claims that the machine shop itself constitutes a statutorily defined "coal mine." Relying on the reasoning of Skipper, supra, the Director argues that since the repairs performed in the machine shop are essential to the mine's extraction activities, the shop should be considered a facility on an area of land used in the work of extracting coal. See 30 U.S.C. Sec. 802(h)(2). He claims that the perimeter of the coal mining area is to be defined by function, not by strict geographical lines. Alternatively, the Director argues that even if the machine shop is not considered a section 802(h)(2) coal mine, Petracca should still be considered a miner because he worked "around" a statutorily defined coal mine. He noted that section 2(b) of the 1977 amendments to the Black Lung Act, Pub.L. 95-239, 92 Stat. 95 (codified as amended at 30 U.S.C. Sec. 902(d)), expanded the definition of miner from "any individual who is or was employed in a coal mine" to "any individual who works or has worked in or around a coal mine or coal preparation facility in the extraction, preparation, or transportation of coal." [emphasis added]. The Director says that the area "around" the coal mine should extend to an overall extraction area on which functions integral to extraction are performed, and that strictly geographical tests should be eschewed.
18
Consolidation, in turn, argues that the Director's proposed test would completely write the situs requirement out of the statute and would render function the sole factor determinative of coal mine employment. It contends that under such a construction all employees of a coal mine operator would necessarily be considered coal miners, regardless of where they work. Such an interpretation, Consolidation argues, would be antithetical to the statutory language and Congressional intent. It suggests that the line should be drawn at distant facilities removed from the mining process, where the employees never go to the actual mine site. Consolidation draws additional support for its position from a factually similar Seventh Circuit case in which the court held that an electrician working in a repair shop more than a mile and a half from the nearest mine was not a "coal miner" within the meaning of the Act because he failed to meet the situs requirement. See Director, Office of Workers' Compensation Programs v. Ziegler Coal Co., 853 F.2d 529 (7th Cir.1988).
IV.
19
The position of the Director that the central machine shop is itself a "coal mine" under the Act has some facial appeal, but upon closer examination proves inconsistent with the statutory language. As noted earlier, the statutory definition of "coal mine" is written in broad, sweeping language. It reads in relevant part:
20
'[C]oal mine' means an area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real and personal, placed upon, under, or above the surface of such land, by any person, used in, to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or anthracite from its natural deposits in the earth by any means or method, and the work of preparing the coal so extracted, and includes custom coal preparation facilities.
21
30 U.S.C. Sec. 802(h)(2). Certainly, such a definition would seem to encompass a machine shop located three-quarters of a mile from active strip mines.
22
This was the position taken by the district court in Skipper, supra, where a repair shop located a mile and a half from the extraction site was held to be a coal mine under the Act. The district court found that because the activities of the shop were integrally related to the work of extracting coal, the shop itself fell within the statutory definition of coal mine. The court went on to state that a facility involved in the extraction of coal need not be in the immediate vicinity of the actual extraction site to be considered part of a coal mine. Id. at 302-03. The district court was untroubled by the fact that in order to be considered a coal mine, the above ground structure must be used in the extraction of coal "in such area," explaining that
23
[t]he legislative history of Sec. 802 indicates that it was intended to be a broad definition covering 'all coal mines whether underground or not' and 'areas of adjoining mines physically underground.' See 2 U.S.Code Cong. and Admin.News, p. 2503 (1969).
24
Id. at 302-03.
25
This same question was recently considered by the Seventh Circuit in Ziegler, supra. In that case, the court rejected the Director's argument that the repair shop was a coal mine under section 802(h)(2), stating that "the statutory definition of a coal mine ... contains a geographical component; the facility must be on or below the area of land where coal is naturally found and is being extracted." Id. at 533.
26
We are constrained to agree with the Seventh Circuit that section 802(h)(2) does impose a geographical limitation on whether a facility used in the extraction of coal can be considered a coal mine. A close examination of the language of the section shows this to be the only reasonable interpretation. Section 802(h)(2) distinguishes between "structures, facilities, machinery, tools, equipment, shafts, slopes, excavations, and other property" which are used in the extraction of coal and those which are used in the preparation of coal. A structure or facility used in the extraction of coal is defined as a coal mine only if it is used in the extraction of coal "in such area." However, no such modifying clause applies to facilities used in the preparation of coal. The clear implication of this language is that in order for an extraction facility to be considered a coal mine, it must be located "in such area" where the coal is actually extracted. Conversely, preparation facilities are still defined as "coal mines" even though they may be geographically remote from the site where coal is physically mined. While it is unclear exactly how far Congress intended the limitation "in such area" to extend, we must reject the Director's argument that a machine shop performing a covered function is per se a coal mine under the Act.
V.
27
Even if the machine shop is not itself a coal mine, however, it is still possible to find that Petracca falls within the definition of miner under the Act. As noted earlier, a miner is defined as "any individual who works or has worked in or around a coal mine or coal preparation facility in the extraction, preparation, or transportation of coal." 30 U.S.C. Sec. 902(d). [emphasis added]. The term "around" is not self defining. Congress apparently left the exact limits of the area encompassed by the term intentionally vague. In light of this gap, we have an obligation to articulate some standard to determine whether on-site facilities physically removed from the extraction site are located "around a coal mine." In attempting to do so, we keep in mind that the Director's statutory interpretation is entitled to judicial deference since he is the one charged with administration of the Act. Saginaw Mining Company v. Mazzulli, 818 F.2d 1278 (6th Cir.1987).
A.
28
Recently, the Seventh and the Eleventh Circuits have each considered this question. In Ziegler, supra, the Seventh Circuit took a restrictive view, holding that employees working in facilities technically adjacent to the actual extraction site could be considered miners working "around" a mine only "if their normal duties brought them into frequent contact with the extraction site and the accompanying dust exposure." Id. at 535. The court noted that this would be an intensively fact-dependent determination and cautioned against the adoption of an inflexible, fixed distance rule. Id. In Baker v. United States Steel Corp., 867 F.2d 1297 (11th Cir.1989), the Eleventh Circuit found that a machine shop no closer than half a mile from the extraction pits was within the area around the mine. The court distinguished Ziegler, noting that the issue there was not whether the claimant would receive benefits, but rather whether the operator or the Trust Fund was to pay benefits which had already been approved. It held that the determination of whether a claimant satisfied the situs requirement "is necessarily dependent on the circumstances of each individual claim." Id. at 1300. The court identified two factors that it found particularly significant. First, it noted that where a machine shop is situated in a central location for the efficiency and economy of the employer, it will ordinarily be held to be "around" the coal mine. Second, the court suggested that prolonged exposure to coal dust was probative of a claimant's having met the situs requirement. Id.
B.
29
Having considered both Ziegler and Baker, we find that the Eleventh Circuit's approach is more faithful to the language of the Act and the policy considerations upon which it is based. The Ziegler test for determining when an employee is a miner is unsatisfactory because it completely reads the 1977 amendment to the definition of the term "miner" out of the Act.3 See section III(B), supra. An examination of the legislative history of the 1977 amendments shows that Congress deliberately sought to expand the coverage of the Act and include miners who were not formerly within its protection. Further, even the pre-1977 cases construing the term "miner" held that claimants having "frequent contact with the extraction site and the accompanying dust exposure" were covered. In Adelsberger v. Mathews, 543 F.2d 82 (7th Cir.1976), the court held that a clerical employee whose duties frequently required her to go into the defined area of the mine and underneath the tipple to talk to miners was herself a miner under section 902(d). Similarly, in Roberts v. Weinberger, 527 F.2d 600 (4th Cir.1975), the court held that the deceased husband of a claimant who drove a truck hauling coal from the immediate extraction site to a nearby tipple was a miner under section 902(d). These cases demonstrate that even when "miner" was defined as "any individual who is or was employed in a coal mine," claimants having frequent contact with the extraction site were held to be covered.
30
The legislative history of the Act also suggests that the broader approach of the Eleventh Circuit is more in line with Congressional intent. The 1977 amendments to the Act expanded the definition of miner from "any individual who is or was employed in a coal mine" to "any individual who works or has worked in or around a coal mine or coal preparation facility in the extraction, preparation, or transportation of coal." See Black Lung Benefits Reform Act of 1977, Pub.L. 95-239, 92 Stat. 95 (codified as amended at 30 U.S.C. Sec. 902(d)). The introduction to Senate Report 95-209, accompanying S. 1538 states:
31
The broad purposes of the bill reported by the Committee on Human Resources are to remove certain eligibility restrictions for the victims of Black Lung disease and their survivors who should be entitled to benefits; to reaffirm the legislative intent with respect to certain provisions which have been legislatively misinterpreted; and to assure that coal mine operators assume full financial responsibility for the Black Lung Benefits program.
32
* * *
33
* * *
34
Based on evidence presented to the Committee, it is apparent that there are many denied claims that should have been allowed under the 1972 amendments to Title IV of the Federal Coal Mine Health and Safety Act of 1969.
35
The provisions of the Committee bill will do much to eliminate the very real difficulties encountered by thousands of old and sick miners and their widows in their efforts to obtain what they believe are their well deserved benefits.
36
S.Rep. 95-209, at 1. Describing the revision of section 902(d), the report states that "the term 'miner' is expanded to include workers around a coal mine, processors and transporters of coal, and coal mine construction workers." S.Rep. 95-209 at 2 [emphasis added].4
37
This court has previously held that purposes and history of the Act require a broad interpretation. In United States v. Consolidation Coal Co., 560 F.2d 214 (6th Cir.1977), vacated and remanded, 436 U.S. 942, 98 S.Ct. 2841, 56 L.Ed.2d 783 (1978), opinion reinstated, 579 F.2d 1011 (6th Cir.1978), the Court held that coal mine offices located close to working mines and which were instrumental to ongoing mining operations fell within the definition of coal mine under the Act. We noted that " '[s]ince the Act in question is a remedial safety statute, with its primary concern being the preservation of human life, it is the type of enactment as to which a "narrow or limited construction is to be eschewed." ' " Id. at 218 quoting Freeman Coal Mining Co. v. Interior Board of Mine Operations Appeals, 504 F.2d 741, 744 (7th Cir.1974). Similarly, in deciding on the appropriate construction of the term "criteria" in 30 U.S.C. Sec. 902(f)(2), this Court in Kyle v. Director, Office of Workers' Compensation Programs, 819 F.2d 139 (6th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 566, 102 L.Ed.2d 591 (1988), observed that:
38
The legislative history of the Black Lung Program demonstrates a clear pattern. Congress passed a statute intended to provide wide-spread benefits to miners disabled by black lung disease. The benefits, while never very high, were intended to be liberally awarded. Administrative practice, however, did not comport with legislative intent, and twice Congress was impelled to specify its intentions more clearly 'in order to insure as broad coverage as possible.'
39
Id. at 143, quoting Echo v. Director, Office of Workers' Compensation Programs, 744 F.2d 327, 330 (3d Cir.1984). Most recently, in Falcon Coal Co. v. Clemons, 873 F.2d 916, 922 (6th Cir.1989), we noted that "[a]lthough 'the statutory language itself is restrictive,' Wisor v. Director OWCP, 748 F.2d 176, 178 (3d Cir.1984), remedial legislation, such as the Black Lung Benefits Act, should be construed broadly." [cites omitted].
C.
40
In light of the above discussion, it is clear to us that the term "around a coal mine" must be given a broad interpretation. Constructions which lead to seemingly arbitrary distinctions between similarly situated employees are to be avoided. While it is difficult to develop a verbal formula which will yield a consistent and fair result in each case, we nonetheless believe that the Eleventh Circuit's functional approach, as reflected in Baker, supra, represents a means of escaping from the indeterminacy of the situs dilemma.
41
The distance of the repair facility from the extraction site in the reported machine shop cases has varied from between half a mile to one and a half miles. See e.g. Baker, supra (half a mile); Ziegler, supra (one and a half miles); Consolidation Coal Co. v. Graham, 725 F.2d 674 (4th Cir.1983) (one and a half miles); Skipper, supra at 302 ("not in the immediate area"); Siebert, supra (one mile); Consolidation Coal Co. v. Director, OWCP, No. 85-1655 (Ben.Rev.Bd. Feb. 24, 1988) (three quarters of a mile). Yet the holdings in these cases seem to vary unpredictably. See e.g. Baker, supra (half mile held around the coal mine); Ziegler, supra (mile and a half held not around the coal mine); Consolidation Coal Co. v. Graham, supra (mile and a half held around the coal mine); Skipper, supra (not in immediate area held around the coal mine); Siebert, supra (one mile held not around the coal mine); Consolidation Coal Co. v. Director, OWCP, supra (three quarters of a mile held not around the coal mine). We cannot help but be struck by the apparent arbitrariness in the outcomes of cases which we believe are factually indistinguishable. All of these cases involve on-site mine equipment repair shops where machinery covered with coal dust is brought in for repair and painting. Clearly it is economically efficient for the mine operator to maintain repair shops in close proximity to the extraction pits in order to minimize the costs of transporting broken-down equipment, to reduce the turnaround time for repairs, and to assure availability of a staff of mechanics who can be called to the pits on short notice. It is equally clear, however, that mining operations are inherently peripatetic. When closer pits are exhausted, operations move to virgin sites. As one repair shop employee testified in this case,
42
[t]hat's the way stripping goes. You're at this hill one day, and the next day, you're over across the road. You go for the easy stuff first and then when they get bigger shovels, they take them back and get them. Some of them they stripped maybe in '45 and some of them they brought back like a year or two ago and took the bigger banks.
43
Joint Appendix at 142. There is ample reason to believe that this is generally the case in the mining industry. See e.g. Consolidation v. Graham, supra (extraction pits moved from one and a half to twenty miles from repair shop during the course of employee's career). Repair facilities, on the other hand, tend to be stationary. The distance from the extraction site will necessarily vary as mining operations move from area to area. The important point, however, is that on-site repair facilities are typically situated to be as close as possible to the extraction site without interfering with normal mining operations. Where a mine operator maintains this type of facility for its own benefit, it would be grossly unfair to allow it to escape liability for illnesses which occur as a result of occupational exposure to coal dust and we do not believe that Congress intended such a result. Accordingly, we hold that where a mine operator maintains a repair shop in the general vicinity of one or more extraction sites in order to avail itself of the economies of an on-site repair facility, the shop should be presumed to be "around a coal mine" as defined in section 902(d) of the Act.
44
Of course, we recognize that this verbal formulation cannot eliminate every ambiguity in every case. There will inevitably be situations where a repair shop is considerably more distant than the situations heretofore considered and a determination of what constitutes an "on-site" facility may be difficult. These determinations must necessarily be left to the reasoned decisionmaking of the administrative law judges. In the final analysis, questions of whether a facility lies within the "coal mine area" are questions of fact. Baker, supra at 1300; Ziegler, supra at 535. A decision of an administrative law judge should be overturned only if it is clearly in error. See supra section II(A). What we have attempted to do is isolate the qualitative factors which we believe give content and meaning to inherently elastic terms such as "around" and "area."
VI.
45
In conclusion, we find that the central machine shop in which Petracca worked fell within the statutory definition of the area "around the coal mine." Its close physical proximity with the mine site and the significant and regular exposure of those working in the shop to coal dust make their inclusion in the protection of the Act entirely just and reasonable. Accordingly, the decision of the Benefits Review Board dismissing Consolidation is REVERSED and Consolidation is REINSTATED as the responsible operator.
46
BOGGS, Circuit Judge, concurring in part and dissenting in part.
47
I concur in the portion of Judge Cohn's well-reasoned opinion which establishes rules amplifying the "situs" and "function" tests expounded in Southard and Baker. It appears to me, however, that his analysis of the "situs" requirement requires that the ALJ find that the claimant had some type of contact, however occasional, with the mining operation itself. The opinion, at pages 932-933, seems to contemplate, and in fact relies on cases involving, "frequent contact with the extraction site and accompanying dust exposure." Further, the court emphasizes, at page 934, the integration of repair shops and mines, referring to the "availability of a staff of mechanics who can be called to the pits on short notice." The significance of this integration lies in the proposition that if repairmen, such as Petracca, are frequently required to work at the mines, the probability of harmful dust exposure is vastly increased. The distance between the repair shop and the mine, correspondingly, becomes less important, thus allowing the claimant to meet the "situs" requirement.
48
In this case, however, while he did discuss the question of whether Petracca worked at the mines, the ALJ did not make any determination as to the integration of the repair shop and any of the pits, or any determination as to the working conditions in the repair shop. After considering the evidence presented on the question of whether the claimant was required to work at the strip mines, the ALJ concluded: "After thoroughly examining the record, I find that the testimony as it applied to the issue of 'situs,' is inconsistent and unclear." Because the ALJ did not make any findings on the integration issue or the actual dust exposure suffered by the repairmen, I cannot agree on this record that we can say that the ALJ determined, based on our statement of the rule of law, that the claimant actually worked "around" a coal mine. Thus, while I concur in reversing the decision of the Benefits Review Board, I would remand to the ALJ for further proceedings consistent with these views.
*
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation
1
Consolidation has not challenged the Board's determination as to Petracca's disability. Accordingly, the issue of Petracca's entitlement to benefits is taken as established for the purposes of this appeal
2
The Coal Mine Health and Safety Act of 1969 provided that the federal government would be financially responsible for the payment of benefits to miners filing black lung claims prior to December 31, 1973. Thereafter, the individual coal mine operators were to be directly liable for the payment of benefits to disabled claimants who had worked for them as miners after December 31, 1969. See 30 U.S.C. Sec. 932(a); 20 C.F.R. Sec. 725.492(a). The 1977 Amendments to the Black Lung Act (Title IV of the Coal Mine Health and Safety Act), Pub.L. 95-227, 92 Stat. 11 (1978), established the Black Lung Disability Trust Fund, financed by an excise tax on coal sold after March 31, 1978. The Trust Fund pays benefits to disabled miners who ceased coal mine employment prior to January 1, 1970 or who contracted pneumoconiosis working for an operator which is no longer in business. See generally E. Gellhorn, The "Black Lung" Act: An Analysis of the Legal Issues Raised Under the Benefit Program Created by the Federal Coal Mine Health and Safety Act of 1969 (As Amended), 7-9 (Federal Judicial Center, 1981)
3
Professor James Willard Hurst has cautioned against interpreting an amended statute in a manner which would rob the amending language of its "distinctive force." See J. Hurst, Dealing with Statutes 61 (1982)
4
Describing the successive amendments to the Act since 1969, Professor Ernest Gellhorn has noted that
[w]ith each change in coverage of the program [it] was extended so that eliglbility claims for compensation were more readily established. For example, the original Act provided coverage only for underground miners. This definition excluded many workers disabled because of pneumoconiosis because of exposure to similar dust levels in other mining operations. The effect of this limitation was spelled out in studies and congressional hearings and support for an expansion of the Act was mobilized. One result was that in 1972 the number of workers covered by the Act was expanded to include all coal miners, not just those working in underground mines. Finally, in 1977 the Act's eligibility provisions were rewritten to cover persons who work "in or around" a coal mine in the extraction or preparation of coal, thus including coal mine construction workers and truckers transporting coal.
E. Gellhorn, supra, at 4-5.
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943 So.2d 736 (2006)
FELICIANA BANK & TRUST, Appellant
v.
MANUEL & SESSIONS, L.L.C., Appellee.
No. 2005-CA-01296-COA.
Court of Appeals of Mississippi.
November 21, 2006.
*737 Jay Max Kilpatrick, Jackson, attorney for appellant.
Bruce M. Kuehnle, Natchez, attorney for appellee.
EN BANC.
SOUTHWICK, J., for the Court.
¶ 1. A bank brought suit for damages resulting from the cutting of timber on land in which it held a deed of trust. The defendant was granted summary judgment because a deed of trust was found not to provide a security interest in timber. We disagree. Therefore we reverse and remand.
FACTS
¶ 2. Louis Owen Ducote owned approximately fifty-one acres of land in Wilkinson County, Mississippi. In 1995, Ducote borrowed $20,000 from Feliciana Bank & Trust, then in 1998 he borrowed $100,000 from the same bank. Each time he conveyed the Wilkinson County property in trust to Feliciana to secure the loan. The deeds of trust were then filed in the land records.
¶ 3. On August 19, 1999, Ducote signed a piecemeal timber sale contract with Pat Conerly Forestry Services. Under this contract Conerly was "to secure a logging contractor, to manage all logging activities, to perform all activities normally performed by a forester, to secure market price and to sell and disburse stumpage through Woodville Logging." Ducote warranted the title to the timber and agreed to hold Conerly harmless from any third party claim of ownership.
¶ 4. Woodville Logging Services is a Mississippi corporation. Tom Manuel and Jody Sessions are its principals. Woodville contracts with mills and then acts as a broker to acquire timber to be sold to the mills. The defendant's initial motion for summary judgment states that "Woodville Logging Services, Inc. is a corporation *738 owned by the Defendant, Manuel & Sessions, L.L.C." That named defendant is a limited liability company owned solely by Tom Manuel and Jody Sessions.
¶ 5. Conerly's affidavit asserted that he asked Manuel & Sessions, L.L.C. to find a mill that would purchase the Ducote timber. Conerly also asked if it could recommend a logger to cut the trees. Manuel & Sessions recommended Benjamin Groom, who regularly obtains work from Manuel and Sessions. Conerly selected the trees to be cut. Groom cut and delivered the trees to a mill. The record implies that the timber was cut in the spring of 2001. Conerly states that the mill paid Manuel & Sessions, and the money was then disbursed to Groom, Conerly, and Ducote. Ducote received $13,500 for the timber.
¶ 6. At some point after the timber was cut, Feliciana foreclosed because Ducote defaulted on the loan. Feliciana purchased the property at the foreclosure sale and later sold the property to Bryan Development Company, but Feliciana did not recover the full amount of the debt.
¶ 7. In 2002, Feliciana filed a complaint against Manuel & Sessions, arguing that it had a valid security interest in the timber on Ducote's property. Feliciana sought $60,000 under the doctrine of waste. In 2005, Manuel & Sessions filed for summary judgment, arguing that no perfected security interest in the timber existed because Feliciana did not file in accordance with the Uniform Commercial Code. After a hearing, the motion was granted. Feliciana perfected this appeal.
DISCUSSION
¶ 8. We perform a de novo review of a trial court's decision on a motion for summary judgment. Wilner v. White, 929 So.2d 315, 318 (Miss.2006). We examine all the evidence in a light favorable to the non-moving party. If the moving party carries its burden of proving that there is no dispute of material fact and that it is by law entitled to judgment, we will affirm. Id.
1. Effect of Uniform Commercial Code on timber deed of trust
¶ 9. The trial court found that a Uniform Commercial Code section had altered the long-standing efficacy of deeds of trust on land as security interests in the timber that grows on the land. The interplay of the UCC with the common law of real property is not a new issue. The UCC itself recognizes that the codified commercial law might impact on traditional real property concepts. In a provision in the section on sales, the Code provides this:
Section 75-2-107. Goods to be severed from realty; recording.
(1) [Contract for the sale of minerals or of a structure to be removed from realty].
(2) A contract for the sale apart from the land of growing crops or other things attached to realty and capable of severance without material harm thereto but not described in subsection (1) or of timber to be cut is a contract for the sale of goods within this chapter whether the subject matter is to be severed by the buyer or by the seller even though it forms part of the realty at the time of contracting, and the parties can by identification effect a present sale before severance.
(3) The provisions of this section are subject to any third party rights provided by the law relating to realty records, and the contract for sale may be executed and recorded as a document transferring an interest in land and shall then constitute notice to third parties of the *739 buyer's rights under the contract for sale.
Miss.Code Ann. § 75-2-107 (Rev.2002). How to read this section alongside other Mississippi law is one of the principal issues on this appeal.
¶ 10. In Mississippi, timber is part of the realty until cut. South Miss. Electric Power Ass'n v. J.F. Miller Timber Co., Inc., 314 So.2d 346, 348 (Miss.1975). The adoption of the Uniform Commercial Code in Mississippi and specifically the just-quoted section 75-2-107(2) altered some traditional principles. This code is a nationally-created, nationally-adopted set of statutes that after enactment by this state's legislature is to be interpreted within the entire legal environment. Pre-existing law inconsistent with the Code would be replaced; consistent law would not be.
¶ 11. A deed of trust may specifically refer to timber and create explicit obligations such as not to cut without authorization. Taylor v. Fed. Land Bank of New Orleans, 162 Miss. 653, 656, 138 So. 596, 597 (1932). Conveyances of real property, though, without further elaboration and whether the conveyance is in trust, in fee simple or otherwise, grant everything that is part of the realty. Albritton v. Williams, 198 So. 573, 574 (Miss.1940). In Albritton, several deeds of trust either specifically on timber or specifically excluding timber had been executed. Id.; Albritton v. Williams, 184 Miss. 857, 186 So. 324 (1939). The Mississippi Supreme Court held that when a deed of trust was executed "without reserving the timber, [it] thereby conveyed the timber, for ordinarily timber is a part of the land on which it stands." Albritton, 198 So. at 574. Since growing timber is part of the realty, a conveyance of the realty without excepting the timber will also convey that timber.
¶ 12. The deed of trust in issue conveyed to the trustee "the land described," as well as "improvements and appurtenances now or hereafter erected on, and fixtures," which is sufficient language to cover everything that is by law part of the realty. The Code section quoted above is "subject to any third party rights provided by the law relating to realty records. . . ." Miss.Code Ann. § 75-2-107(3) (Rev.2002). That certainly appears to be a legislative effort to make the UCC rest peaceably alongside real property law.
¶ 13. What the trial court found had undermined these long-existing rules was that in addition to the previously quoted section on sales, the Mississippi Legislature had also adopted a section that defined "standing timber that is to be cut and removed under a conveyance or contract for sale" as "goods." Miss.Code Ann. § 75-9-102(a)(44) (Rev.2002). Security interests in "goods" are created by a filing under Article 9 of the UCC. The bank argues that it complied with the financing statement filing obligations. Feliciana's compliance with the UCC filing procedures is questionable, but we conclude that a traditional deed of trust filing was sufficient.
¶ 14. The trial court in essence concluded that the Mississippi commercial code displaced the common law on the securing of interests on timber. Under that view, either a deed of trust no longer applies to timber at all, or the security is lost as soon as a conveyance or contract for sale of timber occurs. The legislature has certainly defined standing timber as personal property upon the execution of a contract for its cutting. Someone involved in that cutting may make a UCC filing to secure the interest that has been obtained. Prior to such a contract, though, the UCC does not cause timber to be classified as "goods." Absent any statutory forcing of a change in the common law, the timber prior to a contract for its cutting would *740 remain real property. The UCC does not purport to cancel the reach of a pre-existing deed of trust which at least would secure timber that is not subject to a contract for harvesting. Consequently, the most the UCC would have done is cancel the lien of a deed of trust as soon as a contract for a timber sale occurs. If cancellation is the result of the Code, there would be no lasting security over timber created by a deed of trust.
¶ 15. We conclude that the proper analysis is not one of cancellation but of priority. Historically, a deed of trust granted a security interest in all property that was part of the realty. Under the UCC, though, if a typical deed of trust is executed after a contract for the cutting of the timber has been executed but before the actual harvesting of the trees, the deed of trust will either not apply to the timber at all because the timber is now personalty, or else the deed of trust will be subordinate to a prior UCC filing. Conversely, if the deed of trust predates any contract to cut the timber, the security interest vests in timber and cannot be divested simply by a contract for sale. Again, the matter is one of priority. A related statute makes clear that security interests in crops and fixtures filed under real property law remain valid encumbrances, but that competing security interests created under Article 9 of the UCC create issues of priority. Miss.Code Ann. § 75-9-334 (Rev.2002). Similarly, the previously quoted section on sales relating to timber recognizes the continuing effect of real property rules when it states that timber sales under the UCC "are subject to any third party rights provided by the law relating to realty records. . . ." Miss.Code Ann. § 75-2-107(3).
¶ 16. The bank had a perfected security interest in the timber. The rights of any subsequent purchasers of that timber were subordinate to the interest of the bank. The bank's failure to perfect its interests under the UCC was irrelevant to its right to remain secure.
2. Mortgagee's cause of action for waste
¶ 17. Since Feliciana had a recorded security interest in the timber, the next issue is whether it has a cause of action for the cutting. In one precedent involving the Federal Land Bank, the court said that a "stranger who enters upon mortgaged land, and cuts and removes timber therefrom without the consent of the mortgagee, and thereby destroys or materially impairs the value of the security, is liable to the mortgagee" for the value of the timber removed. Taylor, 162 Miss. at 656, 138 So. at 597. Loss of value is shown by "proof that at a foreclosure sale the mortgaged property brought less than the mortgage debt." Id. The total value of the Taylor timber was $300. The timber cutters paid the delinquent taxes of $92 on the property and paid the remaining $208 to the bank. Taylor, 162 Miss. at 656-57, 138 So. at 597. The removed timber materially impaired the value of the security and the bank was entitled to the entire $300 from the timber cutters. Id.
¶ 18. Feliciana also cites a precedent in which we found that individuals who held a recorded option to purchase real property, could after exercising the option bring a claim for waste against the entity who cut the timber without their permission. McCorkle v. LouMiss Timber Co., 760 So.2d 845, 853 (Miss.Ct.App.2000). That precedent may be exceptional in its allowing those who had executory or contingent interests to subject owners of fee interests and their assigns to impeachment for waste. Still, both McCorkle and Taylor recognize that owners of certain recorded interests in real property may, after coming *741 into possession, claim loss of value resulting from timber having been earlier cut without their consent. This principle is consistent with the rule that a mortgagee who had not foreclosed could not sue a trespasser who had taken turpentine from the secured property. Farmers' Loan & Trust Co. v. Avera, 7 So. 358 (Miss.1890). Under Taylor, creditors with secured interests may bring suit for the value of timber cut from the property if after a foreclosure sale there is a shortfall. Considering that $13,500 was paid for the timber and Feliciana did have a shortfall, we find no question that cutting the timber diminished Feliciana's security.
¶ 19. In summary, the deed of trust was recorded at the time of the timber cutting, and the value of the security was diminished by taking timber. Buy from any owner, then cut and run are not proper practices for the timber industry. Once Feliciana foreclosed on its recorded deed of trust, it could bring suit for devaluation of its recorded security.
3. Action for waste against Manuel & Sessions
¶ 20. Whether a claim for waste exists against this defendant, Manuel & Sessions, is the final issue. The defendant's role in the cutting is unclear. Conerly asserted that the landowner Ducote contracted with him to cut the timber. Conerly then contacted Manuel & Sessions because it had a contract with a mill where Conerly wished to sell this timber. Manuel & Sessions allegedly agreed to allow the timber to be sold to a mill under its contract. Conerly indicated that the company recommended using a logger named Benjamin Groom. Conerly followed the recommendation.
¶ 21. Slightly differently, Manuel & Sessions stated that its wholly-owned subsidiary, Woodville Logging Service, actually brokered the timber to a mill with which Woodville Logging regularly did business. Woodville Logging allegedly was the one that distributed the funds to the landowner Ducote, to Conerly, and to Groom. Conerly's affidavit said it was Manuel & Sessions that had a "delivered price contract" with the mill. He also asserted that the mill paid Manuel & Sessions, which kept part of the proceeds and then made disbursements to the others.
¶ 22. The record contains no executed documents reflecting the defendant's agreement to engage in any transaction regarding this timber. Feliciana argues that Manuel & Sessions "was intricately involved" with logging and the sale of this timber to the mill. The defendant admittedly had a brokering function at least through its subsidiary, Woodville Logging. The company's affidavit states that neither Manuel & Sessions nor Woodville Logging ever contracted to purchase or cut, or actually cut, purchased, or had possession or title to any of the subject timber.
¶ 23. Feliciana alleges that the defendant's liability is shown by the precedent in which the Federal Land Bank foreclosed on property and then brought suit against the timber cutter. Taylor, 162 Miss. at 656, 138 So. at 596. As quoted above, "a stranger who enters upon mortgaged land, and cuts and removes timber without the consent of the mortgagee," was liable to the mortgagee for the value of the timber if the worth of the security was diminished. Id., 162 Miss. at 657, 138 So. at 597. Taylor's facts are distinguishable because its deed of trust expressly prohibited the cutting of the timber and Feliciana's did not, but that difference is immaterial since the timber was part of the property subject to the mortgage. Taylor cited only one authority for its decision, which stated that a mortgagee has a claim against a "stranger" who does *742 any act "which destroys or impairs the value of his security, although the right is conditioned upon the fact of the mortgage debt remaining still unpaid, wholly or in part." 41 C.J. Mortgages § 641 (1926), at 652. The language of Taylor and its cited authority both focus on impairing the value of the security and not on violating a specific provision of the deed of trust concerning timber cutting. Id.
¶ 24. Liability for diminishing the value of this land is evaluated under the doctrine of "waste," which is a "substantial injury done to the inheritance, by one having a limited estate, during the continuance of his estate." Moss Point Lumber Co. v. Bd. of Supervisors of Harrison County, 89 Miss. 448, 526, 42 So. 290, 300 (1906). If the Manuel & Sessions participated in a legally relevant manner in the timber cutting, then it would be a proper defendant.
¶ 25. The evidence on summary judgment supports that either the defendant or its wholly owned subsidiary brokered the timber to a mill, then distributed the proceeds. It is conceded that Manuel & Sessions, L.L.C. is a limited liability company. Its subsidiary Woodville Logging Service, Inc., is described as a Mississippi corporation with Tom Manuel and Joseph Sessions as the principals. A limited liability company may purchase, own, or otherwise hold shares in corporations. Miss.Code Ann. § 79-29-109(2)(e) (Rev.2001). If the only involvement in the timber cutting, sale, and distribution of funds by anyone with a connection to Manuel & Sessions was by its wholly owned subsidiary corporation, then the defendant would be a proper defendant only under legal principles that in rare circumstances allow the corporate entity to be ignored. If a corporation acts wrongfully, the corporation is to be sued and not its owners. To pierce the corporate veil and reach the owners takes proof that was not offered or even suggested in this case.
¶ 26. The determinative issue on this appeal is whether this defendant engaged in acts subjecting it to liability. "Waste is a tort defined as the destruction, alteration, misuse, or neglect of property by one in rightful possession to the detriment of another's interest in the property." 8 POWELL ON REAL PROPERTY § 56.01 (Wolf ed.2000). Liability for torts is shared among all who are joint tortfeasors. Whether the defendant committed a tort depends on the evidence. Either Manuel & Sessions or Woodville Logging brokered the timber. The record contains no explanation of what a timber broker does. We accept, then, that the word "broker" is to be understood in its colloquial sense as an entity that brings a buyer and seller together. Compensation is paid for the service, allegedly here out of the proceeds paid by the mill. Conerly's affidavit also states that the actual timber cutter, Benjamin Groom, was recommended by Manuel & Sessions, but there is no evidence that he was an employee or had any legally relevant connection to the defendant.
¶ 27. The actual timber cutter would be liable to a mortgagee when the cutting occurs without the latter's consent. Taylor, 138 So. at 597. A broker of the timber who had no involvement in the transaction other than to link a seller with a buyer does not clearly appear to be within Taylor's reach. However, Manuel & Sessions' role if any as to this timber is unclear. We have concern but not conviction that liability has not been shown. A party seeking summary judgment must prove that it is entitled to judgment as a matter of law. M.R.C.P. 56(c). When "additional facts will add clarity and a greater assurance of a just disposition on the merits," summary judgment may be denied. Hudgins v. Pensacola Constr'n Co., 630 So.2d *743 992, 993 (Miss.1994). In part because the trial judge did not rule on the basis that we are discussing, and also because of the ambiguities in the record of what the defendant did, we invoke the Hudgins suggestion and remand.
¶ 28. Whether Feliciana may recover from Manuel & Sessions remains to be shown. On remand, the trial court should determine Manuel & Sessions' factual role and then any legal responsibility for the cutting of this timber, thereby assessing whether compensable damage to this plaintiff was the result of any actions or omissions by this defendant.
¶ 29. THE JUDGMENT OF THE WILKINSON COUNTY CIRCUIT COURT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.
KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. LEE, P.J., CONCURS IN RESULT ONLY.
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} |
10-4600-ag
NLRB v. Snell Island SNF LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 20th
day of December, two thousand eleven.
Present:
ROBERT D. SACK,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
________________________________________________
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 10-4600-ag
SNELL ISLAND SNF LLC, d/b/a SHORE ACRES REHABILITATION AND NURSING
CENTER, LLC, d/b/a CAMBRIDGE QUALITY CARE, LLC,
Respondent.
________________________________________________
For Petitioners: ROBERT J. ENGLEHART (David A. Seid, on the brief), National Labor
Relations Board, Washington, D.C.
For Respondent: CHARLES PREYER ROBERTS, III, Constangy, Brooks & Smith, LLP,
Winston-Salem, N.C. (Clifford H. Nelson, Jr., Constangy, Brooks &
Smith, LLP, Atlanta, Ga., on the brief)
Application for enforcement of a decision and order of the National Labor Relations
Board.
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the application for enforcement is GRANTED.
Petitioner the National Labor Relations Board (the “Board”) petitions to enforce a final
Board order issued against Snell Island SNF LLC d/b/a Shore Acres Rehabilitation and Nursing
Center, LLC (“Shore Acres”) and HGOP, LLC d/b/a Cambridge Quality Care, LLC (“HGOP”)
(collectively “the Company”) concluding that the Company violated Section 8(a)(5) and (1) of
the National Labor Relations Act (the “Act”), 29 U.S.C. §§ 151, 158(a)(5) and (1), by failing to
recognize and bargain with the United Food & Commercial Workers Union, Local 1625 (“the
Union”). In response to the Board’s application, the Company argues that the Board (1) abused
its discretion by certifying the Union without interviewing witnesses or conducting an
evidentiary hearing; and (2) denied the Company due process by its hasty “rubber stamping” its
prior decision, which had been issued by an invalid two-member panel, following remand by this
Court. We assume the parties’ familiarity with the facts and procedural history of this case.
“We must enforce the Board’s order if the Board’s legal conclusions have a reasonable
basis in law, and if its factual findings are supported by substantial evidence on the record as a
whole.” NLRB v. Windsor Castle Health Care Facilities, Inc., 13 F.3d 619, 623 (2d Cir. 1994)
(internal citation omitted). “Deference is given to the NLRB’s decision, and all reasonable
inferences are drawn in its favor.” Lihli Fashions Corp. v. NLRB, 80 F.3d 743, 747 (2d Cir.
1996) (per curiam).
We begin with the Company’s contention that the Board abused its discretion by
overruling the Company’s objections to the contested election without a hearing and concluding
that the Company violated Section 8(a)(5) and (1) of the Act. We addressed this precise
2
argument in our previous decision in this case, Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d
Cir. 2009), abrogated on other grounds by New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635
(2010). There, we held that the Board’s regional director did not err in recommending that the
Company’s objections be overruled without a hearing and that the Union be certified as the
employees’ bargaining representative.
In the instant case, petitioners were afforded an opportunity to submit
“[a]ffidavits, signed statements, documents or other appropriate material which
constitutes prima facie evidence of each of the filed objections” to the NLRB regional
director. J.A. 28. The regional director reviewed petitioners’ proffered evidence,
including a letter from petitioners stating that at least two employees would testify that
several co-workers told them prior to the union election that “if they were going to vote
‘No’ it would be best for them not to vote at all,” J.A. 40 (Report on Objections to [the]
Election and Recommendations to the Board, Jan. 18, 2008, at 4.). The regional director
found that these submissions were, at best, hearsay statements by management that
employees had asserted complaints about a general atmosphere of union intimidation. In
light of this finding, the regional director concluded that the evidence did not support
petitioners’ objections because second- or third-hand allegations of intimidation, without
specific allegations of voter coercion or other misconduct, could not constitute an unfair
labor practice. See, e.g., NLRB v. Basic Wire Prods., Inc., 516 F.2d 261, 264 (6th Cir.
1975) (stating that the NLRB “properly refused to invalidate the election or to hold a
hearing on the allegations” of election abuses where “[t]he only evidence proffered by
[employer] was an affidavit of its Vice President to the effect that ‘union people’ told
several employees ‘that it would pay to support the Union’”). We agree. Petitioners did
not “demonstrate by prima facie evidence the existence of substantial and material
factual issues,” [NLRB v. Semco Printing Ctr., Inc., 721 F.2d 886, 891 (2d Cir. 1983)]
(internal quotation marks omitted). Accordingly, we detect no error in the regional
director's decision to forgo a hearing in this case.
Id. at 425 (some alterations in original). Neither the underlying facts nor the applicable legal
standards have changed since we issued our opinion in 2009. Accordingly, we hereby reaffirm
our prior decision and conclude that the Board did not abuse its discretion by declining to
conduct an evidentiary hearing in this case.
We next consider whether the Board’s actions in this case denied the Company due
process. By way of brief background, the instant petition stems from an election held on
3
December 12, 2007 in which employees of the Company voted in favor of representation by the
Union. Snell Island, 568 F.3d at 413. After a two-member panel of the Board certified the
Union, the Company continued to refuse to recognize and bargain with the Union, and, as a
result, the Union filed an unfair labor practices charge. Id. On July 18, 2008, the two-member
panel issued a Decision and Order concluding that petitioners had engaged in unfair labor
practices by refusing to negotiate with the Union. Id. at 414. The Board’s Decision and Order
was upheld by this Court its June 17, 2009 decision. The Company then successfully appealed
to the Supreme Court, which held in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010),
that the two-member Board lacked the power to issue decisions. The Supreme Court granted
certiorari and remanded in light of New Process, and we then remanded the case to the Board on
August 25, 2010. Two days later, a three-member panel convened to reconsider the case
certifying the Union representation and issued a notice to show cause as to why the Board should
not grant summary judgment. J.A. 93-94. After first noting that the two-member decision would
not be given “preclusive effect,” Snell Island, 355 N.L.R.B. No. 143 (2010), the Board adopted
the findings and recommendations of its prior decision, which it incorporated by reference. It
granted leave for either party to amend the complaint to line with the current sate of the evidence
and issued a notice to show cause as to why the Board should not grant summary judgment. On
November 9, 2010, after the regional director issued an amended complaint and the Company
filed its answer, the three-member panel granted summary judgment and concluded that the
Company had violated Section 8(a)(5) and (1) of the Act. See J.A. 95-108, 118-19. The Board
directed the Company to bargain and filed its petition for enforcement in this Court the same day
it issued its decision. Against this background, the Company now argues that the Board’s failure
4
to reconsider the matter “afresh” amounted to a “hasty rubber stamping of its prior decision
constituted a denial of due process.” Resp’t Br. 14 (capitalization removed).
We do not reach the merits of the Company’s due process argument, however, because
we lack jurisdiction to consider an issue raised for the first time on appeal. Section 10(e) of the
Act provides, in relevant part, that “[n]o objection that has not been urged before the Board, its
member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge
such objection shall be excused because of extraordinary circumstances.” 29 U.S.C. § 160(e).
See also Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982) (“[T]he Court of
Appeals lacks jurisdiction to review objections that were not urged before the Board . . . .”).
“Extraordinary circumstances” excusing a failure to raise an objection “exist only if there has
been some occurrence or decision that prevented a matter which should have been presented to
the Board from having been presented at the proper time.” NLRB v. Allied Prods., Corp., 548
F.2d 644, 654 (6th Cir. 1977). No such circumstances exist in this case because the Company
could have raised its due process arguments before the Board by moving for a rehearing. See id.
(“[B]ecause of the availability of a rehearing before the Board, the Board’s sua sponte adoption
of the status quo ante remedy is not a statutory extraordinary circumstance.”); Woelke & Romero
Framing, Inc., 456 U.S. at 666 (“Woelke could have objected to the Board’s decision in a
petition for reconsideration or rehearing. The failure to do so prevents consideration of the
question by the courts.”). Accordingly, we conclude that the Company has forfeited its due
process challenge.1
1
Our conclusion in this regard accords with a recent D.C. Circuit decision in a similar case:
Nor do we reach the Hospital’s argument that the Board failed to engage in “reasoned
decisionmaking”—as the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.,
requires of Board decisions, Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,
5
We have considered the Company’s remaining arguments and find them to be without
merit. For the reasons stated herein, the Board’s application for enforcement is GRANTED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
374, 118 S. Ct. 818, 139 L. Ed. 2d 797 (1998) – when the three-member panel of the
Board summarily adopted the vacated April 29, 2009 decision and order. Whatever the
merits of the Hospital's claim, section 10(e) prevents us from considering the argument
raised for the first time on appeal. See 29 U.S.C. § 160(e) (“No objection that has not
been urged before the Board . . . shall be considered by the court, unless the failure or
neglect to urge such objection shall be excused because of extraordinary
circumstances.”). The fact that the Board filed an application for enforcement in the
Second Circuit just one day after adopting the decision and order does not constitute an
“extraordinary circumstance[],” as the Hospital contends, because the Hospital still had
up to twenty-eight days to move for reconsideration before the Board, 29 C.F.R. §
102.48(d)(2), and the Board’s overlapping jurisdiction remained intact so long as the
record had not been filed in the Second Circuit, 29 U.S.C. § 160(d), (e). Nor did the
Hospital’s motion for reconsideration of the Board’s original April 29, 2009 decision and
order, . . . raise the same objection the Hospital presses now—that the Board took an
“impermissible shortcut” by summarily adopting the vacated decision and order. Pet’r’s
Br. 32. Accordingly, the Hospital has forfeited its APA challenge.
N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723, 733 (D.C. Cir. 2011) (alteration in original).
6
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2281
_____________
VIVIAN KENNEDY,
Appellant
v.
HELP AT HOME, LLC
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-16-cv-05291)
District Judge: Hon. J. William Ditter, Jr.
_______________
Submitted Under Third Circuit LAR 34.1(a)
April 26, 2018
Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges
(Filed: April 27, 2018)
_______________
OPINION ∗
_______________
∗
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Vivian Kennedy appeals the dismissal of her employment discrimination lawsuit
against her former employer, Help at Home, LLC. Because we agree that the District
Court lacks personal jurisdiction over Help at Home, we will affirm.
I. BACKGROUND 1
Kennedy, a resident of Philadelphia, Pennsylvania, filed an employment
discrimination lawsuit in the Eastern District of Pennsylvania against Help at Home, a
Maryland-based company, stemming from her employment as a live-in home care nurse
for a client located in Maryland. 2 Kennedy alleges that she was subjected to gender-
1
We write primarily for the parties and thus set forth only the facts necessary to
our analysis. Those facts include information pertinent to Help at Home’s jurisdictional
argument, as set forth in the affidavit of its owner, Terri Rabkin. Except as noted, see n.2
infra, we assume the truth of the allegations in Kennedy’s complaint and resolve all
factual disputes in her favor. O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d
Cir. 2007); see also Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 142 & n.1 (3d Cir.
1992) (reviewing motion to dismiss for lack of personal jurisdiction, and concluding that,
“[b]ecause the district court granted a motion to dismiss, we state the facts as set forth in
the plaintiff’s [complaint]”).
2
In her complaint, Kennedy alleges that “Help at Home, LLC is a home care
agency with its Executive Offices located” in Chevy Chase, Maryland. (JA at 7-8.) The
complaint alleges no facts concerning where the alleged incidents of harassment or
workplace discrimination and related injuries occurred. Although the complaint states
that the District Court has personal jurisdiction over the defendant and that venue is
proper because the “[d]efendant is located in and/or regularly conducts business in this
judicial district and because all of the acts and/or omissions giving rise to the claims set
forth herein occurred in this judicial district[,]” (JA at 8-9) those statements are
generalized boilerplate allegations pertaining to Help at Home’s citizenship and
minimum contacts with the forum. Moreover, as discussed herein, Kennedy has not
challenged Help at Home’s representation that it is a Maryland-based company that
conducts no business in Pennsylvania, and she has conceded that “the alleged incidents of
harassment occurred in Maryland[.]” (JA at 39.)
2
based discrimination, a hostile and unsafe working environment, and retaliation in the
form of termination after she complained that a client had sexually harassed her.
Help at Home filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(2) for lack of personal jurisdiction and Rule 12(b)(6) for failure to timely exhaust
administrative remedies, which the District Court decided on the parties’ written
submissions. In reviewing the additional jurisdictional facts raised in Help at Home’s
motion to dismiss and supporting affidavit – which Kennedy did not contest – the Court
found that Kennedy was “a Pennsylvania resident [who] went to Maryland to work for a
Maryland employer and was harassed in Maryland by a Maryland resident who was a
client of the employer[.]” (JA at 3.) It rejected Kennedy’s sole jurisdictional theory, that
the Court has specific jurisdiction over Help at Home, reasoning that she failed to cite
any case law, nor was the Court aware of any, to support her claim that her residence in
Pennsylvania is sufficient to establish jurisdiction over a nonresident defendant. Thus,
the Court determined that it lacked “any basis to conclude that [it] ha[d] jurisdiction over
Help at Home,” and dismissal was proper. (JA at 3.) The Court then separately
determined that dismissal under Rule 12(b)(6) was also proper because Kennedy had
failed to timely exhaust her administrative remedies, thereby depriving it of subject
matter jurisdiction. Concluding that no set of facts could be alleged to cure that defect,
the Court dismissed the case with prejudice.
Kennedy filed a motion for reconsideration, challenging only dismissal under Rule
12(b)(6), which the Court denied. She has now appealed.
3
II. DISCUSSION 3
Help at Home argues that we should summarily affirm because Kennedy has not
challenged the District Court’s conclusion that it lacks personal jurisdiction over Help at
Home. 4 See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (noting that
“[p]ersonal jurisdiction, too, is an essential element of the jurisdiction of a district …
court, without which the court is powerless to proceed” (internal quotation marks and
citation omitted)). But even taking the issue on the merits, we agree with the District
Court’s conclusion that it lacked personal jurisdiction over Help at Home.
We exercise plenary review over a district court’s dismissal for lack of personal
jurisdiction. Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 780 (3d Cir. 2018). Once
challenged, the plaintiff bears the burden of showing that personal jurisdiction exists and
3
The District Court determined that it lacked subject matter jurisdiction; we have
jurisdiction to review final orders of dismissal under 28 U.S.C. § 1291.
“We may affirm the district court on any ground supported by the record.” Joyce
v. Maersk Line Ltd., 876 F.3d 502, 512 n.11 (3d Cir. 2017) (en banc) (citation omitted).
Because we agree that the District Court lacks personal jurisdiction over Help at Home,
we do not reach, though we question, the Court’s alternative reason for dismissal for lack
of subject matter jurisdiction. Francis v. Mineta, 505 F.3d 266, 267-68 (3d Cir. 2007); cf.
McDonnell v. United States, 4 F.3d 1227, 1240 n.9 (3d Cir. 1993) (noting that “failure to
exhaust administrative remedies does not per se deprive the court of subject matter
jurisdiction,” and suggesting that exhaustion is a “prudential consideration that the court
takes into account in determining whether to exercise subject matter jurisdiction”).
4
In her opening brief, Kennedy does not challenge dismissal under Rule 12(b)(2).
By failing to identify an issue on appeal and present a cogent legal argument to support it,
an appellant typically forfeits the issue, and the court need not address it. See Colwell v.
Rite Aid Corp., 602 F.3d 495, 503 n.7 (3d Cir. 2010) (“It is well settled that an
appellant’s failure to identify or argue an issue in [her] opening brief constitutes waiver
of that issue on appeal.” (quoting United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.
2005))).
4
must establish at least “a prima facie case of personal jurisdiction[.]” O’Connor v. Sandy
Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007).
Because Pennsylvania’s long-arm statute authorizes personal jurisdiction over
nonresident defendants to the fullest extent permitted under the Constitution, the question
is whether maintaining suit in the Eastern District of Pennsylvania comports with the Due
Process Clause of the Fourteenth Amendment. Id.; see also 42 Pa. Cons. Stat. Ann.
§ 5322(b). “The due process inquiry involves an assessment as to whether the quality
and nature of the defendant’s activity is such that it is reasonable and fair to require [that
it] conduct [its] defense in that state,” i.e., whether the defendant has sufficient
“minimum contacts” with the forum. Metcalfe v. Renaissance Marine, Inc., 566 F.3d
324, 334 (3d Cir. 2009) (alterations in original) (internal quotation marks and citations
omitted).
In opposing dismissal, Kennedy raised only one theory of personal jurisdiction,
arguing that the District Court had specific personal jurisdiction over Help at Home.
“[S]pecific personal jurisdiction … exists when alleged injuries arise out of or relate to
activities purposefully directed by a defendant toward residents of the forum state.”
Shuker, 885 F.3d at 780 (internal quotation marks and citation omitted).
The District Court rightly determined, however, that Kennedy failed to show that
Help at Home purposefully directed any conduct at Pennsylvania. Her complaint alleges
that Help at Home maintains its executive office in Maryland, and she does not contest
that it is a Maryland-based company that conducts no business in Pennsylvania.
Moreover, she has conceded that “the alleged incidents of harassment occurred in
5
Maryland[.]” (JA at 39.) Even if we assume, as Kennedy has argued, that “the harm
mostly occurred in Pennsylvania” because that is where she went home and felt the
effects of her ill-treatment, she has cited nothing in the complaint or case law to support
her contention that Help at Home’s knowledge of her Pennsylvania residence is
sufficient, “in the context of employment claims,” for it to “have reasonably anticipated
being brought into Court [there].” (JA at 39.)
To the contrary, the personal jurisdiction inquiry focuses on the nature of the
defendant’s – not the plaintiff’s – contacts with the forum state, Metcalfe, 566 F.3d at
334, and “the state of a plaintiff’s residence does not on its own create jurisdiction over
[a] nonresident defendant[].” Marten v. Godwin, 499 F.3d 290, 298 (3d Cir. 2007).
Kennedy has not argued, either before the District Court or on appeal, any other basis to
support personal jurisdiction. Because she has not identified an adequate basis for
exercising personal jurisdiction over Help at Home, dismissal with prejudice was proper. 5
III. CONCLUSION
For the foregoing reasons, we will affirm the order of dismissal and the order
denying reconsideration.
5
To the extent Kennedy requests that we remand the case to the District Court for
purposes of transferring the case to Maryland, she did not make that request before the
District Court, and we decline to address it in the first instance. See Barna v. Bd. of Sch.
Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017) (“Because of the
important interests underlying the preservation doctrine, we will not reach a forfeited
issue in civil cases absent truly exceptional circumstances.” (internal quotation marks and
citation omitted)).
6
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-20-2004
In Re: Armstrong
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1057
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"In Re: Armstrong " (2004). 2004 Decisions. Paper 486.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/486
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1057
IN RE: ARMSTRONG WORLD INDUSTRIES, INC.,
Debtors
ARMSTRONG WORLD INDUSTRIES, INC.,
Appellant
___________________
On Appeal from the United States
District Court for the District of Delaware
District Court Number: 00-04471
District Judge: Hon. Joseph J. Farnan, Jr.
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 13, 2003
BEFORE: ALITO, McKEE, Circuit Judges & SCHWARZER District Judge*
(Filed July 20, 2004)
OPINION
McKee, Circuit Judge
Armstrong World Industries, Inc. (“AWI”) appeals from the December 10, 2001
Memorandum Order (“December Order”) of the United States District Court for the
*
Honorable William W Schwarzer, Senior District Judge, Northern District of
California sitting by designation.
District of Delaware, granting relief from the automatic stay set forth in 11 U.S.C. § 362.
The December Order permitted the “Maertin Plaintiffs” to proceed with their action
against AWI outside of the bankruptcy court process based upon the findings the court set
forth in its December Order. This appeal eventually followed.
I.
Inasmuch as we write only for the parties who are familiar with the factual
background and procedural intricacies of this case, we will not reiterate the facts or
procedural posture except as may be necessary to our brief discussion.
AWI raises three issues on appeal. It argues that the District Court erred in
granting relief from the automatic stay by misapplying the applicable standard under §
362(d)(1) and concluding that AWI was solvent. Second, it argues that the court erred as
a matter of law in granting relief from the automatic stay; and third, it argues that the
court “abuse[d] its discretion or commit[ted] a plain error of law in making ostensible
factual findings . . . without an evidentiary record . . . and without permitting the parties
to make such a record [].” Appellant’s Br. at 5.
II.
Although AWI’s brief sets forth three separate issues on appeal, the arguments are,
in reality, alternative statements of AWI’s contention that the District Court erred in
granting relief from the automatic stay.
After the District Court granted the plaintiffs’ motion for relief from the automatic
2
stay, and following additional proceedings in Delaware and New Jersey, the parties
entered into a stipulation before the Bankruptcy Court, and that court entered an order
approving that stipulation on May 3, 2002 (the “Stipulation”). Pursuant to the terms of
that Stipulation, the parties agreed that “The Maertin Plaintiffs may proceed with the
Civil Action and pursue any rights that they may be permitted under applicable state and
federal law in connection with that action, in state or federal court.” App. I-A72. The
Stipulation further provided that “notwithstanding [the aforementioned agreement], the
automatic stay shall remain in effect with respect to, . . . any claims, judgment or
settlement against AWI . . . other than with respect to the Insurance Policies or the
Insurance Proceeds.” Id. Thus, the Maertin Plaintiffs must first seek approval of the
Bankruptcy Court before attempting to collect “any claims against AWI . .. other than
insurance policies.”
AWI’s challenge to the December Order is grounded on AWI’s contention that the
Maertin Plaintiffs should not be allowed to attempt to collect their prepetition, unsecured
claims against AWI’s estate outside of the bankruptcy process. The May 3 Stipulation
resolves that issue. By agreeing that the plaintiffs may proceed against the insurance
proceeds at issue with a reservation that they must seek approval of the Bankruptcy Court
for any other relief, AW I’s appeal is mostly mooted as the Maertin Plaintiffs quite
correctly note in their brief. See Brief at 4-5. See also Flast v. Cohen, 392 U.S. 83, 95
(1968). See California v. San Pablo & T.R. Co., 149 U.S. 308 (1893).
3
We can, for the most part, dispose of any remaining issues by noting that the District
Court explained why relief from the automatic stay was appropriate as well as the findings of
fact supporting that relief in its December Order. We can affirm substantially for the reasons
set forth therein. AWI does not allege that the District Court applied the wrong standard, only
that it misapplied the appropriate standard by finding “cause” to lift the stay under the three
prong inquiry set forth in Int’l Business Machines v. Fernstrom Storage and Van Co., 938
F.2d 731, 734-37 (7th Cir. 1991) without a proper evidentiary record. The Maertin Plaintiffs
represent, without contradiction that “AWI acquiesced throughout the entire proceedings
below to limit the record to legal argument[.]” Brief at 28. The Martin Plaintiffs therefore
argue that AWI can not now complain about insufficient support for the equitable inquiry
under In re Wilson, 116 F.3d 87, 89 (3d Cir. 1997), and similar cases cited in AWI’s brief.
See AWI’s Brief at 16. We agree.
When the court afforded AWI an opportunity to present witnesses, the court was
informed that the parties were working toward an agreement that would allow the Maertin
Plaintiffs to collect the prepetition claims from AWI’s insurance policies. See App. Vol II,
A65-6, and A73. Accordingly, the court acquiesced and allowed additional time for the
parties to enter into a stipulation that would satisfy the settlement agreement from those
policies outside of the bankruptcy proceedings. We will not now allow AWI to hoist the
Maertin Plaintiffs on the petards of the very settlement the parties negotiated to resolve the
4
issues raised in this appeal and before the Bankruptcy Court.1
III.
Before concluding we need to briefly address one remaining issue. In its January 16,
2003 letter brief, AWI attempts to suggest that the Stipulation does not render its appeal moot
because it does not address the appropriate standard of review “the Bankruptcy Court should
apply” if the Maertin Plaintiffs apply for relief beyond the scope of the insurance policies.
That “argument” appears, at best, disingenuous. No such issue was raised in AWI’s brief to
us, nor could it have been. To the extent that any such issue exists, it is best resolved by the
Bankruptcy Court if, and when, the Maertin Plaintiffs apply for such relief. We can not, and
will not, allow AWI to breathe life into this largely mooted appeal by raising that specter for
the first time before us. See In re Rickel Home Centers, Inc., 209 F.3d 291, 307 (3d Cir.
2000).
IV.
Accordingly, for all the reasons set forth herein, we will affirm the December Order.
1
Although AWI’s appeal seeks to reverse the December Order, the Stipulation that
AWI knowingly entered into with the M aertin Plaintiffs has precisely the same result
insofar as the insurance policies are concerned. Plaintiffs are attempting to satisfy the
settlement agreement from the proceeds of those policies and only those policies. Thus,
AWI is inviting this court to void the Stipulation it willingly negotiated. That is an
invitation we must enthusiastically decline.
5
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334 F.2d 434
Jane G. KELLY, Appellant,v.Agnes J. Reeves GREER and Mellon National Bank and Trust Company.Jane G. KELLY, Appellant,v.Agnes J. Reeves GREER and Pittsburgh National Bank.
No. 14800.
No. 14801.
United States Court of Appeals Third Circuit.
Argued June 19, 1964.
Decided July 20, 1964.
Henry W. Sawyer, III, Philadelphia, Pa. (Robert S. Ryan, Drinker Biddle & Reath, Philadelphia, Pa., on the brief), for appellant.
Gilbert J. Helwig, Pittsburgh, Pa. (G. Donald Gerlach, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., Richard F. Stevens, Baker, Hostetler & Patterson, Cleveland, Ohio, on the brief), for appellee Greer.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
STALEY, Circuit Judge.
1
Basing jurisdiction on diversity of citizenship and amount in controversy, the plaintiff filed two separate civil actions in the United States District Court for the Western District of Pennsylvania requesting an adjudication that certain shares of stock and proceeds from dividends held by two Pittsburgh banks for the benefit of the defendant were her property. Both answers of the individual defendant, Agnes J. Reeves Greer, contested the jurisdiction of the court over her person. However, since the property involved in the dispute was within the district, this defendant was served with process in accordance with the lien enforcement provision of the Judicial Code. 28 U.S.C. § 1655 (1958 ed.). We affirmed the order of the district court consolidating the two suits for trial. Kelly v. Greer, 295 F.2d 18 (C.A.3, 1961).
2
Following extensive pretrial proceedings, the parties informed the district court that a settlement appeared imminent. Accordingly, the trial judge continued the case from day to day in January 1963 in the hope that a settlement could be effected although the case had been called for trial. Finally, on January 22, 1963, the parties agreed to a plan of settlement. This plan embraced the settlement, not only of the original suits filed by the plaintiff, but of the underlying, bitter intra-family controversy which had given rise to several other suits between this plaintiff daughter and her defendant mother.
3
In order to accommodate the parties, the district judge remained in his chambers during the evening of January 22. About 10:00 P.M. that evening the plaintiff and counsel for both parties met in the chambers of the district judge and, in the presence of the court, read into the record the settlement agreement which had been reached. The particulars of this detailed compromise plan need not be recited here, but the concluding paragraph reads:
4
"XX. Prior to March 1, 1963, the attorneys for the parties will draw up the definitive agreement needed to carry out the above plan and will establish a calendar for the transfer of assets or delivery of documents or dismissals needed. It is intended that the details of this settlement will be carried out before May 1, 1963, except that all pending suits shall be dismissed with prejudice forthwith."
5
In accordance with the last quoted sentence, counsel for both sides then executed a stipulation for dismissal of both civil actions, and the district court ordered their dismissal with prejudice that very evening pursuant to the stipulation. Plaintiff later consented to the removal of the property involved in one of the suits from the Western District of Pennsylvania and dismissed various civil actions which she had filed in other parts of the country.
6
Subsequently, on March 11, 1963, plaintiff, alleging that defendant had refused to comply with the settlement, filed a motion to vacate the dismissal of the original suits, reinstate the cases to the active docket, and enforce the settlement agreement. The defendant answered, challenging the jurisdiction of the court over her person. The plaintiff thereupon withdrew her motion, and on April 5, 1963, filed an "Ancillary Complaint" seeking damages for the alleged breach by the defendant of the settlement agreement. A second "Ancillary Complaint" was filed on July 9, 1963, requesting a declaratory judgment that the settlement agreement constitutes a valid and enforceable contract between the parties. Following oral argument, the district court on October 17, 1963, granted the defendant's motions to dismiss the ancillary complaints and denied plaintiff's motion for summary judgment. The court ruled that:
7
"In these cases, the principal actions were settled and were dismissed by the court with prejudice to the plaintiff on the stipulation of the parties. No judgment was entered by the court in the principal actions and the property on which the court's jurisdiction was based is no longer within the control of the court. This court has no jurisdiction with respect to either of plaintiff's present actions."1
8
On November 13, 1963, a motion for rehearing was denied, as was a motion to vacate the original orders of dismissal. These appeals were taken from the orders of October 17 and November 13, 1963.
9
Of course the district court has jurisdiction to vacate its own orders of dismissal which were based upon the stipulation of the parties in reliance upon their settlement agreement. Rule 60 (b), Fed.R.Civ.P. However, the district court appears to have been of the view that the dismissal of the original actions with prejudice deprived it of jurisdiction to entertain the ancillary complaints seeking enforcement of the settlement agreement. But there can be no question of the power of a Federal district court to vacate its own orders entered in civil actions over which it had original jurisdiction "whenever such action is appropriate to accomplish justice." Klapprott v. United States, 335 U.S. 601, 615, 69 S.Ct. 384, 390, 93 L.Ed. 266 (1949). And the defendant does not dispute the subject matter jurisdiction of the district court in the original actions, although she still questions the court's jurisdiction over her person despite the fact that she personally agreed to the settlement plan which was the basis for the dismissal of the suits.
10
We find it unnecessary to resolve this issue of personal jurisdiction because of the disposition we make of these appeals. For, in these circumstances, we shall vacate the orders of October 17 and November 13, 1963, and remand the cause to the district court with directions to vacate its orders dismissing the original actions and reinstate them to the status quo existing immediately prior to the entry of the orders of dismissal, i. e., following the reading into the record of the settlement agreement but prior to the orders dismissing the actions. Of course, this will require the defendant to return any property to the Western District of Pennsylvania which was the subject of the original actions and which has been removed from that district. The district court can then proceed to determine whether the defendant, in agreeing to the plan of settlement which was read into the record and using it as the quid pro quo for obtaining the dismissal of these and other civil actions, submitted to the jurisdiction of the district court over her person.2
11
The orders of the district court will be vacated and the cause remanded for further proceedings in conformity with this opinion.
Notes:
1
The opinion of the district court has not been reported
2
The defendant has urged that the settlement agreement is merely an executory accord and satisfaction; that it is the plaintiff who has breached the agreement; and that the plaintiff in her ancillary complaint seeks relief which is beyond that embraced in the original suits. With regard to the latter contention, we are merely ordering the reinstatement of the original actions, although this shall include the status existing at the time the settlement agreement was read into the record. With respect to the first two arguments, these are matters for the determination of the district court following remand
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253 N.W.2d 157 (1977)
198 Neb. 404
STATE of Nebraska, Appellee,
v.
Thomas J. KOLOSSEUS, Appellant.
No. 40983.
Supreme Court of Nebraska.
April 27, 1977.
*159 J. William Gallup, Omaha, for appellant.
Herbert M. Fitle, City Atty., Gary P. Bucchino, City Pros., George A. Sutera, Asst. City Pros., Omaha, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.
CLINTON, Justice.
The defendant was charged in the municipal court of the city of Omaha with 34 counts of gambling in violation of sections 25.77.010 and 25.77.020 of the ordinances of the city of Omaha. He was found guilty on all counts and fined the sum of $100 on each count. On appeal to the District Court the judgments were affirmed. The evidence on which the convictions were founded was obtained by means of a wiretap interception of oral communications over the defendant's telephone lines, such wiretap having been authorized by an order of the District Court for Douglas County, Nebraska, pursuant to an application filed by the county attorney of Douglas County under the provisions of sections 86-701 through 86-707, R.R.S.1943. On appeal to this court the issues raised by the defendant are: (1) Whether the defendant's motion to suppress the evidence obtained by means of the wiretap was improperly denied because the wiretap was unlawful. (2) Whether the penalties imposed were excessive and so constituted an abuse of discretion by the court. We affirm.
The pertinent portions of the municipal ordinances are as follows: "For the purposes of this Chapter gamble shall mean to enter into an agreement with another person whereby a person risks the loss of money or property to realize a profit in any game; to make use of any mechanical device or instrument in which the element of chance is the controlling factor to realize a profit; or to enter into a wager wherein the risk of the loss of money or property to realize a profit is dependent upon the outcome of any future happening." § 25.77.010, Ordinance 24314, s. 1, City of Omaha.
"It shall be unlawful for any person purposely or knowingly to gamble, offer to gamble, or provide facilities for gambling; provided, however, the provisions of this Section shall not make unlawful any act permitted by state law." § 25.77.020, Ordinance 24314, s. 1, City of Omaha.
The application for the wiretap was executed by Donald L. Knowles as county attorney of Douglas County, Nebraska. The cases were prosecuted by Gary Bucchino, city prosecutor of the city of Omaha.
The defendant's contention that the interceptions were illegal is founded upon the following: (1) Gary Bucchino, as city prosecutor, had no power to prosecute in a case where evidence is obtained by wiretap. (2) Title 18 U.S.C.A., section 2516, authorizes a state prosecutor to apply for a wiretap insofar as the crime of gambling is concerned only where the interception will provide evidence of a felony offense and gambling in Nebraska is not punishable as a felony. (3) A prosecution for violation of a city ordinance is a civil action and evidence obtained by wiretap interception under the above statute is inadmissible in such civil action. (4) The application is insufficient under the pertinent statutes because it does not adequately state that other investigative procedures have been tried and failed, or why other investigative methods reasonably appear to be unlikely to succeed if tried. Title 18 U.S.C.A., § 2518; § 86-705(1)(c), R.R.S.1943.
Even if we assume arguendo that the status of the prosecutor who conducts the trial is relevant to the issue of the validity of the wiretap authorization, the defendant's first point regarding the alleged lack of standing of Gary Bucchino is not well taken. Section 29-104, R.R.S.1943, provides as follows: "The term prosecuting attorney shall mean any county attorney. Such term shall also mean any city attorney or assistant city attorney in a city of the metropolitan class when such attorney is prosecuting any violation designated as a misdemeanor or traffic infraction." Judicial notice is taken of the status of public officers and their official positions within *160 the jurisdiction of the court. Rhodes v. Crites, 173 Neb. 501, 113 N.W.2d 611; § 27-201, R.R.S.1943. We also take judicial notice of the fact that Gary Bucchino is by appointment a deputy county attorney of the County of Douglas. He therefore had authority to prosecute misdemeanors in a court of competent jurisdiction.
The defendant's second point involves the construction and application of Title 18 U.S. C.A., section 2516(2), and section 86-703, R.R.S.1943. Federal law preempts the field in the area of interception of oral or wire communications and prohibits the use of such intercepted communications or any evidence derived therefrom, if the disclosure is in violation of Title 18 U.S.C.A. Federal law authorizes such interceptions and use of such evidence if a state statute permits it and the authorizing state statute meets the minimum requirements of the pertinent provisions of the federal statute. Title 18 U.S.C.A., § 2516. See, also, Senate Report No. 1097, 90th Congress, 2d Session, 1968, U.S.Code Cong. & Admin.News, pp. 2112, 2187.
Title 18 U.S.C.A., section 2516(2), provides that the principal prosecuting attorney of any state or the principal prosecuting attorney of any subdivision thereof, if authorized by statute of the state, may make application to a state judge for an order authorizing interception or wiretap and the judge may grant, in conformity with Title 18 U.S.C.A., section 2518, "and with the applicable State statute," an order authorizing an interception in the investigation of certain specific offenses, i. e.,: ". . . when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception." Section 86-703, R.R.S.1943, provides in part: ". . . or any county attorney may make application to any district court of this state for an order authorizing or approving the interception of wire or oral communications, and such court may grant, subject to the provisions of sections 86-701 to 86-707, an order authorizing or approving the interception of wire or oral communications by law enforcement officers having responsibility for the investigation of the offense as to which application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, robbery, bribery, extortion, dealing in narcotic or other dangerous drugs, gambling, or any conspiracy to commit any of the foregoing offenses."
Since federal law governs, it is apparent that the more strict provision, whether federal or state, must be followed. Defendant argues that the federal statute authorizes an interception in the case of specified crimes, in this instance, gambling, and only if that offense is a felony under state law punishable by imprisonment for more than 1 year. This argument is founded upon the position that the phrase in Title 18 U.S.C.A., section 2516(2), "and punishable by imprisonment for more than one year," modifies all the previously listed offenses. On the other hand, the State argues that logically and grammatically the above phrase modifies only the first immediately preceding antecedent, to wit, "or other crime dangerous to life, limb, or property."
The vast majority of state and federal courts which have had occasion to consider the proposition have resolved the issue contrary to the defendant's contention. People v. DiFiglia, 50 App.Div.2d 709, 374 N.Y.S.2d 891; United States v. Carubia, D.C., 377 F.Supp. 1099; United States v. Curreri, D.C., 388 F.Supp. 607. We recognize that the last two cited opinions are those of a trial court, but we have examined their reasoning and found it sound. Our examination of the federal statute leads us to conclude that the State's position is clearly the correct one.
Title 18 U.S.C.A., section 2516(2), describes two general categories of crime, to *161 wit, certain crimes described by name, to wit, murder, kidnapping, gambling, etc., and "other crime . . .." These two categories are separated by the disjunctive conjunction "or." The two following modifying phrases are connected by the copulative conjunction "and." The grammatical, as well as the logical, consequence of this use of language is that the "or" divided the two categories mentioned. The "and" connects the two modifying phrases which constitute the two characteristics of the second category, viz., "dangerous to" and "punishable by imprisonment." The imprisonment provision, therefore, does not modify the specifically named crimes. The legislative history of this language in the statute has been examined and it likewise supports this construction. This is true even though the rules of punctuation were violated in this instance by the placement of a comma before the modifying phrase "and punishable by imprisonment." See United States v. Carubia, supra.
The defendant next argues that a prosecution for a violation of a municipal ordinance is, under Nebraska law, a civil proceeding and since section 86-703, R.R.S. 1943, and Title 18 U.S.C.A., section 2516, authorize interception of communications only for the purpose of obtaining evidence in the investigation of certain specified crimes, the interceptions were unlawful and the wiretap evidence inadmissible under the prohibitions of section 86-705(9), R.R.S. 1943, and Title 18 U.S.C.A., section 2518(9).
The defendant's contention would be well taken if the prosecution here were in fact a civil proceeding. In support of his claim that the proceeding is civil in nature defendant cites State v. Amick, 173 Neb. 770, 114 N.W.2d 893. The State additionally cites State v. Johnson, 191 Neb. 535, 216 N.W.2d 517; State v. Peterson, 183 Neb. 826, 164 N.W.2d 649; State v. Lookabill, 176 Neb. 254, 125 N.W.2d 695; and State v. Hauser, 137 Neb. 138, 288 N.W. 518. We have, in some of those cases and others, stated that while in form such prosecutions are criminal, they are in fact civil proceedings to collect a penalty. McLaughlin v. State, 123 Neb. 861, 244 N.W. 799. More recently, however, we have found it unnecessary to rely upon the proposition that such proceedings are civil in substance. State v. Johnson, supra. That case was a prosecution under the same ordinance involved in the present case and we there said: "The Nebraska statute, section 24-536, R.S.Supp., 1972, excludes criminal offenses of the nature involved in this case from the availability of a jury trial." (Emphasis supplied.) The maximum penalty for the offenses here involved is 6 months imprisonment. State v. Johnson, supra. Such an offense is a misdemeanor by definition. § 29-102, R.R.S.1943. State statutes define and make criminal various types of gambling offenses. Some are misdemeanors. Some are felonies. §§ 28-941 to 28-952, R.R.S.1943.
The reasons for the usefulness of the criminal-civil dichotomy as it relates to prosecution for violation of municipal ordinances is somewhat obscure. This court apparently had occasion for the first time to classify an ordinance violation as civil in Foley v. State, 42 Neb. 233, 60 N.W. 574, and cited as authority for the distinction 1 Bishop, Criminal Law, § 32; 1 Bishop, Criminal Procedure, § 892; and Liberman v. State, 26 Neb. 464, 42 N.W. 419. Liberman v. State, supra, is not authority for the proposition for which it was cited in the Foley case. The court in Liberman v. State, supra, simply pointed out that our Constitution does not require a jury trial in prosecutions for minor offenses in violation of municipal ordinances and involving acts which are not made criminal by state statute. The body of the opinion in that case did not even discuss the nature of the action although the syllabus described it as quasi-criminal. The source of text authority above cited is apparently the statement in some ancient cases that the collection of a monetary penalty for violation of a city ordinance is accomplished by the common law action of debt. It is upon that scant foundation that the classification rests. This court and others thereafter seized that wholly unnecessary distinction either to justify or to offer additional make-weight *162 grounds for (1) tolerating loose pleading of the charge as in Foley v. State, supra; (2) a lesser standard of burden of proof than in a regular criminal prosecution as in State v. Peterson, supra; and (3) no constitutional requirement of a jury trial for petty offenses where no such trial was required at common law. The latter constitutes the bulk of the cases mentioned.
Whatever justification the classification may have historically had, it has no application where, as here, the offense charged is punishable by imprisonment; the offense charged is also a violation of state law; and is an offense which has been historically treated as criminal.
We hold, therefore, that a prosecution for gambling in violation of a city ordinance which is punishable by imprisonment is a criminal prosecution both in form and in substance and is one of the crimes for which wiretap may be authorized if the requirements of the pertinent statutes are met.
The fourth and principal point raised by the defendant is the sufficiency of the application's allegations to support the finding of the District Judge with respect to the failure or futility of investigative procedures other than interception. Title 18 U.S. C.A., section 2518, and section 86-705, R.R. S.1943, are, in all substantive ways and in wording, virtually identical. They describe the information the application must contain, what the judge entering the order must be able to find, and what the order must contain, as well as certain other matters. The particular subsections of the statutes at issue here are (1)(c) and (3)(c). These subsections read as follows: "A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous; . . . normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; . . .." The defendant makes no contention that the application is insufficient to meet the requirements of the other subsections of section 2518(1), Title 18 U.S.C.A., or to support the corresponding findings by the court as required by other sections of the statute.
Subsection 10(a) of section 2518, Title 18 U.S.C.A. (subsection (9) of section 86-705, R.R.S.1943), requires suppression of the contents of any interception or evidence derived therefrom if "(i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval." No contention is here made that the order was insufficient on its face, or that the interception was not made in conformity with the order. Hence, the question before us is whether the communications were unlawfully intercepted because the allegations were insufficient to permit the judge to find that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried." We find the allegations were sufficient and the interception was lawful.
In United States v. Donovan, ___ U.S. ____, 97 S.Ct. 658, 50 L.Ed.2d 652, the Supreme Court of the United States indicated that interceptions were unlawful and suppression required if the deficiency was such that it played a "substantive role" with respect to judicial authorization. There can be no question that subsections (1)(c) and (3)(c) lay down substantive requirements. In United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, the court said that wiretaps were not to be routinely employed as a first step in the investigation, but were to be used only when it is alleged and found that the other investigative procedures "have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." The only issue in Giordano, however, was whether execution of the application by a person not authorized by statute was a substantive defect. It was held to be, and the court pointed out, that the "informed judgment" of the person authorized *163 by statute to sign the application was an important element.
The Supreme Court of the United States has not yet had occasion to specifically consider what allegations are sufficient to meet the requirements of subsection (1)(c). Four federal circuit courts have considered the question of exhaustion of other procedures. These are United States v. Smith, 519 F.2d 516 (9th Cir.); United States v. Vento, 533 F.2d 838 (3d Cir.); United States v. Pacheco, 489 F.2d 554 (5th Cir.); United States v. Kerrigan, 514 F.2d 35 (9th Cir.); and United States v. Bobo, 477 F.2d 974 (4th Cir.). A considerable number of federal trial courts have written opinions on the matter.
It is to be noted that the language of subsection (1)(c) does not require the exhaustion of all other possible or reasonable avenues of investigation. It does not, in fact, require that other methods even be tried if the application demonstrates other procedures are unlikely to succeed or are too dangerous. The requirements are alternative, that is, other methods must have been tried and failed "or" the second alternative must be demonstrated. In United States v. Smith, supra, the court said: "Congress, in its wisdom, did not attempt to require `specific' or `all possible' investigative techniques before orders for wire taps could be issued. As United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1827, 40 L.Ed.2d 341 (1974), states wire tap `procedures were not to be routinely employed as the initial step in criminal investigation,' but it is equally true `that the statute does not require the government to use a wire tap only as a last resort.' United States v. Kerrigan, 514 F.2d 35 (9th Cir. 1975); United States v. Staino, 358 F.Supp. 852, 856-7 (E.D.Pa.1973)." United States v. Vento, supra, makes exactly the same point. In that case the court said: "In United States v. Armocida, [3 Cir., 515 F.2d 29] this Court, in accord with the legislative history, adopted a `pragmatic' approach to subsection (c). We held that the government's showing is to be `tested in a practical and commonsense fashion.' There is no requirement that every investigative methodology be exhausted prior to application for a section 2518 authorization. Investigators are not obliged to try all theoretically possible approaches. It is sufficient that the government show that other techniques are impractical under the circumstances and that it would be unreasonable to require pursuit of those avenues of investigation. The government must, however, fully explain to the authorizing judge the basis for such a conclusion." United States v. Pacheco, supra, also points out that all possible, imaginable methods need not be tried. We conclude that what is required under the first alternative is that the application make a full and complete disclosure of all that has been done so that the court may make a judgment as to whether more should be required before a tap is authorized.
We now examine the application in the light of the language of the statutes and the principles of the above cases. The verified application of county attorney Knowles, in addition to the necessary formal parts, recites that the purpose of the requested taps was to "provide evidence of the commission of the offense of an Illegal Gambling Operation (Bookmaking) or conspiracy to commit the said offense." It recites that over a period of years as a result of state and federal investigations, a large number of people have been arrested in Douglas County and convicted of bookmaking; and that as a consequence, other persons, some of whose identities are known and some of whom are unknown, are believed to have moved into the field and are filling the void left by the fact that the larger bookmakers have been put out of business. It describes how the bookmaking operations are carried on, including the reinsuring of bets by "layoff" bets with other parties; that much of the activity is done by telephone; that one of the persons believed to be filling in is Thomas J. Kolosseus; and that at the time the application was made he was believed to have been carrying on at least some of his operations through two certain telephone numbers at a particular address in Omaha listed in the *164 name of J. C. Miller. The affidavit describes in great detail an extensive investigation covering a period of 18 months into the activities of Kolosseus and others who might be connected with him. The method used included surveillance, eavesdropping, tailing, use of informants, and obtaining information on telephone numbers from telephone utilities. The investigation disclosed that telephones used were changed frequently; that some telephones used had forwarding capabilities so that calls could be transferred to unknown numbers; that the defendant used a "Bell Boy" to summon his messengers so that he could communicate with them by telephones from numerous and undisclosed locations; that Kolosseus was, in fact, a bookmaker as shown by the statements of reliable informants; that he appeared to be communicating by telephone with persons in counties other than Douglas who were part of the bookmaking operation; that Kolosseus was operating a bookmaking "hole" in Omaha, but that the informant was unable to locate it; and that the informant had advised that two certain numbers were being used in the bookmaking operation. The application alleged that the communications to be intercepted "are the telephone communications of Thomas Kolosseus and other parties whose identities as yet are unknown."
It is clear from the contents of the application which we have briefly summarized that there existed probable cause for the arrest of Kolosseus as well as for a warrant for search of the premises where the telephones were located. The defendant contends that because probable cause was shown without the aid of wiretap, the wiretap was not authorized and asserts "the statute's command [is] that wiretaps can be used only as a last resort."
The difficulty with the defendant's position is that neither the statutes nor the cases support him. The statutory language does not require that every conceivable kind of investigation must first be tried. Neither does it require that all methods be either tried, or shown to be unlikely to succeed or to be too dangerous. One federal district court decision apparently considering an order made on an application which relied on the second alternative, United States v. Curreri, 388 F.Supp. 607, holds that where the second alternative is relied upon, in order to establish the unlikelihood of success requirement all possible methods of investigation must be negated, and states that the court to which application is made cannot take judicial notice of what avenues of investigation are possible and accordingly the application must list and negate the feasibility of all possible avenues. The court then went on in that case to list a number of avenues which might have been tried and which apparently were not. The defects of that opinion, it appears to us, are numerous. It lays down requirements beyond those of the statute. The possible avenues of investigation of any particular crime are multitudinous and can vary with the nature of the criminal operation. Even the Congress, had it so chosen, could not, as a practical matter, have listed all possible avenues. As we have previously noted, the cited cases confirm the statute makes no such requirement.
The application in this case was clearly sufficient. It would enable the court to find (1) that the application contained a full and complete statement of all that had been done; (2) that the investigation was not directed at the defendant alone, but at other persons whose identities were unknown, including those with whom defendant "laid off" bets; (3) that extensive investigation by various methods covering a period of 1½ years had not disclosed evidence sufficient to assure conviction of Kolosseus, or to discover all the persons involved in the alleged conspiracy; and (4) that an integral means by which the crimes were being committed was by use of telephone and other electronic means of communication such as the "Bell Boy," and that the only likely way by which the communications could be discovered and the identity of the unknown parties determined was by means of wiretap.
The defendant was fined the sum of $100 upon each of the 34 counts of which *165 he was found guilty. He argues the sentences are excessive. We do not believe they are.
AFFIRMED.
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391 So.2d 1152 (1980)
STATE of Louisiana
v.
Ronald E. LANTER.
No. 67681.
Supreme Court of Louisiana.
December 15, 1980.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, J. K. McNary, Asst. Dist. Attys., for plaintiff-appellee.
Glenn L. Morgan, New Orleans, for defendant-appellant.
*1153 MARCUS, Justice.
Ronald E. Lanter was charged by bill of information with the willful possession of Dextropropoxyphene in violation of La.R.S. 40:969(C). After a bench trial, defendant was found guilty as charged and sentenced to serve one year at hard labor and to pay a fine of $250 or in default thereof to serve three months in prison. The judge suspended the imprisonment portion of the sentence and placed defendant on probation for a period of five years. The judge imposed as a condition of probation that he pay $250 to the court in restitution to defray the cost of operation of the court. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence. Finding merit in one of the assigned errors, we need not consider the others.
ASSIGNMENT OF ERROR NO. 2
Defendant contends the trial judge erred in denying his motion to suppress physical evidence. He argues that the evidence was seized as a result of an unconstitutional search of his person.
At the preliminary examination, Officer John Day, one of the arresting officers, was called by the state to testify. At the suppression hearing, the state called Officer Walter Zschiedrich, the other arresting officer, as its sole witness. Both officers testified that at about 4:50 a. m. on August 1, 1979, while patrolling Bourbon Street in New Orleans, they were approached by an unidentified female who pointed out another female who was seated next to defendant in a coffee shop at 541 Bourbon Street. The informer told the officers that the female with defendant went by the name of Sandy and was wanted in Florida. As the female and defendant left the coffee shop, the officers stated that they approached the couple and asked for identification. When defendant's companion stated that she had none, Officer Zschiedrich requested her, and she agreed, to step inside 541 Bourbon so that a check could be made to determine if she was in fact wanted in Florida. Officer Zschiedrich testified that he told defendant that he was free to leave but defendant insisted on remaining with his companion. Officer Day testified, however, that he asked both parties to accompany the officers until a check was made on defendant's companion. Both officers testified that as they were entering 541 Bourbon, defendant reached into his rear pants pocket. They then grabbed his hand and extracted a medicine or pill bottle with no name or prescription on it containing approximately 26 pills. The officers detained defendant while the pills were taken to Charity Hospital to verify their content. Upon learning that they contained a controlled substance, the officers placed defendant under arrest. Incidently, it was discovered that defendant's companion was not wanted.
Defendant stated at the suppression hearing that after being stopped by the officers and asked for identification, one of the officers pulled the bottle of pills out of his back pants pocket. Defendant further stated that from the time the officers approached until he was subsequently arrested, he was never told by either officer that he was free to leave.
At trial, the state and defendant stipulated that the testimony of Officer Day at the preliminary examination and of Officer Zschiedrich and defendant at the suppression hearing be made a part of the trial record. After presentation of other witnesses by the state, defendant was found guilty as charged and perfected this appeal.
The fourth amendment to the federal constitution protects people against "unreasonable searches and seizures." Measured by this standard, La.Code Crim.P. art. 215.1, as well as federal and state jurisprudence, recognizes the right of a law enforcement officer to temporarily detain and interrogate a person whom he reasonably suspects is committing, has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Snoddy, 389 So.2d 377, (La. 1980); State v. Jernigan, 377 So.2d 1222, (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (1980); State v. Chopin, 372 So.2d 1222 (La.1979). We have held that reasonable cause for an investigatory *1154 detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. State v. Snoddy, supra; State v. Jernigan, supra; State v. Chopin; State v. Taylor, 363 So.2d 699 (La. 1978); State v. Drew, 360 So.2d 500 (La. 1978). Once a lawful detention is made, a police officer is justified in frisking the suspect for weapons under circumstances where he reasonably suspects that he is in danger of life or limb. La.Code Crim.P. art. 215.1(B); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, supra; State v. Snoddy, supra; State v. Jernigan, supra; State v. Hunter, 375 So.2d 99 (La.1979).
The purpose of the fourth amendment, however, is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). Police officers do not need probable cause to arrest or reasonable cause to detain each time they attempt to converse with a citizen. State v. Duplessis, 391 So.2d 1116, (La.1980); State v. Neyrey, 383 So.2d 1222 (La.1979); State v. Shy, 373 So.2d 145 (La. 1979). As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would require some particularized and objective justification under the fourth amendment. United States v. Mendenhall, supra.
In the instant case, the officers initially approached defendant because they had received a tip from an unidentified female that his female companion was wanted in another state. Hence, when they first encountered defendant, the officers had no reasonable cause to believe that he was engaged in criminal activity. Officer Zschiedrich testified that when they decided to detain defendant's companion to run a check on her, he told defendant that he was free to leave. Defendant, however, expressed a desire to remain with his companion. Under these circumstances, we conclude that no detention of defendant in fact occurred. If no investigatory detention occurred and no reasonable cause existed upon which to base such a detention, the subsequent search of defendant's person was unreasonable under the fourth amendment; it was an unjustified interference with defendant's right to be free from governmental interference.
Even if, relying on the testimony of Officer Day and defendant, we assume that the officers never told defendant he was free to leave and a detention of defendant in fact occurred, we nonetheless conclude that the detention was unlawful since the officers only had reasonable cause to believe that defendant's companion and not defendant was engaged in criminal activity. Hence, the subsequent search of defendant's person violated his rights under the fourth amendment and evidence seized as a result thereof is inadmissible.
In sum, under either version of the facts, the trial judge erred in denying defendant's motion to suppress physical evidence. We must reverse.
DECREE
For the reasons assigned, defendant's conviction and sentence are reversed and the case is remanded to the district court for further proceedings in accordance with law and the views expressed herein.
DENNIS, J., concurs.
LEMMON, J., concurs in result.
LEMMON, Justice, concurring.
I concur only because the pills in the unlabeled bottled were not immediately recognizable as contraband. In my opinion the investigatory stop was legal, and the police acted reasonably in grabbing defendant's *1155 hand when he reached into his pocket and in searching thereafter for weapons and apparent contraband.
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6 Cal.App.3d 344 (1970)
85 Cal. Rptr. 688
THE PEOPLE, Plaintiff and Respondent,
v.
HENRY ONTIVERAS BAUTISTA, Defendant and Appellant.
Docket No. 16224.
Court of Appeals of California, Second District, Division Three.
April 3, 1970.
*347 COUNSEL
Richard H. Levin, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Edward Duddy, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
SCHWEITZER, J.
In a civil proceeding in the superior court following a misdemeanor conviction in a municipal court, defendant was found to be a narcotic addict and was committed to the custody of the Director of Corrections for confinement in a narcotic detention, treatment and rehabilitation facility. (Welf. & Inst. Code, § 3050.) By this appeal from the order of civil commitment,[1] he questions the jurisdiction of the superior court proceeding: (1) by a collateral attack on his criminal conviction on constitutional grounds, and (2) by a direct attack on the municipal court certification order on statutory grounds.
Facts
On February 14, 1968, defendant pleaded guilty in Compton Municipal Court to the charge of failure to provide (Pen. Code, § 270) and was placed on probation. On October 3, 1968, he was found to be in violation of probation and to be a possible narcotic addict. The criminal proceedings were adjourned and he was certified to the superior court for civil narcotic addiction proceedings.
At the commencement of the civil proceedings defendant objected to the superior court's jurisdiction on the ground that his conviction in the municipal court was invalid. He testified that at the time he pleaded guilty to the misdemeanor charge in the municipal court, he was not represented by counsel, had not waived his right to counsel, and had entered his guilty plea because the deputy district attorney had told him that he would receive probation. No evidence in rebuttal was offered by the People.
*348 Defendant also objected to the jurisdiction of the superior court on the ground that section 3050 of the Welfare and Institutions Code provides for certification to the superior court "upon conviction," that a delay of approximately seven months between the date of conviction and the date of certification was not timely.
Both objections were overruled. The civil proceedings followed, resulting in the finding that defendant was a narcotic addict and in the issuance of the order of commitment to the rehabilitation facility. On this appeal defendant does not question the sufficiency of the evidence in the commitment proceeding. His only contentions are that the superior court erred in overruling his two objections to its jurisdiction.
Augmentation of Record
(1) The People state in their brief on appeal that resolution of defendant's attack on his criminal conviction will necessitate factual determinations which cannot be made from the record on appeal. They attach as exhibits to their brief certified copies of the municipal court docket sheet and of the order granting probation and state that if these exhibits will assist this court in its decision, such action should be deemed a motion by the People to augment the record on appeal pursuant to rule 23, California Rules of Court. Rule 23(b) expressly provides that such application shall be in accordance with rule 41, which requires a noticed motion. Since the exhibits were neither offered nor used in the superior court proceeding, and were not filed in or lodged with the superior court, we cannot order augmentation of the record on our own motion. (Cal. Rules of Court, rule 12(a).) A reviewing court has authority to take judicial notice of the records of the municipal court (Evid. Code, § 452, subd. (d)) if it affords "each party reasonable opportunity to meet such information before judicial notice of the matter may be taken." (Evid. Code, § 459, subd. (d).)
In his reply brief defendant make no objection to the motion to augment the record, stating: "Although the minutes for the Municipal Court recite that Appellant had been advised of his rights: [¶] 1. These minutes were not before the Superior Court in the Commitment proceedings. [¶] 2. There was no finding by the Superior Court that the Clerk's recitations were true; and [¶] 3. Even if they were true they show that Appellant did not waive his right to counsel even assuming he was adequately informed of that right."
Since the exhibits support defendant's contention that he did not waive his legal right to counsel in the criminal proceeding and since neither party has objected to this court's consideration of the exhibits, in the interests of justice and under the circumstances of this case, we will find that there *349 has been substantial compliance with the requirements of section 459 of the Evidence Code and will take judicial notice of those records of the municipal court proceeding attached as exhibits to the respondent's brief.
Collateral Attack on Criminal Conviction
(2) Defendant cannot use his right of appeal from the order of civil commitment to attack his criminal conviction. Both in form and in substance, the civil commitment proceedings are wholly distinct from the criminal prosecution. On such appeal he may base error only on the lack of jurisdiction of the superior court to institute commitment proceedings, or on the invalidity of the commitment proceedings predicated on errors of law or on insufficiency of the evidence. (People v. Murphy, 70 Cal.2d 109, 114-115 [74 Cal. Rptr. 65, 448 P.2d 945]; People v. Gonzales, 256 Cal. App.2d 50, 55 [63 Cal. Rptr. 581]; People v. Le Gerrette, 245 Cal. App.2d 764, 765 [54 Cal. Rptr. 304].) Each cited case involved an appeal from a civil commitment order and in each the defendant was denied the right to attack his criminal conviction for alleged errors in the criminal proceeding: admission of evidence (People v. Murphy, supra), illegal entry and arrest (People v. Gonzales, supra), and unlawful search and seizure (People v. Le Gerrette, supra). Defendant's remedy to attack such errors is by way of a motion for new trial in the criminal proceeding, an appeal from the judgment of conviction or order granting probation, or habeas corpus. (People v. Le Gerrette, supra, 245 Cal. App.2d 764, 766; People v. Bennett, 245 Cal. App.2d 10, 13-14 [53 Cal. Rptr. 579]; People v. Glaser, 238 Cal. App.2d 819, 821-824 [48 Cal. Rptr. 427].)
Defendant concedes the foregoing principles and argues that unlike the cited cases, the instant case involves a violation of the constitutional right to counsel, a jurisdiction defect. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 13; Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]; Gideon v. Wainwright, 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733]; In re Johnson, 62 Cal.2d 325, 329-336 [42 Cal. Rptr. 228, 398 P.2d 420].) He contends that a valid criminal conviction is a prerequisite for jurisdiction in the civil proceeding (In re Bevill, 68 Cal.2d 854, 858-860 [69 Cal. Rptr. 599, 442 P.2d 679]; People v. Jasso, 2 Cal. App.3d 955, 968 [82 Cal. Rptr. 229] (hear. den.); Wilson v. Blabon (9th Cir.1968) 402 F.2d 963[2]), and that Murphy, supra, 70 Cal.2d 109, 114-115, and the other cited cases expressly hold that a collateral attack may be made on jurisdictional grounds.
*350 Our question is procedural: whether the constitutional issue can be raised by a collateral attack on the criminal conviction in the civil commitment proceeding, as contended by defendant, or must it be raised in the criminal proceeding or by way of habeas corpus, as contended by the People?
In re Bevill, supra, 68 Cal.2d 854, presented the question as to whether a person confined as a mentally disordered sex offender could challenge by habeas corpus the validity of his prior criminal conviction in which the proceedings had been suspended pending his confinement. The Supreme Court determined that the criminal conviction was invalid because the statute under which the petitioner was convicted did not apply to his conduct, held that a valid conviction of a crime was a prerequisite to his civil commitment, and ordered petitioner's discharge from custody.
Wilson v. Blabon (9th Cir.1968) supra, 402 F.2d 963, was also a habeas corpus proceeding. Following a misdemeanor conviction, the petitioner was tried and determined to be a mentally disordered sex offender and was given an indeterminate commitment. Based upon the finding in the habeas corpus proceeding that the petitioner had not been informed of his right to have court-appointed counsel in his criminal trial, the court held that the criminal conviction was invalid because of the deprivation of the constitutional right to counsel, quoting Bevill, supra, as authority that a valid criminal conviction was a necessary requisite for a valid civil commitment. In granting the writ the court stated on page 966, "this constitutional defect infects the subsequent civil commitment ... and renders constitutionally invalid that commitment."
In the recent case of People v. Jasso, supra, 2 Cal. App.3d 955 (hear. den.), defendant had been convicted in two separate criminal proceedings; each was adjourned pending a civil narcotic addiction proceeding, which resulted in a commitment order. Defendant sought review of one criminal conviction by habeas corpus, one criminal conviction by appeal, and the civil commitment order by appeal, each on the grounds of illegal search and seizure. The three cases were consolidated for purposes of appellate review. The Court of Appeal found that the search and seizure was illegal in both criminal cases. Based on this finding it reversed the order from which the appeal was taken in one criminal case, and denied habeas corpus and ordered the trial court to grant defendant's motions for new trial and to suppress evidence in the other criminal case. As to the appeal from the civil commitment order the court, relying on Bevill, supra, held that a valid criminal conviction was an indispensable jurisdictional requirement for a valid civil narcotic commitment proceeding, that since the *351 criminal convictions had been found to be invalid, the civil commitment order must be reversed. (People v. Jasso, at pp. 968-969.)
It must be noted as to these cases (Beville, Wilson and Jasso), Beville and Wilson referred to the valid criminal conviction as a necessary prerequisite to the commitment proceeding; only Jasso referred to it as jurisdictional to the commitment proceeding; further, the validity of the criminal convictions in Bevill, Wilson and as to one of the criminal cases in Jasso was determined by habeas corpus; the validity of the other criminal conviction in Jasso was determined on direct appeal; in none of these cases was the validity of the criminal convictions determined by a collateral attack in the commitment proceeding.
(3) The last word of our Supreme Court was by its denial of the petition for hearing in Jasso, thereby indicating that a valid conviction was jurisdictional, and that under Murphy, supra, 70 Cal.2d 109, 114-115, Gonzales, supra, 256 Cal. App.2d 50, 55, and Le Gerrette, supra, 245 Cal. App.2d 764, 765, such jurisdictional error could be reviewed on this appeal.
This conclusion should especially be true when it involves a possible denial of a fundamental constitutional right that "infects the subsequent civil commitment." (Wilson v. Blabon, supra, 402 F.2d at p. 966.) In People v. Glaser, supra, 238 Cal. App.2d 819 (hear. den.), a somewhat analogous situation was presented. Following a conviction, proceedings were suspended without imposition of sentence and defendant was placed on probation. Approximately six months thereafter, his probation was revoked and sentence imposed. He appealed, seeking a review of alleged errors that occurred during trial. The court held that although an appeal would lie from the order revoking probation, matters that occurred at the trial could not be reviewed on the appeal. (Glaser, supra, at p. 821.) The court then added at page 824: "Defendant's failure to establish that his appeal as a matter of course encompasses a review of all matters leading to his conviction does not relieve this court of the obligation to consider those alleged errors which may be raised at any time because they involve violations of fundamental constitutional rights. `Fundamental jurisdictional defects, like constitutional defects, do not become irremediable when a judgment of conviction becomes final, even after affirmance on appeal. [Citation.] However, the petitioner must show that the defect so fatally infected the regularity of the trial and conviction as to violate the fundamental aspects of fairness and result in a miscarriage of justice.' (In re Winchester (1960) 53 Cal.2d 528, 531-532 [2 Cal. Rptr. 296, 348 P.2d 904].)" The court in Glaser then proceeded to examine the alleged errors in the light of the foregoing quotation, found constitutional error in that defendant, appearing *352 in propria persona, had not been advised before testifying of his right against self-incrimination, but that the error did not so infect the trial as to cause a miscarriage of justice.
(4) The fundamental constitutional right to counsel at all stages of criminal proceedings is guaranteed by the Sixth Amendment of the United States Constitution and by article I, section 13, of the California Constitution. (See Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]; Gideon v. Wainwright, 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733]; In re Johnson, 62 Cal.2d 325, 329-336 [42 Cal. Rptr. 228, 398 P.2d 420].) If the defendant is without counsel at the time of arraignment, "he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court must assign counsel to defend him." (Pen. Code, § 987.) (5) A defendant may waive his right to counsel, but the court cannot accept a waiver of counsel from anyone without first determining that he understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, and the punishment which may be exacted, i.e. that he intelligently and understandingly waives the right to counsel. Neither the failure to request counsel nor the entry of a guilty plea is sufficient to constitute a waiver of the right. (In re Johnson, supra.)
(6) The People contend that defendant has failed to meet the test of Winchester, quoted in Glaser, supra, and that therefore his collateral attack on the criminal conviction should be denied. We do not agree. We have defendant's undisputed testimony as to his non-waiver of his right to counsel, and as to his reliance on the deputy district attorney's assurance that he would be placed on probation. We have the certified copies of the municipal court docket sheet and of the order granting probation, attached to respondent's brief, which appear to uphold defendant's contention that he did not waive his right to counsel. Furthermore, we have the defendant's testimony in the civil commitment proceeding that he had a defense to the failure to provide charge.
(7) Although the objection to jurisdiction was overruled, the record does not indicate whether the ruling was based on a lack of credence as to defendant's testimony or whether the committing court was of the opinion that the objection was not raised in the proper court or by the proper procedure.
The record does not indicate that the People had advance notice of the contention, whether they were conceding the truth of the facts, or whether they were unprepared to meet the issue. No request for continuance was made, possibly in view of the ruling of the court following the People's *353 argument that the superior court did not have jurisdiction in the narcotic addiction proceeding to overturn the municipal court failure to provide conviction, and that defendant's only remedy as of that date was habeas corpus.
We hold that the issue of whether the defendant knowingly and understandingly waived counsel in the criminal proceeding must be determined by the superior court, that its jurisdiction is dependent on its conclusion at such hearing.
Time Gap Between Conviction and Commitment
Although not necessary for this decision in view of the foregoing conclusion, for the guidance of the superior court if it determines that it has jurisdiction to proceed under section 3050 of the Welfare and Institutions Code, we consider defendant's second contention.
(8) Defendant argues that he was placed on probation in March 1968 but was not certified to the superior court for consideration for the rehabilitation program until October 1968. He contends the jurisdiction of the trial court is limited to a commitment at or about the time of the criminal conviction. The argument is based upon the first two words of section 3050, that "upon conviction" the trial judge may order commitment proceedings. There is no merit to the contention. According to the dictionary the word "upon" may have many and varied meanings. In People v. Williams, 24 Cal.2d 848, 852 [151 P.2d 244] it was held that "upon" could mean "before, after or simultaneously with," according to the context and purpose of the provision in which it is used. We hold that "upon conviction," as used in section 3050 of the Welfare and Institutions Code, may properly be interpreted as meaning "after" a criminal conviction, rehabilitation proceedings may be initiated.
Reversed with directions.
Ford, P.J., and Allport, J., concurred.
NOTES
[1] The order of commitment is appealable as a final judgment in a special proceeding. (People v. Murphy, 70 Cal.2d 109, 115 [74 Cal. Rptr. 65, 448 P.2d 945]; People v. Wilson, 258 Cal. App.2d 578, 580 [65 Cal. Rptr. 839].)
[2] A contrary result was first reached by the Circuit Court of Appeals; see Wilson v. Blabon (9th Cir.1967) 370 F.2d 997, cited in In re Bevill at p. 859. Thereafter the U.S. Supreme Court granted certiorari, vacated the judgment and remanded the cause to the Circuit Court of Appeals for further consideration in the light of In re Bevill.
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448 P.2d 201 (1968)
92 Idaho 587
Gerald MATTSON, Guardian ad Litem for Walter Wamsley, Christy Wamsley, Michele Wamsley, and Lilas Wamsley, Plaintiffs-Respondents,
v.
James C. BRYAN, Defendant-Appellant.
No. 10016.
Supreme Court of Idaho.
December 2, 1968.
*202 Brown, Peacock & Keane, Kellogg, for appellant.
Paul C. Keeton and D.K. Worden, Jr., Lewiston, for respondents.
SMITH, Chief Justice.
Respondents (plaintiffs) Wamsleys, minors, brought this action by their guardian ad litem for recovery of damages on account of the alleged wrongful death of their mother, Marian Wamsley, aged 38 years. The death of Mrs. Wamsley resulted January 15, 1966, when an automobile in which she was riding, driven by appellant (defendant) James C. Bryan, collided with a truck, driven by one Udell Anderson. The present appeal is from a judgment of $44,500 entered on the verdict returned by the jury against appellant in favor of respondents and from an order denying appellant's motion for a new trial.
Marian Wamsley divorced her husband, father of the children, during the year 1961. Mrs. Wamsley was the custodian of the children. Her income was $240 a month which she received as child support money from her former husband. For some time prior to her death she had been attending a teacher's normal school or college in Lewiston, Idaho; she had not as yet received a teacher's certificate.
Appellant, a married man, had met Mrs. Wamsley two or three times prior to the night January 14-15, 1966. Appellant did not reveal his marital status to Mrs. Wamsley.
During the evening in question, appellant met Mrs. Wamsley about 9:00 p.m., in a Lewiston night club. Appellant testified Mrs. Wamsley had been drinking prior to her arrival at the club, and that while there he had a beer and she a mixed drink; that they then proceeded to Ahsahka, where they purchased three beers which they consumed in appellant's automobile; that they next proceeded to a club in Orofino where appellant had a beer and she a mixed drink; that upon leaving the club in Orofino, they parked a while at a closed service station, and then purchased gasoline at another station in Orofino; that during the return trip toward Lewiston, both slept from time to time, in appellant's car parked by the side of the highway. Appellant further stated that while Mrs. Wamsley did not object to his driving, she did say, addressing appellant, "You are sleepy and you are tired. Would you let me drive"; and again, that she stated, "she knew I was tired and says, `How about me driving? Can I drive?' I said, `no, I will drive my own car.'"
Appellant further testified that as to the rest of the trip Mrs. Wamsley intermittently slept with her head on the front seat; that she was "more or less intoxicated," and at the time of the accident he, appellant, did not know if Mrs. Wamsley was awake or asleep.
At approximately 6:00 a.m. of January 15, appellant, proceeding in a westerly direction, on U.S. Highway 95 about 3 1/2 miles east of Lewiston, collided head-on with the truck. The accident occurred in the eastbound lane, which was appellant's left-hand, and wrong, lane of traffic. Mr. Anderson, driver of the truck, testified that appellant's automobile, after having been operated in an erratic manner, suddenly *203 veered into his (Anderson's) lane of traffic, where the two vehicles came together. Both vehicles left skid marks the bread truck 32 feet 6 inches and appellant's vehicle 57 feet 6 inches.
Appellant testified he had no recollection of the cause of the accident; that the last he remembered Mrs. Wamsley was lying with her head on the front seat of his automobile. He stated he might have gone to sleep at the wheel or he might have "blacked-out"; that he had had blackouts as a result of a 1965 industrial accident; that these blackouts had occurred on one or two previous occasions while he was driving, but that Mrs. Wamsley had no knowledge of such affliction.
Mr. Bishop, an investigating officer, testified that at the time and place of the collision, the road was very slick. Officer Bishop also stated that in his opinion appellant was intoxicated at the time of the accident.
Respondents, in their complaint, alleged that at the time of the collision Mrs. Wamsley was a passenger in a motor vehicle owned and operated by appellant and that the accident was the direct result of appellant's intoxication, his gross negligence in driving on the wrong side of the highway in the face of visibly oncoming traffic, and his failing to take even slight care to avoid the collision.
Appellant, in his answer, after denying the material allegations of the complaint, affirmatively pleaded that Mrs. Wamsley knew, or should have known, that appellant had imbibed intoxicating beverages immediately prior to the accident; that hence she assumed the risk of any injury in riding with appellant and such conduct was imputed to respondents; that she knew at the time of the accident appellant was sleepy or groggy and therefore she assumed the risk of any injury by riding with him, which conduct was imputed to respondents.
On voir dire examination appellant's counsel asked a prospective juror whether he would be prejudiced against a married man going out with a woman not his wife. The trial court sustained respondents' objection to the question, which ruling appellant assigns as error.
Appellant contends that such ruling unduly restricted the scope of his voir dire examinations that because of the ruling he could not inquire into the juror's state of mind concerning the subject matter of the question. He points to evidence adduced at the trial which shows that he was a married man in company with a woman not his wife during the evening the accident occurred. He contends that such showing resulted in the jury being prejudiced against him, and that such prejudice contributed inter alia to the rather large amount of the verdict awarded in respondents' favor.
I.R.C.P. 47(a) provides that "(t)he court shall permit the parties or their attorneys to conduct the examination of prospective jurors under its supervision." I.C. § 19-1905 states that "(t)rial juries for criminal actions are formed in the same manner as trial juries in civil actions."
The basic rule on voir dire examination is set forth in the recent assault and battery case of State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967). Although that was a criminal case and the one here is a civil case, I.C. § 19-1905 indicates that in this area no distinction is to be drawn on a criminal-civil basis. In that case, the trial judge sustained an objection to a question by counsel on voir dire examination as to whether a prospective juror entertained any bias or moral compunction about physical violence which would cause her to be prejudiced against one charged with aggravated battery. This Court in holding that such ruling did not constitute reversible error, stated:
"The rule in this jurisdiction is that great latitude is allowed in the examination of veniremen upon their voir dire for the purposes of determining whether there is sufficient ground to challenge the veniremen for statutory cause, I.C. §§ 19-2017 to 19-2022, or whether it is expedient to challenge them peremptorily, I.C. §§ 19-2015 and 19-2016. The scope *204 of voir dire, examination of veniremen in a criminal case, however, is a matter resting in the discretion of the trial court, the exercise of which will not be reversed except in case of abuse. State v. Miller, 60 Idaho 79, 88 P.2d 526; State v. Hoagland, 39 Idaho 405, 228 P. 314. See especially, Frame v. Grisewood, 81 Nev. 114, 399 P.2d 450 (1965) [a civil case]."
In State v. McKeehan, supra, counsel was permitted to ask jurors whether the mere charge of battery in itself would prejudice them against the accused. The McKeehan case thus is consistent with State v. Miller, supra, which held that the trial judge committed reversible error in sustaining an objection to a question regarding prejudice against the use of intoxicating liquors when the issue concerned driving while intoxicated. The rule emerges from those cases, that although interrogations on voir dire cannot require prospective jurors to take a particular view of evidence to be adduced at trial, the inquiries may ascertain whether the fact of the accusation of a particular offense elicits any prejudice on their part.
In the case at bar the question of prejudice against a man consorting with a woman other than his wife did not concern the legal question of alleged gross negligence in the operation of a motor vehicle, but concerned certain other evidentiary facts which might later be adduced at trial. It now appears that it was important, from appellant's standpoint to ascertain, if possible, any personal prejudice or animosity that any one or more of the prospective jurors might have in event the evidence would disclose that appellant had been consorting with a woman other than his wife on the night the accident occurred. The record, however, fails to disclose that the fact such evidence might be adduced was ever called to the trial judge's attention; this is not contained in the pleadings. If appellant felt this was sufficiently important to securing a wholly unprejudiced and fair-minded jury, he should in some manner have acquainted the trial judge with the reason why it was deemed important that this particular question be answered. Without a showing that the trial court was thus timely advised, the ruling was not reversible error.
This holding is in accord with those of other jurisdictions which have considered the effect of sustaining or overruling similar questions on voir dire. See 99 A.L.R.2d 7. In instances where the objections to questions concerning more or less immoral activities were sustained, the courts on review, have taken the view that jurors were being asked hypothetical questions which concerned facts which might be developed by the testimony at trial. See State v. Sheppard, 100 Ohio App. 345, 128 N.E.2d 471, 60 Ohio Op. 298 aff'd 165 Ohio St. 293, 135 N.E.2d 340, 59 Ohio Op. 398, cert. den. 352 U.S. 910, 77 S.Ct. 118, 1 L.Ed.2d 119, reh. den. 352 U.S. 955, 77 S.Ct. 323, 1 L.Ed.2d 245 (Ohio 1955); Commonwealth v. Van Horn, 188 Pa. 143, 41 A. 469 (1898); Hughes v. State, 109 Wis. 397, 85 N.W. 333 (1901); People v. Rigney, 55 Cal.2d 236, 10 Cal. Rptr. 625, 359 P.2d 23, 98 A.L.R. 2d 186 (1961). Those cases have application to the present case wherein the evidence developed the fact that appellant was a married man in company with a woman not his wife during the evening the accident occurred. The other line of cases in this area holds that the trial court did not err in overruling objections to questions similar to the one propounded herein on voir dire examination. State v. Greene, 74 R.I. 437, 60 A.2d 711 (1948); Jones v. People, 23 Colo. 276, 47 P. 275 (1896); State v. Farley, 48 Wash.2d 11, 290 P.2d 987, cert. den. 352 U.S. 858, 77 S.Ct. 79, 1 L.Ed.2d 65 (1955). Cf. State v. Pettit, 33 Idaho 326, 193 P. 1015 (1920).
Appellant assigns as error the refusal of the trial court to grant his motion for mistrial when respondents' counsel, in his opening statement, made reference to appellant's prior plea of guilty to an involuntary manslaughter charge arising out of the same *205 collision.[1] Respondents' counsel, in cross-examination of appellant, also referred to the criminal proceeding and to appellant's conversations with police officers. Respondents later abandoned this tactic and adduced no proof of the guilty plea. Appellant claims it was error to allow respondents to relate facts to the jury in the opening statement, and then fail to adduce proof thereof, in that such prevented appellant's explanation of the facts.
Had respondents adduced proof of the guilty plea, the plea would have been admissible as an admission by a party against interest. This Court considered the question of admissibility in Koch v. Elkins, 71 Idaho, 50, 225 P.2d 457 (1950). There, the question was whether a plea of guilty to a criminal charge of reckless driving could be introduced in a subsequent civil action for recovery of damages for personal injuries. The Court, citing authority, held: "A plea of guilty to a criminal charge, which alleges facts that are in issue in a civil action, is admissible against the party entering the plea as an admission against interest."[2]
However, respondents adduced no proof as to this plea. Appellant contends that since respondents brought before the jury that which was not proved, such constituted reversible error. The issue thus is whether the remarks included in the opening statement of respondents' counsel, so inflamed the jury that appellant's motion for mistrial should have been granted, and whether any prejudice on the part of the jury could subsequently be cured by an instruction to the jury.
The effect of the mention by counsel, of prior criminal or civil proceedings in the course of later proceedings has been considered in other jurisdictions. Some courts have held such to be reversible error, while others have held it either not error or error correctible by instructions. 118 A.L.R. 543. An example where reversal was thought necessary is Duval v. Inland Navigation Co., 90 Wash. 149, 155 P. 768 (1916). There, in an action for damages for personal injuries and false arrest, plaintiff's counsel stated that defendant's agent had been arrested and found guilty of assault. The court stated, as dictum (since there were other errors requiring reversal), "* * * bringing before the jury in an opening statement facts which are entirely irrelevant to the issues to be tried, and deliberately interrogating witnesses concerning a matter which has no bearing upon the issues, may easily be so highly prejudicial as not to be curable by instructions." Cf. Fisher v. Pennsylvania Co., 34 Pa.Super. 500 (1907). On the other hand, no reversal was held necessary in the case of Barr v. Clinton Bridge Works, 179 Iowa 702, 161 N.W. 695 (1917). In that action on a contract, plaintiff's counsel remarked in his opening statement that defendant had been indicted eight times previously for his dealings. The appellate court refused to reverse on grounds of prejudice, stating, "It is conceded that defendant's objection to the opening statement was sustained by the court, and we think it must be presumed that the jury gave attention to the ruling and was not misled thereby to the defendant's prejudice." Cf. Crawl v. Dancer, 180 Mich. 607, 147 N.W. 495 (1914).
*206 A general discussion of the scope and function of the opening statement of counsel is set forth in Miller v. Braun, 196 Kan. 313, 411 P.2d 621 (1966):
"The opening statements of counsel are generally no more than outlines of anticipated proof and are not intended as a complete recital of the facts to be produced on contested issues. Their purpose is to inform the jury in a general way of the nature of the action and defense; to advise it of the facts relied upon by the party to make up his cause of action or defense, and to define the nature of the issues to be tried and the facts intended to be proved, so as to better enable it to understand the case. [citations omitted]
"Generally speaking, counsel may outline in his opening statement what he expects to prove unless it is manifest that such proof would be incompetent, or the statement is made for the purpose of creating prejudice. Counsel should be allowed considerable latitude in his opening statement and its general nature and character rests largely with the discretion of the district court, which must necessarily rely on the good faith of counsel properly to confine his remarks within the bounds of propriety and good faith. Since whatever counsel states in his opening statement as to what he expects to prove is subject to the further action of the court in permitting him to introduce testimony, it is not necessarily misconduct for him to claim something he does not later prove. (88 C.J.S. Trial § 161, p. 314.) The rule is stated in 53 Am.Jur., Trial § 456, p. 358, as follows:
"`It is generally held that statements by counsel that certain evidence will be introduced are not improper if made in good faith and with reasonable ground to believe that the evidence is admissible, even though the intended proof referred to is afterward excluded. However, in the absence of good faith, or where prejudice is clearly produced, whether as the result of accident, inadvertence, or misconception, the rule is to the contrary. * * *'"
In the case at bar, evidence of appellant's guilty plea, had it been offered in the trial court, would have been admissible. The plea was relevant, since it concerned the same legal question at issue in the civil action; nor is there anything in the record indicating that mention by respondents' counsel of appellant's guilty plea was not in good faith. The trial court did not err in overruling appellant's motion for mistrial, since at the time the motion was made, the court could not know what evidence would later be adduced. Moreover, no apparent prejudice to appellant resulted from such ruling, inasmuch as the trial court later gave curative instructions to the jury regarding the criminal charges, and the evidence amply supports the finding of gross negligence without reference to the criminal proceedings.
In State v. Urie, 92 Idaho 71, 437 P.2d 24 (1968), this Court considered the question whether an instruction could cure the erroneous admission in evidence of a showing that the defendant, at the time of trial, was confined in the penitentiary as the result of a previous conviction. That error was held to be rectified by a proper instruction.[3] The remarks of counsel regarding prior criminal proceedings cannot be considered to be any more prejudicial than *207 the introduction in evidence of prior criminal proceedings.
In the case at bar, the trial court gave two instructions admonishing the jury to disregard the mentioned but unproved guilty plea.[4] These instructions are clear and concise. If there is sufficient evidence in the record which will support the finding of the jury, we must presume that the jurors heeded those instructions.
There is indeed ample evidence in the record, apart from appellant's guilty plea to the charge of involuntary manslaughter, to support the finding of appellant's gross negligence.
First, appellant's testimony shows that both he and Mrs. Wamsley had been drinking prior to the accident. Appellant also admitted that prior to the accident he was very tired; that Mrs. Wamsley had told him he appeared tired and had inquired if she might drive appellant's automobile, and that he refused to let her drive. Moreover, an officer who investigated the accident testified that in his opinion appellant was intoxicated.
Second, Udell Anderson, driver of the truck, testified that appellant's vehicle, after being operated in an erratic manner, suddenly swerved into his, Anderson's, lane of traffic and crashed headlong into his truck. Appellant testified that he remembered none of the details of the accident, but that he might have fallen asleep or blacked out. Mrs. Wamsley had already told him, by his own admission, that he looked tired, and several times they pulled off the highway into turnouts for periods of rest. As for the blackouts, appellant testified that he had at times suffered the same (and one or two while driving) subsequent to a 1965 industrial accident.
Any of these three sets of facts intoxication, falling asleep after being warned, or driving with a known propensity to black out could constitute evidence from which a jury would be justified in finding gross negligence. Given these facts, respondents' mention to the jury (in the opening statement) of appellant's guilty plea in the prior criminal proceeding did not operate to the prejudice of appellant; and any prejudice which might have resulted therefrom was adequately cured by the trial court's instructions to the jury to disregard such incident.
Appellant next assigns as error the refusal of the trial court to instruct the jury to the effect that Mrs. Wamsley was guilty of contributory negligence in going to sleep and not exercising reasonable care and caution for her own safety.[5]
*208 The trial court gave several instructions dealing with the defense of contributory negligence, but declined to give the requested instruction based specifically on the "sleep theory." There was no direct evidence that Mrs. Wamsley was asleep at the time of the accident. When specifically asked whether she was asleep, appellant testified, "I don't know." In order to show that Mrs. Wamsley was guilty of contributory negligence under that theory, appellant would have had to show by a preponderance of the evidence that she was asleep. He did not do so; his testimony in the premises in effect was that it was as likely that Mrs. Wamsley was not asleep as that she was asleep. Under the "sleep" theory, he failed to carry his burden of proof. Dent v. Hardware Mutual Casualty Co., 86 Idaho 427, 388 P.2d 89 (1964); Splinter v. City of Nampa, 74 Idaho 1, 256 P.2d 215 (1953). Hence the court did not err in refusing to instruct on that theory of contributory negligence.
Appellant also assigns error of the trial court in giving jury instruction No. 11, defining ordinary negligence in a case where recovery could be had only for gross negligence. Appellant contends that such an instruction would have the effect of unduly confusing the jury and lead to the application of the standard of ordinary negligence, where a showing of gross negligence is necessary to sustain a finding of liability. However, the instructions taken as a whole amply show that the standard to be applied is that of gross negligence. In fact, the complained-of instruction No. 11, begins as follows: "Plaintiff's [respondent's] case is based on his claim that there was gross negligence on the part of the defendant [appellant] which directly and proximately caused his [respondent's] damage." Instruction No. 5 commences: "The plaintiffs have the burden of proving the following propositions: FIRST: That the defendant was grossly negligent and that his gross negligence caused the accident in question." Instruction No. 6 sets forth I.C. § 49-1401, the automobile guest statute, requiring proof of gross negligence in order that liability attain in a case such as the one at bar. Finally, the court gave a specific instruction on "gross negligence."[6]
All instructions to a jury must be taken as a whole. In the absence of a showing to the contrary, we must assume that the jury applied the law as so given to the facts. Although the trial court deemed it necessary to instruct the jury on ordinary negligence as an aid to understanding the concept of gross negligence, Hayslip v. George, 92 Idaho 349, 442 P.2d 759 (1968), nevertheless, the instructions made it quite clear that recovery must be predicated on a showing of gross negligence; hence the giving of an instruction defining ordinary negligence was not error.
Appellant complains that the verdict of $44,500. is excessive inasmuch as Mrs. *209 Wamsley's only support was the $240. per month child support payments.
At the time of her death, Mrs. Wamsley had four minor children, ages 14, 12, 9 and 2. They were under her exclusive care, custody and control. In view of their ages, the amount of $11,125. per child was not excessive. Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651 (1950).
Finally, appellant contends that the trial court erred in denying appellant's motion for a new trial. There is no merit in his contention. The granting or refusal of such a motion rests in the sound discretion of the trial court, not to be disturbed except in cases of manifest error. Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967); Cassia Creek Reservoir Co. v. Harper, 91 Idaho 488, 426 P.2d 209 (1967).
Judgment affirmed. Costs to respondents.
TAYLOR, McQUADE, McFADDEN and SPEAR, JJ., concur.
NOTES
[1] "(W)e would prove as part of our case here that following this unfortunate accident that Mr. Bryan pleaded guilty in this court to a charge under Idaho Code 18-4006, to involuntary manslaughter and that a part of this charge is the driving (sic) the vehicle without circumspection and with gross negligence."
[2] S.L. 1953, ch. 273, regulating traffic on the highways and defining certain crimes in the use and operation of vehicles is codified as I.C. §§ 49-501 to 49-506 and 49-1001 to 49-1126, incl., see compilers notes I.C. § 49-1104. I.C. § 49-1119 as so codified reads, "No evidence of the conviction of any person for any violation of this act shall be admissible in any court in any civil action." A plea of guilty, not to an offense specified in the motor vehicle act, but to the offense of involuntary manslaughter under I.C. § 18-4006, would not fall under the ban of I.C. § 49-1119, and would be admissible in a subsequent civil action arising out of the same event. To that extent the holding of Koch v. Elkins, supra, is still valid.
[3] State v. Urie holds: "Appellant further contends that admission of State's Exhibit F was error in that it was not a proper matter for rebuttal and that it contained information highly prejudicial to his case namely, that he was presently being confined in the state penitentiary as a result of a previous conviction.
"There is no merit to either contention. State's Exhibit F was introduced solely to explain what had transpired at the preliminary hearing in probate court between the time that the criminal complaint against Fraley and Urie was filed (Appellant's Exhibit 4) and the dismissal of charges as to Fraley (Appellant's Exhibit 5) because appellant refused to testify therein. Moreover, any prejudicial matter contained in Exhibit F was cured by the trial court's explicit admonition to the jury to totally disregard any information concerning appellant's prior conviction in connection with the offense for which he was presently being tried. State v. Ramsbottom, 89 Idaho 1, 402 P.2d 384 (1965); State v. McConville, 82 Idaho 47, 349 P.2d 114 (1960); State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959); State v. Autheman, 47 Idaho 328, 274 P. 805, 62 A.L.R. 195 (1929); and State v. Knutson, 47 Idaho 281, 274 P. 108 (1929). These authorities definitely establish the rule that in Idaho an error in admission of evidence may be cured by a proper instruction, and it must be presumed that the jury obeyed the trial court's instruction to disregard entirely the objectionable testimony."
[4] Instruction No. 2. (Excerpt) "Arguments, statements, and remarks of counsel are intended to help you in understanding the evidence and applying the law, but are not evidence. If any argument, statement, or remark has no basis in evidence, then you should disregard that argument, statement, or remark."
Instruction No. 28. "You are instructed that during this trial reference has been made on occasion to the fact that Mr. Bryan was charged with a crime as the result of the automobile accident which happened on January 15, 1966. The Court instructs you that no evidence has been introduced on this fact and that, therefore, you are not to consider whether or not Mr. Bryan was charged with any crime as the result of this accident in your deliberations."
[5] Appellant's requested instruction:
"I instruct you that even though Marian Wamsley, as a passenger in the automobile, was not under the same or similar duty or obligation of care or watchfulness that the driver was, nevertheless, she was charged with exercising reasonable care and caution for her own safety, and this required her not to rely blindly upon the exercise of care and caution by the driver, but to take heed of all those facts and circumstances which may have been plainly visible to her, and as much a warning to her as to the driver, and particularly with reference to the acts of the driver.
"Therefore, if you find circumstances existed which would herald danger to a reasonably prudent person, and you further find that Marian Wamsley went to sleep while a passenger in the car, you must consider whether a reasonably prudent person would have gone to sleep under the facts in this case.
"Should you find that Marion Wamsley was contributorily negligent in going to sleep and such negligence was a proximate cause of her death, then Gerald Mattson may not recover in this case."
[6] Instruction No. 18: You are instructed that gross negligence means that there must be more than ordinary negligence, for the two are distinguishable, the distinction being one of degree. Gross negligence means just what it indicates, gross or great negligence; that is, negligence in a very high degree.
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270 N.J. Super. 105 (1994)
636 A.2d 579
JAMES A. TERRY, PLAINTIFF-APPELLANT,
v.
THERESA TERRY, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Submitted December 14, 1993.
Decided February 1, 1994.
*106 Before Judges DREIER, BROCHIN and KLEINER.
James A. Terry, plaintiff-appellant, filed a pro se brief and a pro se reply brief.
*107 Wolff & Samson, attorneys for defendant-respondent (Cynthia Borsella Lindemann, of counsel and on the brief).
The opinion of the court was delivered by KLEINER, J.S.C. (temporarily assigned).
Plaintiff James A. Terry and defendant Theresa Terry were married August 29, 1987, and were divorced by a dual judgment of divorce entered August 31, 1992. Plaintiff's appeal from the custody and visitation components of that judgment has been consolidated with an appeal from a separately entered order dated May 11, 1993. The latter order established plaintiff's obligation to pay child support but denied plaintiff's application, pending the resolution of the original appeal, for a modification of the trial court's original custody order.
Both orders concern the custody of Davina Terry, born February 20, 1988. As of the date of the divorce judgment, Davina was four and one-half years old and had been residing with plaintiff since April 19, 1991. The trial court awarded joint custody of Davina to the litigants but transferred residential custody to her mother and established a definitive visitation schedule for her father. We are constrained to conclude that the trial court failed to analyze the evidence presented at trial pursuant to the mandatory statutory considerations delineated in N.J.S.A. 9:2-4 and the standard of "the best interests of the child," and thus the portions of the original judgment pertinent to custody and visitation must be reversed and remanded for further proceedings consistent with this opinion. For reasons separately discussed, infra, we also reverse the order establishing the plaintiff's responsibility to pay child support.
When the parties married, plaintiff was a forty-four year old minister residing in Newark. He was earning $24,000 per year[1]*108 and was provided housing by his congregation. Plaintiff was a widower who had raised the two children of his first marriage, then ages twenty-six and twenty-five, as a single parent following his first wife's death when their children were ages two and one. Defendant was a twenty-nine year old divorcee who was gainfully employed as a factory worker in Pittsburgh, Pennsylvania. Plaintiff's extended family also resided in the Pittsburgh area, and plaintiff met defendant while visiting his relatives in Pittsburgh in February 1987. After defendant learned she was pregnant, the parties married and established their first residence in Newark.
It was uncontradicted that on October 28, 1988, plaintiff struck the defendant in the face. Defendant contended at trial that plaintiff had been abusive, although not violent, both before and after the October 1988 incident. On December 15, 1988, defendant took their daughter, left the Newark residence, spent one night in a women's shelter in Essex County, and returned to the home of her mother in Whitsett, Pennsylvania.
On January 25, 1989, plaintiff filed a complaint seeking custody of Davina and defendant subsequently filed a counterclaim seeking the same relief. On March 14, 1989, a consent pendente lite order was executed establishing joint custody of Davina. The child was to reside with defendant in Pennsylvania, but plaintiff was granted visitation as follows: March 6, 1989 to March 11, 1989, at his parent's home in Pittsburgh; April 17, 1989 to April 29, 1989, at the former marital residence in Newark; May 22, 1989 to May 27, 1989, at his parent's residence in Pittsburgh. The court order also provided for an investigation by the Essex County Probation Department as to plaintiff and by the Fayette County, Pennsylvania Probation Department as to the defendant.
The Essex County investigation consisted of one interview of the plaintiff in the presence of Davina on April 26, 1989. The *109 probation officer, David Yennior, concluded that plaintiff was "a more than adequate caretaker."[2]
The alternating visitation arrangement continued without the necessity of court intervention until March 1990. Plaintiff exercised his right of visitation by traveling to Pittsburgh to pick up his daughter and would make another trip to Pittsburgh to return Davina to defendant's residence. Additionally, another consent order was submitted to the court and was executed on January 25, 1990, which appointed Dr. Martha H. Page to conduct psychological testing of both parents and Davina in anticipation of a future custody trial.
Plaintiff experienced difficulty in arranging visitation during February 1990 and filed a motion returnable March 23, 1990 to resolve this alleged visitation scheduling problem. The motion resulted in an order which granted plaintiff visitation from April 2, 1990 to April 16, 1990, and from May 14, 1990 to May 21, 1990. When plaintiff failed to return Davina on May 21, 1990, defendant filed an emergent application to compel compliance with the consent order and the Family Part on May 23, 1990 ordered that Davina be returned to defendant by the following day. After a further hearing on the matter on June 1, 1990, the court granted plaintiff visitation in New Jersey from June 11, 1990 to June 25, 1990, and from July 23, 1990 to August 1, 1990, and scheduled a final custody hearing for August 1, 1990.[3]
On the day of trial, the parties appeared in court and acknowledged they had negotiated a final custody agreement. The terms *110 of the agreement were placed on the record. Paragraph three of the agreement is significant:
3. Davina Terry will be in the joint and shared custody of both parents. Each parent will have physical custody of Davina for a one month period every other month at that parent's regular residence. This arrangement will be implemented for a four month trial period. Thereafter, by further agreement of the parties, the alternating months [sic] system will either be adopted as a means of shared custody or the parties will negotiate another mutually acceptable system.
The trial period for the alternating months [sic] system will be as follows:
A. Rev. Terry will have physical custody of Davina until Monday, August 6, 1990, on which day he will bring Davina to the home of Mrs. Terry in Perryopolis, Pennsylvania.
B. Davina will reside with Mrs. Terry from August 6, 1990 until on or about September 6, 1990.
C. On or about September 6, 1990, Mrs. Terry will deliver Davina to the physical custody of Rev. Terry. Davina will then reside with Rev. Terry in Newark, New Jersey until on or about October 6, 1990.
D. On or about October 6, 1990 Rev. Terry will bring the child to Mrs. Terry's home, where the child will reside until on or about November 6, 1990.
E. On or about November 6, 1990, Mrs. Terry will deliver the child to the physical custody of Rev. Terry and Davina will reside with Rev. Terry until on or about December 6, 1990.
F. On or about December 6, 1990, Rev. Terry will bring the child to Mrs. Terry's home.
G. Sometime during the month of December, both parties agree to discuss the alternating month system. If the system works, it will continue as specified above. If the parties are not satisfied with how the system worked over the four month period, they will negotiate to arrive at a mutually acceptable system of shared custody. The parties can each call their respective attorneys for assistance if necessary.
H. Exact dates and details, such as where and when, for the transfer of Davina from one residence to the other can be worked out between the parties on a case by case basis.
We note that on June 18, 1990, plaintiff filed a separate complaint for divorce and custody under Docket No. FM-25890-90 and defendant filed a counterclaim seeking the identical relief on August 7, 1990.[4]
*111 In early September 1990, the parties temporarily reconciled at plaintiff's residence in Newark. Later that month, the plaintiff obtained a leave of absence from his ministry and the parties moved to the home of plaintiff's mother in Pittsburgh. They resided together until October 2, 1990, when defendant moved to Perryopolis, Pennsylvania.
In November 1990, defendant filed a petition with the Court of Common Pleas of Allegheny County, Pennsylvania designated "Petition to Recognize and Enforce Out-of-State Custody Decree and Order of Court." Defendant failed to inform the Pennsylvania Court of the unsuccessful reconciliation and otherwise misstated the status of the parties in paragraph five of her petition:
5. The father, James Terry, III currently resides in Allegheny County, Pennsylvania with the child. The mother, Theresa Terry, currently resides in Fayette County, Pennsylvania. Due to Mr. Terry's refusal to comply with Judge Cass's Order, which would require that he turn the child over to Theresa Terry for the month of November, the child presently resides in Allegheny County, Pennsylvania. Previous contempts of the New Jersey Order have occurred in the recent past when father has retained the child in Allegheny County in defiance of the Court Order and against mother's will. The father has only recently moved from New Jersey to Allegheny County. Petitioner avers that father has informed her he intends to remain in Allegheny County with the child. The mother has resided in Fayette County since December of 1988. Neither party has contacts with New Jersey at the present time.
That allegation specifically contradicted the terms of the last order in Essex County which provided that plaintiff was to have physical custody during November 1990. The ad damnum clause of defendant's petition provided:
WHEREFORE, Petitioner, Theresa Terry, requests that this Honorable Court enter an Order recognizing and enforcing the New Jersey Order of August 6, 1990, as a valid out of state custody decree pursuant to the Uniform Child Custody Jurisdiction Act, 42 Pa. C.S.A. § 5341 et seq., and directing the Clerk of Court of Common Pleas of Allegheny County to file and treat the Essex County, New Jersey, Order in the same manner as a custody order rendered by the Allegheny County Court.
On December 28, 1990, defendant and the child left Pennsylvania and established a new residence in Smyrna, Tennessee.
A pretrial conference was scheduled in Essex County for February 11, 1991. On January 8, 1991, defendant's counsel notified *112 defendant by telephone of the conference date. Defendant informed her counsel that she "did not wish to return to New Jersey for any further legal proceedings." Thereafter, when the conference was rescheduled for March 7, 1991, defendant reaffirmed her position in a conversation with her attorney. Defendant's counsel immediately filed a motion also returnable on March 7, 1991 to be relieved as counsel. On that date, the court relieved counsel of her responsibility and ordered that defendant return Davina to New Jersey within ten days and ordered that temporary physical custody be granted to plaintiff. When defendant failed to comply, plaintiff filed a motion returnable April 11, 1991 to declare defendant in violation of the March 28, 1991 court order. On April 12, 1991, the court declared defendant in contempt, issued a warrant for her arrest, and ordered that upon defendant's arrest, Davina was to be placed in the physical custody of plaintiff.
Although it is unclear when and under what circumstances the plaintiff learned of defendant's relocation to Tennessee, it is uncontradicted that the plaintiff actually located the defendant's exact place of residence on or about April 15, 1991. On April 15, 1991, plaintiff appeared before the Chancery Court for Rutherford County, Tennessee, and obtained a court order directing the sheriff to take defendant and Davina into custody in the early morning hours of April 16, 1991 until a hearing scheduled for 8:30 a.m. on that day was held. After efforts to obtain custody of defendant and the child failed, a similar order was entered on April 16, 1991 which directed the sheriff to deliver Davina to a custody hearing scheduled for the following day and required that a subpoena be served on defendant. On that date, plaintiff also signed a criminal complaint with the appropriate police authorities charging defendant with kidnapping.
Through the combined efforts of the police and the Rutherford County Sheriff's Department, defendant surrendered herself, posted bail, and relinquished custody of Davina. On April 19, 1991, the Rutherford County Chancery Court entered an order providing:
*113 In this cause, the Plaintiff has filed a Petition To Enforce the Superior Court of New Jersey, Chancery Division/Family Part Decree, granting temporary custody of the parties' minor child to the Plaintiff.
This cause came on to be heard on this the 19th day of April, 1991, before the Honorable Robert E. Corlew, III, Chancellor, with both parties and the minor child and their respective counsel present in open Court, and it appearing to the Court from the statements of the Defendant's counsel that the Defendant is in agreement that the temporary custody order of said Chancery Court, is a binding Order, and should be enforced in this Court, from all of which and review of the record in this cause, it is accordingly ORDERED, ADJUDGED, and DECREED that custody of the parties' minor child, DAVINA TERRY, is awarded to the Plaintiff, pending any further orders of the Court of New Jersey.
Based on this order and the prior order obtained in Essex County, plaintiff took Davina and returned to his mother's home in Pittsburgh.
On October 16, 1991, (as noted supra n. 4) an order of consolidation was entered in the Essex County, Family Part. Defendant was represented by her present legal counsel. The order also provided:
2. That defendant is granted three weeks' extended visitation with the minor child of the marriage, Davina Terry.
3. That plaintiff shall deliver the minor child to defendant's parents' home in Whitsett, Pennsylvania, on Saturday, September 21, 1991.
4. That defendant is permitted to pick up the child from her parents' home and return with her to defendant's residence in Smyrna, Tennessee.
5. That defendant shall return the minor child to her parents' home on October 12, 1991, and plaintiff shall pick her up there.
6. That plaintiff shall pay for the round-trip transportation costs of the defendant and the minor child.
Although that order scheduled the consolidated matters for trial on December 4, 1991, the trial actually commenced July 28, 1992.
On April 27, 1992, two orders were entered in Essex County: (1) an order recognizing that the New Jersey court retained jurisdiction to resolve the entire dispute then pending; and (2) an order for visitation and a probation department investigation, which specifically provided:
1. That defendant is granted visitation with the minor child of the marriage, Davina Terry, commencing May 9, 1992 through June 6, 1992.
*114 2. That plaintiff shall deliver the minor child to defendant's parents' home in Whitset [sic], Pennsylvania, on May 9, 1992.
3. That defendant is permitted to pick up the minor child from her parents' home and return with her to defendant's residence in Smyrna, Tennessee.
4. That defendant shall return the minor child to her parents' home on June 6, 1992, and plaintiff shall pick her up there.
5. That the Probation Departments in the counties in which each of the parties reside shall conduct a best-interests investigation, and they shall interview all parties residing at the respective residences, for the purpose of determining residential custody of the minor child, Davina Terry.
6. Said evaluations shall be completed by the respective Probation Departments within thirty (30) days of the date of this Order.
7. That the trial date is scheduled for July 14 and 15, 1992.
Pursuant to the court's directive, Martha H. Page, Ed.D, a licensed psychologist, conducted an investigation on June 23, 1992 and July 24, 1992 as follows: on June 23, 1992, a one and a half hour interview with plaintiff and Davina and a one and a half hour interview with defendant; on July 24, 1992, a one hour interview with defendant and Davina. She performed psychological testing on both parents.
Dr. Page had originally conducted an evaluation of the parties on May 21, 1990 pursuant to the January 25, 1990 consent order. In November 1991, after plaintiff had custody pursuant to the April 19, 1991 order in Tennessee, plaintiff arranged to see Dr. Page without notice to defendant. Thus the appointments in June and July 1992 were Dr. Page's third and fourth contacts with this family.
We quote a portion of Dr. Page's final report of July 27, 1991:
BACKGROUND:
The original custody evaluation of 5/21/90 had recommended that Davina, then 1 year, 11 months of age, continue in the physical custody of the mother, with the continuation of joint legal custody and liberal time-sharing. If Reverend Terry were to move to Pennsylvania, then time-sharing should be re-evaluated to allow for a more equitable plan; that time- = sharing [sic] be re-evaluated when Davina reached school age, if the father had not yet moved to Pennsylvania. It was also recommended that the parents attempt through mediation or counselling to arrive at a more cooperative approach to their dealings with each other with respect to Davina.
....
*115 DAVINA'S NEEDS AND ATTACHMENTS
Davina appeared to be very happy when with her mother and when with her father. She was comfortable and spontaneous with both of them. Her father saw her as more troubled by the separations than did the mother. However, her father saw her as progressing more satisfactorily than did the mother, who was with her less. Both parents were appropriately responsive to and affectionate with her.
....
RECOMMENDATIONS
1) that Davina remain in her father's physical custody with joint legal custody for mother and father.
2) that Davina visit with her mother every two-three months for two week periods, and that costs be shared equally by both parents (assuming both are working) or proportionately by income.
3) that holidays be alternated between the parents and that Davina spend the first Christmas with her noncustodial parent.
4) that Davina spend summer vacation with her mother as follows:
a) This summer. One vacation of 2 1/2 weeks
b) The following summer, two separate vacations of three weeks each.
c) Each summer thereafter, six continuous weeks (half the summer)
5) that Davina's time-sharing schedule be re-evaluated when she reaches the age of seven. It is suggested that if the parents are unable to work this out on their own, that they seek the help of a mediator or family counselor to assist them in arranging a schedule.
At the trial commencing July 28, 1992, Dr. Page and the Essex County probation officer who prepared the original evaluation in April 1989 testified. Defendant offered no independent evaluation.[5]
The only other witness at the trial was plaintiff's elderly mother who admitted that although plaintiff and Davina reside in her home, all of the parenting and child care is provided by plaintiff. Her age and medical condition prohibit her involvement in child care.
Essentially, the testimony of the parties focused upon the marital history and the litigation. Defendant offered into evidence a non-professionally prepared videotape showing her present residence *116 and the residential area surrounding her home. At trial it was revealed that defendant maintains her own apartment in Smyrna, Tennessee, and is gainfully employed as a factory worker by the Nissan Motor Company. Plaintiff continued to reside at his mother's home in Pittsburgh, was working part-time as a minister, and was receiving public assistance. Defendant recounted various types of abuse during her marriage to plaintiff which led up to the marital separation. Although these allegations, other than his admission of a physical assault in October 1988, were denied by plaintiff, the trial court determined that defendant's rendition of her marital life was more credible.
We note that there was no evidence offered at trial or asserted in any pleading ever filed by either party concerning abuse or neglect by either parent towards Davina. We also note that every order of the New Jersey court contained by consent a visitation component allowing plaintiff extended periods of visitation. We find it significant that plaintiff had continuous physical custody from April 19, 1991 until July 29, 1992, interrupted only by extensive visitation afforded the defendant between September 21, 1991 to October 12, 1991 and May 6, 1992 to June 6, 1992.[6]
The court's findings in this matter encompass eight pages of the trial transcript. After reciting the procedural history, the court concluded that defendant's version of the spousal abuse was more credible and that the plaintiff's suspicions about his wife's infidelity while they resided together were unfounded. We concur with those conclusions.
After summarizing the testimony of Dr. Page, the court proceeded with its decision as to custody. Because of its brevity and our conclusion that these findings were inadequate, we quote that portion of the court's oral decision in its entirety:
The Court believes that the mother is equally capable of attending to the physical custody of the child and the award of custody should not be based alone on *117 the length of time spent with one parent while awaiting the Court's decision. Financial and geographic limitations, while meriting strong consideration should not be considered singular factors.
In this case, Mr. Terry was a pastor has not had a full time church assignment this year and may not have one at all if at all until June of 1992. He's presently unemployed. Collects public assistance and lives with his mother in Pennsylvania.
Now the testimony in this Court's belief shows there were incidents of physical abuse occasioned on the wife by the husband. Now the husband admits only one occasion when he punched his wife in the mouth with his fist after he lost his temper.
The Court finds that the wife is credible as to the testimony concerning other physical assaults and the blocking out of the husband's admitted incident is system [sic] of the battered woman syndrome.[7] The first night after leaving the Newark home she spent in a women's shelter. The Court validates the testimony of the wife and discredits the testimony of the husband as to these incidents.
Here the husband is forty-nine years old and the wife is thirty-five years old. The father has two emancipated children that he raised admirably with his mother while that are both presently either serving or recently left the armed forces.
The Court is also impressed with the upwards moves [sic] made by Mrs. Terry. She's secured her own apartment with two bedrooms and two baths. She moved from her brother's home to an efficiency apartment to her present location. Her employment with Nissan is a very good job. The video which I've marked D-1 in evidence depicted the surrounding area and services available for the child. The Court found these surroundings to be more than adequate for the child to be raised and grow.
The father testified that on many nights he's slept in the child's room on a cot or mattress on the floor because he was concerned that the child would either fall out of bed or was afraid and would wake up shaking and crying or rocking in the night. The father further testified he didn't trust the parenting or medical awareness of the mother. Dr. Page in commenting in her testimony on the sleeping arrangement with the father felt that this should be stopped.
In New Jersey, the issue of custody follows a public policy that is established by the legislature under New Jersey Statute Annotated 9:2-4 et seq. The cases are legion concerning the best interest of the child.
In making custody determinations a court is required to consider a list of factors including the parents' ability to cooperate in matters concerning the child, the fitness of the parents' and any past history of abuse.
Here the Court feels that the primary caretaking responsibility for the child should belong to the mother. The Court fully believes that the husband [sic] allegation of infidelity and lesbian relationships are false, yet his threats were real.
*118 The constant demand of the husband concerning his wife's whereabouts was a cause of unrequiting pressure in the marriage. The Court will order that physical custody of Divina [sic] be awarded to the mother and the mother and the child shall be permitted to reside in Tennessee. The Court believes that no reason exists to continue the separation of the mother and her child.
In evaluating this decision, we recognize that the opinion of the trial judge in child custody matters is given great weight on appeal. Palermo v. Palermo, 164 N.J. Super. 492, 498, 397 A.2d 349 (App.Div. 1978); Sheehan v. Sheehan, 51 N.J. Super. 276, 295, 143 A.2d 874 (App.Div.), certif. denied, 28 N.J. 147, 145 A.2d 358 (1958); Scanlon v. Scanlon, 29 N.J. Super. 317, 324, 102 A.2d 656 (App.Div. 1954). Yet we must evaluate that opinion by considering the statutory declared public policy and criteria which a trial court must consider:
The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.
....
In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow visitation not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.
[N.J.S.A. 9:2-4.]
Dr. Page testified that both parents were capable of providing appropriate parenting skills and that Davina appeared to react appropriately in the presence of both parents. There was no evidence that at any time either parent had ever acted abusively or neglectfully in caring for Davina. Many of the court orders *119 respecting visitation were submitted by consent, and no court-ordered visitation resulted in any report by either parent alleging abuse or neglect during a visitation period.
Although the plaintiff had physical custody of Davina from April 19, 1991 to July 29, 1992, with perhaps two visitations between Davina and defendant, the court determined, without adequate explanation and contrary to the recommendation of the court-appointed expert, to award custody to defendant. We cannot countenance that decision. It appears the only differentiating factor that the court considered pertained to the plaintiff's lack of credibility in his denial of non-physical abuse of defendant prior to December 1989. The one act of physical abuse alleged was readily admitted. Yet N.J.S.A. 9:2-4 specifically provides in part, "A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child."
Although we have said, in the context of an appeal of an equitable distribution judgment, that the failure to make express findings on each statutory criteria may be harmless error, Winer v. Winer, 241 N.J. Super. 510, 524, 575 A.2d 518 (App.Div. 1990), the articulation of reasons by the trial court in a child custody proceeding must reference the pertinent statutory criteria with some specificity and should reference the remaining statutory scheme at least generally, to warrant affirmance.
Superimposed upon an analysis of the statutory scheme is the additional requirement that the court consider and articulate why its custody decision is deemed to be in the child's best interest. "Our law in a cause involving the custody of a minor child is that the paramount consideration is the safety, happiness, physical, mental and moral welfare of the child." Fantony v. Fantony, 21 N.J. 525, 536, 122 A.2d 593 (1956); see also In re J.S. & C., 129 N.J. Super. 486, 493, 324 A.2d 90 (Ch.Div. 1974), aff'd, 142 N.J. Super. 499, 362 A.2d 54 (App.Div. 1976).
In this case, the trial judge failed to articulate why he concluded that a change in physical custody from plaintiff's home, where she *120 had resided for fifteen months, to the home of defendant would be in Davina's best interest. This is particularly important where, as here, the specific recommendation of Dr. Page was rejected by the court.
The trial court specifically retained jurisdiction in this matter and in fact ordered the parents not to institute any complaint for custody in any other jurisdiction. However, it is now apparent that the plaintiff is now employed, albeit part-time, as a minister in Pittsburgh. He has no definitive plan to return to New Jersey. Defendant has firmly established a residence and steady employment in Tennessee. Her only nexus to New Jersey is her original marital residence. It is clear based upon the history of this couple that the distance between their present residences will in all probability require the assistance of a judicial system and the social services available within the judicial system to monitor and implement the future visitation of the non-residential parent. This prognosis should have been obvious to the trial court and we conclude that any decision on the future of Davina should not have been rendered without some input from appropriate agencies in Pittsburgh, Pennsylvania and Smyrna, Tennessee.
Neither party has challenged on this appeal the trial court's decision to retain jurisdiction in this matter. The trial court, and this court on appeal, have both expended considerable judicial attention to a resolution of this dispute. We will therefore not disturb the trial court's jurisdiction retention decision. Once custody is reconsidered on remand, the trial court should recognize that future disputes, if any, should be posed to the court in the county of Davina's residential custodian and should appropriately defer jurisdiction to that court. See Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-31.
We are fully aware that Davina has been residing since August 1992 with defendant. It would be unfair to plaintiff not to be permitted an extended visit with Davina in his present residence before each parent is visited in their respective homes by social service agency representatives. Accordingly, an initial remand *121 proceeding shall be conducted by the court within thirty days of this decision to implement a plan for immediate visitation and thereafter appropriate home inspections. Any plenary hearing deemed appropriate should be concluded within ninety days of this opinion.
We do not imply by our reversal of the trial court's decision that the court on remand is directed to award custody to plaintiff. We stress that the decision after all remand proceedings are concluded must be predicated upon a consideration of the evidence, the reports of the appropriate social agencies, any amended report prepared by Dr. Page, the statutory criteria, N.J.S.A. 9:2-4, and the paramount overriding consideration of the best interest of Davina.
On May 11, 1993, the parties appeared before the court on plaintiff's motion for a modification of the original custody judgment. As noted, this application was denied. The court, however, utilized that occasion to enter an order of support payable by plaintiff. The trial court only considered the plaintiff's wages and failed to make any inquiry as to the defendant's earnings. The order was entered without any consideration of a case information statement prepared by either party as required by R. 5:5-4(a). See Zazzo v. Zazzo, 245 N.J. Super. 124, 129, 584 A.2d 281 (App. Div. 1990), certif. denied, 126 N.J. Super. 321, 598 A.2d 881 (1991). Additionally, the court failed to consider the child support guidelines embodied in Appendix IX-A of the Rules Governing the Courts of the State of New Jersey. The decision of May 11, 1992 as to child support must be reversed and is remanded for reconsideration by the trial court with appropriate attention to the child support guidelines. Chobot v. Chobot, 224 N.J. Super. 648, 654, 541 A.2d 251 (App.Div. 1988). As Davina is entitled to support pending the remand hearing, the order of May 11, 1992 shall remain temporarily in effect as a pendente lite order. The final order shall provide for appropriate adjustments for either overpayments or underpayments retroactive to the date of this decision.
*122 The custodial and visitation provisions of the judgment of divorce and the subsequent order of child support are reversed and the matter is remanded to the trial court for expedited proceedings consistent with this opinion. We do not retain jurisdiction.
NOTES
[1] At trial, plaintiff testified he had been earning approximately $50,000 per annum. He did not corroborate this contention nor did he explain his prior indication to an investigator of the Essex County Probation Department that his income was $24,000 per annum.
[2] The probation officer's report actually stated: "While Reverend Terry appears to be a more adequate caretaker for his daughter...." At the custody trial, Yennior corrected this conclusion and stated the report submitted contained a typographical error and should have read, "While Reverend Terry appears to be a more than adequate caretaker for his daughter...." As the probation officer had never met defendant, the correction is deemed to be truthful.
[3] An order memorializing the terms of the oral order of June 1, 1990 was executed on June 13, 1990.
[4] The pleadings were consolidated with plaintiff's original complaint for custody, Docket No. FD-07-3311-89 on October 16, 1991.
[5] Although an investigation by the Allegheny County Probation Department had been ordered on two separate occasions, reports were either never prepared or never received.
[6] At trial plaintiff also indicated that defendant visited with Davina from December 31, 1991 to January 1, 1992.
[7] We note that there was no evidence at trial that defendant suffered from the battered woman syndrome.
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636 F.2d 166
Dorothy Casteel MYERS, Plaintiff-Appellant,v.UNITED STATES of America et al., Defendants-Appellees.
No. 79-1134.
United States Court of Appeals,Sixth Circuit.
Argued Dec. 1, 1980.Decided Jan. 8, 1981.
Dorothy Casteel Myers, pro se.
W. J. Michael Cody, U. S. Atty., Joe Dycus, Memphis, Tenn., for SBA et al.
Joe O'Bryan, Thompson, O'Bryan & Martin, Cabot, Ark., for Bank of Cabot.
Wayland A. Parker, Greenwood, Ark., for Vowell.
Before WEICK and LIVELY, Circuit Judges and SPIEGEL, U. S. District Judge.*
PER CURIAM.
1
Dorothy Casteel Myers (Myers) appeals in pro se from an order of the District Court for the Western District of Tennessee dismissing her action for damages, injunctive and declaratory relief against the United States, the Small Business Administration (SBA), and certain of its employees, the Bank of Cabot, Arkansas, and its President and Robert and Wanda Vowell.
2
The complaint filed in the district court by Myers also then acting in pro se alleged violation of the Truth In Lending Act, the Due Process Clauses of the Fifth and Fourteenth Amendments to the Constitution, Consumer Credit Protection Act, and the Federal Torts Claims Act.
3
The facts as alleged in the complaint were that on September 27, 1968, Myers and her husband borrowed $14,000.00 from the Bank of Cabot (bank) in Arkansas which loan was guaranteed by SBA. The loan was evidenced by a promissory note payable in monthly instalments and was secured by security interest in restaurant equipment which the Myers' were purchasing and was the purpose of the loan. The loan was further secured by Myers executing a second mortgage on real estate owned by them in Memphis, Tennessee. The security interest and the note and second mortgage were assigned by the bank to SBA.
4
Shortly thereafter on December 11, 1968, Myers and her husband entered into a lease purchase agreement of the equipment with the Vowells who took possession of it and moved it to another location in Arkansas. Both SBA and the bank approved of the agreement which was drawn with the advise and consent of the bank. The Vowells made their payments under the agreement directly to the bank. In 1971, the bank attempted to notify Myers that it was having trouble with the Vowells in collecting payments from them, but it is not clear that Myers ever received any such notice. Later in the year, the bank notified Myers that the loan was delinquent and demanded of her payment in full. On June 7, 1971, SBA notified Myers that Mr. S. Sherrill was in possession of the equipment and that SBA was considering an offer by Sherrill to purchase the equipment for $5,000.00. SBA requested Myers' consent to the private sale to Sherrill but Myers did not consent. A month later on October 29, 1971, SBA notified Myers that the equipment had been sold for $5,000.00 and threatened Myers with foreclosure of the Memphis property. Another similar letter was sent to Myers by SBA on December 17, 1974.
5
In 1977, Myers endeavored to sell her Memphis property, but was unable to do so because of a cloud on her title created by the second mortgage held by SBA which she contends is no longer valid and enforceable. She wrote to SBA and subsequent thereto, SBA purchased the first mortgage on Myers Memphis property which was then in good standing. In October, 1977, Myers made a payment to SBA designated as a payment on "principal and interest" on the first mortgage which SBA wrongfully and without authority applied on the second mortgage.
6
On February 10, 1978, SBA notified Myers that it was preparing to advertise her Memphis property for summary foreclosure sale. She then filed the present action proceeding in pro se (1) to enjoin the sale (2) for damages for violation of her rights and (3) other relief.
7
Defendants filed answers, a motion to strike and a motion to dismiss. On August 13, 1978, the district court, sua sponte, ordered Myers to "set forth in more specifics the basis of her claim within 10 days ... or the cause will be dismissed." Myers construed this order to require her to file an amended complaint and she requested an extension of time in which to do so. Her motion was granted. An amended complaint was filed in her behalf by John I. Purtle, an Arkansas attorney. The defendants filed a motion to dismiss the amended complaint and her action was dismissed on December 6, 1978 for failure to "set forth a justiciable cause of action." In so doing, the court stated that the amended complaint was filed without leave of court and signed by a "purported attorney." It appears to us that the order could reasonably be construed as granting leave to supply the requested specifics by amended pleading. Myers states that Attorney Purtle is now a Justice of the Supreme Court of Arkansas.
8
In our opinion, the action was improvidently dismissed. There were some issues that Myers was at least entitled to have determined either by a jury or by a court. They are as follows:
9
(1) The liability of the Vowells either primary or secondary for the full payment of the debt and whether they should indemnify Myers.
10
(2) Whether Myers was discharged by SBA's failure to exhaust its remedies against Vowells; whether Myers was discharged by the actions of the Bank of Cabot, Arkansas in its dealings with the Vowells.
11
(3) Whether Myers was discharged by the private sale of the restaurant equipment to Sherrill.
12
(4) Whether SBA had the right to sell the equipment to Sherrill at a private sale, and if so, whether the price obtained was the fair value of the equipment.
13
(5) Whether SBA has the right to advertise the Memphis property for summary foreclosure sale.
14
(6) Whether SBA's claim for a deficiency after having sold to Sherrill is barred by a statute of limitations in either Arkansas or Tennessee.
15
(7) Whether SBA violated Myers' rights in failing to apply her payment on the real estate mortgage in accordance with her instructions.
16
(8) Whether Arkansas or Tennessee law applies.
17
Except for the filing of the amended complaint by Attorney Purtle, who is no longer in the case, Myers was at all times acting in pro se and is entitled to liberal and not strict treatment.
18
It is well settled that a "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). The sufficiency of a complaint does not depend on whether the pleader has "set out in detail the facts upon which he bases his claim ... (A)ll the rules require is a 'short and plain statement of the claim'." Id. at 47, 78 S.Ct. at 102.
19
Under Rule 8(f), F.R.Civ.Pro., "all pleadings shall be so construed as to do substantial justice" and this is particularly true where, as here, any were drafted by someone who is not an attorney. Finally, "the complaint is not to be dismissed because the plaintiff has misconceived the proper theory of the claim, if he is entitled to any relief under any theory." Wright, Law of the Federal Courts § 68 at 287 (2nd ed. 1970).
20
For error in dismissing plaintiff's action, the judgment of the district court is reversed and the cause is remanded for further proceedings.
*
Honorable S. Arthur Spiegel, United States District Judge, Southern District of Ohio, sitting by designation
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FILED
NOT FOR PUBLICATION
OCT 22 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUN HO CHUNG, No. 12-71330
Petitioner, Agency No. A095-696-578
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 20, 2015**
Pasadena, California
Before: IKUTA and OWENS, Circuit Judges and SESSIONS,*** District Judge.
Gun Ho Chung, a native and citizen of South Korea, petitions for review of
the Board of Immigration Appeals’s (BIA) discretionary denial of his application
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
for adjustment of status. We lack jurisdiction to review discretionary denials of
adjustment of status except to the extent that the petitioner raises constitutional
claims or questions of law. 8 U.S.C. §§ 1252(a)(2)(B), (a)(2)(D).
The admission of Agent Ballard’s testimony did not deprive Chung of his
due process right to a fundamentally fair hearing. See Zetino v. Holder, 622 F.3d
1007, 1013 (9th Cir. 2010). Agent Ballard arrested Chung and questioned him
about the package delivery scheme, so Chung knew the general content of Agent
Ballard’s testimony. Agent Ballard’s testimony concerned Chung’s past conduct,
so it was probative and relevant to the determination whether Chung merited a
favorable exercise of discretion. Chung’s counsel learned in July 2008 that the
government planned to call Agent Ballard as a witness, and Agent Ballard did not
testify until September 2009, so Chung had ample time to prepare to cross-examine
Agent Ballard. Given that Chung was represented by counsel, was able to present
his version of the events, and was able to cross-examine Agent Ballard, the
admission of Agent Ballard’s testimony was fundamentally fair. See
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926–27 (9th Cir. 2007); Hammad v.
Holder, 603 F.3d 536, 545–46 (9th Cir. 2010); cf. Rojas-Garcia v. Ashcroft, 339
F.3d 814, 823–24 (9th Cir. 2003). Because the Federal Rules of Evidence do not
apply to Chung’s immigration proceeding, see Cinapian v. Holder, 567 F.3d 1067,
2
1074 (9th Cir. 2009), Chung’s reliance on United States v. Vega, 188 F.3d 1150
(9th Cir. 1999), is misplaced.
Chung’s reliance on Rules 3.3(g) and 4.15 of the Immigration Court Practice
Manual is also misplaced, because these rules are not binding where the
Immigration Judge (IJ) “directs otherwise,” see Rule 1.1. Here, the IJ gave such
direction by denying Chung’s request that the Department of Homeland Security
(DHS) disclose the content of Agent Ballard’s testimony in more detail and
continuing the hearing to give Chung’s counsel sufficient time to prepare for Agent
Ballard’s testimony. In any event, any procedural error was harmless. Chung
admitted most of the facts on which the IJ and BIA relied, and he has failed to
explain how DHS’s failure to give him a written summary of Agent Ballard’s
testimony (which included Agent Ballard’s statement that Chung said he “would
rather die” than tell Agent Ballard to whom he was delivering the packages)
affected the outcome of the proceedings. See Gutierrez v. Holder, 730 F.3d 900,
903 (9th Cir. 2013).
We lack jurisdiction to review Chung’s argument that the BIA’s factual
findings were not supported by substantial evidence because 8 U.S.C. § 1252(a)
strips us of jurisdiction to review factual determinations underlying
adjustment-of-status decisions. Carrillo de Palacios v. Holder, 708 F.3d 1066,
3
1071 (9th Cir. 2013); Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d
1076, 1084 (9th Cir. 2010). We also lack jurisdiction to review Chung’s argument
that the BIA abused its discretion when it denied his application for adjustment of
status. 8 U.S.C. § 1252(a); Hosseini v. Gonzales, 471 F.3d 953, 956 (9th Cir.
2006); Bazua-Cota v. Gonzales, 466 F.3d 747, 749 (9th Cir. 2006).
PETITION DISMISSED IN PART AND DENIED IN PART.
4
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504 S.E.2d 762 (1998)
233 Ga. App. 557
PHILLIPS
v.
The STATE.
No. A98A1211.
Court of Appeals of Georgia.
July 24, 1998.
*763 Lawrence D. Galehouse, Augusta, for appellant.
Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.
RUFFIN, Judge.
A jury found James Edward Phillips guilty of criminal attempt to commit aggravated sodomy. Phillips filed a motion for new trial, asserting that his trial counsel was ineffective in failing to present evidence in support of his alibi defense. The trial court denied the motion, concluding that trial counsel was effective. Phillips appeals, and for the following reasons, we affirm.
"To prove an ineffective assistance of counsel claim, the defendant must show that trial counsel performed deficiently and that the result of the trial would have been different but for the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel's conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result. Further, the trial court's determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous." (Citations and punctuation omitted.) Wynn v. State, 228 Ga.App. 124, 127(3), 491 S.E.2d 149 (1997).
Viewed in a light most favorable to support the verdict, the evidence reveals that on December 13, 1996 the victim was living at the Savannah West Apartments in Richmond County, Georgia. Phillips lived in another building of the apartment complex with Tiffany Burkhalter, his then girlfriend and current wife. The victim testified that at 7:00 on the morning of December 13, she left her apartment to check her laundry in the laundry room of her building. A man passed her as she walked from her apartment to proceed down the hall towards the laundry room. According to the victim, she looked the man directly in the face and said good morning, to which he only mumbled and continued walking. The victim checked her laundry and returned to her apartment. Several minutes later, she went back to recheck her laundry. As she was placing her clothes in a dryer, the same man she had seen in the hall placed his arm around her neck, spun her around so that they were face to face, and then threw himself on her. The victim said that they fell to the floor, and the attacker began making gyrating motions and animalistic noises. The attacker, who had his pants down, then rubbed his genitals across the victim's face. The victim was able to push the attacker away, at which time she ran to her apartment and locked the door. The victim gave the police a detailed description of her attacker, noting that he was a short male, and described him by color, in his mid-twenties with short dark hair. The victim identified Phillips as her attacker in a photographic line-up and at trial.
George Canady, one of the victim's neighbors, testified that on the morning of December 13, he was in bed when he heard the victim scream. He looked from his window, at which time he saw the male, approximately 5' 8", running in the general direction of Canady's apartment. The man was running from the laundry room and was attempting to zip his pants. Canady said he got a good look at the man, whom he later identified as Phillips.
The State presented evidence that Phillips' fingerprint was found on the door of the laundry room where the victim was attacked.
At the hearing on Phillips' motion for new trial, Burkhalter testified that at the time of the attack both she and Phillips were home in their apartment and Phillips was asleep. Burkhalter further said that she advised Phillips' attorney of this fact and was present *764 and available to testify at trial. However, defense counsel never called her.
Defense counsel testified that she was aware of the alibi defense and in fact served notice to the State of this defense and of the two witnesses, Phillips and Burkhalter, who were to testify in support of it. According to defense counsel, at trial she spoke at length with Phillips, his mother, and Burkhalter regarding whether to present this defense by calling the witnesses or to retain the concluding argument. Counsel said that she and Phillips made a joint decision not to call him or Burkhalter, because the harm that could come from their testimony outweighed the good. Specifically, defense counsel testified that Phillips was very nervous and skittish and would have had problems testifying. Defense counsel and Phillips mutually agreed that he would not testify. They also agreed Burkhalter would not make a good witness, as her testimony may have brought out that she was pregnant with Phillips' child, that Phillips was dating another woman who had filed a complaint against him as a peeping tom, and that Phillips had been previously arrested. Defense counsel also testified that in her judgment, Burkhalter would not have been convincing to the jury. Ultimately, defense counsel said she did not believe that the alibi defense was worth giving up the closing argument, given the possible damaging evidence that could be introduced by presenting the defense. At the motion hearing, Phillips put forward no evidence to dispute defense counsel's testimony.
"The decisions on which witnesses to call ... what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with the client." (Citations, punctuation and emphasis omitted.) Austin v. Carter, 248 Ga. 775, 779(3)(c), 285 S.E.2d 542 (1982). Additionally, "`[t]he decision not to pursue the defense of alibi is one of trial strategy with which we will not generally interfere. Trial strategy and tactics do not equate with ineffective assistance of counsel.' [Cit.]" Polk v. State, 225 Ga.App. 257, 259(1)(c), 483 S.E.2d 687 (1997).
In the instant case, defense counsel's decision not to call Phillips or Burkhalter to testify was the result of defense counsel's trial strategy and tactics after consultation with Phillips. Austin, supra; Polk, supra. Given defense counsel's uncontroverted testimony that she was prepared to call alibi witnesses but chose not to after hearing the state's case and conferring with Phillips, Phillips "`has not overcome the presumption that counsel's failure to call the alibi witness[es was] made in the exercise of reasonable professional judgment.' [Cit.]" Melton v. State, 222 Ga.App. 555, 557(1), 474 S.E.2d 640 (1996). Accordingly, we cannot conclude that defense counsel's representation in this instance fell below an objective standard of reasonableness. See Stephens v. State, 224 Ga.App. 184, 185, 480 S.E.2d 235 (1997).
Moreover, Phillips has failed to show that, despite the overwhelming evidence of his guilt, there is a reasonable probability that but for this counsel's trial tactics the results of the trial would have been different. See id. Therefore, the trial court's finding that Phillips was afforded effective assistance of counsel was not clearly erroneous. Melton, supra; see Wynn, supra.
Judgment affirmed.
POPE, P.J., and BEASLEY, J., concur.
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-30472
Summary Calendar
____________________
RANDY NUZUM; ET AL.,
Plaintiffs,
RANDY NUZUM; CRAIG BRIGALIA,
Plaintiffs-Appellants,
versus
MARATHON OIL COMPANY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CV-3440-K)
_________________________________________________________________
March 2, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Primarily at issue in this Louisiana diversity action is
whether Marathon Oil Company was negligent as a matter of law,
thereby creating an unsafe work environment in which employees of
an independent contractor, Turner Industries, Inc., allegedly
received respiratory injuries.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
In January 1998, three Turner employees — Garland Landry, and
plaintiffs Randy Nuzum and Craig Brigalia — performed maintenance
work at Marathon’s oil refinery. During the welding process, the
pipe on which they worked emitted smoke. Nuzum and Brigalia later
were found to have respiratory injuries.
In response to interrogatories, the jury found Marathon not
negligent.
Claiming our standard of review is de novo,
Appellants/plaintiffs assert: the relevant facts are not disputed;
that the issue is a purely legal question — whether Marathon’s
issuance of a “hot work” permit and/or its failure to appropriately
test the area for toxic fumes after reported problems engendered a
duty for which it can be held liable. They maintain the standard
of review is de novo.
Fifth Circuit precedent does not explicitly state that a
prerequisite to seeking a new trial on appeal is moving for a new
trial in the district court. But see Wells Real Estate, Inc. v.
Greater Lowell Board of Realtors, 850 F.2d 803, 811 (1st Cir. 1998)
(“Where the district court’s ruling would call into play a
discretionary matter, peculiarly appropriate for that court, it
becomes more important to bring the error first to that court’s
attention. Thus, a motion for new trial must be made in the first
instance before the trial court, particularly where the weight of
the evidence is at issue.... Plaintiff here never moved for a new
2
trial, on weight of the evidence or any other ground. This claim
too, then, has not been preserved for appeal.” (ellipses and
citations omitted)).
In any event, the issue of law at hand was not properly
presented in district court. Needless to say, it is our court’s
“longstanding practice [to] refus[e] to consider issues raised for
the first time on appeal, absent plain error”. Douglas v. United
Servs. Automobile Assoc., 79 F.3d 1415, 1422-23 (5th Cir. 1996);
see Jones v. Jones, 163 F.3d 285, 304 (5th Cir. 1998) (“No
authority need be cited for the rule that issues raised for the
first time on appeal are reviewed only for plain error.”).
For two reasons, we conclude no error, plain or otherwise, has
occurred in submitting the case to the jury: first, under
Louisiana law, factual issues were implicated in the duty inquiry;
second, even if a duty existed, the issue of Marathon’s negligence
was properly submitted to the jury because the elements of
causation and injury implicated factual questions.
Under Louisiana law, “in order to prevail in a negligence
action, a plaintiff must prove: 1) the conduct in question was the
cause-in-fact of the resulting harm; 2) defendant owed a duty of
care to plaintiff; 3) the requisite duty was breached by the
defendant; 4) the risk of harm was within the scope of protection
afforded by the duty breached”. Peterson v. Gibralter Savs. &
Loan, 733 So. 2d 1198, 1203-04 (La. 1999). Appellants are correct
3
in stating that, “whether a duty is owed is a question of law”, id.
at 1204; however, this simply means the court must instruct the
jury in the applicable duty, Boykin v. Louisiana Transit Co., Inc.,
707 So. 2d 1225, 1231 (La. 1998) (“Duty generally is a question of
law, and the judge will instruct the jury in a jury trial on the
applicable duty or will apply that duty in a bench trial.”). “The
existence of a duty and the scope of liability resulting from a
breach of that duty must be decided according to the facts and
circumstances of the particular case.” Fowler v. Roberts, 556 So.
2d 1, 7 (La. 1990). Therefore, the inquiry into the mere existence
of duty involved factual questions.
Furthermore, even assuming Marathon owed plaintiffs a duty,
factual questions remained as to the breach of that duty and the
cause of plaintiffs’ injuries. And finally, the credibility of
Nuzum’s and Brigalia’s testimony was at issue; of course,
credibility is a jury issue. E.g., United States v. Restrepo, 994
F.2d 173, 182 (5th Cir. 1993) ("The jury is the final arbiter of
... the credibility of witnesses.").
Because the issue of Marathon’s negligence involved factual
questions, the district court did not err in submitting the case to
the jury, and the judgment of the district court is
AFFIRMED
4
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189 F.2d 625
90 U.S.P.Q. 46
PHOTOCHART et al.PHOTO PATROL, INC., et al.v.PHOTO PATROL, Inc., et al.PHOTOCHART et al.
No. 12640.
United States Court of Appeals,
Ninth Circuit.June 11, 1951.Rehearing Denied July 20, 1951.
Mason & Graham, Collins Mason and William R. Graham, all of Los Angeles, Cal., for Photochart.
Don Marlin, William H. Levit, Los Angeles, Cal., for Lorenzo del Riccio.
Townsend & Townsend, Stephen S. Townsend and Julian Caplan, all of San Francisco, Cal., for Photo Patrol, American Teletimer Corp. and Robert A. Oswald.
Before STEPEHENS, BONE and POPE, Circuit Judges.
BONE, Circuit Judge.
1
Plaintiffs (appellants) Lorenzo del Riccio and Photochart Corporation brought this action charging patent infringement and unfair competition. The patent in suit (Reissue Patent No. 22,881) is a method of photographically recording the finish of horse races. The idea embodied in the patent was conceived by del Riccio and was referred to throughout the trial as the del Riccio method. A full understanding of the issues on this appeal necessitates a brief outline of the facts.
2
Del Riccio first employed the method in suit in July, 1937. At that time del Riccio had in his employ one Harry Belock, a photography engineer whose duties were designing, constructing and operating photo-finish cameras. Belock terminated his employment with del Riccio in January or February of 1938 and in October of that year applied for a patent on a method of photographing the finish of horse races by the use of "slit photography." Patent No. 2,257,100 was issued to Belock as a result of this application, which patent he assigned to American Teletimer Corporation, one of the defendants in this action.1
3
Del Riccio did not apply for a patent on his method until March 20, 1939--a period of approximately six months after the Belock application. Del Riccio received a patent on June 1, 1943. The patent in suit is a reissue of that original patent. Photochart Corporation is the licensee of del Riccio, and is engaged in the business of photographing the finish fo horse races.
4
In 1941 Robert Oswald, a defendant-appellee, was employed by Photochart as a photo finish camera operator. He later became a licensee of Photochart and operated on his own at various racing events, particularly county fairs, using a camera he had constructed and with which he practiced the del Riccio method. About 1947 Oswald began to operate under a license from American Teletimer, operating at county fairs and still using the camera he had constructed. Sometime around this period he became associated with defendant-appellee, Photo Patrol, a competitor of Photochart. At the time this litigation was commenced Oswald was operating a camera for Photo Patrol at a race track known as Golden Gate Fields,2 under a licensing agreement with American Teletimer Corporation. Oswald was using the camera he had constructed and also one furnished by American Teletimer.
5
The patent in suit is designated as a method of photographically recording the order of passage of moving objects. It involves the use of a device, old in the art, known as the "slit camera."3 This camera, in place of a shutter, has a narrow slit in the film masking plate, which plate is located between the film and the camera lens. When the camera is in operation the film is continuously moving and continuously exposed through the narrow slit. The principal use of the slit camera is to take panoramic scenes by moving the camera in a sweeping motion simultaneously with the movement of the film. If the camera is held in a fixed position only those objects in motion will be recorded on the film. This feature of the slit camera is utilized by the del Riccio method.
6
In practicing the del Riccio method the camera is placed in an elevated position on the outside of the race track. As the horses approach the finish line the film in the camera is moving in the direction of the image of the horses (which is opposite to the direction the horses are moving). The speed of the film is adjusted to the speed of the image of the horses. In a counter-clockwise race the finish line of the track and the optical axis of the camera lens4 are aligned with the right hand edge of the narrow slit. The effect of this alignment is that the film does not commence to record a picture of a horse until the horse's nose reaches the finish line. In other words the entire area of the track up to the finish line is eliminated from the zone of photography. By this system the horse whose nose first commences to be recorded on the film is determined to be the winner.
7
It is the claim of appellants that the normal use of the slit camera would be to align the center of the slit with the optical axis of the lens and the finish line; that because the zone of photography enlarges in a cone shape away from the lens of the camera the field of vision is a fan-shaped area of the track which is bisected by the finish line. Under these conditions, it is said, it is impossible to get an accurate picture of the winning horse because of the problem of angular vision. For example, a horse on the far side of the track (in reference to the location of the camera) would come into the field vision and might appear to be the winning horse even though a horse on the side of the track adjacent to the camera actually crossed the finish line first. The del Riccio method, which masks out the entire area of the track up to the finish line by the alignment mentioned, has eliminated this problem of angular vision and is claimed to have achieved a degree of accuracy never obtained before.
8
Appellees admit that they align one edge of the slit with the finish line o the track but contended that their method disregards the optical axis of the lens. Oswald testified that an accurate photograph of the finish can be taken without bringing the optical axis into the alignment.
9
Appellants in their complaint and supplemental complaint charged infringement of the claims of six patents owned or controlled by them and further charged infringement of the Belock patent. Several of the patents were dropped from the suit prior to the trial and others were withdrawn sometime prior to judgment. The amended judgment of the district court recites that all claims except claims 1, 2, 7 and 8 of Reissue Patent No. 22,881 were withdrawn prior to judgment. The charge of unfair competition was based on the claim that Belock and Oswald had acquired trade secrets of the appellants while employed by the latter in a confidential relationship and had appropriated these trade secrets to their own use without the consent of appellants. This charge of unfair competition is not urged as a separate issue on this appeal but only to show aggravated infringement.
10
The district court made findings of fact and conclusions of law and entered judgment for the defendants. The substance of the court's findings is that Reissue Patent No. 22,881 is invalid for want of invention and that the subject matter thereof was old in the art more than one year before the del Riccio patent application was filed. It further found that it was within the reasonable and expected skill of anyone working in the art.
11
On the issue of infringement the court found that appellees had not aligned the optical axis with the edge of the slit and the finish line and therefore had not infringed. The court found that no trade secrets were involved and that the defendants had not engaged in unfair competition. By an order the court denied the defendants' request for attorneys' fees and the defendants appeal from that order.
12
In the posture the case reaches us we are concerned only with claims 1, 2, 7 and 8 of Reissue Patent No. 22,881, and with the appeal by the defendants from the order of the district court denying attorneys' fees.
13
It is not contended that the patent in suit contains any new or different element not existing in the prior art. If its validity is to be upheld it must be on the theory that the del Riccio method is a combination of old elements which constitute invention. There is no exact standard by which a court may determine when a combination of old elements constitutes invention and when it is within the mechanical skill of one working in the art. The most recent opinion o the Supreme Court on combination patents expresses the view that, "courts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements." Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127. The test to be applied to such patents is that the combination must perform some new or different function--one that has unusual or surprising consequences.5 It is our view that the patent in suit fails to meet this severe test and does not constitute invention. The most that can be said for the patent in suit is that it rearranges the elements of the slit camera in such a manner that in the performance of their respective functions a higher degree of accuracy is obtained. But perfection of workmanship, however useful or convenient, does not constitute invention. Cuno Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58; Dow Chemical Co. v. Halliburton Oil Well Cementing Co., 324 U.S. 320, 65 S.Ct. 647, 89 L.Ed. 973; Hollywood-Maxwell Co. v. Street's of Tulsa, 10 Cir., 183 F.2d 261; Shaffer v. Armer, 10 Cir., 184 F.2d 303. Each element of the slit camera utilized in the del Riccio method is performing the same function it has always been known to perform. Del Riccio has changed the position of one of these elements (the narrow slit) which results in a restricted field of vision coincident on one side with the finish line. This result, however useful, has added nothing to the total stock of knowledge. In our view this variation of an old device is within the reasonable skill of one working in the art.
14
Appellants contend that in all the years the slit camera has been in existence many improvements have been made on it but no one discovered the method in suit except del Riccio. This, it is said, indicates that more than skill was involved. However, there is no showing in the evidence that there was any long felt want for this improvement nor any wide-spread effort to solve the problem of angular vision which the del Riccio method eliminated,6 Toledo Pressed Steel Co. v. Standard Parts, supra. Commercial success is relevant only in a doubtful case and will sometimes tip the scales in favor of invention, Jungersen v. Ostby & Barton Co. et al., 335 U.S. 560, 69 S.Ct. 269, 93 L.Ed. 235. In a case, such as this, where invention is plainly lacking, commercial success is immaterial.
15
Having determined that the patent lacks invention it is unnecessary for us to determine the questions of infringement and unfair competition.7
16
We come now to the appeal by the defendants from the order denying attorneys' fees. The basis of this claim is that the plaintiffs unduly complicated the issues by reckless charges of patent infringement, by failure to take any steps prior to trial to reduce the number of issues, and by evading any effort of the defendants to reduce the issues. Because of these circumstances, it is claimed that the defendants were obliged to expend more time and expense in preparing a defense than was necessary and that the trial court erred in denying attorneys' fees. 35 U.S.C.A. § 70 provides in part:
17
" * * *. The court may in its discretion award reasonable attorney's fees to the prevailing party upon the entry of judgment on any patent case."
18
While there is some evidence to support the defendants' contentions the facts of the case are not so clear cut that we are able to say that the trial judge bused his discretion in denying an award of attorneys' fees. Many of the cases relied on by defendants are cases affirming an award made by the district court. Dubil et al. v. Rayford Camp & Co. et al., 9 Cir., 184 F.2d 899, relied on by defendants, recognizes the rule that an appellate court should not interfere with the discretionary power of the trial court except where there is an abuse of discretion amounting to caprice or an erroneous conception of law on the part of the trial court. Defendants have misread the decision of this court in Buck v. Bilkie, 9 Cir., 63 F.2d 447. The decision did not change the judgment with respect to attorneys' fees but modified it only by adding damages which were "mandatory" under the statute.
19
The judgment of the district court is affirmed.
1
No appeal was taken from that part of the judgment which holds that American Teletimer has not infringed appellants' patent. It may also be noted that Belock was not made a party to this litigation
2
The operators of this track, The Pacific Turf Club, were named as defendants in this action but were dismissed from the suit by stipulation of the parties
3
The slit camera was patented in 1901, Pasquarelli Patent No. 683,573
4
The optical axis of the lens refers to an imaginary line that goes through the heart of the lens where there is no refraction or bending of light
5
Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127; Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58; Toledo Pressed Steel Co. v. Standard Parts, 307 U.S. 350, 59 S.Ct. 897, 83 L.Ed. 1334
6
The essence of the del Riccio method is alignment of one edge of the slit and the optical axis of the lens with the finish line to mask out the entire area of the track up to the finish line. The Australian Patent to Cowdry, No. 104,941 (1938), discloses a shield located in front o the lens of a motion picture camera the purpose of which is to cut off from the camera's "vision" the entire area of the track up to the finish line
7
As noted before the latter question is not asserted here as a separate issue but only to show aggravated infringement
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Case: 12-51265 Document: 00512495946 Page: 1 Date Filed: 01/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-51265 January 10, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff – Appellee
v.
JIMY ISAIAS SALGADO-PALMA,
Defendant – Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:12-CR-301-4
Before JOLLY, HIGGINBOTHAM and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jimy Isaias Salgado-Palma was convicted by a jury of one count of aiding
and abetting the importation of more than 50 but less than 100 kilograms of
marijuana and one count of aiding and abetting the possession of more than 50
but less than 100 kilograms of marijuana with the intent to distribute. He was
sentenced to 41 months of imprisonment and three years of non-reporting
supervised release. At his trial, the district court permitted two of his three
co-defendants to make a blanket invocation of their Fifth Amendment right
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 12-51265 Document: 00512495946 Page: 2 Date Filed: 01/10/2014
No. 12-51265
against self-incrimination, while his third co-defendant was not questioned.
Salgado appeals, contending the district court failed to undertake a sufficient
inquiry into the applicability and scope of the privilege before permitting the
blanket invocation. Without vacating Salgado’s conviction, we REMAND this
case and order the district court to hold a hearing analyzing the two co-
defendants’ invocation of the Fifth Amendment privilege for the purposes of
both analyzing the scope of their invocations and determining whether the
district court’s prior ruling on these invocations prejudiced the defendant.
Should the district court find such prejudice, it should grant Salgado a new
trial.
FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2012, Salgado and his three co-defendants, Israel Jacinto-
Garcia, Rene Olmos-Fierro, and Louis Santiago Gonzalez-Barba, were arrested
along Texas Highway 67, ten miles north of Presidio. After admitting they
were in the United States illegally, the four men were taken to the United
States Border Patrol station in Presidio. Shortly thereafter, two Border Patrol
agents and Gonzalez-Barba returned to the highway, where Gonzalez-Barba
led them to a set of foot tracks ostensibly belonging to the four men. Border
Patrol Agent Helio Franco followed these tracks to a stash of four backpacks
containing over 220 kilograms of marijuana, which had been secreted beneath
some brush. Further, Agent Franco later testified that he was able to match
these footprints to the shoes of the four men in custody.
On June 14, each of the four men were indicted for one count of importing
more than 50 but less than 100 kilograms of marijuana (“Count One”) and for
one count of possessing with intent to distribute the same amount (“Count
Two”). Jacinto-Garcia pled guilty to Count One, Olmos-Fierra and Gonzalez-
Barba pled guilty to Count Two, while only Salgado proceeded to trial.
2
Case: 12-51265 Document: 00512495946 Page: 3 Date Filed: 01/10/2014
No. 12-51265
Salgado presented a theory of duress as his defense at trial. According
to his testimony, he and his three co-defendants were forced to carry the
backpacks containing marijuana at gunpoint by a group of drug smugglers. He
further testified that he met his co-defendants for the first time after he had
been kidnaped and confined for several days in a house in Ojinaga, Mexico.
Other evidence showed that at least one of his co-defendants agreed to carry
the drugs so to enter the United States illegally and that another may have
done so because he had lost a load of marijuana on a previous journey. It is
further undisputed that Salgado traveled to Ojinaga from his native Honduras
for the purpose of seeking illegal passage to the United States.
At trial, Salgado subpoenaed each of his co-defendants to testify
regarding the events preceding and surrounding their journey across the
border with the marijuana. At the time of Salgado’s trial, all three had entered
pleas as described above and were awaiting sentencing. Two of the co-
defendants took the stand in turn and each answered in the affirmative
questions from their individual attorneys that they intended to invoke the
Fifth Amendment privilege. The district court then, without further
elaboration, concluded that neither would be required to answer any other
questions. Salgado moved alternatively for a continuance until after the co-
defendants’ sentencing or a mistrial, although he never objected to the district
court’s ruling on the co-defendants invocations of the Fifth Amendment. The
district court denied the continuance and the mistrial.
The jury found Salgado guilty of both counts. The district court
sentenced him to 41 months in prison and three years of non-reporting
supervised release. On appeal, he argues only that the district court erred by
permitting each of his co-defendants to invoke the Fifth Amendment as to any
and all testimony without properly analyzing the applicability or scope of the
privilege.
3
Case: 12-51265 Document: 00512495946 Page: 4 Date Filed: 01/10/2014
No. 12-51265
DISCUSSION
After a witness asserts a Fifth Amendment privilege not to testify, the
trial judge should inquire “into the legitimacy and scope of the witness’s
assertion” of the privilege. United States v. Goodwin, 625 F.2d 693, 701 (5th
Cir. 1980). “A blanket refusal to testify is unacceptable.” United States v.
Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976). Instead, the district
court should “make a particularized inquiry, deciding, in connection with each
specific area that the questioning party wishes to explore, whether or not the
privilege is well-founded.” Id. In a case where the district court relied only on
the witness’ “bald assurance that he has a proper Fifth Amendment right” to
refuse to answer any questions, we directed the district court on remand to
hold a hearing on whether the witness’ “fear of self-incrimination [was] well-
founded” and to determine “the parameters of his Fifth Amendment rights [. .
.] in the context of the testimony [the defendant] wishe[d] to obtain from him.”
See United States v. Gomez-Rojas, 507 F.2d 1213, 1220 (5th Cir. 1975).
These requirements can be satisfied in different ways. We permitted a
witness to invoke the Fifth Amendment and not be subject to further
questioning when the district court said “it was satisfied, based on the evidence
already presented in the case, that [the witness] had a legitimate basis for
invoking his Fifth Amendment privilege” as to all questions. United States v.
Mares, 402 F.3d 511, 514-15 (2005). 1 The district court had already, prior to
the assertion of the privilege, been “presented with sufficient evidence with
which to understand the likely implications of [the witness’s] testimony and,
thus, the scope of his privilege.” Id. at 515. Consequently, the inquiry into the
1 Mares was pursuing an alternative perpetrator theory. The witness was, by
implication, the alternative perpetrator. We stated that the district court “understandably
concluded that [the witness] invoked his privilege because he had a reasonable apprehension
of self-incrimination as a result of his responses to essentially any questions relevant” to the
defense’s alternative perpetrator theory. See Mares, 402 F.3d at 515.
4
Case: 12-51265 Document: 00512495946 Page: 5 Date Filed: 01/10/2014
No. 12-51265
“legitimacy and scope” of the assertion did not require more questioning of the
witness. If the district court fails to acquire the relevant information, “we look
to the materiality and relevancy of the excluded testimony.” Melchor Moreno,
536 F.2d at 1050. We concluded in Melchor Moreno that “the jury might have
given greater credence to the [defendants’] story if [the witness’s] testimony
had corroborated it to some extent.” Id.
In the present case, there was no “particularized inquiry” into the areas
that the defendant wanted to explore with the allegedly privileged witnesses.
There also, though, was no argument by counsel that the inquiry was needed.
Generally, we review a district court’s decision to excuse a witness from
testifying based on the invocation of the Fifth Amendment testimonial
privilege for abuse of discretion. Mares, 402 F.3d at 514. The government
argues for plain error review because it contends that Salgado failed to
preserve the issue for appeal when he did not raise the need for further inquiry
when each witness asserted a Fifth Amendment testimonial privilege. Failure
to preserve an issue usually results in our reviewing a district court’s ruling
only for plain error. See United States v. Cotton, 535 U.S. 625, 629 (2002).
Salgado does not argue that he objected to the ruling on this basis. Salgado’s
motion for a continuance or mistrial because of the assertion of the privilege
did not inform the district court of the procedural demands he is raising now.
We conclude that the district judge’s failure to make a full inquiry into
the scope of the co-defendants’ invocation of the Fifth Amendment should be
reviewed for plain error. We acknowledge that defense counsel in the early
precedents such as Goodwin and Melchor Moreno also did not make objections
based on the need for a more searching inquiry. Those decisions, though, were
explaining new procedures to be followed when the privilege was asserted.
Over thirty years later, with the procedures well-established, counsel must
alert the district court to the requirements in order to preserve the error.
5
Case: 12-51265 Document: 00512495946 Page: 6 Date Filed: 01/10/2014
No. 12-51265
Here, the district court called two co-defendants to the stand, permitted
each witness’s attorney to question him about whether he intended to invoke
the Fifth Amendment, and, upon an answer in the affirmative, determined
that the witness would not be required to answer any further questions. The
only explanation the district court gave was that “all three of these co-
defendants pled guilty to one count, so they still have liability under the other
count . . . [and] until they are sentenced, they still have their . . . Fifth
Amendment right.” There was no effort to explore the scope of the privilege.
We held in Mares that a district court might have sufficient evidence from
before the invocation of the privilege to demonstrate that a witness would
incriminate himself as to any testimony relevant to the proceedings. Mares,
402 F.3d at 514-15. We do not discern similar record support for a blanket
privilege here.
During the proceedings in which he called the two co-defendants,
Salgado’s counsel proffered that he “would have expected them to testify . . .
that they did not know each other” and that when they were first arrested they
“made claims that they had been forced to bring . . . the marijuana” into the
United States. Such testimony could have corroborated Salgado’s testimony
and provided support for his theory of duress. We conclude the district court
excluded material and relevant evidence after failing to make a “particularized
inquiry” as to what extent that material and relevant evidence was protected
by the Fifth Amendment privilege. Melchor Moreno, 536 F.2d at 1049.
As discussed above, Salgado did not object to the district court’s ruling
on the co-defendants’ blanket invocations nor did he alert the district court to
the proper inquiry. Such long-standing precedents as Goodwin, Melchor
Moreno, and Gomez-Rojas provided the basis for explicit objections for failure
to follow the procedural steps those cases have mapped. Counsel should have
pointed these out to the district court.
6
Case: 12-51265 Document: 00512495946 Page: 7 Date Filed: 01/10/2014
No. 12-51265
We consider whether the failure to make this inquiry was plain error,
meaning that “there is (1) error, (2) that is plain, and (3) that affects
substantial rights.” Mares, 402 F.3d at 520 (quotation marks omitted). If all
three of those elements exist, we have “discretion to notice a forfeited error but
only if (4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. Here, we find the district court committed error
by not analyzing the scope of the co-defendants’ invocations of the Fifth
Amendment. This error was plain because our precedent clearly requires at
least some measure of inquiry after a witness asserts the privilege. See
Melchor Moreno, 536 F.2d at 1049.
The next step is to determine whether this plain error affected Salgado’s
substantial rights. That determination requires knowing what the witnesses
would have said to a searching inquiry on the applicability and scope of the
privilege. The best course is to remand the case to the district court in order
to make the proper inquiry into the witnesses’s claims of privilege as it existed
at the time the co-defendants were first called to the stand.
We are ordering a procedure substantially the same as that followed in
Campbell v. United States, 365 U.S. 85, 99 (1961). There, the defendant sought
under the Jencks Act the production of an investigative report. See 18 U.S.C.
§ 3500. The trial judge did not follow the proper procedure for analyzing the
request, depriving the defendant of the opportunity to present his defense.
Campbell, 365 U.S. at 96-98. The Supreme Court could not identify from the
record the extent of the prejudice to the defendant from the missing evidence.
Id. at 98. Consequently, the Court remanded for a hearing without vacating
the defendant’s conviction. Id. at 99. We conclude such a procedure is the best
course here. The record does not show the entire breadth of information
Salgado could have elicited from his co-defendants. Further, it is unclear from
the record what information he could or could not present to the jury.
7
Case: 12-51265 Document: 00512495946 Page: 8 Date Filed: 01/10/2014
No. 12-51265
The district court is ordered to “supplement the record with new
findings” if it concludes Salgado was not prejudiced. Id. On the other hand,
should the district court determine, after inquiring into the witness’s assertion
of privilege, that Salgado would have been entitled to present meaningful
corroborative evidence through the witnesses and that the deprivation
prejudiced Salgado’s substantial right to present a defense, such prejudice
would “seriously affect[] the fairness, integrity, or public reputation of judicial
proceedings.” Mares, 402 F.3d at 520 (quotation marks omitted). If those
findings are made, the district court should grant a new trial.
We close by mentioning that only Olmos-Fierro and Gonzalez-Barba took
the stand to be questioned regarding their invocation of the Fifth Amendment.
Co-defendant Jacinto-Garcia did not. Because Salgado did not make any effort
to secure Jacinto-Garcia’s invocation of the privilege before the district court,
we conclude that our order to hold a hearing does not extend to Jacinto. Our
opinion should not be interpreted, though, to prevent the district court from
exercising its discretion to require all three former co-defendants to be
questioned on their invocation of the privilege.
In summary, we conclude that the district court’s failure to make any
inquiry as to the applicability and scope of the Fifth Amendment privilege
asserted by the co-defendant witnesses was error that was plain. To determine
if there was prejudice, Salgado is entitled to an evidentiary hearing in which a
proper inquiry can be made. If after such a hearing, the district court concludes
Salgado was prejudiced by the earlier failure to undertake this inquiry, the
district court is to grant a new trial. Otherwise, findings that there was no
prejudice should be made. The original appellate record should be
supplemented with all designated new materials. A briefing schedule can then
be set on any new issues raised by the remand.
REMANDED.
8
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626 F.2d 1339
8 O.S.H. Cas.(BNA) 1923, 1980 O.S.H.D. (CCH) P 24,675Ray MARSHALL, Secretary of Labor, United States Departmentof Labor, Plaintiff-Appellee,v.MILWAUKEE BOILER MANUFACTURING COMPANY, INC. and Richard W.Stevens, President, Defendants-Appellants.
No. 79-2164.
United States Court of Appeals,Seventh Circuit.
Argued April 2, 1980.Decided Aug. 4, 1980.
Michael Ash, Godfrey & Kahn, S. C., Milwaukee, Wis., for defendants-appellants.
Charles I. Hadden, U. S. Dept. of Labor, Washington, D. C., for plaintiff-appellee.
Before PELL and WOOD, Circuit Judges, and BAKER, District Judge.*
PELL, Circuit Judge.
1
This appeal is from a district court order holding the appellants, Milwaukee Boiler Manufacturing Company, Inc., and Richard W. Stevens, President, (hereinafter collectively the Company) in contempt for a refusal to comply with an Occupational Safety and Health Administration (OSHA) inspection warrant and denying the Company's motion to quash the warrant.
2
On February 8, 1979 an OSHA compliance officer who appeared at the Company's plant in Milwaukee for the purpose of conducting an inspection was refused entry on the ground that he did not have a warrant. On April 26, 1979, a compliance officer of OSHA appeared before a magistrate in Milwaukee and presented an application for an inspection warrant. Apparently the magistrate declined to issue the requested warrant at the time and the Secretary of Labor (Secretary) requested leave to brief the matter. The status remained unchanged at the time of the death of the magistrate. Subsequently, a hearing was held before another magistrate on September 13, 1979, at which time a warrant was issued. A copy of the pertinent portion of the warrant application is set forth in the margin.1
3
Four days later, a compliance officer appeared at the Company with a warrant whereupon the Company again declined to permit the inspection, stating that the warrant was not issued with probable cause therefor. A hearing was held in the district court on October 5, 1979, on the Secretary's petition for a finding of contempt and on the motion of the Company to quash the warrant. The district court, ruling from the bench, granted the Secretary's requested relief and denied that sought by the Company. This appeal followed and this court, after granting a temporary stay, denied the appellants' motion for a stay pending appeal.
4
An initial question appears to us to be presented, being whether this appeal should be disposed of on the ground of mootness. In the ordinary situation involving contempt proceedings, the object of the proceedings is given the uncomfortable choice of waiving his rights or standing firm and suffering the consequences of being in contempt during what may be a protracted period of review. See United States v. Ryan, 402 U.S. 530, 532-33, 91 S.Ct. 1580, 1581-82, 29 L.Ed.2d 85 (1971).
5
Here, however, the Company, after having failed to secure a stay of the order, did permit the inspection which is now a fait accompli. Cf. Federal Trade Commission v. Stroiman, 428 F.2d 808 (8th Cir. 1970). It is well established, however, that an action will not be deemed moot where questions are presented which are "capable of repetition, yet evading review." See, e. g., Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). The rationale of cases advancing this ground for nonapplication of the mootness doctrine generally stem from the fact that (1) the plaintiffs have alleged the existence of a federal right; and (2) the right was alleged to be the subject of an existing violation at the time the complaint was filed. That the right would be subjected to future violations was not a matter of speculation or conjecture but was a reasonable expectation because of the existence of a statute or course of conduct of sufficient permanence to amount to what the Supreme Court called the "brooding presence" in Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (1974). We have some difficulty here in being certain that there is an element of capability of repetition sufficient to avoid mootness. Nevertheless, we are satisfied for other reasons that this action is not moot and that there is a sufficient case or controversy inherent in the present appeal.
6
We are mindful that the Act's penalty provisions mandate substantial penalties for each serious or nonserious violation and even higher penalties for repeated or willful violations, and also that criminal penalties are provided by the Act. While the present proceedings are civil in nature, there are at least quasi-criminal aspects. This court has held in connection with the concurrent sentencing rule that collateral consequences are presumed to result from any conviction. United States v. Tanner, 471 F.2d 128, 140 (7th Cir. 1972), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220. In the civil area of habeas corpus petitions, even where the applicant has been released from custody, the continuing effects of conviction will prevent mootness. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Further, we note that the ultimate relief sought in the present proceedings by the Company is to suppress the results of the inspection which has, in fact, been made. The Secretary argues that suppression would be inappropriate even if this court found that there was no basis for the issuance of the warrant. Such an issue, whether ultimately it need be reached or decided in the present case or not, would seem to be an independent case or controversy. Accordingly, we are of the opinion that the action is not moot. Neither of the parties contends otherwise.
7
Subsequent to the Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978),2 this court has had several occasions to consider the sufficiency of warrant applications: In the Matter of Establishment Inspection of Northwest Airlines, Inc., 587 F.2d 12 (7th Cir. 1978); In the Matter of Establishment Inspection of Gilbert & Bennett Manufacturing Co., 589 F.2d 1335 (7th Cir. 1979), cert. denied, 100 S.Ct. 174;3 Weyerhaeuser v. Marshall, 592 F.2d 373 (7th Cir. 1979).
8
In each of these cases the attention of this court was directed to whether the application for the warrant afforded the magistrate sufficient factual data to conclude that an administrative inspection was reasonable and that a warrant should issue. This, in essence, involved a facial examination of the application. The focus of the Company in the present case is quite different. We do not read the Company's position here as seriously contending that facially the application was deficient. If such were the contention we would have little difficulty in disposing of the present case under Chromalloy as examining the present application in the light of that case causes us to regard it as sufficiently specific to demonstrate a reasonable administrative standard for conducting an inspection with respect to the particular establishment. Indeed, the application is fleshed out with a greater showing of probable cause than was the application in Chromalloy. The Company in the present case, however, directs its focus basically at a claimed deficiency in factual support for the matters included in the application.
9
On the basis of information developed at the hearing before the district court, the Company asserts that in a number of respects the application conveyed false information to the magistrate. We, therefore, now turn to those specifications of falsity setting forth each in the order contained in the Company's brief. We also set forth the Secretary's response to each such item.
10
(1) The warrant application alleged that the Company was selected "in accordance with Chapter IV, entitled Compliance Programming, of the Occupational Safety and Health Administration Field Operations Manual." The pertinent part of Chapter IV was introduced in evidence and under the heading of "Program Planning" it was stated that the primary consideration in conducting compliance operations was the attainment of maximum effective inspection coverage. This statement then followed, "To achieve this goal, this chapter of the Field Operations Manual (FOM) and the Field Performance Evaluation Manual (FPEM) are to be used together for scheduling compliance operations." The FPEM was not shown to the magistrate, and in contradiction to the sworn warrant application there was testimony that the FPEM was not even in existence when the decision was made to inspect, and that, in fact, there was no reliance on the FPEM.
11
The Secretary, for answer to this specification, admits that the FPEM had been revoked before the decision to inspect was made, but characterizes the contention as meritless since the warrant application set forth the actual manner in which the Company was chosen for inspection, so that the reference to Chapter IV of the FOM could be struck from the application and sufficient probable cause would still exist to justify issuance of the warrant.
12
(2) The application referred to injury and accident statistics compiled by the Bureau of Labor Statistics (BLS) to the effect that the fabricated plate work industry had the seventh highest injury rate in the Milwaukee area. A staff member of OSHA, called as a witness by the Company, testified that the BLS does not break down injury rates lower than statewide, and the injury rate specified in the application for the Milwaukee area would not be applicable to Milwaukee unless Milwaukee was typical of Wisconsin, and that no one at OSHA knew what ranking the fabricated plate work industry has in the Milwaukee area.
13
The Secretary replied to this contention that the same supervisor had also testified at the hearing that the statistics from BLS which cover the entire state "are simply broken down further to obtain a relative ranking for those industries in the Milwaukee area," and that therefore the warrant application on this point was not false or misleading.4
14
The Secretary also responds that there was no allegation in the application "to the effect that the BLS actually provided injury statistics specifically for the Milwaukee area." The exact quotation, however, in the application was as follows:
15
The fabricated plate work industry according to the Bureau of Labor Statistics has the seventh highest injury rate in the Milwaukee area.
16
(3) The Company asserts that whatever ranking of hazardous industries in the area OSHA does engage in could not find the fabricated plate work industry ranking seventh because several more dangerous industries are excluded such as the construction, maritime, and roofing industries.
17
The Secretary concedes that these industries are excluded but that the warrant application did not thereby become false or the administrative selection plan unreasonable because, as the OSHA employee explained, construction and therefore presumably roofing are treated separately since they are not manufacturing industries, which were the focus of the Act. The Secretary also states that in any event construction was less hazardous than fabricated plate work and all of the maritime establishments in the area had already been inspected. The actual testimony here was that OSHA had inspected all the maritime establishments in Milwaukee but not all the jobsites. The record does not disclose the relative significance of these two terms.
18
(4) The record is also somewhat less than clear as to what was actually established by testimony as to the next contention. The Company states that the selection of the Company could not have been neutral or unbiased as the establishment list relied upon included less than 15% of the establishments in the geographic area subject to OSHA inspection and excluded at least 75% of those establishments within the Company's own classification of fabricated plate works.
19
The Secretary responds that the testimony shows the reason for the exclusion of other industries as being that the list was meant to include only the most hazardous industries, i. e., those with a hazard value of above 3.0, being not all of the industries in the geographic area.
20
(5) Returning to Chapter IV of the FOM, the Company states that it specifies that the area director is the person authorized to make selections for inspection but the selection decision concededly was made by the safety supervisor who testified.
21
The Secretary makes no specific response to this matter, apparently one of delegation of authority, although presumably the answer to the failure to utilize the FPEM which had been revoked is also applicable here, i. e., in effect, that this is harmless error because if the reference to Chapter IV had been stricken there was still ample probable cause to justify the issuance of the warrant.
22
(6) Although not an attack on the asserted falsity of matters in the application, the Company also contends that certain supporting data was never exhibited to the magistrate. We previously adverted to the fact that the FPEM was not shown. Also, during testimony it was indicated that what was relied upon in selecting the Company for inspection were two documents of OSHA instructions which were designated as exhibits at the hearing, being a "Field Operations Program Plan" and a "Scheduling System for Programmed Inspections." These documents were not shown to the magistrate or referred to in any manner at the magistrate's hearing according to the Company. This assertion is not contravened.
23
The Secretary responds that the defect was not material because, in fact, the warrant application described the exact manner in which the Company was chosen, and, in any event, the Company did not suggest that these documents set forth a different procedure from the one described in the application.
24
The factual support for the foregoing contentions was developed through testimony at a hearing before the district court. When the matter originally came before that court for attention, some oral argument was heard during which the Company outlined generally its position along the lines of the factual matters hereinbefore set out. The Secretary responded and the district court indicated that it was prepared to rule that the application to quash the warrant would be denied. Following this indication, counsel for the Company made a vigorous plea for an opportunity to present evidence which the district court granted with the evidentiary hearing adverted to above then occurring. At the conclusion of oral argument following the evidentiary hearing, the district court adjudged the Company in civil contempt for failing to comply with the warrant. The court recognized that there was a variance between the application and the defendants' version of the facts but regarded those variances as insignificant, opining that whether the selection was because of the seventh highest injury rate in the Milwaukee area or the seventh highest injury rate in Wisconsin, no sufficient basis existed for treating this as a misrepresentation which would deprive the application from being based on probable cause. The court also indicated that the fact that there were other competitive industries which were not considered would not be such a significant misrepresentation as to negate the validity of the warrant. The court found Chromalloy relevant and indicated that at a hearing before a magistrate a company would not be entitled to a plenary evidentiary hearing to examine the minutia and details that supported the Secretary's determination to inspect, as this would defeat the salutary purposes of the Act.
25
While we reach the same result in this case that the district court did, we are not inclined to regard the admitted variances as insignificant. Some of the Secretary's responses in this court are weak and an examination of the application in the light of the admitted variances would indicate either that it was carelessly prepared or was a continuing resort to boiler plate, neither of which speaks well for the bureaucratic process. To some considerable extent, the Secretary's support of the application constitutes less than a pretty example of bureaucratic doubletalk. As this court pointed out in Weyerhaeuser, 592 F.2d at 378, the magistrate's function is more than merely certifying to the target company that the agency is acting in accordance with law. This court declined in that case to strip the magistrate of his probable cause function, "as the very purpose of a warrant is to have the probable cause determination made by a detached judicial officer rather than by a perhaps overzealous law enforcement agency." Id.
26
These applications will often be granted on an ex parte application, although here the Company had the privilege of a hearing before the magistrate. Notwithstanding that "(p)robable cause in the criminal law sense is not required," Barlow's, 436 U.S. at 320, 98 S.Ct. at 1824, there should be presented to the magistrate, when the application is relying upon reasonable legislative or administrative standards for conducting an inspection with regard to the particular establishment, factual matters which are susceptible of being in truth and in fact supported. This was not the case in the several respects enumerated in this case.
27
On the other hand, we cannot agree with the Company that an application need be accompanied by all of the supporting documents, or indeed any of them, upon which the factual assertions of the application are based. The magistrate should be entitled to rely upon the verity of those assertions. As this court pointed out in Chromalloy, 589 F.2d at 1342-43, the agency is not required to make a massive evidentiary showing of particularized cause and a simple warrant request hearing should not be turned into a full-blown hearing. We continue to decline "imposing on the Secretary an unwarranted 'consumption of enforcement energies' which would 'exceed manageable proportions.' " Id. at 1342, quoting Marshall v. Barlow's, Inc., 436 U.S. at 321, 98 S.Ct. at 1825. Nor do we regard the fact that the BLS were not for Milwaukee specifically, but rather for the state of Wisconsin, to be sufficient, even when taken with the other variances, to require us to overturn the issuance of the warrant. This is so even though the evasive, or at least conclusionary testimony, that the state statistics were broken down doesn't really reflect how the agency got from point A to point B.
28
Further, we regard the Secretary's assertion in his brief here that no allegation was set forth in the application to the effect that the BLS actually provided injury statistics specifically for the Milwaukee area as scarcely squaring with the specific statement that the fabricated plate work industry "according to the Bureau of Labor Statistics has the seventh highest injury rate in the Milwaukee area." The Secretary in this respect relies upon this court's statement in Chromalloy, 589 F.2d at 1343, that the magistrate is entitled to rely on the Secretary's expertise in gathering and interpreting statistics. What we are reviewing here, however, is a challenge to the underpinnings of the application developed in an evidentiary hearing at the district court level, and the statement that the state statistics "are simply broken down" might well cause skepticism with regard to the continuing deference to administrative expertise in this area. Nevertheless, bearing in mind that this court is aware of the fact that Milwaukee is by far the largest industrialized area in the state of Wisconsin, we conclude, although not enthusiastically, that the variance is not sufficient for the relief requested here. We have little doubt that if the application had candidly set forth that the BLS statistics were statewide and that Milwaukee was the largest industrial city in the state, the magistrate would have, and properly so, granted the application.
29
The fact remains that ultimately the agency, having inspected six other manufacturing industries having a higher injury rate according to prevailing state statistics, chose for inspection a site in the seventh category, which had not been previously inspected. A further compelling factor in the present situation is that there is a well established body of law that, even if the application was materially incorrect or misleading, the warrant could only be invalidated if the misrepresentations were "intentional or reckless." Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978); Pelton Casteel, Inc. v. Marshall, 588 F.2d 1182, 1188 n.12 (7th Cir. 1978); United States v. Carmichael, 489 F.2d 983, 989 (7th Cir. 1973) (en banc). The Company has presented no evidence which calls into question the district court's explicit determination that it found no suggestion on the record of an "attempted fraud on the magistrate, let alone upon the Milwaukee Boiler Manufacturing Company."
30
We briefly note two other points raised by the Company. The first of these is the contention that the warrant was invalid because OSHA internal procedures require that the Area Director make the selection for inspection, whereas in this case a safety supervisor in the area office made the decision. We would have little difficulty, as a general proposition, in thinking that while the Area Director might have the ultimate responsibility for the selection this was a delegable function within the agency. In any event, "Area Director" is defined in 29 C.F.R. § 1903.21(e) as including "the employer or officer regularly or temporarily in charge of an area office . . . or any other person or persons who are authorized to act for such employer or officer."
31
Secondly, the Company contends that the district court abused its discretion and denied the Company due process by failing to enforce a subpoena duly issued requiring the presence of the Milwaukee Area Director for testimony and for bringing of certain documents particularly described in the attachment to the subpoena. The Secretary had moved to quash the subpoena but the district court had not ruled upon the motion. When the parties presented themselves at the hearing in the district court, the Company, not having any previous knowledge that the Area Director would not be present, learned that the Area Director was in Manhattan, Kansas, on assignment for the Department of Labor. The Company moved to continue the hearing until such time as the Area Director would be available, which motion was denied. Here again, we find disturbing the apparently cavalier disregard of an unquashed subpoena by the highest official of the agency in the area, and if it had been demonstrated that the absence of this subpoenaed witness was in fact detrimental to the presentation of the Company's case we might well give serious consideration to the contention that there was a denial of due process. Under the circumstances of this case, however, it appears that to the extent that this was error, it was not prejudicial to the Company, as it was able to develop its position through the agency representative who had apparently actually been concerned with the inspection in question. Also, the record indicates that the district court, based on representations of counsel, was aware that this would be the situation.
32
While we are affirming the district court judgment for the reasons we have indicated herein, we trust that we have made clear our belief from this record that OSHA has scarcely functioned in the manner that would be expected from an arm of the United States government. While we are not reversing in this case, we do not say we would continue to affirm if future cases reflected a persistence in failing to be able to support the factual assertions of an application in this type of a case.
33
On this appeal, the Secretary contends that if this court should invalidate the warrant it should not treat the Company's motion to quash the contempt as a motion to suppress evidence obtained during the inspection conducted pursuant to the warrant. The Secretary points out that the Ninth Circuit recently suggested that the exclusionary rule should not apply to OSHA proceedings in view of the fact that the Supreme Court has never applied it to civil proceedings. Todd Shipyards Corp. v. Secretary, 586 F.2d 683, 689 (9th Cir. 1978). The Secretary also recognizes that a contrary result may have been indicated by Knoll Associates, Inc. v. FTC, 397 F.2d 530 (7th Cir. 1968) but suggests that it is unclear that Knoll on that point remains a correct statement of the law. The Secretary also notes that in Weyerhauser, supra, this court suppressed evidence obtained pursuant to an invalid warrant but argues that in that case the Secretary did not raise or litigate the issue of whether the exclusionary rule applied to OSHA proceedings. Not surprisingly, the Company, attempting to draw support from a recent Tenth Circuit case, Savina Home Industries, Inc. v. Secretary, 594 F.2d 1358 (10th Cir. 1979), takes an opposite position on this issue from that taken by the Secretary. Because of the result we are reaching in this case, we leave for another day and another panel the resolution of the issue.
34
Accordingly, the judgment of the district court is affirmed.
*
District Judge Harold A. Baker of the Central District of Illinois is sitting by designation
1
(T)he desired inspection is part of an inspection and investigation program designed to assure compliance with the Act, is authorized by section 8(a) of the Act, and is based upon injury rates experienced within certain designated industries within a prescribed geographic area
The above-listed worksite selected for inspection was listed in a document filed with the Department of Labor as an industry engaged in FABRICATED PLATE WORK. Selection criteria for employers to be investigated is predicated upon those industries in a geographic area showing the worst injury rates as being the first to be selected for investigation. The fabricated plate work industry according to the Bureau of Labor Statistics has the seventh highest injury rate in the Milwaukee area. Those six industries having a higher injury rate were previously inspected by the Milwaukee Area Office. Of those industries engaged in fabricated plate work and having the seventh highest injury rate MILWAUKEE BOILER MANUFACTURING COMPANY was chosen because it had no prior inspection history. The above-cited worksite was selected for Inspection for this reason in accordance with Chapter IV, entitled Compliance Programming, of the Occupational Safety and Health Administration Field Operations Manual.
2
The Supreme Court there held that the Occupational Safety and Health Act (Act) was unconstitutional insofar as it purported to authorize inspections without a warrant or its equivalent, but that entitlement to inspect would not depend on the demonstration of probable cause to believe that conditions in violation of the Act existed on the premises, probable cause in the criminal sense not being required. But for purposes of such an administrative search as this, probable cause for the issuance of a warrant could be based not only on specific evidence of an existing violation but also on a showing that reasonable legislative or administrative standards for conducting an inspection were satisfied with respect to a particular establishment
3
Gilbert & Bennett was consolidated with Marshall v. Chromalloy American Corporation, also 7th Cir., 589 F.2d 1335, and one opinion was issued. Hereinafter we shall refer to Chromalloy as the facts of that case are more applicable to the case under decision than Gilbert & Bennett
4
The testimony referred to was developed on cross-examination of the OSHA employee by the Secretary by a process of leading questions. The transcript section upon which the Secretary relies reads as follows:
Q. And when you get this listing of injuries per one hundred per one hundred employees per year, do you further break that listing down from the statewide when you receive it?
A. Yes, I do.
Q. And when you break that further down and use the statistics given to you, isn't it true that you come up with a relative ranking for injuries in the Milwaukee Area?
A. Yes, sir.
Q. And isn't it also true that the fabricated plate work with the SIC Code Number 3443 ranks number seventh in the Milwaukee Area on the basis of these statistics?
A. Yes, on the basis of those statistics.
Q. And that would be the injury rate. Is that correct?
A. The incidence rate or injury rate, yes.
Even though this was on cross-examination, we have some considerable question as to the propriety of, or at least the probative value of, the use of such clearly leading questions to a witness who is tantamount to a party's own witness. There was, however, no objection made to the procedure.
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ACCEPTED
14-14-00861-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/31/2015 4:53:59 PM
CHRISTOPHER PRINE
CLERK
No. 14-14-00861-CV
FILED IN
14th COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FOURTEENTH DISTRICT 7/31/2015 4:53:59 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
THERESA WASHINGTON-JARMON,
APPELLANT,
V.
ONEWEST BANK, FSB,
APPELLEE.
APPEAL FROM 215TH JUDICIAL DISTRICT COURT,
HARRIS COUNTY, TEXAS
UNOPPOSED MOTION TO EXTEND TIME
TO FILE APPELLEE’S RESPONSE BRIEF
DYKEMA GOSSETT PLLC
Thomas M. Hanson
State Bar No. 24068703
[email protected]
DYKEMA COX SMITH
1717 Main Street, Suite 4200
Dallas, Texas 75201
(214) 462-6400 – Telephone
(214) 462-6401 – Facsimile
July 31, 2015
TO THE HONORABLE JUSTICES OF THIS COURT:
Appellee OneWest Bank N.A., formerly known as OneWest Bank, FSB
(“Appellee”) respectfully requests an extension of time to file its Response Brief.
Appellant Theresa Washington-Jarmon (“Ms. Washington-Jarmon”) has informed
counsel for Appellee that she does not oppose the requested relief. In support of
this Motion, Appellee would respectfully show the Court as follows:
1. The District Court granted Appellee’s motion for summary judgment
on May 9, 2014. Ms. Washington-Jarmon subsequently initiated this appeal on
October 23, 2014.
2. Ms. Washington-Jarmon’s brief on appeal was filed on July 1, 2015,
and Appellee’s brief is due on July 31, 2015.
3. The dispute in this case hinges on whether Ms. Washington-Jarmon is
a borrower under her Home Equity Conversion Mortgage, as she contends, or
whether she is a non-borrower spouse, as Appellee contends. Due to a recent
change in policy by the U.S. Department of Housing and Urban Development,
which administers the federal Home Equity Conversion Mortgage program, the
parties have an opportunity to resolve this matter which has not previously been
available.
4. In order to allow the Parties time to explore this settlement
opportunity, Appellee respectfully requests a 30-day extension of time to file its
brief.
2
5. Ms. Washington-Jarmon will not be prejudiced if the requested relief
is granted. Indeed, counsel for Ms. Washington-Jarmon stated on July 31, 2015
that he is unopposed to the relief sought herein. Further, even though Ms.
Washington-Jarmon has not filed a supersedeas bond in the District Court,
Appellee has voluntarily abated foreclosure proceedings during this appeal, despite
having authority to proceed with foreclosure following the District Court’s grant of
summary judgment. Accordingly, any additional time granted by this Court inures
to Ms. Washington-Jarmon’s benefit.
6. This relief is not sought solely for delay or to prejudice any party, but
rather so that justice may be done.
For the reasons stated above, Appellee OneWest Bank N.A. respectfully
requests that this Court grant this Unopposed Motion to Extend Time to File
Appellee’s Brief and extend Appellee’s deadline to file its brief by 30 days.
Appellee further requests that this Court grant it any additional relief, in law or in
equity, to which it is justly entitled.
Date: July 31, 2015
3
Respectfully submitted,
/s/ Thomas M. Hanson
Thomas M. Hanson
State Bar No. 24068703
[email protected]
DYKEMA COX SMITH
1717 Main Street, Suite 4200
Dallas, Texas 75201
(214) 462-6400 – Telephone
(214) 462-6401 – Facsimile
ATTORNEYS FOR APPELLEE
ONEWEST BANK N.A.
4
CERTIFICATE OF CONFERENCE
The undersigned certifies that on July 31, 2015, he conferred with counsel
for Appellant who stated that neither he nor Appellant oppose the relief requested
in this Motion.
/s/ Thomas M. Hanson .
Thomas M. Hanson
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing
Motion was served upon Appellant’s counsel by electronic service on July 31,
2015.
Michael Hooper
P.O. Box 2134
Frisco, Texas 75305
[email protected]
COUNSEL FOR APPELLANT
/s/ Thomas M. Hanson .
Thomas M. Hanson
5
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670 S.E.2d 476 (2008)
BELL
v.
The STATE.
No. A09A0124.
Court of Appeals of Georgia.
November 21, 2008.
*477 David E. Morgan III, Abbeville, for appellant.
Denise D. Fachini, District Attorney, Deshala D. Bray, Assistant District Attorney, for appellee.
BLACKBURN, Presiding Judge.
Following a jury trial, Willie James Bell appeals his conviction of aggravated child molestation, challenging the sufficiency of the evidence and arguing that the trial court erred in overruling several evidentiary objections and in denying his motion for mistrial. We hold that the testimony of the victim, of a separate eyewitness, and of a nurse who conducted a medical examination on the victim sustained the conviction (justifying the trial court's denial of Bell's motion for a directed verdict), and that the court did not abuse its discretion in overruling the evidentiary objections or in denying Bell's motion for mistrial. Accordingly, we affirm.
1. When reviewing a defendant's challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State.[1] We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia.[2] This standard applies also to our review of the denial of a motion for directed verdict. Hash v. State.[3]
So viewed, the evidence shows that in August 2006, a 13-year-old girl was visiting Bell and his girlfriend, who were adults who worked with the young girl's father. While *478 the girlfriend was at work, the young girl was watching television when Bell came into the room, pushed her down on the couch, removed her pants and underwear, forced her legs open, and had vaginal intercourse with her over her screams of pain. Arriving home unexpectedly from work, the girlfriend walked into the room to see Bell and the girl on the couch, with Bell leaning his body between the girl's naked thighs. The girlfriend said something and left the room, causing Bell to jump up. Bleeding from the vagina, the young girl returned home and eventually told others, resulting in her being taken to a hospital, where the examining nurse found three tears or transections on the girl's hymen and vaginal area, evincing penetration.
Charged with aggravated child molestation, Bell denied any sexual contact with the girl. The court denied his motions for a directed verdict and for mistrial. A jury found him guilty, and the court denied his motion for new trial, giving rise to this appeal.
OCGA § 16-6-4(a) defines child molestation as doing any immoral or indecent act to or with any child under the age of 16 years with the intent to satisfy the sexual desires of either the child or the person. OCGA § 16-6-4(c) defines aggravated child molestation as committing an act of child molestation that physically injures the child. Here, the girl testified to her age of 13 at the time of the incident, to Bell's forcible act of intercourse upon her, and to her pain and bleeding from the act; the girlfriend testified that she saw Bell leaning between the girl's naked legs on the couch; and the nurse testified to the injuries to the girl's hymen and vaginal area resulting from penetration. Two other witnesses recounted the girl's telling them (before she reached the age of 14) of the forced act of intercourse. See OCGA § 24-3-16. This evidence more than sufficed to sustain Bell's conviction of aggravated child molestation.
2. Bell contends that the court erred in overruling his objection to the prosecutor's proclamation during the State's opening statement that the evidence would show that the nurse found "essentially lacerations on her vagina . . . basically a marking on her vagina and the only way that those markings can get on a vagina is if there's some type of penetration." Bell urges that the prosecutor was improperly injecting his personal opinion into his opening statement. We disagree.
"In opening statement[,] the prosecutor is permitted to state what the evidence is expected to show, and the trial court has broad discretion to control the content of the opening statements of both parties." (Citation omitted.) Massey v. State.[4] See Wilson v. State[5] ("[i]t is well established that a prosecutor may set forth in her opening statement what she expects the evidence adduced by the State will show"). Here, the prosecutor did not purport to give a personal opinion but rather accurately described what in fact the nurse testified to when she took the stand. We discern no abuse of discretion in the court's overruling Bell's objection.
3. Bell complains that the court overruled his objection to the leading questions the prosecutor used during the direct examination of the young victim, who was 14 years of age at the time of trial. During that examination, the young girl was often non-responsive, spoke very softly, and exhibited signs of timidity and fear. Her demeanor even caused defense counsel to admit that leading questions may be the only way to get her to answer questions.
OCGA § 24-9-63 expressly authorizes a court to allow leading questions "when, from the conduct of the witness or other reason, justice shall require it." Based on this statute, "[t]he courts have traditionally accorded a great deal of latitude in the examination of young or timid or otherwise disadvantaged witnesses." (Punctuation omitted.) Roberts v. State.[6] Accordingly, Roberts found no abuse of a trial court's discretion in allowing *479 a prosecutor to ask leading questions of the 14-year-old victim. Id. See Cherry v. State[7] (no abuse of discretion to permit leading questions of a 14-year-old reticent victim). Similarly, we discern no abuse here. See Lopez v. State.[8]
4. Bell claims that the trial court erred in overruling his "bolstering" objection to testimony from the nurse as to the young girl's statements (that Bell forced intercourse upon her) to the nurse during the medical examination. Notably, the nurse did not opine as to the young girl's truthfulness. Because the young girl was 13 at the time she made the statements, her statements were admissible under the Child Hearsay Statute (OCGA § 24-3-16). See Geiger v. State.[9] See also Slade v. State[10] (look to age of child at time statements are made). "[T]his Court has held that the Child Hearsay Statute actually contemplates testimony from both the child and those witnessing the child's later reaction, even if the hearsay may be `bolstering.' Any `bolstering' can be explored by defendant in cross-examination." (Punctuation omitted.) Howard v. State.[11] Moreover, "[i]nquiry as to impermissible bolstering no longer is necessary following Cuzzort [v. State[12]]." (Punctuation omitted.) Richardson v. State.[13] See Treadaway v. State.[14] We discern no error.
5. Bell contends that the trial court erred in denying his motion for mistrial when the State introduced four past alleged felony convictions of Bell for impeachment purposes during its cross-examination of Bell. When the court discovered that three of the alleged convictions were missing vital information or were not convictions at all, the court reversed its ruling as to the admissibility of those three, whereupon Bell again moved for a mistrial. The court denied the second motion for mistrial and instead gave a curative instruction to the jury to "disregard entirely" all evidence with regard to prior alleged offenses of Bell, with the exception that they could consider the one valid conviction for credibility purposes only. When the court asked Bell's counsel if there was anything further, counsel replied in the negative, and the State continued its cross-examination of Bell. Following closing arguments and the court's charge to the jury, Bell renewed his motion for mistrial, which the court again denied.
After a trial court has issued a curative instruction, failure by the defendant to timely renew his motion for mistrial waives any error in the denial of that motion. Maddox v. State.[15] The renewal must occur immediately; it is not timely if it comes at the close of all the evidence (Kent v. Hunt & Assoc.[16]), at the close of the State's evidence (Maddox, supra, 227 Ga.App. at 604(2), 490 S.E.2d 174), or following the completion of the witness's testimony and that of a subsequent witness (Dally v. State[17]). See Seritt v. State.[18] Here, immediately following the curative instruction, the court even asked Bell's counsel if there was anything further, to which counsel responded there was not. See Cummings v. State[19] (acquiescing in *480 court's curative instructions waives any complaint of same on appeal); Rosenthal v. Hudson[20] (acquiescence in court's ruling found where "after the trial court gave curative instructions, appellant's counsel thanked the court and did not pursue the issue"). Combining this acquiescence with counsel's failure to renew the mistrial motion until after the court's charge to the jury, we hold that Bell has waived the matter.
Moreover, even if the matter were not waived, "we conclude the trial court's curative instructions were adequate to remove the inappropriate reference to extrinsic acts from the jury's consideration, thus preserving defendant['s] right to a fair trial." Seritt, supra, 237 Ga.App. at 666(1)(a), 516 S.E.2d 366. See McCoy v. State[21] ("[t]he granting of a motion for a mistrial is within the discretion of the trial court, and the trial court's ruling will not be disturbed when the trial court has taken remedial measures sufficient to ensure a fair trial") (punctuation omitted).
6. Bell argues that the use of his one valid prior conviction for purposes of impeachment was improper, and that the court erred in admitting that conviction over his objection. Specifically, Bell contends that this conviction, which was a 1986 "habitual violator" conviction under OCGA § 40-5-58, was too old, that he was not notified in advance that the conviction would be used as impeachment, and that the court failed to find that the probative value of the conviction outweighed its prejudicial value.
Regarding Bell's contentions that the conviction was too old and that he did not receive advance notification, we note that when objecting to the introduction of this conviction at trial, counsel raised neither of these grounds. "[A]n objection on a specific ground or grounds at trial waives any objection to that evidence on other grounds on appeal. Accordingly, all other grounds for objection are not preserved for appeal." (Punctuation omitted.) Vincent v. State.[22]
Regarding the court's weighing the probative value against the prejudicial value of the conviction, the record reflects that the court considered that very issue and specifically found that the probative value outweighed the prejudicial effect. See OCGA § 24-9-84.1. We discern no abuse of discretion here. See Tate v. State.[23] See generally Quiroz v. State.[24]
Judgment affirmed.
RUFFIN and ADAMS, JJ., concur.
NOTES
[1] Short v. State, 234 Ga.App. 633, 634(1), 507 S.E.2d 514 (1998).
[2] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[3] Hash v. State, 248 Ga.App. 456, 457(1), 546 S.E.2d 833 (2001).
[4] Massey v. State, 263 Ga. 379, 381(2), 434 S.E.2d 467 (1993).
[5] Wilson v. State, 276 Ga. 674, 676(2), 581 S.E.2d 534 (2003).
[6] Roberts v. State, 232 Ga.App. 745, 747(4), 503 S.E.2d 614 (1998).
[7] Cherry v. State, 199 Ga.App. 879, 879-880(1), 406 S.E.2d 531 (1991).
[8] Lopez v. State, 291 Ga.App. 210, 214(4), 661 S.E.2d 618 (2008).
[9] Geiger v. State, 258 Ga.App. 57, 64(3)(h), 573 S.E.2d 85 (2002).
[10] Slade v. State, 287 Ga.App. 34, 35(1), 651 S.E.2d 352 (2007).
[11] Howard v. State, 252 Ga.App. 465, 469(2), 556 S.E.2d 536 (2001).
[12] Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 (1985).
[13] Richardson v. State, 256 Ga. 746, 747-748(5), 353 S.E.2d 342 (1987).
[14] Treadaway v. State, 191 Ga.App. 111, 112(2), 381 S.E.2d 43 (1989).
[15] Maddox v. State, 227 Ga.App. 602, 604(2), 490 S.E.2d 174 (1997).
[16] Kent v. Hunt & Assoc., 165 Ga.App. 169, 171-172(8), 299 S.E.2d 123 (1983).
[17] Dally v. State, 237 Ga.App. 577, 579(3), 516 S.E.2d 87 (1999).
[18] Seritt v. State, 237 Ga.App. 665, 666(1)(a), 516 S.E.2d 366 (1999).
[19] Cummings v. State, 266 Ga.App. 799, 806(4), 598 S.E.2d 116 (2004).
[20] Rosenthal v. Hudson, 183 Ga.App. 712, 712-713(2), 360 S.E.2d 15 (1987).
[21] McCoy v. State, 273 Ga. 568, 572(9), 544 S.E.2d 709 (2001).
[22] Vincent v. State, 276 Ga.App. 415, 416(1), 623 S.E.2d 255 (2005).
[23] Tate v. State, 289 Ga.App. 479, 481, 657 S.E.2d 531 (2008).
[24] Quiroz v. State, 291 Ga.App. 423, 428-429(4), 662 S.E.2d 235 (2008).
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164 B.R. 611 (1994)
In re Henry Eartis HARRISON, Debtor.
Bankruptcy No. 93 B 17456.
United States Bankruptcy Court, N.D. Illinois, E.D.
February 22, 1994.
*612 Jim McArdle, Bennett A. Kahn, Melvin J. Kaplan, Chicago, IL, for Henry Eartis Harrison, debtor.
Robert J. Walinski, Kerry S. Trunkett, Walinski & Trunkett, Chicago, IL, for United Bell Credit Union.
John E. Gierum, DiMonte, Schostok & Lizak, Park Ridge, IL.
M. Scott Michel, Chicago, IL, U.S. Trustee.
MEMORANDUM OPINION
JOHN H. SQUIRES, Bankruptcy Judge.
This matter comes before the Court on the petition to avoid a lien filed by Henry Eartis Harrison (the "Debtor") and the objections thereto of United Bell Credit Union (the "Creditor"). The Debtor seeks to avoid the Creditor's judgment lien pursuant to 11 U.S.C. § 522(f)(1) on the ground that it impairs the Debtor's homestead exemption claimed in the property. After review of the undisputed facts, the arguments of the parties, and the applicable authorities, the Court denies the petition and sustains the objections.
I. JURISDICTION AND PROCEDURE
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and Local General Rule 2.33(A) of the United States District Court for the Northern District of Illinois. It is a core proceeding under 28 U.S.C. § 157(b)(2)(K), brought as a contested matter under Federal Rules of Bankruptcy Procedure 4003(d) and 9014.
II. FACTS AND BACKGROUND
The material facts are undisputed. The Debtor filed a Chapter 7 petition on August 18, 1993, after the Creditor recorded a memorandum of judgment against the Debtor with the Cook County Recorder of Deeds on June 3, 1993. The Creditor filed a proof of claim in the amount of $6,880.17, in contrast to the sum of $6,334.31 pleaded in its objection. The exact amount remaining unpaid as of the bankruptcy petition is not outcome determinative. The Debtor's schedules list a secured senior mortgage claim held by another creditor in the approximate amount of $55,000.00. The parties do not dispute that the Creditor's judgment lien encumbers real property commonly described as 1644 East 84th Street, Chicago, Illinois (the "Property"), valued at $60,000.00. The Debtor has claimed a homestead exemption in the Property in the amount of $7,500.00 under 735 ILCS 5/12-901. The Creditor's junior judgment lien is presently under-secured and subordinate to the mortgagee's lien and the *613 homestead exemption claimed by the Debtor, who presumably expressly waived the homestead exemption as against the mortgagee under the mortgage.
Pursuant to 11 U.S.C. § 341, the meeting of creditors was held and was concluded on October 20, 1993, when the Trustee filed a "no asset" report. No objections were filed to the Debtor's claim of homestead exemption or to the Debtor's discharge within the periods prescribed by Federal Rules of Bankruptcy Procedure 4003(b) and 4004. Thus, the homestead exemption claimed is exempt under 11 U.S.C. § 522(b) and (l). An order of discharge under 11 U.S.C. § 524 will be issued shortly, giving the Debtor the "fresh start" contemplated by Chapter 7.
III. DISCUSSION
The Debtor invokes the avoidance power of 11 U.S.C. § 522(f)(1) and contends that the Creditor's judgment lien impairs the Illinois homestead exemption. The Creditor objects under In re Cerniglia, 137 B.R. 722 (Bankr.S.D.Ill.1992) and Ward v. Bank of Findley, 157 B.R. 643 (Bankr.C.D.Ill.1993). Those decisions held that section 522(f)(1) could not be properly utilized in connection with a claim of homestead exemption because under Illinois law a judgment lien does not attach to a debtor's homestead interest in property. Thus, judgment liens do not impair homestead exemption claims, even if the property itself is subject to sale in satisfaction of the lien, because the homestead claim must be compensated and satisfied in the event of sale of the property. As a result, the exemption is not impaired and there is no basis under section 522(f)(1) for the avoidance of a judicial lien on Illinois real property in which the debtor properly asserts a homestead exemption.
Both Cerniglia and Ward noted the dictum in Dewsnup v. Timm, ___ U.S. ___, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) that repeated the long standing general bankruptcy principle that liens on real property usually pass through bankruptcy unaffected and "[a]ny increase over the judicially determined valuation during bankruptcy rightly accrues to the benefit of the creditor, not to the benefit of the debtor. . . ." Id. ___ U.S. at ___, 112 S.Ct. at 778. Moreover, such result does not impede a debtor's "fresh start" because the debtor's discharge does not extend to in rem claims against property. Id. ___ U.S. at ___, 112 S.Ct. at 777. Cerniglia and Ward both cited to the conflicting lines of cases decided by bankruptcy courts in other states on the issue at bar: those following the result and reasoning of Cerniglia and Ward in denying such relief requested by debtors, see e.g., In re Chabot, 992 F.2d 891 (9th Cir.1993) (California law); In re Sanders, 156 B.R. 667 (D.Utah 1993) (Utah law), and the contrary line of cases that concludes that such judgment liens impair the claimed homestead exemption. See e.g., In re Jacobs, 154 B.R. 359 (Bankr.S.D.Fla.1992) (Florida law); In re Packer, 101 B.R. 651 (Bankr. D.Colo.1989) (Colorado law). Additional research reveals that the split of authorities continues among the various bankruptcy courts applying state homestead laws. See In re Henderson, 155 B.R. 157 (Bankr. W.D.Tex.1992) (Texas law; follows Cerniglia and Ward); In re Osborne, 156 B.R. 188 (Bankr.W.D.Va.1993) (Virginia law; rejects holding and results in Cerniglia and Ward).
The Debtor raises a number of arguments in support of the relief sought and also attempts to frame the issue in terms of the time when the exemption claimed can be utilized because the avoidance power of section 522(f)(1) can only be invoked by the Debtor while in bankruptcy court. This point is not outcome determinative. Although that avoidance power can only be invoked in a bankruptcy case, the homestead exemption claim can be made at any time by the Debtor in or out of bankruptcy court. The Illinois homestead exemption, if properly claimed, can only be validly released, waived, or conveyed in a signed writing (735 ILCS 5/12-904) and even survives the death of the claimant, for the benefit of surviving spouses and minor children (735 ILCS 5/12-902).
The Debtor also correctly notes that Dewsnup held that the strip down provisions of 11 U.S.C. § 506(d) were unavailable to Chapter 7 debtors. The holding in Dewsnup was narrowly limited by its own terms. Thus, it is not controlling in this matter involving section 522(f)(1). Rather, the *614 Debtor argues that the more appropriate and instructive dictum from Owen v. Owen, 500 U.S. 305, 309-12, 111 S.Ct. 1833, 1836-37, 114 L.Ed.2d 350 (1991) should be applied: ask not whether the judicial lien impairs an exemption to which the Debtor is entitled, but whether it impairs an exemption to which the Debtor would have been entitled, but for the lien itself. In addition, the Debtor argues the six reasons set forth in Packer to support the requested relief: (1) to reinforce the fresh start; (2) absent avoidance, liens survive bankruptcy; (3) a surviving lien impairs the Debtor's rights even if it does not attach to the property interest claimed exempt; (4) the time to fix the relative rights of the parties is at the time of bankruptcy; (5) an avoidance order establishes certainty with respect to the effect of the lien on the property; and (6) section 522(c) requires the Debtor to take affirmative action to avoid judicial liens under section 522(f).
Additionally, the Debtor cites In re LaPointe, 150 B.R. 92 (Bankr.D.Conn.1993) for the proposition that the benefit of any post-petition acquisitions and equity should inure to the benefit of the Debtor in aid of the needed fresh start. Thus, the Debtor seeks the requested relief in order to benefit from any post-petition increase in value of the Property to augment the claimed homestead exemption. The Debtor concludes that sustaining the Creditor's objections comes close to rendering the avoidance power of section 522(f)(1) a nullity, creates uncertainty as to the effect of such judgment liens, and interferes with the Debtor's fresh start. After all, the Debtor only seeks to avoid the judicial lien to the extent of the homestead exemption claimed, no more.
The Court finds and concludes that the better view is that taken by Cerniglia and Ward for the persuasive reasons stated therein. As noted in Cerniglia, the power under section 522(f)(1) is given to preserve a debtor's exemption, but the power may not be properly used to expand the exemption by avoidance of a lien that would otherwise survive the debtor's discharge encumbering other property of the estate beyond the debtor's properly claimed exemptions. 137 B.R. at 722.
The legislative history of section 522(f)(1) expressly notes that it "protects the debtor's exemptions, his discharge, and thus his fresh start by permitting him to avoid liens on exempt property. The debtor may avoid a judicial lien on any property to the extent that the property could have been exempted in the absence of the lien. . . . H.R.Rep. No. 595, 95th Cong., 1st. Sess. 362 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 76 (1978); U.S.Code Cong. & Admin.News 1978, pp. 5787, 5862, 6318 (emphasis added). This point of course begs the question of whether under applicable law the judicial lien encumbers the property interest claimed exempt. Cerniglia noted that the purpose and effect of section 522(f)(1) is to preserve the debtor's exemption, and thus a fresh start by allowing avoidance of liens in the specific amount of the debtor's exemption, rather than free the debtor's property completely of judicial liens. 137 B.R. at 725.
In Illinois, a judgment lien attaches to all real property of a debtor once a transcript, certified copy, or memorandum of judgment has been duly recorded in the county in which the property is located. See 735 ILCS 5/12-101. The attachment of a judgment lien to real property, however, is not identical to a functional impairment of the exemption carved out of the property. The homestead exemption, however, constitutes an exception to this general rule. Lehman v. Cottrell, 298 Ill.App. 434, 440, 19 N.E.2d 111, 114 (1939). Illinois homestead is an estate in property, real or personal, but subject to the monetary limit of $7,500.00 per individual as prescribed by the statute creating same. 735 ILCS 5/12-901; see generally 20 Illinois Law and Practice, Homesteads § 2 et seq. (1992 and 1993 Supp.) (collecting cases). Pre-existing liens are unaffected by subsequently acquired homestead claims. Id. at § 5. In Illinois, a judgment lien does not attach to a debtor's homestead interest in property (real or personal). See e.g., Dixon v. Moller, 42 Ill.App.3d 688, 690, 1 Ill.Dec. 411, 414, 356 N.E.2d 599, 602 (5th Dist.1976). The homestead estate is alienable by the debtor (735 ILCS 5/12-904), and judgment creditors have no interest in the homestead estate that would allow them to interfere *615 with the debtor's disposition thereof. Cloud v. Meyers, 136 Ill.App. 45, 47-48 (1907); see 20 Illinois Law and Practice Homesteads, § 75. Thus, Illinois courts have held that a judgment lien attaches only to that portion of property that exceeds the amount allowed by statute as a homestead. Haworth v. Travis, 67 Ill. 301, 304 (1873). Because the judgment lien never attaches to a debtor's homestead estate, the debtor is entitled to have that homestead estate set off or to be compensated for it in the event of sale of the underlying real property. Cochran v. Cutler, 39 Ill.App.3d 602, 609, 350 N.E.2d 59, 64 (2d Dist.1976); 735 ILCS 5/12-906 5/12-912.
Bankruptcy courts normally look to state law to determine interests in property and the perfection of liens therein, and only in the event of conflicting federal law apply the later. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). For purposes of this matter there is no conflict between the relevant Illinois and federal laws. Pursuant to the provisions of the Bankruptcy Code, Illinois has "opted out" of the federal exemptions, and thus the relevant exemption under section 522(b) is that defined by Illinois law. See 11 U.S.C. § 522(b)(1); 735 ILCS 5/12-1201; In re Marriage of Logston, 103 Ill.2d 266, 82 Ill. Dec. 633, 469 N.E.2d 167 (1984). The Court agrees that the narrow holding in Dewsnup is not controlling, but the cited dicta is persuasive authority. Unless otherwise properly avoided, liens encumbering property in rem survive bankruptcy. The cited dicta from Owen is unavailing to the Debtor. The Creditor's judgment lien under Illinois law does not legally impair in any way the Debtor's Illinois homestead exemption. For purposes of this matter, any cloud on title to the Property enjoyed by the Creditor's unsecured judgment lien is not synonymous with or the functional equivalent of impairing the Debtor's estate of homestead properly claimed in the Property or its proceeds. The exemption is not coextensive with the entire Property, but merely an exempt portion therein.
The Court does not find the Debtor's arguments enunciated in Packer persuasive when applied to the Illinois homestead exemption.
The relief sought by the Debtor would certainly reinforce the Debtor's fresh start with the additional potential benefit of possible future post-petition appreciation in value of the underlying Property. Any such future prospects are merely speculative at this time. More importantly, as long as the Debtor is occupying the Property, however, the Illinois homestead exemption can be properly claimed to the extent that the statute allows, but not more. As the Creditor's judicial lien does not ever attach to the Debtor's homestead estate claimed in the underlying Property or its proceeds, the judicial lien does not legally impair same. The extent of the Debtor's Illinois homestead exemption is not presently greater than $7,500.00, nor dependent upon the value of the Property, which may or may not fluctuate in the future. The Court rejects the conclusion that the Creditor's judicial lien, which survives this bankruptcy, eviscerates either the Debtor's interest in the homestead exemption or the effect of section 522(f)(1). The avoidance power can readily be utilized when other exemptions in other types of property are functionally "impaired" in some way by judicial liens. Thus, although the Creditor's judicial lien may serve as a cloud on the underlying fee simple title to the Property, it does not in any way impair the Debtor's Illinois homestead exemption rights therein, which are superior to such judicial lien.
The Debtor also cites In re D'Ambrosia, 61 B.R. 588 (Bankr.N.D.Ill.1986) for the proposition that he may avoid a judicial lien to the extent of the claimed homestead exemption. D'Ambrosia is distinguishable because it did not discuss or analyze the relevant Illinois statutory or case law which provides that judicial liens do not attach to a debtor's homestead exemption. Moreover, D'Ambrosia was decided prior to Dewsnup and Owen as noted by the Creditor. The Court concludes that because this judicial lien does not attach to the Debtor's exempt homestead estate in the Property, there is no need for same to be avoided because the exemption is not impaired.
IV. CONCLUSION
For the foregoing reasons, the Debtor's petition to avoid the lien on the Property is *616 denied. This Opinion constitutes the Court's findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. A separate order shall be entered pursuant to Federal Rule of Bankruptcy Procedure 9021.
ORDER
For the reasons set forth in a Memorandum Opinion dated the 22nd day of February, 1994, the Court hereby denies the petition of Henry Eartis Harrison to avoid a judgment lien pursuant to 11 U.S.C. § 522(f)(1), and sustains the objections thereto of United Bell Credit Union.
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Case: 19-20117 Document: 00515177010 Page: 1 Date Filed: 10/28/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-20117 October 28, 2019
Conference Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EDILBERTO PINEDA DIAZ, also known as Eddie, also known as Gallo, also
known as Bolas,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-143-1
Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Edilberto Pineda Diaz has moved
for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Pineda Diaz has not filed a response. We have reviewed counsel’s
brief and the relevant portions of the record reflected therein. We concur with
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 19-20117 Document: 00515177010 Page: 2 Date Filed: 10/28/2019
No. 19-20117
counsel’s assessment that the appeal presents no nonfrivolous issue for
appellate review. Accordingly, counsel’s motion for leave to withdraw is
GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
2
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676 F.2d 710
Hutchinsv.Freeman
80-4483
UNITED STATES COURT OF APPEALS Ninth Circuit
4/2/82
1
N.D.Cal.
AFFIRMED AND REMANDED
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300 F.3d 562
UNITED STATES of America, Plaintiff-Appellee,v.Antonio AGUILAR-TAMAYO, Defendant-Appellant.
No. 01-50847.
United States Court of Appeals, Fifth Circuit.
July 25, 2002.
Mark Randolph Stelmach (argued) and Joseph H. Gay, Asst. U.S. Attys., San Antonio, TX, for Plaintiff-Appellee.
Donna F. Coltharp (argued), San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas.
Before DAVIS, DeMOSS and STEWART, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
1
Defendant Antonio Aguilar-Tamayo appeals his conviction by a jury of two counts of illegal alien transportation and two counts of bringing an alien into the United States, both in violation of 8 U.S.C. § 1324. He challenges, as a violation of the Confrontation Clause, the district court's decision to admit the video deposition testimony of witnesses who were not available to testify at trial because they had been deported. Because we conclude that any error in this practice was harmless based on the overwhelming evidence of Aguilar-Tamayo's guilt, we affirm.
I.
2
At trial before a jury, evidence was presented that in the early morning of February 21, 2001, United States Border Patrol Agent David Mitchell was alerted that a sensor had been activated on a trail often followed by aliens. Agent Mitchell testified that it was a very dark night. He and another agent proceeded to a point on the trail to attempt to intercept the individuals triggering the sensor. Mitchell and one agent traveled in one vehicle. Agent Goodwin arrived separately later. Both vehicles used their headlights which could have been observed by individuals on the trail.
3
The agents reached a point where they thought they would intercept the individuals, but after a time, decided to walk up the road towards the expected direction of their travel. About 3:00 a.m., the agents observed a group of suspected aliens approaching. The agents crouched behind a ranch gate that was closed blocking the road. Agent Mitchell testified that he observed the first person in the group, whom he identified as the defendant, trying to open the gate. Aguilar-Tamayo spoke to the other aliens as he was unlocking the gate. Agent Mitchell heard him tell them that there were lights coming from the direction they were going. The agent also heard Aguilar-Tamayo warn the group that border patrol had been in that area before. Agent Mitchell testified that he could tell Aguilar-Tamayo was leading the group from the way he was talking and using hand-signals to guide the group. He also testified that based on his observations, it was clear that Aguilar-Tamayo was in charge of the group. The group of suspected aliens consisted of seventeen individuals. Because of the size of the group, the agents radioed for assistance in apprehending them and followed the group. Aguilar-Tamayo maintained the position in the front of the group during the entire time the agents conducted surveillance. The group was apprehended and all were found to be aliens who had illegally entered this country.
4
Agent Mitchell testified that he observed Aguilar-Tamayo being read his constitutional rights in Spanish by Agent Banda and having those rights, including the right to counsel, explained to him. Aguilar-Tamayo indicated that he understood his rights. Aguilar-Tamayo was interviewed by a Spanish-speaking agent in Spanish. Aguilar-Tamayo confessed that he guided the group of aliens to the United States in exchange for $750 each, because he wanted to make some extra money. His intention was to guide the group on foot to Leakey, Texas. Aguilar-Tamayo was given the opportunity to review his written statement and was again advised of his rights. He re-read the statement and was given the opportunity to edit his responses. Aguilar-Tamayo signed the statement in the presence of Agent Cruz and another witness. Agent Cruz testified that the defendant did so voluntarily and that there had been no threats or use of force.
5
At trial, the prosecution also produced, over Aguilar-Tamayo's objection, the videotaped depositions of two material witnesses who were part of the group of aliens intercepted that night. The depositions were conducted with the witnesses under oath, before a U.S. magistrate judge, and with the participation of both Aguilar-Tamayo and his attorney. These witnesses testified that Aguilar-Tamayo charged them $800 each to lead them into the United States. After their depositions, the witnesses were deported to Mexico.
6
Aguilar-Tamayo also testified at the trial. He asserted that he was not the leader and that no one paid him or promised to pay him for showing them the way into the United States. He disputed telling the agents that he was charging the aliens. A jury convicted Aguilar-Tamayo of all counts. Aguilar-Tamayo appeals.
II.
7
Aguilar-Tamayo argues that the introduction of the videotaped material witness testimony violates his rights under the confrontation clause of the Sixth Amendment because the government failed to show that the witnesses were unavailable for trial. He argues further that he was damaged by the admission of this testimony. Alternatively, he argues that 8 U.S.C. § 1324 is unconstitutional. Whether hearsay evidence was properly admitted is reviewed under the abuse of discretion standard. A constitutional challenge is reviewed de novo.
8
The challenged material witness depositions were offered under the authority of Section 1324(d) of Title 8 which provides:
9
[N]otwithstanding any provision of the Federal Rules of Evidence, the videotaped ... deposition of a witness ... who has been deported or otherwise expelled from the United States, or is otherwise unable to testify, may be admitted into evidence in an action brought for [transporting illegal aliens] if the witness was available for cross-examination and the deposition otherwise complies with the Federal Rules of Evidence.
10
Subsection (d) of 8 U.S.C. § 1324(d) was added to the statute in 1986. As its enactment did not repeal any provisions of the Federal Rules of Criminal Procedure or Federal Rules of Evidence, this provision must be read in conjunction with other rules governing the admission of deposition testimony in a criminal proceeding. Federal Rule of Criminal Procedure 15(e) provides that deposition testimony "so far as [it is] otherwise admissible under the rules of evidence, may be used if the witness is unavailable, as unavailability is defined in Rule 804(a) of the Federal Rules of Evidence." Federal Rule of Evidence 804(a)(5) defines unavailability as being "absent from the hearing and the proponent of [his] statement has been unable to procure [his] presence by process or other reasonable means." Unavailability must ordinarily also be established to satisfy the requirements of the Confrontation Clause, which generally does not allow admission of testimony where the defendant is unable to confront the witness at trial. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). This rule is not absolute. The lengths to which the government must go to produce a witness to establish the witness's unavailability is a question of reasonableness and the government need not make efforts that would be futile. Id. at 74, 100 S.Ct. 2531.
11
We reject Aguilar-Tamayo's contention that § 1324(d) is unconstitutional. We do not read the statute as eliminating the requirement that the government establish the unavailability of a witness before the witness's deposition testimony can be admitted at trial. The procedures established in that statute comport with constitutional confrontation rights. United States v. Santos-Pinon, 146 F.3d 734 (9th Cir.1998). The question remaining is whether the action taken by the government to secure the presence of the witnesses who testified by video deposition was sufficient to establish their unavailability. The parties stipulated that the witnesses were deported to Mexico, that they were not subject to subpoena and that Mexico would not recognize their extradition on a material witness warrant. The government also established that a standing order issued by the district court in Del Rio is in place requiring the government to depose and deport illegal aliens so as to avoid lengthy detention of Mexican Nationals as material witnesses. The parties also stipulated that the government made no effort to secure the witnesses return to the United States for trial.
12
We are sympathetic to the plight of the government dealing with (1) the high volume of § 1324 prosecutions on the Mexican border; (2) a standing court order and statutory scheme encouraging or requiring the deportation of illegal aliens who are material, witnesses in this type of case; and (3) the government of Mexico that will not honor material witness warrants. However, to establish unavailability as predicate for the admission of depositions, Federal Rule of Evidence 804(a)(5) requires an attempt to secure the presence of a witness by "process or other reasonable means." (emphasis added).
13
In United States v. Allie, 978 F.2d 1401 (5th Cir.1992), we decided a case presenting a similar issue. The aliens who were material witnesses had been deposed under 18 U.S.C. § 3144 which requires that "detained material witnesses be deposed `within a reasonable period of time' if `further detention is not necessary to prevent a failure of justice.'" Id. at 1404. Defendants argued that the district court erred in admitting the deposition. One of the objections lodged by defendants was that the government had not shown that the witnesses were unavailable. The government, however, had taken numerous steps to insure that the deported witnesses would return for trial including providing witness fees and travel cost reimbursements, giving the witnesses a subpoena and letter to facilitate their reentry into the U.S., calling them in Mexico, getting assurance from the U.S. that they would return, apprising border inspectors of their expected arrival and issuing checks to be given to the witness upon their reentry into the U.S. at time of trial. Despite these efforts, the witnesses did not appear for the trial, but we held that the government employed reasonable measures to secure their presence and that their deposition testimony was admissible.
14
We do not suggest that it is necessary for the government to take all of the steps referenced in Allie to establish that it acted reasonably to secure a witness' presence. However, as stated above, the government stipulated that it took no steps to secure the presence of these witnesses. This can hardly constitute the use of "reasonable means" to secure the presence of the witnesses. The district court found that it would have been futile for the government to have taken steps to secure these witnesses' presence once they were deported. The 8th Circuit in United States v. Perez-Sosa, 164 F.3d 1082 (8th Cir.1998), affirmed a similar finding by a trial court in an analogous case, although it is not clear what record the government made in that case of its earlier unsuccessful efforts to secure the deported witnesses for trial. In the absence of such a record, we have serious doubts that a finding of futility could be sustained.
III.
15
But, we need not decide whether the admission of the deposition testimony was error, because we conclude that any error that may have occurred was harmless. Whether a violation of the Confrontation Clause is harmless in a particular case depends on a host of factors including
16
the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.
17
Delaware v. Van Arsdall, 475 U.S. 673, 686-87, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The only serious fact issue presented at trial was whether appellant profited from assisting and leading illegal aliens into this country. In the statement he gave to the border patrol, appellant admitted charging the aliens for his services. The material witnesses confirmed their payment to Aguilar-Tamayo for his assistance in guiding them across the border. Aguilar-Tamayo repudiated the portions of his statement asserting that he was guiding the group of aliens and that they paid him for his services. But he faced the difficult task of persuading the jury to credit his testimony over the testimony of two Border Patrol agents who witnessed the statement. In addition, other testimony, independent of Aguilar-Tamayo's statement, corroborated the government's contention that Aguilar-Tamayo was leading the group of aliens. The border patrol agents who apprehended Aguilar-Tamayo and the other aliens observed the defendant leading the group, physically, by speech and by hand signals. He unlocked the gate that obstructed their path and warned the group that he had seen lights ahead and that border patrol had been in that area before. We also note that the defendant had the opportunity to cross-examine the witnesses in the deposition process. Accordingly, given the overall strength of the prosecution's case against the defendant any error in allowing the videotaped depositions to be admitted at trial was harmless beyond a reasonable doubt.
IV.
18
For the foregoing reasons, Appellant Aguilar-Tamayo's conviction and sentence are AFFIRMED.
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86 So.2d 832 (1956)
Carl COOPER
v.
PERRY COUNTY BOARD OF EDUCATION et al.
2 Div. 353.
Supreme Court of Alabama.
April 12, 1956.
*833 Geo. S. Brown and Crampton Harris, Birmingham, and Sheldon Fitts, Marion, for appellant.
LeMaistre, Clement & Gewin, Walter P. Gewin and Perry Hubbard, Tuscaloosa, for appellees.
SIMPSON, Justice.
This is an appeal from a judgment of the Circuit Court of Perry County denying appellant's petition for a peremptory writ of mandamus to be directed to the County Board of Education, the members of said Board, and the County Superintendent of Education, to reinstate appellant as a teacher. Appellant has attained "continuing service status" under the Teachers' Tenure Law, Tit. 52, § 351 et seq., Code of Alabama 1940, as amended.
On July 12, 1954, the Board of Education notified appellant that the Board would meet on August 11, 1954 to consider cancellation of appellant's contract as a teacher, giving as reasons therefor incompetency, insubordination, neglect of duty and other good and just causes. (See Code of Alabama 1940, Tit. 52, § 358, pocket part.) As evidence of the foregoing reasons for cancellation, the Board recited twenty-four specifications in the notice to the appellant. Appellant filed with the Board notice of an intention to contest the cancellation. A full hearing in which the appellant appeared and evidence was presented was held by the Board; on August 17, 1954, appellant was notified by the Board of its unamimous resolution cancelling appellant's contract. Appellant then filed a petition in the Circuit Court seeking a peremptory writ of mandamus. From the Circuit Court's final judgment denying the writ, this appeal followed.
While the Tenure Commission referred to in Title 52, Sections 360, 361, Code of Alabama 1940, as amended (providing for appeal from the Board's decision) has not been established nor is there any provision in the present Tenure Law expressly giving the right of review by mandamus, the Circuit Court properly entertained the petition for mandamus seeking to compel the County Board of Education to reinstate the appellant and from the final judgment denying the writ, this case is properly here by appeal. Williams v. Board of Education of Lamar County, 263 Ala. 372, 82 So.2d 549.
Appellant insists, as we understand from his brief and argument, that the action of the Board of Education was (1) arbitrary and unjust in that it was taken for political and personal reasons; and (2) the action of the Board was arbitrary and unjust in that the existence of one or more of the statutory grounds for cancellation was unsupported by the evidence and the appellant was thereby denied due process of law.
The reasons given by the Board for cancelling appellant's contract are included in *834 those enumerated in § 358, Title 52, Code of Alabama 1940, as amended. The section reads:
"§ 358. Grounds for cancellation of employment contract.Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in the number of teaching positions, or other good and just cause; but cancellation may not be made for political or personal reasons." (Emphasis supplied.)
The trial court found that the action of the Board in cancelling appellant's contract was in compliance with the provisions of Chapter 13 of Title 52, Code of Alabama 1940, as amended, and that such action was not arbitrarily unjust and was not unjust.
We would like to say at the outset that this court has held that the Teachers' Tenure Law meets the requirements of due process. Board of Ed. of Choctaw County v. Kennedy, 256 Ala. 478, 55 So.2d 511.
In support of his contention that his contract was cancelled for political and personal reasons, appellant directs our attention to the fact that he ran for Superintendent of Education of Perry County in 1952; his opponent in the race was the present Superintendent of Education, L. G. Walker. Appellant argues that this was "when his troubles started; Mr. Walker wanted to get (the appellant) out of Perry County." The evidence shows, however, that the County Board of Education was, in May, 1954, requested to consider the cancellation of appellant's contract by the Trustees of the Perry County High School where the appellant was coach. Mr. Walker was not a member of the Board of Trustees. The action ultimately terminating the appellant's contract was unanimously taken by the members of the County Board of Education and while L. G. Walker as Superintendent of Education is Secretary and Executive Officer of said Board, he has no voting privilege on the Board. Tit. 52, § 69, Code of Alabama 1940. Nor is it insignificant that while the appellant ran for office in 1952, the cancellation of his contract occurred in 1954.
No evidence was presented of a personal difficulty or disagreement between the appellant and the County Board of Education or between the appellant and the Board of Trustees. In fact, the appellant testified in substance that he and the members of the County Board had been friendly throughout his time there and the appellant also stated that the members of the Board of Trustees had been kind to him.
It appears that one N. P. Benton served as Principal of Perry County High School from 1950 until 1953; upon his resignation, one Dr. J. S. Burbage was hired to replace him. Appellant insists that the Superintendent of Education, Walker, attempted to get Benton to suggest cancellation of appellant's contract and, being unsuccessful, Dr. Burbage was hired to "get rid of" the appellant. We are not impressed with this argument; Benton was not released by Walker nor indeed by anyone; Benton resigned. Walker was not, therefore, responsible for the leaving of the man who, according to the appellant, would not suggest cancellation of the appellant's contract. The evidence also shows that Dr. Burbage had never met Walker until he was interviewed for the job. On the hearing and as a witness for the appellant, Benton testified that one of the reasons he left was because of a disagreement with and an unpleasant relationship with the appellant.
In Williams v. Board of Education of Lamar County, 263 Ala. 372, 82 So.2d 549, 551, this court referred to the applicable rules for reviewing decisions of school boards rendered pursuant to Teachers' Tenure Acts as follows:
"`* * * Under a tenure act specifically enumerating the causes for which a teacher may be dismissed, and further providing that the decision of the school board shall be final, it has been held that the action of a board in dismissing a teacher for a cause enumerated in the statute as ground for dismissal is not subject to review by the *835 courts unless the board has acted outside its jurisdiction, in bad faith, arbitrarily, corruptly, fraudulently, or in gross abuse of its discretion. * * *'" 47 Am.Jur. Schools, § 141, p. 399.
We conclude that the evidence does not support appellant's contention that his contract was cancelled for political or personal reasons.
Appellant's second contention that the action of the Board was arbitrarily unjust, in that the statutory and specified grounds for cancellation are not supported by the evidence, will be treated in the light of the foregoing guiding rule.
While no attempt will be made to set out all the evidence which tends to support the grounds for cancellation, the following will suffice to show that the trial court did not commit error in holding that the action of the Board was not arbitrary, etc.
The appellant was charged with neglect of duty; the evidence, although conflicting, showed that on several occasions the appellant was absent from his classes and could not be found on the school campus; the class over which the appellant had charge could be found, but the appellant was not with them. On another occasion, and at a time when the schedule of classes called for appellant to be teaching a science class in a particular room, the class was located around the football field cleaning up the grandstands and doing the manual labor of getting the football field prepared for a game.
Other grounds which were assigned by the Board and which are specified in § 358, Tit. 52, Code of Alabama 1940, as amended, as proper grounds for the cancellation of the contract of a teacher were insubordination, incompetency and "other good and just cause." The latter term has not been defined by the Courts of Alabama. The Supreme Court of Indiana in Stiver v. State ex rel. Kent, 211 Ind. 380, 1 N.E.2d 1006, 1008, 7 N.E.2d 183, interpreted the term "other good and just cause" as used in the Teachers' Tenure Law, to include any cause which bears a reasonable relation to the teacher's fitness or capacity to discharge the duties of his position. That Court held that "`lack of co-operation'" is legal cause within the provision "`other good and just cause.'"
The Alabama statutory grounds for removal are almost identical with those in Indiana and were considered by the Indiana Court in Stiver v. State ex rel. Kent, supra. Indiana Acts 1927, c. 97.
This Court, in Faircloth v. Folmar, 252 Ala. 223, 40 So.2d 697, cited with approval decisions of the Indiana Court interpreting the meaning of terms in the Teachers' Tenure Law. In fact, the Stiver case, supra, was cited by this Court in Faircloth v. Folmar, supra.
The evidence showed that two principals of the high school resigned; in each case one of the reasons for the resignation was the unpleasant relationships with the appellant. On the occasion of the first meeting between Dr. Burbage, the principal, and the appellant, following the former's appointment as principal, the appellant informed Dr. Burbage that he, the appellant, was better qualified to be the principal. Appellant stated to the principal that if permission were not given to him to use the school bus on a certain occasion on the appellant's terms and conditions, then he, the appellant, would go out in the community, inform the people and secure from the community nonsupport for action of the principal. On another occasion the appellant, in a loud voice and within the hearing distance of appellant's classroom of students, asserted to the principal that he would like to argue about a school policy with the principal. The appellant criticized the management of the school by the principal to a member of the Board of Trustees; the appellant stated to said member of the Board that the principal was critical of him and the other members of the Board. It also appears that as a result of the appellant's statement to the students that the football team had to pay the band to get them to play, a disturbance or *836 dissension was caused among the students. Certain moneys were, in fact, transferred from the game receipts to the band fund.
Much of the foregoing evidence was in sharp conflict. We will not lengthen this opinion by a further recital of other evidence tending to support the grounds for cancellation, but the above suffice to show that the grounds for cancellation were sufficiently supported by the evidence within the aforementioned rule of review to require an affirmance of the judgment of the trial court.
Affirmed.
LAWSON, GOODWYN and MERRILL, JJ., concur.
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642 S.W.2d 27 (1982)
John David WRAY, Appellant,
v.
The STATE of Texas, Appellee.
No. 6-81-007-CR.
Court of Appeals of Texas, Texarkana.
September 21, 1982.
Rehearing Denied October 19, 1982.
Discretionary Review Granted February 16, 1983.
*28 Ian Inglis, Austin, for appellant.
Tony Hileman, Jefferson, for appellee.
HUTCHINSON, Justice.
Appellant, John David Wray, appeals his conviction for felony murder. Trial was to a jury which assessed his punishment at imprisonment for twenty years in the Texas Department of Corrections.
The indictment of Wray was based upon Tex.Penal Code Ann. § 19.02(a)(3) (Vernon 1974) which provides:
"(a) A person commits an offense if he:
. . . . .
(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual."
The indictment alleges that Wray on or about January 27, 1980:
"... did then and there intentionally and knowingly commit the felony offense of aggravated assault by then and there using a deadly weapon, to wit, a shotgun, to threaten another, Mary Ann Henderson, with imminent bodily injury by pointing said deadly weapon at Mary Ann Henderson and while in the course of and furtherance of the commission of said offense did then and there commit an act clearly dangerous to human life, to wit: did then and there shoot said deadly weapon at an individual, Maggie Beth Henderson, and did thereby cause the death of the said Maggie Beth Henderson."
Ground of error one asserts that the evidence is insufficient to sustain the conviction because there is no showing that Wray committed an aggravated assault against Mary Ann Henderson.
When the sufficiency of the evidence is challenged, the evidence must be *29 viewed in the light most favorable to the jury's verdict. Simmons v. State, 622 S.W.2d 111 (Tex.Cr.App.1981); Drager v. State, 548 S.W.2d 890 (Tex.Cr.App.1977); Clark v. State, 543 S.W.2d 125 (Tex.Cr.App. 1976). If there is any probative evidence on all elements necessary to establish an offense, which if believed by the jury would justify their finding, the jury verdict must be upheld. Vera v. State, 499 S.W.2d 168 (Tex.Cr.App.1973).
A person commits an assault if he intentionally or knowingly threatens another with imminent bodily injury. Tex.Penal Code Ann. § 22.01(a)(2) (Vernon Supp. 1982). If the person committing the assault uses a deadly weapon it is an aggravated assault. Id. Section 22.02(a)(4) (Vernon Supp.1974). A firearm is a deadly weapon. Id. Section 1.07(a)(11)(A) (Vernon 1974).
From a review of the evidence it appears that there was sufficient evidence of an assault. The jury could infer from the evidence that Mary Ann Henderson was in fearshe pushed the door to, she called for her male cousin, and was still in the room in the area around the door when Wray threatened to blow the door down. Giving the evidence the standard of review applicable, there was sufficient evidence of the alleged assault.
Wray also contends that there is a fatal variance between the indictment which alleges that he assaulted Mary Ann Henderson by pointing a shotgun at her and the evidence presented at the trial. Admittedly, there is no evidence that Wray took aim or pointed the gun at Mary Ann Henderson. The question thus presented is whether or not such variance was fatal to the conviction. An indictment is not rendered fatally defective because there is a variance between the allegations and the proof. Rather, the variance, if fatal, may render the evidence insufficient to sustain a conviction. Seiffert v. State, 501 S.W.2d 124 (Tex.Cr.App.1973); Webster v. State, 455 S.W.2d 264 (Tex.Cr.App.1970).
The purpose of the variance rule is to put an accused on notice as to what the charge against him consists of; to enable him to plead the same if he is put in jeopardy for the same alleged act; and to avoid surprise to him. Plessinger v. State, 536 S.W.2d 380 (Tex.Cr.App.1976); Martin v. State, 152 Tex.Cr.R. 261, 213 S.W.2d 548 (1948). In this case, Wray has not shown surprise or that he was misled to his prejudice and we therefore find that the variance was not fatal to the conviction.
Wray next contends there is insufficient evidence to sustain his conviction because there is no showing that he shot at Maggie Beth Henderson as alleged in the indictment and because this results in a fatal variance between the pleadings and the proof. These contentions are without merit. The State was required to prove only that while committing aggravated assault on Mary Ann Henderson, Wray committed an act clearly dangerous to human life that caused the death of Maggie Beth Henderson. The act "clearly dangerous" was the discharge of the gun. The police chief's testimony and testimony of Wray's language at the time of the firing of the gun negate any supposition that the weapon was discharged accidentally.
Relying upon the case of Garrett v. State, 573 S.W.2d 543 (Tex.Cr.App.1978), it is asserted that the conviction is unauthorized because it represents an improper use of the felony murder statute. The cited case is factually distinguishable and is not controlling here since the aggravated assault here was alleged to have been committed upon one person and the alleged murder committed upon a different person. Also, it has been stated that where the underlying felony is not a lesser included offense it is all right to apply the felony murder statute to aggravated assault. Ex Parte Easter, 615 S.W.2d 719 (Tex.Cr.App. 1981).
The final ground of error contends that the court in its charge to the jury erred by not requiring the jury to find that the aggravated assault was committed intentionally or knowingly. The charge in defining murder states that the underlying *30 offense must be committed intentionally, knowingly or recklessly. If this should now be thought to be insufficient, it cannot be presented here for review as no objection was made to the charge at trial. Brandon v. State, 599 S.W.2d 567 (Tex.Cr.App.1979); Peterson v. State, 508 S.W.2d 844 (Tex.Cr. App.1974); Tex.Code Crim.Pro.Ann. art. 36.19 (Vernon 1981).
The judgment is affirmed.
CORNELIUS, C.J., not participating.
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2015 IL 118230
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 118230)
JOSHUA A. McCORMICK, Appellee, v. ALEXUS N. ROBERTSON, Appellant.
Opinion filed March 19, 2015.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 At issue on this appeal is whether the circuit court of Champaign County erred
when it vacated as void a prior “judgment of parentage, custody [and] related
matters” and dismissed the father’s complaint with prejudice on the grounds that at
the time the cause of action was brought, the court lacked subject matter
jurisdiction to hear and decide it because the provisions of the Uniform
Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (750 ILCS 36/101
et seq. (West 2010)) had not been satisfied. On review, the appellate court vacated
the circuit court’s judgment, holding that compliance with the statute was not a
prerequisite to the court’s jurisdiction, that the circuit court had possessed subject
matter jurisdiction, and that the circuit court therefore erred when it subsequently
vacated its earlier ruling as void and dismissed the father’s complaint. 2014 IL App
(4th) 140208. We granted leave to appeal. Ill. S. Ct. R. 315(a) (eff. July 1, 2013).
For the reasons that follow, we now affirm the judgment of the appellate court.
¶2 BACKGROUND
¶3 Joshua A. McCormick and Alexus N. Robertson met in Missouri in 2008.
McCormick was and remains a resident of Illinois. Robertson was a resident of
Missouri. A brief relationship between the two resulted in a child, L.M., who was
born in Missouri on April 23, 2009.
¶4 In early 2010, McCormick filed a complaint in the circuit court of Champaign
County pursuant to the Illinois Parentage Act of 1984 (750 ILCS 45/1 et seq. (West
2010)) to obtain an order establishing the existence of a father-child relationship
with L.M. and to obtain joint custody of the child. McCormick chose Champaign
County as the venue because section 9(b) of the Parentage Act (750 ILCS 45/9(b)
(West 2010)) allows parentage actions to be brought “in the county in which any
party resides or is found,” and Champaign County is where McCormick lived.
¶5 Robertson was furnished with a copy of the complaint on January 15, 2010.
Shortly thereafter, she filed a written entry of appearance. That document, prepared
by McCormick’s attorney and signed by Robertson, stated that Robertson was
waiving “all manner of Summons and process” and submitting to the court’s
jurisdiction.
¶6 A hearing on McCormick’s complaint was held January 19, 2010. Both
McCormick and Robertson attended, with Robertson proceeding pro se. During the
hearing, the parties represented to the court that they had entered into a written joint
parenting agreement. Under the terms of the agreement, McCormick and Robertson
were to have joint custody of L.M., with Robertson serving as the primary
residential custodian. The agreement also contained a visitation schedule to be
implemented upon McCormick’s return from active duty military service. The
issue of child support was reserved.
¶7 The parties presented the joint agreement to the court for consideration. On
February 8, 2010, the court entered its “judgment of parentage, custody [and]
related matters.” That ruling found that the court had jurisdiction over the parties
and the subject matter, that McCormick had been domiciled in the state of Illinois
for at least 90 days preceding the date of the judgment, that L.M. had been born in
-2-
Missouri the previous year and that McCormick had voluntarily acknowledged that
he was the child’s father. The judgment also approved and incorporated by
reference the parties’ joint parenting agreement. One of the terms of that agreement
was that the parties had submitted themselves to “the jurisdiction of the State of
Illinois” and that their agreement would be “construed in accordance with the laws
of the State of Illinois” unless they otherwise agreed.
¶8 Following entry of the judgment, McCormick began a tour of duty with the
United States Marines Corps. He served in Okinawa, Japan, and Afghanistan,
eventually separating from active military duty on June 21, 2012. Upon leaving the
service, he was able to visit L.M. frequently. The visitations took place in Missouri,
where Robertson continued to reside.
¶9 Things changed in November 2012. That month, Robertson moved to Las
Vegas, Nevada, with her parents and took L.M. with her. McCormick believed that
Robertson’s actions violated the court’s judgment and the terms of the joint
parenting agreement incorporated therein and complained that Robertson had
effectively precluded him from visiting the child. Accordingly, in November 2013,
he returned to the circuit court of Champaign County to obtain relief. Specifically,
he filed a “motion to establish visitation” and asked the court to order Robertson to
show cause why she should not be held in contempt of court for violating the terms
of the court’s February 8, 2010, judgment.
¶ 10 A hearing was held by the court on December 3, 2013. During the course of that
hearing, the court indicated that it would not “intervene in a joint custody
situation,” nor would it enter an order to show cause. It advised counsel, however,
that it would be willing to entertain a motion to modify the custodial arrangements
and to schedule a prompt hearing on any such motion.
¶ 11 The following day, December 4, 2013, McCormick filed a motion to terminate
the joint parenting agreement, to terminate joint custody, and to award custody of
L.M. to him. The matter was set for hearing on December 17. Before the hearing
took place, however, Robertson initiated a separate legal action in the state of
Nevada. In that proceeding, filed December 11, 2013, Robertson asserted that the
February 8, 2010, judgment entered by the circuit court of Champaign County was
“void due to lack of UCCJEA [Uniform Child-Custody Jurisdiction and
Enforcement Act (750 ILCS 36/101 et seq. (West 2010))] subject matter
jurisdiction” and requested that the Nevada courts revisit the issues of paternity,
-3-
custody and support. By way of relief, Robertson’s complaint prayed for an order
confirming that McCormick was the child’s father; awarding Robertson and
McCormick joint custody, but with primary physical custody going to Robertson;
requiring McCormick to pay a specified portion of his gross income as child
support; and specifying that McCormick and Robertson were to split the cost of the
child’s medical and dental insurance.
¶ 12 In tandem with her new legal action in Nevada, Robertson filed a motion in the
circuit court of Champaign County asking that the court vacate its February 8,
2010, judgment and dismiss the Illinois proceedings for the same reason she asked
the Nevada court to declare the Illinois judgment void, namely, that under the
Uniform Child-Custody Jurisdiction and Enforcement Act (750 ILCS 36/101
et seq. (West 2010)), the Illinois court lacked and continued to lack subject matter
jurisdiction over the controversy. In the alternative, Robertson asserted that the
child’s home state was now Nevada, that Nevada was now a more appropriate
forum for the dispute and that under the UCCJEA, the Illinois proceeding should be
stayed until the Nevada and Illinois courts communicated with one another
regarding which state should hear the case from this point forward.
¶ 13 A hearing was convened by the Illinois court on December 17, 2013. At that
hearing, the court set a schedule for the parties to submit briefs regarding
applicability of the UCCJEA and the court’s subject matter jurisdiction. It also set
the matter for further hearing on March 3, 2014.
¶ 14 Prior to the March hearing date, and before any ruling on the UCCJEA question
had been made, the judges presiding over the Illinois and Nevada cases participated
in a telephone conference call pursuant to the statute. The parties and their lawyers
were present. At the conclusion of the conference, which took place on February 6,
2014, the Nevada judge entered an order in the Nevada proceeding holding, among
other things, that strict compliance with the provisions of the UCCJEA is necessary
in order to confer subject matter jurisdiction on a court in child custody matters;
those requirements were not satisfied with respect to Illinois; and the February 8,
2010, order entered by the circuit court in Illinois was therefore void. The court
further held that Nevada was now the child’s home state within the meaning of the
UCCJEA; that “Nevada shall handle all aspects of child custody”; that the
“parenting contract” between the parties was void; and that McCormick was
required to file an answer and counterclaim in the Nevada proceeding within 20
days and submit a financial disclosure form. The Nevada court also referred
-4-
McCormick and Robertson to family mediation and made provisions for
McCormick to visit the child in Las Vegas.
¶ 15 The following month, the Illinois judge presiding over the original action in
Champaign County entered a written order finding that McCormick’s paternity was
undisputed and agreeing with the Nevada court that the provisions of the UCCJEA
had not been satisfied with respect to Illinois, that Nevada should be considered to
be the child’s home state and that “Illinois neither had jurisdiction for custody and
visitation purposes nor does it currently have such jurisdiction, as to the home state
of the minor.” The order went on to declare: (1) that “the State of Illinois did not
have jurisdiction over the minor child, [L.M.], pursuant to the UCCJEA at the time
the [j]udgment was entered on February 8th, 2010”; (2) that “[b]ecause no
jurisdiction existed over the child pursuant to the UCCJEA, the Joint Parenting
Order entered on February 8[th], 2010 is void”; (3) “[t]hat the original Petition filed
by [McCormick] on January 15[th], 2010[,] is dismissed with prejudice”;
(4) “[t]hat the State of Nevada has exclusive and continuing jurisdiction over the
minor child pursuant to the UCCJEA of both jurisdictions”; and (5) that “all further
proceedings concerning these parties and subject matter will take place in [the case
pending in] Nevada.”
¶ 16 McCormick appealed, arguing that the Illinois court was wrong to vacate its
February 8, 2010, order as void for lack of subject matter jurisdiction based on the
provisions of the UCCJEA. The appellate court agreed with McCormick, holding
that with the exception of the power to review administrative matters, which is
conferred by statute, the subject matter jurisdiction of the Illinois courts is
determined exclusively by the Illinois Constitution. It is not defined by and cannot
be constrained through legislative enactment. Because article VI, section 9, of the
Illinois Constitution (Ill. Const. 1970, art. VI, § 9), grants circuit courts “original
jurisdiction of all justiciable matters except when the Supreme Court has original
and exclusive jurisdiction,” and because the claims raised by McCormick’s
complaint presented a justiciable matter, the appellate court concluded that the
circuit court had subject matter jurisdiction to consider those claims, regardless of
whether the criteria set forth in the UCCJEA were satisfied. The appellate court
therefore vacated the circuit court’s judgment declaring its February, 2010, order
void and dismissing McCormick’s complaint with prejudice. 2014 IL App (4th)
140208. The matter now comes before us for review following our decision to
allow a petition for leave to appeal filed by Robertson pursuant to Supreme Court
Rule 315(a) (Ill. S. Ct. R. 315(a) (eff. July 1, 2013)).
-5-
¶ 17 ANALYSIS
¶ 18 Whether a circuit court has subject matter jurisdiction to entertain a claim
presents a question of law which we review de novo. Crossroads Ford Truck Sales,
Inc. v. Sterling Truck Corp., 2011 IL 111611, ¶ 26.
¶ 19 The concept of subject matter jurisdiction, as it has existed since promulgation
of the Judicial Article of 1964, was set forth by our court in Belleville Toyota, Inc.
v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002). As we explained in that
case, and as the appellate court correctly recognized here, “ ‘subject matter
jurisdiction’ refers to the power of a court to hear and determine cases of the
general class to which the proceeding in question belongs.” With the exception of
the circuit court’s power to review administrative action, which is conferred by
statute, a circuit court’s subject matter jurisdiction is conferred entirely by our state
constitution. Id. at 334.
¶ 20 Under section 9 of article VI of the Illinois Constitution, the jurisdiction of
circuit courts extends to all “justiciable matters except when the Supreme Court has
original and exclusive jurisdiction relating to redistricting of the General Assembly
and to the ability of the Governor to serve or resume office.” Ill. Const. 1970, art.
VI, § 9. So long as a matter brought before the circuit court is justiciable and does
not fall within the original and exclusive jurisdiction of our court, the circuit court
has subject matter jurisdiction to consider it. See In re M.W., 232 Ill. 2d 408, 424
(2009).
¶ 21 The Illinois Constitution does not define the term “justiciable matters.”
Whether a justiciable matter is presented must be determined by the courts on a
case-by-case basis. Ferguson v. Patton, 2013 IL 112488, ¶ 22. The courts have held
that the overarching purpose of the justiciability requirement is to reserve the
exercise of judicial authority for situations where an actual controversy exists. Id.
¶ 23. Consistent with this view, a matter is considered justiciable when it presents
“a controversy appropriate for review by the court, in that it is definite and
concrete, as opposed to hypothetical or moot, touching upon the legal relations of
parties having adverse legal interests.” Belleville Toyota, 199 Ill. 2d at 335.
“Actual” in this context:
“ ‘does not mean that a wrong must have been committed and injury inflicted.
Rather, it requires a showing that the underlying facts and issues of the case are
not moot or premature, so as to require the court to pass judgment on mere
-6-
abstract propositions of law, render an advisory opinion, or give legal advice as
to future events. [Citations.] The case must, therefore, present a concrete
dispute admitting of an immediate and definitive determination of the parties’
rights, the resolution of which will aid in the termination of the controversy or
some part thereof. [Citations.]’ (Internal quotation marks omitted.)” Ferguson
v. Patton, 2013 IL 112488, ¶ 23 (quoting National Marine, Inc. v. Illinois
Environmental Protection Agency, 159 Ill. 2d 381, 390 (1994)).
¶ 22 Compliance with statutory prerequisites involves an altogether different set of
values. Adherence to statutory requirements is vital to the rule of law, and it is
beyond doubt that actions taken by judges in contravention of such requirements
are subject to challenge when raised in an appropriate way at an appropriate time.
As former Chief Justice Miller aptly stated, “the constitutional source of a circuit
court’s jurisdiction does not carry with it a license to disregard the language of a
statute.” In re M.M., 156 Ill. 2d 53, 75 (1993) (Miller, C.J., concurring, joined by
Bilandic, J.). Except when the proceeding is one for administrative review and
involves the exercise of special statutory jurisdiction (see, e.g., People ex rel.
Madigan v. Illinois Commerce Comm’n, 2014 IL 116642, ¶¶ 9-10), however, the
fact that the litigants or the court may have deviated from requirements established
by the legislature does not operate to divest the court of jurisdiction. See Belleville
Toyota, 199 Ill. 2d at 340-41; In re Luis R., 239 Ill. 2d 295, 300-02 (2010).
¶ 23 Similarly, while the General Assembly may create new justiciable matters
through legislation that create rights or duties that have no counterpart in common
law or at equity, our court has made clear that the establishment of a new justiciable
matter neither extends nor constrains the court’s jurisdiction. It could not, for
except in the area of administrative review, the jurisdiction of the circuit court
flows from the constitution. People ex rel. Graf v. Village of Lake Bluff, 206 Ill. 2d
541, 553 (2003). So long as a claim meets the requirements for justiciability, it will
be sufficient to invoke the court’s subject matter jurisdiction, even if the claim is
defectively stated. Belleville Toyota, 199 Ill. 2d at 340. The only consideration is
whether it falls within the general class of cases that the court has the inherent
power to hear and determine. If it does, then subject matter jurisdiction is present.
In re Luis R., 239 Ill. 2d at 301; In re M.W., 232 Ill. 2d at 425-26.
¶ 24 The jurisdictional challenge raised by Robertson in this case is premised on
section 201 of the UCCJEA. That statute provides:
-7-
“(a) Except as otherwise provided in Section 204, a court of this State has
jurisdiction to make an initial child-custody determination only if:
(1) this State is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the child within
six months before the commencement of the proceeding and the child is
absent from this State but a parent or person acting as a parent continues to
live in this State;
(2) a court of another state does not have jurisdiction under paragraph
(1), or a court of the home state of the child has declined to exercise
jurisdiction on the ground that this State is the more appropriate forum
under Section 207 or 208, and:
(A) the child and the child’s parents, or the child and at least one
parent or a person acting as a parent, have a significant connection with
this State other than mere physical presence; and
(B) substantial evidence is available in this State concerning the
child’s care, protection, training, and personal relationships;
(3) all courts having jurisdiction under paragraph (1) or (2) have
declined to exercise jurisdiction on the ground that a court of this State is
the more appropriate forum to determine the custody of the child under
Section 207 or 208; or
(4) no court of any other state would have jurisdiction under the criteria
specified in paragraph (1), (2), or (3).
(b) Subsection (a) is the exclusive jurisdictional basis for making a
child-custody determination by a court of this State.
(c) Physical presence of, or personal jurisdiction over, a party or a child is
not necessary or sufficient to make a child-custody determination.” 750 ILCS
36/201 (West 2010).
¶ 25 As a preliminary matter, we note that this statute, by its terms, applies only to
proceedings involving the initial determination of child custody. Although child
custody was certainly an important component of the proceeding brought by
McCormick in the circuit court of Champaign County, equally important was
-8-
McCormick’s desire to obtain legal confirmation that he was L.M.’s father
pursuant to the Parentage Act. Champaign County was unquestionably an
appropriate forum for that determination. No possible basis exists for challenging
the authority of the circuit court of Champaign County to rule on that aspect of the
case. To the extent that the court’s subsequent order invalidated its initial parentage
determination and dismissed McCormick’s parentage claim, it was clearly
erroneous, and the appellate court properly set it aside.
¶ 26 The appellate court also acted properly when it set aside the circuit court’s
judgment invalidating, on voidness grounds, its prior ruling regarding child custody
and incorporating the parties’ joint parenting agreement. The circuit court’s
conclusion that the earlier order was void was based exclusively on its conclusion
that McCormick’s claim did not meet the requirements specified by section 201 of
the UCCJEA (750 ILCS 36/201 (West 2010)). The appellate court did not dispute
that McCormick’s claim failed to meet the statutory criteria with respect to initial
child-custody determinations. As it properly recognized, however, the circuit
court’s decision to proceed notwithstanding those deficiencies may have been
error, but it was not beyond the circuit court’s jurisdiction.
¶ 27 To be sure, section 201 does speaks in terms of “jurisdiction” when describing
the conditions which must be met before an Illinois court will consider and decide
the question of initial child custody. As used in the statute, however, “jurisdiction”
must be understood as simply a procedural limit on when the court may hear initial
custody matters, not a precondition to the exercise of the court’s inherent authority.
It could not be more, for as we have held, that authority emanates solely from
article VI, section 9, of our constitution (Ill. Const. 1970, art. VI, § 9). See In re
Luis R., 239 Ill. 2d at 304; Siegel v. Siegel, 84 Ill. 2d 212, 221 (1981).
¶ 28 The determination of who should have custody of L.M. clearly presented a
justiciable matter. It therefore fell within the subject matter jurisdiction of the
circuit court of Champaign County. Once a court has subject matter jurisdiction
over a matter, its judgment will not be rendered void nor will it lose jurisdiction
merely because of an error or impropriety in its determination of the facts or
application of the law. In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998);
McCarthy v. Pointer, 2013 IL App (1st) 121688, ¶ 13. Accordingly, regardless of
whether the circuit court should have proceeded to consider the custody issue on
the merits in this case, it had subject matter jurisdiction to entertain McCormick’s
complaint and to enter its February 8, 2010, “judgment of parentage, custody [and]
-9-
related matters.” The circuit court therefore erred in vacating that order as void for
lack of subject matter jurisdiction four years later and retroactively dismissing
McCormick’s complaint with prejudice.
¶ 29 CONCLUSION
¶ 30 For the foregoing reasons, we agree with the appellate court that the circuit
court erred when it vacated its February 8, 2010, order on the grounds that it was
void and dismissed McCormick’s January 15, 2010, complaint with prejudice. The
judgment of the appellate court is therefore affirmed.
¶ 31 Affirmed.
- 10 -
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125 Cal.Rptr.2d 303 (2002)
102 Cal.App.4th 218
Andrew MUCKLE, Petitioner,
v.
The SUPERIOR COURT of San Diego County, Respondent,
Cassandra Burgess-Muckle, Real Party in Interest.
No. D040086.
Court of Appeal, Fourth District, Division One.
September 19, 2002.
*305 Stephen Temko and Barbara Goldberg for Petitioner.
No appearance for Respondent.
Richard A. Thomas & Associates, Richard A. Thomas, Jill M. Church, Vista; and Karyn Massie for Real Party in Interest.
*304 HUFFMAN, J.
Andrew Muckle (Andrew) petitions for a writ of mandate commanding respondent court to vacate its order of April 4, 2002, denying his motion to quash service of summons in the action commenced by real party in interest Cassandra Burgess-Muckle (Cassandra)[1] for dissolution of their 11-year marriage, spousal support and property division, or dismiss the action on the ground of inconvenient forum, and to enter a new and different order granting the motion.[2] The question raised is whether, consistent with the due process clause of the United States Constitution, California can exercise personal jurisdiction over Andrew, who has been domiciled in Georgia since December 1998. Based on the record presented, we answer the question in the negative and issue a writ of mandate to prevent the court from exercising such jurisdiction.
BACKGROUND AND PROCEDURE
Andrew and Cassandra met in Georgia, where Andrew lived and worked and Cassandra visited her mother. When Cassandra's mother died in 1988, she moved into her mother's house in Georgia, where she resided continuously until marrying Andrew there in 1989. During their 11-year marriage they lived at various times in Georgia and California, separating and reconciling repeatedly. The couple had no children during their marriage.
*306 In July 1998, while the parties were living in California, Andrew purchased a home in Georgia, taking title to it in his name alone. In December 1998, Andrew returned to Georgia to live in the house. Shortly thereafter Cassandra followed, eventually moving in with Andrew. In the spring of 2000, Cassandra returned to California and lived in a trailer Andrew bought for her. At some point, she sold the trailer, keeping the proceeds, and filed her petition for dissolution.
On about August 21, 2001, Cassandra served dissolution papers on Andrew in Georgia by substituted service. In those papers Cassandra claimed as community property both the home Andrew had bought in Georgia while living in California in 1998 and another house in Georgia that had been purchased in 1985 with title in Andrew's name and that of his son Phillip Muckle.
On March 1, 2002, Andrew made a special appearance to contest jurisdiction (Code Civ. Proa, § 418.10; Cal. Rules of Court, rule 1234), moving to quash service of summons for lack of personal jurisdiction or, alternatively, to stay or dismiss the action on the ground of inconvenient forum. He argued he had insufficient minimum contacts with California for the trial court to establish personal jurisdiction over him, and, alternatively if such were found, the court should dismiss the action on the ground of forum non conveniens. (Code Civ. Proa, § 410.30.) In his supporting declaration, Andrew noted he was 65 years old, had lived in Georgia continuously since December 1998, had worked and paid taxes in Georgia, had a Georgia driver's license, was registered to vote in Georgia, had no personal or real property in California, and asserted he could not afford to travel to California to "fight this litigation [or] transport witnesses to verify [his] rights and interests in the houses [he] own[ed] in Georgia."
Cassandra countered Andrew's position, declaring he had been a resident of California from January 1998 through December 1998, that the subject property had been bought in Georgia in July 1998, thus making it community property under Family Code section 760,[3] that Andrew had refused to submit to the court's jurisdiction to determine her community property interests in such property, and that she was "too ill to travel to Georgia to litigate this matter."
At the March 11, 2002 hearing on the matter, Cassandra's counsel conceded there were not minimum contacts for personal jurisdiction over Andrew for spousal support purposes, but argued the trial court did not need personal, only "in rem," jurisdiction over him to divide his home in Georgia because it was purchased during the marriage while he was living in California. The court took the matter under submission on the agreed upon issue of whether the court had jurisdiction to determine the rights of the parties in the Georgia property that was purchased while the parties resided in California.[4] That same date, Andrew filed supplemental *307 points and authorities supporting his motion to quash, arguing the same "minimum contacts" standard necessary for personal jurisdiction over a person was also required to exercise in rem or quasi in rem jurisdiction when property rights were asserted.[5]
On March 14, 2002, Cassandra filed points and authorities in opposition to Andrew's motion to quash, arguing Andrew had maintained sufficient minimum contacts with California due to his "purposeful availment" of privileges of conducting activities in California by residing and working in California for over 10 years before returning to Georgia in 1998, by filing and receiving $150,000 on a worker's compensation claim against his Escondido employer, by using $70,000 of those funds for his down payment on the property he purchased in Georgia while the parties were married and lived in California, and by traveling from Georgia to California on numerous occasions. Cassandra asserted it was reasonable to exert jurisdiction over Andrew because of his above affirmative conduct and the facts he was in "excellent health," while she was "suffering from an attack on her auto-immune system which makes walking for her more difficult each day." She stated she had been a resident of California for over 10 years and that California had a strong public policy of equal division of community property for which she did not have an alternative forum to litigate her interests because Georgia is not a community property state. She further asserted that "`progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. [Citation.]'" Cassandra filed no declaration or evidence in support of the factual allegations contained in her papers filed after the matter was taken under submission.
On April 4, 2002, the trial court issued its order on the matter, "[a]fter considering the Briefing filed by the parties, both before and after the hearing and entertaining oral argument," as follows:
"1. The Court denies [Andrew's] companion Motion to Quash Service of Process. The factual basis for this ruling is that the parties had an 11-year marriage with no children. They met and married in Georgia and lived in both Georgia and California. The parties lived in California until at least December of 1998. While in California, [Andrew] rented an apartment in Vista from January, 1998 through December of 1998. He purchased property in Georgia while he was still a resident in California. He was a California resident for ten (10) years prior to December of 1998. He filed a worker's compensation claim against an Escondido employer while a resident of California. He received $150,000 from the worker's compensation claim while a resident in California and used $70,000 of these funds to purchase property in Georgia. [H] 2. Under these circumstances, the Court believes that [Andrew] has `minimum contact with a forum state, such that maintenance of the suit does not offend traditional notions of fair play and substantial justice." [](]In re Marriage of Lontos (1979) 89 Cal.App.3d 61, 152 Cal.Rptr. 271 [Lontos], citing International Shoe v. Washington (1945) 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95[ (International Shoe).) ]
The court also noted authority for its ability to adjudicate the rights of the parties to the property in Georgia, and stated "[t]he pivotal factor[s] for the Court in this *308 matter in determining minimum contacts are the fact that [Andrew] lived in California and availed himself of the protections offered by this forum during his period of residency, including participation in the California Worker's Compensation program."
Andrew thereafter filed the current petition for writ of mandate, challenging the trial court's ruling denying his motion to quash service of summons. (Code Civ. Proa, § 418.10.) We issued an order to show cause why the relief requested should not be granted and set the matter for oral argument.
DISCUSSION
In general, "jurisdiction" to adjudicate matters in a marital case involves three requirements: 1) that the court have authority to adjudicate the specific matter raised by the pleadings (subject matter jurisdiction) (see Fam.Code, § 2010); 2) that the court have "in rem" jurisdiction over the marital "res" to terminate marital status ("in rem" jurisdiction) (see Marriage of Zierenberg (1992) 11 Cal.App.4th 1436, 1444-1445, 16 Cal.Rptr.2d 238); and 3) that the court have jurisdiction over the parties to adjudicate personal rights and obligations (personal jurisdiction). (See Code Civ. Proa, § 410.10; Burnham v. Superior Court (1990) 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (Burnham); In re Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419, 1425, 46 Cal. Rptr.2d 558 (Fitzgerald & King).)
Once the court has met these jurisdictional requirements it may determine not only the marital status, but also the personal rights and obligations of the parties, including custody and support of minor children of the marriage, spousal support, settlement and division of the parties' property rights, and the award of costs and attorney fees. (Fam.Code, § 2010.) With regard to property rights, the court generally looks to the domicile of the parties at the time the property was acquired to characterize it as separate or community for the purposes of division upon a dissolution of the marital status. (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 505, 286 Cal. Rptr. 714.) "[M]arital interests in money and property acquired during a marriage are governed by the law of the domicile at the time of their acquisition, even when such money and property is used to purchase real property in another state. [Citations.]" (Ibid.) California law provides that "[e]xcept as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." (Fam.Code, § 760.) It is further settled California law that "`a court having jurisdiction of the parties [in a dissolution action] may adjudicate their rights to land located in another state and that the adjudication is res judicata and is to be accorded full faith and credit in the situs state regardless of whether the decree orders execution of a conveyance....' [Citations.]" (In re Marriage of Economou (1990) 224 Cal.App.3d 1466, 1479-1480, 274 Cal.Rptr. 473; see also Fam.Code, § 2660.)
Here, the parties do not contest that the California trial court has subject matter jurisdiction and in rem jurisdiction to adjudicate the status of their marriage due to Cassandra's domicile in California at the time of filing her petition for dissolution. (See Marriage of Gray (1988) 204 Cal. App.3d 1239, 1250, 251 Cal.Rptr. 846.) Rather the parties conflict only on whether the trial court can exercise personal jurisdiction over Andrew who is now a resident and domiciled in Georgia for purposes of *309 adjudicating his rights in real property located in Georgia and for spousal support.
As the court in Fitzgerald & King noted, "[d]ue process permits the exercise of personal jurisdiction over a nonresident defendant in the following four situations: [[6]] (1) where the defendant is domiciled in the forum state when the lawsuit is commenced [citation]; (2) where the defendant is personally served with process while he or she is physically present in the forum state [citation]; (3) where the defendant consents to jurisdiction [citations]; and (4) where the defendant has sufficient `minimum contacts' with the forum state, such that the exercise of jurisdiction would not offend `"traditional notions of fair play and substantial justice"` [citation]." (Fitzgerald & King, supra, 39 Cal.App.4th at pp. 1425-1426, 46 Cal.Rptr.2d 558.) Because Andrew is not domiciled in California, was not personally served with process while present in California, and did not consent to jurisdiction, the trial court could only support its denial of his motion to quash the summons served on him in Georgia by predicating personal jurisdiction to determine any property rights of the marriage for division on Andrew having "minimum contacts" with California.
In determining whether such "minimum contacts" exist for a valid assertion of jurisdiction over a nonconsenting nonresident who is not present in the forum, a court must look at "`the quality and nature of [the nonresident's] activity' in relation to the forum [to determine whether it] renders such jurisdiction consistent with `"`traditional notions of fair play and substantial justice."`" (Burnham, supra, 495 U.S. at p. 618, 110 S.Ct. 2105; International Shoe, supra, 326 U.S. at pp. 316, 319, 66 S.Ct. 154.) Although the existence of sufficient "minimum contacts" depends on the facts of each case, the ultimate determination generally rests on some conduct by which the nonresident has purposefully availed himself of the privilege of conducting activities within the forum state to invoke its benefits and protections, and a sufficient relationship or nexus between the nonresident and the forum state such that it is reasonable and fair to require the nonresident to appear locally to conduct a defense. (Kulko v. Superior Court of California (1978) 436 U.S. 84, 93-94, 96-97, 98 S.Ct. 1690, 56 L.Ed.2d 132 (Kulko); Khan v. Superior Court (1988) 204 Cal.App.3d 1168, 1175-1176, 251 Cal.Rptr. 815 (Khan).) This latter "fairness" finding requires a balancing of the burden or inconvenience to the nonresident against the resident plaintiffs or petitioner's interest in obtaining effective relief, and the state's interest in adjudicating the particular dispute, which ultimately turns on the nature and quality of the nonresident's forum-related activity. (Kulko, supra, 436 U.S. at p. 94, 98 S.Ct. 1690; see also Khan, supra, 204 Cal. App.3d at pp. 1179-1180, 251 Cal.Rptr. 815.)
Where as here, in an initial family law proceeding for marriage dissolution, a nonresident moves to quash for defective personal jurisdiction on grounds he lacks minimum contacts with the forum state, the court looks at the contacts at the time of the proceeding and not on whether past minimum contacts might suffice. (Tarvin v. Tarvin (1986) 187 Cal.App.3d 56, 60-61, 232 Cal.Rptr. 13.) When the contacts are "substantial, continuous and systematic," general personal jurisdiction *310 may be exercised as to any cause of action, even one unrelated to the nonresident's activities within the forum state. (Perkins v. Benguet Consolidated Mining Co. (1952) 342 U.S. 437, 447-448, 72 S.Ct. 413, 96 L.Ed. 485.) Even when the nonresident's contacts are not "substantial, continuous and systematic" forum-state acts, a court may still exercise "specific" personal jurisdiction limited to claims arising out of the forum-related acts. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472-473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (Burger King).)
The test for whether a court may exercise "specific" personal jurisdiction requires that the nonresident purposefully directed his acts to the forum state or otherwise purposefully established contacts with the forum state, that the cause of action be related to or arise or result from the acts or contacts in the forum, and that the exercise of personal jurisdiction by the forum would be reasonable. (Burger King, supra, 471 U.S. at pp. 476-478, 105 S.Ct. 2174; see Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446-48, 58 Cal.Rptr.2d 899, 926 P.2d 1085 (Vons); In re Marriage of Hattis (1987) 196 Cal.App.3d 1162, 1173, 242 Cal.Rptr. 410 (Hattis).)
As the court in Vons, stated:
"When a [nonresident] moves to quash service of process on jurisdictional grounds, the plaintiff [or petitioner] has the initial burden of demonstrating facts justifying the exercise of jurisdiction. [Citation.] Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable. [Citation.] When there is conflicting evidence, the trial court's factual determinations are not disturbed on appeal if supported by substantial evidence. [Citation.] When no conflict in the evidence exists, however, the question of jurisdiction is purely one of law and the reviewing court engages in an independent review of the record. [Citation.]" (Vons, supra, 14 Cal.4th at p. 449, 58 Cal.Rptr.2d 899, 926 P.2d 1085.)
In this case, Cassandra had the initial burden of establishing facts to justify the trial court's exercise of personal jurisdiction over Andrew with regard to determining the rights of the parties in the Georgia property admittedly purchased while Andrew lived in California during his marriage to Cassandra. At the time the matter was taken under submission, those were the only facts supported by evidence before the court concerning Andrew's contacts with the state of California other than the length of the marriage, that it was entered into in Georgia, that there were no children of the marriage, that the parties lived at various times in Georgia and California, separating and reconciling repeatedly during the marriage, that Andrew left California in December 1998, and that Cassandra followed him to Georgia to live with him shortly thereafter. Although there was evidence that sometime after Cassandra left Andrew in Georgia to return to California to live in the spring of 2000, he bought a trailer in California for her, there were no underlying facts established as to whether Andrew came to California at that time or merely gave Cassandra the money to use to purchase the trailer. Regardless, evidence showed that the trailer had been sold before Cassandra filed her schedule of assets and debts in the dissolution action she filed in California. Thus, at the time of the motion to quash hearing, there was no evidence of any contacts by Andrew with California at the time the dissolution action was filed by Cassandra; only past contacts with California by Andrew were shown.
*311 The trial court, however, took into consideration unsubstantiated "alleged facts" in Cassandra's points and authorities in opposition to the motion filed after the matter was taken under submission regarding Andrew's additional past and arguably continuing contacts with California to support its denial of the motion. In addition to the court considering new material after an issue was taken under submission, there was no evidence in the record to support the assertions by Cassandra that Andrew lived and worked in California for 10 years before he departed for Georgia in December 1998, or that he received and then used money from the settlement of a California worker's compensation claim to purchase the property he bought in Georgia in July 1998. The trial court relied heavily on such facts to find that Andrew had so availed himself of the benefits of this state in the past that traditional notions of fair play and substantial justice would not be offended by making him appear in California to defend his rights to the property in Georgia. On the paucity of evidence in this record, we cannot find the trial court's finding of minimum contacts for personal jurisdiction over Andrew supported by substantial evidence. Nor does our independent review of the matter render a different conclusion.
Unlike the situation in Lontos, supra, 89 Cal.App.3d 61, 152 Cal.Rptr. 271, which the trial court cited as authority for finding personal jurisdiction, the parties did not meet or marry in California, they did not have any children in California, they did not live in California at the time of the separation, and there is no evidence Andrew abandoned Cassandra or failed to provide for her after the separation. In Lontos, the parties had met and married in California; one of their three children was born in California; they had lived continuously in California for six years before they moved to New Mexico where husband, who was in the United States Marine Corps, had been transferred. (Lontos, supra, 89 Cal.App.3d at pp. 64-65, 152 Cal.Rptr. 271.) The husband then abandoned his wife and three children, leaving them $10 for support; and wife and children returned to San Diego and obtained welfare assistance when husband refused to pay court-ordered support. (Ibid.) Based on these facts, the court in Lontos found that husband's contacts in California together with his abandonment of the family, which constituted "proof of a purposeful causing of an effect creating a substantial contact in California," were "of such quality and nature that it [was] `reasonable' and `fair' to require him to conduct his defense in California." (Id. at pp. 71-72, 152 Cal.Rptr. 271.)
Although "California has a manifest interest in providing effective means of redress for its residents" (McGee v. International Life Ins. Co. (1957) 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223), we do not believe such interest coupled with the mere fact of past residency, during which a party while married purchased out of state property, is sufficient contacts of such nature and quality to entertain even "special" personal jurisdiction over Andrew consistent with "traditional notions of fair play and substantial Justice." (Burnham, supra, 495 U.S. at p. 618, 110 S.Ct. 2105.) Andrew's contacts with California since 1998 have not been "substantial, continuous and systematic," and there is no evidence he purposefully directed any activities since that time in or toward California other than to provide some shelter for Cassandra.
However, even if we were to find that Cassandra had met her burden of showing Andrew had sufficient minimum contacts at the time she filed the dissolution action, we would find the exercise of personal *312 jurisdiction over Andrew on this record unreasonable. Although Cassandra is purportedly of ill health, there is no evidence she is a burden on the state (as in Lontos, supra, 89 Cal.App.3d 61, 152 Cal.Rptr. 271 or Hattis, supra, 196 Cal.App.3d 1162, 242 Cal.Rptr. 410) or that she does not have financial resources to pursue her action on the division of the property and spousal support in Georgia after obtaining a dissolution of the marital status in California. As she noted in her declaration, "`progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. [Citation.]'"
On the other hand, Andrew has submitted evidence to show he has been domiciled and has worked in Georgia since December 1998, has paid taxes there, has a Georgia driver's license, and only owns property in Georgiathereby taking advantage of the benefits of that state. There is also evidence that the parties met and married in Georgia and lived in Georgia almost two years before they separated and Cassandra returned to California in 2000. Although Andrew does not mention anything about his health, he does say he is 65 years old and without much wealth, making it a financial burden to travel to California to "fight this litigation," which would entail transporting witnesses from Georgia to verify his rights and interests in the houses he owns in Georgia. Balancing these factors against those in favor of Cassandra due to her current residency in California and the state's connection to the parties marriage via her uncontested domicile here, and the fact any potential clash in the marital property laws of Georgia and California may be accommodated through application of Georgia's choice-of-law rules, we conclude it would be unreasonable or unfair to require Andrew to come to California to litigate issues of spousal support and property rights. Accordingly, a writ of mandate is proper to prevent the trial court from asserting personal jurisdiction over Andrew for purposes of determining such rights and support. (Code Civ. Proa, § 418.10, subd. (c).)
Having determined that the trial court erred in denying Andrew's motion to quash on the evidence properly before it, we need not address Andrew's additional arguments concerning judicial estoppel and forum non conveniens.
DISPOSITION
Let a writ of mandate issue directing the Superior Court of San Diego to vacate its order of April 4, 2002, denying Andrew's motion to quash service of summons in the dissolution action and to enter a new and different order granting the motion and quashing the service of summons in such action. Costs are awarded to Andrew.
WE CONCUR: BENKE, Acting P.J., and McCONNELL, J.
NOTES
[1] We refer to the parties by their first names, not out of familiarity or disrespect, but for ease of reference and because such is the preferred practice in family law cases. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1, 274 Cal.Rptr. 911.)
[2] Andrew also requests costs incurred in this proceeding and any other relief this court deems just and proper.
[3] Family Code section 760 states that, "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property."
[4] Although the court found there was no showing of due diligence at the time of the hearing to find that Andrew was properly served in Georgia by substituted service, it impliedly treated the matter as waived when Andrew's counsel stated he preferred the court make an immediate decision on the issue of minimum contacts regarding the Georgia property rather than continue the matter so Cassandra could show substituted service was proper.
[5] It is unclear from this record whether Andrew's supplemental authorities were received by the court before, during or after the hearing on the matter.
[6] "California's `long-arm' statute, Code of Civil Procedure section 410.10, empowers California courts to exercise personal jurisdiction to the full extent permitted by due process. It provides: `A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.'"
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962 A.2d 825 (2009)
112 Conn.App. 262
Nicholas J. BYRNE, Jr.
v.
Martin B. BURKE et al.
No. 29237.
Appellate Court of Connecticut.
Argued September 25, 2008.
Decided January 20, 2009.
*828 Nicholas J. Byrne, Jr., pro se, the appellant (plaintiff).
Dawn E. Alderucci, with whom, on the brief, were Kerry R. Callahan, David R. Makarewicz and Daniel B. Fitzgerald, Hartford, for the appellee (named defendant).
David P. Atkins, with whom, on the brief, was Marcy Tench Stovall, New Haven, for the appellee (defendant Mark R. Spurling).
DiPENTIMA, HARPER and BERDON, Js.
HARPER, J.
The plaintiff, Nicholas J. Byrne, Jr., appeals from the summary judgment rendered by the trial court in favor of the defendants Martin B. Burke and Mark R. Spurling.[1] On appeal, the plaintiff claims that the court improperly concluded, as a matter of law, (1) on the civil conspiracy count against Burke, that the plaintiff's cause of action was time barred; (2) on the breach of fiduciary duty count, that the plaintiff did not establish that Burke owed him a fiduciary duty; (3) on the civil conspiracy count against Burke, that Burke's deposition testimony in a probate hearing and testimony during a court hearing were not inconsistent; (4) on the vexatious litigation count, that the Probate Court's ruling, in favor of Spurling's client, is conclusive evidence of probable cause to initiate probate proceedings; (5) on the vexatious litigation count, that the plaintiff did not prove a claim for vexatious litigation; and (6) on the civil conspiracy count against Spurling, that the plaintiff's conspiracy count was based on the same facts that the court relied on to dismiss the vexatious litigation count. We disagree with the plaintiff and, accordingly, affirm the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of the plaintiff's claims. The court found the following facts to be undisputed. "In April, 1997, Burke, who is an attorney, prepared a will for the plaintiff's father, Nicholas Byrne, Sr., which the plaintiff's father signed in Burke's office on April 7, 1997 [1997 will]. The 1997 will left the testator's residence in equal shares to his two sons and left his residuary estate in equal shares to his daughters. The 1997 will specifically excluded one of the testator's daughters, Monica Banta. The will appointed the plaintiff executor and was witnessed by a paralegal employed by Burke and an employee of another tenant of the building where Burke's law office was located.
"On October 1, 2000, the testator died, and on November 10, 2000, the plaintiff initiated the probate process by submitting the 1997 will and a prior 1978 will of his parents to the Ellington district Probate Court.... Banta challenged the 1997 will on the grounds that her father lacked testamentary capacity when he executed the 1997 will and was under the undue *829 influence of the plaintiff. She retained ... Spurling to represent her. Spurling and Burke both had offices at 130 Union Street in Vernon. While the plaintiff alleges that Spurling and Burke had a `de facto partnership,' Burke has submitted an affidavit in which he states that while he and Spurling share office space at 130 Union Street, Spurling has his own separate law practice, and they have never been associates or partners in their legal practices....
"On May 4, 2001, Burke was deposed in the probate proceeding, and his deposition was used in lieu of his live testimony at a May 9, 2001 hearing before probate Judge James Purnell III. After the hearing, [in an oral ruling] Judge Purnell rejected the 1997 will as the product of undue influence. Judge Purnell issued a written decision on June 25, 2001, holding that the 1997 will did not revoke any prior wills or codicils. On January 16, 2002, Judge Purnell issued another written decision in which he approved and admitted to probate a September 24, 1996 hand-written will in which the testator appointed ... Banta [executrix] and directed that his estate be divided equally among all his children. The plaintiff appealed [from] the Probate Court decisions to the Superior Court, where a de novo trial was conducted by Hon. Lawrence C. Klaczak, judge trial referee. [Burke submitted live testimony to the Superior Court on November 12, 2003, at which he disclosed a January, 1997 letter that Burke addressed to the testator reflecting the testator's contemplation to exclude Banta from his will.] In a ... memorandum of decision filed November 20, 2003, Judge Klaczak reversed the Probate Court decree, finding [that] the September 24, 1996 will was invalid and [that] the ... 1997 will was valid." (Citation omitted.)
In the present appeal, the plaintiff, appearing pro se, filed a four count complaint directed against Burke and Spurling.[2] The complaint, dated November 16, 2006, concerned the defendants' actions while the plaintiff was defending the 1997 will before the Probate Court. In his amended complaint, filed on December 26, 2006, the plaintiff alleged in count one, a claim of vexatious litigation against Spurling, in count two, a claim of conspiracy against both Spurling and Burke, and in counts three and four, a claim of breach of fiduciary duty and intentional infliction of emotional distress, respectively, against Burke.
Thereafter, each defendant filed a motion for summary judgment. Spurling argued that he was entitled to summary judgment on counts one and two on the ground that the probate proceeding he initiated was decided in favor of his client and established probable cause. Burke argued that he was entitled to summary judgment on all counts directed against him on the ground that the tort claims were time barred by General Statutes § 52-577.[3]
In his objection to Spurling's motion for summary judgment, the plaintiff argued that questions of material fact existed, such as whether Spurling had probable cause to initiate a probate proceeding and whether Spurling conspired with Burke to have the Probate Court reject the 1997 will on the basis of Burke's allegedly false deposition testimony. In his objection to Burke's motion for summary judgment, the plaintiff argued that questions of material fact existed, such as whether Burke fraudulently concealed a January, 1997 letter that, the plaintiff posits, subsequently, aided the Superior Court in the probate *830 appeal in determining that the 1997 will was valid. The plaintiff further argued that Burke's concealment resulted in fraud that tolled, under General Statutes § 52-595,[4] the statute of limitations.
On July 7, 2007, the court heard oral arguments and, by memorandum of decision filed September 4, 2007, granted both defendants' motions for summary judgment and thereafter rendered judgment in the defendants' favor. This appeal followed. Additional facts will be set forth as necessary.
Before considering the plaintiff's claims on appeal, we first note our well established standard of review. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Viola v. O'Dell, 108 Conn.App. 760, 763-64, 950 A.2d 539 (2008).
"A material fact is a fact that will make a difference in the outcome of the case.... Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court...." Campbell v. Plymouth, 74 Conn.App. 67, 80-81, 811 A.2d 243 (2002).
"[I]ssue-finding, rather than issue-determination, is the key to the procedure.... [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment.... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn.App. 560, 564, 952 A.2d 818, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008). "The test is whether a party would be entitled to a directed verdict on the same facts.... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Emphasis added; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn.App. 379, 383, 942 A.2d 469 (2008).
"On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Because the trial court rendered judgment for the defendants as a matter of law, our review is plenary and we must decide whether the trial court's conclusions are legally and logically correct and find support in the facts that appear in the record." (Citation omitted; internal quotation marks omitted.) Alexander v. Vernon, 101 Conn.App. 477, 482-83, 923 A.2d 748 (2007).
*831 I
On all counts directed against Burke, the court concluded that the plaintiff's causes of action were time barred. Although the plaintiff's claims can be viewed as distinct and separate, our consideration of the first claim regarding the statute of limitations necessarily implicates the second and third claims,[5] and consequently, we will address the plaintiff's first three claims together. The plaintiff contends that his causes of action are not time barred because the statute of limitations was tolled by fraud. We disagree.
As previously stated, our review is plenary, and we must determine whether the court's conclusions are legally and logically correct in that they find support in the record. The plaintiff, in counts two, three and four of the complaint, alleged a tort cause of action against Burke. In response, Burke raised a statute of limitations defense under § 52-577.[6] The plaintiff, in turn, claimed that the statute of limitations was tolled, under § 52-595,[7] for fraudulent concealment.[8] The plaintiff argued that the statute of limitations was tolled because Burke fraudulently concealed a January, 1997 letter, which Burke addressed to the testator, that evidenced the testator's contemplation to remove his daughter, Banta, from the 1997 will.[9] He further argued that the testator's intent, as expressed in the letter, countered Banta's argument that the testator was unduly influenced. The plaintiff argued that Burke's concealment of the January, 1997 letter caused the Probate Court to rule in favor of Banta, and, during the probate appeal, when Burke later revealed the January, 1997 letter during his testimony, the Superior Court reversed the Probate Court's decree and ruled in the plaintiff's favor.
During oral argument on Burke's motion for summary judgment, Burke argued that the plaintiff's counts were barred by the statute of limitations because the alleged failure by Burke to reveal the January, 1997 letter, occurred on May 4, 2001, during his deposition for the probate hearing or, in the alternative, on May 9, 2001, when the object of the alleged conspiracy between Spurling and Burke was achieved by the Probate Court's oral ruling invalidating the 1997 will. Burke pointed out that both of these events occurred more than five years prior to the plaintiff's service of the complaint.[10] Therefore, because *832 the complaint was served on Burke on November 13, 2006, the plaintiff's causes of action were time barred.
The court concluded that "[a]ll of the alleged conduct by the defendants in the plaintiff's amended complaint occurred more than three years prior to service and filing of the plaintiff's action." The court stated that "[r]egardless of whether the plaintiff has sufficiently pleaded fraudulent concealment ... no genuine issue[s] of material fact exist.... [T]he plaintiff has not provided any evidence that supports his claim that a genuine issue of material fact remains.... Burke was not asked by the plaintiff's former counsel if he had any letters in his file.... The plaintiff has also not pointed out any evidence that would indicate that Burke failed to disclose the existence of the letter for the purpose of obtaining a delay in the filing of the complaint by the plaintiff. The plaintiff has not submitted any evidence showing the significance of Burke's January 9, 1997 letter in relation to the plaintiff's claims in his amended complaint and how the failure to disclose this letter affected the plaintiff's ability to bring his claims.... Accordingly, Burke's motion for summary judgment is granted as to all counts against him on the ground that the plaintiff's claims against him are barred by the statute of limitations."
"The question of whether a party's claim is barred by the statute of limitations is a question of law, which this court reviews de novo." (Internal quotation marks omitted.) Smulewicz-Zucker v. Zucker, 98 Conn.App. 419, 423, 909 A.2d 76 (2006), cert. denied, 281 Conn. 905, 916 A.2d 45 (2007). In the present case, it is undisputed that the complaint was served on the defendants on November 13, 2006, and that the applicable limitations period is three years under § 52-577. Therefore, the issue to be resolved is whether the court properly found that the causes of action accrued prior to November 13, 2003, which resulted in their being time barred.
We first set forth the relevant legal principles. "[S]ection 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues.... [Section] 52-577 provides: No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of. This court has determined that [§] 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs.... The three year limitation period of § 52-577, therefore, begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." (Citations omitted; emphasis added; internal quotation marks omitted.) Valentine v. LaBow, 95 Conn. App. 436, 444-45, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).[11]
The date the plaintiff first discovers an injury, however, becomes relevant if the plaintiff can show that the statute of limitations is tolled by the defendant's fraudulent concealment under § 52-595. General Statutes § 52-595 provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." Our Supreme Court has stated that "[t]o establish *833 that the [defendant] had fraudulently concealed the existence of [her] cause of action and so had tolled the statute of limitations, the [plaintiff] had the burden of proving that the [defendant was] aware of the facts necessary to establish this cause of action ... and that [it] had intentionally concealed those facts from the [plaintiff].... The [defendant's] actions must have been directed to the very point of obtaining the delay [in filing the action] of which [it] afterward [seeks] to take advantage by pleading the statute.... To meet this burden, it was not sufficient for the [plaintiff] to prove merely that it was more likely than not that the [defendant] had concealed the cause of action. Instead, the [plaintiff] had to prove fraudulent concealment by the more exacting standard of clear, precise and unequivocal evidence...." (Citations omitted; internal quotations marks omitted.) Krondes v. Norwalk Savings Society, 53 Conn. App. 102, 113-14, 728 A.2d 1103 (1999).
In its memorandum of decision on Burke's motion for summary judgment, the court referenced the following undisputed events: (1) Burke's deposition was held on May 4, 2001, (2) Burke's testimony during the probate appeal in the Superior Court was on November 12, 2003, (3) the complaint was served on November 13, 2006, and (4) the complaint was filed in court on November 16, 2006.[12] Based on these dates, we conclude that regardless if we review the plaintiff's first three claims under § 52-577 or § 52-595, the commencement of the action occurred beyond the applicable statutory period. Even if we assume that the tort and fraudulent concealment occurred on the same date, the tolling period ended on November 12, 2003. On that date, the plaintiff learned of the letter through Burke's testimony during the probate appeal. The action was commenced when the defendants were served with the complaint on November 13, 2006, more than three years later. Therefore, the court properly granted Burke's motion for summary judgment on the ground that the plaintiff's causes of action directed against Burke were time barred.
II.
Next, the plaintiff claims that the court improperly concluded that the Probate Court's ruling in favor of Spurling's client was conclusive evidence of probable cause for Spurling to initiate probate proceedings and that the plaintiff did not prove a claim for vexatious litigation on the basis of the Superior Court's subsequent reversal of the Probate Court's ruling.[13] We disagree.
The following additional facts are relevant to our review. In granting Spurling's motion for summary judgment, the court stated that the "probate proceedings were resolved in favor of Spurling's client, Banta. Even though the Superior Court later reversed the decree of the Probate Court, *834 the resolution of the initial probate proceedings in favor of Spurling's client conclusively shows that he had probable cause to initiate those proceedings." Therefore, the court concluded that the plaintiff failed to prove his claim for vexatious litigation.
As previously stated, our review is plenary, and we must determine whether the court's conclusions are legally and logically correct by finding support for those conclusions in the record. Having set forth the standard of review, we now turn to the elements of an action for vexatious litigation. It is well established that an element of a vexatious litigation action relates to probable cause. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007). "[T]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.... Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of.... Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." (Internal quotation marks omitted.) Id., at 94-95, 912 A.2d 1019. "[T]he existence of probable cause is an absolute protection against an action for [vexatious litigation], and what facts, and whether particular facts, constitute probable cause is always a question of law." (Internal quotation marks omitted.) Id., at 94, 912 A.2d 1019.
"Our Supreme Court recently had the opportunity to consider whether a higher legal standard of probable cause should be applied to attorneys and law firms sued for vexatious litigation.... After considering the statute and the competing policy interests, the court concluded that a higher standard should not apply.... Instead, in assessing probable cause, the court phrased the critical question as whether on the basis of the facts known by the law firm, a reasonable attorney familiar with Connecticut law would believe he or she had probable cause to bring the lawsuit.... As is implied by its phrasing, the standard is an objective one that is necessarily dependent on what the attorney knew when he or she initiated the lawsuit.... Further, the court warned that [p]robable cause may be present even where a suit lacks merit. [Although] [f]avorable termination of the suit often establishes lack of merit ... the plaintiff in [vexatious litigation] must separately show lack of probable cause." (Citations omitted; internal quotation marks omitted.) Embalmers' Supply Co. v. Giannitti, 103 Conn.App. 20, 34-35, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).
"[I]f it appears in the action for ... a vexatious suit, that the prosecution properly ended in a judgment of conviction, or that in the civil suit judgment was properly rendered against the defendant therein, such outstanding judgment is, as a general rule, conclusive evidence of the existence of probable cause for instituting the prosecution, or the suit." Frisbie v. Morris, 75 Conn. 637, 639-40, 55 A. 9 (1903). "[I]f the trial court determines that the prior action was objectively reasonable, the plaintiff has failed to meet the threshold requirement of demonstrating an absence of probable cause and the defendant is entitled to prevail." (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. at 99, 912 A.2d 1019. "This is true although it is reversed upon appeal and finally terminated in favor of the person against whom the proceedings *835 were brought.... Likewise, a termination of civil proceedings ... by a competent tribunal adverse to the person initiating them is not evidence that they were brought without probable cause." 3 Restatement (Second), Torts § 675, comment (b) (1977).
We conclude that the Probate Court's ruling in favor of Spurling's client was conclusive evidence of probable cause. Although the Probate Court's ruling was later reversed on appeal in the plaintiff's favor, the ruling was a valid judgment in favor of Spurling's client, and both sides had an opportunity to defend and to argue a position. The Probate Court's ruling, regardless of its subsequent reversal, served as an absolute protection against an action for vexatious litigation.[14]
As to the plaintiff's claim that the court improperly concluded that he did not prove a claim for vexatious litigation on the basis of the Superior Court's subsequent reversal of the Probate Court's ruling, because we have determined that probable cause existed for Spurling to initiate probate proceedings, the plaintiff's purported failure to prove a claim for vexatious litigation, on the basis of the probate proceedings, is irrelevant.
III
Last, the plaintiff claims that the court improperly concluded that the counts for conspiracy and vexatious litigation rested on the same facts and rendered summary judgment on the conspiracy count on this ground.[15] We disagree.
As previously stated, our review is plenary, and we must determine whether the court's conclusions are legally and logically correct in that they find support in the record. The following additional facts are pertinent to our resolution of the plaintiff's claim. The plaintiff's complaint alleged that Spurling and Burke conspired to have the 1997 will rejected at the Probate Court. In its decision to grant Spurling's motion for summary judgment, the court noted the elements of a claim for civil conspiracy. The most relevant element, as emphasized by the court, is that the alleged conspirators combined to "do a criminal or unlawful act by criminal or unlawful means...." (Emphasis added; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 100 n. 34, 952 A.2d 1 (2008). The court concluded that "because the plaintiff cannot as a matter of law prove that Spurling lacked probable cause to assert his client's claims [which were to reject the 1997 will] at the probate level, the plaintiff cannot show that Spurling's conduct was unlawful or [constituted] a lawful act done by unlawful means." Therefore, on the basis of its determination that Spurling had probable cause to initiate a probate claim, the court concluded that "[t]he plaintiff's civil conspiracy count based upon [the] same facts [as the vexatious litigation count] must ... fail."
On appeal, the plaintiff argues that Spurling and Burke conspired to have the 1997 will rejected by having Burke provide false testimony under oath, during his *836 deposition in the probate proceeding, which concealed the January, 1997 letter. Specifically, he asserts that the vexatious litigation count was based on Spurling's actions when he initiated the probate proceedings and that the civil conspiracy count was based on the actions by Spurling and Burke after the probate proceedings were commenced. As a result, the plaintiff argues that his counts are distinct and not predicated on the same facts. We find this argument unpersuasive.
The civil conspiracy count against Spurling was of the same character as the vexatious litigation count because the allegations on both counts hinge on Spurling's intent unlawfully, without probable cause, to have the 1997 will rejected by the Probate Court. As we concluded in part II, Spurling had probable cause to bring a probate claim, on behalf of his client, to reject the 1997 will. Accordingly, it would be legally inconsistent to conclude that Spurling lawfully initiated probate proceedings to reject the 1997 will but conspired to reject the 1997 will unlawfully. See, e.g., Heussner v. Day, Berry & Howard, LLP, 94 Conn.App. 569, 579 n. 4, 893 A.2d 486 (court barred negligent infliction of emotional distress count because count was predicated on facts identical to malicious prosecution count, which was barred by collateral estoppel), cert. denied, 278 Conn. 912, 899 A.2d 38 (2006). Therefore, the court properly concluded that the counts for conspiracy and vexatious litigation rested on the same facts.
The judgment is affirmed.
In this opinion the other judges concurred.
NOTES
[1] The plaintiff also named 130 Union Street Associates, LLC, as a defendant, but it is not a party to this appeal, which concerns only the court's judgment as to Burke's and Spurling's motions for summary judgment. All references to the defendants in this opinion are to Burke and Spurling.
[2] None of the counts in the plaintiff's complaint was directed against the third named defendant, 130 Union Street Associates, LLC. See footnote 1.
[3] General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
[4] General Statutes § 52-595 provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence."
[5] For the reasons we will set forth, we conclude that we need not consider the merits of the plaintiff's second and third claims because the court properly determined that the plaintiff's causes of action against Burke were barred by the statute of limitations.
[6] See footnote 3.
[7] See footnote 4.
[8] Although the plaintiff failed to plead fraudulent concealment in his reply to Burke's special defense; see Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 32-34, 717 A.2d 77 (1998); and, during oral arguments on the motions for summary judgment, Burke notified the court that the plaintiff improperly pleaded that the statute of limitations was tolled, this is not an issue briefed on appeal.
[9] The plaintiff's argument applies to all three claims against Burke because Burke's alleged failure to disclose the January, 1997 letter was the factual gravamen of all three claims against Burke.
[10] See footnote 9. Furthermore, on this appeal, Burke argues that even if the plaintiff can prove that the statute of limitations should be tolled, the commencement of the action falls outside the statutory period because the plaintiff acknowledges that he discovered the January, 1997 letter, three years and one day prior to service of the complaint, on November 12, 2003. Therefore, because Burke was served on November 13, 2006, the plaintiff's causes of action were one day late.
[11] The date the action was commenced is the date of service of process, which is when the writ of summons and complaint were served on the defendants. See Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004).
[12] In oral argument before this court, the plaintiff argued that he did not become aware of his causes of action until November 20, 2003, when the Superior Court's decision was released. That decision validated the 1997 will in the plaintiff's favor and referenced the January, 1997 letter that was withheld by Burke during his May, 2001 deposition. This argument, however, was not raised before the court when it reviewed Burke's motion for summary judgment, and, as a result, we are limited to the plaintiff's argument as raised in his memorandum of law supporting his objection to Burke's motion for summary judgment, in which he relied on the November 12, 2003 date in his argument to assert when the tolling of the statute of limitations commenced.
[13] Although the plaintiff's claims can be viewed as distinct and separate, our consideration of one necessarily implicates the other, and, consequently, we will discuss the plaintiff's fourth and fifth claims together.
[14] See, e.g., Heussner v. Day, Berry & Howard, LLP, 94 Conn.App. 569, 893 A.2d 486 (probate decision establishing issue of material fact establishes probable cause for defendant to initiate suit, thus barring plaintiff's claim for malicious prosecution by collateral estoppel), cert. denied, 278 Conn. 912, 899 A.2d 38 (2006); Frisbie v. Morris, supra, 75 Conn. at 639-40, 55 A. 9 (probate application against plaintiff, claiming appointment of conservator over plaintiff, that terminated in valid judgment is conclusive probable cause to withstand vexatious suit).
[15] Although we concluded previously that the claim of conspiracy against Burke was time barred, Spurling never raised a statute of limitations defense on the claims directed against him. Accordingly, we will review the merits of this claim.
| {
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932 F.2d 956
U.S.v.Santana
NO. 90-1181
United States Court of Appeals,Second Circuit.
APR 15, 1991
1
Appeal From: S.D.N.Y.
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
T.C. Memo. 2011-156
UNITED STATES TAX COURT
RONALD V. AND DONNA-KAY SWANSON, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 30714-08. Filed July 5, 2011.
R determined tax deficiencies and accuracy-related
penalties pursuant to sec. 6662(a), I.R.C., for Ps’ 2001
through 2007 tax years. The determinations stem from R’s
determination that P-H made excess contributions to his Roth
individual retirement account (Roth IRA). The parties
stipulated Ps’ tax deficiencies for the 2001 through 2006
tax years and R conceded all adjustments relating to the
2007 tax year, leaving only the accuracy-related penalties
for Ps’ 2001 through 2006 tax years in dispute.
Held: Ps’ are liable for sec. 6662(a), I.R.C.,
accuracy-related penalties for their 2001 through 2006 tax
years.
Howard S. Fisher, for petitioners.
Michael W. Tan and Cindy Park, for respondent
- 2 -
MEMORANDUM FINDINGS OF FACT AND OPINION
WHERRY, Judge: This case is before the Court on a petition
for redetermination of respondent’s determination in a notice of
deficiency that petitioners owe tax deficiencies and section
6662(a) accuracy-related penalties for their 2001 through 2007
tax years.1 After concessions,2 the sole issue left for decision
is whether petitioners are liable for section 6662(a) accuracy-
related penalties for their 2001 through 2006 tax years.
FINDINGS OF FACT
Some of the facts have been stipulated, and the
stipulations, with the accompanying exhibits, are incorporated
herein by this reference. At the time they filed their petition
with this Court, petitioners resided in Nevada.
Petitioners filed joint Federal income tax returns for all
relevant years. This case stems from petitioner husband Ronald
V. Swanson’s attempt to “turn an IRA into a Roth IRA” (Roth
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended and in effect for
the years at issue, and all Rule references are to the Tax Court
Rules of Practice and Procedure.
2
The parties stipulated that petitioners are liable for
excise tax deficiencies of $61,277.78, $45,207.79, $58,564.58,
$63,774.17, $65,637.06, and $73,911.11 for their 2001, 2002,
2003, 2004, 2005, and 2006 tax years, respectively. The parties
further stipulated that petitioners have no excise or income tax
deficiency for their 2007 tax year and are not liable for the
accuracy-related penalty for their 2007 tax year.
- 3 -
restructure).3 The Roth restructure was designed and implemented
by A. Blair Stover, Jr. (Mr. Stover) and his colleagues at the
accounting firm of Grant Thornton, LLP (Grant Thornton). The
parties have stipulated that in 2000 Mr. Swanson made an excess
contribution into a Roth individual retirement account (Roth IRA)
of $1.61 million and that as of December 31, 2006, it remains in
his account.
I. Petitioners’ Background
Petitioner wife, Donna-Kay Swanson, was a homemaker for all
tax years in issue and relied on her husband to determine whether
to engage in the Roth restructure. Mr. Swanson attended college
at the University of Michigan where he graduated with a degree in
mechanical engineering and mathematics. After graduation, Mr.
Swanson began working for Hughes Aircraft (Hughes). Mr. Swanson
worked for Hughes or one of its subsidiaries for his entire
36-year career.
While working at Hughes, Mr. Swanson attended graduate
school at the University of California Los Angeles (UCLA) where
3
The basic tax characteristics of a traditional IRA are (1)
deductible contributions, (2) the accrual of tax-free earnings
(except with respect to sec. 511 unrelated business income), and
(3) the inclusion of distributions in gross income. See secs.
219(a), 408(a), (d)(1), (e); see also Taproot Admin. Servs., Inc.
v. Commissioner, 133 T.C. 202, 206 (2009). The basic tax
characteristics of a Roth IRA are (1) nondeductible
contributions, (2) the accrual of tax-free earnings, and (3) the
exclusion of qualified distributions from gross income. See sec.
408A(a), (c)(1), (d)(1), and (2)(A); see also Taproot Admin.
Servs., Inc. v. Commissioner, supra at 206.
- 4 -
he graduated with a degree in Applied Mechanics. Additionally,
Mr. Swanson finished a 2-year extension course at UCLA, where he
received a certificate in business management.
During his career, Mr. Swanson worked at Hughes as a part-
time master’s fellow and then held positions in various areas of
structural engineering. Eventually, he was promoted into
administrative management.
In approximately 1997 Mr. Swanson helped develop Hughes
Global Services, a 20-person company and eventual subsidiary of
Hughes. Mr. Swanson was appointed president of Hughes Global
Services, where he stayed until his retirement in October 2001.
As an employee of Hughes, Mr. Swanson was the beneficiary of a
thrift and savings plan (Hughes TSP) to help with retirement.
II. Introduction to the Roth Restructure
A. Initial Introduction
Mr. Swanson initially heard about the Roth restructure from
Fred Nardi (Mr. Nardi), a friend and coworker. Mr. Nardi told
Mr. Swanson that on the basis of his discussions with other tax
professionals, including his tax return preparer, Creal & Mather,
he understood they felt that the Roth restructure “was solid”.
Mr. Nardi showed Mr. Swanson an unsigned opinion letter from
Grant Thornton (Nardi letter) detailing the Roth restructure.
Mr. Swanson claimed he relied on the Nardi letter in deciding
whether to engage in the Roth restructure. Apparently, the Nardi
- 5 -
letter discussed listed transactions, and because of this, Mr.
Swanson looked at the Internal Revenue Service (IRS) Web site.4
In addition to Mr. Nardi, Mr. Swanson also talked with Jim
Patton (Mr. Patton) and Bob Mather (Mr. Mather) before contacting
Grant Thornton. Mr. Patton is an investment adviser who began
advising Mr. Swanson in 2000 and is the only investment adviser
Mr. Swanson has ever consulted. Mr. Patton was also of the
impression that the Roth restructure “was above board”.
Mr. Mather was Mr. Nardi’s tax preparer. According to Mr.
Swanson, he contacted Mr. Mather, who had other clients doing
Roth restructures and apparently did not see any problems with
them.
B. Introduction to Mr. Stover
In approximately March 2000 Mr. Stover met Mr. Swanson while
he was on vacation in Las Vegas. Mr. Swanson asked Mr. Stover
4
A listed transaction is a transaction that is the same as,
or substantially similar to, one of the types of transactions
that the IRS has determined to be used for tax avoidance and has
identified by notice, regulation, or other form of published
guidance as a listed transaction. See McGehee Family Clinic,
P.A. v. Commissioner, T.C. Memo. 2010-202 (citing sec.
6707A(c)(2); sec. 1.6011-4, Income Tax Regs. (incorporating by
reference sec. 1.6011-4T(b)(2), Temporary Income Tax Regs., 65
Fed. Reg. 11207 (Mar. 2, 2000)); see also BLAK Invs. v.
Commissioner, 133 T.C. 431, 440-441 (2009)). Sec. 6707A became
effective Oct. 23, 2004, and imposed penalties on those who
failed to report a reportable transaction as required under sec.
6011. Sec. 6707 entitled “Failure to Furnish Information
Regarding Tax Shelter” was effective through Oct. 22, 2004, and
imposed penalties on those who failed to register a tax shelter
under sec. 6111(a).
- 6 -
several questions, claiming his basic concern was that he “did
not want to do anything illegal”. Mr. Stover explained the Roth
restructure in detail and told Mr. Swanson that the transaction
was not only legal but had been “court tested”.5
After deciding to engage in the Roth restructure, Mr.
Swanson met with Mr. Stover on other occasions, again inquiring
at one or more of these meetings about the legality of the Roth
restructure and whether it was a listed transaction. He also
visited the IRS Web site and concluded the Roth restructure was
not a listed transaction.
C. Engagement Letter
On April 11, 2000, Mr. Swanson executed an engagement letter
with Grant Thornton. The engagement letter contained a clause
providing that Grant Thornton would represent and defend Mr.
Swanson or any related entity at no additional cost in case of
audit by the IRS. The engagement letter also contained an
indemnity clause providing that Grant Thornton would reimburse
and indemnify the Swansons and any related entity for any civil
negligence or fraud penalty assessed against them by Federal or
State tax authorities.
5
Mr. Stover told Mr. Swanson that the Roth restructure had
been approved in Swanson v. Commissioner, 106 T.C. 76, 78-81
(1996). The names are coincidental--the taxpayer in Swanson v.
Commissioner, supra, has no connection with petitioners. Mr.
Swanson read the case and thought that it was very similar to
what Mr. Stover was proposing for him.
- 7 -
Petitioners paid $120,000 for the Roth restructure, the
engagement letter providing that the fee was to be split equally
between Grant Thornton and Nevada Corp. Associations (NCA), a law
firm. Mr. Swanson assumed NCA was an “outside legal firm
providing services to Grant Thornton”.
Mr. Swanson did not ask for a formal opinion letter, nor was
one ever issued. Mr. Swanson believed that since he and Mr.
Nardi were engaging in the same transaction, he did not need his
own opinion letter.
D. Kruse Mennillo and Individuals Other Than Mr. Stover
In addition to Mr. Stover, Mr. Swanson had contact with
other individuals at Grant Thornton, including Luther Oliver, a
tax lawyer, and Ruth Donovan, a certified public accountant. In
September 2001 Mr. Stover, along with other individuals he worked
with, left Grant Thornton for Kruse Mennillo, LLP (Kruse
Mennillo), another accounting firm. Neither party presented
evidence explaining the reason behind Mr. Stover’s abrupt move.
At the time Mr. Stover left Grant Thornton, Mr. Swanson began
using Kruse Mennillo instead of Grant Thornton.6
6
Petitioners request that we take judicial notice of a Feb.
21, 2008, Department of Justice Press Release and a Complaint for
Permanent Injunction against Mr. Stover filed Feb. 21, 2008.
This Court shall grant petitioners’ request and has taken
judicial notice of the documents requested and United States v.
Stover, 731 F. Supp. 2d 887, 914-915 (W.D. Mo. 2010), holding
that Mr. Stover had reason to know that various structures he
promoted lacked any legitimate business purpose and granting
injunctive relief against him. The case focused on “three
(continued...)
- 8 -
E. Independent Advice and Knowledge
Despite the remarkable promised tax benefits of converting
taxable IRA distributions to nontaxable Roth IRA distributions,
Mr. Swanson did not ask anyone who was completely independent of
the Mr. Patton and Mr. Stover groups for an opinion on the
viability of the Roth restructure. Mr. Swanson knew that there
were contribution limits to Roth IRAs, specifically that in 2000
the contribution limit was $2,000.
III. The Roth Restructure
Before the years in issue and before petitioners engaged
Grant Thornton, Mr. Swanson had opened a traditional IRA with
Charles Schwab with an account number ending in 6050 (Schwab
IRA). Grant Thornton (specifically, Mr. Stover) and NCA, oversaw
all of the steps in the Roth restructure. The Roth restructure
was implemented as follows:
• March 20, 2000--A corporation, Sierra West Global Holdings,
Inc. (Sierra West), was created by NCA. It then joined
Northstar Acquisition and Investment Co., Inc. (Northstar),
also formed by NCA sometime in the first 6 months of 2000.
Sierra West and Northstar shared the same registered agent
and registered office during all relevant periods. Mr.
Swanson served as president, secretary, and treasurer of
both corporations during 2000 and 2001. At some point, a
James Hoeppner began serving as president and secretary of
Sierra West, but acted as Mr. Swanson’s nominee when doing
6
(...continued)
multiple business entity structures sold and arranged by” Mr.
Stover. The third structure, referred to by the district court
as the Roth/S structure “[skirted] the contribution limits
applicable to Roth IRAs.” Id. at 900.
- 9 -
so. Each corporation opened a bank account with an initial
deposit of $250 on May 4, 2000.7
• April 25, 2000--On or around April 25, 2000, Mr. Swanson
opened a Roth IRA account with First Union with an account
number ending in 0381 (FU Roth IRA).
• April 28, 2000--On or around April 28, 2000, Mr. Swanson
opened a Self-Directed Traditional IRA at the First Trust
Company of Onaga with an account number ending 0500 (FNBO
IRA). On May 5, 2000, the FNBO IRA was funded via a rollover
of $1,207,802.55 from the Hughes TSP. On May 19, 2000, Mr.
Swanson directed the FNBO IRA to purchase 100 percent of the
stock of Sierra West for $1,207,802.55. The purchase price
was deposited into the Sierra West account on May 19, 2000.
• May 1, 2000--On or around May 1, 2000, Mr. Swanson opened a
Self-Directed Roth IRA at the George K. Baum Trust Company
with an account number ending in 8305 (Baum Roth IRA) which
was funded with a $2,000 contribution from a personal
investment account Mr. Swanson maintained at Charles Schwab
(CS Investment Account). On May 2, 2000, Mr. Swanson
directed the Baum Roth IRA to purchase 100 percent of the
stock of Northstar for $2,000. The purchase price was
deposited into the Northstar account on June 6, 2000.
• May 16, 2000--Mr. Swanson deposited $150,000 into the
Northstar account from the CS Investment Account. On May
22, 2000, Mr. Swanson ordered $1,087,802.55 transferred from
the Sierra West account to the Northstar account. On May
22, 2000, Mr. Swanson ordered $1,238,000 transferred from
the Northstar account to the Baum Roth IRA under the guise
of a dividend declaration.8
7
For 2000 and 2001 Sierra West filed Forms 1120, U.S.
Corporation Income Tax Return, reporting zero gross receipts, it
had no employees and only nominal expenses, and because it saw no
need did not maintain books and records. For 2000 through 2007
Northstar filed Forms 1120 showing zero gross receipts, it had no
employees and only nominal expenses, and saw no reason to
maintain books or records. The claimed intention was for Mr.
Swanson to eventually perform consulting services through
Northstar after his retirement, but because of health reasons, he
never did.
8
The transfer was not a dividend because it did not come
from Northstar’s earnings and profits. The $1,238,000 can
(continued...)
- 10 -
• June 8, 2000--Mr. Swanson wired $250,000 into the Northstar
account from the CS Investment Account. On June 9, 2000,
Mr. Swanson ordered $252,000 transferred from the Northstar
account to the Baum Roth IRA.9
• December 19, 2000--Mr. Swanson deposited $120,000 into the
Northstar account from a brokerage account under the name
Muchestly, Inc., that Mr. Swanson maintained at Charles
Schwab. On December 29, 2000, Mr. Swanson ordered $120,000
transferred from the Northstar account to the Baum Roth
IRA.10
• January 8, 2001--By January 8, 2001, $1,238,000, $252,000,
and $120,000, for a total of $1,610,000, had been
transferred into the Baum Roth IRA and from there had been
transferred to the FU Roth IRA and invested in various
mutual funds. As of December 31, 2001, the fair market
value of the FU Roth IRA was $1,021,296.28.
• December 2001--Merger documents were executed merging Sierra
West into Northstar, with Northstar being the surviving
corporation.
• December 2002--The fair market value of the FU Roth IRA as
of December 31, 2002, was $753,463.24. As of December 31,
2003, the fair market value was $976,078.04. As of December
31, 2004, the fair market value was $1,062,902.79.
• May 2005--All securities held in the FU Roth IRA were
transferred to a Roth IRA Mr. Swanson opened with H&R Block
Financial Advisors (H&R Roth IRA).
8
(...continued)
apparently be traced to (1) $197.45 from the initial $250 capital
contribution; (2) a $150,000 transfer from Mr. Swanson’s
brokerage account on May 16, 2000; and (3) a $1,087,802.55
transfer from Sierra West on May 22, 2000.
9
The $252,000 transfer was made via another purported June
8, 2000, dividend declaration; however, once again the transfer
was not a dividend because it did not come from Northstar’s
earnings and profits. The transfer may be traced to (1) a $2,000
initial Roth IRA contribution and (2) a $250,000 transfer from
Mr. Swanson’s brokerage account on June 8, 2000.
10
The $120,000 transfer was yet again made as a purported
dividend but the transfer was also not a dividend because it did
not come from Northstar’s earnings and profits.
- 11 -
• December 2005--By December 2005 all securities transferred
from the FU Roth IRA to the H&R Roth IRA had been liquidated
and invested in annuities at Lincoln National Life Insurance
Co., also known as American Legacy (American Legacy
Annuity). The fair market value of the H&R Roth IRA as of
December 31, 2005, was $1,093,951.07. The fair market value
of the H&R Roth IRA as of December 31, 2006, was
$1,231,851.75.
• December 2007--Mr. Swanson surrendered the American Legacy
Annuity and withdrew substantially all the funds from his
H&R Roth IRA.
IV. Reporting the Roth Restructure
With the exception of 1 or 2 years, Mr. Swanson prepared his
and Mrs. Swanson’s joint tax returns for 1965 through 1998.11
While Mr. Swanson had no formal study in taxation, he did “buy a
tax book each year to look at the highlights and see if there
[was] anything that was new that would affect” him.
As part of the fee Mr. Swanson paid for the Roth
restructure, Grant Thornton began preparing the Swansons’ tax
returns in 1999. This was because Mr. Swanson indicated he
“wanted to make sure that the people that had developed the [Roth
restructure] * * * continually followed it and knew exactly what
they should be doing”. Kruse Mennillo prepared the Swansons’ tax
returns beginning in 2001.12
11
During the period Mr. Swanson prepared his own return, it
consisted of a Form 1040, U.S. Individual Income Tax Return;
Schedule A, Itemized Deductions; and Schedule D, Capital Gains
and Losses.
12
The tax returns included Federal income tax returns and
Federal excise tax returns. Northstar’s 2000 tax return was
prepared by Grant Thornton, and Northstar’s 2001 through 2007 tax
(continued...)
- 12 -
In order to facilitate the preparation of the returns, Mr.
Swanson would provide the information and copies of pertinent
documents asked for each year by either Grant Thornton or Kruse
Mennillo. Individuals including Mr. Stover, Mr. Oliver, and Ms.
Donovan presumably worked on the returns. None of these
individuals testified.
When Mr. Swanson received the returns, he reviewed them to
make sure that all the information he had given was transcribed
properly, that the deductions that were taken were proper, and
that each of the corporate entities had a tax return.
Petitioners’ tax returns showed excise tax on excess
contributions to a Roth IRA of $2,000 for the 2000, 2001, 2002,
2003, and 2007 tax years; $3,500 for the 2004 tax year; and $5000
for the 2005 and 2006 tax years.
V. The Result of the Roth Restructure and Audit
As a result of the Roth restructure, Mr. Swanson made an
excess contribution of $1,610,000 into his Baum Roth IRA through
three different transfers occurring in 2000.
In 2004 Grant Thornton sent Mr. Swanson a letter regarding
the Roth restructure (Grant Thornton letter) stating that the Roth
restructure was potentially a listed transaction pursuant to IRS
12
(...continued)
returns were prepared by Kruse Menillo. Sierra West’s 2000 tax
return was prepared by Grant Thornton, and its 2001 tax return
was prepared by Kruse Menillo. Even though the tax returns were
prepared by different firms, they were prepared by the same team
of people.
- 13 -
Notice 2004-8, 2004-1 C.B. 333. Notice 2004-8, entitled “Abusive
Roth IRA Transactions”, states, in part, that taxpayers are using
transactions “to avoid the limitations on contributions to Roth
IRAs” and that “these transactions, as well as substantially
similar transaction” are listed transactions. The transactions
described in Notice 2004-8, supra, involve the taxpayer, a Roth
IRA, and a corporation substantially all the shares of which are
owned or acquired by the Roth IRA.
Mr. Swanson asserts that he discussed the Grant Thornton
letter with tax lawyers at Kruse Mennillo, including Mr. Stover,
and was told that his transaction was not covered by the notice,
he would not be penalized for nondisclosure, and that it was up to
him whether he disclosed. Mr. Swanson did not discuss the Grant
Thornton letter or attempt to discern whether he had engaged in a
listed transaction with anyone else. Mr. Swanson decided to
disclose the transaction anyway “just to make sure * * * [he]
wasn’t violating anything * * * [and because he wanted to take]
the safest route”. To disclose, Mr. Swanson attached a Form 8886,
Reportable Transaction Disclosure Statement, to Northstar’s 2003,
2004, and 2006 tax returns.13
13
While Mr. Swanson explained that Form 8886 was used to
disclose his Roth restructure, this Court notes that there was
little explanation on Form 8886. Under the Facts section of the
form, petitioners typed “THE TAXPAYER WAS FORMED TO PERFORM
SERVICES FOR MULTIPLE BUSINESSES IN THE FIELD OF CONSULTING. THE
BUSINESS REASONS FOR ITS EXISTENCE INCLUDE, BUT ARE NOT LIMITED
TO: ASSET PROTECTION, SUCCESSION PLANNING, AND RETIREMENT
(continued...)
- 14 -
In 2006 the Swansons’ returns were audited by the California
Franchise Tax Board. According to Mr. Swanson, this was the first
time that he suspected that the Roth restructure was not 100
percent viable. Mr. Stover and his colleague, Marc Sommers,
indicated to Mr. Swanson that their opinion was “that the audit
would not show any shortcoming of taxes paid”. The audit was
concluded in 2007 with “no change”. Mr. Swanson “felt that the
clearance by the California Tax Board was a further indication
that the structure was viable and proper”.
The Swansons timely filed Forms 1040, U.S. Individual Income
Tax Return, and Forms 5329, Additional Taxes on Qualified Plans
(Including IRAs) and Other Tax-Favored Accounts, for all years in
issue. On October 6, 2008, respondent issued three notices of
deficiency collectively showing the following deficiencies and
section 6662(a) accuracy-related penalties:
13
(...continued)
PLANNING. THIS PROTECTIVE DISCLOSURE IS BEING FILED BECAUSE IT
IS NOT CLEAR WHETHER THE GOVERNMENT WOULD VIEW THE TRANSACTION AS
SUBSTANTIALLY SIMILAR TO THOSE IDENTIFIED IN NOTICE 2004-8”. In
the Expected Tax Benefits section, Mr. Swanson typed “THE
POTENTIAL BENEFIT IF ANY COULD BE EITHER A TAX SAVINGS OR COST
DEPENDING ON THE TAXPAYERS RATE”.
- 15 -
Penalty
Tax Year Deficiency Sec. 6662(a)
2001 $96,495 $19,299.00
2002 96,111 19,222.20
2003 96,091 19,218.20
2004 95,984 19,196.80
2005 95,879 19,175.80
2006 95,863 19,172.60
2007 614,627 122,925.40
The deficiencies for tax years 2001 through 2006 were excise
tax deficiencies based upon respondent’s determination that Mr.
Swanson had made an excess contribution of $1.61 million to his
Roth IRA in 2000 and a portion of the excess contribution remained
in the account through December 31, 2006. The deficiency for 2007
was an income tax deficiency based upon respondent’s determination
that Mr. Swanson had unreported income of $1,803,900 and a
computational adjustment of $3,168 to itemized deductions. The
Swansons timely petitioned this Court. A trial was held on March
5, 2010, in Los Angeles, California.
OPINION
I. Burden of Proof
We first address the Swansons’ contention that the burden of
proof has shifted to respondent. They contend that
Where a petitioner has introduced credible evidence relevant
to ascertaining the petitioner’s liability, the burden of
proof in court proceedings shifts so that the Service has the
burden of proof with respect to factual issues related to
income tax issues (Code Section 7491). The Petitioner in
- 16 -
this case had introduced the requisite credible evidence, an
[sic] had maintained all of the required records, and
cooperated during the audit process with the Service. Hence,
in this proceeding the burden had shifted to the Respondent.
Petitioner has confused the burden of proof for penalties,
see sec. 7491(c), with the burden of proof for income tax
liability, see sec. 7491(a). Pursuant to section 7491(a), the
burden of proof on factual issues that affect the taxpayer’s
income and estate or gift tax liability (imposed by subtitles A
and B of title 26 United States Code) may shift to the
Commissioner in certain circumstances. There is no underlying
income, estate, or gift tax liability at issue. Accordingly,
section 7491(a) is not applicable.
Under section 7491(c), respondent bears the burden of
production with respect to Mr. Swanson’s liability for the section
6662(a) accuracy-related penalty. This means that respondent
“must come forward with sufficient evidence indicating that it is
appropriate to impose the relevant penalty.” See Higbee v.
Commissioner, 116 T.C. 438, 446 (2001). However, respondent does
not have the additional burden of producing evidence of reasonable
cause, good faith, substantial authority, or lack of willful
neglect, except as may be necessary to rebut evidence introduced
by petitioners. See id.
II. Analysis
Section 6662(a) imposes an accuracy-related penalty of 20
percent on any underpayment of tax that is attributable to causes
- 17 -
specified in subsection (b). Respondent asserts negligence or
disregard of the rules and regulations as the justification for
the imposition of the penalty. See sec. 6662(b)(1). More
specifically, respondent urges that Mr. Swanson was negligent in
failing to report his excess contributions to a Roth IRA for the
2001 through 2006 tax years.
“[N]egligence”, for this purpose, is “any failure to make a
reasonable attempt to comply with the provisions of * * * [the
Internal Revenue Code]”.14 Sec. 6662(c). Under caselaw,
“‘Negligence is a lack of due care or failure to do what a
reasonable and ordinarily prudent person would do under the
circumstances.’” Freytag v. Commissioner, 89 T.C. 849, 887 (1987)
(quoting Marcello v. Commissioner, 380 F.2d 499, 506 (5th Cir.
1967), affg. on this issue 43 T.C. 168 (1964) and T.C. Memo. 1964-
299), affd. 904 F.2d 1011 (5th Cir. 1990), affd. 501 U.S. 868
(1991). “Negligence is “strongly indicated” when ‘[a] taxpayer
fails to make a reasonable attempt to ascertain the correctness of
a deduction, credit, or exclusion on a return which would seem to
a reasonable and prudent person to be ‘too good to be true’ under
the circumstances.’” Hansen v. Commissioner, 471 F.3d 1021, 1029
(9th Cir. 2006), affg. T.C. Memo. 2004-269; sec. 1.6662-
3(b)(1)(ii), Income Tax Regs.
14
Disregard of the rules and regulations “includes any
careless, reckless, or intentional disregard of rules or
regulations.” Sec. 1.6662-3(b)(2), Income Tax Regs.
- 18 -
In determining a taxpayer’s liability for a negligence
penalty, courts generally look both to whether the underlying
investment was legitimate and whether the taxpayer exercised due
care in the position taken on the return. Sacks v. Commissioner,
82 F.3d 918, 920 (9th Cir. 1996), affg. T.C. Memo. 1994-217. When
an investment has such obviously suspect tax claims as to put a
reasonable taxpayer under a duty of inquiry, a good faith
investigation of the underlying viability, financial structure,
and economics of the investment is required. Roberson v.
Commissioner, T.C. Memo. 1996-335, affd. without published opinion
142 F.3d 435 (6th Cir. 1998); see also Mortensen v. Commissioner,
440 F.3d 375, 386-387 (6th Cir. 2006), affg. T.C. Memo. 2004-279;
Pasternak v. Commissioner, 990 F.2d 893, 903 (6th Cir. 1993),
affg. Donahue v. Commissioner, T.C. Memo. 1991-181 (stating “A
reasonably prudent person would have asked a qualified tax adviser
if this windfall was not too good to be true”), affd. without
published opinion 959 F.2d 234 (6th Cir. 1992).
Petitioners’ education and experience with business and
financial decisionmaking will be considered in determining whether
they were negligent in blindly accepting the advice of adviser
promoters who charged large fees. Respondent has introduced
sufficient evidence that Mr. Swanson negligently failed to report
excess contributions to his Roth IRA and therefore has met his
- 19 -
burden of production with regards to the section 6662(a) accuracy-
related penalty.
III. Reasonable Cause Exception
There is an exception to the section 6662(a) penalty when a
taxpayer can demonstrate: (1) Reasonable cause for the
underpayment and (2) that the taxpayer acted in good faith with
respect to the underpayment. Sec. 6664(c)(1); sec. 1.6664-4(a),
Income Tax Regs. Regulations promulgated under section 6664(c)
provide that the determination of reasonable cause and good faith
“is made on a case-by-case basis, taking into account all
pertinent facts and circumstances.” Sec. 1.6664-4(b)(1), Income
Tax Regs.
Mr. Swanson bears the burden of proving that he meets the
reasonable cause and good faith exception. He asserts that he
meets it because he: (1) Investigated the Roth restructure before
engaging in it; (2) read and relied on Swanson v. Commissioner,
106 T.C. 76 (1996); (3) consulted with numerous people including
accountants and tax attorneys; and (4) received a “no-change”
letter after his returns were audited by the State of California.
To begin, we do not determine whether Mr. Swanson’s alleged
reliance on the “no-change” letter issued by the State of
California helps to establish reasonable cause and good faith.
Importantly, the issues in this case are the accuracy-related
penalties for his 2001 through 2006 tax years, the 2007 year
- 20 -
having already been conceded by respondent in full. According to
Mr. Swanson’s testimony, he received the “no-change” letter in
2007. That means the “no-change” letter could not have had
anything to do with the justification for petitioners’ failure to
act properly with the tax years 2001 through 2005. We recognize
that Mr. Swanson’s 2006 tax return could have been timely filed in
2007 after the receipt of the “no-change” letter. But, Mr.
Swanson never provided any evidence as to exactly when in 2007 he
received the “no-change” letter or filed the joint Federal income
tax return and attached Form 5329. Further, by failing to
introduce the “no-change” letter into evidence, Mr. Swanson has
failed to provide this Court with proof as to the exact issues
California audited and its reasons for concluding the audit with a
“no-change” letter.
We now turn the Swansons’ asserted reliance on Swanson v.
Commissioner, supra. Mr. Swanson states that the Swanson case
“approved the holding of 100% of the stock of a company by a
pension”. While the Court in Swanson did implicitly approve the
holding of stock by an IRA, that was not the central issue in
Swanson. Swanson v. Commissioner, supra at 87-90. Rather the
Court was called upon to determine whether the IRS was
substantially justified in its litigation position in order to
determine whether the taxpayer was entitled to an award of
reasonable litigation costs.
- 21 -
We cannot find that the Swansons’ claimed reliance on the
Swanson decision was reasonable. The issue and facts of Swanson
are easily distinguishable from the transaction Mr. Swanson
engaged in. Respondent is not contending that an IRA cannot own
stock, rather that Mr. Swanson made excess contributions to his
Roth IRA. Importantly, there is no evidence other than Mr.
Swanson’s testimony that he ever even read the case or personally
analyzed it as opposed to simply taking Mr. Stover’s word for what
it held. See, e.g., Hansen v. Commissioner, 471 F.3d at 1032
(noting that even though the taxpayer read a previous decision,
there was no evidence that the taxpayer understood or relied on
the decision independently of what the promoter told the taxpayer
the decision meant).
Next, we turn to the Swansons’ argument that they relied on
Mr. Stover and other professionals. To support this argument,
petitioners cite United States v. Boyle, 469 U.S. 241 (1985);
Haywood Lumber & Mining Co. v. Commissioner, 178 F.2d 769 (2d Cir.
1950), modifying 12 T.C. 735 (1949); Orient Inv. & Fin. Co., Inc.
v. Commissioner, 166 F.2d 601 (D.C. Cir. 1948); and Hatfried, Inc.
v. Commissioner, 162 F.2d 628 (3d Cir. 1947).
While good faith reliance on professional advice based on all
the facts may, in many cases, provide a basis for a reasonable
cause defense, it is not absolute. Freytag v. Commissioner, 89
- 22 -
T.C. at 888; LaPlante v. Commissioner, T.C. Memo. 2009-226; sec.
1.6664-4(b)(1), Income Tax Regs.
[F]or a taxpayer to rely reasonably upon advice so as
possibly to negate a section 6662(a) accuracy-related penalty
determined by the Commissioner, the taxpayer must prove
* * * that the taxpayer meets each requirement of the
following three-prong test: (1) The adviser was a competent
professional who had sufficient expertise to justify
reliance, (2) the taxpayer provided necessary and accurate
information to the adviser, and (3) the taxpayer actually
relied in good faith on the adviser’s judgment. * * *
Neonatology Associates, P.A. v. Commissioner, 115 T.C. 43, 99
(2000), affd. 299 F.3d 221 (3d Cir. 2002); see also Charlotte’s
Office Boutique, Inc. v. Commissioner, 425 F.3d 1203, 1212 n.8
(9th Cir. 2005) (quoting with approval the above three-prong
test), affg. 121 T.C. 89 (2003).
The general rule in the Court of Appeals for the Ninth
Circuit, to which this case would be appealable absent a
stipulation to the contrary, is that “a taxpayer cannot negate the
negligence penalty through reliance on a transaction’s promoters
or on other advisors who have a conflict of interest.”15 Hansen v.
Commissioner, supra at 1031; see also LaVerne v. Commissioner, 94
T.C. 637, 652-653 (1990), affd. without published opinion 956 F.2d
274 (9th Cir. 1992), affd. without published opinion sub nom.
Cowles v. Commissioner, 949 F.2d 401 (10th Cir. 1991). “Courts
15
This Court has held that a promoter is “an adviser who
participated in structuring the transaction or is otherwise
related to, has an interest in, or profits from the transaction.”
106 Ltd. v. Commissioner, 136 T.C. 67, 79 (2011); Tigers Eye
Trading, LLC v. Commissioner, T.C. Memo. 2009-121.
- 23 -
have repeatedly held that it is unreasonable for a taxpayer to
rely on a tax adviser actively involved in planning the
transaction and tainted by an inherent conflict of interest”.
Canal Corp. v. Commissioner, 135 T.C. 199, 218 (2010).
At a minimum, Mr. Stover and his colleagues had a conflict of
interest and were not independent.16 Mr. Stover set up the various
entities and coordinated the deal “from start to finish”. 106
Ltd. v. Commissioner, 136 T.C. 67, 80 (2011). Grant Thornton and
Mr. Stover were paid “a flat fee for implementing * * * [the Roth
restructure] and wouldn’t have been compensated at all if * * *
[Mr. Swanson] decided not to go through with it.” See id.
Therefore, petitioners cannot argue that their reliance on Mr.
Stover and his colleagues establishes reasonable cause and good
faith. See Hansen v. Commissioner, supra at 1027 (affirming Tax
Court holding when taxpayers relied solely on the organization
promoting the transaction and did not independently verify their
tax returns despite warnings by the IRS); see also LaVerne v.
Commissioner, supra at 652.
16
Independence distinguishes the case at hand from those Mr.
Swanson attempts to rely on. In Haywood Lumber & Mining Co. v.
Commissioner, 178 F.2d 769 (2d Cir. 1950), modifying 12 T.C. 735
(1949), Orient Inv. & Fin. Co., Inc. v. Commissioner, 166 F.2d
601 (D.C. Cir. 1948), and Hatfried, Inc. v. Commissioner, 162
F.2d 628 (3d Cir. 1947), there is no evidence that the tax
advisers who the taxpayers relied on in the cases were not
independent. Haywood Lumber & Mining Co. v. Commissioner, supra
at 770-771; Orient Inv. & Fin. Co., Inc. v. Commissioner, supra
at 602-603; Hatfried, Inc. v. Commissioner, supra at 631-632.
- 24 -
While Mr. Swanson argues that he also relied on Mr. Nardi,
Mr. Patton, and Mr. Mather, there is no evidence, other than Mr.
Swanson’s testimony, that he talked with these three individuals
nor what they talked about and the advice he received.17 Neither
Mr. Nardi nor Mr. Patton is competent in tax matters. While Mr.
Swanson testified that Mr. Mather was a tax preparer, there is no
evidence he is competent in complicated tax matters.
Mr. Swanson appears to believe that his own self-serving
testimony is enough to establish reasonable cause and good faith.
We disagree. We have “found reliance to be unreasonable where a
taxpayer claimed to have relied upon an independent adviser
because the adviser either did not testify or testified too
vaguely to convince us that the taxpayer was reasonable in relying
on the adviser’s advice”. Swanson v. Commissioner, T.C. Memo.
2009-31; see also Heller v. Commissioner, T.C. Memo. 2008-232
(noting in upholding a penalty based on negligence that aside from
the taxpayer’s “self-serving testimony, there * * * [was] no
evidence in the record as to the specific nature of * * * [the
professional’s] advice”), affd. 403 Fed. Appx. 152 (9th Cir.
2010). Petitioners’ failure to introduce evidence “which, if
17
Mr. Swanson also appears to rely on individuals who signed
his individual and corporate tax returns such as Angela K.
Parker, Kelly Murphy, Duanette Thompson, Ruth Donovan, and Kelly
Webb. There is no evidence that Mr. or Mrs. Swanson ever spoke
with any of these individuals or if so, what was discussed. In
any event, they also have conflicts of interest because they
worked with Mr. Stover on the Roth restructure and were employees
of Grant Thornton and/or Kruse Mennillo.
- 25 -
true, would be favorable to * * * [them], gives rise to the
presumption that if produced it would be unfavorable.” Wichita
Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946),
affd. 162 F.2d 513 (10th Cir. 1947).
Petitioners must surely have realized that the deal was too
good to be true. See LaVerne v. Commissioner, supra at 652-653.
Mr. Swanson is a successful businessman who knew that there were
contribution limits to Roth IRAs and who had bought a tax book
each year he prepared his own tax return. His sophistication is
further evidenced in a memo and November 9, 2000, followup memo he
wrote to Mr. Stover and Ms. Donovan where he listed the topics he
wanted to discuss with them at a June 30, 2000, meeting, including
stock options, tax avoidance strategies, avoidance of California
taxes, and future deposits and rollovers of his Roth IRA.
IV. Conclusion
Mr. Swanson had doubts, repeatedly asking whether the Roth
restructure was legal. Yet, despite these doubts, he never asked
for a written opinion letter or sought the advice of an
independent adviser, even after receiving a letter from Grant
Thornton warning him that he may have engaged in a listed
transaction and receiving notice that his returns were being
audited by the State of California.18 Petitioners have failed to
18
We further note that Mr. Swanson was made aware of Notice
2004-8, which is entitled “Abusive Roth IRA Transactions” and
described transactions designed “to avoid the limitations on
(continued...)
- 26 -
establish that they meet the reasonable cause and good faith
exception to the section 6662(a) accuracy-related penalty.
Therefore, we sustain respondent’s imposition of section 6662(a)
accuracy-related penalties for petitioners’ 2001 through 2006 tax
years.
The Court has considered all of petitioner’s contentions,
arguments, requests, and statements. To the extent not discussed
herein, we conclude that they are meritless, moot, or irrelevant.
To reflect the foregoing,
Decision will be entered
under Rule 155.
18
(...continued)
contributions to Roth IRAs”. The notice stated that the
transactions described in the notice “as well as substantially
similar transactions” were listed transactions and required
disclosure. We find it notable that Mr. Swanson continued to
rely on Mr. Stover and related tax advisers and did not seek
independent advice after being notified not only of Notice 2004-8
but also that his returns were being audited by the State of
California. See Neely v. United States, 775 F.2d 1092, 1095 (9th
Cir. 1985) (“Reasonable inquiry as to the legality of the tax
plan is required, including the procurement of independent legal
advice when it is common knowledge that the plan is
questionable.”).
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FILED
NOT FOR PUBLICATION APR 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALICIA UNGER, No. 09-55375
Plaintiff - Appellant, D.C. No. 2:08-cv-02139-SVW-CT
v.
MEMORANDUM *
CITY OF LOS ANGELES; CHIEF
RONALD J. BOYD; SGT. KEVIN
MCCLOSKEY,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted April 9, 2010 **
Pasadena, California
Before: D.W. NELSON and REINHARDT, Circuit Judges, and WHALEY, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
Plaintiff Alicia Unger brought this action pursuant to 42 U.S.C. § 1983
alleging violations of her First and Fourth Amendment rights during an incident
that occurred after a press conference on August 3, 2007. She appeals the district
court’s decision granting summary judgment in favor of defendants Sergeant
Kevin McCloskey, Port Police Chief Ronald Boyd, and the City of Los Angeles on
her First Amendment claims. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
Because Unger has not presented any evidence from which a reasonable
fact-finder could infer that McCloskey acted with the intent to chill her speech, she
has not created a genuine issue of material fact as to whether his conduct violated
her rights under the First Amendment. See Mendocino Envtl. Ctr. v. Mendocino
County, 192 F.3d 1283, 1300-01 (9th Cir. 1999). Because Unger has not created a
genuine issue of material fact as to the existence of a constitutional violation, her
supervisory and municipal liability claims also fail. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690-91 (1978); Hansen v. Black, 885 F.2d 642, 646 (9th Cir.
1989). Accordingly, we affirm the grant of summary judgment in favor of the
defendants.
AFFIRMED.
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408 F.Supp. 502 (1976)
Clinton STANTON, Sr. and Beverly A. Stanton on their own behalf and as Guardians ad litem for Pamela Stanton, et al., Plaintiffs,
v.
The SEQUOIA UNION HIGH SCHOOL DISTRICT et al., Defendants.
No. C-75-2687 SC.
United States District Court, N. D. California.
February 10, 1976.
*503 Spaeth, Blase, Valentine & Klein, Palo Alto, Cal., for plaintiffs.
Keith C. Sorenson, Dist. Atty., George F. Camerlengo, Deputy Dist. Atty., San Mateo County, Redwood City, Cal., for defendants.
MEMORANDUM OF DECISION
CONTI, District Judge.
We are asked to consider whether a school board's decision to close the only high school in a predominantly black neighborhood violates the equal protection guarantees of the Fourteenth Amendment. The request is brought on behalf of classes of students, parents, residents and concerned others[1] under § 1983 of Title 42 U.S.C. and Title VI of the Civil Rights Act of 1964. We have jurisdiction under 28 U.S.C. § 1343(3), this being an action for an injunction redressing constitutional and statutory rights. The high school district, acting through the members of its board of trustees, and the parent county board of education are alleged to have adopted and begun to implement a constitutionally impermissible school desegregation plan which puts the burden of that otherwise commendable goal entirely upon black students and their parents.
The target of this plan is Ravenswood High School in East Palo Alto, a predominantly black community which lies at the northeastern-most extremity of the Sequoia Union High School District in San Mateo County. The district, which is roughly in the shape of an elongated horseshoe, extends west and northwest, encompassing the cities of Menlo Park, Atherton, Redwood City, Woodside, San Carlos, and Belmont, in addition to East Palo Alto, in an area of approximately 100 square miles. Within this area are presently six high schools Ravenswood, Menlo-Atherton, Woodside, Sequoia, San Carlos, and Carlmont. Carlmont High School is at the western tip of the horseshoe and Ravenswood is at the eastern tip, separated by a distance of some 10 to 12 miles. The Bayshore Freeway, which cuts across the top of the horseshoe, separates from the remainder of the school district most of East Palo Alto, as well as the predominantly white community of Redwood Shores.[2]
Under the plan, students living within the present Ravenswood attendance area, most of whom are black, are to be *504 bussed across the freeway to one of the other five high schools. It is the deprivation of their neighborhood school and the "one-way busing" they must abide of which plaintiffs complain. In point of fact, the district has reassigned the present Ravenswood attendance area students to high schools only one of which is the next nearest school, this according to the Board being done to achieve racial balance throughout the district. Plaintiffs allege that the plan operates to deprive only black students, not white students, of their neighborhood schools, in violation of the former's constitutional rights.
This court on December 17, 1975, upon the District's assurance that it would suspend any negotiations in which it was engaging to sell or lease the Ravenswood property, denied plaintiffs' request for a temporary restraining order which would have gone somewhat further in not only blocking the negotiations, but also halting the District's administrative planning in furtherance of the closure decision, including paper relocation of school equipment and facilities and student and teacher reassignments, the latter being, in plaintiffs' contemplation, detrimental to the morale of Ravenswood students attending during the present 1975-76 school year. A full hearing on the matter was had in this court on January 27, 1976. Defendants at that time agreed not to resume sale or lease negotiations until a final decision was forthcoming from this court.
Before going further into the factual background of this case, we shall state at the outset what we believe to be the legal issue presented, as well as what we believe not to be the issue. Under the governing legal principles, we are not here to decide whether the school board adopted the best solution to the problems confronting it of lowered enrollment, increased costs in the face of diminishing revenues, and the desirability of integration in the operation of the Sequoia Union High School District's six high schools. The mechanics of running a school system are solely within the power, authority, and prerogative of the duly elected school board, so long as the board performs its duty without running afoul of the constraints imposed by the Constitution. This court should not and will not inject its own opinion or ideas as to which is the best system or plan or what it thinks is a better plan. We judge only whether the board's plan as adopted operates constitutionally. In the context of this case, we decide only whether the Board's plan to close Ravenswood is within constitutional restraints.
Factual Background of the Board's Action
In 1950, with a total enrollment of 2,950 students, the District operated one high school, Sequoia.[3] The five present additional high schools were constructed as district enrollment figures climbed to a peak in 1969-70 of 12,379 students.[4] Since that time enrollment has been on the decline, to the point that by the fall of 1975, the district total was down from peak figures more than 1,500 students to 10,827. Furthermore, enrollment projections indicate a total enrollment in the 1982-83 school year of 8,223, or a 34% decrease from peak enrollment.[5]
*505 When these actual enrollment figures were compared with the total capacities of the six district high schools, 11,937,[6] the District began to consider closing one or more of the schools. To make matters worse, the District is now facing serious financial difficulties. Projections show that the present level of expenditures will exceed income in 1976-77 by approximately $1.4 million.[7] The major source of revenue for school districts is local taxes. However, this source of revenue is limited by sections 2201 et seq. of the California Revenue and Taxation Code which in substance places a ceiling on the amount of revenues obtainable without voter approval. In two revenue limit increase elections called by the District in November, 1974 and March, 1975, the voters failed to approve an increase in the revenue limit.[8] Faced with the need to balance the district's budget, the Board in March, 1975 took action to cut more than $2 million from the district budget and authorized the elimination of more than 100 employee positions.[9]
This adverse financial picture coupled with declining enrollment dictated that the possibility of closing a school be studied. In January, 1975 District Superintendent Chaffey appointed a committee to study and make a recommendation on school closure.[10] The methods used by the task force in arriving at its conclusions included: (1) Developing criteria for selecting the school to be closed (including adequacy of the facility, enrollment factors, location, cost savings, resulting transportation costs, maintenance of educational programs, community relationships (including the need for integration), and disposition of property)[11]; (2) gathering information on these criteria; (3) conducting surveys of community desires of parents, students, and staff; and (4) studying the feasibility of keeping all six schools open and saving money through other means. See Sequoia Union High School District Report on School Closure, August 19, 1975 [hereinafter School Closure Report] p. 2, Exhibit 1 to Affidavit of Marion *506 McDowell, Administrative Assistant to the Superintendent and Chairperson of the Report Committee.
The report indicated that the most important criteria were the maintenance of existing educational programs and services and the amount of operating cost savings.[12] The closure committee also investigated alternatives to closing a school which would allow a balanced budget. These included sale of unused district property and equipment, increased funds from summer programs, a voter-approved revenue limit increase, and federal funds.[13] The committee determined that these alternatives would be insufficient to solve the financial problem and that were all six high schools to be left open, "major cuts" in the entire educational program in the district would be necessary. The committee's final recommendation, therefore, opted for school closure over debilitating across-the-board program slashes. The committee evaluated the impact on finances and education by simulating the closing of one school at a time, leaving the remaining five open, and concluded that Ravenswood should be closed effective July 1, 1976, with a second closure, probably of Carlmont, to take place not later than 1981. The Board of Trustees adopted these recommendations.
The Decision to Close Ravenswood
The task force's targeting of Ravenswood for first closure was based on the following application of the accumulated data to the evaluation criteria listed above:
(1) While the Ravenswood facilities are new in fact, next to the newest of the district schools and the operating and maintenance costs are the lowest of the six schools (reflecting the small size of the plant and the school's low enrollment), the cost for building renovation, repair and replacement, were the school to remain open, would be the second highest of the six schools, at $488,125.[14]
(2) While student population living in the Ravenswood attendance area is approximately 1,350 for 1975-76, only about 450 students from the area are actually enrolled at Ravenswood, with total school attendance of about 690 students, or about 43% of the school's rated capacity.[15] This is far less, in the committee's view, than "efficient enrollment levels" would dictate. Additionally, closure of a larger high school, such as Carlmont, would reduce total district school capacity to about 9,700 students, or over 900 students less than the 1976-77 projected total district enrollment of 10,623 students. Thus the district, without Carlmont, would be required to operate beyond rated capacity to the extent of some 900 students, or more than 180 students on the average per remaining school. Closure of the smaller Ravenswood, however, would result in a diminution of total capacity of 1,583, to 10,354, which translates into a 1976-77 capacity overage of only 270, or 54 students on the average per remaining school. The *507 committee viewed this overage figure as more acceptable than that caused by closing a larger school.
(3) The number of students to be reassigned, after the closing of Ravenswood, would be materially less than the number of students that would have to be reassigned through the closing of any of the other high schools.[16] If Ravenswood were to remain open as a racially balanced high school, the number of Ravenswood attendance area students that would have to attend away from the Ravenswood attendance area would be approximately the same number as are now attending the other schools on a voluntary basis.[17] This is so because of the peculiar ethnic population distribution in the district, with over 70% of the minority students in the district living in the Ravenswood attendance area. Keeping Ravenswood open and racially balanced with a 75%-25% majority to minority split at each school, only 25% or 325 of the black students living in the Ravenswood area could attend Ravenswood; 75% or 825 would have to be bussed elsewhere. There are currently in the 1975-76 school year some 900 Ravenswood area students attending one of the district's five other high schools on a purely voluntary basis.
(4) Net savings by closing Ravenswood are projected to be approximately $8.6 million over a 10-year period.[18] This is the highest savings figure to be achieved by closing any of the six high schools, but it is not significantly higher than that which would be reached by closing Carlmont or Menlo-Atherton.[19] This figure, *508 however, represents a per-pupil savings in excess of three times that to be achieved by closing any of the other high schools.[20]
(5) Additional transportation costs, due to the closing of Ravenswood, would be significantly less than those which would be incurred by closing a larger high school, such as Carlmont.[21]
(6) There are no educational programs which require facilities unique to the Ravenswood physical plant.[22]
(7) The San Mateo Community College District has expressed a strong interest in converting the Ravenswood property to use for academic and vocational classes, thus keeping the facility in use for educational purposes.[23]
(8) The committee also considered the fact that the truancy rate at Ravenswood was double that of the other schools, and took notice of the "cycle of low achievement" of a majority of the Ravenswood students entering the Sequoia District from the Ravenswood Elementary District, which continued through the high school years. Students entering Ravenswood possess reading and math skills 2½ to 3 years below grade level on the average to begin with; and the median gain scores while at Ravenswood are the lowest of all district high schools (.1 of a grade for math, .5 of a grade for reading, as compared with the overall district median of .6 and 1.1 respectively).[24] From these *509 data, the committee concluded that the apparently better educational environment found at the district's other schools might assist in breaking this cycle.
Steps Toward Integration
While this complaint does not allege that defendants are maintaining an unconstitutional racially imbalanced school system, but rather objects that defendants seek to achieve racial balance under the closure and reassignment plan by unconstitutionally placing the entire burden thereof on plaintiffs and their groups, an understanding of the history of the District's efforts at integrating the high schools is essential for full appreciation of the problems presented in this suit.
Ravenswood High School was only 21% black at the time it was built in 1958. Due to the change in the racial mix of new residents, the percentage of blacks at Ravenswood increased until 1970 when it was 94% black. Prior to 1970, the school board redrew attendance zone lines to incorporate into the Ravenswood attendance area neighborhoods with a high proportion of white residents. To upgrade the quality of education at Ravenswood, the board exempted Ravenswood from the district-wide ratios for staff, equipment and supplies, thus providing smaller classroom sizes and more equipment and supplies per pupil at Ravenswood than were available throughout the other district high schools. Over the years the board has permitted a variety of transfers from one attendance area to another in an effort to encourage integration at Ravenswood on a voluntary basis.[25]
In June, 1970, faced with the serious racial imbalance at Ravenswood, the District adopted a plan whereby voluntary transfers of blacks out of Ravenswood and whites into it was to be encouraged; if racial balance (defined then to be 25% minority enrollment) was not achieved through the voluntary plan, students were to be selected at random for mandatory transfer.[26]
An election held shortly after the adoption of this plan changed the composition of the school board, which, in 1971, as newly constituted, rescinded the mandatory transfer aspects of the 1970 plan. Nevertheless, through a concentrated effort to desegregate undertaken by the school board and the entire community, the initial impact of this 1971 voluntary plan was favorable. The minority enrollment at Ravenswood was reduced to approximately 50%. By the beginning of the 1974-75 school year, however, this figure had climbed to 64.7%.
Following the 1971 modification of the 1970 plan imposing mandatory racial balance, suit was brought against the district in this court. See Gomperts v. Chase, 329 F.Supp. 1193 (N.D.Cal.1971). The allegation was that the rescission of the mandatory features of the desegregation plan amounted to de jure segregationist action on the Board's part. This challenge was rejected by the court, which noted that Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) required plaintiffs to establish not only racial imbalance in the schools of the district, but also that such segregation "ha[d] been planned, encouraged, fostered, designed, or in some way created by law." Gomperts, supra, at 1195. The court noted that Brown did not mandate that school boards must take affirmative steps to integrate, so long as any extant racial imbalance existed under school board activity which was racially neutral. Deal v. Cincinnati Board of Education, 369 F.2d 55 (1st Cir. 1965); Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), cert. denied, 377 U.S. 924, 84 S.Ct. 1223, 12 *510 L.Ed.2d 216 (1964). Likewise, neighborhood school plans, when impartially maintained and administered, do not violate constitutional rights even though racial imbalance in fact results. The distinction is between de jure and de facto segregation. See Keyes v. School District # 1, Denver, Colorado, 445 F.2d 990 (10th Cir. 1971), modified and remanded on other grounds, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973).
The court in Gomperts found no bad faith or segregationist motive in the rescission of the 1970 mandatory transfer plan, and the request for injunction seeking to have that plan reinstated was denied.
Meanwhile, the District was experiencing certain difficulties with the federal government. In June of 1970, at a time when the minority enrollment at Ravenswood had reached the all time high of 94%, the Office for Civil Rights (OCR) of the U.S. Department of Health, Education, and Welfare (HEW), notified the District that in OCR's opinion, the District's student assignment patterns were "out of compliance with Title VI of the Civil Rights Act of 1964."[27] On July 12, 1971, following notification that the newly-elected school board had rescinded the mandatory transfer provisions of the 1970 plan to achieve racial balance, and five days after the Gomperts case had been filed in this court, OCR communicated to the District that in OCR's view the rescission action constituted a "failure to take the remedial measures required" by the Fourteenth Amendment and Title VI, and that OCR was therefore "required to initiate formal enforcement procedures."[28] In addition, it appears that various District applications to the U.S. Office of Education, HEW for Title IV desegregation grant funds were denied in part because of the District's difficulties in achieving complete racial balance.[29]
Notwithstanding the findings of this court in Gomperts, a similar suit challenging the District's assignment policies was brought in state court in 1972. Sanders v. Trustees, Sequoia Union High School District, San Mateo County Superior Court No. 166522. Due to lengthy delays, caused by the passage of Proposition 21 and the California Supreme Court's decision in Santa Barbara School District v. Superior Court, 13 Cal.3d 315, 118 Cal.Rptr. 637, 530 P.2d 605 (1975), the Sanders case was still unresolved in September, 1975. The case was shortly thereafter settled, with court approval of a stipulation which provided for the closing of Ravenswood and mandatory provisions assuring racial balance throughout the District. All schools were to be operated within 5% of rated capacity; and percentage minority enrollment in each of the remaining five high schools was not to deviate by more than 5% from the percentage minority enrollment in the district taken as a whole.[30]
*511 These capacity and racial balance constraints were satisfactory to the federal government. OCR stated to the District that compliance with the stipulation and order would meet the Title VI requirements.[31]
The Burden of Desegregation and its Incidence
Plaintiffs complain that the student reassignment plan concomitant upon Ravenswood's closure places the entire burden on black students and their parents. Under the plan, commencing in school year 1976-77, students residing in the present Ravenswood attendance area will be reassigned to one of the District's other high schools. In 1976-77, there will be 1,281 such reassignments. These students are to be distributed among three other high schools as follows: 334 present Ravenswood assignees are to be reassigned to the Woodside High School attendance area; 381 to the San Carlos High School attendance area; 420 to the Carlmont High School area; and 146 to the Menlo-Atherton High School area.[32] By the most direct route, Carlmont and San Carlos High Schools are 9.9 and 10.6 miles from Ravenswood High School; Woodside is approximately 8 miles distant.[33] The District provides free transportation by bus to all students in the district whose residence is in excess of *512 two and one-half miles from the high school he or she attends (whether a student attends his or her assigned high school, or one chosen under the voluntary transfer plan now in force). In school year 1975-76, approximately one-third of all students in the district (or about 3,500 students) travel to and from high school by bus.
In addition to student reassignments from the Ravenswood area, the closure plan's school capacity and racial balance requirements will necessitate 864 other reassignments in school year 1976-77 as follows: 369 students in the San Carlos area will be reassigned to Sequoia; 211 Carlmont students will go to San Carlos; 188 Woodside students will go to Menlo-Atherton; and 96 Carlmont students will go to Sequoia.[34] San Carlos is approximately 2.5 miles from Sequoia; Carlmont is about a mile from San Carlos and about 4 miles from Sequoia; and Woodside is about 4 miles from Menlo-Atherton.
Although enigmatically no testimony was elicited by either party on this point, the incidence of these non-Ravenswood area reassignments appears from other data in evidence to fall predominantly on white students. It also appears that these reassignments are the consequence of the racial balance guidelines imposed by the closure plan.
For example, the projected black Carlmont attendance area enrollment for 1976-77 is 95 students, not including the reassignments from Ravenswood.[35] Adding the Ravenswood reassignments under the plan (420), the total projected black enrollment at Carlmont in 1976-77 is approximately 500 (assuming the majority of the former Ravenswood area students reassigned to Carlmont are black, a decent assumption since blacks presently comprise 85% of the Ravenswood area students). This figure, 500 students, compares favorably with the District's estimated 1976-77 minority Carlmont enrollment of 490.[36] The inference therefore arises that the 307 reassignments out of Carlmont (to San Carlos and Sequoia) are of predominantly white students, and that the reason for these reassignments of white students is so that the 1976-77 minority enrollment at Carlmont can be held within racial balance guidelines, at 22.2%. Likewise, with San Carlos, which under the plan receives 381 former Ravenswood area students, which, totaled with the 1976-77 projected black San Carlos attendance area enrollment of 80, comes to 461 students, comparing favorably with the District's 1976-77 estimated minority enrollment at that school of 450. A similar inference arises that the 369 former San Carlos students reassigned to Sequoia are predominantly white, and that their transfer was necessary to hold the San Carlos percentage minority enrollment within plan limits, at 22.1%. A similar analysis can be made of the Woodside transfers to Menlo-Atherton.
While it is true that the total number of transfers from the Carlmont, San Carlos, and Woodside areas is less than the total number of transfers from the Ravenswood area, and while it is true that the mileages involved in the former transfers are somewhat less than those involved in the latter, from the above data one can conclude at the very least that the burden of desegregation has not been placed solely on minority groups. The data presented, however, are not adequate to quantify with exactitude the fraction of the total burden borne by one racial group or another. In this sense there has been a failure of proof by *513 plaintiffs that defendants' actions have imposed the predominant burden of desegregation on black students. We shall, however, for the purposes of this decision, assume that the burden is not equally shared, and that it tends to fall more heavily on blacks than on whites. As will be seen, such assumption in no way changes the result we must reach under the legal principles governing our decision.
We should point out also that since it is fair to say that plaintiffs can legitimately complain only about the mandatory transfer aspects of the District's closure and reassignment plan, it is relevant also to consider the fact that approximately two-thirds of the present Ravenswood attendance area students have, for the 1975-76 school year, voluntarily chosen to attend out of their attendance area, traveling to and from their chosen schools by bus.
Furthermore, it appears that some 600 of these students have voluntarily chosen to attend one of the three high schools targeted under the closure plan for the Ravenswood area reassignments. Looking at present voluntary transfer data combined with actual enrollment figures and the racial and ethnic distribution of students by residence, the following appears: (1) Woodside has 5 enrollment area black student residents; 5 black students have transferred out of Woodside; and 256 black students are in attendance at Woodside in 1975-76.[37] It is impossible to say with certainty where these 256 students transferred from, but most likely a sizeable fraction came from Ravenswood; (2) Carlmont has 7 enrollment area black residents; 2 black students have transferred out of Carlmont; and 193 black students are in attendance at Carlmont in 1975-76. Again, it is likely that the majority of the balance of black students, 188 came from the Ravenswood attendance area; (3) San Carlos has 9 enrollment area black student residents; 2 black students have transferred out of San Carlos; and 190 black students are in attendance at San Carlos this school year. Again, most of the 183 transfers in are probably from Ravenswood.[38]
These figures tend to show that significant numbers of black students are already voluntarily attending the three schools to which the closure plan mandates reassignments from the Ravenswood area following that school's closure. As a rough estimate, it appears that of the approximately 1,281 reassignments in 1976-77 necessitated by the closure of Ravenswood, only about 300 students are to be reassigned who are not already voluntarily attending elsewhere. Furthermore, from testimony adduced from District personnel at the hearing, it appears that some 90 openings will be available for black students at Menlo-Atherton and some 50 at Sequoia for attendance on an optional basis. These are the two closest schools to the Ravenswood area and thus could be considered the new "neighborhood schools" of the East Palo Alto area. Thus approximately 160 students, or roughly 2% of the total district enrollment, are to be mandated, under the closure plan, to attend schools which are not the next nearest schools to their residential neighborhoods. This is roughly the magnitude of the transportation burden being imposed upon some members of plaintiffs' group due to the closure of Ravenswood.
The court is not oblivious to the fact that the "burden" of relocating students goes beyond mileage and enrollment figures. There are psychological considerations which cannot be and must *514 not be ignored. School authorities are keenly aware of these and have already taken steps to ease the students' transition from Ravenswood to the other schools. For example, James Van, Principal of Ravenswood High School, testified that plans have been formulated to provide academic and social adjustment aid to the Ravenswood students to be reassigned. The plans include evaluation of academic transcripts for possible adjustment due to differences in grading systems at the various high schools, extensive screening of each student's needs and achievements for proper placement of that student in the recipient high school, joint PTA meetings, school visits, assemblies and discussion oriented toward familiarizing students with the school they will be attending, and so on. From all that appears in the evidence, the District is bending over backwards to accommodate students' needs resulting from the necessity of a school closure, and plaintiffs have not attempted to argue otherwise. This case presents none of the indicia of that "arbitrary quality of thoughtlessness" on the basis of which courts have condemned some school board actions in the desegregation area. See, e. g., Hobson v. Hansen, 269 F.Supp. 401, 497 (D.D.C.1967) (J. Skelly Wright, J.).
Governing Legal Principles
With this perspective, we now turn to the applicable case law. It is now axiomatic that educational opportunity, where it is provided to some, must be provided to all on equal terms, and that separate educational facilities for different racial groups are inherently unequal. Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1953) (Brown I). It is also beyond controversy that the primary responsibility for elucidating, assessing, and solving the problems attendant on disestablishing unequal educational facilities is placed on school authorities. Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II). Plaintiffs concede that defendants' action was undertaken to accomplish, and will accomplish, the laudable end of eliminating racial imbalance in the high schools, which had not grown out of any purposeful or intentional action by the District in creating or perpetuating an imbalanced school system (de jure segregation), but rather out of residential living patterns over which the defendants had no control (de facto segregation). See Keyes v. School District # 1, Denver, Colorado, 413 U.S. 189, 208, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Gomperts v. Chase, 329 F.Supp. 1193 (N.D.Cal.1971). Rather, plaintiffs' complaint is that the means used to accomplish this laudable end themselves are tainted by the allegedly discriminatory burden they place on plaintiffs' racial group. It is plaintiffs' view of things that they are being required to pay the entire price for integrated schools.
If, on its face, the action of the District Board appears to involve a racial classification which is "constitutionally suspect," the court must subject the Board's justification to the "most rigid scrutiny" and require that the Board carry "a far heavier burden of justification." Hunter v. Erickson, 393 U.S. 385, 392, 89 S.Ct. 557, 561, 21 L.Ed.2d 616 (1969), citing Loving v. Virginia, 388 U.S. 1, 10, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1968); McLaughlin v. Florida, 379 U.S. 184, 194, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944). Such action "will be upheld only if it is necessary, and not merely rationally related, to the accomplishment of a permissible state policy." McLaughlin, supra at 196, 85 S.Ct. 283, 290; Hobson v. Hansen, 269 F.Supp. 401, 506-08 (D.D. C.1967), aff'd sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969).
It must be emphasized, however, that this stricter standard of judicial scrutiny *515 is imposed only after an aggrieved party has proved that racial discrimination exists. See, e. g., Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Brown v. Board of Education of City of Chicago, 386 F.Supp. 110, 123-24 (N.D.Ill.1974). It is racial discrimination against which the thrust of the relevant constitutional and statutory provisions is directed, and racial discrimination must be shown.
Plaintiffs have alleged that the plan to close Ravenswood and reassign its students was racially motivated, contending that the Board's action was the product of its repugnance to busing white students into the black neighborhood school.[39] Failing direct proof of racial motivation, plaintiffs ask us to draw an inference of racial discrimination from the statistical data they have presented which they allege show the burden of defendants' closure and integration plan to fall predominantly on black students. Having raised a prima facie case of racial discrimination, plaintiffs contend, the "heavy burden" or "compelling state interest" equal protection test is triggered.
The court disagrees.[40] First, the evidence which was presented pointed *516 completely away from a conclusion that the Board's action in choosing Ravenswood for closure was racially motivated. The Board representatives and other District administrative personnel informed the court at the hearing exactly how it was decided that Ravenswood rather than another high school should be closed, including extensive testimony regarding the District's financial problems, enrollment considerations, cost savings, and impact on students throughout the district. The testimony established that the bases for the decision were those described in the School Closure Report and set forth by the court, supra, and only those. There was absolutely no evidence that improper racial considerations, such as any reluctance to bus white students into the black school, crept into the closure analysis.
Second, while the court is aware that at times we must look behind the stated justifications for certain government action to ascertain the "real motivation" of officials, often having to rely solely on statistical evidence manifesting that the impact of state action creates a pattern of race discrimination which cannot be wholly fortuitous and racially neutral, usually there must be something more than a "naked statistical argument" something that tends to make the stated justification sound unbelievable or otherwise unsatisfactory. Often the "something more" is found by analyzing alternative courses which could have been chosen and which would not have created the infelicitous impact complained of, see, e. g., Green v. County of Kent, 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951), thus raising the inference that total good faith was lacking. Sometimes the historical context of the government's conduct lends a certain "color" to the statistical argument of racial discrimination, in which case a court might more readily find racial discrimination by coupling the history of segregation with the statistical differential racial impact, see, e. g., Reitman v. Mulkey, 387 U.S. 369, 373, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Kennedy Park Homes Assn v. City of Lackawanna, 318 F.Supp. 669 (W.D.N.Y.), aff'd, 436 F.2d 108 (2d Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971); Sisters of Prov. of St. Mary of Woods v. City of Evanston, 335 F.Supp. 396 (N.D.Ill.1971); Hobson v. Hansen, 269 F.Supp. 401, 496 (D.D.C.1967), aff'd sub nom. Smuck v. Hobson, 132 U.S.App. D.C. 372, 408 F.2d 175 (1969); see also cases cited Brown v. Board of Education of City of Chicago, supra, 386 F.Supp. at 124 n. 8. In the instant case, we perceive no alternative courses of action open to the school board to solve its myriad problems which are so clearly better as to surround its stated justification with any suspicion whatsoever, and the historical context of the District's action here in no way lends that "color" to plaintiffs' statistical argument with which like allegations in the context of a history of de jure discrimination are tinted. Gomperts, supra. Contrast Brown v. Board of Education of City of Chicago, supra, 386 F.Supp. at 124-25. Plaintiffs' statistical argument, which is at best inconclusive on the issue of the magnitude and incidence of the busing burden (if indeed busing to achieve integration *517 under the circumstances of this case can be deemed a "burden" of constitutional significance[41]), thus stands alone and as such is insufficient to invoke the stricter standard of review.[42]
Having determined to apply instead the traditional standard of review under the Fourteenth Amendment, we cannot say that the Board's action was invidious or irrational. As we stated at the outset of this opinion, this court does not sit here to judge whether the Board adopted the best plan possible to solve its integration, financial, and reduced enrollment problems. Lest it be forgotten, we reiterate the observation of many courts that school administrators must be given a "broad discretion" and a "wide latitude" in fashioning workable plans to comply with the requirements of constitutional principles. This is so, for these individuals, specially trained as they are in methods designed to provide quality education, and familiar as they are by virtue of their experience in and proximity to daily operations with the practical difficulties inherent in maintaining a smooth-running school system, possess an expertise in solving school problems not possessed by courts. We are completely in accord with the following statement taken from Deal v. Board of Education, 369 F.2d 55, 61 (6th Cir. 1966), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967):
In dealing with the multitude of local situations that must be considered and the even greater number of individual students involved, we believe it is the wiser course to allow for the flexibility, imagination and creativity of local school boards in providing for equal opportunity in education for all students. It would be a mistake for the courts to read Brown in such a way as to impose one particular concept of educational administration as the only permissible method of insuring equality consistent with sound educational practice. We are of the view that there may be a variety of permissible means to the goal of equal opportunity, and that room for reasonable men of good will to solve these complex community problems must be preserved.
See also Brown II, supra, at 299; Bell v. West Point Municipal Separate School District, 446 F.2d 1362, 1364 (5th Cir. 1971) (Clark, Circuit Judge, concurring); Allen v. Asheville City Board of Education, 434 F.2d 902, 905 (4th Cir. 1970); Norwalk CORE v. Norwalk Board of Education, 423 F.2d 121, 124-25 (2d Cir. 1970) (Kaufman, Circuit Judge, dissenting on other grounds); Gomperts v. Chase, supra, at 1195; Brice v. Landis, 314 F.Supp. 974, 977 (N.D.Cal.1969).
Cases on which plaintiffs rely are readily distinguishable on the grounds that either (1) they presented challenges to school board plans found inadequate to remedy past de jure segregation, see, e. g., Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968); Clark v. Board of Education of Little Rock, 449 F.2d 493 (8th Cir. 1971); Lee v. Macon County Board of Education, 448 F.2d 746 (5th Cir. 1971); Bell v. West Point Municipal Separate School District, 446 F.2d 1362 (5th Cir. 1971); Haney v. County Board of Education, 429 F.2d 364 (8th Cir. 1970); Hall v. St. Helena Parish School Board, 417 F.2d 801 (5th Cir. 1969); Henry v. Clarksdale Municipal Separate School District, 409 F.2d 682 (5th Cir. 1969); Felder v. Harrett County Board of Education, 409 F.2d 1070 (4th Cir. 1969); Smith v. St. Tammany Parish School Board, 302 F.Supp. 106 (E.D.La. *518 1969); and/or (2) they presented facially discriminatory government action for which was offered no justification, or a justification which was constitutionally invalid (such as the "fear of white flight" or "racial hostilities"), see, e. g., Lee v. Macon County Board of Education, supra, at 753-54 (closure of black schools, causing overcrowding in remaining schools, justified by board solely on basis that "white students [would] flee this school system"); Bell v. West Point Municipal Separate School District, supra, at 1363 (same); Felder v. Harrett County Board of Education, supra, at 1074 (closure of black schools with no justification offered except for a "cryptic reference to bus routes"); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 929 (2d Cir. 1968) (government failure to attempt to relocate displaced minorities following urban renewal to same extent it was done for whites justified by delay such attempt would impose on urban renewal plan); Brown v. Board of Education of City of Chicago, 386 F.Supp. 110, 123-25 (N.D. Ill.1974) (8% staffing expenditure differential favoring white over black schools justified on grounds of administrative convenience and teacher-employee desires); Brice v. Landis, 314 F.Supp. 974, 977-78 (N.D.Cal.1969) (closure of apparently suitable black school, resulting in overcrowding of other schools, justified on ground that operation of closed school was "uneconomical" where evidence indicated otherwise).
The record here contains more than ample evidence to support the court's finding that the Board, in determining that Ravenswood was to be closed, acted in the utmost good faith, in a deliberate and nonarbitrary manner, without improper racial motivation or arbitrary disregard of the rights of a minority group, in order both to insure racial balance and to provide high quality education.[43] It cannot be disputed that where constitutional guarantees have not been transgressed by government action, as they have not been here, a particular school facility may be terminated for sound educational reasons. See, e. g., Bell v. West Point Municipal Separate School District supra; Wright v. Board of Public Instruction, 431 F.2d 1200 (5th Cir. 1970). There is no dearth of evidence here that such sound educational reasons existed for the Ravenswood closure decision.
The Board's ends, and the means chosen to achieve those ends, were both well within the scope of the law and within the scope of the Board's discretion and authority.
*519 For the foregoing reasons, it is the opinion of this court that defendants are entitled to judgment in their favor, and it is so ordered. The herein opinion shall constitute the court's findings of fact and conclusions of law.
APPENDIX I
NOTES
[1] Plaintiffs bring this action under Rule 23(b)(2) (solely to enjoin defendants' actions affecting the entire class). Because of our disposition of the case, we do not reach the issues of class certification, the applicability of Rule 23(b)(2), or the required notice to class members.
[2] A map of the school district, showing the locations of the district's six high schools, is attached to this opinion as Appendix I.
[3] See Sequoia Union High School District Report on School Closure, August 19, 1975, in evidence at the hearing as Plaintiffs Exhibit 2 (also attached as Exhibit 1 to Affidavit of Marion McDowell, Administrative Assistant to the Superintendent and Chairperson of the Report Committee) [hereinafter School Closure Report], Appendix D. p. 5D.
[4] School Closure Report, Appendix D, p. 5D.
[5] These enrollment projections are based on the actual drop in enrollments in the elementary "feeder" schools in the district. See School Closure Report, Appendix A, p. 2A, which compares district total projected enrollments for each school year through 1982-83 with total school capacity, assuming alternatively that (1) Carlmont or Sequoia are closed now, (2) Menlo-Atherton, Woodside, or San Carlos are closed now, and (3) Ravenswood is closed now. The enrollment/capacity differentials (columns 4, 7, & 9) show that capacity overages if Ravenswood is closed are significantly smaller than the corresponding figures if one of the other, larger high schools is closed. This factor was taken into account by the closure committee in recommending Ravenswood over another school for closure.
In addition, attendance area projected enrollment loss rate figures (derivable from actual enrollment figures for school year 1975-76 and projected enrollments for 1982-83, see School Closure Report, Appendix D, p. 16D, by subtracting the latter from the former and dividing the result by the former), show that loss rates are greatest in the central and southeastern part of the district, ranging from 23% for the Menlo-Atherton area to 31% for the Sequoia area. The Ravenswood area is expected to experience a 24% enrollment decline in this time period. Significantly lower, however, is the Carlmont area's loss rate 15% which, in the closure committee's view, made Carlmont less suitable for possible closure at this time than another school. See School Closure Report, p. 7. This consideration is especially relevant in light of plaintiffs' primary concentration at the hearing on closing Carlmont as an alternative to the Board's closure plan.
[6] The "rated" student capacity of each high school, based on such considerations as number of classrooms, availability of facilities (such as laboratories, craft shops, gymnasiums, etc.), and number of class periods per day, is presented below:
Carlmont 2,224
Sequoia 2,224
Woodside 1,983
Menlo-Atherton 1,977
San Carlos 1,946
Ravenswood 1,583
------
Total 11,937
See School Closure Report, Appendix D, p. 7D. School capacity can be increased somewhat by the use of "relocatable classrooms", depending on site availability, as was done in enrollment emergency periods prior to 1970 when new high schools were under construction.
[7] School Closure Report, p. 9.
[8] See Affidavit of George Chaffey, Superintendent of the Sequoia Union High School District [hereinafter Chaffey Affidavit], p. 2.
[9] Chaffey Affidavit, p. 3.
[10] The six-member committee consisted of Marion McDowell, Administrative Assistant to the Superintendent; John Gomez, Director of Human Relations; James Van, Principal of Ravenswood High School; Mal Taylor, Vice-Principal of Woodside High School; David Tansey, Assistant Superintendent; and Allan Grumen, Director of Research and Data Processing for the District.
[11] See School Closure Report, Appendix A, p. 4A.
[12] See School Closure Report, p. 4. Another important factor in the closure analyses was the likelihood of the closed facility's being put to educational use following the closure. With regard to Ravenswood, the committee recommended that the facility be leased to the San Mateo Community College District which had earlier expressed an interest in using the building. See School Closure Report, p. 20.
[13] School Closure Report, p. 9 and Appendix F, pp. 2F-7F.
[14] School Closure Report, p. 5, Appendix A, p. 9A, and Appendix D, pp. 10D-11D. The school with the highest renovation and repair costs Sequoia, at $647,400 has a rated capacity in excess of that of Ravenswood by some 640 students, which in part explains the cost difference. In part because Sequoia High School has extensive facilities for sports activities, and is the only district high school with special occupational and vocational shop facilities, see School Closure Report, Appendix A, p. 7A, the committee felt it would be disadvantageous to the district system as a whole to close Sequoia. See School Closure Report, Appendix A, p. 18A.
[15] The 900 Ravenswood attendance area students not accounted for in these figures have opted during the present school year to attend other high schools out of the Ravenswood area on a purely voluntary basis. See discussion infra.
[16] For example, at the hearing, defendants countered plaintiffs' suggestion that a better alternative would be the closure of Carlmont, with figures from a district study showing that total district reassignments necessitated by closing Carlmont would be more than three times the corresponding figure for closing Ravenswood. See Sequoia Union High School District Reassignment Comparison Report, January 23, 1976, Defendants Exhibit 1 in evidence at the hearing.
Defendants reported that the closure of Carlmont, one of the two largest high schools in the district with a rated capacity of 2,224 and projected 1976-77 enrollment very close to that figure, would require nearly 4,000 total reassignments as attendance area boundaries of each of the five remaining high schools would have to be shifted progressively to the northwest, and as special out-of-area reassignments would have to be made in order to achieve racial balance. Closure of Ravenswood, on the other hand, will result in just over 1,200 such reassignments. The significant difference in terms of total number of students impacted weighed heavily in the committee's assessment of which school to close.
As far as total impact on students is concerned, the committee seems to have been influenced by the following facts which tended to point toward closure of Ravenswood: (1) Ravenswood has the smallest rated capacity of all district high schools; (2) actual enrollment figures for school years 1966-67 through 1975-76 and projected enrollment figures for school years 1976-77 through 1982-83 show the Ravenswood attendance area to have the smallest enrollment of any of the district attendance areas, see School Closure Report, Appendix D, p. 16D; and (3) of those roughly 1,300 students presently living within the Ravenswood attendance area, two-thirds are not in fact attending Ravenswood in the 1975-76 school year, but rather have voluntarily chosen another high school under the district's voluntary transfer plan. The impact of closing Ravenswood is, therefore, in rough terms limited to those 690 students attending Ravenswood, 240 of which live outside the area and are attending Ravenswood on a voluntary transfer basis. This leaves roughly 450 students directly impacted by the closure plan in the sense that they will be required to attend a high school they might not otherwise have chosen. The committee and the Board felt that, given the exigency of closing a high school, closing Ravenswood would hold total disruption of education in the district to a minimum.
[17] That is to say, roughly the same number of students, 900, as are now busing out of their Ravenswood residence area to other high schools voluntarily, would be required under the racial balance plan to which the district is now committed (see text accompanying note 30 & note 30, infra) to attend out of the Ravenswood area, and some 1,200 non-minority students from other attendance areas would be required to bus in to Ravenswood.
[18] See School Closure Report, Appendix E, p. 1E.
[19] Ten-year net savings figures are as follows:
Ravenswood $8,635,903
Carlmont $8,582,718
Menlo-Atherton $8,356,652
Sequoia $8,314,331
Woodside $7,768,670
San Carlos $7,537,127
See School Closure Report, Appendix E, p. 1E.
There is an additional consideration, relied upon in making the closure decision, which does not appear from the absolute cost figures above: in terms of school operating efficiency, taken as a function of the size of the facility measured by rated capacity, there is apparently some reason to believe that the optimum point is reached with a student enrollment around 2,000. See Sequoia Union High School District Report, Compelling Reasons for Closing Ravenswood, September 17, 1975, contained in Plaintiffs Exhibit 1 in evidence at the hearing [hereinafter Blue Book] at pp. 53-79 (also attached as Exhibit 3 to Chaffey Affidavit) at pp. 3-4 of the Report. Ravenswood is the only high school in the district with a rated capacity considerably below this figure (1,583). See note 6, supra.
[20] It should be remembered, however, that this per-pupil savings differential is as large as it is because only 690 students are presently attending Ravenswood. The low enrollment is because two-thirds of the Ravenswood attendance area students have opted to attend elsewhere under the District's voluntary transfer plan, and the school has received only 240 reciprocal transfers. It would be more meaningful to measure the per-pupil savings differential on the basis of full enrollment at Ravenswood (which would be the case were another high school to be closed), in which case the per-pupil savings by closing Ravenswood is roughly 1.5 times that resulting from another closure.
[21] The District compared additional transportation costs to be incurred by alternatively closing Carlmont, Menlo-Atherton, and Ravenswood. It was found that closing Carlmont would increase annual transportation costs by $24,744.00 (due to the large size of the facility and the extensive reassignments necessary); closing Menlo-Atherton would increase such costs by $20,546.00. It was found, however, that closing Ravenswood would result in an annual savings of $8,212.80. See Report, Compelling Reasons for Closing Ravenswood, pp. 24-26; Blue Book pp. 77-79. Transportation savings accruing from Ravenswood's closure are due to the facts that (1) two-thirds of the attendance area students are already using district-provided transportation to attend high schools outside of the Ravenswood area and thus would not contribute to a cost increase, and (2) costs now incurred to bus nonminority students into Ravenswood, to the extent of some $47,421.84 annually, would be eliminated, these students returning to their regular attendance area schools.
[22] Contrast the situation at Sequoia High School, which has special facilities for laboratories, shops, and sports activities. See School Closure Report, Appendix A, p. 18A.
[23] See School Closure Report, p. 6; Letter of October 9, 1975 from Chancellor-Superintendent Smith of San Mateo Community College District to Superintendent Chaffey, Exhibit A to Affidavit of W. James Ware in Support of Plaintiffs' Motion for Temporary Restraining Order.
[24] See Report, Compelling Reasons for Closing Ravenswood, pp. 6-7 (Blue Book, pp. 59-60); and School Closure Report, p. 11. The students' deficiencies upon entering Ravenswood are, of course, not due to that institution, but the continuation of those deficiencies through the high school years and the lack of meaningful gain (significantly below the district average gain scores) was felt to reflect adversely upon the educational environment found there.
[25] See Gomperts v. Chase, 329 F.Supp. 1192, 1194 (N.D.Cal.1971).
[26] A more complete description of the plan is found in Gomperts, supra, 329 F.Supp. at 1195.
[27] See Letter of January 16, 1976, from OCR/HEW to Superintendent Chaffey, Exhibit 5 to Chaffey Affidavit.
[28] See Letter of July 12, 1971, from OCR/HEW to Superintendent Chaffey, Blue Book, p. 3.
[29] See, e. g., correspondence between U.S. Office of Education and Superintendent Chaffey, dated August 18, 1971, September 10, 1971, September 17, 1971, March 20, 1972, March 22, 1972, March 24, 1972, December 24, 1975, and December 30, 1975, Blue Book, pp. 5-39.
[30] The Stipulation and Order of Superior Court Judge Frank Rose, filed December 11, 1975, provides in pertinent part:
. . . . .
2. That the Court shall enter its order decreeing that the stipulations of the parties hereto shall be the order of this Court in this action.
3. That the Court retain continuing jurisdiction to assure the carrying forward of the stipulations herein for a period of six (6) years from the date of this agreement.
. . . . .
5. That both parties agree that the respondent does not in any manner admit any liability or any illegal actions by entering into this stipulation.
6. That Ravenswood High School, a comprehensive high school within the confines and jurisdiction of the respondent, shall be closed at the end of the 1975-76 school year (unless a court of competent jurisdiction finds the closure to be unlawful under California or Federal Law). Petitioners herein do not intend to, nor shall they, raise this issue.
7. That the attendance boundaries of the high schools of the district (excluding the continuation high school), commencing July 1, 1976, shall be drawn initially and altered as necessary to provide at all times for enrollments balanced for capacity and for racial and ethnic composition in accordance with the following guidelines:
a. Enrollments for the 1976-77 school year at each school shall not vary more than five percentage (5%) points above or below each school's capacity for said school year. Thereafter, the ratio of enrollment to capacity in future years at each school shall be within five per cent (5%) of the ratio of the district enrollment to district capacity.
b. The minority (black and Spanish surname) enrollments at each school shall not vary more than five percentage (5%) points from the average minority enrollment in the district.
. . . . .
8. The respondent may, at its option, operate a supplemental open enrollment voluntary transfer plan such as the plan adopted by the Board on October 15, 1975, provided said plan conforms to the guidelines set forth in the preceding paragraph.
. . . . .
10. The respondent shall maintain a human relations program with the following goals:
a. To continue to develop staff capacity to meet the needs of minority students.
b. To continue to encourage minority students to participate in all aspects of school life.
c. To continue to maintain an educational climate in which students who are achieving below-grade level are encouraged and assisted in improving their performance.
d. To continue to create opportunities among minority students for successful experiences in district schools and for building positive self-images.
e. To continue working to prevent practices, procedures and staff attitudes which result in discrimination against any students because of their race, ethnic background, religion or sex.
f. To continue to create a favorable climate for integration among students, staff, and the community.
11. The district shall employ a staff adequate to carry out the program. The district shall appoint a commission to evaluate the program on an ongoing basis. The composition of the commission shall consist of 8 members, of which at least 50% shall be minority and at least 50% shall be persons not employed by the district.
. . . . .
See Exhibit 4 to Chaffey Affidavit.
Since this court finds the school closure and reassignment plan not to contravene the federal constitution or any statute of the United States, the above Stipulation and Order represents a valid, legally binding commitment undertaken by the District, and, as such, the District is compelled to abide by the racial balance guidelines contained therein.
[31] See Letter of January 16, 1976, from OCR/HEW to Superintendent Chaffey, Exhibit 5 to Chaffey Affidavit.
[32] See School Closure Report, Appendix G, p. 1G. This does not mean that those students will necessarily attend the high school to which they are assigned; as long as the racial balance and school capacity constraints of the Sanders Stipulation and Order are met, students will be allowed voluntary transfer options to other schools.
[33] See Appendix I to this opinion.
[34] See School Closure Report, Appendix G, p. 1G. (Note: The table contained on p. 1 of Appendix G contains an apparent typographical error. Under Proposed Change # 8, the 96 Carlmont reassignments are shown as being placed at San Carlos, rather than the correct placement which is Sequoia. I. e., the "+ 96" should be shifted to the right by one column.)
[35] See School Closure Report, Appendix D, p. 17D.
[36] See School Closure Report, Appendix C, p. 1G.
[37] The relevant statistics are found in Sequoia Union High School District Report, Racial and Ethnic Distribution of Students, October 3, 1975, Blue Book, pp. 141-52; and Report, Students on Transfer Status, October 3, 1975, Blue Book, p. 140.
[38] It stands to reason that these three schools would have received the largest numbers of black transfer students, given the emphasis of the voluntary transfer plan on attracting minority students to those schools with the smallest minority enrollment. Under the District's closure plan, the present Ravenswood area students are to be assigned primarily to these three schools. See text accompanying note 32, supra.
[39] Plaintiffs style the Board's Ravenswood closure plan as "inextricably tied to their unwillingness to abandon a `freedom of choice' system which fosters racially separate schools." Plaintiffs' Memorandum in Support of Injunction at p. 5. They argue that since the voluntary transfer plan (of 1970, as modified in 1971) failed to produce racial balance throughout the schools, the defendants, refusing to force white students to attend the black school, opted instead to close it. This, they allege, brings the case within the rationale of Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) and Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). The facts in those cases, however, were substantially different from those which pertain here in that in both Green and Monroe the school authorities, by instituting a "freedom of choice" or "free transfer" system, sought to effectuate a transition from a de jure racially segregated school system to a racially nondiscriminatory system. These programs, held the Supreme Court, did not meet the Board's affirmative duty to remedy past discrimination. In the instant case, of course, the District is not now and never has been under a court desegregation mandate. See Gomperts v. Chase, supra.
[40] Even were we to infer racial discrimination from what plaintiffs assert to be the unequal busing burden placed on them by defendants' closure and reassignment plan, we would find that defendants have borne their "heavy burden of justification" by producing ample evidence of the necessity of their actions. The evidence shows to this court's satisfaction that a school closure was necessary, that objective, nonracial indicia pointed strongly to Ravenswood, and that the integration plan attendant upon the closure necessitating student reassignments was adopted with the sole-minded purpose of providing quality education to all high school students in the district.
In Norwalk CORE v. Norwalk Board of Education, 298 F.Supp. 213 (D.Conn.1969), aff'd 423 F.2d 121 (2d Cir. 1970), a case presenting strikingly similar facts to the one at bar, the district court, in holding that the closure of a black school and the busing resulting therefrom did not violate equal protection guarantees under the "heavy burden" test, see id. at 226, stated at 222:
. . . [T]he "burdens", if any, of busing and attendance at a non-neighborhood school, although statistically related to race, actually stem from a valid administrative decision against the continued location . . of educational facilities in areas of underprivileged minority group concentration because of the detrimental effects on quality education which might result.
In affirming the lower court, the Second Circuit concluded, 423 F.2d at 124:
Plaintiffs would eliminate what they call unequal treatment by having, in effect, one white child bussed out of his neighborhood for every black child bussed out of his in other words, deprive as many whites of neighborhood advantages as blacks are deprived by being bussed to schools predominately white. But the problem is not as simple as a one black, one white ratio. It is a question of the Board, with the facilities available having "acted in the utmost good faith, in a nonarbitrary and deliberate manner, in order both to insure racial balance and to provide high quality education."
We might note that the Board before us presented an even more compelling argument for closure than that presented in Norwalk CORE, in that in addition to the desire to maintain quality education, the Board here was faced with financial constraints which made closure of at least one high school imperative, a fact plaintiffs have made no attempt to refute. Contrast Brice v. Landis, 314 F.Supp. 974, 978 (N.D.Cal.1970). Moreover, there seemed to be some suggestion of racial considerations in Norwalk CORE, which is totally lacking here, in the Norwalk Board's possible reliance on "the existence of racial hostilities and fears" in deciding on the black school closure. See 298 F.Supp. at 218; Norwalk CORE, supra, 423 F.2d at 125-26 (Kaufman, Circuit Judge, dissenting); see also Taylor v. Louisiana, 370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed.2d 395 (1962), and cases cited 423 F.2d at 126 n. 5 (fear of hostile reaction to a speaker's message is insufficient reason to limit his First Amendment right to speak). We have no evidence that "racial hostilities" or the "fear of white flight" from the school system played any role in the Board's action targeting Ravenswood for closure.
[41] See Norwalk CORE v. Norwalk Board of Education, 298 F.Supp. 213, 222 (D.Conn. 1969), aff'd, 423 F.2d 121 (2d Cir. 1970); Allen v. Asheville City Board of Education, 434 F.2d 902, 907 (4th Cir. 1970).
[42] See Brown v. Board of Education of City of Chicago, 386 F.Supp. 110, 124 (N.D.Ill.1974), citing Jefferson v. Hackney, 406 U.S. 535, 548, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972).
[43] Nor, it bears repeating, can plaintiffs realistically argue that the defendants' actions manifest that "arbitrary quality of thoughtlessness" recognized by Judge J. Skelly Wright to be "as disastrous and unfair to private rights and the public interest as the perversity of a willful scheme." Hobson v. Hansen, 269 F.Supp. 401, 497 (D.D.C.1967), aff'd sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969). The school closure decision was the product of some eight months of intensive study by numerous specially trained individuals who considered at length all of the relevant parameters (such as finances, enrollments, and the need and desire for integrated schools) and none of the irrelevant ones (such as the "fear of white flight" or a desire not to bus white children into black neighborhoods), and who were aided by community input through questionnaires and public meetings. The decision arrived at by the committee and eventually the Board was neither "arbitrary" nor "thoughtless". The most that can be said is that plaintiffs would have preferred a different result. In addition, we note that while the Board's actions certainly withstand constitutional scrutiny without it, the fact that the closure and reassignment plan had express HEW approval is not without significance. See, e. g. Chambers v. Iredell County Board of Education, 423 F.2d 613, 617 (4th Cir. 1970). The Office of Civil Rights, HEW, deemed the plan as putting the District in full compliance with its Title VI responsibilities and stated that OCR "genuinely appreciate[d the District's] commitment to an equal opportunity for all of the students in the . . . District." See Letter of January 16, 1976, from OCR/HEW to Superintendent Chaffey, Exhibit 5 to Chaffey Affidavit. The viewpoint of a government agency, specifically created to monitor compliance with the precise statutory and constitutional provisions in issue here, and particularly familiar with and expert in dealing with such problems, is not lightly to be regarded.
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264 So.2d 576 (1972)
Thomas SULLIVAN
v.
STATE.
7 Div. 90.
Court of Criminal Appeals of Alabama.
May 9, 1972.
Rehearing Denied May 30, 1972.
*577 Traylor, Baker & Cole, Ft. Payne, for appellant.
William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
PER CURIAM.
The appellant was indicted for the offense of robbery and after counsel was appointed a plea of not guilty was entered. The trial resulted in a verdict and judgment of guilty and punishment was fixed at ten years in the penitentiary.
The prosecuting witness and alleged victim testified in substance that on April 1, 1970, he parked his car on First Street in Fort Payne, DeKalb County, Alabama, and that the appellant drove up and parked his car beside him; that the appellant got out of his car and got into the back seat of the witness's car and told him that he owed him three dollars; that the appellant then came over the back seat and began beating the witness with his fist and that the appellant then said, "You are going to give me the money or I will beat you to death;" that the witness got out three twenty dollar bills and a ten dollar bill and put them on the seat; that the appellant said he would get his three dollars as well as seven dollars for his clothes which the witness tore in the encounter and sixty dollars which the appellant said the witness owed one James Hudgins; and that the appellant then took the money from the car seat. The witness denied owing the appellant any money but stated that the appellant owed him three dollars. He also denied owing James Hudgins any money or receiving a receipt for the money from the appellant. The witness further testified that after these occurrences took place he went to the police and they sent him to the sheriff's office; that after he got to the sheriff's office he wiped the blood off his face and head and changed clothes; and they then took a picture of him.
*578 Deputy Sheriff George H. Noles testified he saw the victim or prosecuting witness in his office at the courthouse on the date in question and that his face was "pretty well beaten up" and was bloody; that the prosecuting witness then wiped the blood off his face and head; and that he then took a picture of him. The picture was admitted in evidence and appears in the record.
The appellant testified in his own behalf and admitted beating the prosecuting witness in an effort to collect money owed him and Hudgins. He also admitted that by the use of such means and in that manner he got the seventy dollars and gave the person he was charged with robbing a receipt for the money.
The appellant filed a motion for a new trial.
In the trial court's oral charge the jury was not instructed that the indictment embraced or included any lesser offenses. No exceptions or objections were made to the oral charge of the trial court and the appellant did not request any written charges indicating or stating that other offenses were included in the indictment or that the appellant could be convicted of any offense other than robbery. The oral charge submitted the case to the jury on the issue of the innocence or guilt of the appellant of the offense of robbery.
The appellant complains the evidence was insufficient for a conviction of robbery. There was substantial evidence of every element of the offense of robbery and when such is the case a jury question is presented. In the case of Massengale v. State, 36 Ala.App. 195, 54 So.2d 85, the rule in respect to the sufficiency of the evidence to support a verdict of guilty is stated in this manner:
"... That is to say, there must be substantial evidence tending to prove all elements of the charged offense, a mere scintilla of evidence, in view of the presumption of innocence, being insufficient."
In the instant case there is no error in that respect.
The appellant further complains on this appeal that the trial court did not instruct the jury in its oral charge that the indictment included lesser offenses or that the jury could convict the appellant for assault and battery or larceny. In the light of the record in this case we find no error in that respect.
In Moates v. State, 40 Ala.App. 234, 115 So.2d 277, the court said:
"... A party cannot except to matter omitted from a court's oral instructions to the jury. Tranholm v. State, 38 Ala.App. 57, 77 So.2d 491. Further, exceptions to the oral instruction of the court must be taken before a jury retires, or they will not be considered...."
If matters were omitted in the instant case from the court's oral instructions the appellant's remedy was by way of requested written instruction. An exception or objection made for the first time on appeal comes too late.
The appellant's motion for a new trial was denied and overruled by the trial court. One of the grounds of said motion was as follows:
"13. For that it affirmatively appears from the record that the jurors were separated for several minutes during a recess (without the consent of the defendant) and the State has not met the burden of showing clearly that no injury resulted."
There was another stated ground of said motion which raised the same question.
It does not appear that evidence was taken and submitted on the hearing of said *579 motion. However, the record in this case discloses the following:
"(Court was in recess for ten minutes, after which time the jury returned to the courtroom, and the following proceedings were had and done.)
"The Court: Gentlemen of the jury, the Bailiff informed me that as you were going to the Grand Jury room for your break that four or five of the number by mistake got down stairs, is that correct?
"One of the Jurors: Yes, sir, I went down there.
"The Court: How many went down stairs by mistake?
"(Six Jurors held up their hands.)
"The Court: Gentlemen of the Jury, first of all do you have a judgment of how long you were separated from the remainder of the Jurors?
"One of the Jurors: Two or three minutes.
"The Court: During the time you were separated were any of you approached by anyone about the case, did you talk to anyone during the time you were separated?
"One of the Jurors: We didn't.
"The Court: Did anyone attempt to say anything to you about the case?
"One of the Jurors: No, sir.
"The Court: Did any outsider say anything to you at all?
"One of the Jurors: No, sir.
The Court: Do you have any questions?
"Mr. Wear: No, sir.
"The Court: I believe there was no harm as the result of the separation.
"The Court: Go to the Jury."
Mr. Wear was one of appellant's counsels during the trial of this case. He did not question the jurors nor any of them about the above mentioned incident. He did not object to the ruling of the trial court on the matter.
On the motion for a new trial and on this appeal appellant complains of error because of said separation of the jury.
In Mitchell v. State, 244 Ala. 503, 14 So.2d 132, the court quoting from Payne v. State, 226 Ala. 69, 145 So. 650, stated:
"While the rule is not now so strict, as at common law, as to the separation of the jury, it is the present rule in felony cases, especially capital ones, that a separation of the jury, after the trial has been entered upon, and before verdict, creates a cause for reversible error in favor of the defendant, unless the state affirmatively shows that the defendant was not thereby injured."
The record as set out in this opinion demonstrates that it was affirmatively shown that the appellant was not injured by the said separation of the jurors. Error does not appear in that respect.
We have performed our statutory duty to search the record for error and error does not appear therein.
It is ordered and adjudged that the judgment in this cause be affirmed.
This opinion was prepared by L. S. MOORE, Supernumerary Circuit Judge, and adopted by this court as its opinion.
Affirmed.
PRICE, P. J., and CATES, ALMON and TYSON, JJ., concur.
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532 Pa. 197 (1992)
615 A.2d 331
Floyd E. GOUSE, Appellee,
v.
Douglas R. CASSEL, M.D., Appellant.
Supreme Court of Pennsylvania.
Argued May 7, 1991.
Decided October 8, 1992.
*198 *199 Christian S. Erb, Jr., Harrisburg, for appellant.
Howard A. Chajson, Pittsburgh, amicus curiae.
Richard H. Wix, Harrisburg, for appellee.
OPINION
NIX, Chief Justice.
In this appeal, appellant, Douglas R. Cassel, M.D., seeks review of an Order of the Superior Court reversing the judgment of the Court of Common Pleas of Cumberland *200 County in favor of appellant and remanding the matter solely for a determination of damages. For the following reasons, we affirm in part, reverse in part and remand the matter to the Cumberland County Court of Common Pleas.
The factual matrix out of which this matter arises is as follows. In October, 1976, Floyd E. Gouse, appellee, sustained injuries when a trailer collapsed on him at work. He was taken to the hospital where appellant performed an examination and discovered a cyst on his spleen. Appellant recommended a splenectomy to which appellee assented. The patient developed a subphrenic abscess resulting from postoperative complications. Appellee remained in the hospital several weeks while the abscess was drained and treated. Appellee was discharged from the hospital five weeks after admission.
Three weeks after appellee's discharge, the abscess and incision wound broke open and continued to drain. Appellant advised appellee that he should see his family physician for additional care. Appellee saw Dr. Milford who admitted him to the hospital for a fistulagram which revealed a subphrenic abscess in the area of the splenectomy. The area was drained and appellee was placed on antibiotics.
Two weeks subsequent to discharge from this hospitalization, appellee experienced severe aching in his calf muscles and was readmitted to the hospital. Appellee was diagnosed and treated for bilateral and deep vein thrombophlebitis. As a result of the complications which followed the surgeries, appellee has been unable to obtain employment.
Appellee commenced this action alleging that his informed consent to the surgery was not obtained, that the surgery was unnecessary, and that the operation and follow-up care were negligently performed. The trial court granted a compulsory non-suit on the negligence claim; however, the issue of informed consent was submitted to the jury. The jury considered the following interrogatories:
1. Was Mr. Gouse advised of those material facts, risks, complications and alternatives to surgery, which a reasonable *201 man would have considered significant in deciding whether or not to have the operation?
2. If you find that the plaintiff was not advised of those material facts, risks, complications and alternatives to the surgery, do you find that a reasonable man having Mr. Gouse's diagnosis and in Mr. Gouse's condition would have agreed to undergo the operation nevertheless?
Gouse v. Cassel, No. 23 Civ.Div.1981, slip op. at 1-2 (Court of Common Pleas of Cumberland County, Oct. 28, 1988). The jury answered the first question negatively and the second affirmatively.
The trial court denied post-trial motions. It determined that to succeed in a cause of action for lack of informed consent, a plaintiff must show "an absence of valid consent, and a determination that a properly advised patient would not, under the circumstances, have had the procedure." Id. The trial court further determined the second prong to be objective and not subjective, that is, what the reasonable person, rather than the plaintiff, would have done.
The Superior Court reversed the judgment of the trial court and remanded the case for a trial solely to determine the amount of damages to which Mr. Gouse is entitled. The Superior Court, in finding that it was error for the trial judge to give the second interrogatory to the jury, stated that "it is improper for a trial court to add to the law in Pennsylvania by saying that before a jury can render a verdict for a plaintiff-patient, that plaintiff must show that a reasonable person in his place, having been properly advised by his doctor, would not have consented to surgery." Gouse v. Cassel, 385 Pa.Super. 521, 526, 561 A.2d 797, 800 (1989) (citing Sagala v. Tavares, 367 Pa.Super. 573, 580, 533 A.2d 165, 169 (1987)). The appellant, Douglas R. Cassel, M.D., filed a petition for allowance of appeal and we granted allocatur. 524 Pa. 608, 569 A.2d 1367 (1989).
The issue on appeal before this Court is whether in an informed consent case, when the surgeon is found to have inadequately explained the risks and complications of the surgery, a causal relationship must exist between the surgeon's *202 failure to disclose information and the patient's consent to undergo the surgery. For the reasons that follow, we hold that a physician or surgeon who fails to advise a patient of material facts, risks, complications and alternatives to surgery which a reasonable man in the patient's position would have considered significant in deciding whether to have the operation is liable for damages which ensue, and the patient need not prove that a causal relationship exists between the physician's or surgeon's failure to disclose information and the patient's consent to undergo surgery.
Appellant argues that there must be proof that the patient would not have given his consent to the surgery had the risks and complications been adequately explained. Appellee argues, conversely, that once a determination is made that a physician or surgeon operated without informed consent, the physician or surgeon is liable for damages that occur regardless of whether there was any negligence on his part.
We reject appellant's reasoning that in the area of informed consent a risk is relevant only if its disclosure would result in the patient's refusal of medical treatment.
[W]here a patient is mentally and physically able to consult about his condition, in the absence of an emergency, the consent of the patient is "a prerequisite to a surgical operation by his physician" and an operation without the patient's consent is a technical assault, Moscicki v. Shor, 107 Pa.Super. 192, 195, 163 A. 341, 342 (1932); Dicenzo v. Berg, 340 Pa. 305, 307, 16 A.2d 15, 16[, and] the burden is on plaintiff to prove "that the operation performed, or substantially that operation, was not authorized by him." Dicenzo v. Berg, 340 Pa. at 307, 16 A.2d at 16.
Smith v. Yohe, 412 Pa. 94, 106, 194 A.2d 167, 174 (1963).
Subsequently, in Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966), this Court defined the scope of "consent" as necessarily requiring "informed consent."
"[S]ince the agreement between the physician and his patient is contractual in nature, for there to be a valid consent it must be clear that both parties understand the nature of the undertaking and what the possible as well as expected *203 results might be. . . . [I]t will be no defense for a surgeon to prove that the patient had given his consent, if the consent was not given with a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results."
Id. at 166, 223 A.2d at 674 (quoting Robert E. Powell, Consent to Operative Procedures, 21 Md.L.Rev. 189 (1961)). Additionally, "where a physician or surgeon can ascertain in advance of an operation alternative situations and no emergency exists, a patient should be informed of the alternative possibilities and given a chance to decide before the doctor proceeds with the operation." Id. at 157, 223 A.2d at 670 (quoting Bang v. Charles T. Miller Hospital, 251 Minn. 427, 88 N.W.2d 186 (1958)).
We do not believe that requiring physicians and surgeons to communicate material facts, risks, complications and alternatives to their patients creates an unduly burdensome requirement. A physician or surgeon need not disclose all known information; however, the physician or surgeon is required to advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient's situation would consider significant in deciding whether to have the operation. Thus, the patient is assured that he will be provided with "all the material facts from which he can make an intelligent choice as to his course of treatment, regardless of whether he in fact chooses rationally." Cooper v. Roberts, 220 Pa.Super. 260, 266, 286 A.2d 647, 650 (1971) (emphasis added) (footnote omitted) (citing Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966) and Dunham v. Wright, 423 F.2d 940 (3d Cir.1970)).
It is argued, to the contrary, that it is fundamentally unfair for a physician to be subject to liability for the negligent failure to apprise a patient of information that would not have changed the outcome of the patient's decision. However, we find the standard stated herein to be an equitable balance between the competent patient's right to medical self-determination and the need to alleviate the requirement that the *204 physician or surgeon disclose every risk to the patient for fear that the physician or surgeon will be liable for battery. The patient alleging that the insignificant, unrevealed factor is significant in making a determination will not recover damages. Conversely, the physician or surgeon alleging that a significant risk is insignificant will be liable for any damages that ensue.
Appellant further submits that the Superior Court erred when it made no distinction between a case where there is no consent and a case where there is no informed consent. As previously stated, however, this Court defined the scope of "consent" as necessarily requiring "informed consent." See Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). Lack of informed consent is the legal equivalent to no consent; thus, the physician or surgeon who operates without his patient's informed consent is liable for damages which occur, notwithstanding the care exercised. Because a patient must be advised of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient's situation would consider significant in deciding whether to have the operation to give informed consent, the Superior Court appropriately made no distinction between consent and informed consent cases.
Instantly, the patient, appellee, demonstrated, and the jury found, that he was not advised of those material facts, risks, complications and alternatives to surgery which a reasonable man would have considered significant in deciding whether to have the operation. At this point, the causation inquiry ends. The sole issue remaining was a determination of damages. In this matter, the jury was improperly instructed on legal causation. Therefore the Superior Court correctly "refuse[d] to eviscerate the doctrine of informed consent by predicating materiality and, thus, the mandate for disclosure of risks and alternatives, upon a factfinder's determination that a plaintiff-patient would have declined treatment had the disclosures been made." Gouse v. Cassel, 385 Pa.Super. 521, 526, 561 A.2d 797, 800 (1989).
*205 Appellant also argues that the ruling on legal causation by the Superior Court in this case is contrary to conclusions reached by appellate courts in jurisdictions elsewhere in the United States. However, the cases presented by appellant are not binding on this Court. Appellant has failed to convince this Court that we should abrogate the policy that a competent adult citizen should have the right to medical self-determination, regardless of whether the patient chooses rationally.[1]
Although we affirm the reasoning of the Superior Court in this matter, nonetheless, this Court finds that a new trial is warranted.[2] Grant or refusal of a new trial will not be reversed on appeal, absent an abuse of discretion or error of law which controlled the outcome of the case. Anzelone v. Jesperson, 436 Pa. 28, 258 A.2d 510 (1969); Chesko v. Steinbaugh, 434 Pa. 82, 252 A.2d 644 (1969). The Superior Court correctly decided that it was an error of law for the second interrogatory to be sent to the jury. As a result, the Superior Court disregarded the second interrogatory, granted judgment for the appellee and remanded the case to the trial court solely to determine damages. We find that the Superior Court improperly determined that the outcome of the trial without the second interrogatory would have been a judgment for the appellee, with only the amount of damages in question. The Superior Court should have vacated the entire verdict and granted a new trial without limitation because the standard of law presented to the jury was erroneous.
In making the determination to grant judgment for the appellee, the Superior Court failed to comply with the standard it set forth in Lambert v. Pittsburgh Bridge and Iron *206 Works, 227 Pa.Super. 50, 323 A.2d 107 (1974), aff'd, 463 Pa. 237, 344 A.2d 810 (1975).
Where the trial court instructs the jury on the controlling law . . . it must be assumed that the jury resolved the evidence on the basis of said law, and not on any other theory. If the jury is instructed to apply a standard of law or conduct which appears patently inapplicable to the facts in the record, judgment must be reversed and a new trial granted.
Id. 227 Pa.Super. at 56, 344 A.2d at 110. In this case, there was no causation issue; consequently, any jury instruction regarding causation was "patently inapplicable to the facts in the record. . . ." Id. Therefore, "judgment must be reversed and a new trial granted." Id.
Accordingly, we affirm in part, reverse in part and remand to the Court of Common Pleas of Cumberland County for a new trial.
LARSEN and McDERMOTT, JJ., did not participate in the consideration or decision of this case.
NOTES
[1] The third issue raised by appellant is whether the jury uses an objective ("reasonable person") or subjective standard when determining legal causation. Since we find that the Superior Court correctly determined that it was error for the trial judge to give any instruction on causation, we do not address appellant's third issue.
[2] The fourth issue raised by appellant is, if this Court decides causation is not a required element of proof, whether a new trial on liability is warranted where irrelevant and prejudicial evidence was introduced at trial. However, because we find that a new trial is necessary for other reasons, we do not address appellant's fourth issue.
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569 F.2d 1179
WAN SHIH HSIEH, Plaintiff-Appellant,v.Maurice F. KILEY, District Director, Immigration andNaturalization Service, United States Departmentof Justice, Defendant-Appellee.
No. 439, Docket 77-6144.
United States Court of Appeals,Second Circuit.
Argued Dec. 5, 1977.Decided Jan. 12, 1978.
David C. Buxbaum, New York City, for plaintiff-appellant.
Robert S. Groban, Jr., Special Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S.D.N.Y., Patrick H. Barth, Asst. U. S. Atty., New York City, of counsel), for defendant-appellee.
Before LUMBARD, SMITH and MANSFIELD, Circuit Judges.
MANSFIELD, Circuit Judge:
1
Wan Shih Hsieh, a permanent resident alien of Chinese origin, appeals from an order of the Southern District of New York, Lloyd F. MacMahon, Judge, dismissing her complaint, which purports to invoke federal jurisdiction under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, et seq., and Administrative Procedure Act, 5 U.S.C. §§ 701, et seq., seeking an order directing the Immigration and Naturalization Service ("INS") to pursue and complete an investigation requested of it by the United States Consul in Taiwan into the question of whether her permanent resident status should be rescinded pursuant to § 246(a) of the Immigration and Nationality Act (the "Act") on the ground that it had been acquired through fraud. 8 U.S.C. § 1256(a). We affirm, but with clarification as to the INS's investigative duties in the matter, in view of the district court's opinion on this subject.
2
Appellant, a native and citizen of Taiwan, was in 1966 admitted into the United States as a non-immigrant, leaving her husband and three children in Taiwan. In February, 1973, appellant invested $7,000 in the Hsin Hsin Chinese Restaurant in Brooklyn, becoming a shareholder of the corporation that owns the restaurant. On April 11, 1973, the United States Department of Labor issued a labor certification to the restaurant authorizing employment of appellant as a specialty chef on the basis of her sworn statement that from 1959 through 1966 she had been employed as a chef in the Kwok Kong Restaurant in Taipei City, Taiwan. Armed with this certificate, the Hsin Hsin Restaurant on April 30, 1973, petitioned the INS to qualify appellant as a sixth preference immigrant pursuant to § 203(a)(6) of the Act, 8 U.S.C. § 1153(a)(6), which was approved on August 9, 1973. On November 9, 1973, appellant's status was accordingly adjusted by the INS to that of permanent resident alien, see § 245 of the Act.1
3
Having successfully gained permanent resident status for herself, appellant next sought to assist her children in Taiwan to enter the United States as immigrants by petitioning the INS on their behalf to grant them second preference status under § 203(a)(2) of the Act, 8 U.S.C. § 1153(a)(2).2 On April 9, 1975, the INS approved these preference petitions and on July 15, 1975, the children applied to the United States Consulate in Taiwan for immigrant visas. In reviewing their applications the Consul discovered that appellant's "household register," an official record kept by the Taiwan government of her education, occupation and employment, did not reveal her claimed earlier employment at the Kwok Kong Restaurant in Taipei City, which had been the predicate for her United States labor certification, sixth preference classification, and adjustment of status, which in turn was the predicate for approval of her children's visa applications as second preference immigrants.
4
Apparently suspecting that appellant's status may have been procured by fraud, the Consul held up issuance of the visas to her children and requested the INS to forward copies of her adjustment application and to investigate the basis of her adjustment of status and whether she had in fact worked as a chef at the Kwok Kong Restaurant in Taipei City as represented. In the meantime appellant's son executed in Taiwan a sworn statement that his mother had not to his knowledge worked as a chef in Taiwan before going to the United States but had worked as a pedicab driver.
5
On August 2, 1976, the INS conducted an interview of appellant in which it sought unsuccessfully to elicit information from her regarding her employment as a chef in Taiwan before coming to the United States in 1966. The interview proved a failure, principally because of differences over the accuracy of the interpretation (appellant does not speak English) and objections to the relevancy of questions. On the following day, appellant instituted the present action, claiming unreasonable delay by the INS in its investigation and seeking an order directing the Consul to issue the immigration visas to the children and directing the INS to complete its investigation and furnish its report immediately to the American Embassy in Taiwan concerning whether appellant had fraudulently obtained her status. In the alternative, appellant sought an order granting the visas to the children and a declaratory judgment that the children are eligible for adjustment of status and that the INS's failure to respond to the Consul and to appellant's petition is illegal. After an initial application for immediate relief was, after hearing, denied by Judge Wyatt, and appellant thereafter failed to comply with pretrial orders issued by the district court, Judge MacMahon, by memorandum opinion dated August 24, 1977, denied plaintiff's motion for summary judgment and granted defendant's motion to dismiss the complaint.
6
Judge MacMahon held that the federal court lacked jurisdiction to review the Consul's decision and that, although the INS owed a duty to complete within a reasonable time its investigation into possible fraud on appellant's part in obtaining her status as a permanent alien resident (at least insofar as the issue was relevant to her petitions to the INS for preference status for her children as a basis for their immigration), the INS had not abused its discretion in failing to do so by the time this action was commenced, in view of all of the circumstances, including "the low priority given to such investigations and the other prior investigative responsibilities of INS." From this order Hsieh appeals.
DISCUSSION
7
The district court correctly held that no jurisdictional basis exits for review of the action of the American Consul in Taiwan suspending or denying the issuance of immigration visas to appellant's children there. It is settled that the judiciary will not interfere with the visa-issuing process. Gomez v. Kissinger, 534 F.2d 518 (2d Cir. 1976); Pena v. Kissinger, 409 F.Supp. 1182, 1185-88 (S.D.N.Y.1976). In Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972), the Supreme Court stated the basic principle:
8
" 'The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.' "
9
The jurisdiction of federal courts to review the INS's action in conducting or completing an investigation requested by some other branch of the government, such as the State Department, would similarly depend on the existence of a statutory authorization or mandate from Congress. No such authorization is shown or appears to exist. The Declaratory Judgment Act,28 U.S.C. §§ 2201, et seq., cited in appellant's complaint is remedial, not jurisdictional, Schilling v. Rogers, 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960); Skelly Oil Co. v. Phillips Petroleum Co.,339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950), and the Administrative Procedure Act, also cited, does not provide subject matter jurisdiction. Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Small v. Kiley, 567 F.2d 163, 164 n. 1 (2d Cir. 1977).
10
Although not referred to as a jurisdictional basis in her complaint, appellant now contends that the district court is empowered to compel the INS to complete its investigation into her immigration status by 28 U.S.C. § 1361, which authorizes district courts to assume jurisdiction over "any action in the nature of mandamus to compel an officer or employee of the United States . . . to perform a duty owed to the plaintiff." Putting aside the question of whether appellant, in view of the INS's offer to continue its investigation if appellant will cooperate, is eligible to invoke such relief, appellant's contention must be rejected for the reason that the INS is under no duty to conduct an investigation for the purpose of determining whether visas should be issued to aliens in foreign countries by the State Department pursuant to § 104 of the Act, 8 U.S.C. § 1104. The sole duty of the INS in this context was to determine whether appellant's petition for preference status for her children in Taiwan, based on their relationship to her, should be granted under § 203(a) (2) of the Act, 8 U.S.C. § 1153(a)(2), see 8 C.F.R. § 204, 22 C.F.R. § 42.40. This it has done, approving appellant's preference petition on April 9, 1975.
11
The investigation which appellant seeks to compel the INS to complete in the present action is not directed toward the preference petitions for the children but the question of whether appellant fraudulently acquired her immigration status. Whether the INS pursues this latter inquiry further and, if so, whether it will institute proceedings to rescind her status are matters solely within the INS's discretion, see United States v. Santelises, 476 F.2d 787, 790 (2d Cir. 1973); United States ex rel. Masucci v. Follette, 272 F.Supp. 563, 565 (S.D.N.Y.1967), and hence are not reviewable under the Administrative Procedure Act or 28 U.S.C. § 1361. Moreover, the INS has five years from the date when appellant acquired her permanent resident status within which to institute rescission proceedings. Zaoutis v. Kiley, 558 F.2d 1096 (2d Cir. 1977). In short, neither the children's application for admission into the United States as immigrants nor the Consul's request to the INS create a duty on the part of the INS to appellant to investigate whether rescission proceedings should be instituted, much less to complete any such investigation within a shorter period than that provided by § 246(a) of the Act, 8 U.S.C. § 1256(a). Aside from our powerlessness to intervene, the judicial creation of such a duty would have the potential for mischievous interference with the functioning of already overburdened administrative agencies.
12
In stating in its opinion that the INS had a duty under 8 C.F.R. § 205 and 22 C.F.R. § 42.43 to conduct and complete the investigation requested by the Consulate, the district court appears to have confused the INS's duty to act on preference petitions, which are concerned solely with the family relationship between the parties, with the question of whether the INS must investigate alleged fraud in obtaining a permanent resident status. These matters are entirely separate and distinct. Since there is no question as to the parent-child relationship between appellant and her children in Taiwan, the preference petitions were approved by the INS on April 9, 1975. The INS's duty in the matter ended there. To the extent that the district court's opinion states that the INS is under a further duty to investigate a fraudulently-obtained preference status it is vacated.
13
The order of the district court is affirmed.
1
Appellant's application was denied to the extent that it sought to adjust the status of her children also to permanent resident aliens. This relief was not available to appellant's children under § 245 since they were not in the United States but in Taiwan
2
The purpose of this procedure is merely to verify the relationship between the permanent resident in the United States and his or her relatives located outside of the United States in order to determine whether the latter qualify for preferential treatment under § 203 of the Act. See 8 C.F.R. § 204.1(a)
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320 S.W.2d 786 (1959)
Roland PRICE et al., Partners Doing Business as Peem Coal Company, et al., Appellants,
v.
Norma Jean BATES, Appellee.
Court of Appeals of Kentucky.
February 6, 1959.
*787 Hinton & May, Pikeville, for appellants.
C. W. Napier, Hazard, for appellee.
STEWART, Judge.
This action arose out of a collision near the town of Whittaker in Letcher County between an automobile driven by Eloise Bates, in which Norma Jean Bates was riding as a guest, and a coal truck owned by Roland Price and Floyd Mercer, a partnership, and operated by Hubert Freeman. Norma Jean Bates recovered judgment in the sum of $11,000 against the two owners and the operator of the truck and they have appealed.
A reversal of the judgment is sought on these grounds: (1) Because the lower court erred in refusing to impanel 21 jurors so that the two sets of separate defendants between whom there was a cross-claim could have three strikes each; (2) because the trial judge admitted incompetent evidence offered by plaintiff; and (3) because "Instruction No. 4" given to the jury in part authorized a recovery for permanent impairment when it is contended the evidence did not justify such a finding.
Appellee, Norma Jean Bates, commenced the litigation now before us by filing an action against appellants, Roland Price, Floyd Mercer and Hubert Freeman, for damages aggregating $50,600 based on injuries allegedly occasioned by the accident. Thereafter upon appellants' motion, Eloise Bates, the driver of the car in which appellee rode as a guest, was made a third-party defendant, and later, by amended complaint, Norma Jean Bates sought the same recovery against her as in her original suit against appellants. Subsequently, Eloise Bates by answer and cross-claim sued appellants for damages totaling $5,480 claimed for personal injuries and for the destruction of her car. In a second amended complaint, appellee increased the amount of her demand against appellants and Eloise Bates $6,400 conditioned upon certain alleged items.
As a result of a jury trial a verdict was rendered only against appellants in favor of Norma Jean Bates for the sum first mentioned and in favor of Eloise Bates for $1,500. No appeal was taken from the judgment entered in behalf of Eloise Bates, so that Norma Jean Bates is the sole appellee in this case.
*788 When this cause came on for trial a panel of 18 jurors was called and, before the oath to answer questions was given, appellants, by their attorney, and Eloise Bates, by her attorney, jointly moved the trial judge to impanel 21 jurors, stating as a reason therefor that there were two separate and distinct sets of defendants, who were antagonistic to each other, and that they, together with plaintiff, Norma Jean Bates, were each entitled to three peremptory challenges, making nine in all, which would require three additional jurors to be called. This joint motion was overruled.
It is contended the rejection of appellants' and Eloise Bates' request for an initial panel of 21 jurors constitutes a reversible error. We agree. KRS 29.290 provides: "Each party litigant in civil actions shall have the right of peremptory challenge to three jurors, in addition to the right to challenge for cause." Eloise Bates, soon after she was made a third-party defendant, filed a cross-claim against her codefendants, appellants herein, bottomed upon the latters' alleged negligence. Upon the happening of this event, the interests of appellants and Eloise Bates as codefendants below became antagonistic, and the trial judge ruled against them to their prejudice when he required them to share three peremptory challenges in the selection of a jury. See Williams v. Whitaker, Ky., 293 S.W.2d 627, a recent case wherein this Court reversed the judgment on the sole ground that the lower court refused to allow the request of each of two defendants who were adversary cross-claimants to have three peremptory challenges. See also Vaughn's Adm'r v. Louisville & N. R. Co., 297 Ky. 309, 179 S.W.2d 441, 152 A.L.R. 1060. Also in view of CR 13.07, which now provides that cross-claims may be adjudicated in the principal action, the ends of justice require that the above provision of law be complied with in cases of the kind before us.
Appellee argues the lower court erred in trying the case over her objection before a jury when no demand for a jury trial had been made until appellants moved for this type of trial on the day the case was to be tried. The circuit judge, in overruling appellee's motion to hear the case without a jury, stated, and we believe correctly, that "this is purely and simply a case to be tried by a jury." CR 39.02 fully covers the situation that arose and upholds the ruling of the circuit court on the matter.
The next complaint has to do with certain testimony the trial court allowed appellee's counsel to elicit on recross-examination. Appellant, Floyd Mercer, one of the partners, was permitted to be interrogated concerning the number of other traffic accidents in which the partnership's truck driver, Hubert Freeman, also an appellant, had been involved. He was insistently prodded with questions like this: "How many accidents has Hubert had?" "Well, how many has he had, one, two, three, four or five, more or less?" Then this witness was asked how many times this same truck driver had "been cited by the police". When the reply was, "I don't know about it", the witness was interrogated: "Have you ever heard of it?"
As a general rule, evidence of other acts, even of a similar nature, is not competent to prove the commission of a particular act charged, unless the acts are connected in some special way, indicating a relevancy beyond mere similarity. The philosophy behind such a rule is explained in Louisville & N. R. Co. v. Loesch, 215 Ky. 452, 284 S.W. 1097, 1100, 47 A.L.R. 347. That case involved an automobile accident occurring on a toll bridge operated by the railroad and at the trial the plaintiffs there were permitted to introduce evidence of other accidents occurring at the same place. This was held erroneous as there was no evidence that a previous accident had happened at the *789 same place and under practically similar circumstances and conditions. This Court said: "Accidents may and do happen frequently in unaccountable ways, and the facts and circumstances in any two of them are rarely identical, or approximately so; the facts and circumstances leading up to one accident at the same place as another can rarely furnish any light upon an investigation of what caused the other accident." See also Louisville & N. R. Co. v. Howe, Ky., 243 S.W.2d 905, and Park Circuit & Realty Co. v. Coulter, 233 Ky. 1, 24 S.W.2d 942.
As regards the admissibility of evidence involving previous criminal convictions and proceedings in connection with automobile accidents, 5A Am.Jur., Automobiles and Highway Traffic, Section 947, page 836, has this to say:
"In accidents involving the negligent operations of automobiles, evidence of prior criminal convictions for the same act is generally excluded, either because of the often perfunctory nature of the criminal proceedings in such cases, and the fact that such convictions are frequently uncontested, or because of traditional reasons as to variations in parties, procedures, and the like. A fortiori, evidence of the pendency of a prosecution for reckless driving is irrelevant in an action for damages. In accordance with these principles, the courts have generally refused to permit the cross-examination of a driver in civil actions as to prior arrests or convictions for traffic offenses, on the ground that the introduction of such evidence would lead to a consideration of collateral issues having no bearing on the question of a driver's negligence in the accident under consideration."
We consider the evidence under discussion not only highly incompetent but of such prejudicial nature that, standing alone, it constitutes a sufficient reason for reversal of the judgment in this case. Appellants' counsel interposed an objection to all this testimony but failed to make known the grounds for asking that it be rejected. However, it became unnecessary to specify in this respect because the trial judge made no request that such be done. See CR 46.
The last contention raises the point as to whether the evidence justified the giving of an instruction which would permit the jury to find appellee sustained a permanent disability as a result of the accident and to assess damages accordingly. This issue requires an evaluation of the evidence bearing upon appellee's injuries.
Appellee was around 21 years of age at the time she was involved in the accident. According to the proof, her injuries consisted of a brain concussion which has been accompanied by loss of memory, dizziness, fainting spells and roaring in the ears and head. She also received a severe bruise on the side of her right eye and internal injuries in the cervical and lumbo-sacral portions of the spine. The medical evidence points to the existence of a herniated disc in her lower back region, and this condition, the doctors stated, explains the cause of low-back and right-leg pains about which she has complained since she was hurt. She has also suffered from emotional disturbances characterized by nightmares, frequent crying spells and excessive fatigue.
Appellee's witness, Dr. Curwood R. Hunter, of Cincinnati, Ohio, and appellants' witness, Dr. Harvey Chenault, of Lexington, both of whom are specialists in neurological surgery, testified that in their opinion no permanent impairment would result to appellee and that, based upon the symptoms manifested by her, she would return to normal health within a year or so. A third doctor, B. F. Wright, a general practitioner in Letcher County, testifying in behalf of appellee, and predicating his diagnosis upon visual observation of appellee and upon her case history as related by her, reached this general conclusion as to the duration of her infirmities: "It is possible *790 that some of these symptoms (those we have described above) may more or less remain permanent, but my experience has been that most of them clear up in a period of from one to two years."
Since this case is being reversed and will undoubtedly be retried, we are reserving our determination of the question of whether, under the evidence introduced, the lower court properly allowed the jury to find that appellee is permanently injured and to award damages on that basis. It will be recalled the only medical evidence in favor of appellee relating to the continuance of her impairment was that of Dr. Wright who stated that it was "possible" that some of the symptoms arising out of her injuries "may" remain permanent. This type of proof seems to us to lack the direct and positive character required to make it clearly appear that appellee might not fully recover from her injured condition. There is of course appellee's own proof as to the character of suffering she endures that cannot be ignored.
In Consolidated Coach Corporation v. Eckler, 248 Ky. 309, 58 S.W.2d 582, 584, we made this statement on the subject under discussion: "It has been repeatedly held by this court that testimony of professional or expert witnesses to the effect that injuries might be permanent or that there is a possibility of permanency is not such positive and satisfactory evidence required to take to the jury the question of permanent injury."
However, as previously stated, we are suspending our decision on this issue for the reason that at another trial it may be made plainly evident, through the introduction of other proof, whether or not appellee has been permanently disabled as a result of her injuries. Unquestionably sufficient time will have elapsed to enable some definiteness to be reached as to the true state of her health.
Other points are raised in appellants' brief, chiefly of a procedural nature, which in our opinion will not recur at a retrial of this action, and we conclude it is unnecessary to answer them.
Wherefore, the judgment is reversed and this case is remanded for further proceedings not inconsistent with this opinion.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,987
EX PARTE CRAIG RONALD HARRISON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1132564 IN THE 185TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
OPINION
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of theft and
sentenced to ninety-nine years’ imprisonment. The Fourteenth Court of Appeals affirmed his
conviction. Harrison v. State, No. 14-10-00254-CR (Tex. App.—Houston [14th Dist.] Nov. 17, 2011)
(unpublished).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel
failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of
his right to petition pro se for discretionary review.
2
Appellate counsel filed an affidavit with the trial court. The trial court has entered findings
of fact and conclusions of law and recommended that relief be denied. The findings of fact and
conclusions of law are not supported by the habeas record, which contains counsel’s admission that
she did not advise applicant of his right to file a pro se petition for discretionary review, and
Applicant’s un-rebutted evidence that he did not receive notice until several months after his
conviction was affirmed. Appellate counsel failed to timely notify Applicant that his conviction had
been affirmed and failed to advise him of his right to petition for discretionary review pro se. Ex
parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).
We find that Applicant is entitled to the opportunity to file an out-of-time petition for
discretionary review of the judgment of the Fourteenth Court of Appeals in Cause No. 14-10-00254-
CR that affirmed his conviction in Cause No. 1132564 from the 185th District Court of Harris
County. Applicant shall file his petition for discretionary review with this Court within 30 days of
the date on which this Court’s mandate issues.
Delivered: March 6, 2013
Do not publish
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53 F.3d 1286
McNamarav.Cochran*
NO. 94-4326
United States Court of Appeals,Eleventh Circuit.
Apr 26, 1995
1
Appeal From: S.D.Fla., No. 93-06808-CIV-KMM
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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784 P.2d 788 (1990)
The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Julian Arthur TRUJILLO, Defendant-Appellee.
No. 89SA185.
Supreme Court of Colorado, En Banc.
January 16, 1990.
*789 G.F. Sandstrom, Dist. Atty. and Frederick N. Mattoon, Chief Deputy Dist. Atty., Pueblo, for plaintiff-appellant.
Ted J. Malouff, Pueblo, for defendant-appellee.
Chief Justice QUINN delivered the Opinion of the Court.
In this interlocutory appeal, the People challenge a ruling of the district court suppressing a statement made by the defendant, Julian Arthur Trujillo, to a police officer during a stationhouse interview and also suppressing a shotgun and shotgun shells recovered by the officer during the interview. The district court ruled that the interview constituted custodial interrogation which should have been preceded by a proper advisement and waiver of Miranda rights[1] and that the shotgun and shells were the fruit of the illegal interrogation. We affirm the suppression ruling.
The defendant is charged in a two-count information with the crimes of second degree assault and felony menacing allegedly committed against Steven Archuletta on or about November 5, 1988. The defendant entered a not guilty plea to the charges and filed a motion to suppress a statement made by him to Officer Frank Holderman on the basis that the statement was obtained in violation of his privilege against self-incrimination and his right to effective assistance of counsel as guaranteed by the United States and Colorado Constitutions.
At a pretrial suppression hearing the evidence established the following facts. Steven Archuletta filed a report with the Pueblo Police Department in which he stated that the defendant had fired a shotgun at his automobile sometime during the early morning of November 5, 1988. Officer Holderman was assigned to conduct an investigation of Archuletta's report and went to the defendant's home on November 7 to question the defendant about the incident. The defendant was not home at this time, and the officer told the defendant's mother that her son was a suspect in an assault and asked her to tell the defendant to contact him when the defendant returned home. While at the defendant's home, the officer observed a vehicle that matched the description of the automobile involved in the assault. The defendant's mother told the officer that the vehicle belonged to her, and she permitted the officer to search the automobile. The officer found a spent twenty-gauge shotgun shell in the trunk of the automobile.
Later in the day the defendant telephoned Officer Holderman at police headquarters. The officer told the defendant that he wanted to speak to him because he (the defendant) was a suspect in a shooting. The defendant agreed to come to the police station. Upon his arrival at the station at approximately 6:30 p.m., the officer directed the defendant to a small interview room where he conducted an interview of the defendant for approximately one and one-half hours. At no time either before or during the interview did the officer advise the defendant of his Miranda rights or tell the defendant that he was free to leave at any time.
The officer questioned the defendant at length about the shooting incident. The defendant basically told the officer that prior to the shooting incident he had a confrontation with Archuletta in a bar. Because Archuletta had made threats against the defendant's mother, the defendant went home, told his mother to call the *790 police, and obtained a shotgun. When Archuletta and another man later drove up to the defendant's house and shouted a threat to "get this punk," the defendant fired the shotgun at Archuletta's vehicle.
During the stationhouse interview Officer Holderman told the defendant that he needed to obtain the shotgun as evidence. The officer asked the defendant to accompany him to the defendant's home, and the defendant agreed to do so. Prior to the trip, however, the officer took a photograph of the defendant for his investigative file. The officer also asked the defendant if he would be willing to submit to a polygraph exam, and the defendant answered that he would.
Upon arriving at the defendant's home, the defendant produced a shotgun and shells which the officer took into his possession. The officer drove the defendant back to the police station and told him that a report would be filed and the matter would be referred to the district attorney. The defendant then was permitted to leave the police station at approximately 8:50 p.m.
At the suppression hearing the officer testified that the defendant was very cooperative during the interview and did not appear to be intimidated in any way. The defendant, on the other hand, testified that he believed he was required to talk to the officer and did not have the right to decline to answer the officer's questions. He further testified that he was not aware that he had the right to confer with a lawyer before talking to the officer and did not realize that he was free to leave the police station until the end of the interview when the officer told him that he could leave.
In granting the motion to suppress, the district court made extensive findings of facts which basically recited the above sequence of events. In ruling that the defendant had been subjected to a custodial interrogation without having been advised of his Miranda rights, the court remarked as follows:
The manner of the interview was congenial and the Defendant was not restrained, but the time, place, and purpose suggest that it was custodial. The accusatory nature of the questions is pivotal to this Court's determination. Defendant was talking to stay out of jail. He wasn't sure he was free to leave until he was allowed to do so. A reasonable person would consider himself significantly deprived of his liberty in these circumstances. The statements are voluntary but without proper Miranda advisement.
In urging reversal of the suppression ruling, the People contend that the district court erred in determining that the interview at the police station constituted a custodial interrogation. In support of their contention the People assert that the court improperly focused on one factor onlythe defendant's fear of being arrestedto the exclusion of other factors underlying the stationhouse interview.
In Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that prior to any custodial interrogation a suspect must be adequately informed that he has a right not to say anything, that anything he does say can be used against him in court, that he has a right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to questioning if he so desires. See Duckworth v. Eagan, ___ U.S.___, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989); California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981); People v. Hopkins, 774 P.2d 849 (Colo. 1989). A person subjected to custodial interrogation may waive these rights as long as the waiver is knowingly, intelligently, and voluntarily made. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612.
The term "interrogation" under Miranda refers not only to express questioning by a police officer, but also to any words or actions on the part of the officer that the officer "should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). The determination of whether an officer's words or actions are "reasonably likely to elicit an *791 incriminating response" turns primarily "upon the perceptions of the suspect, rather than the intent of the police [officer]." Id. at 301, 100 S.Ct. at 1690. Focusing on the perception of the suspect is designed to provide a person in police custody, in a manner consistent with Miranda, with "an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police." Id. The record before us unequivocally establishes that the defendant was subjected to "interrogation" by Officer Holderman at the stationhouse, and no question is raised here on that aspect of the case.
What is at issue is whether the questioning of the defendant was "custodial" for purposes of the Miranda warnings. In determining whether a suspect has been subjected to a custodial interrogation, a court must consider the totality of circumstances surrounding the interrogation. While an inquiry into the totality of circumstances necessarily will be open-ended, the more prominent factors for consideration include the following:
the time, place and purpose of the encounter; the persons present during the interrogation; the words spoken by the officer to the defendant; the officer's tone of voice and general demeanor; the length and mood of the interrogation; whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; the officer's response to any questions asked by the defendant; whether directions were given to the defendant during the interrogation; and the defendant's verbal or nonverbal response to such directions.
People v. Thiret, 685 P.2d 193, 203 (Colo. 1984).
A trial court's ruling on the issue of custody for purposes of the Miranda warnings must be based on an application of the controlling legal standard to the historical facts as found by the court. The Miranda warnings are required when a person is subjected to police interrogation after having been taken into custody or otherwise deprived of his freedom of action in a significant way. Miranda, 384 U.S. at 476-77, 86 S.Ct. at 1629. A person obviously is "in custody" when that person has been subjected to the constraints associated with a formal arrest. The Miranda requirements, however, are not limited to formal arrests, but also include police interrogations conducted under circumstances where the person interrogated has been significantly deprived of his freedom of action.[2] In determining whether Miranda warnings are required under such circumstances, we have employed an objective testthat is, whether a reasonable person in the suspect's position would consider himself deprived of his freedom of action in a significant way during a police interrogation in which the suspect was exposed to the risk of self-incrimination. People v. Cleburn, 782 P.2d 784, 786 (Colo.1989); People v. Sandoval, 736 P.2d 1201, 1203 (Colo.1987); People v. Thiret, 685 P.2d at 203; People v. Black, 698 P.2d 766, 768 (Colo.1985).
The People in this appeal have no quarrel with the legal standard utilized by the *792 court in its suppression ruling. Rather, the People take issue with the trial court's findings of fact and, in that respect, argue that the court failed to consider the totality of circumstances in making its findings of fact. We reject the People's claim.
It is plain beyond argument that the trial court properly considered the totality of circumstances in ruling on the suppression motion. The court expressly noted in its ruling that the time, place, and purpose of the interrogation gave the questioning a custodial quality. The record shows that the questioning lasted approximately one and one-half hours and was conducted in a stationhouse interview room with only the officer and the defendant present during the interview. Moreover, it is undisputed that the purpose of the interrogation was to gather evidence against the defendant and refer the matter to the district attorney for the possible filing of criminal charges. In its ruling, the trial court also placed significance on the words spoken by the officer to the defendant, remarking in this respect that the questions put to the defendant were accusatory in nature. These questions included not only an inquiry into the facts of the shooting but also a request to submit to a mug shot, an inquiry into the defendant's willingness to take a polygraph exam, and a request to produce the shotgun and shells which the officer needed as evidence. Although the officer's tone of voice and general demeanor were at all times polite and no physical restrictions were placed on the defendant, the record shows that the officer assumed a dominant role during the interview and subsequent trip to the defendant's home. Indeed, as the court noted in its ruling, the defendant "was talking to stay out of jail" and was not certain "he was free to leave until permitted to do so" by the officer. Simply stated, the record refutes the People's claim that the trial court improperly focused only on the defendant's fear of arrest, to the exclusion of other circumstances, in ruling on the motion to suppress.
We take this occasion to emphasize once again that the issue of custody is essentially a factual question that involves a trial court's assessment of the credibility of witnesses and a weighing of their testimony. See Cleburn, 782 P.2d at 786-87; People v. Johnson, 671 P.2d 958, 962 (Colo.1983). Our role as an appellate court is to review the record and determine whether the trial court's findings of historical fact are adequately supported by competent evidence and whether the court applied the correct legal standard to these findings in resolving the issue before it. E.g., Cleburn, 782 P.2d at 786-87; People v. Quezada, 731 P.2d 730, 732 (Colo.1987); People v. Johnson, 681 P.2d 524, 525 (Colo.1984). Where, as here, the historical findings are adequately supported by competent evidence, and where, as here, the trial court applied the correct legal standard to those findings in suppressing evidence, we will not overturn the court's suppression ruling.
The suppression ruling is accordingly affirmed.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[2] The United States Supreme Court has taken a fact-specific approach in determining whether, for purposes of Miranda, a person subjected to police questioning had been deprived of his freedom in a significant way. See Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (roadside questioning of motorist detained pursuant to routine traffic stop not custodial interrogation, since stop was temporary and did not subject motorist to constraints comparable to formal arrest); Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (probation officer's interview of probationer at probation office, as requested by officer, not custodial interrogation because interview did not place probationer in environment comparable to custodial arrest); California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)(per curiam) (where police tell defendant that he is not under arrest, but defendant voluntarily agrees to accompany police to stationhouse for questioning, defendant's incriminating statements at stationhouse not the product of custodial interrogation); Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) (Miranda applicable to situation where defendant was questioned in his bedroom by four police officers at 4:00 a.m. about fatal shooting of victim during quarrel inside restaurant earlier in the evening, since defendant was not free to leave during questioning and thus was deprived of his freedom in a significant way).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00005-CV
______________________________
IN THE INTEREST OF
MALARIE MARIE WHITE, A CHILD
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 2004-510
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Valerie Porter, the sole appellant in this case, has filed a motion seeking to dismiss her
appeal. Pursuant to Tex. R. App. P. 42.1, her motion is granted.
We dismiss the appeal.
Jack Carter
Justice
Date Submitted: September 18, 2006
Date Decided: September 19, 2006
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 29, 2010
No. 09-15873 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20536-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSVALDO PIEDRA,
a.k.a. Bolly,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 29, 2010)
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Osvaldo Piedra appeals the district court’s imposition of a supervised
release term. Piedra argues that when he completes his prison term, he will have
served the two-year statutory maximum term of imprisonment for supervised
release violations, and therefore the district court erred by imposing an additional
supervised release term under 18 U.S.C. § 3583(h) (2002). Because we agree, we
vacate and remand the sentence imposed.
In 2004, Piedra pleaded guilty to a single count of money laundering that
occurred from May 1998 through November 2002, in violation of 18 U.S.C.
§ 1956(h). He was sentenced to 29 months’ imprisonment followed by 3 years of
supervised release.
Piedra violated the terms of his release and, in 2008, the district court held a
supervised release revocation hearing, revoked Piedra’s supervised release, and
sentenced him to 12 months and 1 day incarceration, followed by 24 months of
supervised release. In 2009, the district court held another supervised release
revocation hearing. Piedra admitted violating the terms of his second release and
requested that the court sentence him to the high end of the 4-to-10-month
sentencing range and terminate his supervised release due to his alcohol problem.
The probation officer advised the court that the maximum possible
imprisonment term was 11 months and 29 days, which was the statutory maximum
2
of 24 months minus the 12 months and 1 day incarceration that Piedra had
received for his previous supervised release violation. The probation officer also
advised the court that the maximum supervised release term was 36 months minus
any incarceration time the court imposed here. The district court sentenced Piedra
to 11 months and 29 days imprisonment, followed by 24 months of supervised
release, explaining that it sentenced Piedra above the guideline range “because of
his history, because of his total disregard of his prior opportunities to be in
compliance [with] this Court’s orders.” Piedra objected to the reasonableness of
his sentence but did not mention the additional supervised release. He now
appeals.
We review de novo the legality of a sentence imposed pursuant to
revocation of a supervised release term. United States v. Mazarky, 499 F.3d 1246,
1248 (11th Cir. 2007). Because Piedra did not challenge the term of supervised
release imposed, we review for plain error. To demonstrate plain error, Piedra
“must show that: (1) an error occurred; (2) the error was plain; (3) it affected his
substantial rights; and (4) it seriously affected the fairness of the judicial
proceedings.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003).
3
Section 3583 of Title 18 governs the imposition of a new term of supervised
release following the revocation of a prior term.1 Section 3583(e)(3) provides
that:
[t]he court may . . . revoke a term of supervised release,
and require the defendant to serve in prison all or part of
the term of supervised release authorized by statute for
the offense that resulted in such term of supervised
release . . . except that a defendant whose term is
revoked under this paragraph may not be required to
serve . . . more than 2 years in prison if such offense is a
Class C or D felony . . .
18 U.S.C. § 3583(e)(3) (2002). The charged conspiracy to launder money, 18
U.S.C. 1956(h), is a Class C felony. See 18 U.S.C. § 1956(a)(1) and (h); 18
U.S.C. § 3559(a)(3). Thus, two years is the maximum statutory imprisonment
term for Piedra’s supervised release violations.
Section 3583(h) limits the maximum term of supervised release imposed
upon revocation to “the term of supervised release authorized by statute for the
offense that resulted in the original term of supervised release, less any term of
1
Post-revocation penalties for violations of supervised release are attributable to the offense
conduct underlying the original conviction. Johnson v. United States, 529 U.S. 694, 701 (2000).
Piedra committed the relevant offense between May 1998 and November 2002; therefore, we
apply the 2002 version of § 3583 because the supervised release statute in effect at the time of the
original offense controls the penalties that may be imposed for violations of supervised release.
Id.
4
imprisonment that was imposed upon revocation of supervised release.” 18 U.S.C.
§ 3583(h) (2002).2 “[T]he maximum allowable supervised release following
multiple revocations must be reduced by the aggregate length of any terms of
imprisonment that have been imposed upon revocation.” Mazarky, 499 F.3d at
1250. As this court has explained:
in the case of a Class C felony for which the maximum
supervised release term is three years, a defendant who is
revoked and re-imprisoned for 18 months could be ordered
to serve as much as 18 additional months on supervised
release (36-month maximum term of supervised release
minus 18 months imprisonment equals 18 months possible
re-release supervision). If the same defendant was again
revoked, he could be re-imprisoned for not exceeding six
months (24-month cap minus 18 months previously-served
imprisonment equals 6 months allowable imprisonment)
and if so imprisoned, could not thereafter be placed on
supervision (because the two-year imprisonment cap would
have been reached). Thus, under [subsection (h),] a
defendant would always be credited for incarceration time
2
The full text of 18 U.S.C. § 3583(h) (2002) provides that:
When a term of supervised release is revoked and the defendant is
required to serve a term of imprisonment that is less than the
maximum term of imprisonment authorized under subsection (e)(3),
the court may include a requirement that the defendant be placed on
a term of supervised release after imprisonment. The length of such
a term of supervised release shall not exceed the term of supervised
release authorized by statute for the offense that resulted in the
original term of supervised release, less any term of imprisonment
that was imposed upon revocation of supervised release.
5
against both the cap on re-imprisonment and the maximum
authorized period of supervised release.
Mazarky, 499 F.3d at 1249 (citation omitted) (emphasis in original).
Here, as the government concedes, the district court plainly erred in
imposing an additional term of supervised release. Because 18 U.S.C. § 1956(h)
is a Class C felony, Piedra could not serve more than two years imprisonment for
his supervised release violations. See 18 U.S.C. 3583(e)(3). In aggregate, Piedra
served the 2-year statutory maximum imprisonment term – he served 12 months
and 1 day incarceration for the first revocation and 11 months and 29 days for the
second revocation. Thus, the district court properly applied the requirement in
§ 3583(h) that any term of imprisonment imposed pursuant to revocation be
subtracted from the statutorily authorized term of supervised release. But the
district court failed to recognize that § 3583(h) prohibits the imposition of any
additional supervised release term, where the defendant, as here, has served the
statutory maximum imprisonment term for violating his supervised release. See
Mazarky, 499 F.3d at 1249-50.
Because the court imposed an illegal supervised release term, the district
court erred, this error was plain, and it affected Piedra’s substantial rights.
Moreover, the error seriously affected the fairness of Piedra’s sentencing
6
proceedings. See Gresham, 325 F.3d at 1265. Thus, we vacate the district court’s
judgment insofar as it imposed the additional term of supervised release and
remand with instructions for the district court to re-sentence Piedra accordingly.3
SENTENCE VACATED AND REMANDED WITH INSTRUCTIONS.
3
Although Piedra objected to the reasonableness of his sentence before the district court, he
presents no arguments on appeal that his sentence was unreasonable. Accordingly, Piedra has
abandoned any claim that his sentence was unreasonable. United States v. Cunningham, 161 F.3d
1343, 1344 (11th Cir. 1998).
7
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473 P.2d 901 (1970)
24 Utah 2d 439
Max M. JOHNSON, Plaintiff and Appellant,
v.
John W. TURNER, Warden, Utah State Prison, Defendant and Respondent.
No. 11728.
Supreme Court of Utah.
August 26, 1970.
*902 David S. Dolowitz, Salt Lake County Legal Services, Salt Lake City, for plaintiff and appellant.
Vernon B. Romney, Atty. Gen., R. Bruce Bybee, Lauren N. Beasley, Asst. Attys. Gen., Salt Lake City, for defendant and respondent.
CROCKETT, Chief Justice.
This is an appeal from an order by Judge Allen B. Sorensen of the Fourth District Court dismissing a petition of Max M. Johnson for a writ of habeas corpus which attacks his conviction for grand larceny of two guitars from the Metro Music Center in American Fork, Utah. The order stated two bases for denying the writ: (1) that the matters raised therein were issues which should have been raised on appeal, and (2) that the application was repetitive, as the petitioner had previously filed a writ of habeas corpus which was denied by the Third District Court. On this appeal the petitioner seeks reversal of that order; and also a reversal of his conviction on the grounds that: (1) he was not permitted to have "witnesses in his own behalf" and (2) that he was denied the "right to appear and defend by counsel."[1]
Petitioner was originally tried by a jury for the crime of which he stands convicted in the Fourth District Court on February 8, 1968. He was represented by attorney Leon M. Frazier. The judgment and commitment under which he is held was entered March 1, 1968. No appeal was taken therefrom and the judgment became final on April 1, 1968.[2] In October 1968, six months after that judgment had become final, petitioner sought his release by filing a petition for a writ of habeas corpus in the Fourth District in connection with which he again had the assistance of attorney Frazier. That proceeding was transferred to the Third District Court wherein petitioner had the assistance of attorney LeRoy Axland of the Salt Lake County Legal Services Office. A hearing thereon was held on January 30, 1969. The trial judge, Stewart M. Hanson, caused an order to *903 be entered on January 31, 1969, denying that petition. Again there was no timely appeal taken from that judgment. There was an abortive effort at an appeal filed belatedly on March 6, 1969, which was dismissed by this Court pursuant to an appropriate motion.
Four months after the termination of the first habeas corpus proceeding just discussed, on July 1, 1969, the instant proceeding was commenced by the filing of another such petition. This was in turn dismissed by Judge Sorensen and the instant appeal was taken from that order.
It is apparent that the charge of being deprived of his right to have "witnesses on his own behalf" is stated in that manner in order to bring into consideration the quoted constitutional phrase, but it does not actually involve lack of "witnesses." His contention of error in that regard relates to a ruling of the trial court sustaining an objection to certain proffered evidence. In the morning session of the trial Dan Newell had testified concerning the theft of two guitars from his music store. In the afternoon one Kenneth Smith made it known to defense counsel that he would testify in behalf of petitioner Max Johnson that he had heard Dan Newell say in a conversation that he had given Johnson permission to take the guitars to raise some money on them. Upon Smith taking the stand and being asked about this conversation, an objection was made on the ground of hearsay.
The trial court stated that he sustained the objection, "not to the evidence, but to the manner in which you are endeavoring to place it before the jury," apparently intending to indicate that as impeachment of the testimony of Dan Newell no proper foundation had been laid. Howsoever that might be, due to the considerations mentioned below and the fact that this case is thus disposed of on procedural grounds, it would serve no useful purpose to discuss the merits of this ruling on evidence, or the effect it may or may not have had upon the outcome of the trial.[3]
The petitioner's charge of being deprived of the "rights to appear and defend * * * by counsel" is likewise stated in such a manner as to draw into consideration the quoted constitutional phrase. We are firmly committed to the right of an accused to have competent counsel to assist in safeguarding his rights at all essential stages of a proceeding against him.[4] But the complaint petitioner makes does not actually involve lack of an attorney. As will be seen from the recitation of facts above, he had an attorney at his original trial, and at each of the subsequent habeas corpus proceedings, including this one. In order to excuse the failure to take a timely appeal he now asserts that attorney Leon M. Frazier, who he concedes in his brief gave him competent representation at the trial, did not properly advise him as to his right to appeal and how to do so. Inasmuch as this is something which does not take place in court, the record is silent as to whether Mr. Frazier did or did not advise petitioner in that regard. There is no affirmative showing in the record that Mr. Frazier did not advise petitioner concerning his right to appeal.[5] Petitioner's argument rests solely upon his own averment *904 in this proceeding. If any inference were to be drawn on the matter the likelihood is to the contrary. Where a person is represented by a member of the Bar in good standing; and where, insofar as the record discloses, he represented the accused in a diligent and capable manner, it seems fair to assume that he similarly fulfilled his duties in other respects and advised him concerning his rights.
Thus, in summary, we have a situation where the petitioner, with adequate representation by counsel, has had a jury trial which resulted in a verdict of guilty; a judgment was entered thereon from which no appeal was taken and it thus became final.[6] Any defect or error there may have been therein should have been the subject of an appeal. And beyond this, there is the adjudication on his previous petition for a writ of habeas corpus. If there had been any substantial failure to accord the petitioner his rights in connection with his original trial, that failure was as well known to him and his counsel at the time of the first habeas corpus proceeding as it was at the time of filing this one. Therefore those matters should be deemed res adjudicata because of the finality of that judgment.[7] So the finality of petitioner's judgment and conviction was in double depth before the instant proceeding was commenced.
It makes veritable mockery of the rules of procedure to permit a person to ignore the time limitations for taking procedural steps and obtain an appellate review of a judgment at any time he takes a notion by a habeas corpus proceeding. The efficient and orderly administration of justice and respect for the finality of judgments regularly arrived at demand that the merry-go-round of litigation stop somewhere. Notwithstanding the foregoing, we note here and reaffirm our previously stated position that where it appears that there has been such miscarriage of justice that it would be unconscionable not to reexamine a conviction, and that for some justifiable reason an appeal was not taken thereon, we do not regard rules of procedure as being so absolute as to prevent us from correcting any such obvious injustice.[8] Nevertheless, on the basis of what we have said herein, we have found nothing in this case to persuade us to disagree with the ruling of the trial court in dismissing the petition.
Affirmed. No costs awarded.
CALLISTER, TUCKETT, HENRIOD and ELLETT, JJ., concur.
NOTES
[1] See Utah Const. Art. I, Sec. 12.
[2] Sec. 77-39-5, U.C.A. 1953, appeal to be taken "within one month after the entry of the judgment appealed from."
[3] That there should be no reversal of a judgment for mere error, but only if substantial and prejudicial, see Sec. 77-42-1. U.C.A. 1953; State v. Estes, 52 Utah 572, 176 P. 271; State v. Myers, 15 Utah 2d 130, 388 P.2d 801.
[4] See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; and Alires v. Turner, 22 Utah 2d 118, 449 P.2d 241, and authorities therein cited.
[5] That in habeas corpus proceeding burden is upon petitioner to prove facts to entitle him to relief see McGuffey v. Turner, 18 Utah 2d 354, 423 P.2d 166; Wilson v. Hand, 181 Kan. 483, 311 P.2d 1009; State v. Lopez, 79 N.M. 235, 441 P.2d 764.
[6] That such a judgment is final and not ordinarily subject to attack for matters which could have been reviewed on regular appeal see Bryant v. Turner, 19 Utah 2d 284, 431 P.2d 121, noting discussion by Justice Murphy in Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356; see also Ex parte S.H., 1 Utah 2d 186, 264 P.2d 850.
[7] See discussions in Brown v. Turner, 21 Utah 2d 96, 440 P.2d 968; and Velasquez v. Pratt, 21 Utah 2d 229, 443 P.2d 1020, and authorities therein cited on proposition that where error is something which is known to the party at the time of judgment, or of previous application for writ, the previous judgment is res adjudicata and not proper subject for subsequent application; and cf. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148.
[8] See Brown v. Turner, footnote 7 above.
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FILED
United States Court of Appeals
Tenth Circuit
June 15, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
FIDEL MEJIA,
Petitioner - Appellant,
No. 15-4005
v. (D.C. No. 2:13-CV-00292-TS)
(D. Utah)
DENNIS SORENSON,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
Petitioner-Appellant Fidel Mejia, a pro se Utah inmate, seeks a certificate
of appealability (COA) to appeal the district court’s denial of his petition for a
writ of habeas corpus, 28 U.S.C. § 2254, as untimely. Mejia v. Sorenson, No.
2:13-cv-292 TS (D. Utah Jan. 27, 2014).
For this court to grant a COA, Mr. Mejia must make a “substantial showing
of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that
“reasonable jurists could debate whether . . . the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). Because the district court
resolved the petition on procedural grounds, Mr. Mejia must demonstrate that it is
reasonably debatable (1) whether the petition states a valid claim for denial of a
constitutional right, and (2) whether the district court’s procedural ruling was
correct. Id. We conclude that Mr. Mejia cannot make the latter showing; thus,
we deny his request for a COA and dismiss his appeal.
Mr. Mejia was charged and convicted on several counts of sex offenses. He
appealed, claiming that his Sixth Amendment right to a speedy trial was violated.
The Utah Court of Appeals affirmed his conviction, and the Utah Supreme Court
denied his petition for writ of certiorari on February 21, 2008. State v. Mejia,
172 P.3d 315 (Utah Ct. App. 2007), cert. denied, 186 P.3d 957 (Utah 2008). Mr.
Mejia filed a federal petition for a writ of habeas corpus on May 23, 2013, on
speedy trial grounds. The district court dismissed the petition as untimely, and
Mr. Mejia appealed.
No reasonable jurist could debate that Mr. Mejia’s petition for federal
habeas relief was untimely. In general, a limitations period of one year applies to
habeas petitions filed by individuals in state custody. 28 U.S.C. § 2244(d)(1).
This period begins running from “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such
review.” Id. § 2244(d)(1)(A). Thus, a state court judgment becomes final upon
the expiration of the time for filing a petition for writ of certiorari in the United
States Supreme Court. Locke v. Saffle, 237 F.3d 1269, 1271–72 (10th Cir. 2001).
-2-
Accordingly, Mr. Mejia’s conviction became final, and his limitations
period began to run, on May 21, 2008—90 days after the Utah Supreme Court
denied relief. See U.S. Sup. Ct. R. 13(1). Thus, Mr. Mejia’s limitations period
expired May 21, 2009—over four years before he filed his federal habeas petition.
Mr. Mejia contends that the limitations period should be equitably tolled, as
his state court counsel failed to alert him that the Utah Supreme Court had denied
his petition for certiorari until December 30, 2011. However, even if we accepted
Mr. Mejia’s argument, his petition would still be untimely, as he filed it on May
23, 2013—more than one year after he learned his state appeals process had been
exhausted. We see no legitimate basis for further tolling his federal habeas
limitations period.
Accordingly, we DENY his request for a COA, DENY his request for IFP
status, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-3-
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111 B.R. 582 (1989)
In re Jesse FRANKLIN, Jr., and wife Dorothy J. Franklin, Debtors.
Billy Lee THOMPSON, et al., Plaintiff,
v.
FIRST NATIONAL BANK OF TRINITY, Defendant.
Bankruptcy No. L-85-00484, Adv. No. A-85-0336.
United States Bankruptcy Court, E.D. Texas, Beaumont Division.
November 29, 1989.
T.J. Baynham, Jr., Tyler, Tex., for plaintiff/debtor Jesse Franklin, Jr.
Bob Delong, Huntsville, Tex., for defendant First Nat. Bank of Trinity.
OPINION AND ORDER
DONALD R. SHARP, Bankruptcy Judge.
This matter came on for status conference in Beaumont, Texas, at 9:30 a.m., on Monday, October 23, 1989. Robert DeLong, Jr., was present representing First National Bank of Trinity, and T.J. Baynham, Jr., was present representing the Debtors and the Trustee, Billy Lee Thompson. The Court determined that a pending Motion to Dismiss would have to be disposed of prior to trial, and trial was tentatively set for January 17 and 18, 1990, at 9:00 a.m. For reasons set forth hereinafter, the trial setting is hereby vacated.
This case has had a long and involved procedural history which seems to have been riddled with errors at virtually every turn. The matter now before the Court is a Motion to Dismiss filed by First National Bank of Trinity on July 25, 1988. This Court finds that motion to be well taken and to be dispositive of the issues that remain in this case. For purposes of clarity a complete chronology of the events in the case is necessary.
This action began with the Debtor's voluntary petition for relief under Chapter 7 on May 31, 1985. On October 10, 1985, First National Bank of Trinity, Texas, filed a Motion for Relief from Automatic Stay which was erroneously captioned in the form of an adversary proceeding. The clerk erroneously assigned an adversary number to the Motion for Relief from Automatic Stay and from that point the procedural quagmire deepened. In the Motion for Relief from Automatic Stay filed on October 10, 1985, First National Bank of Trinity sought relief relating to three debts. The first debt was in the amount of $2,682.90 and was secured by "real estate" with no further description of the security being given. The second debt was in the *583 amount of $1,700.00, which debt was secured by a deed of trust executed on June 16, 1982, covering certain properties in Trinity County, Texas. The property is described in the deed of trust which is attached to the original motion. The third debt was in the amount of $5,814.00 and was likewise secured by a deed of trust affecting certain real estate in Trinity County, Texas. The record in this case reflects that no response was filed to the Motion for Relief and no hearing was held with respect to the motion. Statutory and case law is clear that the automatic stay provided by § 362(a) of the Bankruptcy Code is terminated 30 days after a motion to lift stay is filed unless the Court orders such stay continued in effect. No such order was entered in this case since there was no response to the motion by the Debtor. Therefore, the automatic stay as to the three debts detailed above terminated on November 9, 1985, and to the extent that is not clear this Court so holds.
The next document filed in the record of this case is styled "Amended Motion for Relief From Automatic Stay." It would have been more properly styled a supplemental motion since it reiterates the request for relief from stay as to the three debts mentioned above and requests additional relief from stay as to seven other obligations detailed on Exhibit F to the "Amended Motion." The additional debts are detailed as follows:
DATE OF NOTE OUTSTANDING BALANCE
January 2, 1985 $ 318.02
December 29, 1984 $ 1,613.23 + interest
December 12, 1983 $ 8,621.45
August 24, 1983 $11,914.00
April 4, 1980 $ 3,143.12
July 10, 1980 $ 3,308.99
September 28, 1979 $51,751.92
There was no response to the "Amended Motion" and no hearing held to continue the automatic stay of § 362(a) in effect, so the automatic stay as to the seven additional detailed debts terminated by operation of law on February 27, 1986. To the extent that is in doubt this Court so holds.
The next document of note is an Affidavit for Entry of Default filed by counsel for First National Bank of Trinity on December 5, 1986. This was a superfluous entry since the only relief requested had already been granted by operation of law. However, in an apparent response to the application for default judgment Defendant filed a pleading styled "Defendant's Original Answer" which did not address the specific allegations of the motion previously filed but did aver that Defendants were in the process of preparing a "Cross-action" against the Plaintiff. Subsequent to the filing of that pleading the Defendants then filed a document on January 20, 1987, styled "Debtor's and Defendant's Counter-claim Against Plaintiff." All proceedings from that point forward have dealt with various efforts to move the case toward trial or resolution by dismissal. All subsequent pleadings have been attempts to realign parties or to define the issues but have really added nothing of substance for this Court's determination.
The "counterclaim" deals with only two debts of the Debtors, only one of which is a subject of the Motion for Relief from Automatic Stay. The first debt dealt with in the counterclaim is an "SBA Note" in the amount of $487,000.00. That debt is not a part of either the original or Amended Motion for Relief from Automatic Stay. The other debt dealt with in the counterclaim appears to be the $50,000.00 debt dated September 28, 1979, and listed in the Amended Motion for Relief from Automatic Stay. The principal thrust of the counterclaim is to seek actual and punitive damages for alleged misrepresentations and other alleged wrongful acts of the First National Bank of Trinity.
The jurisprudence is clear that counterclaims such as those set forth in the Debtor's Counterclaim are not a proper response to a Motion for Relief from Automatic Stay. The rationale behind these holdings is pointed out in the case of Vastola v. Milks, 14 B.R. 15 at 16 (Bkrtcy. D.C.1981), by quoting the report of the Senate Judiciary Committee as follows:
"The action commenced by the party seeking relief from the stay is referred to as a motion to make it clear that at the expedited hearing under subsection (e), and at hearings on relief from the stay, *584 the only issue will be the lack of adequate protection, the Debtor's equity in the property, and the necessity of the property to an effective reorganization of the Debtor, or the existence of other cause for relief from the stay. This hearing will not be the appropriate time at which to bring in other issues, such as counterclaims against the creditor, which, although relevant to the question of the amount of the debt, concern largely collateral or unrelated matters. This approach is consistent with cases "holding" that an action seeking relief from the stay is not the assertion of a claim which would give rise to the right or obligation to assert counterclaims. Those counterclaims are not to be handled in the summary fashion that the preliminary hearing under this provision will be. Rather, they will be the subject of more complete proceedings by the trustee to recover property of the estate or to object to the allowance of a claim." U.S.Code Congressional and Administrative News, 95 Cong., 2d Sess., at 5787, 5841.
A non-exhaustive list of other cases that have confronted the issue are In Re Miller, 58 B.R. 192 (Bkrtcy.S.D.Tex.1985) (Action to avoid a fraudulent conveyance not a proper issue in an 11 U.S.C. § 362 complaint); In Re Biller, 27 B.R. 206 at 208 (Bkrtcy.M.D.Penn.1982) (Breach of contract claim not relevant to a request for relief from the stay); In Re Bennett, 17 B.R. 843 (Bkrtcy.D.N.M., 1982) (Matters raised extraneous to the issue of lifting automatic stay, whether they are raised by counterclaim, third-party complaint or otherwise shall be dismissed from the main stay complaint and may be filed in the separate proceeding). Other cases have held that affirmative defenses or counterclaims are not to be entertained in the context of a Motion for Relief from Automatic Stay except in those limited instances where the defense contests the validity of the creditor's lien as distinguished from the amount of the lien. In Re Dino and Artie's Automatic Transmission Company, Inc., 68 B.R. 264 (Bkrtcy.S.D.N.Y., 1986); In Re Compass Van and Storage Corporation, 61 B.R. 230 (Bkrtcy.E.D.N.Y., 1986); and In Re Davenport, 34 B.R. 463 (Bkrtcy.D. Fla., 1983). It is clear from a reading of the counterclaims that were set forth in the Debtor's pleadings that the claim pertaining to the "SBA note" was totally extraneous to the Motion for Relief from Automatic Stay except as it might give rise to a set-off in the event Debtor were successful in proving that the bank had some liability to him. The claim as to the $50,000.00 note did not address the validity of the security interest but rather argued that certain provisions of the Texas Consumer Credit Code had been violated which would give the Debtor a right to a reduction in the debt or set-off that could be exercised.
It is clear from a reading of the counterclaim that even if it had been timely filed it should not have been considered in the context of a Motion to Lift Stay and therefore, as a counterclaim to the Motion to Lift Stay it must be dismissed on the ground that it is not a proper issue to be considered in the context of a Motion for Relief from Stay and on the additional ground that by the time the document was filed the stay had already been terminated by operation of law and therefore, any counterclaim at that point was moot.
This Court is not unmindful of the fact that bankruptcy courts are courts of equity and therefore feels compelled to explore the possibility that the counterclaim should be considered an original complaint filed by the Debtor to begin an adversary proceeding by him against the First National Bank of Trinity. Although it is possible that the counterclaim could be considered a self-sustaining complaint that would be sufficient to initiate an adversary proceeding, the Court need not address that issue. There is another procedural defect which would mandate a dismissal of the complaint in this case even if it were properly pled. Bankruptcy Rule 7004(a) makes Federal Rule of Civil Procedure 4(j) applicable to adversary proceedings. Rule 4(j) requires service of the summons and complaint upon a Defendant within 120 days after the filing of the complaint and requires that the action be dismissed if the party on whose *585 behalf such service was required cannot show "good cause" why service was not made. Since there was no summons issued and no service made in accordance with Bankruptcy Rule 7004 the counterclaim would have to be dismissed (even assuming it could be considered a self-sustaining complaint) unless the Debtor could show "good cause" why the service was not made within the 120 day period. Other courts have held that ignorance of the rule requiring service within 120 days does not demonstrate "good cause" Townsel v. County of Contra Costa, California, 820 F.2d 319 at 320 (9th Cir., 1987). It has also been held that there is no "good cause" for failure to effect service on Defendant within 120 days after filing a complaint where the Defendant did not evade service, there was no attempt to serve Defendant in a timely fashion either by mail or in any other fashion until over a year after the action was filed and there was no explanation for failing to do so. Gordon v. Hunt, 116 F.R.D. 313 at 323-325 (S.D.N.Y.1987); affirmed 835 F.2d 452; cert. denied 486 U.S. 1008, 108 S.Ct. 1734, 100 L.Ed.2d 198. Also see In Re Riposa, 59 B.R. 563 (Bkrtcy.N.D.N.Y., 1986).
Therefore, the counterclaim in this action would have to be dismissed even if it could be considered a self-sustaining complaint which, if properly served, would have initiated an adversary proceeding.
It is THEREFORE ORDERED, ADJUDGED AND DECREED that the Automatic Stay under § 362 of the Bankruptcy Code has been terminated as set forth earlier in this opinion, and the Motion to Dismiss the Counterclaim is GRANTED and the counterclaim is hereby DISMISSED.
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698 F.2d 1232
Simonsv.Lien
81-3603
UNITED STATES COURT OF APPEALS Ninth Circuit
12/29/82
D.Mont., 522 F.Supp. 712
REVERSED
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286 Md. 98 (1979)
405 A.2d 741
THE MARYLAND LUMBER COMPANY
v.
SAVOY CONSTRUCTION CO., INC. ET AL.
[No. 113, September Term, 1978.]
Court of Appeals of Maryland.
Decided September 19, 1979.
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, ORTH, COLE and DAVIDSON, JJ.
Sidney S. Friedman, with whom were Weinberger & *99 Weinstock, P.A. and Melvyn J. Weinstock on the brief, for appellant.
Daly D.E. Temchine, with whom was Steven A. Shaw on the brief, for appellees.
DAVIDSON, J., delivered the opinion of the Court.
Maryland Rule 625 a, effective 1 January 1957, provides:
"For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity."
Maryland Rule 611, as amended, effective 1 July 1975, provides:
"Upon the entry of judgment by default or decree pro confesso, pursuant to Rule 310 b or Rule 610 c 3, for failure to plead in response to original process, the clerk shall mail forthwith, notice thereof to the defendant at his address, if any, specified in the pleadings and shall note such fact on the docket or case file. If no address is specified and the address is otherwise unknown, this Rule shall not apply. The notice sent by the clerk shall follow the form set forth in the Appendix of Forms."
This case presents the question whether a trial court may revise or set aside an enrolled judgment if it is shown that a clerk has failed to comply with the requirements of Rule 611.
On 16 November 1977, in the Circuit Court for Montgomery County, the appellant, The Maryland Lumber Company (Maryland), filed, insofar as here relevant, a "Declaration" and "Motion for Summary Judgment" against the appellees, Savoy Construction Co., Inc. and Bernstein Concrete *100 Corporation (Savoy).[1] The declaration alleged that Savoy owed it approximately $19,000 for "goods sold and delivered [and] work done and materials furnished." A summons was served on Savoy on 22 November 1977. No responsive pleading was filed. On 9 February 1978, Maryland filed an "Affidavit of Non-Military Service." On 23 February 1978, the trial court entered an order granting judgment in favor of Maryland for $19,858.15 and costs.
On 31 March 1978, more than 30 days after the entry of the judgment against it, Savoy filed, insofar as here relevant, a motion to set aside the judgment. The motion, supported by sworn affidavits including several exhibits, alleged that both Maryland and its attorney had indicated that a responsive pleading was unnecessary pending settlement negotiations; that relying upon those representations it did not retain an attorney; that the court had not notified it that on 23 February 1978 judgment had been entered; that it was first notified of the entry of judgment by a letter from Maryland's attorney dated 22 March 1978; that it had a meritorious defense, had been diligent, and had acted in good faith; and that the "irregularity" arising from the court's failure to notify it of the entry of judgment was the sole cause of its failure to file its motion to set aside the judgment within 30 days of the entry of that judgment. The underlying premise of Savoy's motion was that the clerk's failure to notify it of the entry of judgment constituted an "irregularity" within the meaning of Rule 625 a.
On 10 July 1978, after a hearing, the trial court entered an order striking the judgment. In a memorandum dated 28 August 1978, the trial court explained its grounds for its decision stating:
"1. Plaintiff's counsel did not appear when this matter was set for argument on July 10, 1978, but instead relied on memoranda which is docket entry No. 11.
"2. The Court decided that the judgment, *101 although more than thirty days old, was the subject of an `irregularity' as defined by Maryland law and should be stricken."
The trial court made no findings as to whether Savoy had acted in good faith with ordinary diligence and had a meritorious defense.
Maryland appealed to the Court of Special Appeals. We issued a writ of certiorari before consideration by that Court. We shall affirm the order of the trial court because the clerk's failure to notify Savoy constituted an "irregularity" within the meaning of Rule 625 a, see Mutual Benefit Society of Baltimore, Inc. v. Haywood, 257 Md. 538, 541-42, 263 A.2d 868, 870-71 (1970), as explicated by recent legislation.[2]
Maryland Code (1974, 1978 Cum. Supp.) § 6-408 of the Courts and Judicial Proceedings Article, effective 1 July 1977, provides:
"For a period of 30 days after the entry of a judgment, or thereafter pursuant to motion filed within that period, the court has revisory power and control over the judgment. After the expiration of that period the court has revisory power and control over the judgment only in case of fraud, mistake, irregularity, or failure of an employee of the court or of the clerk's office to perform a duty required by statute or rule." (Emphasis added.)
This statute, although not raised or considered by the parties or the trial court, is applicable to and governs this case because it was filed after 1 July 1977. See County Federal *102 Sav. & Loan Ass'n v. Equitable Sav. & Loan Ass'n, 261 Md. 246, 252-53, 274 A.2d 363, 367 (1971).
The language of § 6-408 of the Courts and Judicial Proceedings Article, which now governs a trial court's revisory power over judgments in both law and equity, see Hughes v. Beltway Homes, Inc., 276 Md. 382, 383, 386, 347 A.2d 837, 838, 840 (1975); Maryland Rule 5 o,[3] is plain and unambiguous. It makes no change in a trial court's revisory power and control over an unenrolled judgment. Thus, if a motion to revise or set aside a judgment is filed within 30 days of the entry of a judgment, a trial court has unrestricted discretion to revise the unenrolled judgment and that discretion has to be liberally exercised. Hardy v. Metts, 282 Md. 1, 5-6, 381 A.2d 683, 686 (1979); International-Industrial Developers, Ltd. v. Berg, 269 Md. 250, 251, 305 A.2d 121, 122 (1973); Hamilton v. Hamilton, 242 Md. 240, 243, 218 A.2d 684, 686 (1965), cert. denied, 385 U.S. 924, 87 S.Ct. 239 (1966); Eshelman Motors v. Scheftel, 231 Md. 300, 301, 189 A.2d 818, 818 (1963). It does, however, establish that a trial court may now revise an enrolled judgment, not only if facts and circumstances are shown to establish that the entry of the enrolled judgment resulted from fraud, mistake, or irregularity, Hughes v. Beltway Homes, Inc., 276 Md. at 383, 386, 389, 347 A.2d at 840, 841-42; Ventresca v. Weaver Bros., 266 Md. 398, 403-04, 292 A.2d 656, 659-60 (1972); Shaw v. Adams, 263 Md. 294, 296, 283 A.2d 390, 391 (1971); Tasea Invest. Corp. v. Dale, 222 Md. 474, 478-79, 160 A.2d 920, 923 (1959), but, also if it resulted from a failure of an employee of the court or of the clerk's office to perform a duty required by statute or rule. Of course, once fraud, mistake, or irregularity, including an employee's failure to perform such a duty has been established, the party moving to set aside an enrolled judgment must still additionally show that it is acting in good faith, with ordinary diligence, and that it has a meritorious defense or cause of action.
*103 Applying these principles to the instant case produces a clear result. Here the record shows that at the hearing on the motion to set aside the judgment, the Assistant Chief Deputy, Clerk of the Circuit Court, Montgomery County, testified that the notice of the entry of a default judgment required by Rule 611 had not been sent. This evidence was sufficient to support a finding that notice of the entry of the judgment required by Rule 611 was not provided to Savoy.
In addition, the affidavits and exhibits filed in support of the motion to set aside the judgment contained evidence more than sufficient to support a finding that Savoy acted in good faith, with ordinary diligence, and had a meritorious defense. Because the record contains facts sufficient to support a conclusion that all of the applicable criteria for revising or setting aside a judgment were met, the trial court's failure to make express findings is immaterial. Hardy v. Hardy, 269 Md. 412, 416, 306 A.2d 244, 246 (1973); Shaw v. Adams, 263 Md. at 297, 283 A.2d at 391 (dicta).
Order affirmed.
Costs to be paid by appellant.
NOTES
[1] At some unidentified point in time, Bernstein Concrete Corporation merged with and became a part of Savoy Construction Co., Inc.
[2] In its brief, Savoy has included a "Motion to Dismiss Appeal" in which it points out that the record extract prepared by Maryland contains two documents not before the trial court. Savoy seeks to dismiss the appeal or to strike the documents. In response, Maryland concedes that the documents did not appear in the record below. It alleges, however, that it had submitted one of the two documents to the trial court but that because of confusion at the hearing, the document was not "received or recorded." It has made a motion to correct the record by including that document. Savoy's motion to dismiss and Maryland's motion to correct the record are denied. Savoy's motion to strike the two documents which were not before the trial court is granted.
[3] Maryland Rule 5 o, effective 1 July 1976, provides:
"`Judgment' means judgment at law, decree in equity and any other order of court final in its nature."
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608 P.2d 38 (1980)
James W. HELMER, Appellant,
v.
STATE of Alaska, Appellee.
No. 4383.
Supreme Court of Alaska.
March 21, 1980.
David C. Backstrom, Deputy Public Defender, Fairbanks, Brian C. Shortell, Public Defender, Anchorage, for appellant.
David Mannheimer, Asst. Atty. Gen., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, C.J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.
OPINION
BURKE, Justice.
After a non-jury trial in the superior court, James W. Helmer was convicted of rape, assault with intent to kill and burglary in a dwelling.[1] In this appeal, he challenges the sufficiency of the evidence pertaining to the charges of rape and assault with intent to kill, and the trial court's denial of his motion to suppress evidence of a statement that he made to the police following his arrest.[2]
I
Helmer's victim, a fourteen year old girl, testified that, although the defendant attempted to have sexual intercourse with her, she felt no penetration. Thus, he argues, the evidence was insufficient to support the trial court's conclusion that he was guilty of rape, since "some penetration, however slight," is an essential element of that offense. AS 11.15.120(c).[3]
We consider Helmer's argument frivolous. Dr. James Bertelson, a gynecologist, examined the victim shortly after she was assaulted. Dr. Bertelson testified that he observed a fresh tear or laceration in the hymenal ring and found thousands of spermatozoa *39 surrounding the victim's cervix, a structure located deep within the vagina. These observations led Dr. Bertelson to conclude that sexual penetration had occurred, and he so testified.
The applicable standard of review in this case is the "substantial evidence test." McKinney v. State, 566 P.2d 653, 662, reh. granted, 570 P.2d 733 (Alaska 1977). Under that standard,
[a finding by the trial court] must be affirmed if it is supported by "such relevant evidence which is adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to appellant's guilt." All inferences are to be resolved in the light most favorable to the state.
Id. (footnote omitted). Under the foregoing standard only one conclusion is possible, namely: that the evidence was sufficient to support the trial court's finding that penetration had occurred, and that Helmer was guilty of rape.
II
Helmer also contends that the evidence was insufficient to support the trial court's finding that he was guilty of assault with intent to kill. In particular, Helmer argues that in view of the evidence indicating that at the time of the offense he was intoxicated, due to the combined effects of alcohol and marijuana, the state failed to establish beyond a reasonable doubt that he acted with the specific intent to kill. Again, we conclude that Helmer's argument is without merit.
The victim of Helmer's assault was the younger sister of a girl that he had been seeing. He entered the victim's home and awakened her during the early morning hours while her family was away. Helmer told her that someone had burglarized the house and showed her indications that certain items had been removed from the residence. In fact, the burglary had been committed by Helmer. Helmer explained to the victim that he would stay with her to protect her, in case the burglar should return. A short time later, Helmer picked up a poker and continued talking to the victim. After telling her that he thought someone was at the door, he struck the victim on the head with the poker as she turned in that direction. Helmer then carried the victim to the bedroom where he raped her. He then struck her several more times. At this point, Helmer picked up the victim's wrist between his thumb and fingers apparently feeling for her pulse. He then struck her twice more with the poker and left. Although the victim received prompt medical attention, she lost an eye as a result of Helmer's attack.
Given Helmer's actions, the nature of the weapon, and the other details of the assault, we think there was substantial evidence supporting the trial court's conclusion that Helmer acted with the specific intent to kill his victim, and that he was therefore guilty of assault with intent to kill.
III
Helmer's next contention is that the trial court erred in denying his motion to suppress evidence of a statement that he gave to the police shortly after his arrest. The basis of his motion to suppress was that the statement was given without the defendant's mother being present. At the time of the statement, Helmer was a juvenile. He was tried as an adult after the superior court waived its juvenile jurisdiction, a decision that was affirmed by this court in In re J.W.H., 583 P.2d 227 (Alaska 1978).
In his opening brief Helmer urged this court to adopt a standard whereby a statement or confession by a juvenile could not be used against him at a subsequent trial or hearing unless both he and his parents or guardian were informed of his right to an attorney and to remain silent. Alternatively, Helmer argued that his statement was involuntary in that his waiver of his right to remain silent was neither knowing nor intelligent.
Between the time of the filing of Helmer's opening brief and his reply brief, this court rendered it's decision in Quick v. State, 599 P.2d 712 (Alaska 1979). In that *40 case we refused to adopt a per se rule that would render a juvenile incapable of a knowing and voluntary waiver of his right to remain silent, without the informed guidance of an adult. Instead, we adopted a test that allows the trial court to look at the totality of the circumstances. Id. at 718-19. Our holding in Quick disposes of the first part of Helmer's argument.
As to the second part of his argument, we are unable to say that the superior court erred in concluding that Helmer's statement to the police was voluntary. The statement was given after he had been fully advised of his Miranda rights and there is nothing in the record to suggest that Helmer's waiver of his right to remain silent was anything but knowing and intelligent.
Helmer's conviction is AFFIRMED.
NOTES
[1] Helmer was charged and convicted under the former provisions of AS 11.15.120 (rape), AS 11.15.160 (assault with intent to kill), and AS 11.20.080 (burglary in a dwelling). In its recent revision of the state's criminal statutes, the Alaska legislature repealed those sections, effective January 1, 1980. Ch. 166, § 21, SLA 1978.
[2] Helmer also appeals his sentence as excessive. See AS 12.55.120; AS 22.05.010(b); Rule 21, Alaska R.App.P. That issue will be disposed of by a separate opinion.
[3] See note 1, supra.
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8 F.3d 26
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Antonio GUTIERREZ-CHAVEZ, Petitioner,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent.
No. 92-70104.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 6, 1993.*Decided Oct. 6, 1993.
Before: SCHROEDER, FLETCHER and ALCARCON, Circuit Judges.
1
MEMORANDUM**
2
Antonio Gutierrez-Chavez (Gutierrez) seeks review of the Board of Immigration Appeals' (BIA) final order affirming the immigration judge's (IJ) order of deportation. The IJ determined that Gutierrez's conviction for second degree theft involved moral turpitude, and he was therefore statutorily precluded from seeking voluntary departure under 8 U.S.C. § 1254(e). 8 U.S.C. § 1101(f)(3). The BIA affirmed the IJ's denial of voluntary departure as a matter of law. We affirm because we have concluded that Gutierrez was statutorily ineligible for voluntary departure.
I.
3
Gutierrez last entered this country, without inspection, on October 1, 1989. On September 5, 1986, Gutierrez pled no contest to a charge of theft in the second degree, in violation of Alaska Statutes section 11.46.130(a)(2). Gutierrez also had prior convictions for fourth degree assault, refusal to submit to a breathalyzer test, and driving under a suspended license.
4
In December 1989, a joint FBI, INS, and local police surveillance of the Gutierrez home during a drug sales investigation led to the arrest of a man seen leaving the home. The FBI and INS then visited Gutierrez's home. At that time, Gutierrez admitted that he was in the country illegally. The INS then began the deportation proceedings under review.
5
The INS charged Gutierrez with deportability on two grounds. First, Gutierrez was charged with deportability under 8 U.S.C. § 1251(a)(1)(A) because he was excludable under 8 U.S.C. § 1182(a)(9) for having been convicted of theft in the second degree, a crime involving moral turpitude. Second, Gutierrez was charged with deportability under 8 U.S.C. § 1251(a)(1)(B) for entering the United States without inspection. Gutierrez admitted deportability on the charge of entering without inspection, but denied that his conviction for second degree theft involved moral turpitude. Gutierrez also applied for voluntary departure under 8 U.S.C. § 1254(e).
6
Certified copies of Gutierrez's second degree theft conviction, as well as his other convictions, were provided to the IJ. On June 19, 1990, the IJ found Gutierrez deportable for having entered the United States without inspection. The IJ further held that because Gutierrez's conviction for second degree theft constituted a crime of moral turpitude, he was statutorily ineligible for voluntary departure. Alternatively, the IJ denied voluntary departure in the exercise of his discretion. Gutierrez appealed to the BIA, contending both that the IJ erred in finding Gutierrez statutorily ineligible for voluntary departure, and that he abused his discretion by denying voluntary departure.
7
The BIA affirmed the IJ's conclusion that Gutierrez's Alaskan conviction for theft in the second degree involved moral turpitude. Based on its conclusion, the BIA held that Gutierrez was statutorily ineligible for voluntary departure.
II.
8
Gutierrez contends that his Alaska conviction for second degree theft is not a crime of moral turpitude. He argues that to constitute a crime involving moral turpitude under 8 U.S.C. § 1182(a)(9), guilty knowledge or evil intent must be an essential element of the corpus delicti. The crime of theft in the second degree under Alaska law may be demonstrated by proof that the defendant acted recklessly. Alaska Stat. §§ 11.46.130(a), 11.46.190(a).
9
The question whether a conviction in Alaska for "theft in the second degree" is a crime of moral turpitude is a question of law. United States v. Chu Kong Yin, 935 F.2d 990, 1003-1004 (9th Cir.1991). We review BIA decisions which involve questions of law de novo. De La Cruz v. INS, 951 F.2d 226, 228 (9th Cir.1991) (per curiam).
10
Aliens "who have been convicted of a crime involving moral turpitude" are excludable under 8 U.S.C. § 1182(a)(9), and therefore, deportable under 8 U.S.C. § 1251(a)(1)(A). The crime must necessarily or inherently involve moral turpitude before deportation can be ordered. Wadman v. INS, 329 F.2d 812, 814 (9th Cir.1964) (emphasis added). We have held moral turpitude is shown when evil motive or bad purpose is part of the crime. Tseung Chu v. Cornell, 247 F.2d 929, 934 (9th Cir.), cert. denied, 355 U.S. 892 (1957). We have previously stated that "theft[s] [are] crime[s] of moral turpitude." United States v. Villa-Fabela, 882 F.2d 434, 440 (9th Cir.1989), overruled on other grounds, U.S. v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir.1992) (en banc); see Chiaramonte v. INS, 626 F.2d 1093, 1097 (2d Cir.1980) (stating that every circuit which has addressed the issue has held that theft crimes, "however they may be technically translated into domestic penal provisions, are presumed to involve moral turpitude.") In Villa-Fabela, we held that a conviction for theft in the second degree in Alaska and incarceration for sixteen months rendered the alien ineligible for both suspension of deportation under 8 U.S.C. § 1254(a)(1) and voluntary departure under 8 U.S.C. § 1254(e). Villa-Fabela, 882 F.2d at 438-439. However, in Villa-Fabela we did not discuss the mental state required for a conviction under Alaska Statutes section 11.46.100. Thus, we did not reach the question whether recklessness is sufficient to constitute moral turpitude.
11
We have not previously decided whether a theft conviction under a statute which requires only proof of recklessness will suffice to constitute a crime involving moral turpitude. We have held, however, that the question of whether a crime involves moral turpitude is "determined by the statutory definition or by the nature of the crime not by the specific conduct that resulted in the conviction." McNaughton v. INS, 612 F.2d 457, 459 (9th Cir.1980) (per curiam). In examining a criminal statute, we have inquired whether the statute contains an element of guilty knowledge or evil intent before imposing the harsh consequence of deportation. See Wadman, 329 F.2d at 814 (stating that where guilty knowledge was an essential element of the crime, moral turpitude was present); Hirsch v. INS, 308 F.2d 562, 567 (9th Cir.1962) (stating that a crime which did not necessarily involve evil intent was not necessarily a crime of moral turpitude); Lennon v. INS, 527 F.2d 187, 194 (2d Cir.1975) (stating that Congress would not have imposed an excludable alien classification upon one convicted under a law which made guilty knowledge irrelevant); Matter of P, 2 I & N Dec. 117, 121 (BIA 1944) ("It is in the intent that moral turpitude inheres.")
12
Gutierrez was convicted of recklessly receiving a stolen gun, a crime of second degree theft under Alaska Statutes section 11.46.130(a), which provides, in pertinent part: "A person commits the crime of theft in the second degree if the person commits theft as defined in AS 11.46.100 and ... the property is a firearm." Alaska Stat. § 11.46.130(a). Section 11.46.100(4) defines theft as "theft by receiving under AS 11.46.190." Alaska Stat. § 11.46.100(4). In Alaska, a person is guilty of theft by receiving "if the person buys, receives, retains, conceals, or disposes of stolen property with reckless disregard that the property was stolen." Alaska Stat. § 11.46.190(a) (emphasis added). Alaska law provides the following definition of recklessness:
13
(3) [A] person acts "recklessly" with respect to a result or to a circumstance described by a provision of law defining an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation....
14
Alaska Stat. § 11.81.900(3).
15
The Alaska courts have interpreted the theft by receiving statute to contain both an element of guilty knowledge and an implied element of intent to deprive the owner of property which has been stolen. Andrew v. State, 653 P.2d 1063, 1065 (Alaska Ct.App.1982). In Andrew, the court examined Alaska's theft by receiving statute in light of the statutory definition of recklessness to determine if it was unconstitutionally vague or dispensed with criminal intent as an element of theft by receiving. The court held that the definition of recklessness was not unconstitutionally vague. Id. The court reasoned:
16
First, the state must establish that, under all the circumstances in evidence, the risk that the property in question was stolen was so great "that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation...." This facet of recklessness is objectively based. Second, the state must further prove actual awareness by the accused of the risk that the subject property is stolen. This second facet of recklessness requires subjective knowledge of the risk by the accused before conviction can be had under AS 11.46.190.
17
Id. (footnote omitted) (emphasis added).
18
The court also rejected the appellant's argument that theft by receiving with reckless disregard of the property's stolen nature was essentially a strict liability offense. Id. at 1066. The court held that the "requirement of an intent by the accused to deprive the owner of property which has been stolen must be implied as an element of criminal intent under AS 11.46.190." Id. (emphasis added). Under Alaska's interpretation of its theft by receiving statute, a conviction under the statute suffices to meet the requirements of a crime involving moral turpitude because guilty knowledge and evil intent are elements of the crime.
19
The BIA has held that a conviction based on criminal recklessness is sufficient to constitute a crime of moral turpitude. Matter of Wojtkow, 18 I & N Dec. 111 (BIA 1981); Matter of Medina, 15 I & N Dec. 611 (BIA 1976). In Wojtkow, the BIA held that a conviction of second degree manslaughter in New York was a crime of moral turpitude when the alien "recklessly" caused a person's death. Wojtkow, 18 I & N Dec. at 112. The definition of recklessness in the New York statute was essentially the same as Alaska's statutory definition of that term.1
20
In Medina, the BIA examined a conviction for aggravated assault under an Illinois statute which required at least recklessness as the element of mens rea. Medina, 15 I & N Dec. at 612-613. The Illinois statutory definition of recklessness in Medina is essentially identical to Alaska's.2 The BIA noted that "[t]his definition of recklessness requires an actual awareness of the risk created by the criminal violator's action." Id. at 614. The BIA further noted that despite the statute's failure to "require a specific intent to cause a particular harm, the violator must show a willingness to commit the act in disregard of the perceived risk." Id. The BIA held that this criminally reckless conduct was a basis for finding moral turpitude. Id.
21
Gutierrez relies on several cases to support his contention that proof of actual knowledge is essential to demonstrate that the crime involves moral turpitude. His reliance on these cases is misplaced because the theft by receiving statutes under which the petitioners were convicted explicitly required proof of guilty knowledge. Thus, these decisions do not reach the question whether recklessness will suffice to establish moral turpitude.
22
In Wadman v. INS, 329 F.2d 812 (9th Cir.1964), we reviewed a BIA decision finding that an alien was statutorily ineligible for voluntary departure because he had been convicted of a crime involving moral turpitude, knowingly receiving stolen property. Id. at 813. The statute under which the alien was convicted provided that "every person who receives any property knowing the same to have been stolen or obtained in any way whatsoever under circumstances which amount to felony or misdemeanor, shall be guilty...." Id. at 813-814 (citing to § 33(1) of the Larceny Act of Great Britain). We held that knowingly receiving stolen property was a crime involving moral turpitude. Id. at 814.
23
In Matter of Salvail, 17 I & N Dec. 19 (BIA 1979), the BIA was called upon to determine whether a statutory definition of possession of stolen goods which specifically required proof of knowledge of the stolen nature of the goods. Id. at 20. The BIA held that conviction under a statute which specifically requires knowledge that the property was stolen involves moral turpitude. Id.
24
Similarly, in Matter of Patel, 15 I & N Dec. 212 (BIA 1975), the statute defining the crime of receiving stolen property required knowledge that the property was stolen. Id. at 213. The BIA held that if knowledge of the property's stolen nature is an element of the offense, then it involved moral turpitude. Id.
25
We hold that "buying stolen property with reckless disregard that it was stolen" constitutes a crime of moral turpitude because the statutory definition of recklessness imposes a requirement that the state prove that an accused was actually aware of the risk that the property was stolen. Moreover, Alaska courts have construed the statute to contain an implied element of intent permanently to deprive an owner of property which has been stolen. Our holding is consistent with the BIA's decisions that crimes requiring proof of reckless conduct involve moral turpitude. Wojtkow, 18 I & N Dec. at 112; Medina, 15 I & N Dec. at 613.
III.
26
Because we hold that theft by receiving with reckless disregard of the property's stolen nature is a crime involving moral turpitude, Gutierrez is not eligible for voluntary departure under 8 U.S.C. § 1254(e). 8 U.S.C. § 1101(f)(3). Therefore, we do not reach the question whether the BIA abused its discretion in denying voluntary departure.
27
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
1
"Recklessly." A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. N.Y.Penal Law § 15.05(3)
2
A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. Ill.Rev.Stat. ch. 38, § 4-6
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GREGORY ALLEN HERNDON, JR.,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-1559
[January 17, 2019]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 562016CF001804A.
Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.
Ashley B. Moody, Attorney General, Tallahassee, and James J. Carney,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Affirmed.
LEVINE, FORST and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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63 B.R. 261 (1986)
In re Lester Carpenter LEONARD, Jr., Debtor.
NATIONAL PERMANENT BANK, F.S.B., et al., Plaintiffs,
v.
Lester Carpenter LEONARD, Jr., Defendant.
Bankruptcy No. 85-00141, Adv. No. 85-0045.
United States Bankruptcy Court, District of Columbia.
June 18, 1986.
*262 Robert F. Troll, Jr., Ross, Marsh & Foster, Bethesda, Md., for plaintiffs.
Charles A. Docter, Docter, Docter & Salus, Washington, D.C., for defendant.
MEMORANDUM AND ORDER
GEORGE FRANCIS BASON, JR., Bankruptcy Judge.
This matter comes before the Court upon the Bank's and Trustees' Motion for Partial Summary Judgment upon their request for a declaratory judgment that the Debtor-in-Possession, Lester Carpenter Leonard, Jr. has no interest in certain premises known as 2630 Adams Mill Road, N.W., Washington, D.C.
The facts are not in dispute. Leonard acquired title to the subject property by Deed dated October 31, 1966, and recorded November 2, 1966, in the Land Records of the District of Columbia. The purchase was subject to an earlier note to Enterprise Federal Savings and Loan Association, secured by a Deed of Trust as to which American Security and Trust Company was the Trustee. Movant National Permanent Bank, F.S.B. is the successor to Enterprise, and Movants Owen and Kay are the Substitute Trustees for American Security and Trust Company. A default occurred, and a foreclosure was cried on January 7, 1982, at which Ralph Kaiser was the highest bidder. Kaiser failed to settle in accordance with the terms of his bid. The Trustees readvertised the property and on May 3, 1982, cried a second foreclosure, at which James A. Stuart was the highest bidder. Stuart also failed to settle in accordance with his bid. Stuart filed suit against American Security Bank for specific performance, and lost both in the Superior Court and the Court of Appeals for the District of Columbia.
Movants argue that the Debtor was divested of equitable title when the hammer of the auctioneer fell. I believe I need not decide at this juncture whether this is the law of the District of Columbia, because in this case the Debtor was in any event revested with equitable title when the auction bidder defaulted.
As all parties seem to agree, equitable title must at all times reside somewhere. Apparently the law, like Nature, abhors a vacuum.
I cannot agree with counsel for the Bank that equitable title should revert to the Trustee. If equitable title reverts to the Trustee, then there would be a merger of legal and equitable title in the Trustee and the Trustee would have no responsibility to do anything further on behalf of any of the other parties. That is obviously an improper result and contrary to the terms of the deed of trust. If this were the case, then the Bank would have had both legal and equitable title after the first foreclosure sale was cried and the first auction bidder defaulted. Obviously, the Bank itself did not believe that this was the case, because it proceeded to readvertise and cry a second foreclosure.
Likewise, it would be equally impermissible to hold that equitable title remains with the defaulting purchaser. If that were so, the defaulting purchaser would appear to be the one entitled to any excess proceeds upon the resale, again contrary to the terms of the deed of trust and contrary to the common understanding of what happens in this type of situation.
The only remaining party to whom equitable title could pass is the title holder of the property, the defaulting debtor. And that, it seems to me, comports with logic and common sense as well as the terms of the deed of trust. I hold, therefore, that title to the property does revest in the debtor, in this case Mr. Leonard, under District of Columbia law.
Alternatively, I hold[*] that the Debtor is entitled to recover title in his capacity *263 as Debtor-in-Possession invested with the rights of a trustee in bankruptcy, pursuant to 11 U.S.C. § 544(a)(1) and 11 U.S.C. § 544(a)(3). I refer in that connection to the case of In re Parkwood, 461 F.2d. 158 (D.C.Cir.1971) and my own recent decision in In re Chapman, 51 B.R. 663 (1985). The Debtor-in-Possession has the rights of a hypothetical bona fide purchaser and judicial lien creditor. The transfer of real property in the District of Columbia is effective as to subsequent bona fide purchasers and lien creditors without notice of a transfer only upon the recording of the deed conveying the real property with the Recorder of Deeds. Section 45-801, D.C. Code, 1981 Edition.
It is conceded by the parties that neither of the foreclosures which was instituted by the Trustees is a matter of record at the Recorder of Deeds, since the Trustees were proceeding pursuant to the powers of sale incorporated in their trust agreement in a jurisdiction which does not require judicial foreclosure. I have researched the question of whether the case of Stuart v. American Security Bank constituted a lis pendens upon the property so as to constitute constructive notice of the attempted foreclosure. It appears that the case of Stuart v. American Security Bank was not one in which Mr. Leonard, who is the holder of record title, was named as a party. In the case of Eggleston v. Wayland, 10 F.2d 642 (1925), the Court of Appeals of the District of Columbia at page 643 stated as follows:
"It is contended that the equity suit operated as a lis pendens, and was constructive notice to plaintiff of the issues involved therein. We are not impressed by this contention. The deed of trust was not involved in the equity suit, and neither the trustee nor the party secured were parties to that suit. The legal title to the property was in the trustee, and could not be affected by the equity suit, so long as it was not made a party thereto."
The rule of constructive notice by lis pendens is stated to be precisely the same in Pomeroy's Equity Jurisprudence, Section 637 as follows:
"Constructive notice by the pendency of the suit extends only to those who derive title from a party or privy. . . . "
In this case, Mr. Leonard was not a party, or in privity with any party, to the Stuart v. American Security Bank litigation, and accordingly there was not constructive notice which would serve to negate the rights of a judicial lien creditor or bona fide purchaser whose rights are vested upon the trustee or debtor-in-possession pursuant to 11 U.S.C. § 544(a).
Movants point out that a prior receivership is reflected on the land records; but that receivership does not give constructive notice of the attempted foreclosures nor of any interest in the property on the part of any purchaser or prospective purchaser in either one of the two foreclosure sales that were held but not consummated.
Accordingly, the Court holds that the Motion for Partial Summary Judgment filed by the Movants should be and is denied, and since none of the relevant facts is in dispute, Summary Judgment is granted to the Debtor to the extent of declaring that the equitable title in this property does reside in the Debtor. See 6 Moore's Federal Practice, ¶ 56.12. Since the only issue remaining in this litigation is the Bank's Request for Relief from Automatic Stay, and since Movants agree to seek this relief by a separate motion, in accordance with normal procedure, it is
ORDERED: That this case be, and it hereby is dismissed without prejudice to the right of Movants to seek relief from the automatic stay pursuant to 11 U.S.C. § 362.
NOTES
[*] On the authority of Durrett v. Washington Nat'l. Ins. Co., 621 F.2d 201 (5th Cir.1980) and its progeny, as statutorily ratified by the 1984 amendment to 11 U.S.C. § 101(48). See In re Ruebeck, 55 B.R. 163, 13 B.C.D. 1106 (Bankr. Mass.1985), for review of cases.
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MARY'S OPINION HEADING
NOS. 12-04-00126-CR
12-04-00127-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JAMES RUSSELL HAMILTON, § APPEAL FROM THE SECOND
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
These are revocation of community supervision cases. Appellant contends that the trial court
erred in ordering his sentence in appellate cause number 12-04-00126-CR (forgery–habitual offender)
to be served consecutively with the sentence imposed by the trial court on the same day in appellate
cause number 12-04-00127-CR, germane only to the appeal in 12-04-00126-CR (unauthorized use
of a motor vehicle–habitual offender). In his second issue, Appellant maintains the trial court erred
in sentencing him to imprisonment for ten years when the offense charged in the indictment was a
state jail felony. We affirm the judgments in both cases.
Background
Appellant was charged by indictment with forgery of a twenty-dollar check. On June 16,
1998, the day of trial, the trial judge granted the State’s motion to amend the indictment to add two
paragraphs. The order set forth the enhancement counts in full; however, no interlineations or
additions were made to the original indictment nor was a photocopy of the original indictment with
the changes made thereon included in the record. Appellant raised no objection to the amendment.
Upon his plea of guilty, the trial judge found Appellant guilty and placed him on community
supervision for ten years.
On the same date, Appellant pleaded guilty to the offense of unauthorized use of a motor
vehicle (12-04-00127-CR), enhanced by the same two prior felony convictions used to enhance
punishment in the forgery case. The trial court adjudged Appellant guilty of the offense, but also
accorded him community supervision for a term of ten years in this case. The cases did not arise out
of the same criminal episode.
On October 17, 2003, Appellant pleaded true to the violation of the conditions of community
supervision ordered in both cases. On that date, the trial judge rendered judgment revoking
Appellant’s community supervision in both cases and assessed punishment in each case at
imprisonment for ten years. On February 4, 2004, the trial judge sentenced Appellant and ordered that
the punishment imposed in the forgery case “be served consecutively with cause no. 13589” (the
unauthorized use of a motor vehicle case). In the same sentencing hearing, the trial judge sentenced
Appellant to ten years of imprisonment in the unauthorized use of a motor vehicle case and ordered
that the sentence “be served consecutively with cause no. 13555” (forgery).
Cumulative Sentencing
Appellant contends the trial court erred in ordering the sentences to be served consecutively,
because both cases were tried in the same criminal action. Appellant also argues that since he was
given credit at sentencing for 267 days of jail time served, consecutive sentencing was impermissible.
A trial court has the discretion to sentence a defendant convicted in two or more cases to
concurrent or cumulative sentences. Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2003).
However, subject to narrow exceptions inapplicable in this case, if the defendant is tried in a single
criminal action for two or more offenses arising out of the same criminal episode, the sentences
imposed must run concurrently. Tex. Pen. Code Ann. § 3.03(a) (Vernon 2003). Therefore, in order
to be entitled to concurrent sentences, Appellant must establish that the offenses arose out of the
“same criminal episode” and that he was prosecuted in a single criminal action.
A “criminal episode” is defined as the commission of two or more offenses, regardless of
whether the harm is directed toward or inflicted upon more than one person or item of property under
the following circumstances: (1) the offenses are committed pursuant to the same transaction or
pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses. Tex. Pen. Code Ann.
§ 3.01 (Vernon 2003). A single criminal action refers to a single trial or plea proceeding. LaPorte
v. State, 840 S.W.2d 412, 414 (Tex. Crim. App. 1992). It has been held that a single criminal action
includes not only the hearing wherein he received probation upon his pleas of guilty but also the
hearing on the State’s motion to revoke probation. Medina v. State, 7 S.W.3d 876, 879 (Tex.
App.–Houston [1st Dist.] 1999, no pet.). Therefore, under this definition, “to be entitled to concurrent
sentences, the appellant must establish that the offenses were consolidated at the time of his pleas as
well as the hearing on the motions to revoke his probations.” Id. (quoting Duran v. State, 844
S.W.2d 745, 748 (Tex. Crim. App. 1992) (Baird, J., concurring)); see also Dach v. State, 49 S.W.3d
490, 491 (Tex. App.–Austin 2001, no pet.). In neither Duran nor Medina did the reviewing court
reach the question of whether the offenses arose out of the same criminal episode.
In Robbins v. State, 914 S.W.2d 582 (Tex. Crim. App. 1996) (Baird, J., dissenting), a case
relied on by Appellant, the defendant was charged in separate indictments with two offenses of
aggravated sexual assault that arose out of the same transaction. The defendant entered pleas of guilty
without an agreement on punishment. The record showed that the trial court conducted two separate
plea proceedings but one consolidated punishment hearing. Appellant alleged that the trial court erred
in ordering the sentences served consecutively, because they were prosecuted in the same criminal
action. The court of criminal appeals agreed, explaining that a plea proceeding is not complete until
punishment has been assessed, and therefore, the causes were prosecuted in the “same criminal
action.” Id. at 583-84. Had the trial court accepted the plea and imposed sentence in one cause prior
to hearing the plea and imposing sentence in the other, consecutive sentences would have been proper.
Id.
Robbins does not aid Appellant. In Robbins, both offenses arose from the same criminal
episode. The two offenses in the instant case, forgery and unauthorized use of a motor vehicle, did
not arise out of the same criminal episode. In order for Appellant to be entitled to concurrent
sentences, he must establish that the offenses arose out of the same criminal episode and that he was
prosecuted in a single criminal action. See Tex. Pen. Code Ann. 3.03(a); Duran, 844 S.W.2d at 747.
If he fails to prove either, the sentences were properly cumulated.
Appellant also contends that the trial court erred in ordering his sentences to be served
consecutively, because at sentencing he was given credit in each case for 267 days jail time, and
therefore, his sentence had began to run before it was imposed.
A cumulation order is invalid where the defendant has served any part of the sentence on
which the cumulation order is attached. Ex parte Barley, 842 S.W.2d 692, 695 (Tex. Crim. App.
1992). In general, the defendant’s sentence begins to run on the day it is pronounced. Tex. Code
Crim. Proc. Ann. art. 42.09 § 1 (Vernon Supp. 2004-05). The Waco Court of Appeals has expressly
rejected the argument Appellant makes here. See Haliburton v. State, 23 S.W.3d 192, 194 (Tex.
App.–Waco 2000, pet. ref’d). We have found no case that supports Appellant’s position. Appellant’s
first issue is overruled.
Indictment
In his second issue, germane only to the appeal in appellate cause number 12-04-00126-CR,
Appellant contends that the trial court erred in sentencing him to ten years of imprisonment because
the offense charged in the indictment was a state jail felony.
Appellant was charged by indictment with forgery of a twenty-dollar check. On the day of
trial, the trial court granted the State’s motion to amend the indictment to add two enhancement
paragraphs. The order set forth the enhancement counts in full; however, no interlineations or
additions were made to the original, nor was a photocopy of the original indictment with the changes
made thereon included in the record. Appellant raised no objection to the amendment.
Appellant contends that under the procedure followed by the trial court, there was no effective
amendment of the indictment. Appellant argues that, in the absence of an effective amendment, the
original indictment controls; hence his sentence in cause number 12-04-00126-CR (forgery) should
be no more than that prescribed for a state jail felony, the penalty class of the offense charged in the
indictment.
Appellant correctly asserts that the State’s motion to add the enhancement allegations and the
trial court’s order did not accomplish the amendment of the indictment. See Riney v. State, 28
S.W.3d 561, 565-66 (Tex. Crim. App. 2000).
However, Appellant’s ultimate contention was rejected
by the Texas Court of Criminal Appeals in Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App.
1997) (Meyers, Baird, Overstreet, J.J., dissenting) which held, despite prior decisions to the contrary,
that enhancement allegations must be pleaded in some form, but not necessarily in the indictment.
To be adequate, the State’s pleading giving notice of an enhancement allegation must provide
“a description of the judgment of former conviction that will enable [the accused] to find the record
and make preparation for a trial of the question whether he is the convict named therein.” Sears v.
State, 91 S.W.3d 451, 454-55 (Tex. App.–Beaumont 2002, no pet.)(quoting Hollins v. State, 571
S.W.2d 873, 875 (Tex. Crim. App. 1978)). Although the State’s pleading was titled “Motion for
Leave to Amend Indictment,” it set forth a description of the former convictions with the specificity
required.
We conclude the motion was an adequate pleading giving sufficient notice of the State’s intent
to use the described prior convictions for enhancement purposes. Appellant’s second issue is
overruled.
Disposition
The judgments in both cases are affirmed.
BILL BASS
Justice
Opinion delivered August 31, 2005.
Panel consisted of Griffith, J., DeVasto, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.
(DO NOT PUBLISH)
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473 F.Supp.2d 462 (2007)
Juan HEREDIA, Plaintiff,
v.
Joe DOE, the Sullivan County Jail Head of Maintenance, Daniel Hogue, Captain Smith, the Sullivan County Jail Administrator, L.T. Little, of the Sullivan County Correctional Staff, and Doctor John Doe, of the Sullivan County Jail Medical Department, Defendants.
No. 05 CIV 5777 SCR GAY.
United States District Court, S.D. New York.
February 6, 2007.
Juan Heredia, Malone, NY, Pro se.
Michael Frey, Barryville, NY, for Defendant.
ORDER ACCEPTING REPORT AND RECOMMENDATION
ROBINSON, District Judge.
This case was referred to Magistrate Judge George A. Yanthis for issuance of a Report and Recommendation. Pro se Plaintiff Juan Heredia (the "Plaintiff') seeks damages under 42 U.S.C. § 1983 for injuries he claims to have sustained when he slipped and fell while incarcerated at the Sullivan County Jail, and the medical treatment he received after the incident. Defendants filed a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, Judge Yanthis's Report and Recommendation is affirmed. Defendants' motion to dismiss is GRANTED, and Plaintiffs Amended Complaint is DISMISSED.
*463 I. Facts
Plaintiff alleges in his Amended Complaint that on December 23, 2004, he slipped and fell while walking to his cell and in the process injured his back "to the point it swelled up and was in a lot of pain." According to the Amended Complaint, Plaintiff was told that he could not receive medical treatment for his injury until the following day. As a result of his slip and fall, Plaintiff claims to have suffered various injuries, including swelling of his back and nerve damage in his back.
II. Standard of Review
In reviewing a report and recommendation, a court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985) (citations omitted); see also Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991) (court may accept report if it is "not facially erroneous"). Here, the Report and Recommendation was issued on July 10, 2006, and the parties were given ten days to submit objections to this Court. In late July, Plaintiff wrote to this Court and asked for counsel to be appointed for him and for an extension of time to submit objections to the Report and Recommendation. Though Plaintiffs application for, appointment of counsel was denied, he was given until October 16, 2006 to submit any objections to the Report and Recommendation. Plaintiff, however, did not file any objections to the Report and Recommendation. Accordingly, Judge Yanthis's Report and Recommendation will be reviewed for clear error.
III. Discussion
When considering a motion to dismiss under Rule 12(b)(6), a district court must accept as true all factual allegations in the complaint, and must not dismiss the case "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thompson v. Carter, 284 F.3d 411, 416 (2d Cir.2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
Even reading Plaintiffs Amended Complaint broadly, the pleadings fail to state facts which constitute anything more than a claim for negligence, for which there is no cause of action under 42 U.S.C. § 1983. See Daniels v. Williams, 474 U.S. 327, 328 (1986) ("the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property") (emphasis in original). Further, Plaintiffs allegations do not establish a § 1983 claim based on deliberate indifference of jail officials. See, e.g., Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (articulating the deliberate indifference standard for medical treatment). Accordingly, this Court finds there was no clear error in Judge Yanthis's Report and Recommendation, and the Report and Recommendation is therefore accepted.
IV. Conclusion
Based on the foregoing, Judge Yanthis's well-reasoned Report and Recommendation is affirmed. Defendants' motion to dismiss is GRANTED, and Plaintiffs Amended Complaint is DISMISSED. The *464 Clerk of the Court is directed to close this case.
REPORT AND RECOMMENDATION
YANTHIS, United States Magistrate Judge.
TO THE HONORABLE STEPHEN C. ROBINSON, United States District Judge:
Plaintiff Juan Heredia, appearing pro se, seeks damages for injuries he allegedly sustained when he slipped and fell on the Mod 8 day room floor in the Sullivan County Jail. Presently before this Court is defendants' motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, I respectfully recommend that defendants' motion be granted.
In evaluating a motion to dismiss, this Court is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d. 1059, 1067 (2d Cir.1985). In doing so, the Court "must view all allegations raised in the complaint in the light most favorable to the nonmoving party . . . and `must accept as true all the factual allegations in the complaint." Newman & Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir.1996) (quoting Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993)) (citations omitted). Further, pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). A court should not dismiss a pro se complaint "for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980).
Plaintiff's Amended Complaint, contains the following allegations:
On December 23, 2004 I was walking in Mod8 Day room floor when walking to my cell I slipped and fell hurting my back really bad injuring my back to the point it swelled up and was in a lot of pain.
One of the inmates called C.O. John Doe . . . and told him I fell on my back C.O. called medical dept and told me nothing cant be done until tomorrow Inmated david that called the CO told him I really had back nothing done the other two John Doe inmates help me too.
. . .
On my injuries I've gotten 7 days keep locked X-Rays and long term back pain medication and doctor John Doe from Sullivan County Jail Medical dept telling me by back is swollan my nerves in my back is damage and it look likes from the x-ray I need surgery on my back but he wouldn't recamendite.
Clearly, plaintiff fails to allege facts which amount to anything more than negligence, which is not actionable under 42 U.S.C. § 1983. See Daniels v. Williams, 474 U.S. 327 (1986). Even broadly construing plaintiff's allegations, he fails to allege facts sufficient to establish a § 1983 claim based upon deliberate indifference. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (plaintiff must allege (1) a "sufficiently serious" deprivation of medical treatment, i.e. a deprivation reasonably likely to result in death, degeneration or extreme pain and (2) facts tending to show that defendants acted "with a sufficiently culpable state of mind," i.e. that defendants knew of and disregarded an excessive risk to plaintiffs health arising from the deprivation of medical treatment).
*465 Accordingly, I conclude, and respectfully recommend, that defendants' motion to dismiss should be granted and plaintiffs complaint dismissed.
The telephone conference with the undersigned scheduled for July 25, 2006 at 10:00 a.m. is cancelled.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(B), as amended, and Rule 72(b), Fed.R.Civ.P., the parties shall have ten (10) days from receipt of this Report to serve and file written objections to this Report and Recommendation. If copies of this Report are served upon the parties by mail, the parties shall have thirteen (13) days from receipt of this Report to file and serve written objections. See Fed.R.Civ.P. 6(e). Such objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of The Honorable Stephen C. Robinson at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Small v. Secretary of H.H.S., 892 F.2d 15, 16 (2d Cir.1989).
Requests for extensions of time to file objections must be made to the Honorable Stephen C. Robinson and not to the undersigned.
July 10, 2006.
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590 S.E.2d 583 (2004)
42 Va. App. 164
Eldridge Frank VIA, s/k/a Eldridge Frank Via, Jr.
v.
COMMONWEALTH of Virginia.
Record No. 2018-02-3.
Court of Appeals of Virginia.
January 13, 2004.
*585 Craig S. Cooley (Law Office of Craig S. Cooley, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, Attorney General; John H. McLees, Senior Assistant Attorney General, on brief), for appellee.
Present: Judges HUMPHREYS, FELTON and KELSEY.
HUMPHREYS, Judge.
Eldridge Frank Via appeals his convictions, after a jury trial, for sodomy, in violation of Code § 18.2-67.1, and incest, in violation of Code § 18.2-366. Via contends that the trial court erred by: 1) "prompting and soliciting evidentiary objections from the Commonwealth" and "berating and belittling defense counsel," while in the presence of the jury; 2) refusing to admit relevant impeachment evidence; 3) refusing to quash the Commonwealth's subpoena duces tecum, requesting records and information in possession of a defense expert; and 4) erroneously applying the "Rape Shield Statute." For the reasons that follow, we affirm Via's convictions.
I. Background
"On appeal, we review the evidence in the light most favorable to the party prevailing below, together with all reasonable inferences that may be drawn." Benton v. Commonwealth, 40 Va.App. 136, 139, 578 S.E.2d 74, 75 (2003).
So viewed, the relevant evidence established that on October 22, 2001, an Augusta County grand jury indicted Via for "unlawfully and feloniously engag[ing] in cunnilingus with [L.V.], a child under the age of 13 *586 years, in violation of [Code § 18.2-67.1]," and "unlawfully and feloniously having sexual intercourse with his daughter, [L.V.], a child at least thirteen years of age but less than eighteen years of age, in violation of [Code § 18.2-366]." The sodomy indictment alleged that the purported events took place between January 1, 1998 and September 1, 1998. The indictment alleging incest stated that the purported events took place between January 1, 1999 and August 4, 2001.[1]
Prior to Via's trial on these charges, the Commonwealth issued a subpoena duces tecum to Joseph C. Conley, Ph.D., requesting "any and all medical and counseling records, notes and exams and all information relating to [L.V.]." Via's counsel filed a motion to quash the subpoena, contending that Conley was engaged by Via as a defense expert witness "to test and evaluate [L.V.]." Thus, Via's counsel contended Conley's records were subject to the attorney/client privilege arguing,
all communications to and with [Dr. Conley] were made because of the attorney-client relationship between the [d]efendant and his attorney, concerned the subject matter of the attorney's employment, and were communications made to the attorney's agent, said agent's ([Dr.Conley]) services being indispensable to the attorney's effective representation of the [d]efendant.
Via's counsel further argued that the records "pertaining to the minor child complaining witness" were subject to the work product doctrine and that they were not "subject to discovery by the Commonwealth pursuant to Rules of the Virginia Supreme Court, Rule 3A:11(c)."
The trial court heard argument on the motion on January 29, 2002. Recognizing that there is no "physician/client privilege" in criminal matters, the trial court overruled the motion "with respect to any statements made toanything in this that came from this child," the victim. Nevertheless, the trial court granted Via's counsel time to submit authority for the proposition that any statements made to Dr. Conley by Via would be "[in]admissible."
Both Via's counsel and the Commonwealth later submitted additional authority to the court, related to the motion to quash. Via's counsel contended that the Commonwealth was precluded from obtaining Dr. Conley's records, pursuant to Rule 3A:11, as well as the Fifth, Sixth and Fourteenth Amendments. Via's counsel again argued that the records were subject to the attorney/client privilege and the attorney work product doctrine because Dr. Conley was an agent of the defense and Dr. Conley's services were "indispensable" to her effective representation of Via. Via's counsel further argued that any statements made by Paula Via, Via's wife and the victim's adoptive mother, were also subject to the attorney/client privilege as she shared a "common interest" in Via's defense because the Commonwealth had "intimated" she may also face criminal charges. Finally, Via's counsel asked the trial court to reconsider its ruling with respect to statements made to Dr. Conley by L.V. After giving both parties the opportunity to argue the motion further, the trial court overruled the motion to quash the subpoena duces tecum.
Approximately one month prior to Via's trial, the Commonwealth filed a motion in limine requesting that Via's counsel be precluded from introducing at trial any evidence concerning "alleged prior sexual abuse of the victim, [L.V.]," as well as "other alleged sexual activity of the victim, [L.V.]." The Commonwealth based its objection on relevance and the Virginia "Rape Shield Statute," Code § 18.2-67.7.
The trial court heard argument on the Commonwealth's motion on February 25, 2002.[2] Via's counsel contended that because *587 the incest charge did not fall within the ambit of Article 7 of Title 18 .2 (prescribing criminal sexual assault), the "Rape Shield Statute" did not apply. Via's counsel stated that the evidence she intended to elicit would establish that L.V. made prior reports of abuse, directed at her birth father, as well as her birth mother's boyfriend. Via's counsel contended this evidence would tend to establish that L.V. knew how to make a complaint of abuse, and knew that making such a complaint would have the effect of "separating" her from the person she made the complaint against. Via's counsel stated she also intended to introduce evidence concerning L.V.'s alleged other sexual activity during the time at issue, as well as after her report of the abuse. Via's counsel argued this evidence would prove that L.V. had a motive to fabricate the complaint against Via. Specifically, it would lend support to Via's theory that L.V. fabricated the complaints against him with the intention of removing Via from the home, so that he could no longer restrict her from seeing her boyfriend.
The trial court ruled as follows:
All right Ms. Gartzke [(Via's counsel)], I don't think evidence about what type of sexual activity that this child, when she was five years old, engaged in with her father or the boyfriend of her mother, is relevant. And I think it violates the "Rape Shield Statute." I don't think it's relevant.
* * * * * *
... If they ... try to make her prior sexual history an issue in this caseif the Commonwealth tries to do thatthen, you know there isn't much left of this "Rape Shield Statute" ....
* * * * * *
... [I]f that suggestion ever getsgets in here ... what the child actually did would be admissible....
Now the report isis something entirely different, for a different reason. The fact that she reported it and got what she wanted, or ... and I don't know what your evidence is going to be. And you're gonna [sic] have to put some evidence on that's going to make this admissible; the fact that she made a report and got this childor these men excluded from her life, as a result of it, and she knows she can do that. It's all gonna [sic] depend on what kind of evidence you've got, as to why would she want to do that in this case.
* * * * * *
All right. But I can't see how it's gonna [sic] be much voluminous evidence [sic], because you're not gonna [sic] get into evidence what all went on in Montgomery County. You're just not. It's not coming in. But thethe fact that the reportshe made a report and what happened thereafter, may be admissible, provided youyou establish a relevance [sic].
* * * * * *
The [Rape Shield] statute does not apply to the incest charge.
* * * * * *
With respect to the incest charge, there's very little that could conceivably be relevant to an incest charge about some this girl's prior sexual history or subsequent sexual history. It just wouldn't be relevant. It's a question of whether or not he had sex with her.
So, you know, I want to caution you now.... [J]ust don't have somebody come in here and blurt out something that you know is not relevant.
In its written order of February 27, 2002, the trial court stated as follows, in relevant part:
2) The Rape Shield Statute (Sect.18.20-67.7)[sic] does not apply to the charge of incest, but does apply to the charge of forcible sodomy; and
3) Evidence about the sexual activities of [L.V.] which occurred in Montgomery County, Virginia before she was adopted, are not admissible.
At the beginning of Via's trial, the trial court gave the jury "preliminary instructions." *588 Specifically, the trial court admonished the jury that:
No statement, ruling, or remark that I may make at anytime during the course of this trial is intended in any way to indicate my opinion as to the facts of this case. No expression, look, or gesture that I may make should be interpreted by you as being indicative of my opinion.
Subsequently, L.V. testified that the Vias adopted her when she was ten years of age. She stated she was 16 at the time of the trial. L.V. testified that, after living with the Vias for several months, Via began to rub her chest and her "privates" when he would tuck her into bed at night. Sometime after that, Via began to sodomize L.V. and the two began engaging in oral sex and having intercourse.
L.V. testified that these activities continued for the next few years, even after the family had moved into a new home. At that time, L.V. had her own bedroom in the basement of the home. L.V. contended that the last time she had intercourse with her father was on August 4, 2001.
L.V. testified that she met with Dr. Conley and that she told him about the abuse. She conceded she told him that at times, after the abuse began, she would "ask [Via] for sex."
At one point during L.V.'s cross-examination, Via's counsel attempted to admit a photograph of L.V.'s bedroom into evidence. L.V. and her siblings appeared in the photograph. Without clearly setting forth the context, the record establishes that the trial court stated:
I'll mark it, what is it, I'll mark it A, photograph, I'll mark it Defendant's Exhibit A for purposes of identification. Are you just going to go on off or you going to object to it?
Counsel for the Commonwealth replied, "I'm not going to object to that picture, no sir." The trial court then admitted the picture into evidence.
As Via's counsel attempted to admit other photographs, the following colloquy took place between counsel and the trial court:
[Counsel for the Commonwealth]: Show them to [L.V.]. See what she'll say about them. Judge, I, I don't know what the relevance of these pictures are. She's not denying being happy. These are ...
[Trial Court]: I can understand that, Mr. Reed [(Counsel for the Commonwealth)], but you've been sitting there for...
[Counsel for the Commonwealth]: Well, I, you know, I ...
[Trial Court]: ... been going on and on, she's ...
[Counsel for the Commonwealth]: ... I'm trying to be accommodating but there are limits to how far we need to go.
[Trial Court]: Ms. Gartzke [(Via's counsel)], I'm going to, if this, if this is what the purpose of these photographs is, I'm going to sustain the objection because she's answered that, she answered that 15 minutes ago, said she was happy except when [sic]. And I, and she's testified it hadn't, her unhappiness never showed or came out and I just think that's far enough. I mean, that's enough.
[Counsel for Via]: Okay.
When asked whether she wrote about the abuse in her diary, L.V. stated that she remembered writing "one thing." The Commonwealth then objected to the admission of L.V.'s diaries based upon relevance, but noting that they may be admissible if Via's counsel were to ask L.V. "something specific." Outside of the presence of the jury, Via's counsel responded that the diaries should be admitted to show that L.V. did not write about the alleged abuse. Noting that L.V. had already admitted this, and stating, "this is so much overkill, it's pathetic," the trial court sustained the objection. The court further stated, "[i]f there's anything important in there, ask her about it. Otherwise, it's just cumulative to the point of ad nauseam."
After the jury returned, L.V. testified that she had a boyfriend, Isaiah, during the summer of 2001 and that she saw him three times that summer. L.V. agreed that she talked with Isaiah on the telephone for hours, that they had talked about getting married, and that they had discussed names for their future children. L.V. stated that she "hid" her relationship with Isaiah from Via. L.V. *589 further conceded that she was afraid Via would not approve of Isaiah.
When Via's counsel asked L.V., "You never even gave him a chance to find out you had any kind of relation ...," the Commonwealth objected, arguing that the question was "[in]appropriate." The trial court stated "Ms. Gartzke, what's the purpose of that last question? The first one, fine, the second one, what's the purpose of it[?] Don't tell me. I'm going to sustain the objection. Go ahead."
On re-direct, L.V. stated she never spent time with Isaiah unchaperoned.
On re-cross, Via's counsel attempted to introduce love notes written by L.V. and Isaiah, dated August 18, 2001 through September 5, 2001. After Via's counsel requested that they be marked, and again without clearly setting forth the context, the record reflects the trial court stated, "Well, you should let her know of your objection." The Commonwealth then objected, arguing relevance, and the trial court sustained the objection. Via's counsel responded that the contents of the letters were "absolutely relevant." After cautioning Via's counsel not to "raise [her] voice," the trial court dismissed the jury.
Via's counsel argued that there was information in the letters that contradicted L.V.'s statements that she "went out with [Isaiah] three times but she was never unchaperoned." When the trial court asked Via's counsel about the specific relevance of the letters, Via's counsel stated:
It's the crux of our whole case, Your Honor. He did not know about it but she testified that she was afraid to tell him about it and the contents of those letters back up that she was afraid to tell him because she had some total misconception that he would not allow her to see this boy and, and these charges are totally fabricated ...
Although Via's counsel further claimed that the letters contained information concerning "things that occurred before August 18th," the trial court sustained the objection finding that "nothing that occurred with this young woman and any young man after August 18th is relevant to any issue in this case."
Janet Flavin testified on behalf of the Commonwealth. Flavin stated that she was working as a child protective services worker with Staunton Augusta County Department of Social Services on August 18, 2001. She testified that she interviewed L.V. about her report of abuse.
On cross-examination, Via's counsel attempted to ask Flavin whether she followed a training seminar manual when interviewing L.V. The Commonwealth objected to the introduction of the manual on the basis of relevance. Via's counsel stated that the manual was relevant because it "contain[ed] information about how a child should be interviewed when abuse or sexual abuse allegations are going to become criminal offenses" and "much of things in this book were not followed by [Flavin] when she initially interviewed [L.V.]." The trial court sustained the Commonwealth's objection, finding that "[w]hat this young woman has been taught to do with respect to investigations," was irrelevant. However, the trial court prompted Via's counsel to present any evidence she might have indicating that Flavin "told this victim to lie or something of that nature." Via's counsel noted her exception, then proffered the training seminar manual for the record.
At the close of the Commonwealth's case-in-chief, Via's counsel made a motion to strike and the trial court overruled the motion.
Paula Via testified on behalf of Via. When Via's counsel attempted to ask Paula about L.V.'s disposition and demeanor when she first came to live with the Vias, the Commonwealth again objected on the basis of relevance. The trial court sustained the objection, finding the "history of the family simply isn't [relevant], if you've got a single event or something of that nature that you want to poke us on that's fine."
Later, when Paula began to testify about the "abuse that [L.V.] had been through in her life before she came to live with [them]," the Commonwealth requested that Paula's remarks be stricken from the record. The trial court admonished the jury to disregard *590 Paula's remarks in this regard, and after asking the jury to retire to the jury room, reminded Via's counsel of his earlier ruling concerning L.V.'s past abuse.
After the jury returned, Paula Via testified about several statements made by L.V. At that time, the Commonwealth objected, arguing that the testimony being elicited was hearsay. The trial court stated, "I wondered when you were going to ask," then sustained the objection.
Via testified on his own behalf and denied having "sex with [his] daughter" or "oral sex with [his] daughter." Via testified that L.V. was the one who had solicited him for sex. The remainder of Via's case-in-chief consisted, in large part, of testimony from several witnesses, offered for the purpose of establishing that L.V. had not complained to others of abuse and/or to serve as character witnesses for Via. One witness, Rochelle Glover, testified that she was a family friend. However, she also stated that she was a registered nurse, specializing in pediatric emergency medicine. After Glover testified that she "did" most of the pediatric sexual assault cases when she worked in the "emergency department," the trial court stated that "[s]he better not" "offer any kind of opinion." Glover went on to testify that, although she spent time with L.V. "many times," L.V. never reported the abuse to her.
Before resting his defense, Via's counsel proffered evidence for the record that the trial court had earlier ruled inadmissible. Via's counsel stated that there were two groups of evidence to proffer. The first group consisted of evidence concerning L.V.'s relationship with Isaiah, which would be as follows: 1) A friend of L.V.'s would testify that during the summer of 2001, L.V. told her she "couldn't believe [her] Dad" would not let her "go out with Isaiah until [she was] older"; 2) L.V.'s maternal grandmother would testify that L.V. spoke with her that summer, on more than one occasion, about "seeing" Isaiah before July 2001; 3) Via's brother would testify that he had, on several occasions that summer, seen a silver pickup truck, similar to that driven by Isaiah's brother, parked near the Via home, as well as the horse farm where L.V. rode horses; and 4) L.V.'s paternal grandfather would testify that he had found the outside light near the entrance to the Via basement (where L.V.'s bedroom was located) disabled.
Via's counsel proffered that the second category of evidence concerned L.V's prior sexual abuse which occurred in Montgomery County. Relevant to this appeal, Via's counsel proffered testimony from a foster parent L.V. had lived with in Montgomery County, before she lived with the Vias. Via's counsel stated that the foster parent would testify that L.V. told her, in 1993, that she did not want to go home because her birth mother's boyfriend had sexually abused her. Via's counsel proffered that a Montgomery County social worker would testify that this report came just after L.V. was informed she would be returned to her mother's home. Further, when L.V. was told she might then be returned to her birth father's home, she reported that he had done "the same things to her" and "went beyond," claiming that her birth father "had taken his clothes off, laid on top of her and fondled her."
Following the proffer, the trial court confirmed its earlier rulings, finding the evidence, "to the extent it allege[d] the child had sexual activity toviolate the Rape Shield Statute with respect to the sodomy charge .... And, more importantly, this Romeo and Juliet theory never got anywhere. It never got off the ground."
At the close of the evidence, the trial court prompted Via's counsel to renew her motion to strike, which she did. The trial court then denied the motion. The jury subsequently found Via guilty of both charges and recommended that he be sentenced to serve five years in prison on each charge.
Thereafter, Via's counsel filed a motion to set aside the verdict arguing, in relevant part, that the trial court erred in refusing to quash the Commonwealth's subpoena duces tecum, requesting records from Dr. Conley, and in refusing to admit the evidence proffered by the defense. The trial court denied the motion and sentenced Via in accordance with the jury's recommendation.
*591 II. Analysis
Via asserts several Questions Presented on appeal. We find no merit in any of Via's contentions and for the following reasons, we affirm the judgment of the trial court.
A.
Via first argues that the trial court erred "by prompting and soliciting evidentiary objections from the Commonwealth in front of the jury and by berating and belittling defense counsel in her efforts to present proper defense evidence."
Via accurately points out that, in Virginia, [w]e have repeatedly held that in the trial of a criminal case it is of great importance that the court leave to the jury, exclusively, the consideration of the facts. [Indeed,] [i]n Parsons v. Commonwealth, 154 Va. 832, 152 S.E. 547 [(1930)], it was said: "Trial judges in Virginia do not sit merely to keep order. They must do whatever seems to be necessary to mete out evenhanded justice both to the Commonwealth and to the accused, and they should with care abstain from conduct which tends to indicate to the jury any opinion upon those facts, which it is their, and not his, duty to pass upon."
Johnson v. Commonwealth, 193 Va. 502, 505, 69 S.E.2d 340, 341 (1952). However, the Supreme Court of Virginia has explained that
[p]atience is a virtue that well adorns a judge, adds to his respect from bar and public, and aids in creating an atmosphere becoming to a forum where [people] bring their disputes for judicial determination. But, as we said in [Parsons , while impatience is regrettable, judges continue to be [human] and do not cast aside all human imperfections when they ascend the bench. To warrant reversal, their error must be more than mere impatience; it must be of such character as to result in prejudice and prevent a fair trial. It would be that kind, of course, if it caused the jury to become prejudiced against the accused, or influenced them in weighing the evidence.
Moore v. Commonwealth, 186 Va. 453, 463, 42 S.E.2d 871, 876 (1947).
Via specifically complains about the trial court's statements "this is so much overkill, it's pathetic," and "it's cumulative to the point of ad nauseum." Nevertheless, contrary to Via's contention otherwise, these statements were not made in front of the jury. Thus, they could not have improperly "prejudiced" or "influenced" the jury. Id.
Via next points to two occasions where he contends that the trial court solicited the Commonwealth's objections to evidence. In particular, the family photographs and the love letters between Isaiah and L.V. Via also points to the trial court's statement, concerning a defense witness who was a "registered nurse specializing in pediatric emergency medicine," that "[s]he better not offer an opinion."[3]
After a careful review of the record, however, we do not find such instances constitute an expression of the trial court's opinion of the evidence, nor do we find from this record that the trial court's actions improperly prejudiced or influenced the jury. When considered in the appropriate context, it is clear that the trial court's statements or "solicited" objections did not bear on the validity of the evidence being offered in any manner. Moreover, the trial court's statement concerning the opinion evidence appeared to be merely the court's attempt to remind counsel of his earlier rulings in this regard and/or recognition that Via's counsel had failed to lay a proper foundation for expert testimony from that particular witness.
Virginia courts have consistently held that "[t]he conduct of a trial is committed to the sound discretion of the trial court." Justus v. Commonwealth, 222 Va. 667, 676, 283 S.E.2d 905, 910 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 693 (1982); Cunningham v. Commonwealth, 2 Va.App. 358, 365, 344 S.E.2d 389, 393 (1986). Indeed,
[c]ases should not be reversed merely because the judge was impatient, or because he of his own motion ruled out improper testimony and objected to unnecessary repetition; even tilts with counsel are *592 not sufficient. No trial is perfect, and error will at times creep in, particularly in hotly contested cases. To warrant a reversal [the error] must be substantial; otherwise litigation would be interminable.
Parsons, 154 Va. at 852-53, 152 S.E. at 554.
We find no such substantial prejudice here, nor has Via alleged any specific prejudice. Instead, Via states that the "collective impact" of the trial court's conduct "cannot be ignored." However, when we review the record as a whole and consider the trial court's statements in their proper context, it is clear that the trial court, while obviously impatient and abrupt on occasions, was equally so with both parties. Moreover, the trial court specifically instructed the jury, at the beginning of the trial, that his comments and demeanor should not be interpreted as indicative of his opinion. While we do not condone certain comments and the occasional lapse in the judicial demeanor of the trial court, we find no evidence of substantial bias on the part of the judge. Accordingly, we decline to reverse on this ground. See Cunningham, 2 Va.App. at 365, 344 S.E.2d at 393 ("This court has no duty to deduce bias from the record.").
B.
Via next argues the trial court erred in refusing to admit evidence that L.V. had engaged in a much more involved relationship with Isaiah than she claimed in her testimony. Specifically, for purposes of impeachment, Via contends the trial court should have admitted L.V.'s diaries, the love letters between L.V. and Isaiah, the testimony proffered that L.V. had been "seeing" Isaiah before July of 2001, that his car had been seen near the home and horse farm, that the basement entrance light had been disabled, and that L.V. was concerned Via would not let her "go out with" Isaiah, as well as the testimony proffered concerning L.V.'s prior reports of abuse.
Via also argues the trial court erred in refusing to admit evidence of L.V.'s behavior and statements after August 18, 2001, in refusing to admit testimony concerning L.V.'s demeanor and emotional state when she first came to live with the Vias, and refusing to allow him to cross-examine Flavin "as to her method of interviewing complainant and how it was contrary to her training and could have tainted the interview by coaching and supplying details."
It is, of course, fundamental that the Commonwealth had the burden of proving each element of its case, Martin v. Commonwealth, 13 Va.App. 524, 529, 414 S.E.2d 401, 403 (1992) (en banc), and Via had the "right to call for evidence" in his favor, see Va. Const. art I, § 8A. However, it is well settled that "[t]he admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." James v. Commonwealth, 18 Va.App. 746, 753, 446 S.E.2d 900, 904 (1994). Generally speaking, "[e]vidence is admissible if it is both relevant and material," and it is inadmissible if it fails to satisfy these criteria. Evans-Smith v. Commonwealth, 5 Va.App. 188, 196, 198, 361 S.E.2d 436, 441, 442 (1987). "Evidence is relevant if it has any logical tendency, however slight, to establish a fact at issue in the case." Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993). "Evidence is material if it relates to a matter properly at issue." Evans-Smith, 5 Va.App. at 196, 361 S.E.2d at 441.
When a witness takes the stand, she puts her credibility at issue in the case. See Smith v. Commonwealth, 212 Va. 675, 676, 187 S.E.2d 191, 192 (1972). Thus, the opposing party may impeach the witness by "draw[ing] into question the accuracy of the witness's perception, recordation, recollection, narration, or sincerity." Strong, 1 McCormick on Evidence, § 33 n. 5, at 123 (5th ed.1999) (citations omitted). "Any evidence which would tend to convince the jury that the witness's perception, memory, or narration is defective or that his or her veracity is questionable is relevant for purposes of impeachment." Friend, Law of Evidence in Virginia, § 4-1, at 101 (5th ed.1993).
McCarter v. Commonwealth, 38 Va.App. 502, 506, 566 S.E.2d 868, 869-70 (2002) (other citations omitted). Considering these rules, *593 we find no error in the trial court's determination to exclude the evidence recited above.
First, with regard to L.V.'s diaries, as the trial court noted, L.V. conceded that she had only written about the abuse on one occasion. Accordingly, any evidence concerning a lack of writings in the diaries would have been cumulative and clearly irrelevant.
With regard to the love letters, we note that Via's defense theory was that L.V. fabricated the charges against Via in order to get him removed from the home, so that he could not interfere with her relationship with Isaiah. However, as noted by the trial court, the letters were composed after L.V. lodged the complaint. Furthermore, Via's basis for introducing the letters was his contention that the letters proved L.V. feared Via would not allow her to see Isaiah and "totally contradicted" L.V.'s testimony that "she went out with [Isaiah] three times but was never unchaperoned."
Even assuming Via's contentions are true, L.V. conceded in her testimony that she was afraid Via would not approve of her relationship with Isaiah. Furthermore, although Via's counsel proffered the love letters for the record, she never identified or proffered any statements in the letters which contradicted L.V.'s testimony, nor did she bring the letters to L.V.'s attention or lay any foundation for introduction of the letters as prior inconsistent statements. See Friend, Law of Evidence in Virginia, § 4-5(a), at 119 (5th ed. 1999) ("[T]he prior inconsistent statements must in fact be inconsistent with or contradictory to the present testimony and must have emanated from the witness himself."); McCarter, 38 Va.App. at 506, 566 S.E.2d at 869-70; see also Adams v. Ristine, 138 Va. 273, 293, 122 S.E. 126, 132 (1924) ("It is well settled that if it is intended to impeach a witness by a prior inconsistent statement, the foundation should be laid by first calling the attention of the witness to the alleged inconsistent statement and enquiring whether he made it."); Fisher v. Commonwealth, 26 Va.App. 788, 794, 497 S.E.2d 162, 165 (1998) ("When defendant's counsel failed to cross-examine [the witness] relative to the alleged inconsistent statements... he failed to lay a proper foundation necessary to impeach [the witness] through testimony regarding such statements.").[4] Accordingly, we find no abuse of discretion on the part of the trial court in refusing to admit this evidence.
Turning to the statements pertaining to L.V.'s concern that Via would not let her date Isaiah until she was older, her statements that she had "seen" Isaiah prior to July of 2001, as well as the statements concerning the observation of a silver pickup truck and the disabled light, we find that this proffered testimony was irrelevant, cumulative and/or collateral to any issue in the case and, therefore, properly excluded. Indeed, L.V. conceded that she was afraid Via would not approve of her relationship with Isaiah. L.V. also conceded that she "saw" Isaiah on three occasions. She did not testify to the dates of those occasions.
Further, the evidence concerning the silver pickup truck and the disabled light was, at best, collateral to the issues in this case.
A fact is wholly collateral to the main issue if the fact cannot be used in evidence for any purpose other than for contradiction. Evidence of collateral facts, from which no fair inferences can be drawn tending to throw light upon the particular fact under investigation, is properly excluded for the reason that such evidence tends to draw the minds of the jury away from the point in issue, to excite prejudice and mislead them. *594 Helmick v. Commonwealth, 38 Va.App. 558, 564-65, 567 S.E.2d 551, 554-55 (2002); see also PTS Corp. v. Buckman, 263 Va. 613, 621, 561 S.E.2d 718, 722 (2002) ("The determination that proffered evidence is collateral, is, in essence, a determination of relevance."); see also Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). Moreover, none of this particular testimony directly contradicted L.V.'s testimony or version of the relevant events. Thus, we find no error in the trial court's determination that this evidence was irrelevant and immaterial and therefore, inadmissible.
We likewise find no merit in Via's contention that the trial court improperly refused to admit evidence of L.V.'s "behavior, statements and events after August 18, 2001," as well as her demeanor and emotional state when she first came to live with the Vias, nearly six years prior to the trial. As stated above, it is most certainly within the discretion of the trial court to exclude evidence which is not relevant or material to any matter properly at issue in the case. Helmick, 38 Va.App. at 564-65, 567 S.E.2d at 554-55; Evans-Smith, 5 Va.App. at 196, 361 S.E.2d at 441. We find no reason to hold that such evidence was relevant in terms of the disputed issues in the case, nor in terms of L.V.'s credibility as a witness.
Finally, we find no error in the trial court's decision to preclude testimony concerning Flavin's interview techniques as they related to the seminar training manual produced by Via. Via proffered no evidence, nor even a mere allegation, that Flavin engaged in any improper conduct when questioning L.V. Accordingly, the trial court's determination that the manual was irrelevant was not tantamount to an abuse of discretion. We thus affirm Via's convictions on these grounds.
C.
Via next contends the trial court erred in refusing to admit evidence concerning L.V.'s prior reports of sexual abuse, by "incorrectly applying the `Rape Shield Statute.'"
Code § 18.2-67.7, referred to as the "rape shield" law, excludes evidence in sexual assault cases,
of the "general reputation ... of the complaining witness's unchaste character or prior sexual conduct" ... [which is] defined as "any sexual conduct on the part of the complaining witness which took place before the conclusion of the trial, excluding the conduct involved in the offense alleged under this article."
Clinebell v. Commonwealth, 235 Va. 319, 322, 368 S.E.2d 263, 264 (1988).
Here, on the basis of the rape shield law, the trial court specifically refused to allow evidence "to the extent it alleges the child had sexual activity" and only with respect to the sodomy charge. Indeed, in its written order, the trial court specifically stated
2) The Rape Shield Statute (Sect.18.20-67.7)[sic] does not apply to the charge of incest, but does apply to the charge of forcible sodomy; and
3) Evidence about the sexual activities of [L.V.] which occurred in Montgomery County, Virginia before she was adopted, are not admissible.
(Emphasis added).
Via contends that the trial court erred in applying the rape shield law to preclude evidence concerning L.V.'s prior reports of abuse. We need not reach the merits of Via's claim in this regard. Via simply misapprehends the trial court's ruling. In fact, the record reflects that the trial court ruled that any "reports" of sexual abuse would not be barred from admission, as long as Via laid the proper foundation. Specifically, the court stated, "the fact that the reportshe made a report and what happened thereafter, may be admissible, provided youyou establish a relevance [sic]."
Via attempted to admit no such evidence, nor did Via attempt to lay the proper foundation for such evidence. See Clinebell, 235 Va. at 325, 368 S.E.2d at 266 ("A complaining witness' prior accusations are admissible, however, only if a court makes a threshold determination that a reasonable probability of falsity exists."). Indeed, the record reflects that Via's counsel abandoned *595 any attempt to offer such evidence. Accordingly, we find no abuse of discretion and we affirm the trial court on this ground.
D.
Finally, Via argues the trial court erred in refusing to quash the Commonwealth's subpoena duces tecum seeking records in possession of Dr. Conley as they related to statements made by Via, his wife, and L.V.
As stated above, Via asserts that he hired Dr. Conley "[a]s a part of [his] preparation of the defense of these charges" "to assist in evaluating the complainant, suggest defense theories and method of presentations of those theories at trial." Thus, Via contends Dr. Conley's records were protected by the attorney/client privilege and constituted attorney work product. Via further contends that the Commonwealth's request for the documents equated to an "effort to circumvent Rule 3A:11."
There can be no doubt that
[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment "are privileged from disclosure, even for the purpose of administering justice." Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 (1914); accord Seventh District Committee v. Gunter, 212 Va. 278, 287, 183 S.E.2d 713, 719 (1971).
Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301 (1988). "The privilege attaches to communications of the client made to the attorney's agents . . . when such agent's services are indispensable to the attorney's effective representation of the client." Id. "Nevertheless, the privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed." Id. And "[t]he party seeking to assert the attorney-client privilege bears the burden of persuasion on the issue." Id. at 509, 370 S.E.2d at 301.
In this case, Via proffered no evidence for the record in any effort to establish the "indispensability" of Dr. Conley's services. Thus, there was simply no reason for the trial court to have declared Dr. Conley an "agent" of Via's counsel.
As we have found no evidence in the record to support Via's theory that Dr. Conley was an "agent" of his counsel, we find no reason to reverse the trial court's ruling that Dr. Conley's records did not qualify as his attorney's "work product."
Finally, there is no issue here of the proper application of Rule 3A:11. Rule 3A:11 provides that when a defendant seeks certain discovery from the Commonwealth, a trial court may condition such discovery upon the Commonwealth receiving certain specified reciprocal discovery from the defendant. See Rule 3A:11. The discovery made available to the Commonwealth is limited to "written reports of autopsy examinations, ballistic tests, fingerprint, blood, urine and breath analyses, and other scientific tests that may be within the accused's possession . . . ." Id.
The subpoena here, however, did not seek production of documents in Via's possession, but documents in the possession of Dr. Conleya third party. Because we have found that the record belies Via's assertion that Dr. Conley was an agent of his counsel for purposes of the litigation at issue, we find no error in the trial court's refusal to quash the Commonwealth's subpoena duces tecum pursuant to Rule 3A:11.[5] Indeed, "[i]n a criminal proceeding, either the defendant or the Commonwealth may apply for a subpoena to obtain writings and objects that are material to the proceedings and in the possession of a third party." Gibbs v. Commonwealth, 16 Va.App. 697, 699, 432 S.E.2d 514, 515 (1993). "The scope of a subpoena duces tecum is not limited to those objects or documents that may be used at trial." Id. Rather, *596 such a subpoena may be obtained where there is a "`substantial basis for claiming' that the documents or objects sought were material." Id.
For the above-stated reasons, we affirm Via's convictions.
Affirmed.
NOTES
[1] L.V. and her three siblings were adopted by Via and his wife when L.V. was ten years of age.
[2] During the hearing, Via's counsel also indicated that she was considering producing expert testimony from a psychologist in order to establish that "there is a psychological condition in which children who are adopted at that older age, end upa high proportion of those children end up making sexual abuse complaints against their foster parents or their adopted [sic] parents." The trial court advised Via's counsel that it considered such evidence to be pertinent to the credibility of the witness, a matter that it explained was within the province of the jury. It encouraged Via's counsel to produce authority for her position, but advised that it did not "believe" expert testimony concerning an opinion of a witness' credibility would be admissible.
[3] As stated above, this witness did not testify as an expert witness.
[4] We note that although Via raised the admissibility of these letters (based upon their content) as a specific claim of error on appeal, he failed to include the proffered letters as a part of the joint appendix or record on appeal. We remind Via's counsel that it is the appellant's responsibility on appeal to provide this Court with an appropriate appendix and record. See Rule 5A:20; see also Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256 (1961) ("We have many times pointed out that on appeal the judgment of the lower court is presumed to be correct and the burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred in the respect complained of. If the appellant fails to do this, the judgment will be affirmed.").
[5] Cf. Ramirez v. Commonwealth, 20 Va.App. 292, 296-97, 456 S.E.2d 531, 533 (1995) (finding employees of DSS involved in the investigation of the child abuse allegation were agents of the Commonwealth for purposes of Rule 3A:11(b)(2), noting that "where an agency is involved in the investigation or prosecution of a particular criminal case, agency employees become agents of the Commonwealth for purposes of Rule 3A:11 and must be considered a party to the action for purposes of Rule 3A:12").
| {
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252 Wis.2d 289 (2002)
2002 WI 49
643 N.W.2d 480
STATE of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Media DELAO, Defendant-Appellant.
No. 00-1638-CR.
Supreme Court of Wisconsin.
Oral argument November 9, 2001.
Decided May 7, 2002.
*295 For the plaintiff-respondent-petitioner the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
For the defendant-appellant there was a brief and oral argument by Steven P. Weiss, assistant state public defender.
¶ 1. ANN WALSH BRADLEY, J.
The petitioner, State of Wisconsin, seeks review of a published court of appeals decision that reversed Media DeLao's convictions and remanded her case for a new trial.[1] The State argues that the court of appeals erred in determining that the State violated its discovery obligations when it failed to disclose before trial oral statements made by DeLao. In addition, the State asserts that even if it violated its discovery obligations, it did so for good cause, and DeLao was not prejudiced by the admission of her statements.
¶ 2. We determine that the State violated its discovery obligations under the criminal discovery statute, Wis. Stat. § 971.23(1)(b) (1999-2000),[2] when it failed to disclose DeLao's oral statements before her trial began. In addition, we conclude that the State failed to show good cause for its violation and that DeLao was prejudiced *296 by the subsequent admission of her statements. Accordingly, we affirm the court of appeals decision.[3]
I
¶ 3. DeLao's boyfriend, Desmond Stalsberg, was a suspect in a May 31, 1999 robbery of a grocery store, along with another man, John Sabala. Detective James Prioletta of the City of Racine Police Department carried out the follow-up investigation of the robbery.
¶ 4. One week after the robbery, Stalsberg and Sabala got into a fight while at DeLao's house. Stalsberg fired shots at Sabala as Sabala fled the house. Investigator Doug Chaussee of the Mount Pleasant Police Department was the central investigator assigned to the shooting, and he interviewed DeLao at her home on the day of the incident. She initially denied involvement with the shooting or knowledge of Stalsberg's whereabouts. However, when Chaussee interviewed her again that night, she admitted that she had been present during the shooting and that Stalsberg had directed her to help him clean up the crime scene. She told Chaussee that she was afraid and that Stalsberg was "acting crazy."
¶ 5. The State filed a criminal complaint against DeLao alleging, among other counts, that she obstructed *297 an officer and harbored or aided a felon.[4] The charges against her were connected with her conduct after the shooting. The State alleged that she misled the police and cleaned up or sanitized the crime scene.
¶ 6. Sometime after Investigator Chaussee interviewed DeLao about the shooting, he told Detective Prioletta that DeLao may have information about the robbery. Prioletta interviewed DeLao on June 28, 1999, while she was in custody, and he took notes on her oral statements.[5] The focus of his inquiry was on the robbery investigation.
¶ 7. Prior to trial and pursuant to § 971.23(1)(b), DeLao filed a discovery demand requesting that the State provide her with written summaries of any oral statements she made. Her trial was to begin on Tuesday, July 27, 1999. On Sunday, July 25, Investigator Chaussee spoke with Detective Prioletta, who informed Chaussee of DeLao's statements, which indicated that she was not afraid of Stalsberg.
¶ 8. The trial proceeded as scheduled, and during DeLao's opening statement, her attorney told the jury that DeLao would testify and explain that she acted out of fear of Stalsberg. Her attorney said that DeLao's case could be summed up in one word, "survival," and *298 concluded the opening statement with an acknowledgement that DeLao lied to police but did what she did because she was afraid.
¶ 9. After the State rested its case in chief on the second day of trial, the prosecutor informed the circuit court of DeLao's statements to Detective Prioletta. Indicating that the State intended to use the statements to impeach DeLao, the prosecutor explained that although Investigator Chaussee knew of DeLao's statements before the trial began, the prosecutor had not learned of them until that morning.
¶ 10. DeLao objected to the admissibility of the statements, arguing that the State violated the criminal discovery statute. After the circuit court overruled her objection, she moved for a mistrial. Her counsel explained that DeLao's decision to testify had depended on the information the State provided before trial. Because DeLao's theory of defense was coercion, it was her position that it would be prejudicial to allow the State to cross-examine her based on undisclosed statements that indicated she was not afraid of Stalsberg. At the same time, counsel noted, if DeLao failed to take the stand contrary to what the defense promised, "then I have basically lied to the jury."
¶ 11. Denying DeLao's motion for a mistrial, the circuit court disagreed that the statements would be prejudicial, and the State proceeded to cross-examine DeLao using the statements. After DeLao testified, the State called Detective Prioletta to the witness stand as part of its rebuttal case. He testified that when he spoke with DeLao, she never expressed any fear of Stalsberg.
¶ 12. In its closing argument, the State maintained that DeLao's statements to Detective Prioletta were inconsistent with her coercion defense. The jury found DeLao guilty, and she appealed.
*299 ¶ 13. Reversing DeLao's conviction, the court of appeals determined that the State violated its discovery obligations. In addition, the court determined that the State failed to show good cause for its violation. Concluding that the subsequent admission of DeLao's statements required a new trial, the court reasoned:
DeLao was caught on the horns of a dilemma, placed in that position by the Stateeither she must testify and accept the consequences of impeachment, or break her promise to the jury that she would testify and accept the consequences of her broken promise.
State v. DeLao, 2001 WI App 132, ¶ 28, 246 Wis. 2d 304, 629 N.W.2d 825. The State petitioned this court for review.
II
¶ 14. The State asks that we address several issues in resolving this case. The first question we address is whether the court of appeals correctly concluded that the State violated its discovery obligations. This requires the interpretation and application of § 971.23(1)(b) to a given set of facts. It presents a question of law subject to independent appellate review. See State ex rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 121, 561 N.W.2d 729 (1997).
[2]
¶ 15. Because we conclude that the State violated § 971.23(1)(b), we must also determine whether the State has shown good cause for the violation, and if not, whether DeLao was prejudiced by the admission of her statements. These are also questions of law subject to independent appellate review. See State v. Messelt, 185 *300 Wis. 2d 254, 275, 518 N.W.2d 232 (1994) (prejudicial error); State v. Martinez, 166 Wis. 2d 250, 259, 479 N.W.2d 224 (Ct. App. 1991) (good cause).
III
¶ 16. Our interpretation and application of § 971.23(1)(b) involves an inquiry into (1) the scope of the prosecutor's obligation under the statute to make herself aware of evidence against the accused and (2) the meaning of the statutory language, "plans to use in the course of the trial."
¶ 17. Section 971.23, entitled "Discovery and inspection" largely controls the scope of the State's statutory discovery obligations in criminal cases. The portion of the statute that is the focus of our inquiry is subsection (1)(b), which reads:
(1) WHAT A DISTRICT ATTORNEY MUST DISCLOSE TO A DEFENDANT. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:
. . . .
(b) A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial and the names of witnesses to the defendant's oral statements.
¶ 18. The statute requires the State to provide, within a reasonable time before trial begins, a written summary of the defendant's oral statements that the prosecutor plans to use at trial. Even though the State *301 did not disclose DeLao's statements to Detective Prioletta before her trial began, the State asserts that it complied with § 971.23(1)(b) because the prosecutor could not have planned to use the statements until she knew of them. We reject the State's analysis because it does not comport with the requirements of the statute.
¶ 19. Section 971.23 has been revised over the years, but many of the provisions have remained the same since its creation as three separate statutory sections in the comprehensive 1969 redrafting of the criminal procedure statutes. Jones v. State, 69 Wis. 2d 337, 348, 230 N.W.2d 677 (1975); see also Wis. Stat. § 971.23, and compare with Wis. Stat. §§ 971.23-25 (1993-94), and with Wis. Stat. §§ 971.23-25 (1971). Most recently, 1995 Wis. Act 387 repealed, recreated, and renumbered the discovery provisions found in the present version of § 971.23.
¶ 20. Some of the provisions that were new or revised under 1995 Wis. Act 387 were intended to expand the discovery and disclosure requirements that apply to both the State and the defendant. However, the substance of many of the provisions, including what is now subsection (1)(b), has remained essentially unchanged. See 1995 Wis. Act. 387; 1995 A.B. 721.
[3]
¶ 21. Under § 971.23, the State's discovery obligations may extend to information in the possession of law enforcement agencies but not personally known to the prosecutor. Jones, 69 Wis. 2d at 349; State v. Maass, 178 Wis. 2d 63, 69, 502 N.W.2d 913 (Ct. App. 1993). Put another way, under certain circumstances, the knowledge of law enforcement officers may be imputed to the prosecutor.
¶ 22. In Jones, 69 Wis. 2d at 348-49, this court interpreted the discovery statutes in light of Wold v. *302 State, 57 Wis. 2d 344, 204 N.W.2d 482 (1973). Wold, in turn, adopted the American Bar Association (ABA) Standards Relating to the Prosecution Function and the Defense Function: "The test of whether evidence should be disclosed is not whether in fact the prosecutor knows of its existence but, rather, whether by the exercise of due diligence [the prosecutor] should have discovered it." Jones, 69 Wis. 2d at 349 (citing Wold, 57 Wis. 2d at 349-50). The court further explained:
The prosecuting attorney's obligations under this section [of the ABA Standards] extend to material and information in the possession or control of members of his staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office.
Id. In Wold, the court was not interpreting the criminal discovery statutes. Instead, the State's discovery obligation was predicated on the prosecutor's agreement to produce. See 57 Wis. 2d at 347. Nonetheless, Jones and subsequent cases citing Wold have interpreted the discovery statutes to incorporate Wold's rationale, including its reliance on the ABA Standards.
¶ 23. In Martinez, the court of appeals stated:
For purposes of the criminal discovery statutes, we view an investigative police agency which holds relevant evidence as an arm of the prosecution. In most criminal cases, the evidence against the accused is garnered, stored and controlled by the investigating police agency. Depending upon local practice, many courts and district attorneys entrust the custody and control of such material to the police even after it has been elevated to formal evidentiary status in a criminal proceeding.
166 Wis. 2d at 260; see also State v. Sturgeon, 231 Wis. 2d 487, 499, 605 N.W.2d 589 (Ct. App. 1999); Maass, 178 *303 Wis. 2d at 69-70 (citing Wold, 57 Wis. 2d at 349-50). The court in Maass determined that the ABA Standards were "codified in sec. 971.23." 178 Wis. 2d at 70. In short, the threads of Wold and Jones have become tightly woven into the fabric of criminal discovery in Wisconsin.
[4]
¶ 24. The prosecutor's duty to obtain information from investigative agencies is not, however, limitless. For example, due diligence does not require that the prosecutor "consult every law enforcement officer who conceivably could have information respecting a case." Maass, 178 Wis. 2d at 71. This limitation is consistent with the ABA Standards and in keeping with the principles in Jones and Wold. The State is charged with knowledge of material and information in the possession or control of others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to the prosecutor's office. Jones, 69 Wis. 2d at 349; Wold, 57 Wis. 2d at 349 n.4.
¶ 25. We turn next to examine the meaning of the language in § 971.23(1)(b) limiting the State's obligation to disclose a defendant's oral statements to those that it "plans to use in the course of the trial." The State maintains that the phrase "plans to use" embodies a subjective component. According to the State, the prosecutor in DeLao's case could not have planned to use DeLao's statements before DeLao's trial began because a prosecutor cannot plan to use what the prosecutor does not actually know. DeLao asserts, in contrast to the State, that the phrase "plans to use" in § 971.23(1)(b) embodies an objective standard. We agree with DeLao that the standard is necessarily objective.
*304 ¶ 26. In advancing a subjective standard, the State relies on State v. Larsen, 141 Wis. 2d 412, 415 N.W.2d 535 (Ct. App. 1987). The central issue in Larsen was whether the defendant was entitled to a discretionary reversal under Wis. Stat. § 752.35.[6]Id. at 416. The defendant advanced a number of arguments in support of his assertion that justice miscarried. One of his several arguments was that he was denied a fair trial because the state failed to comply with § 971.23(1), despite the fact that it had disclosed his statements before the trial began.
¶ 27. The court of appeals devoted only one paragraph of analysis to this argument. It noted that the district attorney explained that he did not intend to use the statements until the defendant filed his notice of alibi. Larsen, 141 Wis. 2d at 425. The notice of alibi was filed two weeks before trial and the statements were provided to the defendant one week before trial. Id. at 417, 425. In determining that the prosecutor's failure to disclose the statements sooner did not deny the defendant a fair trial, the court referenced the time at which the prosecutor actually decided to use the defendant's statements. See id. at 425-26.
¶ 28. We do not view Larsen as dispositive of the question before us. The court in Larsen was addressing a pretrial disclosure. In the case before us, the disclosure came after the trial began and after the defense committed to a trial strategy based on the information it had at the beginning of trial. The Larsen court *305 concluded that given the circumstances of the pretrial disclosure, it could not conclude that justice had miscarried.
¶ 29. More importantly, Larsen is not dispositive because the court of appeals was not addressing the scope of the meaning of "plans to use"the issue before us. Rather, its discussion of the prosecutor's decision was part of its larger determination that the defendant was not entitled to a discretionary reversal in the interest of justice.
[5]
¶ 30. Thus, the court of appeals in Larsen arguably assumed that § 971.23(1) embodied a subjective standard, without engaging in any construction of the statute as we do today. We interpret the phrase "plans to use" to necessarily embody an objective standard: what a reasonable prosecutor should have known and would have done under the circumstances of the case. An objective standard is consistent with the due diligence-imputed knowledge rule under Wold and its progeny.
¶ 31. In contrast, a subjective standard would be difficult if not impossible to reconcile with the rule that a prosecutor is responsible for exercising due diligence in obtaining statements of which she does not know. The State's theory in this case illustrates this problem. Under that theory, the State could escape its obligation to disclose under § 971.23(1)(b) in every case where the prosecutor failed to exercise due diligence by asserting that the prosecutor, not knowing of the evidence, could not have planned to use it.
¶ 32. Likewise, a subjective standard would create an uncomfortably large opening through the door to prosecutorial sandbagging and discovery abuse. Although *306 there is no affirmative evidence of gamesmanship in this case, a subjective standard would invite it in future cases. Moreover, a subjective standard would spawn cases requiring irksome inquiries into the intent of the prosecutor. Thus, the phrase "plans to use" in the statute necessarily embodies an objective standard.
[7]
¶ 33. Having examined the scope of the prosecutor's obligation under the statute and the statutory phrase "plans to use in the course of the trial," we turn to an application of § 971.23(1)(b) to the facts of this case. The issue becomes whether a reasonable prosecutor, exercising due diligence, should have known of DeLao's statements before trial, and if so, whether a reasonable prosecutor would have planned to use them in the course of trial. Given all the facts here, we conclude that a reasonable prosecutor should have known of the statements and would have planned to use them.
¶ 34. Investigator Chaussee, who knew of DeLao's statements before trial after speaking with Detective Prioletta, was a key actor in the State's case against DeLao. Over DeLao's objection, Chaussee was not sequestered like the other witnesses. He was allowed to remain with the prosecutor throughout the trial as the State's representative. At the trial conference held prior to the entrance of the jury pool, the prosecutor explained, "Your Honor, Investigator Chaussee was the central investigator that ties all of the ends together."
¶ 35. As the court of appeals concluded, the investigation of the robbery and the investigation of the shooting were "hopelessly intertwined" with respect to DeLao. The two investigations overlapped substantially both in time and in the cast of characters involved. The robbery and the shooting occurred a week apart, and *307 DeLao's testimony revealed that she had a significant history with Stalsberg and Sabala.
¶ 36. Detective Prioletta and Investigator Chaussee were in contact about their investigations. When the discovery issue arose at trial, and after the parties and the court examined Prioletta's report, DeLao's attorney commented:
Your honor, in this report given to me today, Investigator Chaussee's name is prettyis made pretty frequent in this report. Investigator Chaussee was the one that told Investigator Prioletta that Ms. DeLao may have information about these robberies.
[8]
¶ 37. One of the State's arguments in support of its failure to disclose is an assertion that DeLao's statements to Detective Prioletta gained relevance "only when the `acting out of fear' theory of the defense was revealed during defense counsel's opening statement." In contrast, DeLao maintains that her defense was apparent from the beginning. We agree with the State that the potential relevance of evidence goes to the question of what a reasonable prosecutor would plan to use. However, the State's characterization of DeLao's theory of defense as materializing on the day her trial began is not supported by the facts. DeLao's assessment of the record is more accurate, and the relevance of her statements related not just to the State's ability to rebut her testimony by impeaching her but to her entire defense.
¶ 38. At oral argument in this court, DeLao's counsel advanced: "From the very first night of this crime, Investigator Chaussee interviewed Ms. DeLao . . . she said in her very first statement to him, `I did what I did because Desmond Stalsberg was acting crazy and I was afraid of him.'"
*308 ¶ 39. Although Investigator Chaussee's report detailing his conversations with DeLao on the night of the shooting does not appear in the record, the comments made by DeLao's trial attorney during opening statement, on the record, support this contention. Her attorney asserted, without objection, that on the night of the shooting, DeLao admitted to Chaussee that she previously lied to the police. DeLao's attorney stated: " . . . and she told him why she lied to the police officer. She said I was afraid, Desmond was acting crazy that day."
¶ 40. Even at DeLao's initial appearance, her attorney's comments suggested what her defense would be. DeLao's attorney explained:
If what is in the criminal complaint is to be believed, what it sounds like is that [DeLao] . . . basically, did not know what to do. This other individual is shooting at someone, out of control, and Ms. DeLao probably didn't know what to do. She was told to clean up the porch and she picked up some gun casings and gave it to the person because there were children in the area.
¶ 41. Again, at DeLao's preliminary hearing, which took place one and one half months before her trial, DeLao's "acting out of fear" defense was raised.[7] DeLao's attorney questioned Investigator Chaussee as to whether DeLao indicated any fear of Stalsberg:
Q. And that sheDid she indicate to you that she was afraid at the point that she was picking up those shells?
*309 A. She said she was told to pick them up by Desmond.
Q. And did she indicate that he had a gun at the time he was telling her to do it?
A. He was in possession of a firearm, that's correct.
Q. Did she indicate she was afraid at the time she was doing it?
A. I don't recall her specifically saying that.
Q. Did she indicate to you when you talked with her that basically all she wanted to do was to get Desmond out of her house?
¶ 42. On redirect, the assistant district attorney representing the State also asked Investigator Chaussee whether DeLao told him she feared Stalsberg, to which he replied that he did not recall. Finally, on re-cross of Chaussee, the sole area of inquiry focused on DeLao's fear:
Q. So are you indicating that you just simply don't recollect or are you saying that you just don't remember whether or not she was in fear for her life? She told you she was in fear for her life or that wasn't said?
A. I don't recall it being said.
¶ 43. In short, it seems that from the beginning of this case, DeLao maintained that she did what she did because she was afraid of Stalsberg. From the outset, she admitted that she removed evidence from the crime scenethe basis of the harboring or aiding a felon charge. She acknowledged that she initially lied to the policethe basis of the obstructing charge. Her response to these charges rested not on denying she committed the acts, but rather on a defense that she *310 committed them out of fear. Thus, the record does not support the State's assertion that DeLao's "acting out of fear" theory of defense became apparent only after her trial began.
¶ 44. Also important to our analysis is the nature of the evidence at issue in this case. This evidence consisted of DeLao's own statements, made while she was in custody, to a police officer who was dispatched to interview her by the lead investigator in the case for which she was charged. While we do not suggest that a reasonable prosecutor would know of and plan to use any and all statements by a defendant, these statements were not just any statements.
¶ 45. The State also relies on Maass, in which three days before the defendant's trial, a police officer came forward to the prosecutor with incriminating statements the defendant had made to him. 178 Wis. 2d at 65. The defendant, Maass, moved to exclude any testimony by the officer, and the circuit court granted the motion. Id. at 66. The court of appeals, however, determined that the State did not violate § 971.23. Id. at 73. It noted that the officer did not participate in the investigation or evaluation of Maass's case or regularly report to the district attorney. Id. at 72. The court reasoned that the officer's "failure to appreciate the significance of Maass's inculpatory statements and his last-minute disclosure of those statements to the district attorney should not deprive the state of this valuable evidence." Id.
¶ 46. The facts of Maass are distinguishable from DeLao's case in two important ways. First, the prosecutor in Maass notified the defendant of his statements before trial began. 178 Wis. 2d at 65. Second, there was no indication that the officer's knowledge in Maass was the result of an investigation that was closely intertwined *311 with the investigation that resulted in Maass's conviction. The different results in Maass's and DeLao's cases serve to illustrate that the question of whether the prosecutor has exercised due diligence, though ultimately a question of law, will be highly fact-dependent.
¶ 47. Given the coextensive character of the two investigations and Investigator Chaussee's pivotal role in DeLao's case, we determine that a reasonable prosecutor should have known of DeLao's statements before trial began. Chaussee knew of the statements before trial began, and under the facts of this case, the State is charged with Chaussee's knowledge of those statements.[8] In addition, we determine that given all the circumstances, including the fact that DeLao maintained from the outset that she acted out of fear, a reasonable prosecutor who was aware of DeLao's statements would have planned to use them in the course of trial. Therefore, the State violated § 971.23(1)(b) when it failed to disclose the statements before DeLao's trial began.
¶ 48. We next address the State's assertion that the court of appeals decision incorrectly expanded the *312 State's discovery obligations to include any information requested by a defendant, regardless of whether the information is discoverable under § 971.23. The bulk of the court of appeals' reasoning in support of its determination that the State violated its discovery obligations consists of a discussion of the imputed knowledge rule of Jones and Martinez. However, paragraph 17 of the opinion reads as follows:
DeLao requested, pursuant to Wis. Stat. § 971.23(1)(b), "a written summary of any oral, written or recorded statements of the defendant, but not limited to those statements which the state intends to use in the course of the trial." (Emphasis added.) Thus, DeLao asked for all statements, not just the ones the State intended to use at trial. The statements in question fell within the purview of her discovery demand. The State made no objection to DeLao's discovery demand as overbroad or beyond the scope of § 971.23(1)(b).
DeLao, 2001 WI App 132, ¶ 17. Thus, the State reads the court of appeals opinion to give import to the State's failure to object to DeLao's discovery demand.
[9]
¶ 49. As a general rule, the discovery to which a criminal defendant is entitled is limited to constitutional and statutory requirements. See State v. O'Connor, 77 Wis. 2d 261, 280 n.7, 252 N.W.2d 671 (1977). Thus, as the State asserts, this court has stated that the discovery statute "controls as to the rights of a defendant as to discovery and the procedures to be followed in enforcing such rights." State v. Calhoun, 67 Wis. 2d 204, 217, 226 N.W.2d 504 (1975).
[10]
¶ 50. Although we agree with the court of appeals that the State violated its discovery obligations, those *313 obligations arose under § 971.23 and not as a result of the State's failure to object to DeLao's discovery request. Indeed, at oral argument DeLao unequivocally asserted that throughout this case she has relied not on the State's failure to object but on the statute, arguing that her statements fall within its purview. Accordingly, we reject the court of appeals' discussion to the extent it can be read to suggest that absent an objection, the State is required to provide materials requested by the defendant that fall outside the scope of statutory or constitutional discovery requirements.
IV
[11, 12]
¶ 51. Our conclusion that the State violated its discovery obligations under § 971.23(1)(b) does not end our inquiry. The State argues that it had good cause for failing to disclose. Absent a showing of good cause, the evidence the State failed to disclose must be excluded. Wis. Stat. § 971.23(7m); State v. Wild, 146 Wis. 2d 18, 27, 429 N.W.2d 105 (Ct. App. 1988).[9] However, if the State can show good cause for its failure to disclose, the circuit court may exclude the evidence or may grant other relief such as a recess or continuance. Section 971.23(7m); Wild, 146 Wis. 2d at 27. The burden of proving good cause rests on the State. Martinez, 166 Wis. 2d at 257.
[13]
¶ 52. The State argues it had good cause for two reasons: (1) it acted in good faith, and (2) even if the prosecutor had known of the statements, she would *314 have had no reason to believe that they were relevant to DeLao's case. We have already disposed of the State's second argument by determining that a reasonable prosecutor would have planned to use the statements at DeLao's trial. Having concluded that "plans to use" in § 971.23(1)(b) necessarily embodies an objective standard, we decline to apply a subjective analysis for purposes of good cause. This would create an exception that swallows the rule.
[14, 15]
¶ 53. That leaves good faith. Certainly, good faith is an important factor in a determination of good cause. See Martinez, 166 Wis. 2d at 259; Wild, 146 Wis. 2d at 28. However, it is not by itself dispositive. Martinez, 166 Wis. 2d at 259. In any event, we conclude that the State's assertion that it acted in good faith is insufficient to show good cause for its failure to disclose. A closer look at the Martinez case illustrates our conclusion.
¶ 54. In Martinez, the evidence at issue was a surveillance tape recording of the defendant that incriminated her in a drug deal. Although the State attempted to make the tape available to the defendant in accordance with the defendant's discovery request, the attempt failed and the tape was lost. Martinez, 166 Wis. 2d at 253-55. The State conceded that it had "goofed up," but the circuit court allowed police officers who had conducted the surveillance to testify as to their recollections of what they heard. Id. at 254, 256. The court of appeals reversed with this explanation:
The trial court concluded that the state's actions were "simply negligence" and not done in bad faith. We disagree that the facts permitted this conclusion. Instead, the limited facts offered by the state allowed for a host of speculative (not reasonable) inferences as to *315 the state's conductgood faith, negligence, recklessness, intentional conduct, or bad faith. This points to the fundamental problemthe failure of the state to meet its burden under the statute.
Id. at 258 (footnote omitted). The court added that "[e]ven if the facts could be read to support the trial court's `negligence/no bad faith' conclusion, this still begs the question of `good cause' under the statute." Id. The court of appeals refused to hold that "negligence or lack of bad faith constitutes `good cause' as a matter of law." Id.
¶ 55. Thus, as did the court of appeals in Martinez, we conclude that even if the State acted in good faith, it failed to show good cause for its failure to disclose. The State emphasizes that there is no indication that it engaged in sandbagging or otherwise acted in bad faith. However, the State's assertions miss the mark because it has the burden to provide some explanation other than good faith.
¶ 56. Finally, in asserting it has shown good cause, the State relies on Tucker v. State, 84 Wis. 2d 630, 267 N.W.2d 630 (1978). In Tucker, the State failed to supply a defendant with the name of an alibi rebuttal witness who was able to place the defendant running from the scene of the crime. Id. at 633-34. Another witness whose name the State had provided also placed Tucker at the scene of the crime. Id. The defendant moved for a mistrial, but the circuit court denied the motion. Id. at 635. After determining on appeal that the State had committed a discovery violation, this court concluded that the defendant suffered no prejudice and that a new trial was unnecessary. See id. at 639, 641. In so concluding, the court noted that the prosecutor did not know that the rebuttal witness would identify the defendant until one-half hour before trial and indicated *316 that this "may have been good cause for granting a recess or continuance." Id. at 640.
¶ 57. We are not persuaded that this language in Tucker means that the State has shown good cause in DeLao's case. The court in Tucker did not analyze the question of whether the prosecutor's failure to know of the witness's statement was or was not excusable for good cause, and the facts recited in the case do not suggest an answer.
¶ 58. Under Martinez, some explanation in addition to good faith is necessary, and the State has been unable to provide that explanation here. As we have already determined using the objective standard embodied in § 971.23(1)(b), the fact that the prosecutor in DeLao's case did not actually know of the evidence is no explanation at all. In short, the State has failed to demonstrate good cause for its violation of the discovery statute. Therefore, DeLao's statements should have been excluded.
V
¶ 59. Having determined that DeLao's statements should have been excluded because the State violated § 971.23(1)(b) without good cause, we address the question of whether the admission of DeLao's statements was prejudicial to her case, thus requiring a new trial. The State asserts there is no prejudice here.[10]
*317 [16]
¶ 60. When evidence that should have been excluded under § 971.23 is not excluded, the defendant is not automatically entitled to a new trial. State v. Ruiz, 118 Wis. 2d 177, 199-200, 347 N.W.2d 352 (1984); Kutchera v. State, 69 Wis. 2d 534, 544-45, 230 N.W.2d 750 (1975). If the defendant is to receive a new trial, the improper admission of the evidence must be prejudicial. Ruiz, 118 Wis. 2d at 199. "The penalty for the breach of disclosure should fit the nature of the proffered evidence and remove any harmful effect on the defendant." Kutchera, 69 Wis. 2d at 542-43 (quoting Wold, 57 Wis. 2d at 351).
[17]
¶ 61. We agree with the court of appeals that the State's failure to comply with § 971.23 placed DeLao on the horns of a dilemma from which no judicial remedy other than a new trial could save her. DeLao's own statements were used against her, and those statements were relevant not just as impeachment evidence but as relating to her entire defense. Thus, the State's discovery violation went to the core of her trial preparation and strategy.
¶ 62. By the time the State disclosed DeLao's statements, she had committed to a defense strategy *318 that was inconsistent with the statements. When the circuit court determined the statements could come in, DeLao had no choice but to break her promise to the jury or take the stand and subject herself to impeachment by evidence that she had not anticipated when she made the promise.
¶ 63. It is particularly significant that the disclosure was in the midst of trial. The primary focus of § 971.23(1)(b) is on disclosure before trial. Indeed, that is the very nature of discovery. "If there is to be pretrial discovery, broad or limited, in criminal cases, defense counsel should be able to rely upon evidence as disclosed by the state; otherwise, the purpose of discovery is frustrated and more injustice is done than if no discovery were allowed." Wold, 57 Wis. 2d at 351.
[18]
¶ 64. We note that two purposes of criminal discovery are to ensure fair trials and to encourage defendants to enter pleas after learning the strength of the State's case. Irby v. State, 60 Wis. 2d 311, 320, 210 N.W.2d 755 (1973); State v. Maday, 179 Wis. 2d 346, 353, 507 N.W.2d 365 (Ct. App. 1993). Both purposes are thwarted when the State fails to provide the information required of it before trial begins.
¶ 65. Here, the State's discovery violation undermined the essence of discovery. It placed DeLao on the horns of a dilemma and prejudiced her case. She must have the opportunity to choose a strategy and prepare for trial in light of all the evidence that should have been provided her. Therefore, we determine, as did the court of appeals, that she is entitled to a new trial.[11]
*319 VI
¶ 66. In sum, we conclude that the State violated § 971.23(1)(b) when it failed to disclose DeLao's oral statements before her trial began. In addition, we determine that the State failed to show good cause for its violation. Finally, we conclude that DeLao was prejudiced by the admission of her statements. Accordingly, we affirm the court of appeals decision reversing DeLao's conviction and remanding her case for a new trial.
By the Court.The decision of the court of appeals is affirmed.
¶ 67. DAVID T. PROSSER, J. (dissenting).
Wisconsin Stat. § 971.23 outlines the discovery obligations of the prosecution and defense in criminal cases. This decision represents the most important interpretation of that statute in many years. In my view, the majority opinion abandons precedent, rewrites the statute, and unreasonably enlarges the discovery obligations of prosecutors. Its revision of discovery law is mistaken and unworkable. Moreover, the court's mandate reversing the defendant's three convictions is a disturbing *320 application of the harmless error rule. Concerned about the consequences of the court's determinations, I respectfully dissent.
I. THE STATUTE
¶ 68. The focus of attention in this case is Wis. Stat. § 971.23(1)(b) pertaining to oral statements of the defendant "which the district attorney plans to use in the course of the trial." Subsection (1) must be viewed in its entirety, however, so that paragraph (b) can be put in context. Context is important because the construction given to one paragraph in a subsection is likely to affect the construction of other paragraphs.
¶ 69. Subsection (1) of the statute, relating to the obligations of the district attorney, reads as follows:
971.23 Discovery and inspection. (1) WHAT A DISTRICT ATTORNEY MUST DISCLOSE TO A DEFENDANT. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:
(a) Any written or recorded statement concerning the alleged crime made by the defendant, including the testimony of the defendant in a secret proceeding under s. 968.26 or before a grand jury, and the names of witnesses to the defendant's written statements.
(b) A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial and the names of witnesses to the defendant's oral statements.
*321 (bm) Evidence obtained in the manner described under s. 968.31(2)(b), if the district attorney intends to use the evidence at trial.
(c) A copy of the defendant's criminal record.
(d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.
(e) Any relevant written or recorded statements of a witness named on a list under par. (d), including any videotaped oral statement of a child under s. 908.08, any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, and the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial. This paragraph does not apply to reports subject to disclosure under s. 972.11(5).
(f) The criminal record of a prosecution witness which is known to the district attorney.
(g) Any physical evidence that the district attorney intends to offer in evidence at the trial.
(h) Any exculpatory evidence.
Wis. Stat. § 971.23(1) (emphasis added).
¶ 70. Subsection (7) of the statute establishes a continuing duty to disclose, if a prosecutor discovers *322 additional materials and information.[1] Subsection (7m) authorizes sanctions for failure to comply with discovery requirements.
II. SCOPE OF PROSECUTOR'S OBLIGATION TO FIND INFORMATION
¶ 71. The first issue in applying Wis. Stat. § 971.23(1) is the scope of the prosecutor's obligation under the statute to seek and find evidence concerning the accused. See majority op. at ¶ 16. The introductory sentence of subsection (1) directs the prosecutor to disclose materials and information requested under the subsection if the materials are "within the possession, custody or control of the state." The statute does not define "possession, custody or control of the state," nor does it spell out the prosecutor's duty to locate materials and information so that they come within the possession, custody or control of the state. Hence, the statute requires interpretation.
¶ 72. Over the years, Wisconsin courts have delineated the prosecutor's duty to seek out information for discovery. In Wold v. State, 57 Wis. 2d 344, 349, 204 N.W.2d 482 (1973), a case in which the facts predated the statute, the court tracked the commentary to the American Bar Association (ABA) Standards and stated an IDEAL: "[I]t is the prosecutor's duty to acquire all *323 relevant evidence. The duty rests upon the prosecution to obtain all evidence in the possession of investigative agencies of the state." Wold, 57 Wis. 2d at 349 (citing American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, sec. 3.11(c) at 100, 102 (Approved Draft, 1971)). Then, recognizing the difficulty of achieving this IDEAL, the court drew back, formulating a due diligence test for the prosecutor: that is, "whether by the exercise of due diligence" the prosecutor should have discovered the materials or information at issue. Wold, 57 Wis. 2d at 350.
¶ 73. "Due diligence" is defined as the "diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.Also termed reasonable diligence." Black's Law Dictionary 468 (7th ed. 1999).
¶ 74. Several Wisconsin decisions have applied the due diligence test to fact situations under the statute. In Jones v. State, 69 Wis. 2d 337, 230 N.W.2d 677 (1975), the defendant claimed a violation of the statute because the prosecutor failed to produce the arrest record of a key witness until the fourth day of trial. The court repeated the due diligence test, then quoted from the ABA Standards:
The prosecuting attorney's obligations under this section extend to material and information in the possession or control of members of his staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office.
Id. at 349 (emphasis added) (quoting American Bar Association Project on Standards for Criminal Justice, *324 Standards Relating to Discovery and Procedure Before Trial, sec. 2.1(d) at 14 (Approved Draft, 1970)).
¶ 75. The Jones court seized upon the phrase "participated in the investigation or evaluation" of the case to exclude two law enforcement agenciesthe FBI and the Los Angeles Police Departmentfrom the scope of the prosecutor's search, because these agencies had not participated in the investigation or evaluation of the case. "Therefore," the court said, "the prosecutor had no duty of his own accord, in response to a general discovery motion, to seek [a prosecution witness's] arrest record from these sources." Jones, 69 Wis. 2d at 349. The court added that "[t]o impose such a duty would create significant practical difficulties since to exercise `due diligence' the prosecutor arguably could thus be required to routinely check for possible conviction records in all 50 states." Id. Under the Jones formulation, the prosecutor is not required to obtain information that is not discoverable by due diligence from the agencies investigating or evaluating the case, unless the defendant has designated the information and pointed to its source. Id. at 349-50.
¶ 76. Today, the advent of the computer may have rendered the Jones analysis outdated with respect to criminal records. Today, a prosecutor may not reasonably argue that there is no obligation to search for the criminal records of the defendant and prosecution witnesses beyond the specific law enforcement agencies investigating or evaluating the case. Due diligence requires more. Criminal records constitute finite designated evidence that can often be obtained through a computer search. The prosecutor is expected to make a thorough effort, using the ordinary channels, to obtain this information.
*325 ¶ 77. The Jones case is still valid, however, in limiting the scope of the search for information less specific and finite than criminal records. The prosecutor must examine the files and records of the agencies investigating or evaluating the case to find the information listed in Wis. Stat. § 971.23(1). But the prosecutor has no obligation to locate information that is not discoverable by due diligenceprimarily from these agenciesparticularly if the defendant has not designated the whereabouts of specific information. An openended search for information beyond the investigative agency is not reasonable because of "significant practical difficulties."
¶ 78. The analysis in State v. Martinez, 166 Wis. 2d 250, 479 N.W.2d 224 (Ct. App. 1991), helps to explain the term "investigative agency." The court said: "For purposes of the criminal discovery statutes, we view an investigative police agency which holds relevant evidence as an arm of the prosecution. In most criminal cases, the evidence against the accused is garnered, stored and controlled by the investigating police agency."[2]Id. at 260.
¶ 79. Like Jones, Martinez linked due diligence to the agency investigating the crime. This principle underlaid the decision in State v. Maass, 178 Wis. 2d 63, 502 N.W.2d 913 (Ct. App. 1993). In Maass, the Jefferson County Sheriff's Department was the investigative agency in a homicide that occurred in that county. Two days before trial, a part-time Town of Ixonia police *326 officer advised the district attorney of an inculpatory statement that the defendant had made two months before the homicide. Id. at 65-66. The district attorney immediately informed defense counsel. Id. at 66. Maass claimed that the part-time officer's failure to disclose the statement earlier should be imputed to the district attorney because the district attorney's duty to disclose information "extend[ed] to material and information possessed by the district attorney's staff or others who have participated in the investigation or evaluation of the case." Id. at 69. The state replied that the district attorney's duty to discover evidence did not extend to information possessed by the part-time officer because the officer was not involved in the investigation or evaluation of the case and did not regularly report to the district attorney or report to the district attorney in that case. The court of appeals said:
We conclude that the discovery statute does not impose on the district attorney the undifferentiated duty to consult every law enforcement officer who conceivably could have information respecting a case under investigation by the district attorney and the district attorney's investigating agency, which in this case was the Jefferson County Sheriff's Department.
Id. at 71.
¶ 80. The majority opinion misapplies the broad principles of Wold, Jones, Martinez, and Maass because it blurs the distinction between agencies that investigate or evaluate "the case" and agencies that do not, thereby unreasonably enlarging the scope of the prosecutor's obligation to search for information. The opinion implies that due diligence requires a prosecutor to go beyond the agencies that investigate or evaluate "the case" to find materials and information that have not been designated by their nature and source. Put in *327 specific terms, the opinion implies that the prosecutor here had a duty to seek out potential evidence in the possession of the Racine Police Department, even though the crimes involved in "the case" against Media DeLao did not occur in Racine and even though the Racine police never "investigated" her case. This expansion of due diligence will create an unreasonable burden for prosecutors in the future.
¶ 81. To justify this result, the majority opinion summarizes the court of appeals decision as concluding that "the investigation of the robbery [in Racine] and the investigation of the shooting [in the Town of Mount Pleasant] were `hopelessly intertwined' with respect to DeLao."[3] Majority op. at ¶ 35.
¶ 82. The record does not support this factual finding by the court of appeals.[4] The record shows that on May 31, 1999, a grocery store was robbed in the City of Racine. The robbery was investigated by the Racine Police Department, whose lead investigator was Detective James Prioletta. On June 7, 1999, a shooting occurred in the Town of Mount Pleasant. Media DeLao heard shots and, thereafter, she allegedly engaged in certain crimes in Mount Pleasant to obstruct the investigation. *328 The shooting and DeLao's alleged crimes were investigated by Investigator Doug Chaussee of the Mount Pleasant Police Department. There is no evidence that Prioletta ever "investigated" the Mount Pleasant shooting or DeLao's alleged crimes, and no evidence that Chaussee ever "investigated" the Racine robbery. There is no evidence that anyone in the majority's "cast of characters" has ever been charged in the Racine robbery. There is no reference to the Racine robbery in the DeLao criminal complaint, in the transcripts of DeLao's preliminary examination, or the transcripts of any other proceeding before DeLao's trial. Circuit Judge Dennis Flynn described the Racine robbery as "a crime separate from what is alleged against the defendant here [in DeLao's case]."
¶ 83. In short, while the time frame of the investigations overlapped and the "cast of characters" overlapped, the "investigations" of the separate crimes did not. Chaussee did tell Prioletta that DeLao might have information about the robbery, and he did make the guns seized at DeLao's home available to the Racine Police Department for testing. But the two cases were distinct and separate, and it is an enormous stretch to declare that the two investigations were "hopelessly intertwined." If Desmond Stalsberg, DeLao's boyfriend, had been charged with the Racine robbery and if Prioletta had submitted his interview with DeLao concerning Stalsberg to the district attorney to support a Stalsberg robbery charge, the situation would be different. But neither of those things happened.
¶ 84. The majority opinion asserts that Investigator Chaussee "dispatched" Detective Prioletta to interview DeLao after she had been charged with the Mount Pleasant crimes. Majority op. at ¶ 44. Use of the verb "dispatched" insinuates that Prioletta was a stalking *329 horse for Chaussee. This hint of improper police conduct[5] is contrary to the record. The majority elsewhere admits that the focus of Prioletta's inquiry was the robbery, not DeLao's alleged crimes. Majority op. at ¶ 6. The most telling evidence that Prioletta was not Chaussee's agent is that Prioletta did not tell Chaussee about his interview with DeLao until 27 days after it had occurred.
¶ 85. The majority opinion also sidesteps the second prong of the two-prong test for determining a prosecutor's duty to secure information. As quoted above, the ABA Standards direct the prosecutor to seek out information from "others," including law enforcement agencies, "who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office." American Bar Association Project on Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial, sec. 2.1(d) at 14 (Approved Draft, 1970).
¶ 86. Here the majority concentrates on the alleged "investigation" prong and whisks past the "reporting" prong. The Racine Police Department did not regularly report to the prosecutor and did not report with reference to the DeLao case until the middle of trial. Majority op. at ¶ 24.
¶ 87. To sum up, the answer to the first question under Wis. Stat. § 971.23(1) is that the prosecutor was *330 not required by due diligence to seek out information from the Racine Police Department because neither Prioletta nor his agency ever investigated or evaluated the DeLao case. Moreover, the Racine Police Department did not report regularly to the district attorney and did not file a report about the DeLao case with the district attorney until July 28, 1999, the second day of trial. Any implication that the prosecutor here should have sought information from the Racine Police Department will alter the standard for due diligence, forcing prosecutors to search for cumulative materials and information that is neither exculpatory nor necessary to prosecute a case.
III. PROSECUTOR'S OBLIGATION TO DISCLOSE INFORMATION
¶ 88. The second issue in applying Wis. Stat. § 971.23(1) is the extent of the prosecutor's duty to disclose materials and information if the materials and information are in the possession, custody or control of the state. The majority opinion concludes that the prosecutor breached her duty to disclose when she failed to turn over the DeLao interview as soon as Chaussee learned of it. This conclusion, and the interpretation of the statute that is required to reach it, should be rejected.
A. Reasonable Duty To Disclose
¶ 89. The majority opinion interprets the introductory sentence of Wis. Stat. § 971.23(1) as creating an absolute duty to disclose certain "materials and information, if it is within the possession, custody or control of the state." An absolute duty to disclose disregards any circumstance in which the prosecutor and the *331 prosecutor's agents do not realize that they have the materials or information, or do not realize the significance of the materials and information they have.[6] An absolute duty will lead occasionally and inevitably to unintentional breaches of the prosecutor's discovery obligation.
¶ 90. The law ought to take into account the reasonableness of a duty to disclose information just as it takes into account the reasonableness of a duty to find information. The statute must either create a reasonable duty to disclose on the front end or tolerate a reasonable breach of that duty on the back end. A prosecutor's unintentional breach of an absolute duty to disclose should not be treated the same as a prosecutor's deliberate withholding of requested information.
¶ 91. The prosecutor's duty to disclose can be made reasonable when the defendant designates the information sought and indicates in which it can be obtained. This is alluded to in Jones, where the court quotes commentary on the ABA Standards Relating to Discovery to explain why a defendant is sometimes required to designate information "[w]here the existence of . . . information is known to the prosecutor but *332 its quality as matter which he is obligated to disclose is not apparent to him." Jones, 69 Wis. 2d at 350 (quoting American Bar Association Project on Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial, sec. 2.4 at 83-84 (Approved Draft, 1970)).
¶ 92. The facts here show that an absolute duty to disclose information is not reasonable. DeLao's attorney drafted a discovery demand on June 16, 1999, and filed it with the district attorney on June 30, 1999. The discovery demand arrived two days after the Prioletta-DeLao interview. It asked the prosecutor to furnish "a written summary of any oral, written or recorded statements of the defendant, but not limited to those statements which the state intends to use in the course of the trial." Although this discovery demand was broad enough to encompass the DeLao interview at the point when the substance of that interview was in the possession, custody or control of the state, it went well beyond the obligations of Wis. Stat. § 971.23(1)(a) and (b), did not designate the June 28 interview, and could not have contemplated that interview because it was drafted 12 days before the interview took place.[7]
¶ 93. Although it is not clear when the prosecutor answered DeLao's discovery demand, it is likely that the prosecutor answered the demand "within a reasonable time before trial," as required by Wis. Stat. § 971.23(1). *333 This would have been before Sunday, July 25, the date Chaussee first learned about the DeLao interview. Consequently, if the new information about the interview had to be disclosed, it would have had to be disclosed under subsection (7):
If, subsequent to compliance with a requirement of this section, and prior to or during trial, a party discovers additional material or the names of additional witnesses requested which are subject to discovery, inspection or production under this section, the party shall promptly notify the other party of the existence of the additional material or names.
Wis. Stat. § 971.23(7).
¶ 94. The prosecutor disclosed the interview information to the defense as soon as she learned about it. For his part, Chaussee advised the prosecutor about the information as soon as he could after he realized its relevance.[8] Chaussee said he realized its relevance at about 12:30 a.m. on July 28, 1999. He said his epiphany occurred at home, shortly after midnight, as he was thinking about the case. This was after he heard the defendant's opening statement and had a chance to ruminate about it.
¶ 95. The circuit court accepted Chaussee's version of events. The court understood that Chaussee did not have a written report of the DeLao interview until the noon hour on July 28. Prioletta had to be asked to write up that report during the trial. The court also recognized that Prioletta never talked to DeLao about the events of June 7. Prioletta discussed conversations *334 that DeLao overheard before June 7. In the interview, DeLao never told Prioletta that she was afraid of Desmond Stalsberg.[9] Rather, she discussed her relationship with Stalsberg and his friends. Thus, it was largely DeLao's description of her relationship with Stalsberg and her silence about her alleged fear of him that were used to rebut her defense.
¶ 96. As a result, the significance of the DeLao interview for trial was not immediately apparent to Chaussee.[10] Information from the interview was not relevant in proving the charges against DeLao. It was helpful only in rebutting DeLao's defense which she did *335 not make clear until trial. Moreover, Investigator Chaussee did not know before trial that DeLao would testify.
¶ 97. The prosecutor disclosed information about the DeLao interview as soon as its relevance was recognized. The majority holds that this was not good enough. It quotes Martinez, 166 Wis. 2d at 260, to the effect that, "an investigative police agency which holds relevant evidence [is] an arm of the prosecution." Majority op. at ¶ 23. Thus, the majority says, the prosecutor was charged with knowledge of information in the possession of the investigating police agency (Mount Pleasant), on and after July 25, and she violated the discovery statute by failing to disclose that information to the defense before trial.
¶ 98. This conclusion does not square with a reasonable dutywith the reasonable diligence expected from a prosecutor or an investigator working with a prosecutor. Imposing an absolute duty to disclose information will not withstand close scrutiny over time.
B. Duty to Disclose Promptly
¶ 99. Even an interpretation of the statute requiring an absolute duty to disclose certain "information within the possession, custody or control of the state" does not settle the issue. For instance, where the prosecutor has made disclosure to the defendant, as here, the court may have to decide whether the disclosure was timely.
¶ 100. This case is governed by Wis. Stat. § 971.23(7), which provides that, upon discovery of additional materials, the prosecutor has a duty to "promptly notify the other party of the existence of the additional material" (emphasis added).
*336 ¶ 101. In this case, Chaussee was told about the DeLao interview on Sunday, July 25, 1999, and the prosecutor notified the defendant three days later, within minutes of learning about it herself.
¶ 102. The majority concludes that promptness required the prosecutor to make disclosure of Chaussee's new information before trial, probably on Monday, July 26, the only work day before trial. Because the circuit court determined that the state made timely disclosure, the majority must reach its opposite conclusion as a matter of law. In deciding this issue, the majority gives short shrift to the fact that Chaussee did not have any written report from Prioletta and did not immediately see how Prioletta's oral summary of the DeLao interview related to the trial.[11] It also ignores the circuit court's finding that the DeLao interview was not relevant to the charges in her case; the interview was relevant only to her impeachment. By insisting that the interview information had to be disclosed to the defendant before trial, the majority opinion treats the timing of the prosecutor's disclosure the same as if the prosecutor had made no disclosure at all.
C. Information Subject to the Duty to Disclose
¶ 103. A court must determine whether materials and information in the possession, custody or control of the state are subject to a duty to disclose under Wis. Stat. § 971.23(1), because not all information must be disclosed. To illustrate, paragraph (a) requires the prosecutor to disclose any "written or recorded statement concerning the alleged crime made by the defendant." *337 Wis. Stat. § 971.23(1)(a) (emphasis added). These words convey a relatively clear directive to the prosecutor. By its terms, paragraph (a) does not obligate the prosecutor to turn over a "written or recorded statement" made by the defendant that does not relate to the alleged crime.
¶ 104. By contrast, paragraph (b) requires the prosecutor to disclose a "written summary of all oral statements of the defendant." Wis. Stat. § 971.23(1)(b) (emphasis added). If there were no additional language in the statute, paragraph (b) would seem to impose an unlimited duty upon the prosecutor to disclose the defendant's oral statements. There would be no limit of relevance.[12] Courts would be forced to ask such questions as: Does paragraph (b) require the prosecutor to disclose a defendant's oral statements about her victimization in an unrelated burglary or her involvement in an unrelated automobile accident? Does paragraph (b) *338 require the prosecutor to disclose a defendant's oral statements to an undercover law enforcement officer if the statements are not intended for use at trial? If we were to give an affirmative answer to these questions, we would be requiring the release of the "names of witnesses to the defendant's oral statements." Wis. Stat. § 971.23(1)(b). In the first example, disclosing the names of the witnesses would be absurd; in the second example, disclosing the name of the undercover officer might impair ongoing undercover investigations.[13]
¶ 105. We do not have to wrestle with these problems because there are additional words in the statute, namely, the phrase "which the district attorney plans to use in the course of the trial." These words place a realistic limitation on the prosecutor's duty to disclose the defendant's oral statements.
¶ 106. Significantly, there are two clear tracks within subsection (1) of Wis. Stat. § 971.23. Paragraphs (a), (c), (f) and (h) and parts of paragraph (e) appear, at least superficially, to create an unconditional obligation upon the prosecutor to disclose certain materials and information "if it is within the possession, custody or control of the state."[14] They make no reference to the prosecutor's intent. The unconditional obligation applies to: (1) any written or recorded statement concerning the alleged crime made by the defendant; (2) a copy of the defendant's criminal record; (3) any relevant written or recorded statement of a witness whom the district attorney intends to call at trial; (4) any reports *339 or statements of experts made in connection with the case, or any written summary of the expert's findings or the subject of the expert's testimony; (5) the criminal record of any prosecution witness which is known to the district attorney; and (6) any exculpatory evidence.
¶ 107. Paragraphs (b), (bm), (d), (g) and parts of paragraph (e) of Wis. Stat. § 971.23(1) are different. They explicitly limit the prosecutor's obligation to turn over enumerated materials and information. In each of these paragraphs, the prosecutor's duty to disclose information is conditioned upon the prosecutor's intent to use the information as evidence. Paragraph (b) limits the disclosure of oral statements of the defendant to those statements "which the district attorney plans to use in the course of the trial." Paragraph (bm) limits disclosure of wiretap evidence unless "the district attorney intends to use the evidence at trial."[15] Paragraph (d) limits the required list of witnesses to witnesses "whom the district attorney intends to call at the trial." Paragraph (e) limits disclosure of the results of physical or mental examinations, scientific tests, experiments or comparisons to those that "the district attorney intends to offer in evidence at trial." Paragraph (g) limits the disclosure of physical evidence to evidence "that the district attorney intends to offer in evidence at the trial."
¶ 108. The majority opinion overlooks the prosecutorial discretion built into the statute when it rejects the state's interpretation of the phrase "plans to use." The majority writes:
*340 The State maintains that the phrase "plans to use" embodies a subjective component. According to the State, the prosecutor in DeLao's case could not have planned to use DeLao's statements before DeLao's trial began because a prosecutor cannot plan to use what the prosecutor does not actually know. DeLao asserts . . . that the phrase "plans to use" . . . embodies an objective standard. We agree with DeLao that the standard is necessarily objective.
Majority op. at ¶ 25. In concluding that the phrase "plans to use" embodies an objective standard, the majority is simply rewriting the statute.[16]
*341 ¶ 109. In addition, the majority's opinion departs from precedent. In State v. Larsen, 141 Wis. 2d 412, 415 N.W.2d 535 (Ct. App. 1987), the court noted that the state had possessed for some time prior to trial a written statement from the defendant's cellmate recounting "numerous statements [the defendant had] made about concocting an alibi defense" to the charges against him. The state did not give the defendant a copy of the statement until a week before trial. Id. at 425. The majority opinion views the state's disclosure in Larsen as a timely pretrial disclosure, but it fails to fully acknowledge the Larsen court's analysis:
The state did not give Larsen a copy of this statement until a week before trial. The district attorney explained that he did not intend to use the cellmate's statement until Larsen filed his notice of alibi. We conclude that sec. 971.23(1) Stats., did not require the district attorney to permit Larsen to inspect and copy or photograph the written statement of Larsen's cellmate which was in his possession or provide him with a written summary of Larsen's oral statements made to his cellmate prior to the time the district attorney concluded he would introduce Larsen's statements at the time of trial. There is no suggestion that the state always intended to use the cellmate's statement but, as a stratagem, waited until the last minute to notify Larsen of the existence of the statement and its intent to use it.
Id.
¶ 110. The Larsen analysis cannot be dismissed by hair-splitting distinctions. A reasonable prosecutor, including a Racine County prosecutor, could have relied upon Larsen as validating a prosecutor's good faith *342 subjective intent to use evidence as a prerequisite for the prosecutor's required disclosure of some information. The analysis in the majority opinion is directly contrary to the analysis in Larsen and in another case, State v. Moriarty, 107 Wis. 2d 622, 321 N.W.2d 324 (Ct. App. 1982).[17]
¶ 111. More important, the majority opinion completely fails to explain the parallel language of subsection (1): "intends to use," "intends to call," and "intends to offer." It is wholly unclear how the phrase "plans to use" could embody an objective standard if the other intent phrases in the subsection still embody a subjective standard. There ought to be consistency within the context of a subsection.
¶ 112. The inevitable implication of the majority opinion is that all paragraphs in the subsection embody an objective standard.[18] This opens the door to the mandatory disclosure of materials under paragraphs *343 (b), (bm), (d), (e), and (g) in circumstances in which the material is never used and was never intended to be used as evidence.
¶ 113. To my mind, paragraphs (b), (bm), (d), (e), and (g) of subsection (1) contemplate a prosecutor's subjective intent. This subjective intent must not be tainted by bad faith. Circuit courts have the power to address a prosecutor's bad faith or manifest incompetence by excluding evidence or devising other remedies to protect the defendant. Wis. Stat. § 971.23(7m). But when a prosecutor seeks to use information that has not been timely disclosed because the prosecutor clearly did not intend to use it, the prosecutor should be permitted to explain and try to justify the shift in position, especially if the shift is responsive to some action or strategy of the defendant.
¶ 114. Most important, the majority opinion is impractical. It insists that a prosecutor turn over not only what the prosecutor knows and plans to use but also what a reasonable prosecutor should have known and would have planned to use if the reasonable prosecutor had known it existed. And it demands that these disclosures be made before trial. This soars beyond previous decisions and is too utopian to make sense in a busy prosecutor's office. It is a blueprint for second-guessing and attacking a prosecutor's conduct.
D. Exception to Duty to Disclose for Rebuttal and Impeachment Witnesses
¶ 115. A prosecutor may not have to disclose some information to the defendant even when the prosecutor *344 intends to use it at trial. Wisconsin Stat. § 971.23(1)(d) requires the prosecutor to disclose "[a] list of all witnesses and their addresses whom the district attorney intends to call at the trial." This list of witnesses is linked to paragraph (e), which requires the prosecutor to disclose "[a]ny relevant written or recorded statements of a witness named on a list under par. (d)." Wis. Stat. § 971.23(1)(e).
¶ 116. What is vital to remember is that paragraph (d) also provides: "This paragraph does not apply to rebuttal witnesses or those called for impeachment only" (emphasis added). The existence of this exception in paragraph (d) legitimizes the use of rebuttal witnesses who may surprise the defendant.[19] This was shown in Lunde v. State, 85 Wis. 2d 80, 270 N.W.2d 180 (1978). Lunde was charged with delivering a controlled substance to a special agent of the Drug Enforcement Administration (DEA). The agent was introduced to Lunde by James Anderson, an undercover informer. At trial, Lunde took the stand and denied the charges in their entirety. He denied that he had ever seen the DEA agent, denied knowing Anderson, and denied knowing anything about the "angel dust" he had sold to the agent. The court described the situation:
Over objection, James Anderson, the informer, was called as a rebuttal witness. Defense counsel's objection was based on the fact that the state had previously notified the defense that it would call three witnesses but had not mentioned Anderson as a possible witness.
*345 The prosecutor stated that he had not intended to call Anderson, he did not know where Anderson was until after the trial commenced, and it was only after the defendant elected to take the stand and denied knowing Anderson that the decision was reached to call Anderson in rebuttal.
Id. at 84-85 (emphasis added).[20] The court concluded that the state had no duty to provide the names of bona fide rebuttal witnesses regardless of any demand of the defendant. Id. at 91 (citing Hough v. State, 70 Wis. 2d 807, 816, 235 N.W.2d 534 (1975), and Caccitolo v. State, 69 Wis. 2d 102, 115, 230 N.W.2d 139 (1975)). The court noted that Anderson's testimony was only necessary and appropriate when the defendant took the stand and denied that he knew Anderson and attempted to create a doubt as to his own whereabouts. Id. at 92.
¶ 117. The rebuttal/impeachment exception has implications for this case. Prioletta was not listed as a prosecution witness. The district attorney did not intend to call him at trial. Consequently, his statement, even if it had been written or recorded, which it was not, need not have been disclosed under paragraph (e). It would have had to be disclosed only if disclosure were required under some other paragraph.
¶ 118. The majority's opinion has an unexpected and unfortunate consequence with regard to witnesses called in rebuttal. Rebuttal witnesses serve the purpose of keeping a person's testimony honest. This includes the defendant in a criminal case who takes the witness stand voluntarily. Under the majority opinion, however, some rebuttal or impeachment evidence against a defendant *346 will be suppressed; and, in that situation, the defendant may be able to testify without fear of contradiction and with virtual immunity from prosecution for perjury. See State v. Canon, 2001 WI 11, 241 Wis. 2d 164, 622 N.W.2d 270.[21]
IV. GOOD CAUSE FOR VIOLATION
¶ 119. Wisconsin Stat. § 971.23 does not automatically exclude witnesses or evidence in the wake of a prosecutor's failure to comply with a discovery demand. The prosecutor may show the court "good cause . . . for failure to comply." Wis. Stat. § 971.23(7m)(a). The statute also explores several alternatives to the exclusion of evidence.
¶ 120. The "good cause" provision constitutes additional proof that the legislature intended the statute be given a reasonable interpretation. If this court expands the scope of the prosecutor's obligation to search for materials and information and makes more absolute and "objective" the prosecutor's duty to disclose such information, it must balance these expanded duties against the prosecutor's good cause, or run the risk of creating a completely unworkable statute.
¶ 121. The majority opinion takes the view that the prosecutor did not have good cause for failing to disclose the Prioletta-DeLao interview before trial. The opinion asserts that DeLao's theory of defense was coercion. Majority op. at ¶ 10. It further asserts that *347 "the State's characterization of DeLao's theory of defense as materializing on the day her trial began is not supported by the facts." Majority op. at ¶ 37. In essence, the majority contends that as early as the night of the shooting, DeLao admitted to lying to the police, but explained that she was afraid and that Stalsberg was "acting crazy."
¶ 122. The defense of coercion is based upon Wis. Stat. § 939.46, which provides that:
(1) a threat by a person . . . which causes the actor reasonably to believe that . . . her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes [her] so to act is a defense to a prosecution for any crime based on that act. . . .
The jury instruction related to Wis. Stat. § 939.46 explains that "[t]he law allows the defendant to act under the defense of coercion only if a threat by another person . . . caused the defendant to believe that [her] act was the only means of preventing [imminent death or great bodily harm to herself or to others] and which pressure caused [her] to act as [she] did." Wis JI Criminal 790. "[T]he defendant's beliefs must have been reasonable." Id. "In determining whether the defendant's beliefs were reasonable, the standard is what a person of ordinary intelligence and prudence would have believed in the defendant's position under the circumstances that existed at the time of the alleged offense." Id. (emphasis added).
¶ 123. Applying the coercion defense to the five crimes originally charged, DeLao would have to argue that she obstructed an officer (Chaussee); aided a felon (Stalsberg) by destroying, altering, hiding, or disguising physical evidence, with intent to prevent the apprehension *348 and subsequent prosecution of Stalsberg; and possessed a short-barreled shotgun, a short-barreled rifle, and drug paraphernalia, because she reasonably believed these acts were the only means of preventing imminent death or great bodily harm to herself or another.[22]
¶ 124. The majority opinion contends that the record shows that DeLao's coercion defense was known to the State from the time of Chaussee's second interview with DeLao on the evening of June 7. Judge Flynn concluded otherwise, saying that "nothing has been presented to the court that indicates the parties were aware of any theory of defense in terms of the State being aware of it before opening statement was made."
¶ 125. In an effort to overcome this finding, the majority opinion attempts to show that Judge Flynn's determination was clearly erroneous. It turns to defense counsel's opening statement, partially quoted in ¶¶ 38-39 of the majority opinion, for its "evidence," and it attaches significance to the fact that the prosecutor did not interrupt the opening statement to object to counsel's argument.
¶ 126. In the opening statement, defense counsel argued that DeLao was afraid because Desmond Stalsberg was "acting crazy." This reference must be put in context. At trial, the defense attorney questioned DeLao about getting into Stalsberg's car after he had fled her house following the shooting and then come back:
DEFENSE ATTORNEY: After you got in the car with Desmond, what happened then?
*349 DELAO: Wehe took off driving real fast, and I told him to slow down, where were we going, and he kind of said he didn't know, that we were just leaving and I was going with him, and I said where are we going, and he didn't really know. He was just driving real crazy, and I told him to slow down because I thought we were gonna get in a car accident. Then we drove past my mom's and I told him that I wanted to stay there, but he turned off, and then we ended up going down past Mitchell and towards Drexel, and then he would tell me that we're just going to go pick up the kids and that we were just going to leave, and I told him no, we weren't gonna go get my kids.
DEFENSE ATTORNEY: Why did you tell him you weren't going to get the kids?
DELAO: Because I didn't want my kids to be in the car with him or me at that time. I felt like I was in danger and I didn't want my kids to get hurt either.
DEFENSE ATTORNEY: Okay, and after you told him that you weren't going to go anywhere with him, what happened?
DELAO: Hewe kind of argued about it and then he dropped me off behind my house by the mobile homes, and that was it, and then when I got there the police were already at my house (emphasis added).
¶ 127. This exchange was part of the defense case. Earlier, in the State's case-in-chief, Chaussee was asked to recount DeLao's comments about this same incident:
PROSECUTOR: Did she indicate whether she left with Desmond Stalsberg?
CHAUSSEE: Yes, she did.
PROSECUTOR: And did she indicate why?
CHAUSSEE: No, she said she got into the car with him and drove away from the scene. They argued a little bit in the car, and she subsequently got out of the *350 car; I believe she said near St. Lucy's Church on Drexel Avenue west of her residence.
PROSECUTOR: Did she indicate whether Desmond had ordered her to get in the car with him, or had forced her to get into the car with him, or was holding her at gunpoint or anything like that?
CHAUSSEE: No.
PROSECUTOR: Did she indicate whether she was afraid of him at that point in time?
CHAUSSEE: She did say in her statement that she was afraid, and I believe her quote was that Desmond was acting crazy (emphasis added).
¶ 128. Placing DeLao's quote in the proper context gives it a very different perspective. The defense strategy was to transform an isolated comment into a full-blown defense. The majority does not supply "evidence" that DeLao "explained" in her second interview with Chaussee why she lied to him in her first interview. Such an explanation purportedly serves as the notice of her defense theory.
¶ 129. DeLao's own testimony at trial severely undercuts her theory. She testified that she screamed at Stalsberg to stop shooting, refused to clean up the porch as he asked, refused to get her kids, refused to run away with Stalsberg, argued with him in his car, and prevailed on him to let her out. Yet, when she was in Chaussee's car a short time later, she lied to Chaussee and obstructed his investigation.
¶ 130. DeLao's testimony at trial supports Chaussee's testimony at the preliminary hearing that DeLao did not emphasize fear of Stalsberg:
DEFENSE ATTORNEY: And then she indicated to you that she had picked up some gun shells, is that correct?
*351 CHAUSSEE: Shotgun shells, correct.
DEFENSE ATTORNEY: And that shedid she indicate to you that she was afraid at the point that she was picking up those shells?
CHAUSSEE: She said she was told to pick them up by Desmond.
DEFENSE ATTORNEY: And did she indicate that he had a gun at the time he was telling her to do it?
CHAUSSEE: He was in possession of a firearm, that's correct.
DEFENSE ATTORNEY: Did she indicate she was afraid at the time she was doing it?
CHAUSSEE: I don't recall her specifically saying that.
DEFENSE ATTORNEY: Did she indicate to you when you talked with her that basically all she wanted to do was to get Desmond out of her house?
CHAUSSEE: At what point?
DEFENSE ATTORNEY: At the point that you were talking to her the second time and she was telling you that she had picked up the gun shellsthe shotgun shells, did she indicate to you the reason she had picked them up was to basically get Desmond out of her house?
CHAUSSEE: I don't believe it was ever put in that context, no.
¶ 131. There is no evidence that Stalsberg ever threatened DeLao. There is no evidence before trial that DeLao used her alleged fear of Stalsberg to explain picking up the shotgun shells or obstructing Chaussee.
¶ 132. The majority opinion also relies upon a comment by defense counsel at DeLao's initial appearance on June 9, 1999. Majority op. at ¶ 40. This *352 comment was part of counsel's argument on bail, not an announcement of the defense theory. Neither the district attorney who tried the case nor Chaussee was present at the hearing. Moreover, a transcript of the hearing was not prepared until five months after the trial. This offhand comment does not establish that the circuit judge who made his decision after reading the relevant documents and listening to the testimony was clearly erroneous.
¶ 133. In rejecting the argument that the prosecutor had good cause for not turning over information about the DeLao-Prioletta interview before trial, the majority makes certain assumptions: (1) Chaussee was an arm of the prosecution and any information he had must be imputed to the prosecutor; (2) by July 25, 1999, Chaussee had in his possession oral statements the defendant made to Prioletta, even though he did not have them in writing; (3) Chaussee knew or should have known the defense theory as of June 7, 1999; (4) Chaussee's failure to see the significance of the DeLao-Prioletta interview in relation to the defense theory is irrelevant, because any reasonable law enforcement officer would have understood that any reasonable prosecutor would plan to use the interview statements even though they would only be used for impeachment or rebuttal if the defendant testified; (5) no reasonable prosecutor who knew about the DeLao interview statements could have relied upon the language of Wis. Stat. § 971.23(1)(b) and the relevant paragraph in the Larsen case as a basis for concluding that a prosecutor's subjective intent made a difference in the duty to disclose; (6) no reasonable prosecutor could have relied upon the impeachment/rebuttal exception in paragraph (d) as a basis for withholding information; and (7) the *353 good faith of the prosecutor has little effect in determining whether the prosecutor has shown good cause.[23]
¶ 134. I disagree. In my view, the State has shown good cause. The facts and circumstances establish that the prosecutor had no intent to surprise or disadvantage the defendant by withholding information required to be disclosed. There is not even a whisper of prosecutorial bad faith. The prosecutor had no obligation to find the information at issue when it was in the possession of the Racine Police. She had no obligation to disclose the information at the moment it came into Chaussee's possession because it was not in writing and because neither the officer nor the prosecutor had any intent to use the information and did not see the value of the information until July 28. The prosecutor disclosed the information as soon as its relevance and its potential use were recognized, demonstrating her good faith; and she used the evidence only in impeachment and rebuttal, not in the case-in-chief.
V. HARMLESS ERROR
¶ 135. The majority opinion determines that the circuit court should have excluded the Prioletta-DeLao interview from use at the trial both for impeachment on cross-examination and for rebuttal. "Absent a showing *354 of good cause, the evidence the State failed to disclose must be excluded. Wis. Stat. § 971.23(7m); State v. Wild, 146 Wis. 2d 18, 27, 429 N.W.2d 105 (Ct. App. 1988)." Majority op. at ¶ 51.[24]
¶ 136. In this case, the evidence was not excluded. It was used after Judge Flynn held a mid-trial hearing and offered to take a break for "as long as the parties want." DeLao was ultimately convicted of three offenses; she was acquitted of three others.
¶ 137. This court reviews a statutory discovery violation under a harmless error analysis. State v. Koopmans, 202 Wis. 2d 385, 396, 550 N.W.2d 715 (Ct. App. 1996) (citing State v. Ruiz, 118 Wis. 2d 177, 198, 347 N.W.2d 352 (1984)), aff'd 210 Wis. 2d 670, 563 N.W.2d 528 (1997).
¶ 138. In Ruiz, 118 Wis. 2d at 198, the court stated that the standard for determining whether a nonconstitutional error is harmless was set out in State v. Gavigan, 111 Wis. 2d 150, 163, 330 N.W.2d 571 (1983). Gavigan in turn had quoted Wold, 57 Wis. 2d at 356, as follows:
The test of harmless error is not whether some harm has resulted, but, rather, whether the appellate court in its independent determination can conclude there is sufficient evidence, other than and uninfluenced by the *355 inadmissible evidence, which would convict the defendant beyond a reasonable doubt.
Gavigan, 111 Wis. 2d at 163.
¶ 139. Several cases show the application of harmless error principles to discovery violations. In 1973 in Wold, 57 Wis. 2d 344, a case involving indecent liberties with a child, the court evaluated a situation in which the district attorney agreed to supply all crime laboratory reports to the defendant. These reports showed no incriminating evidence against the defendant. At trial, however, an analyst testified that she had found a seminal stain on Wold's underwear. The defense moved to strike the testimony on grounds that no reference to the stain appeared in the disclosed reports. In fact, the seminal stain had been found in a test taken after the district attorney had answered the discovery demand and of which he was unaware. The court stated:
The question presented is whether evidence allegedly unknown to the state prior to trial and not disclosed to the defense pursuant to an agreement to disclose and an order of discovery should be excluded. We think the court should have excluded the testimony. In the presentation of the case, the district attorney should have discovered if later tests were made and if so, then, in keeping with his promise to disclose, the tests should have been given to the defendant.
Id. at 349.
¶ 140. Although the Wold court cited "the strong need to avoid surprise of the defense in the area of scientific evidence" and observed that "the prosecutor could have discovered the later test through a conference with his witnesses," Id. at 351, the court concluded *356 that admitting the testimony of the analyst about the stain was harmless error. Id. at 358.
¶ 141. The court said: "Without the consideration of the laboratory test showing stained underwear, [the] evidence would be sufficient in the minds of any jury to convict Wold beyond a reasonable doubt." Id. "The effect of any erroneously admitted statement, which carries no reversal as a matter of law, must be realistically evaluated in the context of the case." Id. at 357 (emphasis added).
¶ 142. Two years later, in Kutchera v. State, 69 Wis. 2d 534, 230 N.W.2d 750 (1975), the court reviewed a set of facts under Wis. Stat. § 971.23. The state did not disclose to the defendant three witnesses who were later called in the case-in-chief. The defendant's conviction was affirmed on the basis that defendant failed to establish surprise or prejudice. Id. at 543.
¶ 143. In 1984 in Ruiz, 118 Wis. 2d 177, in which the cases of two homicide defendants were consolidated, the district attorney failed to disclose to defendant Servantez his knowledge of a damaging statement Servantez made admitting that he had disposed of "the knife" that served as the murder weapon. The statement came into evidence through the questioning of a witness in the case-in-chief. This court said the statement fell within the discovery demand and that the prosecutor did not demonstrate good cause for his failure to disclose it. Nonetheless, the court unanimously upheld Servantez' conviction, saying:
This court faced a situation similar to the present case in Kutchera v. State . . . . We reach a similar conclusion as to the undisclosed evidence in this case. [The witness's] testimony that Servantez said he had disposed of the knife merely added to an already strong *357 case. Our reading of the record persuades us that the exclusion of Servantez' statement would not have affected the result.
Id. at 199-200.
¶ 144. In 1996 in Koopmans, 202 Wis. 2d 385, the court of appeals reviewed a serious case of child abuse against the mother of the abused child. The dispute involved an inculpatory statement the defendant made to a police officer in the presence of a social worker. The state disclosed a report from the social worker in which the defendant was reported as saying that she would "hurt the child herself, which she did not, before she would think" her boyfriend would hurt the child. The officer, whose version of the incident was not disclosed, testified that the defendant had said: "`I will just say I did this and we can just get this all behind us,' or something to that effect." Id. at 390-91. The court of appeals ruled that the defendant had received adequate notice through discovery. Alternatively, however, it concluded that non-disclosure of the officer's version of the statement was harmless error. Id. at 396.
¶ 145. In several of these cases, the state failed to disclose information that surprised and damaged the defendant. In Wold, Kutchera, Ruiz, and Koopmans, the state presented or elicited the evidence in the case-in-chief. By contrast, in this case, the state rested before there was any mention of the Prioletta-DeLao interview. The defendant was given a hearing on the new evidence and as much time as the parties wanted to make adjustments in the defense case. The defendant had the option not to testify.
¶ 146. These four cases were decided before the court restated its formulation of the harmless error test in a series of cases last term. See Green v. Smith & *358 Nephew AHP, Inc., 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727; Evelyn C.R. v. Tykila, 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768; Koffman v. Leichtfuss, 2001 WI 111, 246 Wis. 2d 31, 630 N.W.2d 201; Martindale v. Ripp, 2001 WI 113, 246 Wis. 2d 67, 629 N.W.2d 698. In these cases, we concluded that for an error to affect the substantial rights of a party, there must be a reasonable possibility that the error contributed to the outcome of the action or proceeding at issue. A reasonable possibility of a different outcome is a possibility sufficient to undermine confidence in the outcome. Green, 2001 WI 109, ¶ 96; Evelyn C.R., 2001 WI 110, ¶ 28; Koffman, 2001 WI 111, ¶ 51; Martindale, 2001 WI 113, ¶ 32.
¶ 147. This case is the first in which we apply our restated harmless error standard to a set of facts. Consequently, the case takes on added significance.
¶ 148. Considering all the facts of this case, is there a reasonable possibility that the Prioletta-DeLao interview contributed to the outcome of the trial in such a way that it undermines confidence in the outcome?
¶ 149. DeLao was convicted of three offenses: (1) obstructing an officer; (2) harboring/aiding a felon by acting with intent to prevent the apprehension of Desmond Stalsberg; and (3) possessing a short-barreled shotgun. She was found not guilty of: (1) harboring/aiding a felon by altering, destroying or hiding evidence; (2) possessing a short-barreled rifle; and (3) possessing drug paraphernalia.
¶ 150. The jury found DeLao guilty of two offenses related to her statements to Chaussee in his squad car, after she had returned home and Stalsberg had fled. There is no dispute that DeLao lied to Chaussee and misled him while she was talking to him in the *359 squad car. The only issue was whether she had a defense of coercion that justified her actions.
¶ 151. The jury did not accept DeLao's defense in circumstances when Stalsberg was not present. By contrast, it did accept her defense in relation to her conduct in picking up the shotgun shells and possibly cleaning up blood while Stalsberg was present with a gun in his hand.
¶ 152. The jury also convicted DeLao of possession of a short-barreled shotgun. This weapon was not tied to the June 7 shooting and did not come into her home on June 7. It was found in plain view on the bottom shelf of DeLao's linen closet. The circuit court did not authorize the jury to consider coercion as a defense for possession of this weapon.
¶ 153. All in all, the jury rejected minor charges and charges about which there was some factual dispute. The jury's obvious discernment inspires confidence in the outcome of the trial.
¶ 154. What is largely forgotten in the majority's determination that use of the interview information prejudiced the defendant is that DeLao knew that the authorities were aware of her relationship with Stalsberg. She also knew what she had said to Prioletta. If the import of her statements and her silence about fear was "objectively" obvious to Chaussee on July 25 when he received them second-hand, it must have been "subjectively" obvious to the defendant from the beginning. Why, then, did she not tell her attorney about the interview? Why did she take the stand to testify? Didn't she invite her own impeachment? Was she really surprised to be confronted with her own history?
¶ 155. The undercurrent of the majority's opinion is that Media DeLao was treated badly by the prosecutor and the circuit court. I disagree. The interview *360 evidence was not presented in the case-in-chief. The defendant was given a hearing on the new evidence during the trial and as much time as she needed to make adjustments to her defense. She always had the option not to testify, and any decision not to testify could not be made the subject of adverse comment.
¶ 156. This court must require reasonable diligence on the part of the government in meeting all its discovery obligations, but it should not expect clairvoyance or perfection. No decision by this court can deter good faith error.
¶ 157. This court has a responsibility to enforce a reasonable interpretation of the criminal discovery statute that recognizes the legitimate interests of both the defendant and the government. Because it has failed to do so, I respectfully dissent.
¶ 158. I am authorized to state that JUSTICE DIANE S. SYKES joins this dissenting opinion.
NOTES
[1] See State v. DeLao, 2001 WI App 132, 246 Wis. 2d 304, 629 N.W.2d 825 (reversing and remanding a judgment and an order of the Circuit Court for Racine County, Dennis J. Flynn, Judge. DeLao was convicted for obstructing an officer, harboring or aiding a felon, and possession of a short-barreled shotgun).
[2] All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.
[3] DeLao asks that we address two other issues not decided by the court of appeals. She asserts that the circuit court erred in (1) allowing the State to amend the information after the close of evidence and (2) failing to make a complete record of events surrounding jury deliberations. Because we agree with the court of appeals that DeLao is entitled to a new trial based upon the State's discovery violation, we need not address these two issues.
[4] DeLao was also charged with two counts of possession of a short-barreled shotgun or rifle and possession of drug paraphernalia. She was acquitted of the harboring or aiding count as originally charged under Wis. Stat. § 946.47(1)(b), but at trial the State amended the information to include a harboring or aiding charge under § 946.47(1)(a) for which she was convicted.
[5] Detective Prioletta testified that he interviewed DeLao on June 28, but the court of appeals decision states the date as June 29. The exact date is unimportant for purposes of our decision.
[6] Wisconsin Stat. § 752.35 states in part:
Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from.
[7] The dissent notes that Judge Flynn, who presided over DeLao's trial, determined that the parties presented him with nothing indicating that the State was aware of any theory of defense before DeLao's opening statement. See dissent at ¶ 124. However, we note that Judge Flynn did not preside at DeLao's preliminary hearing or initial appearance.
[8] The dissent's emphasis on City of Racine Detective Prioletta's role in the investigation clouds the focus of the majority opinion. It is Investigator Chaussee who participated in the investigation and evaluation of DeLao's case and reported to the district attorney with respect to her case. Accordingly, it is Chaussee's knowledge, not that of Prioletta, which is imputed to the district attorney. Thus, contrary to what the dissent suggests, our decision does not stand for the proposition that the discovery statute imposes on the district attorney "an undifferentiated duty to consult every law enforcement officer who conceivably could have information respecting a case under investigation." Dissent at ¶ 79 (citing State v. Maass, 178 Wis. 2d 63, 71, 502 N.W.2d 913 (Ct. App. 1993)).
[9] This court has criticized the decision in State v. Wild, 146 Wis. 2d 18, 429 N.W.2d 105 (Ct. App. 1988), on an unrelated point. See State v. Eichman, 155 Wis. 2d 552, 562-63, 456 N.W.2d 143 (1990).
[10] The court of appeals did not employ a harmless error analysis in deciding that DeLao was entitled to a new trial. Neither DeLao nor the State briefed or argued the question of whether a new trial is warranted in the express terms of a harmless error analysis. Nevertheless, the dissent is correct that some of the case law addressing the proper remedy for a discovery violation refers to harmless error. See State v. Ruiz, 118 Wis. 2d 177, 198-99, 347 N.W.2d 352 (1984); Wold v. State, 57 Wis. 2d 344, 356-58, 204 N.W.2d 482 (1973). We recognize that there has been a "gradual merger of this court's collective thinking in respect to harmless versus prejudicial error." State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). Regardless of whether the test is prejudicial error or harmless error, or whether any difference between the two remains, our conclusion in this case is the same. The admission of DeLao's statements is sufficient to undermine our confidence in the outcome of her trial. See id. at 545.
[11] The court of appeals appeared to assume that DeLao's new trial should encompass all three of the charges for which she was convicted, including the weapons possession charge, and we agree. Her theory of defense was that at the time police searched her home, she did not know it contained guns. She testified that on a previous occasion, when either Stalsberg or Sabala brought a gun to her house, she demanded that it be removed. The State's position was that she was lying, and her statements to Detective Prioletta served to undermine her credibility. Thus, DeLao's decision to testify coupled with her statements to Prioletta generated the evidentiary dispute central to the weapons charge, and her conviction on that charge was contaminated by the prejudicial effect of the State's discovery violation.
[1] Wisconsin Stat. § 971.23(7) reads:
(7) CONTINUING DUTY TO DISCLOSE. If, subsequent to compliance with a requirement of this section, and prior to or during trial, a party discovers additional material or the names of additional witnesses requested which are subject to discovery, inspection or production under this section, the party shall promptly notify the other party of the existence of the additional material or names.
[2] The court noted that the police are frequently entrusted with "the custody and control" of material "even after it has been elevated to formal evidentiary status in a criminal proceeding." State v. Martinez, 166 Wis. 2d 250, 260, 479 N.W.2d 224 (Ct. App. 1991).
[3] The majority opinion attempts to bolster this factual finding with the observation that, "[t]he two investigations overlapped substantially both in time and in the cast of characters involved." Majority op. at ¶ 35.
[4] In the same paragraph in which it made the "hopelessly intertwined" finding, the court of appeals stated that, "DeLao was not a mere citizen witness. She was a suspect." State v. DeLao, 2001 WI App 132, ¶ 135, 246 Wis. 2d 304, 629 N.W.2d 825. There is no evidence that DeLao was ever a suspect in the robbery, and she certainly was not "a suspect" in the June 7 crimes after she had been charged with these crimes 20 days earlier and had already received a preliminary examination.
[5] In State v. Dagnall, 2000 WI 82, ¶ 53, 236 Wis. 2d 339, 612 N.W.2d 680, this court discussed a defendant's Sixth Amendment right to counsel after being charged with an offense: "After an attorney represents the defendant on particular charges, the accused may not be questioned about the crimes charged in the absence of an attorney." DeLao was represented by counsel long before the Prioletta interview.
[6] To give an example, an investigative agency may possess criminal or juvenile records concerning a prosecution witness but not realize it because the information is recorded under a different name. The law can react to such facts in various ways. It can create an absolute duty to disclose and impose a sanction upon the prosecutor for failure to do so. This may reward a defendant for a prosecutor's inadvertent error. It can create an absolute duty to disclose but excuse the failure to disclose if the prosecutor is able to show good cause. Wisconsin Stat. § 971.23(1)(f) addresses this specific example by creating a duty to disclose the criminal record of a prosecution witness "which is known to the district attorney." Wis. Stat. § 971.23(1)(f) (emphasis added).
[7] There is clear evidence that DeLao's attorney submitted a boilerplate discovery demand, not a document designed to alert the prosecutor to the existence of some important oral statement by the defendant. The demand document invokes the authority of "Sections 971.23, 971.24, and 971.25 of the Wisconsin Statutes." Wisconsin Stat. §§ 971.24 and 971.25 were repealed effective January 1, 1997, two and one-half years before the discovery document was filed. 1995 Wis. Act 387, §§ 26, 29.
[8] Chaussee commenced his testimony on July 27. He realized the relevance of DeLao's interview after his first day on the stand but was not permitted to speak to the prosecutor until he completed his testimony on July 28.
[9] At trial, in rebuttal, the prosecutor questioned Detective Prioletta:
PROSECUTOR: Did [DeLao] ever express to you that she was afraid of Desmond Stalsberg?
PRIOLETTA: No.
Then, in cross-examination of Prioletta, the following exchange occurred:
DEFENSE ATTORNEY: And you didn't ask [DeLao] whether or not she was afraid of Desmond Stalsberg, did you?
PRIOLETTA: No, I did not ask her that.
DEFENSE ATTORNEY: Because you really weren't there about her situation; you just wanted to know information about any robberies that Desmond Stalsberg or John Sabala might have been in?
PRIOLETTA: Not any. I was there for a specific reason, the robbery I was investigating.
[10] The significance of the DeLao interview was not immediately apparent to Prioletta either. The majority fails to explain why Prioletta waited 27 days after the interview to tell Chaussee about it if he understood that the interview was relevant to DeLao's trial.
[11] As a practical matter, the majority is saying that Chaussee should have asked Prioletta to prepare a written report as soon as he heard about the interview.
[12] The ABA Standards on Discovery recognize the problem of scope. Standard 11.2.1 (Prosecutorial disclosure), in paragraph (a)(i), requires the pretrial disclosure of "[a]ll written and all oral statements of the defendant or of any codefendant that are within the possession of the prosecution and that relate to the subject matter of the offense charged, and any documents relating to the acquisition of such documents." American Bar Association Standards for Criminal Justice, 11-2.1, at 1 (3d ed. 1996) (emphasis added).
The court of appeals dismissed this concern when it wrote: "Chaussee knew of DeLao's statements prior to trial, yet failed to inform the district attorney because he did not think the statements were relevant. It is not Chaussee's job to determine the relevancy of evidence." DeLao, 2001 WI App 132, ¶ 27. This comment fails to recognize that police officers routinely determine what they consider important enough to include in their own police reports.
[13] A protective order under Wis. Stat. § 971.23(6) will frequently not solve this problem.
[14] Wisconsin Stat. § 971.23(1)(f) imposes an unconditional obligation to disclose the "criminal record of a prosecution witness which is known to the district attorney" (emphasis added). Paragraph (f) poses special problems of interpretation.
[15] Without the limitation of the prosecutor's intent, paragraph (bm) would require the prosecutor to release wiretap transcripts of an investigation target to a defendant whose conversation happens to be recorded as part of the wiretap.
[16] In State v. Ruiz, 113 Wis. 2d 273, 335 N.W.2d 892 (Ct. App. 1983), rev'd, 118 Wis. 2d 177, 347 N.W.2d 352 (1984), the court of appeals considered a situation in which a prosecutor knew of an inculpatory statement the defendant made to several witnesses about the crime. The prosecutor did not disclose the statement to the defendant. At trial the prosecutor asked a witness questions that elicited the statement. The state later argued that the prosecutor did not plan to use the statement at trial because the prosecutor did not know how the witness would answer the questions. The court responded: "To say that the prosecutor need disclose only what he is abundantly certain the witness will repeat would make a mockery of the discovery provisions." Id. at 278 n.3. The court of appeals decision was ultimately reversed on grounds that admission of the inculpatory statement was harmless error. See infra ¶ 77.
In any event, the court of appeals decision in Ruiz can be distinguished from the present case. In Ruiz, the prosecutor hoped to elicit the inculpatory statement, even if he did not know whether he would succeed. The case differs in at least four respects from the present case: (1) The prosecutor in Ruiz personally knew about the defendant's statement; (2) The statement related to the crime charged; (3) The prosecutor asked questions of a witness in the case-in-chief to elicit the statement; and (4) According to the court of appeals, the prosecutor had a history of non-disclosure.
[17] In State v. Moriarty, 107 Wis. 2d 622, 321 N.W.2d 324 (Ct. App. 1982), the defendant argued that the circuit court committed error when it admitted into evidence certain medical conclusions offered by the state on rebuttal even though the state had not produced the medical records in response to the defendant's discovery demand. The court held that "the conclusions were properly admitted because the State did not intend to use the records at trial and offered the evidence only in rebuttal." Id. at 623 (emphasis added). The court noted specifically: "The district attorney in the present case stated that he did not intend to use the medical records in the presentation of his case-in-chief." Id. at 627.
[18] In light of the majority opinion, an argument can be made that paragraph (f) concerning criminal records of prosecution witnesses also should be subject to an objective standard. That is, the district attorney should disclose not only the "criminal record of a prosecution witness which is known to the district attorney" but also the criminal record of a prosecution witness which should be known to a reasonable district attorney.
[19] "Surprise is not listed as a specific ground for exclusion of evidence. This court has recognized that a continuance will generally be a more appropriate remedy for surprise than exclusion." State v. O'Connor, 77 Wis. 2d 261, 287-88, 252 N.W.2d 671 (1977) (citing Frederickson v. Louisville Ladder Co., 52 Wis. 2d 776, 784, 191 N.W.2d 193 (1971)).
[20] In Lunde, this court did not repudiate the state's argument that the prosecutor had not intended to call Anderson as a witness. Lunde v. State, 85 Wis. 2d 80, 270 N.W.2d 180 (1978).
[21] In the present case, the testimony of Detective Prioletta, if suppressed, could not be used to support a subsequent perjury charge against DeLao because knowledge about the interview was not new and additional evidence discovered after trial. See State v. Canon, 2001 WI 11, ¶¶ 22-23, 241 Wis. 2d 164, 622 N.W.2d 270.
[22] The circuit court never authorized the jury to consider coercion as a potential defense for the weapons charges and the drug paraphernalia charge.
[23] The decision in State v. Martinez, 166 Wis. 2d 250, 259, 479 N.W.2d 224 (Ct. App. 1991), makes clear that good faith does not necessarily equal good cause. On the other hand, "an assessment of the State's conduct in such terms [good faith] may be relevant to the question of `good cause.'" Id. The prosecutor's good faith was an important factor in the court's finding of good cause in State v. Wild, 146 Wis. 2d 18, 429 N.W.2d 105 (Ct. App. 1988). It is very troubling that the majority opinion presents this case as though the State had no compelling facts to supplement its assertion of good faith.
[24] We cannot know how the prosecutor would have conducted her cross-examination of DeLao if all reference to the Prioletta-DeLao interview had been excluded. However, it is not unrealistic to speculate that she would have asked questions about DeLao's relationships with Stalsberg and members of the Latin Kings street gang because at least some of this information was known to the prosecutor and Chaussee independent of the Prioletta-DeLao interview.
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867 F.2d 605
Praught (Joseph W., Jr.) as Trustee of J.W. Praught Companyv.Sockbeson (Henry J., Jr.), d/b/a Henry J. Sockbeson & Son
NOS. 88-1344, 88-1393
United States Court of Appeals,First Circuit.
NOV 09, 1988
1
Appeal From: D.Me.
2
AFFIRMED.
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585 F.2d 613
18 Empl. Prac. Dec. P 8833
Rev. P. P. BURT, Appellee,v.C. Ashley ABEL, Mark Adams, Virgil Wall, James Cooper, CecilYonce, Jr., Mott Vann, R. C. Scott, Individuallyand as Members of the Board of Trusteesof Edgefield County SchoolDistrict, Appellants,andThe Board of Trustees of Edgefield County School District,S. K. Dean, Individually and as Principal of W. E. ParkerHigh School, and Herman E. Cain, Individually and as SchoolAdministrator of Edgefield County, and his and theirsuccessors in office jointly and severally, Defendants.
No. 76-2080.
United States Court of Appeals,Fourth Circuit.
Argued Jan. 13, 1978.Decided Sept. 29, 1978.
W. Ray Berry, Columbia, S.C., and J. Roy Berry, Johnston, S.C., for appellants.
Laughlin McDonald, Atlanta, Ga. (Neil Bradley and H. Christopher Coates, Atlanta, Ga., on brief), for appellee.
Before WINTER, RUSSELL and WIDENER, Circuit Judges.
PER CURIAM:
1
This case is before us for a second time. In Burt v. Board of Trustees of Edgefield County School District, 521 F.2d 1201 (4 Cir. 1975) (Burt I), we reversed the judgment of the district court awarding back pay to Mrs. Burt because her dismissal as a teacher by the Edgefield County, South Carolina school board was effected without adequate notice and hearing as required by the due process clause of the fourteenth amendment. We reversed in Burt I, inter alia, because the record was not clear as to whether the district court's judgment ran against the named defendants in their official or in their individual capacities.1
2
On remand,2 the district court (1) clarified the record by expressly entering judgment against defendants in their official capacities, (2) expended plaintiff's relief by ordering that defendants arrange to have employer contributions made to Mrs. Burt's retirement fund for that period during which Mrs. Burt was unlawfully denied employment, and (3) vacated, in accordance with our instructions, its prior award of attorney's fees to Mrs. Burt's attorney. Defendants again appealed.
3
The district court diligently followed our instructions on remand. However, after argument of the instant appeal, the Supreme Court decided two cases having a substantial effect upon the case at bar.3 In addition, during the pendency of this appeal, Congress enacted a statute authorizing attorney's fees in federal civil rights suits.4 Since it is our duty to " apply the law in effect at the time (we) render (our) decision," Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969), we must vacate the judgment below and remand this case once again for further proceedings consistent with this opinion.
I.
4
In Horton v. Orange County Board of Education, 464 F.2d 536 (4 Cir. 1972), we held that, where an employee is dismissed without being accorded procedural due process but where the dismissal is subsequently determined by a court to have been for just cause, the employee is not entitled to actual reinstatement but may recover an award of back pay for that period between the date of discharge and the date of the subsequent court decision. Constructive reinstatement for that period during which the dismissal was unlawful was deemed by us to be the appropriate remedy for constitutional defects in the discharge procedure. This was the relief granted Mrs. Burt by the district court in Burt I.5
5
In Carey v. Piphus, 435 U.S. 247, 260, n.15, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), the Supreme Court disapproved our decision in Horton. While Carey dealt specifically with procedural defects in the context of school suspensions, we think that its reasoning applies whenever the only constitutional deprivation suffered is procedural in nature.
6
Carey makes clear that a deprivation of procedural due process is an independent constitutional tort, actionable under § 1983 with or without proof of actual injury. 435 U.S. at 266-267, 98 S.Ct. 1042. However, damages, other than nominal damages, are not presumed to flow from every deprivation of procedural due process. In order for a plaintiff who has suffered a deprivation of procedural due process to recover more than nominal damages, he must also prove that the procedural deprivation caused some independent compensable harm. 435 U.S. at 259-264, 98 S.Ct. 1042. Ordinarily, mental and emotional distress stemming from the denial of due process, but not from the justified deprivation of the substantive right, are the only items of compensable harm, although some courts have permitted recovery of punitive damages where the deprivation of procedural due process has been malicious and there is need to deter or punish violations of constitutional rights. Thus, in most cases, a plaintiff who suffers only a procedural deprivation will recover no more than nominal damages. 435 U.S. at 265-267, 98 S.Ct. 1042; See also Codd v. Velger, 429 U.S. 624, 630-31 n.3, 97 S.Ct. 882, 51 L.Ed.2d 92 (Brennan, J. dissenting); Burt I, supra,521 F.2d at 1204 (separate views of Craven, J., re the measure of damages for a procedural violation).
7
Carey, we believe, requires that we vacate the district court's award and remand the case to allow plaintiff to plead and prove any Actual injury suffered by Mrs. Burt as a result of defendant's alleged failure to provide adequate pretermination notice and hearing. Because it is settled that Mrs. Burt's discharge was for just cause,6 plaintiff shall not be allowed to allege lost pay or lost retirement-fund contributions as damages attributable to the procedural deprivation. However, as the Supreme Court itself observed in Carey, this does not preclude plaintiff from alleging an intangible injury such as "mental and emotional distress caused by the denial of procedural due process." 435 U.S. at 261, 98 S.Ct. at 1052.
8
If on remand plaintiff is unable to allege any actual injury stemming from the procedural defects in Mrs. Burt's 1970 discharge, the district court shall nonetheless enter an award in plaintiff's favor of nominal damages not to exceed one dollar. If, however, plaintiff is able in good faith to allege actual damages as described above, the district court shall upon demand of either party impanel a jury for the purpose of determining (1) if Mrs. Burt's discharge violated the procedural norms of the fourteenth amendment, and (2) the amount of actual damages attributable thereto.7II.
9
Many of the problems experienced by the district court and by us in Burt I could have been avoided had the Edgefield County School District itself been a proper defendant to Mrs. Burt's action. Manifestly, it was not joined because of the then-established doctrine of municipal immunity under 42 U.S.C. § 1983, See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), which, in Singleton v. Vance County Board of Education, 501 F.2d 429 (4 Cir. 1974), we extended to include school boards and districts.
10
In Monell v. Dept. of Social Services of the City of New York,436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978),8 the Supreme Court overruled that portion of Monroe which granted municipalities blanket immunity in § 1983 actions. The practice of suing municipal officials to avoid Monroe and Kenosha was thus made unnecessary. Under Monell, a plaintiff with a § 1983 claim against a municipality, if such claim arises out of an official action of that municipality, may sue the municipality directly for monetary, declaratory or injunctive relief. Because Monell, in overruling Monroe, has the effect of also overruling our decision in Singleton v. Vance County Board of Education, supra, plaintiff, on remand, may, if he wishes, redirect his suit against the school district itself.9
III.
11
Finally, we consider the issue of attorney's fees. In Burt I, we vacated the district court's award of attorney's fees as impermissible under the holding of Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). While the instant appeal was pending, Congress amended 42 U.S.C. § 1988 to provide that, in suits under § 1983, a "court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." The legislative history makes clear that this authorization applies to any suit pending on its effective date. H.R.Rep. No. 94-1558, p. 4 n.6 (1976); See also Hutto v. Finney,--- U.S. ----, ----, n.23, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Gonzales v. Fairfax-Brewster School, Inc., 569 F.2d 1294, 1297 (4 Cir. 1978).
12
On remand, plaintiff will therefore be eligible for an award of attorney's fees for services dating from Mrs. Burt's suit against the Board of Trustees (a) if he continues to prevail on the merits, and (b) if the district court determines, in its discretion, that such award is appropriate. The fact that plaintiff may prevail on the merits yet, under Carey, recover only nominal damages shall in no way diminish his eligibility for attorney's fees under § 1988, though it is one of the factors properly to be considered on the amount of such award. See Barber v. Kimbrell's, Inc., 577 F.2d 216, 226, n.28 (4 Cir. 1978).
13
VACATED AND REMANDED.
1
Recognizing that at that time neither the Edgefield County School District nor its Board of Trustees could be sued under 42 U.S.C. § 1983, the district court entered judgment against named board members. The panel which heard Burt I was agreed that it was essential to know whether the court's judgment ran against these defendants as individuals or as officials. The panel reasoned that, if defendants had been sued as individuals (i. e. if judgment was to be assessed against their personal assets), the relief sought would constitute compensatory damages and the seventh amendment would entitle defendants to a jury trial on demand. If, however, defendants had been sued as municipal officials, the relief sought (i. e. back pay) could be characterized as equitable in nature under the then settled law of the circuit, and no requirement of a trial by jury would obtain. See 521 F.2d at 1205-06
2
Our mandate issued in Burt I on August 6, 1975. Three weeks later, Mrs. Burt died. Upon motion for substitution of parties, the Rev. P. P. Burt, Mrs. Burt's husband and administrator of her estate, was substituted as party plaintiff to this suit
3
Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). After hearing oral argument in the instant case, we stayed our decision pending the Supreme Court's decision in Monell
4
Civil Rights Attorney's Fees Awards Act, Pub.L. No. 94-559, § 2, 90 Stat. 2641 (1976) (amending 42 U.S.C. § 1988)
5
While we did not affirm the judgment of the district court because of an ambiguity in the record, we nonetheless reaffirmed the appropriateness of the Horton remedy for procedural due process violations. 521 F.2d at 1205-06
6
Mrs. Burt's initial complaint charged that her dismissal was both racially motivated and effected without proper notice and hearing. At the original trial, the district court determined that Mrs. Burt's discharge was not racially motivated, and we affirmed 521 F.2d at 1206. We see no reason at this late date to disturb this finding
7
Carey establishes that the appropriate remedy for procedural due process violations is compensatory damages. In an action for damages under § 1983, the seventh amendment requires a jury trial upon demand where the amount in controversy exceeds twenty dollars. Cf. Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) (jury trial required in an action for damages under Title VIII, Civil Rights Act of 1968, 42 U.S.C. § 3612). If plaintiff's allegations on remand entitle him to no more than nominal damages, the seventh amendment will not be applicable because of an insufficient amount in controversy; and, hence, the award of such damages may be made on the basis of the district court's previous finding in Burt I that a procedural violation had occurred. Unless plaintiff alleges actual damages in excess of twenty dollars, the seventh amendment grants no right to have the issue of the procedure's constitutional sufficiency relitigated to a jury
Should the district court, in accordance with Rule 56, F.R.Civ.P., determine on remand, after a proper showing, that there is no genuine issue as to any material fact with respect to the wrongful denial of Mrs. Burt's constitutional right to a due process hearing by the defendants or with respect to the waiver of such right by Mrs. Burt, it would be authorized, as in any other case, to enter partial summary judgment that Mrs. Burt's discharge violated the procedural norms of the fourteenth amendment. In that event, the sole issue for the jury would be the actual injury over and above nominal damages sustained by Mrs. Burt as a result thereof, assuming that there is sufficient evidence of mental and emotional distress proximately caused by the procedural violation to warrant submission of the issue of actual damages to the jury under the rule established in Carey.
8
The Second Circuit in Monell v. Dept. of Social Services, 532 F.2d 259 (2 Cir. 1976), had held that a municipal official could not be sued in his official capacity if the recovery in such suit was to come out of the municipal treasury. Accord Muzquiz v. City of San Antonio, 528 F.2d 499 (5 Cir. 1976) (En banc ), Vacated and remanded, --- U.S. ----, 98 S.Ct. 3117, 57 L.Ed.2d 1144 (1978)
9
In Monell, the Court, after analyzing the legislative history of the Civil Rights Act of 1871, concluded that Congress did intend for municipalities to be liable under § 1983 for constitutional deprivations resulting from official action i. e. action taken pursuant to an official municipal policy, decision or custom. The Court made clear, however, that it was not Congress's intent that a municipality be vicariously liable for the unauthorized constitutional torts of its officers. 436 U.S. at 658, 98 S.Ct. 2018. "(I)n other words, a municipality cannot be held liable under § 1983 on a Respondeat superior theory." 436 U.S. at 691, 98 S.Ct. at 2036. Where the constitutional deprivation is not an official act of the municipality, a plaintiff's only recovery lies against the municipal officer in his individual capacity. While in some circumstances it may be difficult to determine if an alleged constitutional deprivation results from an official act of the municipality, it appears to us that a discharge from municipal employment is quite clearly an official action where, as here, the discharging body is authorized by the municipality to make such decisions
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Jimmy Glenn Fisher v. State
IN THE
TENTH COURT OF APPEALS
No. 10-96-188-CR
JIMMY GLENN FISHER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 95-410-C
O P I N I O N
A jury convicted Jimmy Glenn Fisher of the offense of murder and assessed punishment at
sixty years’ confinement. See Tex. Penal Code Ann. § 19.02 (Vernon 1994). Fisher appeals
alleging a juror withheld information during voir dire and the evidence is factually insufficient to
support the conviction.
Fisher was charged with the murder of his brother-in-law, Ricky Wilkins. The crime occurred
on May 9, 1995 in the parking lot of Smoker’s Billiards. Fisher and Wilkins had an argument
which resulted in Fisher firing his gun and killing Wilkins.
JUROR WITHHOLDING INFORMATION
Fisher contends that he was denied due process when Juror David Lee Maughan withheld
information during voir dire. Maughan did not respond when the judge asked the jury panel if
anyone knew anything about the facts of the case. Fisher alleges that Roy Alexander, a defense
witness, talked with Maughan about the shooting a few days after it occurred. The alleged
conversation took place at a convenience store where Maughan was employed and Alexander was
a customer.
Fisher filed a motion for mistrial, which the court overruled after a hearing. Maughan testified
during the hearing that he recognized Alexander as a customer of his store but did not recall having
a conversation with him concerning the shooting. Fisher also claims that Maughan knew and had
prior dealings with Fisher that he did not disclose when the judge asked during voir dire if anyone
knew Fisher. Maughan testified that he had seen Fisher before at Smoker’s Billiards but had never
had any conversations with him other than to say “hello.” Maughan also stated that he did not
realize he knew Fisher until the middle of trial “when we kept staring at each other throughout the
court.”
In Von January v. State, the court granted a new trial because a juror failed to disclose during
voir dire that he knew family members of the victim. 576 S.W.2d 43, 44 (Tex. Crim. App. [Panel
Op.] 1978). In that case, the juror realized he knew the family well yet failed to admit this when
questioned by defense counsel during voir dire. In this case, Maughan testified that he did not
recognize Fisher as an acquaintance until after voir dire.
Decker v. State closely resembles the facts in the present case. 717 S.W.2d 903, 906-907
(Tex. Crim. App. 1986) (on rehearing). A juror realized after the trial had started that he
recognized one of the complaining witnesses. Id. The record showed that the juror did not
intentionally give false information during voir dire. Id. Further, the juror was acquainted with
the witness through work but did not have a relationship which had any potential for prejudice or
bias. Id. The court in Decker found the above facts to be distinguishable from Von January
because the juror did not intentionally give false information and no significant relationship existed
between the juror and the witness. Id.
Maughan’s testimony shows that he did not remember any conversation with Alexander about
the facts of the case. Therefore, Maughan did not intentionally withhold or give false information
during voir dire when the judge asked if anyone knew the facts of the case. He also testified that
he did not realize until after voir dire that he recognized the defendant from Smoker’s Billiards.
The fact that Fisher had long hair and a beard which he had cut and shaved prior to trial further
supports Maughan’s testimony that he did not recognize Fisher.
Maughan and Fisher had a casual acquaintance. Fisher testified that he did not recognize
Maughan during voir dire. During the trial, they realized they had seen each other at Smoker’s
Billiards. Clearly, no significant relationship existed between the two men. Therefore, Fisher
failed to show that his causal acquaintanceship with Maughan had any potential for prejudice or bias
on the part of Maughan. Id.
We overrule the first point of error.
FACTUAL INSUFFICIENCY
Fisher’s second point of error asserts that the evidence is factually insufficient to support the
conviction in light of his self-defense claim. Fisher alleges that testimony proves Ricky Wilkins
was the aggressor who threw a quart of beer at Fisher, leading Fisher to shoot in self-defense.
When presented with a factual insufficiency claim, we discard the prism of the light most
favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We
reverse “only if [the verdict] is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust.” Id.
All of the evidence in the record related to the contested issue is considered. Santellan v.
State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Evidence which tends to prove the issue is
compared with evidence which tends to disprove the issue. Id. We give appropriate deference to
the jury’s decision and do not substitute our judgment for theirs. Clewis, 922 S.W.2d at 135. We
do not set aside the “verdict merely because [we] feel that a different result is more reasonable.”
Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)).
The court submitted self-defense in the jury charge. A person is justified in using force against
another when and to the degree he reasonably believes force is immediately necessary to protect
himself against the other person’s use or attempted use of force. Tex. Penal Code Ann. § 9.31(a)
(Vernon 1994). The use of force is not justified in response to verbal provocation alone or if the
actor provoked the other’s use or attempted use of force. Id. § 9.31(b)(1), (b)(4) (Vernon Supp.
1997). Deadly force may only be used when self-defense is justified under Section 9.31; a
reasonable person would not have retreated; and when deadly force is reasonably necessary to
protect against another’s use or attempted use of deadly force. Id. § 9.32(a)(1)-(3)(A) (Vernon
Supp. 1997).
We review the record to determine if factually sufficient evidence exists to support the jury’s
verdict that Fisher did not act in self-defense when he shot Wilkins. The following evidence tends
to disprove Fisher’s claim of self-defense:
∙ Douglas Markel witnessed the argument and testified that Wilkins was returning to his car
when Fisher reached from behind his back and pulled a pistol out. Fisher testified that
Wilkins walked back towards his car and he thought he was leaving.
∙ Markel testified that Wilkins said, “Jimmy, don’t you ever pull a gun on me again.”
Jimmy responded, “You are right Ricky, I won’t”. Markel then testified that Fisher
pointed the gun at Wilkins and the gun made a click.
∙ At this point, Wilkins threw a quart bottle of beer at Fisher. Fisher ducked and was not
hit by the bottle. Fisher then fired the pistol at Wilkins who was crouched down beside
his car.
∙ Markel testified that Wilkins stood up and Fisher fired a second shot. Markel said Fisher
then ran into the building and Wilkins was on the ground.
∙ Fisher testified that Wilkins did not pull anything out of his pocket when he reached in his
back pocket.
Other evidence in the record suggests a self-defense claim:
∙ Doug Markel testified that Wilkins got out of the car and walked over to Fisher and Linda
Fisher who were arguing about money. Linda Fisher then said that Wilkins and Fisher
began arguing and cussing.
∙ Fisher testified that Wilkins said, “[H]e was going to get on me or jump on me.” Fisher
also testified that he had seen Wilkins jump on other people. Fisher then went to his van
to get his gun which he tucked in his back pocket.
∙ Fisher said they continued arguing and Wilkins went for his back pocket and told Fisher
he was going to kill him. Fisher testified that he then brought out his gun.
∙ Linda Fisher stated that Fisher pulled out his gun and when Wilkins saw it, he said he was
going to kill Fisher.
∙ Fisher told Wilkins to leave him alone and Wilkins responded by saying he was going to
kill him. Wilkins than began walking toward his own car.
∙ Fisher turned to walk inside but fired a shot into the air when Wilkins cussed at him.
Wilkins responded by saying, “You are going to kill me now because I’m killing you.”
∙ Linda Fisher testified that she heard the beer bottle crash and the shot go off.
∙ Jason Chambers, a police investigator, testified that a substantially full quart of beer bottle
could cause serious injury or death.
Fisher argues that Wilkins was the aggressor who initiated the confrontation and Fisher was
justified in using deadly force because Wilkins threw the quart bottle of beer. Even if Wilkins
started the argument, verbal provocation alone does not justify the use of force. Id. § 9.31(b)(1).
Threats to kill will not justify the use of deadly force unless there is a manifestation of intent to
execute such threats. Hughes v. State, 276 S.W.2d 274, 277 (Tex. Crim. App. 1955). Fisher did
testify that Wilkins reached for his pocket but did not bring out any weapon. Wilkins might have
made verbal death threats but had no instrument to carry out his threats.
Clearly, Wilkins threw the bottle of beer after Fisher brought out the gun. Fisher escalated
the incident by pointing the gun at Wilkins. The use of force is not justified when the actor
provoked the other’s use of force. Id. § 9.31(b)(4). Further, after Wilkins threw the beer bottle
he had no other weapon to use against Fisher. At this point, Fisher’s continued use of deadly force
was unreasonable because Wilkins no longer posed a threat. See Id. § 9.32(a)(3)(A)
Deadly force can only be used if a reasonable person would not have retreated. Id. §
9.32(a)(2). If Fisher believed that Wilkins was going to kill him he could have reasonably retreated
into Smoker’s Billiards. However, he did not do so.
The jury is the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Santellan, 939 S.W.2d at 164. We must give due deference to the jury on these issues.
Id. at 166. After reviewing the evidence, we cannot say the verdict “is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.” Clewis, 922 S.W.2d at
134. Thus, we overrule Fisher’s second point of error.
We, therefore, affirm the judgment.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis
Justice Cummings and
Justice Vance
Affirmed
Opinion delivered and filed September 24, 1997
Do Not Publish
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413 F.Supp. 984 (1976)
NORTHERN CALIFORNIA SUPERMARKETS, INC., Plaintiff,
v.
CENTRAL CALIFORNIA LETTUCE PRODUCERS COOPERATIVE et al., Defendants.
No. C-74-2002 WHO.
United States District Court, N. D. California.
January 30, 1976.
*985 Ronald J. Lovitt, Lovitt & Hannan, Inc., San Francisco, Cal., William J. Maledon, Phoenix, Ariz., J. Michael Hennigan, San Francisco, Cal., Martori, Meyer, Hendricks & Victor, Phoenix, Ariz., for plaintiff.
George E. McInnis, Arnold B. Myers, Abramson, Church & Stave, Salinas, Cal., Max Thelen, Jr., Robert B. Pringle, Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., for defendants other than The Garin Co.
Fredrik S. Waiss, O'Donnell, Waiss, Wall & Meschke, San Francisco, Cal., for defendant The Garin Co.
OPINION
ORRICK, District Judge.
In this antitrust action, plaintiff, Northern California Supermarkets, Inc. (Northern), charges that defendants, Central California Lettuce Producers Cooperative (Central) and nine of its members, have combined and conspired to fix the price of lettuce shipped in interstate commerce from the Salinas-Watsonville-King City area of the Salinas Valley in California in violation of Section 1 of the Sherman Act (15 U.S.C. § 1) (Section 1). The Court must determine if the activities of defendants, alleged to be in violation of Section 1, are shielded from antitrust attack by Section 6 of the Clayton Act (15 U.S.C. § 17) (Section 6), the Capper-Volstead Act (7 U.S.C. §§ 291-292) (Capper-Volstead), and/or Section 5 of the Cooperative Marketing Act of 1926 (7 U.S.C. § 455) (Section 5). For the reasons hereinafter stated, I hold that Section 6 and Capper-Volstead, and each of them, exempt the activities of defendants challenged in this complaint from the application of Section 1.[1]
I.
The question at issue is before the Court on cross-motions for summary judgment supported by statements of facts, voluminous briefs, affidavits, one deposition, answers to interrogatories, and requests for admission.[2] The facts hereinafter summarized are essentially undisputed.
Plaintiff, Northern, is a California corporation engaged in the retail sale of groceries, including produce, through twenty supermarkets (Purity and Friendly Supermarkets) scattered throughout Northern California.
Defendant Central is a nonprofit cooperative association, without capital stock, incorporated under the provisions of Chapter 1, Division 20, of the Agricultural Code of the State of California, for the purpose of providing mutual help in connection with producing and marketing, including selling, of any farm product of its members. Central's purpose, among other things, is to improve conditions in the produce industry for the mutual benefit of its members as producers by promoting, fostering, and encouraging the intelligent and orderly marketing of agricultural products through cooperation; eliminating speculation and waste; making the distribution of agricultural products between producers and consumers as direct as can be officially done; stabilizing the marketing of agricultural products; encouraging efficiency and economy in marketing; preventing the demoralizing *986 of markets resulting from dumping and predatory practices; mitigating the recognized evils of a marketing system under which prices are set for the entire industry by the weakest producers; and fostering the ability of the members of the cooperative to obtain prices for their products in competitive markets which are fair prices but not prices inflated beyond the reasonable value of such products by reason of artificially-created scarcity of such products or other predatory practices which would injure the public interest.
Each of the other nine defendant corporations[3] (member-defendants) is a grower-shipper of fresh produce, including lettuce, in the growing areas of California and Arizona and is a member of Central. Each member-defendant grows lettuce in the Salinas-Watsonville-King City area, the agricultural production area of concern in this case.
The member-defendants formed Central in 1972 for the purpose of ameliorating conditions of price uncertainty, demand inelasticity, and distress selling which historically characterized lettuce production. Lettuce is a perishable food, which means that once it ripens it must be harvested and shipped within four or five days. Harvesting decisions are made on a day-to-day basis and depend on such factors as volume shipped, the prices received on the preceding day, information concerning price in major terminal markets, local weather conditions, and the condition of the crop. Lettuce is cut, packed, and inspected in the field. It is normally packed twenty-four heads to a cardboard carton and then trucked to a cooling station. Buyers may inspect the lettuce in the field or at the cooling place, and may there compare quality as between different grower-shippers or between the lettuce produced in different fields but handled by the same grower. While lettuce is not advertised to consumers on a brand basis, individual label names are used by growers, and certain labels have achieved some measure of trade recognition for quality. The cartons of lettuce are shipped from the cooling places by rail or truck to destinations throughout the United States. Most lettuce is sold f.o.b. at the shipping point.
Common marketing practices included distress consignments, "no-bills" and "rollers". Distress consignments occurred when shipments of lettuce could not be sold at the shipping points and were, therefore, consigned to a wholesaler who would undertake to sell the shipment at the terminal market. In the absence of a sale or consignment, a grower-shipper sometimes "rolled" a shipment of lettuce toward Eastern markets and endeavored to sell it while the shipment was enroute. Otherwise, he might "no-bill" the shipment, that is, provide no bill of lading for that day, but hold the shipment for another day for possible sale or consignment.
In May, 1973, Central entered into an identical "Cooperative Marketing Agreement" with each of its twenty-two members, including the nine member-defendants. Under the terms of the Agreement, the members exchange information regarding the actual and expected status of all crops and agree (a) to inspection of the condition, quality, and quantity of their crops, (b) to make no discounts or concessions in lieu of brokerage, (c) to sell lettuce within the limits of ceiling prices and floor prices established by Central and not to ship lettuce which has not been sold or consigned, and (d) to report delinquent accounts and chronic complainers to Central. Members have also agreed that lettuce sold by the members shall be in master containers which identify the lettuce as being sold by a member of Central. During 1973-1974, the years which are concerned in this action, each member-defendant had a seat on the Board of Directors, as well as on the Executive Committee, of Central. The Executive Committee met at least weekly and determined the pricing policy to which *987 each member would adhere in the sale of lettuce for a specified period. The Committee usually determined a ceiling price and, in at least one case, a minimum and a maximum price to be charged by its members. The Committee members exchanged market information in the process of determining pricing policies.
Central itself has never shipped, handled, harvested, or grown any lettuce. Central does not negotiate directly with buyers of lettuce, and during the 1973-1974 season, no lettuce was sold by Central acting in its own name or through agents employed by Central to act in its own name. Central has never employed any sales personnel and, during the 1973 season, it had no payroll whatsoever. Central's income comes from membership fees and assessments.
Each member of Central conducts its own individual sales program and each member has retained the trademark under which it did business prior to the formation of Central. Each member negotiates and sells to buyers of lettuce directly and payment for such lettuce is billed and collected for each member's individual account.
Defendants have publicized their organization and the terms of their collective bargaining agreement through a series of advertisements in The Packer, a trade newspaper. During periods of low price and large supply defendants, through Central, have sponsored special programs to increase the sale of lettuce.
During 1973, some 31,262,000 cartons of lettuce were shipped from the Salinas-Watsonville-King City growing area, of which shipments by the member-defendants totaled approximately 20,200,000. During 1973-1975, Northern purchased over 40,000 cartons of lettuce through the medium of a nonprofit purchasing cooperative, most of which was produced and marketed by the member-defendants.
Plaintiff and defendants agree that the primary activity of Central is to set prices or price ranges to which members are required to adhere in the sale of their lettuce. The record indicates that Central also engages in other activities related to the marketing of lettuce. For example, Central gathers and disseminates information concerning lettuce planting, harvesting, and shipment. Information is also exchanged by the members concerning delinquent accounts and "chronic customer complainers". In addition, Central coordinates policies with respect to marketing practices which proved harmful to lettuce growers and has undertaken promotional campaigns aimed at bolstering lettuce sales. However, Northern maintains that these other activities are separate and unrelated to the price-fixing function of the cooperative.
The gravamen of Northern's complaint against Central and the member-defendants is that their activities described above in the marketing and selling of lettuce constitute an unlawful combination and conspiracy to restrain trade and commerce in violation of Section 1 by eliminating competition in the sale and marketing of fresh lettuce and by raising, fixing, controlling, and establishing the prices and price ranges at which each member-defendant offers to sell, or sells, lettuce.[4] By way of affirmative defense, Central and its members assert that their activities are insulated from antitrust attack by Section 6, Section 1 of Capper-Volstead and Section 5. Northern responds that these statutes only permit *988 price-fixing by an agricultural cooperative where the price-fixing is ancillary to and a necessary incident of an otherwise legitimate collective activity. Northern claims that since Central performs no collective function to which price-fixing can be said to be a reasonable and necessary incident, its price-fixing is not protected.
II.
To determine whether the activities of Central and the member-defendants are shielded from antitrust attacks by Section 6 and Capper-Volstead, we turn to an analysis of the legislative history of the Acts and a review of the cases interpreting the Acts.
A. Section 6
The last time antitrust was an issue in a presidential campaign was in 1912, and it was in response to President Wilson's promises that the Congress in 1914 passed the Clayton Act. But, the Congress, concerned about the minimal bargaining power of the individual farmer in the markets in which he buys and sells, and in order to encourage him to form agricultural organizations for mutual help, exempted such organizations from the application of the antitrust laws by enacting Section 6. The exemption provides that:
"Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws." 15 U.S.C. § 17.[5]
Section 6 expressed the Congressional policy of treating farmers differently from industrialists and middlemen. Congress perceived farmers as being at the mercy of sharp dealers in the sale of their produce and, therefore, made it possible for them to form cooperatives to help themselves. See Tigner v. Texas, 310 U.S. 141, 145-146, 60 S.Ct. 879, 881, 84 L.Ed. 1124, 1127 (1940); Frost v. Corporation Commission, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483 (1928) (dissenting opinion, Holmes, J.).
The general effect of Section 6 was to assure that the existence of agricultural organizations per se would not be deemed to be an illegal conspiracy or restraint of trade, and that members of such organizations would not be judicially harassed under the antitrust laws for combining to carry out the legitimate objects of the organization. Hufstedler, A Prediction: The Exemption Favoring Agricultural Cooperatives Will be Reaffirmed, 22 Ad.L.Rev. 455, 458 (1969-1970).
The structural requirements for Section 6 exemptions are not stringent. An agricultural organization without capital stock, instituted for mutual self-help and not conducted for profit, qualifies for the exemption. That is precisely what Central is an agricultural organization without capital *989 stock formed for the purpose of mutual help. It is not conducted for profit.
B. Capper-Volstead
In 1922, in order to extend the Section 6 immunization from antitrust attack to farmer organizations with capital stock, the Congress enacted the Capper-Volstead Act, Section 1 of which reads as follows:
"Persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes: Provided, however, That such associations are operated for the mutual benefit of the members thereof, as such producers, and conform to one or both of the following requirements:
First. That no member of the association is allowed more than one vote because of the amount of stock or membership capital he may own therein, or,
Second. That the association does not pay dividends on stock or membership capital in excess of 8 per centum per annum.
And in any case to the following:
Third. That the association shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members." 7 U.S.C. § 291.
Capper-Volstead was enacted to clarify and extend the Section 6 exemption. Case-Swayne Co. v. Sunkist Growers, 389 U.S. 384, 391, 88 S.Ct. 528, 532, 19 L.Ed.2d 621, 626 (1967). The Act explicitly enumerated certain legitimate activities of qualifying cooperatives. One significant purpose of the statute was to make it clear that farmers could operate collectively for the purpose of marketing as well as preparing for market. 20 A.L.R.Fed. 924, 927 (1974). A principal objective was to allow farmers to take advantage of the corporate form of organization used by business concerns. 61 Cong.Rec. 1033 (remarks of Congressman Volstead). As expressed by its sponsors, the thrust of the bill was to give farmers a fair opportunity to meet business conditions of the times by forming into collective aggregates without fear of prosecution under the antitrust laws in order to equalize the situation between individual farmers and corporate middlemen. H.R.Rep. No. 24, 67th Cong., 1st Sess. (1921).
C. Scope of the Exemptions
The best summary of the legislative history and the nature of the agricultural exemption under Section 6 and Capper-Volstead is contained in Justice Black's opinion in Maryland and Virginia Milk Producers Ass'n v. United States, 362 U.S. 458, 465-466, 80 S.Ct. 847, 852, 4 L.Ed.2d 880, 887 (1960):
"The language [of Section 6] shows no more than a purpose to allow farmers to act together in cooperative associations without the associations as such being `held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws,' as they otherwise might have been. This interpretation is supported by the House and Senate Committee Reports on the bill. Thus, the full effect of § 6 is that a group of farmers acting together as a single entity in an association cannot be restrained `from lawfully carrying out the legitimate objects thereof' (emphasis supplied), but the section cannot support the contention that it gives such an entity full freedom to engage in predatory trade practices at will. [Citations omitted.]
The Capper-Volstead Act of 1922 extended § 6 of the Clayton Act exemption to capital stock agricultural cooperatives which had not previously been covered by that section. Section 1 of the Capper-Volstead *990 Act also provided that among `the legitimate objects' of farmer organizations were `collectively processing, preparing for market, handling, and marketing' products through common marketing agencies and the making of `necessary contracts and agreements to effect such purposes.' We believe it is reasonably clear from the very language of the Capper-Volstead Act, as it was in § 6 of the Clayton Act, that the general philosophy of both was simply that individual farmers should be given, through agricultural cooperatives acting as entities, the same unified competitive advantage and responsibility available to businessmen acting through corporations as entities. As the House Report on the Capper-Volstead Act said:
`Instead of granting a class privilege, it aims to equalize existing privileges by changing the law applicable to the ordinary business corporations so the farmers can take advantage of it.'
This indicates a purpose to make it possible for farmer-producers to organize together, set association policy, fix prices at which their cooperative will sell their produce, and otherwise carry on like a business corporation without thereby violating the antitrust laws."
Despite the preferred treatment given to agricultural producers, it is clear that neither Section 6 nor Capper-Volstead was intended to create an absolute shield from antitrust liability for agricultural cooperatives. Farmers and their organizations have been held to lose protection from antitrust attack when the cooperative or its members combine with nonproducer "outsiders" to unreasonably restrain trade. United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181 (1939). Nor are farmers immune when the cooperative or its members engage in predatory, competitive-stifling practices directed at restraining trade or monopolizing the market by unlawful means. Maryland and Virginia Milk Producers Ass'n v. United States, supra; see generally, 20 A.L.R.Fed. 924 (1974) et seq.
Neither situation is here present. There is no allegation that Central or its members have combined or attempted to combine with nonproducers, nor is there any allegation that defendants have engaged in predatory practices or have attempted to monopolize, or monopolized, the market by unlawful means.[6]
III.
The principal dispute between the parties here concerns the scope of the protection afforded by Capper-Volstead, and the effect of Capper-Volstead on the Section 6 exemption.
Northern contends that Section 6 and Capper-Volstead must be read together, and thus Central's claim to immunity must rise or fall on whether or not it is engaged in "collective marketing" within the meaning of Capper-Volstead.
Northern asserts that the antitrust exemption afforded by Section 6 and Capper-Volstead is limited in scope and should be construed narrowly. Accordingly to Northern, the purpose of the exemptions was to give farmers greater bargaining power by allowing them to form associations to perform specific functions, i.e., collective marketing, processing, and handling. The thrust of the exemption, therefore, was to put farmers on an equal basis with corporate *991 middlemen and buyers by allowing the farmers to do business in a corporate-type form. Thus, Northern concludes the purpose of the limited exemption for agricultural cooperatives is to permit farmers to associate for mutual benefit by acting collectively through the single medium of a cooperative. The statutory exemptions contemplate that a cooperative will represent its members and that it will be the entity through which the members act.
Northern then argues that Central does not engage in collective marketing within the meaning of Capper-Volstead, and thus the action of Central and its members constitutes illegal price-fixing, a per se violation of Section 1, because each member of Central acts independently for its own account in every material aspect except for the determination of the price range at which it sells. Since Central does not grow, harvest, ship, sell or negotiate for sale in its own name, Northern contends that it is not engaged in "collective marketing". Essentially, Northern argues that an agricultural cooperative must engage in bargaining, selling, processing or handling before it can also fix prices. Northern further claims that the price-fixing in this case is especially reprehensible because the growers are not small struggling farmers but "a group of big corporate businesses attempting to find shelter" from the antitrust laws.
Central, on the other hand, contends that Section 6 and Capper-Volstead, although overlapping, are separate and independent sources of protection for its activities.
I agree. I find that Central's activities, including price-fixing, fall within the scope of protection from the antitrust laws afforded by Section 6 and Capper-Volstead.
I am persuaded that since Justice Black, in Maryland and Virginia Milk Producers Ass'n v. United States, supra, stated that the activities enumerated in Section 1 of Capper-Volstead were "among `the legitimate objects' of farmer organizations" this necessarily implies that (a) Section 6 and Capper-Volstead, although overlapping, are not synonymous, and (b) it is not necessary for a farmer association to engage in all of the enumerated activities to qualify for the exemption.
I am further convinced that Central's activities are consistent with the purpose of the statutes "to make it possible for farmer-producers to organize together, set association policy, fix prices at which their cooperative will sell their produce". Maryland and Virginia Milk Producers Ass'n v. United States, supra, 362 U.S. at 466, 80 S.Ct. at 853, 4 L.Ed.2d at 888.
The recent Ninth Circuit opinion in Treasure Valley Potato Bargaining Ass'n v. Ore-Ida Foods, Inc., 497 F.2d 203 (9th Cir. 1974), cert. denied, 419 U.S. 999, 95 S.Ct. 314, 42 L.Ed.2d 273 (1974), is controlling here. Treasure Valley was a cooperative of potato growers, the principal function of which was to bargain collectively for its members with respect to the price and terms of preseason potato contracts. The association did not process, prepare for market, handle, buy or sell any potatoes; all of the actual selling was done by the individual members. Another similar cooperative was also involved in the case, and the officers and members of the two cooperatives met and exchanged information regarding negotiations with buyers so that neither cooperative would undersell the other.
The two cooperatives had filed an antitrust action against the potato processors; the processors had counterclaimed against the associations, claiming that neither was exempt under Capper-Volstead because they engaged in none of the functions enumerated in the statute.
The Court stated:
"True, the associations did not collectively process, prepare for market, handle or actually sell potatoes. But Section 1 of the Capper-Volstead Act further authorizes `Persons engaged in the production of agricultural products as farmers . . . [to] act together in associations . . . in collectively . . . marketing in interstate and foreign commerce, such products of persons so engaged *992 . . ..' (Emphasis added)" 497 F.2d at 215.
The Court then concluded:
"The activities of the two associations came within the word marketing." Id.
. . . . .
and continued:
"We think the term marketing is far broader than the word sell. A common definition of `marketing' is this: `The aggregate of functions involved in transferring title and in moving goods from producer to consumer, including among others buying, selling, storing, transporting, standardizing, financing, risk bearing, and supplying market information.' Webster's New Collegiate Dictionary, 1953 Edition. [Emphasis added]. The associations here were engaged in bargaining for the sales to be made by their individual members. This necessarily requires supplying market information and performing other acts that are part of the aggregate of functions involved in the transferring of title to the potatoes. The associations were thus clearly performing `marketing' functions within the plain meaning of the term. We see no reason to give that word a special meaning within the context of the Capper-Volstead Act." Id.
Central's activities fall within the term "marketing" as broadly construed in Treasure Valley. Section 6 authorizes members of farmers cooperatives to carry out the legitimate objects of the association. Capper-Volstead authorizes those objects to be obtained or furthered by members by making contracts or agreements. Central's members, in pursuit of the marketing objectives of the cooperative, were authorized to sell their lettuce within approved price ranges through contracts or agreements. The aggregate of activities of Central constitute "collective marketing" within the meaning of the phrase as defined in Treasure Valley. Here, as in Treasure Valley, Central was "supplying market information and performing other acts * * * involved in the transferring of title" of the produce. 497 F.2d at 215. But, even in Treasure Valley, the principal function of the cooperative was to set prices.[7]
Northern tries to distinguish Treasure Valley, saying that the cooperative there engaged in collective bargaining whereas Central only sets prices, but each member does his own bargaining. This is a distinction without a difference.
Moreover, I am of the opinion that even if Central engaged in no other collective marketing activities, mere price-fixing is clearly within the ambit of the statutory protection. It would be ironic and anomalous to expose producers, who meet in a cooperative to set prices, to antitrust liability, knowing full well that if the same producers engage in even more anticompetitive practices, such as collective marketing or bargaining, they would clearly be entitled to an exemption.
It is true that the sponsors of Capper-Volstead were laboring under the assumption that the cooperative or association would be the collective marketing agent for the farmers in most circumstances. However, there is nothing in the legislative history that suggests a Congressional intention to force farmers into a corporate form or that collective marketing with the cooperative as the exclusive agent was considered the only form under which farmers' groups could organize.[8]
*993 Indeed, Congressman Volstead stated:
"The aim has been to make the provisions of the bill sufficiently liberal so that all cooperative farm associations operated in good faith for the benefit of its members might avail themselves of the provisions of this bill." H.R.Rep. No. 24, 67th Cong., 1st Sess. (1921).
Furthermore, it appears that Congress intended to authorize price-fixing by an agricultural cooperative unless the organization engaged in predatory practices or monopolization.[9]
As Senator Reavis pointed out:
"This legislation is primarily inspired by the desire to put the farmer in a condition, through cooperation and organization, where in some measure he may overcome the difficulties that inhere in his business, that make cooperation and organization almost impossible, to relieve him in some measure from his natural handicaps and put him on an equal footing with all the other businessmen of America and permit him in some measure to fix the price of the thing that he raises." 61 Cong.Rec. 1038 (1921) (Emphasis added).
Thus, in absence of predatory practices or a combination with outsiders, an alleged conspiracy or combination among an agricultural cooperative and its members in regard to pricing policies is immune from the proscriptions of Section 1. See United Egg Producers v. Bauer International Corp., 312 F.Supp. 319 (S.D.N.Y.1970); Treasure Valley Potato Bargaining Ass'n v. Ore-Ida Foods, Inc., supra, 497 F.2d at 212-213.
Protection for price-fixing follows from the effect of Section 6 and Capper-Volstead in equating an agricultural cooperative and its members with an individual business entity since a single business enterprise may set for itself even wholly unreasonable prices without violating Section 1. April v. National Cranberry Association, 168 F.Supp. 919, 921-922 (D.Mass.1958).[10]
Thus, Capper-Volstead, like Section 6, shields Central's activities from the application of the antitrust laws. Central, as we have seen, is an association without capital stock formed by persons engaged in the production of agricultural products as farmers who are acting in Central "in collectively . . . marketing in interstate and foreign commerce, such products of persons so engaged . . .".[11]
*994 Accordingly, I hold that Central's activities are protected from antitrust attack by both Capper-Volstead and Section 6, since it is doing no more than carrying out the legitimate objects of an agricultural organization.[12]
Defendants also claim protection under Section 5 of the Cooperative Marketing Act of 1926 (7 U.S.C. § 455)[13] which authorizes the exchange of information between persons engaged in collective marketing of agricultural products through an association. It is unnecessary to rule on this claim for exemption in light of the above holdings.
I grant Central's motion for summary judgment and deny Northern's motion for summary judgment. Central shall submit a form of judgment approved by Northern by February 16, 1976.
NOTES
[1] Accordingly, I do not reach the question of the effect, if any, of Section 5 on Central's activities.
[2] Counsel for all parties agreed in open Court that there are no genuine issues of the material facts. The Court is, of course, aware of the caveat expressed time after time by the Supreme Court against the use of summary judgments in complex antitrust cases. Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Norfolk Monument Co. v. Woodlawn Memorial Gardens, Inc., 394 U.S. 700, 89 S.Ct. 1391, 22 L.Ed.2d 658 (1969). But, this case is one in which the Court agrees there are no undisputed facts and that the case is ripe for disposition by summary judgment. See, Hycon Manufacturing Co. v. H. Koch & Sons, 219 F.2d 353 (9th Cir. 1955), cert. denied, 349 U.S. 953, 75 S.Ct. 881, 99 L.Ed. 1278 (1955).
[3] Admiral Packing Company, Green Valley Produce Co-op, Growers Exchange, Inc., Let-Us-Pak, Pacific Lettuce, Royal Packing Company, Salinas Marketing Cooperative, The Garin Company, and United Brands Company.
[4] Northern further charges that this conspiracy has been carried out by Central and the member-defendants through meetings at which they have discussed or agreed upon the prices or price ranges at which each member-defendant would sell lettuce to its customers and by agreeing in writing to sell lettuce to all customers only at prices within the limits of the ceiling and floor prices established on a weekly or daily basis by Central. Northern claims that the effect of the alleged combination and conspiracy has been to fix and maintain prices for Salinas Valley lettuce at artificial and noncompetitive levels and to deny the purchasers of such lettuce the opportunity to purchase lettuce at competitively determined prices. Northern further charges that competition among the producers and marketers of Salinas Valley lettuce has been unlawfully and unreasonably restricted and that it and all other persons who purchased the Salinas Valley lettuce have been forced to pay unreasonably high prices for such lettuce.
[5] The inclusion of the agricultural exemption in Section 6 was prompted by the fact that agricultural cooperatives had been subjected to prosecutions in various state courts for monopolistic and conspiratorial activities. Comment, Agricultural Cooperatives The Clayton Act and the Capper-Volstead Act Immunize the Concerted Price Bargaining of Two Agricultural Cooperatives from Antitrust Liability, 53 Tex.L.Rev. 840 (1975) (hereinafter cited as Comment, Agricultural Cooperatives); Antitrust Exemptions Agricultural Cooperatives, 31 A.B.A. Antitrust L.J. (1967).
The House and Senate Committee Reports on Section 6 (H.R.Rep. No. 627, 63d Cong., 2d Sess. (1914); S.Rep. No. 698, 63d Cong., 2d Sess. (1914)) manifested a Congressional desire to erase all doubt about the propriety of the existence of agricultural associations meeting the statutory requirements, and also to prevent a judicial construction of the antitrust laws which would require dissolution of such cooperatives or interfere with the carrying out of their legitimate and lawful objects. Comment, Agricultural Cooperatives, supra, at 841 n. 10.
Section 6 has thus been regarded as granting to farmers the right to organize in order to take collective action for their mutual benefit. Saunders, The Status of Agricultural Cooperatives Under the Anti-trust Laws, 20 Fed.B.J. 35 (1960).
[6] It should be noted that the cases where courts have found predatory practices have involved serious coercive conduct aimed at bringing nonmember producers into the cooperative or achieving monopoly through threats, boycotts, and interference with others. See, e.g., Maryland and Virginia Milk Producers Ass'n v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880 (1960); Bergjans Farm Dairy Co. v. Sanitary Milk Producers, 241 F.Supp. 476 (E.D.Mo.1965), aff'd, 368 F.2d 679 (8th Cir. 1966); Washington Crab Ass'n, 66 F.T.C. 45 (1964); North Texas Producers Ass'n v. Metzger Dairies, Inc., 348 F.2d 189 (5th Cir. 1965), cert. denied, 382 U.S. 977, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966). See also Treasure Valley Potato Bargaining Ass'n v. Ore-Ida Foods, Inc., 497 F.2d 203, 216-217 n. 11 (9th Cir. 1974), cert. denied, 419 U.S. 999, 95 S.Ct. 314, 42 L.Ed.2d 273 (1974).
[7] In the course of the litigation in Treasure Valley Potato Bargaining Ass'n v. Ore-Ida Foods, Inc., 497 F.2d 203 (9th Cir. 1974), cert. denied, 419 U.S. 999, 95 S.Ct. 314, 42 L.Ed.2d 273 (1974), the court also recognized a distinction between Section 6 and Capper-Volstead. The district court had found that the Treasure Valley cooperative was protected by Section 6, but not by Capper-Volstead. Although the Ninth Circuit found that Capper-Volstead applied, it left untouched the district court's ruling as to the Section 6 exemption.
[8] Congress was aware of the existence of farmers' associations similar to Central at the time Capper-Volstead was considered. Members of such associations met and agreed among themselves upon a price at which they individually should sell their products. This is clear from the testimony of G. Carroll Todd, former head of the Antitrust Division of the Department of Justice, in hearing on the bill, as well as from statements of Dallas Berry of the Maryland and Virginia Milk Producers Association, Inc. at the same hearings. Hearings on S. 4344 before the Senate Committee on the Judiciary, 66th Cong., 2d Sess. (1920) at 37-43 or 63-64.
[9] Protection against excessive prices or predatory practices was provided by Section 2 of Capper-Volstead, which authorizes the Secretary of Agriculture to issue a cease-and-desist order upon a finding that a cooperative has monopolized or restrained trade to such an extent that the price of an agricultural commodity has been "unduly enhanced". Section 2 further provides that such an order may be enforced by the Attorney General in appropriate proceedings in the district court if it is disregarded. 7 U.S.C. § 292.
The enactment of Section 2 reflected a congressional desire to limit the power of cooperatives to restrain trade or achieve monopoly by engaging in unfair methods of competition. Maryland and Virginia Milk Producers Ass'n v. United States, 362 U.S. 458, 466-467, 80 S.Ct. 847, 853, 4 L.Ed.2d 880, 887-888; April v. National Cranberry Association, 168 F.Supp. 919, 922-923 (D.Mass.1958). However, as noted, there is no claim here that Central has engaged in any predatory practices.
[10] Central also relies on the FTC case of Washington Crab Assn., 66 F.T.C 45 (1964), where the Commission considered a challenge to the activities of a fishermen's cooperative. The FTC recognized that the members of the association had fixed prices. However, the FTC noted that this they were expressly permitted to do under Section 1 of the Fishermen's Collective Marketing Act (15 U.S.C. § 521) which the FTC considered as virtually identical to Section 1 of Capper-Volstead. It does for the fishermen precisely what Capper-Volstead does for the farmers. The FTC concluded that price fixing was an approved objective if not pursued by predatory techniques. 66 F.T.C. at 105-106.
[11] Northern has submitted to the Court a copy of the initial decision rendered by an administrative law judge in a proceeding before the Federal Trade Commission, Central California Lettuce Producers Cooperative, No. 8970 (March 13, 1975). Faced with the same issues presented for consideration in this case, the administrative law judge decided that Central was not engaged in collective marketing as defined in Capper-Volstead and, therefore, was not exempt from the antitrust laws. He held the purpose of Capper-Volstead was to allow farmers to join together to bargain "as one", thus permitting a pooling of resources of small, disorganized growers into a single, democratically functioning corporate entity and that to be exempt, a cooperative must acquire and bargain to sell the entire production of its members, or at least bargain for the members in the open market. He also expressed the opinion that the statute was intended to protect small farmers, and it should not be allowed to shield the activities of giant agribusiness from the antitrust laws.
However, neither Section 6 nor Capper-Volstead contain restrictions on the size of growers who are exempted under the Acts. Moreover, the administrative law judge did not adequately distinguish Treasure Valley Potato Bargaining Ass'n v. Ore-Ida Foods, Inc., 497 F.2d 203 (9th Cir. 1974), cert. denied, 419 U.S. 999, 95 S.Ct. 314, 42 L.Ed.2d 273 (1974). He argued that Treasure Valley was a bargaining cooperative; thus the decision "left open" the question whether mere agreement about prices without any other form of cooperative activity falls within "collective marketing". Treasure Valley should not be read so narrowly. Indeed, the decision cites with approval the remarks of Mr. Seth Hufstedler of the Administrative Law Section of the American Bar Association, who stated that a Capper-Volstead cooperative "may fix prices". Treasure Valley Potato Bargaining Ass'n v. Ore-Ida Foods, Inc., supra, 497 F.2d at 216 n. 11.
[12] Northern also relies on United States v. Elm Spring Farm, 38 F.Supp. 508 (D.Mass.1941), modified on other grounds, 127 F.2d 920 (1st Cir. 1942), where the court states that the mere establishment of a cooperative farm does not insulate the activities of its members from antitrust attack. But that case is completely distinguishable. It involved an attempt by a milk handler to evade a federal marketing order by a series of corporate reorganizations through which it tried to magically transform itself into an exempt producer cooperative after it had originally been ordered to comply with the marketing order. The Court just was not impressed with the defendants attempted magical transformation.
[13] Section 5 of the Cooperative Marketing Act of 1926 reads:
"Persons engaged, as original producers of agricultural products, such as farmers, planters, ranchmen, dairymen, nut or fruit growers, acting together in associations, corporate or otherwise in collectively processing, preparing for market, handling, and marketing in interstate and/or foreign commerce such products of persons so engaged, may acquire, exchange, interpret, and disseminate past, present, and prospective crop, market, statistical, economic, and other similar information by direct exchange between such persons, and/or such associations or federations thereof, and/or by and through a common agent created or selected by them." 7 U.S.C. § 455.
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227 F.2d 303
HOPE FLOORING & LUMBER COMPANY and Commercial Standard Insurance Company, Intervenors, Appellants,v.Mrs. Lee E. BOULDEN, Administratrix of the Estate of Lee E. Boulden, Deceased, Appellee.
No. 15326.
United States Court of Appeals Eighth Circuit.
November 16, 1955.
Shields M. Goodwin, Little Rock, Ark. (E. Riddick Riffel, Little Rock, Ark., with him on the brief), for appellants.
John H. Lookadoo, Arkadelphia, Ark. (J. Hugh Lookadoo, Jr., Arkadelphia, Ark., with him on the brief), for appellee.
Before JOHNSEN, COLLET and VAN OOSTERHOUT, Circuit Judges.
JOHNSEN, Circuit Judge.
1
The question is whether the District Court was entitled to hold that the amount paid by a third party, in disposition of a suit for damages, brought against it by the estate of a deceased employee, for negligently having caused the latter's death, constituted in the particular situation fruits of a "contested case" and not merely proceeds of a "compromise settlement", within the meaning of those terms under the opinion of the Arkansas Supreme Court in Winfrey & Carlile v. Nickles, 223 Ark. 894, 270 S. W.2d 923.
2
On the former appearance of the case before us, 8 Cir., 215 F.2d 731, we had vacated the judgment of the District Court and remanded the cause, for consideration and determination of that question, to which the Nickles opinion, in its use of those terms, had given rise. In so doing, we said that, "since the trial court's previous act of allowance [of attorney's fees out of that portion of the amount paid by the third party to which the deceased's employer and its compensation insurer were subrogated under Ark.Stats.1947, § 81-1340] cannot here be said to have been made in relation to the construction of the statute contained in the Arkansas Supreme Court's opinion, * * * the court should have the opportunity to consider and dispose of the situation on that basis", and that "the case should be remanded * * * to enable the conflicting contentions of compromise settlement and contested case, now being abstractly urged before us [by virtue of the Nickles opinion], to be developed and considered in their full light, and with the benefit of that court's knowledge of the proceedings had before it." 215 F.2d at page 734.
3
After the remand, the trial court engaged in a full hearing, on the history which had been involved in the estate's assertion of its third-party claim, and the elements of skill, preparation, efforts, relationships and processes which had entered into the effecting of the disposition of it. On the whole situation, the court concluded Boulden v. Herring, D. C., 126 F.Supp. 885, 897, that what had been done and accomplished made the disposition effected more than a mere compromise settlement, and that in practical aspect and substance, for purposes of the attorney's fee statute, "this was a contested case within the holding of the Nickles case". The court accordingly again made a fee allowance to the attorney for the deceased's estate, out of the portion of the proceeds to which the employer and its compensation insurer were subrogated, and they have taken this appeal.
4
No question is raised by appellants on the amount, as such, of the allowance made. The contentions which they make are (1) that the situation could not legally be termed one of "contested case", because the disposition involved was not a matter of actual trial and forensic result; and (2) that, if the concept of "contested case" under the Nickles opinion was intended to go beyond the criteria of trial proceedings and jury or court result, the elements and incidents of the disposition here involved could not in any event be said, on their factual substance, to rise above the level of a "compromise settlement".
5
We had said in our previous opinion that we did "not feel warranted in abstractly assuming that the opinion of the Arkansas Supreme Court means that a mere filing of pleadings in court of itself has the effect * * * of necessarily lifting whatever payment may be thereafter made by the third party * * * into the category of fruits of `a contested case'", and, further, that neither did we "feel entitled to hold abstractly that what may be in fact a compromise settlement of a claim against a third party, without representing the product of such legal services and processes as are usually incident to the preparing, conducting and terminating of litigation, will * * * automatically acquire the status of proceeds of `a contested case', within the use of that term in the Arkansas Supreme Court opinion, merely because the parties, or one of them, may desire, for some extraneous reason or purpose, to have the court cloak the settlement with the formality of a judgment entry." 215 F.2d at pages 733 and 734. And in making remand, we also were refusing abstractly to declare that, unless the situation was one of formal trial and forensic result, it would be impossible for a "contested case" to exist.
6
In thus refusing to deal, abstractly and legalistically, with the connotation of the terms "compromise settlement" and "contested case", as used by the Arkansas Supreme Court, for purposes of the attorney's fee statute, and in remanding the case "to enable the conflicting contentions of compromise settlement and contested case * * * to be developed and considered in their full light," we necessarily were leaving the District Court free, and were imposing upon it the responsibility, to evaluate all the aspects of the situation, as a matter of local legal interpretation and application of the holding of the Nickles case.
7
This was in accord with our settled general policy that, "on the question of resolving what local law is, which is unclear or unsettled, * * * we desire and will heavily rely upon the considered appraisal of a District Judge as to what the local law of his jurisdiction is." Kasper v. Kellar, 8 Cir., 217 F.2d 744, 747.
8
On the resolution and determination which the trial court has made, we do not feel that there is any reasonable and convictional basis for us to say that the court was clearly erroneous in its view that the terms "compromise settlement" and "contested case", as used by the Arkansas Supreme Court, in their significance for purposes of the attorney's fee allowance statute, were not meant to be legalistic absolutes, but were intended to have practical and flexible content, as a matter of allowing realistic evaluation to be made compositely of the incidents of skill, preparation, efforts, relationships and processes, which have entered into the production of a result and disposition in a particular situation.
9
We believe that there was adequate local legal margin for the court to say, as it did, that, under the Nickles opinion, "the term `contested case' may have varied meanings depending upon the context in which the term is used, and the meaning of the term in a particular case must be determined from a consideration of all the facts and circumstances, particularly what was done and what was required to be done to bring about or to produce the judgment or recovery."
10
And, on our acceptance of this concept of Arkansas law, there further is no basis in the present situation for us to declare the trial court's factual appraisal and application to be clearly erroneous, that the substance of the elements and incidents which had entered into the producing of the disposition effected was such as to entitle the matter to be regarded as a contested case, for purposes of the question of an attorney's fee allowance under the statute.
11
The court said in its memorandum opinion that the case "was actively contested from the time of its inception until shortly before the entry of the judgment in favor of plaintiff and against the defendants"; that the entire proceeding "was adversary in every detail until the defendants became convinced of the justice of plaintiff's claims"; and that "had the instant case been litigated prior to the adoption of the [Federal Rules of Civil Procedure, 28 U.S.C.A.], there is little doubt but that a trial would have been required to settle the issues between plaintiff and the defendants."
12
In effect, the court found that the elements and incidents of skill, preparation, efforts, relationships and processes ordinarily necessary for a disposition by trial had been so substantially engaged in and had played such a part in the situation as realistically to have been productive of the disposition effected. Thus, among other things, the court pointed out that the parties had appeared at a pre-trial conference; information had been exchanged between them under the Rules of Civil Procedure; and the taking of a deposition had been arranged and engaged in. The nature of this deposition and the character of the witness by whom it was given were such that, as the third-party here admitted, and as the trial court found, it "proved to be the deciding factor in the case", on the effecting of disposition.
13
Other elements and incidents of the situation also were involved in the trial court's appraisal, which we do not deem it necessary to detail. As we have indicated, the evaluation made seems to us to rest upon such substance that we have no right to declare it clearly erroneous.
14
Affirmed.
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600 So.2d 1382 (1992)
Sheila MARTIN and Nelson Martin Individually and on Behalf of Their Minor Child Shannon Martin
v.
Stanley FRANCIS d/b/a Donaldsville Marble and Granite Company and Audubon Insurance Company.
No. 91 CA 0921.
Court of Appeal of Louisiana, First Circuit.
May 22, 1992.
Rehearing Denied July 14, 1992.
*1383 Raymond Simmons, Baton Rouge, for plaintiffs/appellants.
Troy J. Charpentier, Baton Rouge, for defendants.
Before COVINGTON, C.J., and LeBLANC and WHIPPLE, JJ.
LeBLANC, Judge.
This is a personal injury case in which plaintiffs appeal from a jury verdict awarding the victim partial medical expenses only, with no award for general damages.
On April 19, 1987, thirteen-year-old Shannon Martin sustained a severe injury when a granite tombstone displayed at defendant's place of business fell on his right foot, nearly severing his big toe, second toe and the tip of his third toe. These toes were amputated a few days later when efforts to save them proved unsuccessful. Shannon's parents, Nelson and Sheila Martin, subsequently filed this personal injury suit, individually and on behalf of Shannon, against Stanley Francis, D/B/A Donaldsonville Marble and Granite Company, and his liability insurer, Audubon Insurance Company.
Trial of this matter was held before a jury on October 9 through 11, 1990. After beginning deliberations, the jury returned to the courtroom and asked whether it could add a stipulation to the verdict form requiring defendants to pay 100% of Shannon's past medical expenses, excluding the amount incurred for psychological treatment. After determining there was no objection from either counsel, the trial court replied that it had no objection to this request. After further deliberations, the jury returned a verdict assigning 75% fault to Shannon and 25% fault to Stanley Francis.[1] Additionally, the jury awarded Shannon $10,816.72 for medical expenses. The following notation was made at the bottom of the verdict form: "Donaldsonville Marble and Granite Co. is 100% responsible for Shannon Martin's medical bills to date (10,816.72) Donaldsonville Marble and Granite Co. is not responsible for plaintiff's exhibit-P21A". The jury awarded no damages for plaintiffs' other requested items of damage.
After the trial court rendered judgment in accordance with this verdict, plaintiffs made a motion for additur and/or judgment *1384 notwithstanding the verdict (JNOV) and an application for a new trial, all of which were denied by the trial court. Plaintiffs now appeal the judgment of the trial court, alleging the trial court erred in the following respects:
1. In failing to grant a new trial, additur or JNOV due to the jury's failure to award plaintiffs any general damages, despite the fact that an award was made for special damages.
2. In failing to sustain plaintiffs' Batson challenge to defendants' use of a peremptory challenge to excuse a black prospective juror.
3. In allowing the admission into evidence of a deposition given by a defense witness when there was no legal showing of the witness' unavailability.
4. In refusing to give the jury a special instruction requested by plaintiffs.
5. In giving the jury two special instructions requested by defendants.
FAILURE TO AWARD GENERAL DAMAGES
Plaintiffs contend the jury erred in failing to award general damages to Shannon for pain and suffering and to his parents for mental anguish, despite the fact that an award of special damages was made. They also maintain the trial court erred in failing to grant an additur, new trial or JNOV on the basis of this legal error in the jury verdict. We agree with plaintiffs' argument with respect to Shannon, but not as to his parents.
It is legal error for a jury to award special damages for a party's medical expenses while denying recovery to that party for pain and suffering. Marcel v. Allstate Ins. Co., 536 So.2d 632 (La.App. 1st Cir.1988), writ denied, 539 So.2d 631 (1989); Harper v. Boudreaux, 496 So.2d 439 (La. App. 1st Cir.1986). Since the jury in this case allowed recovery for some of Shannon's medical expenses, but denied him recovery for pain and suffering, it committed legal error. Id. Accordingly, the trial court erred in not granting plaintiffs the relief they prayed for with respect to Shannon's claim for pain and suffering. Odendahl v. Wild, 418 So.2d 36 (La.App. 4th Cir.1982); also see, Labauve v. Central Mut. Ins. Co., 491 So.2d 146 (La.App. 3rd Cir.1986) (the trial court correctly granted JNOV to award plaintiff general damages which the jury had denied, despite having awarded medical damages).
Since Shannon is entitled to recover for his pain and suffering, it is incumbent upon this Court to render an award for this item of damages. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). Further, because the jury committed legal error rather than an abuse of its discretion, we must assess damages res nova. Marcel, 536 So.2d at 635. After considering the circumstances present, we conclude that an award of $35,000.00 for Shannon's pain and suffering is appropriate. This amount is subject to reduction by 75% due to the jury's assessment of fault to Shannon. La.C.C. art. 2323.
Plaintiffs also maintain the jury erred in not awarding recovery for all of Shannon's medical expenses. Specifically, the jury denied recovery for the expense of Shannon's treatment by a psychologist, which totalled $2,400.00. Our review of the record indicates that the jury abused its discretion in disallowing this expense, which was attributable to the psychological trauma Shannon experienced as a result of the amputation of his toes. Therefore, we will further amend the judgment of the trial court to allow recovery for this medical expense. As with the award for Shannon's pain and suffering, this award is subject to 75% reduction.[2]
With respect to Shannon's parents, plaintiffs argue the jury erred in not *1385 awarding them damages for mental anguish. This contention is without merit.
After he was injured, Shannon managed to hop on one leg the short distance to the residence where his parents were visiting, where he laid on the sidewalk and screamed for his parents. When Shannon's shoe was removed, his big toe was limp, remaining attached to his foot by only a few tendons. Shannon's mother testified that she could not bear this sight and attempted to run from the scene until someone restrained her.
In a departure from a long line of jurisprudence, the Louisiana Supreme Court in Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La.1990), held that under limited circumstances, mental pain and anguish claims arising out of injuries to a third person are recoverable. However, one of the requisites for such recovery is that the emotional distress sustained by the claimant be both serious and reasonably foreseeable.
In discussing this requirement, the Supreme Court stated:
Serious emotional distress, of course, goes well beyond simple mental pain and anguish. Compensation for mental pain and anguish over injury to a third person should only be allowed where the emotional injury is both severe and debilitating. For instance, Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759, 765 (1983) held that `serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.' A non-exhaustive list of examples of serious emotional distress includes neuroses, psychoses, chronic depression, phobia and shock. (citations omitted) Lejeune, 556 So.2d at 570.
In the present case, seeing Shannon's nearly severed toes was undoubtedly extremely upsetting to his parents, as it would be to most people. However, the record is devoid of any evidence that the distress they suffered was of a nature that could be categorized as "severe and debilitating" or that they were unable to cope with the situation. Thus, while we are sympathetic to the experience suffered by Shannon's parents, we find no error in the jury's conclusion that they were not entitled to recover for mental anguish and distress.
PEREMPTORY CHALLENGE
At trial, plaintiffs objected to the use of a peremptory challenge by defendants to excuse a black prospective juror, claiming the use of this challenge violated the holding of Batson v. Kentucky. In overruling the objection, the trial court stated it did not believe Batson applied in civil cases. However, the trial court indicated it also did not feel a prima facie case of purposeful discrimination had been established by plaintiffs, which is a requisite for establishing a Batson violation.
In Edmonson v. Leeville Concrete Co., Inc., ___ U.S. ___, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), rendered subsequent to the trial in this case, the United States Supreme Court extended the holding of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to civil cases. However, we need not determine whether this decision is retroactive or prospective only because, in any event, the trial court was correct in concluding that plaintiffs failed to make out a prima facie case of purposeful discrimination. In Batson the Supreme Court discussed the method of establishing a prima facie case as follows.
In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a `pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory *1386 purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors. 106 S.Ct. at 1723.
In this case, the trial court, after personally observing the entire voir dire, gave the following reasons for its conclusion that plaintiffs had not made out a prima facie case of discrimination.
[H]ere we have a plaintiff and a defendant, and they are both black. And I don't see where, even if Batson versus Alabama (sic) would apply, you would have a reason for questioning why a peremptory challenge would be used against one of the black prospective jurors. And just in passing, I note that you challenged yourself a black prospective juror....
Just looking at the two of you, the only thing we have at the counsel table is a white counsel challenging a black juror. I don't think, first of all, Batson versus Kentucky applies. And even if it did, I don't think you would have a valid challenge in this case.
Based upon our review of the record and the reasons given by the trial court, we find no error in the decision of the trial court overruling plaintiffs' objection. No Batson violation occurred in this case.
ADMISSION OF DEPOSITION
At trial, plaintiffs objected when defendants attempted to introduce the deposition of Mr. Jazzez Jones into evidence. In response to the objection, defense counsel explained that he had requested the issuance of a subpoena for Mr. Jones to appear at trial, but that he had received a service return with the notation "Unable to locate. Subject is in the U.S. Army." The trial court allowed the admission of the deposition on this basis. On appeal, plaintiffs argue the trial court erred in allowing the introduction of Mr. Jones' deposition because there was insufficient evidence of his unavailability.
Under La.C.C.P. art. 1450 A(3)(a), if the trial court finds a witness is unavailable to appear at trial, the deposition of that witness may be introduced into evidence, if the party against whom it is used was present or represented at the taking of the deposition or had reasonable notice thereof. The trial court is vested with broad discretion in determining whether a witness is unavailable within the meaning of this provision. See, Snell v. United Parcel Services, Inc., 543 So.2d 52 (La.App. 1st Cir.), writ denied, 545 So.2d 1040 (1989).
In the instant case, the trial court was satisfied that Mr. Jones was unavailable for trial. We find no abuse of the trial court's broad discretion in this determination. Further, we do not believe plaintiffs were prejudiced by the introduction of this deposition for the following reasons. First, counsel for plaintiffs was present and had the opportunity to fully cross-examine Mr. Jones at the taking of the deposition. Secondly, Mr. Jones' deposition testimony was cumulative of the testimony of other witnesses who testified that Shannon rocked the tombstone.
SPECIAL JURY INSTRUCTIONS
Plaintiffs argue the trial court erred in denying their requested jury instruction number seven and in granting defendants' requested jury instructions numbers two and fourteen, all of which dealt in various means with the standard of care required of defendants.
La.C.C.P. art. 1793(C) in pertinent part provides, that:
A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. (emphasis added) *1387 This provision creates a mandatory rule for preserving objection to a trial court's ruling regarding requested jury instructions. Petitto v. McMichael, 588 So.2d 1144, 1147 (La.App. 1st Cir.1991), writ denied, 590 So.2d 1201 (1992). In order to preserve the right to appeal a trial court's refusal to give a requested instruction or its giving of an erroneous instruction, a party must not only make a timely objection, but must state the grounds of his objection. Petitto, 588 So.2d at 1147; Wilson v. Wilson, 542 So.2d 568, 574 (La.App. 1st Cir.1989). Merely making an objection, without assigning any reasons therefor, is insufficient. Id.
In the present case, plaintiffs' counsel made a blanket objection, without stating any reasons, to those of his "special charges which were not granted" and to the "granting of all of the special charges that ... [the trial court] did grant on behalf of the defendant." Since counsel failed to state the basis of his objection as required, he forfeited his right to complain on appeal with respect to the special instructions the trial court gave or refused to give. Petitto, 588 So.2d at 1147; Wilson, 542 So.2d at 574.
CONCLUSION
For the reasons assigned, the judgment of the trial court is amended and judgment is hereby rendered awarding plaintiffs the additional amounts of $8750.00 ($35,000.00 reduced by 75%) for Shannon's pain and suffering and $600.00 ($2,400.00 reduced by 75%) for medical expenses. The judgment appealed from is affirmed in all other respects. One-half of the costs of this appeal are to be paid by appellants and appellees, respectively.
AFFIRMED IN PART; AMENDED IN PART; AND RENDERED.
NOTES
[1] There was conflicting testimony as to whether the tombstone fell on Shannon's foot after he had merely touched it or whether it fell only after Shannon deliberately rocked it several times. In view of its allocation of 75% fault to Shannon, the jury apparently accepted the testimony of the witnesses who testified that he rocked the tombstone. Plaintiffs have not raised any issue in this appeal regarding the jury's allocation of fault.
[2] Those medical expenses which the jury did award would likewise have been subject to reduction by 75% if the parties had not agreed that the jury could stipulate defendants were to pay 100% of these expenses.
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615 N.W.2d 902 (2000)
260 Neb. 234
STATE of Nebraska, appellee,
v.
Darren McCRACKEN, appellant.
No. S-97-944.
Supreme Court of Nebraska.
August 18, 2000.
*909 Robert P. Lindemeier, of Ruff, Nisley & Lindemeier, North Platte, for appellant.
*910 Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
GERRARD, J.
I. INTRODUCTION
On July 1, 1993, then 13-year-old Darren McCracken went into the bedroom of his mother, Vicky Bray; retrieved a handgun that was kept in that room; loaded the gun; and fired two shots at Bray, who was sleeping on a sofa in the downstairs family room. Later that same day, a petition was filed in the county court for Gosper County, sitting as a juvenile court, alleging that McCracken had committed acts bringing him within Neb.Rev.Stat. § 43-247(2) (Reissue 1993). On July 15, Bray died as a result of the gunshot wounds inflicted by McCracken on July 1. On November 3, the juvenile petition was dismissed, and an information was filed in the district court for Gosper County, charging McCracken with the first degree murder of Bray.
Following a jury trial, McCracken was found guilty of murder in the first degree and sentenced to life imprisonment. McCracken's direct appeal of that conviction was dismissed by this court for want of jurisdiction because McCracken did not file his notice of appeal within 30 days of sentencing. See State v. McCracken, 248 Neb. 576, 537 N.W.2d 502 (1995). McCracken subsequently filed a motion for postconviction relief in which he sought to have his conviction and sentence vacated pursuant to Neb.Rev.Stat. §§ 29-3001 through 29-3004 (Reissue 1995). After conducting an evidentiary hearing on McCracken's motion, the postconviction district court determined that McCracken was not entitled to a new trial but that McCracken's direct appeal from his murder conviction should be "reinstated." This appeal followed.
II. BACKGROUND
In the early morning hours of July 1, 1993, McCracken shot Bray twice in her head. State v. McCracken, supra. Later that same day, a petition was filed in the Gosper County Court, sitting as a separate juvenile court; that petition alleged that then 13-year-old McCracken had committed acts which would constitute attempted first degree murder, bringing him within the ambit of § 43-247(2). McCracken sought to admit the allegations contained in the petition on July 13, but the juvenile court refused to accept his admissions and ordered McCracken to undergo a "preadjudication evaluation." See Neb.Rev.Stat. § 43-258 (Reissue 1993). Bray died on July 15, while McCracken's case was still pending before the juvenile court. State v. McCracken, supra.
On November 3, 1993, the county attorney for Gosper County determined that criminal charges should be filed against McCracken and made a motion to dismiss the juvenile petition, which motion was sustained over McCracken's objection. On that same day, the State filed an information in the district court for Gosper County, charging McCracken with murder in the first degree. In response to the information, McCracken's trial counsel filed a motion to quash the information and to transfer the case to juvenile court. See id.
During the hearing on McCracken's motion to transfer, the State introduced and the district court received exhibits 2 and 3, which were the "preadjudication" psychiatric evaluations requested by the Gosper County Attorney and performed on McCracken pursuant to the juvenile court's order. Exhibits 2 and 3 were received without objection. At the conclusion of the hearing, McCracken's motion for a transfer to juvenile court was overruled. McCracken's motion to quash the information was likewise overruled. Id.
McCracken timely gave notice of his intention to proceed with an insanity defense, *911 and the case proceeded to a trial by jury in the district court. Martin Sweeney and Rafael Tatay, M.D., testified on behalf of the State. Sweeney and Tatay were two of the individuals who had conducted "preadjudication" evaluations on McCracken pursuant to the juvenile court's order of July 13, 1993. Sweeney was a psychiatric social worker from the adolescent unit of the Lincoln Regional Center, and Tatay was a psychiatrist in the "highest offenders" unit at the Lincoln Regional Center.
Sweeney testified that there was no way to ascertain from his evaluation whether McCracken knew the difference between right and wrong on July 1, 1993, but that "there was never any time during the time [he and Tatay] were evaluating [McCracken] that he never could that he couldn't make the distinction between right and wrong." On cross-examination, Sweeney stated that the evaluation in which he took part was intended only to ascertain whether McCracken was competent to stand trial and that a separate evaluation to which McCracken was subjected should be consulted for McCracken's mental status at the time of the crime. The State then offered as exhibit 2 that separate report to which Sweeney referred; McCracken's objection thereto was sustained, and exhibit 2 was not admitted into evidence.
Tatay then testified that he had extensively examined McCracken while the latter was being held at the Lincoln Regional Center and that he had also reviewed McCracken's medical history and school records. Tatay stated that in his opinion, McCracken knew right from wrong and knew what he was doing at the time he shot Bray. On cross-examination, however, Tatay similarly admitted that the purpose of his evaluation of McCracken was solely to determine McCracken's competency to stand trial and was not conducted to assess whether McCracken knew right from wrong at the time he shot Bray. Tatay explained that his opinion as to McCracken's sanity was derived from his personal opinion and not from the report he coauthored with Sweeney that was admitted into evidence as exhibit 3.
In McCracken's defense, he called James Cole, Ph.D., a licensed psychologist, who offered an opinion on McCracken's state of mind at the time of Bray's shooting. Cole testified that McCracken had a "very persistent preoccupation with morbid content, with death and violence." Cole also explained that McCracken experienced this phenomenon to a greater degree than is expected of adolescents and that other tests on McCracken demonstrated emotional detachment. According to Cole, McCracken's condition was similar to posttraumatic stress syndrome in that McCracken would escape into a fantasy world when faced with stressful situations; Cole opined that McCracken's condition, however, was much worse than posttraumatic stress syndrome because of underlying weaknesses in McCracken's personality. Cole referred to McCracken's psychological condition as a "time bomb waiting to explode."
The foregoing notwithstanding, Cole concluded that McCracken exhibited no signs of neuropsychological disorder. Cole opined that McCracken's mental status had a high likelihood of deteriorating into a full-blown psychosis, due in part to the fact that McCracken was the victim of physical, sexual, and emotional abuse. Cole believed that McCracken was competent to stand trial and further explained that in retrospect, McCracken knew it was wrong to shoot Bray, but that in McCracken's mind, he "thought it was the right thing to do" because of the misery Bray would suffer if he ran away from home.
Before the case was submitted to the jury and at the close of all the evidence, McCracken requested jury instructions on the lesser-included offenses of second degree murder, manslaughter, and assault in the first and second degrees; McCracken also requested that the jury be instructed on his defense of not responsible by reason of insanity. The State objected to the court's instructing the jury on any offenses *912 other than murder in the first degree, but did not object to McCracken's request for an instruction on his insanity defense. The district court denied McCracken's request for instructions on the lesser-included offenses, but granted McCracken's request to instruct the jury on his insanity defense.
On May 26, 1994, the jury found McCracken guilty of murder in the first degree. After the verdict was received by the district court, McCracken's trial counsel made an oral motion for a new trial, but did not specify on what basis the motion rested because he did not wish to have the motion considered by the court until after sentencing. On May 31, a written motion for a new trial was filed. On August 15, McCracken was sentenced to life imprisonment.
On September 7, 1994, after McCracken had been sentenced, the district court conducted a hearing on McCracken's motion for a new trial, which it determined had been made on May 26. The motion for a new trial was denied, and McCracken filed his direct appeal on September 28. That appeal was subsequently dismissed by this court for want of jurisdiction because McCracken did not file his notice of appeal within 30 days of sentencing. See State v. McCracken, 248 Neb. 576, 537 N.W.2d 502 (1995).
On September 16, 1996, McCracken filed a pro se motion for postconviction relief. The postconviction district court subsequently appointed counsel different from trial counsel, and a supplemental motion for postconviction relief was filed on January 31, 1997, in which McCracken asserted that his constitutional rights were violated and that he was entitled to a new trial. The postconviction district court held an evidentiary hearing on McCracken's motion for postconviction relief, after which the district court found, for the most part, no merit to McCracken's contentions that his constitutional rights had been violated. The postconviction court did find, however, that the failure of McCracken's trial counsel to timely prosecute McCracken's direct appeal constituted an infringement of McCracken's rights to counsel and due process; consequently, the postconviction court ordered McCracken's direct appeal to be "reinstated." McCracken's motion for postconviction relief was overruled in all other respects.
McCracken timely perfected this appeal from the order of postconviction relief. The records from both the murder trial and the postconviction proceedings are contained in the file of the instant appeal. Other testimony and facts relevant to our consideration of McCracken's "reinstated" direct appeal will be set forth as necessary in our analysis.
III. ASSIGNMENTS OF ERROR
McCracken asserts that (1) the district court erred in refusing to transfer McCracken's case to the juvenile court; (2) the district court erred in refusing to instruct the jury on the lesser-included offenses of second degree murder and manslaughter, in violation of McCracken's constitutional right to due process and statutory right under Neb.Rev.Stat. § 29-2027 (Reissue 1995) to have the jury decide the appropriate degree of homicide; (3) the district court denied him effective assistance of counsel by not instructing the jury on the offenses of manslaughter and second degree murder because McCracken's trial counsel was precluded from arguing that McCracken was unable to form the requisite intent to commit murder in the first degree but may have been guilty of a lesser degree of homicide; (4) he received ineffective assistance of counsel at the trial level due to trial counsel's failure to object to the use of the juvenile court-ordered mental health evaluations against him in the criminal case; and (5) he received ineffective assistance of counsel at the trial level due to trial counsel's failure to file a plea in bar to preserve the issues of the juvenile court proceeding.
*913 IV. STANDARD OF REVIEW
Whether jury instructions given by a trial court are correct is a question of law. State v. Dixon, 259 Neb. 976, 614 N.W.2d 288 (2000). In an appeal based on a claim of erroneous jury instructions, the appellant has the burden to show that the questioned instructions were prejudicial or otherwise adversely affected a substantial right of the appellant. Id.
A trial court's denial of a motion to transfer a pending criminal proceeding to the juvenile court is reviewed for an abuse of discretion. See, State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996); State v. Ice, 244 Neb. 875, 509 N.W.2d 407 (1994).
To state a claim of ineffectiveness of counsel as violative of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution and thereby obtain reversal of a conviction, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. Sims, 258 Neb. 357, 603 N.W.2d 431 (1999); State v. Becerra, 253 Neb. 653, 573 N.W.2d 397 (1998).
V. ANALYSIS
1. "REINSTATEMENT" OF McCRACKEN'S DIRECT APPEAL
Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. State v. Johnson, 259 Neb. 942, 613 N.W.2d 459 (2000). The State contends that under the provisions of §§ 29-3001 through 29-3004, neither the district court nor this court has jurisdiction to grant or consider a new direct appeal from McCracken's August 15, 1994, sentence of life imprisonment. On February 3, 2000, however, this court issued an interlocutory order in which we determined that the district court properly granted McCracken a new direct appeal and that this court therefore had jurisdiction over the instant appeal. See State v. McCracken, 615 N.W.2d 882 (published order). We ordered further briefing on the merits of this appeal and heard additional oral arguments regarding the issues on May 2, 2000. For the following reasons, we conclude, again, that we have jurisdiction to consider McCracken's instant appeal.
Section 29-3001 empowers the district court to "vacate and set aside the judgment and ... discharge the prisoner or resentence him or grant a new trial as may appear appropriate" in the event that the court determines there has been such a denial or infringement of a prisoner's rights as to render the judgment void or voidable under the Nebraska Constitution or the Constitution of the United States. The State contends that the foregoing language of § 29-3001 provides that the only postconviction relief available to a prisoner who can establish that there has been a denial of his or her constitutional rights is that the prisoner is to be discharged of the offense for which he or she was convicted or is to be granted a new trial. As we have stated in the past, however, "[w]e do not believe the Legislature intended any such restriction on the jurisdiction of the court, nor on its power to grant relief." State v. Blunt, 197 Neb. 82, 92, 246 N.W.2d 727, 733 (1976).
The Legislature specifically provided the district court the power to set aside a judgment if the court finds there has been a denial or infringement of the prisoner's constitutional rights sufficient to render the judgment void or voidable. See § 29-3001. That power, which obviously includes the power to void the entire criminal proceeding, including judgments on trial and on appeal, is not restricted to an "all or nothing" situation, as the State contends. See State v. Blunt, supra. On the contrary, we have consistently held:
*914 Where the evidence establishes a denial or infringement of the right to counsel which occurred only at the appeal stage of the former criminal proceedings, the District Court has jurisdiction and power, in a post conviction proceeding, to grant a new direct appeal without granting a new trial or setting aside the original conviction and sentence.
(Emphasis supplied.) Id. at 92-93, 246 N.W.2d at 734. In other words, in addition to the district court's express power to void the entire criminal proceedings, the power to grant a new direct appeal is implicit in the provisions of § 29-3001.
This court has consistently construed § 29-3001 as implicitly providing district courts the power to grant a new direct appeal since at least 1976. See State v. Blunt, supra. See, also, State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000); State v. Jones, 241 Neb. 740, 491 N.W.2d 30 (1992); State v. Carter, 236 Neb. 656, 463 N.W.2d 332 (1990); State v. Chipps, 203 Neb. 715, 279 N.W.2d 874 (1979). Notably, § 29-3001 has not been amended in light of this court's construction of the statute as tacitly providing the power to grant a new direct appeal. When judicial interpretation of a statute has not evoked a legislative amendment, it is presumed that the Legislature has acquiesced in the court's interpretation. Sheldon-Zimbelman v. Bryan Memorial Hosp., 258 Neb. 568, 604 N.W.2d 396 (2000). We therefore determine that the power to grant a new direct appeal is implicit in § 29-3001 and that the district court has jurisdiction to exercise such a power where the evidence establishes a denial or infringement of the right to effective assistance of counsel at the direct appeal stage of the criminal proceedings.
Having concluded that a district court may properly "reinstate" a direct appeal as postconviction relief, the question remains, and is presented in this case, as to how a "reinstated direct appeal" should proceed in the appellate court once it has been granted as postconviction relief by the district court. Aware that this court has never delineated how an appellant is to proceed when a district court grants a new direct appeal as postconviction relief, we deem it appropriate to provide guidance to the bench and bar for future cases.
The confusion in a case such as this may have resulted from language in past cases, see, e.g., State v. Jones, supra, which indicated that district courts may properly "reinstate" a defendant's direct appeal when the court finds that a defendant was prejudiced by ineffective appellate counsel in his or her prior criminal proceedings. Based on State v. Blunt, 197 Neb. 82, 246 N.W.2d 727 (1976), we conclude that a district court should more properly grant a "new direct appeal" rather than "reinstate" a past one. A defendant obtaining such postconviction relief must then appeal from his or her original conviction and sentence based on the grant of the postconviction relief. The 30-day limit within which the defendant must file his or her "new direct appeal" commences on the day that such postconviction relief is granted in the district court. Such a procedure allows the appellate court to obtain jurisdiction over the new direct appeal (assuming that the appeal is properly docketed in the appellate court within 30 days of the grant of postconviction relief), while still authorizing district courts to grant appropriate relief when the constitutional defect in the prior proceedings occurred only at the direct appeal stage. The State, of course, maintains its right to appeal the postconviction judgment of the district court.
When a defendant appeals, as a result of being granted a "new direct appeal" in the postconviction proceedings, the record before the appellate court would necessarily contain the same record as if the "new direct appeal" were the original direct appeal. Additionally, the record would contain evidence that the defendant had been awarded a "new direct appeal" as postconviction relief. See State *915 v. Jones, 241 Neb. 740, 745, 491 N.W.2d 30, 33 (1992) (stating that "the postconviction record is necessarily before the court as a prerequisite to this court's jurisdiction"). Notwithstanding the fact that there must be some evidence of a district court's grant of a "new direct appeal" as postconviction relief for jurisdictional purposes, an appellate court considering such an appeal must recall that "[t]ypically, only the conviction and sentencing records [are] created in the district court prior to an original direct appeal." Id. Consequently, only the conviction and sentencing records created in the district court are properly reviewable in a "new direct appeal." Id. An appellate court shall be precluded from considering any portion of the record that would not have been included in the record on the original direct appeal when considering the merits of the "new direct appeal."
Accordingly, we conclude that the district court had the power to grant McCracken a new direct appeal based upon its findings that the failure of McCracken's trial counsel to timely prosecute McCracken's original direct appeal infringed upon McCracken's right to effective assistance of counsel. Because McCracken has timely appealed pursuant to the order granting him postconviction relief in the form of a new direct appeal, this court may properly exercise jurisdiction over the instant appeal, and the State's contention to the contrary is without merit. We therefore proceed to consider the merits of McCracken's assignments of error.
2. DENIAL OF MOTION TO TRANSFER
In his first assignment of error, McCracken alleges that it was error for the district court to deny his motion to waive jurisdiction and transfer his case back to juvenile court. Abuse of discretion is the standard of review applicable to an appeal from a district court's denial of a motion to transfer a pending criminal proceeding to the juvenile court. State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996). Thus, we must determine whether the district court abused its discretion by denying McCracken's motion to transfer his case to the juvenile court.
McCracken filed his motion to transfer pursuant to Neb.Rev.Stat. § 29-1816 (Reissue 1995), which provides that a juvenile may move the district court to waive jurisdiction to the juvenile court and requires the court to schedule a hearing on such a motion within 15 days of the motion being made. Further, § 29-1816 states that the rules of evidence should not apply in such hearing and that "[a]fter considering all the evidence and reasons presented by both parties, pursuant to section 43-276, the case shall be transferred unless a sound basis exists for retaining the case."
In deciding whether to transfer adult criminal proceedings to juvenile court, the court having jurisdiction must carefully consider the criteria set forth in Neb.Rev.Stat. § 43-276 (Reissue 1993). State v. Reynolds, 247 Neb. 608, 529 N.W.2d 64 (1995). This court has stated that "in weighing such factors, there is no arithmetical computation or formula required in the court's consideration of the statutory criteria." State v. Mantich, 249 Neb. at 318, 543 N.W.2d at 188. Moreover, "[i]n order to retain the proceedings, the court does not need to resolve every factor against the juvenile." Id. "There are no weighted factors and no prescribed method by which more or less weight is assigned to each specific factor. It is a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile." Id.
In the instant case, the district court went into great detail in setting forth its findings and determinations pertaining to the factors in § 43-276. The district court specifically determined that (1) the type of treatment that McCracken would be most amenable to is at a youth facility, which favored transferring jurisdiction to the juvenile court; (2) the crime involved *916 extreme violence, which favored retaining jurisdiction; (3) the evidence of motivation for the crime (McCracken did not wish to have Bray cry when he ran away from home again) weighed neither in favor of nor against retaining jurisdiction; (4) McCracken's age of 13 years favored transferring jurisdiction; (5) McCracken had no prior criminal history, which also favored transferring the case to juvenile court; (6) McCracken's sophistication and maturity was unclear in light of the evidence presented at the hearing, and no determination could be made either in favor of or against retaining jurisdiction; (7) the type of treatment McCracken needed could not be better obtained in either system, and this criteria weighed in favor of neither transferring nor retaining jurisdiction; and (8) "without question" the best interests of the juvenile and the security of the public require that the district court retain jurisdiction, especially since the crime was so violent and McCracken's psychiatric prognosis was so poor. The district court then concluded that "it is not appropriate that Mr. McCracken be treated as a juvenile, because of the extreme risk of danger that he presents to himself and society," and McCracken's motion to transfer was denied.
McCracken argues that the district court placed too much emphasis on factors (2) and (8), which were the only factors that favored retaining jurisdiction. McCracken acknowledges that there is no mathematical calculation or weighing of the factors, but he argues that the court-ordered psychiatric evaluations supporting factor (8) were improperly admitted. If that evidence were excluded, McCracken argues, then there is no question that his case should have been transferred back to juvenile court. Thus, McCracken contends, the district court's determination to retain jurisdiction over him was based on inappropriate evidence and, therefore, constituted an abuse of discretion.
The record is unclear as to the extent to which the district court relied upon the mental health evaluations at the hearing on the motion to transfer. Notwithstanding the admission of the psychiatric evaluations, the district court stated that "`the best interests of the juvenile and security of the public [ (factor 8) ] without question [weigh] in favor of the Court continuing the court here in the District Court, because of the extremely violent nature of the actions that occurred.'"
The district court also found that the offense for which McCracken was brought to trial was of a particularly violent and aggressive nature. Further, the alleged act was perpetrated against a person rather than property. See State v. Ice, 244 Neb. 875, 509 N.W.2d 407 (1994). The district court also determined that McCracken was an obvious threat to the public and, if convicted, could not easily be rehabilitated or properly punished in the juvenile correctional system. See State v. Garza, 241 Neb. 934, 492 N.W.2d 32 (1992). The record therefore reveals that the district court's decision to retain jurisdiction rested, to a great extent, upon the nature of the offense with which McCracken was charged.
The record supports the district court's findings that the crime with which McCracken was charged was the ultimate act of violence and aggression against another human being. Based upon those findings, the district court concluded that McCracken should "`be held accountable through proceedings in the adult criminal justice system for effective deterrence of future antisocial misconduct,'" see State v. Nevels, 235 Neb. 39, 51, 453 N.W.2d 579, 587 (1990), and denied the transfer to juvenile court. Our review of the record reveals that the district court properly considered the criteria delineated in § 43-276, together with the relevant evidence. The decision not to transfer the proceeding to the juvenile court is supported by the relevant evidence. In spite of McCracken's youthful age at the time of the crime, the extreme violence perpetrated upon the victim and the protection of the public in light *917 of McCracken's poor psychiatric prognosis lead us to conclude that the district court did not abuse its discretion when it denied McCracken's motion to transfer to the juvenile court. Consequently, McCracken's first assignment of error is without merit.
3. REQUESTED JURY INSTRUCTIONS
McCracken next contends that the district court erred by failing to instruct the jury on second degree murder and manslaughter. McCracken maintains that the district court's failure to instruct the jury on the lesser-included offenses of second degree murder and manslaughter violated his constitutional right to due process of law and his statutory right under § 29-2027, which, he argues, entitles him to have the jury decide the appropriate degree of homicide.
Section 29-2027 provides in pertinent part that "[i]n all trials for murder the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict whether it be murder in the first or second degree, or manslaughter...." This court has construed § 29-2027 to mean that where different inferences as to the degree of homicide can be drawn from the evidence, a court must instruct on lesser degrees. State v. Ellis, 208 Neb. 379, 303 N.W.2d 741 (1981). In other words, when a proper, factual basis is present, a court must instruct a jury on the degrees of criminal homicide, that is, the provisions of § 29-2027 are mandatory. State v. Archbold, 217 Neb. 345, 350 N.W.2d 500 (1984). Thus, we must determine whether different inferences as to the degree of homicide may be drawn from the evidence, therefore entitling McCracken to a jury instruction on a degree of homicide other than first degree murder.
(a) Jury Instruction on Second Degree Murder
McCracken argues that the "jury was never informed that it could find him guilty of [s]econd [d]egree [m]urder or [m]anslaughter if they felt his mental condition prevented him from forming the premeditated intent required of [f]irst [d]egree [m]urder." Brief for appellant at 12-13. Because entitlement to a jury instruction on second degree murder does not necessarily entitle McCracken to a jury instruction on manslaughter, his contention raises two separate inquiries. We must first determine whether McCracken was entitled to a jury instruction on the lesser-included offense of murder in the second degree.
When determining whether to instruct the jury on a lesser-included offense, a trial court must follow the two-prong test enunciated by this court in State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993). We stated in State v. Williams, 243 Neb. at 965, 503 N.W.2d at 566:
[A] court must instruct on a lesser-included offense if (1) the elements of the lesser offense ... are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.
In State v. Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997), we noted that second degree murder is clearly a lesser-included offense of first degree murder. Thus, in regard to McCracken's request for an instruction on second degree murder, the issue is whether there was a rational basis upon which the jury could have convicted McCracken of second degree murder while acquitting him of first degree murder. See id.
The primary difference between first and second degree murder is that second degree murder does not require a finding of deliberate and premeditated malice. Compare Neb.Rev.Stat. § 28-303 (Reissue 1995) with Neb.Rev.Stat. § 28-304 (Reissue 1995). Both murder in the first degree and murder in the second degree otherwise require the intentional killing of *918 another human being. See State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998) (noting that second degree murder occurs when one causes death of another intentionally, but without premeditation). McCracken was therefore entitled to a jury instruction on second degree murder only if there is a rational basis upon which the jury could have concluded that although he intentionally killed Bray, such a killing was without premeditation and deliberation. Such is not the case.
The report of Cole, McCracken's expert witness, was introduced at trial and states that McCracken "carefully planned" to shoot Bray long before he actually did so. In various statements after the shooting, which McCracken made to mental health professionals and police, McCracken explained that after he retrieved the gun from the upstairs bedroom, he went downstairs with the intent of shooting Bray, who was asleep on the sofa. McCracken's statements also show that he then became interested in a television show and sat down in a chair in the family room to watch television. Approximately 4 hours later when that television show was over, McCracken walked over to the couch where Bray was sleeping and put the gun to her head, firing his first shot. Bray sat up after being struck with the first shot, after which McCracken fired a second shot at Bray's head. This evidence was not controverted at trial. In addition to the foregoing undisputed evidence, shortly after he had shot Bray, McCracken admitted to police that he had planned to kill Bray around midnight, but did not actually do so until between 4 and 5 a.m.
Thus, the record is replete with evidence that McCracken possessed the requisite premeditation to be convicted of first degree murder. A thorough review of the record, however, does not reveal any evidence from which a contrary inference could be drawn that would allow a jury to reasonably conclude that McCracken did not possess the requisite planning and deliberation for first degree murder. McCracken relied upon, and the jury was instructed on and considered, the defense of insanity. However, because all of the relevant evidence establishes that the killing of Bray was planned and deliberate, there is no rational basis upon which the jury could have drawn different inferences as to the degrees of murder from the evidence presented at trial. See, State v. Dixon, 259 Neb. 976, 614 N.W.2d 288 (2000); State v. Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997); State v. Ellis, 208 Neb. 379, 303 N.W.2d 741 (1981). Consequently, the district court was correct in its determination that the evidence provided no rational basis upon which the jury could have convicted McCracken of second degree murder while acquitting him of first degree murder. We therefore conclude that McCracken was not entitled to a jury instruction on the offense of murder in the second degree, and McCracken's assertions to the contrary are without merit.
(b) Jury Instruction on Manslaughter
McCracken further maintains that the evidence at trial was such that he was entitled to a jury instruction on the offense of manslaughter, so that the jury could find him guilty of "[m]anslaughter if they felt his mental condition prevented him from forming the premeditated intent required of [f]irst [d]egree [m]urder." Brief for appellant at 12-13. McCracken's argument in this regard is based upon the premise that there was evidence adduced at trial upon which the jury could have concluded that McCracken lacked the ability to form the requisite intent for murder, an assertion not supported by the record.
Manslaughter differs from murder in that the former requires no intent to kill, but involves the killing of another human being while in the commission of an unlawful act or upon a sudden quarrel. See Neb.Rev.Stat. § 28-305 (Reissue 1995). In the instant case, there is no evidence, and McCracken does not argue, that Bray and McCracken were involved in *919 a sudden quarrel just prior to the shooting; thus, the critical inquiry is whether there is evidence upon which the jury could have concluded that Bray's death was unintentionally caused while McCracken was committing an unlawful act.
Cole testified, on McCracken's behalf, that McCracken knew what he was doing when he shot Bray and that McCracken knew it was wrong to do so. Cole's report, which was introduced at trial, states that McCracken "carefully planned the shooting, including a set of optional plans." Cole explained that McCracken followed through on this plan to kill Bray and thought it was the right thing for him to do because of the misery Bray would experience if he ran away. In other words, Cole's testimony and report unequivocally show that in Cole's opinion, McCracken intended to kill Bray, knew what he was doing when he shot her, and was well aware of the fact that his actions were wrong when he did so. Cole's testimony never challenged McCracken's ability to form the intent to kill; to the contrary, Cole's report and testimony reaffirmed that McCracken had formed such an intent. Thus, the undisputed evidence establishes that McCracken intended to kill Bray, and there simply was no evidence upon which the jury could have acquitted McCracken of first degree murder and convicted him of manslaughter.
McCracken argues that he was entitled to a jury instruction on manslaughter because the "crucial evidence at the trial," brief for appellant at 14, provides a rational basis upon which the jury could have concluded that McCracken lacked the ability to form the requisite intent for first degree murder. Contrary to McCracken's assertions, however, the record reveals that the "crucial evidence at the trial" went to whether McCracken knew right from wrong at the time he shot Bray, not to whether McCracken could form the premeditated intent to commit murder in the first degree. No evidence whatsoever was adduced regarding McCracken's ability, or lack thereof, to form the requisite intent to commit first degree murder; rather, the main issue upon which evidence was adduced was McCracken's sanity at the time he shot Bray. We therefore conclude that the district court properly denied McCracken's requests for jury instructions on the offenses of second degree murder and manslaughter, as the evidence did not warrant the giving of such instructions. Consequently, McCracken's second assignment of error is without merit.
4. INEFFECTIVE ASSISTANCE OF COUNSEL
McCracken asserts in his third, fourth, and fifth assignments of error that he received ineffective assistance of counsel at the trial level. The Sixth Amendment to the U.S. Constitution guarantees every criminal defendant the right to effective assistance of counsel. State v. Sims, 258 Neb. 357, 603 N.W.2d 431 (1999); State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified 255 Neb. 889, 587 N.W.2d 673 (1999). To state a claim of ineffectiveness of counsel as violative of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution and thereby obtain reversal of a conviction, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. Sims, supra; State v. Becerra, 253 Neb. 653, 573 N.W.2d 397 (1998).
The two prongs of the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), deficient performance and prejudice, may be addressed in either order. See State v. Lyle, 258 Neb. 263, 603 N.W.2d 24 (1999). Where a defendant is unable to demonstrate sufficient prejudice, no examination of whether counsel's performance was deficient is necessary. State v. Becerra, supra. Thus, if it is more appropriate to dispose of an ineffectiveness claim due to the lack of sufficient prejudice, *920 that course should be followed. State v. Lyle, supra.
Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. State v. Sims, supra; State v. Becerra, supra. When the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. Id. Because the instant file contains the entire record of the trial at which McCracken was convicted and because of the particular claims of ineffective assistance of trial counsel raised by McCracken, an evidentiary hearing is not necessary to adequately develop a sufficient record for the disposition of McCracken's claims. Thus, McCracken's claims of ineffective assistance of trial counsel may be considered in this appeal.
(a) District Court's Denial of Jury Instructions
McCracken's third assignment of error alleges that the district court's denial of his request for jury instructions on second degree murder and manslaughter had the effect of preventing his attorney from arguing to the jury that McCracken lacked the ability to form the requisite premeditated intent to commit murder in the first degree. We note that McCracken has couched this assignment of error in terms of "ineffective assistance of counsel." No Sixth Amendment issue is presented, however, as the substance of McCracken's argument is that the district court erred in denying his request for lesser-included offense instructions; McCracken's assertion that his attorney's arguments were limited is nothing more than another theory by which McCracken claims he was prejudiced by the lack of lesser-included offense instructions. As previously explained, however, there was no evidence upon which the jury could have acquitted McCracken of first degree murder and convicted him of the lesser-included offense of either second degree murder or manslaughter.
Moreover, McCracken's counsel was not, and could not be, prevented from arguing that McCracken lacked the requisite premeditated intent to commit first degree murder because of insanity or any other justification that the evidence supported. McCracken has therefore failed to show how he was prejudiced by the trial court's failure to give his requested instructions, and we conclude that this assignment of error is without merit.
(b) Reliance Upon Court-Ordered Mental Evaluations
McCracken's fourth assignment of error alleges that his trial counsel was ineffective due to counsel's failure to object to the use in his criminal trial of the mental health evaluations ordered by the juvenile court. McCracken contends that the use of the evaluations contravenes the Fifth Amendment's proscription against compelling a criminal defendant to provide evidence against himself in a criminal proceeding. The question presented in this regard is whether the district court's reliance upon the juvenile court-ordered mental health evaluations, either at the transfer hearing or at the subsequent criminal trial, violated McCracken's right to be free from compelled self-incrimination.
(i) Transfer Hearing
McCracken asserts that his trial counsel was ineffective by not objecting to the district court's consideration of the juvenile court-ordered psychiatric evaluations at the hearing on McCracken's motion to transfer his case to the juvenile court. McCracken argues that at the time of the hearing on his motion to transfer, he had not yet put his sanity at issue and that the evaluations were therefore "not being used to aid the Court, but to aid the State in their prosecution of the Appellant." Brief for appellant at 23. As more fully *921 developed below, McCracken's argument is based upon a misunderstanding of the privilege against self-incrimination.
The Fifth Amendment's privilege against self-incrimination "is triggered only where there is a threat of compelled self-incrimination." State in Interest of A.L., 271 N.J.Super. 192, 211, 638 A.2d 814, 823 (1994). See, also, 8 John H. Wigmore, Evidence in Trials at Common Law § 2254 (John T. McNaughton rev.1961). The U.S. Supreme Court has provided that "[i]t is well established that the privilege protects against real dangers, not remote and speculative possibilities." Zicarelli v. New Jersey Investigation Comm'n, 406 U.S. 472, 478, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972). Put another way, "[w]here there is no potential for self-incrimination, there is no Fifth Amendment concern." State in Interest of A.L., 271 N.J.Super. at 211, 638 A.2d at 823. Thus, the crucial inquiry in regard to the use of the psychiatric evaluations at the transfer hearing is whether there was the potential at such a hearing for McCracken to incriminate himself.
Critical to our analysis is the exact nature of a hearing on a juvenile defendant's motion to transfer jurisdiction to the juvenile court. As articulated by the Indiana Court of Appeals in Clemons v. State, 162 Ind.App. 50, 58-59, 317 N.E.2d 859, 864-65 (1974), cert. denied 423 U.S. 859, 96 S.Ct. 113, 46 L.Ed.2d 86 (1975):
"Such a hearing ... does not result in a determination of guilt as may a criminal trial; and does not directly result in confinement or other punishment as may both a delinquency hearing and a criminal proceeding. In short, the transfer hearing is not an adversary proceeding. Rather, the sole purpose of the transfer hearing ... is to determine `whether best interests of the child and of society would be served by the retention of the juvenile court authority over him or whether the juvenile, under all the circumstances, should be transferred to be tried as an adult.' ..."
(Quoting State v. Piche, 74 Wash.2d 9, 442 P.2d 632 (1968).) In other words, a transfer hearing is a hearing at which the district court considers only "`the nature of the alleged offense,' not the juvenile's guilt or innocence of the charged offense." U.S. v. Parker, 956 F.2d 169, 171 (8th Cir.1992). "The determination is not one of guilt or innocence, or even of delinquency or non-delinquency, but rather concerns the manner in which the state elects to proceed against an alleged malefactor." U.S. v. A.R., 38 F.3d 699, 703 (3d Cir.1994). It is with the foregoing principles in mind that we must consider McCracken's assertion that his Fifth Amendment rights were violated at the hearing on his motion to transfer.
In the instant case, the district court admitted the juvenile court-ordered psychiatric evaluations at the transfer hearing to aid in its determination of whether McCracken's case should be transferred to the juvenile court. Section 29-1816 provides that the rules of evidence do not apply to the hearing on McCracken's motion to transfer. As explained elsewhere in this opinion, § 29-1816 reflects the policy decision, made by the Legislature, that decisions made at transfer hearings are to be informed by all of the surrounding circumstances, which may or may not include evidence that is inadmissible at a subsequent criminal trial. In other words, evidence that is admitted and relied upon by a district court at the transfer hearing may or may not be admissible at a subsequent criminal trial. Because only legally admissible evidence may be used to establish guilt in a criminal trial, certain evidence that had been admitted and relied upon by a district court at the transfer hearing would have to be reoffered and tested for admissibility at the criminal trial.
Further, the sole purpose of the transfer hearing in the present case was to determine whether McCracken's best interests and the security of the public would best be served by the trial court's *922 retention of jurisdiction over him or whether McCracken's case, under all of the circumstances, should be transferred to the juvenile court. Thus, the only consideration made at the hearing on McCracken's motion to transfer was whether the district court should retain jurisdiction over the case or transfer the case to juvenile court; the issue of McCracken's guilt or innocence was not before the court.
"A juvenile transfer hearing is not itself a criminal proceeding," U.S. v. Mitchell H., 182 F.3d 1034, 1035 (9th Cir. 1999) (citing Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966)), and there was no potential for self-incrimination at the transfer hearing. Instead, the district court considered the psychiatric evaluations for the "limited, neutral purpose" of determining whether McCracken's motion to transfer the case to juvenile court should be sustained. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). Such a limited consideration of the mental health evaluations at the transfer hearing did not violate McCracken's Fifth Amendment right to be free from compelled self-incrimination, as McCracken was not forced to provide evidence at that hearing which incriminated him in any way.
Nebraska's statutory scheme is consistent with this determination. The statutes pertaining to a transfer of jurisdiction from the district court to the juvenile court require the court to consider a number of factors, which factors were considered by the district court in this case. See, § 29-1816; Neb.Rev.Stat. § 43-261 (Reissue 1998). Section 43-261 also requires that a district court faced with a decision on a motion to transfer jurisdiction to juvenile court consider those factors that are to be considered by the county attorney under § 43-276 when deciding in which court to file the juvenile's case. Further, § 29-1816 provides that the rules of evidence do not apply during a hearing held on a juvenile defendant's motion to transfer the case to juvenile court. These statutes clearly reflect a policy of allowing a court confronted with such a motion to consider all of the circumstances of a particular case before deciding whether to transfer jurisdiction to the juvenile court or retain jurisdiction. In short, § 29-1816 evinces a policy decision, made by the Legislature regarding transfer hearings, to apply relaxed evidentiary standards so as to ensure an informed decision on a defendant's motion to transfer.
Due to the nature of the hearing on McCracken's motion to transfer and to the fact that the court therein was neither confronted nor concerned with McCracken's guilt or innocence, but, rather, with his knowledge and amenability to treatment within the juvenile system, we determine that the hearing on McCracken's motion to transfer was a hearing at which there was no potential for self-incrimination. Consequently, McCracken's Fifth Amendment privilege to be free from compelled self-incrimination was not violated by the district court's consideration of the court-ordered mental health evaluations at that hearing, and any objection made by McCracken's counsel to the introduction of the psychiatric evaluations at that hearing would have been properly overruled by the district court.
Accordingly, we conclude that the district court did not err in considering the juvenile court-ordered mental health evaluations at the hearing on McCracken's motion to transfer. See, e.g., State v. Alexander, 215 Neb. 478, 484, 487, 339 N.W.2d 297, 301, 302 (1983) (stating, without addressing Fifth Amendment issue, that court's decision to retain jurisdiction was based on "appropriate evidence" and that there was "`sound basis'" for retaining jurisdiction when trial court relied upon evaluations similar to those at issue in instant case). In light of our conclusion, McCracken has failed to show that he was prejudiced by counsel's failure to object to the use of the evaluations at the transfer *923 hearing, and his contention in this regard has no merit.
(ii) At Trial
McCracken also contends that his trial counsel was ineffective in that counsel did not object to the use of the court-ordered psychiatric evaluations or the testimony derived therefrom at his subsequent murder trial. Relying extensively on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and State v. Vosler, 216 Neb. 461, 345 N.W.2d 806 (1984), McCracken argues that "at the time the evaluations were ordered he had not put his mental health at issue" and that "it is a violation [of] the Fifth Amendment protection against self incrimination to order an individual to be evaluated when he has not put his mental health at issue." Brief for appellant at 26. Restated, McCracken's argument is that his Fifth Amendment rights were violated at the time he was ordered to undergo the "preadjudication" psychiatric evaluations.
State v. Vosler, supra, involved a defendant who advised the State, prior to trial, that he intended to call two psychiatric witnesses to testify concerning his ability to form the necessary criminal intent at the time of the criminal act. The defendant did not file any written notice of an intention to plead insanity, nor did he invoke such a defense at trial. Prior to trial, the State obtained an order appointing and authorizing a qualified physician to examine the defendant. The examining physician subsequently testified at trial. After Vosler was convicted of second degree murder, he argued on appeal that the introduction of evidence derived from that court-ordered examination violated his privilege against self-incrimination and that it was error to instruct the jury on an insanity defense not raised by the defendant; this court agreed.
[W]hen insanity has not been pled as a defense and evidence concerning the defendant's mental condition is introduced solely to establish that he lacked the ability to intend the obvious and probable consequences of his voluntary act, and thus is offered to rebut the presumption which flows from his act, the trial court should not define for the jury the elements of the insanity defense.
Id. at 468-69, 345 N.W.2d at 811. This court further concluded in State v. Vosler, 216 Neb. at 471, 345 N.W.2d at 812, that "the introduction into evidence of the testimony of the State-retained psychiatrist, who examined defendant under court order, violated his privilege under the fifth amendment." (Emphasis supplied.) Although State v. Vosler stands precisely for two propositions which relate to McCracken's assertion that his Fifth Amendment privilege against self-incrimination has been violated, neither of these propositions support his position.
We first established in State v. Vosler, 216 Neb. 461, 345 N.W.2d 806 (1984), that a court's order compelling a defendant to submit to a psychiatric evaluation conducted on behalf of the State, accompanied by the subsequent admission of the test results at trial, violates the Fifth Amendment if a defendant has not invoked an insanity defense, but, rather, has sought to rely on psychiatric testimony to establish that the defendant was without the mental capacity to form the requisite intent to commit the crime with which he or she has been charged. Second, State v. Vosler establishes that the violation of the Fifth Amendment, if one does occur, takes place at the time that the psychiatric evidence is introduced at trial, rather than at the time the court orders the evaluation. Thus, under State v. Vosler, the focus of the inquiry is on the time that the evaluation was admitted at trial against a defendant who has not placed his or her sanity in issue, rather than on the time that the evaluation was ordered by the court.
The U.S. Supreme Court was confronted with circumstances similar to those in the instant case in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), which involved the elicitation of testimony regarding a court-ordered evaluation to *924 determine a defendant's competency to stand trial. When the State called the examining psychiatrist at the sentencing phase of the defendant's trial, the defendant had raised neither the issue of his competency to stand trial nor his sanity at the time of the offense. The Court held that the admission of the testimony at the sentencing phase violated the defendant's Fifth Amendment privilege against compelled self-incrimination, explaining that "[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." 451 U.S. at 468, 101 S.Ct. 1866. The Court further explained that had the use of the evaluation been confined to the limited purpose of determining the defendant's competency to stand trial, "no Fifth Amendment issue would have arisen." 451 U.S. at 465, 101 S.Ct. 1866. In this regard, the Court distinguished Estelle v. Smith, a case which did not involve an insanity defense, from a case in which the defendant has pled not responsible by reason of insanity.
In State v. Vosler, 216 Neb. 461, 470-71, 345 N.W.2d 806, 812 (1984), we examined Estelle v. Smith, supra, and acknowledged that allowing court-ordered psychiatric testimony in a trial where the defendant has not pled insanity is different from
"a sanity examination occasioned by a defendant's plea of not guilty by reason of insanity at the time of the offense. When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case."
Quoting Estelle v. Smith, supra. Thus, this court has recognized that once a criminal defendant has placed his or her sanity at issue, the State may use the results of a court-ordered psychiatric evaluation at trial without contravening the Fifth Amendment's privilege against self-incrimination.
In the case at bar, the State introduced the testimony of Sweeney and Tatay after McCracken had invoked an insanity defense. Because McCracken had placed his sanity at issue, the State was entitled to introduce evidence to controvert his proof on that issue. See Estelle v. Smith, supra. Consequently, when the evidence of the psychiatric evaluations was admitted at trial, its admission ran afoul of neither State v. Vosler and Estelle v. Smith nor the Fifth Amendment, and McCracken's arguments to the contrary are without merit.
Because any objection that McCracken's trial counsel would have made to the introduction of the mental health evaluations at trial would have been properly overruled by the district court, McCracken has not shown how he was prejudiced by trial counsel's failure to object. See State v. Becerra, 253 Neb. 653, 573 N.W.2d 397 (1998). Because McCracken has not shown that he was prejudiced by counsel's failure to object to the mental health evaluations at either the hearing on his motion to transfer or at the subsequent trial, we conclude that his fourth assignment of error is without merit.
(c) Failure to File Plea in Bar
McCracken next contends, in his fifth assignment of error, that he received ineffective assistance of trial counsel because his trial attorney failed to file a plea in bar to preserve the issues raised by the State in the juvenile petition. The thrust of McCracken's claim is that he was placed in jeopardy before the juvenile court and then twice placed in jeopardy for the same offense when the State was allowed to dismiss the juvenile petition and immediately file an information in the district court.
The Fifth Amendment to the U.S. Constitution provides in pertinent part: "[N]or shall any person be subject for the same offense to be twice put in *925 jeopardy of life or limb." The Nebraska Constitution provides similar protection in article I, § 12, where it is stated, "No person shall ... be twice put in jeopardy for the same offense." The Double Jeopardy Clauses of both the U.S. Constitution and the Nebraska Constitution protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. State v. Spotts, 257 Neb. 44, 595 N.W.2d 259 (1999); State v. Howell, 254 Neb. 247, 575 N.W.2d 861 (1998). When the Double Jeopardy Clause applies, it is the second proceeding that is constitutionally endangered. State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999). Thus, we must examine the nature of the proceedings before the juvenile court, as the critical inquiry in the instant case is whether McCracken had been placed in jeopardy before the juvenile court.
In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the U.S. Supreme Court discussed the extent to which the Double Jeopardy Clause of the Fifth Amendment applied in juvenile proceedings. The Court explained that
it is simply too late in the day to conclude... that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years.
(Emphasis supplied.) 421 U.S. at 529, 95 S.Ct. 1779. The Court elaborated that there was little distinction between an adjudicatory hearing and a traditional criminal prosecution and held that "respondent was put in jeopardy at the adjudicatory hearing. Jeopardy attached when respondent was `put to trial before the trier of the facts' ... that is, when the [j]uvenile [c]ourt, as the trier of the facts, began to hear evidence." 421 U.S. at 531, 95 S.Ct. 1779. See, also, U.S. v. Parker, 989 F.2d 948 (8th Cir.1993).
On July 13, 1993, the juvenile court inquired into whether McCracken understood his constitutional rights. Prior to proceeding to adjudication, the juvenile court ordered McCracken to undergo a preadjudication evaluation, which was requested by the State. On August 24, upon completion of the preadjudication evaluation, the juvenile court ordered further evaluations to determine if McCracken was competent to stand trial. After the further evaluations were ordered by the juvenile court, the State made a motion on November 3, 1993, to dismiss the juvenile petition. At the hearing on the State's motion, the juvenile court again refused to accept McCracken's proposed "no contest" plea and granted the motion to dismiss.
The record reflects that the only inquiries conducted by the juvenile court were into McCracken's competency to stand trial and whether McCracken understood his constitutional rights. Under Breed v. Jones, supra, it is clear that McCracken was never "`put to trial before the trier of the facts'" and that the "[j]uvenile [c]ourt, as the trier of the facts, [never] began to hear evidence." 421 U.S. at 531, 95 S.Ct. 1779. Thus, because McCracken's juvenile case did not proceed to adjudication, we determine that jeopardy had not attached in the juvenile court when the State's motion to dismiss was sustained. We therefore conclude that McCracken's subsequent murder trial did not violate the Double Jeopardy Clause of either the U.S. Constitution or the Nebraska Constitution.
Based upon the foregoing analysis, any plea in bar filed by McCracken's trial counsel would have been properly overruled by the district court. Consequently, McCracken has failed to establish how he was prejudiced by trial counsel's failure to file a plea in bar, and we determine that his fifth assignment of error is likewise without merit.
*926 VI. CONCLUSION
The district court did not abuse its discretion in retaining jurisdiction over McCracken's case and properly determined that the evidence adduced at trial did not warrant a jury instruction on a lesser degree of homicide than murder in the first degree. Furthermore, McCracken's claims that he received ineffective assistance of trial counsel are without merit. Having considered all of McCracken's assignments of error and finding them to be without merit, we affirm the judgment and the sentence imposed by the district court.
AFFIRMED.
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632 F.Supp.2d 159 (2009)
Ronald SLUSARSKI, Plaintiff,
v.
LIFE INSURANCE COMPANY OF NORTH AMERICA, Cigna Group Insurance, and Assa Abloy, Inc. Long-Term Disability Plan, Defendants.
No. CA 08-292 S.
United States District Court, D. Rhode Island.
July 9, 2009.
*162 J. Scott Kilpatrick, Chisholm Chisholm & Kilpatrick LLP, Providence, RI, for Plaintiff.
Brooks R. Magratten, Pierce Atwood LLP, Providence, RI, for Defendants.
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR PROTECTIVE ORDER
DAVID L. MARTIN, United States Magistrate Judge.
Before the Court are two motions for protective orders filed by Defendants Life Insurance Company of North America ("LINA"), Cigna Group Insurance,[1] and Assa Abloy, Inc. Long-Term Disability Plan (the "Plan") (collectively "Defendants"). See Defendants' Motion for Protective Order (Doc. # 12) ("First Motion"); Defendants' Motion for Protective Order (Doc. # 15) ("Second Motion") (collectively, the "Motions"). By the First Motion, Defendants seek to block the Rule 30(b)(6) deposition of LINA noticed by Plaintiff Ronald Slusarski ("Plaintiff" or "Mr. Slusarski"). See Memorandum in Support of Defendants' Motion for Protective Order ("Defendants' Mem. First Motion") at 1. By the Second Motion, Defendants seek to block discovery sought by Plaintiff via two sets of interrogatories, two sets of requests for production, and one request for admissions. See Second Motion at 1. The Court conducted hearings on the Motions on May 29 and June 18, 2009. Thereafter, it took the matters under advisement.
Facts
The Amended Complaint alleges that Plaintiff was an employee of Assa Abloy, Inc. ("Assa Abloy"), and also an employee of a subsidiary corporation, Assa Abloy Architectural Hardware, Inc. ("AAAH").[2] Amended Complaint (Doc. # 26) ¶¶ 9, 14. As a result of his employment, Plaintiff was a participant in the Plan, an employee *163 welfare benefit plan regulated by ERISA.[3]See id. ¶¶ 11, 13, 14-15. The Plan was established by Assa Abloy and maintained for the benefit of its employees and those of its numerous subsidiary and affiliated companies.[4]See id. ¶¶ 11, 13, 15. Among other features, the Plan, which was insured and administered by LINA, provided long term disability ("LTD") benefits to participants. See id. ¶ 11, 16. The Plan listed approximately twenty-two classifications under which Plan participants would fall depending on which subsidiary or affiliation of Assa Abloy was their employer. See id. ¶¶ 17, 70, 86, 87.
According to Plaintiff, he was employed as a Director of Product Development Engineering for AAAH until he became fully disabled in September, 2005, due to degenerative and progressive spinal stenosis and related symptoms. See id. ¶ 20. In August 2005, he applied for and subsequently received short term disability benefits under the Plan. See id. ¶ 21. Thereafter, Plaintiff filed for LTD benefits under the Plan and for a waiver of premium benefits on his life insurance policy. See id. ¶ 23. In April of 2006, LINA denied Plaintiff's claim for benefits. See id. ¶ 24. Plaintiff appealed LINA's denial of benefits in October of 2006. See id. ¶ 26. After several extension requests by both LINA and Plaintiff, on February 2, 2007, LINA forwarded a letter to Plaintiff, affirming the previous denials of waiver of premium benefits and LTD benefits. See id. ¶ 27.
In August 2007, Plaintiff requested a review of the denial of benefits. See id. ¶ 28. Over the next several months, Plaintiff, through his attorney, requested documents pertaining to the Plan and forwarded further medical documentation to LINA. See id. ¶¶ 31-32. Plaintiffs second appeal was completed on June 9, 2008. See id. ¶ 32. When he did not receive a determination or notice of an extension with respect to this appeal within forty-five days, Plaintiff filed this action on August 1, 2008. See id. ¶¶ 34-35.
In his Complaint (Doc. # 1), Plaintiff requested payment of LTD benefits due under the policy, waiver of premium payments from the date of disability with reimbursement for premiums paid plus interest, prejudgment interest on all benefits that accrued prior to judgment, attorney's fees, and costs of suit. See Amended Complaint ¶ 36. Within days of filing suit, Defendants reversed the previous denial and awarded benefits.[5]See id. ¶ 37. However, Plaintiff alleges that the benefits awarded "are disproportionately lower than the benefits he should receive relative to his predisability income level, and to the benefits enjoyed by other Plan participants." Id. ¶ 88.
In his Amended Complaint, Plaintiff alleges that LINA improperly classified him *164 as a Class 1 Plan participant,[6]see id. ¶ 77, that this classification resulted in the lowest possible level of benefits under the Plan, see id. ¶¶ 40, 73, and that the decision to so classify him was wrongful and contrary to Defendants' fiduciary duty to Plaintiff, see id. ¶ 79. In particular, Plaintiff complains that as a result of being placed in Class 1 his benefits are limited to $5,000.00 per month (about 43% of his predisability earnings), see id. ¶¶ 42, 75, that other classes under the Plan have substantially higher caps, such as $10,000.00 and $12,000.00, see id. ¶ 76, and that if the "Maximum Monthly Benefit" limitation contained in Class 1 had not limited his benefits, he would have been entitled to receive approximately $7,000.00 per month,[7]see id. ¶ 42. Plaintiff further complains that he has continuously met the Plan's definition of "disabled," id. ¶ 38, since the onset of his disability and that, despite this, LINA has refused to pay interest on back benefits, as well as attorney's fees and costs of suit, see id. ¶ 44.
In Count I, Plaintiff seeks interest on the disability payments which were paid retroactively. See id. ¶¶ 54-56. As support for this claim, Plaintiff states that LINA had the use of this money during the period benefits were not paid and that the payment of interest on this money would serve to make him whole. See id. ¶¶ 55-56. In Count II, Plaintiff seeks attorney's fees and costs of suit. See id. ¶ 59, 62. As support for this claim, Plaintiff states that Defendants' refusal to pay benefits until litigation commenced was wrongful and contrary to Defendants' fiduciary duty to Plaintiff. See id. ¶ 60. In Counts III and IV, Plaintiff challenges Defendants' decision to classify him as a Class 1 participant, see id. ¶¶ 77, 79, and he indicates that he seeks "Recovery of Benefits Due," id. (parenthetical subtitles appearing beneath Counts III and IV).
The Discovery Sought
Plaintiff seeks to conduct discovery regarding the following general topics: 1) why AAAH was not listed among the classes designated in the Plan, see, e.g., Defendants' Mem. First Motion, Attachment ("Att.") A (Notice to Take Deposition[8]) ¶ 4; Memorandum in Support of *165 Defendants' Motion for Protective Order ("Defendants' Mem. Second Motion"), Att. C (Plaintiff Ronald Slusarki's Interrogatories Directed to Defendant Life Insurance Company of North America a/k/a Cigna Group Insurance ("Interrogatories to LINA")), Interrogatory Number ("Interrog. No.") 9; 2) the identities of other AAAH employees and the classes under which they would be placed under the Plan, see, e.g., Defendants' Mem. First Motion, Att. A ¶ 5; Defendants' Mem. Second Motion, Att. E (Plaintiff Ronald Slusarski's Interrogatories Directed to Defendant Assa Abloy, Inc. Long-Term Disability Plan ("Interrogatories to Plan")), Interrog. Nos. 1, 2; 3) why Plaintiff was classified under the Plan as being in Class 1, see id., Interrog. No. 4; 4) whether Defendants have paid interest and/or attorneys' fees on an award of retroactive benefits, see Defendants' Mem. First Motion, Att. C, Interrog. Nos. 1-4; Defendants' Mem. Second Motion, Att. E, Interrog. Nos. 5-8; and 5) the existence of income and other incentives and disincentives at LINA with respect to encouraging the denial of claims and appeals, see Defendants' Mem. Second Motion, Att. B (Plaintiff Ronald Slusarski's Requests for Production Directed to Defendant Life Insurance Company of North America a/k/a Cigna Group Insurance ("Requests for Production to LINA")), Request No. 4.
Law
"ERISA benefit-denial cases typically are adjudicated on the record compiled before the plan administrator. Because full-blown discovery would reconfigure that record and distort judicial review, courts have permitted only modest, specifically targeted discovery in such cases." Denmark v. Liberty Life Assurance Co. of Boston, 566 F.3d 1, 10 (1st Cir.2009). Thus, "some very good reason is needed to overcome the strong presumption that the record on review is limited to the record before the administrator." Id. (quoting Liston v. Unum Corp. Officer Sev. Plan, 330 F.3d 19, 23 (1st Cir.2003)).
Where the entity that administers an employee benefit plan both determines whether an employee is eligible for benefits and pays benefits out of its own pocket, this dual role creates a structural conflict of interest. Metropolitan Life Ins. Co. v. Glenn, ___ U.S. ___, 128 S.Ct. 2343, 2348, 171 L.Ed.2d 299 (2008); see also Denmark v. Liberty Life Assurance Co. of Boston, 566 F.3d at 5 n. 2 (calling "such instances structural conflicts, in contradistinction to actual conflicts (i.e., instances in which the fiduciary's decision was in fact motivated by a conflicting interest)"). "[C]ourts are duty-bound to inquire into what steps a plan administrator has taken to insulate the decisionmaking process against the potentially pernicious effects of structural conflicts." Denmark v. Liberty Life Assurance Co. of Boston, 566 F.3d at 9.
Where the administrative record does not contain the procedures which the plan administrator has used to prevent or mitigate the effect of structural conflict, conflict-oriented discovery may be permitted to reveal those procedures. Id. at 10. However, "such discovery must be allowed sparingly and, if allowed at all, must be narrowly tailored so as to leave the substantive record essentially undisturbed." Id. But see id. at 12 (Lipez, J., concurring)("Decreeing in this case that such *166 discovery must be allowed sparingly, or confined to certain categories, is an unwarranted signal that discovery into the existence of an actual conflict is disfavored.").
Standard of Review
In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court held that when an ERISA-regulated plan vests discretion in the plan administrator, the latter's resolution of claims must be reviewed deferentially. Denmark v. Liberty Life Assurance Co. of Boston, 566 F.3d at 5. Absent such a delegation of discretionary authority, a plan administrator's decisions are to be reviewed de novo.[9]Id. at 6. Where plan documents delegate discretionary authority to the plan administrator (whether or not structurally conflicted), courts should review benefit-denial decisions for abuse of discretion, considering any conflict as one of a myriad of relevant factors. Id. at 7.
Discussion
Plaintiff notes that before this action was filed, the only dispute was whether he was disabled. See Plaintiff's Memorandum in Support of His Opposition to Defendants' Motions for Protective Order (Doc. # 18) ("Plaintiff's Mem.") at 3. As a result, Plaintiff contends that the administrative record is incomplete "as to the three (3) principal topics on which discovery is sought: (a) proper classification; (b) payment of interest on back benefits; and (c) payment of attorney fees on claim reversals and claim reversals after litigation commenced." Id. at 4. Plaintiff maintains that his "discovery is tailored to fill these gaps in the evidentiary record."[10]Id.
Proper Classification
Plaintiff claims to have been an employee of AAAH, a subsidiary which is not included in the list of affiliates which are covered under the Plan. See Plan Doc. at 000087 (listing affiliates); see also id. at 000006-000007 (listing Classes of Eligible Employees). Defendants, on the other hand, contend that Plaintiff was an employee of Sargent Manufacturing Co., whose employees are specifically identified as Class 1 employees under the Plan. See Plan Doc. at 000006. Plaintiff argues that:
The lack of Mr. Slusarski's class designation in the policy may be an ambiguity in the policy because he could have fit into several other categories that result in greater LTD benefits, as the benefits are not artificially lowered by a $5,000.00 cap. If the Policy is ambiguous then, in accord with the doctrine of contra proferentem,[11] Mr. Slusarski *167 should receive the benefit of the lack of clarity and ambiguity in the Plan document. The Plaintiff's discovery seeks information from LINA about its decision making process and why it placed Mr. Slusarski's claim under Class # 1.
Plaintiff's Mem. at 4-5.
The Court is not persuaded by this argument. Although Plaintiff suggests that there may be an ambiguity in the Plan, in point of fact there is no ambiguity. Employees of AAAH are not mentioned in the Plan. Although Plaintiff hypothesizes that "he could have fit into several other categories that result in greater LTD benefits...," id. at 4, he does not actually contend that he falls within any of these categories. In particular, Plaintiff does not claim that Defendants should have classified him as a Class 7 employee (whose disability benefits are capped at $10,000 per month, see Plan Doc. at 000024) or a Class 17 employee (whose disability benefits are capped at $12,000 per month, see id. at 000055). Indeed, Plaintiffs failure to make such claim appears to be a tacit recognition that he does not meet the requirements for either of these classes. The Plan Doc. defines Class 7 employees as "[a]ll active, Fulltime salaried Employees of Besam Automated Entrance Systems, Inc.," Plan Doc. at 000006, and Class 17 employees as "[a]ll active, Full-time Employees of Yale Security Inc. and YSG Door Security Consultants except any person covered under a collective bargaining unit," id. at 000007. There is no suggestion by Plaintiff that he was employed by any of these entities.
Plaintiffs real complaint here is the failure of the Plan to include employees of AAAH. However, plan design does not implicate fiduciary duties under ERISA. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 444, 119 S.Ct. 755, 763, 142 L.Ed.2d 881 (1999) ("ERISA's fiduciary duty requirement simply is not implicated where [the company], acting as the Plan's settlor, makes a decision regarding the form or structure of the Plan such as who is entitled to receive Plan benefits and in what amounts, or how such benefits are calculated."); Haberern v. Kaupp Vascular Surgeons Ltd. Defined Benefit Pension Plan, 24" F.3d 1491, 1498 (3rd Cir.1994) ("ERISA's concern is with the administration of benefit plans and not with the precise design of the plan."); id. ("[A]n employer is free to develop an employee benefit plan as it wishes because when it does so it makes a corporate management decision, unrestricted by ERISA's fiduciary duties."); Mata v. E.I. Du Pont De Nemours & Co., 456 F.Supp.2d 612, 622 (D.Del.2006) ("An employer's decisions regarding the composition or design of the plan itself, including the determinations of the form or structure of the plan, do not implicate the employer's fiduciary duties."); see also Edes v. Verizon Commc'ns., Inc., 417 F.3d 133, 140 n. 10 (1st Cir.2005) ("Plaintiffs' structural defect claim arising out of an alleged structural defect in plan design (as distinct from a structural defect in plan administration) is not cognizable under ERISA § 404."). Thus, the failure of the Plan to include employees of AAAH, the entity which *168 Plaintiff claims was his employer, does not give rise to a cause of action for breach of fiduciary duty. See Tinley v. Gannett Co., No. CIV.A.99-484 GMS, 2002 WL 531556, at *4 (D.Del. Mar. 25, 2002) (holding that company's decision to design its plan to exclude independent contractors did not breach any fiduciary duty and summary judgment for defendants was, therefore, appropriate); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91, 103 S.Ct. 2890, 2897, 77 L.Ed.2d 490 (1983) ("ERISA does not mandate that employers provide any particular benefits, and does not itself proscribe discrimination in the provision of employee benefits."); Walther v. Pension Plan for Salaried Employees of the Dayton-Walther Corp., 880 F.Supp. 1170, 1187 (S.D.Ohio 1994) ("[A]n employer's decision to provide a less favorable plan of benefits and related decisions regarding plan design fall into the category of settlor acts and are not subject to review under the fiduciary standards of ERISA.").
Accordingly, to the extent that Plaintiff seeks to conduct discovery with respect to his classification under the Plan, the Motions are granted.[12]
Payment of Interest on Back Benefits
Plaintiff posits that "fiduciaries (LINA in this case) have an obligation to be consistent." Plaintiffs Mem. at 7 (citing 29 C.F.R. § 2560.503-1(b)(5) (2008)[13]).[14] Building on this premise, Plaintiff argues that "[i]n order to ensure that Mr. Slusarski is treated consistently with other beneficiaries with regard to interest on withheld benefits, it is necessary to know the Defendants' practice or procedure to pay, or not pay, interest on withheld benefits." Id. However, LINA's practice or procedure with respect to paying interest on withheld benefits due under other plans is certainly not relevant. LINA's obligation is to apply "plan provisions . . . consistently with respect to similarly situated claimants," 29 C.F.R. § 2560.503-1(b)(5), meaning the provisions of this Plan, not all other plans. Thus, to the extent that Plaintiff seeks discovery with respect to LINA's practice or procedure regarding payment of interest on benefits due under other plans, the Motions are granted.
As for discovery regarding LINA's practice or procedure with respect to the payment of interest on benefits due under this Plan, Defendants argue that LINA's duty is to administer claims in accordance with the governing plan documents and applicable law. See Defendants' Reply at 4; see also American Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d *169 574, 579 (3rd Cir.1995) (rejecting plaintiff's breach of fiduciary duty claim because "[t]he duty here in question is no more than the duty to administer an ERISA-covered plan in accordance with the plan's terms"); 29 U.S.C. § 1104(a).[15] Defendants note that Plaintiff is not able to point to any provision of the Plan or ERISA mandating the payment of interest on LTD benefits not paid while the claim administrator undertakes an administrative review. See Defendants' Reply at 5. Defendants accordingly contend that even if discovery revealed evidence that LINA has paid interest to other beneficiaries under the Plan, such evidence would not aid Plaintiff's case. See id. at 4.
As to this point, the Court disagrees. If discovery reveals that LINA has, under this Plan, reversed a decision denying benefits, awarded benefits retroactively, and paid interest on the benefits for the period during which they were not paid, LINA's unwillingness to do so with respect to Plaintiff would at least raise a question whether the Plan provisions have been applied consistently with respect to similarly situated claimants. In other words, LINA would not be fulfilling its duty to apply the Plan provisions consistently if it denies interest to Plaintiff on the ground that neither the Plan nor ERISA provides for the payment of such interest while paying interest to other similarly situated beneficiaries in the absence of such authority. Accordingly, to the extent that Plaintiff seeks discovery with respect to whether LINA has paid interest to other beneficiaries under the Plan where a decision denying benefits has been reversed (by LINA) and the benefits have been awarded retroactively, the Motions are denied.[16]
Payment of Attorney's Fees
With respect to Plaintiffs request for discovery on claim reversals and claim reversals after litigation commenced, the Court is not convinced that Plaintiff has shown a good reason for such discovery. The question of whether Plaintiff is entitled to an award of attorney's fees is a question of law which is determined on the administrative record. See Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 223 (1st Cir.1996) ("In ERISA cases the district court may grant prejudgment *170 interest in its discretion to prevailing fiduciaries, beneficiaries, or plan participants. This judicial discretion encompasses not only the over-arching question whether to award prejudgment interest at allbut also subsidiary questions that arise after the court decides to make an award, including matters such as the period and rate to be used in calculating interest."). In determining whether to award attorney's fees pursuant to 29 U.S.C. § 1132(g)(1), courts in the First Circuit apply a five factor test:
(1) the degree of bad faith or culpability of a losing party; (2) the ability of such party to personally satisfy an award of fees; (3) whether such an award would deter other persons acting under similar circumstances; (4) the amount of benefit to the action as conferred upon the members of the pension plan; and (5) the relative merits of the parties' positions.
Twomey v. Delta Airlines Pilots Pension Plan, 328 F.3d 27, 33 (1st Cir.2003).
The Court is unpersuaded that in order to apply these five factors Plaintiff needs discovery with respect to the payment of attorney's fees. Accordingly, to the extent that Plaintiff seeks such discovery, the Motions are granted.[17]
Conflict of Interest Discovery
Plaintiff also seeks discovery with respect to whether LINA had a conflict of interest with respect to its handling of claims. As benefits have now been awarded to Plaintiff (and the Court has already determined that there is no ambiguity in the Plan regarding employee classification), the only purpose for allowing such discovery would be to enable Plaintiff to search for evidence supporting his contentions that the benefits should have been awarded earlier and that he should have been paid interest on the overdue payments. While the existence of an actual conflict of interest seems improbable given LINA's ultimate decision to pay benefits, this Court reads Denmark v. Liberty Life Assurance Co. of Boston, 566 F.3d 1 (1st Cir.2009), as authorizing discovery where a "plan administrator has failed to detail its procedures ...," id. at 10. The instant case appears to fall into the category where the administrative record does not include "any evidence with respect to [LINA's] conflict-ameliorating procedures." Id. Thus, the Court concludes that it should exercise its discretion and grant some discovery on this issue. Bearing in mind that discovery on the issue of whether a structural conflict has morphed into an actual conflict "must be allowed sparingly and ... narrowly tailored so as to leave the substantive record essentially undisturbed," id., the Court grants the following discovery:
1. The Rule 30(b)(6) deposition of LINA of the person or persons most knowledgeable regarding "[t]he income and other incentives and disincentives in place at LINA and/or Cigna with respect to encouraging the denial of claims and appeals or, on the other hand[,] to encourage accurate claims and appeals determinations." Notice to Take Deposition ¶ 6;
2. Plaintiffs request for production by LINA of the following documents: "All documents evidencing income and other incentives and disincentives in place at LINA with respect to encouraging the denial of claims and appeals or, on the other *171 hand[,] to encourage accurate claims and appeals determinations." Requests for Production to LINA ¶ 4;
3. Plaintiff's request to propound the following interrogatory to LINA: "Provide all income and other incentives and disincentives in place at LINA with respect to encouraging the denial of claims and appeals or, on the other hand[,] to encourage accurate claims and appeals determinations." Interrogatories to LINA, Interrog. No. 10.
Accordingly, to the extent that the Motions seek to prevent Plaintiff from conducting the conflict of interest discovery authorized above, the Motions are denied.
Request for Admissions
Plaintiff notes that Defendants do not mention Plaintiff's Request for Admissions. See Plaintiffs Sur-Reply at 4. Plaintiff argues that answering these requests would not burden Defendants and would only serve to increase judicial efficiency. See id. In large measure, the Court agrees. LINA shall respond to the request for admissions, except that Request Nos. 31-34 are modified so that they only apply to benefits awarded under this Plan. To the extent the Motions seek to prevent LINA from having to respond to the requests for admissions as modified above, the Motions are denied.
Summary
To the extent that Plaintiff seeks discovery with respect to proper classification, payment of interest on benefits due under other plans, and attorney's fees, the Motions are granted. To the extent that Plaintiff seeks discovery with respect to: a) the payment of interest on benefits awarded under this Plan, b) LINA's policies, practices, and procedures which prevent, mitigate, or exacerbate its structural conflict, and c) the request for admissions as modified by this Memorandum and Order, the Motions are denied.
So ordered.
NOTES
[1] On June 10, 2009, Plaintiff filed an Amended Complaint (Doc. # 26) which did not include Cigna Group Insurance as a named defendant. The parties have stipulated that "Cigna Group Insurance is not a legal entity and is merely a trade name used by various insurance companies affiliated with Cigna Corp." Stipulation (Doc. # 25).
[2] Defendants deny that Plaintiff was an employee of Assa Abloy Architectural Hardware, Inc. ("AAAH"). See Answer to the Amended Complaint (Doc. # 27) ¶ 7. Defendants appear to contend that Plaintiff was employed by another entity, Sargent Manufacturing Company:
Mr. Slusarski reported to LINA that he had been employed by "Sargent Manufacturing Co./ ASSA ABLOY, Inc." and that he had been dealing with the Sargent Manufacturing Co./ ASSA Abloy, Inc. Personnel Department regarding his employee benefits. LINA communicated with the Sargent Manufacturing Company to verify Mr. Slusarski's salary. Employer information in the claim file identifies Mr. Slusarski as having worked at the Sargent Manufacturing Company location of Assa Abloy, Inc. LINA received a short term disability claim form for Mr. Slusarski from Sargent Manufacturing Co. LINA received a job description and insurance record card from Sargent Manufacturing Company. Finally, LINA was informed that Mr. Slusarski's short-term disability benefits were administered by "Sargent."
Memorandum in Support of Defendants' Motion for Protective Order ("Defendants' Mem. First Motion") at 4-5.
[3] ERISA is the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1461.
[4] At the May 29, 2009, hearing, the Court requested that Plaintiff's counsel provide a copy of the Assa Abloy, Inc. Long-Term Disability Plan. He subsequently did so. The Court has designated this document as a hearing exhibit, and it is cited herein as "Plan Doc."
[5] Plaintiff indicates that the benefits were awarded retroactively for the period of April 1, 2006, through July 31, 2008. See Memorandum in Support of Defendants' Motion for Protective Order ("Defendants' Mem. Second Motion"), Attachment ("Att.") A (Plaintiff Ronald Slusarski's Request for Admissions Directed to Defendant Life Insurance Company of North America A/K/A Cigna Group Insurance), Request No. 23. Short Term Disability benefits appeared to have been paid from October of 2005 though March of 2006. See id., Request No. 24.
[6] Class 1 is defined in the Plan Doc. as "All active, Full-time salaried Employees of ASSA ABLOY, Inc. (Corporate), Sargent Manufacturing Company, Assa, Inc., Essex Industries and ASSA ABLOY Sales & Marketing." Plan Doc. at 000006.
[7] According to Plaintiff:
Generally, each class was entitled to a percentage (60% or 66.7%) of earnings or the "maximum monthly benefit," whichever was less. The "maximum monthly benefit" for each class varied substantially (e.g., Class # 1 = $5,000; Class # 10 = $6,000; Class # 16 = $8,000; Class # 7 = $10,000; and Class # 17 = $12,000). Mr. Slusarski was a highly compensated employee (Director of Product Development Engineering). He was earning $140,000.00 per year. At 66.7% his benefits would be $7,781.00 per month. At 60% his benefits would be $7,000.00 per month.
Plaintiff's Memorandum in Support of His Opposition to Defendants' Motions for Protective Order (Doc. # 18) ("Plaintiff's Mem.") at 4 n. 2.
[8] Plaintiff has noticed six topics for the Rule 30(b)(6) deposition of LINA: 1) LINA's policy, practice, or procedure with respect to the payment of interest on retroactive benefits paid as a result of a claimant's successful appeal of a Long Term Disability ("LTD") denial/ termination; 2) LINA's policy, practice, or procedure where an insured does not clearly fall under a designated employee class in a LTD plan; 3) LINA's policy, practice, or procedure where an insured plan participant's salary is disproportionate to the "maximum monthly benefit" designated under the plan; 4) the reason that AAAH was not listed among the classes designated in the LTD plan at issue in this case; 5) the identities of all other Assa Abloy Architectural Hardware, Inc., employees for the past five years and the classes under which they would be placed under the LTD plan; and 6) the income and other incentives and disincentives in place at LINA with respect to encouraging the denial of claims and appeals or, on the other hand, to encourage claims and appeals determinations. See Defendants' Mem. First Motion, Att. A (Notice to Take Deposition).
[9] Defendants state that "[i]n this case, the policy directs that satisfactory proof of disability must be provided to LINA and therefore this Court's review will not be de novo, it will be deferential." Defendants' Memorandum in Reply to Plaintiff's Objection to Defendants' Motions for Protective Order (Doc. # 20) ("Defendants' Reply") at 6. Plaintiff appears to at least partially dispute this assessment. See Plaintiff's Memorandum in Support of His Opposition to Defendants' Motions for Protective Order (Doc. # 22) ("Plaintiff's Sur-Reply") at 3 (asserting that "this case is to be reviewed de novo without any deference whatsoever to LINA's `determinations' regarding Classification, Interest and Attorneys Fees"). To the extent that the parties disagree about the applicable standard of review, such disagreement does not affect the Court's resolution of the instant Motions.
[10] In a footnote to this assertion, Plaintiff states that his "Request for Admissions to LINA is intended to narrow the issues and facts in dispute to posture the case for potential summary judgment." Plaintiff's Mem. at 4 n. 1.
[11] The contra proferentem doctrine holds that the terms of an insurance policy must be strictly construed against the insurer and in favor of the insured. Stamp v. Metropolitan Life Ins. Co., 531 F.3d 84, 93 (1st Cir.2008). However, it is applicable only when courts undertake de novo review of Plan interpretations. Id.
When the administrators of a plan have discretionary authority to construe the plan, they have the discretion to determine the intended meaning of the plan's terms. In making a deferential review of such determinations, courts have no occasion to employ the rule of contra proferentem. Deferential review does not involve a construction of the terms of the plan; it involves a more abstract inquiry-the construction of someone else's construction.
Id. at 93-94.
[12] To be clear, if Plaintiff contended that he should have been classified under another specific class, for example, Class 17, the possibility that other employees of AAAH may have been classified as Class 17 employees would be highly relevant, and the Court would allow such discovery. However, as explained above, Plaintiff's complaint is that the Class under which he has been classified has limitations which he believes are unfair and inappropriate given the nature of his position. This complaint goes to plan design and not plan administration. See Edes v. Verizon Commc'ns., Inc., 417 F.3d 133, 140 n. 10 (1st Cir.2005). Thus, the Court declines to permit discovery regarding proper classification.
[13] The Court has corrected this citation from "29 C.F.R. § 2650.503-1(b)(5)," Plaintiff's Mem. at 7, to 29 C.F.R. § 2560.503-1(b)(5).
[14] 29 C.F.R. § 2560.503-1(b)(5) provides:
(5) The claims procedures contain administrative processes and safeguards designed to ensure and to verify that benefit claim determinations are made in accordance with governing plan documents and that, where appropriate, the plan provisions have been applied consistently with respect to similarly situated claimants.
29 C.F.R. § 2560.503-1(b)(5) (2008).
[15] 29 U.S.C. § 1104(a), which addresses fiduciary duties, states:
(a) Prudent man standard of care
(1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and
(A) for the exclusive purpose of:
(I) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims;
(C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and
(D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter.
29 U.S.C. § 1104(a) (bold added).
[16] If Plaintiff wishes to take a Rule 30(b)(6) deposition of LINA with respect to this topic, such deposition shall be taken where the witness works or resides. See Salter v. Upjohn Co., 593 F.2d 649, 651-52 (5th Cir.1979) ("It is well settled that `(t)he deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business,' especially when, as in this case, the corporation is a defendant.")(quoting 8 C. Wright & A. Miller, Federal Practice & Procedure § 2112 at 410 (1970)).
[17] Unlike interest on overdue benefits, which it is at least conceivable that Defendants might pay without court involvement, the payment of attorney's fees without court involvement is not a reasonable possibility. Thus, the argument that Plaintiff needs this discovery in order to determine whether he is being treated differently than other similarly situated beneficiaries does not apply.
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856 F.2d 185
U.S.v.Hallsims Industrial Components, Inc., Sims (Ronald G.), Hall (Edward)
NO. 88-1024
United States Court of Appeals,Third Circuit.
JUL 22, 1988
1
Appeal From: E.D.Pa.,
674 F.Supp. 1161
2
AFFIRMED.
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NO. 07-02-0454-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 15, 2003
______________________________
KAREN SNOW, APPELLANT
V.
RICHARD ROSEN, M.D., SWAT SURGICAL ASSOCIATES
AND DAVID HAYMES, JR., M.D., APPELLEES
_________________________________
FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2000-512,239; HONORABLE BLAIR CHERRY, JR., JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
ABATEMENT
Appellant Karen Snow timely appealed the trial court’s order granting appellee David Haymes, Jr., M.D.’s motion for summary judgment and order granting the motion to dismiss of appellees Richard Rosen, M.D. and SWAT Surgical Associates. Both the clerk’s record and reporter’s record have been filed. On April 24, 2003, appellant filed a notice of bankruptcy requesting that the appeal be suspended pursuant to Rule 8.2 of the Texas Rules of Appellate Procedure. Attached to the motion is a copy of the voluntary petition in bankruptcy filed by Snow on October 3, 2002. Pursuant to 11 U.S.C. § 362, any further action in this appeal is automatically stayed.
Thus, for administrative purposes, this appeal is removed from the docket and abated. Any documents filed subsequent to the bankruptcy petition will remain pending until the appeal is reinstated. The appeal will be reinstated upon proper showing the stay has been lifted and a request for specific action by this Court.
Accordingly, the appeal is abated.
Per Curiam
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541 U.S. 1082
GONZALEZ-EDEZA, AKA PELAEZ-MORGANv.UNITED STATES.
No. 03-10075.
Supreme Court of United States.
June 1, 2004.
1
C. A. 10th Cir. Certiorari denied. Reported below: 359 F. 3d 1246.
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United States Court of Appeals
Fifth Circuit
UNITED STATES COURT OF APPEALS FILED
for the Fifth Circuit May 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-30469
PAMELA VAN BUREN,
Plaintiff-Appellant,
VERSUS
STEPHANIE CAVE, M.D.; ABC INSURANCE COMPANY; SHERRY BLACKWELL;
and JERI MURPHY,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
(3:04-CV-152)
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Appellant Pamela Van Buren (“Van Buren”) appeals the
dismissal of her § 1983 lawsuit. For the reasons stated below, we
reverse and remand to the district court for further proceedings.
I.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
1
In 2001, Van Buren sought the medical services of Dr.
Stephanie Cave (“Dr. Cave”) for a “serious illness” that
“impaired her ability to function.” At or around the time medical
services were rendered, Van Buren wrote three checks to Dr. Cave:
(1) a $170.00 check for various herbs and supplements; (2) a
$500.00 check to cover the $375.00 office visit plus a portion of
the costs for testing; and (3) a $2832.00 check to cover the
remaining costs for testing. According to Van Buren, she told the
doctor’s office that she did not have $2832.00 in her account at
that time to cover the third check and requested that they
refrain from cashing the third check until she contacted them.
All three checks were promptly presented for payment and the
$2832.00 check was returned unpaid. Dr. Cave’s office later
apologized for presenting the $2832.00 check for payment and
requested and received a replacement check for $2862.00 (which
included a $30.00 charge for the returned check). When Van Buren
gave Dr. Cave’s office the replacement check, she again requested
that they refrain from presenting the check until she notified
them that she had sufficient funds in her account. Ten months
passed, and Dr. Cave’s office presented the replacement check for
payment without contacting Van Buren. The check was returned
unpaid.
Shortly thereafter, Sherry Blackwell (“Blackwell”), one of
Dr. Cave’s employees, contacted the District Attorney for East
Baton Rouge Parish, Louisiana for the purpose of bringing charges
against Van Buren for writing a worthless check. Jeri Murphy
(“Murphy”), Ex Officio Notary Public for the 19th Judicial
District Court, prepared and notarized an affidavit in which
2
Blackwell swore that Van Buren “unlawfully and feloniously, with
intent to defraud, violated LA R.S. 13:71, by issuing a worthless
check in the amount of $2862.00 drawn on Whitney [Bank] knowing
at the time of issuing said check there was not sufficient credit
with said bank for the payment in full of such check upon its
presentation.” Blackwell also swore that the check was returned
“ACCOUNT CLOSED.”2 Based on this affidavit, the district
attorney’s office procured an arrest warrant, had Van Buren
arrested, and prosecuted Van Buren for issuing worthless checks.
Ultimately, Van Buren was acquitted of all charges. She then
brought a civil lawsuit against Murphy, Dr. Cave, and Blackwell
in federal district court.3
In her complaint, Van Buren alleged civil rights violations
under 42 U.S.C. § 1983 and false arrest, malicious prosecution,
and intentional infliction of emotional distress under Louisiana
state law. Murphy filed a motion to dismiss under Rule 12(b)(6),
arguing that any actions she took with respect to Van Buren’s
case (and she denied taking any illegal actions) were taken as an
employee of the District Attorney in furtherance of the District
Attorney’s prosecutorial duties and that accordingly she was
entitled to absolute immunity.4 The district court granted
2
In her complaint, Van Buren emphasizes that the check was
returned “NSF,” indicating insufficient funds in her account. This
is relevant, according to Van Buren, because the prosecutor had a
lower burden of proof under the facts sworn by Blackwell.
3
Van Buren also named Dr. Cave’s insurer, ABC Insurance
Company, as a defendant. She does not pursue ABC Insurance Company
on appeal.
4
Murphy argued in the alternative (1) that as a state
actor, she was not a “person” under § 1983 subject to suit and (2)
3
Murphy’s motion and dismissed her as a defendant. The district
court subsequently dismissed the remainder of Van Buren’s claims
sua sponte for lack of jurisdiction. According to the court,
federal jurisdiction was lacking once Murphy was dismissed
because the remaining defendants were not state actors subject to
suit under § 1983 and the court did not have independent
jurisdiction over the state law claims. Van Buren timely filed a
notice of appeal.
II.
This Court reviews dismissals for lack of subject matter
jurisdiction and failure to state a claim de novo, construing the
dismissed complaint in the light most favorable to the plaintiff
and accepting all well-pleaded facts as true. See Johnson v.
Hous. Auth. of Jefferson Parish, 442 F.3d 356, 359 (5th Cir.
2006).
In her first point of error, Van Buren argues that the
district court erred by dismissing Murphy as a defendant on
grounds of absolute immunity. She contends that Murphy is not
entitled to absolute immunity with respect to her actions in
initiating and pursuing judicial proceedings against Van Buren
because in so doing, Murphy knowingly prepared and notarized a
false affidavit. Van Buren equates knowingly preparing and
notarizing a false affidavit with fabricating false evidence, and
she cites Buckley v. Fitzsimmons, 509 U.S. 259, 275 (1993), for
the proposition that prosecutorial immunity is not available to a
that she was entitled to qualified immunity because she acted in
good faith. The district court did not address these alternative
grounds for dismissal.
4
prosecutor who “fabricat[es] false evidence during the
preliminary investigation of an unsolved crime.” Murphy does not
present a brief on appeal.
Generally, a prosecutor is entitled to absolute immunity “in
initiating a prosecution and in presenting the state’s case.”
Buckley, 509 U.S. at 270 (citing Imbler v. Pachtman, 424 U.S.
409, 431 (1976)). This immunity would even protect a prosecutor
who fabricated false evidence while engaging in the above
functions. See id. However, there is a fine line between “a
prosecutor’s acts in preparing for those functions, some of which
would be absolutely immune, and his acts of investigation or
‘administration,’ which would not.” Id. In Buckley, the Supreme
Court tried to define the fine line between the prosecutor qua
investigator, who is not entitled to absolute immunity, and the
prosecutor qua advocate, who is. Id. at 270-75. In this case, Van
Buren contends that Murphy falls to the investigator side of this
fine line, and that she is therefore not entitled to absolute
immunity for her alleged fabrication of false evidence.
Assuming a notary working under the direction of a
prosecutor is entitled to the same immunity to which her boss is
entitled when she engages in conduct intimately associated with
the judicial process,5 then the issues we face are (1) whether
Murphy can be said to have fabricated false evidence under the
facts alleged in Van Buren’s complaint and (2) if Murphy can be
said to have fabricated false evidence under those facts, whether
5
Van Buren does not argue that a notary is never entitled
to absolute immunity, only that Murphy specifically is not entitled
to absolute immunity because she “fabricat[ed] false evidence.”
5
she was acting as an “investigator” or an “advocate” at that
time. We conclude that Murphy can be said to have fabricated
false evidence under the facts pleaded by Van Buren and that she
was acting as an investigator when she did. However, we think it
important to note that our decision is based only on the
allegations pleaded by Van Buren. Our decision should not be read
as a blessing of Van Buren’s claims against Murphy, and we would
not reverse if we were not bound by the mandate that we affirm
only where we can conclude that the plaintiff “would not be
entitled to relief under any set of facts or any possible theory
that he could prove consistent with the allegations in the
complaint.” See Muhammad v. Dallas County Cmty. Supervision &
Corr. Dep’t, 479 F.3d 377, 379-80 (5th Cir. 2007).
Van Buren alleges in her complaint that
(26) Defendant Blackwell swore out an affidavit for the
purpose of having Plaintiff arrested. The warrant was
prepared by and notarized by Defendant Murphy and gave
the reason for the arrest as being that the post-dated
check Plaintiff had given was given on an “ACCOUNT
CLOSED,” which affidavit was false and known by
Defendant Blackwell and Defendant Murphy to be false.
(35) . . . When Defendant Murphy prepared the false
affidavit of Defendant Blackwell, both Defendants knew
or should have known the Two Thousand Eight Hundred and
Sixty-two and No/100 ($2862.00) Dollar check was to be
held until notice it would clear and no notice had been
given. Defendant Murphy, also, knew from the check
itself that Defendant Cave had held the check for ten
(10) months before depositing it. Defendant Murphy,
also, knew that the check had been returned “NSF” but
prepared an affidavit that it was returned “ACCOUNT
CLOSED.” The district attorney had a lesser burden of
proof on an “account closed” check.
Taking these allegations as true, as we must, see Johnson, 442
6
F.3d at 359, it can be said that Murphy prepared and notarized a
false affidavit with knowledge of the document’s falsity during
the process of initiating judicial proceedings against Van Buren.
This conduct is tantamount to fabricating false evidence. Under
Buckley, the question then becomes whether Murphy was acting as
an investigator or a prosecutor when she engaged in this conduct.
One black letter rule that can be gleaned from Buckley is that “A
prosecutor neither is, nor should consider himself to be, an
advocate before he has probable cause to have anyone arrested.”
509 U.S. at 274. In Buckley, the Court held that the prosecutor
had not had probable cause to arrest the defendant at the time he
allegedly fabricated false evidence where the alleged fabrication
occurred well before a special grand jury was empaneled to
investigate the case, which in turn occurred months before the
defendant was finally arrested. Id. at 275. Here, although the
timeline is much shorter, probable cause clearly did not exist
before Blackwell approached Murphy to begin the process of
initiating proceedings against Van Buren. Accordingly, Murphy was
acting as an investigator, not an advocate, when she prepared and
notarized Blackwell’s affidavit, and the district court therefore
erred in dismissing her as a defendant under Rule 12(b)(6) on
grounds of absolute immunity. Because Murphy has not presented a
brief on appeal pursuing the alternative arguments she raised
before the district court, we leave it to that court to determine
whether Murphy may be entitled to immunity on other grounds.
Further, because the district court erred in dismissing
Murphy as a defendant, it necessarily follows that the court
erred in dismissing Van Buren’s claims against Dr. Cave and
7
Blackwell for lack of jurisdiction.
III.
For the above reasons, we REVERSE the decisions of the
district court dismissing Murphy as a defendant and dismissing
Van Buren’s claims against Dr. Cave and Blackwell, and we REMAND
for further proceedings consistent with this decision.
GARWOOD, Circuit Judge, notes his dissent.
8
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620 F.2d 288
Hootsv.Commonwealth of Pennsylvania
79-2809
UNITED STATES COURT OF APPEALS Third Circuit
4/22/80
1
W.D.Pa.
AFFIRMED
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228 Md. 394 (1962)
179 A.2d 900
HAYNES, INDIVIDUALLY AND TRADING AS JOPPA CONTRACTOR
v.
AMERICAN CASUALTY COMPANY
[No. 222, September Term, 1961.]
Court of Appeals of Maryland.
Decided April 19, 1962.
The cause was argued before HENDERSON, HAMMOND, PRESCOTT, HORNEY and SYBERT, JJ.
*395 T. Carroll Brown and Franklin Somes Tyng, with whom were A. Freeborn Brown and Gordon C. Murray, on the brief, for appellant.
William E. Brannan, with whom were Ginsberg & Ginsberg, Hyman Ginsberg and James H. Cook on the brief, for appellee.
SYBERT, J., delivered the opinion of the Court.
This appeal questions the construction given by the trial court to the term "caused by accident" in an insurance policy.
The case was submitted below upon a stipulation of facts. The appellant, Mack C. Haynes, individually and trading as Joppa Contractor (plaintiff below), had purchased a manufacturer's and contractor's liability policy from the appellee, American Casualty Company (defendant below), to cover against accident in his excavating operations. The policy includes:
"Coverage B Property Damage Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined.
"Definition of Hazards
"Division 1 Premises Operations. The ownership, maintenance or use of premises, and all operations." (Emphasis supplied.)
During excavation work in Baltimore County, appellant pointed out to his employees the property line within which the work was to be done and then left them for several hours. Upon his return he found they had encroached on adjacent property and cut down 48 trees. When the landowners sued appellant for the resulting damage, the appellee at first undertook to defend the action, but later denied liability under the policy. Appellant then engaged counsel and at the subsequent trial judgment was rendered against him for $1,648, *396 with interest and costs. When the appellee refused to pay the judgment and expenses of the suit, the instant action was filed by the appellant against the insurance company, seeking damages for breach of contract by appellee in not paying the judgment and suit expenses (first count); reimbursement for the fee incurred for private counsel in defending the landowners' suit (second count); payment of counsel fees to be incurred in the instant action (third count); and damages because appellant's bank account had been attached after appellee refused to pay the landowners' judgment (fourth count). Appellant filed a motion for summary judgment in his favor on the first and second counts and on the issue of liability under the third count, which was denied by the trial court.
On the merits the trial court found for the insurer, holding that "since the employees of the plaintiff intended to cut the trees which they did cut, the result was neither unusual nor unexpected * * *" and therefore did not come within the meaning of the clause "caused by accident" in the policy. From the judgment entered for appellee upon that finding, appellant brought this appeal, thus requiring a determination of whether the cutting of the trees on the land of another through the inadvertent act of the appellant's employees constituted injury "caused by accident" within the meaning and terms of the policy.
The parties take the following positions: The insurer says the act of the insured's employees in cutting the trees on the land of another was voluntary and intentional and the damage was the natural result of the act. Thus, it claims, even though the result may have been unforeseen and unintended, there is no coverage under the policy for damage caused by the mistake or error of the insured's employees. The insured, on the other hand, in addition to arguing that the contract when read as a whole provides coverage, also contends that the more modern view of a majority of the jurisdictions is to reject any distinction between the terms "accidental means" and "accidental result", so that when an intentional or voluntary act of the insured causes damage which was unforeseen by him at the time, it is held to come within the meaning of the term "caused by accident". According to this logic, therefore, *397 though the trees were felled intentionally by the insured's employees, the fact that damage was done to the property of another was unforeseen, and hence the injury was "caused by accident".
The insurer relies principally on the case of Thomason v. United States Fidelity & Guaranty Co., 248 F.2d 417 (C.A. 5, 1957), as supporting its theory, as well as upon Life Insurance Co. v. Plummer, 181 Md. 140, 28 A.2d 856 (1942). In the Thomason case, a bulldozer operator erroneously went beyond certain iron stakes marking the property line which he was to observe in his work and as a result damaged the adjoining property. The question, as in this case, was whether the insurer was liable for the damage because of injury to the property "caused by accident". The majority of two judges in the federal appellate court, in applying Alabama law, found for the insurer, stating (at 419 of 248 F.2d):
"* * * Where acts are voluntary and intentional and the injury is the natural result of the act, the result was not caused by accident even though that result may have been unexpected, unforeseen and unintended. There was no insurance against liability for damages caused by mistake or error. The cause of the injury was not an accident within the meaning of this policy."
In a well reasoned dissent, Judge Rives, after reviewing the Alabama law, concluded (at 420-421) that "* * * the fact that an injury is caused by an intentional act does not preclude it from being caused by accident if in that act, `something unforeseen, unusual and unexpected occurs which produces the result.' * * *".
A result in accordance with the views of Judge Rives was reached by the Superior Court of New Jersey, Appellate Division, in the recent case of Minkov v. Reliance Ins. Co. of Phila., 149 A.2d 260 (N.J. 1959). There the insurer refused to pay a claim against the insured, a construction company, arising out of damage to an existing brick wall occasioned when the insured had voluntarily sought to straighten the wall in order to erect steel roof trusses. The contract contained a provision *398 identical with the Coverage B clause of the policy before us. The insurance company made the same argument as appellee in this case that the means which caused the injury were voluntarily employed, and the damage to the wall was foreseeable, and to be expected, and not unusual, hence not "caused by accident". In reversing the trial court, the appellate court rejected this argument, stating (at 263 of 149 A.2d):
"Defendant's argument that the damage to the wall was not unusual not accidental because foreseeable alluding here to the dictionary definition of `accident' as an unforeseeable contingency cannot prevail. Simply because the damage resulted from negligence, a concept which carries with it the element of foreseeability, does not deprive the occurrence of its accidental nature. Although an intentional or willful tort would negative the existence of an accident an act attributable solely to negligence may be an accident. It cannot seriously be contended in the present case that the damage was intentional on the part of plaintiff's employees. To give the word `accident' the meaning for which defendant argues would manifestly defeat the purpose of the policy, which is to protect against liability in circumstances like those here present."
For other cases applying in effect the same rationale as the Minkov case in regard to a "caused by accident" provision, see Cross v. Zurich General Accident & Liability Ins. Co., 184 F.2d 609 (C.A. 7, 1950), where insured's employees intentionally used hydrofluoric acid in a solution for washing windows, but because they did not use the proper amount of water and other protective procedures, the windows were damaged. Since there was no intent to damage, the resulting harm was held to be "caused by accident"; O'Rourke v. New Amsterdam Casualty Company, 362 P.2d 790 (N.M. 1961), where it was held that rain damage to the interior of a home caused by a sudden rainstorm in a normally "dry" month was "caused by accident" within a roofing company's liability policy against damage to property. See also Rex Roofing Co. v. *399 Lumber Mut. Cas. Ins. Co., 116 N.Y.S.2d 876 (1952), and cf. Langford Electric Co. v. Employers Mut. Indem. Corp., 297 N.W. 843 (Minn. 1941), in which the court found that where the insured had intentionally and wilfully trespassed upon another's land and cut trees thereon, such act was not an "accident" within the meaning of the policy.
In the policy before us we find, in paragraph 3, under "Conditions", the following: "(c) Assault and Battery. Under Coverages A and B, assault and battery shall be deemed an accident unless committed by or at the direction of the insured." Thus, in this instance, even injuries which are wilful and intentional are not excluded from coverage when caused by a servant or employee and not instigated by the insured. In the instant case there was a technical trespass, of course, through the unwitting and heedless act of the insured's employees in going upon the land of another, contrary to the insured's instructions, and cutting the trees, but here, as in the Minkov case, and the other cases cited above, it cannot be contended that injury to the property of another was intentional. To argue that, because the means employed were not accidental, the resulting damage cannot be construed as being "caused by accident", though the damage was in no way reasonably anticipated, is to rely upon a fine distinction which would never occur to, or be understood by, the average policy holder. Cf. Burr v. Commercial Travelers Mut. Acc. Ass'n, 67 N.E.2d 248 (N.Y. 1946).
On the facts in this case we think the position of the appellant is the stronger. We decide only the interpretation to be placed upon the term "caused by accident" in the instant policy and in the circumstances here presented. We do not intend to descend into the "Serbonian bog" mentioned by Justice Cardozo[1] by attempting a sweeping determination as to *400 whether or not a valid distinction exists between "accidental means" and "accidental result" in all cases. This Court has in fact recognized such a distinction in Life Insurance Co. v. Plummer, supra, 181 Md. 140, 28 A.2d 856 (1942), cited by appellee, and later in Home, Etc. Company v. Partain, 205 Md. 60, 106 A.2d 79 (1954). However, both of those cases involved policies covering bodily injury "caused solely by external, violent and accidental means". (Emphasis supplied.) Thus, the policy provision in those cases expressly required the showing of an accidental means as a condition for recovery under the policy. The policy provision before us, "caused by accident", is of much broader scope than the provision in those cases. See 2 Richards, Insurance (5th ed.), § 215. In our view, to hold that recovery under such a provision is limited to those situations where not only the result was unintended, but also where the means used were accidental, would place too narrow an interpretation upon that phrase. As the conflicting findings in other jurisdictions, and as the language itself would indicate, the phrase is somewhat ambiguous. We have made it clear that where an insurance company, in attempting to limit coverage, employs ambiguous language, the ambiguity will be resolved against it as the one who drafted the instrument, as is true in the construction of contracts generally. U.S.F. & G. v. Nat. Pav. Co., 228 Md. 40, 178 A.2d 872 (1962); Penn., Etc., Ins. Co. v. Shirer, 224 Md. 530, 168 A.2d 525 (1961).
Much has been written on the question whether or not any distinction should be recognized between accidental means and accidental result, and it would appear that there has been a general tendency among a growing number of courts to refuse to apply such a distinction, indicating a recognition that in the mind of the ordinary purchaser of an insurance policy, the terms are probably synonymous. For a review of decisions and discussion of the question, see for example, Annotation, 166 A.L.R. 469; 2 Richards, Insurance, §§ 215, 216; 23 Insur. Coun. Jour. 33; 3 Vanderbilt Law Review 139; 19 Louisiana Law Review 185. We think it is enough to say that here the language of the policy and the circumstances of the case are such that we find no reason to apply such a distinction in this *401 case, resolving any ambiguity in the wording of the policy in favor of the insured.
We hold that the appellee is liable to the appellant for breach of contract in denying liability under the policy. Since the pleadings, affidavits and depositions were adequate to support the appellant's motion for summary judgment in his favor on the issues therein mentioned, the judgment will be reversed and the case remanded so that the order denying the motion may be rescinded, the motion granted and the remaining issues, not reached by the trial court, determined.
Judgment reversed; case remanded for further proceedings consistent with this opinion; costs to be paid by appellee.
NOTES
[1] In his dissenting opinion in Landress v. Phoenix Mutual Life Insurance Co., 291 U.S. 491, 499 (1934), Justice Cardozo stated: "The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog." From Milton's Paradise Lost, Book 2, Line 592:
"A gulf profound as that Serbonian Bog
Betwixt Damiata and mount Casius old,
Where Armies whole have sunk * * *."
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CONDITIONALLY GRANT and Opinion Filed August 21, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00796-CV
IN RE KAREN BURKS, Relator
Original Proceeding from the County Court at Law No. 7
Collin County, Texas
Trial Court Cause No. 007-01918-2019
MEMORANDUM OPINION
Before Justices Bridges, Reichek, and Carlyle
Opinion by Justice Bridges
In this original proceeding, we must decide whether relator Karen Burks timely perfected
her appeal of the underlying eviction case to the county court. We requested real party in interest
Orion Prosper Lakes LLC file a response to Burks’ petition for writ of mandamus. That response
was due July 15, 2019. No response was filed. We conclude Burks’ appeal was timely perfected
and conditionally grant a writ of mandamus to vacate the county court’s order remanding this
matter to justice court and reinstating in county court her appeal of the justice court’s judgment.
On May 13, 2019, Orion filed in justice court a sworn complaint for forcible detainer
seeking to have Burks evicted from property leased from Orion. On June 5, 2019, the justice court
signed a final judgment awarding possession of the property to Orion. On June 10, 2019, Burks
filed in justice court a notice of appeal and statement of inability to afford payment of court costs
or an appeal bond. On June 26, 2019, the county court signed an order remanding the case to
justice court “for execution of judgment” because Burks “failed to timely perfect his [sic] appeal.”
On June 27, 2019, Burks filed a motion for reconsideration pointing out that her notice of appeal
and statement of inability to pay were timely filed, and the county court’s docket sheet indicated
(1) Burks had no objection to the statement of inability to pay and (2) the case was for possession
only, and no funds needed to be paid into the court’s registry. After the county court remanded
the case to justice court, Burks filed this petition for writ of mandamus seeking to have the county
court’s order vacated and the case reinstated in county court for de novo appeal.
A party seeking mandamus relief must establish that (1) the trial court clearly abused its
discretion and (2) there is no adequate remedy by appeal. See In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). There is no adequate remedy at law if
relator establishes that the county court abused its discretion by dismissing her appeal. See In re
Meredith, No. 03-15-00029-CV, 2015 WL 1968007, at * 2 (Tex. App—Austin May 1, 2015) (orig.
proceeding) (relator lacks an adequate remedy at law and is entitled to mandamus if she establishes
that the county court abused its discretion in denying her request to proceed without paying filing
fee).
A party may appeal a judgment in an eviction case by filing a bond, making a cash deposit,
or filing a sworn statement of inability to pay with the justice court within five days after the
judgment is signed. TEX. R. CIV. P. 510.9(a). An appeal of a justice court’s ruling is perfected
when a bond, cash deposit, or statement of inability to pay is filed in accordance with rule 510.9.
TEX. R. CIV. P. 510.9(f). An appellant who cannot furnish a bond or pay a cash deposit in the
amount required may instead file a statement of inability to pay. TEX. R. CIV. P. 510.9(c). The
statement may be contested within five days after receiving notice of the statement of inability to
pay. TEX. R. CIV. P. 510.9(c). If an appellant appeals an eviction for nonpayment of rent, the
justice court must provide the appellant with written notice regarding payment of rent into the
registry of the court. TEX. R. CIV. P. 510.9(c).
–2–
Here, the justice court signed its judgment on June 5, 2019, awarding Orion possession of
the property. Burks timely filed a notice of appeal and affidavit of inability to pay costs on June
10, 2019. The justice court noted on its docket sheet that no payment of funds into the court
registry was required because the petition was for possession only, and no such funds were
deposited. The justice court notified Orion regarding the statement of inability to pay and advised
Orion it had five days to challenge the affidavit. Orion did not file a contest to the statement of
inability to pay. The affidavit contains the required financial information and otherwise complies
with the requirements of the property code and the rules of civil procedure. The justice court
forwarded the file to the county court, indicating its approval of the compliant affidavit.
We conclude the trial court abused its discretion in determining Burks’ appeal was not
timely perfected and remanding the underlying case to justice court. See In re Prudential Ins. Co.
of Am., 148 S.W.3d at 135–36. The trial court’s order does not dismiss the case, and we do not
treat the order as a judgment of dismissal that would be appealable. Accordingly, we conditionally
grant the writ of mandamus. We direct the trial court to, within twenty-one (21) days of the date
of this opinion, issue a written order vacating the trial court’s order remanding this matter to justice
court and reinstating in county court relator’s appeal of the justice court’s judgment. We are
confident the trial court will comply, but a writ will issue if the trial court fails to comply.
/David L. Bridges/
DAVID L. BRIDGES
190796F.P05 JUSTICE
–3–
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87 F.Supp.2d 10 (2000)
UNITED STATES of America,
v.
Maria HSIA, Defendant.
No. 98-0057 (PLF).
United States District Court, District of Columbia.
February 4, 2000.
*11 *12 Erica L. Yaffe, John McEnany, Campaign Financing Task Force, Criminal Division, Dept. of Justice, Washington, DC, for government.
Nancy Luque, Rangely Wallace, Andrew L. Hurst, Reed Smith Shaw & McClay, Washington, DC, for defendant.
OPINION
PAUL L. FRIEDMAN, District Judge.
This matter now is before the Court on (1) the government's motion to admit the grand jury testimony of Venerable Man Ho and Venerable Yi Chu because of their unavailability for trial; and (2) defendant's motion to dismiss certain counts of the indictment or, in the alternative, to suppress all evidence derived from Man Ho and Yi Chu on the ground that these witnesses would provide exculpatory information helpful to the defendant that now is unavailable.
I. BACKGROUND
From all of the pretrial proceedings in this case, it appears that Venerable Man Ho and Venerable Yi Chu, two monastics associated with the Hsi Lai Temple, are essential government witnesses. They were originally unindicted co-conspirators (before the government moved to dismiss the conspiracy count) and allegedly were deeply involved in virtually all of the conduct relating to the remaining causing false statements counts charged in the indictment. They testified before several congressional committees under grants of immunity and before the grand jury that indicted the defendant. The monastics' grand jury testimony was given pursuant to letters that provided them with use immunity coextensive with the immunity available by statute. Under their grants of immunity, Man Ho and Yi Chu were required to provide complete and truthful testimony to the grand jury and at trial. The government subpoenaed them as trial witnesses and, on the government's motion, the Court continued those subpoenas in full force and effect when the trial date was postponed because of matters pending before the court of appeals.
On September 13, 1999, the Court set a new trial date of January 18, 2000. The government advised Man Ho and Yi Chu of the new date by letter of November 18, 1999. In the interim, both of them had moved to Taiwan, and the Court has been advised by their counsel that Man Ho is assigned to the Fo Kuang Shan Temple and Yi Chu is assigned to a one-year meditation program that purportedly requires her not to travel or have contact with the outside world. By its Memorandum Opinion and Order of January 24, 2000, the Court denied the motion of these two witnesses to reconsider the validity of the trial subpoenas issued for them and/or to recognize their asserted religious obligations *13 as adequate excuses not to appear for trial. The Court ordered them to appear on January 28, 2000 at 9:00 a.m. upon pain of contempt. Neither Man Ho nor Yi Chu appeared on January 28, and neither the government nor the Court has any expectation that they will do so despite the government's having notified their counsel in open court that it intends to ask a grand jury to indict them on felony charges of criminal contempt. It is against this background that the government seeks the admission of their grand jury testimony at trial.
II. DISCUSSION
A proper analysis of the government's request requires a consideration of both the Confrontation Clause of the United States Constitution and the two hearsay exceptions on which the government seeks to rely: Rule 804(b)(3) of the Federal Rules of Evidence, which permits the admission of out-of-court statements against interest by unavailable witnesses, and Rule 807, the so-called residual exception to the hearsay rule. As the party seeking to introduce hearsay evidence, the government has the burden of proving each element of the exceptions it asserts. See Idaho v. Wright, 497 U.S. 805, 816, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); United States v. Bartelho, 129 F.3d 663, 670 (1st Cir.1997); United States v. Glenn, 473 F.2d 191, 197 (D.C.Cir.1972).
The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. amend. VI. The Confrontation Clause reflects a strong preference for face-to-face confrontations at trial: "a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox v. U.S., 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895).
Yet the Confrontation Clause does not require the exclusion of hearsay evidence in all circumstances. Under the Confrontation Clause hearsay statements that contain sufficient indicia of reliability and trustworthiness may be admitted. Where a hearsay declarant has not been and will not be subjected to cross-examination, however, the Confrontation Clause requires the Court to satisfy itself both that the declarant is genuinely unavailable to testify despite the prosecution's good faith efforts to obtain the witness' presence at trial and that the out-of-court statement bears sufficient indicia of reliability as to provide the jury with an adequate basis to evaluate the truth of the testimony. See Ohio v. Roberts, 448 U.S. 56, 64-65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Where the evidence "falls within a firmly rooted hearsay exception," reliability may be inferred, id. at 66, 100 S.Ct. 2531; otherwise the government bears a heavy burden of showing "particularized guarantees of trustworthiness." Idaho v. Wright, 497 U.S. at 816-17, 110 S.Ct. 3139 (quoting Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. 2531). The hearsay exception embodied in Rule 804(b)(3) is one that is "firmly rooted" in the common law. See United States v. Saccoccia, 58 F.3d 754, 779 (1st Cir.1995); United States v. York, 933 F.2d 1343, 1363 (7th Cir.1991); but see United States v. Flores, 985 F.2d 770, 775-76 (5th Cir.1993) (not "firmly rooted"). The residual exception of Rule 807 is not so "firmly rooted." See Idaho v. Wright, 497 U.S. at 816-17, 110 S.Ct. 3139 (residual hearsay exception not firmly rooted exception for Confrontation Clause purposes); United States v. Accetturo, 966 F.2d 631, 634 (11th Cir.1992) (residual exception not "firmly rooted").
A. Rule 804(b)(3)
For a statement to be admitted under Rule 804(b)(3) of the Federal Rules *14 of Evidence, the government must demonstrate (1) that the witness is unavailable, (2) that the government has made reasonable efforts to obtain the presence of the witness for trial, and (3) that at the time it was made the statement was "so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Rule 804(b)(3), Fed.R.Evid. A statement is admissible under Rule 804(b)(3) as being against pecuniary or proprietary interest "when it threatens the loss of employment, or reduces the chances for future employment, or entails possible civil [or criminal] liability." Gichner v. Antonio Troiano Tile & Marble Co., 410 F.2d 238, 242 (D.C.Cir.1969).
Defendant first argues that Venerable Man Ho and Venerable Yi Chu are not in fact unavailable and/or that the government has failed to make reasonable efforts to obtain their presence for trial. Defendant maintains that although the government served process on these witnesses nearly two years ago, it has made little or no effort to procure their appearance since that time: it did not contact these immunized witnesses for more than fourteen months, did not place (or seek to have the Court place) restrictions on their travel or availability, did not notify them of the pending trial date until two months after that date had been set by the Court, and did not seek alternative means of preserving their testimony.
The government responds that its efforts have been reasonable because the immunity agreements requiring that Man Ho and Yi Chu provide complete and truthful testimony at trial at least implicitly required their presence, because the government in fact subpoenaed them to appear for trial, and because the government formally notified their counsel of the new trial date well in advance of trial. At this point the Court will not attempt to assess blame for the unavailability of Man Ho and Yi Chu. The fact is that they have absented themselves from the United States and are unavailable for trial despite their obligations to the Court by virtue of its subpoenas and to the government by virtue of its immunity letters. While it would have been better had the government notified these witnesses of the new trial date as soon as it had been set, the Court finds that the government has made reasonable efforts to obtain their presence.
The question under Rule 804(b)(3) therefore turns on whether the statements made by Man Ho and Yi Chu to the grand jury are statements "so far contrary" to their pecuniary interests or so far tending to subject them to criminal or civil liability that reasonable persons in their positions would not have made the statements unless they then believed them to be true. See Williamson v. United States, 512 U.S. 594, 603-04, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). The government makes two arguments in support of the admission of Man Ho and Yi Chu's grand jury testimony on this basis. First, it argues that while under oath both Man Ho and Yi Chu admitted participating in a conduit contribution scheme in violation of Section 437g of the Federal Election Campaign Act. See 2 U.S.C. § 437g(a)(6). While they testified under grants of immunity from criminal prosecution, the government argues that they knew at the time of their testimony that they still faced substantial civil penalties under FECA and that the agreements they signed put them on notice of that fact. Second, the government argues that the witnesses faced potential repercussions from their superiors at the Hsi Lai Temple for having implicated them and the Temple in wrongdoing. The government therefore argues that the incriminating statements exposing Man Ho and Yi Chu and the Temple to substantial penalties were statements contrary to their pecuniary interests and therefore makes them admissible under Rule 804(b)(3).
*15 Defendant responds that there is no evidence that Venerable Man Ho and Venerable Yi Chu either understood the potential for civil liability or thought that such liability was a real possibility at the time they made their statements to the grand jury. While the immunity letters indicate that the witnesses acknowledged and agreed that the Department of Justice could not bind the Federal Election Commission or make any promises or representations regarding any civil proceedings that might be instituted by the FEC, defendant suggests that this kind of boilerplate language in an immunity letter hardly supports the argument that the monastics were in fact likely to be pursued by the FEC or subjected to civil liability, or that the monastics understood that prospect. Defendant also maintains that the argument regarding the possibility of repercussions from the Temple is sheer speculation. She contends that the government has provided no evidence that such repercussions would be forthcoming, that the monastics' relationship with their religion appears to be thriving, and that the monastics and the Temple were represented by the same counsel at the time the statements were made to the grand jury and counsel would not have represented both if their interests had not been strongly congruent. With respect to this second argument, the Court agrees fully with the defendant and finds the potential for repercussions from the Temple unsupported and speculative. The first argument requires greater consideration.
Out-of-court statements against the declarant's interest are admissible under Rule 804(b)(3) of the Federal Rules of Evidence because it is presumed that one will not make a statement damaging to one's self unless it is true. In order for that premise to pertain, however, the declarant must in fact perceive that the statement is against her interest. Only if the statement is in fact against the witness' interest in fact, it must be "so far contrary to" the witness' interest and only if the witness perceives and understands the potential consequences is it fair to conclude that the otherwise inadmissible statement is trustworthy and reliable and therefore admissible. In this case, the witnesses already had immunity from criminal prosecution. The question therefore is whether they nevertheless perceived that they might continue to face civil penalties by virtue of their statements before the grand jury.
The civil penalties of FECA that could be imposed in this case are potentially substantial both Man Ho and Yi Chu appear to admit conduct in their grand jury testimony that could justify fines in excess of $100,000. The government, however, has presented insufficient evidence that Man Ho and Yi Chu were aware of their potential liability when they testified. One paragraph in the immunity letters signed by both witnesses addresses the inability of the Department of Justice to bind the FEC or make any representations or promises regarding any civil proceedings that may be initiated by the FEC. It is doubtful that the boilerplate language used in this paragraph would put even an English-speaking person on notice of the potential for continuing civil liability, much less a person for whom English is a second language.[1] In addition, the only relevant indication from the monastics' grand jury testimony of what they perceived suggests that they may well have thought their testimony would have no negative personal repercussions whatsoever. Specifically, in her testimony, Man Ho answered affirmatively the government's unqualified question regarding whether she understood that "your answers cannot be used against you, directly or indirectly." Grand Jury Transcript of Man Ho (Sept. 26, 1997) at 5. Yi Chu was asked if she had signed the *16 immunity agreement, but was asked no specific question regarding her understanding of the consequences of the agreement. See Grand Jury Transcript of Yi Chu (Oct. 3, 1997) at 5.
Because the government has presented no evidence of the monastics' knowledge of their potential civil liability other than the inclusion of a boilerplate provision in the immunity agreement written in English, and because the only indication of the monastics' state of mind from the grand jury transcripts is that they believed that they had full and unqualified immunity, the Court cannot conclude that these witnesses at the time they made their statements to the grand jury knew them to be so far contrary to their interests that the statements have the necessary indicia of reliability. The government certainly has not demonstrated that they did, even by a preponderance of the evidence. See Idaho v. Wright, 497 U.S. at 816, 110 S.Ct. 3139; United States v. Bartelho, 129 F.3d at 670; United States v. Glenn, 473 F.2d at 197.
The Court reaches this conclusion against the backdrop of the Confrontation Clause and the skepticism with which courts traditionally view statements against interest in criminal cases that may actually have been made to gain an advantage or curry favor, such as those made pursuant to a plea bargain or immunity agreement. See infra at 14. While the exception to the hearsay rule contained in Rule 804(b)(3) is "firmly rooted" in the Constitution, that fact only takes the Court so far. In a criminal case, a defendant generally has the right to confront the witnesses against him or her, and the government still has the burden of proving that an out-of-court statement bears sufficient indicia of reliability. Courts have always been more skeptical of admitting uncross-examined hearsay in the form of grand jury testimony against a criminal defendant than they are of admitting such testimony when offered by a defendant in a criminal case. Compare United States v. Lang, 904 F.2d 618, 624 (11th Cir.1990) (grand jury testimony rarely admitted against defendant under residual exception to hearsay rule); United States v. Vigoa, 656 F.Supp. 1499, 1506 (D.N.J.1987) (same) with United States v. Salerno, 505 U.S. 317, 112 S.Ct. 2503, 120 L.Ed.2d 255 (1992) (defendant could introduce grand jury testimony under Rule 804(b)(1) of the Federal Rules of Evidence if the government had a "similar motive" to develop declarant's testimony in the grand jury as it would have had at trial). The grand jury testimony of Man Ho and Yi Chu is not admissible under Rule 804(b)(3).
B. Rule 807
The residual exception to the hearsay rule permits the introduction of a hearsay statement "not specifically covered by Rule 803 or 804 but having equivalent substantial guarantees of trustworthiness" if the Court makes certain findings. Rule 807, Fed.R.Evid.[2] For an out-of-court statement of a declarant to come in under Rule 807, the proponent of the testimony must demonstrate (1) that the declarant is unavailable, (2) that it has made reasonable efforts to make the declarant available for trial, (3) that the statement is offered as evidence of a material fact, (4) that the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, (5) that the hearsay statement has circumstantial guarantees of trustworthiness, and (6) that the interests of justice would be best served by admission of the statement. See *17 id.[3]
For the reasons previously discussed, the Court finds that the witnesses are unavailable and that the government has made reasonable efforts to make them available for trial. The Court also finds that the testimony of Man Ho and Yi Chu regarding their involvement in the contribution conduit scheme leading to the filing of allegedly false statements with the FEC, and their testimony about the alleged link between the defendant and the Hsi Lai Temple in the solicitation of such contributions and the reporting of those contributions, would constitute evidence of material facts. Based on the government's representations, the Court finds that the statements are more probative on the points for which they are offered than any other evidence that the government can now procure through reasonable efforts. As the government has said, "[n]othing can replace the testimony of these witnesses." Government Motion at 16.[4] The remaining questions therefore are whether the proffered grand jury testimony carries sufficient indicia of reliability and trustworthiness and whether the interests of justice would be served by the admission of those statements.
To repeat, the Confrontation Clause generally requires that a defendant in a criminal case be allowed to confront and face her accusers at trial. While there are circumstances in which prior testimony of an unavailable witness is admitted particularly when that prior testimony was given in an adversarial context such as at a deposition, a preliminary hearing or a civil trial, see Rule 804(b)(1), Fed.R.Evid. it is the rare case when uncross-examined testimony is admitted against an accused in a criminal trial. The courts' general approach to statements offered under the residual exception is that they are presumptively unreliable and inadmissible for Confrontation Clause purposes and that the proponent must demonstrate a particularized guarantee of trustworthiness to overcome that presumption. See Idaho v. Wright, 497 U.S. at 817-18, 110 S.Ct. 3139. While some courts have admitted grand jury testimony against an accused under the residual exception, the infrequency of such rulings highlights the strong preference for allowing the jury to evaluate both the substance of a witness' testimony and her credibility through the crucible of cross-examination. See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (quoting California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)) ("The preference for live testimony in the case of statements [from prior judicial proceedings] is because of cross-examination, `the greatest legal engine ever invented for the discovery of truth'").
Venerable Man Ho and Venerable Chi Yu speak Mandarin Chinese and testified in the grand jury with the assistance of an interpreter.[5] The government itself previously raised questions about the truthfulness of these witnesses and asked the Court for the opportunity to attack their credibility at trial (if they testified) *18 both by permitting the government to ask leading questions (because of the witnesses' alleged identity with the defendant) and by introducing evidence that these witnesses altered, destroyed and created documents in an effort to conceal their wrongful conduct and that of the defendant. Despite the government's grant of immunity, the government does not vouch for everything these witnesses have said or will say in testimony. As the government prosecutor has stated:
And in this case we believe that certain things are going to be irrefutable that [Man Ho and Yi Chu] say and [they] are going to be telling the truth as to certain things but in other things they're not telling the truth. It's going to be those people there [pointing to the jury box] who are going to assess their credibility and it's going to be perhaps initially an assumption that these people are telling the truth because they're going to be coming in in saffron robes, they're nuns and monks from a religious Order and there may be a tendency to believe everything that they say, including those things that we believe are not true.
In order to assess their testimony, Yi Chu and Man Ho, [the members of the jury] have to know the entirety of their actions. And these folks are people and they do things like alter documents and change documents and they have maybe some incentive to protect the Temple and Maria Hsia, and that's part of weighing their credibility and we should be able to get in this evidence in in order for the jurors to have a complete picture of these witnesses.
Transcript of January 18, 2000 Hearing at 141-42. Accepting this argument, the Court denied defendant's motion to exclude evidence of alteration, destruction and creation of documents by Man Ho and Yi Chu, stating in part that such evidence offered by the government is relevant for the jury to consider in assessing the credibility of these witnesses. See Memorandum Opinion and Order of February 2, 2000.
There are no strong indicia of reliability and trustworthiness with regard to the monastics' testimony. These unindicted co-conspirators testified under immunity agreements through an interpreter and answered mostly leading questions. See United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977) (responses given to leading questions and not subject to cross-examination); United States v. Vigoa, 656 F.Supp. at 1506 ("testimony consisted of little more than `yes' and `no' responses to leading questions posed by the prosecutor"). Their credibility has been questioned by their own sponsor, the government. In addition, their obligations under the immunity agreement and the oath they took to testify truthfully only go so far in assuring the reliability of their out-of-court statements. As Judge Merritt has noted, persons with immunity still often have a motive to lie, to testify truthfully about some matters and falsely about others, to minimize their own involvement and maximize the involvement of others, or to curry favor with the government. See United States v. Gomez-Lemos, 939 F.2d 326, 333-34 (6th Cir.1991). see also United States v. Johnson, 802 F.2d 1459, 1465 (D.C.Cir.1986) ("It is common knowledge that an arrestee can `curry[] favor with law enforcement authorities by implicating others in the offense'") (quoting United States v. Coachman, 727 F.2d 1293, 1296 (D.C.Cir.1984)).
"[O]nly extraordinarily trustworthy grand jury testimony could possibly be admissible as truth of the matter asserted," and the threshold is high indeed to find it so trustworthy and reliable as to permit its admission under Rule 807. United States v. Lang, 904 F.2d at 624 (quoting United States v. Fernandez, 892 F.2d 976, 981-82 (11th Cir.1989)). The rule requires circumstantial guarantees of trustworthiness equivalent to cross-examined or non-hearsay testimony or to statements admitted under the hearsay exceptions *19 of Rules 803 and 804 of the Federal Rules of Evidence. The oath taken by the declarants here is the only thing that raises the testimony of Man Ho and Yi Chu above the level of ordinary inadmissible hearsay, and that oath is not enough to allow the admission of the testimony in light of the other indicators undermining the truthfulness of these witnesses. See United States v. Fernandez, 892 F.2d at 981.
As Judge Easterbrook has pointedly noted in rejecting the availability of the residual exception to admit grand jury testimony:
Trial by affidavit was the bugbear that led to the Confrontation Clause; trial by grand jury testimony is not far removed. Grand jury testimony, like an affidavit, is one-sided, an ex parte narration over which the prosecutor has ample control. To avoid the introduction of unilateral narrations, Rule 804(b)(1) provides that prior testimony is admissible only if the party against whom the evidence is offered had both opportunity to examine the declarant and motive to do so. That the testimony has indicia of trustworthiness cannot be controlling; many affidavits appear to be trustworthy. A defendant's entitlement to confront the witnesses against him is not limited to confronting apparently-untrustworthy witnesses. Confrontation is valuable in large measure because it may establish that what seems to be accurate is misleading or deceitful or rests on inadequate foundation. Conditions on the use of Rule 804(b)(1) ensure that the defendant retains the right of confrontation in circumstances that lie at the core of the constitutional guarantee. Temptation to get `round this limitation by moving to Rule 804(b)(5) [now Rule 807] and slighting its introductory language should be resisted.'
United States v. Dent, 984 F.2d 1453, 1466 (7th Cir.1993) (Easterbrook, J., concurring). The grand jury testimony of Man Ho and Yi Chu therefore is not admissible under rule 807.
C. Defense Motion To Dismiss Counts Based On Unavailability Of Exculpatory Information
The Court's decision to deny the government's motion to admit Man Ho and Yi Chu's grand jury testimony because of their unavailability to testify in person at trial largely moots the defendant's motion to dismiss certain counts of the indictment or suppress evidence derived from Man Ho and Yi Chu because of the unavailability of the exculpatory evidence they purportedly could provide. If these witnesses are not present to provide inculpatory testimony, they cannot provide exculpatory testimony either. Both sides suffer or benefit, as the case may be from their absence. To the extent that defendant's motion was motivated by a concern about leveling the playing field, the Court's decision to exclude the grand jury testimony of these witnesses on hearsay grounds means that the jury will not be able to consider the uncross-examined inculpatory evidence without also having the witnesses examined about "exculpatory information in the possession of only those witnesses." Motion to Dismiss at 10. Both sides will suffer from the absence of the witnesses and their testimony. Indeed, if either party is harmed more than the other by the absence of Man Ho and Yi Chu it is the government, which now must prove guilt beyond a reasonable doubt without its key witnesses.
Defendant's motion also must fail because it is premised on the assumption that the government is at fault for the witnesses' failure to appear or that it has made insufficient efforts to obtain their presence. It is hard to see, however, how the government could possibly benefit from the loss of these crucial witnesses or their testimony. Defendant's suggestion that the government has some nefarious reason to orchestrate or capitalize on the absence of the witnesses is an unfair aspersion *20 on the government prosecutors. As the government rightly notes: "[F]ar from suffering a loss of exculpatory evidence, the defendant's case is substantially aided, not harmed, by the absence of these witnesses." Government Opposition to Motion to Dismiss at 3. There is no basis to give defendant the relief she seeks.
An Order consistent with this Opinion shall be issued this same day.
SO ORDERED.
NOTES
[1] The government has not advised the Court that the immunity letters were ever translated into Chinese or that counsel for the monastics explained the paragraph concerning the FEC. Yi Chu in particular has difficulty communicating in any language other than Mandarin Chinese.
[2] Since grand jury testimony arguably is specifically covered by another rule, it is questionable whether grand jury testimony is ever admissible under Rule 807. See, e.g., United States v. Dent, 984 F.2d 1453, 1465-67 (7th Cir.1993) (Easterbrook, J., concurring); United States v. Vigoa, 656 F.Supp. at 1504, 1506. For purposes of this motion, however, the Court will assume that such evidence is admissible under Rule 807 in some circumstances.
[3] The Rule also requires that the party seeking admission of the statement provide notice to the adverse party sufficiently in advance of trial to provide the adverse party with a fair opportunity to meet the evidence. Defendant has been on notice at least since January 11, 2000, the date that Venerable Man Ho, Venerable Yi Chu and Venerable Abbess Tzu Jung filed a motion to reconsider the Court's Order regarding trial subpoenas.
[4] For that reason, the Court previously indicated its willingness to grant a government request for a continuance of the trial to enable the government to obtain the presence of these witnesses, but the government stated that it did not seek a continuance and would proceed to trial with or without Man Ho and Yi Chu.
[5] Man Ho testified in English but was assisted by an interpreter with regard to certain specifics of the English language. See Grand Jury Transcript of Man Ho (Sept. 26, 1997) at 3. Yi Chu testified in Mandarin Chinese and made full use of an interpreter. See Grand Jury Transcript of Yi Chu (Oct. 3, 1997) at 3.
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442 So.2d 185 (1983)
Larry Joe JOHNSON, Appellant,
v.
STATE of Florida, Appellee.
No. 58713.
Supreme Court of Florida.
November 17, 1983.
Rehearing Denied January 16, 1984.
*186 Milo I. Thomas, Jr., Public Defender, Third Judicial Circuit, Lake City, and Michael J. Minerva and Clifford L. Davis, Sp. Asst. Public Defenders, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
PER CURIAM.
This cause is before the Court on appeal from a judgment of conviction of a capital felony for which a sentence of death was imposed. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
Appellant Larry Joe Johnson was convicted of first-degree murder and armed robbery. At the trial Patty Burks testified that on March 16, 1979, she and Johnson stopped at a service station along Interstate Highway 10 in Madison County. She said that Johnson aimed a sawed-off shotgun at the proprietor while she took money from the cash register. She testified that after she left the building, Johnson shot the proprietor. They drove on to Kentucky where Burks, through her mother, informed the police of the murder. The police arrested Johnson for violating probation and later turned him over to Florida authorities. Found in his car were a sawed-off shotgun and number five shot shells, the same type of shot found in the victim's body.
In accordance with the jury's recommendation, the trial judge imposed a sentence of death for the offense of first-degree murder. Johnson was sentenced to life imprisonment for the offense of armed robbery. In this appeal, Johnson argues that the sheriff should not have been allowed to act as bailiff, that the prosecutor's closing arguments were improper and prejudicial, and that his sentences were improperly imposed. Since we find no reversible error was committed, we affirm.
Johnson's first argument on appeal is that he was denied his fourteenth amendment due process right to be tried by an impartial jury. This argument is based on the assertion that the county sheriff, who had participated in the investigation of the crimes and assisted counsel in the selection of the jury, acted as bailiff during the trial. Johnson points out that in Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), the United States Supreme Court held that it was a violation of due process to allow two deputies who were material witnesses for the state to act *187 as custodians of the jury even though there was no proof of improper communication between them and the jury. The Court concluded that since the credibility of the witnesses was a deciding factor in the case, the procedure was improper and prejudice was inherent in the continual association of the witnesses with the jury. Johnson argues by analogy that prejudice is also inherent in the present situation where the sheriff helped the prosecution select the jury and then acted as bailiff.
Long before Turner was decided this Court held that prejudice would be presumed where a material witness for the prosecution was allowed to act as bailiff. See Owens v. State, 68 Fla. 154, 67 So. 39 (1914). However, the Court has never extended this holding to cases where the bailiff's testimony was not material to the case. See Rhone v. State, 93 So.2d 80 (Fla. 1957); Moseley v. State, 60 So.2d 167 (Fla. 1952). Thus we are not aligned with those jurisdictions that hold that the mere association of the bailiff with the prosecution is sufficient cause to reverse a conviction. See 4 C. Torcia, Wharton's Criminal Procedure § 563 (12th ed. 1976); Annot., 38 A.L.R.3d 1012 (1971).
Different considerations apply when the bailiff has helped in the investigation and in the selection of the jury than apply when the bailiff is a material witness. In Turner the Supreme Court emphasized that the credibility of the witnesses was enhanced by their continued association with the sequestered jurors during the trial. Because of the witnesses' continual and close association with the jury, the Court found that their credibility in the eyes of the jury was affected by factors taking place outside of the courtroom. In this case the sheriff did not testify so his credibility was not an issue. Therefore we are not faced with the issue of whether the jury may have been influenced by extraneous factors in assessing the credibility of a witness.
In Smith v. State, 251 Miss. 241, 169 So.2d 451 (1964), while the jury was being empanelled and tendered to the state, the district attorney motioned for the sheriff and his deputies to retire with him to pass upon the jury. This was done in the presence of the jury. Over the defendant's objections, the trial court later appointed two of the deputies as bailiffs. The Mississippi Supreme Court reversed the conviction on the ground that an appearance of impropriety might weaken the public's confidence in the judiciary.
We agree with the basic tenet in Smith that it is not good practice for the bailiff to help select the jury. However, we disagree with the conclusion that such a practice is so inherently prejudicial as to require reversal of a conviction. Unlike the situation where the bailiff testifies and his credibility is affected by his close and continual association with the jury, for the bailiff to assist in the selection of the jury does not necessarily have a direct bearing on any issue to be determined by the jury. Therefore prejudice cannot be inferred but must rather be proven.
Johnson has failed to show how he has been prejudiced in this case. The record shows that it is not unusual for the sheriff to assist the state attorney in selecting a jury. Because of the small size of Madison County, the sheriff's staff is not very large so the sheriff himself often acts as the bailiff. He is not allowed to do so when he is a witness. The sheriff testified that during voir dire he did carry on whispered conversations with the state attorney. He said these conversations took place about fifteen feet behind and to the right of the jury box and were outside of the prospective jurors' hearing. He said that he had not and would not discuss the case with any members of the jury. The court found no improprieties had been committed. We therefore find that Johnson was not denied his right of due process under the fourteenth amendment to be tried by an impartial jury.
Appellant argues that on three separate occasions during the closing arguments of the penalty phase of the trial, the prosecutor made improper comments. We will not consider two of those occasions *188 since appellant failed to object. Clark v. State, 363 So.2d 331 (Fla. 1978). As for the third occasion, the prosecutor argued as follows:
You have heard some evidence presented by the defense here designed to tug at your heart strings, to show you that the defendant was a living, breathing, human being with feelings possessed by an ordinary person. You have become acquainted with his family here today. Another family, perhaps you haven't become closely associated with, that is the [victim's] family, will be facing this holiday season one short.
Defense counsel immediately objected and requested a bench conference. At the bench defense counsel requested that the jury be instructed to disregard the comment and moved for a mistrial. The trial court sustained the objection but denied the motion for mistrial. The trial court also found that it would be inappropriate to say anything further to the jury since the comment was not prejudicial.
Appellant is correct in contending that during closing arguments a prosecuting attorney should not attempt to elicit the jury's sympathy by referring to the victim's family. Grant v. State, 171 So.2d 361 (Fla. 1965), cert. denied, 384 U.S. 1014, 86 S.Ct. 1933, 16 L.Ed.2d 1035 (1966); Pait v. State, 112 So.2d 380 (Fla. 1959). Although this Court reversed the defendants' convictions in the two cited cases, the same result is not required in this case. In both cases the references to the families of the victims were but small parts of closing arguments the whole tenor of which were improperly emotional and prejudicial. In this case, there was a single comment made at the sentencing portion of the trial in response to the testimony of the defendant's relatives in his behalf. Although improper, the comment was not so prejudicial as to have influenced the jury to render a more severe recommendation than it would have otherwise and is therefore not reversible error. See Darden v. State, 329 So.2d 287 (Fla. 1976), cert. dismissed, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977).
After the penalty phase of the trial, the jury recommended the death penalty. The trial judge adopted this recommendation, finding three aggravating circumstances: that appellant had previously been convicted of a felony involving violence and was under sentence of imprisonment; that the murder was committed during the commission of a felony and for pecuniary gain; and that the murder was committed to avoid arrest and to hinder law enforcement. The judge found no mitigating circumstances.
Appellant first challenges the imposition of the death sentence by asserting that the jury was improperly influenced by various reasons, some of which we have already discussed. Since none of the reasons mentioned establish any improper prejudice, we find that the jury was not improperly influenced in reaching its recommendation.
Next appellant argues that the court erred in finding as an aggravating circumstance that the murder was committed to avoid arrest and to hinder law enforcement. This finding was based on the testimony of Patty Burks who said that appellant explained he killed the proprietor because "dead witnesses don't talk." Appellant argues that Ms. Burks' testimony was not credible because she was only seventeen and a participant in the crime. The credibility of a witness is for the finder of fact, not an appellate court, to determine. The testimony to appellant's admission is sufficient proof that he committed the murder to eliminate a witness to the robbery. This evidence supports the trial judge's finding that the murder was committed for the purpose of avoiding arrest or hindering law enforcement. Knight v. State, 338 So.2d 201 (Fla. 1976); Meeks v. State, 339 So.2d 186 (Fla. 1976), cert. denied, 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666 (1978).
Appellant also contends that the court erred in not finding as a mitigating circumstance that appellant had no significant history of prior criminal activity. The judge refused to find this as a mitigating circumstance because appellant had been *189 previously convicted of assault for shooting his wife. Appellant claims that a single conviction does not constitute a significant history of prior criminal activity. We disagree. In determining what is significant criminal activity, the trial judge may consider the severity as well as the number of prior offenses. See State v. Dixon, 283 So.2d 1 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). We have upheld holdings that this mitigating circumstance does not apply when a defendant has been previously convicted of a single serious offense such as murder, Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981), or breaking and entering, Proffitt v. State, 315 So.2d 461 (Fla. 1975), aff'd, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). We therefore hold that the trial judge was correct in not finding this as a mitigating circumstance.
Appellant also argues that the trial judge erred in not finding his emotional and mental state to be a mitigating circumstance under subsections 921.141(6)(b), (e), and (f), Florida Statutes (1977). With respect to these mitigating circumstances, the trial court found:
Defendant was able to appreciate the criminality of his conduct and that there is no basis for concluding that the capacity of the Defendant to conform his conduct to the requirements of law was substantially impaired. There was some conflicting testimony on this point. The Defendant was examined by two psychiatrists and two clinical psychologists. All of the evidence from the experts indicated that the Defendant was able to distinguish that which is "right" from that which is "wrong" and that he was legally sane at all material times. However, the testimony from one clinical psychologist, Dr. Charles R. Figley, advanced the theory that the Defendant, at the time he actually pulled the trigger, did so from impulsive behavior which had a direct causal relationship to his experience in Vietnam. This particular witness had written a book consistent with this theory, but readily admitted that he was one of the few people who have done any work in this area. The theory or opinion was to some extent also supported by the testimony of another clinical psychologist, Dr. McMahon. Her opinion suggested that the Defendant suffered from organic brain damage and that he was of border-line intelligence. The testimony of the two clinical psychologists was disputed by the two psychiatrists. Taken as a whole, together with the Court's own observations of the Defendant during the trial, as well as his testimony in pretrial proceedings, this Court concludes that there were no mental or psychological factors sufficiently significant to support a conclusion as to any mitigating circumstance. The evidence clearly showed that the Defendant planned the robbery of the service station, executed the plan, and killed the service station operator because "dead witnesses don't talk." The State introduced into evidence the shotgun with which the Defendant killed the service station operator. The shotgun was owned by the Defendant for a substantial period of time prior to the homicide and was found in his possession two days after the homicide was committed. A visual examination of the shotgun plainly shows that the barrel had been sawed off and the stock had been replaced with a pistol grip. Such a shotgun had only one practical purpose the use for which it was in fact made. This leads the Court in part to the conclusion that the Defendant fully appreciated the criminality of his conduct and had no intention of conforming his conduct to the requirements of law. It further supports this Court's conclusion that the Defendant was not acting under extreme duress or under the substantial domination of another person.
It was within the trial judge's province to grant the two psychologists' testimony little or no weight. Lucas v. State, 376 So.2d 1149 (Fla. 1979). We therefore find that the trial judge did not err in rejecting appellant's contention that these mitigating circumstances applied.
*190 Appellant takes issue with the fact that the trial judge in finding that these mitigating circumstances did not apply took into account his "own observations of the Defendant during the trial, as well as his testimony in pretrial proceedings." Appellant argues that the trial court's use of personal observations without warning and without an opportunity for rebuttal violated his fundamental right of due process. Appellant compares this procedure to that of a trial judge's considering a presentence investigation report without the defendant's knowledge, which procedure was disapproved in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). The analogy is not appropriate. Whereas a defendant may not know what information is contained in a presentence investigation report he must know how he is behaving in the courtroom. In this situation the judge is not relying on information that is not available to the defendant. Although justice should be blind, judges are not. They may properly notice a defendant's behavior and draw inferences concerning matters such as whether the defendant is capable of appreciating the criminality of his conduct. It would help if a judge who relies on his personal observations would describe them in detail in order to give a reviewing court a basis for deciding whether his conclusions are correct. However, in this case the trial judge gave sufficient reasons to support his conclusions independent of the personal observations, so we find no error.
Finally, appellant argues that he should not have been sentenced separately for the crime of armed robbery on the ground that it was a lesser included offense of felony-murder. See State v. Hegstrom, 401 So.2d 1343 (Fla. 1981). Since we have already concurred with the court's finding that appellant committed this homicide for the purpose of eliminating a witness, there is sufficient proof of premeditation. Therefore, the armed robbery was not a lesser included offense and Hegstrom does not apply.
We conclude there is competent substantial evidence supporting the trial judge's findings with respect to the aggravating circumstances. Apparently in attempt to comply with the reasoning in Provence v. State, 337 So.2d 783 (Fla. 1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977), the trial judge found as a single aggravating circumstance that appellant had previously been convicted of a felony involving violence and was under sentence of imprisonment. This finding was based on the fact that appellant was still under sentence for having committed a second-degree assault in Kentucky. We note that there was no need to treat these separate statutory aggravating circumstances as a single aggravating circumstance because they are "two separate and distinct characteristics of the defendant, not based on the same evidence and the same essential facts." Waterhouse v. State, 429 So.2d 301, 307 (Fla. 1983). The trial judge did, however, correctly apply Provence in finding as a single aggravating circumstance that the murder was committed during the commission of a robbery and was committed for pecuniary gain. The judge also correctly applied the reasoning of Provence in finding as a single aggravating circumstance that the murder was committed to avoid or prevent a lawful arrest and was committed to disrupt or hinder the enforcement of the law. See Francois v. State, 407 So.2d 885 (Fla. 1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982).
Having found no reversible error we affirm appellant's convictions for first-degree murder and armed robbery and his respective sentences of death and life imprisonment.
It is so ordered.
ALDERMAN, C.J., and ADKINS and BOYD, JJ., concur.
EHRLICH, J., concurs specially with an opinion.
*191 McDONALD, J., concurs in part and dissents in part with an opinion, in which OVERTON, J., concurs.
EHRLICH, Judge, specially concurring.
I am of the opinion that if the sheriff or one of his deputies participates in the trial by counseling with the prosecutor during the selection of the jury or during the course of the trial, he should not be the bailiff. By assisting the prosecutor, he is identified in the eyes of the jury as a member of the prosecutor's team. The bailiff on the other hand, should have an absolutely neutral role in the trial proceedings. He makes certain that the jury's seclusion is not disturbed except by direction of the Court. He ministers to the jury's needs. He's the one person who can, and of necessity does, communicate with the jury during the course of the trial as the need may arise. The lawyers are prohibited from talking to or otherwise fraternizing with the jury, and the jury is generally advised of this fact so that they will understand why counsel, who may be known to them, are treating them as pariahs. But not so the bailiff. If the jury members have a need, they turn to the bailiff. The role of the neutral bailiff and the role of one who is in effect on the prosecutor's team are mutually exclusive. The roles don't mix.
In the case at hand, the sheriff did counsel with the state attorney within view of the jury. Because of personnel problems, the sheriff acted as the bailiff also. This may not be uncommon in small rural counties. While no improprieties may actually take place, and there is no intimation in this record that any did, this dual role does carry the appearance and the potential of impropriety.
I think that if the state attorney needs the sheriff or his deputy's assistance during the trial, that someone else should serve as bailiff. To do otherwise may very well jeopardize the state's case.
While I disapprove of and recommend against the sheriff's dual role employed in the trial of this case, nonetheless I concur in the judgment of conviction and the sentence and the opinion of the Court because I find no evidence of actual impropriety and no demonstrable harm to the defendant.
McDONALD, Judge, concurring in part and dissenting in part.
Sheriff Peavy acted as investigator of the crime, confidant to the prosecutor when the jury was selected, and then custodian of the jury. These services are incompatible with each other and should not be allowed. A close relationship exists between a bailiff and the jury of which he is in charge. The bailiff looks after the jury's welfare, frequently converses with them, and when sequestered for meals is in attendance with them.
I agree with the majority that this happenstance alone does not require a reversal but it alerts this Court that we should unqualifiedly satisfy ourselves that the sheriff's acting as a bailiff affected neither the conviction nor the jury's recommendation on the sentence. The evidence of guilt is overwhelming in this case and I am fully satisfied that even if Sheriff Peavy had inadvertantly communicated with the jury on some of the issues the verdict would be the same. The test of harmless error enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), is clearly present in the guilt phase. Less clear is the sentencing phase and the jury's recommendation of death. While Johnson clearly earned several aggravating circumstances, he also presented some mitigating testimony. A sympathetic jury could logically have recommended life. I do not suggest that the sheriff intentionally subjected the jury to the views of the state, but I would be extremely surprised if the jury felt that it would be displeasing him if it recommended death.
This is a sensitive area. The practice here should not be encouraged. Because of that I vote to grant a new sentencing hearing. I would affirm the conviction.
OVERTON, J., concurs.
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810 P.2d 353 (1991)
111 N.M. 767
Jack C. SUTHERLIN, Jr., as Administrator and Personal Representative of the Estate of Mark Sutherlin, Deceased, and on Behalf of the Estate of Mark Sutherlin, Deceased, Plaintiff-Appellee,
v.
Adriana FENENGA, M.D., Defendant-Appellant.
Nos. 10510, 10527.
Court of Appeals of New Mexico.
January 24, 1991.
Certiorari Denied April 4, 1991.
*355 G.L. Spence, Robert P. Schuster, Philip White, Spence, Moriarity & Schuster, Jackson, Wyo., Dick A. Blenden, Paine, Blenden & Diamond, Carlsbad, for plaintiff-appellee.
Ranne B. Miller, Alice Tomlinson Lorenz, Miller, Stratvert, Torgerson & Schlenker, P.A., Albuquerque, for defendant-appellant.
William H. Carpenter, Carpenter and Goldberg, Michael B. Browde, Albuquerque, amicus curiae NM Trial Lawyers Ass'n.
Bruce Hall, Edward Ricco, Ellen G. Thorne, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, amicus curiae NM Hosp. Ass'n.
Thomas R. Rushton, Ass't Atty. Gen., Santa Fe, Paula J. Cotitta, Jim Dines, *356 Dines & McCary, P.C., Albuquerque, amicus curiae NM Dep't of Ins.
OPINION
DONNELLY, Judge.
Defendant Dr. Adriana Fenenga appeals from a judgment entered in a wrongful death and medical malpractice action following a jury trial awarding plaintiff Jack C. Sutherlin, Jr., the personal representative of the estate of his minor son, Mark Sutherlin, deceased, compensatory and punitive damages. Plaintiff also pursues a cross-appeal challenging the trial court's reduction of compensatory damages in accordance with the statutory limitation imposed by NMSA 1978, Section 41-5-6 (Repl. Pamp. 1986).
We first discuss six issues summarily. We then discuss (1) whether the trial court erred in refusing to give defendant's tendered instruction on sudden emergency; and (2) whether questions and references to insurance by plaintiff's counsel during voir dire constituted reversible error. Because we determine that the judgment should be vacated and the cause remanded for a new trial, we do not address other issues raised by defendant or plaintiff's claims raised on the cross-appeal that the trial court erred in reducing the award of compensatory and punitive damages, or plaintiff's challenge to the constitutionality of Section 41-5-6 limiting the amount of compensatory and punitive damage awards.
FACTS
Decedent Mark Sutherlin, age 16, injured his right knee in a sports accident. On December 17, 1981, he was admitted to Memorial General Hospital in Las Cruces to undergo surgery to repair his knee. He was operated on the next day. Defendant, Dr. Fenenga, was the anesthesiologist for the operation.
Plaintiff presented evidence indicating that the anesthesia machine used by defendant malfunctioned during decedent's operation. A post-operative examination of the machine indicated that an extra disk in the machine had blocked the expiratory valve and prevented air from escaping Mark's body. The pressure ruptured Mark's left lung, permitting air to escape into his chest cavity, causing subcutaneous emphysema and pneumothorax. As a result of his injuries, decedent died the following day. Plaintiff presented evidence that the same anesthesia machine used during decedent's operation had also malfunctioned previously, during another operation.
Plaintiff's complaint alleged, among other things, that decedent's death was caused by defendant's failure to properly check the machine before the operation, to properly monitor the patient during the operation, and to take prompt and proper action after she became aware of the machine's malfunction. Defendant denied any negligence on her part. She asserted at trial, among other things, that the anesthesia machine was negligently manufactured, that the manufacturer failed to provide adequate warnings and instructions, that the hospital and its staff failed to properly maintain the machine, and that she responded appropriately when confronted with a sudden emergency.
At the conclusion of the trial the jury returned a special verdict awarding plaintiff $1,200,000 in compensatory damages and $2,000,000 in punitive damages. In entering its final judgment, the trial court reduced the compensatory damage award to $500,000 to conform to the limit imposed in Section 41-5-6 of the Medical Malpractice Act.
I. ISSUES ANSWERED SUMMARILY
(A) Allowance of Punitive Damage Claim
Defendant contends that the trial court erred in allowing the issue of punitive damages to be submitted to the jury. She contends that there was no evidence of a causal connection between her alleged negligent acts and decedent's death. See Cartee v. Lesley, 290 S.C. 333, 350 S.E.2d 388 (1986); Biswell v. Duncan, 742 P.2d 80 (Utah App. 1987). She also contends that there was no evidence that her mental state was sufficiently culpable to permit punitive damages.
*357 A trial court's decision to submit an instruction on a party's theory of the case or claim to the jury will not be reversed unless it appears that the matter in dispute cannot be sustained by the evidence. See Thompson Drilling, Inc. v. Romig, 105 N.M. 701, 736 P.2d 979 (1987); State ex rel. Goodmans Office Furniture, Inc. v. Page & Wirtz Constr. Co., 102 N.M. 22, 690 P.2d 1016 (1984).
The trial court determined that defendant's failure to promptly advise the other doctors that she suspected an air embolism was sufficient to support a claim for punitive damages. Defendant contests this ruling, arguing that she believed at the time of the operation that an air embolism was untreatable. She argues that any failure to disclose her suspicion did not, as a matter of law, rise to the level of "reckless indifference" necessary to support a finding of gross negligence. In New Mexico, proof of gross negligence resulting in injury is a valid basis to support an award of punitive damages. Valdez v. Warner, 106 N.M. 305, 742 P.2d 517 (Ct.App. 1987). In the context of medical malpractice, gross negligence must rise to the level of "reckless indifference." Gonzales v. Sansoy, 103 N.M. 127, 703 P.2d 904 (Ct.App. 1984).
In the present case, there was evidence from which the jury could have determined that defendant was grossly negligent in failing to promptly advise other physicians of the nature of the emergency, failing to properly check the machine prior to decedent's operation, or failing to properly monitor the patient during the operation. Moreover, there was sufficient evidence from which the jury could reasonably determine that a causal connection existed between decedent's death and defendant's alleged failure to properly monitor the patient and advise the other doctors of the patient's condition during the operation. This evidence was sufficient to support the trial court's ruling permitting the issue of punitive damages to be submitted to the jury.
(B) Abandonment Instruction
Plaintiff submitted a proposed jury instruction pursuant to SCRA 1986, UJI Civ. 13-1801, concerning his claim that defendant abandoned the patient at a time when he was in need of prompt medical attention. Defendant objected to the giving of an abandonment instruction, arguing that it injected a false issue. Defendant also argued that the instruction was unsupported by the evidence. See State v. Atchison, Topeka and Santa Fe Ry. Co., 76 N.M. 587, 417 P.2d 68 (1966).
The court's instruction provided in part that in order to establish "the claim of negligence * * * plaintiff has the burden of proving at least one of the following contentions: * * * Dr. Fenenga, having discovered that her patient, decedent, was in serious threat of injury, or that he had already been injured, failed to take appropriate steps to save her patient and instead abandoned him." A second instruction stated: "A doctor's duty to a patient who is in need of care continues until the doctor has withdrawn from the case. A doctor cannot abandon the patient who is in need of continuing care. A doctor can withdraw by giving the patient reasonable notice under the circumstances." See UJI Civ. 13-1115.
Defendant contends that the evidence fails to show that she intended to abandon her patient and instead that it only gives rise to an inference that she failed to meet the required standard of care. Estate of Smith v. Lerner, 387 N.W.2d 576 (Iowa 1986); Dicke v. Graves, 9 Kan. App.2d 1, 668 P.2d 189 (1983); see Annotation, Liability of Physician Who Abandons Case, 57 A.L.R.2d 432 (1958). Defendant also argues that abandonment cannot exist under UJI Civ. 13-1801 when the patient is left in the care of an adequate attendant. Lee v. Dewbre, 362 S.W.2d 900 (Tex.Civ.App. 1962); Meeks v. Coan, 165 Ga. App. 731, 302 S.E.2d 418 (1983). Whether abandonment has occurred is generally a question of fact to be determined by the jury under the circumstances of each case. See O'Neill v. Montefiore Hosp., 11 A.D.2d 132, 202 N.Y.S.2d 436 (1960).
Our review of the record, including defendant's testimony on cross-examination, *358 indicates that shortly after accompanying decedent to the recovery room, defendant left him in order to administer anesthesia in another operation. Defendant first testified that she remained "continuously" with decedent in order to assist in rendering treatment and that she "felt it was my responsibility" to remain with him "to make certain that he received the proper care." When confronted with hospital records, however, she admitted she had not stayed with the patient.
Under these facts, the issue of defendant's alleged abandonment was a fact question for the jury to decide, and the trial court properly submitted the instruction. The jury could conclude from defendant's own testimony that it was her responsibility to remain with her patient and that her act of leaving the recovery room shortly after the operation constituted abandonment.
(C) Failure of Court to Instruct on UJI Civ. 13-2008
The trial court gave an instruction in accordance with SCRA 1986, UJI Civ. 13-1801, but failed to give an instruction based on SCRA 1986, UJI Civ. 13-2008. Defendant argues that because the use note for UJI Civ. 13-1801 states that the two instructions are to be given in every case where the issue of damages is submitted to the jury, and because the Committee Comment to UJI Civ. 13-2008 also notes that "[i]t is the intent of the Committee that this subject matter be covered twice," it was error for the trial court to refuse to give both instructions.
Uniform jury instructions are to be given when justified by the facts, and a refusal to give such instructions when accompanied by the slightest prejudice to a party constitutes reversible error. Tobeck v. United Nuclear-Homestake Partners, 85 N.M. 431, 512 P.2d 1267 (Ct.App. 1973). Because the supreme court approved and adopted both instructions, this court has no authority to change them. In Clinard v. S. Pac. Co., 82 N.M. 55, 475 P.2d 321 (1970), the supreme court held that both instructions must be given and reversed the trial court's ruling because it failed to explain why both were not given. See also SCRA 1986, 1-051(D); Tafoya v. Whitson, 83 N.M. 23, 487 P.2d 1093 (Ct.App. 1971). Here, the trial court explained that it was declining to give UJI Civ. 13-2008 because it had already given an instruction under SCRA 1986, UJI Civ. 13-1830, relating to the measure of damages in actions for wrongful death. UJI Civ. 13-1830 reads, in part, "[i]f you should decide for the plaintiff on the question of liability, you must then fix the amount of damages."
We conclude the trial court erred in failing to give both UJI Civ. 13-1801 and 13-2008. However, in view of the fact that the language of UJI Civ. 13-2008 substantially incorporated similar language contained in UJI Civ. 13-1830, which was given by the court, we find the error to be harmless. See LaBarge v. Stewart, 84 N.M. 222, 501 P.2d 666 (Ct.App. 1972) (court may properly refuse an instruction where it is repetitious in nature).
(D) Evidence of Reading
Prior to trial, defendant filed a motion in limine to exclude any reference to allegations that she had read magazines during other operations. The trial court denied the motion, finding such acts relevant to the issue of defendant's professionalism and credibility.
In his opening statement, plaintiff's attorney said that an anesthesiologist is required to remain alert and that "there is no time to read, no time to look at Time magazine, The National Enquirer." Defendant did not object. During cross-examination, defendant denied reading in the operating room. Plaintiff then asked the defendant, "if other doctors, other nurses, other anesthesiologists, said they had seen you do this on numerous times, they would be wrong * * *?" Defendant's objection was sustained. On recross-examination plaintiff asked defendant if she was present when depositions of nurses were taken concerning her reading in the operating room. Defendant objected that the question was improper. The objection was overruled, and defendant said that she had been *359 present. During plaintiff's cross-examination of Dr. Lindley, defendant objected on the ground of hearsay to a question about whether Dr. Lindley would permit a doctor to read during an operation. This objection was sustained.
We find defendant's claim of error on this issue without merit. The trial court sustained defendant's objections to such questioning, except to a question on cross-examination seeking to impeach the defendant. Under SCRA 1986, 11-402, relevant evidence is admissible and, subject to the limitation of SCRA 1986, 11-403, impeachment evidence is relevant, and the credibility of a witness may be attacked by any party. See SCRA 1986, 11-607. Similarly, specific instances of a witness' conduct may be inquired into on cross-examination for the purpose of attacking his credibility under SCRA 1986, 11-608(B). Moreover, defendant's objection to the inquiry was not sufficiently specific to preserve error on this issue. See State ex rel. Human Servs. Dep't v. Coleman, 104 N.M. 500, 723 P.2d 971 (Ct.App. 1986). Under the facts herein, we find no abuse of discretion in permitting defendant to be cross-examined on this issue for the purpose of determining credibility. See R. 11-608(B).
(E) References to Unadmitted Deposition Testimony
Defendant asserts that plaintiff's counsel improperly referred to unadmitted deposition testimony. We find no error under the record before us. During opening argument plaintiff's attorney stated that a nurse would testify that decedent looked like "an old black man" when defendant first noticed something was wrong. No objection was raised. During cross-examination of Dr. Lindley, plaintiff's counsel asked if he knew that one of the nurses who saw decedent during the operation described him as being "blue as a Concord grape." A hearsay objection was sustained. Plaintiff's counsel then asked Dr. Lindley a hypothetical question requiring him to assume in part that the patient was the "color of a Concord grape or the color of an old black man * * * as another nurse referred to him * * *." Defense counsel objected, stating that there was "no evidence in the record of that." The court overruled this objection.
Although we agree that as a general rule, under SCRA 1986, 11-705, hypothetical questions must be based on facts in evidence or upon evidence which the propounding attorney assures the court will be admitted into evidence, here, plaintiff's attorney indicated during his opening statement that he would call a nurse who would testify about decedent's color during the operation. See SCRA 1986, UJI Civ. 13-209. If an attorney does not present evidence to support a hypothetical question, the opposing party must move to strike the answer in order to preserve the error for review. See In re Estate of Mora, 611 P.2d 842 (Wyo. 1980). Here, defendant failed to move to strike the evidence to which she now objects.
(F) Cross-Examination Concerning Insurance
Defendant asserts that plaintiff improperly injected the issue of insurance before the jury during the cross-examination of Dr. Lindley. Plaintiff inquired whether defense counsel was employed on a case-by-case basis by "any company which provides you [Dr. Lindley] any benefit or protection?" Dr. Lindley said that he was. Plaintiff then asked if the attorney who had represented him at his deposition had also been paid by the same company; Dr. Lindley answered "yes." Defendant objected that this question improperly placed the issue of insurance before the jury and requested a mistrial. The court denied the motion. Dr. Lindley was then asked whether after this lawsuit was filed he became aware that the suit might affect the same company that "provides you certain benefits * * *?"
Plaintiff contends the questions were proper, revealing the witness' potential bias, and suggested why Dr. Lindley's trial testimony differed from the opinions voiced in his deposition concerning the cause of decedent's death. Dr. Lindley testified in his deposition that it was his opinion that *360 decedent died from injuries caused by a tension pneumothorax. At trial, however, he stated the cause of death was not a pneumothorax but an air embolism.
In Davila v. Bodelson, 103 N.M. 243, 704 P.2d 1119 (Ct.App. 1985), this court considered whether it was proper to ask an expert witness whether he was covered by insurance. There, plaintiff argued that a physician had a possible interest in the outcome of the case because he was subject to the surcharge authorized under the Medical Malpractice Act. This court held that the trial court's ruling excluding such questioning was not error because the doctor's testimony was corroborative of similar testimony given by other experts. Similarly, plaintiff's cross-examination of Dr. Lindley was not improper. Plaintiff's questions were carefully phrased so as to determine whether Dr. Lindley had a possible bias or prejudice. See SCRA 1986, 11-411. See also Davila v. Bodelson. Under these circumstances we find no error. See Mac Tyres, Inc. v. Vigil, 92 N.M. 446, 589 P.2d 1037 (1979) (evidence of the existence of insurance does not violate Rule 11-411 where it is offered for purposes of impeachment or to demonstrate the bias or prejudice of a witness).
II. DENIAL OF SUDDEN EMERGENCY INSTRUCTION
Defendant contends that the trial court erred in refusing to give her tendered instruction on sudden medical emergency as provided in SCRA 1986, UJI Civ. 13-1113. Defendant asserts that this instruction was supported by evidence that she was confronted by a sudden malfunction of the anesthesia machine during the operation, which gave rise to a medical emergency. See Romero v. Melbourne, 90 N.M. 169, 561 P.2d 31 (Ct.App. 1977); Otero v. Physicians & Surgeons Ambulance Serv. Inc., 65 N.M. 319, 336 P.2d 1070 (1959). Plaintiff disputes defendant's contention and argues that a sudden emergency, as contemplated in UJI Civ. 13-1113, did not exist, or, alternatively, that any crisis was caused by defendant's own negligence.
UJI Civ. 13-1113 provides in part:
A doctor who, without negligence on his part, is suddenly and unexpectedly confronted with peril arising from either the actual presence or the appearance of imminent danger to the patient, is not expected nor required to use the same judgment and prudence that is required of the doctor in the exercise of ordinary care in calmer and more deliberate moments.
The use note for UJI Civ. 13-1113 states that this instruction, which was specifically designed for use in medical cases, is similar to SCRA 1986, UJI Civ. 13-1617, pertaining to claims of sudden emergency in other types of negligence actions. Referring to UJI Civ. 13-1617, this court has said:
[T]he fact that the party relying on the [sudden emergency] doctrine may have contributed by his negligence to causing the emergency does not preclude giving the sudden emergency instruction. It is ordinarily a question of fact for the jury whether the negligence of the party contributed to causing the emergency. If the jury finds such negligence, it does not apply the emergency doctrine; if it finds no such negligence, it goes on to apply the sudden emergency doctrine.
Trujillo v. Baldonado, 95 N.M. 321, 323, 621 P.2d 1133, 1135 (Ct.App. 1980) (quoting Martinez v. Schmick, 90 N.M. 529, 565 P.2d 1046 (Ct.App. 1977)) (emphasis added). See also Linhares v. Hall, 357 Mass. 209, 257 N.E.2d 429 (1970). In Linhares, a child underwent a tonsillectomy and suffered cardiac arrest during the administration of anesthesia. In a suit against the anesthesiologist, the appellate court upheld the trial court's giving of an instruction on sudden medical emergency, finding that the trial testimony supported such instruction.
Defendant and Drs. Ward, Lindley, and Barham each testified at trial that the malfunction of the anesthesia machine gave rise to an emergency or crisis. Plaintiff's counsel inquired of Dr. Lindley, "It was an emergency, wasn't it?" Dr. Lindley agreed, indicating that he thought the problem with the anesthesia machine created an emergency situation. Similarly, *361 Dr. Ward stated that a pneumothorax was a very rare complication and that subcutaneous emphysema was also an unusual complication. On direct examination by defendant's attorney, Dr. Barham testified that during the operation defendant alerted him to the fact that there was a problem with the patient. Defense counsel asked whether it "was an emergency crisis situation?", and the witness agreed.
The above testimony was sufficient to support defendant's claim of sudden medical emergency, entitling defendant to an instruction on this theory. Failure to give the proffered instruction, we conclude, constituted reversible error.
On appeal, we review the record to determine whether evidence was presented which would support the requested instruction. Martinez v. Schmick; see Whitfield Tank Lines v. Navajo Freight Lines, 90 N.M. 454, 564 P.2d 1336 (Ct.App. 1977). The trial court has a duty to instruct on all legal theories supported by the evidence. Id. See also SCRA 1986, 1-051(B).
Although our determination of this issue requires that the case be reversed and remanded for a new trial, in the interests of judicial economy we address other claims raised on appeal which may again arise on retrial.
III. REFERENCES TO INSURANCE IN VOIR DIRE
Defendant argues that the trial court erred in failing to restrict plaintiff's counsel from improperly referring to insurance matters during voir dire and permitting plaintiff's counsel to (1) question prospective jurors about their current or previous employment with insurance companies; (2) question their knowledge concerning an alleged "insurance crisis;" and (3) voice his personal opinions concerning insurance companies.
(A) Questioning Concerning Jurors' Employment
Several of the prospective jurors responded to questions propounded by plaintiff's counsel on voir dire, indicating that they were either currently employed by an insurance company or had previously been employed by an insurance company. We find no error in the trial court's refusal to limit questioning of prospective jurors concerning whether their current or previous employment with insurance companies would influence their verdict. See Olguin v. Thygesen 47 N.M. 377, 143 P.2d 585 (1943); Madrid v. Scholes, 89 N.M. 15, 546 P.2d 863 (Ct.App. 1976). See also Borkoski v. Yost, 182 Mont. 28, 594 P.2d 688 (1979).
The purpose of voir dire is to enable the parties to determine whether there is any bias or prejudice on the part of prospective jurors and to enable counsel to intelligently exercise challenges. State v. Brown, 91 N.M. 320, 573 P.2d 675 (Ct.App. 1977), cert. denied, 436 U.S. 928, 98 S.Ct. 2826, 56 L.Ed.2d 772 (1978); Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705 (Tex. 1989). The trial court is invested with broad discretion over the scope of voir dire. Madrid v. Scholes. Generally, an attorney may properly inquire on voir dire whether a prospective juror is connected with, has any interest in, or is employed by an insurance company, so long as such inquiry is limited in scope and conducted in good faith. See Olguin v. Thygesen; Madrid v. Scholes; King v. Westlake, 264 Ark. 555, 572 S.W.2d 841 (1978). See generally Annotation, Admissibility of evidence, and propriety and effect of questions, statements, comments, etc., tending to show that defendant in personal injury or death action carries liability insurance, 4 A.L.R.2d 761 (1949).
(B) Questioning Concerning "Insurance Crisis"
After receiving a favorable ruling about inquiries into potential jurors' involvement with insurance companies, plaintiff's counsel then propounded a series of questions on voir dire exploring whether any of the prospective jurors had any knowledge concerning claims about the existence of an alleged "insurance crisis."
Whether it is permissible to question prospective jurors on voir dire concerning their knowledge of claims concerning *362 an "insurance crisis" is a matter of first impression in New Mexico. The courts in several jurisdictions have prohibited or restricted inquiry into such subject on voir dire. See Maness v. Bullins, 19 N.C. App. 386, 198 S.E.2d 752 (1973); Brockett v. Tice, 445 S.W.2d 20 (Tex.Civ.App. 1969); Murrell v. Spillman, 442 S.W.2d 590 (Ky. Ct. App. 1969); Butcher v. Main, 426 S.W.2d 356 (Mo. 1968). See also Kiernan v. Van Schaik, 347 F.2d 775 (3rd Cir.1965).
We believe that the proper rule, however, is that a party may properly make a good faith inquiry into such issue on voir dire, subject to appropriate limitations imposed by the trial court, and upon a proper showing that members of the prospective jury panel may have been exposed to media accounts concerning allegations about the effect of jury awards on insurance costs. See, e.g., Olguin v. Thygesen (examination of jurors is proper so long as it is conducted in an honest effort to discover matters which reasonably may unduly influence them). See also Borkoski v. Yost; King v. Westlake; Babcock v. Northwest Memorial Hosp.; Davila v. Bodelson; Kujawa v. Baltimore Transit Co., 224 Md. 195, 167 A.2d 96 (Ct.App. 1961); Johnson v. Hansen, 237 Or. 1, 390 P.2d 611 (1964). See generally Annotation, Propriety and Prejudicial Effect of Trial Counsel's Reference or Suggestion in Medical Malpractice Case That Defendant is Insured, 71 A.L.R. 4th 1025 (1989). In order to minimize the possibility of prejudice from such inquiry, counsel should preferably alert the court in advance, however, as to the questions sought to be propounded. Borkoski v. Yost.
Although we hold that good faith questioning concerning the possible effect of media accounts concerning an "insurance crisis" is proper, we conclude that plaintiff's counsel, in the instant case, exceeded the limit of permissible voir dire by injecting additional personal comments concerning insurance that were clearly prejudicial. The test of whether such inquiry was conducted in good faith is whether the questions were propounded in such manner as to convey an impression that defendant is in fact insured. Elford v. Hiltabrand, 63 Cal. App.2d 65, 146 P.2d 510 (1944). As shown by the record, plaintiff's counsel, after asking a number of general questions to prospective jurors concerning media reports relating to an "insurance crisis," then stated:
I want to talk to you about it, if I may. How many of you, first of all, believe [there is an insurance crisis]? I mean, we know that television advertisements are put on, they [insurance companies] paid millions of dollars for [these advertisements] and they do that for a reason, and that is to make people believe certain facts.
Defendant objected to these remarks and requested a mistrial. The motion was denied. Defense counsel then asked the court to admonish the jury to disregard counsel's remarks concerning insurance, and the court indicated it would do so later at an appropriate time. At the conclusion of plaintiff's voir dire of the first group of jurors, the court told the panel members that it had permitted inquiry concerning insurance companies for the purpose of determining the panel's attitudes concerning damages. The court also stated that whether or not a party was insured was irrelevant because insurance "has no bearing in this case," and "you are not to speculate * * * as to whether or not either party had any insurance involved in this case." No admonition instructing the jury to disregard the remarks of plaintiff's counsel, however, was given.
Thereafter, voir dire continued, and plaintiff's counsel stated to a prospective juror, in the presence of other panel members:
Now, you've already told us that [you were employed by an insurance company and that advertising about the insurance crisis] wouldn't affect your judgment in this case one way or the other, but there is something that does bother me a little bit. I have been a lawyer representing the people all my life, not insurance companies. I have a prejudice against insurance companies and I have a prejudice for people * * *. Now, you've been *363 working for an insurance company on the other side * * * but don't you have the same kind of problems working for them that I have working against them? That is, I work against them, the insurance companies, and I get prejudiced against them.
Defendant again objected and thereafter requested a mistrial. The court denied defendant's request for a mistrial. Later, however, at the conclusion of plaintiff's voir dire of a second group of jurors, it instructed the jury that the existence of insurance was "not an issue in this case, and you are not to take that into account in any deliberations * * * in deciding the case."
Defendant urges that plaintiff's counsel's statements about insurance companies' motives for advertising and plaintiff's counsel's feelings of prejudice against those companies exceeded the limits of good faith questioning concerning this issue on voir dire. We agree.
It is improper to utilize voir dire as a means of alerting members of the jury to the fact that a party may be covered by insurance. See De Long v. Green, 229 Ark. 100, 313 S.W.2d 370 (1958); Speet v. Bacaj, 237 Va. 290, 377 S.E.2d 397 (1989). Moreover, remarks indicating an attorney's prejudices regarding insurance carriers have the effect of emphasizing to the jury the fact that defendant is insured. Id. See, e.g., Griego v. Conwell, 54 N.M. 287, 222 P.2d 606 (1950) (attempt to improperly influence jurors against opposing litigants may in specific case constitute reversible error); Sweet v. Stutch, 240 Cal. App.2d 891, 50 Cal. Rptr. 9 (1966) (error arises when questions are designed to implant in minds of jury the fact that defendant has insurance).
As observed in the Annotation, Admissibility of evidence, and propriety and effect of questions, statements, comments, etc., tending to show that defendant in personal injury or death action carries liability insurance, 4 A.L.R.2d 761, 792 (1949):
In order for counsel to make intelligent use of such rights as he has in the selection of a jury, he is usually allowed considerable latitude in questioning prospective [jury] members. But he must conduct his questioning in good faith. He may not, in the guise of selecting an impartial jury, unnecessarily say or do anything to unfairly prejudice the jury against his opponents in the case. These considerations apply with particular force in actions for damages for personal injuries or death where defendants are protected by liability insurance * * *.
The record reflects that the majority of plaintiff's voir dire involved questioning concerning jurors' attitudes about insurance. The statement by plaintiff's counsel that "they paid millions of dollars for that and they do that for a reason," and counsel's statement voicing his own personal feeling of prejudice against insurance companies because "I work against them," considered in their entirety, we think, were prejudicial and improperly emphasized to the jury counsel's attitudes and the fact that defendant was insured.
Plaintiff argues that the trial court's admonition to the jury that insurance should have no bearing upon their decision in this case cured any error which may have occurred. See Cardoza v. Town of Silver City, 96 N.M. 130, 628 P.2d 1126 (Ct.App. 1981); Safeco Ins. Co. of America v. United States Fidelity & Guar. Co., 101 N.M. 148, 679 P.2d 816 (1984). We disagree. Under the facts herein, we conclude that the admonitions by the court were insufficient to correct the prejudice resulting from counsel's improper statements emphasizing the issue of insurance. See State v. Rowell, 77 N.M. 124, 419 P.2d 966 (1966) (damage caused by question held not cured by sustaining of objection); Barton v. Owen, 71 Cal. App.3d 484, 139 Cal. Rptr. 494 (Ct.App. 1977) (proposed voir dire question and jury admonition properly denied, where inquiry and admonition would inject references to medical malpractice insurance crisis).
*364 CONCLUSION
For the foregoing reasons the judgment of damages is reversed, and the cause is remanded with instructions to award a new trial and for further proceedings consistent with this opinion.
IT IS SO ORDERED.
CHAVEZ, J., and CALDWELL, D.J., concur.
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